Filed: Jun. 21, 2004
Latest Update: Feb. 12, 2020
Summary: when Seider provided and used cocaine. That can generally, be accomplished through reference in the substituted, language to a relevant date or other facts in evidence, that will clearly put the accused and the reviewing, courts on notice of what conduct served as the basis, for the findings.
IN THE CASE OF
UNITED STATES, Appellee
v.
Shane T. SEIDER, Airman First Class
U.S. Air Force, Appellant
No. 04-0082
Crim. App. No. 35154
United States Court of Appeals for the Armed Forces
Argued April 20, 2004
Decided June 21, 2004
ERDMANN, J., delivered the opinion of the Court, in which
GIERKE, EFFRON, and BAKER, JJ., joined. CRAWFORD, C.J., filed a
separate dissenting opinion.
Counsel
For Appellant: Major Andrew S. Williams (argued); Major Terry
L. McElyea and Captain Jennifer K. Martwick (on brief).
For Appellee: Major John C. Johnson (argued); Colonel LeEllen
Coacher and Lieutenant Colonel Robert V. Combs (on brief).
Military Judge: S. A. Hatfield
This opinion is subject to editorial correction before final publication.
United States v. Seider, No. 04-0082/AF
Judge ERDMANN delivered the opinion of the Court.
Appellant, Airman First Class Shane T. Seider, was tried by
a general court-martial consisting of members. He was charged
with the wrongful use of cocaine on divers occasions and
wrongfully distributing cocaine in violation of Article 112a,
Uniform Code of Military Justice [UCMJ], 10 U.S.C. § 912a
(2000). Although Seider pleaded not guilty to both
specifications, he was found guilty of wrongfully distributing
cocaine as charged and of wrongfully using cocaine except the
words “on divers occasions.”
Seider was sentenced to a bad-conduct discharge,
confinement for 15 months, forfeiture of all pay and allowances,
and reduction to the lowest enlisted grade. The convening
authority approved the sentence and the Air Force Court of
Criminal Appeals affirmed the findings and sentence in an
unpublished opinion. United States v. Seider, ACM 35154 (A.F.
Ct. Crim. App. August 11, 2003). We granted review of the
following issue:
WHETHER, IN LIGHT OF UNITED STATES V.
WALTERS, 58 M.J. 391 (C.A.A.F. 2003), THE
AIR FORCE COURT ERRED IN AFFIRMING
APPELLANT’S CONVICTION FOR WRONGFULY USING
COCAINE BECAUSE THERE WAS NO WAY TO KNOW
WHICH USE OF COCAINE THE MEMBERS FOUND
APPELLANT GUILTY OF.
We hold that the Air Force Court of Criminal Appeals erred.
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United States v. Seider, No. 04-0082/AF
FACTS
Seider was arraigned and tried upon two specifications
alleging violations of Article 112a. Specification 1 alleged
the wrongful use of cocaine “on divers occasions” as follows:
In that Airman First Class Shane T. Seider,
United States Air Force, 559th Flying
Training Squadron, Randolph Air Force Base,
Texas, did, at or near Universal City,
Texas, on divers occasions between on or
about 1 October 2000 and on or about 31
December 2000, wrongfully use cocaine.
Trial counsel asserted in his opening statement that the
Government would prove two cases.
Government evidence presented in support of this offense
revealed two distinct instances during which Seider allegedly
used cocaine. Airmen Basic Castonguay, Bennett, and Chavez each
testified that while playing cards and drinking at Seider’s
apartment, Seider provided cocaine and used the substance
himself. Airman Basic Castonguay also testified that about a
month earlier he had been at Seider’s home watching football
when Seider provided and used cocaine. This testimony about two
distinct events formed the only evidentiary basis for the
allegation of wrongful use of cocaine “on divers occasions.”
As part of his sentencing instructions the military judge
advised the members:
As to Specification 1 of the Charge, if you
have doubt the accused wrongfully used
cocaine on divers occasions, but you are
satisfied beyond a reasonable doubt that the
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United States v. Seider, No. 04-0082/AF
accused wrongfully used cocaine once, you
may still reach a finding of guilty;
however, you must change the specification
by exception, i.e., deleting the words “on
divers occasions.”
This instruction was not accompanied by instructions about
substitutions to specify a single use on or about a given date
and the military judge did not provide any instruction on how to
make exceptions and substitutions on the findings worksheet.
During his argument on findings, trial counsel variously
referred to the evidence of use “on more than one occasion,” “on
divers occasions,” “on an additional occasion,” “during both
occasions,” “on a second occasion,” and “on two occasions.” The
Government clearly relied upon evidence of the two separate
incidents to prove use “on divers occasions.”
Prior to the announcement of the findings, the military
judge examined the findings worksheet, noted one minor
correction with respect to a finding on the Charge and
determined the worksheet to be “in proper form.” The president
of the court announced that the members found Seider “of
Specification 1 of the Charge: Guilty, except the words: ‘on
divers occasions.’ Of the excepted words, Not Guilty, of the
remaining words, Guilty.” The members made no substitutions to
specify which of the two uses presented by the Government was
proven beyond a reasonable doubt. The military judge did not
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United States v. Seider, No. 04-0082/AF
direct and the parties to the trial did not request any
clarification of the findings.
DISCUSSION
The issue in this case focuses upon the uncertainty in this
particular verdict – a circumstance involving the conversion of
a “divers occasion” specification to a “one occasion”
specification through exceptions. We addressed this same
uncertainty in United States v. Walters, 58 M.J. 391 (C.A.A.F.
2003), where we held that the military judge erred “in giving
incomplete instructions regarding the use of findings by
exceptions and substitutions and in failing to secure
clarification of the court-martial’s ambiguous findings prior to
announcement.”
Id. at 396-97. We further held that this type
of ambiguous verdict could not be reviewed under Article 66(c),
UCMJ, 10 U.S.C. § 866(c) (2000), “because the findings of guilty
and not guilty do not disclose the conduct upon which each of
them was based.”
Walters, 58 M.J. at 397.
While the Government conceded at oral argument that this
verdict presented a Walters problem at the trial level, they
argue that the uncertainty presented by the verdict was resolved
by the Court of Criminal Appeals. The Government further argued
that this case is “substantially different” than Walters.
Unlike Walters which involved evidence of as many as six
instances of drug use, the Government urges that this case
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United States v. Seider, No. 04-0082/AF
involves evidence of only two discrete alleged instances and
that the record provides a clear, sufficient factual basis for
the Court of Criminal Appeals to review the finding and resolve
any ambiguity. The Government’s argument finds support in the
Court of Criminal Appeals’ per curiam opinion:
We reviewed the record of trial for the
legal and factual sufficiency of the
evidence. Article 66(c), UCMJ, 10 U.S.C. §
866(c); United States v. Reed, 54 M.J. 37,
41 (2000). Three witnesses testified that
the appellant distributed and used cocaine
during a card game at the appellant’s off-
base apartment. One of the three witnesses
provided vague testimony about one
additional use of cocaine. Exercising our
fact-finding power under Article 66(c),
UCMJ, we are convinced beyond a reasonable
doubt that the appellant used and
distributed cocaine during a card game at
the appellant’s off-base apartment. We are
similarly convinced that this was the basis
for the court members’ finding of guilt for
this specification.
Seider, ACM 35154, slip op at 1-2.
While recognizing that the military judge erred in failing
to give complete instructions and failing to secure
clarification of the court-martial’s ambiguous findings prior to
announcement, the Government overlooks a central holding in
Walters. Because the findings of guilty and not guilty do not
disclose the conduct upon which each of them was based, the
Court of Criminal Appeals cannot conduct a factual sufficiency
review of Appellant’s conviction. As we noted in Walters, the
Court of Criminal Appeals is prevented from even conducting its
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United States v. Seider, No. 04-0082/AF
factual sufficiency review by the fundamental rule that the
“Court of Criminal Appeals cannot find as fact any allegation in
a specification for which the factfinder below has found the
accused not guilty.”* Walters, 58 M.J. at 395 (citing United
States v. Smith,
39 M.J. 448, 451 (C.M.A. 1994)). In turn,
where we cannot determine whether the Court of Criminal Appeals
reviewed and affirmed an offense of which Seider was acquitted,
we cannot affirm that finding.
DECISION
Accordingly, the decision of the Air Force Court of
Criminal Appeals as to Specification 1 of the Charge and the
sentence is reversed, but is affirmed in all other respects.
The finding of guilty of Specification 1 of the Charge and the
sentence are set aside and Specification 1 is dismissed. The
record is returned to the Judge Advocate General of the Air
Force for remand to the Court of Criminal Appeals. That Court
may either reassess the sentence based on the affirmed guilty
findings or order a rehearing on the sentence.
*
The fact that this case involved only two incidents while
Walters involved six incidents does not impact upon the
inability of the Court of Criminal Appeals to conduct a factual
sufficiency review of the conviction. The defect is neither a
question of the legal or factual sufficiency of the evidence of
one alleged use versus the other, nor is it a question to be
resolved by weighing evidence and concluding that evidence of
one use is quantitatively or qualitatively inferior.
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United States v. Seider, No. 04-0082/AF
CRAWFORD, Chief Judge (dissenting):
I respectfully dissent from the lead opinion on several
grounds. First, the majority unnecessarily creates a sweeping
rule on what should be an extremely fact-specific issue. To
this end, the lead opinion fails to recognize the features of
this case which distinguish it from Walters, and therefore
render the Walters holding inapplicable. United States v.
Walters, 58 M.J. 391 (C.A.A.F. 2003). Finally, the majority
neglects to apply waiver in this case.
On the first point, the allegation of committing an offense
on “divers occasions” exists not only under the facts of this
case and Walters, but also in the context of sexual abuse, e.g.,
United States v. Wellington, 58 M.J. 420 (C.A.A.F. 2003); carnal
knowledge, United States v. McCollum,
58 M.J. 323 (C.A.A.F.
2003); leaving a daughter unattended, United States v. Vaughan,
58 M.J. 29 (C.A.A.F. 2003); sexual harassment, United States v.
Brown,
55 M.J. 375 (C.A.A.F. 2001); conduct unbecoming an
officer, United States v. Rogers,
54 M.J. 244 (C.A.A.F. 2002);
and numerous drug offenses, e.g., United States v. Campbell,
57
M.J. 134 (C.A.A.F. 2002); United States v. Downing,
56 M.J. 419
(C.A.A.F. 2002); United States v. Grant,
56 M.J. 410 (C.A.A.F.
2002).
Given the myriad of factual scenarios which might generate
a charge of committing an offense on “divers occasions,” this
United States v. Seider, No. 04-0082/AF
Court should address the issue presented through a fact-specific
inquiry with a fact-specific holding, interpreting Walters
through the lens of its unique facts. Instead, the majority
applies Walters in a sweeping fashion, with the inevitable
consequence of an immeasurable impact on military justice.
To this end, the instant case is distinguishable from
Walters. In Walters, the accused was charged with wrongful use
of ecstasy “at divers occasions” between April 1 and July 18,
2000. Several witnesses testified as to different uses of
ecstasy by the accused at different times during the spring and
early summer of 2001. At least one of the witnesses testified
as to use of drugs outside of the charged time frame. When
instructing the members on findings by exceptions and
substitutions, the military judge stated:
[I]f you do what is called findings by exceptions and
substitutions, which is the variance instruction I
have given you earlier, where you may – and this is
just an example – on the divers uses, you may find
just one use, and you except out the words divers uses
and you substitute in the word one time, or something
like that . . . .
Walters, 58 M.J. at 393. The members excepted the words “at
divers occasions” and substituted the words on “one occasion.”
In reviewing the finding on appeal, a majority of this Court
noted that the verdict was ambiguous and that “[w]hile [the]
hypothetical example of a finding by exceptions and
substitutions was well intended, it was less than complete.”
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United States v. Seider, No. 04-0082/AF
Id. at 396. The judge did not instruct the members that the
Government must prove a finding of guilty as to a single
occasion beyond a reasonable doubt. The Court concluded:
Where a specification alleges wrongful acts on
“divers occasions,” the members must be instructed
that any findings by exceptions and substitutions that
remove the “divers occasions” language must clearly
reflect the specific instance of conduct upon which
their modified findings are based. That can generally
be accomplished through reference in the substituted
language to a relevant date or other facts in evidence
that will clearly put the accused and the reviewing
courts on notice of what conduct served as the basis
for the findings.
. . . .
In sum, the military judge erred in giving
incomplete instructions regarding the use of findings
by exceptions and substitutions and in failing to
secure clarification of the court-martial’s ambiguous
findings prior to announcement. The Court of Criminal
Appeals, in turn, could not conduct a factual
sufficiency review of Appellant’s conviction because
the findings of guilty and not guilty do not disclose
the conduct upon which each of them was based.
Appellant has a substantial right to a full and fair
review of his conviction under Article 66(c) and the
ambiguity in the court-martial’s findings results in
material prejudice to that right. See Article 59(a),
UCMJ, 10 U.S.C. § 859(a) (2000).
Id. at 396-97.
The majority’s concern in Walters was that the original
instructions with the hypothetical, the query by the members,
and the ultimate findings made it impossible for the Court of
Criminal Appeals to conduct a factual sufficiency review. This
concern is not present in the instant case, because the conduct
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United States v. Seider, No. 04-0082/AF
upon which Appellant’s guilty finding was based is clear: the
one occasion of cocaine use described in detail by all three
witnesses. In other words, in assessing Appellant’s charge of
drug use on “divers occasions,” the members faced two possible
occasions of drug use: one described in extremely similar detail
by three different witnesses, and the other described hazily by
only one witness. By excepting the words “divers occasions”
from their findings, the members indicated their understanding
that Appellant did not use cocaine on both occasions, but rather
on only one, and it is clear on which occasion that was. Given
this clarity, the members did not require clarification of the
worksheet based on a confusing hypothetical example by the
military judge as was the case in Walters. “It is assumed that
twelve men know more of the common affairs of life than does one
man, that they can draw wiser and safer conclusions from
admitted facts thus occurring than can a single judge.” R.R.
Co. v. Stout, 84 U.S. 657, 664 (1874).
Moreover, in Walters the lower court made the following
conclusion as to the ambiguity of the appellant’s findings:
The court members found the appellant guilty of
the wrongful use of ecstasy on one occasion between
about 1 April and 18 July 2000. There was ample
evidence to support this finding, and this Court is
convinced beyond a reasonable doubt that the appellant
wrongfully used ecstasy during the period alleged. We
follow the common-law rule, and presume the court
members followed the instructions given to them by the
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United States v. Seider, No. 04-0082/AF
military judge and properly discharged their fact-
finding responsibility.
United States v. Walters, 57 M.J. 554, 559 (A.F. Ct. Crim. App.
2002). The lower court gave no indication if it could identify
the one occasion on which the appellant used drugs. By
contrast, in the case at bar the lower court opined:
Three witnesses testified that the appellant
distributed and used cocaine during a card game at the
appellant’s off-base apartment. One of the three
witnesses provided vague testimony about one
additional use of cocaine. Exercising our fact-
finding power under Article 66(c), UCMJ, we are
convinced beyond a reasonable doubt that the appellant
used and distributed cocaine during a card game at the
appellant’s off-base apartment. We are similarly
convinced that this was the basis for the court
members’ finding of guilty for this specification.
United States v. Seider, ACM No. 35154, slip op. at 1-2 (A.F.
Ct. Crim. App. Aug. 11, 2003). Thus, the Air Force Court
specifically stated that it based its decision on the
corroborating testimony of the three witnesses, which pointed to
Appellant’s cocaine use on one occasion – the first occasion
described by Airman Basic Castonguay, and the only occasion
described by Airmen Basic Bennett and Chavez. Clearly, the
court was able to identify the one occasion on which Appellant
used cocaine. Not surprisingly, this is the occasion
overwhelmingly supported by the evidence, a conclusion so
obvious to all parties at the trial that the verdict produced no
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United States v. Seider, No. 04-0082/AF
comment, question, or objection from any party to the
proceedings.
In short, the level of certainty as to the findings in this
case far exceeds the certainty in Walters. Indeed, the occasion
of cocaine use for which the members convicted Appellant is
quite clear. Consequently, the Court of Criminal Appeals in
this case was able to conduct an adequate factual sufficiency
review of Appellant’s conviction, in keeping with Appellant’s
“substantial right to a full and fair review of his conviction
under Article 66(c).” Walters, 58 M.J. at 397.
In the instant case, the majority could have limited
Walters to its unique facts, held that the judge failed to
instruct the members that if they find the accused guilty of an
allegation as to divers occasions, the proof as to any one of
those occasions must be beyond a reasonable doubt. Instead, the
majority has unnecessarily created a sweeping holding.
Finally, the majority fails to recognize that because
Appellant waived the issue by remaining silent at trial, he
cannot prevail on appeal in the absence of plain error.
Specifically, defense counsel failed to move for a bill of
particulars, failed to move to limit duplicitous pleadings, and
failed to object to the members’ findings.
Failure by a party . . . to make motions or requests
which must be made before pleas are entered . . .
shall constitute waiver. . . . Other motions,
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United States v. Seider, No. 04-0082/AF
requests, defenses, or objections, except lack of
jurisdiction or failure of a charge to allege an
offense, must be raised before the court-martial is
adjourned for that case and, unless otherwise provided
in this Manual, failure to do so shall constitute
waiver.
Rule for Courts-Martial 905(e). Because Appellant did not at
trial challenge what he in retrospect alleges were ambiguous
findings, he should not now be afforded the opportunity to
address what “could have been dealt with by a timely objection
or motion at trial.” United States v. Huffman, 40 M.J. 225, 229
(C.M.A. 1994)(Crawford, J., dissenting in part and concurring in
the result).
“If an error is waived, further consideration of its effect
is simply estopped unless it qualifies as ‘plain error’. . . .”
United States v. Deachin, 22 M.J. 611, 614 (A.C.M.R. 1986)
(citing United States v. Tyler,
17 M.J. 381, 385-86 (C.M.A.
1984)); see also United States v. Causey,
37 M.J. 308, 311
(C.M.A. 1993). To remedy an error not raised at trial, an
appellate court must find (1) a deviation from a legal rule, (2)
that is clear under current law, (3) that is materially
prejudicial, and that (4) seriously affects the fairness,
integrity, or public perception of judicial proceedings. See
United States v. Johnson,
520 U.S. 461, 467 (1997); United
States v. Olano,
507 U.S. 725, 732 (1993).
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United States v. Seider, No. 04-0082/AF
Even assuming error in the military judge’s instructions to
the members, such action did not materially prejudice Appellant.
The evidence of record overwhelmingly supports two conclusions:
(1) Appellant is guilty beyond a reasonable doubt of using
cocaine; and (2) he committed this act on the one occasion
supported by all three witnesses. Thus, any error on the part
of the military judge in failing properly to instruct the
members on findings by exceptions and substitutions did not
prejudice Appellant.
For these reasons, I respectfully dissent.
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