UNITED STATES, Appellee

                                        v.

                    Sean W. GRIGGS, Senior Airman
                      U.S. Air Force, Appellant


                                 No. 04-0392

                           Crim. App. No. 34739


       United States Court of Appeals for the Armed Forces

                        Argued January 25, 2005

                       Decided September 2, 2005

BAKER, J., delivered the opinion of the Court, in which GIERKE, C.J.,
and EFFRON and ERDMANN, JJ., joined. CRAWFORD, J., filed a separate
opinion concurring in part and dissenting in part.

                                    Counsel

For Appellant: Major Andrew S. Williams (argued); Colonel Carlos
L. McDade, Major Antony B. Kolenc, and Major Terry L. McElyea
(on brief).

For Appellee: Major Michelle M. Lindo (argued); Lieutenant
Colonel Robert V. Combs, Lieutenant Colonel Gary F. Spencer, and
Major John C. Johnson (on brief).



Military Judge:   Robert G. Gibson Jr.




            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION
United States vs. Griggs, No. 04-0392/AF


        Judge BAKER delivered the opinion of the Court.

        Appellant was tried before members at a general court-

martial.      In accordance with his plea, he was convicted of

wrongful use of marijuana.         Contrary to his pleas, he was

convicted of two specifications of wrongful use of ecstasy

(MDMA) and two specifications of distribution of ecstasy.                 All

of the offenses were in violation of Article 112a, Uniform Code

of Military Justice (UCMJ), 10 U.S.C. § 912a (2000).              The

adjudged and approved sentence included a bad-conduct discharge,

confinement for 150 days, forfeiture of all pay and allowances

and reduction to the lowest enlisted grade, E-1.              The United

States Air Force Court of Criminal Appeals affirmed the findings

and sentence.       

(A.F. Ct. Crim. App. 2004).          We

granted review of the following issues:

                                        I

        WHETHER THE UNITED STATES AIR FORCE COURT OF CRIMINAL
        APPEALS PREJUDICIALLY ERRED IN HOLDING THAT THE
        MILITARY JUDGE DID NOT ABUSE HIS DISCRETION IN
        APPLYING R.C.M. 1001(b)(5)(D) TO DEFENSE SENTENCING
        EVIDENCE.

                                       II

        WHETHER THE EVIDENCE WAS LEGALLY INSUFFICIENT TO
        SUPPORT APPELLANT’S CONVICTION TO SPECIFICATIONS 1 AND
        2 OF THE CHARGE WHERE THE EVIDENCE DID NOT DEMONSTRATE
        THAT THE SUBSTANCE USED AND DISTRIBUTED WAS ILLEGAL.1


1
    Specification 1:
        In that Senior Airman Sean W. Griggs, United States Air Force . . .
        did, in the Ascension Islands, United Kingdom, on or about 13 August



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United States vs. Griggs, No. 04-0392/AF


         For the reasons that follow, we hold that Rule for Courts-

Martial (R.C.M.) 1001(b)(5)(D) does not apply to defense

sentencing evidence and that the error was prejudicial on

sentencing.       With respect to the findings, we hold that the

evidence is legally sufficient.           For ease of presentation, we

will discuss the issues in reverse order.

                                      FACTS2

         In August 2000, Airman First Class Dilocker, Senior Airman

Gardner and Appellant, also an E-4, were sent on a temporary

duty assignment to the Ascension Islands during which Dilocker

and Gardner shared a room.          One evening, Dilocker found

Appellant and Gardner drinking beer in the room and decided to

join them.       During the course of conversation, Gardner stated

that she had never used any kind of drugs before. Appellant

responded, “Well, if you could do something that wasn’t illegal

and you wouldn’t get in trouble for it, would you do it?”

Gardner replied, “Yeah, possibly.”             Appellant


         2000, wrongfully use 3,4-methylenedioxymethamphetamine (MDMA), a
         Schedule I controlled substance.

    Specification 2:
         In that Senior Airman Sean W. Griggs, United States Air Force . . .
         did, in the Ascension Islands, United Kingdom, on or about 13 August
         2000, wrongfully distribute some amount of 3, 4-
         methylenedioxymethamphetamine (MDMA), a Schedule I controlled
         substance.
2
  As noted, Appellant was convicted of additional specifications of use and
distribution of ecstasy at a different time and location. However, the facts
discussed below relate only to the use and distribution offenses in the
Ascension Islands that are challenged on appeal.



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United States vs. Griggs, No. 04-0392/AF


left the room and returned about ten minutes later with a pill.

According to Gardner, who at the time of trial considered

herself Appellant’s girlfriend, Appellant said, “Okay, this here

is ecstasy, but it is herbal.    It is not illegal.”   Appellant

split the pill in two and they each ingested a half.     Dilocker,

who had also left the room earlier, returned and heard one of

the two say that they had just taken a half pill of ecstasy.       At

trial, Dilocker testified that she never heard either of the

other two refer to the pill as “herbal” ecstasy at any point

during the evening.    After ingesting the pill, Gardner began to

feel a tingling in her fingers and related this to Dilocker.

According to Gardner, the sensation lasted two to three hours.

This misconduct came to light during a subsequent investigation

by Office of Special Investigations.

                      SUFFICIENCY OF THE EVIDENCE

     The specifications at issue alleged use and distribution of

MDMA while Appellant was in the Ascension Islands.     He contends

on appeal that the evidence is legally insufficient to support a

conviction on these two offenses.      According to Appellant, the

evidence not only fails to support a finding that he intended to

use and distribute MDMA, a controlled substance, but it also

fails to prove that what he actually used and distributed was an

illegal substance.    He further contends that the evidence shows




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United States vs. Griggs, No. 04-0392/AF


that the tingling effects to which Gardener testified were

attributable to a placebo effect.

     Our standard of review for challenges to legal sufficiency

is “whether, considering the evidence in the light most

favorable to the prosecution, a reasonable factfinder could have

found all the essential elements beyond a reasonable doubt.”

United States v. Turner, 

, 324-25 (C.M.A. 1987)

(citing Jackson v. Virginia, 

, 319 (1979)).        We draw

every reasonable inference from the record in favor of the

prosecution.   United States v. Rogers, 

, 246

(C.A.A.F. 2000); United States v. Blocker, 

, 284

(C.M.A. 1991).   Appellant’s challenge focuses on the element in

both offenses that alleges that he used and distributed

“methylenedioxymethamphetamine (MDMA), a Schedule I controlled

substance.”

     Gardner testified that Appellant indicated he was giving

her a half-pill of “herbal ecstasy,” and that afterwards she

felt a tingling sensation in her fingers that lasted for several

hours.   Dr. Papa, the forensic toxicologist for the Government,

had been in the courtroom while she was testifying.      He

described in detail about what illegal ecstasy, MDMA, contained

and that it produced a variety of effects in the user depending

on the user’s lack of experience or past experience with the

drug and the purity of the drug.       He also described and


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United States vs. Griggs, No. 04-0392/AF


distinguished “herbal ecstasy,” testifying that it was a legally

marketed concoction of vitamins and herbal products.   Because

herbal ecstasy contained stimulants like caffeine, it might

produce a feeling of increased energy in the user.   However, he

testified that the tingling sensation described by Gardner was

inconsistent with ingesting half a pill of herbal ecstasy, but

was consistent with ingesting MDMA.    He further opined that any

effects from herbal ecstasy would not have lasted the two to

three hours as testified by Gardner.

     During cross-examination of Dr. Papa, defense counsel

attempted to suggest that even assuming Gardner had ingested

MDMA, she would have been a one-time user of the substance.

Therefore, one might have expected to see in her the full range

of effects.   Dr. Papa stated that this might depend on the

concentration of the drug.   He stated that someone ingesting

MDMA could expect to experience either a partial effect or the

full range of effects.   Defense counsel also attempted to have

Dr. Papa support the defense theory that Gardner may have been

experiencing a placebo effect from ingesting herbal ecstasy.

According to Dr. Papa, this theory posited that if a person

given a placebo expected to feel the effects of the actual drug,

this expectation could produce the effects of the actual drug in

the body.   However, he qualified this testimony as follows,

“[I]t depends as to how attuned they are to the effects or what


                                 6
United States vs. Griggs, No. 04-0392/AF


they know about the effects.   I mean if you are given a placebo

and you don’t know anything about the ecstasy effects . . . you

might not have any effect.”    Earlier, during her testimony

relating to what she expected to feel after ingesting the pill,

Gardner had the following exchange with the military judge:

     [MJ]:     Now on Ascension Islands, what did you expect
               to experience from taking the pill that the
               accused gave you?

     [WIT]:    I didn’t expect anything. I’d never even
               really heard of it before. So I didn’t have
               any expectations or anything really.

     [MJ]:     Did you expect to get a good feeling as
               compared to a bad feeling?

     [WIT]:    Well, I didn’t really have any expectation.
               Like I said, I’d never heard of it before.
               I’d never done any drugs. So I really didn’t
               know what to expect.

     Thus, the record indicates that Dr. Papa testified that the

effects Gardner felt were consistent with the use of narcotic

ecstasy.   In addition, Dilocker testified that she heard either

Appellant or Gardner state that they had just taken ecstasy, and

she did not hear a reference to “herbal” ecstasy.    In support of

the defense theory, there was evidence that Appellant mentioned

that he was giving Gardner herbal ecstasy and that Gardner

thought what she was ingesting was herbal ecstasy.   However, the




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United States vs. Griggs, No. 04-0392/AF


members were not obliged to accept the defense theory of the

case.3

        As reflected in the record, the Government’s case was

predicated, in part, on circumstantial evidence regarding the

identity of the illicit drug based on the observations and

testimony of a lay witness.             In United States v. Nicholson, 

, 480 (C.A.A.F. 1998), we held that “mere speculation as

to the identity of a substance by one non-expert witness -- and

nothing more -- does not rise to the level of legally sufficient

evidence for conviction.”            In Nicholson, a conviction for

possession of marijuana was based almost exclusively on

testimony by a non-expert witness that he saw the accused

holding a bag that contained a “brown leafy substance that he

thought might have been marijuana.”                

concluding

that this evidence was insufficient, this Court relied on United

States v. Wright, 

(6th Cir. 1994), in which the

United States Court of Appeals for the Sixth Circuit observed

that circumstantial evidence which could support identification

beyond a reasonable doubt included “‘the physical appearance of

the substance’; evidence that the substance had the expected

drug effect; ‘evidence that the substance was used in the same

manner as the illicit drug’ in question; evidence that

3
    Appellant did not testify in his own behalf.




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United States vs. Griggs, No. 04-0392/AF


transactions involving the substance were for high prices, paid

in cash, and covert; ‘and evidence that the substance was called

by the name of the illegal narcotic’ by those in its presence.”

(quoting 

).                In

Nicholson, because the Government’s proof on the identity of the

substance was based solely on the speculative testimony of one

lay witness, the evidence was legally insufficient on that

element.   

this case the record contains

evidence in addition to the testimony of the lay witness

Dilocker concerning the identity of the drug.          First, Dilocker’s

testimony that Appellant and Gardner referred to the substance

as ecstasy rather than herbal ecstasy is unequivocal as to what

she heard.    Secondly, there was lay testimony by Gardner of the

effects of the drug, accompanied by expert testimony

corroborating those effects.       Thus, this case is distinguishable

from the situation encountered in Nicholson.4

        Based on the evidence presented, we are satisfied that

the members could have reasonably found beyond a reasonable

doubt that what Appellant used and distributed to Gardner was

illegal ecstasy and not herbal ecstasy.




4
  We hasten to add that the list of factors adopted in Nicholson is not
exhaustive. Nor is it required that all the factors be present in a given
case.



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United States vs. Griggs, No. 04-0392/AF


                   DEFENSE SENTENCING EVIDENCE

                           Background

     At a session pursuant to Article 39(a), UCMJ, 10 U.S.C. §

839(a) (2000), prior to sentencing, trial counsel objected to

portions of six defense character letters.   Specifically, trial

counsel argued that language in the proposed sentencing exhibits

amounted to recommendations for retention, which he argued would

confuse the members by misleading them into thinking they “are

making a retention decision versus a decision of a punitive

discharge.”

     The military judge sustained the trial counsel’s objections

to the following underscored passages from the six exhibits as

follows:

     I have no doubt SrA Griggs will continue   to be an
     asset to the mission of the squadron and   Air Force. I
     can honestly say his future is not in my   hands, but I
     ask the panel to have compassion and SrA   Griggs is
     given a second chance to be a productive   member of the
     United States Air Force.

     I would still like to be able to work with SrA Griggs.
     In fact I have two airmen I’d gladly trade just to
     keep him. I feel the Air Force could use more airmen
     like him. Even with the stress of a pending court
     martial he has remained dedicated, motivated, and
     faithful till [sic] the end.

     I would not hesitate to have SrA Griggs working for me
     or with me. I continue to hear, “This is not a one
     mistake Air Force” so I feel SrA Griggs can learn a
     valuable lesson from this experience.

     I believe strongly that everyone deserves a second
     chance to prove him or herself. I have no doubt SrA


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United States vs. Griggs, No. 04-0392/AF


     Griggs will continue to be an asset to the mission of
     the squadron and Air Force. I ask the panel to have
     compassion and SrA Griggs is given a second chance to
     be a productive member of the United States Air Force.

     I am convinced that he has learned from this
     experience and can still be of great potential to the
     United States Air Force . . . We seem to “eat our
     young” sometimes and see the only course of action is
     to toss them out after investing so much time, effort,
     and money.

Emphasis added.

     Although the military judge did not expressly state the

basis for his rulings, we infer from the discussion relating to

trial counsel’s objections, that the military judge based his

ruling on R.C.M. 1001(b)(5)(D).    This is reflected by his

statement to defense counsel to “tell me why the [objectionable

statements] don’t fall squarely within the parameters of R.C.M.

1001(b)(5)(D).” The defense counsel ultimately presented the

exhibits to the members after redacting the offending language.

                              Discussion

     We review a military judge’s decision to exclude evidence

for an abuse of discretion.    United States v. McCollum, 

, 335 (C.A.A.F. 2003).   A ruling based on an erroneous view

of the law constitutes an abuse of discretion.   

stated below, we conclude that the military judge

applied an erroneous view of the law in excluding the relevant

passages from the defense exhibits based on R.C.M.

1001(b)(5)(D).


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United States vs. Griggs, No. 04-0392/AF


     R.C.M 1001 addresses presentencing procedures at a court-

martial.    Subsection (b) is titled “Matter to be presented by

the prosecution.”   In turn, R.C.M. 1001(b)(5) (A) states that

“[t]he trial counsel may present, by testimony . . . evidence in

the form of opinions concerning the accused’s . . . potential

for rehabilitation.”   The witness offering the opinion “must

possess sufficient information and knowledge about the accused

to offer a rationally-based opinion that is helpful to the

sentencing authority.”   R.C.M. 1001(b)(5)(B).   Also, the opinion

“must be based upon relevant information and knowledge possessed

by the witness.”    R.C.M. 1001(b)(5)(C).   Finally, the rule

expressly precludes a witness from offering “an opinion

regarding the appropriateness of a punitive discharge or whether

the accused should be returned to the accused’s unit.”    R.C.M.

1001(b)(5)(D).

     R.C.M. 1001(c) is titled “Matter to be presented by the

defense.”   In turn, R.C.M. 1001(c)(1) states, “The defense . . .

may present matters in extenuation and mitigation regardless

whether the defense offered evidence before findings.”    “Matter

in mitigation of an offense is introduced to lessen the

punishment to be adjudged by the court-martial, or to furnish

grounds for a recommendation of clemency.”     R.C.M. 1001(c)(1)(B)

(emphasis added).   Mitigation evidence includes “evidence of the

reputation or record of the accused in the service for


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United States vs. Griggs, No. 04-0392/AF


efficiency, fidelity, subordination, temperance, courage, or any

other trait that is desirable in a servicemember.”    

whether the prohibition expressed in R.C.M.

1001(b)(5)(D) applies to defense witnesses who wish to provide

so-called “retention evidence,” and if so, whether such evidence

is nonetheless permitted as “matter in mitigation.”

     We begin our analysis with the text of R.C.M. 1001(b), the

subtitle of which refers expressly to “Matter to be presented by

the prosecution.”   Based on its heading, this section would

appear to be limited to witnesses offered by the trial counsel.

Moreover, as a structural matter, R.C.M. 1001 distinguishes this

section from the next, which is titled “Matter to be presented

by the defense.”    This structure suggests intentional placement

and drafting, rather than inadvertent use of a title to cover

material that extends beyond the reach of a dated or ill-placed

title.   However, as with legislative text, the titles and

subtitles of rules are not necessarily dispositive as to the

scope, meaning, and intent of a rule.   See generally United

States v. Banker, 

, 219-21 (C.A.A.F. 2004) (Court

going beyond title of Military Rule of Evidence 412 to ascertain

scope, meaning and intent of rule).   Therefore, we look to the

text of the rule and the manner in which the rule has been

applied as well.




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United States vs. Griggs, No. 04-0392/AF


     Under the general heading of “Matter to be presented by the

prosecution” R.C.M. 1001 (b)(5)(A) and (D) state:

     (5) Evidence of rehabilitative potential . . . .

          (A) In general. The trial counsel may present, by
     testimony or oral deposition in accordance with R.C.M.
     702(g)(1), evidence in the form of opinions concerning the
     accused’s previous performance as a servicemember and
     potential for rehabilitation.

          . . . .

          (D) Scope of opinion. . . . A witness may not offer an
     opinion regarding the appropriateness of a punitive
     discharge or whether the accused should be returned to the
     accused’s unit.

Emphasis added.   Thus, the language of the rule itself follows

the predicate of the heading.   In general, subsection (A) is

addressed to evidence “[t]he trial counsel may present.”

Subsection (D), regarding the scope of opinion, would thus serve

as a limitation on what trial counsel may “in general” present.

     The case law offers support for both the Government’s

position and Appellant’s position.   Defense witness testimony,

including written statements, expressing an opinion that an

accused should be returned to duty have long been viewed in case

law as “classic mitigation evidence.”   United States v. Aurich,

, 97 (C.M.A. 1990)(per curiam) (internal quotation

marks omitted); see also United States v. Vogel, 

,

199, 

, 463 (1967); United States v. Guy, 

, 49-50, 

, 313-14 (1967); United States v.



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United States vs. Griggs, No. 04-0392/AF


Robbins, 

, 477-78, 

, 97-98 (1966).             In

Aurich, two judges of the Court recognized that retention

evidence had historically not been offered as evidence of

rehabilitative potential.      Rather, it was “classic mitigation

evidence” which had “long been relevant in 

, 97.     At the same time, dicta in certain cases

suggest that such evidence is nonetheless precluded as an

opinion that the accused should not be punitively discharged.

See United States v. Ohrt, 

, 304 (C.M.A. 1989);

United States v. Ramos, 

, 396 (C.A.A.F. 1995).

     In Ohrt we considered whether the military judge erred in

allowing the accused’s commander to testify in the Government’s

case in aggravation that the accused possessed no potential for

continued service in the Air 

.     The Court

first observed that such witnesses raise the specter of command

influence.    

Court then held that a witness

testifying on rehabilitative potential under R.C.M 1001(b)(5)5

must possess “sufficient information and knowledge about the

accused -- his character, his performance of duty as a

servicemember, his moral fiber, and his determination to be


5
  At the time, R.C.M. 1001(b)(5) read as follows: “(5) Evidence of
rehabilitative potential. The trial counsel may present, by testimony
. . . evidence, in the form of opinions concerning the accused’s
previous performance as a servicemember and potential for
rehabilitation. On cross-examination, inquiry is allowable into
relevant and specific instances of conduct.”



                                     15
United States vs. Griggs, No. 04-0392/AF


rehabilitated -- to give a ‘rationally based’ opinion.”              

Court concluded, based on the facts of the case, that

the commander’s opinion lacked a proper foundation.             

Court noted:      “a witness -- be he for the prosecution or the

defense -- should not be allowed to express an opinion whether

an accused should be punitively discharged.”            

added).

       In Ramos, the accused presented three military witnesses on

sentencing who knew the accused on a personal and professional

.     Each testified that they were willing

to take the accused back into their units to work for them.               One

of these witnesses was questioned at length by both counsel and

the military judge, revealing that his opinion might have been

based on his sense of loyalty to the accused.            

the witness was excused, the military judge instructed the

members that they should disregard the witness’ testimony that

“he thinks [the accused] can still be a soldier in the Army.”

military judge expressed concern that the

members might confuse the issue of a punitive discharge with the

issue of retention.6       Referencing the military judge’s


6
  The relevant portion of the military judge’s instruction in Ramos was as
follows:

       And one of the dangers that this court and the appellate courts
       are concerned with is that you will view a punitive discharge as
       something along the line, “Well, if he can't be a good -- if we



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United States vs. Griggs, No. 04-0392/AF


instruction, this Court stated “it does not seem entirely

unreasonable that the military judge viewed such testimony as

out of bounds.”    

briefly discussing the

euphemisms used in the past by Government witnesses to suggest

that the members award a punitive discharge -- testimony

condemned in Ohrt -- the Court made the following observation:

     The mirror image [of the Government-witness euphemism]
     might reasonably be that an opinion that an accused
     could “continue to serve and contribute to the United
     States Army” simply is a euphemism for, “I do not
     believe you should give him a punitive discharge.” If
     so, then such testimony would seem to be what the Ohrt
     Court had in mind when it explicitly stated that “a
     witness -- be he for the prosecution or the defense --
     should not be allowed to express an opinion whether an
     accused should be punitively discharged.”

     In light of these precedents, we can appreciate why the

Court of Criminal Appeals found that there was sufficient

confusion in the case law to conclude that the military judge in

this case had not abused his discretion in applying R.C.M.

1001(b)(5)(D) to the defense sentencing evidence.           

.   Indeed, Ohrt and Ramos suggest that R.C.M.

1001(b)(5)(D) applies to a witness “be he for the prosecution or

the defense,” where the testimony implicates the appropriateness


     don’t want him in the service then we will give him a punitive
     discharge.” And that’s not the purpose of it; it’s to be deemed
     by you to be the appropriate punishment for the offenses not to -
     - as a means of eliminating a person from the service.




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United States vs. Griggs, No. 04-0392/AF


of a punitive discharge.   Moreover, Ramos was decided after

R.C.M. 1001 was amended in 1994, suggesting that the language

found in Ramos is purposeful and founded on the present

structure and text of the rule.

       We are now confronted, as the Court was not in Ohrt and

Ramos, with the apparent tension between the prohibition of

R.C.M. 1001(b)(5)(D) against opinions related to whether the

accused should be returned to duty or not and the express

allowance in R.C.M. 1001(c) permitting the defense to present

matters in mitigation.   We conclude that the better view is that

R.C.M. 1001(b)(5)(D) does not apply to defense mitigation

evidence, and specifically does not preclude evidence that a

witness would willingly serve with the accused again.    First,

this view is consistent with the structure of the rule.   The

prohibition is contained in that portion of the rule under the

heading of “Matter to be presented by the prosecution.”   R.C.M.

1001(b).   These sections are clearly demarcated.   As

importantly, the text of the rule is addressed to evidence

presented by trial counsel.   If the limitation in subsection (D)

is indeed applicable to the defense, the title and text of the

rule can be easily amended to reflect such an intent.    Thus far,

no such amendment has occurred, notwithstanding the plain text

of the sections and the apparent confusion suggested in the case

law.


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United States vs. Griggs, No. 04-0392/AF


     Second, so-called “retention evidence” is classic matter in

mitigation, which is expressly permitted to be presented by the

defense.   As noted in Aurich, “the fact that a member of an

armed force has sufficient trust and confidence in another

member is often a powerful endorsement of the character of his

fellow 

.     Moreover, though “[h]aving

rehabilitative potential is a mitigating factor.     Lacking

rehabilitative potential is not an aggravating factor.”     

     Finally, with respect to the legal policy behind the rule,

there is a distinction between commanders or command

representatives expressing their views that they do not want the

accused returned to duty and defense witnesses expressing

contrary views.    Our case law in this area deals mostly with

Government witnesses in the sentencing phase testifying as to

either their unwillingness to have the accused returned to duty,

or their otherwise unfavorable view toward the accused.     The

chief concerns underlying these cases are “the need to have ‘a

rational basis for’ an opinion concerning rehabilitation and the

importance of avoiding command influence in the sentencing

process. . . .”    United States v. Pompey, 

, 270

(C.M.A. 1991)(citing 

).      These concerns

coincide with the UCMJ’s overarching concern regarding undue




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United States vs. Griggs, No. 04-0392/AF


command influence.7     

does not

bear the same concerns.

     We reach this conclusion with caution.          As recognized in

Ramos, there can be a thin line between an opinion that an

accused should be returned to duty and the expression of an

opinion regarding the appropriateness of a punitive discharge.

Obviously, an accused cannot return to serve in his unit if he

receives a punitive 

.      But an explicit

declaration that an accused should not receive a punitive

discharge or that any such discharge should be of a certain

severity is disallowed for the defense not because of R.C.M.

1001(b)(5)(D), but because such evidence invades the province of

the members to decide alone on punishment.          Ohrt, 28 M.J at 305

(“The question of appropriateness of punishment is one which

must be decided by the court-martial; it cannot be usurped by a

witness.”).    However, as for the kind of retention evidence at

issue in this case, any concerns raised can be addressed with a

tailored instruction focusing on the distinction between a

punitive discharge, which is for the members to decide, and the

willingness of a servicemember to serve with an accused again,

7
  For instance, Professor Edmund M. Morgan Jr., chairman of the drafting
committee, explained in his statement during the House Armed Services
Committee hearing that, “We have tried to prevent courts-martial from being
an instrumentality and agency to express the will of the commander.” Uniform
Code of Military Justice: Hearings on HR 2498 Before a Subcommittee on Armed




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United States vs. Griggs, No. 04-0392/AF


which may mitigate the range of punishments available at courts-

martial.

      We are also cognizant of Government counsel’s concern,

expressed during oral argument, that if the defense is allowed

to admit such testimony in mitigation, the Government is without

recourse.    We disagree.    Consistent with the historical concerns

regarding command influence, the Government is free to rebut

such assertions.     As stated in Aurich, “if an accused ‘opens the

door’ by bringing witnesses before the court who testify that

they want him or her back in the unit, the Government is

permitted to prove that that is not a consensus view of the

.

      In conclusion, we hold that R.C.M. 1001(b)(5)(D) does not

apply to defense evidence offered in mitigation under R.C.M.

1001(c).    However, the defense presentation is not boundless.

Like other opinion testimony, to establish relevance on

sentencing, the witness must have a proper foundation for the

opinion or view expressed.       Military judges shall exercise their

discretion in determining whether such a foundation is laid, and

whether the door to rebuttal swings open.          

, 37 C.M.R. at 463; 

, 37 C.M.R. at

98.


Services, 81st Cong. 606 (1949), reprinted in Index and Legislative History,
Uniform Code of Military Justice (1950)(not separately paginated).



                                     21
United States vs. Griggs, No. 04-0392/AF



                         Prejudice Analysis

     The question now becomes whether Appellant was prejudiced

by this error.   We test the erroneous admission or exclusion of

evidence during the sentencing portion of a court-martial to

determine if the error substantially influenced the adjudged

sentence.   See United States v. Boyd, 

, 221 (C.A.A.F.

2001) (citing Kotteakos v. United States, 

, 765

(1946)).    If so, then the result is material prejudice to

Appellant’s substantial rights.    Article 59(a), UCMJ, 10 U.S.C.

§ 859(a) (2000).

     On one hand, evidence that a servicemember can “continue to

be an asset” to his unit and service or that he can still be of

“great potential” to his service is valuable mitigation matter,

even “unusual” evidence, as stated by Appellant counsel at oral

argument.   Moreover, Appellant’s case was heard by members who,

in the end, awarded Appellant less punishment than the

Government asked for, suggesting that they were receptive to

Appellant’s mitigation case.

     On the other hand, even as redacted, the exhibits contained

favorable language to Appellant.       For example, three exhibits

stated the authors’ view “that everyone deserved a second

chance.”    The other three letters stated in unredacted text the

authors’ continued desire to work with Appellant.      The remaining



                                  22
United States vs. Griggs, No. 04-0392/AF


portions of the six exhibits were laudatory and were a part of

ten such commendatory letters from a variety of civilian and

military personnel praising the value of Appellant’s service.

In addition, Appellant’s personnel file contained a number of

unfavorable performance reports and adverse counseling entries.

The members were also aware that during the pendency of

Appellant’s trial, he had received nonjudicial punishment for

violating a no-contact order involving a witness in the case.

     Although this is a close case on prejudice, we believe the

balance tips in favor of Appellant in light of the qualitative

nature of the excluded statements and the potential impact they

may have had upon the members.   Evidence from fellow

servicemembers who would have stated that Appellant should be

retained because of his potential to the Air Force may have had

a significant impact on the members, given the value that

military members place on respect from peers and superiors.

Significantly, one technical sergeant, a coworker and

supervisor, who was the Group’s Noncommissioned Officer of the

Year in 2000, would have expressed the following view:    “I have

two airmen I’d gladly trade just to keep him.   I feel the Air

Force could use more airmen like him.”

     As a result, we conclude that the excluded evidence may

have substantially influenced the adjudged sentence in

Appellant’s case.


                                 23
United States vs. Griggs, No. 04-0392/AF


                             DECISION

     The decision of the United States Air Force Court of

Criminal Appeals is affirmed as to the findings and reversed as

to the sentence.   The record of trial is returned to the Judge

Advocate General of the Air Force.   A rehearing on sentence may

be ordered.




                                24
United States v. Griggs, No. 04-0392/AF


     CRAWFORD, Judge (concurring in part and dissenting in

part):

     I concur in the majority’s conclusion that the evidence at

trial was legally sufficient to prove beyond a reasonable doubt

that the substance used and distributed by Appellant was

illegal.   On the question of evidentiary error, however, I

cannot agree that the military judge abused his discretion by

excluding certain phrases from documents offered by the defense

in its sentencing case.   Nor can I conclude, after considering

all the sentencing evidence and weighing Appellant’s crimes

against his sentence, that if there were any error that it was

prejudicial.

                               FACTS

     Two critical factual aspects of this case are ignored by

the majority:   the concession of Appellant’s trial defense

counsel and the rote nature of both the excluded language and

the letters from which that language was redacted.

     The majority correctly quotes the military judge’s query

regarding the applicability of Rule for Courts-Martial (R.C.M.)

1001(b)(5)(D) during a session pursuant to Article 39(a),

Uniform Code of Military Justice, 10 U.S.C. § 839(a), at which

the admissibility of defense sentencing exhibits was discussed,

but omits the defense counsel’s response, which I include below:
United States v. Griggs, No. 04-0392/AF


     MJ: Defense Counsel, tell me why the language of the
     second and third sentences of paragraph 4 of Defense
     Exhibit D don’t fall squarely within the parameters of
     RCM 1001(b)(5)(D). I can quote it for you if you
     like.

     DC: No sir, I am familiar. I would have to agree
     with the judge’s opinion on that one, sir.

     The majority correctly notes the favorable effect that

testimonials from peers and superiors can and should have on the

trial court’s determination of an appropriate sentence.   A

cursory examination of Defense Exhibits B, C, D, E, F, and H,

however, reveals their “form letter” nature, and as the majority

notes, the redacted language is also notably similar.

                   R.C.M. 1001(b) AND 1001(c)

     I agree with the majority that Rule for Courts-Martial

1001(b)(5)(D) applies only to evidence offered by the

prosecution in its sentencing1 case, and not to defense evidence.

I do not share the majority’s reliance on dicta in United States

v. Ohrt, 

(C.M.A. 1989), and United States v. Ramos,

(C.A.A.F. 1995), to support the lower court’s

confusion between: (1) a recommendation/opinion in favor of or

opposed to a punitive discharge; (2) a recommendation/opinion

1
  Although occasionally and colloquially referred to as the
“aggravation” case, I decline to use that term, because only
R.C.M. 1001(b)(4) addresses aggravation evidence. R.C.M.
1001(b)(1)-(3) address evidence that shall or may be presented
by the trial counsel and R.C.M. 1001(b)(5) covers evidence of
rehabilitative potential, which may be mitigating, but is never
aggravating. United States v. Aurich, 

, 97 (C.M.A.
1990)(per curiam).

                                2
United States v. Griggs, No. 04-0392/AF


for retention; (3) a recommendation/opinion that an accused be

separated; and (4) the scope and effect of R.C.M. 1001(b) and

1001(c).

       Nothing in either Ramos or Ohrt applies R.C.M. 1001(b) to

evidence offered by the defense during its sentencing case, nor

do those opinions even suggest such an application.    What those

opinions do suggest, in dicta, is that defense witnesses are not

permitted to offer a recommendation pertaining to a punitive

discharge.    This “sauce for the goose”2 tangent is posited

without reference to any rule of evidence or procedure, but

appears to be grounded on the proposition that “such an opinion

invaded the province of the court-martial. . . .”3

       If we accept Ohrt’s4 dicta, arguendo, we could summarize the

rules rather easily: (1) the only discharge a court-martial can

impose is a punitive discharge, which may only be imposed as a

punishment included in the sentence of a court-martial; (2) no

witness at court-martial may recommend for or against a punitive

discharge; (3) the opinion of a witness at court-martial to the

effect that an accused should be discharged or separated is

prohibited as tantamount to a recommendation for punitive

2
  “What’s sauce for the goose is sauce for the gander.” The New
Dictionary of Cultural Literacy 57 (3d ed. 2002).
3
  United States v. Cherry, 

, 5 (C.M.A. 1990)(citing

).

.

                                  3
United States v. Griggs, No. 04-0392/AF


discharge; and (4) the opinion of a witness at court-martial to

the effect that an accused should be retained in the unit or in

his service may or may not be a recommendation against punitive

discharge.

        It is this latter category of opinions that I now address.

While R.C.M. 1001(b)(5)(D) expressly prohibits opinions by

prosecution witnesses “regarding the appropriateness of a

punitive discharge or whether the accused should be returned to

the accused’s unit,” R.C.M. 1001(c) contains no such

prohibition.    This is entirely consistent with the drafters’

intention that prosecution evidence fit neatly into one or more

of the “pigeon holes” created by R.C.M. 1001(b)(1)-(5), and that

defense evidence need only meet the modest limitations of R.C.M.

1001(c).5    Thus, while dicta in our case law prohibit a defense

witness from recommending against punitive discharge, we have

also long recognized the importance and admissibility of a

recommendation that the accused be returned to duty or to his

unit.    

.   This is not to say that the


5
  “Historically the sentencing phase of the court-martial has
been the defense counsel’s show. The 1969 Manual for Courts-
Martial intentionally limited the trial counsel's role to the
presentation of narrowly specified matters in aggravation while
the defense counsel had virtually unfettered opportunity to
present matters in extenuation and mitigation.” Major Larry
Gaydos, A Prosecutorial Guide to Court-Martial Sentencing, 114
Mil. L. Rev. 1 (1986) (footnotes omitted).




                                   4
United States v. Griggs, No. 04-0392/AF


defense presentation is unfettered.   The drafters wisely

included R.C.M. 1001(d) as a check on the expansive boundaries

for defense evidence.   If the defense uses its broader rule to

raise matters that the Government was prohibited from raising by

its narrower rule, the Government may, within the discretion of

the military judge, present evidence to rebut those matters.

     My point is that R.C.M. 1001(b) and 1001(c) are not

congruent, but they are not necessarily in conflict.    As in the

case of any other evidence, recommendations for retention made

by defense witnesses, when challenged at trial, must be

evaluated in context by the military judge, who must then

determine their admissibility, subject to review on appeal for

abuse of discretion.

           DEFENSE CONCESSION AND ABUSE OF DISCRETION

     Were this a de novo review, I would apply the plain

language of R.C.M. 1001(b)(5) and 1001(c) in the context of this

Court’s applicable holdings and determine whether the military

judge erred in excluding portions of the defense exhibits.   This

is not a de novo review, however, and we are examining the

military judge’s ruling for an abuse of discretion.    Like the

court below,6 I am not prepared to abjure the significance of

defense counsel’s concession to the military judge that either:


6
  United States v. Griggs, 

, 715 (A.F. Ct. Crim. App.
2004).

                                 5
United States v. Griggs, No. 04-0392/AF


(1) the defense was offering these exhibits for admission into

evidence under R.C.M. 1001(b)(5); or (2) the language of R.C.M.

1001(b)(5)(D) could properly be applied to exclude defense

evidence.   If the defense, as the proponent of the evidence,

conceded that the offered evidence was subject to a particular

rule of evidence or procedure, that concession should weigh

heavily when Appellant later complains that the military judge,

in accepting that concession, abused his discretion.

     Similarly, although the majority correctly notes that the

military judge based his ruling on R.C.M. 1001(b)(5)(D), Griggs,

61 M.J. ___, ___ (11), the majority also appears to assume both

that the defense was offering the letters under R.C.M.

1001(c)(1)(B) and that the rules of evidence had been relaxed as

provided in R.C.M. 1001(c)(3) to permit admission of these

unauthenticated and potentially unreliable letters.7

     While I do not share the majority’s assumptions, I find it

unnecessary to descend into the maelstrom, as I am willing, for

purposes of further analysis, to assume without deciding that

the military judge abused his discretion by excluding unredacted

versions of Defense Exhibits B, C, D, E, F, and H.

7
  A sub silentio relaxation carries with it the unarticulated
danger that the rules could be relaxed to the same extent during
prosecution rebuttal. R.C.M. 1001(d). Particularly in light of
the nature of evidence here considered and the potential for
rebuttal, military judges and counsel would be wise to ensure
that the record reflects whether the rules of evidence have been
relaxed.

                                 6
United States v. Griggs, No. 04-0392/AF


                              PREJUDICE

       Rather than relying on United States v. Boyd, 

(C.A.A.F. 2001), which examined sentencing instructions for

prejudice and addressed no evidentiary issues, I would apply

this Court’s logic from United States v. Saferite, 

,

274-75 (C.A.A.F. 2004), in which we measured the effect of an

evidentiary error in the sentencing case by assessing: (1) the

probative value and weight of the evidence (including the

“content and tone” of testimonial evidence); (2) the importance

of the evidence in light of other sentencing considerations,

including the military judge’s instructions; (3) the danger of

unfair prejudice resulting from the evidentiary ruling; and (4)

the sentence actually imposed, compared to the maximum and to

the sentence the trial counsel argued for.    In the context of

these considerations, we then determined whether the sentence

had been “substantially swayed by the error.”8

       That said, I must take issue with the majority’s exclusion

of two key points in reaching their determination of prejudice:

the form of the letters and the crimes themselves.

       We simply cannot reach a determination as to prejudice

without considering the effect that the form of the letters and

the redacted language may have had on the weight given the


8
    Kotteakos v. United States, 

, 765 (1946).



                                  7
United States v. Griggs, No. 04-0392/AF


letters by a panel the military judge described as “a group of

five really intelligent members.”9    Laid side by side, as they

may well have been in the deliberation room, the letters in

question are far too similar for the “five really intelligent

members” to have failed to recognize them as largely the product

of someone other than the signatories.    Notwithstanding what may

have been heartfelt words, the letters are obviously so similar

that their weight would doubtless have been diminished by their

glaringly mass-produced character.    Failing to consider this

deficiency, the majority assumes that the addition of further,

obviously similar language would have had a favorable effect.

     Appellant was convicted of using marijuana, two

specifications of using ecstasy, and two specifications of

distributing ecstasy.   He faced a dishonorable discharge and a

maximum period of confinement of forty-two years.    The trial

counsel argued for twelve months of confinement.    Appellant

received a bad-conduct discharge and confinement for 150 days.

     Finding this to be a “close case,” the majority concludes

that the absence of the redacted words from Defense Exhibits B,

C, D, E, F, and H “substantially influenced” the sentence.

Griggs, 61 M.J. at ___ (23-24).


9
  Responding to the Government argument that this evidence might
confuse the members, the military judge said, “You are not going
to confuse these court members. This is a group of five really
intelligent members. They are not at all confused.”

                                  8
United States v. Griggs, No. 04-0392/AF


      I find this not to be a close case.    Convicted of five drug

offenses, Appellant received little more than one percent of the

maximum permissible confinement and about forty percent of what

the trial counsel argued for.    He did not receive a dishonorable

discharge.   It is beyond the common experience of mankind to

expect that the “five really intelligent members” would have

been “substantially influenced” by the addition of the excluded

language to adjudge an even more lenient sentence.

      Finally, I view as unnecessary and ill-advised the

majority’s elevation of Ohrt’s dicta that opinions regarding

particular punishments should be disallowed because “[t]he

question of appropriateness of punishment is one which must be

decided by the court-martial; it cannot be usurped by a

.   I am not at all prepared to say that

a military judge may properly exclude, for example: (1) the

testimony of an accused’s mother that her son or daughter,

facing life without parole, should not be “put away”

irrevocably; or (2) the testimony of a young mother that the

court should not take away the sole means of support for her and

her children.   Until we are squarely faced with those questions,

and others like them, we would be wise to confine our holding to

the issues at hand and leave the dicta of Ohrt right where it

is.




                                   9