United States v. Key , 65 M.J. 172 ( 2007 )

UNITED STATES, Appellee
v.
Carl L. KEY, Airman First Class
U.S. Air Force, Appellant
No. 04-0216
Crim. App. No. 34965
United States Court of Appeals for the Armed Forces
Argued April 30, 2007
Decided June 22, 2007
STUCKY, J., delivered the opinion of the Court, in which BAKER
and ERDMANN, JJ., joined. RYAN, J., filed a separate opinion
concurring in part and dissenting in part and in the result, in
which EFFRON, C.J., joined.
Counsel
For Appellant: Captain Griffin S. Dunham (argued); Major John
N. Page III (on brief); Lieutenant Colonel Mark R. Strickland.
For Appellee: Captain Jefferson E. McBride (argued); Colonel
Gerald R. Bruce and Major Matthew S. Ward (on brief).
Military Judges: Rodger A. Drew Jr. and Jennifer A. Whittier
(DuBay hearing)
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION
United States v. Key, No. 04-0216/AF
Judge STUCKY delivered the opinion of the Court.
Officer and enlisted members convicted Appellant at a
general court-martial of the wrongful use of ecstasy, in
violation of Article 112a, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 912a (2000), and sentenced him to a bad-
conduct discharge and reduction to the lowest enlisted grade.
Subsequently, Appellant’s trial defense counsel, Major Martin,
learned that the Air Force Office of Special Investigations
(AFOSI) paid an informant, Staff Sergeant (SSgt) L, after she
testified in four courts-martial, including Appellant’s.
Appellant requested post-trial discovery. On March 10, 2005,
this Court returned Appellant’s case to the Judge Advocate
General of the Air Force for a post-trial hearing to determine
whether Appellant was entitled to a new trial. United States v.
Key, 61 M.J. 52 (C.A.A.F. 2005). After the post-trial hearing,
the United States Air Force Court of Criminal Appeals affirmed
the findings and sentence. United States v. Key, No. ACM 34965
(f rev), 2006 CCA LEXIS 182, 2006 WL 2284811 (A.F. Ct. Crim.
App. Jul. 12, 2006) (unpublished). We granted review to
consider whether the military judge erred at the post-trial
hearing by preventing Appellant’s trial defense counsel from
testifying. We hold that the military judge erred, but the
error was not prejudicial. Article 59(a), UCMJ, 10 U.S.C. §
859(a) (2000).
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I.
In April 2001, as part of a unit drug inspection, Appellant
provided a urine specimen for testing. Testing of the specimen
confirmed Appellant had ingested 3,4-methylenedioxymethamphetamine,
a Schedule I controlled substance commonly known as ecstasy.
Appellant was charged with the wrongful use of that controlled
substance. Article 112a, UCMJ.
From his opening statement and continuing throughout the
trial, Major Martin challenged the reliability of the specimen
collection and drug testing process, and raised the defense of
innocent ingestion. Appellant’s girlfriend eventually testified
that, after consuming a large quantity of whiskey, Appellant
became ill and complained of a headache. She said that she
obtained what she thought was aspirin from a bar patron and gave
it to Appellant.
To counter the unknowing ingestion defense, the Government
called Staff Sergeant (SSgt) L, who was working as an undercover
informant for the AFOSI. She was one of three witnesses who
testified to Appellant’s nervous and agitated demeanor at the
specimen collection site. SSgt L also testified that,
approximately three weeks before the unit was tested for drugs,
she had a telephone conversation with Appellant in which he
admitted having ecstasy and invited her to meet him at another
airman’s apartment to partake of the drug. She decided not to
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meet with Appellant after her AFOSI handler told her they would
not be able to support her at that time.
Major Martin vigorously cross-examined SSgt L, including
asking about any compensation she received from AFOSI:
Q: Did [AF]OSI ever just give you money so that
you could go out and club hop?
A: Well, when you say give me money, you sound
like as if they were paying me. They gave me money
because I had to pay a babysitter, and also if I had
to buy drinks for whoever was around, yes, I did get
money for those things.
Q: Okay, on more than one occasion?
A: Yes, to assist with the investigation.
Major Martin also submitted documents indicating that AFOSI paid
SSgt L a total of $206.25. Appellant was sentenced on October
24, 2001. On April 2, 2002, well after SSgt L had completed her
testimony in four courts-martial (including this one), AFOSI
paid her $250.
Several months after the trial ended, Major Martin, who was
then assigned as an attorney in a base legal office, learned
that the AFOSI had paid SSgt L money, in addition to
reimbursement expenses, for her work as a confidential
informant. On direct appeal to the Air Force court, Appellant
asked for post-trial discovery “to determine if SSgt [L] was
paid for her testimony at . . . trial.” After analyzing the
issue under the standards we established in United States v.
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Campbell, 57 M.J. 134, 138 (C.A.A.F. 2002), the court denied the
request for post-trial discovery and affirmed the findings and
sentence. United States v. Key, No. ACM 34965, 2003 CCA LEXIS
260, 2003 WL 22495833 (A.F. Ct. Crim. App. Oct. 29, 2003)
(unpublished). Appellant appealed.
On November 2, 2004, this Court ordered the Government to
produce vouchers of all payments made by AFOSI to SSgt L,
pertinent regulations governing such payments, and affidavits
from the responsible AFOSI agent and SSgt L. United States v.
Key, 60 M.J. 387, 387-88 (C.A.A.F. 2004). SSgt L’s December 16,
2004, affidavit reads, in pertinent part, as follows:
2. At the beginning of the cases [AF]OSI asked me if
I wanted to work for them and that they would pay me
to do so. I said no. Somehow, getting money for
doing the right thing didn’t feel right; it made me
uncomfortable. As the case went along, I was given
money on at least 3 different occasions. The first
time I was given cash was to buy drinks at the bar and
to get into the club; I ended up using the money for
my first drug buy that was then immediately turned
into the OSI. The second time I was given money to
buy drugs, it was $80. The last time I was given
money, it was to buy a large amount of drugs. That
was when everyone was arrested.
3. During the time that I was working for [AF]OSI, I
was informed by [AF]OSI, that I could get reimbursed
for baby-sitting fees; I did not file for anything.
It felt very uncomfortable to do so. When everyone
was punished, I did receive a surprise from [AF]OSI,
they gave me some money, and I signed for it. I
wasn’t sure why, I was told it was for a job well
done.
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On March 10, 2005, this Court concluded that “it appears
that post-trial discovery would have produced information
relevant to whether Appellant should be granted a new trial and
that additional discovery is necessary.” United States v. Key,
61 M.J. 52, 52 (C.A.A.F. 2005). We returned the case to the Air
Force Judge Advocate General for a post-trial hearing to
determine whether Appellant was entitled to a new trial. Id.SSgt L testified at the post-trial hearing that an AFOSI
agent, who had since retired, offered her money when she started
to work for AFOSI. She reiterated her trial testimony that,
during the investigation, she received small sums of money for
gas, babysitting fees, and to pay for drinks. She asserted
that, during a pretrial interview, she had advised the trial
defense counsel about the monies she had received from the
AFOSI. She claimed she had not mentioned the offer of a
monetary reward because she had turned it down, did not think it
was relevant at the time, and the defense counsel had asked
about monetary payments, not offers. One of the two AFOSI
agents who initially met with SSgt L testified that they did not
offer SSgt L any reward money at the initial meeting.
At the hearing, Appellant’s counsel tried to call Major
Martin to the stand to testify.1 When questioned by the military
1
Appellant was represented by different counsel at the post-
trial hearing.
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judge who presided over the post-trial hearing as to the
relevance of Major Martin’s testimony, Appellant’s counsel
claimed it was relevant because the purpose of the hearing was
to determine SSgt L’s credibility. The military judge refused
to permit Major Martin to testify.
Before the Air Force court, Appellant claimed the military
judge erred at the hearing and moved to submit an affidavit from
Major Martin specifying what his testimony would have been had
he been granted an opportunity to present it. Major Martin’s
affidavit reads, in pertinent part, as follows:
While I cannot recall exactly how I phrased the
questions, or if I used the term “offer” or “offered”
in the phrasing, I am certain that I thoroughly
covered the issue of compensation with [SSgt L] during
the interview. Although I can not recall the wording
of the questions I posed on this issue, my questions
were designed such that responsive answers would have
elicited from [SSgt L] that the [AF]OSI had offered to
pay her. I was very sensitive to determining whether
and to what extent the [AF]OSI might be compensating
[SSgt L] after considering the Government Counsel’s
ambiguous verbal answer on the same point.
The Air Force court granted Appellant’s motion to admit the
affidavit. Upon considering the affidavit, the Air Force court
viewed the exclusion of Major Martin’s testimony as moot.
The Air Force court then applied Rule for Courts-Martial
(R.C.M.) 1210(f) to determine whether Appellant was entitled to
a new trial. The court concluded that SSgt L was aware of the
possibility of receiving an incentive payment prior to engaging
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in informant activities and before testifying at Appellant’s
trial, that Major Martin exercised due diligence in attempting
to seek this information, and that the information was relevant
to Appellant’s defense at trial to impeach SSgt L by
establishing a possible financial motive for her to testify
against Appellant. Nevertheless, the court held that:
In view of the overall solid evidence concerning
the urinalysis testing, the demeanor evidence from
witnesses other than SSgt L, and the relatively
minimal impact the newly discovered evidence would
have had in impeaching SSgt L’s testimony concerning
the telephone conversations involving the appellant,
the newly discovered evidence fails to meet the
criteria set forth in R.C.M. 1210(f) and the precedent
of our superior court. We therefore conclude that it
is not probable, in light of all other pertinent
evidence, that the newly discovered evidence would
have produced a substantially more favorable result
for the appellant. The appellant is not entitled to a
new trial.
Key, 2006 CCA LEXIS 182, at *15-*16, 2006 WL 2284811, at *5.
II.
The granted issue is whether the military judge erred by
not allowing Major Martin to testify at the post-trial hearing.
Although the Air Force court did not explicitly so hold, it
granted Appellant’s motion to submit Major Martin’s affidavit
and considered it in determining whether Appellant was entitled
to a new trial.
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III.
The post-trial hearing was ordered so that the military
judge could determine whether Appellant was entitled to a new
trial. In this case, that necessarily included a determination
as to whether SSgt L withheld relevant information from the
defense that affected the outcome of Appellant’s trial. The
defense claimed that SSgt L purposely withheld information that
AFOSI paid her for her testimony. In her findings of fact, the
military judge found that the testimony as to when SSgt L was
first offered a reward was inconsistent, but basically
irrelevant because SSgt L did not expect payment and was not
paid until after all four trials: “Based on the lack of
relevance of the proffered purpose for Maj Martin’s testimony to
the factual issues at the hearing, the likelihood of confusion,
and the concerns that would be raised by the trial defense
counsel testifying, the court denied the defense request to call
Maj Martin.”
Major Martin’s testimony as to what transpired during that
interview was relevant to a determination of SSgt L’s
credibility and whether she purposely withheld impeachment
evidence from the defense. The military judge failed to explain
why, or to whom, such testimony would be confusing -- that
testimony was supposed to assist the military judge and the
appellate courts in determining whether Appellant was entitled
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to a new trial. The military judge’s apparent concern for the
attorney-client privilege was misplaced. She failed to explain
how Major Martin’s pretrial interview of SSgt L involved matters
protected by the attorney-client privilege and, to the limited
extent necessary for resolution of this issue, whether Appellant
would have waived the privilege, if necessary.
We hold that the military judge erred by refusing to permit
Major Martin to testify at the post-trial hearing. By
considering only SSgt L’s testimony concerning the pretrial
interview, the military judge unduly restricted the ambit of the
post-trial hearing.
IV.
Having found error, we must determine whether the error was
prejudicial. Article 59(a), UCMJ. Accepting Major Martin’s
affidavit at face value does not significantly impeach SSgt L’s
testimony. It is not at all clear that Major Martin would have
testified that he specifically asked SSgt L if the AFOSI had
offered to pay her, rather than whether or not she was being
paid. The only evidence that SSgt L was offered a financial
incentive before she started to work as an informant comes from
SSgt L’s own testimony and affidavit. She testified that she
turned the offer down and was surprised when AFOSI presented her
with an award after she had testified in four trials. There is
no evidence to contradict her testimony on this matter. That
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she had knowledge, without more, of the eventual possibility of
being paid for her work as an informant had limited impeachment
value, especially when it is not clear from his affidavit that
Major Martin’s questions were specific enough to elicit that she
had.
In light of all the other pertinent evidence, (including
the testimony of other witnesses as to Appellant’s demeanor at
the collection site and the urinalysis evidence itself), we
conclude the military judge’s error in refusing to permit Major
Martin to testify at the post-trial hearing was harmless -- it
did not substantially influence the outcome of the case. See
United States v. Clark, 62 M.J. 195, 200 (C.A.A.F. 2005).
V.
The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
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United States v. Key, 04-0216/AF
RYAN, Judge, with whom EFFRON, Chief Judge, joins (concurring in
part, and dissenting in part and in the result):
This Court ordered a post-trial hearing in accordance with
United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967), to
develop a factual record for use in determining whether
Appellant was entitled to a new trial based on newly discovered
evidence. United States v. Key, 61 M.J. 52 (C.A.A.F. 2005).
Appellant claimed that the evidence would show that a key
Government witness, Staff Sergeant (SSgt) L, received post-trial
incentive payments for her duties as an informant. The DuBay
hearing judge acknowledged in her findings of fact that the
purpose of the hearing was “to determine the circumstances of a
post-trial award/incentive payment to determine whether the
appellant should receive a new trial.”
To succeed on a motion for new trial, a defendant must
show, inter alia, that there is new evidence that was neither
known, nor capable of being known, by the defense at the time of
trial. Rule for Courts-Martial (R.C.M.) 1210(f)(2)(B).
Appellant claims that he could not have known about the
incentive payments because SSgt L purposely withheld information
from trial defense counsel. Because of this allegation, the
testimony of both trial defense counsel and SSgt L should have
been pivotal to the hearing. Yet the DuBay hearing judge
neither permitted nor considered trial defense counsel’s
United States v. Key, 04-0216/AF
testimony, which would have contradicted the testimony of SSgt
L.
I concur in that part of the majority opinion that
concludes the DuBay hearing judge erred by refusing to permit
Major (Maj) Martin, the trial defense counsel, to testify at the
post-trial hearing. But I respectfully dissent from the
majority’s resolution of the case because I would remand the
case with orders for a new DuBay hearing. Appellant received
neither the DuBay hearing that this Court ordered, nor full and
proper consideration of whether he is entitled to a new trial
under the standard set forth in R.C.M. 1210(f).
The DuBay hearing findings of fact are problematic because
they rest upon the unquestioned credibility and unrebutted
testimony of SSgt L. The lower court, in turn, erred by: (1)
resolving factual conflicts between SSgt L’s testimony and
affidavit and the affidavit that it accepted from Maj Martin;
and (2) relying on the DuBay hearing judge’s findings of fact
regarding SSgt L’s credibility. See United States v. Ginn, 47
M.J. 236, 243 (C.A.A.F. 1997) (“Article 66(c) does not authorize
a Court of Criminal Appeals to decide disputed questions of fact
pertaining to a post-trial claim, solely or in part on the basis
of conflicting affidavits submitted by the parties.”); see also
United States v. Murphy, 50 M.J. 4, 11 (C.A.A.F. 1998)
(rejecting a judgment of credibility based on “the questionable
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practice of resolving pure disputes of material fact by mere
affidavits”). In light of these procedural errors, in my view
the lower court abused its discretion in reaching the ultimate
issue of whether Appellant was entitled to a new trial.
Additionally, it is not at all clear to me that the newly
discovered evidence could not “probably produce a substantially
more favorable result for the accused.” R.C.M. 1210(f)(2)(C).
While the lower court marshals other evidence of Appellant’s
guilt, much of it revolves around the urinalysis. But, in this
case, the issue was not whether metabolites could be found in
Appellant’s urine, but how they got there. Appellant’s defense
was innocent ingestion, and evidence in support of that defense
was presented. The significance of SSgt L’s rebuttal testimony
about Appellant’s alleged phone call regarding drugs, and
putative phone message about drugs, cannot be discounted. Nor
can one separate any motive SSgt L might have had to lie from
its impact on her credibility.
Operating on incomplete information, the DuBay hearing
judge made specific findings that SSgt L was credible and that
any inconsistencies in her testimony, or failures to be
forthcoming to the defense, were not motivated by calumny. The
lower court relied on SSgt L’s affidavit and her DuBay
testimony. In doing so, the lower court further assumed that
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the DuBay hearing judge’s finding of fact regarding the genesis
of any inconsistencies in SSgt L’s testimony was correct.
On this record, I cannot subscribe to the lower court’s
assertion that the probative value of evidence “is diminished by
virtue of [SSgt L’s] likely testimony that she refused the
initial offer of an incentive payment and that she was ‘shocked’
when the agents provided her additional cash at the termination
meeting.” United States v. Key, No. ACM 34965, 2006 CCA LEXIS
182, at *15, 2006 WL 2284811, at *5 (A.F. Ct. Crim. App. July
12, 2006) (unpublished). Appellant asserts that SSgt L did not
forthrightly respond to trial defense counsel’s questions
regarding incentive payments. The probative value of this
information is diminished only if one accepts that SSgt L is
credible. That there is an incomplete factual record on that
very issue is obvious.
Given this vacuum, I am not prepared to say that evidence
that an informant was offered payment before trial, purportedly
rejected it, and then, paradoxically, accepted it after trial,
could not cast doubt upon her credibility, let alone her entire
testimony. The members, if aware of SSgt L’s failure to
disclose the possibility of incentive payments could have
concluded that: (1) she had a financial motive to testify
against Appellant in return for payments after his successful
conviction; and (2) she misled the defense counsel and could
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still be misleading them. See, e.g., Banks v. Dretke, 540 U.S.
668, 698-703 (2004) (concluding that suppression of evidence of
the status of a prosecution witness as a paid informant is
relevant evidence that may require a new trial); Benn v.
Lambert, 283 F.3d 1040, 1054 (9th Cir. 2002) (stating that
information demonstrating that a government informant was
untrustworthy and deceptive for self-benefiting purpose severely
undermines the witness’ credibility and must be disclosed);
United States v. Levenite, 277 F.3d 454, 460-62 (4th Cir. 2002)
(reaffirming that paid informants are subjected to a higher
degree of scrutiny as to both weight and credibility, and if the
payment is contingent upon testimony at trial, it must be
subjected to an even higher degree of scrutiny); see also United
States v. Cobia, 53 M.J. 305, 310-11 (C.A.A.F. 2000) (discussing
impeachment by contradiction).
In my view, Appellant is entitled to a new DuBay hearing
that addresses the circumstances of a post-trial award/incentive
payment, including evidence on the credibility of SSgt L, as the
factual predicate to a determination whether Appellant should
receive a new trial.
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