United States v. Sonego , 61 M.J. 1 ( 2005 )

IN THE CASE OF
UNITED STATES, Appellee
v.
Michael J. SONEGO, Airman
U.S. Air Force, Appellant
No. 04-0480
Crim. App. No. S30216
United States Court of Appeals for the Armed Forces
Argued December 8, 2004
Decided April 1, 2005
ERDMANN, J., delivered the opinion of the Court, in which
GIERKE, C.J., and EFFRON and BAKER, JJ., joined. CRAWFORD, J.,
filed a dissenting opinion.
Counsel
For Appellant: Major Sandra K. Whittington (argued); Lieutenant
Colonel Carlos L. McDade, Major Antony B. Kolenc, Major Terry L.
McElyea, and Captain L. Martin Powell (on brief).
For Appellee: Captain Jin-Hwa L. Frazier (argued); Lieutenant
Colonel Robert V. Combs and Lieutenant Colonel Gary F. Spencer
(on brief); Major Shannon J. Kennedy.
Military Judge: Israel B. Willner
This opinion is subject to editorial correction before final publication.
United States v. Sonego, No. 04-0480/AF
Judge ERDMANN delivered the opinion of the Court.
Airman Michael Sonego entered a plea of guilty to wrongful
use of ecstasy in violation of Article 112a, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. § 912a (2000). He was
sentenced by members to a bad-conduct discharge, restriction to
the limits of Lackland Air Force Base for two months, forfeiture
of $500 pay per month for twelve months, and a reduction in
grade to E-1. The convening authority approved only the bad-
conduct discharge and partial forfeitures. The findings and the
approved sentence were affirmed by the United States Air Force
Court of Criminal Appeals in an unpublished opinion. United
States v. Sonego, ACM S30216 (A.F. Ct. Crim. App. Apr. 28,
2004).
After Sonego’s trial, his defense counsel discovered that
one of the panel members may have failed to answer a question
honestly during voir dire. Voir dire is critical to the
fairness of a court-martial. United States v. Mack, 41 M.J. 51,
54 (C.M.A. 1994). A defendant’s right to a fair trial is
undermined if panel members fail to answer material questions
honestly during voir dire. Id. We granted review to determine
whether Sonego was entitled to any post-trial relief.1
1
We granted review of the following issue:
WHETHER APPELLANT IS ENTITLED TO AN IMPARTIAL SENTENCE
REHEARING WHERE, DURING VOIR DIRE, A PANEL MEMBER
FAILED TO DISCLOSE HIS BELIEF THAT EVERY SERVICEMEMBER
WHO USES DRUGS SHOULD GET A PUNITIVE DISCHARGE.
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BACKGROUND
Sonego was accused of taking two ecstasy pills on two
consecutive days in January 2002. When questioned by
investigators, he immediately confessed to his misconduct. At
trial Sonego pleaded guilty and was sentenced by a panel of
three officer members.
During voir dire, the military judge asked the standard
voir dire questions found in the Military Judges’ Benchbook.
Legal Services, Dep’t of the Army, Pamphlet 27-9, Military
Judges’ Benchbook ch. 2, § V, para. 2-5-1 (2001). Among the
questions the military judge asked was:
It is a ground for challenge if you have an inelastic
predisposition toward the imposition of a particular
punishment based solely on the nature of the crime for
which the accused is to be sentenced. Does any
member, having read the charge and specification[,]
believe that you would be compelled to vote for any
particular punishment solely because of the nature of
the charge?
See id. Captain Bell, who was a potential member, answered “no”
and was subsequently seated on the panel. He was not called for
individual voir dire.
Bell was an active participant in the sentencing
proceedings. When the first witness was testifying, Bell was
the only panel member to respond to a question from the military
judge about the members’ ability to hear the testimony. During
the defense’s case, after Sonego’s mother had testified about
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Sonego’s background and character, Bell asked the military judge
whether the members would have access to documents that would
show whether Sonego had used drugs before he enlisted in the Air
Force.
During the deliberations the members sent a note to the
military judge asking if there were any discharge options
available other than a bad-conduct discharge. The military
judge called the members in and explained that the only
discharge option available to the court was a bad-conduct
discharge. When the military judge asked if there were any
further questions, Bell asked whether there would be mandatory
confinement time associated with a punitive discharge. The
military judge told the court that confinement was not required
even if Sonego was sentenced to a bad-conduct discharge.
Nearly a month after the trial, Sonego’s trial defense
counsel, Captain Page, was representing another airman in a drug
case when Bell was again selected to sit on the panel. During
voir dire in the second case, Bell expressed a predisposition
that any servicemember convicted of a drug offense should
receive a bad-conduct discharge. Bell was subsequently
challenged for cause and removed from the panel.
No transcript was made in the second case because it
resulted in an acquittal, but Page later drafted a sworn
declaration in which he recounted Bell’s different responses in
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the two cases. Page’s declaration did not include the specific
wording of any questions asked of the panel in general or of
Bell in particular. On appeal to the Court of Criminal Appeals,
Sonego requested a new sentence proceeding that was supported by
Page’s declaration. That court denied the request on the ground
that Sonego had not demonstrated that Bell failed to answer any
question honestly.
Before this Court, Sonego argues that Bell failed to reveal
his true beliefs during voir dire, and, that had he revealed his
true feelings about drug use by members of the military, Bell
could have been successfully challenged for cause. Sonego
argues that his sentence -– which included a bad-conduct
discharge but no confinement -– was so moderate as to indicate
that he might have avoided a punitive discharge altogether if
Bell had not been a member of the panel. Sonego further argues
that he should be given a new sentence hearing, or, in the
alternative, a trial-level evidentiary hearing to develop the
facts further.
The Government’s response was that Sonego is not entitled
to a new sentence hearing or even an evidentiary hearing because
he has not established that Bell failed to disclose information
during voir dire. The Government argues that the accused must
make a prima facie showing of nondisclosure before an
evidentiary hearing can be ordered.
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DISCUSSION
In McDonough Power Equipment, Inc. v. Greenwood, 464 U.S.
548, 556 (1984), the United States Supreme Court set out the
test for determining when a party is entitled to a new trial due
to an incorrect voir dire response: “[T]o obtain a new trial in
such a situation, a party must first demonstrate that a juror
failed to answer honestly a material question on voir dire, and
then further show that a correct response would have provided a
valid basis for a challenge for cause.” We adopted this test
in Mack, and held that “where a party asserts juror
nondisclosure during voir dire as a ground for a new trial, the
normal procedure is to remand the issue to the trial court for
resolution.” 41 M.J. at 55. In United States v. Humpherys, we
reiterated, “[A]n evidentiary hearing is the appropriate forum
in which to develop the full circumstances surrounding each of
[the Mack/McDonough] inquiries.” 57 M.J. 83, 96 (C.A.A.F.
2002). We did not order an evidentiary hearing in Humpherys,
however, because the military judge had already conducted a
post-trial session under Article 39(a), UCMJ, 10 U.S.C. § 839(a)
(2000), after which he applied the McDonough test. 57 M.J. at
95.
Although an evidentiary hearing is the usual procedure for
resolving claims of juror dishonesty, we have not had the
occasion to address the measure of proof required to trigger an
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United States v. Sonego, No. 04-0480/AF
evidentiary hearing. The measure of proof required to trigger a
McDonough evidentiary hearing is a question where the federal
circuits have differed. Of the eight circuits that have
addressed this issue, six have adopted a standard that requires
something less than proof of juror dishonesty before a hearing
is convened. See United States v. Carpa, 271 F.3d 962, 967
(11th Cir. 2001); Pope v. Man-Data, Inc., 209 F.3d 1161, 1163
(9th Cir. 2000); United States v. Tucker, 137 F.3d 1016, 1026
(8th Cir. 1998); United States v. Boney, 977 F.2d 624, 634-35
(D.C. Cir. 1992); United States v. Boylan, 898 F.2d 230, 258 (1st
Cir. 1990); United States v. Cattle King Packing Co., Inc., 793
F.2d 232, 243 (10th Cir. 1986).
While some of the circuits have declined to establish a
particular test, choosing instead to leave the decision within
the broad discretion of the deciding court, the Ninth Circuit
has held that “‘[a] court confronted with a colorable claim of
juror bias must undertake an investigation of the relevant facts
and circumstances.’” Pope, 209 F.3d at 1163 (quoting Dyer v.
Calderon, 151 F.3d 970, 974 (9th Cir. 1998)). The First Circuit
has also adopted the “colorable claim” rule. See Boylan, 898
F.2d at 258. The Eighth Circuit has held that “a movant who
makes a sufficient showing of McDonough-type irregularities is
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United States v. Sonego, No. 04-0480/AF
entitled to the court’s help in getting to the bottom of the
matter.” Tucker, 137 F.3d at 1026.2
The standard urged by the Government -– a prima facie
showing -- would swallow the first prong of the McDonough test.
It is unreasonable to expect an appellant to produce prima facie
proof of juror dishonesty without the benefit of an evidentiary
hearing or other fact-finding procedure where the evidence may
be fully developed. We conclude that the “colorable claim” test
used by the First and Ninth Circuits provides the better test
because it eliminates frivolous claims but keeps the door open
for claims that may prove valid upon further examination. This
Court has adopted the “colorable claim” test in other contexts.
See, e.g., United States v. Taylor, 60 M.J. 190, 195 (C.A.A.F.
2004) (prejudice due to post-trial error); United States v.
Campbell, 57 M.J. 134, 138 (C.A.A.F. 2002) (appellate discovery);
United States v. Douglas, 56 M.J. 168, 170 (C.A.A.F. 2001)
(violation of rights under United States v. Grostefon, 12 M.J.
431 (C.M.A. 1982)); United States v. Diaz-Duprey, 51 M.J. 168(C.A.A.F. 1999) (ineffective assistance of counsel).
2
Unlike the First, Eighth, Ninth, Tenth, Eleventh and District
of Columbia Circuits, the Second Circuit has held that a post-
trial hearing is only necessary if the party requesting the
hearing can produce “clear, strong, substantial and
incontrovertible evidence that a specific, nonspeculative
impropriety has occurred which could have prejudiced the trial of
a defendant.” United States v. Moon, 718 F.2d 1210, 1234 (2d
Cir. 1983) (citation omitted). The Fifth Circuit requires that
the movant establish a prima facie case under McDonough before an
evidentiary hearing is required. Montoya v. Scott, 65 F.3d 405,
420 (5th Cir. 1995).
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Here, Sonego has made a colorable claim of juror dishonesty.
His attorney, an officer of the court, has declared under penalty
of perjury that a panel member provided a contradictory voir dire
response on a critical issue less than one month after Sonego’s
trial.3 The Government argues that this proof falls short
because Sonego has not and cannot establish what Bell was
thinking when he answered “no” to the voir dire question. It is
true that Sonego’s proof does not provide prima facie evidence
that Bell failed to answer the voir dire question honestly. It
does, however, provide a colorable claim sufficient to trigger
an evidentiary hearing. It is a question of fact whether Bell
answered honestly when he was questioned about his
predispositions and Sonego is entitled to an evidentiary hearing
at which he can fully develop the answer to this question.
Thus, the Air Force court erred by failing to order an
evidentiary hearing in accordance with United States v. DuBay,
17 C.M.A. 147, 37 C.M.R. 411 (1967).
DECISION
The decision of the United States Air Force Court of
Criminal Appeals is set aside. The record of trial is returned
to the Judge Advocate General of the Air Force for submission to
the convening authority to order a hearing to resolve questions
3
The parties do not dispute that an inelastic predisposition
toward a particular punishment is a valid basis for a challenge
for cause. United States v. Tippit, 9 M.J. 106 (C.M.A. 1980).
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of fact and make conclusions of law with respect to whether the
McDonough test for a new trial due to juror nondisclosure during
voir dire has been met. Upon completion of these proceedings,
the record, along with the military judge’s findings of fact and
conclusions of law, shall be returned to the convening authority
for further consideration and action, to include setting aside
the original action and ordering a new sentence hearing, if
appropriate.
In the event that the convening authority deems such a
hearing impracticable, the convening authority shall set aside
the action and either order a rehearing on the sentence or take
action approving a sentence of no punishment.
Upon completion of proceedings below, the record of trial
shall be sent directly to the Air Force Court of Criminal
Appeals for review. Thereafter, Article 67, UCMJ, 10 U.S.C. §
867 (2000), shall apply.
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CRAWFORD, Judge (dissenting):
As I am unwilling to abandon precedent and arbitrarily
reassign appellate burdens, I cannot join the majority in
rewarding Appellant for what I view as the certainly
questionable -– and potentially “sharp” -– practice of defense
counsel in both the timing and substance of this issue. Viewed
from any angle, Appellant has failed to meet his burden in two
regards: he has not acted in a timely manner, and he has not
“demonstrate[d] that a [panel member] failed to answer honestly
a material question on voir dire.” McDonough Power Equipment,
Inc. v. Greenwood, 464 U.S. 548, 556 (1984). Because we
necessarily encourage repetition of those practices we reward, I
must respectfully dissent from the majority’s remand for a
proceeding under United States v. DuBay, 17 C.M.A. 147, 37
C.M.R. 411 (1967). Not only is this remand based entirely on
one counsel’s belated, conclusory recollection of an opinion
voiced in an unrecorded proceeding, but that same counsel’s
unexplained delay in raising the issue has effectively denied
any opportunity for the Government to preserve evidence of the
“facts” on which Appellant now relies.
In United States v. Humpherys, 57 M.J. 83, 96 (C.A.A.F.
2002), this Court examined, for abuse of discretion, a military
judge’s denial of a motion for new trial based on a material
misstatement by a court member during voir dire involving the
United States v. Sonego, No. 04-0480/AF
denial of a rating-chain relationship. Applying the test
prescribed by the United States Supreme Court, we held in
Humpherys that:
[w]hen a panel member fails to disclose information
during voir dire, the defendant must make two showings
in order to receive a new trial. “‘[A] party must
first demonstrate that a [panel member] failed to
answer honestly a material question on voir dire, and
then further show that a correct response would have
provided a valid basis for a challenge for cause.’
McDonough Power Equipment, Inc. v. Greenwood, 464 U.S.
[548,] 556 [(1984)].” United States v. Mack, 41 M.J.
51, 55 (C.M.A. 1994). We have noted that an
evidentiary hearing is the appropriate forum in which
to develop the full circumstances surrounding each of
these inquiries. Id. at 55-56.
57 M.J. at 96 (citation omitted).
Unlike Appellant’s case, in Humpherys the material
misstatement was one of fact, as opposed to opinion, and was
brought to the military judge’s attention soon after its
discovery. Emphasizing the importance of timely action by
counsel, this Court explained the benefits that timeliness
offers the truth-finding process:
The post-trial process empowers the military judge to
investigate and resolve allegations, such as those in
this case, by interviewing the challenged panel
members. It allows the judge to accomplish this task
while the details of trial are still fresh in the
minds of all participants. The judge is able to
assess first-hand the demeanor of the panel members as
they respond to questioning from the bench and
counsel. Our role in the process is to review the
results and ensure the military judge has not abused
his or her discretion in reaching the findings and
conclusions.
2
United States v. Sonego, No. 04-0480/AF
Id.
In requesting a new sentence hearing, or in the alternative
a post-trial evidentiary hearing, Appellant asserts that during
voir dire at Appellant’s court-martial, a panel member --
Captain (Capt) Bell -– failed to disclose an inelastic
predisposition toward a punitive discharge. Had Appellant made
a timely offer of evidence sufficient to support that assertion,
I would agree that a post-trial evidentiary hearing would be
appropriate; however, Appellant has not, and I do not.
Unlike the factual incongruity in Humpherys, susceptible of
proof by resort to a verbatim record and a published rating
chain or a completed evaluation report,1 the misrepresentation
Appellant claims is one of personal opinion or belief, allegedly
stated in materially different terms, separated by approximately
three weeks. Also unlike Humpherys, where the military judge,
after being given dispositive evidence of material misstatements
made during voir dire, convened a post-trial session to inquire
into the circumstances and effect of those misstatements, the
military judge in this case was given no such opportunity.
Instead, years later, we are asked to order a DuBay hearing on
the basis of a counsel’s uncorroborated suggestion, in a
1
In Mack, which we cited in Humpherys, the question before us
was also one of fact, proved on appeal by resort to two
authenticated records of trial by court-martial.
3
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carefully crafted declaration, that there may have been a
material misstatement of opinion by a court member.
We have before us Appellant’s record of trial, in which
Capt Bell is credited with a negative response to the question
of inelastic predisposition; however, we have no evidence of
Capt Bell’s answers at the subsequent trial of another airman,
only the declaration of Capt Page, the detailed defense counsel
in both proceedings, which loosely summarizes Capt Page’s
impression of Capt Bell’s responses at that later proceeding.
There is no statement from Capt Bell, and no transcript or tape
recordings from the subsequent trial in which Capt Bell gave the
allegedly contradictory response(s). There is no statement from
anyone else present in the courtroom at those later proceedings,
e.g., the civilian defense counsel, the court reporter, or the
military judge. There is no evidence that Capt Page or the
appellate defense counsel sought production of a partial
transcript, or even the tapes, of that later proceeding. There
is no evidence that Capt Page moved for a post-trial session or
new trial under either Rule for Court Martial (R.C.M.) 1102 or
R.C.M. 1210, respectively, despite the fact that the voir dire
sessions were only about three weeks apart. Further, Capt Page
did not bring this matter to the convening authority’s attention
in his R.C.M. 1105 matters. Compounding this evidentiary vacuum
-– even if we were to assume that Capt Bell’s responses to
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questions on inelastic predisposition were materially different
at the later proceeding -- is that we are faced not with a
failure to disclose a material matter of fact, but with a
potential difference of opinion and, more importantly, with the
question of when, if ever, Capt Bell’s opinion on the matter
changed.
The declaration of Appellant’s trial defense counsel,
signed ten months after that later proceeding, and nearly a year
after our Humpherys decision, contains a rough account of Capt
Bell’s voir dire responses at the second trial. Neither the
defense counsel nor the appellate defense counsel claim the
account was contemporaneously recorded, and neither offers any
reason why, immediately following that second proceeding, with
Appellant’s conviction and Capt Bell’s voir dire at Appellant’s
trial fresh in his mind, Appellant’s defense counsel apparently
did nothing. Now, however, wielding his defense counsel’s
“officer of the court” status, Appellant asks this Court to
order what his defense counsel could, and clearly should, have
sought themselves while facts and memories were fresh, had they
harbored any genuine belief in the merit of this issue.
Viewed benignly, the course chosen by the defense may
reflect earnest, zealous representation, flavored with a bit of
Steve Martin’s famous catchphrase, “I forgot.” It would not be
untoward under the circumstances, however, to ask whether the
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defense intentionally delayed raising the issue until memories
had dimmed, command interest had waned, and the cost and
inconvenience of a DuBay hearing outweighed any perceived
benefit to the Government. Be that as it may, when this Court,
without requiring any explanation, embraces and rewards this
practice, we ensure its emulation by subsequent appellants.
By conferring evidentiary status on the defense counsel’s
unsupported, untimely, and conclusory declaration, the majority
exalts his “officer of the court” status, while impugning the
integrity of Capt Bell, who now, presumably, will be dragged
into court to defend his honor against Appellant’s accusation
that he lied under oath. It does not speak well of this Court
to assign opprobrium to Capt Bell with so little cause. Not
only would I follow Article 67, UCMJ, 10 U.S.C. § 867 (2000), in
declining to find facts from Capt Page’s declaration, but, as a
predicate to impeaching Capt Bell, I would require a
satisfactory demonstration from appellate defense counsel of
Capt Page’s efforts to: procure a verbatim transcript of the
later voir dire; procure the tapes from which to make such a
transcript; offer the statement of any other observer or
participant in the courtroom; make a contemporaneous record of
Capt Bell’s responses; or seek a post-trial session under
Article 39(a), UCMJ, 10 U.S.C. § 839(a)(2000), from the military
judge or the convening authority. In short, I would require
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United States v. Sonego, No. 04-0480/AF
Appellant to meet the burden established by our precedent,
consistent with the weight of federal case law.
In that regard, I cannot agree that Humphreys, Mack, and
the bulk of the federal circuits support the remedy awarded to
Appellant by the majority opinion. Every case cited by the
majority (except United States v. Boylan, 898 F.2d 230 (1st Cir.
1990), which examined the effect of extraneous information in
the jury room) deals with questions of fact, susceptible of
proof by resort to recorded testimony, court records, and other
documentary evidence. Moreover, each of those cases examines a
claim of juror misconduct raised either during trial or
expeditiously thereafter -– none addresses a delay of ten months
from the time counsel learned of the potential misconduct to the
time he raised that issue (notwithstanding numerous intervening
opportunities to do just that). Even in the fact-based
instances addressed by those decisions, none of the cases cited
by the majority advances the proposition that an appellant is
entitled to an evidentiary hearing pursuant to a mere claim of
potential bias by a juror. In holding that the trial judge did
not err in declining to hold such a hearing, the First Circuit
said, “When a colorable claim of jury misconduct surfaces, the
district court has broad discretion to determine the type of
investigation which must be mounted. The trial judge may, but
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United States v. Sonego, No. 04-0480/AF
need not, convene a fullblown evidentiary hearing.” Boylan, 898
F.2d at 258 (internal citations omitted).
In denying Appellant’s request for an evidentiary
hearing, I would apply the sound framework applied by the Eighth
and Eleventh Circuits:
[“]Examination of all of the cited authorities . . .
leads us to the conclusion that the cases fall along a
continuum focusing on two factors. At one end of the
spectrum the cases focus on the certainty that some
impropriety has occurred. The more speculative or
unsubstantiated the allegation of misconduct, the less
the burden to investigate . . . . At the other end of
the continuum lies the seriousness of the accusation.
The more serious the potential jury contamination,
especially where alleged extrinsic influence is
involved, the heavier the burden to investigate.[”]
In sum, the depth of investigation required depends on
both the gravity of the alleged misconduct and the
substantiality of the movant's showing of misconduct.
United States v. Tucker, 137 F.3d 1016, 1031 (8th Cir.
1998)(quoting United States v. Caldwell, 776 F.2d 989, 998 (11th
Cir. 1985)).
It is precisely the “substantiality of the movant’s showing
of misconduct” that we must question before we direct any
remedy, even a fact-finding Article 39(a) session. To do
otherwise is to establish that, despite circumstances suggesting
intentional delay by Appellant and his counsel and, even when
raised for the first time on appeal by affidavit alone, a
conclusory suggestion of member misconduct is sufficient not
only to shift to the Government the burden of proving that the
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suggestion is false, but to require the Government to conduct -–
at the least -– a costly and time-consuming DuBay hearing.
Rather than bestow this new and undeserved remedy, I would
invite defense counsel to fulfill their obligations as “officers
of the court,” and share with this tribunal the evidence that
supports their arguments, or, in its absence, evidence of their
due diligence in attempting to procure it. At the very least, I
would require the military judge, as a predicate to further
fact-finding, to find that Capt Page made good faith efforts to
procure the record at the time.
9