United States v. Palmer ( 2019 )


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  •               U NITED S TATES AIR F ORCE
    C OURT OF C RIMINAL APPEALS
    ________________________
    No. ACM 39445
    ________________________
    UNITED STATES
    Appellee
    v.
    Andrew E. PALMER
    Captain (O-3), U.S. Air Force, Appellant
    ________________________
    Appeal from the United States Air Force Trial Judiciary
    Decided 21 June 2019
    ________________________
    Military Judge: L. Martin Powell.
    Approved sentence: Dismissal, confinement for 21 days, and forfeiture
    of $2,500.00 pay per month for 4 months. Sentence adjudged 23 January
    2018 by GCM convened at Joint Base Charleston, South Carolina.
    For Appellant: Major Meghan R. Glines-Barney, USAF.
    For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Major
    Amanda L.K. Linares, USAF; Mary Ellen Payne, Esquire.
    Before JOHNSON, LEWIS, and SCHAG, Appellate Military Judges.
    Judge SCHAG delivered the opinion of the court, in which Senior Judge
    JOHNSON and Judge LEWIS joined.
    ________________________
    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 18.4.
    ________________________
    SCHAG, Judge:
    Appellant pleaded guilty, pursuant to a pretrial agreement (PTA), to one
    charge and two specifications of wrongful use of a controlled substance (cocaine
    and marijuana) in violation of Article 112a, Uniform Code of Military Justice
    United States v. Palmer, No. ACM 39445
    (UCMJ), 10 U.S.C. § 912a. 1 The military judge sitting alone sentenced Appel-
    lant to a dismissal, confinement for 35 days, and forfeiture of $2,500.00 pay
    per month for four months. Consistent with the terms of the PTA, the conven-
    ing authority approved the sentence as adjudged, except that the term of con-
    finement was reduced to 21 days.
    Appellant raises on appeal the issue of whether his Fifth Amendment 2
    rights were violated when the Government admitted the letter of reprimand
    he received for failing to notify his command about his previous reckless driv-
    ing conviction. We find no prejudicial error and affirm the findings and sen-
    tence.
    I. BACKGROUND
    Preferral of the charge in this case occurred on 27 April 2017. The Air Force
    Office of Special Investigations conducted a records check on Appellant. In mid-
    May 2017, the check uncovered action taken against Appellant in 2013 by a
    Georgia criminal court based on a charge of reckless driving arising from an
    arrest for driving under the influence. Referral of the charge occurred on 8
    June 2017. A day later, on 9 June 2017, Appellant’s commander issued a letter
    of reprimand (LOR) addressing the underlying conduct from the 2013 arrest,
    as well as Appellant’s failure to notify his command of the conduct and the
    resulting civilian conviction.
    At trial, the Defense objected to the LOR on the basis of improper pur-
    pose, but the Defense did not assert the Fifth Amendment privilege against
    self-incrimination as a basis for the objection. The Defense argued that a
    LOR is a management tool used for rehabilitation or, put another way, for
    improvement, correction, and instruction of subordinates. Instead, in this
    case, the Defense asserted, the Government created and offered the LOR for
    no rehabilitative purpose but rather only for aggravation in sentencing. Ap-
    pellant’s commander issued an affidavit stating that he issued the LOR with
    advice from the staff judge advocate because he believed the subject matter
    needed to be addressed consistent with his experience as a commander and
    for the purpose of rehabilitation. The military judge at trial admitted the
    LOR over objection.
    1All references in this opinion to the Uniform Code of Military Justice, Rules for
    Courts-Martial, and Military Rules of Evidence are to the Manual for Courts-Martial,
    United States (2016 ed.), pts. II, III.
    2   U.S. CONST. amend. V.
    2
    United States v. Palmer, No. ACM 39445
    II. LAW
    Issues of constitutionality and the interpretation of a service instruction
    are subject to the de novo standard of review. United States v. Serianne, 
    69 M.J. 8
    , 10 (C.A.A.F. 2010) (citation omitted). In general, this court reviews a
    military trial judge’s decision to admit or exclude evidence for an abuse of dis-
    cretion. United States v. Freeman, 
    65 M.J. 451
    , 453 (C.A.A.F. 2008) (citing
    United States v. Ayala, 
    43 M.J. 296
    , 298 (C.A.A.F. 1995)). “An abuse of discre-
    tion occurs when the trial court’s findings of fact are clearly erroneous or if the
    court’s decision is influenced by an erroneous view of the law.” 
    Id. (citation omitted).
        “When an appellant does not raise an objection to the admission of evidence
    at trial, we first must determine whether the appellant waived or forfeited the
    objection.” United States v. Jones, 
    78 M.J. 37
    , 44 (C.A.A.F. 2018) (citation omit-
    ted). “Whereas forfeiture is the failure to make the timely assertion of a right,
    waiver is the intentional relinquishment or abandonment of a known right.”
    United States v. Ahern, 
    76 M.J. 194
    , 197 (C.A.A.F. 2017) (quoting United States
    v. Gladue, 
    67 M.J. 311
    , 313 (C.A.A.F. 2009)). We review forfeited issues for plain
    error, whereas “a valid waiver leaves no error to correct on appeal.” 
    Id. (citations omitted).
    “Under a plain error analysis, the accused has the burden of demon-
    strating that (1) there was error; (2) the error was plain or obvious; and (3) the
    error materially prejudiced a substantial right of the accused.” United States
    v. Payne, 
    73 M.J. 19
    , 23 (C.A.A.F. 2014) (internal quotation marks omitted)
    (quoting United States v. Tunstall, 
    72 M.J. 191
    , 193–94 (C.A.A.F. 2013)).
    Where a plain or obvious error is of a constitutional dimension, the test for
    material prejudice is whether the error is harmless beyond a reasonable doubt.
    See United States v. Jerkins, 
    77 M.J. 225
    , 229 (C.A.A.F. 2018) (citation omit-
    ted); United States v. Tanner, 
    63 M.J. 445
    , 449 (C.A.A.F. 2006).
    Under Rule for Courts-Martial (R.C.M.) 1001(b)(2), “evidence of any disci-
    plinary actions” are potentially admissible at sentencing. “If the accused objects
    to a particular document . . . as containing matter that is not admissible under
    the Military Rules of Evidence, the matter shall be determined by the military
    judge.” Id.; see also Air Force Instruction (AFI) 51-201, Administration of Mili-
    tary Justice, ¶ 7.18 (8 Dec. 2017) (addressing the admissibility of a LOR). “Ob-
    jections not asserted are waived.” R.C.M. 1001(b)(2); see also Mil. R. Evid.
    103(a)(1) (requiring a timely objection and the specific ground for it). When
    making an objection, it is not necessarily imperative “to present every argument
    in support of an objection, but [the rules do] require argument sufficient to make
    the military judge aware of the specific ground for objection.” United States v.
    Reynoso, 
    66 M.J. 208
    , 210 (C.A.A.F. 2008) (quoting United States v. Datz, 
    61 M.J. 37
    , 42 (C.A.A.F. 2005)). Whether an accused has waived or merely forfeited
    3
    United States v. Palmer, No. ACM 39445
    an issue is a question of law we review de novo. Ahern, 
    76 M.J. 194
    at 197 (citing
    United States v. Rosenthal, 
    62 M.J. 261
    , 262 (C.A.A.F. 2005)).
    Departmental regulation outlines the authority for and purpose of LORs.
    “Commanders . . . can issue administrative . . . reprimands. These actions are
    intended to improve, correct, and instruct subordinates who depart from stand-
    ards of performance, conduct, bearing, and integrity, on or off duty, and whose
    actions degrade the individual and unit’s mission.” AFI 36-2907, Unfavorable
    Information File (UIF) Program, ¶ 4.1 (26 Nov. 2014). The departmental regu-
    lation that calls for self-reporting of a civilian criminal conviction is AFI 1-1,
    Air Force Standards (7 Aug. 2012, Incorporating Change 1, 12 Nov. 2014). It
    provides, “If you are above the pay grade of E-6, on active duty . . . and are
    convicted of any violation of criminal law, you must report, in writing, the con-
    viction to your first-line military supervisor within 15 days of the date of con-
    viction.” AFI 1-1, ¶ 2.10.
    The Fifth Amendment protects a person from being “compelled in any crim-
    inal case to be a witness against himself.” U.S. CONST. amend. V. Compelled
    statements that are “testimonial or communicative” are prohibited. Schmerber
    v. California, 
    384 U.S. 757
    , 761 (1966). The UCMJ offers additional protection
    pursuant to Article 31, which states, “No person subject to this chapter may
    compel any person to incriminate himself . . . .” Article 31(a), UCMJ, 10 U.S.C.
    § 831(a).
    III. ANALYSIS
    The gravamen of Appellant’s contention at trial of improper purpose was
    that the commander issuing the LOR had no intention to rehabilitate him, but
    rather devised the LOR with the aim of creating additional sentencing evidence
    for the purpose of enhancing punishment at trial. The Defense theorized that
    the issuance of the LOR was not consistent with regulatory intent for use of an
    LOR as a management tool and argued that the timing of the LOR—one day
    after referral—supported their improper purpose argument. The Defense also
    suggested improper purpose as the LOR was issued in an environment where
    conviction of drug-related offenses was foreseeable, and mandatory administra-
    tive discharge proceedings would necessarily follow a conviction. Notably, the
    Defense’s objection focused on the reason for issuing the LOR, not the inherent
    validity of the LOR for redressing the underlying conduct.
    At trial, there was no mention of the Fifth Amendment as a basis for objec-
    tion. However, on appeal, Appellant relies on United States v. Castillo to argue
    the Air Force’s self-reporting regulation is improper because it does not contain
    safeguards comparable to the Navy’s self-reporting regulation. See Castillo, 
    74 M.J. 160
    , 166 (C.A.A.F. 2015) (discussing Officeof the Chief of Naval Operations
    4
    United States v. Palmer, No. ACM 39445
    Instruction (OPNAVINST) 3120.32C, which prohibits disciplinary action for the
    failure to self-report and for the underlying offense unless such action is based
    solely on evidence derived independently of the self-report). Appellant argues
    for Fifth Amendment protection because the Air Force’s regulation is punitive,
    citing to 
    Serianne, 69 M.J. at 11
    , which affirmed a military judge’s decision to
    dismiss an Article 92 dereliction of duty charge based on a rationale of incon-
    sistency with “superior competent authority.” However, in Serianne the court
    notably declined to reach the constitutional question under the Fifth Amend-
    ment as it applied to the reporting regulation at issue. Like at trial, Appellant
    continues to assert the LOR was issued for an improper purpose, that is, to
    increase court-martial punishment, but Appellant now links that argument to
    a Fifth Amendment violation.
    The arguments underpinning a supposed Fifth Amendment violation con-
    nected to this LOR are quite different from arguments supporting an objection
    that asserts the issuing commander did not have a lawful purpose in mind in
    accordance with the departmental regulation. Unlike in 
    Serianne, 69 M.J. at 11
    , Appellant was not charged with a criminal offense at the court-martial
    based on a duty to report. As such, it is important to observe that in this case
    there is no compulsory statement given by Appellant at issue with regard to
    his civilian conviction that also underpins the charge at court-martial. There-
    fore, we do not address here the question of the self-reporting regulation’s con-
    stitutionality in the context of a charged offense. Rather, the LOR’s admissi-
    bility as a sentencing phase exhibit is at issue here, and as mentioned, the
    validity of the LOR itself as being based on a departmental regulation that
    unconstitutionally calls for a self-report was not challenged at trial. The timing
    of the LOR’s issuance alone is insufficient to demonstrate an improper purpose
    or a violation that reaches a constitutional dimension. Accordingly, we find the
    military judge did not abuse his discretion in admitting the LOR over the De-
    fense’s objection that the LOR was created for an improper purpose. In addi-
    tion, assuming Appellant forfeited and did not waive the issue at trial, see
    
    Ahern, 76 M.J. at 197
    , under the circumstances, we find there was no plain or
    obvious error with respect to violation of Appellant’s Fifth Amendment rights.
    Even if there had been an error, plain or otherwise, we are convinced that
    any error in this instance was harmless beyond a reasonable doubt and would
    not have contributed to the sentence. See 
    Jerkins, 77 M.J. at 229
    .
    IV. CONCLUSION
    The approved findings and sentence are correct in law and fact, and no
    error materially prejudicial to the substantial rights of Appellant occurred.
    5
    United States v. Palmer, No. ACM 39445
    Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the
    findings and sentence are AFFIRMED.
    FOR THE COURT
    CAROL K. JOYCE
    Clerk of the Court
    6
    

Document Info

Docket Number: ACM 39445

Filed Date: 6/21/2019

Precedential Status: Non-Precedential

Modified Date: 7/3/2019