Recent AFCCA Opinion: United States v. Wiseman

The AFCCA affirmed the findings and sentence of Airman First Class Dillon R. Wiseman, holding that he warranted no relief for his four assignments of error. Opinion here.

Background
            
            Airman First Class Dillon R. Wiseman (Appellant) was charged and convicted of wrongful use of THC on divers occasions in violation of Art. 112a, UCMJ. Appellant’s adjudged sentence consisted of: (1) a bad-conduct discharge; (2) confinement for 45 days; and (3) reduction to the grade of E-1. The convening authority approved the sentence, but pursuant to the military judge’s order, credited Appellant “one stripe” and five days of confinement based upon a prior nonjudicial punishment action under Art. 15, UCMJ. 
 
Issues
 
            Appellant raised four issues: (1) whether the military judge erred when he admitted the testimony of the Government’s rebuttal sentencing witness contrary to RCM 1001(c)(2)(C); (2) whether the assistant trial counsel erred during the Government’s sentencing argument; (3) whether the record of trial was incomplete; and (4) whether Appellant was entitled to new post-trial processing because the staff judge advocate’s recommendation failed to correctly advise the convening authority of the maximum imposable sentence and his ability to disapprove, commute, or suspend in whole or in part the term of confinement. 
 
Holding
 
            Having found that no material prejudice to a substantial right of Appellant’s took place, the Court affirmed the findings and sentence. 
 
Discussion

1. Rebuttal sentencing witness issue

During the Defense’s presentencing case, Appellant provided both an oral and written unsworn statement pursuant to RCM 1001(c)(2)(C). With respect to cooperating with the Security Forces Investigators, Appellant wrote “I cooperated with them the best that I could.”  On rebuttal, the government then admitted testimony from the CID agent that Wiseman was initially reluctant to implicate his fellow airmen in his drug use.
            Under RCM 1001(c)(2)(C), “the accused may make an unsworn statement and may not be cross-examined by the trial counsel upon it or examined upon it by the court-martial. The prosecution may, however, rebut any statement of facts therein.” The Court relied on United States v. Manns, which contained a similar statement that was held an assertion of fact. United States v. Manns, 54 M.J. 164, 165 (C.A.A.F. 2000). Since the Court found that Appellant’s claim of cooperation with the Investigators constituted an assertion of fact, the statement was rebuttable and the military judge therefore did not err in admitting the testimony under RCM 1001(c)(2)(C).
   2.  Trial Counsel Improper Argument Issue
          Appellant argued that the trial counsel’s argument was improper because facts not in evidence and double punishment were argued (expand on what they specifically were). Employing the three part test in United States v. Fletcher, 62 M.J. 175, 179 (C.A.A.F. 2005), the AFCCA balanced: (1) the severity of the misconduct; (2) the measures adopted to cure the misconduct; and (3) the weight of the evidence supporting the conviction. The Court focused heavily on the third Fletcher factor—the weight of the evidence—which it stated weighed so heavily in favor the Government that the Court believed the Appellant was sentenced on the basis of the evidence alone. The Court reached this conclusion by comparing Appellant’s potential punitive exposure with his adjudged sentence, and trial counsel’s focused argument on Appellant’s continuing positive drug test results. Additionally, the Court noted that Appellant’s trial was by a military judge-alone and that a military judge is presumed to know what portions of argument are impermissible absent clear evidence to the contrary. See United States v. Bridges, 66 M.J. 246, 248 (C.A.A.F. 2008). The Court, reviewing the above evidence, found that the Appellant merited no relief on this issue. 
    3.    Record of Trial Issue
       Appellant argued that the ROT was incomplete because two documents were missing from the record of trial; a motion filed by Appellant to release trial defense counsel; and slides that the trial counsel used as evidence.
       The Court, citing United States v. Henry, 53 M.J. 108, 111 (C.A.A.F. 2000)[1] found that the missing motion was not an omission at all because the military judge gave the trial defense counsel the option to include the motion in the record and he chose not to have the exhibit marked as an appellate exhibit. Additionally, the Court found that the missing slides were an omission but an insubstantial one, because the information on them was identical to information contained in the stipulation of fact. Finding no substantial omission, the Court found no prejudice to the Appellant.
    4.   SJAR’s Error Issue
     Appellant argues that the Staff Judge Advocate, in preparing the SJAR made two incorrect statements. First, that “[t]he maximum imposable sentence for the offense for which the accused was convicted is...forfeiture of all pay and allowances...” Second, that the convening authority has the authority to “disapprove, commute, or suspend in whole or in part the reduction in rank.” (Emphasis added). The Court reviewed these issues for plain error because Appellant did raise them prior to his appeal to the court. Under RCM 201(f)(2)(B)(i), the maximum forfeiture a special court-martial may adjudge is two-thirds of the accused’s pay per month for 12 months. Even though the Court found that the SJAR was erroneous for this reason, the Court decided that Appellant was not entitled to relief under United States v. Scalo, 60 M.J. 435, 436 (C.A.A.F. 2005), since there was no prejudice. As to the second part of the SJAR under review, the Court stated that because RCM 1106(d)(3) “does not list a statement of the convening authority’s power among the ‘required contents’ of an SJAR,” the SJAR contained no plain or obvious error entitling Appellant to relief. 

 

[1]“Insubstantial omissions from a record of trial do not raise a presumption of prejudice or affect that record’s characterization as a complete one.” United States v. Henry, 53 M.J. 108, 111 (C.A.A.F. 2000).

Shlomo Amar

Intern