United States v. Becker

46 M.J. 141, 1997 CAAF LEXIS 41, 1997 WL 307051
CourtCourt of Appeals for the Armed Forces
DecidedJune 9, 1997
DocketNo. 96-0659; Crim.App. No. 9400644
StatusPublished
Cited by32 cases

This text of 46 M.J. 141 (United States v. Becker) is published on Counsel Stack Legal Research, covering Court of Appeals for the Armed Forces primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Becker, 46 M.J. 141, 1997 CAAF LEXIS 41, 1997 WL 307051 (Ark. 1997).

Opinion

Opinion of the Court

SULLIVAN, Judge:

On April 13, 1994, at Fort Wainwright, Alaska, appellant, a sergeant first class (E-7), was tried by officer members at a general court-martial. Consistent with his pleas, he was found guilty of conspiracy to commit larceny, larceny (7 specifications), wrongful appropriation (8 specifications), and false swearing, in violation of Articles 81, 121, and 134, Uniform Code of Military Justice, 10 USC §§ 881, 921, and 934, respectively. He was sentenced to a dishonorable discharge, total forfeitui’es, and reduction to E-l. The convening authority approved the sentence [142]*142on September 20, 1994. On December 18, 1995, the Court of Criminal Appeals, in an unpublished opinion, affirmed the findings and a dishonorable discharge, forfeiture of $555.00 pay per month until execution of the discharge, and reduction to E-l.

We granted review of the following issues:

I
WHETHER APPELLANT WAS DENIED DUE PROCESS OF LAW UNDER THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION WHEN THE MILITARY JUDGE PROHIBITED APPELLANT FROM PRESENTING EVIDENCE OF THE EFFECTS A PUNITIVE DISCHARGE WOULD HAVE ON HIS RETIREMENT BENEFITS.
II
WHETHER THE SENTENCE TO A DISHONORABLE DISCHARGE CONSTITUTES A VIOLATION OF THE EIGHTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND IS DISPROPORTIONATELY SEVERE WHEN IT DEPRIVES APPELLANT OF THE OPPORTUNITY TO RECEIVE RETIREMENT BENEFITS WHICH INCLUDE PAYMENT IN EXCESS OF $400,000 OVER THE COURSE OF AN AVERAGE LIFESPAN. SEE UNITED STATES V. SUMRALL, [45 MJ 207 (1996) ].

We hold that the military judge erred in refusing to admit defense mitigation evidence of the projected dollar amount of retirement income which appellant might be denied if a punitive discharge was adjudged. See United States v. Greaves, 46 MJ 133 (1997);1.see also United States v. Sumrall, 45 MJ 207 (1996); see generally RCM 1001(c)(1)(B), Manual for Courts-Martial, United States, 1984. As for Issue II, we decided it in favor of the Government in United States v. Sum-rail, supra, and we do so again here.

At the time of appellant’s court-martial, he had completed 19 years and 8}& months of active service. During sentencing, defense counsel sought to introduce evidence regarding the value of appellant’s projected retirement benefits. According to Defense Exhibit I for identification, the projected value of appellant’s retirement was $439,048.80. The Government objected to this evidence, arguing that appellant was not yet retirement-eligible. See 10 USC § 3914. Defense counsel conceded that appellant was not yet entitled to request retirement but contended that fact did not present a “legal hurdle” to introducing the evidence of appellant’s projected retirement benefits.

The military judge refused to admit the proffered exhibit into evidence, ruling as follows:

MJ: Well, I’ve reviewed the cases that you cited to me as well and I’m still of the opinion that, as his retirement has not vested, although he is much closer than the 3 years discussed in one of those cases, it still remains a future condition to be fulfilled, that is, that he must obtain 20 years of service, credible service, before he would be entitled to such retirement. I don’t want to sound morbid,- but it’s entirely possible that walking out here today he could slip and fall down the stairs, break his neck and die, and there would be no retirement. Similarly, some other event could happen between now and the time that he is entitled to retire which would preclude him from receiving such retired pay and such. It is not so much of a matter of being collateral, which is what one of those cases discussed as to the consequences of the punitive discharge in other regards, but more a matter of just the information is not relevant at this time. Again, I recollect in one of the cases that you had cited to me dealt with someone who in fact was retirement eligible. And that case, I believe, was the one that discussed the consequences of a discharge as well upon an existing retirement. That is not the case today. So I’ll not — the proffered evidence is not going to be received into evidence.

(Emphasis added.)

The Court of Criminal Appeals concluded “thát the military judge did not abuse his [143]*143discretion in refusing to allow the defense the opportunity to prove the value of an imminent retirement. See United States v. Henderson, 29 MJ 221 (CMA 1989).” Un-pub. op. at 2.

' The first issue before us questions the military judge’s ruling excluding defense evidence on the projected loss of retirement benefits which could result from awarding a punitive discharge at appellant’s court-martial. Relying on the fact that appellant was not “retirement-eligible” at the time of trial, the military judge held the benefits’ evidence was irrelevant. See Mil.R.Evid. 401 and 402, Manual, supra. The judge based this ruling on past eases of this Court which he read as precluding admission of such evidence in non-retirement-eligible cases. See generally Henderson, 29 MJ at 222; United States v. Griffin, 25 MJ 423, 424 (CMA 1988). We disagree.

Initially, we note that “relevant evidence” under Mil.R.Evid. 401 is “evidence having any tendency to make the existence of any fact that is of consequence ... more probable or less probable____” (Emphasis added.) See generally S. Saltzburg, L. Schi-nazi, & D. Schlueter, Military Rules of Evidence Manual 422 (3d ed.l991)(rule favors admission of evidence and “anything that can help rationally decide disputed issues is relevant”). Moreover, we note that a military accused has a broad right to present mitigation evidence to a court-martial on sentencing. See United States v. Combs, 20 MJ 441, 442 (CMA 1985); see generally RCM 1001(c)(1)(B) (defense may present matters in mitigation “to lessen the punishment” adjudged). Finally, although irrelevant evidence is not admissible at a court-martial, Mil.R.Evid. 402, “a military judge may relax the rules of evidence in extenuation and mitigation on behalf of an accused. See RCM 1001(c)(3), Manual, supra.” Henderson, 29 MJ at 223.

On the other hand, a military judge may properly exclude evidence on sentencing that is irrelevant or has the substantial risk of confusing the court members. See Mil. R.Evid. 401, 402, and 403. Moreover, we normally review a military judge’s evidentia-ry ruling on these questions only for abuse of discretion. See United States v. Sullivan, 42 MJ 360, 363 (1995). A military judge generally abuses his discretion if his ruling is not supported by evidence on the record or it is controlled by an erroneous view of the law. See United States v. Travers, 25 MJ 61, 63 (CMA 1987).

Turning to appellant’s case, we note that the military judge implicitly relied on our Henderson opinion to exclude the defense’s proffered evidence of lost retirement benefits. In Henderson, this Court held that the military judge did not abuse “his discretion in finding that estimates of appellant’s benefits loss were so collateral as to be confusing and, thus, inadmissible. Mil.R.Evid. 403.” Henderson was 3 years

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Bluebook (online)
46 M.J. 141, 1997 CAAF LEXIS 41, 1997 WL 307051, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-becker-armfor-1997.