United States v. McFadden

74 M.J. 87, 2015 CAAF LEXIS 205, 2015 WL 895410
CourtCourt of Appeals for the Armed Forces
DecidedMarch 3, 2015
Docket12-0501/AF
StatusPublished
Cited by32 cases

This text of 74 M.J. 87 (United States v. McFadden) 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. McFadden, 74 M.J. 87, 2015 CAAF LEXIS 205, 2015 WL 895410 (Ark. 2015).

Opinions

Judge STUCKY delivered the opinion of the Court.

After Appellant testified on her own behalf, a court'member asked if she was aware of the concept of lying by omission. We granted Appellant’s petition for review to consider whether the military judge abused his discretion by failing to grant a mistrial or to sua sponte excuse the court member. We hold that the military judge did not abuse his discretion in not granting the mistrial, and he did not have a sua sponte duty to excuse the member.

I. Posture of Case

Appellant was charged with conspiracy to desert her unit, two specifications of desertion, and making a false official statement. Articles 81, 85, and 107, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 881, 885, 907 (2012). To each of the two desertion specifications, Appellant pled not guilty but guilty of absence without leave. Article 86, UCMJ, 10 U.S.C. § 886 (2012). She pled not guilty to the other charges. A general court-martial composed of members convicted Appellant of absence without leave, desertion, conspiracy, and making a false official statement. Court members sentenced her to a bad-conduct discharge, confinement for twenty-four months, forfeiture of all pay and allowances, reduction to the lowest enlisted grade, a fine of $1,650, and additional confinement of thirty-six days if she failed to pay the fine. Except for the contingent confinement, the convening authority approved the adjudged sentence.

The United States Air Force Court of Criminal Appeals (CCA) affirmed the findings and the approved sentence. United States v. Mcfadden, No. 37438, 2012 CCA LEXIS 90, at *4, 2012 WL 1059023, at *1 (A.F.Ct.Crim.App. Mar. 15, 2012) (unpublished). We granted review to decide whether the military judge abused his discretion by failing to excuse a court member, and vacated and remanded the case to the CCA to consider the granted issue in light of United States v. Nash, 71 M.J. 83 (C.A.A.F.2012), without prejudice to raise other issues. United States v. McFadden, 71 M.J. 403 (C.A.A.F.2012) (summary disposition).

In an opinion by Judge Soybel, a civilian appointed as an appellate military judge by the Secretary of Defense, a panel of the CCA held that the military judge did not abuse his discretion in failing to excuse the member. United States v. McFadden, No. 37438 (f rev), 2013 CCA LEXIS 240, at *2, *11, 2013 WL 1319455, at *4 (A.F.Ct.Crim.App. Mar. 19, 2013) (unpublished). This Court set aside the CCA’s judgment and returned the case for further review in light of the Supreme Court’s opinion in Ryder v. United States, 515 U.S. 177, 115 S.Ct. 2031, 132 L.Ed.2d 136 (1995) (concerning the method of appointing civilians as appellate military judges), and United States v. Carpenter, 37 M.J. 291 (C.M.A.1993), vacated, 515 U.S. 1138, 115 S.Ct. 2572, 132 L.Ed.2d 823 (1995). United States v. McFadden, 73 M.J. 41 (C.A.A.F.2013) (summary disposition). A panel of the CCA that did not include Judge Soybel affirmed the findings and approved sentence. [89]*89United States v. McFadden, No. 37438 (f rev), 2013 CCA LEXIS 814, at *12, 2013 WL 5436703, at *4 (A.F.Ct.Crim.App. Sept. 26, 2013).

II. Facts

At trial, Appellant testified on her own behalf that she never intended to remain away from her unit permanently, she always planned to return to the military, and she did eventually turn herself in to military control. The military judge asked Appellant if she told either of the investigators who interviewed her that she intended to return. The defense did not object to the question or ask • for an Article 39(a), UCMJ, 10 U.S.C. § 839(a) (2012), hearing. Appellant answered: “Oh. I don’t believe they ever asked.” The Government then asked if Senior Airman (SrA) Aeree, another military investigator, had asked her if she intended to come back. The defense objected on the ground that the question was beyond the scope of permissible cross-examination. The military judge overruled the defense objection. Appellant answered: “Yes, sir, but I used my right to remain silent at the time.”

Major Cereste, a court member, and Appellant then engaged in the following exchange:

Q. My next question is: You testified today on numerous accounts of overt deception, and to me you seem to have a heightened intuition of other people’s motives. For example, you were aware that perhaps Airman Dover might tell people X, Y, Z, so you told her certain things. Have you also heard of lying by omission — so—exercising your right to remain silent. So, how, is your testimony today regarding never intending to desert the Air Force permanently different from your previous pattern of deception?
A. Because, before, I had never formed the intent to remain away permanently. And I’ve already admitted to going AWOL, which I take responsibility for, but I don’t want people to think that intent was to never come back.

During a subsequent Article 39(a) hearing, the defense moved for a mistrial, asserting that, “[a]s a direct result of that dine of questioning, Major Cereste ... accused Airman McFadden of lying by omission by exercise of her right to remain silent.”1 The military judge declined to grant the mistrial but offered to instruct the panel. The military judge solicited appropriate language for the curative instruction from the defense and based his instruction on.that language: ‘You may not consider the accused’s exercise of her right to remain silent in any way adverse to the accused. You may not consider such exercise as lying by omission.” The military judge so instructed the members at the next open session of the court-martial. The defense did not ask the military judge to voir dire or excuse any members.

III. Discussion

A. Failure to Grant Mistrial

A military judge “may, as a matter of discretion, declare a mistrial when such action is manifestly necessary in the interest of justice because of circumstances arising during the proceedings which cast substantial doubt upon the fairness of the proceedings.” Rule for Courts-Martial (R.C.M.) 915(a). “[A] mistrial is an unusual and disfavored remedy. It should be applied only as a last resort to protect the guarantee for a fair trial.” United States v. Diaz, 59 M.J. 79, 90 (C.A.A.F.2003). It ‘“is reserved for only those situations where the military judge must intervene to prevent a miscarriage of justice.’ ” United States v. Vazquez, 72 M.J. 13, 19 n. 5 (C.A.A.F.2013) (quoting United States v. Garces, 32 M.J. 345, 349 (C.M.A.1991)).

“Because of the extraordinary nature of a mistrial, military judges should explore the option of taking other remedial action, such as giving curative instructions.” United States v. Ashby, 68 M.J. 108, 122 (C.A.A.F.2009). A curative instruction is preferred to granting a mistrial, which should only be granted “when ‘inadmissible [90]

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Cite This Page — Counsel Stack

Bluebook (online)
74 M.J. 87, 2015 CAAF LEXIS 205, 2015 WL 895410, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-mcfadden-armfor-2015.