United States v. Ross

34 M.J. 183, 1992 CMA LEXIS 81, 1992 WL 75151
CourtUnited States Court of Military Appeals
DecidedApril 17, 1992
DocketNo. 66,253; CM 9000980
StatusPublished
Cited by21 cases

This text of 34 M.J. 183 (United States v. Ross) is published on Counsel Stack Legal Research, covering United States Court of Military Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Ross, 34 M.J. 183, 1992 CMA LEXIS 81, 1992 WL 75151 (cma 1992).

Opinions

Opinion of the Court

SULLIVAN, Chief Judge:

Appellant was tried by a general court-martial composed of a military judge sitting alone at Fort Hood, Texas, on March 1, 1990. Pursuant to appellant’s pleas, he was found guilty of three specifications of conspiring to alter a public record, i.e., an “Army Service Vocational Aptitude Battery test,” in violation of Article 81, Uniform Code of Military Justice, 10 USC § 881. In addition, he was also found guilty, pursuant to his pleas, of a single specification of wrongfully completing an “Armed Services Vocational Aptitude Battery test” for another soldier and three specifications of accepting money for [alteration] services with respect to the “Armed Services Vocational Aptitude Tests” of three other soldiers, in violation of Article 134, UCMJ, 10 USC § 934. He was sentenced to a bad-conduct discharge, confinement for 40 months, and reduction to E-l. The convening authority, pursuant to a pretrial agreement, approved this sentence but suspended confinement in excess of 24 months for [184]*184a period of 1 year. The Court of Military Review affirmed the findings of guilty and the approved sentence in a short-form decision issued on February 1, 1991.

This Court granted review of the following issue of law:

WHETHER THE MILITARY JUDGE ERRED BY ADMITTING AND CONSIDERING EVIDENCE OF UNCHARGED MISCONDUCT SIMILAR TO THE OFFENSES OF WHICH APPELLANT WAS CONVICTED.

We hold that no reversible error of law occurred in this case. See United States v. Mullens, 29 MJ 398 (CMA 1990).

Appellant pleaded guilty to several different offenses related to his duties as Special Testing Noncommissioned Officer at the Testing Standards Office, Fort Hood, Texas, between June 1,1988, and February 28, 1989. Pursuant to a pretrial agreement, he joined a stipulation of fact designated in that agreement as Appendix II. Two stipulations are contained in this record of trial, but neither is designated Appendix II. In any event, appellant acknowledged that the first stipulation of fact contained in the record and marked as prosecution exhibit 1 was the stipulation which was part of his pretrial agreement. It describes the facts surrounding the offenses to which he pleaded guilty.

Trial counsel also moved to introduce a second stipulation of fact with attached papers marked prosecution exhibit 3. It states in pertinent part:

It is hereby stipulated by and between Trial Counsel and Defense Counsel, with the express consent of the accused that the following facts are true, susceptible of proof, and admissible at trial by the United States:
On 31 October 1989 and 6 December 1989 the accused rendered sworn statements, under oath, to MPI James L. O'Neil. Prior to giving these statements, O’Neil informed the accused of his rights using DA Form 3881 (attached). The accused knowingly, willingly and voluntarily waived such rights and rendered the attached statements.
[DA Form 3881 omitted.]
I, Wayne E. Ross, Want to Make the Following Statement Under Oath:
About Feb 1988 I was assigned to 565 Supply Co. and placed on special duty to the TASO office as the special testing NCO. Around May or June 1988 I was approached by one of the soldiers being tested that if I change their ASVAB test scores they would pay me money for it. Until Jan 1989 I did several other altering of soldier’s test scores. I then left the TASO office in Feb 1989 and was reassigned to my unit, 565 Supply Co.
Q=Questions asked by Investigator Oneal.
A=Answers provided by myself.
Q: How did you change the scores on the ASVAB tests?
A: I did not change them, what happened was they would just leave them blank and I would fill in the tests for them.
Q: Who graded these tests?
A: I did.
Q: About how many ASVAB test scores have you wrongfully taken for other soldiers?
A: I don’t actually take the test for the other soldiers, but just before they take the test which comes in ten parts, I tell them to leave about five or six questions blank and I would fill in the right answers when I grade the tests.
Q: So how many tests have you done in this fashion?
A: Twenty or thirty. I’m not sure.
Q: Do you keep a list of these people?
A: No.
Q: How many people in your company (565 Supply Co) have you done this for?
A: About three or four.
Q: What are their names?
A: SGT GOODMAN, SGT LARK, SP4 WARREN.
Q: What about people from other units?
[185]*185A: I cannot remember the names of the other people.
Q: Have you ever approached people outside of the TASO office and asked them if they were interested in having their ASVAB or other Army test scores given high marks?
A: No.

(Emphasis added.)

Appellant objected to the judge’s consideration of the portion of his pretrial statement noted above in italics. He admitted that this statement was voluntary under Mil.R.Evid. 305, Manual for Courts-Martial, United States, 1984, and admissible; nonetheless, he objected to admission of the challenged portion of the statement as uncharged misconduct. Trial counsel asserted defense waiver. Defense counsel then countered that he had waived foundation objections only.

The military judge ruled on this objection as follows:

I do not believe that the accused has waived his rights to object to any entries thereon. I think this situation is distinguishable from United States v. Glazier at 26 MJ 268, [(C.M.A.1988)], and also distinguishable from United States versus DeYoung at 29 MJ 78 [(C.M.A.1989)]. In those cases, the accused was deemed to have waived his objections to the admissibility of entries in those particular stipulations by virtue of the stipulation itself where he had admitted that those particular incidents of misconduct were admissible. I don’t think the accused has done so in this particular case. Now, in my mind it remains to be seen as to whether or not that particular entry is going to be admissible, or not admissible. It may become admissible. How, at this particular junction in the case, remains to be seen.
How is it admissible, trial counsel?
TC: Sir, it would have been admissible on the merits. First of all, under [Mil.R.EvidJ 404(b)-
MJ: Well—okay. But we’re not exactly on the merits now, are we?
TC: Yes, sir, but there’s case law out there that says that the mere fact that someone pleads guilty does not preclude evidence from coming in in a Stipulation of Fact during the sentencing portion of it that would have been admissible on the merits.
MJ: Okay.

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Cite This Page — Counsel Stack

Bluebook (online)
34 M.J. 183, 1992 CMA LEXIS 81, 1992 WL 75151, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-ross-cma-1992.