United States v. Roth

52 M.J. 187, 1999 CAAF LEXIS 1276, 1999 WL 796168
CourtCourt of Appeals for the Armed Forces
DecidedSeptember 30, 1999
Docket98-0270/AR
StatusPublished
Cited by7 cases

This text of 52 M.J. 187 (United States v. Roth) 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. Roth, 52 M.J. 187, 1999 CAAF LEXIS 1276, 1999 WL 796168 (Ark. 1999).

Opinions

Chief Judge COX

delivered the opinion of the Court.

In this case, we are called upon to decide if the “military judge abused her discretion by refusing to allow appellant to offer a sentencing witness in rebuttal” to the Government’s [188]*188evidence in aggravation.1 We conclude that she did, and we reverse.

Appellant and some accomplices broke into his unit supply room located in the headquarters building at Fort Lewis, Washington. They stole 11 pairs of night vision goggles and some computer equipment. When the theft was discovered, the unit went into lock-down for a month. A high priority investigation took place targeting every member of the unit, but it was unsuccessful. About 5 weeks after the theft, the investigators got a tip that night vision goggles, which had come from the Army, were in circulation in California. The investigators tied the goggles to appellant.

Appellant had given the night vision goggles and computer equipment to some childhood friends to sell for him. Ultimately, all of the stolen items were recovered.

At a general court-martial composed of officer members, appellánt pleaded guilty to wrongful disposition of military property (2 specifications), in violation of Article 108, UCMJ, 10 USC § 908. Contrary to his pleas, he was convicted of conspiracy to sell, larceny of, and attempted sale of military property, in violation of Articles 81, 121, and 80, UCMJ, 10 USC §§ 881, 921, and 880, respectively. He was sentenced to confinement for 16 years, total forfeitures, reduction to Private E-l, and a dishonorable discharge. The convening authority approved the sentence as adjudged. The Court of Criminal Appeals affirmed the findings and sentence on October 20,1997.

The Military Judge’s Ruling

During the Government’s case on sentencing, Special Agent Barnes, an Army Criminal Investigation Command (CID) agent, testified without defense objection that the theft of night vision goggles was a very serious offense because the goggles might “fall into the wrong hands.” He went on to explain that the “wrong hands” included drug traffickers and gangs. Again, there was no objection. These were the only two comments by the government witness as to gangs.

Not content to leave this theme alone, defense counsel, on cross-examination, sought to explore the question of whether Special Agent Barnes was suggesting by his testimony that appellant was a gang member. The following ensued:

Q: Now, you’ve thrown around the word “gang” a lot, and I think Major Martin’s brought it out that you belong to about every — you’ve been — you have a lot of experience in investigating gang activity, isn’t that correct?

A: Yes, sir.

Q: Isn’t it true that your investigation revealed that Specialist Roth was not a member of any kind of gang, was he?

A: No, sir, it did reveal that.

# * *

Q: Agent Barnes, Specialist Roth was not a member of a gang involved in criminal activity that you were able to discern, isn’t that true?

A: I did discern that.

Q: That this was a gang involved in criminal activity?

A: By their self-admission.

Q: Agent Barnes, if Mr. Rosario, who is in charge of the Leahy Housing Area and has been there for 5 years, were to come up here and testify that there is no gang activity at Leahy, from his 5 years of observation and from his law enforcement background, could you be mistaken?

A: No, the Leahy Way housing authorities do not believe there is a “Leahy • Way Street Posse” and they do not believe that there is a “Village Crew.” That is true, the Leahy Way person would tell you that there is no gang.

[189]*189Following defense counsel’s cross-examination, trial counsel elicited more information from Special Agent Barnes, including the fact that appellant was a member of a gang called the “West Coast Criminals,” and he also testified that appellant attempted to sell some of the goggles to members of “The Village Crew.” There was no defense objection to this testimony, and trial counsel used it in his closing argument.

When it became appellant’s turn to present his sentencing case, defense counsel called Mr. Rosario to testify. Mr. Rosario was the manager of the Leahy Way housing area. He had been brought to Fort Lewis from Livermore, California, as a defense witness. His expected testimony was to contradict the testimony of Special Agent Barnes regarding gang activity at the Leahy Way housing area.

Tidal counsel entered an immediate objection to the witness, claiming “he’s been seated in the courtroom this entire time,” referencing the testimony of Special Agent Barnes. The following exchange then took place between the military judge and counsel in an out-of-court session:

MJ: Captain Bell, explain to me why you’re calling a witness out of the spectator section who hasn’t been sequestered, who is not a family member?

DC: I’d be glad to, Your Honor. Prior to this court-martial beginning, I submitted a witness request list to Major Martin. On that list I put Mr. Rosario and he asked, ‘Why would you be calling this individual?” And I said, “Because I’m afraid that the Government is going to present some evidence about gang activity, which was clearly not borne out by the investigation, and — ”

MJ: Explain to me why you have a witness who has not been sequestered?

DC: Because I was mislead by the Government, Your Honor. I was told affirmatively by Major Martin that he would present no evidence whatsoever on gang activity. I relied on his assertion and I did not think Mr.— I had no intention whatsoever of calling Mr. Rosario until Major Martin started hammering this so called “Leahy Gang,” when I was informed that he would not do that.

MJ: Captain Bell, you brought this up on cross-examination. You set this up. You are not going to call this witness. That is my sanction.

DC: On the record, I object, I was mislead by the Government—

MJ: The record is clear as to who raised this issue. You will not call your witness.

DC: Your Honor, may I ask how I raised this issue when it was brought out on direct—

MJ: You did it on cross-examination. You’re the one that initially broached the subject of gang activity and Specialist Roth. It was not raised by the Government.

DC: Your Honor, the Government went into great detail about Special Agent Barnes’ gang knowledge. They went on direct examination talking about Special — Special Agent Barnes’ gang education.

MJ: Captain Bell, if you will — if you review the testimony afterwards, you will see that the Government kept this in general terms and in no way related this to Specialist Roth or Liv-ermore, California. They said that the reason for the investigation was so that these night vision goggles would not fall into the wrong hands. There was absolutely no tie-in with Specialist Roth. You brought this up yourself initially on cross-examination. At that time, you should have stopped, you should have had your witness leave the courtroom. You had that witness sitting through his entire testimony. The sanction is: You will not call this witness.

The Law

Mil.R.Evid. 615, Manual for Courts-Martial, United States (1995 edition), provides the following on the exclusion of witnesses:

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Related

United States v. Beaumont
Navy-Marine Corps Court of Criminal Appeals, 2016
United States v. Rodriguez-Rivera
60 M.J. 843 (Navy-Marine Corps Court of Criminal Appeals, 2005)
United States v. Roth
57 M.J. 740 (Army Court of Criminal Appeals, 2002)
United States v. Pomarleau
57 M.J. 351 (Court of Appeals for the Armed Forces, 2002)
United States v. Steward
55 M.J. 630 (Navy-Marine Corps Court of Criminal Appeals, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
52 M.J. 187, 1999 CAAF LEXIS 1276, 1999 WL 796168, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-roth-armfor-1999.