United States v. Sowders

53 M.J. 542, 2000 CCA LEXIS 92, 2000 WL 519247
CourtNavy-Marine Corps Court of Criminal Appeals
DecidedApril 18, 2000
DocketNMCM 97 01873
StatusPublished
Cited by1 cases

This text of 53 M.J. 542 (United States v. Sowders) is published on Counsel Stack Legal Research, covering Navy-Marine Corps Court of Criminal 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. Sowders, 53 M.J. 542, 2000 CCA LEXIS 92, 2000 WL 519247 (N.M. 2000).

Opinion

LEO, Senior Judge:

Contrary to his pleas, the appellant was convicted at a general court-martial before members of conspiracy to commit larceny, false official statement, larceny, and obstruction of justice, in violation of Articles 81,107, 121, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 881, 907, 921, and 934. He was awarded a bad-conduct discharge, confinement for two years, total forfeitures, and reduction to pay grade E-l. The convening authority approved the sentence as adjudged.

We have examined the record of trial, the appellant’s thirteen assignments of error, and the Government’s responses. Finding merit in the three issues addressed below,1 we set aside the findings and sentence.

I. BACKGROUND

Shortly after midnight on 29 June 1996, PFC Bittinger, one of the co-conspirators, was on duty as a military policeman on board Marine Corps Recruiting Depot, San Diego. At 0135, he called the Base Provost' Marshal’s Office [PMO] to report that he had found the fi*ont door to the Recruit Exchange building unlocked while making his security rounds. He was instructed to wait outside the building until a back-up unit arrived at the scene. The appellant, who was the acting PMO watch commander at the time, went to assist him. When the appellant arrived just a few minutes later, he and PFC Bittinger conducted a security sweep inside the building for possible intruders. Upon checking the manager’s office, they found that the office safe was also unsecured. The safe had an alarm system that sounded audibly inside the manager’s office and at PMO if the safe was opened after the alarm had been set. A printout from the alarm system recorder at PMO showed that the alarm was set off at 0143, indicating the safe had been opened. About this time, the appellant called from the manager’s office and reported to the PMO desk sergeant what he had found. In addition to an investigative unit, Exchange personnel were summoned to the building. After the contents of the safe were inventoried, the Exchange personnel reported that $8,000 in cash was missing.

Approximately two months later, PFC Bittinger admitted to investigators from the Naval Criminal Investigative Service [NCIS], after failing a polygraph examination, that he had information concerning the missing money. He told them that the appellant had opened the safe and taken the money from it. He claimed that he did not say anything at first because the appellant told him to remain silent about what he had seen. He also said there was a third Marine present, LCpl Sepulveda, who had been in the manager’s office with them and had witnessed this event.

When interviewed by the investigators, LCpl Sepulveda initially denied any involvement in the theft, but eventually admitted that he was present at the scene. He stated that he saw the appellant remove the money from the safe. The appellant then gave the money to him, telling him to depart the area and hide it. He stated that the appellant contacted him later that morning and re[544]*544trieved the money. PFC Bittinger and LCpl Sepulveda both denied keeping any of the stolen money for themselves. At the time of this court-martial, both of them acknowledged that they had already been convicted for their respective roles in the larceny.

At trial, PFC Bittinger and LCpl Sepulveda testified in accordance with their earlier statements alleging that the appellant had taken the money. They further stated that they assisted him in covering up the larceny because he was a sergeant and they were simply following his orders. Testifying on his own behalf, the appellant adamantly denied taking the money and stated that he was not even aware that LCpl Sepulveda was involved until he was informed by the investigator interrogating him.

II. IMPARTIALITY OF MILITARY JUDGE

The appellant contends that he was denied a fair trial because the military judge abandoned his impartial role and became a partisan advocate for the Government. He argues that the military judge did so by questioning him in a manner intended solely to discredit him before the members.2 We agree.

A. FACTS

The appellant was called as the final witness for the defense. After lengthy questioning by counsel for both sides, the military judge began a series of his own questions. Shortly after starting, however, he was interrupted by the trial defense counsel, who objected on the grounds that the appellant was being asked to speculate about matters of which he had no personal knowledge. The military judge overruled the objection without comment and continued with his questions. The text of the questioning is provided below:

MJ: Sergeant Sowders, do you think that Mr. Morales [the assistant store manager] took the money?
ACC: I don’t know who took it, sir.
MJ: Do you think Mr. Woods [the store manager] might have taken it?
ACC: There are many things that have crossed my mind, many different ways somebody could have. I don’t know. I don’t know.
MJ: Well, we know that Private Sepulveda pled guilty to stealing the money. Why do you think he would plead guilty to stealing the money if he didn’t steal the money?
ACC: Probably because he stole it.
MJ: Okay. So, therefore, that would be your main suspect, then, in your mind?
ACC: In my mind, yes, sir.
MJ: And how would he have been able to do that?
DC: Sir, I’m going to object to speculation. I know you’re the military judge, sir, but I believe these questions are causing the witness to speculate as to possible scenarios. He knows what he did. He knows what he did only, sir.
MJ: All right. Your objection is noted for the record but it’s overruled.

Questions by the military judge continued:

MJ: So how could he have done this then?
ACC: I don’t know, sir. He’s been there longer than I have. He knows the base better than I do. He knows how that particular PMO works, honestly, better than I do.
MJ: All right. And you testified that every time you saw Bittinger, you envisioned a question mark over his head; is that right?
ACC: That’s correct, sir.
MJ: Do you think that he’s pretty naive and unsophisticated?
ACC: He portrayed himself that way.
[545]*545MJ: Okay. We know that he’s also pled guilty to helping steal this money, correct?
ACC: Yes, sir.
MJ: So do you think that perhaps he was duped into stealing this money by Lance Corporal Sepulveda?
ACC: Yes, sir.

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Related

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56 M.J. 660 (Army Court of Criminal Appeals, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
53 M.J. 542, 2000 CCA LEXIS 92, 2000 WL 519247, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-sowders-nmcca-2000.