United States v. Thomas

37 M.J. 302, 1993 CMA LEXIS 86, 1993 WL 287648
CourtUnited States Court of Military Appeals
DecidedAugust 3, 1993
DocketNo. 68,155; CMR No. 90 3316
StatusPublished
Cited by1 cases

This text of 37 M.J. 302 (United States v. Thomas) 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. Thomas, 37 M.J. 302, 1993 CMA LEXIS 86, 1993 WL 287648 (cma 1993).

Opinions

Opinion of the Court

CRAWFORD, Judge:

Appellant was tried by general court-martial before officer and enlisted members. Contrary to his’ pleas, appellant was found guilty of attempting to introduce cocaine onto a military installation, conspiracy to possess cocaine with intent to distribute, possessing cocaine with intent to distribute, and using cocaine, in violation of Articles 80, 81, and 112a, Uniform Code of Military Justice, 10 USC §§ 880, 881, and 912a, respectively. Appellant was sentenced to a bad-conduct discharge, confinement for 120 days, total forfeitures, and reduction to El. The convening authority approved the sentence, and the Court of Military Review affirmed the findings and sentence in an unpublished opinion dated [303]*303May 22, 1992. This Court granted review of the following issue:1

WHETHER THE NAVY-MARINE [CORPS] COURT OF MILITARY REVIEW HAS PROPOSED AN INCORRECT STANDARD OF REVIEW TO TEST WHETHER A PROSPECTIVE WITNESS’ TESTIMONY IS ESSENTIAL TO A FAIR TRIAL.

After consideration of the record of trial, briefs, and oral argument,2 we answer the granted issue in the affirmative.3

FACTS

The Court of Military Review found the following facts:

[T]he appellant agreed to assist one MS2 Ortiz, a military subordinate, who had local contacts in Puerto Rico, where the offenses occurred, to acquire a quantity of cocaine from Santurce, a community evidently located at a sufficient distance from the naval station to necessitate traveling there by automobile. Assistance was required because Ortiz’ own automobile was in need of repairs at the time. The appellant telephoned his wife, a civilian dependent, and procured her to drive Ortiz to Santurce, explaining to her during the telephone call the illicit purpose of the mission. She agreed to drive Ortiz to Santurce, but, for reasons of her own relating to her husband’s suspected marital infidelity, she disclosed the entire matter to a naval station security investigator in advance of their departure. While she and Ortiz were in Santurce, a reception was arranged for them at the main gate of the naval station, which resulted in the seizure of thirteen small [304]*304bags of cocaine from Ortiz upon their return.
In addition to her disclosures made prior to the drive to Santurce, Mrs. Thomas later made a written statement under oath to the Naval Investigative Service (NIS) outlining the above events and even testified about them in a relatively consistent manner at Ortiz’ Article 32 investigation. At the appellant’s trial, however, she recanted and testified that, as far as she knew and had been told by her husband, the purpose of the trip was to enable Ortiz to pick up some money in Santurce; and that only after they were already in Santurce did Ortiz mention the subject of drugs and acquire cocaine. This testimony was, of course, utterly discredited by her prior inconsistent NIS statement and Article 32 testimony, the latter of which was also admitted as substantive evidence pursuant to Military Rule of Evidence (M.R.E.) 801(d)(1)(A).

Unpub. op. at 1-2.

Concerning the Motion for Appropriate Relief requesting that MS2 Ortiz be produced to testify under a grant of testimonial immunity at appellant’s trial, the military judge found:

Petty Officer Ortiz will, if called as a witness, claim the privilege against self-incrimination. The proffer of testimony of Petty Officer Ortiz that he did not conspire with Petty Officer Thomas to possess cocaine with intent to distribute is exculpatory[;] however, other aspects of this proffer of testimony, specifically that his car broke down, that he asked Petty Officer Thomas to take him to pick up cocaine, and the fact that he learned of the cocaine during the trip, is factually ambiguous and this court feels is not clearly exculpatory of the accused. Mrs. Thomas [testified] at a prior Article 32 Investigation that her husband, MSI Thomas, asked her “to transport Petty Officer Ortiz to acquire some coke.” Subsequently, she had recanted her testimony as being false and is expected to testify at this court on the merits that her husband, Petty Officer Thomas, did not conspire with Petty Officer Ortiz as alleged on the charge sheet. Thus, Petty Officer Ortiz’s testimony, in this respect, will be cumulative and in this court’s opinion, is not so central to the accused’s case as to deny him a fair trial. Further the Government has demonstrated a strong and contravening interest in prosecuting Petty Officer Ortiz. Thus, this court finds it unnecessary to direct the appropriate convening authority to grant testimonial immunity to Petty Officer Ortiz or to abate these proceedings regarding the affected specifications.

Trial counsel noted “that the Government has a very heavy burden to meet to show that it obtains no benefit from Petty Officer Ortiz’ immunized testimony” and that “[t]he Government right now isn’t sure whether it can meet that heavy burden.” Trial counsel also stated that “the Government’s interest in these cases [appellant’s and Ortiz’] outweighs the defense’s interest in obtaining cumulative evidence.”

Trial counsel admitted during a session under Article 39(a), UCMJ, 10 USC § 839(a), that the sole source of the Government’s evidence on the conspiracy charge was the testimony of Mrs. Thomas at the investigation under Article 32, UCMJ, 10 USC § 832, regarding Ortiz. The Government argued against immunizing MS2 Ortiz for two reasons: First, because his testimony would be cumulative with the recanted testimony of Mrs. Thomas and, second, because of the “heavy burden” placed on the Government to prove an independent basis for a subsequent prosecution of a previously immunized witness.

The offer of proof by defense counsel at trial was that MS2 Ortiz would testify that

his car was broken down, that he did not know Petty Officer Thomas very well. He had worked with him for a few weeks. That he asked Petty Officer Thomas if there was any way he could get a ride. He had to go get some money in town in Santurce. Petty Officer Thomas called his wife. His wife took [MS2 Ortiz] on this trip. On this trip, [305]*305[MS2 Ortiz] made known while he was there buying the cocaine, that was really why he was there, to buy the cocaine.

Mrs. Thomas was called as a witness for the defense and testified for appellant concerning all the charged offenses. In addition to the offenses appellant was convicted of, he was also charged with two specifications of assaulting his wife. Mrs. Thomas testified in essence that, because appellant had “had an affair” with another woman resulting in a pregnancy and because of threats by her mother to have her children taken away from her if she was not back at home by Christmas, she: (1) staged the assault; (2) mixed cocaine in appellant’s drinks causing him to test positive for cocaine; and (3) made up the story that appellant told her to drive MS2 Ortiz to Santurce to buy cocaine.

DISCUSSION

In United States v. Zayas, 24 MJ 132 (CMA 1987), this Court decided that a military judge “confronted with a proffer of clearly exculpatory testimony of a witness who will invoke his privilege against self-incrimination if called to testify ... cannot sit idly by.” 24 MJ at 135. Additionally, this Court held that

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Gilbert
40 M.J. 652 (U.S. Navy-Marine Corps Court of Military Review, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
37 M.J. 302, 1993 CMA LEXIS 86, 1993 WL 287648, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-thomas-cma-1993.