United States v. Green

                         UNITED STATES, Appellee

                                         v.

                       Danyel D. GREEN, Sergeant
                          U.S. Army, Appellant

                                  No. 06-0520
                         Crim. App. No. 20021126

       United States Court of Appeals for the Armed Forces

                        Argued November 28, 2006

                        Decided January 26, 2007

EFFRON, C.J., delivered the opinion of the Court, in which BAKER
and ERDMANN, JJ., joined.

STUCKY and RYAN, JJ., did not participate.

                                     Counsel

For Appellant: Major Billy B. Ruhling II (argued); Colonel John
T. Phelps II, Lieutenant Colonel Kirsten V. C. Brunson,
Lieutenant Colonel Steven C. Henricks, Major Charles L.
Pritchard Jr., and Captain Sean F. Mangan (on brief).

For Appellee: Captain Adam S. Kazin (argued); Colonel John W.
Miller II, Lieutenant Colonel Michele B. Shields, Major Tami L.
Dillahunt, and Captain Edward E. Wiggers (on brief).


Military Judge:    Robert L. Swann



            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Green, No. 06-0520/AR


    Chief Judge EFFRON delivered the opinion of the Court.

    A general court-martial composed of a military judge sitting

alone convicted Appellant, pursuant to mixed pleas, of cruelty

and maltreatment (seven specifications), false official

statement, assault consummated by a battery, indecent assault

(two specifications), solicitation to commit adultery (two

specifications), and adultery (three specifications), in

violation of Articles 93, 107, 128, and 134, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. §§ 893, 907, 928, 934 (2000).

The sentence adjudged by the court-martial included a bad-

conduct discharge, confinement for thirteen months, forfeiture

of all pay and allowances, and reduction to the lowest enlisted

grade.   The convening authority approved the findings and

approved that portion of the sentence that provided for a bad-

conduct discharge, confinement for thirteen months, and

reduction to the lowest enlisted grade.   The United States Army

Court of Criminal Appeals affirmed in an unpublished opinion.

United States v. Green, No. ARMY 20021126 (A. Ct. Crim. App.

Mar. 20, 2006).

     On Appellant’s petition, we granted review of the following

issue:

     WHETHER THE MILITARY JUDGE VIOLATED APPELLANT’S
     DUE PROCESS RIGHTS WHEN HE SENTENCED HIM BASED
     UPON HIS PERSONAL RELIGIOUS BELIEFS RATHER THAN
     LEGITIMATE SENTENCING PRINCIPLES.



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United States v. Green, No. 06-0520/AR


     For the reasons set forth below, we affirm.


              I.    JUDICIAL COMMENTS DURING SENTENCING

     A court-martial has broad discretion to adjudicate the

sentence, subject to the punishment limitations set forth in the

UCMJ and the Manual for Courts-Martial, United States (MCM).

Article 56, UCMJ, 10 U.S.C. § 856 (2000); Rule for Courts-

Martial (R.C.M.) 1002.    Sentencing information is developed in

an adversarial proceeding, subject to evidentiary rules designed

for the sentencing process.       See R.C.M. 1001; United States v.

Mack, 9 M.J. 300, 319 (C.M.A. 1980); MCM, Analysis of the Rules

for Courts-Martial app. 21 at A21-70 (2005 ed.) [hereinafter

Drafters’ Analysis].    As part of the sentencing process, the

accused may make a sworn or unsworn statement.      R.C.M.

1001(c)(2).   Although an unsworn statement is not subject to

cross-examination by trial counsel or examination by the court-

martial, the prosecution may present facts in rebuttal.      R.C.M.

1001(c)(2)(C).     If a military judge erroneously permits

consideration of inadmissible evidence during sentencing, the

error is tested for prejudice.      See United States v. Hysong, 47

M.J. 126, 126 (C.A.A.F. 1997); Article 59(a), UCMJ, 10 U.S.C. §

859(a) (2000).

     The court-martial must announce the terms of the sentence

on the record.     R.C.M. 1007.   When the sentence is adjudicated



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by a court-martial panel, the president of the court-martial

reads the sentence.    See Dep’t of the Army, Pamphlet 27-9, Legal

Services, Military Judges’ Benchbook ch. 2, § IV, para. 2-5-25

(2002) [hereinafter Benchbook].     When the court-martial is

composed of a military judge sitting alone, the military judge

reads the sentence.    Id. at para. 2-4-1.

        Although the 1951 MCM authorized the court-martial to

include in the record “a brief statement of the reasons for the

sentence,” that provision was eliminated in 1969.     Compare MCM

para. 76.b.(4) (1951 ed.), with MCM para. 76.b.(4) (1969 rev.

ed.).    According to the Drafters’ Analysis to the 1969 MCM, the

provision was deleted to remove the potential for improper

command influence that might flow if court-martial panel members

felt obligated to justify the panel’s decision to a convening

authority.    See Dep’t of the Army, Pamphlet 27-2, Analysis of

Contents, Manual for Courts-Martial, United States, 1969,

Revised Edition ch. 13, para. 76.b.(4), at 13-9 (1970) (citing

ch. 13, para. 74.f.(3), at 13-4).      The Drafters’ Analysis also

noted that the 1969 change was not intended to preclude the

military judge, in a bench trial, from setting forth reasons for

the judge’s decision.    See id. at ch. 13, para. 74.f.(4), at 13-

14.   If the military judge comments on the sentence, the remarks

may be reviewed on appeal to determine whether the military




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judge relied on inadmissible matter in determining the sentence.

See United States v. Hill, 62 M.J. 271, 275 (C.A.A.F. 2006).



                II.   APPELLANT’S SENTENCING PROCEEDING

        The prosecution’s sentencing case focused on testimony from

Appellant’s victims concerning the details of the offenses and

the harm caused by his conduct.     The defense sentencing case

sought to emphasize the positive aspects of Appellant’s

character.    During the sentencing proceeding, defense counsel

provided the military judge with a number of defense exhibits

for identification, including a letter signed by Appellant’s

supervisors at a fast food establishment where Appellant held a

part-time job.    The letter, which described Appellant in very

positive terms, observed that Appellant “always talks a great

deal about his wife and four children and about his beliefs in

God.”

        Prior to formally introducing the letter into evidence,

defense counsel presented the testimony of a noncommissioned

officer to demonstrate that several of the complainants had

chosen not to make formal statements.     The witness also

testified that Appellant was a “good worker” and that he never

personally observed Appellant engage in inappropriate sexual

conduct.




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United States v. Green, No. 06-0520/AR


     On cross-examination, the witness acknowledged that

Appellant had talked “about being a Christian.”   When the trial

counsel asked the witness to describe his “feelings on that,”

the defense counsel objected on the grounds of relevance.   The

trial counsel responded that the line of questioning was

relevant because the witness would “talk about” Appellant “not

being a Christian.”   The defense counsel countered that the

questioning was “highly prejudicial” and that he did not “want

any court to consider the religious aspects of what is going on

in ----.”

     Although the trial counsel attempted to interject that he

was not addressing “the religious aspect,” the military judge

cut him off and directed his comments to defense counsel.   The

military judge observed that defense counsel had provided him

with a document -- the letter marked as a defense exhibit for

identification -- that “sort of indicates that the accused is a

good Christian, God believing person.”   After observing that

defense counsel did not disagree with his characterization of

the letter, the military judge said “but I’ll tell you what,

even good Christians can make mistakes, okay, that’s what the

church is for, so I am not going to consider that aspect of it.

Whether he’s a good Christian or he’s not a good Christian,

okay.”




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The trial counsel apparently viewed this exchange as a caution

against pursuing the subject of religion, and revised his cross-

examination to focus on the witness’s opinion of Appellant’s

ethics and integrity.

     Subsequently, defense counsel introduced into evidence the

letter from the supervisors at Appellant’s part-time civilian

job which included the comment that Appellant “always talks a

great deal about his wife and four children and about his

beliefs in God.”   Appellant made an unsworn statement in which

he apologized to his victims and his family.   He noted the high

cost of his conduct, in terms of the cost to his career, his

freedom, and his family.    He also interjected matters of

religion at several points:

     Instead of giving my matters to God and seeking
     comfort with my wife I went [sic] the people that
     I was close to, they were the people I worked
     with daily.

                           * * * *

     God has always been the center of my life but in
     my moment of distress I fell short of his glory.
     I pray for his forgiveness as I have repented and
     claimed my rightful place as his servant.

                           * * * *

     [T]here is no excuse for what I have done and I
     sincerely apologize but I pray to God that I can
     have the opportunity to take care of my family
     and make it up to them.




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     Appellant faced a maximum sentence to confinement of

twenty-five years and three months.   MCM pt. IV, paras. 17.e.,

31.e., 54.e.(1)(A), 62.e., 63.e., 105.e. (2005 ed.).    In the

quantum portion of the pretrial agreement, which the military

judge did not review prior to announcing the sentence, the

convening authority had agreed to a confinement cap of forty

months if Appellant otherwise fulfilled the terms of the

agreement.   The prosecution argued for a sentence that would

include confinement for five years.   Defense counsel argued for

a sentence limited to a punitive discharge and reduction to the

lowest enlisted grade, with no confinement in light of

Appellant’s acceptance of guilt and his otherwise “credible and

honorable service.”   The sentence announced by the military

judge included thirteen months confinement.

     Immediately prior to announcing the sentence, the military

judge addressed Appellant to explain “why I think the sentence

is appropriate for you.”   The military judge began with a

description of basic sentencing principles, including

rehabilitation, punishment, protection of society, preservation

of good order and discipline in the military, and deterrence.

See Benchbook ch. 2, § V, para. 2-5-21, § VI, para. 2-6-10.      The

military judge noted that the “weight I give any or all of these

along with the other sentencing matters in this case, rest[s]

solely within my discretion.”


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United States v. Green, No. 06-0520/AR


     The military judge then turned to the harm Appellant’s

actions caused his victims, his family, and the Army.   In

particular, the military judge noted that Appellant abused his

leadership role as a noncommissioned officer, caused his victims

mental duress, damaged the Army’s reputation, and caused the

Army financial detriment because several of Appellant’s victims

testified that they would not reenlist.

     In the course of addressing Appellant, the military judge

made the comments which are the subject of the present appeal.

After describing Appellant as “a predator” who operated “in

secret,” the military judge said:    “Some of the documents I’ve

seen describe you as God fearing, strong in your belief in God.

The last time I looked there were 10 commandments.   Apparently

one of those, which addresses your actions, you must have missed

in the reading.”

     The military judge characterized Appellant’s crimes as

betraying his family and the Army:

          Trust and confidence was placed in you. You
          abused it. This Army’s not high school, it
          is not a place for maltreating others. You
          do unto others as you would expect to be
          treated. That’s the golden rule. My job is
          now to set the matter straight. Whatever I
          do cannot make up for what the soldiers
          experienced, to include having you as a
          leader.




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United States v. Green, No. 06-0520/AR

     In his concluding remarks, the military judge told

Appellant that his actions “weren’t mistakes, these were

choices.”   He added:

            Every choice in life has a repercussion. It
            kind of reminds me of an old Charlie Daniels
            saying from a country music song. “You know
            what the problem [sic] in the world today
            is? People done gone and put their Bibles
            away. They’re living by the law of the
            jungle, not the law of the land.”


                          III.   DISCUSSION

     Appellant contends that the military judge’s comments:     (1)

reflected improper consideration of factors not relevant to

sentencing; and (2) interjected the personal religious views of

the military judge into the sentencing process, establishing an

impermissible bias.

     We review a military judge’s consideration of sentencing

factors under an abuse of discretion standard.   See United

States v. McDonald, 55 M.J. 173, 178 (C.A.A.F. 2001).      We

evaluate a claim of judicial bias by considering, in view of the

sentencing proceeding as a whole, whether a reasonable person

would doubt the court-martial’s legality, fairness, and

impartiality.   United States v. Burton, 52 M.J. 223, 226

(C.A.A.F. 2000).

     At the outset, we note that the military judge’s comments

during the prosecution’s cross-examination of a defense witness



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do not demonstrate improper consideration of religion or bias.

The military judge stated that he would not consider Appellant’s

fealty to religious principles, and the prosecution did not

pursue the subject of religion.

     A number of remarks made by the military judge during his

explanation of the sentence directly addressed the subject of

religion.   The military judge observed that that Appellant had

“[a]pparently . . . missed” one of the “10 commandments” and

that Appellant’s conduct reminded him of the lament in a country

music song that the “problem in the world today” is that people

have “put their bibles away.”

     Even if we view his references to the “golden rule” as

invoking a nonsectarian ethical concept, see Jeffrey Wattles,

The Golden Rule 172-74 (1996), the other remarks have a specific

religious connotation.   The suggestion that Appellant had

apparently overlooked one of the “10 commandments” represented a

thinly veiled reference to Appellant’s conviction for adultery,

an offense specifically denounced in the Decalogue.   Exodus

20:14; Deuteronomy 5:18.   The quotations from the country music

song expressly invoked a religious text.

     A military judge may not interject his or her personal

beliefs into the sentencing process.   See United States v.

Bakker, 925 F.2d 728, 740-41 (4th Cir. 1991).   An accused,

however, has a broad right during allocution to bring aspects of


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United States v. Green, No. 06-0520/AR

his or her personal life for consideration in extenuation or

mitigation.   See Drafters’ Analysis app. 21 at A21-69 to A21-71;

United States v. Tschip, 58 M.J. 275, 276 (C.A.A.F. 2003).       An

accused, for example, may attempt to demonstrate “repentance and

readiness for rehabilitation.”    See United States v. Warren, 13

M.J. 278, 284 (C.M.A. 1982).

       Just as an accused during sentencing may seek to depict a

positive image by describing adherence to the tenets of a civic

organization, an accused, such as the Appellant in this case,

may attempt to convince the military judge that that his or her

religious practices and beliefs demonstrate repentance and

readiness for rehabilitation.    When the accused does so, the

military judge may properly take into account the credibility

and context of the accused’s statement.   See Warren, 13 M.J. at

284.   The military judge must ensure that the evidence is

considered for the appropriate purpose, and that the military

judge does not interject his or her personal religious beliefs

into the sentencing process.    See Bakker, 925 F.2d at 740-41.

In assessing the allegations of error in the present case, we

take the following considerations into account.   First,

Appellant, who was convicted of numerous offenses, received a

sentence which included confinement for only thirteen months.

The adjudged confinement was far less than the authorized

maximum of twenty-five years, the prosecution’s request of five


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years, or the pretrial agreement cap of forty months.     In that

context, the sentence does not reflect prejudicial consideration

of extraneous factors.   Second, the subject of religion was not

first interjected into the proceedings by the military judge.

The defense initially raised the subject when counsel provided

the military judge with a document indicating that Appellant

would rely on matters of religion in the sentencing case.    The

defense subsequently interjected the subject of religion

repeatedly into the proceedings through the introduction of a

document that addressed Appellant’s religion and through

Appellant’s unsworn statement.   Third, when the prosecution

sought to pursue the question of whether Appellant thought of

himself as a “good Christian,” the military judge expressly

stated that he would not consider the Appellant’s fealty to his

religious tenets as a sentencing factor.   Fourth, defense

counsel did not object to the military judge’s remarks.    While a

defense counsel might be reluctant to object to judicial remarks

immediately prior to the announcement of the sentence, defense

counsel had no reason to be reticent in challenging the

impartiality of the military judge immediately thereafter if

counsel perceived the remarks as reflecting consideration of

improper factors or bias.   See Burton, 52 M.J. at 226.    Finally,

we note that the military judge’s sentencing remarks primarily

discussed appropriate sentencing considerations, with incidental


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references to religion.   The first two references involved

matters of common knowledge, and the third referred to the

lyrics of a popular song.

     In context, and in the absence of defense objection, the

military judge’s remarks in the present case reflect a judge

attempting to address Appellant’s sentencing case, and do not

reflect an effort to interject religion as either a sentencing

factor or a matter of bias.   Compare Bakker, 925 F.2d at 740-41

(trial judge impermissibly interjected his religious beliefs

into the proceedings).    The military judge’s comments in their

entirety evoked established sentencing principles and tied those

principles to Appellant’s actions and the effect of those

actions on his victims, his family, and the Army.    Appellant’s

unsworn statement provides a relevant context in which to view

the military judge’s comments, most of which were made in

response to the unsworn statement.     In light of the military

judge’s sentencing statement as a whole and the context of his

references to religion, we conclude that if the military judge

erred, any error was harmless.



                            IV.   DECISION

     The decision of the United States Army Court of Criminal

Appeals is affirmed.




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