WILLARD W. MANN, PETITIONER V. UNITED STATES OF AMERICA

   No. 87-2020

   In the Supreme Court of the United States

   October Term, 1988

   On Petition for a Writ of Certiorari to the United States Court of
Military Appeals

   Brief for the United States in Opposition

            TABLE OF CONTENTS
   Question Presented
   Opinions below
   Jurisdiction
   Statement
   Argument
   Conclusion

                            OPINIONS BELOW

   The opinion of the Court of Military Appeals (Pet. App. 1a-11a) is
reported at 26 M.J. 1.  The opinion of the Air Force Court of Military
Review (Pet. App. 12a-22a) is reported at 21 M.J. 706.

                             JURISDICTION

   The judgment of the Court of Military Appeals was entered on April
11, 1988.  The petition for a writ of certiorari was filed on June 10,
1988.  The jurisdiction of this Court is invoked under 28 U.S.C.
(Supp. IV) 1259(3).

                          QUESTION PRESENTED

   Whether the trial judge erred in allowing the prosecution to
introduce three sexually oriented magazines into evidence during its
case-in-chief in order to prove petitioner's specific intent, an
essential element of the charged crimes, without first waiting to see
if the defense contested that element of the crime.

                               STATEMENT

   Following a general court-martial at Homestead Air Force Base in
Florida, petitioner, a member of the United States Air Force, was
convicted of sodomy and indecent acts upn a child under the age of 16,
in violation of Articles 125 and 134 of the Uniform Code of Military
Justice (UCMJ), 10 U.S.C. 925 and 934.  He was sentenced to
confinement for 25 years, a dishonorable discharge, and ancillary
punishments.  The convening authority approved the findings and
sentence.  The Air Force Court of Military Review affirmed the
findings and sentence (Pet. App. 12a-22a).  The Court of Military
Appeals affirmed (id. at 1a-11a).

   1. Petitioner was convicted of three specifications of committing
indecent acts upon his nine-year-old daughter Amy, with the specific
intent to arouse his sexual desires, and one specification of sodomy
upon Amy.  /1/ The crimes occurred in the family home while petitioner
was stationed at the Homestead air base.

   The primary evidence against petitioner consisted of Amy's
testimony.  She testified that petitioner had first molested her some
years beforehand when the family was living in Alaska (Tr. 75-79), and
that he continued to do so after they moved to Florida (Tr. 79-81).
She said she did not tell anyone about the incidents because
petitioner had threatened to beat her if she did (Tr. 81-82).  The
molestation consisted of petitioner's touching the area between Amy's
legs and inserting his finger into her vagina (Tr. 76, 79-80).  She
knew his finger was inside because she could feel it move (Tr. 76,
80).

   After the family moved into government quarters on the Homestead
base in April 1983, petitioner continued to molest Amy and to threaten
her with a beating if she told anyone about it the incidents (Tr.
83-84, 89, 95, 96).  These episodes usually occurred on Thursday
nights, when Amy's mother was attending "Weight Watchers" meetings and
the other children were playing elsewhere (Tr. 84).  On one of those
occasions, petitioner placed his tongue inside Amy's vagina and moved
it around (Tr. 85).  On another occasion, petitioner applied vaseline
to an oral thermometer and inserted it into her vagina (Tr. 87-88).
When Amy told petitioner that it hurt, petitioner told her to be quiet
or he would "stick a needle" into her (Tr. 89).  Amy further testified
that on another occasion, again on a Thursday night when her mother
was away, petitioner used his socks to tie Amy to a wooden ladder-back
chair, and then tipped it against the bed in his bedroom, so that she
was facing the ceiling (Tr. 89-92).  He then removed her pants and
underwear and attempted to insert a rubber device into her vagina (Tr.
93-94).  When Amy made up an excuse about having to use the bathroom,
petitioner let her go.  She went to the bathroom and locked the door
behind her (Tr. 94).  Amy later identified a motorized artificial
penis that petitioner kept in his toolbox as the rubber device
petitioner had used, and she testified that it was moving when he
attempted to insert it into her vagina (Tr. 94-95, 155, 179;  PX2).
She did not tell anyone about those events until after her parents had
separated and she was living with her mother and siblings in
California (Tr. 97, 1561-157).  /2/

   2. Before trial began, the prosecution moved to introduce as part
of its case-in-chief three magazines (PXs 3-5) /3/ that petitioner
kept in his toolbox along with the artificial penis and a jar of
vaseline (Tr. 28, 37, 39, 43).  /4/ The defense objected on three
grounds:  the magazines were not relevant;  they were being offered
simply to show that petitioner was a man of bad character;  and they
were unduly prejudicial (Tr. 28-29;  see Tr. 41).  The trial judge
admitted the magazines, finding them to be relevant on the issue of
petitioner's intent to arouse or gratify his sexual desires, which was
an essential element of the charged indecent act offenses (Tr. 42-43).

   Petitioner pleaded not guilty to all the charges and denied that
the offenses occurred (Tr. 9, 174-178).  He admitted owning the
artificial penis (PX 2), but he claimed that he had purchased it in
Alaska as a "gag gift" for a friend and later was too embarrassed to
give it to her (Tr. 179).  He could not explain why he had kept it,
however (Tr. 205-206).  He also admitted owning the magazines and
keeping them where they were found in his toolbox.  According to
petitioner, he purchased the magazine Show Me (PX 3) in Alaska for the
purpose of using it to answer the children's questions about sex, but
never used it because it was too "explicit" (Tr. 180).  /5/ Petitioner
testified that he purchased the other two magazines (PXs 4, 5) in
California and kept them for his own entertainment (Tr. 181, 210-211).
 He said that his wife and children were confused or lying (Tr. 192,
204), but he agreed that they had much to lose if he was convicted,
and he could not think of a reason why they would lie (Tr. 197, 201).

   In his final instructions to the court-martial panel, the trial
judge told the panel members that they could consider the magazines
only on the issue whether petitioner entertained the specific intent
necessary for the indecent act crimes (Tr. 264).

                               ARGUMENT

   Petitioner's claim is quite narrow.  He does not challenge the
Court of Military Appeals' conclusion that engaging in indecent acts
with a child under 16 is a specific intent crime, requiring the
prosecution to prove beyond a reasonable doubt that he committed the
acts with the intent to arouse, appeal to, or gratify his lust or
passions or sexual desires.  Pet. App. 5a.  Nor does he deny that the
magazines were probative of that element of the offense.  Finally,
petitioner does not challenge the unanimous finding of the military
courts that the probative value of the magazines outweighed their
potential prejudicial effect.  Id. at 6a-7a, 18a;  Tr. 42-43.
Instead, petitioner claims that the magazines were not admissible
under Mil. R. Evid. 404(b) /6/ because his complete denial that he
committed the charged indecent acts did not place his intent in issue
in this case.  The trial judge therefore erred, according to
petitioner, by admitting the magazines before the defense had
presented its case.  Petitioner did not assert that objection at
trial, however, and therefore has waived his claim.  In addition,
unless the trial court's decision to admit the magazines was erroneous
on the merits, the timing of its decision is immaterial.  Petitioner,
however, has not challenged the merits of the trial court's decision.
In any event, petitioner's claim is unpersuasive.

   1. As a general rule, any element of a crime that the prosecution
must prove beyond a reasonable doubt is a material issue in the case
unless the defendant pleads guilty or affirmatively removes that
element from consideration by the trier of fact -- for example, by
stipulating that it need not be proved by the prosecution.  "A simple
plea of not guilty." like the one petitioner entered, "puts the
prosecution to its proof as to all elements of the crime charged."
Mathews v. United States, No. 86-6109 (Feb. 24, 1988), slip op. 6.
Because the indecent act offenses with which petitioner was charged
are specific intent crimes, petitioner's not guilty plea put the
government to its burden of proof as to his intent, the sole issue to
which the magazines related.  The trial judge therefore acted within
his broad discretion in admitting the magazines, because they were
relevant to an issue in the case.

   Petitioner contends (Pet. 6) that his not guilty plea did not truly
put his intent in issue, because the charged indecent acts "speak for
themselves," i.e., the finding that he committed the charged acts
would inevitably lead to the conclusion that he did so with the
requisite intent.  Petitioner maintains that the prosecution should be
forbidden in any such case from introducing other acts evidence before
the accused has presented his defense.

   There is no good reason to adopt the broad per se rule that
petitioner urges.  First, petitioner's submission finds no support in
the text of Mil. R. Evid. 404(b).  Rule 404(b) lists the situations in
which other acts evidence may be admitted.  It does not require that a
trial judge wait until the defense has completed its case before
ruling on the admissibility of evidence offered by the prosecution.
The timing of such decisions has historically been left to the broad
discretion of trial courts.  As this Court recently observed in
connection with Fed. R. Evid. 404(b), "(t)he trial court has
traditionally exercised the broadest sort of discretion in controlling
the order of proof at trial, and we see nothing in the Rules of
Evidence that would change this practice." Huddleston v. United
States, No. 87-6 (May 2, 1988), slip op. 9.

   Petitioner's suggestion is also unsound as a policy matter.  The
probability (or even the likelihood) that the trier of fact will infer
intent simply from the government's evidence that the defendant
committed the charged acts does not mean that the trier of fact will
necessarily draw that inference, or that the prosecution should be
limited to relying on such an inference to meet its burden of proof.
Although an inference of intent would satisfy the prosecution's burden
as a matter of due process (Rose v. Clark, No. 84-1974 (July 2, 1986),
slip op. 10), the constitutional standard for sufficiency of the
evidence should not be used to define the limits of the government's
ability to prove its case.  The defendant is adequately protected from
undue prejudice by the four safeguards identified in Huddleston:  the
Rule 402 requirement that the evidence be relevant;  the Rule 404(b)
requirement that the evidence be admitted for a proper purpose;  the
balancing of the probative value of the evidence against its potential
for undue prejudice required by Rule 403;  and the requirement in Rule
105 that upon request the trial judge must instruct the trier of fact
about the limited purposes for which the evidence may be considered.
Huddleston v. United States, slip op. 10-11.  /7/ The defendant
therefore should not be entitled unilaterally to force the prosecution
to forgo the use of otherwise probative evidence and to rely instead
upon an inference that may or may not be drawn by the trier of fact.

   For these reasons, several courts of appeals have ruled that when
the defendant pleads not guilty to a crime with a specific intent
element, the prosecution may introduce other acts evidence during its
case-in-chief to prove his intent, even if the defendant does not
contest the intent element of the charged crime.  United States v.
Burkett, 821 F.2d 1306, 1309 (8th Cir. 1987);  United States v.
Henthorn, 815 F.2d 304, 308 (5th Cir. 1987);  United States v.
Townsend, 796 F.2d 158, 161-162 (6th Cir. 1986);  United States v.
Nahoom, 791 F.2d 841, 845 (11th Cir. 1986);  United States v. Liefer,
778 F.2d 1236, 1242-1243 (7th Cir. 1985);  United States v. Franklin,
704 F.2d 1183, 1188 (10th Cir.), cert. denied, 464 U.S. 845 (1983);
United States v. Buchanan, 633 F.2d 423, 426 (5th Cir. 1980), cert.
denied, 451 U.S. 912 (1981);  cf. United States v. Feldman, 788 F.2d
544, 557 (9th Cir. 1986) (evidence used to prove the defendant's
motive).

   Petitioner claims that the decision below conflicts with dictum in
United States v. Fearns, 501 F.2d 486 (7th Cir. 1974), to the effect
that the trial judge should wait until the defense has presented its
case in order to see whether it contests intent before allowing the
prosecution to introduce other acts evidence.  That claim lacks merit.
 Subsequent Seventh Circuit decisions have limited the dictum in
Fearns (which in any event was merely a suggestion, not a directive)
to general intent crimes.  Where the crime has specific intent as a
separate element, the rule in the Seventh Circuit is that the
defendant's not guilty plea places his intent in issue for purposes of
Rule 404(b).  /8/ The Second Circuit decision on which petitioner
relies, United States v. Leonard, 524 F.2d 1076 (1975), cert. denied,
425 U.S. 958 (1976), upheld the admission of other acts evidence
during the prosecution's case-in-chief, and did not adopt the rule
that petitioner urges.  524 F.2d at 1091-1092.  /9/ Accordingly, there
is no conflict warranting this Court's review.  /10/

   2. Finally, the admission of the magazines did not prejudice
petitioner's substantial rights.  Art. 59(a), UCMJ, 10 U.S.C. 859(a);
Mil. R. Evid. 103(a).  /11/ The evidence against petitioner apart from
the magazines amply proved that he committed the indecent acts, as the
Court of Military Appeals noted (Pet. App. 9a), and the inference that
he did so with the requisite intent was "overpowering." Rose v. Clark,
slip op. 10.  Even petitioner candidly admits (Pet. 6) that, if the
panel members found that he committed those acts, they would also
necessarily have found that he did so intentionally.  Under these
circumstances, any error in admitting the three magazines could not
have contributed significantly to the verdict.  See Kotteakos v.
United States, 328 U.S. 750, 764 (1946).  /12/

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   JOE R. LAMPORT

      Col., OJAG, USAF

   ROBERT E. GIOVAGNONI

      Lt. Col., OJAG, USAF

   MARC VAN NUYS

      Capt., OJAG, USAF Appellate Government Counsel Government Trial
      and Appellate Division

   JULY 1988

   /1/ Petitioner was acquitted of a specification alleging indecent
acts against his other daughter, Mary, and a specification alleging an
assault upon his wife.

   /2/ A subsequent physical examination revealed scarring in Amy's
posterior forchette (the area where tissues meet at the rear of the
vaginal opening) that was consistent with the sexual abuse she
described (Tr. 170-171;  AX 7).

   /3/ Prosecution Exhibit was entitled Show Me, a self-professed sex
education manual for children;  Prosecution Exhibit 4 was entitled
Young Snatch;  and Prosecution Exhibit 5 was entitled Tight Twats.
The court of military review described them as follows (Pet. App.
17a):

         The first of the magazines offered by the government in this
      case was labeled as a sex education manual and, as found by the
      military judge:

         It depicts people from birth to adulthood, young children
      nude of opposite sex together not in suggestive poses, a young
      boy holding an erect penis, a father naked playing with his
      youngish naked daughter, a young boy with an erection touching
      the small breasts of a young but older female, and a young girl
      fondling the penis of a younger male, and et cetera.

         As described by the military judge, the manual contains
      approximately 140 pages of photographs of naked children and
      adults.  In some poses, the adult models are engaging in sexual
      activities while the children are apparently watching.  The
      other two magazines "depict young ladies having reached puberty
      in various poses with at times sexual aids, some nonelectric,
      other apparently of the electric type.  Most of these young
      girls appear developed, with breast development and pubic hair.
      None appear to be non-teenagers." This Court would further note
      that in most of the photographs, the young ladies are either
      using a sexual device, or have one or more fingers inserted in
      their vaginas.

   /4/ The artificial penis and jar of vaseline were separately
admitted into evidence without defense objection (Tr. 27;  PX 2).

   /5/ Petitioner's wife testified that she had never seen the book
prior to finding it in the toolbox, nor had she and petitioner ever
discussed using Show Me to answer the children's questions about sex
(Tr. 155).

   /6/ Mil. R. Evid. 404(b), which was taken from and is substantially
similar to Fed. R. Evid. 404(b), provides as follows:

         Other crimes, wrongs, or acts.  Evidence of other crimes,
      wrongs or acts is not admissible to prove the character of a
      person in order to show that the person acted in conformity
      therewith.  It may, however, be admissible for other purposes,
      such as proof of motive, opportunity, intent, preparation, plan,
      knowledge, identity, or absence of mistake or accident.

   /7/ The provisions of Mil. R. Evid. 105, 402, and 403 are not
materially different from their counterparts in the Federal Rules of
Evidence.

   /8/ United States v. Brantley, 786 F.2d 1322, 1329 (7th Cir.),
cert. denied, 477 U.S. 908 (1986);  United States v. Liefer, 778 F.2d
at 1242-1243;  United States v. Chaimson, 760 F.2d 798, 804-806 (7th
Cir. 1985);  United States v. Shackleford, 738 F.2d 776, 781-782 (7th
Cir. 1984);  United States v. Weidman, 572 F.2d 1199, 1202 (7th Cir.),
cert. denied, 439 U.S. 821 (1978);  United States v. Juarez, 561 F.2d
65, 73 (7th Cir. 1977).

   /9/ Other Second Circuit decisions have indicated that the
admission of other act evidence to prove intent may be erroneous when
there is an "'unequivocal concession of the element by the defendant'"
(United States v. Peterson, 808 F.2d 969, 974 (1987) (citation
omitted)), or when the defense "express(es) a decision not to dispute
that issue with sufficient clarity that the trial court will be
justified (a) in sustaining objection to any cross-examination or jury
argument that seeks to raise the issue and (b) in charging the jury
that if they find all the other elements established beyond a
reasonable doubt, they can resolve the issue against the defendant
because it is not disputed." United States v. Figueroa, 618 F.2d 934,
942 (1980).  Petitioner has not satisfied that standard, however.  See
Tr. 259, 261, 264, 265 (panel instructed, without defense objection,
on the need to find petitioner's intent).

   /10/ People v. Kelley, 66 Cal.2d 232, 424 P.2d 947, 57 Cal. Rptr.
363 (1967), cited by petitioner (Pet. 6), is inapposite, since it
involved a matter of state, not federal, evidence law.  Moreover, the
evidence was ordered excluded in that case in part because it involved
acts that were too dissimilar to and remote from the ones charged
against the defendant.  66 Cal.2d at 246-247, 424 P.2d at 957, 57 Cal.
Rptr. at 373.

   /11/ Article 59(a) and Rule 103(a) preclude reversal of a
conviction based on errors that did not materially prejudice the
defendant's substantial rights.  A similar standard is applied in the
federal courts.  Fed. R. Crim. P. 52(a).  Absent an error of
constitutional dimension, the harmless error determination in a case
like this one should be governed by military law.  Cf. Chapman v.
California, 386 U.S. 18, 21 (1967) ("The application of a state
harmless-error rule is, of course, a state question where it involves
only errors of state procedure or state law.").

   /12/ The fact that petitioner was convicted of the crimes against
his daughter Amy, but was acquitted of the alleged indecent act
against his other daughter, demonstrates that the members based their
findings on Amy's testimony, and not on any belief that petitioner was
simply a man of bad character because he owned the magazines.
Moreover, Amy's testimony was clear, consistent, and unwavering.  She
described the alleged incidents in great detail, and her testimony was
corroborated by the medical evidence and by petitioner's admitted
possession of the artificial penis identified by Amy as the one that
he had used on her.