BRENDA J. HILL-DUNNING, PETITIONER V. UNITED STATES OF AMERICA

   No. 88-545

   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
   Opinions below
   Jurisdiction
   Statement
   Argument
   Conclusion

                            OPINIONS BELOW

   The opinion of the Court of Military Appeals (Pet. App. 1a-13a) is
reported at 26 M.J. 260.  The opinion of the Air Force Court of
Military Review (Pet. App. 14a-17a) is unreported.

                             JURISDICTION

   The judgment of the Court of Military Appeals was entered on August
1, 1988.  The petition for a writ of certiorari was filed on September
29, 1988.  The jurisdiction of this Court is invoked under 28 U.S.C.
(Supp. IV) 1259(3).

                          QUESTION PRESENTED

   Whether, under the facts of this case, the exclusion of an expert's
ultimate opinion was harmless error.

                               STATEMENT

   Following a general court-martial at Columbus Air Force Base in
Mississippi, petitioner, a member of the United States Air Force, was
convicted on two counts of signing a false official statement and on
one count of larceny, in violation of Articles 107 and 121 of the
Uniform Code of Military Justice (UCMJ), 10 U.S.C. 907 and 921.  She
was sentenced to confinement for two years, a dishonorable discharge,
total forfeiture of pay, a fine of $10,000, and a reduction in grade.
The convening authority approved the findings and sentence.  The Air
Force Court of Military Review affirmed the findings and sentence
(Pet. App. 14a-17a).  The Court of Military Appeals affirmed (id. at
1a-13a).

   1. Petitioner divorced Wilbert Bonner on January 12, 1979 (PX 3).
The divorce was granted by the Chancery Court for Mississippi County,
Arkansas.  Ibid.  Petitioner did not inform military officials of her
divorce, however, and she continued to collect quarters and housing
allowances at the "with dependent" rate (Tr. 190).  As a result,
during the period from February 1, 1983, until October 1, 1985,
petitioner collected $9,936.77 from the government to which she was
not entitled (ibid.; PX 12).  Additionally, when applying for a loan
from the Air Force Aid Society on April 17, 1984, petitioner falsely
stated in official documents that she was still married to Wilbert
Bonner and was providing support to him (PX 13).

   In October 1985, petitioner decided to marry Steve Dunning (Tr.
267-268).  To avoid disclosing her earlier divorce, she obtained a
second divorce from the Chancery Court of Harrison County,
Mississippi, on October 1, 1985 (PX 6).  Petitioner then married Steve
Dunning on October 3 (PX 11).  On October 24, petitioner was
questioned by a special agent of the Air Force Office of Special
Investigation (OSI) concerning her marital status with Wilbert Bonner
and her receipt of monies at the "with dependent" rate (Tr. 163-165).
Petitioner thereafter executed documents with Air Force officials
wherein she stated that she had divorced Wilbert Bonner on October 1,
1985 (PX 9).

   2. At trial, petitioner conceded that she was not married to
Wilbert Bonner at the time of the charged offenses (Tr. 256).
Petitioner presented a mistake of fact defense, under which she
claimed that she unconsciously repressed the fact that she had
divorced Wilbert Bonner in 1979 (Tr. 255, 263).

   The defense called Dr. Carmen Federowich, a clinical psychiatrist,
to testify about petitioner's mental condition and her repression of
the fact that she was divorced.  Following an extensive hearing on the
admissibility of her testimony (Tr. 205-239), the trial judge allowed
Dr. Federowich to testify about petitioner's mental condition, her
repression and denial, and the effects of petitioner's histrionic
personality disorder (Tr. 237-239).  The trial judge did not allow Dr.
Federowich to offer an opinion on the question whether petitioner
actually knew whether she was married or divorced at the time the
offenses were committed (ibid.).

   3. The Air Force Court of Military Review found no clear abuse of
discretion in the trial judge's rulings under the facts of the case
and affirmed the conviction and sentence.  Pet. App. 17a.  The Court
of Military Appeals also affirmed.  Id. at 1a-13a.  It held that the
trial judge erred by not allowing the psychiatrist to express her
opinion on the ultimate issue of petitioner's mental responsibility.
Under the facts of the case, however, the Court of Military Appeals
held that the error was harmless, because the exclusion did not
prevent petitioner from fully developing a mistake of fact defense.
Id. at 6a-8a.

                               ARGUMENT

   Petitioner contends the Court of Military Appeals erred in ruling
that the exclusion of Dr. Federowich's opinion was harmless.  That
fact-bound claim does not warrant review by this Court.

   Petitioner asserts (Pet. 6-7) that the trial judge's action
violated her due process right to present favorable defense evidence.
Petitioner did not object on that basis at trial, however, and she has
therefore waived any such claim.  In any event, petitioner's claim
lacks merit under any harmless error standard.

   The Court of Military Appeals carefully analyzed the trial court's
error in accordance with Article 59(a) of the UCMJ, 10 U.S.C. 859(a),
the harmless error statute applicable to the military justice system.
/*/ The court found that the trial judge's evidentiary ruling did not
prevent petitioner from fully presenting her mistake of fact defense.
Pet. App. 8a.  In reaching that conclusion, the court relied on the
fact that Dr. Federowich was a well qualified expert;  that she ably
provided the court-martial with information concerning petitioner's
mental condition, which consisted of a histrionic personality
disorder;  that she explained the mechanisms of "denial" and
"repression";  that she delineated not only her diagnosis but also
petitioner's prior history of psychological problems;  and that she
was able to link petitioner's mental condition and the unconscious
mechanisms of "denial" and "repression." Id. at 7a-8a.  Additionally,
the court noted that petitioner testified regarding the mistake of
fact defense, and the court-martial members therefore had an
opportunity to assess her credibility.  Moreover, petitioner's
testimony, along with the testimony provided by other defense
witnesses (Tr. 303-319), allowed Dr. Federowich to link petitioner's
behavior to the mistake of fact defense.  The trial judge's
evidentiary ruling therefore did not prevent petitioner from offering
a mistake of fact defense and making use of the expert's testimony to
buttress that defense.  Finally, the prosecution introduced
overwhelming proof of petitioner's intent, including documentary proof
that petitioner had filed income tax returns from 1979 to 1984 as a
single person (PX 14D-W), and the fact that the 1979 divorce decree
recited that petitioner had personally appeared at the hearing (PX 3).
 Indeed, petitioner's own trial testimony established that she
recalled meeting with her divorce attorney in 1979 and paying him (Tr.
256, 265, 270, 283).

   Under these circumstances, the Court of Military Appeals correctly
found that the error was harmless.  Its decision is consistent with
this Court's teachings that reversal is not warranted when "errors or
defects that have little, if any, likelihood of having changed the
result of trial." Chapman v. California, 386 U.S. 18, 22 (1967).
Petitioner simply disagrees with the lower courts' resolution of that
fact-bound issue.  She does not allege any conflict among the circuits
on this point of law, and under any standard of harmless error
analysis, the error in this case did not have a material effect on the
verdict.  For these reasons, this case does not warrant review by this
Court.

                              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

   JEFFREY H. CURTIS

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

   NOVEMBER 1988

   /*/ Article 59(a), 10 U.S.C. 859(a), provides as follows:

         A finding or sentence of a court-martial may not be held
      incorrect on the ground of an error of law unless the error
      materially prejudices the substantial rights of the accused.