UNITED STATES, Appellee 

v. 

Douglas L. SAFERITE, Senior Airman 

U.S. Air Force, Appellant 

No. 03-0271 

Crim. App. No. 34378 

United States Court of Appeals for the Armed Forces 

Argued October 22, 2003 

Decided March 3, 2004 

GIERKE, J., delivered the opinion of the Court, in which 

CRAWFORD, C.J., EFFRON, BAKER, and ERDMANN, JJ., joined. 

Counsel 

For Appellant: Captain Jennifer K. Martwick (argued); Colonel 

Beverly B. Knott, and Major Terry L. McElyea (on brief). 

For Appellee: Major Shannon J. Kennedy (argued); Colonel 

LeEllen Coacher (on brief); Lieutenant Colonel Robert V. Combs

and Lieutenant Colonel Lance B. Sigmon. 

Military Judge: Rodger A. Drew, Jr. 

This opinion is subject to editorial correction before final publication. 
United States v. Saferite, No. 03-0271/AF 

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Judge GIERKE delivered the opinion of the Court. 

 A general court-martial composed of officer members 

convicted Appellant, contrary to his pleas, of attempting to 

sell military property (three specifications), selling military 

property (eight specifications), and larceny of military 

property (12 specifications), in violation of Articles 80, 108, 

and 121, Uniform Code of Military Justice, 10 U.S.C. §§ 880, 

908, and 921 (2000), respectively. The adjudged and approved 

sentence provides for a dishonorable discharge, confinement for 

six years, a fine of $14,565.00 and to be further confined until 

the fine is paid but not for more than one year, and a reduction 

to the grade of E-1, airman basic. The Court of Criminal 

Appeals affirmed the findings and sentence in an unpublished 

opinion. United States v. Saferite, ACM 34378 (A.F. Ct. Crim. 

App. January 10, 2003). 

 This Court granted review of the following issue: 

WHETHER THE MILITARY JUDGE ERRED IN ADMITTING PROSECUTION 

EXHIBITS 141 AND 142 AS EVIDENCE IN SENTENCING TO SHOW THAT 

APPELLANT’S WIFE MAY HAVE BEEN AN ACCESSORY TO HIS ESCAPE 

FROM PRETRIAL CONFINEMENT. 

For the reasons set out below, we find that the military judge 

erred in admitting these two exhibits, but conclude that this 

error was harmless and affirm. 

Factual Background

 The facts underlying Appellant’s conviction were summarized 

as follows by the Court of Criminal Appeals: 
United States v. Saferite, No. 03-0271/AF 

3

 In the summer of 1999, the appellant was assigned 

to the Network Control Center at Spangdahlem [Air 

Base, where appellant was] responsible for computer 

systems used for communications. He planned to 

separate from the Air Force in September 1999, and had 

a job awaiting him in Germany. He was also engaged to 

Isabelle Scholzen, a citizen of Luxembourg, who was 

expecting their child in December 1999. 

 From about July to September 1999, the appellant 

stole large quantities of expensive computer equipment 

and electronic components from his duty section, and 

sold them over the Internet through a popular auction 

site. On the night before he was scheduled to outprocess from the Air Force, he stole processors from 

the eight computers handling the installation’s 

unclassified e-mail. He was careful to take only 

three of the four processors from each machine, so the 

system would continue to operate even though its 

capabilities were greatly reduced. Nonetheless, 

technicians soon discovered the missing processors, 

and the appellant was apprehended before his 

separation from active duty. A search of his rented 

car and his girlfriend’s home revealed more stolen 

government property, and ultimately led investigators 

to records of his sales of government property over 

the Internet. The total loss to the United States 

exceeded $100,000.00 

 The appellant was placed in pretrial confinement 

on 2 October 1999. Air Force authorities allowed him 

to marry Isabelle Scholzen while in confinement, and 

four days later she gave birth to their child. 

Id. at 2. 

 During Appellant’s trial, he escaped from pretrial 

confinement.∗

 He was convicted and sentenced in absentia. 

 

∗ Appellant was confined at the military facility in Mannheim, 

Germany, but he was taken under guard to Spangdahlem Air Base to 

consult with his counsel and participate in trial proceedings. 

He was being held overnight in a billeting facility at 

Spangdahlem Air Base when he escaped from his guards. 
United States v. Saferite, No. 03-0271/AF 

4

 During the sentencing proceedings, defense counsel 

presented a written unsworn statement from Appellant’s wife, Ms. 

Scholzen. In the statement, she gave her opinion of the 

Appellant as a caring father and supportive spouse. She 

described in detail her relationship with Appellant including 

how she met him, how he convinced her to keep their baby when 

she unexpectedly became pregnant, and how and why they got 

married even while Appellant was in pretrial confinement. She 

described Appellant’s support for her during a challenging 

pregnancy and his happiness when their baby was born. 

Repeatedly she commented on Appellant’s desire to be a good 

husband and father and her need for and dependence on Appellant. 

She professed her love for Appellant and described how much they 

missed each other. She ended her statement with a passionate 

plea for compassion for Appellant. 

 In rebuttal, trial counsel offered two items of documentary 

evidence in an attempt to attack the credibility of Ms. 

Scholzen. Trial counsel asserted that these two documents were 

evidence of bias by Ms. Scholzen because they “tend to establish 

that circumstantially” Ms. Scholzen “was materially involved in 

the escape of the accused from pretrial confinement on the 2d of 

March 2000.” Prosecution Exhibit 141 was a redacted sworn 

statement showing that Appellant, while in pretrial confinement, 

had talked to Ms. Scholzen on the telephone on the evening of 
United States v. Saferite, No. 03-0271/AF 

5

February 29, 2000. Prosecution Exhibit 142 was another sworn 

statement showing that approximately 40 minutes after Appellant 

escaped from custody, Ms. Scholzen was stopped by military 

authorities in the middle of the night as she was driving out of 

Spangdahlem Air Base at a high rate of speed. Appellant was not 

in his wife’s vehicle and his location was not established. 

Prosecution Exhibit 142 further revealed that Ms. Scholzen told 

the German police at the scene that she went to Spangdahlem to 

talk to her husband but was unable to locate him. 

 Trial defense counsel objected to both of these documents 

and argued they were not relevant and were unduly prejudicial. 

The military judge admitted Prosecution Exhibits 141 and 142 

over defense objection, ruling that the evidence was relevant to 

show bias, in that it tended to show that Ms. Scholzen was 

willing “to engage in criminal activity in order to support her 

husband.” The military judge weighed the danger of unfair 

prejudice against the probative value and concluded the evidence 

was not unfairly prejudicial “because it’s not [Appellant] we’re 

talking about here, it’s his wife.” The military judge ruled 

that the documents, with further redaction of extraneous 

material, were admissible extrinsic evidence under Military Rule 

of Evidence 608(c) [hereinafter M.R.E.]. 

 In his sentencing instructions, the military judge 

cautioned the members that they must “bear in mind that the 
United States v. Saferite, No. 03-0271/AF 

6

accused is to be sentenced only for the offenses of which he has 

been found guilty.” He further instructed the members that they 

were permitted to consider Appellant’s absence from the courtmartial “in assessing his military record,” but he cautioned 

them, 

[R]emember that if he is to be punished for that 

absence, it will be in a different forum, on a future 

date. The function of this court is to punish the 

accused only for the offenses of which he has been 

found guilty by this court. 

 During arguments on the sentence, trial counsel attacked 

the testimony of Ms. Scholzen. First, he argued that “She’s not 

entirely uninvolved with this entire situation.” He asserted 

that she was aware of Appellant’s making big money by auctioning 

items on the Internet. Second, he argued that the evidence 

suggested that “there was some coordination, some communication, 

some collusion there between the two of them about his escape 

from confinement.” Trial counsel assured the members that the 

evidence was not presented to “beat up” Ms. Scholzen, but “as a 

form of bias.” He concluded this portion of his argument by 

exhorting the members to consider Ms. Scholzen’s willingness to 

help Appellant escape from confinement when they read her 

statement. 

 Addressing the present issue, the Court of Criminal Appeals 

held that the military judge did not abuse his discretion in 

admitting Prosecution Exhibits 141 and 142. The court stated 
United States v. Saferite, No. 03-0271/AF 

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complete agreement with the reasoning of the military judge that 

these documents tend to show bias of Appellant’s wife because of 

her willingness to engage in criminal activity to support 

Appellant. Saferite, ACM 34378 at 3-4. 

 Before this Court, Appellant asserts that Prosecution 

Exhibits 141 and 142 were not proper rebuttal evidence because 

they did not “explain, repel, counteract or disprove” anything 

in Ms. Scholzen’s letter. He asserts that the evidence did not 

demonstrate any “bias, prejudice or any motive to misrepresent” 

on the part of Ms. Scholzen, because the allegation of 

involvement in her husband’s escape from confinement does not 

make her feelings about her husband and her perception of his 

qualities less true. Appellant also argues that the evidence 

was unduly prejudicial because it allowed the prosecution to 

refer to uncharged misconduct in argument, i.e., that Appellant 

conspired with his wife to escape and was the type of person who 

would involve his wife in his criminal activities, without a 

proper cautionary instruction from the military judge regarding 

the limited purpose for which the evidence was received. 

 The Government argues that the military judge did not abuse 

his discretion by admitting the evidence. It argues that a 

declarant’s bias is always relevant, that trial counsel limited 

his use of the evidence to focus on bias, and that the military 

judge cautioned the members that they could punish Appellant 
United States v. Saferite, No. 03-0271/AF 

8

only for the offenses of which he was found guilty. The 

Government argues that the evidence rebutted Ms. Scholzen’s 

characterization of Appellant as a devoted “family man” by 

showing that he was “willing to involve his wife in a criminal 

enterprise” and “willing to ‘orphan’ his offspring by risking 

both of their parents’ freedom.” Finally, the Government argues 

that even though the members were already aware that Appellant 

was a deserter, they sentenced him to confinement for six years 

instead of 16 years as recommended by the trial counsel, 

indicating that they were not unduly inflamed by the evidence at 

issue. 

Discussion

“The Military Rules of Evidence are applicable to 

sentencing . . . thus providing procedural safeguards to ensure 

the reliability of evidence admitted during sentencing.” United 

States v. McDonald, 55 M.J. 173, 176 (C.A.A.F. 2001); Manual for 

Courts-Martial, United States (2002 ed.), Analysis of the 

Military Rules of Evidence A21-69. The military judge may 

exercise discretion to relax the evidentiary rules for the 

defense to present sentencing evidence. M.R.E. 1101(c); Rule 

for Courts-Martial 1001(c)(3). This relaxation of evidentiary 

rules “‘goes more to the question of whether the evidence is 

authentic and reliable’” and “otherwise inadmissible evidence 

still is not admitted at sentencing.” United States v. Boone, 
United States v. Saferite, No. 03-0271/AF 

9

49 M.J. 187, 198 n.14 (C.A.A.F. 1998)(quoting David A. 

Schlueter, Military Criminal Justice: Practice and Procedure § 

16-4(B) at 721 (4th ed. 1996)). 

During sentencing, as at every other moment of trial 

testimony, the credibility of a witness is an omnipresent issue. 

Each witness’s credibility determines the authority of the 

testimony. Section VI of the Military Rules of Evidence is 

entitled “Witnesses,” but easily could be viewed as “Credibility 

of Witnesses” as the whole section focuses on technical 

evidentiary rules to bolster or to attack the credibility of 

testimony. 

 M.R.E. 608 is a key evidentiary rule that covers several 

methods to bolster or attack the credibility of a witness. 

These methods include opinion and reputation evidence as to the 

character of a witness for truthfulness and questions regarding 

specific instances of conduct that may be relevant to 

credibility. Important to the present case is M.R.E. 608(c), 

which states: “Evidence of bias. Bias, prejudice, or any motive 

to misrepresent may be shown to impeach the witness either by 

examination of the witness or by evidence otherwise adduced.” 

Evidence of bias can be powerful impeachment. Davis v. 

Alaska, 415 U.S. 308 (1974). The Supreme Court has observed 

that “[p]roof of bias is almost always relevant.” United States 

v. Abel, 469 U.S. 45, 52 (1984). Although extrinsic evidence of 
United States v. Saferite, No. 03-0271/AF 

10

specific acts of misconduct may not be used to prove a witness’s 

general character for truthfulness, it may be used to impeach a 

witness by showing bias. United States v. Hunter, 21 M.J. 240, 

242 (C.M.A. 1986). 

 Additionally, we are mindful that evidentiary rules are not 

applied in a factual vacuum. The context in which evidence is 

offered is often determinative of its admissibility. In the 

present case, as the prosecution offered Prosecution Exhibits 

141 and 142 to rebut Defense Exhibit C, the admissibility of 

rebuttal evidence is at issue. This Court has clearly stated 

the legal function of rebuttal evidence: "It is . . . to 

explain, repel, counteract or disprove the evidence introduced 

by the opposing party." United States v. Banks, 36 M.J. 150, 

166 (C.M.A. 1992)(quoting United States v. Shaw, 9 C.M.A. 267, 

271, 26 C.M.R. 47, 51 (1958)(Ferguson, J., dissenting)). “The 

scope of rebuttal is defined by evidence introduced by the other 

party.” Id. at 166. 

 Rebuttal evidence, like all other evidence, may be excluded 

pursuant to M.R.E. 403 if its probative value is substantially 

outweighed by the danger of unfair prejudice. United States v. 

Hursey, 55 M.J. 34, 36 (C.A.A.F. 2001). M.R.E. 403 applies to 

sentencing evidence. United States v. Rust, 41 M.J. 472, 478 

(C.A.A.F. 1995). 
United States v. Saferite, No. 03-0271/AF 

11

We review a military judge’s evidentiary rulings for abuse 

of discretion. United States v. Sullivan, 42 M.J. 360, 363 

(C.A.A.F. 1995). When the military judge conducts a proper 

balancing test, we will not overturn the ruling to admit the 

evidence unless there is a “clear abuse of discretion.” United 

States v. Ruppel, 49 M.J. 247, 250 (C.A.A.F. 1998). 

 We hold that the military judge clearly abused his 

discretion. While the evidence was logically relevant to show 

Ms. Scholzen’s bias in favor of Appellant, its probative value 

was substantially outweighed by the danger of unfair prejudice. 

 The probative value was minimal. The thrust of Ms. 

Scholzen’s statement was to present her personal opinion that 

Appellant was a good father and husband. Her poignant plea 

professed her love for Appellant, emotional need for his 

support, and loneliness during his absence. The content and 

tone of Ms. Scholzen’s statement convincingly showed her bias as 

the wife of Appellant. It was clear that her statement 

presented her view of Appellant through her eyes as his wife. 

Her detailed explanation of her marriage to Appellant while he 

was in pretrial confinement spoke volumes about her commitment 

to him and clear bias for him. 

 In this context, evidence of her possible complicity in 

Appellant’s escape added little to establish her bias in her 
United States v. Saferite, No. 03-0271/AF 

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statement. At best, it was merely cumulative on the issue of 

her bias toward Appellant. 

On the other hand, the danger of unfair prejudice was 

substantial. Rather than show bias on the part of Ms. Scholzen, 

the evidence tended merely to allege uncharged misconduct by 

Appellant. If the members believed the theory advanced by the 

prosecution, then Appellant was guilty of conspiring with his 

wife and involving her in the criminal conduct of his escape. 

First, we view the factual evidence of this theory as tenuous at 

best. The circumstances of the authorities stopping Ms. 

Scholzen off base early in the morning did not establish her 

involvement in Appellant’s escape at his behest. Second, 

notwithstanding the factual deficiency to link Ms. Scholzen to 

Appellant’s escape, trial counsel focused his argument on the 

uncharged misconduct. Trial counsel did ask the members to find 

“a form of bias” from the willingness of Ms. Scholzen to help 

Appellant escape. But the focus of his argument was on the 

uncharged misconduct of Appellant’s conspiring with his wife to 

assist him in his escape as reflected in trial counsel’s 

statement, “We suggest to you that there was some coordination, 

some communication, some collusion there between the two of them 

about his escape from confinement.” 

 Although we identify this danger of unfair prejudice, we 

further hold that the error was harmless under the particular 
United States v. Saferite, No. 03-0271/AF 

13

facts of this case. Evidence of Appellant’s escape was already 

before the members. Appellant was tried in absentia. The 

military judge carefully instructed the members to sentence 

Appellant only for the offenses of which he was convicted. He 

cautioned the members that any punishment arising from 

Appellant’s absence “will be in a different forum, on a future 

date.” 

 The record reflects that the members followed the military 

judge’s instruction. The maximum period of confinement was 230 

years and the trial counsel asked the members to impose 

confinement for 16 years. However, the members imposed 

confinement for only six years. Thus, we can “say, with fair 

assurance, . . . that the judgment was not substantially swayed 

by the error.” Kotteakos v. United States, 328 U.S. 750, 765 

(1946)(quoted in Hursey, 55 M.J. at 36 (C.A.A.F. 2001)). See 

also United States v. Baer, 53 M.J. 235, 238 (C.A.A.F. 2000). 

Decision

 The decision of the United States Air Force Court of 

Criminal Appeals is affirmed.