HATLEY—ARMY 20090329

**UNITED STATES ARMY COURT OF CRIMINAL APPEALS**

Before

CONN, HOFFMAN and GIFFORD

Appellate Military Judges

**UNITED STATES, Appellee**

**v.**

**Master Sergeant JOHN E. HATLEY**

**United States Army, Appellant**

ARMY 20090329

7th Army Joint Multi-National Training Command

Jeffery R. Nance, Military Judge

Lieutenant Colonel William R. Martin, Staff Judge Advocate (pretrial)

Lieutenant Colonel Francisco A. Vila, Staff Judge Advocate (post-trial)

For Appellant:  Lieutenant Colonel Jonathan F. Potter, JA (argued); Captain Pamela Perillo, JA (on brief).

For Appellee:  Captain Christopher B. Witwer, JA (argued); Colonel Michael E. Mulligan, JA; Major Christopher B. Burgess, JA; Major Lajohnne A White, JA; Captain Christopher B. Witwer, JA (on brief).

30 June 2011

----------------------------------

MEMORANDUM OPINION

----------------------------------

***This opinion is issued as an unpublished opinion and, as such, does not serve as precedent***

CONN, Senior Judge:

An enlisted panel sitting as a general court-martial convicted appellant, contrary to his pleas, of conspiracy to commit premeditated murder and premeditated murder, in violation of Articles 81 and 118, Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 881 and 918.  Appellant was acquitted of an additional offense of premeditated murder and obstruction of justice.  

The court sentenced appellant to reduction to the grade of E-1; forfeiture of all pay and allowances; confinement for life (with eligibility for parole); and a dishonorable discharge.  The convening authority reduced the sentence to confinement for forty years and, with the exception of forfeitures, approved the remainder of the adjudged sentence.  The case is before us for review under Article 66, UCMJ.  

Appellant asserts three assignments of error.  First, he alleges he was denied a speedy trial.  Second, he alleges he was denied his right to confrontation when precluded from cross-examining a witness on the witness’ potential mandatory life sentence.  Finally, he alleges he did not receive appropriate relief for unlawful pretrial punishment.  These assignments of error merit discussion but not relief.

**BACKGROUND**

*The Incident*

In March of 2007 appellant was the leader of a conspiracy involving the premeditated murder of four military detainees in Baghdad, Iraq.  Appellant was the First Sergeant (the most senior non-commissioned officer (NCO)) of his infantry company.  The incident began when appellant accompanied a platoon of a dozen or more of his subordinate soldiers in a multi-vehicle patrol.  The patrol operated in a sector where appellant’s unit had been repeatedly attacked.  These attacks resulted in numerous casualties, including the deaths of two of the unit’s noncommissioned officers, SGT S and SGT G, within a few weeks of the incident. 

During this time, the patrol came under fire, which was eventually traced to several men who fled to a nearby building.  The patrol searched the building and found and detained four adult males.  The search also uncovered a cache of arms and munitions, including a sniper rifle and other weapons as well as duffel bags of linked ammunition (a type used in automatic weapons).  The four men, along with the weapons cache, were photographed.  The detainees were then handcuffed and blindfolded and placed in the back of a Bradley fighting vehicle to be taken to a detention operations center (DOC) for processing.  Appellant called together several of the NCOs, complaining the DOC was likely to release the detainees and suggested they should “take care of” them.  Appellant told the NCOs to check with their soldiers to see if anyone “had a problem” with that.  He became exasperated when he found out that one of the NCOs had already radioed a report to the command out post (COP) that the patrol had taken detainees.  

The patrol first went back to the COP, where appellant briefly went inside.  He then called together the NCOs from the patrol and advised that headquarters “was not tracking” the detainees.  Appellant then directed the patrol to remount and return to the sector.  The patrol convoy went to a canal area, where appellant again gathered his NCOs and asked who was willing to help him “take care” of the detainees.  Two of the NCOs, the platoon sergeant, Sergeant First Class (SFC) Mayo and Sergeant (SGT) Leahey agreed.  Several other NCOs did not agree and returned to their vehicles. Appellant then had the four handcuffed and blindfolded detainees removed from the Bradley vehicle and lined up at the edge of the canal. Appellant, SFC Mayo and SGT Leahy then shot each of the detainees point blank in the back of the head, removed their handcuffs, and pushed their lifeless bodies into the water. The convoy thereafter returned to the COP.  There appellant gathered all of the soldiers from the patrol and told them, “What was done was done for SGT [S] and SGT [G] . . . and for all the motherf**kers who think they can shoot us and get away with it.  If anyone asks any questions, direct them to me.”  

*Pretrial Conditions Imposed on Appellant and Trial Timeline*

In January 2008, after appellant’s unit returned to their home station in Schweinfurt, Germany, one of the soldiers reported the murders.  On 18 January 2008, appellant’s battalion commander gave appellant an order to have no contact with the other soldiers in his company until the investigation was complete.  The commander also ordered appellant to remain under the supervision of his command sergeant major (CSM, the most senior ranking NCO of battalion and higher units) until he was interviewed by Army criminal investigators the following day and to remain on the installation.  Appellant continued his preparations for reassignment, cleared his family quarters, and placed his household goods in shipment.  However, in February 2008 his orders were revoked and he was assigned to live in bachelor quarters at a soon-to-close installation in Würzburg, Germany, approximately a 30 minute drive from Schweinfurt. Appellant was denied leave to accompany his wife back to the U.S. However, his wife returned to live with appellant in Germany a few weeks later.  By April, appellant was again assigned family quarters in Schweinfurt and received his household goods from storage.

From February to May 2008, appellant’s primary duty was to report daily to his CSM.  From February to April, appellant drove himself from Würzburg to Schweinfurt.  Appellant’s CSM sought an appropriate position for appellant, and in late May or early June 2008, appellant began duties at the housing office in Schweinfurt, where he worked until his trial in April 2009.  During this timeframe appellant was granted several leaves; however, he was not permitted to travel outside Germany.  

On 16 September 2008 appellant’s command preferred court-martial charges against appellant.  On 8 October 2008 appellant waived his right to an Article 32 pretrial investigation hearing (a prerequisite to trial by general court-martial).  The convening authority referred appellant’s case to a general court-martial on 5 January 2009.  Appellant was arraigned on 11 January 2009, 119 days after preferral of charges.  At arraignment, appellant requested a trial date in early February 2009.  Over defense objection, the military judge set trial for 13 April 2009 based on the Government’s request to complete the trials of multiple co-accuseds, including SFC Mayo and SGT Leahy, whose trials had not yet concluded.  In February 2009, Sergeant Leahy pled not guilty but was found guilty of premeditated murder and was sentenced, as required by UCMJ art. 118, to a mandatory sentence of life in prison, with possibility for parole.  In March 2009 SFC Mayo pled guilty to premeditated murder in exchange for a pretrial agreement limiting his confinement to 30 years, rather than confinement for life otherwise required for conviction of premeditated murder.  

**DISCUSSION**

*Military Speedy Trial*

In military law, there are statutory, constitutional, and rule-based sources which protect an individual’s right to a speedy trial.  The statute of limitations, set out in UCMJ art. 43, is clearly inapplicable to appellant’s case because the crime of premeditated murder is expressly excluded.  The Fifth Amendment Due Process Clause precludes prosecution where delays occur based on egregious or intentional tactical delay and actual prejudice which “appreciably impairs the ability to mount a defense.”  *See**United States v. Reed* HYPERLINK "http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=509&FindType=Y&ReferencePositionType=S&SerialNum=1995070717&ReferencePosition=451" , 41 M.J. 449, 451-52 (C.A.A.F. 1995).  As a regulatory matter, Rule for Court-Martial [hereinafter R.C.M.] 707(a) requires that an accused be brought to trial within 120 days of preferral of charges, imposition of restraint, or entry onto active duty for purposes of court-martial.  An accused is “brought to trial” within the meaning of the Rule by arraignment.  R.C.M. 707(b)(1); R.C.M. 904. If charges are dismissed or the accused is released from confinement, the clock stops and a new 120-day period begins upon re-preferral of charges. R.C.M. 707(b)(3)(A)(i) & (B). Appellant conceded in oral argument the Fifth Amendment was not violated in appellant’s case.  We agree. 

Appellant does assert that his statutory right to a speedy trial under UCMJ art. 10 (10 U.S.C. § 810), as well as the Sixth Amendment, were violated.   The Supreme Court has established a four-part test for assessing whether a delay amounts to a Sixth Amendment constitutional violation.  *Barker v. Wingo,* HYPERLINK "http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&SerialNum=1972127165"  407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).  The so-called *Barker* test requires a balancing of the length of the delay, reasons for the delay, whether the appellant demanded a speedy trial, and any prejudice to the appellant from the delay.  These same factors are applicable to an alleged Article 10 speedy trial violation.  *See**United States v. Birge* HYPERLINK "http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=509&FindType=Y&ReferencePositionType=S&SerialNum=1999226524&ReferencePosition=212" , 52 M.J. 209, 212 (C.A.A.F. 1999).

By its terms, UCMJ art. 10 requires that “[w]hen any person subject to this chapter is placed in arrest or confinement prior to trial, immediate steps shall be taken to inform him of the specific wrong of which he is accused and to try him or to dismiss the charges and release him.” Article 10 provides “a more exacting speedy trial” standard than the Sixth Amendment. *United States v. Mizgala* HYPERLINK "http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=509&FindType=Y&ReferencePositionType=S&SerialNum=2006679714&ReferencePosition=124" , 61 M.J. 122, 124-25 (C.A.A.F. 2005).  Logically, a person under arrest or confinement pending charges suffers greater potential prejudice by delay.  The standard under Article 10 for assessing the Government's actions “is not constant motion, but reasonable diligence in bringing the charges to trial.” *Id.* HYPERLINK "http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&FindType=Y&SerialNum=2006679714"  at 127 (citation and quotation marks omitted). 

In conducting our review, we consider the legal question of whether an accused received a speedy trial de novo.  *United States v. Doty*, 51 M.J. 464, 465 (C.A.A.F. 1999).  We give “substantial deference” to the trial judge’s findings of fact, which “will be reversed only if they are clearly erroneous.”  *Mizgala*, 61 M.J. at 127.  

*Article 10*

In the context of military courts-martial, the UCMJ art. 10 right to speedy trial is triggered by “arrest or confinement.”  Arrest is “the restraint of a person by oral or written order not imposed as punishment, directing the person to remain within specified limits; a person in the status of arrest may not be required to perform full military duties . . .” R.C.M. 304(a)(3).  Confinement is “physical restraint, imposed by order of competent authority, depriving a person of freedom pending disposition of offenses.” R.C.M. 304(a)(4).  Sixth Amendment speedy trial protections are triggered upon initiation of a court-martial by preferral of charges.  *United States v. Grom,* 21 M.J. 53 (C.M.A. 1985).  Rule for Court-Martial 707 provides a bright-line 120 day rule for speedy trial, triggered by either initiation of restraint or preferral of charges. R.C.M. 707(a).  All three protections evaluate the impact of delay from their triggering event.  A violation of R.C.M. 707 may or may not preclude ultimate trial.  Violations of UCMJ art. 10 or the Sixth Amendment will preclude prosecution.  R.C.M. 707 (d)(1).  

Appellant argues he was subject to arrest or confinement, thereby triggering UCMJ art. 10 protections beginning in January 2008, when he was placed under the supervision of CSM Choudri.  In his brief, appellant asserts this was “because he was not allowed to stay on his base or keep his job; additionally he was required to drive over thirty miles to sign in every day for over 120 days.”  On this issue, the military judge made extensive findings of fact, and we find no error in his findings.  Those facts are inconsistent with appellant’s asserted facts and argument.  Specifically, the judge found appellant was under the direct supervision and custody of CSM Choudri from 18 to 21 January 2008, after which he “was allowed to return to his own lodgings and go about his business, subject to the verbal and then written no contact order [with other suspects]” issued by his battalion commander.  Appellant continued to prepare for his reassignment to the U.S., and moved from his quarters.  Subsequently, his reassignment was cancelled.  For that reason he was provided quarters in Würzburg for a 90 day period from 1 February to 1 May 2008.  While only gym, library and food facilities were available at the Würzburg post due to its imminent closure, appellant was allowed to go to and use the post exchange, commissary and other facilities in Schweinfurt.  Within 90 days, appellant was reassigned family quarters in Schweinfurt, and on 1 June he began working in the Schweinfurt housing office for the nine-month period leading up to his trial. The judge found that, other than being denied leave to go the U.S. in February 2008, “the accused was allowed to go anywhere he wanted outside the terms of his conditions on liberty as long as he received permission from CSM Choudri first,” which the judge noted was “never denied.” This included leave in Germany.     

The record amply supports the military judge’s findings that the conditions imposed upon appellant amounted to neither confinement nor restriction which would trigger Article 10.  At least after the two to three day period appellant stayed under CSM Choudri’s direct supervision, the conditions imposed upon appellant could not credibly be characterized as confinement or arrest.  Contrary to appellant’s assertion, these conditions were far less rigorous than the hourly sign-in and restriction to a small squadron area found to amount to confinement in *United States v. Schilf*, 1 M.J. 251 (C.M.A. 1976).  At most, the conditions were equivalent to a withdrawal of unmonitored pass privileges, which is not an arrest for purposes of Article 10.  *United States v. Walls,* 9 M.J. 88, 90 (C.M.A. 1980); *see also**United States v. Burrell,* 13 M.J. 437 (C.M.A. 1982).  While appellant did appear to have limited duties from February to June, the evidence of record makes clear that was due to the last-minute change to his reassignment, his rank and seniority, and the practical need to limit his contact with members of his unit during the investigation.  CSM Choudri’s testimony during the motions hearing likewise made it clear the command was diligently searching for suitable duties for appellant, and was not precluding him from meaningful duties as a term of arrest or confinement.  We therefore conclude that, because he suffered no confinement or arrest, Article 10 is not implicated in appellant’s case.  

*Rule for Court-Martial 707 Protections*

We also recognize that the Manual for Court-Martial’s 120-day speedy trial protections found in R.C.M. 707 are triggered by restraint less than confinement or arrest necessary to implicate UCMJ art. 10.  *See* R.C.M. 707(a)(2).  However, under the totality of the circumstances, including appellant’s ability to drive himself daily between Würzburg and Schweinfurt, and the denial of virtually no request to go outside the limits imposed on him, we find the conditions at most amounted to  conditions on liberty, imposition of which do not trigger R.C.M. 707’s protections.  *United States v. Wagner*, 39 M.J. 832, 833 (A.C.M.R. 1994);  s*ee also* discussion to R.C.M. 304(a), which notes an “order to report periodically to a specified official” amounts to a condition on liberty, which does not trigger R.C.M. 707.  Rule for Court-Martial 304(a)(1) defines a condition on liberty as “imposed by orders directing a person to do or refrain from doing specified acts.”  It is apparent from the record the command’s primary concern was limiting contacts among the many individuals involved.  The necessity to limit such pretrial contacts is readily apparent, especially where the accused is the most senior ranking individual who supervised all of the other actors involved.  Because we find the circumstances did not amount to “restraint” under the rule, R.C.M. 707’s protections were not implicated until preferral of charges, and appellant concedes the 120-day timeframe of that rule was met by his arraignment on 14 January 2009.  

*Sixth Amendment Speedy Trial*

Consequently, we consider delays in appellant’s case under the Sixth Amendment *Barker* factors from the time of initiation of court-martial charges.  As to the length of delay, charges were preferred against appellant in September 2008 and he was not ultimately tried until April 2009, a period of seven months.  Beginning in October 2008, appellant repeatedly demanded a speedy trial.  After arraignment, the government requested an additional three-month delay until trial. The length of these delays and appellant’s insistence on an immediate trial must be balanced against the reasonableness of the delays and whether appellant was prejudiced by them.  The government’s asserted reasons for further delays were to complete the prosecutions in multiple cases arising from the murders, which involved as many as eighteen potential immunized witnesses and sixteen co-accuseds, the three most culpable of whom had not been tried by January of 2009.  We disagree with appellant’s assertion that this was a simple case. The complexity of a case, both in terms of the necessity for investigation and the number of witnesses involved, is a legitimate basis for delay.  *United States v. Hatfield*, 44 M.J. 22, 23 (C.A.A.F. 1991).  The government also had an interest in trying appellant, the leader of the conspiracy and its most senior participant, after his subordinates.  Obviously, this was both to avoid potential compromise of other co-conspirators’ convictions, and to strengthen its chance to convict the most culpable member of the conspiracy.  This is a recognized legitimate interest.  *See* Discussion to R.C.M. 906(b)(1); *United States v. Weisbeck,*50 M.J. 461, 464 (C.A.A.F. 1999).  Additionally, in setting the trial date, the judge noted court’s own docket of other cases and the need to litigate anticipated motions in appellant’s case.   

As to the issue of prejudice, our superior court set out the test for prejudice in the context of speedy trial, identifying three underlying concerns: 

“(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.” 

*Mizgala*, 61 MJ at 129 (quoting *Barker v Wingo*, 407 U.S. 514, 532 (1972).

Analyzing those concerns, here we have found that appellant was not subject to arrest or confinement pending trial.  While the record shows appellant was subject to some negative publicity and his promotion to sergeant major was suspended, it is not clear how a more speedy proceeding would have alleviated his anxiety or concern, unless it yielded an acquittal.  Appellant points to no specific prejudice to his defense, other than unspecified diminished witness recollection of specifics.  We further note that appellant exploited any resulting inconsistencies and memory lapses fully in his trial.  Finally, the record reflects appellant suffered no lost or unavailable witness or other impairment in presenting his case resulting from the passage of seven months time between preferral and ultimate trial.  

Based on the foregoing, we find no speedy trial violation in appellant’s case.  

*Pretrial Punishment*

As a separate assignment of error, appellant asserts he was subject to unlawful pretrial punishment for the conditions his command imposed on him when the investigation of the detainee murders began in January 2008.   In addition to the facts discussed regarding whether appellant was subject to arrest or confinement, appellant asserts his command prevented him from attending unit functions, including memorial ceremonies for soldiers killed during operations in Iraq as well as the unit’s dinner-dance ball.  Appellant raised this issue in the form of a motion, but when asked by the judge whether he wished to present additional evidence other than that already presented on his speedy trial motion, he declined the opportunity.

*Article 13*

Article 13, UCMJ (10 U.S.C. § 813) states as follows:  “No person, while being held for trial, may be subjected to punishment or penalty other than arrest or confinement upon the charges pending against him, nor shall the arrest or confinement imposed upon him be any more rigorous than the circumstances require to insure his presence ....”  In brief, UCMJ art. 13 prohibits two things: (1) punishment before trial, and (2) imposition of arrest or pretrial confinement more rigorous than necessary to ensure the accused's presence for trial.  *United States v. Mack*, 65 M.J. 108 (C.A.A.F. 2007).  Because we found appellant was not subject to arrest or confinement, we will consider only the first aspect of Article 13, which involves whether the conditions imposed on appellant involved a purpose or intent to punish.  The issue of an intent to punish is evalutated considering the purpose served by any conditions imposed and whether such purposes are “reasonably related to a legitimate governmental objective.” *Bell v. Wolfish*, 441 U.S. 520, 539 (1979); *United States v. McCarthy*, 47 M.J. 162, 165 (C.A.A.F. 1997).   

Appellant has the burden of establishing his entitlement to relief under UCMJ Art. 13. *United States v. Mosby*HYPERLINK "http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=509&FindType=Y&ReferencePositionType=S&SerialNum=2002132489&ReferencePosition=310", 56 M.J. 309, 310 (C.A.A.F. 2002).  We defer to the military judge's findings of fact unless they are clearly erroneous, but apply the law to the facts de novo.  *Id*.

In the limited litigation of this issue, defense counsel alleged Article 13 was violated during the period of CSM Choudri’s supervision.  The initial supervision of appellant by CSM Choudri until his investigative interview served a clear non-punitive purpose to avoid potential collusion among witnesses or other impact on the investigation. The lack of punitive intent was clear; this was evident when, after one day, CSM Choudri allowed appellant to stay under the supervision of a friend and fellow first sergeant, with whom appellant felt more comfortable.  Considering the facts of appellant’s case, we find the follow-on “no contact” order pertaining to other members of the unit under investigation does not reflect an intent to punish.  The legitimate government objective is apparent:  to prevent potential influence of witnesses and likewise protect the appellant from accusations of witness tampering.  

When the military judge later questioned appellant about potential bases for UCMJ Art. 13 violations, appellant mentioned the daily reporting requirement to CSM Choudri and the requirement to have his approval before going “anywhere.”  However, appellant also stated that, other than being denied leave outside of Germany, his freedom of movement had not been otherwise restricted.  Significantly, appellant indicated he had been subject to no other forms of restraint other than those already explored in his speedy trial litigation.

In ruling there was no UCMJ Art. 13 violation, the military judge referred to his findings on the speedy trial motion.  Again, we do not find those facts in any way erroneous or unsupported by the record.  In light of this, we do not find appellant carried the burden of demonstrating that the conditions imposed on him constituted pretrial punishment.

*Limits on Cross-Examination*

The final issue appellant raises relates to limits the military judge imposed on cross-examination of the accomplice and co-conspirator, SFC Mayo.  In panel selection, the military judge prohibited appellant’s defense counsel from posing voir dire questions to the court-martial panel members on their views regarding the mandatory punishment of life in prison for premeditated murder.  The judge based his ruling on relevance (neither support for, nor opposition to a mandatory punishment would be a basis for challenge by the defense) and the potential for jury nullification (seeking to obtain a verdict influenced by potential sentence rather than the evidence of the case).  

At trial, SGT Leahy first testified against the accused.  The defense did not seek to ask questions regarding the mandatory nature of the life sentence SGT Leahy received at this trial or that sentence’s impact on his testimony.  However, when SFC Mayo testified, the following exchange occurred: 

Civilian Defense Counsel [CDC]:  You made a deal with the government to testify against Master Sergeant Hatley, didn’t you?

Mayo:  Yes, sir.

CDC:  That deal meant that you avoided a life sentence for premeditated murder, correct?

Mayo:  Yes, sir.

CDC:  And you knew that the mandatory minimum for premeditated-

TC:  Objection, Your Honor.

MJ:  That’s sustained. Sustained.

MJ:  Mr. Court, if you try that again-well, let me just say, you better not try that again.  I’ve ruled more than one time on this issue, okay?  I have ruled more than one time on this issue.  You will not sneak this information into the panel through backdoor means.  . . .

CDC:  You said that you made a deal with the government to testify against Master Sergeant Hatley, correct?

Mayo:  Yes, sir.

CDC:  And, at your trial a couple of weeks ago, you pled guilty and said you were guilty of those offenses, correct?

Mayo:  Yes, sir.

CDC:  And you said basically what you said today, correct.

Mayo:  Yes, sir.

CDC:  And it’s your belief that, if you don’t say that today, you lose your deal, correct?

Mayo:  Yes, sir.  

*The Right of Confrontation*

“[T]he exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.” *Davis v. Alaska*HYPERLINK "http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&SerialNum=1974127137", 415 U.S. 308, 316-17 (1974). Through cross-examination, an accused can “expose to the jury the facts from which jurors could appropriately draw inferences relating to the reliability of the witness.” *Id.*  Limiting an accused's presentation of bias evidence may violate the Sixth Amendment right to confront witnesses.  The standard to judge whether confronation has been violated is whether “[a] reasonable jury might have received a significantly different impression of [the witness'] credibility had [defense counsel] been permitted to pursue his proposed line of cross-examination.” *Delaware*v. *Van Arsdall,*HYPERLINK "http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&SerialNum=1986117817" 475 U.S. 673, 680 (1986).  A military judge's decision to limit cross-examination as to the sentencing details of a prosecution witness' plea agreement is reviewed for abuse of discretion. *United States v. James*, 61 M.J. 132, 136 (C.A.A.F. 2005). 

The right of confrontation is not without limits.  The accused's confrontation right does not entitle counsel to cross-examine a witness to such an extent as would “‘hammer th[e] point home to the jury.’ ” *Id.* at 135 (quoting *United States v. Nelson,*HYPERLINK "http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=506&FindType=Y&ReferencePositionType=S&SerialNum=1994214028&ReferencePosition=708" 39 F.3d 705, 708 (7th Cir. 1994)). Whether sufficient cross-examination has been permitted depends on whether the witness' motivation for testifying has already been exposed and “further inquiry ... would [be] marginally relevant at best and potentially misleading.” *United States v. Carruthers,*HYPERLINK "http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=509&FindType=Y&ReferencePositionType=S&SerialNum=2011349880&ReferencePosition=344" 64 M.J. 340, 344 (C.A.A.F. 2007) (holding cross-examination of a co-conspirator about his pretrial agreement sufficient even though the military judge refused to permit questions related to the term setting a maximum punishment).

In *James,*HYPERLINK "http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=509&FindType=Y&ReferencePositionType=S&SerialNum=2006689579&ReferencePosition=134" our superior court reiterated its adherence to the *Van Arsdall* standard to evaluate a trial judge's limitation of inquiry into potential bias on cross-examination:

[T]he exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination. It does not follow, of course, that the Confrontation Clause of the Sixth Amendment prevents a trial judge from imposing any limits on defense counsel's inquiry into the potential bias of a prosecution witness. On the contrary, trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant.

*Id.*HYPERLINK "http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&FindType=Y&SerialNum=2006689579" at 134-35 (citing *Van Arsdall,*HYPERLINK "http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&SerialNum=1986117817" 475 U.S. at 678-679 (citation and quotation marks omitted). The military judge's discretion exists only if “‘there has been permitted as a matter of right sufficient cross-examination.’ ” *United States v.**Jones,*HYPERLINK "http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=509&FindType=Y&ReferencePositionType=S&SerialNum=1998253337&ReferencePosition=88" 49 M.J. 85, 88 (1986) (quoting *United States v. Lindstrom,*HYPERLINK "http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=350&FindType=Y&ReferencePositionType=S&SerialNum=1983106754&ReferencePosition=1160" 698 F.2d 1154, 1160 (11th Cir. 1983)). 

Reduced to its essence, appellant’s assignment of error asks whether Sixth Amendment confrontation rights are violated if counsel is only permitted to ask the impact of a life sentence versus a mandatory life sentence on a witness’ testimony.  In the context of appellant’s case, we conclude that additional question would not have yielded a significantly different impression of SFC Mayo’s testimony.  Through cross-examination appellant’s defense counsel was able to establish not only that SFC Mayo was convicted of an offense which carried a life sentence, but also that if he did not testify consistently with his pretrial agreement, SFC Mayo jeopardized the opportunity to avoid that potential life sentence.  The cross-examination made clear both the positive and negative motivations which might have influenced his testimony regarding appellant’s role in the murder of the four detainees.  Moreover, the sentences of both SFC Mayo and SGT Leahy were “mandatory” only in the sense that there was a limit on the court-martial’s discretion in sentencing; it did not bind the convening authority to approve such a punishment.  *See* Article 60(c)(2), UCMJ.  In fact, none of the individuals convicted of killing the detainees in this case—including appellant—actually received an approved life sentence.  

Further, we examine the record for an abuse of discretion by the military judge.  The discussion and ruling on introducing the issue of mandatory punishments earlier in appellant’s proceedings make it clear the military judge was not acting arbitrarily in denying appellant’s counsel an opportunity to “hammer home” SFC Mayo’s potential bias and motive to fabricate by highlighting the mandatory sentence for premeditated murder.   He was in fact responding to a legitimate concern regarding an improper premature focus on a potential sentence when adjudicating guilt or innocence on the merits.  We find the “mandatory” nature of the life sentence SFC Mayo was subject to is precisely the kind of marginally relevant information which reasonably may be excluded in the exercise of discretion.  *James*, 61 M.J. at 134-35.  

Finally, even if appellant’s confrontation rights were abridged by preventing inquiry into the “mandatory” nature of his sentence, the findings may be approved if the denial was harmless beyond a reasonable doubt.  *United State v. Williams*, 40 M.J. 216, 218 (C.M.A. 1994)*.* Factors to consider include: (1) the importance of the witness' testimony in the prosecution's case; (2) whether the testimony was cumulative; (3) the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points; (4) the extent of cross-examination otherwise permitted; and (5) the overall strength of the prosecution's case.  *Id.,*citing *Van Arsdell,*475 U.S. at 684.  

In appellant’s case, while SFC Mayo’s testimony was important, it was in fact cumulative in material aspects with evidence offered by multiple other witnesses. That included SGT Leahy, who had no pretrial agreement or limit on his sentence at the time of his testimony, a matter on which SFC Mayo was thoroughly cross-examined.  In fact, there was no evidence to suggest that appellant did not instigate the conspiracy or carry out its intent by orchestrating and participating in the premeditated killing of the detainees.  Having examined the full record, we are confident beyond a reasonable doubt that even if SFC Mayo had been confronted with the additional fact that, in the absence of his pretrial agreement, his life sentence was “mandatory,” it would have had no effect on the finding that appellant committed premeditated murder.

**DECISION**

We have considered the remaining assignments of error, including the error personally asserted by appellant pursuant to *United States v. Grostefon*, 12 M.J. 431 (C.M.A. 1982), and find them to be without merit.  The findings of guilty and sentence are AFFIRMED. 

Judge HOFFMAN and Judge GIFFORD concur.

FOR THE COURT:

JOANNE P. TETREAULT ELDRIDGE

Deputy Clerk of Court 

� We heard oral argument in this case at Howard University Law School, Washington, D. C. on 15 February 2011.   

� Generally, UCMJ Art. 43 imposes a 5 year statute of limitation from the commission of an offense, except for murder, rape, certain absence offenses during time of war, and certain specified child abuse offenses.

� Kastigar v. United States, 406 � HYPERLINK "http://en.wikipedia.org/wiki/United_States_Reports" \o "United States Reports" �U.S.� � HYPERLINK "http://supreme.justia.com/us/406/441/case.html" �441� (1972).

PAGE  

13