U.S. v. Giles, 59 M.J. 374

Core Criminal Law Subjects: Motions, Generally: Pretrial › Severance

1. as a matter of policy, ordinarily, all known charges should be tried at a single court-martial; as a matter of law, a party may move for trial of designated offenses at a separate court-martial through a motion for severance of offenses, but only to prevent manifest injustice
2. under RCM 906(b)(10), a military judge is required to grant a severance motion when necessary to avoid a manifest injustice
3. in this case, the Government’s decision to try the perjury charge at the rehearing on the underlying drug-related specifications instead of ordering a separate trial created a substantial risk of impermissible crossover; the questions raised by the president of the panel, based on the evidence admitted under the military judge’s limiting instruction, demonstrated that the senior member of the panel had a reasonable basis for concluding that appellant had been tried, convicted, and sentenced to a discharge for the same drug-related specifications that were now under consideration; the military judge permitted the Government to introduce evidence on the perjury charge under which the members could reasonably conclude that appellant had been tried and convicted in the first trial of the same drug-related specifications that were before them in the second trial, and they also could reasonably conclude that something had happened between the first and second trials to convince the Government that appellant had lied at the first trial when she denied that she had knowingly purchased an illegal substance; under these circumstances, the perjury evidence was both irrelevant and highly prejudicial to appellant’s right to receive a fair trial on the drug-related specifications; the limiting instruction by the military judge, repeated without any meaningful amplification after the president of the court-martial identified the prejudicial nature of the evidence, simply told the members to suspend their understanding of the basic mechanics of the military justice system; as such, the instructions were insufficient to prevent a manifest injustice; under the facts of this case, the rulings by the military judge on both pretrial motions and evidentiary objections produced errors that caused actual prejudice and prevented the accused from receiving a fair trial

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. we review a military judge’s decision on whether to grant a severance motion for an abuse of discretion; if the motion has been denied, the appellant must demonstrate more than the fact that separate trials would have provided a better opportunity for an acquittal; the appellant must show that the ruling caused actual prejudice by preventing the appellant from receiving a fair trial; in conducting such a review, we apply the three-pronged test articulated in United States v. Curtis, 44 M.J. 106, 128 (C.A.A.F. 1996): (1) Do the findings reveal an impermissible crossover of evidence? (2) Would the evidence of one offense be admissible proof of the other? (3) Did the military judge provide a proper limiting instruction?