United States v. Campos

                       UNITED STATES, Appellee

                                    v.

                        Juan J. CAMPOS, Seaman
                         U.S. Navy, Appellant

                              No. 08-0409

                       Crim. App. No. 200602523

       United States Court of Appeals for the Armed Forces

                       Argued December 17, 2008

                          Decided May 8, 2009

ERDMANN, J., delivered the opinion of the court, in which
EFFRON, C.J., and STUCKY and RYAN, JJ., joined. BAKER, J.,
filed a separate concurring opinion.

                                 Counsel


For Appellant:    Major Christian J. Broadston, USMC (argued).

For Appellee: Lieutenant Elliot W. Oxman, JAGC, USN (argued);
Brian K. Keller, Esq. (on brief); Commander Paul C. LeBlanc,
JAGC, USN.

Military Judge:   Bruce W. MacKenzie


       This opinion is subject to revision before final publication.
United States v. Campos, No. 08-0409/NA

     Judge ERDMANN delivered the opinion of the court.

     Consistent with his pleas, Seaman Juan J. Campos was

convicted by a military judge of one specification of possessing

child pornography and one specification of receiving child

pornography, both in violation of Article 134, Uniform Code of

Military Justice (UCMJ), 

10 U.S.C. § 934

 (2000).   At sentencing,

the military judge admitted a stipulation of expected testimony

of a psychologist who had expertise in evaluating and treating

sexual offenders.   We granted review to consider whether it was

plain error for the military judge to admit this stipulation

because the expert did not personally evaluate Campos and in the

stipulation he generally opined about minimal and optimal terms

of confinement for a person convicted of possessing child

pornography.

     In reviewing this case we have determined that there is a

threshold issue as to whether Campos expressly waived the right

to challenge the admissibility of this expected testimony on

appeal or merely forfeited the issue.   We conclude that the

right to challenge the admissibility of the stipulation of

expected testimony was waived at trial which leaves us with no

error to correct on appeal.   Accordingly, we affirm the decision




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United States v. Campos, No. 08-0409/NA

of United States Navy-Marine Corps Court of Criminal Appeals on

the ground of waiver.1

                            Background

     As part of a negotiated pretrial agreement, Campos agreed

to stipulate to the expected testimony of the Government’s

expert witness, Dr. Dale Arnold.       At trial, the Government moved

for admission of the stipulation of Dr. Arnold’s expected

testimony, the stipulation of another witness’s expected

testimony, and a stipulation of fact.      The military judge then

discussed these stipulations with Campos.

     As to the stipulations of expected testimony, the military

judge explained that they represented “an agreement between the

trial counsel, the defense counsel, and yourself that if Doctor

Dale Arnold and ITSN Matthew Steubing were called as witnesses

in this case and sworn, they would testify substantially under

oath as [indicated] within each of [their] stipulations.”      The

military judge also explained that entering into the

stipulations of expected testimony did not admit the truth of

the testimony, which could be “attacked and contradicted or

explained in the same way as anyone[] else’s testimony in this

case.”   In addition, the military judge explained to Campos that


1
  The Court of Criminal Appeals found that admission of the
stipulation of expected testimony was not error. United States
v. Campos, No. NMCCA 200602523, 

2008 CCA LEXIS 7

, at *5-*6, 

2008 WL 160776

, at *1-*2 (N-M. Ct. Crim. App. 2009) (unpublished).
We do not reach that issue.

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United States v. Campos, No. 08-0409/NA

he had the right not to enter into any or all of the

stipulations and none of them would be accepted without his

consent.

     Campos indicated that he understood the military judge’s

explanations and the military judge then asked him, “Do you

accept the use of these?”   Campos answered affirmatively.    The

military judge then asked whether “counsel for both sides desire

to enter into each one of these stipulations.”   Both counsel

answered affirmatively.   This was immediately followed by the

military judge asking, “Any objection to any of the

stipulations?”   Only the defense counsel responded, answering,

“No, Your Honor.”   The military judge admitted each of the

stipulations into the record.

                            Discussion

     On appeal to this court Campos has challenged the

admissibility of Dr. Arnold’s expected testimony on a number of

grounds:   it violated Rule for Courts-Martial 1001(b)(5) because

Dr. Arnold had no personal knowledge of Campos; it recommended a

specific sentence; and it concerned inappropriate collateral

matters.   These objections were not brought to the attention of

the military judge when the stipulation of expected testimony

was introduced at trial so there is a threshold issue in this

case as to whether Campos expressly waived the right to




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United States v. Campos, No. 08-0409/NA

challenge the admissibility of Dr. Arnold’s expected testimony

on appeal or merely forfeited the issue.

     “A forfeiture is basically an oversight; a waiver is a

deliberate decision not to present a ground for relief that

might be available in the law.”    United States v. Cook, 

406 F.3d 485, 487

 (7th Cir. 2005).   “While we review forfeited issues for

plain error, we cannot review waived issues at all because a

valid waiver leaves no error for us to correct on appeal.”

United States v. Pappas, 

409 F.3d 828, 830

 (7th Cir. 2005)

(citation and quotation marks omitted); see also United States

v. Harcrow, 

66 M.J. 154, 156

 (C.A.A.F. 2008).      In determining

whether a particular circumstance constitutes a waiver or a

forfeiture, we consider whether the failure to raise the

objection at the trial level constituted an intentional

relinquishment of a known right.       See Harcrow, 

66 M.J. at 156

(citing United States v. Olano, 

507 U.S. 725, 733-34

 (1993)).

     This is not simply a case where testimony came into

evidence without any objection or comment from defense counsel.

If that were the case, we would review for plain error.2      Here


2
   Military Rule of Evidence 103(d) allows appellate courts to
recognize plain errors that materially prejudice an accused’s
substantial rights even though defense counsel has failed to
make a timely objection. “The plain error standard is met when
‘(1) an error was committed; (2) the error was plain, or clear,
or obvious; and (3) the error resulted in material prejudice to
substantial rights.’” United States v. Maynard, 

66 M.J. 242, 244

 (C.A.A.F. 2008) (quoting United States v. Hardison, 

64 M.J. 279, 281

 (C.A.A.F. 2007).

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United States v. Campos, No. 08-0409/NA

the testimony at issue is from a witness that both parties had

stipulated need not appear at the trial.   In addition, prior to

admitting the document into evidence the military judge asked if

there were any objections and defense counsel expressly

indicated that he had none.

     Entering into a stipulation of expected testimony is not

necessarily the equivalent of consenting to the admission of the

testimony.   See United States v. Glazier, 

26 M.J. 268, 270

(C.M.A. 1988) (noting that a stipulation that includes consent

to the admission of the testimony must state so expressly).     In

this case, the stipulation of expected testimony amounted to an

agreement between Campos, defense counsel and trial counsel that

if Dr. Arnold were called to testify, he would testify under

oath as reflected in the document.   In light of the military

judge’s detailed explanation of the stipulation, Campos’s

agreement to “use of” the stipulation, and defense counsel’s

representation that he desired to enter into the stipulation,

the record clearly reflects that Campos waived any right to

claim error on the ground that Dr. Arnold did not personally

appear to present live testimony.

     However, the stipulation itself did not expressly consent

to the admission of the testimony and the colloquy between the

military judge and the parties did not clearly separate the

question of entering into the stipulation from the question of



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United States v. Campos, No. 08-0409/NA

the admissibility of the substance of the testimony.   As such,

the more difficult question is whether by answering “no” after

the military judge asked for objections, defense counsel waived

the issue of admissibility.

     Many courts have taken the position that where there is no

objection and it is otherwise clear from the record that it was

an intentional relinquishment of a known right, the doctrine of

waiver will apply.3   While circumstances may arise where a “no

objection” statement by a defense attorney is not enough to

demonstrate an intentional relinquishment of a known right, the

record in this case does in fact reflect such a relinquishment.

3
  See United States v. Smith, 

531 F.3d 1261, 1267

 (10th Cir.
2008) (finding waiver where counsel not only represented that he
had no objection to the admission of certain evidence but also
relied on the evidence); United States v. Medina, 

427 F.3d 88, 91

 (1st Cir. 2005) (finding waiver based on counsel’s persistent
and reasoned refusal of judge’s suggestion to object to
admission of evidence or obtain a cautionary instruction);
United States v. Pittman, 

319 F.3d 1010, 1012

 (7th Cir. 2003)
(finding waiver on the grounds that counsel affirmatively
represented that he had no objection to admission of the
evidence); United States v. Rodriguez, 

311 F.3d 435, 437

 (1st
Cir. 2002) (finding waiver where counsel identified an issue by
objecting to it at trial and then deliberately withdrew the
objection); United States v. Cooper, 

243 F.3d 411, 416

 (7th Cir.
2001) (finding waiver where counsel repeatedly stated that he
had no objection to the admission of evidence despite the
magistrate’s insistence that defense had the right to be heard
on the issue and counsel used the evidence during his opening
statement, cross-examination, and closing argument to bolster
his theory of the case); United States v. Mitchell, 

85 F.3d 800, 807-09

 (1st Cir. 1996) (finding waiver where there was a direct
inquiry from the judge on the precise issue and an unequivocal
assent from defense counsel); United States v. Yu-Leung, 

51 F.3d 1116, 1122

 (2d Cir. 1995) (finding waiver when evidence in



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United States v. Campos, No. 08-0409/NA

The record includes an e-mail from defense counsel to Dr. Arnold

that was sent several days before trial in which defense counsel

represented that he “reviewed a document which outlines your

[Dr. Arnold’s] expected testimony” and expressed a desire to

speak with Dr. Arnold over some questions that he had about the

substance of the testimony.

        In light of this document, there is no question that

defense counsel had advance notice of the substance of Dr.

Arnold’s testimony, that he reviewed the expected testimony, and

that he considered the impact of the stipulation on his client’s

case.    At trial the military judge presented defense counsel

with an opportunity to voice objections to the expected

testimony and counsel responded that he had no objections.

        On appeal, Campos has not alleged ineffective assistance of

counsel in this regard and the record does not support a

conclusion that defense counsel’s clear “no objection” response

amounted to anything less than a waiver in the circumstances of

this case.4    Therefore, we conclude that there was a waiver to

object to both the stipulation of expected testimony of Dr.




question was extensively used by the defense and failure to
object constituted a strategic choice).
4
  While other courts have held that where the record is unclear
as to whether there was an intentional relinquishment of a known
right the plain error doctrine should apply, the record before
us does not support such an uncertainty.    See United States v.
Tobin, 

155 F.3d 636, 642

 (3d Cir. 1998); United States v. Perez,

43 F.3d 1131, 1136

 (7th Cir. 1994).

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United States v. Campos, No. 08-0409/NA

Arnold and to the substance of that testimony.   As a result

there is no error for us to review.

                            Decision

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.




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United States v. Campos, No. 08-0409/NA


     BAKER, Judge (concurring):

     I agree with the Court’s resolution of this case on the

basis of waiver, informed by the longstanding principle that a

military judge is presumed to know the law and act according to

it absent some contrary indication in the record.   United States

v. Erickson, 

65 M.J. 221, 225

 (C.A.A.F. 2007); United States v.

Raya, 

45 M.J. 251, 253

 (C.A.A.F. 1996); United States v.

Prevatte, 

40 M.J. 396, 398

 (C.M.A. 1994).   However, the

presumption notwithstanding, I write separately to express some

skepticism that the military judge followed the proscription set

forth in United States v. Ohrt, 

28 M.J. 301, 305

 (C.M.A. 1989).

I am not confident that the military judge did not defer to the

expert in arriving at the sentence in this case.    However, other

than the adjudged sentence, it is equally clear that there is

little in the record to indicate that the military judge, in

fact, failed to adhere to the principles in Ohrt.

     A military judge is responsible for, among other things,

ensuring that sentencing is conducted pursuant to certain

fundamental sentencing principles and procedures.   See United

States v. Heflin, 

1 M.J. 131, 133

 (C.M.A. 1975) (noting that a

military judge's “primary judicial responsibility [is] to assure

that a court-martial is conducted in accordance with sound legal

principles”).   Two such principles apply here.
United States v. Campos, No. 08-0409/NA


     First, witnesses at courts-martial are prohibited from

offering opinions regarding the quantum and quality of

punishment warranted.   This function resides solely within the

province of the members or the military judge, depending upon

the chosen forum.   “The question of appropriateness of

punishment is one which must be decided by the court-martial; it

cannot be usurped by a witness.”       Ohrt, 

28 M.J. at 305

.

     Second, military sentencing is predicated on the concept of

individualized sentencing.   United States v. Baier, 

60 M.J. 382, 383

 (C.A.A.F. 2005); United States v. Mamaluy, 

10 C.M.A. 102, 107

, 

27 C.M.R. 176, 181

 (1959).    Thus, while military judges may

bring to their deliberations their knowledge of both the law and

human nature, they may not apply sentencing criteria that ignore

the concept of individualized sentencing.      Military sentencing

is based on consideration of individualized factors related to

the crime and the character of the offender rather than

generalized sentencing theories or principles, with the concept

of general deterrence being the notable exception.      United

States v. Varacalle, 

4 M.J. 181, 183

 (C.M.A. 1978).

     Here, Dr. Arnold offered a minimum sentencing

recommendation to the sentencing authority.      Moreover, that

opinion was presented without reference or relationship to

Appellant in particular.   Now, it may be sheer coincidence that

the adjudged confinement comports precisely with that


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United States v. Campos, No. 08-0409/NA


recommended by the expert witness in this case.   In light of the

rebuttable presumption that a military judge is presumed to know

the law, absent evidence to the contrary, I must assume that the

military judge would not have relied on the witness’s formulaic

sentencing recommendation in lieu of the specific circumstances

of Appellant’s case.   But on the chance that it may not be

coincidence, I write separately here to emphasize the

responsibility of military judges to adhere to the principles of

military justice sentencing when sitting as the sentencing

authority.




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