Wednesday, March 31, 2010

Judgement Day for Webster Smith.

Webster M. SMITH, Cadet
U.S. Coast Guard, Appellant
No. 08-0719
Crim. App. No. 1275
United States Court of Appeals for the Armed Forces
November 10, 2009
March 29, 2010
STUCKY, J., delivered the judgment of the Court, in which RYAN,
J., joined. BAKER, J., filed a separate opinion concurring in
the result. ERDMANN, J., filed a separate opinion concurring in
part and dissenting in part, in which EFFRON, C.J., joined.
For Appellant: Ronald C. Machen, Esq. (argued); Commander Necia
L. Chambliss, Will L. Crossley, Esq., and Daniel S. Volchok,
Esq. (on brief); Lieutenant Robert M. Pirone and Stuart F.
Delery, Esq.
For Appellee: Lieutenant Emily P. Reuter (argued); Commander
Stephen P. McCleary, Lieutenant Commander Brian K. Koshulsky,
and Lieutenant Alfred J. Thompson.
Military Judge: Brian M. Judge
United States v. Smith, No. 08-0719/CG
Judge STUCKY delivered the judgment of the Court.
At trial, the military judge limited Appellant’s crossexamination
of Cadet SR, the Government’s only witness on his
three convictions related to sexual misconduct. We granted
review to decide whether Appellant was denied his right to
confront his accuser on those three specifications. We hold
that Appellant was not denied his right to confront his accuser,
and affirm.
A general court-martial consisting of members convicted
Appellant, contrary to his pleas, of attempting to disobey an
order, going from his place of duty, sodomy, extortion, and
indecent assault. Articles 80, 86, 125, 127, and 134, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. §§ 880, 886, 925,
927, 934 (2006). The convening authority approved the sentence
the members adjudged: a dismissal, confinement for six months,
and forfeiture of all pay and allowances. The United States
Coast Guard Court of Criminal Appeals affirmed on April 9, 2008.
United States v. Smith, 66 M.J. 556, 563 (C.G. Ct. Crim. App.
2008). Appellant filed a motion for reconsideration which was
denied on May 14, 2008. Appellant petitioned this Court for
review on July 14, 2008.
United States v. Smith, No. 08-0719/CG
As a preliminary matter, the Government contends that
Appellant’s petition for review was not timely filed, and that
therefore the grant of review should be dismissed as
improvidently granted. Article 67(b), UCMJ, 10 U.S.C. § 867(b)
(2006), provides that an accused has sixty days to petition this
Court for review from the earlier of “(1) the date on which the
accused is notified of the decision of the Court of Criminal
Appeals; or (2) the date on which a copy of the decision . . . ,
after being served on appellate counsel of record for the
accused . . . is deposited in the United States mails for
delivery by first class certified mail to the accused.” In
United States v. Rodriguez, we held that the sixty-day statutory
period for filing petitions for review was jurisdictional and
could not be waived. 67 M.J. 110, 116 (C.A.A.F. 2009).
Before filing a petition for review at this Court,
Appellant timely sought reconsideration of the CCA’s decision.
Until the CCA rendered a decision on the reconsideration
request, either by denying reconsideration or by granting
reconsideration and rendering a new decision, there was no CCA
decision for this Court to review. We hold that Appellant’s
sixty-day period for filing at this Court began on the date the
defense was formally notified, under the provisions of Article
67(b), UCMJ, of the CCA’s decision on reconsideration. The
United States v. Smith, No. 08-0719/CG
evidence of record does not support the Government’s contention
that the appeal was untimely filed.
Appellant and Cadet SR were cadets at the United States
Coast Guard Academy. During the summer of 2005, Cadet SR and
Appellant were assigned to neighboring Coast Guard cutters in
Norfolk, Virginia. While there, Cadet SR committed an
indiscretion that could have jeopardized her ranking as a cadet
and threatened her Coast Guard career. Shortly thereafter,
Appellant sent her a text message saying that he hoped the
rumors he was hearing were not true. Cadet SR discussed the
situation with Appellant but lied about some of the details.
Appellant “said he’d try to squash rumors, and that it would be
In October of that year, after both had returned to the
Academy, Appellant notified Cadet SR that the rumors were
persisting. She then truthfully disclosed the details of her
indiscretion. Appellant said he would continue to try to
suppress the rumors, but that he needed motivation to do so.
Appellant denied he was seeking sexual favors but suggested the
couple take a photograph of themselves naked together to build
“trust in one another.” After the photo, Appellant left but
returned to her room later that evening. On this occasion, he
United States v. Smith, No. 08-0719/CG
inserted his fingers in her vagina and placed his tongue on her
clitoris. Cadet SR then performed fellatio on him.
Appellant alleged that Cadet SR’s indiscretion involved
engaging in sex with an enlisted member and, pursuant to
Military Rule of Evidence (M.R.E.) 412(c)(1), Appellant moved to
admit evidence of this prior sexual conduct. That rule provides
that “[e]vidence offered to prove that any alleged victim
engaged in other sexual behavior” is not generally admissible.
M.R.E. 412(a)(1). However, “evidence the exclusion of which
would violate the constitutional rights of the accused” is
admissible. M.R.E. 412(b)(1)(C).
During a closed hearing conducted pursuant to M.R.E.
412(c)(2), Appellant testified that in May 2005 Cadet SR told
him that she had had nonconsensual sexual encounters with an
enlisted member, but that in October 2005 she admitted that
those sexual encounters had actually been consensual. Cadet SR
invoked her right against self-incrimination and did not testify
at the hearing. Appellant argued that he should be allowed to
question Cadet SR about the encounters for “the specific purpose
of establishing a pattern of lying about sexual events.”
The military judge sustained the Government’s objection to
the admission of this evidence, but allowed the “members [to] be
informed that [Cadet SR’s] secret was information that if
United States v. Smith, No. 08-0719/CG
revealed could have an adverse impact on her Coast Guard career,
including possibly disciplinary action under the UCMJ.” The CCA
affirmed this decision. Smith, 66 M.J. at 560-61. Appellant
asserts that the military judge erred in not admitting the
sexual nature of Cadet SR’s indiscretion, and requests that we
set aside his convictions for extortion, sodomy, and indecent
The Sixth Amendment provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him.” U.S. Const. amend.
VI. The right to confrontation includes the right of a military
accused to cross-examine adverse witnesses. See United States
v. Clayton, 67 M.J. 283, 287 (C.A.A.F. 2009). Uncovering and
presenting to court members “a witness’ motivation in testifying
is a proper and important function of the constitutionally
protected right of cross-examination.” Davis v. Alaska, 415
U.S. 308, 316 (1974) (citation omitted). “Through crossexamination,
an accused can ‘expose to the jury the facts from
which jurors . . . could appropriately draw inferences relating
to the reliability of the witness.’” United States v. Collier,
67 M.J. 347, 352 (C.A.A.F. 2009) (quoting Davis, 415 U.S. at
United States v. Smith, No. 08-0719/CG
Typically, we review a military judge’s decision to admit
or exclude evidence for an abuse of discretion. See United
States v. Weston, 67 M.J. 390, 392 (C.A.A.F. 2009). We have
also applied the abuse of discretion standard to alleged
violations of the Sixth Amendment Confrontation Clause. United
States v. Moss, 63 M.J. 233, 236 (C.A.A.F. 2006); United States
v. Israel, 60 M.J. 485, 488 (C.A.A.F. 2005).
Appellant has the burden under M.R.E. 412 of establishing
his entitlement to any exception to the prohibition on the
admission of evidence “offered to prove that any alleged victim
engaged in other sexual conduct.” United States v. Banker, 60
M.J. 216, 218, 223 (C.A.A.F. 2004) (citation omitted). To
establish that the excluded evidence “would violate the
constitutional rights of the accused,” M.R.E. 412(b)(1)(C), an
accused must demonstrate that the evidence is relevant,
material, and favorable to his defense, “and thus whether it is
‘necessary.’” Id. at 222 (quoting United States v. Williams, 37
M.J. 352, 361 (C.M.A. 1993)). The term “‘favorable’” as used in
both Supreme Court and military precedent is synonymous with
“‘vital.’” Id. (quoting United States v. Valenzuela-Bernal, 458
U.S. 858, 867 (1982); United States v. Dorsey, 16 M.J. 1, 8
(C.M.A. 1983)).
Appellant contends that his inability to cross-examine
Cadet SR about the nature of the secret affected his convictions
United States v. Smith, No. 08-0719/CG
for sodomy, extortion, and committing an indecent act. We
conclude that further cross-examination of Cadet SR was not
“constitutionally required.” Assuming arguendo that the exact
nature of the indiscretion -- that it involved consensual sexual
relations with an enlisted member -- was relevant, it was
neither material nor vital to Appellant’s defense.
Testimony is material if it was “‘of consequence to the
determination of’ appellant’s guilt.” Dorsey, 16 M.J. at 6
(quoting M.R.E. 401). In determining whether evidence is of
consequence to the determination of Appellant’s guilt, we
“consider the importance of the issue for which the evidence was
offered in relation to the other issues in this case; the extent
to which this issue is in dispute; and the nature of other
evidence in the case pertaining to this issue.” Id. (citation
omitted). In this case, the evidence was offered on a
significant issue, the alleged victim’s credibility, which was
in dispute. Nevertheless, knowledge of the exact nature of her
indiscretion in relation to the other issues in the case was not
important. The military judge allowed Appellant to present a
fairly precise and plausible theory of bias, i.e., that she lied
to preserve a secret which “if revealed could have an adverse
impact on her Coast Guard career, including possibly
disciplinary action under the UCMJ.” While Cadet SR’s
credibility was in contention, it is unclear why the lurid
United States v. Smith, No. 08-0719/CG
nuances of her sexual past would have added much to Appellant’s
extant theory of fabrication.
Nor is cross-examining Cadet SR about her sexual past
“‘vital’” under Banker, 60 M.J. at 222 (quoting Valenzuela-
Bernal, 458 U.S. at 867; Dorsey, 16 M.J. at 8)). The “vital”
issue is not whether Cadet SR engaged in consensual sex with an
enlisted member or whether she lied to Appellant about it, but
rather whether she lied about an important issue that would
impeach her credibility. Cadet SR admitted that she had been in
a “situation” that could have jeopardized her career and her
ranking as a cadet; that the “situation” was in violation of
cadet regulations and possibly a violation of the UCMJ; and that
she initially lied to Appellant about the “situation.” All of
this was before the members. The military judge did not abuse
his discretion; he provided Appellant what he was due under the
Confrontation Clause: an opportunity to impeach the
complainant’s credibility.
Finally, Appellant argues that Cadet SR’s past indiscretion
and her lies about it gave her similar motive to lie about her
relationship with Appellant. We decline to embrace such a
broad, cumulative reading of M.R.E. 412 and its case law. Even
according to Appellant’s own theory, Cadet SR lied about her
sexual past to protect herself, not a relationship with another,
unlike United States v. Williams, 37 M.J. 352 (C.M.A. 1993), or
United States v. Smith, No. 08-0719/CG
Olden v. Kentucky, 488 U.S. 227 (1988). This is not a case like
Collier in which the appellant asserted she was framed for
larceny by her gay lover after the breakup of the relationship.
67 M.J. at 351. Nor does this case involve recent extramarital
sex or rejection and invective which might have caused the
victim to falsely claim rape, as in Dorsey, 16 M.J. at 6. To
the extent Appellant might have tried to introduce some
nonsexual aspects of his theory of bias via M.R.E. 608(c), he
failed to frame or raise this issue as such at trial.
The decision of the United States Coast Guard Court of
Criminal Appeals is affirmed.
United States v. Smith, No. 08-0719/CG
BAKER, Judge (concurring in the result):
I concur in the result. In my view, this case is governed
by United States v. Banker, 60 M.J. 216, 225 (C.A.A.F. 2004).
In Banker, we concluded that in the context of Military Rule of
Evidence (M.R.E.) 412, it is “within the judge’s discretion to
determine that such a cursory argument [does] not sufficiently
articulate how the testimony reasonably established a motive to
fabricate. . . . [It is] within the discretion of the military
judge to conclude that the offered testimony was not relevant.”
Id. at 225. The burden is on the appellant to prove why the
M.R.E. 412 prohibition should be lifted. Id.
Appellant’s theory of admission was that SR, having lied to
Appellant about her prior sexual misconduct with an enlisted
member of the Coast Guard, demonstrated a propensity to lie
about her sex life generally and in particular to make false
allegations to law enforcement authorities to conceal her own
sexual misconduct. Appellant argues that SR’s misconduct also
included engaging in consensual sexual activities with Appellant
in the Cadet barracks. Therefore, Appellant argues, he had a
constitutional right to cross-examine SR about her prior sexual
conduct, notwithstanding the general prohibition on such
examination enshrined in M.R.E. 412.
The problem for Appellant is that his theory of admission
is too far-fetched to pass constitutional and M.R.E. 403 muster.
United States v. Smith, No. 08-0719/CG
First, SR had no obligation to tell Appellant about her sexual
life and misconduct. It does not logically follow that someone
who would lie to protect her privacy from a probing acquaintance
would lie to the police and commit perjury. Second, it was SR
herself who reported her sexual contact with Appellant; this
cuts against Appellant’s theory that SR would lie to conceal her
own misconduct. Third, to support this theory of admission the
members needed to know that SR had “lied” to Appellant about her
sexual misconduct; they did not need to know the details of the
prior sexual conduct. This much the military judge permitted.
In my view, Appellant might have a different appellate case
if he had argued to this Court that members needed to know the
nature of “the secret” in order to assess beyond a reasonable
doubt whether SR might succumb to pressure to protect the
secret. This alternative theory was not the basis of
Appellant’s appeal before this Court. In any event, it should
be noted that the military judge rejected this theory at trial,
his conclusions of law stating:
While the importance of her secret would be relevant
in this fashion, I do not think that the members would
need to know the specifics. At the Article 39(a)
session, the Government offered a generic formulation
that would impress upon the members the seriousness of
the secret. In essence, the members could be informed
that the secret was information that if revealed could
have an adverse impact on her Coast Guard career,
including possibly disciplinary action under the UCMJ.
United States v. Smith, No. 08-0719/CG
Reasonable judges might disagree on whether additional detail
about “the secret” was needed for members to fairly assess
whether this Coast Guard cadet was coerced into sexual conduct
to safeguard that secret. But I am not persuaded that it was
plain error. The military judge informed the members that the
secret exposed the witness to criminal liability and violated
academy regulations. This is the very sort of balancing
military judges are supposed to conduct when they weigh an
accused’s rights and a victim’s privacy under M.R.E. 412.
United States v. Smith, No. 08-0719/CG
ERDMANN, Judge, with whom EFFRON, Chief Judge, joins
(concurring in part and dissenting in part):
While I concur with the majority opinion as to the
jurisdictional issue raised by the Government, I respectfully
dissent from the majority’s conclusion as to the granted issue.
In a case where credibility of the complainant was fundamental,
the military judge prevented the defense from presenting to the
panel an explanation of the circumstances that would have
provided a motive for the complainant to make a false allegation
of rape.
Cadet Webster Smith was initially charged with twenty-two
specifications, the majority of which related to his sexual
relationships with female cadets at the United States Coast
Guard Academy. Eleven of those charges were dismissed before
trial. At a general court-martial composed of members, Smith
was found not guilty of six of the remaining charges. Contrary
to his pleas, the members found him guilty of absence without
leave, attempted failure to obey a lawful order, sodomy,
extortion, and indecent assault. The sodomy, extortion, and
indecent assault charges arose out of allegations made by SR, a
female cadet.
In this appeal, Smith asserts that the military judge erred
by preventing him from fully cross-examining SR as to her motive
United States v. Smith, No. 08-0719/CG
and credibility in violation of his Sixth Amendment right to
confrontation and the “constitutionally required” exception to
Military Rule of Evidence (M.R.E.) 412. M.R.E. 412(b)(1)(C).
At trial the defense filed a motion pursuant to M.R.E. 412
requesting permission to cross-examine SR about her alleged
statements to Smith concerning a prior sexual encounter she had
with an enlisted servicemember. The factual basis for the
motion was summarized by the military judge in his findings of
During the summer training program at the start
of their first class year, Cadet Smith and [SR] were
both assigned to patrol boats that moored at Station
Little Creek. Both lived in barracks rooms at the
Station. In May 2005, Cadet Smith approached [SR] to
inform her that he was hearing rumors from the
enlisted personnel assigned to the Station that she
had a sexual encounter with an enlisted member
assigned to the Station. [SR] told him that this was
true, but that it was not a consensual encounter.
Cadet Smith then informed the enlisted personnel who
were spreading the rumors that the conduct was not
On or about 19 October 2005, Cadet Smith again
approached [SR]. He told her that he had remained in
contact with some of the enlisted personnel assigned
to Station Little Creek and that the rumors
surrounding her sexual encounter with the enlisted man
had continued. This time she told him that the
incident with the enlisted man had been a consensual
encounter and that the scope of the encounter had been
greater than she had previously described.
At the Article 32 hearing, [SR] merely stated
that she had confided a secret to Cadet Smith. In her
15 February 2006 statement, she merely stated that a
situation occurred which led to rumors. On both
occasions, she went on to state that on October 19th,
United States v. Smith, No. 08-0719/CG
she was concerned enough that Cadet Smith would expose
this secret that she agreed to pose for a picture with
him in which both of them were nude, and later that
night allowed him to perform cunnilingus on her then
she performed fellatio on him.
In the defense motion, Smith argued that the evidence was
constitutionally required because “[t]he fact that the alleged
victim lied to Cadet Smith about her sexual activity and has
misled CGIS about that activity tends to show the alleged victim
as untruthful about her sexual conduct generally and
specifically has motive to lie about the specific sexual rumors
underlying the charge -- the very issue before the trier of
The Government opposed the admission of the evidence
arguing that the substance of SR’s secret was not relevant,
material, or vital to Smith’s defense. In denying the motion
the military judge concluded that: while the evidence was
relevant, the members did not need to know the specifics, but
could be provided with a non-specific summary;1 although the
evidence could show that SR had a propensity to bring false
accusations against men with whom she had consensual sexual
encounters, the evidence was not strong since the source of the
allegation, Smith, was biased; there was a significant
1 The military judge found that “the members could be informed
that the secret was information that if revealed could have an
adverse impact on [SR’s] Coast Guard career, including possibly
disciplinary action under the UCMJ.”
United States v. Smith, No. 08-0719/CG
difference between SR making a false allegation to Smith and
making a false allegation to law enforcement authorities; and
the probative value of the evidence was outweighed by the danger
of unfair prejudice.
The United States Coast Guard Court of Criminal Appeals
affirmed the findings and sentence. United States v. Smith, 66
M.J. 556, 563 (C.G. Ct. Crim. App. 2008). We review a military
judge’s decision to admit or exclude evidence for an abuse of
discretion. United States v. Ayala, 43 M.J. 296, 298 (C.A.A.F.
1995). In doing so, we review findings of fact under the clearly
erroneous standard and conclusions of law under the de novo
standard. Id.
The evidence at issue was proffered to attack SR’s
credibility by establishing that she had earlier made a false
allegation of a nonconsensual sexual encounter to protect her
Coast Guard career. Before addressing the M.R.E. 412 issue, it
is worth noting that there is some question as to whether M.R.E.
412 even applies to this type of evidence. The Drafters’
Analysis to M.R.E. 412 states “[e]vidence of past false
complaints of sexual offenses by an alleged victim of a sexual
offense is not within the scope of this Rule and is not
objectionable when otherwise admissible.” Manual for Courts-
Martial, United States, Analysis of the Military Rules of
United States v. Smith, No. 08-0719/CG
Evidence app. 22 at A22-36 (2008 ed.).2 However, given the
posture of this case on appeal, and assuming that M.R.E. 412
does apply, the evidence is clearly admissible under the M.R.E.
412 analysis.
1. Objections Under M.R.E. 412
“[A] criminal defendant states a violation of the
Confrontation Clause by showing that he was prohibited from
engaging in otherwise appropriate cross-examination designed to
show a prototypical form of bias on the part of the witness, and
thereby ‘to expose to the jury the facts from which jurors . . .
could appropriately draw inferences relating to the reliability
of the witness.’” Delaware v. Van Arsdall, 475 U.S. 673, 680
(1986) (citing Davis v. Alaska, 415 U.S. 308, 318 (1974)).
“[E]xposure of a witness’ motivation in testifying is a proper
and important function of the constitutionally protected right
of cross-examination.” Id. at 678-79. “The question is whether
‘[a] reasonable jury might have received a significantly
different impression of [the witness’s] credibility had [defense
counsel] been permitted to pursue his proposed line of crossexamination.’”
United States v. Collier, 67 M.J. 347, 352
2 See also Fed. R. Evid. 412 advisory committee’s note on
proposed 1994 amendment (“Evidence offered to prove allegedly
false prior claims by the victim is not barred by Rule 412.
However, the evidence is subject to the requirements of Rule
United States v. Smith, No. 08-0719/CG
(C.A.A.F. 2009) (brackets in original) (quoting Van Arsdall, 475
U.S. at 680).
“M.R.E. 412 was intended to protect victims of sexual
offenses from the degrading and embarrassing disclosure of
intimate details of their private lives while preserving the
constitutional rights of the accused to present a defense.”
United States v. Banker, 60 M.J. 216, 219 (C.A.A.F 2004). There
are, however, three exceptions to the exclusionary provisions of
M.R.E. 412. Smith relied on the third exception that requires
the admission of evidence “the exclusion of which would violate
the constitutional rights of the accused.” M.R.E. 412(b)(1)(C).
“This exception addresses an accused’s Sixth Amendment right of
confrontation and Fifth Amendment right to a fair trial.”
Banker, 60 M.J. at 221 (citations omitted) (emphasis added).
Banker requires that “where evidence is offered pursuant to this
exception, it is important for defense counsel to detail an
accused’s theory of relevance and constitutional necessity.” 60
M.J. at 221. Smith’s counsel did just that in this case.
2. Relevance and Materiality
In order to properly determine whether evidence is
admissible under the constitutionally required exception the
military judge must evaluate whether the proffered evidence is
relevant, material, and favorable to the defense. Id. at 222.
“[T]he relevancy portion of this test is the same as that
United States v. Smith, No. 08-0719/CG
employed for the other two exceptions of the rule,” which is
that “[e]vidence is relevant if it has ‘any tendency to make the
existence of any fact . . . more probable or less probable than
it would be without the evidence.’ M.R.E. 401.” Id. at 222.
The proffered evidence could have impacted SR’s credibility by
allowing the defense to provide a commonsense explanation for SR
to give false testimony. That is, when SR learned of the
investigation of Smith for alleged sexual offenses, she became
concerned that the investigation would produce allegations that
she had engaged in prohibited sexual activity3 with Smith in
their dormitory at the Coast Guard Academy, thereby jeopardizing
her own career. Thus, she fabricated the charges against Smith
to protect her career, as she had in the past for the same
reason. The military judge found that the evidence would be
relevant and I agree.
Having found the evidence relevant, the next step for the
military judge was to determine whether the evidence was
“material and favorable to the accused’s defense, and thus
whether it is ‘necessary’.” Id. at 222 (citing United States v.
Williams, 37 M.J. 352, 361 (C.M.A. 1993)).
3 Pursuant to Regulations for the Code of Cadets 4-5-05.a.3,
sexual conduct is prohibited on Coast Guard Academy
installations even if it is between consenting cadets. Cadets
found guilty of consensual sexual misconduct can be disenrolled.
Id. at 4-5-05.a.4.
United States v. Smith, No. 08-0719/CG
In determining whether evidence is material, the
military judge looks at “the importance of the issue
for which the evidence was offered in relation to the
other issues in this case; the extent to which this
issue is in dispute; and the nature of the other
evidence in the case pertaining to this issue.”
Id. (quoting United States v. Colon-Angueira, 16 M.J. 20, 26
(C.M.A. 1983)).
There can be no dispute that testing the credibility of a
witness through cross-examination is crucial to the right of
A more particular attack on the witness’ credibility
is effected by means of cross-examination directed
toward revealing possible biases, prejudices, or
ulterior motives of the witness as they may relate
directly to issues or personalities in the case at
hand. The partiality of a witness is subject to
exploration at trial, and is “always relevant as
discrediting the witness and affecting the weight of
his testimony.” 3A J. Wigmore, Evidence § 940, p. 775
(Chadbourn rev. 1970). We have recognized that the
exposure of a witness’ motivation in testifying is a
proper and important function of the constitutionally
protected right of cross-examination.
Davis v. Alaska, 415 U.S. 308, 316 (1974) (citation omitted).
As in United States v. Dorsey, 16 M.J. 1, 7 (C.M.A. 1983),
this was a “he said -- she said” case and for the charges at
issue in this appeal,4 the critical question for the members was
the credibility of the sole prosecution witness. Evidence of a
motive to fabricate and that SR had alleged that an earlier
consensual sexual encounter was nonconsensual in an attempt to
4 Sodomy, extortion, and indecent assault.
United States v. Smith, No. 08-0719/CG
protect her career bears directly on SR’s credibility as to the
allegations she made against Smith. It may have shown that SR
had a propensity to lie about consensual sexual encounters when
her career was on the line. The materiality of this evidence is
not the “lurid nuances of the victim’s sexual past” as noted by
the majority, but rather the allegation that SR had previously
lied about a sexual encounter under similar circumstances.
3. Balancing
Once the military judge has determined that the proffered
evidence is relevant and material, the military judge must
undertake the M.R.E. 412 balancing test to determine if the
evidence is favorable to the accused’s defense.5 Banker, 60 M.J.
at 222. The term favorable is synonymous with vital. Id.
“[W]hen balancing the probative value of the evidence against
the danger of unfair prejudice under M.R.E. 412, the military
judge must consider . . . factors such as confusion of the
issues, misleading the members, undue delay, waste of time,
5 Commentators have noted that the “constitutionally required”
exception may be unnecessary since once it is established that
the evidence is constitutionally required, there can be no
further limitation on its admission. See 1 Stephen A. Saltzburg
et al., Military Rules of Evidence Manual § 412.02[4], at 4-194
(6th ed. 2006) (“Any limitation on a constitutional right would
be disregarded whether or not such a Rule existed.”);
Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence
§ 4:81, at 306 (3d ed. 2007) (“The exception is arguably
unnecessary because Fed. R. Evid. 412 is subordinate to the
Constitution anyway, but perhaps including it diminishes the
sense of conflict between the two legal standards.”).
United States v. Smith, No. 08-0719/CG
1 0
needless presentation of cumulative evidence, [and] also
prejudice to the victim’s legitimate privacy interests.” Id. at
223. The M.R.E. 412 balancing test weighs in Smith’s favor.
Under the circumstances of this case, any risk of confusion of
the issues, misleading the members, wasting time, or presenting
cumulative evidence was minimal and is outweighed by the high
probative value of this evidence.
In Dorsey the court found evidence favorable when it
“undermined the credibility of the sole prosecution witness who
directly testified to appellant’s guilt of the charged offense.”
Dorsey, 16 M.J. at 7. In a similar fashion, admission of a
prior false allegation of a nonconsensual sexual encounter could
have undermined the credibility of SR, the only witness who
testified against Smith on the extortion, sodomy, and indecent
assault charges.
While the evidence of SR’s earlier allegation of a false
nonconsensual sexual encounter and her subsequent admission that
the encounter was consensual would have impacted her privacy
interests, withholding this constitutionally required evidence
from the panel deprived Smith of his best opportunity to provide
a motive for SR’s allegations and to challenge her credibility.
The fact that the military judge allowed the panel to hear that
SR had a secret that, if revealed could have an adverse impact
on her Coast Guard career, including possibly disciplinary
United States v. Smith, No. 08-0719/CG
1 1
action under the UCMJ, was simply not sufficient. With this
limited information about SR’s secret, the members were left to
speculate whether the secret was a minor disciplinary infraction
or a more serious charge, but they had no idea that the
proffered evidence directly implicated SR’s motive and
In Collier this court found the military judge erred in
limiting cross-examination of the complaining witness for
possible bias. Collier, 67 M.J. at 349. There, the defendant
attempted to establish bias by presenting evidence of the
existence of a romantic relationship that ended badly between
the accused and the complaining witness. Id. at 351. The
military judge only allowed cross-examination as to the “breakup
of a friendship.” Id. at 351-52. This court found that there
was a qualitative difference between the two situations and if
the members had been shown evidence of the romantic relationship
they might have had a significantly different impression of the
accusing witness’ credibility. Id. at 352, 353. Similarly,
there is a qualitative difference between an undisclosed
6 Trial counsel illustrated the range of incidents that the
members could have speculated on when, at one point during his
argument on the motion, he stated that while the existence of
the secret was extremely relevant, the content of the secret was
not. Trial counsel argued, “[t]he extortion charge is that
there was a secret. It doesn’t matter if that secret was
whether she liked Smarties. It doesn’t matter if she had
committed some other felony . . . .”
United States v. Smith, No. 08-0719/CG
1 2
situation that “could have had an adverse impact on [SR’s] Coast
Guard career” and an allegation that SR had previously made a
false allegation of a nonconsensual sexual encounter to protect
her career.
While the military judge found that the evidence was not
strong because it came from Smith, who had an obvious bias, it
is well established that “[t]he weight and credibility of the .
. . witness are matters for the members alone to decide.”
United States v. Moss, 63 M.J. 233, 239 (C.A.A.F. 2006) (citing
United States v. Bins, 43 M.J. 79, 85 (C.A.A.F. 1995)). The
court in Banker noted that the role of the military judge is to
assure that the evidence meets the usual evidentiary standards.
Banker, 60 M.J. at 224 (citing United States v. Platero, 72 F.3d
806, 812 (10th Cir. 1995)). The court in Platero went on to
say, “when the Judge decides whether or not a defense is true or
false and decides that on the basis of the credibility of the
witnesses, the Judge is doing what the jury is supposed to do in
a serious criminal case covered by the Sixth Amendment.”
Platero, 72 F.3d at 812.
Smith had a commonsense explanation for SR’s claim that the
sexual activity was nonconsensual and the military judge’s
ruling prevented the members from considering this theory. The
alleged false accusation was close in time to the allegation
made against Smith, both allegations involved military members
United States v. Smith, No. 08-0719/CG
1 3
and both situations presented a motive for SR to lie about the
consensual nature of her sexual activities to protect her
career. Putting aside the fact that M.R.E. 412 may not even
apply to this type of evidence, I would conclude that the
evidence should have been admitted under M.R.E. 412. I would
further find that the error was not harmless beyond a reasonable
doubt as it essentially deprived Smith of his best defense and
“the excluded evidence may have tipped the credibility balance
in [Smith’s] favor.” Moss, 63 M.J. at 239.
I would reverse the decision of the United States Coast
Guard Court of Criminal Appeals and set aside the findings and
sentence for Additional Charge I, Specification 1 of Additional
Charge II, and Additional Charge III, and remand the case for
further proceedings, if any.

Sunday, March 28, 2010

Will The Supreme Court Overturn ObamaCare?

Many people believe that the Supreme Court will declare President Omama's Health Care Law unconstitutional. Former New Jersey Superior Court Judge, Andrew P. Napolitano, is one of the most vocal. According to Judge Napolitano "President Barack Obama is one of the worst presidents ever in terms of respecting constitutional limitations on government, and the states suing the federal government over healthcare reform "have a pretty strong case" and are likely to prevail."

Napolitano says the president's healthcare reforms amount to "commandeering" the state legislatures for federal purposes, which the Supreme Court has forbidden as unconstitutional.

"The Constitution does not authorize the Congress to regulate the state governments," Napolitano says. "Nevertheless, in this piece of legislation, the Congress has told the state governments that they must modify their regulation of certain areas of healthcare, they must surrender their regulation of other areas of healthcare, and they must spend state taxpayer-generated dollars in a way that the Congress wants it done. That's called commandeering the legislature," he says. "That's the Congress taking away the discretion of the legislature with respect to regulation, and spending taxpayer dollars. That's prohibited in a couple of Supreme Court cases. So on that argument, the attorneys general have a pretty strong case and I think they will prevail.”

The longstanding precedent of state regulation of the healthcare industry makes the new federal regulations that much more problematic.

"The Supreme Court has ruled that in areas of human behavior that are not delegated to the Congress in the Constitution, and that have been traditionally regulated by the states, the Congress can't simply move in there," Napolitano says. "And the states for 230 years have had near exclusive regulation over the delivery of healthcare. The states license hospitals. The states license medications. The states license healthcare providers whether they're doctors, nurses, or pharmacists. The feds have had nothing to do with it.

"The Congress can't simply wake up one day and decide that it wants to regulate this. I predict that the Supreme Court will invalidate major portions of what the president just signed into law…"

The judge also says he would rate President Obama as one of the worst presidents in terms of obedience to constitutional limitations.

"I believe we have a one party system in this country, called the big-government party," Napolitano says. "There is a Republican branch that likes war and deficits and assaulting civil liberties. There is a Democratic branch that likes welfare and taxes and assaulting commercial liberties.

"President Obama obviously is squarely within the Democratic branch. The president who had the least fidelity to the Constitution was Abraham Lincoln, who waged war on half the country, even though there's obviously no authority for that, a war that killed nearly 700,000 people. President Obama is close to that end of lacking fidelity to the Constitution. He wants to outdo his hero FDR."

That is the good news. The bad news is that many of the legal challenges to healthcare reform will have to wait until 2014, when the changes become fully operational.

Until then, there would be no legal case that individuals had been actually harmed by the law. Moreover, Napolitano says it takes an average of four years for a case to work its way through the various federal courts the final hearing that's expected to come before the Supreme Court.

"You're talking about 2018, which is eight years from now, before it is likely the Supreme Court will hear this," he says.

Other issues that Judge Napolitano waxes eloquently concerning are:

He believes American is in danger of becoming "a fascist country," which he defines as "private ownership, but government control." He adds, "The government doesn't have the money to own anything. But it has the force and the threat of violence to control just about anything it wants. That will rapidly expand under President Obama, unless and until the midterm elections give us a midterm correction – which everyone seems to think, and I'm in that group, is about to come our way.
Napolitano believes the federal government lacks the legal authority to order citizens to purchase healthcare insurance. The Congress [is] ordering human beings to purchase something that they might not want, might not need, might not be able to afford, and might not want -- that's never happened in our history before," Napolitano says. "My gut tells me that too is unconstitutional, because the Congress doesn't have that kind of power under the Constitution."
The sweetheart deals in the healthcare reform bill used that persuaded Democrats to vote for it – the Louisiana Purchase, Cornhusker Kickback, Gatorade Exception and others – create "a very unique and tricky constitutional problem" for Democrats, because they treat citizens differently based on which state they live in, running afoul of the Constitution's equal protection clause according to Napolitano. "So these bennies or bribes, whatever you want, or horse trading as it used to be called, clearly violate equal protection by forcing people in the other states to pay the bills of the states that don't have to pay what the rest of us do," Napolitano says.
Exempting union members from the so-called "Cadillac tax" on expensive health insurance policies, while imposing that tax on other citizens, is outright discrimination according to Napolitano. "The government cannot draw a bright line, with fidelity to the Constitution and the law, on the one side of which everybody pays, and the other side of which some people pay. It can't say, 'Here's a tax, but we're only going to apply it to nonunion people. Here's a tax, and we're only going to apply it to graduates of Ivy League institutions.' The Constitution does not permit that type of discrimination."
Politicians from both parties routinely disregard the Constitutional limits imposed on them by the nation's founding document, Napolitano says. "The problem with the Constitution is not any structural problem," says Napolitano. "The problem with the constitution is that those who take an oath to uphold it don't take their oath seriously. For example, just a month ago in interviewing Congressman Jim Clyburn, who's the No. 3 ranking Democrat in the House, I said to him, Congressman Clyburn, can you tell me where in the Constitution the Congress is authorized to regulate healthcare? He said, 'Judge, most of what we do down here,' referring to Washington, 'is not authorized by the Constitution. Can you tell me where in the Constitution we're prohibited from regulating healthcare.' Napolitano says that reflects a misunderstanding of what the Constitution actually is. "He's turning the Constitution on its head, because Congress is not a general legislature," he says. "It was not created in order to right every wrong. It exists only to legislate in the 17 specific, discrete, unique areas where the Constitution has given it power. All other areas of human area are reserved for the states."
Napolitano says that members of Congress infringe on Constitutional rights because they fail to recognize its basis. "They reject Jefferson's argument, in the Declaration of Independence, that our rights come from our Creator, therefore they're natural rights, therefore they can't be legislated away," Napolitano says. "They think they can legislate on any activity, regulate any behavior, tax any person or thing, as long as the politics will let them survive. They're wrong, and with this healthcare legislation, they may be proven wrong, in a very direct and in-your-face way."

10 Ways the New Healthcare Bill May Affect You

The Patient Protection and Affordable Healthcare Act, more commonly referred to as the "healthcare bill", has taken over a year to craft and has been a lightning rod for political debate because it effectively reshapes major facets of the country's healthcare industry.
Here are 10 things you need to know about how the new law may affect you:

1. Your Kids are Covered
Starting this year, if you have an adult child who cannot get health insurance from his or her employer and is to some degree dependent on you financially, your child can stay on your insurance policy until he or she is 26 years old. Currently, many insurance companies do not allow adult children to remain on their parents' plan once they reach 19 or leave school.
2. You Can't be Dropped
Starting this fall, your health insurance company will no longer be allowed to "drop" you (cancel your policy) if you get sick. In 2009, "rescission" was revealed to be a relatively common cost-cutting practice by several insurance companies. The practice proved to be common enough to spur several lawsuits; for example, in 2008 and 2009, California's largest insurers were made to pay out more than $19 million in fines for dropping policyholders who fell ill.

3.Children cannot be denied coverage.
Starting this year your child (or children) cannot be denied coverage simply because they have a pre-existing health condition. Health insurance companies will also be barred from denying adults applying for coverage if they have a pre-existing condition, but not until 2014.
4. You Can Spend What You Need to
Prior to the new law, health insurance companies set a maximum limit on the monetary amount of benefits that a policyholder could receive. This meant that those who developed expensive or long-lasting medical conditions could run out of coverage. Starting this year, companies will be barred from instituting caps on coverage.
5. You Don't Have to Wait
If you currently have pre-existing conditions that have prevented you from being able to qualify for health insurance for at least six months you will have coverage options before 2014. Starting this fall, you will be able to purchase insurance through a state-run "high-risk pool", which will cap your personal out-of-pocket expenses for healthcare. You will not be required to pay more than $5,950 of your own money for medical expenses; families will not have to pay any more than $11,900.
6. You Must be Insured
Under the new law starting in 2014, you will have to purchase health insurance or risk being fined. If your employer does not offer health insurance as a benefit or if you do not earn enough money to purchase a plan, you may get assistance from the government. The fines for not purchasing insurance will be levied according to a sliding scale based on income. Starting in 2014, the lowest fine would be $95 or 1% of a person's income (whichever is greater) and then increase to a high of $695 or 2.5% of an individual's taxable income by 2016. There will be a maximum cap on fines.
7. You'll Have More Options
Starting in 2014 (when you will be required by law to have health insurance), states will operate new insurance marketplaces - called "exchanges" - that will provide you with more options for buying an individual policy if you can't get, or afford, insurance from your workplace and you earn too much income to qualify for Medicaid. In addition, millions of low- and middle-income families (earning up to $88,200 annually) will be able to qualify for financial assistance from the federal government to purchase insurance through their state exchange.
8. Flexible Spending Accounts Will Become Less Flexible
Three years from now, flexible spending accounts (FSAs) will have lower contribution limits - meaning you won't be able to have as much money deducted from your paycheck pre-tax and deposited into an FSA for medical expenses as is currently allowed. The new maximum amount allowed will be $2,500. In addition, fewer expenses will qualify for FSA spending. For example, you will no longer be able to use your FSA to help defray the cost of over-the-counter drugs.
9. If You Earn More, You'll Pay More
Starting in 2018, if your combined family income exceeds $250,000 you are going to be taking less money home each pay period. That's because you will have more money deducted from your paycheck to go toward increased Medicare payroll taxes. In addition to higher payroll taxes you will also have to pay 3.8% tax on any unearned income, which is currently tax-exempt.
10. Medicare May Cover More or Less of Your Expenses
Starting this year, if Medicare is your primary form of health insurance you will no longer have to pay for preventive care such as an annual physical, screenings for treatable conditions or routine laboratory work. In addition, you will get a $250 check from the federal government to help pay for prescription drugs currently not covered as a result of the Medicare Part D "doughnut hole".
However, if you are a high-income individual or couple (making more than $85,000 individually or $170,000 jointly), your prescription drug subsidy will be reduced. In addition, if you are one of the more than 10 million people currently enrolled in a Medicare Advantage plan you may be facing higher premiums because your insurance company's subsidy from the federal government is going to be dramatically reduced.
Over the next few months you will most likely receive information in the mail from your health insurance company about how the newly signed law will affect your coverage. Read the correspondence carefully and don't hesitate to ask questions about your policy; there may be new, more affordable options for you down the road.
(March 29, 2010 K. Rowland said:)
The same Supreme Court justices whom President Obama blasted during his State of the Union address this year may ultimately decide the fate of his crowning achievement as more than a dozen states have called on the courts to strike down the health insurance mandate of Democrats' health care overhaul - a move that would threaten the entire law.

Two major constitutional challenges have been levied against the new law, one by the state of Virginia, which enacted a law exempting its citizens from the federal health insurance mandate, and another by Florida and 12 other states. Legal scholars are divided on the merits of the cases, and even Congress - through its research service and its budget scorekeeper - has said it's an open question whether the provision could pass constitutional muster.

At issue is the scope of the federal government's power over states and individuals. Critics of the law say the requirement that all Americans buy insurance or pay a fine, if allowed, would mean that Congress has virtually boundless authority to compel actions. Proponents argue that legal precedents support an expansive reading of the legislative branch's license to regulate such activity.

"This is one of the most consequential lawsuits in our generation," said Baker Hostetler lawyer David B. Rivkin Jr., who is serving as outside counsel to the 13 states that have filed suit. "The fact you have so many different state attorneys general, Republicans and Democrats, from a variety of states coming together to do this just underscores how strongly they feel that the act infringes core constitutional interests of their respective states."

The mandate, which doesn't take effect until 2014, is central to Democrats' goal of insuring about 32 million more Americans. The law would offer tax credits to low-income individuals and allow young adults to remain on their parents' policies longer.

Both of the state lawsuits challenge the federal government's authority under the Commerce Clause, which grants Congress the power to regulate commerce among the states. The Florida case also cites a violation of the 10th Amendment, which reserves those powers not spelled out under the federal government in the Constitution to the state governments, and argues that the health care law's expansion of state Medicaid programs threatens state sovereignty.

Among the arguments against the law is that because it does not allow for purchasing insurance across state lines - the insurance exchanges are state-based - the buying of health insurance does not constitute interstate commerce. In addition, the plaintiffs say, not purchasing health insurance does not constitute an economic activity.

"Thus far in our history, it has never been held that the Commerce Clause, even when aided by the Necessary and Proper Clause, can be used to require citizens to buy goods or services," Virginia Attorney General Kenneth T. Cuccinelli II argues in his state's lawsuit. "To depart from that history to permit the national government to require the purchase of goods or services would ... create powers indistinguishable from a general police power in total derogation of our constitutional scheme of enumerated powers."

While a requirement to buy health insurance might be new, some legal analysts say, Congress can in fact define an economic activity as something that results from not taking an action.

"The 1964 Civil Rights Act prohibits hotels and restaurants from discriminating based on race and thus prohibits inactivity," said Erwin Chemerinsky, dean of the University of California Irvine School of Law, noting that law relied upon the Commerce Clause. "The Supreme Court has said that Congress can regulate economic activity that has a substantial effect on interstate commerce. Buying or refusing to buy insurance is economic activity. The effect on the economy is enormous."

As an example, Mr. Chemerinsky cited cases in which the high court upheld Congress' authority to regulate the amount of wheat that farmers grow for their own home consumption or prohibit the cultivation of marijuana for medicinal purposes.

"If that fits within the commerce power, surely the health industry does," he said.

Mr. Rivkin, who served in various legal capacities for the Reagan administration and the George H.W. Bush administration, strongly disagreed. If that were the case, he argued, there would be no limits to the government's power as the Founding Fathers intended. He said the cases cited by Mr. Chemerinsky involve the cultivating of commodities and therefore clearly economic activities, unlike the refusal to purchase health insurance.

"The remarkable thing about an individual insurance purchase mandate is you are not being subject to a requirement by virtue of any economic activity you engage in - you're not doing a damn thing; you just exist," he said. "If this is upheld, then the federal government can do everything it wants subject only to the restrictions contained in the Bill of Rights."

Democratic leaders and the White House have scoffed at the legal challenges. Last week, press secretary Robert Gibbs said administration attorneys advised him "we'll win these lawsuits."

Jack M. Balkin, a professor at Yale Law School, noted that the new law structures the mandate as an amendment to the tax code and includes a discussion of the impact on state commerce, suggesting that the administration will defend it by citing the Commerce Clause as well as Congress' power to tax under the "general welfare" provision. That provision says the federal government may impose taxes - in this case, the penalty for those who don't buy insurance would be the tax - in order to provide for the "general welfare" of the country.

Not everyone agrees with that reasoning.

"It is a taxation and spending power, not an open-ended general welfare clause," said Michael W. McConnell, a Stanford law professor and former circuit court judge appointed by President George W. Bush. "And by the way, 'general' had a very specific meaning in the late 18th century - it meant nationwide in scope, which is why some of the state-specific provisions are constitutionally dubious."

Both lawsuits are in federal district courts, but analysts expect the issue to end up before the Supreme Court. If the high court were to rule in favor of the plaintiffs, the ramifications for Congress could be sweeping.

"It would be difficult for the court to hold that the law is outside of the power to tax and spend for the general welfare without calling into question various regulatory devices that both parties use in crafting legislation," Mr. Balkin said. "Since the New Deal, both parties have used the taxing and spending power for a wide range of regulatory purposes and this is what the challenge to the health care bill calls into question."

However, the justices have not been averse to striking down congressional laws favored by Mr. Obama. The president used his State of the Union address to attack, with the justices present, a decision that struck down limits on corporate and union spending for political campaigns on First Amendment grounds.

In his speech, Mr. Obama warned of foreign influence over U.S. elections while Justice Samuel A. Alito Jr. silently mouthed that Mr. Obama was not telling the truth. Chief Justice John G. Roberts Jr., in response to a questioner at a speech some weeks later, called the president's words "very troubling."

Wednesday, March 24, 2010

ObamaCare, This Dog Won't Hunt.

Sunday's Socialist Triumph
(By Tony Blankley)
Speaker Nancy Pelosi on Sunday launched the Democrats' argument for the health care bill, claiming, "This is an American proposal that honors the traditions of our country." Does that suggest that opposition is un-American? And what are the traditions that are American that this law fulfills? The Democrats argue that the bill fulfills the "right" of all Americans to government-assured health care services. The congressional Democrats claim many other things that a majority of the country believes to be inconsistent with truth and reality.

At its core, the new law would expand health care to 32 million who lack it. Most of the bill's estimated $938 billion cost for coverage would pay for assistance to help families with annual incomes of up to $88,000 pay for insurance, although small businesses also would receive subsidies as in incentive to cover their employees.

The two bills combined call for nearly $1 trillion in higher taxes and Medicare cuts over 10 years, provisions that sparked strong opposition from congressional Republicans, all of whom voted against the bill's passage.

For the first time, millions of Americans would be required to purchase insurance, and face penalties if they refused.

That requirement was at the heart of much of the opposition to the legislation by Republicans, conservatives activists and others, and 13 attorneys generals have already filed suit to try to invalidate the law.

So, considering the rhetorical onslaught that is about to be unleashed on the public, to paraphrase (and with the deepest apologies to) Winston Churchill on the occasion of the fall of France in June 1940:

What House Minority Leader John A. Boehner has called the Battle of Capitol Hill is over. I expect that the Battle of the Electorate is about to begin. Upon this battle depends the survival of a nonsocialist America. Upon it depends our own American way of life and the long continuity of our institutions and our history. The whole fury and might of the media and the Democratic Party must very soon be trained on the electorate.

If they can stand up to the coming propaganda, America may be free, and the life of the wider free world may move forward into broad, sunlit uplands.

But if the voters succumb to those seven months of blandishments and deceptions, then free America -- including all that we have known and cared for -- will sink into the abyss of a new Dark Age made more sinister, and perhaps more protracted, by the lights of perverted science.

Let the public therefore brace itself to its duties, and so concentrate its mind on the true facts, that if the American spirit of freedom and dignity last for a thousand years, men will still say, "This was the American voters' finest hour."

As I said, apologies to Winston Churchill for borrowing and abusing his immortal words on the fall of France and the beginning of the Battle of Britain.

And yet, for us, now and here is where we must battle for our freedom. Not, pray God, with bullets, but with words and ideas.

This battle will not be fought in the skies over London, but on the Internet and airwaves over America. The target is not the homes and factories of the people, but the minds and judgments of the voters. But the power of a mind confused and misused is every bit as threatening to freedom as is the power of bombs and bullets.

The path to Sunday's catastrophic vote was paved with cynical blandishments by the Democratic Party's congressional leaders to their members. The votes were induced by the assurance that in the seven remaining months before the election, the true facts of their legislation, which led to overwhelming public opposition to the bill when passed -- can be undone in the minds of the voters by remorselessly repeating misconceptions to the public.

The most mendacious, cruel and destructive proposition put forth by the Democratic congressional leadership -- and soon by almost all its ranks and files -- is, of course, the outlandish claim that the bill will reduce the deficit.

The uncontrolled growth of the annual deficits and total public debt is at the crux of the public's slack-jawed horror of Washington policy these past 18 months. Washington is placing our grandchildren's prosperity on a slow boat to China.

Everything that more than 200 years of American invention, investment, labor, suffering and triumph, war and victory has created is being sold off to the world's lowest bidders in a matter of months.

So far, the public has not been fooled by the claim that a new entitlement for 30 million people is being created -- and it will cost less.

But now the Democrats have the Congressional Budget Office's (CBO) official accounting -- and they plan to use it as a shield and a sword as they wade into the public debate.

Of course, every informed person understands why the CBO calculation is an honest measure of a dishonest bill. Republican Rep. Paul Ryan at the health care summit, former CBO Director Douglas Holtz-Eakin, in last Sunday's New York Times, and hundreds of commentators have all laid out the lamentable, indisputable and undisputed fact that the CBO methodology has been gamed by the congressional Democrats to turn what will be more than a trillion dollars in further public deficit and debt into a fantasy savings of $140 billion.
{(The CBO, Congressional Budget Office, is using VOO-DOO Economics.)Editor's Note.}

While Medicare is at about $30 trillion in unfunded liability by 2070, the bill preposterously claims it is going to cut Medicare by half a trillion dollars a decade. The quarter- to half-trillion dollars per 10 years that it will cost to pay Medicare doctors enough to keep them providing services has simply been put in another bill. The mendacities go on and on. They are not merely small, politically useful little deceptions. They are of a dimension that may destroy the republic.

The Democratic congressional leadership seems to have a stunningly insulting view of their potential voters' intelligence. But on such a basis is the battle for the minds of the voters joined.

Never will the wisdom and common sense of the American public have been put to a more fateful test. The organized opposition to the bill must do its best. But, as fitting to a constitutional republic, the fate of American freedom lies with the people.


Tony Blankley is executive vice president of Edelman public relations in Washington. E-mail him at

Tuesday, March 23, 2010

More Americans Killed In Mexico.

MEXICO CITY (AP) — More Americans in Mexico are falling victim to a wave of drug violence sweeping the country, a change driven home by the recent killing of a U.S. Consulate employee and her husband who were gunned down after leaving a children's birthday party.
The number of U.S. citizens killed in Mexico has more than doubled to 79 in 2009 from 35 in 2007, according to the U.S. State Department's annual count. No figures were available for the first two months of 2010.
While only some of the killings are specifically listed as "executions" or "drug-related," the increase in homicides appears to be related to drug battles. In Ciudad Juarez, the northern border city hardest hit by drug violence and where the consulate employee was killed, homicides of Americans rose to 23 in 2009 from two in 2007.
The annual murder rate for the estimated 500,000 American citizens in Mexico at any one time has risen — but still remains lower than in some U.S. cities: about 15 per 100,000. Baltimore's 2009 homicide rate was 37 per 100,000 residents.
American deaths make up only a tiny fraction of Mexico's 17,900 drug-related killings since December 2006, when President Felipe Calderon launched a military-led drug war.
On Saturday, a clash among armed men left eight people dead in the Pacific coast state of Sinaloa. The bodies of seven men were found inside two cars along a highway connecting the cities of Culiacan and Mazatlan, said Sinaloa prosecutors' spokesman Martin Gastelum. An eighth victim, dressed in a fake federal police uniform and holding a grenade, was found near the cars, Gastelum said.
The government says the majority of those killed in Mexico's drug violence were involved in the narcotics trade. But an increasing number of bystanders are dying in the crossfire, and Americans are among them.
Tania Lozoya, 15, of El Paso, Texas, was killed by a stray bullet at her aunt's house across the border in Ciudad Juarez in May 2009, after gunfire broke out when two men chased another man into the backyard of the residence.
In December 2009, a California assistant school principal, Augustin Salcedo, was killed after he was abducted from a restaurant along with five other men while he and his wife were visiting her hometown of Gomez Palacio, in the northern state of Durango. The motive for the mass abduction remains unclear.
Other Americans appear to have been specifically targeted.
U.S. anti-kidnapping expert Felix Batista was abducted by gunmen in December 2008 in the northern city of Saltillo, where he had gone to advise local businessmen on how to avoid becoming victims of the country's wave of kidnappings. He has not been found.
"I see it as, my brother was interfering with their profit margin," said Batista's sister, Jackie Batista. "That's their line of business. Other than drugs, it's kidnapping, so people want to know how to keep themselves safe, and that intrudes into their profit margin."
More than a year after his disappearance, nobody knows for sure who took Batista.
The prosecutors' office in the state of Coahuila, where Saltillo is located, confirmed that no trace of Batista has been found, and they now appear to consider it an inactive case.
"I think that's my biggest fear," Batista said. "That this case will never be resolved. ... Excuse the phrase, and I hate to use it, that it has gone to the grave with those people who were involved."
Americans whose relatives have become victims of Mexico's drug war have established an informal group to support one another and stay informed about what is happening south of the border. "America needs to wake up and smell the kidnappings, smell the drug war," Batista says.
She frequently keeps in touch with San Antonio, Texas resident Jose Esparza, whose two brothers and sister were kidnapped in the northern Mexico town of Cuencame more than a year ago; all were U.S. residents and had spouses or children who are U.S. citizens. As with Felix Batista, there has been no request for ransom, and no sign of the victims.
Esparza says that in Texas alone he has heard from about 10 other people with relatives or friends who disappeared in Mexico.
He and others say they have obtained little or no response from Mexican authorities. Esparza now places his faith in the possibility the U.S. may begin to directly investigate the cases.
"Unless the U.S. government gets involved, nothing is ever going to happen," he said.
FBI officials are aiding Mexican authorities in the investigation into the March 13 killings of U.S. consular employee Lesley A. Enriquez, 35, who was four months pregnant, and her husband, Arthur H. Redelfs, 34.
They were gunned down in their white SUV on a Ciudad Juarez street as they were leaving the birthday party of a child of a U.S. Consulate employee. Their 7-month-old daughter was found wailing in the back of the vehicle.
Investigators are following several lines of investigation as to why gunmen followed the couple's vehicle and a second white SUV that left the same party and was hit in a separate, nearly simultaneous attack. Jorge Alberto Salcido, the husband of a Mexican employee of the consulate, was killed in that assault.
One theory being investigated is that assailants may have been ordered to attack a white SUV, staked out the wrong party and then opened fire on the wrong vehicles.
Another line of investigation is that Redelfs may have been targeted because of his work at an El Paso prison, which is holding several members of the Aztecas gang, believed responsible for the attacks.
More than 200 federal, state and local law enforcement officers swept through El Paso on Thursday, picking up suspected members of the gang in an effort to find new leads in the killings.
Ciudad Juarez Mayor Jose Reyes does not think the victims were targeted because of their U.S. ties. "I do not think this was a message to the consulate," Reyes said.
But Enriquez's cousin Vicky Torres doesn't see it that way.
"It's a message for the United States, like a challenge: 'Don't you mess around, you Americans, because this will happen,'" she said.
Lourdes Batista, the kidnap victim's wife, says she hopes the crimes will be a wake-up call for the American public.
"I pray that it will be," she said. "We're fighting a war across a big ocean, but what about here? What about our neighbor

Sunday, March 21, 2010

A Good Beginning.

Caught in the cross-hairs of California's state budget crisis, the Los Angeles Superior Court — the largest trial court system in the nation — this week laid off 329 employees and closed 16 courtrooms. Facing an unprecedented $79 million shortfall, Presiding Judge Charles W. McCoy said that the courts will lay-off an additional 500 workers and shutter up to a total of 50 courtrooms come September. Announcing the cutbacks in a courtroom closed months ago to save money, McCoy said, "Today is a sad day for justice in Los Angeles." With attrition, McCoy expects the 5,400-employee court system to lose approximately 1,000 employees, a 20% reduction.

The 16 closed courtrooms handled criminal, family law, civil law along with complex litigation and small claims case loads. Similar cuts are taking place in courts across the state. McCoy says the 100,000 Angelenos who use the courts each day can expect growing case backlogs, longer lines and delays in processing judgments. Among those losing their jobs: clerks, court reporters and supervisors. Judge Marjorie Steinberg says her family law departments are losing mental health professionals who help parents negotiate their disputes before they go to court: "You can imagine how tough that is on a family, and on the children, whose parents are fighting."

The courts, which make up 2% of the state budget, have thus joined the slash-and-cut regimen that has befallen school districts, cities, and social services across California as the state deals with a $21 billion shortfall this year. (That comes on the heels of last year's $40 billion deficit.)

The trial system will not be affected uniformly. Statutory and constitutional guarantees in the criminal justice system protect the right to a speedy trial, says Allan Parachini, spokesman for the Los Angeles Superior Court, so "we really can't go to the criminal courts for the cuts... what is happening is that resources are being bled out of other areas, especially civil, to make sure we can meet all our obligations in criminal." Ten years ago the average time to trial in a general civil case in Los Angeles County was an eye popping five years. Reforms and increased efficiency reduced the wait to 16 months but Parachini says he expects civil case delays to spike again.

"In addition to the impact on the civil courts, our family and juvenile courts are about to take huge hits," says Don Mike Anthony, president of the Los Angeles County Bar Association. He says custody orders, divorce and child support matters that now take 30 days will soon take four months. In addition, the court will no longer provide financial support and supervising personnel to the Court-Appointed Special Advocates (CASA) program which works on behalf of abused, neglected and abandoned children involved in dependency court matters. Among the mundane cuts, a reduction of the popular night traffic court from twice to once a month.

"We have explored every financial scenario before taking this action, but more than 80% of our budget goes to salaries and benefits, which forces today's drastic measures," said McCoy. With annual court budget deficits expected to be as high as $140 million over the next four years, court officials say up to 1,800 staff positions may be eliminated. Last year, the California judicial council instituted a one-day per month closure of all state courts as both a cost-savings.
A series of unprecedented statewide court closures one day each month, while necessary to deal with California's budget crisis, will also bring unwanted case delays to thousands beginning this week, San Francisco's presiding superior court judge said today.

"This is not a proud day for us," Judge James McBride said at a news conference at San Francisco's civil courthouse. The court is one of several in San Francisco and throughout California that will close this Wednesday, and every third Wednesday through June of next year.

But McBride said the decision, made in July by the California Judicial Council, which oversees the state court system, was "the only rational choice to make," as opposed to "massive layoffs" of experienced court employees or cuts in court programs.

The closures, the equivalent of a new court holiday during which employees will not be paid, will affect each of the superior courts of California's 58 counties, as well as the six regional appeals courts and the California Supreme Court.

"We will be, in that week, cramming five days' work into four," McBride said.

"The work's not going to go away," he said.

The Judicial Council ordered the furlough days to help close the state judicial system's estimated $414 million deficit, which McBride called a "devastating crash in our budget."
The closures will save an estimated $94.3 million.

Many state judges, including in San Francisco, have also reportedly agreed to voluntary 5-percent salary givebacks to the courts. Superior court judges in California are paid approximately $179,000 per year.

"The unintended yet inevitable symbolism of 'Closed' signs on our courthouses — institutions that embody our nation's revered democratic ideas — is a graphic indication of the severity of California's economic crisis," said California Chief Justice Ronald George addressing the state legislature last year. "For many Californians the courts represent their primary — and sometimes their most important — interaction with state government. Courts are not a luxury to be funded in good times and ignored in bad times."

Meanwhile, the negative economic ripple effect of cuts to the Los Angeles civil courts could result in a nearly $30 billion hit to the local economy over the next four years, according to a study commissioned by the Los Angeles Superior Court. According to the study, the legal services industry would take an estimated $13 billion loss and businesses operating in uncertainty, because of pending civil disputes, would accumulate another $15 billion in potential losses. The decline in economic activity would then result in an additional $1.6 billion in losses.

A Sacramento judge who fought the once-a-month court closures by the state Judicial Council said the action is unwarranted locally and will result in monstrous new backlogs.

Superior Court Judge Maryanne G. Gilliard said the state could have made up the $94.3 million saved with the closures by cutting the Judicial Council's operational arm, the Administrative Office of the Courts, and scrapping a $1.1 billion computer system that many local judges have harshly criticized.

"I think that statewide closure of the courts by order of the Judicial Council is unprecedented and, beyond that, is unwarranted, especially in light of the fact that there are obvious areas in the AOC's own budget that could have been tapped in order to not restrict the public's constitutional right of access to their courts," Gilliard said in an interview in her chambers.

"This was an unnecessary order," she said.

The judge blasted the growth of the court administrative office's budget from $100 million to $177 million over the past five years and its increase in employees from 491 to 785. Agency officials have defended the increases as a reflection of their taking over executive authority for court operations throughout the state.

Gilliard said that as many as 20 county court systems in the state, including Sacramento's, have the resources to stay in operation and avoid the closures.

"We could keep our doors open, but we're being told we have to shut down because it's more important that there be uniformity rather than access to justice and the courts for those counties able to do so," she said.

In Sacramento, backlogged local courts have forced civil trials into years-long delays and Gilliard said the shutdown will extend delays to other areas.

"Let's talk about abused and neglected children whose cases are going to be delayed," Gilliard said. "Let's talk about crime victims. Let's talk about those accused of crimes. Let's talk about jurors who could be very well in the midst of deliberations on a murder trial being told they have to go home.

"It is significant, and the public should be aware that the Thursday after the Wednesday shutdowns, it's going to be monstrous in terms of dealing with the press of cases (that) we're not going to be able to get to on Wednesday," she said.

An LA Times editorial said that: With the potentially catastrophic effects of court closures and layoffs on our economy, you'd think that the Judicial Council, the statewide body that oversees courts, and its administrative agency, the AOC, would make solving this problem their top priority.

Unfortunately, the AOC and the Judicial Council have busied themselves with other tasks. An unfinished, $2-billion IT project, for example, has mushroomed over the last several years to more than five times its originally projected cost. There's no direct oversight of AOC's budget, no independent audits, no access to its internal records and no whistle-blowing protection for staff. In short, it's an entity that receives special legal protection by the state to operate outside the realm of public scrutiny and accountability, a status the justices who oversee it fiercely protect. The problem is so bad that in just one year, and with no staffing or budget, an organization of dissident judges who want more accountability for the AOC and Judicial Council has already signed on more than 10% of all state judges.

Monday, March 15, 2010

U.S. Consulate Workers Killed In Mexico Drug War.

First there was Bobby Salcedo form El Monte, California on New Year's Eve 2010. Being a School Board Member he was the first American elected official to be murdered in Mexico. On 13 March the Mexican Drug murders of Americans took an ominous turn.

The drug wars in Mexico took an ominous turn when a U.S. consulate employee and her husband were killed as they left a children's birthday party in Ciudad Juarez, Mexico's most violent city. Only minutes earlier gunmen also killed the Mexican husband of another member of the consular staff and wounded his two children.

While a number of US citizens have been killed in Mexico's increasingly bloody drug wars between rival cartels, it is the first time an American government employee has been killed.

President Barack Obama has expressed outrage over the killings, and Mexican President Felipe Calderon promised a swift investigation.

The three died during one of the bloodiest weekends so far in Mexico, with nearly 50 people murdered in gang violence. Another 13 people were killed in a gangland shoot-out in the Pacific resort city of Acapulco on Sunday.

The US consulate employee and her husband, identified as Lesley Enriquez, 35, and Athur Redelfs, 39, were shot to death on Saturday 13 March 2010 in their car near the Santa Fe International bridge linking Ciudad Juarez with El Paso, Texas.

According to the newspaper Diario de Juarez, gunmen chased the couple's white van shortly after 2 p.m. on Saturday, shooting at the vehicle until it swerved out of control, crashing into oncoming traffic near the bridge.

Ms Enriquez, who was four months pregnant with the couple's second child, was shot in the head, while her husband was shot in his neck and arm. When police officers arrived at the victims' bullet-riddled Toyota van, they discovered the couple's baby daughter crying disconsolately in the back seat, Diario de Juarez reported. At first the officers thought the seven-month-old girl had been wounded, but she was unharmed.

"This is shocking to everyone," Reuben Redelfs, the brother of the victim, told the Washington Post. "People need to know what's going on down here. It's become a war zone ..... It's just horrible what's happening."

At approximately the same time, the third victim, Jorge Alberto Salcido Ceniceros, 37, was killed as he travelled in another part of Juarez. The gunmen boxed in the man's car, shot him and wounded his two children, aged four and seven, according to media reports.

The attacks occurred as the US State Department was taking the unusual step of authorizing U.S. government employees at Ciudad Juarez and five other American consulates in northern Mexico to send their families out of the region because of concerns over the increasing bloodshed. That announcement was in the works before the murders, officials said.

President Obama was "deeply saddened and outraged" by the killings, the White House said.

"He extends his condolences to the families and condemns these attacks on consular and diplomatic personnel serving at our foreign missions," a White House statement said. "In concert with Mexican authorities, we will work tirelessly to bring their killers to justice."

Mr Calderon's office said the Mexican president "expresses his indignation" and "his sincerest condolences to the families of the victims." He "reiterated the Mexican government's unwavering compromise to resolve these grave crimes."

US Secretary of State Hillary Clinton extended her sympathy to the families of the victims and said Washington would continue to work with the Mexican government to bring drug traffickers to justice.

"These appalling assaults on members of our own State Department family are, sadly, part of a growing tragedy besetting many communities in Mexico," said Mrs Clinton. Washington was committed to: "work closely with the government of President Calderon to cripple the influence of trafficking organizations at work in Mexico," she said.

Ciudad Juarez a city of 1.3 million people just across the US border from El Paso, is at the epicentre of the drug wars that have devastated Mexico over recent years. In the last three years alone, 15,000 people have been murdered, many of them in turf wars between rival drug gans.

At least 18,000 people have been killed in Mexico since December 2006, when Mexican President Felipe Calderon deployed the army to battle increasingly powerful traffickers.

Alarmed by the brazen shootings, the State Department announced Sunday that employees at a string of U.S. consular offices along the Mexican border — Tijuana, Nogales, Ciudad Ju├írez, Nuevo Laredo, Monterrey and Matamoros — could evacuate their families to the United States.

The consular agency in Reynosa was temporarily closed in recent weeks after violence in that city grew.

Strengthening its travel warning for Mexico, the State Department said, "While most crime victims are Mexican citizens, the uncertain security situation poses serious risks for U.S. citizens as well."

Social Security to Start Cashing Federal Government's IOUs

PARKERSBURG, W.Va. – The retirement nest egg of an entire generation is stashed away in this small town along the Ohio River: $2.5 trillion in IOUs from the federal government, payable to the Social Security Administration.

It's time to start cashing them in.

For more than two decades, Social Security collected more money in payroll taxes than it paid out in benefits — billions more each year.

Not anymore. This year, for the first time since the 1980s, when Congress last overhauled Social Security, the retirement program is projected to pay out more in benefits than it collects in taxes — nearly $29 billion more.

Sounds like a good time to start tapping the nest egg. Too bad the federal government already spent that money over the years on other programs, preferring to borrow from Social Security rather than foreign creditors. In return, the Treasury Department issued a stack of IOUs — in the form of Treasury bonds — which are kept in a nondescript office building just down the street from Parkersburg's municipal offices.

Now the government will have to borrow even more money, much of it abroad, to start paying back the IOUs, and the timing couldn't be worse. The government is projected to post a record $1.5 trillion budget deficit this year, followed by trillion dollar deficits for years to come.

Social Security's shortfall will not affect current benefits. As long as the IOUs last, benefits will keep flowing. But experts say it is a warning sign that the program's finances are deteriorating. Social Security is projected to drain its trust funds by 2037 unless Congress acts, and there's concern that the looming crisis will lead to reduced benefits.

"This is not just a wake-up call, this is it. We're here," said Mary Johnson, a policy analyst with The Senior Citizens League, an advocacy group. "We are not going to be able to put it off any more."

For more than two decades, regardless of which political party was in power, Congress has been accused of raiding the Social Security trust funds to pay for other programs, masking the size of the budget deficit.

Remember Al Gore's "lockbox," the one he was going to use to protect Social Security? The former vice president talked about it so much during the 2000 presidential campaign that he was parodied on "Saturday Night Live."

Gore lost the election and never got his lockbox. But to illustrate the government's commitment to repaying Social Security, the Treasury Department has been issuing special bonds that earn interest for the retirement program. The bonds are unique because they are actually printed on paper, while other government bonds exist only in electronic form.

They are stored in a three-ring binder, locked in the bottom drawer of a white metal filing cabinet in the Parkersburg offices of Bureau of Public Debt. The agency, which is part of the Treasury Department, opened offices in Parkersburg in the 1950s as part of a plan to locate important government functions away from Washington, D.C., in case of an attack during the Cold War.

One bond is worth a little more than $15.1 billion and another is valued at just under $10.7 billion. In all, the agency has about $2.5 trillion in bonds, all backed by the full faith and credit of the U.S. government. But don't bother trying to steal them; they're nonnegotiable, which means they are worthless on the open market.

More than 52 million people receive old age or disability benefits from Social Security. The average benefit for retirees is a little under $1,200 a month. Disabled workers get an average of $1,100 a month.

Social Security is financed by payroll taxes — employers and employees must each pay a 6.2 percent tax on workers' earnings up to $106,800. Retirees can start getting early, reduced benefits at age 62. They get full benefits if they wait until they turn 66. Those born after 1960 will have to wait until they turn 67.

Social Security's financial problems have been looming for years as the nation's 78 million baby boomers approached retirement age. The oldest are already there. As that huge group of people starts collecting benefits — and stops paying payroll taxes — Social Security's trust funds will shrink, running out of money by 2037, according to the latest projection from the trustees who oversee the program.

The recession is making things worse, at least in the short term. Tax receipts are down from the loss of more than 8 million jobs, and applications for early retirement benefits have spiked from older workers who were laid off and forced to retire.

Stephen C. Goss, chief actuary for the Social Security Administration, says the crisis has been years in the making. "If this helps get people to look more seriously at that in the nearer term, that's probably a good thing. But it's only really a punctuation mark on the fact that we have longer-term financial issues that need to be addressed."

In the short term, the nonpartisan Congressional Budget Office projects that Social Security will continue to pay out more in benefits than it collects in taxes for the next three years. It is projected to post small surpluses of $6 billion each in 2014 and 2015, before returning to indefinite deficits in 2016.

For the budget year that ends in September, Social Security is projected to collect $677 million in taxes and spend $706 million on benefits and expenses.

Social Security will also collect about $120 billion in interest on the trust funds, according to the CBO projections, meaning its overall balance sheet will continue to grow. The interest, however, is paid by the government, adding even more to the budget deficit.

While Congress must shore up the program, action is unlikely this year, said Rep. Earl Pomeroy, D-N.D., who just took over last week as chairman of the House subcommittee that oversees Social Security.

"The issues required to address the long-term solvency needs of Social Security can be done in a careful, thoughtful and orderly way and they don't need to be done in the next few months," Pomeroy said.

The national debt — the amount of money the government owes its creditors — is about $12.5 trillion, or nearly $42,000 for every man, woman and child in the country. About $8 trillion has been borrowed in public debt markets, much of it from foreign creditors. The rest came from various government trust funds, including retirement funds for civil servants and the military. About $2.5 trillion is owed to Social Security.

Good luck to the politician who reneges on that debt, said Barbara Kennelly, a former Democratic congresswoman from Connecticut who is now president of the National Committee to Preserve Social Security and Medicare.

"Those bonds are protected by the full faith and credit of the United States of America," Kennelly said. "They're as solid as what we owe China and Japan."


Tuesday, March 9, 2010

Treasury Dept Targets Older Americans On Fixed Income.

Social Security Checks Getting Smaller
Govt to Collect Old Loans and Debts from Social Security Benefits

A little–noticed law could soon result in smaller Social Security checks for hundreds of thousands of the elderly and disabled who owe the U.S. money from defaulted loans and other debts more than a decade old.

Social Security benefits are off–limits to creditors, such as credit–card companies and banks. But the U.S. can collect debts to federal agencies by "offsetting," or withholding Social Security and disability payments.

The Treasury currently withholds benefits of 3.1 million Social Security recipients to recover defaulted student–, farm– and small–business loans, unpaid income taxes, amounts veterans owe for health care, and other debts to the government.

Previously, the U.S. hasn't been able to withhold Social Security payments to recover most debts delinquent for more than ten years.

But a provision in the 2008 Farm Bill lifted the ten–year statute of limitations on the government's ability to withhold Social Security benefits in collecting debts other than student loans—for which the statute of limitations was lifted in 1997—and income taxes, where the limit remains 10 years.

This means that a person who defaulted on a small–business loan in 1995, for example, and who is receiving Social Security could be notified that his benefits may be reduced each month until the debt, with interest, fees, and penalties, is paid. The Treasury can withhold 15% of the benefit, though it can't be reduced to below $750. Tax debts have no floor.

The change will add more than $6 billion to the $75 billion in delinquent debt individuals owe the government, according to the Financial Management Service, the Treasury's debt collection unit.

A Treasury spokesman says the new legislation "allows Treasury's Financial Management Service to collect older debts and levels the playing field so that all eligible debts, regardless of age, are subject to debt collection. Treasury expects this legislation will result in increased collections of $10 million per year in delinquent federal non–tax debt."

Though no one argues that people shouldn't repay their debts, the change is coming at a challenging time for older Americans already pinched by mortgage woes, pension cuts and spiraling medical costs.

The shift applies to debtors of all ages, but Social Security recipients will bear much of the brunt. A Wall Street Journal analysis of Treasury Department data shows that Social Security recipients comprise a large and growing percentage of people from whom the Treasury recovers debts.

For years, most debt the Treasury collected through its "Offset Program," came from withholding income–tax refunds. But with an aging population and growing unemployment, roughly 10% of the $4.3 billion in debts collected by the Treasury came from Social Security benefits in 2008, the latest figures available. That's up from 1.6% in 2001, according to Journal computations that the Treasury confirms.

Though the law has expanded the age of debts that can be recovered, it hasn't addressed the sometimes–Kafkaesque process debtors can face when challenging the validity of a claim.

Consider the predicament of Dr. Robert Steinberg, the founder of Scharffen Berger chocolates, who spent more than six years and thousands of dollars in legal fees appealing the Social Security Administration's claim that he owed it more than $28,000.

Dr. Steinberg received disability benefits in the early 1990s while undergoing chemotherapy for lymphoma, a condition that ultimately claimed his life. Dr. Steinberg returned to work sporadically at a free clinic before co–founding the chocolate company.

Year later, the Social Security Administration notified Dr. Steinberg he was overpaid in the 1990s. In May 2002, with the matter still unresolved, the agency turned the debt over to the Treasury for collection.

In Oct. 2002, administrative law judge Gary Lee found that the Social Security Administration had never established the amount of the overpayment; had dismissed an earlier appeal "for spurious reasons"; had misinformed Dr. Steinberg and mishandled his later appeals; and had lost his file. He noted that Dr. Steinberg was "without fault," and told the agency to stop its collections efforts.

Dr. Steinberg died in 2008, at 61. His lawyer, Peter Young, a former staff attorney for the Social Security Administration, has handled more than 100 overpayment cases, "very few of which were accurate," he says. "Most people can't find or afford help, and give up very quickly and end up with painful offsets on a fixed budget."

An agency spokeswoman says mistakes can happen, but "over all, the process works."

A Treasury spokesman says the new regulations require agencies seeking to recover debts more than a decade old to give debtors the right to review and copy their files, make payment arrangements, and apply for disability and hardship waivers.

But a recent dispute about a student loan shows that even with these rights, a person challenging an old debt can face hurdles similar to homeowners in foreclosure trying to modify a loan that has been resold.

In 2003, the U.S. began withholding $173 a month in Social Security benefits from Annie Brown, a paralyzed 75–year–old widow living in a nursing home to repay a defaulted $8,823 student loan the Education Department says she took out in 1989. The offset reduced Mrs. Brown's benefit to about $980 a month.

Mrs. Brown said a granddaughter had forged her signature on a loan application. Her daughter and a lawyer spent more than four years disputing the debt with the owner of the loan, United Student Aid Funds, a student–loan guarantor that also was acting as one of the Education Department's 21 debt collectors. USA Funds itself farms out various debt–collection activities to others, which it did in Mrs. Brown's case.

Between 2003 and 2008, Mrs. Brown's daughter and Lynn Drysdale, a legal–aid lawyer in Jacksonville, Fla., corresponded numerous times with USA Funds and two other debt–collection companies it hired. One letter from USA Funds warned that unless documents were received "within 30 days from the date this letter was generated...your case will be closed." The letter was undated. Another letter required Mrs. Brown to refer to an attached document. There was no attachment. "I don't know how a lay person could maneuver through this process," says Ms. Drysdale. "Nobody seemed to know what was needed."

In 2007, USA Funds denied Mrs. Brown's claim, citing a recently passed federal rule requiring people claiming identity theft on student loans to obtain a criminal court verdict of the crime. That was impossible for Mrs. Brown; a statute of limitations for bringing a case had passed years earlier. In any case, she wasn't alleging identity theft, but forgery.

Robert Murray, a spokesman for USA Funds, agrees that Mrs. Brown's signature was forged. "It's absolutely a forgery," he says, "It \[the loan\] should never have been made."

But he says that USA Funds couldn't discharge the loan as a forgery because Mrs. Brown didn't return a required form in 2005, and that USA Funds must rigorously defend claims. "There are borrowers who want to get out of a legitimate debt," he says. "By the same token, we want to work with individuals who have a legitimate issue."

Ms. Drysdale, the legal–aid lawyer, finally sought to obtain a disability waiver for her client. That process took more than a year, and was achieved only after Ms. Drysdale asked for help from the Social Security Administration's ombudsman, who declined to comment.

In August 2009, the Education Department agreed that Mrs. Brown is permanently disabled, and discharged her obligation to repay the loan she never took out. The Treasury returned her withheld benefits in December.
by Ellen E. Schultz
Write to Ellen E. Schultz at