In a recent published opinion from AFCCA, United States v. McPherson, No. S32068, 72 M.J. 862 (Af. Ct. Crim. App. 19 Nov 2013), we learn two important things. First, if you’re going to break up with your girlfriend, you should probably wait until you get back from deployment and can retrieve the box of contraband steroids that you left in her possession. Otherwise, they might find their way over to AFOSI. This principle is what might be called a “criminal best practice.” The second thing we learn, and more relevant for the purposes of this blog, is that, in the view of the AFCCA, an accused’s confession to possession of illegal drugs can be corroborated by evidence that did not exist until years after that possession. If you’re having trouble wrapping your head around that, read on.
In McPherson, the Appellant was convicted of, among other things, fraudulent enlistment for deliberately concealing his possession of anabolic steroids prior to his enlistment in the Air Force. The case came about when Appellant deployed to Iraq and left his “stash” of anabolic steroids in the possession of his then girlfriend, Senior Airman SK. He told his girlfriend that he only distributed these steroids and did not take them himself. Because that somehow makes it better. The steroids were contained in a blue box, which was in the Appellant’s storage unit.
Sadly, things did not work out between the Appellant and SrA SK and they broke up while he was in Iraq. Unsurprisingly, SrA SK mysteriously grew a conscience and made a trip over to AFOSI to let them know that her now ex-boyfriend was distributing steroids. Since he had left all his worldly possessions in her care, she gave AFOSI permission to seize the blue box. In the blue box were foil packets of something called Glucotika, hypodermic needles, and vials of a Proviron, an anabolic steroid and Schedule III substance.
AFOSI interviewed the Appellant and he stated that he brought the blue box, and the “supplements” in it, with him from California when he entered the military. He admitted to using steroids before entering the Air Force, and to keeping steroids for a friend, some of which may have been the Proviron found in the blue box. He also informed AFOSI that he had more steroids at his house that were the remainder of a distribution he had made to a fellow Airman. He also indicated that he was planning to use these steroids when he had more time for the gym. Finally, the Appellant was ordered to provide a urine sample, which tested positive for Stanozolol, a Schedule III controlled substance.
The basis for the fraudulent enlistment charge was that on 17 October 2007, the Appellant completed the Air Force Alcohol and Drug Abuse Certificate indicating he had never “experimented with, used, or possessed any illegal drug or narcotic.” The form included anabolic steroids in a list of illegal drugs.
At trial the Appellant’s defense counsel moved to suppress his confession about possession of drugs prior to enlistment due to lack of corroboration. This was in part due to the fact that the government’s forensic chemist testified at trial that the steriods found in the blue box had markings on them indicating a likely manufacturing date of February 2011, three years after the Appellant entered the Air Force. As we all know, under MRE 304(g)
An admission or a confession of the accused may be considered as evidence against the accused on the question of guilt or innocence only if independent evidence, either direct or circumstantial, has been introduced that corroborates the essential facts admitted to justify sufficiently an inference of their truth.
The trial judge denied Appellant’s motion finding that the following facts established corroboration:
the appellant resided in California when he enlisted, he travelled to Mountain Home Air Force Base (AFB), Idaho, in 2008 when he joined the Air Force, he demonstrated knowledge of the “blue bin” and its contents, and he distinguished between the steroids and supplements he purchased while on active duty from those he possessed prior to enlisting.
In finding that the military judge did not abuse his discretion and denying Appellant relief on this claim, the AFCCA said:
The military judge did not abuse his discretion in concluding the very low standard for corroboration was met. The later testimony of the forensic chemist that a marking on the bottle might be a manufacturing date after the appellant’s enlistment does not negate the appellant’s confession. In fact, the appellant’s possession of steroids and supplements concurrent with his admission further corroborates the confession of previous possession. Moreover, the presence of steroid metabolites in his urine adds to the quantum of evidence available to corroborate his admission.
We also consider the appellant’s statement of intended future use of steroids as corroboration of his confession to pre-service use and possession. Here, the appellant stated that he intended to use the steroids in his possession in the same manner and for the same purpose as he did before he came into the Air Force. A statement of anticipated future misconduct does not need to be corroborated and can serve to corroborate a confession. United States v. Swenson, 51 M.J. 522, 525 (A.F. Ct. Crim. App. 1999).
In the Swenson case, which the AFCCA cites to, the accused told a fellow Airman that he was planning on using LSD while he was home on leave. When the accused returned from leave, he was questioned by AFOSI and confessed to using LSD. The court in Swenson found that the accused’s prior statement of criminal intent was sufficient corroboration for his confession of later criminal activity. That finding makes a certain amount of logical sense to me, since in my experience time tends to flow one direction. You tell someone you’re going to do something, you do it, then you admit to it. Corroboration. Makes sense to me.
In McPherson however, the AFCCA explicitly finds that a confession of intent to use drugs in the future is corroboration of past drug possession. Nothing in Swenson stands for that proposition and it frankly doesn’t make much sense. In that case the flow would be: You do something, years later you tell someone you plan to do something similar but different, you never complete that act. Something doesn’t add up there.
The result here is not necessarily wrong, and essentially the AFCCA could have stopped after the first paragraph about the Appellant’s contemporaneous drug use. That finding would be supported by Swenson, since in fact the accused there was also convicted of fraudulent enlistment for failing to disclose pre-service drug use. It also comports with the well-settled jurisprudence on MRE 304(g):
The corroboration requirement for admission of a confession at court-martial does not necessitate independent evidence of all the elements of an offense or even the corpus delicti of the confessed offense. Rather, the corroborating evidence must raise only an inference of truth as to the essential facts admitted. Moreover, while the reliability of the essential facts must be established, it need not be done beyond a reasonable doubt or by a preponderance of the evidence.
United States v. Cottrill, 45 M.J. 485, 489 (C.A.A.F. 1997) (citations omitted).
Extending corroboration of past misconduct to include a statement of intent to commit future misconduct doesn’t make sense logically, at least for us mere mortals who are unable to move freely about in four dimensions. After reading this opinion, I’m convinced the parking lot at AFCCA looks something like this.