CAAF will hear oral argument in the Army case of United States v. Adams, 14-0495/AR (CAAFlog case page), on Wednesday, January 14, 2015. The court will review the application of the corroboration rule, with the following issue:

Whether the Army Court of Criminal Appeals erred in finding that the military judge did not abuse his discretion in admitting the portion of Appellant’s sworn statement regarding the [theft] of cocaine because the Government failed to corroborate, in accordance with Military Rule of Evidence 304(g), the essential fact that appellant took cocaine.

Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of one specification of larceny in violation of Article 121 (as a lesser included offense of the charged offense of robbery in violation of Article 122). He was sentenced to confinement for 165 days, reduction to E-1, and a bad-conduct discharge.

Appellant’s conviction was based on an alleged armed robbery of cocaine from a local drug dealer. Acting on a tip from another soldier identified as an accomplice in the theft (but who did not testify at trial because he was in an unauthorized absence status), Army investigators searched Appellant’s home and discovered “several bags of suspected synthetic marijuana, smoking devices, a syringe, a handgun and magazines,” but no cocaine. Appr. Br. at 4. Appellant was then interrogated, and he gave a written statement in which he admitted to stealing cocaine from the drug dealer, using a S&W handgun (the same type of handgun seized from his home), near a local WalMart.

The statement given by Appellant was admitted at trial over a Defense objection on corroboration grounds. The corroboration rule – M.R.E. 304(g) (2012) (relocated to M.R.E. 304(c) (2013)) – permits use of an admission or confession of the accused against the accused “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.” Additionally,

If the independent evidence raises an inference of the truth of some but not all of the essential facts admitted, then the confession or admission may be considered as evidence against the accused only with respect to those essential facts stated in the confession or admission that are corroborated by the independent evidence.

M.R.E. 304(g) (2012) (relocated to M.R.E. (c)(2) (2013)). In this case the Government did not present corroborating testimony from Appellant’s accomplice or from the victim. Rather, the Government presented the testimony of Army investigators. That testimony directly corroborated the existence of a suspected drug dealer matching Appellant’s description of his alleged victim (who was known to the investigators), the existence of the handgun (as seized from Appellant’s home), and the existence of a local WalMart fitting Appellant’s description of the location of the alleged larceny. However, the testimony did not directly corroborate the existence of any cocaine.

Nevertheless, the military judge ruled that Appellant’s confession to stealing cocaine was admissible based on the items found in Appellant’s home, the corroboration of the location, and “the slight corroboration required by the rule and case law.” App. Br. at 8 (quoting record). On review, the Army CCA found that the military judge did not abuse his discretion in making that ruling, and the CCA affirmed the findings and sentence. CAAF then granted review in Adams and in another case also presenting a corroboration issue: United States v. Bennett, No. 14-0658/AR (grant discussed here).

Appellant’s brief focuses on the requirement for corroboration of “the essential facts” of a confession in M.R.E. 304(g) (2012):

What is and what is not an essential fact is subjective, viewed from the declarant’s vantage. . . . Specialist Adams’ statement similiarly cannot be read without the following essential fact: “Tuberville [the accomplice] grabbed the coke & we got out of Ootz [the dealer’s] car.” (JA 97). Indeed this fact is the essence of SPC Adams’ confession.

App. Br. at 16. The military judge and the Army CCA rejected this argument, with the CCA reasoning that “the issue is not whether the government failed to corroborate whether appellant ‘took cocaine,’ but rather whether the corroborating evidence justifies the inference as to the truth of the essential facts of the confession.” United States v. Adams, No. 20110503, slip op. at 3 (A. Ct. Crim. App. Jan. 29, 2014). Appellant’s brief offers a hypothetical posed by the military judge to explain why he believed this reasoning is wrong:

[The military judge’s] misapplication of Mil. R. Evid. 304(g) is perhaps best articulated in his own analogous hypothetical posed to defense counsel:

I confess to robbing a bank and using a gun. They introduce a gun in my trial. You are saying that is not enough in terms of corroboration [?]. The corroboration has to be specific [?]

(JA 61). The answer is yes. If the essential fact admitted is “I robbed a bank” then the gun offered at trial must imply “a bank was robbed,” “I robbed a bank,” and “I used a gun to rob a bank” are true to corroborate it. Corroboration requires a fact that is unique to both the accused and the alleged offense.

App. Br. at 24.

The Government’s response is that adequate corroboration was introduced through “circumstantial evidence due to the perishable nature of the stolen property, the fact that they stole from a known dealer, and the informant’s confirmation of the presence of cocaine.” Gov’t Br. at 14. The Government also relies heavily on CAAF’s decision in United States v. Seay where the court affirmed admission of a confession to stealing a wallet despite no evidence that the victim (who was murdered prior to the theft) actually possessed a wallet:

When a person confesses to participation in the larceny of a wallet, it is reasonable to infer the truth of the confession from the fact that the victim named in the confession knew the Appellant, died as a result of foul play, was found in a concealed place, and did not have a wallet at the time or thereafter.

60 M.J. 73, 80 (C.A.A.F. 2004). In Adams, the Government’s brief explains that:

Appellant’s case has more compelling corroboration than Seay. Finding that a known drug dealer possessed drugs is more logical than finding that a soldier carried a wallet. Unlike Seay, which lacked independent evidence from which to infer the existence of a wallet, the independent CID investigation identifying Ootz as a drug dealer begs the inference that he possessed a drug – cocaine.

Gov’t Br. at 15-16.

The evidence in Adams might be significantly more corroborative than the evidence in Seay, but that may not really matter. Of the five judges who were part of CAAF when Seay was decided, only Chief Judge Baker and Judge Erdmann remain on the court. And both of them dissented from CAAF’s decision in Seay, with an opinion written by Judge Erdmann, finding that:

Relying on these inferences as independent evidence, the majority opinion stretches the corroboration requirement beyond the breaking point. The corroboration rule requires independent evidence upon which inferences can be drawn, not inferences which substitute for evidence. Apart from the confession itself, no evidence suggests that [the victim] ever possessed a wallet at all, much less that he was carrying one at the time of his murder.

70 M.J. at 82 (Erdmann, J., dissenting). Assuming Chief Judge Baker and Judge Erdmann would still dissent from the majority opinion in Seay, they need only convince one other judge in order to overrule the precedent set by that case.

Moreover, the following language from the Supreme Court’s opinion in Opper v. United States seems particularly applicable to the facts of Adams:

The need for corroboration extends beyond complete and conscious admission of guilt – a strict confession. Facts admitted that are immaterial as to guilt or innocence need no discussion. But statements of the accused out of court that show essential elements of the crime, here, payment of money, necessary to supplement an otherwise inadequate basis for a verdict of conviction, stand differently. Such admissions have the same possibilities for error as confessions. They, too, must be corroborated.

348 U.S. 84, 91 (1954). Appellant’s conviction is of larceny. It is perhaps unnecessary to support that conviction for the Government to prove that Appellant actually took cocaine rather than merely some item of value, but it seems unavoidable that the Government must present independent evidence to corroborate Appellant’s admission that there was in fact a wrongful taking.

However, the Government may well have accomplished this at trial, though only as the result of a failure of Appellant’s defense counsel to make a proper objection:

Special Agent SV explained the ongoing investigation of “Matthew 0[otz].” Special Agent SV looked through open case files, but did not examine the confession of appellant and determined that Ootz, a former soldier and current “drug dealer in the local area,” had fallen victim to a recent robbery. Appellant made no objection to this evidence.

Gov’t Br. at 10 (emphasis added). A footnote adds:

Appellant’s “[f]ailure to object to the admission of evidence at trial forfeits appellate review of the issue absent plain error.” United States v. Eslinger, 70 M.J. 193, 197-98 (C.A.A.F. 2011) (citations omitted). Without objection, the court had no opportunity to correct any possible error. United States v. Knapp, 73 M.J. 33, 36 (C.A.A.F. 2014). “[A]dmission of hearsay will not be error unless there is an objection to the hearsay.” MCM, Military Rule of Evidence 802, analysis at A22-53. Even if Special Agent SV relied on hearsay or her testimony amounted to inadmissible hearsay, the lack of objection from appellant at trial renders her testimony evidence before the court-martial and evidence properly considered on appellate review.

Gov’t Br. at 10 n.60. The Agent’s testimony that the drug dealer was the victim of a theft was undoubtedly hearsay, as there is no indication that the Agent actually witnessed a theft. And the Government’s brief functionally acknowledges that this testimony should not have been admitted.

Of note, Appellant’s brief doesn’t address this testimony directly, but it does indicate hearsay objections at the same point in the record. Compare App. Br. at 26-27 with Gov’t Br. at 10. But this corroboration of a theft, in conjunction with the corroborated admissions of the place, weapon, and victim, may well be enough to sustain Appellant’s conviction even if Seay is overruled.

Because of this, I predict that next week’s oral argument will begin with consideration of what evidence was properly admitted at trial (and what evidence CAAF should consider in its review) before exploring whether at least three judges on the current court are prepared to overrule Seay.

Case Links:
ACCA opinion
Appellant’s brief
Appellee’s (Government) brief
Blog post: Argument preview

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