CAAF decided the Army case of United States v. Swift, 76 M.J. 210, No. 16-0407/AR (CAAFlog case page) (link to slip op.), on Wednesday, April 26, 2017. Considering “the Government’s surprising assertion that the ACCA’s Article 66(c), UCMJ, review is defensible here,” CAAF finds that the CCA improperly based its review “solely by reference to uncharged conduct.” Slip op. at 11 (emphasis in original). Accordingly, CAAF remands the case for a new Article 66(c) review by the CCA. But the court also finds that any error in the admission of an uncorroborated confession was waived by both the failure to object and an affirmative statement that the defense had no objection.

Judge Ryan writes for a unanimous court.

CAAF granted review of three issues:

I. Whether the Army court denied appellant his substantial right to an Article 66(c) review by affirming the findings and sentence on uncharged misconduct presented at trial rather than the charged offenses.

II. Whether the military judge erred by admitting appellant’s pretrial statement where there was no independent evidence to corroborate the essential facts admitted.

[specified issue] III. Whether the evidence of the two convictions of indecent acts with a child is legally sufficient.

Specialist (E-4) Swift was twice convicted of two specifications of indecent acts with a child in violation of Article 134. The first conviction was reversed on appeal in 2012 because the Government failed to allege a terminal element (noted here). At a rehearing before a general court-martial composed of a military judge alone, Swift was again convicted and he was sentenced to confinement for 11 years, reduction to E-1, and a dishonorable discharge.

The charges against Swift alleged that he committed indecent acts with his daughter on two occasions: the first in 2003 and the second in 2007. Swift admitted to touchings during the charged time periods, but he asserted that both were inadvertent. The charges were based on Swift’s admissions, and alleged acts that Judge Ryan refers to as the “Hawaii Bedside Incident” and the “Texas ‘Old Flame’ Incident.” Slip op. at 3. But the prosecution also offered evidence of three other alleged (but uncharged) incidents under Mil. R. Evid. 404(b) and 414: the “Couch ‘Peeing’ Incident,” the “Hawaii Van Indicent,” and the “Texas Pool Incident.” Slip op. at 4-5. The military judge allowed this evidence “without ever actually ruling on whether [it was] admissible under M.R.E. 404(b) or 414.” Slip op. at 8.

On appeal, the Army CCA also “did not rule on whether the incidents of uncharged conduct were admissible under either M.R.E. 404(b) or 414. Instead, the ACCA facially treated them as if they were the charged conduct, concluded the findings of guilty were legally and factually sufficient, and affirmed.” Slip op. at 10. The CCA’s decision “affirmed the findings and sentence, albeit solely by reference to evidence of uncharged misconduct.” Slip op. at 9.

That, explains Judge Ryan, was wrong.

[W]here, as here, a CCA’s Article 66(c), UCMJ, factual and legal sufficiency review appears to affirm the findings of guilty based solely upon uncharged misconduct, it is legally deficient, and a proper Article 66(c), UCMJ, review must be conducted upon remand from this Court.

Slip op. at 2. Some recognized limitations on a CCA’s review include that it “is confined to ‘findings of guilty’ ‘approved by the convening authority,'” that “an accused may only be found guilty of an offense with which he was charged, as well as any lesser-included offenses thereunder—and it is only those offenses that may be affirmed by a reviewing court,” and that “an appellate court may not affirm a conviction based on a theory not presented to the trier of fact.” Slip op. at 10-11 (citations omitted). So:

It is against this legal backdrop that we consider the Government’s surprising assertion that the ACCA’s Article 66(c), UCMJ, review is defensible here. The error here is not, as the Government suggests, some minor gap or variance between pleadings and proof. Rather, the legal problem is the basis upon which the ACCA affirmed Appellant’s convictions. The Government’s position at trial (from the staff judge advocate’s recommendation to reprosecute the “same misconduct” all the way up through closing arguments) was that the charged misconduct consisted of the two incidents described in Appellant’s confession, the Hawaii Bedside and Texas “Old Flame” Incidents. Relatedly, the Government repeatedly maintained through its pretrial motions and arguments that the Couch “Peeing,” Hawaii Van, Texas Pool, and Texas Bedside Incidents reflected uncharged conduct.

With these distinctions and instances of conduct demarcated as they were by the Government, there is no reasonable basis upon which it can base its defense of the ACCA’s Article 66(c), UCMJ, review, which affirmed the findings of guilty solely by reference to uncharged conduct. The CCA simply may not substitute uncharged for charged conduct as either the basis for a conviction or the basis for affirming a finding of guilty under Arti-cle 66(c), and its review was legally infirm.

Slip op. at 11 (emphases in original) (citations omitted). These are some tough words that certainly appear to be directed more at the Army Appellate Government Division than at the CCA whose decision is at issue.

CAAF’s decision on this issue means a new review by the Army CCA, and so Judge Ryan does not address the specified issue regarding the sufficiency of the evidence. She does, however, explicitly authorize the CCA to consider Swift’s confession. Judge Ryan explains that:

With respect to the ACCA’s review on remand, the court may consider Appellant’s pretrial confession that was admit-ted without objection at trial. Appellant argues, first, that the military judge plainly erred in admitting his pretrial confession without sua sponte evaluating whether there was independent evidence to corroborate the essential facts admitted therein and, second, that no such corroboration exist-ed. But Appellant not only failed to object to the admission of his confession on the grounds of insufficient corroboration, he explicitly stated he had “[n]o objection” when the Government proffered his sworn statement. He also affirmatively agreed to its use in deliberations. Based both on the ordinary rules of waiver, United States v. Campos, 67 M.J. 330, 332–33 (C.A.A.F. 2009), and the specific dictates of M.R.E. 304(f)(1), Appellant waived his right to complain that his confession was inadmissible because it lacked corroboration.

Slip op. at 12. The analysis of this issue includes a citation to last week’s decision in United States v. Ahern, 76 M.J. 194, No. 17-0032/AR (C.A.A.F. Apr. 20, 2017) (CAAFlog case page), where the court found waiver from the fact that the defense not only did not object to admission of a statement, but also affirmatively stated that it had no objection. The same things happened in Swift:

First, as a general proposition of law, “no objection” constitutes an affirmative waiver of the right or admission at issue. See Campos, 67 M.J. at 332–33. Appellant was fully aware of the content of the statement, and he had numerous opportunities to contest its admission and use. Second, adding rule-based suspenders to the ordinary waiver belt, M.R.E. 304(f)(1) provides that any objection under M.R.E. 304, which broadly governs “Confessions and admissions,” to the admission of a confession shall be made before the submission of a plea, and that “[f]ailure to so move or object constitutes a waiver of the objection.” M.R.E. 304(f)(1). By its terms, M.R.E. 304(f)(1) applies to objections based on a lack of corroboration under M.R.E. 304(c), and Appellant’s claim was waived.

Slip op. at 12-13.

That adds this case to the list of CAAF opinions this term emphasizing the importance of trial-stage objections. See United States v. McClour, 76 M.J. 23 (C.A.A.F. Jan. 24, 2017) (CAAFlog case page); United States v. Gomez, 76 M.J. 76 (C.A.A.F. Jan. 30, 2017) (CAAFlog case page); United States v. Ahern, 76 M.J. 194, No. 17-0032/AR (C.A.A.F. Apr. 20, 2017) (CAAFlog case page).

Case Links:
ACCA opinion
Blog post: Two interesting CAAF grants involving the hearsay rule
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

6 Responses to “Opinion Analysis: CAAF finds the CCA’s review indefensible in United States v. Swift, No. 16-0407/AR”

  1. Vulture says:

    Noting that one of the military judges in this case is the same as Ahern.  Based on his publication of “rules” as found on the JPP website here: “Rules” I will leave it to the readers to decide whether these are orderly, ethical, and just.

  2. k fischer says:

    I’m a little confused on the corroboration issue.  I guess lack of corroboration wasn’t argued at trial in closing arguments, which is what I would hope I would have argued. 
     
    But, I might not have objected for lack of corroboration when the confession was offered because I might have assumed the Government was going to offer admissible evidence of corroboration later.  And it is kind of difficult to file a motion to suppress evidence for lack of corroboration prior to a plea.  I would probably object at the close of the Government’s rebuttal case because it would only be at that point that I would be for sure that the confession was not corroborated.
     
    I always thought that a conviction based on a confession had to have evidence of corroboration and that is an issue to be argued during a 917 motion, rather than before the statement is admitted.  And, it was more of a legal issue, rather than a factual issue.  So, in a case like this, the Defense counsel can hold back and let the Government try the case, then at the close of the Government’s case argue lack of corroboration.  I’m glad this issue popped up because that is certainly something I would have tried based on MRE 305(c)(5) thinking that the military judge alone determines when adequate evidence of corroboration is received.  And that would have been quite ineffective based on this opinion.

  3. Zachary D Spilman says:

    Corroboration is both a question of law (Mil. R. Evid. 304(c)) and question of fact (Benchbook ¶ 4-1). 

    The asserted error here was the question of law. “But Appellant not only failed to object to the admission of his confession on the grounds of insufficient corroboration, he explicitly stated he had ‘[n]o objection’ when the Government proffered his sworn statement.” Slip op. at 12. So it was waived. 

  4. k fischer says:

    ZS,
     

    Sterling argues that his conviction for the drug trafficking and firearm offenses rests solely on his videotaped confession. Under a longstanding rule of criminal law, an accused may not be convicted on the basis of his uncorroborated extrajudicial confession. Although commentators doubt the need for this rule, particularly following the development of Fifth Amendment protections,1 the Supreme *456 Court has held that the requirement applies even to crimes where no tangible injury results. Smith v. United States, 348 U.S. 147, 154, 75 S.Ct. 194, 198, 99 L.Ed. 192 (1954). We treat this argument as a challenge to the sufficiency of the evidence,2 which we review de novo without deference to the district court.
     
    U.S. v. Sterling, 555 F.3d 452, 455–56 (5th Cir. 2009)

     
    Based on this holding, I would think that the confession is admissible, but was insufficient evidence to establish PBARD because it was not corroborated.  I don’t think you can waive that argument, can you?  However, other cases treat lack of corroboration as an issue affecting the admissibility of the confession, like CAAF did in Swift:
     

    “If there is extrinsic evidence tending to corroborate the confession, the confession as a whole is admissible.” United States v. Deville, 278 F.3d 500, 507 (5th Cir.2002) (quoting United States v. Gravitt, 484 F.2d 375, 381 (5th Cir.1973)).
     
    U.S. v. Sterling, 555 F.3d 452, 456 (5th Cir. 2009)
     

     
    So, essentially, if the confession is admitted without objection for lack of corroboration, then it can be used to convict someone, even though no other extrinsic evidence is admitted to corroborate the confession.  So, in Courts-martial practice, when the SVP calls the CID agent up to authenticate the sworn statement of the accused, the DC must object based on lack of corroboration, even though the very next witness might or might not be the alleged vic, otherwise the objection for lack of corroboration is waived and the accused can be convicted for an uncorroborated confession.  Is this correct?

     

  5. Scott says:

    I think that is correct. Corroboration is a prerequisite to admission so the corroborating evidence should be introduced before the confession. Sometimes the MJwill conditionally admit a statement before corroboration if the gov proffers that there will be some – then if the gov doesn’t deliver the statement will be removed or redacted later. 
     
    If there’s going to be a corroboration issue it seems to often be litigated beforehand (unless the D.C. Thinks the TC doesn’t know the rules and doesn’t want to tip them off).  But if there’s a known lack of corroboration that can’t necessarily be fixed (e.g. Non participating victim), it’s often just as well to pre-litigate so you know what to expect at trial  
     
    There was a small window after Adams where corroboration was a big issue. But with the rule change the standard is quite low in current trials.  I was on the gov side during most of it.  Would have loved to be defense.
     
    Sorry for poor typing, phone is acting up. 

  6. Zachary D Spilman says:

    You’re on the right track k fischer.

    The confession must be corroborated to be admissible (a question of law). Whether that condition was satisfied in Swift was the second granted issue, but it was waived at trial.

    The confession must also be corroborated to be believed (a question of fact). That’s a matter of both factual and (perhaps) legal sufficiency. The factual sufficiency part must be resolved by the CCA (with a proper Article 66(c) review). The legal sufficiency part was the specified issue in Swift, but CAAF deferred until after the CCA conducts a proper review. 

    Your hypothetical about the CID agent skips a few steps, particularly the requirement that any objection to lack of corroboration (as a matter of law) under Mil. R. Evid. 304(c) must be made prior to entry of pleas (pursuant to Mil. R. Evid. 304(f)). You wrote:

    So, in Courts-martial practice, when the SVP calls the CID agent up to authenticate the sworn statement of the accused, the DC must object based on lack of corroboration, even though the very next witness might or might not be the alleged vic, otherwise the objection for lack of corroboration is waived and the accused can be convicted for an uncorroborated confession.  Is this correct?

    The answer is that the objection for lack of corroboration was waived when the accused pleaded not guilty without having objected.

    Mil. R. Evid. 304(f) requires the defense to make any “motions to suppress or objections under [Mil. R. Evid. 304], or Mil. R. Evid. 302 or 305” when the confession is disclosed by the prosecution (for – if nothing else – the wholly practical reason that the prosecution may need to go get the corroboration).

    After all, “a criminal trial is not a guessing game.” United States v. Wolfe, 24 C.M.R. 57, 60 (C.M.A. 1957). Nor is it “a poker game in which players enjoy an absolute right always to conceal their cards until played.” Williams v. Florida, 399 U.S. 78, 82 (1970).

    Also, as discussed in our #10 Military Justice Story of 2015, a confession is the least reliable form of proof known to the law.