Argument Preview: Government Division concessions leave a fact-bound issue involving the old corroboration rule, in United States v. Jones
CAAF will hear oral argument in the Army case of United States v. Jones, No. 17-0608/AR (CAAFlog case page), on Wednesday, April 4, 2018, at noon. The case will be argued at the School of Law, The University of Texas at Austin. CAAF granted review of three issues involving the admission of a confession of a co-conspirator:
I. Whether admission of an alleged co-conspirators confession to law enforcement violated M.R.E. 801(d)(2)(E).
II. Whether admission of the same confession violated Appellant’s Sixth Amendment right to confrontation.
III. Whether use of the confession to corroborate otherwise unsupported essential elements in Appellant’s own confession violated M.R.E. 304(g) and United States v. Adams, 74 M.J. 137 (C.A.A.F.).
Chief Warrant Officer (W2) Jones was convicted of two specifications of larceny of military property, by a general court-martial composed of a military judge alone, and was sentenced to confinement for 17 days, a reprimand, and to be dismissed. Jones was acquitted of a single specification of conspiracy to commit the charged larceny offenses.
The convictions arose out of Jones’ operation of a unit woodshop during a deployment to Kandahar, Afghanistan. The woodshop “met unit needs by completing small carpentry projects, from signage to shelving.” Gov’t Div. Br. at 3-4. It also “created numerous gifts for World War II veterans, gold-star families, foreign dignitaries, and even President Barack Obama.” App. Br. at 3.
But Jones and another Soldier – Master Sergeant (MSG Addington) – used the postal service to mail woodworking tools home, and they were charged with larceny and conspiracy to commit larceny in connection with those mailings. During separate CID interrogations, both Jones and Addington admitted to mailing the tools. During Jones’ court-martial, the prosecution offered Addington’s confession as a statement made by a co-conspirator during and in furtherance of the conspiracy. Such statements are not hearsay and are admissible under Mil. R. Evid. 801(d)(2)(E) (and the equivalent Fed. R. Evid. 801(d)(2)(E)). The defense objected but the military judge admitted Addington’s confession, Jones was convicted, and the Army court summarily affirmed.
Jones’ brief makes the rather-obvious point that “Addington’s confession to law enforcement was neither during nor in furtherance of any purported conspiracy.” App. Br. at 8. The point is so obvious that the Army Government Appellate Division concedes the error:
Regarding Issues Presented I and II, the government concedes that MSG Addington’s statement was improperly admitted under Mil. R. Evid. 801(d)(2)(E) because it was not in furtherance of a conspiracy and, therefore, its admission violated appellant’s Confrontation Clause rights because the statement represented testimonial hearsay. However, both errors were harmless beyond a reasonable doubt.
Gov’t Div. Br. at 7. But the Government Division does not concede Issue III (corroboration of Jones’ confession under the old corroboration rule), asserting that:
Even absent MSG Addington’s statement, the government provided sufficient independent evidence to raise an inference of truth for each essential fact stated in appellant’s confession.
Gov’t Div. Br. at 7.
The Government Division’s harmlessness argument turns on the asserted strength of the prosecution’s case and the asserted insignificance of Addington’s statement to the larceny convictions. It argues:
Master Sergeant Addington’s statement was primarily relevant as evidence of a conspiracy, a charge for which appellant was ultimately acquitted. (JA 233). . . . For the charged larcenies, MSG Addington’s statement was at best cumulative, and utterly inconsequential, to the extensive other evidence presented.
Gov’t Div. Br. at 12. It also argues:
Appellant provided a full confession to CID admitting to the theft of military property. (JA 283-85). Even in the heavily redacted form admitted into evidence, appellant’s statement to CID satisfied all of the elements for both larceny charges. (JA 283-85). Appellant admitted that he took property from the Kandahar woodshop and mailed it to his home address on multiple occasions. (JA 283-84). Appellant acknowledged that these items were not his personal property, but rather tools already present at the woodshop upon his arrival, a fact corroborated by a defense witness. (JA 205, 284). He personally estimated the total value of the property stolen to be in excess of $2,000.00. (JA 283). Appellant admitted his intention to permanently keep the tools for personal use. (JA 284).
Gov’t Div. Br. at 10-11.
Jones’ reply brief, however, highlights that the burden to prove harmlessness for this preserved error is on the Government Division. Furthermore, because the error affects Jones’ constitutional right to confrontation (he was prohibited from confronting Addington at trial by the admission of Addington’s statement), that burden is to prove the error was harmless beyond a reasonable doubt, which means that CAAF “must be convinced that the testimonial hearsay was unimportant in light of everything else the court members considered on the issue in question.” Gov’t Div. Br. at 14 (citations omitted).
As Jones sees it, the Government Division cannot meet that burden, largely because of the circumstances of Issue III. Because the prosecution used Addington’s statement to corroborate Jones’ confession, Jones’ asserts that the admission of Addington’s statement cannot be deemed harmless beyond a reasonable doubt.
Jones’ argument is supported by the fact that this case involves the old corroboration rule.
Confessions – the least reliable form of proof known to the law (because they are the only form of proof that is insufficient to prove guilt alone and inadmissible without corroboration) – were our #10 Military Justice Story of 2015, after CAAF breathed new life into the corroboration requirement with its decision in United States v. Adams, 74 M.J. 137, 140 (C.A.A.F. 2015) (CAAFlog case page). The Joint Service Committee quickly proposed changing the rule to restore the corroboration requirement to its formerly toothless status, and President Obama promulgated that change just 13 months after CAAF’s decision in Adams.
CAAF’s decision in Adams requires independent corroboration of each essential fact in a confession:
When independent evidence which is sufficient to corroborate an essential fact is provided, that essential fact is admissible. M.R.E. 304(c). If sufficient corroborating evidence of an essential fact is not provided, then the uncorroborated fact is not admissible and the military judge must excise it from the confession. . . .
There is no “tipping point” of corroboration which would allow admission of the entire confession if a certain percentage of essential facts are found to be corroborated. For instance, if four of five essential facts were corroborated, the entire confession is not admissible. Only the four corroborated facts are admissible and the military judge is required to excise the uncorroborated essential fact. M.R.E. 304(c).
Adams, 74 M.J. at 140 (C.A.A.F. 2015). Unfortunately for the present-day military accused – who serves in an institution with a primary purpose of coercing people into doing things they would never do under ordinary circumstances – the new corroboration rule merely requires that “independent evidence, either direct or circumstantial, [be] admitted into evidence that would tend to establish the trustworthiness of the admission or confession.” Mil. R. Evid. 304(c)(1) (2016) (emphasis added).
Application of the old corroboration rule to the facts of Jones will depend on the precise facts of Jones, but both sides seem to agree that the dispute is primarily over two essential elements of Jones’ confession:
(1) appellant’s intent to permanently deprive the military of the stolen property, and (2) the source and military nature of the property.
Gov’t Div. Br. at 19 (citing Appellant’s Br. at 29)). Accordingly, next week’s oral argument will likely focus on whether the record provides sufficient independent corroboration of those two facts without the statement of Addington.
It’s a fact-bound issue that seems most appropriate for the CCA to decide by application of Adams. CAAF, however, will consider it in the first instance.
ACCA decision (summary disposition)
• Blog post: The (old) corroboration rule returns to CAAF
• Appellant’s brief
• Appellee’s (Army Gov’t App. Div.) brief
• Appellant’s reply brief
• Blog post: Argument preview