CAAF decided the Army case of United States v. Jones, __ M.J. __, No. 17-0608/AR (CAAFlog case page) (link to slip op.) on Tuesday, July 31, 2018. Applying the old corroboration rule (that was effective prior to this 2016 change), CAAF unanimously finds that sufficient independent evidence was admitted to corroborate a confession to larceny of military property, even after excluding the statement of a co-conspirator that the Army Government Appellate Division conceded was improperly admitted (and used as corroboration at trial). Because the confession was otherwise corroborated, the erroneous admission of the co-conspirator’s statement is harmless and the findings, sentence, and decision of the Army CCA are affirmed.

Judge Maggs writes for a unanimous court.

CAAF granted review of three issues that focused on the admission of the a co-conspirator’s statement:

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.

In late 2013 and early 2014, Jones was a mobilized reservist deployed to Afghanistan where he “served as the officer in charge of his unit’s woodshop.” Slip op. at 3. Jones was convicted stealing tools from the woodshop and mailing them to his home in North Carolina (to use at the high school where he was a teacher in civilian life). Jones confessed those facts to Army investigators. But that confession alone was not enough to convict Jones, because a confession is inadmissible unless it is corroborated by independent evidence. See Mil. R. Evid. 304(c). See also our #10 Military Justice Story of 2015 (Confessions).

There was, however, an accomplice. Master Sergeant Addington participated in the acts, and he also confessed to military investigators. The prosecution offered that confession into evidence 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 (providing ample corroboration for Jones’ confession) and Jones was convicted.

It’s pretty hard to defend the military judge’s decision to admit Addington’s confession to military investigators as a statement by a co-conspirator made during and in furtherance of the conspiracy, because confessing to the conspiracy is a pretty bad way to further it. Nevertheless, the Army court summarily affirmed Jones’ convictions. But after CAAF granted review, the Army Appellate Government Division conceded that the military judge was wrong to admit Addington’s confession. The Government Division maintained, however, that the military judge’s error was harmless because other evidence admitted at trial provided sufficient corroboration for Jones’ confession.

Today CAAF agreed. Writing for the unanimous court, Judge Maggs explains that: “We conclude that the military judge did not err in admitting Appellant’s statement. We further conclude that the military judge improperly admitted MSG Addington’s statement, but we find that the error was harmless beyond a reasonable doubt.” Slip op. at 2.

Judge Maggs’ opinion begins with the corroboration issue (Issue III):

The requirement of corroboration addresses traditional concerns about the possible untrustworthiness of admissions and confessions. The Supreme Court has explained: “In our country the doubt persists that the zeal of the agencies of prosecution to protect the peace . . . or the aberration or weakness of the accused under the strain of suspicion may tinge or warp the facts of [a] confession.” Opper v. United States, 348 U.S. 84, 89−90 (1954).

Slip op. at 6 (marks in original). The current corroboration rule requires the admission of “independent evidence . . . that would tend to establish the trustworthiness of the admission or confession.” Mil. R. Evid. 304(c)(1) (2016). The rule applicable in Jones, however, required “independent evidence . . . that corroborates the essential facts admitted to justify sufficiently an inference of their truth.” Mil. R. Evid. 304(c)(1) (2013) (emphasis added). Such fact-by-fact corroboration was the focus of CAAF’s decision in United States v. Adams, 74 M.J. 137 (C.A.A.F. 2015) (CAAFlog case page), but it’s not the decisive factor in Jones. Rather, Jones turns on the amount of corroboration required:

only a small quantum of evidence is needed to corroborate an essential fact in a confession or admission. M.R.E. 304(c)(4) provides in relevant part: “The independent evidence necessary to establish corroboration need not be sufficient of itself to establish beyond a reasonable doubt the truth of facts stated in the admission or confession. The independent evidence need raise only an inference of the truth of the essential facts admitted.” 304(c)(1) makes clear, this corroborating evidence can be “either direct or circumstantial.” We traditionally have described the quantum of evidence needed as being “slight.” Adams, 74 M.J. at 140.

Slip op. at 6-7. That quantum did not change in the new rule.

Jones argued that two parts of his confession were not corroborated (without the confession of Addington that was admitted as the statement of a co-conspirator): his admission “that he got the tools ‘from the woodshop’ and that he ‘intended [the tools] to be used by the Soldiers at the unit or the students at school.'” Slip op. at 4-5 (marks in original). CAAF, however, finds both statements adequately corroborated by other evidence.

For Jones’ confession that he obtained the tools from the woodshop (that provides proof of the element that they were military property), Judge Maggs explains:

independent circumstantial evidence corroborated the essential fact of Appellant’s admission that the tools he sent home came from the woodshop. Appellant had access to the tools in the unit woodshop because he was the officer in charge of the unit woodshop. Most of the tools that the Government found at Appellant’s home were carpentry tools like those in the unit woodshop. The woodshop would be a likely place in the deployed environment in Afghanistan to acquire woodworking tools. These circumstances by themselves alone may not prove beyond a reasonable doubt that Appellant took the tools from the woodshop. But in accordance with M.R.E. 304(c), they support an inference that Appellant was speaking the truth when he confessed that he took them from the woodshop.

Slip op. at 8.

For Jones’ confession that he intended for the tools to be used by his civilian students (that provides proof of the element of intent to steal), Judge Maggs explains:

If the essential fact is that Appellant had the intent permanently to deprive the military of its property, there was enough independent evidence to support an inference of this essential fact. Appellant spent $579.38 of his own funds to mail fourteen separate shipments of military equipment. Appellant sent the tools to his personal address, rather than to the address of his unit. The tools remained at his home or nearby until discovered by investigators. Appellant was informed of the proper procedures for sending military material back to the unit, but he did not use those procedures. The unit leadership also had not approved any plan for using the tools at the unit. . . .

Even if the essential fact is characterized more narrowly as being that Appellant specifically intended that his students would use the equipment at his school, sufficient independent evidence also supports “an inference of the truth” of this essential fact. See M.R.E. 304(c)(2). Appellant was a high school woodshop teacher. He sent the tools to his home. The tools were of the kind that could be used in the high school woodshop. And the tools were not returned to the Government. This circumstantial evidence establishes that Appellant had access to the school, an opportunity to provide tools to students at the school permanently, and a possible motive for doing so.

Slip op. at 9-10.

Accordingly, Jones’ confession was corroborated by evidence other than Addington’s confession, and so the admission of Jones’ confession was not error.

Judge Maggs then turns to the admission of Addington’s statements. The error in its admission as a statement by a co-conspirator is clear:

At trial, Appellant objected to the admission of MSG Addington’s statement on grounds that it was hearsay, but the military judge overruled the objection and admitted the statement. The Government now concedes, and we agree, that the military judge erred in this ruling. The statement was not made “during and in furtherance” of a conspiracy but instead was made to the CID agent who was investigating the possible conspiracy after it had concluded.

Slip op. at 10. But how to measure that error is not so clear.

The erroneous admission of evidence – when preserved by timely objection – is ordinarily tested for prejudice. But “if admission of the evidence also violates the Constitution, and the error is not waived, the standard of review is higher.” Slip op. at 11. Waiver, of course, and waiver mania, have been a big issue in recent months.

CAAF ultimately finds forfeiture – not waiver – in this case, but Judge Maggs’ analysis makes it seem like it was a close call:

Appellant has cited nothing in the record of trial that indicates Appellant made a Confrontation Clause objection before or during the trial. When an appellant does not raise an objection to the admission of evidence at trial, we first must determine whether the appellant waived or forfeited the objection. See United States v. Sweeney, 70 M.J. 296, 303−04 (C.A.A.F. 2011). If the appellant waived the objection, then we may not review it at all. See United States v. Campos, 67 M.J. 330, 332 (C.A.A.F. 2009). But if the appellant merely forfeited the objection, then we may review the objection for plain error. See Sweeney, 70 M.J. at 304.

Waiver can occur either by operation of law, see, e.g., United States v. Hardy, 77 M.J. 438, 441−42 (C.A.A.F. 2018), or by the “intentional relinquishment or abandonment of a known right,” Sweeney, 70 M.J. at 303 (internal quotation marks omitted) (citations omitted). We do not see any waiver by operation of law here. We thus must consider whether Appellant intentionally relinquished or abandoned his Confrontation Clause objection. In previous cases in which an appellant failed to raise a Confrontation Clause objection at trial, we have considered the particular circumstances of each case to determine whether there was a waiver. See, e.g., United States v. Harcrow, 66 M.J. 154, 158 (C.A.A.F. 2008); Sweeney, 70 M.J. at 304. We have also applied a presumption against finding a waiver of constitutional rights. See Sweeney, 70 M.J. at 304. A waiver of a constitutional right is effective if it “clearly established that there was an intentional relinquishment of a known right.” Id. at 303–04 (internal quotation marks omitted) (citation omitted). In certain and exceptional circumstances, counsel may waive a constitutional right on behalf of a client. See Harcrow, 66 M.J. at 157 (recognizing that counsel may waive his client’s constitutional rights by stipulating to the admission of evidence when the client does not oppose the stipulation and counsel’s decision was part of a legitimate trial tactic or part of a prudent trial strategy). Considering the particular circumstances here, we can see no strategic reason that defense counsel would object to MSG Addington’s statement as hearsay and not also object to the statement on Confrontation Clause grounds. We therefore infer that the failure to make the Confrontation Clause objection was unintentional, and we conclude that Appellant forfeited the objection rather than waived it. We therefore will apply plan error review.

Slip op. at 11-12. It seems strange that CAAF first recognizes that waiver is almost always a decision to be made personally by the accused and not by counsel (only “in certain and exceptional circumstances, counsel may waive a constitutional right on behalf of a client”), but then the court “infer[s] that the [defense counsel’s] failure to make the Confrontation Clause objection was unintentional.” What about Jones? Whether he wanted to make a Confrontation Clause objection – or whether he even knew that there is such a thing as the Confrontation Clause – doesn’t seem to matter.

It also seems strange that CAAF finds forfeiture and applies the plain error test (which is the penalty for failure to object) even though the defense objected to the admission of the evidence.

But it doesn’t matter in the end because the test for prejudice from a constitutional error is the same whether the error is preserved or forfeited. Either way, the error must be harmless beyond a reasonable doubt for the conviction to be affirmed. And in this case it is harmless beyond a reasonable doubt:

In this case, MSG Addington’s statement was not necessary to prove the larceny specifications. Those specifications were proved beyond a reasonable doubt by Appellant’s statement to the CID agent and other evidence. MSG Addington’s statement was also not necessary to corroborate Appellant’s statement. As explained above, other independent evidence that did not come from MSG Addington’s statement corroborated Appellant’s statement to the CID agent. To be sure, MSG Addington’s statement did provide evidence to support the conspiracy charge. But as the military judge found Appellant not guilty of the conspiracy charge, admission of MSG Addington’s statement was inconsequential. We thus conclude that admission of MSG Addington’s statement to the CID agent in violation of M.R.E. 802 and the Confrontation Clause did not materially prejudice Appellant and, indeed, was harmless beyond a reasonable doubt.

Slip op. at 12-13.

Case Links:
• 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
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

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