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.
Yesterday CAAF granted review in this Army case:
No. 17-0608/AR. U.S. v. Randy E. Jones. CCA 20150370. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:
I. WHETHER ADMISSION OF AN ALLEGED CO-CONSPIRATOR’S 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. 2015).
Briefs will be filed under Rule 25.
There’s no opinion on the CCA’s website, but between the case number and the citation to Mil. R. Evid. 304(g) (restyled as Mil. R. Evid. 304(c) in 2013), the case clearly involves the old corroboration rule.
Confessions – the least reliable form of proof known to the law – 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.
For comparison, President Obama didn’t promulgate a Part IV of the MCM addressing the 2012 changes to Article 120 until September 16, 2016 – 51 months after the statute’s effective date.
Mil. R. Evid. 801(d)(2)(E) involves statements made by a “co-conspirator during and in furtherance of the conspiracy,” like discussions of the plan, pitches to recruit other conspirators, and confessions to law enforcement.