Petition for Writ of Certiorari — Yeauger v. United States

~~

88-1055

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»Bupyme Court, U.S,

FYFrrCDED

No. DEC 23 982

PANIOL, JR,

In the Supreme Court of the United-States————

OCTOBER TERM, 1988

MICHAEL E. YEAUGER

SERGEANT

UNITED STATES MARINE CORPS, PETITIONER

Vv.

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF MILITARY APPEALS

ARTHUR R. PHILPOTT

Captain

United States Navy

Judge Advocate General’s Corps

Counsel of Record

and

JOSEPH B. GILBERT

Major

United States Maine Corps

Counsel of Record

NAVY-MARINE CORPS APPELLATE

REVIEW ACTIVITY

Washington Navy Yard,

Building 111

Washington, D.C. 20374

(202) 433-6380

QUESTION PRESENTED

Whether the Confrontation Clause or the Due Process

Clause of the United States Constitution requires ex-

cluding the out-of-court, oral, unsworn statements of a

witness who is available at trial but does not testify during

the government’s case on the merits.

(1)

TABLE OF CONTENTS

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THE WRIT SHOULD BE GRANTED TO ENSURE

MILITARY COURTS COMPLY WITH THE CON-

FRONTATION AND DUE PROCESS CLAUSES OF

THE UNITED STATES CONSTITUTION ............

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APPENDIX B (Opinion of the U.S. Navy-Marine Corps

Court of Military Review, on remand) ...................

APPENDIX C (Opinion of the U.S. Navy-Marine Corps

FE EVES TT CST Tee err Te

TABLE OF AUTHORITIES

Cases:

Bridges v. Wixon, 326 U.S. 135 (1945) .................

California v. Green, 399 U.S. 149 (1970) .......0.......

Lee v. Illinois, 106 S. Ct. 2056 (1986) ..................

Mattox v. United States, 156 U.S. 237 (1895) ...........

United States v. Cordero, 22 M.J. 216(C.M.A. 1986) ....

United States v. Guaglione, 27 M.J. 268 (C.M.A. 1988) ..

Constitution:

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Statutes: Page

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Regulations:

Military Rule of Evidence 801(d)(1) ..........--------- 4, 10

Military Rule of Evidence 803(24) ...........-.+--. 5, 7, 9, 10

Treatises:

5 Wigmore, Evidence § 1415 (Chadbourne Rev. 1974) ... 9

Jn the Supreme Court of the Gnited States

OCTOBER TERM, 1988

No.

MICHAEL E, YEAUGER

SERGEANT

UNITED STATES MARINE CORPS, PETITIONER

v.

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF MILITARY APPEALS

The petitioner, Michael E. Yeauger, respectfully prays

that writ of certiorari issue to review the judgment and

opinion of the United States Court of Military Appeals,

rendered in this proceeding on October 24, 1988.

OPINIONS BELGW

The opinion of the United States Court of Military Ap-

peals, United States v. Yeauger, 27 M.J. 199 (C.M.A.

1988), is reprinted as Appendix A.

The opinions of the United States Navy-Marine Corps

Court of Military Review, United States v. Yeauger, on re-

mand, 24 M.JjJ. 835 (N.M.C.M.R. 1987), and United

States v.. Yeauger, 20 M.J. 797 (N.M.C.M.R. 1985) are

reprinted as Appendices B and C.

JURISDICTION

The United States Court of Military Appeals granted

the petition for review in this case on April 17, 1988. By

(1)

2

summary disposition, that court remanded the case to the

United States Navy-Marine Corps Court of Military

Review, on November 12, 1986, for reconsideration in

light of Lee v. Illinois, __. U.S. ___.,, 106 S.Ct. 2056, 90

L.Ed.2d 514 (1986), and United States v. Cordero, 22

M.J. 216 (C.M.A. 1986). The Court of Military Appeals

again granted petition for review on January 22, 1988 and

affirmed the decision of the United States Navy-Marine

Corps Court of Military Review on October 24, 1988. This

Court has jurisdiction pursuant to 28 U.S.C. § 1259(3).

CONSTITUTIONAL PROVISIONS INVOLVED

Amendment V

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in

the land or naval forces, or in the Militia, when in ac-

tual service in time of war or public danger; nor shall

any person be subject for the same offense to be twice

put in jeopardy of life or limb; nor shall be compelled

in any criminal case to be a witness against himself,

nor be deprived of life, liberty, or property without

due process of law; nor shall private property be

taken for public use, without just compensation.

Amendment VI

In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial

jury of the State and district wherein the crime shall

have been committed, which district shall have been

previously ascertained by law, and to be informed of

the nature and cause of the accusation; to be con-

fronted with the witnesses against him; to have com-

pulsory process for obtaining witnesses in his favor,

and to have the Assistance of Counsel for his defence.

STATUTES INVOLVED

10 U.S.C. § 881, Article 81, Uniform Code of Military

Justice.

Conspiracy.

Any person subject to this chapter who conspires with

any other person to commit an offense under this

chapter shall, if one or more of the conspirators does

an~act to effect the object of the conspiracy, be

punished as a court-martial may direct.

10 U.S.C. § 886, Article 86, Uniform Code of Military

Justice.

Absence without leave.

Any member of the armed forces who, without

authority —

(1) fails to go to his appointed place of duty at the

time prescribed;

(2) goes from that place; or

(3) absents himself or remains absent from his unit,

organization, or place of duty at which he is required

to be at the time prescribed;

shall be punished as a court-martial may direct.

10 U.S.C. § 921, Article 121, Uniform Code of Military

Justice.

Larceny and wrongful appropriation.

(a) Any person subject to this chapter who

wrongfully takes, obtains, or withholds, by any

means, from the possession of the owner or of any

other person any money, personal property, or ater

of value of any kind—

(1) with intent permanently to deprive or defraud

another person of the use and benefit of property or

to appropriate it to his own use or the use of any per-

son other than the owner, steals that property and is

guilty of larceny; or

4 )

(2) with intent temporarily to deprive or defraud

another person of the use and benefit of property or

to appropriate it to his own use or the use of any per-

son other than the owner, is guilty of wrongful ap- |

propriation.

(b) Any person found guilty of larceny or wrongful

appropriation shall be punished as a court-martial

may direct.

10 U.S.C. § 934, Article 134, Uniform Code of Military

Justice.

General article.

Though not specifically mentioned in this chapter, all

disorders and neglects to the prejudice of good order

and discipline in the armed forces, all conduct of a

nature to bring discredit upon the armed forces, and

crimes and offenses not capital, of which persons sub-

ject to this chapter may be guilty, shall be taken

cognizance of by a general, special or summary court-

martial, according to the nature and degree of the of-

fense, and shall be punished at the discretion of that

court.

RULES OF EVIDENCE INVOLVED

Mil. R. Evid. 801(d)(1).

Definitions.

Statements which are not hearsay. A statement is not

hearsay if:

(1) Prior statement by witness. The declarant

testifies at the trial or hearing and is subject to cross-

examination concerning the statement, and the state-

ment is (A) inconsistent with the declarant’s

testimony, and was given under oath subject to the

penalty of perjury at a trial, hearing, or other

proceeding, or in a deposition, or (B) consistent with

the declarant’s testimony and is offered to rebut an

express or implied charge against the declarant of re-

cent fabrication or improper influence or motive, or

(C) one of identification of a person made after per-

ceiving the person;

Mil. R. Evid. 803(24).

Hearsay exceptions; availability of declarant im-

material.

[The following are not excluded by the hearsay rule,

even though the declarant is available as a witness:]

Other exceptions. A ‘tatement not specifically

covered by any of the fc egoing exceptions but having

equivalent circumstantial guarantees of trustworthi-

ness, if the court determines that (A) the statement is

offered as evidence of a material fact; (B) the state-

ment is more probative on the point for which it is of-

fered than any other evidence which the proponent

can procure through reasonable efforts; and (C) the

general purposes of these rules and the interests of

justice will best be served by admission of the state-

ment into evidence. However, a statement may not be

admitted under this exception unless the proponent of

it makes known to the adverse party sufficiently in

advance of the trial or hearing to provide the adverse

party with a fair opportunity to prepare to meet it, the

intention to offer the statement and the particulars of

it, including the name and address of the declarant.

STATEMENT OF THE CASE

Petitioner was convicted by a general court-martial,

composed of officer and enlisted members, of unauthor-

6 :

ized absence, conspiracy to commit larceny, larceny, and

unlawfully receiving and concealing stolen property.’

The basis for appellant’s prosecution was an alleged

conspiracy between appellant, his wife Lynne, and a

Sergeant Callahan. Sergeants Yeauger and Callahan

managed an enlisted men’s club at Camp Pendleton,

California, in September and October 1981, during which

time two larcenies occurred at that club. Initial suspicion

settled upon Sergeant Callahan, but no charges followed.

In November 1981, Sergeant Yeauger and his wife, also a

servicemember, were transferred to the Marine Corps Air

Station, New River, North Carolina for duty. In May and

July 1982, larcenies from club facilities at New River oc-

curred. Coincidentally, during this time period, Sergeant

Yeauger reported his wife Lynne to the Naval Investigative

Service (NIS) for alleged homosexual acts. During Lynne’s

interrogation by NIS, she implicated appellant and

Callahan in the Camp Pendleton thefts. An NIS agent in-

terrogated Sgt Callahan, and, during his interrogation, the

agent implied that both Yeaugers had confessed, labelling

Callahan the “ringleader.” Callahan purportedly con-

fessed, implicating Sergeant Yeauger during the course of

an interview that lasted about two or three hours. His

statement was never reduced to writing.

It became apparent to the prosecutor that Callahan

would recant his confession at his trial (Callahan admitted

making the statement, but denied its veracity, stating that

a third party had threatened him and his loved ones if he

did not confess to NIS). The prosecutor then concluded

that Callahan’s sworn testimony would not prove his case

at Yeauger’s trial, so he asked the military judge, during

an Article 39(a) session, to admit Callahan’s oral, unsworn

' 10 U.S.C. §§ 881, 886, 921 and 934 (1982).

Statement as substantive evidence, in lieu of Callahan’s live

testimony.’ The military judge stated on the record that he

believed Callahan had perjured himself during the Article

39(a) session, and admitted the oral statement pursuant to

Military Rule of Evidence 803(24), the residual hearsay

rule. The NIS agent, testifying from his memory of an in-

terview conducted some ten months prior, without the aid

of written notes, provided his version of Callahan’s oral,

unsworn testimony to the court members. Later testimony

confirmed that the interview was never reduced to writing.

The trial defense counsel objected to this violation of

Yeauger’s constitutional right of confrontation, stating,

“I’m being forced to call Sergeant Callahan.” Record at

130. Lynne Yeauger then testified, as well as several

witnesses who corroborated various portions of Lynne

Yeauger’s and Callahan’s statements. —

The Navy-Marine Corps Court of Military Review held

that the record presented sufficient indicia of trustworthi-

ness for admission of the oral, unsworn statement. United

States v. Yeauger, 20 M.J. 797, 802 (N.M.C.M.R. 1985).

The court summarily dismissed the confrontation issue,

reasoning that the defense ultimately called Sgt Callahan

to testify. Yeauger, supra at 802. The Court of Military

Appeals, after granting appellant’s petition for review,

remanded the case to the court of military review, for

reconsideration in light of Lee v. //linois, s.. ‘

106 S.Ct. 2056, 90 L.Ed.2d 514 (1986), and United States

v. Cordero, 22 M.J. 216 (C.M.A. 1986), both decided

after the Court of Military Review’s action on the case.

The Navy-Marine Corps Court of Military Review again

affirmed, holding the above two cases inapposite. United

* Article 39(a), Uniform Code of Military Justice, 10 U.S.C, $ 839

provides for litigation of evidentiary matters in sessions outside the

presence Of court members.

8

States v. Yeauger, 24 M.J. 835 (N.M.C.M.R. 1987). The

Court of Military Appeals later affirmed, holding the oral,

unsworn, pretrial statement admissible under the residual

hearsay exception, and concurring in the confrontation

analysis provided by the Navy-Marine Corps Court of

Military Review. United States v. Yeauger, 27 M.J. 199

(C.M.A. 1988).

REASON FOR GRANTING THE WRIT

THE WRIT SHOULD BE GRANTED TO ENSURE

MILITARY COURTS COMPLY WITH THE CONFRONTA-

TION AND DUE PROCESS CLAUSES OF THE UNITED

STATES CONSTITUTION.

\

This case presents an issue not resolved by California v.

Green, 399 U.S. 149 (1970): whether the government

violates due process and the Confrontation Clause when it

seeks to admit oral, unsworn, pretrial statements as

substantive evidence, rather than calling the declarant as a

witness during its case-in-chief.?

The Supreme Court expressed the preference for sworn

testimony in Bridges v. Wixon, 326 U.S. 135, when an

alien was subject to deportation on the basis of an oral,

unsworn statement.* The primary object of the Confron-

3 Justice White alluded to the potential due process issue in Green,

399 U.S.s149, 163-164, footnote 15. Writing for the majority, he also

left unanswered the admissibility of an oral, unsworn statement to a

police officer by a declarant who testified but could not remember key~~

facts (identity) due to the influence of the hallucinogen LSD. Green,

supra at 168-170.

4 Justice Douglas, speaking for the majority, stated: “We may

assume [declarant O’Neil’s oral, unsworn statements] would be ad-

missible for purposes of impeachment. But they certainly would not

be admissible in any criminal case as substantive evidence (citations

omitted). So to hold would allow men to be convicted on unsworn

testimony Of witnesses —a practice which runs counter to the nowuons

9

tation Clause was to prévent the use of depositions or ex

parte affidavits in criminal courts in lieu of live testimony.

Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39

L.Ed. 409 (1895).

Historically, even sworn depositions were inadmissible

if the witness was present in the courtroom at the time the

deposition was offered, because no need existed to resort

to substitute testimony.’ In a typical case where the central

issue is whether the use of hearsay evidence violates the

Confrontation Clause, the prosecutor uses a sworn state-

ment from a preliminary hearing or trial because he can-

not produce the declarant. Here the prosecutor did not

have to cope with the problem of an unavailable witness.

He obviously decided that Callahan’s testimony would not

advance his case. His choice was clear—either prove the

case with legally competent evidence, or convince the

military judge to admit the oral, unsworn statement as

residual hearsay pursuant to Mil. R. Evid. 803(24) and,

thus, shift the burden of producing the crucial witness to

the defendant. This strategy clearly violated concepts of

due process and fundamental fairness.

The United States Court of Military Appeals recently

explained the rationale behind sparing use of Mil. R. Evid.

803(24):

According to the legislative history of Fed.R.Evid.

803(24), which corresponds to Mil.R.Evid. 803(24),

the residual exception was to “be used very rarely and

of fairness on which our legal system is founded.” Bridges v. Wixon,

at 153-154. Bridges v. Wixon turned on a rule of evidence and the

Confrontation Clause issue was not addressed. Nevertheless, the

underlying principles of due process apply to that case, and to this

case as well.

> Cases collected at 5 Wigmore, Evidence § 1415 (Chadbourne rev.

1974).

10

only in exceptional circumstances.” S.Rep. No. 1277,

93d Cong., 2 Sess., reprinted in 1974 U.S. Code

Cong. & Admin.News 7051, 7066. Accordingly, all

prerequisites for use of the residual exception must be

satisfied, unless they are waived by the party against

whom the statement is being introduced. (Citations

omitted).

It seems clear that not every prior statement by a

declarant who “testifies at the trial or hearing and is

subject to cross-examination concerning the state-

ment” (Mil.R.Evid. 801(d)(1)) was intended to be ad-

missible under Mil.R.Evid. 803(24). Otherwise, there

would have been no point in setting forth the limita-

tions which are contained in Mil.R.Evid. 801(d)(1),

since they could always be bypassed.

United States v. Guaglione, 27 M.J. 268 (C.M.A. 1988)

(Emphasis in original).

In Guaglione, the Court of Military Appeals found

prior sworn statements to criminal investigators inadmissi-

ble under Mil. R. Evid. 803(24), despite the fact that the

declarants testified for the government and were cross-

examined by the defense. Clearly, the exposition of

legislative history quoted above applies with even greater

force to an oral unsworn statement. Congress did not in-

tend that Mil. R. Evid. 803(24) be a vehicle for a prosecu-

tors to introduce such inherently unreliable evidence in

lieu of a readily available witness. A statement which was

not reduced to writing, but merely repeated by a criminal

investigator some ten months later is no substitute for the

testimony of an available declarant.

Both lower appellate courts disposed of the Confronta-

tion Clause issue merely by observing that Callahan

testified. Neither court dealt squarely with the govern-

ment’s strategy in proving its case.

11

This Court has delineated the similarity in values pro-

tected by rules of evidence and the Confrontation Clause:

Given the similarity of the values protected, however,

the modification of a State’s hearsay rules to create

new exceptions for the admission of evidence against

a defendant, wili often raise questions of compatibili-

ty with the defendant’s constitutional right to con-

frontation. Such questions require attention to the

reasons for, and the basic scope of, the protections

offered by the Confrontation Clause.

California v. Green, 399 U.S. 149, 156 (1970).

In this case, the manipulation of the hearsay provisions

of the military rules of evidence by the prosecutor clearly

raises questions of compatibility with Sergeant Yeauger’s

constitutional rights to confrontation (and due process).

This Court should grant this writ in order to scrutinize this

important issue.

CONCLUSION

This Honorable Court should grant the petition for a

writ Of certiorari.

APPENDIX A

UNITED STATES COURT OF MILITARY APPEALS

No. 52,775

NMCM 84 2381R

UNITED STATES, APPELLEE

Vv.

MICHAEL E. YEAUGER, SERGEANT,

U.S. MARINE CORPS, APPELLANT

Oct. 24, 1988

For Appellant: William J. Holmes, Esq. (argued); Com-

mander J.A. Williams, JAGC, USN (on briet), Captain

David C. Larson, JAGC, USN.

For Appellee: Lieutenant Commander Lawrence W.

Muschamp, JAGC, USN (argued); Captain Wendell A.

Kjos, JAGC, USN (on brief); Captain Carl H. Horst,

JAGC, USN, Lieutenant Commander Jeffrey S.-Sawtelle,

JAGC, USN, Major E.D. Clark, USMC.

Opinion of the Court

COX, Judge:

Appellant stands convicted, contrary to his pleas, of the

following offenses under the Uniform Code of Military

- Justice: three specifications of conspiracy to commit

larceny; absence without leave; three corresponding speci-

fications of larceny; and receipt of stolen property, in

(1a)

2a

violation of Articles 81, 86, 121, and 134, UCMJ 10

U.S.C. §§ 881, 886, 921, and 934, respectively.’

We granted review to determine:

WHETHER THE MILITARY JUDGE COMMIT-

TED PREJUDICIAL ERROR BY ADMITTING

INTO EVIDENCE THE ORAL AND UNSWORN

CUSTODIAL STATEMENT OF SERGEANT E. D.

CALLAHAN UNDER RULE 803(24) OF THE

MILITARY RULES OF EVIDENCE.

Callahan’s statement relates to two of the larcenies and

two of the conspiracies; the other Charges and specifica-

tions are unaffected.

_ The case was tried by members. The Government's

primary evidence against appellant was the in-court testi-

“mony of his estranged wife, Lynne, and the pretrial state-

ment of Callahan.? Lynne, a Marine Corps Private at the

' Appellant was sentenced to a dishonorable discharge, confine-

ment for 20 years, and accessory penalties. Pursuant to a recommen-

dation by the Naval Clemency and Parole Board, the Secretary of the

Navy reduced the confinement to 10 years. The Court of Military Re-

view affirmed the findings and sentence as reduced. 20 M.J. 797

(1985). On initial appeal to this Court, we remanded the record to the

Court of Military review for their reconsideration in light of Lee v. //-

linois, 476 U.S. 530, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986), and

United States v. Cordero, 22 M.J. 216 (CMA 1986)—two opinions

that were published after the Court of Military Review’s decision. On

remand, the Court of Military Review again affirmed. 24 M.J. 835

(1987). That court concluded that those two opinions, involving ad-

missibility of statements of declarants unavailable for cross-

examination, were not applicable. It is the appeal of this decision that

is presently before us.

2 There was also a quasi-admission by appellant to one of his co-

workers, Staff Sergeant J.W. Rothrock, who testified:

I was curious because there was a rumor going around that

Sergeant YEAUGER had something to do with it [the larcenies].

| was curious and I asked him one night when we were out there

3a

time of appellant’s trial, testified in considerable detail

about how appellant and Callahan had plotted and carried

out the two larcenies under review. She testified under a

grant of immunity and had already been convicted, in ac-

cordance with her pleas, for her role in two other larcenies

(the larceny-conspiracy and receiving offenses of which

appellant was ultimately convicted that were not con-

nected with Callahan’s testimony).

Lynne’s statements and later testimony against ap-

pellant came about only after he had reported her to mili-

tary authorities for her admitted lesbian activities. Ini-

tially, Lynne accused only appellant of the two larcenies:

later she included Callahan. Based on Lynne’s statements,

appellant and Callahan were questioned. Appellant as-

serted his rights and declined to make a statement; how-

ever, Callahan took the bait.

The agents told him (or at least implied) that both

Yeaugers had confessed and implicated Callahan as the

ringleader. To convince Callahan, they showed him —but

did not allow him to read — Lynne’s written confession and

appellant’s rights-warning form (which appellant had in-

deed signed in asserting his rights). According to the

agents, Callahan thereupon capitulated and described in

detail the actions leading up to and culminating in the of-

fenses. This statement conforms in all significant details

with the testimony and statements given by Lynne.} It is

admission into evidence of this oral, unsworn statement

that is in issue.

if he did it, and he said, “I’m not going to say yes or no, but I told

you, you know, somebody would get them back,” or joking, “Ha,

ha, it serves them right,” or something like that.

* Since, by both Lynne’s and Callahan’s accounts, Lynne was not

present at the scene of the crimes, Callahan’s account goes well

beyond Lynne’s in describing the details of the events.

4a

At appellant’s trial, Callahan testified both on the foun-

dation of the statement and on the merits. His position

was that he admitted making the statement to the agents

but claimed that it was not true. Evidently the factfinder at

his own trial, where he tried the same story, was no more

impressed because he was convicted for his role in the of-

fenses. At appellant’s trial, Callahan testified under a

grant of immunity as a defense witness.

Callahan’s explanation for his statement was that he was

subject to two different pressures:

First, he claimed to have been unlawfully threatened

and coerced by the investigating agents. Based upon

substantial evidence to the contrary, the military judge re-

jected this assertion.

Second, he claimed to have been threatened by a

mysterious blond stranger. The latter threat allegedly

came about in the following manner:

Approximately 4 days before the fateful interview with

the agents (a year and a half after the offenses and a conti-

nent removed), Callahan received an anonymous phone

call threatening his life and that of his lady friend and his

daughter. The caller ordered Callahan to meet him at a

certain shopping mall 2 days later, which Callahan did.

There, he encountered the blond stranger who reiterated

the threat and provided him with the story he was to give

the investigators should they contact him. This story in-

cluded the accusation against appellant and admission of

Callahan’s own involvement in these serious felonies.

Two days later, Callahan was indeed questioned by law

enforcement personnel. Rather than mentioning the

threat, he confessed to the offenses, as purportedly

directed by the stranger, and implicated appellant. Ap-

parently, the first time this alleged threat was brought to

the attention of anyone in authority was at Callahan’s own

court-martial, where it also flopped.

ee tst—™F

Ja

Appeilant did not testify on the merits in his trial. The

primary thrust of the defense case was Callahan’s denial of

criminality and an attempt to establish an alibi for him.

The military judge admitted Callahan’s statement under

the residual hearsay provision, Mil.R.Evid. 803(24),

Manual for Courts-Martial, United States, 1969 (Revised

edition) (see infra), after hearing Callahan’s and the

agents’ versions of the events. The judge found Callahan’s

trial testimony —/.e., his recantation of his prior admis-

sion and the blond-stranger story —to be “incredible” and

the agents’ account to be “trustworthy.” The judge did not

rule that the factfinder had to believe Cailahan’s admis-

sion but said:

I’m simply saying that there’s enough trustworthiness

surrounding what he [Callahan] said on that day to be

presented to the factfinders. They can decide whether

Or not it’s consistent with what Mrs. YEAUGER has

to say whenever she comes to testify and whatever else

the Government presents.

The Court of Military Review agreed with the military

judge. With respect to the central question of trustworthi-

ness, the court placed emphasis on the availability of both

Callahan and the agents for cross-examination; the

general similarity of the statement to another hearsay ex-

ception (Mil.R.Evid. 804(b)(3) and nonhearsay (Mil.R.

Evid. 801(d)(1)(A))*; the circumstances Surrounding the

giving of the statement; the corroborating facts in evi-

dence; the patent incredulity of Callahan’s recantation:

and Callahan’s own validation of the fact of the prior

Statement. The court also noted that Callahan’s presence

and testimony precluded a confrontation-clause violation.

20 M.J. 797, 801-02 (NMCMR 19835).

* Cf. United States v. Quick, 26 M.J. 460 (CMA 1988).

6a

On remand,’ the Court of Military Review reiterated its

holding that Callahan’s statement had “sufficient circum-

stantial guarantees of trustworthiness . . . to warrant ad-

mission . . . under MRE 803(24),” noting again that the

cases addressing statements not subject to confrontation

were inapposite. 24 M.J. 835, 839 (NMCMR 1987). We

agree.

Mil.R.Evid. 803 provides:

The following are not excluded by the hearsay rule,

even though the declarant is available as a witness:

* * * * *

(24) Other exceptions. A statement not specifical-

ly covered by any of the foregoing exceptions but hav-

ing equivalent circumstantial guarantees of trust-

worthiness, if the court determines that (A) the state-

ment is offered as evidence of a material fact; (B) the

statement is more probative on the point for which it

is offered than any other evidence which the propo-

nent can procure through reasonable efforts; and (C)

the general purposes of these rules and the interests of

justice will best be served by admission of the state-

ment into evidence. However, a statement may not be

admitted under this exception unless the proponent of

it makes known to the adverse party sufficiently in

advance of the trial or hearing to provide the adverse

party with a fair opportunity to prepare to meet it, the

intention to offer the statement and the particulars of

it, including the name and address of the declarant.

There is no issue with respect to factors A through C or

with the notice requirement. These criteria were resolved

in the Government’s favor by the military judge and con-

firmed by the Court of Military Review; we have no occa-

> Seen. 1, supra.

7a

sion to review them here. All that’s in issue now is applica-

tion of the criterion that the statement be one “not specifi-

cally covered by any of the foregoing exceptions but hav-

ing equivalent circumstantial guarantees of trustworthi-

ness.”

Those foregoing exceptions include: present sense im-

pression; excited utterance; then existing mental, emo-

tional, or physical condition; statements for purposes of

medical diagnosis or treatment; recorded recollection; rec-

ords of regularly conducted activity; absence of entry in

records of regularly conducted activity; public records and

reports; records of vital statistics; absence of public record

or entry; records of religious organizations; marriage,

baptismal, and similar certificates; family records; records

of documents affecting interest in property; statements in

documents affecting interest in property; statements in an-

cient documents; market reports and commercial publica-

tions; learned treatises; reputation concerning personal or

family history; reputation concerning boundaries or

general history; reputation as to character; judgment of

previous conviction; judgment as to personal, family or

general history, or boundaries.

Once proffered evidence meets the foundational re-

quirements for any_of these exceptions, it is admissible

without independent judicial certification of reliability. It

is then for the factfinder to decide how much, if any,

weight to accord it. Not infrequently, factfinders disre-

gard such evidence entirely, usually for self-evident

reasons. Thus, inclusion within one of these categories is

not conclusive of reliability. By the same token, a guaran-

tee Of reliability is not necessary for a statement to be

“equivalent” to such an exception.

In the instant case, if Callahan had not testified at

appellant’s trial, his prior statement almosi certainly

would have failed the “equivalent circumstantial guaran-

8a

tees of trustworthiness” standard. Apart from the obvious

confrontation problem, the statement itself would have to

be viewed as “presumptively unreliable” due to its blame-

spreading content. E.g., Lee v. Illinois, 476 U.S. 530, 545,

106 S.Ct. 2056, 2064, 90 L.Ed.2d 514 (1986); United

States v. Dill, 24 M.J. 386 (CMA 1987).

Even the fact that the statement interlocked with

Lynne’s may not, of itself, have saved it. It is one thing to

say that a hearsay statement of a coactor that interlocks

with that of the accused may be reliable. See Cruz v. New

York, 481 U.S. 186, 107 S.Ct. 1714, 95 L.Ed.2d 162

(1987); United States v. Dill, supra at 388 n. 5. However,

an accusatory statement of one coactor that only inter-

locks with the accusatory testimony or statement of

another coactor is generally less trustworthy vis-a-vis the

accused. Still, such corrobration, especially given the an-

tithetical positions of the witnesses here, is another factor

for the judge to consider.®

Adding to the mosaic of reliability was the solid coinci-

dence of Callahan’s statement with the physical evidence

found at the scene of the offenses. In addition, Callahan

himself testified, see United States v. Powell, 22 M.J. 141,

145 (CMA 1986) (Everett, C.J., concurring), with the

result that the court was able to scrutinize his demeanor,

along with that of the other witnesses.

What ultimately separates this case from Dill, however,

is Callahan’s voucher for the making of the prior state-

ment, coupled with his cock-and-bull explanation for it.

Under these circumstances, the logical inference is that the

®° In addition, it does not appear that Callahan’s statement was

merely dragged out through a series of monosyllabic responses, utiliz-

ing Lynne’s statement as the script. First, as indicated (n.3, supra), his

statement went much further than Lynne’s in many particulars. Sec-

ond, even Callahan admitted that the genesis of the story was the

blond stranger.

9a

prior statement was much closer to the truth. Also, it is

not insignificant that Callahan’s pretrial statement was

decidedly self-incriminating as to himself.

In sum, it appears that the military judge carefully

balanced many factors relating to trustworthiness, and he_

arrived at a defensible conclusion. See United States v.

Hines, 23 M.J. 125, 135-36 (CMA 1986). We agree that

the statement was admissible and subject to such valuation

as the factfinder deemed appropriate.’

The decision of the United States Navy-Marine Corps

Court of Military Review on remand is affirmed.

Chief Judge EVERETT and Judge SULLIVAN concur.

’ This case does not stand for the proposition that prior inconsistent

Statements admitted tor impeachment purposes under Mil. R-Evid.

607 will meet the “reliability” test required for admission as substan-

tive evidence under Mil.R. Evid. 803(24). Each protter must be evalu-

ated on its Own merits.

10a

APPENDIX B

U.S. NAVY-MARINE CORPS

COURT OF MILITARY REVIEW

NMCM 84 2381R

UNITED STATES

V.

MICHAEL E. YEAUGER, 287 56 8113

SERGEANT (E-5), U.S. MARINE CORPS

Sentence Adjudged 16 Jan. 1984

Decided 30 June 1987

WILLIAM J. HOLMES, Civilian Defense Counsel.

CAPT DAVID C. LARSON, JAGC, USN, Appellate

Defense Counsel.

LT TERRY J. ROMINE, JAGC, USNR, Appellate

Government Counsel.

Before COUGHLIN, MIELCZARSKI and DECARLO, JJ.

DECARLO, Judge:

Appellant was convicted by a General Court-Martia!

(officers & enlisted) of a four day unauthorized absence,

three specifications of conspiracy to commit larceny, three

specifications of larceny (corresponding with the con-

spiracy allegations), and one specification of unlawfully

receiving and concealing stolen property in violation of

Articles 86, 80, 121, and 134 of the Uniform Code of Mili-

tary Justice (UCMJ), 10 U.S.C. §§ 880, 886, 921, 934, re-

spectively. He was sentenced to twenty years confinement,

total forfeitures, reduction to pay grade E-1, and a dis-

ee eee

lla

honorable discharge. The findings and sentence were ap-

proved on review by the convening authority. We original-

ly affirmed both the findings and sentence in this case. '

United States v. Yeauger, 20 M.J. 797 (N.M.C.M.R.

1985). In that decision, we found, inter alia, that a pre-

trial, unsworn statement of a servicemember who identi-

fied the appellant as his co-actor in the larcenies alleged

was admissible under the residual hearsay exception em-

bodied in Military Rule of Evidence (MRE) 803(24). This

case is now before us upon remand from the Court of

Military Appeals 23 M.J. 245, for reconsideration in light

of Lee v. Illinois, __ U.S. __, 106 S.Ct. 2056, 90 L.Ed.2d

514 (1986), and United States v. Cordero, 22 M.J. 216

(C.M.A. 1986), subsequent cases concerning the issue of

the admissibility of statements made by criminal ac-

complices. Finding those cases to be inapplicable to the

facts presented in the instant case, we now affirm our

original decision.

In Lee v. Illinois, supra, the petitioner and co-defendant

were charged with committing a double murder and were

tried together and convicted at a bench trial at which

neither testified. Both Lee and her co-defendant had

originally confessed to committing the crimes. The separ-

ate confessions given by them to the police factually over-

lapped to a great extent except for the fact that the co-

defendant stated that the killings were planned in advance

while Lee’s version related that the crimes were the result

of an intense argument. In finding Lee guilty of both

murders, the trial judge specifically relied upon the co-

defendant’s earlier confession particularly with respect to

his rejection of her claims that she acted either in self-

defense or under an intense and sudden passion. The

Supreme Court reversed Lee’s conviction, holding that the

' Pursuant to a recommendation by the Naval Clemency & Parole

Board, the Secretary of the Navy reduced the confinement portion of

the sentence to ten years.

12a

co-defendant’s confession was not reliable enough to war-

rant its untested admission into evidence against Lee. The

Court reasoned that the Confrontation Clause

is uniquely threatened when an accomplice’s confes-

sion is sought to be introduced against a criminal de-

fendant without the benefit of cross-examination.. .

such a confession ‘is hearsay, subject to all the

dangers of inaccuracy which characterize hearsay

generally ... More than this, however, the post-

arrest statements of a co-defendant have traditionally

been viewed with special suspicion. Due to his strong

motivation to implicate the defendant and exonerate

himself, a co-defendant’s statements about what the

defendant said or did are less credible than ordinary

hearsay evidence.’ Bruton v. United States, 391 U.S.

[123] at 141, 88 S.Ct. [1620 at] 1631 (20 L.Ed.2d 476

(1968)] (White, J., dissenting).

106 S.Ct. at 2062.

Likewise in United States v. Cordero, supra, the Court

of Military Appeals ruled that in a prosecution for child

abuse, an inculpatory hearsay statement made to criminal

investigators by appellant’s wife who had since departed

the country could not be admitted as substantive evidence

against the appellant under Military Rule of Evidence

(MRE) 804(b)(5). In its opinion, the Court stated that “we

are unable to allow the use against Cordero of this extra-

judicial statement in the preparation of which criminal in-

vestigators played a major role, when he has no oppor-

tunity to cross-examine the declarant.” 22 M.J. at 223.

Underlying both the Lee and Cordero decisions is the

notion that the confrontation clause demands that “when

One person accused another of a crime under circum-

stances in which the declarant stands to gain by inculpat-

ing another, the accusation is presumptively suspect and

l3a

must be subject to the scrutiny of cross-examination.”

Lee, 106 S.Ct. at 2062-63. See also Cordero, supra, at 223.

Both cases highlight the unanimously held belief that “the

right to confrontation and cross-examination is an essen-

tial and fundamental requirement for the kind of fair trial

which is this country’s constitutional goal.” Pointer v.

Texas, 380 U.S. 400, 405, 85 S.Ct. 1065, 1068, 13 L.Ed.2d

923 (1965). See also California v. Green, 399 U.S. 149, 90

S.Ct. 1930, 26 L.Ed.2d 489 (1970); Douglas v. Alabama,

380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965). In

cases where the hearsay declarant is available and subject

to cross-examination, however, the same constitutional

pressures do not exist and the need for reliability of the

hearsay is logically somewhat lessened although by no

means is it lost. See United States v. Renville, 779 F.2d

430, 440 (8th Cir.1985); United States v. McPartlin, 595

F.2d 1321, 1350 (7th Cir.), cert. denied, 444 U.S. 833, 100

S.Ct. 65, 62 L.Ed.2d 43 (1979). See also United States v.

Barror, 23 M.J. 370, 372 (C.M.A. 1987); United States v.

Hines, 23 M.J. 125, 128 (C.M.A. 1986) (cases stressing

that where the declarant is not available, the Confronta-

tion Clause requires a degree of reliability high enough so

as to be an effective substitute for cross-examination.)

In the instant case the accomplice, SSGT Callahan, test-

ified at the triaLand was subject to cross-examination. The

constitutional dangers presented in Lee and Cordero,

therefore, are not present in this case and to the extent that

those cases are premised upon confrontation clause con-

siderations concerning the introduction of hearsay state-

ments of accomplices, they are inapplicable. At issue is not

whether Callahan’s oral confession is sufficiently trust-

worthy to overcome the heavy demands of the Confronta-

tion Clause, but rather whether it has sufficient cir-

cumstantial guarantees of trustworthiness to warrant

admission under MRE 803(24) where the accomplice was

ev

l4a

available and testified at trial. See Hines, supra, at 128

(question of admission must be judged separately under

confrontation and hearsay standards); United States v.

Powell, 22 M.J. 141, 145 (C.M.A. 1986) (Everett, C.J.,

concurring). We hold that it does and that the military

judge did not err in admitting it into evidence against the

appellant.

During the Fall of 1981 the 22-Area Enlisted Club at

Camp Pendleton, California was twice the subject of

larceny. During the ensuing investigation, agents from the

Naval Investigative Service (NIS) interviewed SSGT

Callahan, an assistant manager at the club. In that inter-

view, Callahan confessed to having participated in the

larcenies with the appellant, also an assistant manager in

the club system. He stated that appellant had initially ap-

proached him with a scheme to rob the club. Under the

plan, the two were to go to the club in the early hours of

the morning, open the safe, take the money and then ap-

pellant would handcuff Callahan to a stall in the bath-

room. Appellant would then leave with the money and

return shortly thereafter to open the club and “discover”

Callahan cuffed to the stall and claiming to be the victim

of an armed robbery. The money from the theft was to be

split between the two after things “cooled off”. He stated

that he and appellant carried out the plan.

Callahan also related to the agents the facts of the sec-

ond larceny at the club which had occurred about a month

after the first. This plan involved cutting through the club

safe with a torch to make it look like an “outside” job. Ap-

pellant procured a torch and he and Callahan drove to the

club in the early morning hours, let themselves in, and

proceeded to cut open the safe and steal the money there-

in. Accoding to Callahan, he did not receive his full share

of the money taken, however, because of “heat” from the

NIS investigation of the first larceny. When appellant was

lSa

transferred to the east coast, he gave the money to his

parents until things cooled off. The money was eventually

paid to Callahan by appellant’s parents by means of a

check for $800.00. Callahan retracted this confession

shortly after it was made.

At appellant’s trial, the Government sought to introduce

Callahan’s confession pursuant to MRE 803(24) through

the testimony of the NIS agent who had conducted Calla-

han’s interview. Under MRE 803(24), statements not

covered by any specific exception but having equivalent

circumstantial guarantees of trustworthiness are admissi-

ble if the court finds (1) that the statement is offered to

prove a material fact, (2) the statement is more probative

on the point for which it is offered than any other evidence

reasonably available, and (3) where the admission of the

Statement would serve the general purposes of the rule and

the interests of justice. At issue here is whether Callahan’s

oral confession has sufficient circumstantial guarantees of

trustworthiness. ?

We find that it does in this case for several reasons, the

most important being that Callahan was present at trial

and was subject to cross-examination. Although he testi-

fied, contrary to his earlier confession to the NIS, that he

and appellant did not plan or participate in the club

larcenies, he was nonetheless given the opportunity to ex-

plain to the members why his story had changed since the

NIS interview. This fact alone provides significant indicia

of trustworthiness. See United States v. Leslie, 542 F.2d

285, 290 (Sth Cir.1976). See also United States v. Renville,

779 F.2d 430, 440 (8th Cir.1985); Vogel v. Percy, 691 F.2d

843 (7th Cir.1982); United States v. laconetti, 406 F.Supp.

> We agree with the finding in our original opinion that the three re-

maining criteria tor admission under the rule are met in this case. See

20 M.J. at 800.

l6a

554, 559 (E.D.N.Y.1976), aff'd 540 F.2d 574 (2d Cir.

1976), cert. denied, 429 U.S. 1041, 97 S.Ct. 739, 50

L.Ed.2d 752 (1977). The fact that Callahan testified also

satisfies the main concern of both the Confrontation

Clause and the hearsay rule which is the lack of any oppor-

tunity to cross-examine the absent declarant. See Lee, ~

supra; Anderson v. United States, 417-U.S. 211, 220, 94

S.Ct. 2253, 2260, 41 L.Ed.2d 20 (1974); Renville, supra, at

440; United States v. Bohr, 581 F.2d 1294, 1304 (8th

Cir.1978). See also 4 J. Weinstein & M. Berger,

Weinstein’s Evidence 4 803(24)[01}, at 803-375 (courts are

willing to admit hearsay evidence where the declarant is

available and subject to cross-examination, and the hear-

say statement was not the product of the dangers against

which the rule seeks to guard.) In cases such as this where

the hearsay declarant is available and subjeci to cross-

examination, the degree of reliability necessary for admis-

sion under MRE 803(24) is reduced primarily because of

the opportunity for the declarant to explain why a particu-

lar statement is or is not accurate. See Renville, supra, at

440; United States v. McPartlin, 595 F.2d 1321, 1350-51

(7th Cir. 1979), cert. denied, 444 U.S. 833, 100 S.Ct. 65,

62 L.Ed.2d 43 (1979). Callahan’s testimony allowed the

members to judge the accuracy of his confession and the

motives he had for making it. Thus the presumption of

unreliability that normally attaches to accomplice confes-

sions admitted against a co-actor without the benefit of

cross-examination and which formed the basis for the

Supreme Court’s decision in Lee is overcome where the

declarant is available and speaks in open court. See United

States v. Lee, 106 S.Ct. at 2062-63 (“accomplice accusa-

tion is presumptively suspect and must be subjected to the

17a %

scrutiny of cross-examination.”)> As Professor McCor-

mick has aptly noted,

the witness who has told one story aforetime and

another today has opened the gates to all the vistas of

truth which the common law practice of cross-

examination and re-examination was invented to ex-

plore. It will go hard, but the two questioners will lay

bare the sources of the change of face, in forgetful-

ness, carelessness, pity, terror or greed, and thus

reveal which is the true story and which is the false.

McCormick, Evidence § 39 at 75.

We also find it significant that Callahan admitted mak-

ing the statement to the NIS agents and, in fact, confirmed

that what the agents testified to at trial was an accurate

version of his statements made to them. See Leslie, supra,

at 290-91; United States v. Powell, 22 M.J. 141, 145

(C.M.A. 1986). Although he testified that these earlier

statements were lies resulting from the fear of imprison-

ment and the threats of an unknown person who con-

fronted him in a shopping mall and told him to implicate

the appellant or risk the life of his girlfriend and daughter,

this simply created a question of witness credibility well

within the province of the members to decide.* We agree

with the oft-quoted observation by Judge Learned Hand

that “if from all the jury sees of the witness, they conclude

> We stress, however, that the fact of cross-examination does not

per se satisfy the trustworthiness requirements of the residual hearsay

rules, although it is a strong factor weighing in favor of reliability. See

United States v. Hines, 23 M.J. 125, 128 (C.M.A.1986). Cf. United

States v. Powell, 22 M.J. 141, 145 (C.M.A.1986) (Everett, C.J., con-

curring).

+ The patent incredibility of appellant’s in-court testimony and the

improbable reasons he gave tor changing his story are further indicia

of the reliability of his earlier confession. United States v. Powell, 22

MJ. 141, 145 (C.M.A.1986).

18a

that what he says now is not the truth, but what he said

before, they are nonetheless deciding from what they see

and hear of that person and in court.” DiCarlo v. United

States, 6 F.2d 364, 368 (2d Cir.1925). See also Leslie,

supra.

It is also noteworthy that Callahan’s oral confession to

the NIS was very detailed and specific, relating facts which

would only be known by one actually involved in the of-

fenses. Further, his statement was strongly corroborated.

The testimony of PVT Yeauger, appellant’s wife, was, for

all practical purposes, identical to Callahan’s statement.

According to PVT Yeaguer, she and appellant purchased a

set of handcuffs just prior to the first larceny. She was

present when the money was split up, and she heard ap-

pellant and Callahan talking about how appellant had

handcuffed Callahan to a bathroom stall to make the job

look like a robbery. Prior to the second larceny appellant

purchased a torch and approached Callahan with the idea

to use it to cut into the club safe. Callahan was initially

reluctant to do so, but later agreed. After the larceny, ap-

pellant’s parents were given Callahan’s share of the money

for safekeeping. She further stated that Callahan received

his share eventually when appellant’s parents tendered him

a check for $800.00

Police reports on the larcenies also confirm the veracity

of Callahan’s confession. According to the reports, the

first larceny was reported by the appellant who had gone

to Open up the enlisted club for the day and had found

Callahan handcuffed to the bathroom stall. Callahan

claimed to have been robbed by masked gunmen. The

report on the second larceny indicated that the safe was

cut open with a torch. Additionally, evidence was pro-

duced to show that appellant’s parents did indeed pass a

check for $800.00 to Callahan.

19a

In short, we find that there is ample evidence to

demonstrate sufficient circumstantial guarantees of

trustworthiness surrounding Callahan’s oral confession to

the NIS to warrant admission of that statement against the

appellant under MRE 803(24). The evidence and testi-

mony presented, coupled with Callahan’s own testimony

“strongly suggest that the declarant’s perception, memory,

narration, and sincerity concerning the matters asserted

{in the NIS interview] are trustworthy,” United States v.

Friedman, 593 F.2d 109, 119 (9th Cir.1979), and they pro-

vided a meaningful basis for assessing both the candor of

the declarant and the accuracy of the statement. See

United States v. Barror, 23 M.J. 370, 372 (C.M.A.1987).

Therefore we find that the military judge below did not

abuse his discretion in admitting the extra-judicial

statements under MRE 803(24).

Accordingly, upon reconsideration, the findings and

sentence as approved on review below are affirmed.

Senior Judge COUGHLIN and Judge MIEICZARSKI con-

Cur.

20a

APPENDIX C

U.S. NAVY-MARINE CORPS

COURT OF MILITARY REVIEW

NMCM 84 2381

UNITED STATES

V.

MICHAEL E. YEAUGER, 287 56 8113, .

SERGEANT (E-5), U.S. MARINE CORPS

Sentence Adjudged 16 Jan. 1984

Decided 19 June 1985

CDR David C. Larson, JAGC, USN, Appellate Defense

Counsel.

William J. Holmes, Civilian Defense Counsel.

LCDR Jeffrey S. Sawtelle, JAGC, USN, Appellate

Government Counsel

LT William C. Little, Jr., JAGC, USNR, Appellate

Government Counsel.

Betore GREGORY, MITCHELL and BARR, JJ

BARR, Judge:

Tried by general court-martial composed of officer and

enlisted members, appellant was convicted, contrary to his

pleas, of unauthorized absence from 29 August to |

September 1983, three (3) counts of conspiracy to commit

3) counts of larceny (corresponding to the

2la

conspiracy allegations), and a single specification of

unlawfully receiving and concealing stolen property, in

violation of Articles 86, 80, 121, and 134. Uniform Code

of Military Justice (UCMJ), 10 U.S.C. §§ 886, 880, 921,

934, respectively. The sentence adjudged, which extended

to a dishonorable discharge, confinement for 20 years,

total forfeiture of pay and allowances, and reduction to

pay grade E-1, was approved on review below.

Seven assignments of error have been addressed by ap-

pellant to this Court for consideration. We decide

Assignments III through VI adversely to appellant and re-

ject them without comment. Disposition of Assignments

Il and VII depends, in part, on the merit and resolution of

the first error assigned.

THE MILITARY JUDGE COMMITTED PREJUDICIAL

ERROR BY ADMITTING INTO EVIDENCE THE ORAL

UNSWORN STATEMENT OF SERGEANT E.D.

CALLAHAN, USMC, UNDER MIL.R.EVID. 803(24).

The facts essential to resolution of this issue can be

briefy stated. Appellant and one Sergeant (SGT) Callahan

were on the management staff of the 22 Area Enlisted

Men’s Club, Camp Pendleton, in September and October

1981, during which time two larcenies of that club occur-

red. Initial suspicion settled upon SGT Callahan, but no

charges followed. Appellant and his wife, also a serv-

icemember, were subsequently transferred to the Marine

Corps Air Station, New River area for duty. In May and

July 1982, larcenies from club facilities at New River oc-

curred. As a result of statements given by appellant’s wife

to the Naval Investigative Service (NIS), appellant and

SGT Callahan were implicated in the 22 Area Club thefts.

SGT Callahan, upon interview by NIS, ultimately con-

22a

fessed to his part in the latter thefts and identified ap-

pellant as his co-actor. SGT Callahan refused to have his

oral confession reduced to writing, and, thus, the confes-

sion was not made under oath. Prior to, and during, his

court-martial! for his part in these thefts, SGT Callahan

recanted his confession and litigated its admissibility by

way of a motion to suppress. The motion was denied, the

confession was admitted, and SGT Callahan was con-

victed of the September and October thefts from the 22

Area Club. -

At appellant’s trial, the Government revealed that it

would seek to have the NIS agents who took SGT

Callahan’s confession testify as to the substance of that

confession and obtain admissibility of the agents’

testimony as substantive evidence on the merits under Rule

803(24), Mil.R.Evid.—the residual rule. The trial court

took testimonial evidence, which included that of the two

NIS agents, appellant’s wife, and SGT Callahan, who

testified in accordance with his recantation, on the issue of

whether to admit the testimony of the agents during trial

on the merits. In essence, the military judge conducted a

complete hearing on the voluntariness and admissibility of

SGT Callahan’s confession, wherein the Government was

required to meet the burdens precedent to admissibility

which obtain in military practice whenever a suppression

motion relating to a confession is litigated. SGT

Callahan’s testimony on the motion Is particularly signifi-

cant. He stated that the testimony of the NIS agents,

which recited what he purportedly admitted to them, ac-

curately reflected the account of events and facts he had

provided NIS during the confession interview. Other

evidence offered on the motion, including the testimony of

appellant’s wife, essentially corroborated the facts ad-

mitted in SGT Callahan’s confession. The military judge,

subject to certain restrictions not now relevant, ruled that

23a

he would permit the NIS agents to testify as to the facts

admitted in SGT Callahan’s confession and, thus, the im-

plication of appellant in the thefts of the 22 Area Club,

and would authorize the use and consideration of such

testimony as substantive evidence in appellant’s trial. We

conclude that the military judge was correct in his ruling

and that the essential findings entered on the motion are

supported by the evidence of record.

Rule 803(24), Mil.R.Evid., provides, in pertinent part,

that the following type of evidence will not be excluded by

the hearsay rule:

A statement not specifically covered by any of the

foregoing exceptions but having equivalent circum-

stantial guarantees of trustworthiness, if the court

determines that (A) the statement is offered as

evidence of a material fact; (B) the statement is more

probative on the point for which it is offered than any

other evidence which the proponent can procure

through reasonable efforts; and (C) the general pur-

poses of these rules and the interests of justice will

best be served by admission of the statement into

evidence.

Looking first to subdivisions (A), (B), and (C) of the

Rule, we conclude that each criterion was met in this case.

The confession of SGT Callahan to the NIS agents related

the modus operandi of the offenses and the subsequent

cover-ups, the identity of the res of the offenses, and the

criminal actions of both appellant and the relator leading

to the consummation of the offenses, all of which were

material facts relating to the crimes alleged. The testimony

of the agents was but the vehicle which presented this con-

fession and the material facts recited therein to the triers

of fact. Similarly, SGT Callahan’s confession, as related

by the testimony of the NIS agents, was indeed the most

me 24a

probative evidence available on these material facts. The

corroborative evidence offered via the testimony of ap-

pellant’s wife was, if believed, certainly material to the

issues of fact being litigated. Her credibility as a witness,

however, was known to be subject to severe impeachment

on the grounds of bias and malice against her husband and

prior inconsistency. Thus, the statement of SGT Callahan

was not only the most probative evidence available as to

the material facts admitted by him, but also necessary cor-

roboration to the testimony of appellant’s wife. Finally,

admitting the statement of SGT Callahan, if it be found

sufficiently trustworthy, would, under the facts of this

case, further the purposes of the rules as set forth in Rule

102, Mil.R.Evid. — particularly, the truth-finding process.

We thus concur with determination of the military judge

that each of the conditions set forth in (A), (B), and (C) of

the Rule 803(24), Mil.R.Evid., was met.

It is, of course, the “trustworthiness” requirement of

Rule 803(24) which is central to the issue addressed. We

thus set forth, initially, the parameters which guide, and

upon which is focused, our consideration of this threshold

requirement.

We state at the outset that we read the quoted rule as re-

quiring that the proponent demonstrate that the evidence

to be offered for admission possesses only “equivalent”,

not “exceptional”, circumstantial guarantees of trustwor-

thiness. Thus, if the standards governing trustworthiness

that are embraced within the specific hearing exceptions

are likewise present in the evidence offered under the

residual rule, such evidence should be deemed to meet the

threshold requirement of “equivalent circumstantial

guarantees of trustworthiness” of the rule.

It is commonly held that hearsay evidence is not ad-

missible because one or more of the important testimonial

25a

requisites incident to trial, and, thus, trustworthiness of

the hearsay evidence, are lacking. Those requisites are that

the witness testify under oath, in the presence of the trier

of fact, and be subject to contemporaneous cross-

examination. See Chambers v. Mississippi, 410 U.S. 284,

93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). In addition, in a

criminal case, violation of the Sixth Amendment right of

an accused to confront the witnesses against him stands as

a separate —though ofttimes interrelated — ground for ex-

clusion of hearsay evidence.

Another consideration presented by this case on the

trustworthiness requirement of Rule 803(24) is the pro-

priety —or lack thereof —of the judging of the credibility

of SGT Callahan and the NIS agents, by the military

judge, in determining whether this requirement was met.

A judgment on the credibility of witnesses is normally

viewed to be the province of the triers of fact. This judg-

ment, however, is one related only to balancing the weight

to be given to certain evidence. Before evidence can be

weighed, it must be admitted. The military judge, who

must ultimately rule on the admissibility of evidence,

must, of necessity, weigh the credibility of witnesses in

reaching this ruling. His determination is binding on the

triers of fact only to the extent that they must consider the

admitted evidence on the issue for which it is presented. It

is certainly not binding on, nor does it influence, the triers

of fact in resolving what weight, if any, is to be given to

such evidence. We conclude it to be not only appropriate,

but also essential, that the military judge consider, in

determining the trustworthiness requirement, those fac-

tors bearing on the reliability and credibility of the

declarant of a hearsay statement as well as the relator of

that statement.

We finally refer to the decision in United States vy.

Whalen, 15 M.J. 872 (ACMR1983), in which Judge

26a

Foreman, speaking for the Court, identified four (4)

criteria for examination on the issue of trustworthiness of

a proffered statement. We herein adopt, and apply, these

incidents of trustworthiness: (1) presence of the hearsay

declarant at trial and subject to cross-examination; (2)

similarity of the hearsay declaration to specifically defined

hearsay exceptions; (3) the circumstances surrounding the

making of the hearsay declaration support a finding of

trustworthiness; and, (4) other evidence, independent of

the hearsay declaration, corroborates the truth of the facts

admitted within the declaration. :

We now apply the various standards and criteria for-

mulated above to the specific facts of this case. Turning

first to the examination suggested by Whalen, we find all

four criteria present. SGT Callahan, the hearsay

declarant, was present at appellant’s trial and subject to

examination by the defense. Furthermore, the NIS agents,

whose credibility was crucial to the issues of both ad-

missibility and weight, were also subject to cross-

examination. SGT Callahan’s admission was similar to a

recognized exception to the hearsay rule, Rule 804(b)(3),

governing declarations against penal interest, and to a

statement which is treated as non-hearsay under Rule

801(d)(1)(A), inconsistent prior statements. The cir-

cumstances attending the giving of the statement by SGT -

Callahan suggest its trustworthiness. The evidence on this

aspect of the trustworthiness requirement was fully

litigated by a suppression motion at appellant’s trial in

which the military judge judged the admissibility of SGT

Callahan’s confession by the same standards that he would

have applied had the testimony of the NIS agents been of-

fered against SGT Callahan at his trial. If the declaration

of SGT Callahan and the testimony of the NIS agents were

sufficiently trustworthy to meet the requirements of Rules

304 and 305, Mil.R.Evid., if litigated in a triafof the

27a

declarant, the same finding of trustworthiness arguably

pertains where the declaration is offered in a different pro-

ceeding against a co-actor. As to the last criterion, we find

sufficient corroborating facts in the evidence admitted,

without consideration of SGT Callahan’s confession, to

support the truth of the matters admitted in that hearsay

declaration. It further makes sense that if the evidence is

sufficient to meet the corroboration requirement of Rule

304(g), Mil.R.Evid., were SGT Callahan the accused, that

same evidence would satisfy the factual corroboration in-

gredient as applied to trustworthiness.

We concur completely with the military judge’s estimate

of SGT Callahan’s credibility as it relates to the recanta-

tion of his confession. The “cloak-and-dagger” web of in-

trigue spun by SGT Callahan is patently incredible and un-

worthy of belief. The “tale” of mystery, in fact, defies

belief. We consider the recantation, as well as the

testimony of SGT Callahan on the motion, to be the

epitomic lie. His recantation testimony was such a farcical

assault on basic ideas of veracity that it, though offered to

explain away his confession, served instead to support its

truth. The credibility of the NIS agents was, as previously

noted, supported by SGT Callahan, for he admitted that

he indeed related to the agents those facts to which they

testified. Thus, the military judge properly considered the

credibility of the witnesses and their declarations — both at

the time of their making and at the time of trial—as fac-

tors in determining the trustworthiness of the hearsay

declaration. Our judgment of the credibility of the NIS

agents against that of SGT Callahan is in consonance with

that of the military judge.

There is no confrontation clause violation. SGT

Callahan, the hearsay declarant, appeared at appellant’s

trial as a Witness, and unlimited opportunity was afforded

28a

appellant and his counsel to attack the declaration and

support Callahan’s in-court testimony. This is sufficient to

pass constitutional muster. See California v. Green, 399

U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970).

Finally, the testimonial requirements, which, when ab-

sent, call for exclusion of evidence on hearsay grounds,

are abundantly present in this case. The critical witnesses

on the issue— both the declarant of the statement and the

relators of same-were present at trial, testified under oath

and in the presence of the fact-finders, and were subject to

examination by both parties to the trial. That these re-

quirements took place at trial, and not at the time of the

making of the declaration, is of no moment because the

purpose for which they exist as indicia of trustworthiness

was fully met.

We, therefore, reject the first error assigned and hold

that, under the specific circumstances of this case, the oral

unsworn and hearsay declaration of SGT Callahan was

properly admitted under Rule 803(24), Mil.R.Evid.

APPELLANT’S GUILT OF CHARGES II, II] AND IV AND

THE SPECIFICATIONS THEREUNDER WAS NOT

PROVED BEYOND A REASONABLE DOUBT.

Having determined the out-of-court statement of SGT

Callahan, as related through the testimony of the NIS

agents, to be admissible as substantive evidence, we find

the evidence of record taken as a whole proves appellant’s

guilt beyond reasonable doubt of each offense of which he

Stands convicted.

iil

APPELLANT'S SENTENCE TO 20 YEARS CONFINEMENT

IS UNDULY SEVERE AND DISPROPORTIONATE TO THE

OFFENSES CONSIDERING: (1) THE ABSENCE OF A

PRIOR DISCIPLINARY RECORD; (2) THE AMOUNT OF

MONEY INVOLVED; (3) THE FACT THAT NO VIOLENCE

WAS INVOLVED; AND (4) THE FACT THAT THE AC-

COMPLICE (AND PRINCIPLE ACTOR) FOR TWO OF THE

OFFENSES RECEIVED A SENTENCE TO CONFINEMENT

OF ONLY 5 YEARS (UNITED STATES V. YEAUGER, No.

83 3901 (NMCMR 19 OCTOBER 1983)) AND THE AC-

COMPLICE FOR THE OTHER TWO OFFENSES RE-

CEIVED A SENTENCE TO CONFINEMENT OF ONLY

THREE MONTHS (UNITED STATES V. CALLAHAN, NO.

84 1053 (NMCMR 19 JULY 1984)).

We could not disagree more. While we make no com-

ment on the sentence awarded SGT Callahan, we have no

hesitation in concluding that a sentence to 20 years con-

finement is appropriate for the master-mind of two

larcenies from the Government totalling $11,410.55, the

co-actor in another larceny from the Government of

$4628.74, and the receiver and concealer of $7120.95

stolen from the Government. We have been provided with

a decision of the Secretary of the Navy, acting pursuant to

Article 74(a), UCMJ, 10 U.S.C. § 874(a), which, in con-

sonance with a recommendation of the Naval Clemency

and Parole Board, reduced the period of appellant’s con-

finement to 10 years. As we find the sentence adjudged ap-

propriate, we see no reason why this Court should now

add to the clemency already granted this proven thief.

Accordingly, the findings and sentence as adjudged on

review below are affirmed. The court-martial order, in the

summarization of offenses, erroneously states the amount

alleged in specification 1 of Charge II. A corrected order

should be issued.

Senior Judge GREGORY and Judge MITCHELL concur.

US GOVERNMENT PRINTING OFFICE t¥oo