Petition for Writ of Certiorari — Maio v. United States

JUL 24 1992 |

= \

ia ; j 7 re

| OFFICE OF THE CLERA

IN THE te Paces!

Sigireme Court of the United S

OCTOBER TERM, 1992

fates

CARMEN M. MaAIo, JR.,

: Petitioner

V.

UNITED STATES OF AMERICA,

Re sponde nt

Petition for a Writ of Certiorari to the

United States Court of Military Appeals

PETITION FOR A WRIT OF CERTIORARI

URSULA P. MOUL

Captain, Air Force Legal

Services Agency

United States Air Force

AFLSA JAJD

Bldg 5683

Bolling AFB, DC 20332

(202) 767-1562

Counsel of Record

Mary C. YASTISHOCK

Major, Air Force Legal

Services Agency

United States Air Force

AFLSA/JAJD

Bldg 5683

Bolling AFB, DC 20332

(202) 767-1562

July 1992 Counsel for Petitioner

QUESTION PRESENTED

Whether the military judge erred by denying appel-

lant’s motion to suppress his confession for lack of ade-

quate corroboration as required by Military Rule of Evi-

dence 304(g), Opper v. United States, 348 U.S. 84 (1954)

and Smith v. United States, 348 U.S. 147 (1954)?

TABLE OF CONTENTS

Page

QUESTION PRESENTED

OPINIONS BELOW ]

JURISDICTION l

STATEMENT OF THE CASE \

A)

REASONS FOR GRANTING THE WRIT 4

CONCLUSION , ste 6

APPENDIX A

APPENDIX B 20a

(iii)

iv

TABLE OF AUTHORITIES

Cases:

United States Supreme Court Decisions

Opper v. United States, 348 U.S. 84 (1954)

Smith v. United States, 348 U.S. 147 (1954) _....

Wong Sun v. United States, 371 U.S. 471 (1962)

United States Court of Military Anpeals Decision

United States v. Maio, 34 M.J. 215 (C.M.A. 1992) ..

United States Statutes

10 U.S.C. § 831 (1989)

10 U.S.C. § 867a (1989)

28 U.S.C. § 1259(3) (1989)

Military Rules of Evidence

Mil.R.Evid. 304(g)

Page

3,4

IN THE

Suprenw Court of the United States

OCTOBER TERM, 1992

CARMEN M. MAIO, JR.,

y. Petitioner

UNITED STATES OF AMERICA,

Respondent

Petition for a Writ of Certiorari to the

United States Court of Military Appeals

PETITION FOR A WRIT OF CERTIORARI

The petitioner, Carmen M. Maio, Jr., respectfully prays

that a writ of certiorari issue to review the judgment of

the United States Court of Military Appeals entered in

his case on May 11, 1991.

OPINIONS BELOW

The opinion of the United States Court of Military Ap-

peals is reported at 34 M.J. 215 (C.M.A. 1991) (Appen-

dix A). The United States Air Force Court of Military

feview issued an unpublished decision on January 10,

1991 ‘Appendix B).

JURISDICTION

The final order of the United States Court of Military

Appeals was entered on 11 May 1992. The jurisdiction

of this Court is invoked under Article 67a of the Uniform

Code of Military Justice (UCMJ), 10 U.S.C. § 867a

(1989), and 28 U.S.C. §$ 1259(3) (1989).

9

STATEMENT OF THE CASE

During the Summer of 1989, Staff Sergeant Ronald R.

Brainard worked as an undercover narcotics agent as

part of a joint undercover narcotics investigation con-

ducted by the Air Force Office of Special Investigations

(OSI) at Mather Air Force Base, California, and civilian

authorities from the surrounding communities. Many of

Sergeant Brainard’s investigative activities centered on

Gigi’s, a civilian bar, located near Travis Air Force Base,

California.

On July 5, 1989, Sergeant Brainard met the appellant

at Gigi’s. The two played billiards for a while, and then

they left for a drive in Sergeant Brainard’s car. While

on the drive, the appellant and Sergeant Brainard

stopped by the side of the road near Travis Air Force

Base. Sergeant Brainard showed the appellant a baggie

of white powder and told the appellant it was metham-

phetamine. Actually the powder was not methampheta-

mine, rather it was a placebo which produced the same

nasal irritant effect as methamphetamine but no “high”

sensation. Sergeant Brainard placed some of the white

powder on the end of a key and gave the key to the ap-

pellant. The appellant inhaled the powder through his

nose. Sergeant Brainard simulated inhaling some of the

white powder. The two talked for a while and then re-

turned to Gigi’s.

On July 14, 1989, Sergeant Brainard and the appellant

again met at Gigi’s. After talking for a while, the two

again left in Brainard’s car. Sergeant Brainard told the

appellant that he had some methamphetamine called

“Blue Streak.” Sergeant Brainard showed the appellant

some white powder in a small baggie, which was again a

placebo, and offered to sell it to him for $20.00. The ap-

pellant looked at the bag and agreed to buy the powder.

Both the appellant and Sergeant Brainard again inhaled

some of the powder from the tip of a key. Afterwards,

they returned to Gigi’s.

3

On July 27, 1989, AFOSI Special Agent Michael J.

Salyards met the appellant at his barracks room and es-

corted him to the Travis Air Force Base AFOSI office for

questioning. After advisement of his rights under Article

31, UCMJ, 10 U.S.C. § 831 (1983), the appellant waived

his rights to counsel and to remain silent. He spoke with

the AFOSI, and then wrote in his own hand a statement

admitted as Prosecution Exhibit 3.

In his statement, the appellant admitted to using meth-

amphetamine approximately 10-12 times since January

1989. He said his uses occurred either in his barracks

room during his free time or before going jet skiing at

Folsom Lake, but never on duty or before going to work.

The appellant indicated that he obtained the drugs from

his roommate, Airman Duane Spencer, and that they

used methamphetamine together. The appellant said his

method of ingestion was to “inhale it.’ In addition, the

appellant admitted to his use and purchase of the placebo

methamphetamine from Sergeant Brainard. It appears

that at the time of his confession, the appellant did not

know that Sergeant Brainard was working undercover.

At trial, the defense moved to suppress the confession

because it Was not corroborated under Military Rule of

Evidence 304(¢). Sergeant Brainard testified that the

appellant had said that he and his roommate had snorted

some methamphetamine in late June 1989 prior to com-

ing on duty. As a result, they had performed an ““HSC”

(Home Station Check aircraft inspection) in such a timely

manner that they were given time off for it. Appellant

also told Sergeant Brainard that he and Airman Spencer

usually used methamphetamine on weekends prior to go-

ing jet skiing. Sergeant Brainard testified that during

the investigation, he had observed Airman Spencer snort

methamphetamine and placebo methamphetamine off the

end of a key. Sergeant Brainard also testified that he

was never with both Airman Spencer and the appellant

at the same time.

The Court of Military Appeals found the following evi-

dence to be independent of appellant’s confession:

4

1) Direet testimony from undercover agent Sergeant

Brainard that appellant had earlier admitted all con-

fessed facts to him on July 5, 1989.

2) Direct testimony from undercover agent Sergeant

Brainard that he observed Spencer, appellant’s room-

mate and putative supplier, produce and use meth-

amphetamine on Jun 2, 1989, at or near “Gigi’s.”

3) Written statement by Sergeant Brainard that

Spencer admitted using methamphetamine, in the

presence of his roommate, when jet skiing.

4) Direct testimony from undercover agent, Sergeant

Brainard, that during the charged period he twice

vbserved appellant readily ingest placebo metham-

phetamine by snorting it froma key.

United States v. Maio, 34 M.J. 215, 218 (1992) (empha-

sis added).

REASONS FOR GRANTING THE WRIT

Military Rule of Evidence 304‘ g) provides:

An admission or a confession of the accused may be

considered as evidence against the accused on the

question of guilt or innocence only if independent

evidence, either direct or circumstantial, has been

introduced that corroborates the essential facts ad-

mitted to justify sufficientiy an inference of their

truth. Other uncorroborated confessions or admis-

sions of the accused that would themselves require

corroboration may not be used to supply this inde-

pendent evidence. If the independent evidence raises

an inference of the truth of some but not all of the

essential facts admitted, then the confession or ad-

mission may be considered as evidence against the

accused only with respect to those essential facts

stated in the confession or admission that are cor-

roborated by the independent evidence... .

Although there is no Federal Rules of Evidence coun-

terpart to Military Rule of Evidence 304(g), it has long

been the standard that an accused cannot be convicted

based solely upon an uncorroborated, out-of-court admis-

5

sion or confession. In Smith v. United States, 348 U.S.

147 (1954), this Honorabie Court explained that the jus-

tification for this requirement recognizes the long history

of judicial experience with confessions and the realization

that sound law enforcement requires investigation beyond

the words of the accused. Confessions may be unreliable

because they were involuntarily obtained by use of police

coercion or unlawful inducement or voluntarily obtained

but reflecting the pressure of the police investigation

rather than a clear reflection of the past. Additionally,

experience recounts a number of false confessions volun-

tarily made. 348 U.S. at 153. A conviction may be sup-

ported by a confession “as long as there is substantial

independent evidence that the offense has been commit-

ted.” Jd. at 156.

It is a settled principle in the federal courts that a

“conviction must rest upon firmer ground that the uncor-

roborated admission or confession of the accused.” Wong

Sun v. United States, 371 U.S. 471, 488-89 (1963).

In our country the doubt persists that the zeal of the

agencies of prosecution to protect the peace. the self-

interest of the accomplice, the maliciousness of an

enemy 91 the aberration or weakness of the accused

under the strain of suspicion may tingle or warp the

facts of the confession. Admissions, retold at a trial,

are much like hearsay, that is, statements not made

at the pending trial. They had neither the compulsion

of the oath nor the test of cross-examination.

Opper v. United States, 348 U.S. 84, 89-90 (1954).

Appellant’s conviction should not be sustained because,

apart from his own words, there was no evidence what-

ever that a crime occurred. The first item of corrobora-

tion noted by the Court of Military Appeals, that appel-

lant had earlier admitted the facts confessed, cannot be

seen as independent corroboration. The second item, that

the appellant’s roommate produced and used methamphet-

amine, is a purely irrelevant and peripheral matter.

There was no evidence presented at trial that the sub-

stance was in fact methamphetamine. The third item,

6

that appellant’s roommate admitted using methamphet-

amine with appellant when jet skiing, is contrary to the

principle that co-conspiraior’s hearsay statements may

not be admitted against an accused. Wong Sun v. United

States, 371 U.S. at 491. Finally, that appellant twice

used placebo drugs by snorting it from a key in front of

the undercover agent, is an attempt to show subsequent

drug use as corroboration for a prior use of the same

drug. This logic completely destroys the substance of the

requirement for independent corroboration of the essen-

tial facts admitted. There is absolutely no external evi-

dence (hat a crime was committed, and appellant’s con-

fession was improperly used to convict him.

CONCLUSION

The petitioner’s case is worthy of Supreme Court re-

view. In particular, this case offers a unique opportunity

for this Court to define the limits of the admissibility of

confessions when there is no external evidence that a

crime was committed.

Respectfully submitted,

URSULA P. MOUL

Captain, Air Force Legal

Services Agency

United States Air Force

AFLSA/JAJD

Bldg 5683

Bolling AFB, DC 20332

(202) 767-1562

Counsel of Record

MARY C. YASTISHOCK

Major, Air Force Legal

Services Agency

United States Air Force

AFLSA/JAJD

Bldg 5683

Bolling AFB, DC 20332

(202) 767-1562

July 1992 Counsel for Petitioner

APPENDICES

la

APPENDIX A

U.S. COURT OF MILITARY APPEALS

No. 66.667

ACM 28458

UNITED STATES,

Appellee.

V. ppe (ێ

CARMEN M. MAIO, JrR., Airman First

Class U.S. Air Force,

Appe llant.

Argued Jan. 7, 1992

Decided May 11, 1992

For Appellant: Captain Ursula P. Moul (argued);

Colonel Jeffrey R. Owens (on brief); Major Bernard E.

Doyle, Jr.

For Appellee: Captain James C. Sinwell (argued) ;

Lieutenant Colonel Brenda J. Hollis (on brief).

Opinion of the Court

SULLIVAN, Chief Judge:

Appellant was tried by a general court-martial com-

posed of a military judge sitting alone at Travis Air

Force Base, California, on January 18 and 19, 1990.

Pursuant to his pleas of guilty, he was found guilty of

attempting to wrongfully use methamphetamine (by con-

suming placebos) on divers occasions between July 5 and

27, 1989, and attempting to wrongfully possess the same

(by acquiring a placebo) on July 14, 1989. Art. 80, Uni-

2a

form Code of Military Justice, 10 USC § 880. In addi-

tion, pursuant to his conditional pleas, he was found

guilty of wrongfully using methamphetamine on divers

occasions between April 1 and July 27, 1989, in violation

of Article 112a, UCMJ. 10 USC $912a. He was sen-

tenced to a bad-conduct discharge, confinement and for-

feiture of $400 pay ver month for 9 months, and reduc-

tion to airman basic. The convening authority approved

this sentence, and the Court of Military Review affirmed

on January 10, 1991, in an unpublished opinion.

This Court granted review of the following question

of law:

WHETHER THE MILITARY JUDGE ERRED BY

DENYING APPELLANT’S MOTION TO SUP-

PRESS HIS CONFESSION FOR LACK OF ADE-

QUATE CORROBORATION AS REQUIRED BY

MIL.R.EVID. 3041 g¢).

We hold that this record contains more than the slight

evidence of corroboration required. by Mil.R.Evid. 304/g),

Manual for Courts-Martial, United States, 1984, for ad-

mission of appellant’s voluntary confession at this court-

martial. See generally United States v. Yeoman, 25 MJ

1,4 (CMA 1987).

Appellant was charged with various drug offenses oc-

curring between January 1 and July 27, 1989. The origi-

nal specifications state:

CHARGE I: VIOLATION OF THE UCMJ, AR-

TICLE 80.

Specification 1: In that |appellant] did, at or near

Travis Air Force Base, California, on divers occa-

sions between on or about 5 July 1989 and on or

about 27 July 1989, attempt to wrongfully use

methamphetamine.

Specification 2: In that [appellant] did, at or near

Travis Air Force Base, California, on or about 14

3a

July 1989, attempt to wrongfully possess some

amount of methamphetamine.

CHARGE II: Violation of the UCMJ, Article 112a.

Specification: In that [appellant] did, at or near

Travis Air Force Base, California, on divers occa-

sions, betiveen on or about 1 January 1989 and on

or about 27 July 1989, wrongfully use methamphet-

amine.

(Emphasis added. |

Appellant, however, admitted during his guilty-plea in-

quiry that he used actual methamphetamine in his room

on only two occasions during the period from April 1 to

July 27, 1989. He acknowledged that those uses ithe

specification of Charge II) were distinct from his use and

possession of placebo methamphetamine on July 5 and 27,

1989 (specifications 1 and 2 of Charge I).

Prior to entering his pleas, appellant had moved to

suppress his confession of July 27, 1989, on the basis ot

a lack of corroboration required by Mil.R.Evid. 3041 ¢).

This confession states:

I Carmen M. Maio, have been stationed at Travis

since April 1988. Duane Spencer ‘Spence: has been

my roommate since August ’88. The first time I had

used methamphetamine, crank, was approx. January

1989. Since Jan 1989 T have used crank approwi-

mately 10-12 times. The places at which this oc-

curred were either in my room, bldg. 1346 Rm. A-4,

or before going to Folsom Lake to jet ski. I would

use crank in my room before! going jet skiing, or on

my free time always keeping it to myself and not

involving others. The erank was in powder form,

and I wo[ul]d inhale it for digestion. I knew it was

crank from its distinct smell and it would make me

feel like T had drank a pot of coffe. On the occasions

I had used crank I had qotten it through Spence or

was turned on by him, occasionally using with him

4a

(10-12 times). Most of the time I would get it from

someone else, neither one of us actually being deal-

ers. I think Spence would get the crank at Gigi’s

from civilians. I don’t think Spence ever bought

crank from military members, and I don’t know of

any military members who sell drugs. Around the

middle of July ’89 I bought $20.00 worth of what I

thought was crank from Ron, a guy I met at Gigi’s.

I used about half of what I bought and realizing

that it was in fact not crank, I did not use what

was left. Around the beginning of July 89, I used

about half a line of what I thought was crank, being

turned on from Ron. This happened in Ron’s car

somewhere in Fairfield. | never used crank on duty

or before going to work. It was for my personal use

and I had never dealt to anyone nor witnessed

Spence to deal. The reasons I would use crank is

because it made me feel productive, gave an energy

boost. I do not want what nas happened to be det-

rimental to my career. Realizing this I will never

use it again. I do like the military and wish to be

a part of the military team. I will try to help in

any way possible.

s Carmen M. Maio

(Emphasis added. }

Evidence was taken at a hearing prior to pleas on ad-

missibility of this confession, including testimony by

Special Agent Salyards, the police officer who obtained it

on July 27, 1989. Sergeant Brainard, an undercover

agent for the security police, also testified inter alia con-

cerning additional admissions made to him by appellant

on July 5, 1989, as well as other matters observed during

his undercover operation against appellant and his room-

mate during the charged period. (See appendix.) Fi-

nally, Sergeant Keith, appellant’s supervisor, testified

about appellant’s work schedule and duties during this

period.

5a

The military judge ruled that the challenged confession

was sufficiently correborated to be admitted at this court-

martial. He also articulated for the record his reasons

for this ruling. The Court of Military Review also held

that the confession was properly corroborated and articu-

lated its corroboration rationale. We now affirm the

court below.

Our starting point in resolving the granted issue is the

voluntary confession written and signed by appellant and

given to Agent Salyards on July 27, 1989. In this con-

fession, appellant essentially admitted that he had inten-

tionally and knowingly used methamphetamines (crank)

approximately 10 to 12 times since January 1, 1989. He

further stated that he normally inhaled these drugs in

powder form in private but also occasionally in the pres-

ence of his roommate, Duane Spencer. He particularly

noted that such use had occurred before going jet skiing.

Finally, he identified Spencer as his drug supplier whose

source he further denoted as a bar named Gigi’s.

Clearly, this confession established all the elements of

unlawful drug use in violation of Article 112a. See para.

37(b) 12), Part IV, Manual, supra. Moreover, appellant

at no time claimed his confession was involuntary or that

he was not properly advised of his rights prior to making

it. See United States . Yeoman, supra at 4. See

Mil.R.Evid. 304(a) and ‘(¢'}(3). Instead, he rested his

suppression motion on Mil.R.Evid. 304(g) and contended

his confession was not adequately corroborated.

Mil.R.Evid. 304(g) states:

. ; . . . .

ru ( orrohoratioi Ad AdmISsion or a conression of

f . ’ ] . j . ] ’ a7) . ‘ +f

hié (i¢ ('{ ma ‘ COMNICE TE ‘Is ‘ Mie Vite Adgatisil

. ot 4 7 Ga.

fhe accused on he Ques 0) rT quit oj HpvMoceICE only

7 ; . “9 ae .° °

YT Ide pei t¢ r ¢ idence, either dire f i £ rcumstan-

fig hids hee ) > r rs ‘*4 / me ITiRé COrrOD pote _ the CSSEji-

y TACTS (lmorted / S777 s tfheoently a TerT-

ence of their truth. Other uncorreborated confes-

ba

sions or admissions of the accused that would them-

selves require corroboration may not be used to sup-

ply this independent evidence. If the independent

evidence raises an inference of the truth of some but

not all of the essential facts admitted, then the con-

fession or admission may be considered as evidence

against the accused only with respect to those essen-

tial facts stated in the confession or admission that

are corroborated by the independent evidence. Cor-

roboration is not required for a statement made by

the accused before the court by which the accused is

being tried, for statements made prior to or contem-

poraneously with the act, or for statements offered

under a rule of evidence other than that pertaining

to the admissibility of admissions or confessions.

(1) Quantum of evidence needed. The indepen-

dent evidence necessary to establish corroboration

need not be suificient of itself to establish beyond a

reasonable doubt the truth of facts stated in the ad-

mission or confession. The independent evidence need

raise only an inference of the truth of the essential

facts admitted. The amount and type of evidence in-

troduced as corroboration is a factor te be considered

by the trier of fact in determining the weight, if

any, to be given to the admission or confession.

(2) Procedure. The military judge alone shall de-

termine when adequate evidence of corroboration has

been received. Corroborating evidence usually is to

be introduced before the admission or confession is

introduced but the military judge may admit evi-

dence subject to tater corroboration.

(Emphasis added. )

This Court has considered the above Manual provision

on several occasions. We have consistently held that it

does not require independent evidence of the “corpus de-

licti’” of the confessed offense (see 7 J. Wigmore, Evidence

$2072 (Chadbourn rev.1978) for a discussion of that

7a

term) but, instead, that it requires independent evidence

which establishes the truthworthiness of the confession.

United States v. Rounds, 30 MJ 76, 80-81(CMA), cert.

denied, U.S. , 111 S.Ct. 180, 112 L.Ed.2d 98

(1990): United States v. Melvin, 26 MJ 145 (CMA

1988); United States v. Yeoman, supra. These holdings

are consistent with Supreme Court precedent and with

practice in Federal civilian courts such that it can be

realistically said in the Federal sector that the “corpus

delicti’”’ corroboration rule no longer exists. United States

v. Kerley, 838 F.2d 932, 939-40 (7th Cir.1988). See gen-

erally C. Wright, Federal Practice and Procedure: Crimi-

nal 2d § 414 at 516 (1982); 7 J. Wigmore, Evidence

$ 2071 at 511-16. The bottom line is that the corroborat-

ing evidence must raise only an inference of truth! as to

‘the essential facts admitted” in the confession. See State

v. Harris, 215 Conn. 189, 575 A.2d 223, 226-27 (1990).

We note that the following evidence independent of

appellant’s confession was adduced at the suppression

hearing:

(1) Direct testimony from undercover agent Ser-

geant Brainard that appellant had earlier admitted

all confessed facts to him on July 5, 1989.

(2) Direct testimony from undercover agent Ser-

geant Brainard that he observed Spencer, appellant’s

roommate and putative supplier, produce and use

methamphetamine on June 2, 1989, at or near

“Gigi’s.”

1 We have characterized the quantum of corroboration evidence

required by Mil.R.Evid. 304¢¢), Manual for Courts-Martial, United

States, 1984, as “slight” (United States v. Yeoman, 25 MJ 1, 4

(CMA 1987)), or “very slight” (United States v. Melvin, 26 MP

145, 146 (CMA 1988)). This characterization reflects our under-

standing that it need not establish beyond a reasonable doubt or

by a preponderance of the evidence the truth of the essential facts

stated in the confession. See S. Saltzburg, L. Schinasi and D.

Schlueter Military Rules of Evidence Manual, Editorial Comment

on Rule 304(g) at 166 (3d ed. 1991).

Sa

(3) Written statement by Sergeant Brainard that

Spencer admitted using methamphetamine, in the

presence of his roommate, whe njet skiing.

(4) Direct testimony from undercover agent, Ser-

geant Brainard, that during the charged period he

twice observed appellant readily ingest placebo meth-

amphetamine by snorting it from a key.

| This portion of our opinion is not a quotation. |

In several ways the above evidence raised an inference

of truth as to the actual drug use admitted by appellant

in his July 27th confession. First, proof of appellant’s

deliberate consumption of substances which he thought

were methamphetamine on two occasions within the time

period covered in his confession established his ability

and inclination to use the drug methamphetamine as he

confessed. See United States v. Melvin, supra 26 MJ at

147. Second, evidence of his earlier admissions to the

undercover agent confirmed the times and venue of his

confessed methamphetamine use at least to an extent

feasible for essentially private drug use.? See State v.

Harris, supra 575 A.2d at 226. Third, proof of Sergeant

Brainard’s observations of Spencer and the latter’s demon-

strated capacity to produce drugs from Gigi’s during the

period covered in his confession established appellant’s

access to the drugs which he confessed to using. United

States v. Rounds, 30 MJ at 80. Finally, the marked

similarity of the essential facts asserted in appellant’s

spontaneous admission on July 5, 1989, and in his sub-

* Appellant’s admissions to the undercover agent were made sub-

sequent to his use of real methamphetamine but contemporaneous -

with and prior to his use of the placebo methamphetamines. A

strong argument can be made that these spontaneous admissions do

not require corroboration under Mil.R.Evid. 304(g). See United

States v. Pennell, 737 F.2d 521, 537 (6th Cir. 1984), cert. denied,

469 U.S. 1158, 105 S.Ct. 906, 83 L.Ed.2d 921 (1985). In any event,

no objection was made by appellant to use of these admissions at

the suppression hearing as corroboration of his later confession.

See Mil.R.Evid. 304(d)(2)(A).

9a

sequently advised confession on July 27, 1989, imparted

a strong ring of truth to his later statement.” See gener-

ally United States v. Yeoman, supra at 4-5. Accordingly,

based on both appellant’s earlier admissions to Sergeant

Brainard and the other evidence noted above, we con-

clude that his later voluntary confession was shown to be

sufficiently trustworthy for admission at his court-

martial. See generally United States v. Basile, 771 F.2d

307, 311 n.3 (7th Cir. 1985).

The decision of the United States Air Force Court of

Military Review is affirmed.

Judges CRAWFORD and GIERKE concur.

‘We ayvain note that, at the suppression hearing, appellant did

not object to introduction in evidence of his earlier admissions to

Sergeant Brainard. See Mil.R.Evid. 304(c)(2) and (d)(2)(A). In

view of the recent decision of Arizena v, Fulminante, U.S.

, 111 S.Ct. 1246, 1257-66, 113 L.Ed.2d 802 (1991),

if such evidence was admitted at trial, any error in admission of

his later confession could be considered harmless. See RCM 910

(a)(2), Manual, supra. Cf. United States v. Wong Ching Hing,

867 F.2d 754, 758 (2d Cir. 1989).

In Federal civilian practice it is inappropriate for a conditional

guilty plea to be entered and accepted when the issue reserved for

appeal will not be dispositive of an accused’s case. See United

States v. Wong Ching Hing, supra. See generally 18 USC (Rule

11(a)(2)) Federal Rule of Criminal Procedure, Notes of Advisory

Committee on 1983 Amendment.

10a

APPENDIX

Q: When you produced this placebo methampheta-

mine, how did you identify it to the accused?

A: Iecalled it crank. That is what the common term is.

Q: For what?

A: Methamphetamine.

Q: So he snorted some up his nose that day on the

5th?

A: Yes ma’am.

Q: What did you do after snorting this placebo meth-

amphetamine?

A: We continued to drive around a little bit. We had

some further conversation. Then we went back to the

club.

Q: Id like to focus your attention a little bit on the

conversation you had with the accused on the 5th of July.

Did the accused on the 5th of July, during this time in

the car when this placebo methamphetamine was snorted,

did he mention any prior uses of methamphetamine on

his part?

A: Yes ma’am.

Q: How did that come up?

A: We were talking about jet skiing. He stated the

last week, he and his roommate had snorted some meth-

amphetamine and it kept them up through the night and

into the next day. They had HFC’s or HSC’s that they

had to conduct and they did them quickly and in a timely

manner and they were given time off for it.

Q: All right. What was an HFC or an HSC? What

are you talking about?

A: I wasn’t sure because I don’t have a maintenance

background.

Q: Did you ask the accused?

A: [talked to him about it. I asked him what it was.

Basically my recollection was that it had some sort of

check or inspection they conducted on an aircraft.

ee

lla

Q: How was his methamphetamine use supposed to

be related to this aircraft check?

A: Methamphetamine is a speed. Basically what it

does is hype your system up so it makes you feel like you

are always ready to go. By ingesting methamphetamine

it makes you feel like you can accomplish anything and

everything in a relatively quick time.

Q: What did the accused tell you it did for him with

regard to this aircraft check?

A: It made him feel like he was up and constantly

going so that they could conduct their work in a faster

manner; it made them work faster basically.

Q: So he told you he was under the influence of meth-

amphetamine when he was working on these aircraft?

A: That is true.

Q: The result of that aircraft work was what?

A: They conducted the inspection in a timely manner

and they were given time off.

Q: After the 5th of July—Before I go further, let

me—Did you discuss with the accused who he used meth-

amphetamine with, I quess people do this together, on

the 5th of July?

A: I did.

Q: How did that come about?

A: In the conversation Airman Maio told me that he

basically used with his roommate, Airman Spencer, and

that they liked to use it prior to going jet skting on the

weekends. He didn’t really particularly like partying

with military people or they didn’t party with military

people because, allegedly, a female had been apprehended

by OSI and the female came back and told them that

OSI knew about them, or had their names or something,

so that they were real cautious with other military

people.

* * +. * *

A: On the 28rd of June.

* * * * *

12a

Q: How did he use? With a key? The same way?

A: Right. Snorting through the nose.

Q: Ona key?

A: Yes ma’am.

Q:

So the accused told you that he primarily used the

methamphetamine with Airman Spencer. Right?

A: That is correct.

Q: Did you ever see those two use together?

A: Noma’am.

Q: On the 5th of July when he was telling you he used

methamphetamine primarily with Airman Spencer and

about this using methamphetamine and working on these

aircraft, let me ask you this. The date that the accused

supposedly got cranked up on methamphetamine and

worked on this aircraft, did he tell you when that was

that he got this day—he did this and got the day off?

A: No. When he told me on the 5th of July, and his

words were, “the week before’? so it could have been

anywhere from the last few days of June until the first

few days of July.

Q: And he told you he was rewarded by getting time

off?

A: Comp time.

Q: Did he say how much time?

A: I believe it was just that day.

Q: After the 5th of July 1989, did you ever see the

accused involved with drugs?

A: One more tire.

Q: When was this?

A: I'd have to check my statement to be sure of the

date. But it was towards the mid month of July, prob-

ably around the 14th I would guess.

Q: Is the 14th of July your best recollection?

A: Off of memory.

(Emphasis added. }

13a

COX, Judge (concurring) :

I agree that the military judge did not err in denying

appellant’s motion to suppress his confession. I write

Separately, however, to caution that, with respect to

Charge II and its specification, this opinion should not,

in my view, be extended beyond its facts.

There have long been special rules in American juris-

prudence regarding corroboration of statements of the

accused. See Comment Note, Correboration of extrajudi-

cial confession or admission, 45 ALR 2d 1316 (1956).

The two leading cases are Opper v. United States, 348

U.S. 84, 75 S.Ct. 158, 99 L.Ed 101 (1954), and Smith v.

United States, 348 U.S. 147, 75 S.Ct. 194, 99 L.Ed. 192

(1954).

In Opper, the Court explained that “the better rule...

[is] that the corroborative evidence need not be sufficient,

independent of the statement, to establish the corpus de-

licti.” 348 U.S. at 98, 75 S.Ct. at 164. In Smith, the

Court ruled that a conviction may be supported by a

confession “as long as there is substantial independent

evidence that the offense has been committed.” 348 U.S.

at 156, 75 S.Ct. at 199 (emphasis added).

As basis for these rules, the Supreme Court explained

ini Opper: :

In the United States our concept of justice that

finds no man guilty until proven has led our state

and federal courts generally to refuse conviction on

testimony concerning confessions of the accused not

made by him at the trial of his case.

348 U.S. at 89, 75 S.Ct. at 162 (emphasis added).

Over the years since Smith and Opper, courts have

tended to minimize, in their verbal formulations, the

degree of corroboration necessary to receive statements

of an accused and to sustain convictions based thereon.

l4a

Still I know of no conviction that has been sustained in

which, apart from the words of the accused, there was no

evidence whatever that a crime occurred.’ Looking be-

yond mere verbiage, the cases convince me that, in

America, we do not allow someone to be convicted unless

there is some level of external evidence that a crime has

occurred, no matter how many times or ways the accused

has admitted it outside a courtroom. Whether this policy

is based on due process or some other constitutional value

is not specified.

In contrast, the Military Rules of Evidence are estab-

lished by the President according to his authority to

prescribe rules of evidence for courts-martial. Art. 36(a),

Uniform Code of Military Justice, 10 USC § 836(a).

As reflected in the majority opinion, Mil.R.Evid. 304(g),

Manual for Courts-Martial, United States, 1984, sets

forth a rule for corroboration of certain admissions and

confessions. Presumably this rule, having no direct coun-

terpart in the Federal Rules: of Evidence, was intended

as a sort of restatement of the general federal case law

regarding corroboration of confessions and admissions.

I do not doubt that appellant’s statements, both during

his attempted possession and use of methamphetamine

(Charge I and its specifications) and upon being inter-

rogated later by military authorities, meet the require-

ments for admissibility under the Military Rules of Evi-

dence. By its terms, however, the Mil.R.Evid. 304(g)

corroboration requirement appears to be limited to those

sorts of statements which require rights-warnings and

waivers. See generally Mil.R.Evid. 304 and 305. State-

ments of an accused falling under any other evidentiary

rule, including apparently Mil.R.Evid. 801(d) (2) (‘“Ad-

mission by party-opponent”) as well as Mil.R.Evid. 803

1 Of course, I am not including cases of perjury or the false cry

of “Fire” in a crowded theater, where the words themselves are

legally significant.

15a

and 804 (“Hearsay exceptions”), are not assigned a cor-

roboration requirement.

The result is that appellant’s res gestae statements

made during the attempted possession and use of meth-

amphetamine, not apparently being the result of inter-

rogation, would presumably be admissible simply as Mil.

R.Evid. 801(d) (2) admissions by a_ party-opponent.*

Further, since those admissions have no corroboration

requirement themselves, they become available under Mil.

R.Evid. 304(g) to serve as corroboration of appellant’s

later, interrogation derived confession. Thus, under the

rules of evidence, both of appellant’s statements appear to

be admissible.

In my view, however, had this case gone to trial on

the merits with the state of evidence before us, appel-

lant’s conviction of Charge II and its specification would

not have been sustainable as a matter of law.® I reach

this conclusion because, as the record now stands, there

is not a scintilla of evidence that the crime in question

occurred—apart from appellant’s own words. Obviously,

there is a distinct difference between legal sufficiency of

evidence and admissibility. Therefore, my caveat is that

the Military Rules of Evidence do not comprehensively

circumscribe the entire body of law on the subject of

corroboration of admissions and confessions. The instant

facts are illustrative.

The crime in issue is appellant’s alleged wrongful in-

gestion of methamphetamine on divers occasions between

April 1 and July 27, 1989. See Art. 112a(a) and (b) (1).

UCMJ, 10 USC $912ata) and (b) (1). Not counting

* Depending on context, such an admission might also qualify as

a statement against interest. Mil.R.Evid. 804(b)(3), Manual for

Courts-Martial, United States, 1984.

37 fully recognize that this case did not go to trial on the merits,

and I do not speculate as to what other information might have

been adduced by way of corroboration.

l6a

appellant’s statements, let us examine the cited evidence

that appellant ingested such a substance.

The testimony is that, on a different, charged occasion,

appellant purchased what he mistakenly thought was

methamphetamines. On other, charged occasions, he in-

gested what he again mistakenly thought was metham-

phetamine. That these actions occurred may indeed show

a general incliniation on appellant’s part and may lend

credence to his statement of broader drug use. Thus they

may have relevance in a general sense. However, the

fact that appellant committed crime B does not indicate

that crime A occurred at another time and place and that

appellant committed it. Not in America.

Similarly, there is evidence that appellant’s roommate

had access to purported methamphetamine and that the

roommate ingested methamphetamine—once even in ap-

pellant’s presence. The inference is that appellant there-

fore had access to methamphetamine. Granted, access and

opportunity can often be relevant, such as to identify a

perpetrator of a known crime. However, a person’s ap-

parent capability to commit a crime does not indicate -

that a crime was in fact committed. Not in America.

In fact, apart from appellant’s own words, there is no

evidence whatever pointing to appellant’s ingestion of

methamphetamine.®

+ Admittedly, the proximity-to-drug-use aspect of United States

v. Rounds, 30 MJ 76 (CMA), cert. denied, U.8. ——, 111 S.Ct.

130, 112 L.Ed.2d 98 (1990), in which I concurred, is quite similar

to the instant facts. In that case, however, the testimony of others

regarding the circumstances of the various drug events and Rounds’

intimate connection therewith lent considerably more substance to

his purpose and conduct.

5 Due to appellant’s judicial admission, it is also unnecessary for

us to predict whether evidence would have been introduced to cor-

roborate the illicit nature of the substance appellant supposedly

ingested. That the substance was a controlled substance is, of

course, the very essence of this offense. To convict him solely on

17a

Again, my concern is not with the Military Rules of

Evidence, as far as they go. Admissiblity is one thing;

legal sufficiency is another. Had the case been tried on

the merits and had no external evidence been presented

corroborating the occurrence of a crime, the military

judge should have granted a motion for a finding of not

guilty at the close of the prosecution’s case. RCM 917.

Of course the case never got that far; appellant only

stood his ground on the question of admissibility. As I

agree that appellant’s confession was admissible under

the rules of evidence, the military judge obviously did

not err in refusing to suppress it. With this qualifica-

tion, I concur.

WISS, Judge (concurring) :

As the concurring opinion of Judge Cox points out,

the matter of corroborating evidence, independent of a

confession or admission, actually involves two issues:

the basis of out-of-court admissions, without any external indica-

tion of the nature of the substance, would again be tantamount to

convicting him on his words alone. See Opper v. United States, 348

U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101 (1954), and Smith v. United

States, 348 U.S. 147, 75 S.Ct. 194, 99 L.Ed. 192 (1954). Appellant’s

pleas relieve us from speculating how the Government might have

sustained its ultimate burden of proving the illegality of the sub-

stance beyond a reasonable doubt.

In this regard, I note this paradox: Even where questionable

substance or body fiuids have been seized, evaluated at laboratories,

and the results published, it is still necesary to have an expert

present in the courtroom to elucidate for the factfinder the wonders

and mysteries of drug identification. United States v. Reichenback,

29 MJ 128 (CMA 1989) ; United Sttaes v. Murphy, 23 MJ 310 (CMA

1987). On the other hand, apparently any third-grade dropout who

has purchased an unknown substance from an unknown source can

instinctively and unerringly identify it, beyond a reasonable doubt,

with at least the same degree of certitude as a rocket scientist. See

United States v. Schrock, 855 F.2d 327 (6th Cir. 1988); United

States v. Rounds, supra. Appellant is such an example, having

demonstrated his prowess by buying and using placebo!

18a

The quantity and quality of the independent evidence suf-

ticient to corroboate the confession for purposes of ad-

missibility of that confession; and the quantity and

quality of such evidence that will be sufficient, along with

the confession, to sustain a conviction in a contested trial.

See Smith v. United States, 348 U.S. 147, 75 S.Ct. 194,

99 L.Ed.2d 192 (1954); Opper v. United States, 348

U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101 (1954).

Judge Cox’s views on the second question are stimulat-

ing and provoking, but that question is not in issue in

this case. Accordingly, since that issue is complex and

worthy of careful and focused study, I prefer to leave

consideration of it for a case in which the matter is in

issue,

The first issue, of course, is properly before the Court

in this case, and I concur in the majority’s treatment of

that issue under these facts. At the same time, I think

it is appropriate here to record my view that our funda-

mental task in this area is to examine the probative

quality of the proffered independent evidence to see if it

truly is “corroborative.”

Mil.R.Evid. 304(g), Manual for Courts-Martial, United

States, 1984, states that the independent evidence neces-

Sary to permit admissibility of a confession must “cor-

roborate{| the essential facts admitted to justify suffi-

ciently an inference of their truth.” The Random House

College Dictionary, Revised Edition at 302 (1980), de-

fines “corroborate” as “to confirm; make more certain.”

The majority opinions in both United States v. Rounds,

30 MJ 76(CMA), cert. denied, USS. , 111 S.Ct.

130, 112 L.Ed.2d 98 (1990), and United States v. Melvin,

26 MJ 145 (CMA 1988), illustrate situations in which—

though the independent evidence was not sufficient alone,

to prove the charged misconduct beyond a reasonable

doubt—the independent evidence did “confirm” and

“make more certain” the truth of the confession’s re-

liability.

19a

The separate opinion of then-Chief Judge Everett in

Rounds contains a good discussion (30 MJ at 83-84) of

what I perceive to be this search for trustworthiness of

a confesison by probative independent evidence—evidence

which, because of what it corroborates, will lead one to

conclude logically that the whole confession is true.

While the quantity of the independent evidence need only

be “slight” (id. at 83) to permit admission of the con-

fession, the quality of that evidence is the more critical

focus as to the confession’s reliability and, thus, ad-

missibility.

20a

APPENDIX B

UNITED STATES AIR FORCE

COURT OF MILITARY REVIEW

UNITED STATES

V.

AIRMAN FIRST CLASS CARMEN M. MAIO, JR.,

FR 079-68-7180

UNITED STATES AIR FORCE

ACM 28458

10 JANUARY 1991

Sentence adjudged 19 January 1990 by GCM convened

at Travis Air Force Base, California. Military Judge:

Michael A. Kilroy (sitting alone).

Approved sentence: Bad conduct discharge, confine-

ment for nine (9) months, forfeiture of four hundred

dollars ($400.00) pay per month for nine (9) months

and reduction to airman basic.

Appellate Counsel for the Appellant: Colonel Richard

F. O’Hair and Major Bernard E. Doyle, Jr. Appellate

Counsel for the United States: Colonel Robert E. Giovag-

noni; Major Paul H. Blackwell, Jr.; Captain David G.

Nix and Lieutenant Colonel Joseph J. Urban, USAFR.

Before

LEONARD, RIVES and MCLAUTHLIN

Appellate Military Judge

2la

OPINION OF THE COURT

McLAUTHLIN, Judge:

Pursuant to his guilty pleas, Airman First Class Car-

men M. Maio was convicted of attempted use and posses-

sion of methamphetamines. Following conditional guilty

pleas, he was also convicted of using methamphetamines.

He asserts the preserved issue and another error on ap-

peal. We find neither persuasive and affirm.

I

In his preserved issue, Maio argues that his confessed

use of methamphetamines with his roommate was not ade-

quately corroborated. We disagree. The independent evi-

dence necessary to establish corroboration “need raise only

an inference of the truth of the essential facts admitted.”

Mil. R. Evid. 304(g) (1).

Maio confessed to using “crank [methamphetamines]

approximately ten to twelve times.” He said he inhaled

the drug in powder form, knowing what it was “from its

distinct smell and it would make me feel like I had drank

[sic] a pot of coffee.” He told the investigator he usually

obtained the drug through his roommate who got it “from

“civilians” at Gigi’s, a local night club. On one occasion,

Maio said he purchased what he thought was “crank”

from a civilian he met at Gigi’s. However, after using

about half of what he bought, Maio said he realized it was

not “crank,” so he quit using the substance in the bag. He

told the investigator he kept what was left.

Unfortunately for Maio, the civilian he met at Gigi’s

was an undercover agent. The agent testified that he sold

Maio a plastic bag with a white powder placebo made to

look like methamphetamines on 14 July 1989. After the

sale, the agent said he saw Maio “snort some of the

placebo crank.” A half-emputy plastic bag of white powder

matching the agent’s description was found in a search of

Maio’s room on 27 July 1989. A test of the powder re-

22a

vealed it did not contain methamphetamines. The agent

said Maio told him about a time he and his roommate

‘snorted some methamphetamine” which enabled them to

perform an aireraft inspection quickly and resulted in

their receiving some time off. A supervisor verified that

Maio had been given time off for performing an aircraft

inspection in less than the alloted time with no errors.

The agent also described his separate investigation of

Maio’s roommate. The agent said he met Maio’s room-

mate at Gigi’s and that Maio’s roommate supplied him

with a white powder form of methamphetamines. The

agent noted that Maio’s roommate used the drug the

same way Maio had “used” the placebo, by inhaling it off

a key.

There were no eye-witnesses to Maio’s confessed use of

methamphetamines with his roommate. Nevertheless, in

the hearing on Maio’s motion to suppress, the government

produced independent evidence confirming:

1) Maio’s roommate frequented an off-base night club

where he had access to methamphetamines;

2) Maio’s roommate supplied others with a white pow-

der form of methamphetamines;

3) Maio and his roommate used what thev thought

were methamphetamines exactly the same way, by inhaling

it off a key;

4) Maio was familiar with the drugs and its effects, to

the extent that he could tell what he got from the under-

cover agent was not “crank”;

5) Maio did not use all the placebo drug provided by

the agent, and investigators found the remainder in his

room where Maio said it would be.

6) Maio received time off for good work he attributed

to enhanced performance caused by using methampheta-

mines with his roommate.

Each of these independent factors dovetailed with the

times, places, and persons mentioned in Maio’s admission.

aetna

23a

More importantly, the government’s corroborating evidence

showed that Maio had both the access and opportunity to

inject the drug he admitted ustng. That is enough. See

United States v. Rounds, 30 M.J. 76, 80 (C.M.A. 1990) ;

United States v. Melvin, 26 M.J. 145, 147 (C.M.A. 1988).

II

Appellant also asserts he was denied a full opportunity

to exercise his rights to counsel because the military judge

failed to ask whether he wished to be represented by his

trial defense counsel. After a full explanation of his coun-

sel rights, however, Maio had no questions. He made no

objection to his trial defense counsel and never requested

another attorney. Maio was fully and adequately repre-

sented. We find no prejudice.

IT]

Having examined the record of trial, the assignments of

error, and the government’s reply, we conclude that the

findings and sentence are correct in law and fact, the

sentence is appropriate, and no error prejudicial to the

substantial rights of the accused was committed. Accord-

ingly, the findings of guilty and the sentence are

AFFIRMED.

Senior iis LEONARD and Judge RIVES concur.

[SEAL]

OFFICIAL:

/s’ Pamela D. Stevenson

PAMELA D. STEVENSON

Captain, USAF .-

Chief Commissioner

WY oO. S. GOVERNMENT PRINTING OFFICE, 1992 326836 $9021