Opposition Brief — McGrath v. United States

ALVA Z.}* SGRATH, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF MILITARY APPEALS

¥ ” a -

_ BRIEF FOR THE UNITED STATES IN OPPOSITION

Drew S. Daxs, 12!

Fy Sh

eet.

at

‘ ; . 2 Ree Rs P

we con® “

r T AVAILABLE copy!

QUESTION PRESENTED

Whether a military judge properly admitted a child

abuse victim’s out-of-court statements under a residual

hearsay exception, after the victim refused to testify at

trial.

(1)

TABLE OF CONTENTS

Page

i cnauanewieeiviedeauncaws |

a cdduuseueeucocecoaceddacoussas l

a cedmaccuudeuencseannccuenre 2

ae cc cenne ESOT DE ta REDE PE 5

Nee nn sc cunucnudbedeccacenas 10

TABLE OF AUTHORITIES

Cases:

California v. Green, 399 U.S. 149 (1970) ......... ccc eee. 7

Idaho v. Wright, 497 U.S. 805 (1990) 0.0.0.0... eeeeceeee. 5,9

Ohio v. Roberts, 448 U.S. 56 (1980) .occccccccccccccccceseeccecceee 6, 7

United States v. Inadi, 475 U.S. 387 (1986) ................... 65

United States v. Ortiz, 35 M.J. 391 (C.M.A. 1992) ....... 7

Constitution, treaty, statutes and rules:

U.S. Const.:

OSES 8

Amend. VI (Confrontation Clause) ........................-.. 5, 6, 9

Status of Forces in Germany, Aug. 3, 1959, 481 U.N.T-S.

as scducuamandecccoecs 7

Uniform Code of Military Justice, 10 U.S.C. 801 et seq.:

a duudiuvenenawedsuduevanseavcene 2

NS a Se 2

rn ec Oe cccucuencuncceacuccncccceecese 2

Mil. R. Evid:

Rule 804(a)(2) ........ 8 OME STRODE 18

EEL Er 4,5

nc caclncndvnsdeuasidoesusnswaceecieces 6

Miscellaneous:

U.S. Air Forces in Europe Pamphlet 30-16 (1984) ........... &

(IIT)

In the Supreme Court of the Ginited States

OCTOBER TERM, 1994

No. 94-190

ALVA Z. MCGRATH, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF MILITARY APPEALS

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the Court of Military Appeals (Pet. App.

la-35a) is reported at 39 M.J. 158. The opinion of the Air

Force Court of Military Review (Pet. App. 36a-49a) is

unreported.

JURISDICTION

The decision of the Court of Military Appeals was

entered on May 6, 1994. The petition for a-writ of

certiorari was filed on August 1, 1994. The jurisdiction

of this Court is invoked under 28 U.S.C. 1259(3) (Supp.

IV 1992).

STATEMENT

Petitioner, a member of the United States Air Force,

was convicted by a general court-martial, the military

judge sitting alone, of carnal knowledge, sodomy, and

indecent acts with his 14-year-old daughter, in violation

of Articles 120, 125, and 134 of the Uniform Code of

Military Justice, 10 U.S.C. 920, 925, and 934. He was

sentenced to a dishonorable discharge, confinement for

120 months, and reduction to the lowest enlisted grade.

The convening authority approved the findings and

sentence. The Air Force Court of Military Review

modified the findings and sentence and affirmed. Pet.

App. 56a-49a. The Court of Military Appeals granted

discretionary review and affirmed the judgment of the

Air Force Court of Military Review. /d. at la-22a.

1. On June 9, 1989, petitioner’s 14-year-old daughter

(whom we identify as A.M.) told a school counselor that

she had been sexually abused by petitioner, her natural

father. The counselor notified the Mental Health Clinic

at Hahn Air Base, Federal Republic of Germany, the Air

Force Office of Special Investigations (OSI), and the base

legal office of those allegations. OSI Special Agent

Kenneth Sallinger and Ms. Leann Steinbach, a German

national associated with the OSI, toox A.M. to the

Mental Health Clinic, where they were joined by Captain

Timothy Friesen, a staff psychologist who had had

previous contact with the victim. Also present were

Captain Deborah Hall, an attorney with extensive

experience in prosecuting child abuse cases, and

Sergeant Donitta Gardiner, a technician assigned to the

Mental Health Clinic who already knew the victim. 2 R.

54-58, 78-82; 3 R. 171.

A.M. talked in general terms about the allegations, but

she became increasingly embarrassed and uncom-

3

fortable. Captain Friesen and Agent Sallinger left, while

Captain Hall continued the interview. Captain Hall was

not aware of what specific allegations had been made and

did not offer suggestions to the victim as to what might

have happened. A.M. demonstrated petitioner’s actions

using anatomically correct dolls. She appeared embar-

rassed and slightly upset, but remained in control during

the interview, which lasted between 30 minutes and an

hour. Following the interview, Captain Hall and Agent

Sallinger took A.M. to the OSI offices, where the victim

repeated her statement and Captain Hall typed it on a

computer. A.M. sat next to Captain Hall while she typed,

making corrections and additions. A.M. read the

completed statement from the computer screen, read it

again after it was printed, and signed it under oath. She

did not recant or retract any of the statements made

during the interview at the Mental Health Clinic. She

understood the words used in the statement, including

specific sexual terms, and appeared to understand the

oath that she took prior to signing the statement. 2 R.

56-63, 69.

On June 20, 1989, A.M. returned to the OSI office and

told Agent Sallinger that she had more information

about her prior allegations and about other acts of her

father. Agent Sallinger followed the same dictation

process that Captain Hall had used to reduce the victim’s

statement to writing. A.M. appeared a “little bit

nervous” but was in control at that time. She proofread

the statement as it was being typed and made cor-

rections. Agent Sallinger did not offer suggestions or

make any corrections other than those requested by the

ictim. A.M. read the printed statement, took another

oath, and signed the statement without hesitation. The

meeting lasted approximately an hour. 2 R. 98-102, 109.

4

2. The prosecution called A.M. as a witness at

petitioner's trial. She testified that she was 14 years old

and was petitioner’s daughter. When asked about the

allegations and the statements she provided, she refused

to answer. A.M. acknowledged that she was present at

trial pursuant to an order from German civil authorities,

but she stated that she had no intention of testifying

against her father and she repeatedly replied “I refuse to

answer that” when questioned about the abuse. A.M.

acknowledged the importance of the oath she took prior

to testifying and in connection with each of the

statements, and she specifically denied lying under oath

in her prior statements. The military judge explained to

the vietim the importance of her testimony and of

resolving the allegations against her father. A.M.

steadfastly refused to testify, explaining that she did not

want her father to go to jail. 2 R. 19-25, 40-49.

The prosecution sought to admit A.M.’s out-of-court

statements under Mil. R. Evid. 804(b)(5), the residual

hearsay exception for statements by unavailable declar-

ants. The military judge found that the victim was

unavailable under Mil. R. Evid. 804(a)(2). 2 R. 52. He

then heard testimony from Captain Hall and Agent

Sallinger concerning the circumstances under which the

statements were made. 2 R. 53-127. Defense counsel

objected to the admission of the statements and offered

the testimony of four witnesses to impeach the

reliability of those statements. 2 R. 128, 148; 3 R. 149-

164, 168-195. At the conclusion of the hearing, the

military judge concluded that the victim’s statements

were admissible under Mil. R. Evid. 804(b)(5). 3 R. 211.

The court specifically found that (1) the statements

were made by the victim; (2) the statements were

evidence of material facts in the case pertaining to the

allegations of sexual misconduct; (3) the statements

5

were more probative on the issue of whether sexual

misconduct occurred than any other evidence that the

government could procure through reasonable means; (4)

because the victim had refused to testify, the statements

were the only form in which the victim’s allegations

could have been presented to the court; and (5) the

general purposes of the Military Rules of Evidence and

the interests of justice would be served by admission of

the victim’s statements. The military judge thereafter

admitted petitioner’s confession, finding that it was

voluntary and sufficiently corroborated by A.M.’s out-of-

court statements. 3 R. 211-214, 218-219. See Pet. App.

22a-26a (excerpts of the military judge’s ruling).

3. The Air Force Court of Military Review ruled that

A.M.’s out-of-court statements were properly admitted

under Mil. R. Evid. 804(b)(5). Pet. App. 40a-46a. The

Court of Military Appeals agreed and _ specifically

rejected petitioner’s contention that the admissior of

those statements violated petitioner’s rights under the

Sixth Amendment’s Confrontation Clause. See 7d. at 9a-

22a. The Court of Military Appeals explained that

although A.M. was unwilling to testify at trial on behalf

of the prosecution, petitioner could have cross-examined

A.M. about her out-of-court statements, but he waived

that opportunity at trial. /d. at 13a-14a.

ARGUMENT

1. Petitioner contends (Pet. 8-10) that the Court

should review this case to decide whether a court must

find that a witness is unavailable before it can apply the

Confrontation Clause analysis set out in /daho v.

Wright, 497 U.S. 805 (1990). That issue is not presented

here, because the lower courts concluded that the declar-

ant was unavailable as a witness for the prosecution in

this case.

6

In Wright, the Court held the admission of a child’s

out-of-court statements under an Idaho residual hearsay

exception, Idaho R. Evid. 803(24), violated the Con-

frontation Clause. The Court noted that in “the usual

case” the Confrontation Clause requires the prosecution

to “produce, or demonstrate the unavailability of, the

declarant” before using a hearsay statement against the

defendant. 497 U.S. at 814 (quoting Ohio v. Roberts, 448

U.S. 56, 65 (1980)). But the Court also noted that there

are exceptions to that general rule. 497 U.S. at 815. For

example, the Court held in United States v. Inadi, 475

U.S. 387, 394-400 (1986), that the prosecution does not

need to show unavailability before admitting the out-of-

court statements of a non-testifying co-conspirator. See

497 U.S. at 815. The Court did not resolve whether the

prosecution needed to show whether the child in Wright

was unavailable, see 7d. at 816, holding that the child’s

out-of-court statements were inadmissible in any event

because they lacked sufficient indicia of reliability, 7d. at

816-827.

Petitioner correctly notes that the Court left open

whether the Confrontation Clause requires the prose-

cution to show that a declarant is “unavailable” before

invoking a residual hearsay exception. That issue,

however, is not squarely presented here, because the

lower courts concluded that A.M. was “unavailable” in

the sense that she refused to testify on the prose-

cution’s behalf. 2 R. 52. The military judge specifically

noted that “considering the refusal of [A.M.] to testify in

this case, the [out-of-court] statements are the only form

in which the victim’s allegations can be presented to the

court.” Pet. App. 23a. The Air Force Court of Military

Review concluded that “the trial judge was correct in

taking [A.M.] at her word that she would not testify, and

finding her ‘unavailable’ within the meaning of the

7

residual hearsay exception.” Jd. at 43a. Hence, the

question left open in Wright—whether the prosecution

may obtain admission of hearsay from an available

declarant under a residual hearsay exception—was not

decided and is not presented in this case.

2. Petitioner contends (Pet. 10-14) that this Court

should determine whether “a witness’ appearance solely

to announce her refusal to testify constitutes

unavailability for purposes of the Confrontation Clause.”

This Court has already made clear, however, that the

question of whether a witness is “unavailable” is

determined through a practical assessment of the facts

in the particular case. As the Court explained in Ohio v.

Roberts, 448 U.S. 56 (1980), a declarant should be

considered unavailable only after the prosecution has

“made a good-faith effort to obtain his presence at trial.”

Id. at 74. “The lengths to which the prosecution must go

to produce a witness ... is a question of reasonableness.”

Ibid. (quoting California v. Green, 399 U.S. 149, 189 n.22

(1970) (Harlan, J., concurring)). Accord United States v.

Ortiz, 35 M.J. 391, 393 (C.M.A. 1992) (“t]he extent of this

good-faith effort is defined by a reasonableness standard,

because the Court also held that ‘(t]he law does not

require the doing of a futile act’” (quoting Roberts, 448

U.S. at 74)).

The courts below correctly concluded that A.M. was

unavailable as a witness for the prosecution. At trial,

the prosecution had utilized the Status of Forces in

| Germany agreement under the North Atlantic Treaty

Organization, Aug. 3, 1959, 481 U.N.T.S. 262, to obtain a

subpoena from the Federal Republic of Germany to

secure the victim’s presence at trial. 2 R. 26; 4 R. App.

Exh. VI. The subpoena directed A.M. to appear at the

court-martial proceeding, but did not require her to

testify, and petitioner’s defense counsel argued that

Siete EAs heb RU Dal eM Sr ls

8

under German law A.M. could not be compelled to testify

against her father. 2 R. 26-27 (citing U.S. Air Forces in

Kurope Pamphlet 30-16 (1984) (4. R. App. Exh. VII). The

prosecutor agreed that the military judge had no way of

enforcing an order requiring a civilian residing in

Germany to testify in the military proceeding. See also

2 R. 27-33.

The military judge did not explicitly resolve whether

he could compel A.M. to testify, but at the prosecutor’s

request—and over defense counsel’s objection—he

attempted to use “moral persuasion” to convince her to

testify. 2 R. 33-40. Despite a lengthy colloquy with the

military judge, A.M. refused to provide any testimony

that would incriminate her father. 2 R. 40-49. At the

conclusion of the colloquy, the judge expressed doubt

that he could enforce an order requiring A.M. to testify,

and the judge accordingly concluded that she was

unavailable as a witness within the meaning of Mil. R.

Evid. 804(a)(2). See 2 R. 49-52.

As the courts below concluded, the prosecution made

an adequate “good faith effort” to obtain A.M.’s

testimony. The prosecution secured her presence at

trial through a subpoena issued by the host country, and

it encouraged the military judge to use the tools

reasonably at his disposal to induce her to testify. See

Pet. App. 43a. As petitioner concedes, the lower courts

have found that witnesses are “unavailable” in the

analogous situation where they invoke a Fifth Amend-

ment privilege. See Pet. 13. Petitioner suggests that

this Court’s review is warranted because “[t|]he facts in

petitioner’s case do not fit squarely” into any of those

cases. Pet. 13-14. The factual situation here, however,

does not “fit squarely” within any previous case, because

this case is quite unusual. But rather than providing a

reason for this Court’s review, the unusual nature of

9

this case counsels against review, because the case does

not present a question of general importance.

In any event, petitioner cannot fairly claim that his

rights under the Confrontation Clause were com-

promised by A.M.’s refusal to testify. Although A.M. was

unwilling to testify as a witness for the prosecution, she

did appear in court and was available for the defense to

examine with respect to her out-of-court statements. As

the Court of Military Appeals concluded, petitioner

waived that opportunity to cross-examine her. Pet. App.

13a. “Having thus eschewed confrontation, [petitioner]

cannot now claim a denial of it.” Jd. at 14a.

3. Petitioner also contends (Pet. 14-19) that review is

warranted “because lower courts have become entangled

in the legal morass created by the overlap of the hearsay

rule and confrontation rights.” We submit that no such

“morass” exists. This Court’s decision in Wright estab-

lished a framework for evaluating whether evidence

offered under a residual hearsay rule has particularized

guarantees of trustworthiness. See 497 U.S. at 820-825.

Petitioner suggests that the Court’s decision in Wright

departed from the then-prevailing practice. Pet. 17. As

petitioner acknowledges, however, the courts of appeals

have been consistent in their interpretation and appli-

cation of the Wright decision. Pet. 17-18. Thus, there is

no need at this time for the Court to revisit that area of

the law.

10

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

DREW'S. DAYS, III

Solicitor General

JEFFERY T. JNFELISE

Colonel, USAF

JULES D. SILBERBERG

Major, USAF

Appellate Government Counsel

Government Trial and Appellate Counsel Division

SEPTEMBER 1994