Petition for Writ of Certiorari — Morgan v. United States

Supreme Court, U.S.

FILED

941069 DEC | 6 1994

No.

meee

In the Supreme Court of the United States

OCTOBER TERM, 1995

JAMES C. MORGAN, PETITIONER

Vv.

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

PETITION FOR WRIT OF CERTIORARI

JAY LINDSEY COHEN

Colonel, United States Air Force

Chief, Appellate Defense Division

Counsel of Record

1. KNIGHT CHAMPION, III

Captain, United States Air Force

Appellate Defense Counsel

Counsel for the Petitioner

AIR FORCE LEGAL SERVICES AGENCY

Appellate Defense Division

172 Luke Avenue, Suite 208

Bolling AFB, DC 20332-5113

December 1994

QUESTIONS PRESENTED

Whether the military judge erred by admitting the com-

plainant’s hearsay statement under the residual hearsay ex-

ception, when the said statement did not have “particu-

larized guarantees of trustworthiness” as required by the

Confrontation Clause of the United States Constitution.

Whether the Court of Appeals erred by holding that im-

properly admitting the petitioner’s wife’s hearsay state-

ments was harmless error.

TABLE OF CONTENTS

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Reasons for Granting the Writ .....................

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TABLE OF AUTHORITIES

SUPREME COURT CASES:

Idaho v. Wright, 497 U.S. 805 (1990) ...........

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

MILITARY CASES:

United States v. Bahr, 33 M.J. 228 (C.M.A.

ee a es panes 4:

United States v. Carpenter, 37 M.J. 291 (C.M.A.

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

aa ee i as ae ee ks

United States v. Hines, 23 M.J. 124 (C.M.A.

a a a es ie ww 'o't

United States v. McGrath, 39 M.J. 158 (C.M.A.

I Ae Cees sad sa hhe ieee wee ess

United States v. Morgan, unpublished, ACM

29592 (A.F.C.M.R. 30 April 1993); 40 M.J.

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MILITARY RULES OF EVIDENCE:

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aU UA A

In the Supreme Court of the United States

OCTOBER TERM, 1995

No.

JAMES C. MORGAN, PETITIONER

Vv.

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

PETITION FOR WRIT OF CERTIORARI

The petitioner, James C. Morgan, respectfully prays

that a writ of certiorari issue to review the order and judg-

ment of the United States Court of Appeals for the Armed

Forces entered in his case on 20 September 1994.

OPINIONS BELOW

The order and judgment of the United States Court of

Appeals for the Armed Forces, reported at 40 M.J. ____

(C.M.A. 1994), is located at Appendix A. The decision of

the United States Air Force Court of Criminal Appeals,

unpublished, ACM 29592, (A.F.C.M.R. 30 April 1993), is

located at Appendix B.

JURISDICTION

The final order of the United States Court of Appeals

for the Armed Forces was entered on 20 September 1994.

(1)

2

The jurisdiction of this Court is invoked under 28

U.S.C.A. § 1259(3) (Supp. 1993) and 10 U.S.C.A.

§ 867(a) (Supp. 1993).

CONSTITUTIONAL PROVISION INVOLVED

The Sixth Amendment to the United States Constitution

states: “In all criminal prosecutions the accused shall enjoy

the right . . . to be confronted with the witnesses against

Re

STATEMENT OF THE CASE

On 28 December 1990, Shaquilla Demika Jones (also

known as Angel, but referred to as “Ann” in the U.S.

Court of Appeals decision) appeared at the doorstep of

Ms. Vera E. Reidesel, a neighbor of the Morgan family

who lived on Andrews Air Force Base. R. 366. Ms.

Reidesel let Angel into her house and when asked what she

could do for the girl, she said, “My stepdad raped me.” R.

367. Ms. Reidesel, herself a prior rape victim, advised the

girl not to wash herself and proceeded to question her

about the incident. R. 368.

Angel used Reidesel’s telephone to call her aunt who

lived in North Carolina. The aunt called the girl’s mother

at work and Ms. Morgan called the security police. Pros.

Ex. 2. Ms. Morgan told the police that the petitioner was

supposed to pick her up at the Base Exchange where she

worked.

Security policemen were dispatched to the Reidesel

home, where the girl was interrogated. The Air Force Of-

fice of Special Investigations (AFOSI) was informed and

Special Agent (SA) Ron Helms was detailed to the case. R.

396. He interrogated the girl in the presence of SA Neil

Duke at the security police station. A written statement

was subsequently typed by SA Helms and the girl signed it.

R. 396-400; Pros. Ex. 1.

3

Angel was then transported by AFOSI SA Lynn Shell to

the Prince George’s County Sexual Assault Center, which

is located in the Prince George’s Hospital. R. 106-07. She

arrived between about 1900 and 2000 on 28 December

1990 and was interviewed by Ms. Vicki Turner. R. 106-08,

384. Turner was allowed to testify that Angel told her that

she had been home watching television in a bedroom when

her father came into the room. R. 109, 385. According to

Turner, Angel described how the petitioner had placed his

hand on her back, touched her “backside” and her chest,

and then put his penis into her vagina “just a little bit.” /d.

Turner only spoke with the girl for 30-45 minutes. R. 110.

The girl was also interviewed that evening by Dr.

Nainan Thomas, PhD, supervisor of the Child Sexual

Abuse Services Program of the Department of Social Ser-

vices. R. 123, 348-49. Thomas had been manning the

“Child Abuse Hotline” when AFOSI reported the incident.

R. 349. He directed the police to bring the girl to the

Prince George’s Hospital where he and Turner interro-

gated her. Thomas told her that he wanted to talk to her to

“find out exactly what happened so thai [he] could counsel

her on a crisis counseling and also determine the safety of

her in remaining in her home.” R. 124, 350.

Mrs. Morgan also made two written statements to the

AFOSI on 28 and 31 December 1990.

A medical examination, done for the purpose of collect-

irig evidence, showed no lacerations, bruising, or other

signs of physical or sexual assault. R. 388-90, Pros. Ex. 5.

The petitioner was court-martialed, and charged with,

inter alia, the rape of Angel. Trial defense counsel moved

to suppress the out of court statements of Angel and Mrs.

Morgan. App. Ex. IX, XVIII, XIX.

The prosecution of this case rested squarely on the

credibility of the complaining witness, Angel. The pros-

ecution, to shore up the obvious credibility problems

4

associated with this witness, offered a variety of written

and oral hearsay statements made by the girl. In addition,

the prosecutors sought the admissibility of hearsay state-

ments purportedly made by the petitioner’s wife. The

defense timely objected.

Mrs. Morgan had taken her daughter with her to North

Carolina, and the two had declined to return to Maryland

for the trial. The prosecutors issued subpoenas to Mrs.

Morgan and to Angel, but to no avail. Warrants of at-

tachment were then served on both women by federal mar-

shals in North Carolina. The women were manacled hand

and foot and brought back to Andrews AFB for trial in leg

irons and chains. Even after this abusive treatment, Mrs.

Morgan declined to testify against her husband. The pros-

ecutors, therefore, opted to attempt to introduce her two

out of court statements in an attempt to prove the peti-

tioner guilty. The petitioner was found not guilty of rape,

but guilty of indecent acts. He was sentenced to a bad con-

duct discharge, confinement for 30 months, and reduction

to E-1.

The United States Air Force Court of Criminal Appeals

affirmed the finding of guilty to indecent acts, with a

minor amendment. Because of the amendment, the Court

reduced the confinement time to 24 months. The Court

also agreed with the trial judge’s denial of the defense mo-

tion to suppress the statements of Angel and Mrs.

Morgan. United States v. Morgan, unpublished, ACM

29592 (A.F.C.M.R. 30 April 1993).

The United States Court of Appeals for the Armed

Forces affirmed the conviction, holding that the state-

ments made by Angel were properly admitted. Although

the Court held that the statements made by Mrs. Morgan

to the OSI was improperly admitted, they held that the

error was harmless. United States v. Morgan, 40 M.J.

__: (C.M.A. 1994).

REASONS FOR GRANTING THE WRIT

Generally, statements other than the one made by the

declarant while testifying at trial and offered for the truth

of the matters asserted therein are not admissible in trials

by court-martial. Mil.R.Evid. 801 & 802. Such statements

may, however, be received into evidence when they fall in-

to one of the several narrowly defined exceptions to the

general rule of exciusion. Mil.R.Evid. 803 & 804. In the

event that a hearsay statement does not fall into one of the

specifically delineated exceptions, it may only be received

into evidence when it is accompanied by such circumstan-

tial guarantees of trustworthiness that the infringement of

the petitioner’s right to confrontation is justified. Ohio v.

Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L. Ed. 2d 597

(1980); United States v. Hines, 23 M.J. 125 (C.M.A.

1986); United States v. Barror, 23 M.J. 370 (C.M.A.

1987); Mil.R.Evid. 803(24) & 804(b)(5).

While there were several statements that were admitted

into evidence at trial, the petitioner only requests that

three of them be reviewed by this Honorable Court: 1) the

written statement made by Angel, with the assistance of

AFOSI SA Helms, and II) the two written statements

made by Mrs. Morgan, and given to the AFOSI. Each will

be addressed separately.

}

Angel’s Statement to AFOSI

The military judge admitted Jones’ 28 December 1990

statement to AFOSI agents under the residual hearsay ex-

ception. R. 242-44. That provision states:

The following are not excluded by the hearsay rule,

even though the declarant is available as a witness:

6

(24) Other exceptions. A statement not specifically

covered by any of the foregoing 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... .

Mil.R.Evid. 803(24) (emphasis in original).

The petitioner submits that the military judge’s refusal

tO suppress this statement was prejudicially erroneous.

This Court has recently addressed the propriety of ad-

mitting hearsay under the residual exception in child abuse

cases. In Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139,

111 L.Ed.2d 638 (1990). Justice O’Connor stated:

Although we have recognized that hearsay rules and

the Confrontation Clause are generally designed to

protect similar values, we have also been careful not

to equate the Confrontation Clause’s prohibitions

with the general rule prohibiting the admission of

hearsay statements. The Confrontation Clause, in

other words, bars the admission of some evidence

that would otherwise be admissible under an excep-

tion to the hearsay rule.

Idaho, 111 L.Ed.2d at 651 (citations omitted). Therefore,

a simple hearsay analysis regarding the admission of a

hearsay statement in the context of a criminal case is not

sufficient to meet constitutional requirements.

Justice O’Connor went on to summarize the current

state of the law on the confrontation issue. First, the pros-

ecution must establish the unavailability of the witness

whose statement the prosecutor purports to use against the

criminal defendant. /d. Second, the statement is only ad-

missible “if it bears adequate ‘indicia of reliability.’ ” /d. at

652. Reliability is assumed if the admission of the hearsay

is based on a “ ‘firmly rooted hearsay exception;’ ” other-

wise, the evidence must be excluded unless there is a show-

ing of “ ‘particularized guarantees of trustworthiness.’ ”

(citations omitted). Jd. Justice O'Connor then noted some

of the “firmly rooted hearsay exceptions” to include “ex-

cited utterance,” “medical treatment,” co-conspirator

statements, and “dying declaration.” /d. at 655.

When the hearsay exception under which the out of

court statement is admitted is not a “firmly rooted hearsay

exception,” then the “ ‘particularized guarantees of trust-

worthiness’ must be shown from the totality of the circum-

stances, but .. . the relevant circumstances include only

those that surround the making of the statement and that

render the declarant particularly worthy of belief. . . . [I]f

the declarant’s truthfulness is so clear from the surround-

ing circumstances that the test of cross-examination would

be of marginal utility, then the hearsay rule does not bar

admission of the statement at trial.” /d. The statement

must be “so trustworthy that adversarial testing would add

little to its reliability.” Jd. at 656. “[UJnless an affirmative

reason, arising from the circumstances in which the state-

ment was made, provides a basis for rebutting the

presumption that a hearsay statement is not worthy of

reliance at trial, the Confrontation Clause requires exclu-

sion of the out-of-court statement.” /d. “To be admissible

under the Confrontation Clause, hearsay evidence used to

convict a defendant must possess indicia of reliability by

virtue of its inherent trustworthiness, not be reference to

other evidence at trial.” Id. at 657 (emphasis added).

In this case, the petitioner submits that the statement of

Angel does not bear the circumstantial guarantees of trust-

worthiness necessary to justify its admission. As noted

above, this girl’s track record for lying speaks for itself.

She had previously falsely accused her step-father and had

told her friends lies about having a rich doctor for a real

father. Contrary to the military judge’s findings of fact,

this girl had every motive to fabricate this story. She ob-

viously wanted to return to North Carolina to live with her

permissive grandmother. The fact that the statement was

typed by AFOSI SA Helms suggests that law enforcement

agents had a hand in its construction, heightening suspi-

cion that it was the product of leading or suggestive inter-

view techniques. The judge’s determination that this state-

ment bore sufficient circumstantial guarantees of trust-

worthiness to justify its admission under the residual hear-

say exception is, therefore, patently erroneous and should

be disapproved.

The petitioner further contends that the military judge

erred by considering the other evidence in the case in deter-

mining that the statement “is realistic and makes logical

sense under the circumstances.” R. 243. This language

makes clear that the judge compared the statement to the

“circumstances” of the case, as revealed in the other evi-

dence relating to the alleged offense in deciding whether

the statement was trustworthy. That is the very process

condemned by Justice O’Connor in /daho v. Wright,

supra. This admissibility of this hearsay statement was not

permitted to rise or fall on its own merit —it was held up

against the other evidence in the case and the fact that it

was consistent with that other evidence was considered in

the decision to admit it. The military judge’s application of

this erroneous legal standard alone justifies reversal of his

decision to allow this statement into evidence.

9

As Judge Wiss pointed out in his dissent, the majority,

like the trial court, also considered circumstances other

than those that immediately and directly surround the

making of Angel’s statement to SA Helms to measure the

statement’s trustworthiness so as to qualify it as admissible

under the residual hearsay exception. This is contrary to

the holding in United States v. McGrath, 39 M.J. 158

(C.M.A. 1994) and Jdaho v. Wright, supra. Morgan,

supra, (Wiss, J., dissenting).

i

Mrs. Morgan's Statements

As he did with Angel’s 28 December 1990 statement to

AFOSI, the military judge admitted Mrs. Morgan’s 28

December 1990 and 31 December 1990 statements to

AFOSI on the theory that they fell within the residual ex-

ception to the hearsay prohibition under Mil.R.Evid.

803(5).

Much for the same reasons that Angel’s statement

should have been excluded, the military judge erred when

he denied trial defense counsel’s motion to suppress Mrs.

Morgan’s statements. As stated earlier, the Court of Ap-

peals for the Armed Forces disagreed with the trial judge,

and held that the admission of Mrs. Morgan’s statements

was error. However, the Court held that such admission

was harmless beyond a reasonable doubt.

In his dissent, Chief Judge Sullivan said that this er-

roneous admission was not harmless beyond a reasonable

doubt. He pointed out that even the government recog-

nizes the probative value of this evidence in the petitioner’s

case. The government’s brief states that “it is obvious why

Appellant did not want his wife’s statements admitted

since they corroborate the statements of the victim, and

since her 31 December 1990 statement contains appellant’s

10

admission to sexual activity with his step-daughter after

being confronted by his wife with the victim’s allegations.”

Gov’t brief at 21. Morgan, supra, (Sullivan, C.J., dissent-

ing). An error of constitutional dimensions can only be

determined harmless if the Court is convinced beyond a

reasonable doubt that the error did not effect the out-

come. See United States v. Bahr, 33 M.J. 228, 231

(C.M.A. 1991). But see United States v. Carpenter, 37

M.J. 291 (C.M.A. 1993). Here, that can hardly be said to

be the case. The error was obviously prejudicial.

CONCLUSION

The entanglement of hearsay rules and the Confronta-

tion Clause has created numerous confusing issues for the

courts to resolve. Clear guidance as to what constitutes

“circumstantial guarantees of trustworthiness” required

for residual hearsay exceptions and what constitutes “par-

ticularized guarantees of trustworthiness” required under

Confrontation Clause analysis will reduce future litigation

in this important area. Resolution of this will have a wide

impact in both the military and civilian justice systems.

Respectfully submitted,

JAY LINDSEY COHEN

Colonel, United States Air Force

Chief, Appellate Defense Division

Counsel of Record

J. KNIGHT CHAMPION, III

Captain, United States Air Force

Appellate Defense Counsel

Counsel for the Petitioner

AIR FORCE LEGAL SERVICES AGENCY

172 Luke Avenue, Suite 208

Bolling AFB, DC 20332-5113

(202) 767-1562

December 1994

APPENDICES

APPENDIX A

UNITED STATES COURT OF MILITARY APPEALS

No. 93-1070

CMR No. 29592

UNITED STATES, APPELLEE

V.

JAMES C. MORGAN, STAFF SERGEANT

U.S. AIR FORCE, APPELLANT

Argued May 9, 1994

Decided Sep. 20, 1994

Counsel

For Appellant: Captain J. Knight Champion III

(argued); Colonel Jay L. Cohen and Captain Ursula P.

Moul (on brief); Colonel Terry J. Woodhouse.

For Appellee: Major Barnard N. Madsen (argued);

Lieutenant Colonel Thomas E. Schlegel (on brief); Co/o-

nel Jeffery T. Infelise and Colonel Richard L. Purdon.

Military Judge: Perry L. Anderson

Opinion of the Court

Cox, Judge:

This is yet another case where a military accused is con-

victed based upon out-of-court declarations of the wit-

(la)

2a

nesses against him. The four hearsay statements admitted

into evidence arise out of allegations by the victim (whom

we will call Ann — not her real name) that she was raped by

appellant, her stepfather. '

FACTS

On December 28, 1990, at approximately 1:37 p.m.,

Ann ran over to the house of her neighbor, Mrs. Vera

Riedesel. Seeing that Ann “was very upset.” Mrs. Riedesel

invited her into her home. Upon questioning the child as

to why “she was . . . crying hysterically,” the girl replied

that “my stepdad raped me.” Ann explained that her step-

father (appellant) “went a little bit in. . . [her]” and that

he had done the same thing on “three or four other times

and once was all the way in.” While at Mrs. Riedesel’s

house, Ann first “tried to call her mother” but “was unable

to get her.” When these attempts were unsuccessful, “she

[called] .. . her aunt” in North Carolina and told her of

the alleged rape. The aunt, in turn, called Ann’s mother,

Mrs. Morgan, who was at work in an office at the base ex-

change. Mrs. Morgan then telephoned the security police

and informed them of the allgeged rape.

The security police arrived at Mrs. Riedesel’s residence

about an hour after the alleged rape. First Lieutenant (Lt.)

Baur stated that, when he arrived at the house, the victim

was “very quiet” and “very withdrawn.” He told Ann he

was informed that she had been “sexually molested” by her

' In July 1991, appellant was tried by a general court-martial with

members at Andrews Air Force Base, Maryland. Contrary to his

pleas, appellant was convicted of one specification each of committing

indecent acts on his 13-year-old stepdaughter, and communicating a

threat, in violation of Article 134, Uniform Code of Military Justice,

10 USC § 934. Appellant was sentenced to a bad-conduct discharge,

confinement for 30 months, and reduction to Private E-1. The con-

vening authority approved the sentence.

3a

stepfather and that these were “very serious” allegations.

Upon asking the child if this information was true, she

stated that her stepfather did indeed rape her. Lt. Baur

and Ann then left Mrs. Riedesel’s home and went to the

Security Police Headquarters at Andrews Air Force Base,

Maryland.

At the security police building, Ann was interviewed by

Office of Special Investigations (OSI) Special Agent (SA)

Ronald Helms. This statement was reduced to a typewrit-

ten document, which was sworn to and signed by Ann.

Following this, Ann was taken to the Prince George’s

County Sexual Assault Center [hereinafter SAC] located

in Prince George’s General Hospital in Upper Marlboro,

Maryland. While at the SAC, Ann gave a statement con-

cerning the alleged rape to Ms. Vicki Turner, a social

worker and intake counselor at the center. After speaking

with Ms. Turner, Ann was interviewed by Dr. Nainan

Thomas (Ph.D. in “human development”), the supervising

social worker at the SAC. Ann gave a third statement to

Dr. Thomas, detailing a history of sexual abuse by ap-

pellant.?

In the meantime, Mrs. Morgan, the victim’s mother,

was interviewed by the Security Police and OSI. She ex-

ecuted a handwritten statement relating the substance of

the telephone conversation she had had with her sister.

This statement relates that the sister informed Mrs.

Morgan that Ann reported that appellant had raped her. A

few days later Mrs. Morgan gave a more detailed state-

ment to the OSI, setting forth other incidents of sexual

abuse.

At the time of trial, Mrs. Morgan and Ann refused to

2 A medical exam was conducted later that evening. The attending

physician found no signs of general physical trauma, anogenital

trauma, or of sperm or seminal fluid. The physician did note that Ann

had a “perforated” hymen, however.

4a

respond to a number of subpoenas served upon them in

North Carolina. The military judge, therefore, issued a

warrant of attachment which wss served by a U.S. Mar-

shal. Ann and her mother were then returned to Andrews

AFB in the custody of a marshal.

At a subsequent hearing, Mrs. Morgan stated under af-

firmation that she would not testify against appellant. The

military judge then declared Mrs. Morgan to be

“unavailable” in accordance with Mil.R.Evid. 804(a)(2),

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

mitted her prior written statements into evidence under the

residual hearsay exception set out in Mil.R.Evid.

804(b)(5). Like her mother, Ann also expressed a desire

not to testify at trial. However, Ann did state she would be

willing to adopt her prior written statements at trial and

attest to their truth.’ Accordingly, the military judge ad-

mitted Ann’s various statements into evidence pursuant to

Mil.r.Evid. 803(2), 803(4) and 803(24).

i

LAW AND ANALYSIS OF THE STATEMENTS

Statement I

The Victim’s Statement to Her Neighbor, Mrs. Riedesel

The military judge concluded that Ann’s statement to

her neighbor, Mrs. Riedesel, were admissible under the

excited-utterance exception to the hearsay rule—Mil.R.

Evid. 803(2). We agree.

Mil.R.Evid. 803(2) provides:

3 Despite Ann’s failure to testify in her own words at trial, the

defense was given an opportunity to cross-examine her concerning the

alleged rape and each of her prior written statements.

Sa

The following are not excluded by the heresay rule,

even though the declarant is available as a witness:

* * *

(2) Excited utterance. A statement relating to a

startling event or condition made while the declarant

was under the stress of excitement caused by the event

or condition.

Ann’s statement to Mrs. Riedesel is a textbook example

of an excited utterance. See generally United States v. Ar-

nold, 25 MJ 129 (CMA 1987) cert. denied, 484 U.S. 1060

(1988). The statement was made soon after the alleged

rape while Ann was crying and acting in an hysterical man-

ner. The circumstances ensure the statement was spon-

taneous and impulsive, and not the product of reflection

and deliberation.

ll

Victim’s Statements to Civilian Social Workers

The military judge determined that Ann’s statements to

Ms. Vicki Turner and Dr. Nainan Thomas were admissible

in evidence under the medical-treatment exception to the

hearsay rule— Mil.R.Evid. 803(4). We accept the conclu-

sions of the military judge.

Mil.R.Evid. 803(4) provides:

The following are not excluded by the hearsay rule,

even though the declarant is available as a witness:

* * *

(4) Statements for purposes of medical diagnosis or

treatment. Statements made for purposes of medical

diagnosis or treatment and described medical history,

or past or present symptoms, pain, or sensation, or

6a

the inception or general character of the cause or ex-

ternal source thereof insofar as reasonably pertinent

to diagnosis or treatment.

We note at the outset that applicability of Mil.R.Evid.

803(4) is not limited to statements made to medically

licensed doctors. United States v. Welch, 25 MJ 23, 25

(CMA 1987); see United States v. Nelson, 25 MJ 110, 112

(CMA 1987), cert. denied, 484 U.S. 1061 (1988). Given the

proper circumstances, statements made to psychologists,

social workers, and other health care professionals may

well fall within the purview of the medical-treatment ex-

ception to the hearsay rule. United States v. Welch, 25 MJ

at 25. The key factor in determining whether a particular

statement is embraced by the medical-treatment exception

is “the state of mind or motive of the patient in giving the

information to the physician and the expectation or

perception of the patient that if he or she gives truthful in-

formation, it will help him or her to be healed.” United

States v. Clark, 35 MJ 98, 105 (CMA 1992), quoting

United States v. White, 25 MJ 50, 51 (CMA 1987). The

statement “must be made by a declarant ‘for the purpose

of [medical] diagnosis and treatment.’ ” United States v.

Armstrong, 36 MJ 311, 313 (CMA 1993), quoting 25 MJ

at 112.

Here the military judge found as a matter of fact that

the admitted statements were “made for the purpose of

medical diagnosis or treatment.” Evidence in the record

supports this finding in that it shows that Ms. Turner and

Dr. Thomas explained to the child that the SAC was a

“place where people can come” to get help with “their pro-

blems” and that their roles as social workers was to ensure

her physical and emotional well-being. Similarly, there

was testimony by the child indicating she understood the

purpose of the SAC is to help sexual abuse victims like

Ta

herself. During the interviews the victim continually

sought counseling regarding her emotions and fears about

pregnancy, and the ramifications her allegations of sexual

abuse might have on her family and home life. She also ex-

pressed an interest in receiving “follow-up” counseling in

the future. While there is some evidence in the record to

suggest that Ann spoke to Ms. Turner and Dr. Thomas

because she thought she had to as part of the investigatory

process, we are not prepared to say the military judge’s

findings of fact are “unsupported by the evidence” or

“clearly erroneous.” United States v. Middleton, 10 MJ

123, 133 (CMA 1981); see also United States v. Burris, 21

MJ 140, 145 (CMA 1985). Accordingly, we hold the

military judge did not err in finding that Ann’s statements

to Ms. Turner and Dr. Thomas were admissible under

Mil.R.Evid. 803(4).

ill

The Victim’s Statement to OSI

A few hours after the alleged rape Ann gave a statement

to OSI Special Agent Ronald Helms at the Andrews AFB

security police building. The statement was reduced to a

typewritten document, which was sworn to and signed by

her. The military judge determined the statement was ad-

missible in evidence under the residual hearsay exception

set out in Mil.R.Evid 803(24).

Mil.R.Evid. 803(24) 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 specifically

covered by any of the foregoing exceptions but having

equivalent circumstantial guarantees of trustworthi-

8a

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. .. .

Ann’s statement to the OSI concerns the circumstances

of the alleged rape. There is no question that is is relevant

“evidence of a material fact.” Mil.R.Evid. 803(24); see

Mil.R.Evid. 401 and 402. Although the child was reluctant

to testify at trial about the details of the alleged rape, she

did agree to adopt her written statement and did certify to

its truth while under oath. The written statement, albeit

heresay, therefore, was the functional equivalent of the

direct testimony of the accusatrix. Absent the actual,

spoken testimony of the child, we believe her statement to

the OSI was “more probative” on the issue of whether the

alleged rape actually occurred than would be any other

evidence reasonably available to the Government.

The “interests of justice” clause “has not proved signifi-

cant in decisions construing” Mil.r.Evid. 803(24), United

States v. Hines, 23 MJ 125, 134 (CMA 1986). However,

the issue of reliability must be resolved, and we now turn

to it.

When the Confrontation Clause of the Sixth Amend-

ment is not at issue,‘ the military judge may consider all

relevant facts in determining whether the “equivalent cir-

cumstantial guarantees of trustworthiness” requirement of

* Since Ann was subject to full and effective cross-examination at

trial, the Confrontation Clause is not implicated in this case with

regard to Ann’s out-of-court statements. See infra.

9a

Mil.R.Evid. 803(24) is met. United States v. McGrath, 39

MJ 158, 166 (CMA 1994).5 In this case a number of fac-

tors support the reliability of Ann’s statement to the OSI.

First, she signed her statement under oath. Second, she did

not recant her statement when given the opportunity at

trial, but rather, certified as to its truth. Third, the state-

ment was made to the OSI less than 3 hours after the alleg-

ed attack. Fourth, no cogent motivation was suggested for

the child to lie. Fifth, the statement was entirely consistent

with her excited utterance to the neighbor. And finally,

Ann was a member of the accused’s household and looked

to him for financial support. The societal stigma that un-

doubtedly attached to her as a result of her accusations of

sexual abuse must be considered as nothing less than per-

sonally devastating.

In light of the above, we find Ann’s statement to the

OSI to be particularly worthy of belief and hold that the

military judge did not err when he admitted the statement

under Mil.R.Evid. 803(24).

We likewise find that appellant’s right to confront the

victim was not violated. The Confrontation Clause of the

Sixth Amendment provides: “In all criminal prosecutions,

the accused shall enjoy the right... to be confronted

with the witnesses against him.” The central purpose

behind this Consitutional provision is to prevent “paper

trials” anc to allow the accused an adequate opportunity

to cross-examine adverse witnesses. United States vy.

Owens, 484 U.S. 554, 557 (1988); California v. Green,

* When the Confrontation Clause is of concern, guarantees of

trustworthiness of an out-of-court statement must be shown from on-

ly those circumstances that “surround the making of the statement and

that render the declarant particularly worthy of belief.” Idaho vy.

Wright, 497 U.S. 805, 819 (1990). In such circumstances outside cor-

roborating evidence cannot be used to “bootstrap” the trustworthiness

of the hearsay statement. /d. at 823.

10a

399 U.S. 149, 157 (1970). Although the Supreme Court

has “recognized that hearsay rules and the Confrontation

Clause are generally designed to protect similar values,”

the Court has

been careful not to equate the Confrontation Clause’s

prohibitions with the general rule prohibiting the ad-

mission of heresay statements. The Confrontation

Clause, in other words, bars the admission of some

evidence that would otherwise be admissible under an

exception to the hearsay rule.

Idaho v. Wright, 497 U.S. 805, 814 (1990) (citations omit-

ted).

Although the Confrontation Clause may sometimes

limit admissibility “of some evidence that would otherwise

be admissible under” the Military Rules of Evidence, there

is no confrontation issue when the declarant testifies as a

witness and is “subject to unrestricted cross-examination”

by opposing counsel. United States v. Owens, 484 U.S. at

560; California v. Green, 399 U.S. at 159; United States v.

Lyons, 36 MJ 183, 188 (CMA 1992) (Crawford, J., con-

curring in the result). In the instant case, the victim took

the stand at trial and was subject to unrestricted cross-

examination by the defense. Although the military judge

allowed Ann to adopt her out-of-court statement as her in-

court testimony, defense counsel still had the opportunity

to conduct effective cross-examination of the witness. We

hold there is no confrontation issue with regard to Ann’s

out-of-court statements. Accordingly, the military judge

did not err on either evidentiary or Constitutional grounds

when he admitted the child’s out-of-court statements into

evidence.

lla

IV

Mrs. Morgan’s Statements to OSI

Mrs. Morgan executed two written statements to the

OSI. When she refused to testify at trial, the military judge

found her “unavailable” under Mil.R.Evid. 804(a)(2) and

admitted both statements into evidence under the residual

hearsay exception—Mil.R.Evid. 804(b)(5). Regardless

whether Mrs. Morgan was “unavailable” within the mean-

ing of the rule, we believe the military judge erred in ad-

mitting the statements. However, even if Mrs. Morgan

* A court order demanding that a witness testify is an essential re-

quisite to a finding of unavailability under that Rule. Many federal

courts are in accord with this view. See, e.g., United States v. Zap-

pola, 646 F2d 48, 54 (2d Cir. 1981) (“{A]n order from the court is an

essential component in a declaration of unavailability under [Federal]

Rule 804(a)(2).” (Citation omitted)); United States v. Inadi, 748 F.2d

812, 819-20 (3d Cir. 1984) (“The government has taken, at various

Stages in these proceedings, several different approaches to estab-

lishing [the witness’) unavailability. h first asked the trial judge to rely

on the assurances of government counsel that [the witness] was

adamantly refusing to testify and was prepared to go to jail for con-

tempt. . . . Such predictions by government counsel cannot be recog-

nized as the equivalent of the actual scenario where a witness has ap-

peared in court and refused to testify after a court order. Every

veteran trial judge has experienced the situation where a hostile

witness discards his ‘stonewalling’ tactics when faced with an immi-

nent contempt citation.”), rev'd on other grounds, 475 U.S. 387

(1986). Cf. Jennings v. Maynard, 946 F.2d 1502, 1505 (10th Cir. 1991)

(“Although both the Oklahoma Code and Federal Rule 804(a)(2) nor-

mally require the court to order a witness to testify before a finding of

unavailability is made, we conclude that such an order was not neces-

sary in this case. During the in camera hearing, [the witness] testified

that he would not obey a court order requiring him to testify. Further,

the triai court determined that [the witness’] reason for refusing to

testify—that threats ... were made against [the witness] and his

family — made an order to testify inappropriate.”).

12a

were truly “unavailable,” her statements to the OSI were

nevertheless inadmissible. First, much in the statements

constitutes “double” or even “triple” hearsay, i.e., my

sister said the neighbor said that my daughter said. That is

most unreliable. Second, the circumstances surrounding

the making of the statement cannot be said to be sup-

ported by any “particularized guarantees of trustworthi-

ness.” Idaho v. Wright, supra at 815; see also United

States v. Hines, 23 MJ at 137. The wife’s out-of-court

declarations were inadmissible and the military judge

erred by admitting them.

We find that the military judge’s error in admitting Mrs.

Morgan’s statements under Mil.R.Evid. 804(b)(5) was

harmless beyond any reasonable doubt. United States v.

Moreno, 36 MJ 107, 121 (CMA 1992). Mrs. Morgan’s

statements to the OSI were not essential to the prosecu-

tion’s case; much of the substance of her statements con-

cerned matter that was cumulative of other evidence intro-

duced at trial, and most importantly, the finders of fact

had an opportunity to view and hear from the most critical

witness, the victim herself. Accordingly, we hold that ad-

mission of Mrs. Morgan’s statements in evidence under

Mil.R.Evid. 804(b)(5) does not constitute reversible error.

The decision of the United States Air Force Court of

Military Review is affirmed.

Judges CRAWFORD and GIERKE concur.

13a

SULLIVAN, Chief Judge (dissenting):

I agree with the first two parts of the majority opinion. I

do not agree with Part III that concerns admissibility of

the victim’s statement to the Office of Special Investiga-

tions. See United States v. McGrath, 39 MJ 158, 169

(CMA 1994) (Sullivan, C.J., dissenting). In addition, I do

not agree that error in admission of Mrs. Morgan’s out-of-

court statement given on December 31, 1990, was harmless

beyond a reasonable doubt.

Her statement on the above date reads as follows:

In late 1986 after we returned from Aviono, Italy,

JAMES CURTIS MORGANJ,] [A], my two sons and

I moved into the Allen Bee Gardens Apartments,

Forestville, MD. One day I asked [A] if anyone had

ever done anything to her and told her not to tell me.

[A] did not say anything at first, but then she asked

me if I knew what a prostitute was. I said yes and

asked her way she asked me that. [A] told me a prosti-

tute layed down for people and she had done that for

Daddy (JAMES CURTIS MORGAN). [A] told me

Daddy told her not to tell anyone about what he had

done with her. I asked what he had done and [A] told

me he had gotten on top of her and put his thing in

her private part. J call JAMES CURTIS MORGAN

at his work with the 1776 Security Police Squadron,

Andrews AFB, MD, and asked him what he had done

to [A]. JAMES CURTIS MORGAN told me it hap-

pened while we were in Europe and that [A] did not

tell it right. He told me [A] would come and lay down

beside him. Later she started to get on top of him and

ask him if he loved me (mama). Then he stated [A]

got brave and began to rub him on his penis. When I

asked him why he did not tell me about this, JAMES

CURTIS MORGAN stated he was afraid I would

l4a

leave him. A couple of months after we moved onto

base at 1165 A Hall Court, AAFB, MD, I left JAMES

CURTIS MORGAN with [A] and my two sons and

moved to my mother’s home in North Carolina. A

couple of months later, [A] told me JAMES CURTIS

MORGAN had put his penis inside her while we lived

in the Allen Bee Garden Apartments, Forestville,

MD. Approximately 3 weeks ago, JAMES CURTIS

MORGAN and I were haveing [sic] a big arguement

[sic] when [A] interrupted. During the argument

JAMES CURTIS MORGAN got very quiet and

apologitic [sic] when [A] stated she had something to

tell me. He got so quiet I knew in my heart JAMES

CURTIS MORGAN had been messing with [A]. On

28 Dec 90, I got a call from my sister, SHEILA

JONES, in North Carolina who told me that [A] had

called her and stated JAMES CURTIS MORGAN

had raped [A]. I called the Security Police Desk and

reported the incident as I could not take it anymore.

When JAMES CURTIS MORGAN came to pick me

up, he put the two boys in the Security Police truck

with me and the security police man. He drove to the

Security Police building alone and parked in the park-

ing lot. When I saw JAMES CURTIS MORGAN I

knew he had a gun although I had no way to prove it.

He has told me in the past he would kill me and him if

I ever left, him. When I left JAMES CURTIS

MORGAN and moved to North Carolina, I never in-

tended to return to him. I was seperated [sic] from

him for approximately 2 2 years. I didn’t report this

incident to anyone because I though [sic] separation

would take care of the problem.

(Emphasis added)

Even the Government recognizes the probative value of

this evidence in appellant’s case. Its Answer states: “It is

15a

obvious why Appellant did not want his wife’s statements

admitted since they corroborate the statements of the vic-

tim, and since her 31 December 1990 statement contains

Appellant’s admission to sexual activity with his step-

daughter after being confronted by his wife with the vic-

tim’s allegations.” Answer at 21. As noted below, such a

conclusion is justified by the record of trial before us.

The Government’s case was based primarily on three

out-of-court statements by a 13-year-old child-victim. The

defense’s theory at trial was that the victim initially made

those statements because she was generally frustrated with

family problems around the time she alleged rape.

Furthermore, defense counsel contended that, at trial, the

child was merely perpetuating these earlier lies. Thus the

focus of the trial was on the victim’s credibility. Evidence

by a third party that corroborated the victim’s statements

and provided a purported admission by appellant certainly

could have tipped the balance of the weight of the evidence

against him. Accordingly, I find that “there is a reasonable

possibility that the evidence complained of might have

contributed to the conviction,” and therefore the military

judge’s error in admitting Mrs. Morgan’s statements was

not harmless beyond a reasonable doubt. Chapman vy.

California, 386 U.S. 18, 23 (1967), quoting Fahy v. Con-

necticut, 375 U.S. 85, 86-87 (1963); cf. United States v

Grooters, 39 MJ 269, 273 (CMA 1994). -

l6a

Wiss, Judge (dissenting):

| agree with the majority opinion except for Part II] and

the harmiess-error analysis in Part [V. As to the latter, I

agree with the Chief Judge’s reasoning that Mrs. Morgan’s

statement cannot be seen beyond reasonable doubt to be

harmless. Rather than being rather innocuous and cumu-

lative, as the majority portrays it, I believe that the full

statement as set out in the Chief Judge’s separate opinion

reveals it as a significant substantive addition to the corpus

of the prosecution’s evidence.

As to Part III, the majority considers circumstances

other than those “that immediately and directly surround[ }

the making of” Ann’s statement to Agent Helms of the Of-

fice of Special Investigations (OSI) to measure the state-

ment’s trustworthiness so as to qualify it as admissible

under Mil.R.Evid. 803(24), Manual for Courts-Martial,

United States, 1984. See United States v. McGrath, 39 MJ

158, 172 (CMA 1994) (Wiss, J., dissenting). Under my

reading of that rule, consideration of such circumstances

in the trustworthiness analysis is not permissible. /d.

Additionally, I believe that the majority has erred by

shuffling past one of the three absolute prerequisites for

admission of hearsay under Mil.R.Evid. 803(24): that “the

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

fered than any other evidence which the proponent can

procure through reasonable efforts. . . .” In this regard,

the majority simply opines: “Absent the actual, spoken

testimony of the child, we believe her statement to the OSI

was ‘more probative’ on the issue of whether the alleged

rape actually occurred than would be any other evidence

reasonably available to the Government.” ___. MJ at (7)

(emphasis added).

The difficulty is in the majority’s predicate assumption:

The child’s testimony was available to the prosecution —

17a

there simply was no absence of her testimony. The follow-

ing portion of the girl’s testimony, which immediately

follows a few introductory questions and answers, demon-

strates that it simply was the witness’ discomfort and un-

ease which led the Government to its shortcut through the

rules of evidence:

Q. Now, [Ann], you know why we’re here today,

don’t you?

A. Yes.

Q. Why are you here?

A. For a trial.

Q. Okay, and what are we trying to find out in this

trial?

A. What happened to me.

Q. Specifically you and who else?

A. And my Dad.

Q. How do you feel about testifying here today and

talking about what happened with you and your

stepdad?

A. I don’t want to talk about it.

Q. You don’t like to talk about it.

A. No.

Q. I will try to make it a little easier for you. | am

going to show you a document that we have

marked as Government (Prosecution) Exhibit 1,

and I am going to show it to you. .. .

Then, what follows is a series of questions — many lead-

ing —in which trial counsel obtains affirmative answers to

questions whether certain events that are reflected in her

pretrial statement occurred. A reading of her full state-

ment leaves no doubt at all that, while the witness was il] alt

ease, her testimony at all times was there for the asking. In

this context, the out-of-court statement cannot be char-

acterized as “more probative . . . than any other evidence

18a

which the proponent can procure through reasonable ef-

forts” —it surely was not more probative than her live, in-

court testimony, and that testimony was readily pro-

curable.

In sum, I believe that Ann’s pretrial statement was ad-

mitted improperly under Mil.R.Evid. 803(24) in two

separate respects and that admission of her mother’s out-

of-court statement was not harmless error. Accordingly, I

would set aside the findings and sentence and authorize a

rehearing.

19a

APPENDIX B

UNITED STATES AIR FORCE COURT

OF MILITARY REVIEW

ACM 29592

UNITED STATES

V.

STAFF SERGEANT JAMES C. MORGAN, FR230-94-3612

UNITED STATES AIR FORCE

30 April 1993

Sentence adjudged 23 July 1991 by GCM convened at

Andrews Air Force Base, Maryland. Military Judge; Perry

L. Anderson.

Approved sentence: Bad-conduct discharge, confine-

ment for 2 years and 6 months, and reduction to E-1.

Appellate Counsel for the Appellant: Colonel Jeff rey R.

Owens and Captain Michael D. Burt.

Appellate Counsel for the United States: Lieutenant

Colonel Brenda J. Hollis, Major Paul H. Blackwell, Jr.,

Captain David C. Wesley, and Captain Carlos L.

McDade.

Before

O’HAIR, SNYDER, and GRUNICK

Appellate Military Judges

20a

OPINION OF THE COURT

GRUNICK, Judge:

In a general court-martial tried before members, appel-

lant was convicted, contrary to his pleas of a specification

of indecent acts, on divers occasions, with his minor step-

daughter, and communication of a threat, violations of

Article 134, UCMJ. The approved sentence includes a

bad-conduct discharge, confinement for 2 years and 6

months, and reduction to E-1.

Appellant alleges the government failed to produce suf-

ficient evidence to support his conviction and the military

judge erred in several of his evidentiary rulings and during

instructions. We do not find prejudicial error, but the

state of the evidence leads us to modify the findings and

sentence. We otherwise affirm the results.

FACTS

Appellant was a security policeman (SP) with over 12

years of service. During the summer of 1990, his 13-year-

old step-daughter, SJ, returned from staying with her

grandmother. She was sent away by her mother because

the girl had previously complained appellant had been

“messing with” her. When she returned to appellant’s

home, weekly sexual touching began and continued until

28 December 1990, when SJ went to a neighbor, in tears,

complaining appellant raped her. Security police investi-

gators were advised of the complaint and found appellant

with his wife at the base exchange. Appellant was in-

formed of the allegations and agreed to follow investi-

gators to their office.

Instead of following investigators to their office, appel-

lant took his pistol and held it to his head for 4 hours while

he remained parked alone in his car. After 4 hours of hold-

ing himself hostage, appellant reliquished his weapon to

2la

his flight commander, but not before he threatened to run

through SP barricades with his car and take an SP “with

me.”

After the initial complaint, the step-daughter was inter-

viewed by AFOSI investigators, state social welfare case

workers, and examined by a doctor. The week before trial,

SJ and her mother fled to another state although sub-

poenaed to appear. Trial was delayed several days while

U.S. marshals intervened and brought these two reluctant

witnesses to trial. Appellant’s wife refused to testify and

although SJ did not refuse, she expressed reluctance to go

into details. Trial counsel relied heavily on the step-

daughter’s acknowledgement that her previous statements

were true and introduced them against the appellant.

SUFFICIENCY OF THE EVIDENCE

Appellant attacks the factual and legal sufficiency of the

evidence. The primary basis for this assertion arises from

appellant’s acquittal of rape allegations from the

1986-1987 time frame and during the last half of 1990. Ap-

pellant asserts his step-daughter was unworthy of belief

and the members’ finding him guilty, by exceptions and

substitutions, of indecent acts with a minor was not sup-

ported by the evidence.

During an Article 39(a), UCMJ, session on findings in-

structions, trial counsel proposed a lesser included offense

instruction for indecent acts with a minor. Defense

counsel did not object to this proposal or the instruction

given by the military judge advising the members they

could find appellant guilty of the lesser offense of indecent

acts, “by putting his hands on her breasts and buttocks

and genital area.” In finding appellant guilty of indecent

acts with a minor, the members substituted the instructed

language.

22a

We do not find sufficient evidence in the record for the

fact-finder to find appellant guilty of putting his hands on

the genital area of his step-daughter, SJ. The primary

focus during the examination of SJ and the investigation

was whether sexual intercourse had occurred. When SJ ex-

pressed reluctance to discuss the details of the sexual

assaults, the presentation of the case boiled down to what

she previously told others. SJ frequently described what

appellant did as “messing with her.” The most specific

description by SJ of the indecent acts occurred when she

was questioned by Ms. Turner, a counselor at the Sexual

Assault Center. SJ told the counselor appellant would

touch her “backside and chest.” In an interview given to

AFOSI, SJ’s mother described her daughter’s complaint as

improper touching by appellant of her breasts and but-

tocks. There simply is no evidence appellant placed his

hands on SJ’s genital area. We will modify the findings ac-

cordingly.

In all other respects, there is sufficient evidence in the

record from which a rational fact-finder could be con-

vinced of appellant’s guilt beyond a reasonable doubt.

United States v. Turner, 25 M.J. 324 (C.M.A. 1987). We

are satisfied the remaining evidence is legally and factually

sufficient to establish appellant’s guilt. Jackson v.

Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 S. Ct. 2781, 61

L. Ed. 2d 560 (1979).

SENTENCING INSTRUCTION

Appellant asserts he was prejudiced by the military

judge’s instruction to the members that “vested” benefits

from a prior period of honorable service were not for-

feited by receipt of a punitive discharge. The substance of

the punitive discharge instruction correctly emphasized the

severity of a punitive discharge. We find no prejudicial

23a

error. United States y. Longhi, M.jJ. _.., ACM

S28621 (A.F.C.M.R. Mar. 5, 1993); United States v.

Hansen, 36 M.J. 599, 611-12 (A.F.C.M.R. 1992).

CONCLUSION

We have examined appellant’s remaining assignments of

error and find they are without merit. Mil. R. Evid. 403,

803(2), 803(4), 803(24), 804(b)5; and R.C.M. 917(d).

In view of our conclusion above, we amend specifica-

tion 2 of Charge II to read

Inthat...,did,...on divers occasions between on

or about | July 1990 and 28 December 1990, wrong-

fully commit indecent acts upon the body of SJ, a

female under 16 years of age, not the wife of the said

Staff Sergeant James C. Morgan, by putting his

hands upon her breasts and buttocks with the intent

to appeal to the sexual desires of the said Staff

Sergeant James C. Morgan.

We are convinced beyond a reasonable doubt of

appellant’s guilt of Charge III and its specification, and

Charge II and specification 2, as amended.

Reassessing the sentence based on our findings, we find

appropriate, only so much of the sentence as provides for

a bad-conduct discharge, confinement for 2 years, and

reduction to E-1.

The findings and sentence, as modified, are correct in

law and fact. Article 66(c). Accordingly, they are,

AFFIRMED.

Senior Judge O’Hair and Judge SNYDER concur.

24a

[SEAL OMITTED]

OFFICIAL

/s/ Naomi D. Allen

Naomi D. ALLEN

Technical Sergeant, USAF

Chief Court Administrator, AFCMR

r US. GOVERNMENT PRINTING OFFICE: 1994—384-694/24009