United States v. Green

44 M.J. 631, 1996 CCA LEXIS 234, 1996 WL 329581

• Court: U S Coast Guard Court of Criminal Appeals
• Decided: June 7, 1996
• Docket: Docket No. 1032; CGCMG 0084
• Status: Published

Opinions

BAUM, Chief Judge:

Appellant was tried by general court-martial judge alone. Pursuant to his pleas of guilty, entered in accordance with a pretrial agreement, he was convicted of the following offenses: two specifications of unauthorized absence for four and eighteen days respectively; one specification of wrongful appropriation of a motor vehicle and one specification of larceny of $4800, military property of the United States; and eight specifications of obtaining services by false pretenses, in violation, respectively, of Articles 86, 121, and 134 of the Uniform Code of Military Justice. The judge sentenced Appellant to a bad conduct discharge, confinement for two years, forfeiture of all pay and allowances, and reduction to pay grade E-l. The convening authority approved the sentence as adjudged, but suspended all confinement in excess of twelve months for twelve months from the date of trial, pursuant to the terms of the pretrial agreement. Before this Court, Appellant has assigned five errors, which have been briefed by both sides. The case also has been orally argued. Motions contained in the briefs of the parties not previously granted are hereby granted. Appellant has noted that the initial promulgating order of the convening authority is deficient in that it fails to reflect the pleas of the accused, as required by R.C.M. 1114(c)(1). A corrected promulgating order should be issued as indicated by Appellant.

I

THAT THE MILITARY JUDGE ERRED BY ADMITTING, OVER DEFENSE OBJECTION, HEARSAY EVIDENCE OF ILLEGAL DRUG ABUSE BY APPELLANT DURING THE SENTENCING PORTION OF THE TRIAL

In his first assignment, Appellant complains that during sentencing the judge mistakenly admitted testimony of a Coast Guard Investigations agent called by the prosecution as a witness in aggravation. The agent testified that he was told by a female acquaintance of Appellant’s that she and Appellant had spent a great deal of time together for several weeks before his apprehension and that they both had used “crack” cocaine, most of which, if not all, had been purchased with money supplied by Appellant. Objections to this testimony were raised at trial and are asserted again here. Appellant cites several military rules of evidence that were violated by the admission of this testimony, but, in my view, only one need be addressed, Military Rule of Evidence (M.R.E.) 804, the rule dealing with hearsay exceptions when the declarant is unavailable.

A

Statements Against Interest Under M.R.E. 804

More specifically, M.R.E. 804(b)(3) provides for admission in evidence of statements against interest if the declarant is unavailable as a witness. Included within the rubric of statements against interest are those which so far tend to subject the declarant to ■ civil or criminal liability that a reasonable person in the position of declarant would not have made the statement unless the person believed it to be true. The statement in question was made by a known prostitute to a Coast Guard agent after Appellant had been apprehended and, as asserted by Appellant, it is entirely likely that she may have thought she would gain some benefit to herself by implicating appellant as a partner-in-crime. If so, her account would not qualify for the statement-against-interest exception to the hearsay rule. In this regard, I agree with Judge O’Hara’s development of the subject in his separate opinion. That issue is not even reached, however, if the declarant is not first determined to be unavailable as a witness.

In order to introduce a statement against interest based on unavailability of the declarant, M.R.E. 804(a)(5) requires a showing that the proponent of the statement “has been unable to procure ... the declarant’s attendance or testimony by process or other reasonable means.... ” (Emphasis added). Appellant argues that the “or testimony” portion of that rule means that the proponent of the hearsay must “at least attempt to obtain the declarant’s testimony, subject to cross-examination, in some manner other than appearance at trial, such as by taking the declarant’s deposition.” Appellant’s brief at 10. That argument was also made at trial and rejected by the military judge, who apparently accepted the trial counsel’s contention that the Government need not attempt to depose the declarant before obtaining a ruling of unavailability under M.R.E. 804(a)(5). That view has also been advanced by the Government before this Court, arguing that M.R.E. 804(a)(5) does not require an attempt to depose. In support of that position, the Government has cited an Air Force unpublished opinion, United States v. Sutton, ACM 29318, 1993 WL 541345, 1993 CMR Lexis 618 (A.F.C.M.R. December 21, 1993), which discusses the Federal Rule requiring an attempt to depose and concludes that, while there are sound policy reasons for such a Rule, admission of hearsay under the Military Rule does not become error simply because no deposition was shown to have been sought. I am of a different mind on this point.

B

Applicability of Federal Rule of Evidence 804(a)(5)

Appellant has provided as supplemental citation of authority the concurring opinion from the Court of Appeals for the Armed Forces decision in the Sutton case, United States v. Sutton, 42 M.J. 355, 357 (1995) (Wiss, J. concurring), in further support of ■the contention that unavailability cannot be established without an attempt at obtaining a deposition.

In his concurring opinion, Judge Wiss said the following in Sutton with respect to M.R.E. 804(a)(5):

The legislative history of the identical federal rule makes clear the drafter’s intent that this includes at least an effort to depose the declarant. See J. Weinstein & M. Berger, 4 Changes at 804-8 to 804-10 and para. 804(a)[01] at 804-57 (1995).

The Drafters’ Analysis of Mil.R.Evid. 804(a)(5) reflects that the rule is “taken from the Federal Rule without change,” except as to a different subsection from the one relevant here. Manual, supra at A22-51 (Change 2). In the absence of any indication that the drafters’ intent was, nonetheless, for a different meaning and application, the same requirement should be ascribed to the military rule as to the federal rule. See United States v. Powell, 22 MJ 141, 143 (CMA 1986); S. Saltzburg, L. Schinasi, D. Schlueter, Military Rules of Evidence Manual (hereafter Saltzburg) 843 (3d ed. 1991). Id. at 357.

Judge Wiss concluded that the military judge abused his discretion in finding the hearsay declarant unavailable for purposes of M.R.E. 804(a) without first issuing an order for the declarant to submit to a deposition. While this conclusion did not constitute the holding of the Court, I, nevertheless, believe it is the law we should be following in light of the interpretation of M.R.E. 804(a)(5) drawn from its legislative history.

C

Legislative History of Federal Rule of Evidence 804(a)(5)

Proposed Federal Rules of Evidence were first drafted by an Advisory Committee on Rules of Evidence appointed by Chief Justice Earl Warren in 1965. After circulation and revision of those rules based on comments received, the Supreme Court approved a final draft in 1972, which was submitted to Congress for its express approval, as required by Public Law 93-12, which had been enacted in early 1973. The Advisory Committee’s Rule 804(a)(5) contained no requirement that an attempt be made to take the deposition of a declarant or obtain testimony in some other form, but the House of Representatives amended the rule to require that very thing for three hearsay exceptions, which included statements against interest. The Senate rejected the amendment seeing it as a needless, impractical and highly restrictive complication. When the two versions went to House/Senate conference, however, the House version of Rule 804(a)(5) was the one ultimately adopted and signed into law. See J. Weinstein & M. Berger, 4 Weinstein’s Evidence, supra, and Saltzburg, Martin, & Capra, 3 Federal Rules of Evidence Manual, Legislative History at 1656-1665. That is the same rule subsequently promulgated for the military by the President as M.R.E. 804(a)(5).

D

Decisions Interpreting Federal Rule of Evidence 804(a)(5)

With this legislative history as background, it is easy to understand the interpretation given Federal Rule 804(a)(5) by Federal Courts, that the declarant-unavailability requirement with respect to a hearsay statement against interest is not met without a showing that other forms of testimony, such as depositions, are unavailable. For example, in United States v. Curbello, 940 F.2d 1503 (11th Cir.1991), a case with factual similarities to the one before this Court, the hearsay post-arrest statement of a co-conspirator, made after the conspiracy ended, was admitted by the trial court under F.R.Evid. 804(b)(3) as a declaration against interest by an unavailable declarant. On appeal, the U.S. Court of Appeals for the Eleventh Circuit had this to say:

The sole basis for a conclusion that Lopez [the absent declarant] was unavailable was a representation by the prosecutor that Lopez was in prison in the Bahamas____ The Government did not show that it had been unable to procure Lopez’s attendance or testimony “by process or other reasonable means.” Before this court it offers only a three-line footnote, with no citation of authority, saying that Lopez’s unavailability as a witness was established by the fact that he was imprisoned in the Bahamas. This is not sufficient.

The United States could have sought to take Lopez’s deposition under Rule 15, F.R.Crim.P. ... Or the government could have attempted to utilize letters rogatory obtained through the district court and forwarded through diplomatic channels ____

Id. at 940 F.2d 1505,1506.

In Campbell v. Coleman Co., Inc., 786 F.2d 892 (8th Cir.1986), the Court said:

Before a statement against interest may be admitted, the proponent of the evidence must demonstrate that the declarant is “unavailable.” United States v. Pelton, 578 F.2d 701 (8th Cir.), cert denied, 439 U.S. 964, 99 S.Ct. 451, 58 L.Ed.2d 422 (1978). Rule 804(a)(5) provides that a declarant is “unavailable” if “absent from the hearing and the proponent of his statement has been unable to procure his attendance (or in the case of a hearsay exception under subdivision (b)(2), (3) [statement against interest] or (4), his attendance or testimony) by process or other means.” This subsection is concerned with the absence of testimony, rather than the physical absence of the declarant. See generally H.R. 1597, 93d Cong., 2d Sess. 12 (1974), U.S.Code Cong. & Admin.News 1974, p. 7051; Cotchett and Elkund, Federal Courtroom Evidence, 163 (1984). Hayes [the declarant], was absent from trial, but his testimony was available. Coleman had taken his deposition on July 5, 1984, eight months before trial. Since Hayes was not unavailable within the meaning of Rule 804(a)(5) and (b), his hearsay statements could not be admitted under the “statement against interest” exception in Rule 804(b)(3).

Id. at 786 F.2d 895, 896.

Finally, Zenith Radio Corp. v. Matsushita Elec. Ind. Co., 505 F.Supp. 1190 (E.D.Pa.1980), a District Court opinion relating to the “unavailability” requirement for admission of former testimony under Rule 804(a)(5), recognized a different requirement for admission of a statement against interest, when it said:

Rule 804(a)(5) is written in the disjunctive. The rule, as promulgated by the Supreme Court, required only a showing of inability to procure attendance of the declarant with respect to all the 804(b) exceptions. However, the House Judiciary Committee added language to the Rule which provides that “in the case of a hearsay exception under subdivision (b)(2), (b)(3), or (b)(4),” a proponent must also be unable to procure the testimony of the declarant. The House Committee noted:

the amendment is designed primarily to require that an attempt be made to depose a witness (as well as to seek his attendance) as a precondition to the witness being deemed unavailable. The Committee, however, recognizes the propriety of an exception to this additional requirement when it is the declarant’s former testimony that is sought to be admitted under subdivision (b)(1). House Report at 15, U.S.Code Cong. & Admin.News 1974, p. 7088. While the Senate deleted the language added by the House, the Conference Committee adopted the House version. Thus, in the Rule as enacted, there is no additional requirement that a proponent of former testimony attempt to depose the declarant.

Id. at 505 F.Supp. 1249,1250.

E

M.R.E. 804(a)(5) As Applied To The Facts Of This Case

The conclusion from the foregoing is that under the Federal Rule, in addition to absence from trial and inability to obtain the witness’s attendance, there must be a showing that a deposition or some other form of testimony cannot be obtained before a statement against interest is admissible. Given the adoption by the President of M.R.E. 804(a)(5), unchanged in this regard from the Federal Rule, I believe the same interpretation must be applied for courts-martial, at both the merits and sentencing stages of trial, unless at sentencing the rules of evidence have been relaxed in accordance with R.C.M. 1001(c)(3), which is not the case here. If such proves burdensome for courts-martial and warrants a different rule for the military, the avenue for correction is change by the President, not the courts.

Here, the only showing by the Government of unavailability of the witness was a letter placed in evidence by the trial counsel from the Chief Assistant State Attorney for the Fifth Judicial District of Florida regarding the trial counsel’s request for the witness’s attendance at a hearing in Portsmouth, Virginia. According to the letter, the witness, Ms. Ocean L. Dodson, was currently serving a sentence for a criminal violation in Florida, and that in order for her to appear in compliance with a subpoena it would be necessary for her to be released from jail, which the state attorney said would require mitigation of the sentence. The letter went on to state that, because of a Florida rule divesting a trial court of jurisdiction to reduce or mitigate a sentence after 60 days, there is no mechanism for reducing the sentence for her to appear, short of an executive pardon, and that the office of state attorney would object to any attempt to have her released early.

Appellant submits that the letter’s suggestion that the state would never permit an incarcerated person out of jail to testify as a prosecution witness unless the person was released permanently by executive pardon is simply incredible. We, too, find it hard to believe that conditions could not have been imposed for temporary release under guard to allow the witness to testify. The words of Mr. Justice Marshall in Barber v. Page, 390 U.S. 719, 724 n. 4, 88 S.Ct. 1318, 1321 n. 4, 20 L.Ed.2d 255 (1968), bear consideration on this point, “For witnesses in prison, quite probably many state courts would utilize the common-law writ of habeas corpus ad testificandum at the request of prosecutorial authorities of a sister State upon a showing that adequate safeguards to keep the prisoner in custody would be maintained.” There is no indication in the record that any effort was made along these lines or even discussed.

From my perspective, whether such was required or whether trial counsel’s efforts resulting in the letter from Florida constituted reasonable means taken to procure the witness’s attendance at trial need not be decided because there was no showing of any attempt to depose the witness or to obtain her testimony in some other manner as an alternative to attendance at trial before ruling the witness unavailable under M.R.E. 804(a)(5). Since no showing in that regard was made, I find it was error for the judge to admit the statement against interest' under M. R.E. 804(b)(3) based on unavailability of the declarant. In my view, this error admitting hearsay that implicated Appellant in unrelated and uncharged misconduct involving purchase and use of crack cocaine materially prejudiced his substantial rights and warrants either a sentence rehearing or reassessment of the sentence. Contributing to my conclusion that substantial rights were materially prejudiced is the fact that the erroneously admitted evidence was offered by the prosecution for purposes of increasing the sentence after the Government had promised in the pretrial agreement not to go forward on drug charges. I am mindful of the fact that in this trial by judge alone the judge indicated she would give limited consideration to the evidence, as pointed out by Judge O’Hara. Nevertheless, I am unable to conclude, as my brothers have, that any error was harmless.

II

THAT THE GUILTY PLEAS OF THE ACCUSED TO EIGHT SPECIFICATIONS OF OBTAINING SERVICES BY FALSE PRETENSES UNDER CHARGE VII WERE IMPROVIDENT

In this assignment, Appellant contends that his pleas of guilty to obtaining services under false pretenses in violation of Article 134, UCMJ, were improvident because the services alleged to have been obtained were rentals of motor vehicles, which he says are personal property not services. Appellant was charged in eight specifications with falsely pretending to have authority to use his government Diner’s Club card to rent motor vehicles and by that means wrongfully obtaining the use of various automobiles. Appellant does not challenge the false pretenses aspect of these offenses, only what was obtained by those pretenses. He argues that his actions may have supported a charge of wrongful appropriation of a motor vehicle in each instance, but not that of services. In response, the Government, citing United States v. Plante, 36 M.J. 626, 628 (A.C.M.R.1992), says the act of fraudulently obtaining a rental car includes receipt of services from a car rental agency. Although the holding in United States v. Plante, supra, relates to larceny of money from an insurance company for fraudulently obtaining a replacement rental car billed to the insurance company, the Court did say, in so ruling, that the accused had received services from the car rental agency. The Government has expanded upon that conclusion by pointing out that, in addition to valuable service in the form of use of a vehicle provided by a rental company, a contract with a car rental company necessarily includes other services such as storage and maintenance of the vehicle and warranties of fitness and convenience to the renter. We agree with the Government’s contention. By renting a vehicle from such a company, Appellant obtained not only tangible property in the form of an automobile, he also obtained necessary services as a part of that rental agreement. For that reason we find Appellant’s pleas of guilty to fraudulently obtaining services to be provident.

Ill, IV, & V

In his last three assignments, Appellant contends that he was denied military due process by the Government’s failure to provide written advice to the convening authority pursuant to Article 34, UCMJ; that a specification alleging wrongful appropriation of a Ford Explorer is multiplieious for sentencing purposes with a specification alleging obtaining the use of the same Ford Explorer by false pretenses; and that this Court lacks jurisdiction because of improper civilian judge appointment. We reject each of these assignments. Appellant waived an investigation under Article 32, UCMJ, and, by not objecting at trial, he also waived the staff judge advocate’s failure to provide written advice to the convening authority pursuant to Article 34, UCMJ. The specification alleging wrongful appropriation of a Ford Explorer relates to Appellant’s keeping the vehicle beyond the allotted time, the use of that vehicle having been initially obtained under false pretenses. We believe these are two separate offenses for both findings and sentence. Finally, Appellant’s last assignment has been resolved against him by United States v. Ryder, 44 M.J. 9 (1996).

CONCLUSION

Pursuant to Article 66, UCMJ, we have determined that the findings are correct in law and fact. I have found prejudicial error bearing on the sentence, as discussed with regard to Appellant’s Assignment I. My brothers, however, have concluded that any error committed at sentencing was harmless and they have determined the sentence should be affirmed. Accordingly, the findings of guilty and sentence as approved and partially suspended below are affirmed.