United States v. Sutton

42 M.J. 355, 1995 CAAF LEXIS 86, 1995 WL 541846

• Court: Court of Appeals for the Armed Forces
• Decided: September 13, 1995
• Docket: No. 94-0400; CMR No. 29318
• Status: Published

Opinions

Opinion of the Court

CRAWFORD, Judge:

1. Contrary to his pleas, appellant was convicted of the following:

(a) violating a lawful general regulation by wrongfully exchanging and possessing without authority U.S. currency between October 9, 1988, and February 5, 1989;

(b) violating a general regulation by wrongfully using the U.S. military Postal System to receive packages for Mr. Glenn Bergendahl between October 9, 1988, and February 5, 1989;

(c) three specifications of conspiracy with three separate servicemembers between October 9, 1988, and February 5, 1989, to wrongfully exchange U.S. currency at other than an authorized currency exchange point; and a fourth specification of conspiracy with a fourth member during the same time to wrongfully possess U.S. currency;

(d) receiving a thing of value for delivering official matter through the Armed Forces Postal (APO) system to Mr. Bergendahl between March 23, 1987, and July 9, 1987;

(e) receiving $25.00 for delivering official matter through the APO system to Mr. Bergendahl between October 9, 1988, and February 5, 1989;

(f) soliciting Staff Sergeant Steele to receive packages for Mr. Bergendahl through the APO mailing system and using a government vehicle to deliver such packages to Mr. Bergendahl.

2. These offenses are in violation of Articles 92, 81, and 134, Uniform Code of Military Justice, 10 USC §§ 892, 881, and 934, respectively. The trial was at Nellis AFB, Nevada, on March 19-22, 1991. The convening authority approved the sentence of a dishonorable discharge, 3 years’ confinement, total forfeitures, reduction to the lowest enlisted grade, and a fine of $84,742 (or to be confined for an additional 5 years until such fine is paid). The Court of Military Review

* affirmed the findings and sentence in a fifteen-page unpublished opinion, 1993 WL 541345. We granted appellant’s petition on the following issues:

I (modified)

WHETHER THE MILITARY JUDGE ERRED BY RULING THAT MR. BER-GENDAHL WAS UNAVAILABLE WITHOUT REQUIRING THE GOVERNMENT TO SHOW AN ATTEMPT TO OBTAIN MR. BERGENDAHL’S TESTIMONY BY DEPOSITION.

II

WHETHER STATEMENTS, WHICH ACKNOWLEDGE THE DECLARANT’S OWN CRIMINAL LIABILITY BUT WHICH MADE APPELLANT SEEM MORE CULPABLE, MADE WHILE THE DECLARANT WAS BEYOND THE REACH OF THE HONDURAN GOVERNMENT QUALIFY AS STATEMENTS AGAINST INTEREST.

III

WHETHER ADMISSION OF STATEMENTS OF MR. BERGENDAHL VIOLATED APPELLANT’S SIXTH AMENDMENT RIGHT TO CONFRONTATION SINCE THEY DID NOT MEET THE REQUIREMENTS OF IDAHO V. WRIGHT.

FACTS

3. Appellant was on temporary duty in Honduras and discovered a better exchange rate for his dollars at unauthorized exchange points on the local economy. He developed a scheme whereby he converted his dollars into local currency, then took the local currency to the base and turned it into U.S. dollar money orders. He also became involved in a second scam in which he allowed a commercial vendor, Mr. Bergendahl, to receive packages through the Armed Forces Postal system. Mr. Bergendahl was a Norwegian businessman operating in Honduras. Mr. Bergendahl’s statements concerning appellant’s various schemes were admitted into evidence at trial under Mil.R.Evid. 804(b)(3), Manual for Courts-Martial, United States, 1984, following a determination that he was unavailable due to Honduran travel restrictions because he was still appealing his conviction of criminal charges in Honduras. Appellant now argues that Mil.R.Evid. 804(b)(3), like its Federal counterpart, should require that there be an attempted deposition prior to declaring a witness unavailable in the United States. Final Brief at 13. The record indicates that the Government did attempt to talk to Mr. Bergendahl about a deposition but he refused to make a statement in Honduras while his appeal of his conviction of the charges against him was pending. There was no evidence in the record that the United States would find it impractical to return the court-martial to Honduras, the site of the crime as well as of the location of Bergendahl. RCM 906(b)(ll), Manual, supra, authorizes a change of venue, but no such motion was made.

Discussion

4. For Mr. Bergendahl’s statements to be admissible under Mil.R.Evid. 804(b)(3), the declarant must be (1) unavailable, and (2) the statement must be against the declarant’s penal interest, that is, such “that a reasonable person ... would not have made the statement unless” he or she “believed it to be true.”

5. As to a declaration against penal interest, Williamson v. United States, — U.S. -, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994), has limited Fed.R.Evid. 804(b)(3) to those portions of a narrative that actually inculpate the declarant. Statements that are not self-inculpatory are not covered.

6. Nevertheless, we need not resolve admissibility of Mr. Bergendahl’s statements. Instead, we hold that any error regarding admissibility of Mr. Bergendahl’s statement as to the offenses was harmless. Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991); Art. 59(a), UCMJ, 10 USC § 859(a). All four soldiers who conspired with appellant to commit the offenses testified at trial as to their conduct, appellant’s conduct, and statements by appellant concerning the conduct. This testimony, together with other testimony and documentary evidence (pros. ex. 9, 11, 18), compellingly establish appellant’s guilt beyond a reasonable doubt as to each of those offenses.

The decision of the United States Air Force Court of Military Review is affirmed.

Chief Judge SULLIVAN and Judges COX and GIERKE concur.

See 41 MJ 213, 229 n. * (1994).