United States v. Staff Sergeant JOHN M. DIAMOND

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
SCHENCK, HOLDEN, and WALBURN
Appellate Military Judges

UNITED STATES, Appellee
v.
Staff Sergeant JOHN M. DIAMOND
United States Army, Appellant

ARMY 20010761

82d Airborne Division and Fort Bragg
Patrick J. Parrish, Military Judge
Lieutenant Colonel W. Renn Gade, Staff Judge Advocate (trial and recommendation)
Lieutenant Colonel Thomas E. Ayers, Staff Judge Advocate (addendum)

For Appellant: Captain Julie Caruso, JA; Donald G. Rehkopf, Jr. Esquire (on brief);
Colonel Mark Cremin, JA; Lieutenant Colonel Mark Tellitocci, JA; Captain Charlie
A. Kuhfahl, JA; Major Sean S. Park, JA; Captain Jeremy W. Robinson, JA.

For Appellee: Lieutenant Colonel Theresa A. Gallagher, JA; Captain Edward E.
Wiggers, JA; Captain Michael C. Friess, JA (on brief); Colonel Steven T. Salata, JA;
Lieutenant Colonel Mark L. Johnson, JA; Major Natalie A. Kolb, JA.

21 December 2007

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OPINION OF THE COURT
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SCHENCK, Senior Judge:

A military judge sitting as a general court-martial convicted appellant, in
accordance with his pleas, of violating a lawful general regulation by wrongfully
transporting and storing a privately-owned weapon in his vehicle and committing
adultery on divers occasions, in violation of Articles 92 and 134, Uniform Code of
Military Justice, 10 U.S.C. § 892 and 934 [hereinafter UCMJ]. A general court-
martial composed of officer and enlisted members convicted appellant, contrary to
his pleas, of conspiring to commit premeditated murder, premeditated murder, and
obstructing justice, in violation of Articles 81, 118, and 134, UCMJ. The convening
DIAMOND – ARMY 20010761

authority approved the adjudged sentence to a dishonorable discharge, confinement
for life without the possibility of parole, 1 forfeiture of all pay and allowances, and
reduction to Private E1. This case is before the court for review pursuant to Article
66, UCMJ.

Appellant asserts a number of errors on appeal. None have merit, but one
warrants discussion — appellant’s contention the military judge erred by admitting
Doctor (Dr.) Michelle Theer’s statements as a co-conspirator pursuant to Military
Rule of Evidence [hereinafter Mil. R. Evid.] 801(d)(2)(E). 2 Essentially, appellate
defense counsel assert, inter alia, appellant was only charged with conspiracy to
commit the premeditated murder of Air Force Captain (Capt.) Frank M. Theer, and
the military judge committed plain error when he admitted statements that were not
made “in furtherance” of the charged conspiracy, but rather, to prove the uncharged
misconduct of conspiracy to obstruct justice. Moreover, appellant asserts these
statements were admitted in violation of the Confrontation Clause of the Sixth
Amendment to the U.S. Constitution.

1
The military judge awarded appellant 192 days confinement credit against the
sentence to confinement. The convening authority’s initial action and promulgating
order failed to reflect the credit. See Rule for Courts-Martial 1107(f)(4)(F); Army
Reg. 27-10, Legal Services: Military Justice, para. 5-31a (24 Jun. 1996) (requiring a
convening authority to “show in [the] initial action all credits against a sentence to
confinement . . . regardless of the source of the credit . . . or for any . . . reason
specified by the judge”); United States v. Delvalle, 55 M.J. 648, 649 n.1, 656 (Army
Ct. Crim. App. 2001); United States v. Arab, 55 M.J. 508, 510 n.2, 520 (Army Ct.
Crim. App. 2001). Accordingly, to the extent appellant has not already received this
credit, appellant will be credited with 192 days of confinement credit.
2
We find appellant’s corresponding assertion that the military judge also failed to
sua sponte “give the appropriately tailored ‘uncharged misconduct’ instructions” to
be without merit. The parties at trial discussed the possibility of an uncharged
conspiracy to obstruct justice, but the defense did not request any corresponding
“appropriately tailored uncharged misconduct instructions.” We find the military
judge did not abuse his discretion by failing to sua sponte provide such a limiting
instruction. We do not have “‘a definite and firm conviction that the [military judge]
committed a clear error of judgment in the conclusion [he] reached upon a weighing
of the relevant facts.’” United States v. Dacosta, 63 M.J. 575, 579 (Army Ct. Crim.
App. 2006) (quoting United States v. Houser, 36 M.J. 392, 397 (C.M.A. 1993) (first
alteration in original)).

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We hold the military judge did not err and find the admission of the statements
did not violate the Confrontation Clause. In doing so, we necessarily address the
responsibilities of the military judge when dealing with uncharged misconduct
evidence as it relates to evidence offered to prove a conspiracy.

FACTS

An enlisted panel convicted appellant of premeditated murder and conspiracy
to commit the premeditated murder of his paramour’s husband, Capt. Theer. The
panel also convicted appellant of obstructing justice on or about 12 February 2001 by
disposing a Smith and Wesson 9mm pistol. Appellant pleaded guilty to adultery for
numerous acts of sexual intercourse with Dr. Theer from February 2000 to February
2001. 3 With appellant’s authorization, the panel was informed of appellant’s guilty
plea to the adultery and Article 92, UCMJ, violations. The members also were given
a document (flyer) listing these offenses.

The Murder

Doctor Theer, a practicing psychologist, found her husband’s body on Sunday
night, 17 December 2000, at the base of the stairwell outside the office building
where she worked in Fayetteville, North Carolina. Earlier in the evening, Dr. and
Capt. Theer attended her office holiday dinner party at The Fox and The Hound
restaurant in Fayetteville. Doctor Harbin, Dr. Theer’s colleague, had invited
Capt. Theer after Dr. Theer told Dr. Harbin that her husband was upset about not
being invited to the dinner party. Prior to dinner, Capt. and Dr. Theer left their
vehicle in the office parking lot and rode with another of Dr. Theer’s colleagues,
Ms. HM and Ms. HM’s boyfriend to the restaurant. After dinner, Ms. HM, her
boyfriend, and the Theers returned to the office parking lot at approximately 2230.
The Theers drove to a nearby gas station but then returned to the office because
Dr. Theer said she wanted to retrieve some work. While Dr. Theer went up the
exterior stairs to her office on the second floor, Capt. Theer waited in the parking
lot. From inside the office, Dr. Theer heard shots and ran to see her husband, dead at
the bottom of the exterior stairs leading to her office. 4

Rather than call for help from her cell phone, Dr. Theer ran to a nearby video
rental store and told the clerk to call 911 because her husband had been shot. After

3
At trial, the defense also conceded that appellant and Dr. Theer continued to see
each other after Capt. Theer’s murder.
4
At trial one witness testified he heard four or five “deliberate” shots fired.

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phoning 911 from the video store, Dr. Theer and another store patron returned to
Capt. Theer. Captain Theer was shot four times with a 9mm pistol from more than
two feet away, one bullet went through the back of his left upper leg and left
forearm. The other two bullets lodged in his abdomen. He was also shot once in the
head at a range of four to six inches. A bullet hole was found in the door frame
above the office door at the top of the stairs and some sequins from Capt. Theer’s
holiday suspenders were also found at the top of the stairs.

The Relationship Between Appellant and Dr. Theer

Appellant and his wife, Mrs. Lourdes Diamond, met in Panama and married in
1996. In 2000 they experienced some marital difficulties resulting in appellant
leaving her in February 2000 to live with “a friend.” He moved back in with his wife
sometime between September and October 2000, only to leave her again in January
2001.

In March 2000, appellant met Dr. Theer on the internet when he answered her
personal internet advertisement. Appellant and Dr. Theer engaged in an extramarital
affair from March 2000 until February 2001. In the fall of 2000, appellant informed
his psychology classmates that his fiancée was a psychologist. Later a friend met
Dr. Theer at appellant’s apartment. Additionally, appellant listed his “girlfriend” as
his emergency contact on the unit alert rosters in September 2000. The phone
number listed for the unnamed “girlfriend” was Dr. Theer’s cell phone number.

Moreover, in September 2000, Dr. Theer applied for a faculty position
scheduled to be filled in June 2001 at the Saba University Medical School, located on
Saba Island in the Caribbean. In the letter accompanying her application, Dr. Theer
indicated she was twenty-nine years old, single, with no children, and would be
traveling with her fiancé, “John.” Appellant and Dr. Theer traveled to Saba Island
on 18 October 2000, two months before the murder. While there, they had dinner
with the Saba Medical University administrator who testified Dr. Theer introduced
appellant as her fiancé and that after he told the couple about his prior position as a
prosecutor in California for fourteen years, appellant became noticeably quiet. Prior
to the trip to Saba Island, appellant sent email messages to the owner of a scuba
diving shop indicating he was a dive master moving to the island with his wife and
was interested in possible employment. While on the island, appellant left the dive
shop owner a note stating: “This is John Diamond, I emailed about the possibility of
working here. I am a current dive master. . . . It looks like me, and my wife will be
relocating here in Feb[ruary 2001] for approx[imately] 3 y[ears]. Email me later.”

During the murder investigation, Dr. Harbin told police Dr. Theer had
confided to him in November 2000 that she was having an affair with “someone
named John” starting in early October 2000 and ending in mid-November 2000.

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Doctor Theer told Dr. Harbin she was having marital problems due to a disagreement
regarding whether to have children and her belief her husband was having an
extramarital affair. Doctor Theer moved out of her home and into an apartment
sometime between the summer and fall of 2000. She told Dr. Harbin she was
undecided whether to get a divorce because she wanted her husband’s signing bonus
for extending his active duty service obligation. She moved back in with her
husband during the fall of 2000. Doctor Theer was the beneficiary of her husband’s
$500,000.00 life insurance policy. The Theers applied for the policy on
15 September 1999. The company never paid the claim on the policy following the
murder, however, because the company could not complete its investigation.

Appellant and Dr. Theer continued their relationship after the murder.
Doctor Theer told police she saw appellant on 20 December 2000 because she
“wanted to look in his eyes and asked [sic] him did he have any involvement in the
death of her husband and she would know by looking at him, so she called him.”
When she asked appellant he said, “no” and “he showed remorse for her and her
situation and said that he didn’t have any involvement.” Doctor Theer also told
police she did not think appellant was involved. Their relationship continued even
after appellant was in pretrial confinement on 21 February 2001. During the last
week of February 2001, appellant placed over 300 calls to Dr. Theer and listed her as
the “family shrink” on his visitor request list at the confinement facility in March
2001.

The Murder Investigation

Doctor Harbin testified Dr. Theer told him she called appellant from The Fox
and The Hound prior to leaving the restaurant on the night of the murder. During the
murder investigation, Dr. Theer gave him the impression she thought the
investigators were incompetent and were spending too much time investigating her
and appellant. Doctor Harbin reminded her that her telephone call to appellant from
the restaurant did make her “look bad” and encouraged Dr. Theer to be less
antagonistic and cooperate with investigators.

When interviewed on 19 December 2000 regarding the murder, appellant told
Fayetteville Police Investigator Clinkscales he spent one night of the weekend prior
to the murder with Dr. Theer to celebrate her birthday; he admitted they had sexual
intercourse. Appellant also told police he saw Dr. Theer the evening before the
murder at a restaurant, but claimed he was at home with his wife watching television
on the night of the murder. Appellant said he did not own a weapon, but he also said
that after ten years of military experience he was a trained sniper and could produce
a “close shot group.” In the afternoon on the day of the murder, appellant twice
called a pawn shop in Fayetteville to determine its store hours for the next day and to
obtain information whether he could rent and test fire a handgun at the store. The

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morning after the murder, appellant went to the pawn shop and fired a Beretta 9mm
pistol, a weapon similar to the weapon used to kill Capt. Theer. As a result,
Investigator Clinkscales determined that testing appellant for gun shot residue (GSR)
would not provide any useful evidence regarding Capt. Theer’s murder. Appellant
asked Investigator Clinkscales not to tell his wife about his relationship with Dr.
Theer.

Mrs. Diamond testified that the night of the murder appellant arrived at home
sometime between 1900 and 2000 and they began watching a rented movie after
2000. Upon receiving a call on his cell phone in the middle of the movie, appellant
left the room, changed his clothes, and told her he was going to the base. Mrs.
Diamond and her mother continued to watch the “long” movie before Mrs. Diamond
went to bed “real late.” Appellant had not returned. Appellant’s mother-in-law, who
had moved in with the Diamonds in November 2000, testified similarly, but said she
woke up when appellant returned during the night. She heard the door and the sound
of appellant walking from the door to the kitchen. She also heard “the clothes
washer come on later[.]” When Mrs. Diamond awoke the next morning, appellant
was asleep in the baby’s room. Appellant told her he had gone to the barracks the
previous night and did not remember what time he had returned. He ate breakfast
with his wife and then left.

Fayetteville Police called Mrs. Diamond on Tuesday, 19 December 2000, and
scheduled an interview. Prior to the interview, appellant told Mrs. Diamond to
“remember that we were watching movies” and “that night we had had sexual
relations.” She told appellant that was not true; they did not have sex and he had left
after receiving a phone call. Appellant insisted she remember they rented movies
and told her to call him after the interview. Fayetteville police interviewed
Mrs. Diamond four times, the last interview with agents from the Army Criminal
Investigation Command (CID). Mrs. Diamond told them appellant was in her house,
watched movies all night, and never left. She told her mother to tell the police the
same story. Afraid Mrs. Diamond would lose custody of her baby and they might be
deported, however, Mrs. Diamond and her mother subsequently told the police the
truth in February 2001, when they discovered the police were investigating a murder.

Disposal of the 9mm Smith and Wesson Pistol

Just prior to the murder, appellant borrowed a 9mm Smith and Wesson pistol
from Staff Sergeant (SSG) Peyton Donald. Staff Sergeant Donald and appellant were
stationed together in Panama until appellant went to work for the CID. Appellant
told SSG Donald he wanted to fire the weapon on the range. After the murder, and
two days prior to returning the weapon, appellant called SSG Donald and asked him
if he had received the Fayetteville newspaper. Since SSG Donald did not have the
newspaper, appellant told him to search for “Theer” on the internet. This search

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resulted in an article regarding Capt. Theer’s murder. Appellant explained that the
victim was Dr. Theer’s husband. Staff Sergeant Donald knew Dr. Theer because he
and his wife had previously gone out to dinner with Dr. Theer and appellant during
the summer of 2000. At the end of January or beginning of February 2001, appellant
asked SSG Donald to sell him the 9mm pistol. Unable to buy the weapon from
SSG Donald, appellant borrowed it again.

The CID contacted SSG Donald in February 2001, asked him about the 9mm
pistol, and requested he call appellant about the weapon since appellant still had it in
his possession. Staff Sergeant Donald called appellant on 12 February 2001.
Initially, appellant said he no longer had the pistol and did not know where the
weapon was. Appellant then called SSG Donald back and offered to retrieve the
pistol. Later that night, appellant called SSG Donald again and told SSG Donald
someone had broken into his vehicle. Appellant subsequently called SSG Donald to
obtain information about the pistol so he could report it stolen along with the damage
to his car to the military police.

At 2225 on 12 February 2001, appellant provided military police a sworn
statement claiming on 8 February 2001 he parked his car in the very last spot of an
on-post parking lot. He further stated his car was parked near the woods in a poorly
lit area at the farthest point from any buildings. According to appellant, when he
returned from a weekend trip on 12 February 2001, he found someone had broken
into the car and stolen SSG Donald’s weapon. Although the Diamonds’ divorce was
final on 24 January 2001, appellant nevertheless also called his former wife on
12 February 2001 to use her new address for the military police report.

After military police questioned appellant about the theft, they advised
appellant he was suspected of murder and he waived his rights. Appellant told the
CID agents he had a purely nonsexual friendship with Dr. Theer. After the
interview, appellant called Dr. Theer to pick him up at the barracks. Appellant was
not at unit physical training the following morning, 13 February 2001, and did not
report for duty until 1300. 5 He told the battalion command sergeant major that he
had been at the CID office.

5
In allowing this testimony over defense objection based on uncharged misconduct,
the military judge conducted the appropriate balancing test before admitting the
evidence. See United States v. Reynolds, 29 M.J. 105 (C.M.A. 1989) (establishing a
three-prong test to determine whether uncharged misconduct may be admitted under
Mil. R. Evid. 404(b)).

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Contrary to appellant’s version of events, the government presented a
surveillance video recorded on 12 February 2001 showing appellant and Dr. Theer
with appellant’s vehicle. Additionally, witnesses saw a vehicle resembling
appellant’s vehicle parked near Dr. Theer’s house during this time period. Moreover,
Dr. Theer’s classmate from graduate school also testified that Dr. Theer and
appellant drove to Florida and visited her from 8 until 12 February 2001. According
to the classmate, they did not drive any of Dr. Theer’s vehicles. During this trip
Dr. Theer also dropped off appellant to visit his younger sister. Appellant’s brother-
in-law later took appellant to meet someone fitting Dr. Theer’s description driving a
vehicle similar to appellant’s.

Trial

At trial, Dr. Theer, as an alleged co-conspirator, invoked her Fifth Amendment
right to remain silent. Appellant’s defense counsel had the opportunity to cross-
examine Dr. Theer to the extent she responded to questions. In discussing her
unavailability as a witness, the following colloquy transpired:

CDC: Clearly [Dr. Theer] has invoked, clearly she would
not be available . . . .

MJ: I’m not ruling on whether or not any evidence is
admissible under 804, but I’m just ruling on whether or not
she’s available and that she has invoked.

CDC: I think to, after this display in the courtroom to
argue otherwise would be intellectually dishonest and I
would not do that, Your Honor.

MJ: I find that [Dr.] Theer, based on her invocation is
unavailable with regards to the subject areas that she
invoked in. That’s not to say that she is unavailable for
anything that might come up but she is unavailable for the
subject matters to which she has been asked questions and
invoked. Now, whether or not that then makes any other
statements admissible under 804 is for a different day to
decide based on additional evidence the government may
have. . . .

Accordingly, the military judge found Dr. Theer “unavailable” for purposes of Mil.
R. Evid. 804.

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The government then moved to admit several statements Dr. Theer made
before and after Capt. Theer’s murder to police officers Investigator Clinkscales and
Sergeant Mitrisin as well as to her colleague, Dr. Harbin, and appellant’s friend,
SSG Donald. The government also sought to admit a ten-page memorandum dated
27 January 2001 retrieved from Dr. Theer’s personal laptop computer.

Statements to Police Officers

On 18 December 2000, Dr. Theer admitted her extramarital affair with
appellant in a statement to police. She claimed she ended the affair in the fall of
2000, when her husband returned from a temporary duty assignment. On
21 December 2000, Dr. Theer further claimed she had no contact with appellant the
day before the murder. This contradicted appellant’s admission to the police that he
went to a restaurant with Dr. Theer on 16 December 2000. Doctor Theer eventually
admitted to the 16 December meeting with appellant and that she talked to appellant
at 1600 the day of the murder. After the police told Dr. Theer they could retrieve her
cell phone records, she further admitted to calling appellant from the restaurant
restroom prior to departing, but asserted appellant did not answer the call. The other
members of the dinner party also testified Dr. Theer went to the restroom
immediately before they departed the restaurant.

In January 2001, Dr. Theer asked Investigator Clinkscales if appellant “had an
alibi” and if the police had conducted “a GSR test on him.” The military judge found
these questions “not assertions, [and] therefore not hearsay under [Mil. R. Evid.] 801
and . . . these questions tend to show – [go] to the element of intent on part of the co-
conspirator in this case . . . . The statements are not admitted as a statement of a co-
conspirator, that’s not the theory upon which they are admitted. They are admitted
to show the intent to prove a conspiracy because the accused is charged with a
conspiracy.”

Statements to Dr. Harbin

Doctor Theer told her colleague, Dr. Harbin, that she called appellant on her
cell phone from the restaurant restroom on the night of the murder. She said she was
having her car fixed and was calling to arrange a ride.

The military judge advised the government this statement “would show
complicity – [a] statement by her in furtherance of a way to hide their involvement in
that murder. So, if you lay a sufficient foundation to show that the conspiracy exists,
well then Dr. Harbin’s testimony can come in front of the members.”

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Statements to SSG Donald

Shortly after appellant’s report of SSG Donald’s stolen pistol on 12 February
2001, Dr. Theer called and left a message on SSG Donald’s answering machine. She
said she was John’s friend, wanted to talk to SSG Donald, and wanted to give
SSG Donald something because appellant “wasn’t able to do it.” Staff Sergeant
Donald subsequently set up a meeting with Dr. Theer, but he said she did not show
up as “she didn’t feel comfortable” because the police had asked her to wear a wire
and she felt they may have asked SSG Donald to wear a wire as well.

The Memorandum

Appellate defense counsel contend the military judge erred in entering a
document (Prosecution Exhibit (PE) 148) as a co-conspirator statement, which a
computer forensics specialist retrieved from Dr. Theer’s laptop computer.
Doctor Theer testified during a pretrial hearing regarding the defense’s motion to
quash a subpoena to produce the document. She said she prepared it to give to her
attorney after her 27 January 2001 meeting with appellant. According to Dr. Theer,
the document is a summary of an interview between Dr. Theer and appellant
reflecting her questions and his responses. During this pretrial hearing, defense
counsel cross-examined Dr. Theer.

With defense counsel’s concurrence, portions of Dr. Theer’s testimony from
the pretrial hearing transcript were read to the panel during trial on the merits. The
military judge told the panel, with defense counsel’s concurrence, “[t]his is the
testimony at another hearing that I held for Dr. Theer. You’re just going to hear
some testimony to lay a foundation for those documents just to put them in context.”
After the reading of the testimony, the military judge also told the panel, “members,
you’ll be getting a copy of [PE] 148 and that last . . . testimony of Michelle Theer in
a prior hearing and putting it in context with [PE] 148.” The military judge further
explained outside the panel’s presence:

Now, with regards to [PE] 148 that has already been
admitted based on the theory of — or, conversations or
statements between two co-conspirators. I’ve already
ruled that the conspiracies existed. It was done in
furtherance of a conspiracy. Also, in the question and
answer form, questions by [Dr.] Theer and answers by the
accused and making a statement by the accused as told by
[Dr.] Theer and defense did have an opportunity to cross-
examine [Dr.] Theer when she testified regarding this
statement.

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DISCUSSION

Appellant now contends (1) the admission of these statements violated his
right to confrontation under the Sixth Amendment and (2) the military judge erred in
admitting these various statements by Dr. Theer as those of a co-conspirator under
Mil. R. Evid. 801(d)(2)(E). Because neither nontestimionial statements nor co-
conspirator statements fall under the requirements articulated in Crawford v.
Washington, 541 U.S. 36 (2004), we disagree with appellant’s Sixth Amendment
claims. 6 Moreover, we find the military judge did not err in admitting these
statements under Mil. R. Evid. 801(d)(2)(E).

CONFRONTATION CLAUSE

Law

“Although the right of confrontation and the hearsay rule stem from the same
roots, they are not coextensive, and evidence admissible under a hearsay exception
may still be inadmissible under the [Sixth Amendment] Confrontation Clause.”
United States v. Palacios, 32 M.J. 1047, 1051 n.5 (A.C.M.R. 1991), rev’d, 37 M.J.
366, 367–68 (C.M.A. 1993) (upholding lower court’s finding that admission of child-
victim’s videotaped statement was erroneous, but finding admission not harmless
beyond a reasonable doubt). See also California v. Green, 399 U.S. 149, 155–56
(1970) (recognizing the overlap between hearsay rules and Confrontation Clause is
not complete, and stating “we have more than once found a violation of confrontation
values even though the statements in issue were admitted under an arguably
recognized hearsay exception”).

Military Rules of Evidence prohibit admission of hearsay “except as provided
by these rules or by any Act of Congress applicable in trials by court-martial.” Mil.
R. Evid. 802. Hearsay is further defined as an out-of-court statement offered into
evidence to prove the truth of the matter asserted in the statement. Mil. R. Evid.
801(c). The Sixth Amendment’s Confrontation Clause, however, bars “admission of
testimonial statements of a witness who did not appear at trial unless he was
unavailable to testify, and the defendant had had a prior opportunity for cross
examination.” Crawford, 541 U.S. at 53–54, 68.

6
We also disagree with the government’s assertion that because Dr. Theer’s
testimony was primarily exculpatory the Sixth Amendment Confrontation Clause is
inapplicable. We find no support for this proposition. In any event, as the
government offered these statements ostensibly to prove a conspiracy existed or
some other fact relevant to the government’s case, they seem inherently inculpatory.

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In Crawford, the U.S. Supreme Court explained that the U.S. Constitution’s
Sixth Amendment Confrontation Clause “applies to ‘witnesses’ against the accused
— in other words, those who ‘bear testimony.’” Crawford, 541 U.S. at 51 (quoting
2 N. W EBSTER , A N A MERICAN D ICTIONARY OF THE E NGLISH L ANGUAGE (1828)).
Moreover, as the Court noted “testimony” is “typically ‘[a] solemn declaration or
affirmation made for the purpose of establishing or proving some fact.’” Id. The
Confrontation Clause pertains to both a witness’ in-court testimony as well as out-of-
court statements of a testimonial nature. Id. However, the Confrontation Clause is
not implicated by all out-of-court statements, since “[a]n accuser who makes a
formal statement to government officers bears testimony in a sense that a person who
makes a casual remark to an acquaintance does not.” Id.

A. Crawford’s Application to Non-Testimonial Statements

Following Crawford, the Supreme Court emphasized that the Confrontation
Clause requirements articulated in Crawford apply only to testimonial hearsay.
Davis v. Washington, 547 U.S. 813, ; 126 S. Ct. 2266, 2274 (2006). As the Davis
Court explained:

A critical portion of this holding, and the portion central to
resolution of the two cases now before us, is the phrase
“testimonial statements.” Only statements of this sort
cause the declarant to be a “witness” within the meaning of
the Confrontation Clause. See [Crawford, 541 U.S. at 51].
It is the testimonial character of the statement that
separates it from other hearsay that, while subject to
traditional limitations upon hearsay evidence, is not
subject to the Confrontation Clause.

Id. at , 126 S. Ct. at 2273.

The initial question, then, is: whether Dr. Theer’s statements are testimonial.
The answer to this question “depends on the meaning of ‘testimonial,’ [as well as] on
the circumstances and context in which out-of-court statements are generated, and
whether the out-of-court statements were made under circumstances that would lead
an objective witness reasonably to believe the statement would be available for use at
a later trial by the government.” United States v. Magyari, 63 M.J. 123, 126
(C.A.A.F. 2006) (citing Crawford, 541 U.S. at 52). In determining whether
Dr. Theer’s statements are testimonial or nontestimonial, we must consider such
factors as whether each statement: (1) was “in response to a law enforcement or
prosecutorial inquiry”; (2) involved “more than a routine and objective cataloging of
unambiguous factual matters”; and (3) was made primarily to produce “evidence with

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an eye toward trial[.]” United States v. Rankin, 64 M.J. 348, 352 (C.A.A.F. 2007).
As our court further explained:

The last of the Rankin Court’s factors requires military
courts to conduct a “contextual analysis” to determine
“whether the primary purpose of the document [or
statement] was prosecutorial in nature.” [United States v.]
Foerster, 65 M.J. [120,] 124. “[O]ur goal is an objective
look at the totality of the circumstances surrounding the
statement to determine if the statement was made or
elicited to preserve past facts for a criminal trial.” [United
States v.] Gardinier, 65 M.J. 60, 65 (C.A.A.F. 2007).

United States v. Williamson, 65 M.J. 706, 716-17 (Army Ct. Crim. App. 2007)
(second, third, and fifth alterations added).

Analysis

Doctor Theer’s statements to Dr. Harbin and SSG Donald do not meet two of
these three criteria. Although they may have involved more than a routine gathering
of facts, they were not made to law enforcement and it is apparent Dr. Theer did not
intend they be used for prosecutorial purposes. See United States v. Scheurer, 62
M.J. 100 (C.A.A.F. 2005) (secretly recorded statements to a co-worker are not
testimonial). The memorandum retrieved from Dr. Theer’s laptop computer
contained a summary of conversations between her and appellant made at the behest
of her attorneys for her own potential defense in this matter. Her primary purpose
was not prosecutorial in nature as she never meant for this document to fall into the
hands of law enforcement personnel.

Moreover, in context, it is apparent that in posing the questions Dr. Theer
sought to help eliminate appellant as a suspect. Her primary purpose, therefore, was
not prosecutorial in nature, but rather to obviate appellant’s prosecution entirely. As
for Dr Theer’s statements to law enforcement regarding her affair with appellant and
her call to him from the restaurant, we need not decide whether these constitute
testimonial hearsay. 7 Even if we assume error, we find their admission was
cumulative with admissions from appellant and testimony from other witnesses and,
therefore, harmless beyond a reasonable doubt. See United States v. Allison, 63 M.J.
365, 370-71 (C.A.A.F. 2006) (assertions of error can be disposed of by assuming the

7
We also agree with the military judge that Dr. Theer’s questions to law enforcement
were not assertions and do not qualify as hearsay under Mil. R. Evid. 801.

13
DIAMOND – ARMY 20010761

error and determining the error harmless beyond a reasonable doubt). See also
United States v. Othuru, MJ , 2007 CAAF LEXIS 1657 (C.A.A.F. 12 Dec.
2007) (holding Confrontation Clause violations are reviewed to determine whether
they were harmless beyond a reasonable doubt.)

In addition, even if Dr. Theer’s statements in question would otherwise be
considered testimonial, the requirements outlined in Crawford do not apply to them
because co-conspirator statements are, by definition, nonhearsay.

B. Crawford’s Application to Co-Conspirator Statements

In Ohio v. Roberts, 448 U.S. 56, 66 (1980), the Supreme Court held:
“[H]earsay is admissible when the witness is unavailable and the hearsay either ‘falls
within a firmly rooted hearsay exception,’ see, e.g., White v. Illinois, 502 U.S. 346,
355 (1992), or has ‘particularized guarantees of trustworthiness,’ see, e.g., Idaho v.
Wright, 497 U.S. 805, 820 (1990).” United States v. Bridges, 55 M.J. 60, 62–63
(C.A.A.F. 2001). The Crawford Court overruled the Roberts holding, “that an
unavailable witness’s out-of-court statement may be admitted so long as it has
adequate indicia of reliability — i.e., falls within a ‘firmly rooted hearsay exception’
or bears ‘particularized guarantees of trustworthiness.’” Crawford, 541 U.S. at 42,
60 (quoting Roberts, 541 U.S. at 66).

However, prior to its Crawford decision, the Supreme Court held that co-
conspirator statements made in furtherance of the conspiracy do not require the
Roberts’ showing of unavailability or an independent inquiry into the reliability of
co-conspirator statements. See Bourjaily v. United States, 483 U.S. 171, 183-84
(1987); United States v. Inadi, 475 U.S. 387, 398-401 (1986); Dutton v. Evans, 400
U.S. 74, 87-89 (1970) (holding that state statute permitting out-of-court co-
conspirator statements made during the concealment phase of a conspiracy did not
violate the Confrontation Clause). The Court in Bourjaily held, “the Confrontation
Clause does not require a court to embark on an independent inquiry into the
reliability of statements that satisfy the requirements of Rule 801(d)(2)(E).”
Bourjaily, 483 U.S. at 183-84.

In Inadi, the Court “continue[d] to affirm the validity of the use of co-
conspirator statements, and . . . decline[d] to require a showing of the declarant’s
unavailability as a prerequisite to their admission.” Inadi, 475 U.S. at 402. In
reviewing both the Federal Rule of Evidence and the Sixth Amendment, the Court
explained:

There are good reasons why the unavailability rule,
developed in cases involving former testimony, is not
applicable to co-conspirators’ out-of-court statements.

14
DIAMOND – ARMY 20010761

Unlike some other exceptions to the hearsay rules, or the
exemption from the hearsay definition involved in this
case, former testimony often is only a weaker substitute for
live testimony. It seldom has independent evidentiary
significance of its own, but is intended to replace live
testimony. If the declarant is available and the same
information can be presented to the trier of fact in the form
of live testimony, with full cross-examination and the
opportunity to view the demeanor of the declarant, there is
little justification for relying on the weaker version. When
two versions of the same evidence are available,
longstanding principles of the law of hearsay, applicable as
well to Confrontation Clause analysis, favor the better
evidence. See G RAHAM , T HE R IGHT OF C ONFRONTATION
AND THE H EARSAY R ULE : S IR W ALTER R ALEIGH L OSES
A NOTHER O NE , 8 C RIM . L. B ULL . 99, 143 (1972). But if the
declarant is unavailable, no “better” version of the
evidence exists, the former testimony may be admitted as a
substitute for live testimony on the same point.

Those same principles do not apply to co-conspirator
statements. Because they are made while the conspiracy is
in progress, such statements provide evidence of the
conspiracy’s context that cannot be replicated, even if the
declarant testifies to the same matters in court. . . . [T]he
statement often will derive its significance from the
circumstances in which it was made. . . . Even when the
declarant takes the stand, his in-court testimony seldom
will reproduce a significant portion of the evidentiary
value of his statements during the course of the conspiracy.

In addition, the relative positions of the parties will have
changed substantially between the time of the statements
and the trial. The declarant and the defendant will have
changed from partners in an illegal conspiracy to suspects
or defendants in a criminal trial, each with information
potentially damaging to the other. The declarant himself
may be facing indictment or trial, in which case he has
little incentive to aid the prosecution, and yet will be
equally wary of coming to the aid of his former partners in
crime. In that situation, it is extremely unlikely that in-
court testimony will recapture the evidentiary significance

15
DIAMOND – ARMY 20010761

of statements made when the conspiracy was operating in
full force.

These points distinguish co-conspirators’ statements from
the statements involved in Roberts and our other prior
testimony cases. Those cases rested in part on the strong
similarities between the prior judicial proceedings and the
trial. No such strong similarities exist between co-
conspirator statements and live testimony at trial. To the
contrary, co-conspirator statements derive much of their
value from the fact that they are made in a context very
different from trial, and therefore are usually irreplaceable
as substantive evidence. Under these circumstances, “only
clear folly would dictate an across-the-board policy of
doing without” such statements. Advisory Committee’s
Introductory Note on the Hearsay Problem, quoted in
Westen, The Future of Confrontation, 77 Mich. L. Rev.
1185, 1193, n. 35 (1979). The admission of co-
conspirators’ declarations into evidence thus actually
furthers the “Confrontation Clause’s very mission” which
is to “advance ‘the accuracy of the truth-determining
process in criminal trials.’” Tennessee v. Street, 471 U.S.
409, 415 (1985), [(quoting Dutton, 400 U.S. at 89)].

Id. at 394-96.

The Crawford Court did not specifically overrule its decisions in Bourjaily,
Inadi, and Dutton. Consequently, those decisions are still binding on this court. As
the Supreme Court said in addressing the continued validity of precedents:

We do not acknowledge, and we do not hold, that other
courts should conclude our more recent cases have, by
implication, overruled an earlier precedent. We reaffirm
that “if a precedent of this Court has direct application in a
case, yet appears to rest on reasons rejected in some other
line of decisions, the Court of Appeals should follow the
case which directly controls, leaving to this Court the
prerogative of overruling its own decisions.”

Agostini v. Felton, 521 U.S. 203, 237 (1997) (quoting Rodriguez de Quijas v.
Shearson/American Express, Inc., 490 U.S. 477, 484 (1989)). Following this
principle, our superior court concluded that Crawford did not by implication overrule
Maryland v. Craig, 497 U.S. 836 (2004). United States v. Pack, MJ , 2007

16
DIAMOND – ARMY 20010761

CAAF LEXIS 1656 (C.A.A.F. 12 Dec. 2007). Likewise, we find no implication the
Supreme Court intended to overrule its decisions in Bourjaily, Inadi, and Dutton. To
the contrary, after the Supreme Court “overruled Roberts in Crawford by restoring
the unavailability and cross-examination requirements,” the Court continued citing
the Bourjaily and Dutton decisions with approval. Davis, 547 U.S. at , 126 S. Ct.
at 2275.

Consequently, some federal circuit courts addressing this issue post Crawford
have concluded that co-conspirator statements admitted pursuant to Federal Rule of
Evidence 801(d)(2)(E), a rule which mirrors our corresponding Mil. R. Evid., are
“generally [nontestimonial] and, therefore, do not violate the Confrontation Clause as
interpreted by the Supreme Court.” United States v. Singh, 494 F.3d 653, 658 (8th
Cir. 2007). As the Tenth Circuit aptly reasoned:

Although the Supreme Court declined to precisely define
“testimonial,” the Court explicitly noted that, historically,
“statements in furtherance of a conspiracy” present an
“example” of “statements that by their nature [a]re not
testimonial.” Moreover, the Court in Crawford cited
Bourjaily with approval as one of several recent cases that
“hew closely to the traditional line.” . . . Because
Crawford did not overturn Bourjaily, the latter continues
to control our application of the Confrontation Clause to
Rule 801 co-conspirator statements.

United States v. Ramirez, 479 F.3d 1229, 1249 (10th Cir. 2007) (internal citations and
footnote omitted).

Similarly, the Seventh Circuit succinctly stated, “[a]s to the Confrontation
Clause argument, Crawford does not apply. The recordings featured the statements of
co-conspirators. These statements, by definition, are not hearsay. Crawford did not
change the rules as to the admissibility of co-conspirator statements.” United States
v. Jenkins, 419 F.3d 614, 618 (7th Cir. 2005), remanded on other grounds, 2005 U.S.
App. LEXIS 21558 (7th Cir. Ill. Sept. 30, 2005), cert. denied Coleman v. United
States, 546 U.S. 1051 (2005).

Analysis

The Military Rules of Evidence, like the Federal Rules of Evidence, also place
co-conspirators’ statements in the category of nonhearsay. Mil. R. Evid.
801(d)(2)(E) (stating “a statement by a co-conspirator of a party during the course
and in furtherance of the conspiracy” is not hearsay). As with the corresponding
Federal Rule of Evidence, the majority of co-conspirator statements admitted

17
DIAMOND – ARMY 20010761

pursuant to Mil. R. Evid. 801(d)(2)(E) are inherently nontestimonial because the
primary purpose for making the statement is not for later use in trial. See United
States v. Mooneyham, 473 F.3d 280, 286 (6th Cir. 2007) (applying Crawford to co-
conspirator statements). Similarly in appellant’s case, the military judge admitted
the statements of Dr. Theer at issue as “non-hearsay” co-conspirator statements or as
other “non-hearsay.” Because we find that Crawford does not apply to
co-conspirator statements we find the admission of these statements did not violate
the Sixth Amendment’s Confrontation Clause.

Although our superior court has not addressed the specific question before us,
its decision in Pack supports our interpretation of Crawford. The court addressed
whether allowing a child witness to testify via closed circuit television violated the
Confrontation Clause. The court distinguished Crawford, in part, on grounds that
Crawford pertained only to testimonial hearsay and did not address nonhearsay in the
form of video testimony. The court said: “It is important to recognize that Crawford
did not hold that face-to-face confrontation is required in every case. Rather it held
that the Confrontation Clause required cross-examination and unavailability before
testimonial hearsay could be admitted into evidence.” Pack, MJ at , 2007
CAAF LEXIS 1656, slip op. at 10 (citing Crawford, 541 U.S. at 69) (emphasis
added).

UNCHARGED MISCONDUCT AND THE CONSPIRACY

Appellate defense counsel further contend, however, consistent with
appellant’s defense counsel’s argument at trial, that even under the co-conspirator
analysis Dr. Theer’s statements should not have been admitted under Mil. R. Evid.
801(d)(2)(E) because they were not in furtherance of the “charged” conspiracy to
commit the premeditated murder of Capt. Theer. Rather, they argue the government
was attempting to present evidence involving an uncharged conspiracy to obstruct
justice. Therefore, our analysis does not end here. We must address the application
of Mil. R. Evid. 404(b) to the conspiracy involved in this case.

Additional Facts

In addressing an objection to the admission of Dr. Theer’s statements at trial,
the military judge asked civilian defense counsel, “Doesn’t [Mil. R. Evid.] 404(b),
though, permit the government to bring out uncharged misconduct with a proper
instruction to the members on how to deal with it?” Civilian defense counsel
responded:

There is some substantial question as to whether or not the
government can bring out uncharged misconduct with
respect to the misconduct that is a part of the charge itself

18
DIAMOND – ARMY 20010761

because ordinarily that uncharged misconduct relates to
some prior or subsequent misconduct that is indicative of
modus operendi, that is indicative of plan. In this case
what the government is attempting to do is to allege at trial
two separate conspiracies and to, in effect, ask the panel to
convict on one conspiracy by proving the existence of
another.

The government, however, argued that it was the co-conspirators’ “preplan”
for Dr. Theer to “misinform” the police and “the conspiracy didn’t end with just the
shooting, the conspiracy continued on through the cover up . . . until the point where
[Dr. Theer] started refusing to talk to police . . . [at] the end of January.” The
military judge stated:

[T]he judge has to find when this conspiracy ended, when
the object of the conspiracy ended, and if I find the object
of the conspiracy ended at the time of the murder, then
that’s one thing, if I find that the actual object of the
conspiracy was to commit the murder, hide it for a certain
reason, then the complicity after the murder would still be
in furtherance of the conspiracy. And that’s all going to
depend on what the evidence is.

Later in the trial during SSG Donald’s testimony about the message he
received from Dr. Theer regarding the 9mm pistol, the following discussion ensued:

TC: Your honor, this is going to go to the alleged but
uncharged conspiracy to obstruct justice.

MJ: This will basically be evidence in furtherance of
showing a conspiracy that will lay the ground work of
whether or not other statements should come in?

TC: Well, these statements right here are just the
conspiracy to obstruct justice.

....

MJ: And so you want me to consider this when I
determine whether or not that both the conspiracy to
commit murder and the conspiracy to obstruct justice
existed in order for you to have the members hear the
statements by [Dr.] Theer?

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DIAMOND – ARMY 20010761

TC: Correct, sir.

CDC: I have no objection to that basis.

MJ: Well, I will consider it for that purpose.

ATC: Sir, it’s also appropriate because . . . the acts of
people sort of getting together after an event . . . can be
use[d] . . . as substantive evidence proved with the
conspiracy.

MJ: You have not charged [SSG Diamond] with
conspiracy to obstruct justice.

ATC: No, sir, but . . . the post acts can be used as
evidence in a conspiracy of murder. The people who
conspire sometimes get together months later and do things
to cover it up and that is admissible evidence to prove the
conspiracy of murder. . . .

Prior to the final ruling on admissibility of Dr. Theer’s statements as those of
a co-conspirator statement, trial counsel further argued appellant and Dr. Theer
engaged in a “preplan concealment plan and that part of the plan [was] for
[appellant] to defeat the [GSR] test which he did by shooting the next day. The other
part — his part of this preplan was to establish an alibi which he did.” According to
the government theory, the conspiracy started in September 2000, “when the plan to
move out of the country was established” and ended when Dr. Theer “told police she
no longer wanted to talk to them . . . near the end of January” 2001. The government
argued that Dr. Theer and appellant conspired to “obtain the profit they could gain
from killing [Capt.] Theer” — the $500,000.00 of insurance money.

After extensive findings of fact, the military judge found by a preponderance
of the evidence:

[A] conspiracy existed between [Dr.] Theer and [appellant]
to murder [Capt.] Theer which started in September of
2000 and a conspiracy to hide their complicity in any
involvement in that murder which continued [until] the
beginning of this trial . . . these statement were made while
a conspiracy existed while the accused remained a part of
that conspiracy in furtherance of that conspiracy.

20
DIAMOND – ARMY 20010761

In making this ruling and to determine the existence of a conspiracy, the military
judge, with defense counsel’s concurrence, throughout the trial, heard and considered
evidence which did not come before the panel.

Law
A. Standard of Review

We review a “‘military judge’s decision to admit or exclude evidence . . .
under an abuse of discretion standard.’” United States v. Barnett, 63 M.J. 388, 394
(C.A.A.F. 2006) (quoting United States v. McDonald, 59 M.J. 426, 430 (C.A.A.F.
2004)). When reviewing a mixed question of fact and law, such as the military
judge’s ruling on the admissibility of Dr. Theer’s statements, “a military judge
abuses his discretion if his findings of fact are clearly erroneous or his conclusions
of law are incorrect.” United States v. Ayala, 43 M.J. 296, 298 (C.A.A.F. 1995). We
apply a clearly-erroneous standard when reviewing a military judge’s findings of
fact, and a de novo standard when reviewing his conclusions of law. United States v.
Rodriguez, 60 M.J. 239, 246 (C.A.A.F. 2004) (citing Ayala, 43 M.J. at 298).

When a military judge abuses his discretion, this court must test the erroneous
evidentiary ruling for prejudice, and may affirm the findings of guilty if the error
was harmless, i.e., did not materially prejudice appellant’s substantial rights.
Barnett, 63 M.J. at 397 (citing UCMJ art. 59(a)). Prejudice is determined “‘by
weighing (1) the strength of the [g]overnment’s case, (2) the strength of the defense
case, (3) the materiality of the evidence in question, and (4) the quality of the
evidence in question.’” Id. (quoting United States v. Kerr, 51 M.J. 401, 405
(C.A.A.F. 1999), and citing United States v. Weeks, 20 M.J. 22, 25 (C.M.A. 1985)).

B. Uncharged Misconduct

Military Rule of Evidence 404(b) provides for limited admissibility of
evidence of “other crimes, wrongs, or acts” to show “motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.” Such
evidence, however, may not be used to prove an accused’s character and to argue he
acted “in conformity therewith.” Id. Our superior court “has consistently held that
Mil. R. Evid. 404(b) is a ‘rule of inclusion.’” United States v. Young, 55 M.J. 193,
196 (C.A.A.F. 2001). “The test for admissibility of evidence of uncharged crimes is
‘whether the evidence of the misconduct is offered for some purpose other than to
demonstrate the accused’s predisposition to crime[.]’” Id. (quoting United States v.
Taylor, 53 M.J. 195, 199 (C.A.A.F. 2000)).

In Reynolds, 29 M.J. at 109, our superior court further established a three-
prong test to determine whether uncharged misconduct may be admitted under

21
DIAMOND – ARMY 20010761

Mil. R. Evid. 404(b). To be admissible, the uncharged misconduct at issue must
fulfill each of the following three prongs:

1. Does the evidence reasonably support a finding by the
court members that appellant committed prior crimes,
wrongs or acts?

2. What fact . . . of consequence is made more or less
probable by the existence of this evidence?

3. Is the probative value . . . substantially outweighed by
the danger of unfair prejudice?

Id. (alterations in original) (internal quotations and citations omitted). Prongs one
and two test for logical relevance, while prong three tests for legal relevance.
Barnett, 63 M.J. at 394. “The third prong of the Reynolds test requires application of
the balancing test under Mil. R. Evid. 403. A military judge enjoys wide discretion
under Mil. R. Evid. 403. Where the military judge properly weighs the evidence
under Mil. R. Evid. 403 and articulates the reasons for admitting the evidence, we
will reverse only for a clear abuse of discretion.” Young, 55 M.J. at 196 (internal
citations omitted). The Reynolds test applies to evidence of a crime, wrong, or act
that precedes the charged offense as well as one that occurs after. Id.

C. Conspiracy

Article 81, UCMJ, provides that “[a]ny person subject to this chapter who
conspires with any other person to commit an offense under this chapter shall, if one
or more of the conspirators does an act to effect the object of the conspiracy, be
punished as a court-martial may direct.” The elements of this offense are as follows:

(1) That the accused entered into an agreement with one or
more persons to commit an offense under the code; and

(2) That, while the agreement continued to exist, and while
the accused remained a party to the agreement, the accused
or at least one of the co-conspirators performed an overt
act for the purpose of bringing about the object of the
conspiracy.

22
DIAMOND – ARMY 20010761

Manual for Courts-Martial, United States (2005 ed.) [hereinafter MCM], Part IV,
para. 5. 8

“It is well settled that a conspiracy ends when the objectives thereof are
accomplished, if not earlier by abandonment of the aims or when any of the members
of the joint enterprise withdraw therefrom.” United States v. Hooper, 4 M.J. 830,
836 (A.F.C.M.R. 1978) (citing United States v. Beverly, 14 U.S.C.M.A. 468, 34
C.M.R. 248 (1964); United States v. Salisbury, 14 U.S.C.M.A. 171, 33 C.M.R. 383
(1963); United States v. Miasel, 8 U.S.C.M.A. 374, 24 C.M.R. 18 (1957)). The
Supreme Court further explained:

[T]he duration of a conspiracy [cannot] be indefinitely
lengthened merely because the conspiracy is kept a secret,
and merely because the conspirators take steps to bury
their traces, in order to avoid detection and punishment
after the central criminal purpose has been accomplished.
By no means does this mean that acts of concealment can
never have significance in furthering a criminal
conspiracy. But a vital distinction must be made between
acts of concealment done in furtherance of the main
criminal objectives of the conspiracy, and acts of
concealment done after these central objectives have been
attained, for the purpose only of covering up after the
crime. . . . Kidnappers in hiding, waiting for ransom,
commit acts of concealment in furtherance of the
objectives of the conspiracy itself, just as repainting a
stolen car would be in furtherance of a conspiracy to steal;
in both cases the successful accomplishment of the crime
necessitates concealment.

Grunewald v. United States, 353 U.S. 391, 405 (1957).

Moreover,

When the activities of alleged co[-]conspirators are
interdependent or mutually supportive of a common or
single goal, a single conspiracy will be inferred. Thus, if
the agreement contemplates the bringing to pass of a

8
These provisions are identical to the provision in the 2000 MCM in effect at
appellant’s trial.

23
DIAMOND – ARMY 20010761

continuous result that will not continue without the
continuous cooperation of the conspirators to keep it up,
and there is such continuous cooperation, there is a single
conspiracy rather than a series of distinct conspiracies.

16 A M . J UR . 2d Conspiracy § 11 (2006) (footnotes omitted).

As the Supreme Court explained sometime ago, “the character and effect of a
conspiracy [are] not to be judged by dismembering it and viewing its separate parts,
but only by looking at it as a whole.” United States v. Patten, 226 U.S. 525, 544
(1913). “[T]he precise nature and extent of the conspiracy must be determined by
reference to the agreement which embraces and defines its objects.” United States v.
Braverman, 317 U.S. 49, 53 (1942), cited with approval in United States v. Broce,
488 U.S. 563, 570 (1989). “As such, it is ordinarily the agreement that forms the
unit of prosecution for conspiracy, ‘even if it contemplates the commission of several
offenses.’” United States v. Finlaysen, 58 M.J. 824, 826 (Army Ct. Crim. App. 2000)
(quoting R OLLIN M. P ERKINS & R ONALD N. B OYCE , C RIMINAL L AW 683 (3rd ed.
1982) (citing Braverman, 317 U.S. at 53)). See also United States v. Pereira,
53 M.J. 183, 184 (C.A.A.F. 2000) (finding single conspiracy to commit murder,
robbery, and kidnapping).

Courts will view the totality of circumstances (i.e., a common goal, the nature
of the scheme, overlapping participants in various dealings) to determine whether a
single or multiple conspiracy exists. Finlaysen, 58 M.J. at 827 (citing 16 A M . J UR .
2d Conspiracy § 11 (2002)). Additionally, as our court has stated, in making
charging decisions regarding conspiracy, “justice is not served by a charging
decision that knowingly exaggerates appellant’s criminality or unreasonably
increases his punitive exposure.” Id. at 828. Moreover, “it is a perversion of natural
thought and of natural language to call such continuous cooperation a
cinematographic series of distinct conspiracies, rather than to call it a single one.”
United States v. Kissel, 218 U.S. 601, 607 (1910).

D. Admissibility of Co-Conspirator Statements

Military Rule of Evidence Rule 801(d)(2)(E) indicates, with emphasis added,
that “a statement by a co-conspirator of a party during the course and in furtherance
of the conspiracy” is not hearsay. In Bourjaily, 483 U.S. at 171, the Supreme Court
held that a court in its preliminary hearing must not only consider the statements
sought to be admitted, but must also make factual determinations under Federal Rule
of Evidence 801(d)(2)(E) as to whether the proponent of such evidence has proved by
a preponderance of the evidence (1) existence of a conspiracy involving the declarant
and the nonoffering party and (2) that the statement was made during and in
furtherance of the conspiracy. Military Rule of Evidence 801(d)(2)(E) further

24
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codifies the Bourjaily decision by directing that “the contents of the statement shall
be considered but are not alone sufficient to establish . . . the existence of the
conspiracy and the participation therein of the declarant and the party against whom
the statement is offered . . . .” Our court cannot overturn a military judge’s finding
that a statement was in furtherance of a conspiracy unless it was clearly erroneous.
United States v. James, 1998 CCA LEXIS 78 (A.F. Ct. Crim. App. 27 Jan.1998)
(unpub.) (citing United States v. Rahme, 813 F.2d 31, 36 (2d Cir. 1987); United
States v. Deluna, 763 F.2d 897, 909 (8th Cir. 1984), cert. denied, Thomas v. United
States, 474 U.S. 980 (1985)).

The key prerequisite then for admissibility of co-conspirator statements is
whether the co-conspirator made the statement “in furtherance of the conspiracy
charged” rather than “in furtherance of an alleged implied but uncharged conspiracy
aimed at preventing detection and punishment.” Krulewitch v. United States,
336 U.S. 440, 444 (1949). Courts have found co-conspirator confessions made
before arrest as “in furtherance of” and post-arrest confessions not “in furtherance
of.” 44 A M . C RIM . L. 523, 547-48 (2007). 9 Federal courts have also held co-
conspirator statements admissible under the Rules of Evidence “even if the defendant
is not charged with the conspiracy” when the conspiracy is “closely related or
‘factually intertwined’ with the crime for which the defendant is charged.” Id. at
546-47. 10

9
Citing United States v. Brooks, 82 F.3d 50, 53-54 (2d Cir. 1996) (admitting
statements made to undercover officer prior to arrest); United States v. Segura-
Gallegos, 41 F.3d 1266, 1272 (9th Cir. 1994) (holding statements made to
undercover police officer not hearsay because statements were “in furtherance” of
conspiracy); Fiswick v. United States, 329 U.S. 211, 217 (1946) (finding post-arrest
admission or confession is not in furtherance of conspiracy); United States v.
Lombard, 72 F.3d 170, 189 (1st Cir. 1995) (holding arrest terminates conspiracy, but
allowing declaration based on other grounds); United States v. Alonzo, 991 F.2d
1422, 1425 (8th Cir. 1993) (stating confessions are not in furtherance of conspiracy).
10
Citing United States v. Mahasin, 362 F.3d 1071, 1084 (8th Cir. 2004) (stating that
it is “not necessary for the declarant to have been formally charged as a
co-conspirator or even be identified, so long as the statement in question was itself
sufficiently reliable in demonstrating the applicability of Rule 801(d)(2)(E).”);
United States v. Skidmore, 254 F.3d 635, 638 (7th Cir. 2001) (stating government
need not charge conspiracy in order for co-conspirator statement to be admitted);
United States v. Ellis, 156 F.3d 493, 497 (3d Cir. 1998) (stating out-of-court
statements may be admissible even if defendant is not formally charged with
conspiracy); United States v. Asibor, 109 F.3d 1023, 1034 (5th Cir. 1997) (allowing

(continued . . .)
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[A] statement made by one conspirator during the life of
the conspiracy, and in pursuance of it, may be accepted in
evidence against all. . . .

Federal authorities are legion which hold that statements
made by a conspirator, once the common enterprise has
reached its end, are inadmissible against co[-]conspirators.
. . . However, not infrequently the commission of a
criminal offense is followed immediately by an active
attempt to conceal it. Thus, a rule has arisen to the effect
that the declarations of a co[-]conspirator are admissible
against a co[-]conspirator not only when they are made
during the perpetration of the offense, but also when
expressed during the course of a subsequent attempt to
conceal the crime and relating to it.

United States v. Taylor, 6 U.S.C.M.A. 289, 293, 20 C.M.R. 5, 9 (C.M.A. 1955)
(citing W HARTON , C RIMINAL E VIDENCE , 11th ed. § 715). Moreover,

[W]hen a concealment is shown to be in furtherance of the
conspiracy, [co-conspirator] statements are admissible in
evidence. Id. at 294; 20 C.M.R. at 11. “[W]hether
attempts to conceal a conspiracy are in furtherance of the
ongoing conspiracy depends on the facts of each case . . . .
In conspiracies where a main objective has not been
attained or abandoned and concealment is essential to
success of that objective, attempts to conceal the
conspiracy are made in furtherance of the conspiracy.”

United States v. Howard, 770 F.2d. 57, 61 (6th Cir. 1985).

(. . . continued)
evidence of uncharged offenses because they arise out of the same transactions as the
offenses charged); Ellis, 156 F.3d at 498 (applying “factually intertwined” test to
determine relevance of 801(d)(2)(E) evidence); United States v. Grossman, 843 R2d
78, 83 (2d Cir. 1988) (stating conspiracy must be “factually intertwined” with
offense charged).

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Analysis

To understand appellate defense counsel’s somewhat convoluted argument, we
must read Assignment of Error (AE) II in conjunction with AE V. Appellant asserts
in AE II, “the military judge committed plain error when he failed to give
appropriately tailored uncharged misconduct instructions relative to the inordinate
amount of evidence admitted pertaining to the uncharged conspiracy issues.”
Appellate defense counsel claim the “uncharged misconduct” is the “uncharged
conspiracy” to obstruct justice by lying to law enforcement. Additionally, appellate
defense counsel’s brief, with emphasis added, explains: “The issue here in this Point
is not whether the Military Judge erred in admitting this evidence . . . but whether
once he made the decision to admit it, such mandated an appropriate limiting
instruction.”

However, in AE V their brief asserts: “The military judge committed plain
error of a [C]onstitutional magnitude when he admitted various ‘hearsay’ statements
of [Dr.] Theer under [Mil. R. Evid.] 801(d)(2)(E) . . . as statements of a co-
conspirator . . . .” In that portion of their brief appellate defense counsel explain that
appellant was only charged with conspiring on or about “17 [December] 2000 with
Dr. Theer to murder Capt[.] Frank Theer with premeditation,” but the military judge
allowed the government to present “irrelevant” evidence regarding “uncharged
conspiracy B” with Dr. Theer “after 17 [December] 2000 . . . to obstruct justice by
wrongfully disposing of [a] 9mm pistol” and “uncharged conspiracy C” with
Dr. Theer “after 17 [December] 2000 . . . to ‘cover up’ the ‘conspiracy to murder’
Capt[.] Theer.” They further assert: “It was simply a tactical ruse to get a boatload
of otherwise inadmissible hearsay before the members and as predicted by the
Defense, the Government would ‘prove’ the uncharged conspiracies and then claim
that such proved the charged conspiracy.”

We find appellant’s argument regarding the instructions does not merit
discussion, 11 but we will review the admissibility of the co-conspirator’s statements
as they relate to “uncharged misconduct.” Although some of Dr. Theer’s statements
may have also concerned efforts to cover up the murder, we cannot conclude these
statements related only to uncharged misconduct. On the contrary, we find all of the
admitted statements were relevant to prove the charged conspiracy to commit the
premeditated murder of Dr. Theer’s husband. Every criminal conspiracy has goals or
objectives. In this case, the government’s theory, supported by the evidence, was
that the main objectives of the conspiracy to murder Dr. Theer’s husband were to
allow appellant and Dr. Theer to be together and allow them to enjoy the life

11
See footnote 2, supra.

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insurance proceeds. During their trip to Saba Island months prior to the murder, the
two held themselves out as fiancées intending to marry and set up a life on the island
for several years. Doctor Theer and appellant could not have achieved these goals
unless they successfully hid their criminal involvement. Accordingly, to show
motive, intent, and plan, the government was permitted to introduce evidence of
“acts of concealment done in furtherance of [these] main criminal objectives.”
Grunewald, 353 U.S. at 391.

The result might be different if the facts of this case were changed. For
example, if appellant had been charged only with an unlawful accidental killing, then
evidence of an “uncharged conspiracy aimed at preventing detection and punishment”
of this crime would not be admissible under Mil. R. Evid. 801(d)(2)(e). Krulewitch,
336 U.S. at 444. The result might also be different if appellant had been charged
with conspiring with Dr. Theer to commit murder, but the apparent motivation was
only spite and revenge, then “acts of concealments done after these central objectives
had been attained” also would not be admissible. Grunewald, 353 U.S. at 405. The
actual case, however, does not resemble these hypothetical examples. On the
contrary, Dr. Theer’s statements were relevant to the goals and objectives of the
conspiracy to kill her husband.

Additionally, for a separate reason, “[w]e hold that the military judge did not
abuse his discretion . . . because the uncharged misconduct was admissible for a
separate limited purpose, to show the subject matter and context of a conversation
. . . .” Young, 55 M.J. at 196. The probative value of this evidence (to provide the
context for appellant’s obstruction of justice charge) substantially outweighed the
danger of unfair prejudice. See id. (Sullivan, J. concurring in part and in the result
and dissenting in part).

Moreover, as discussed in our analysis of the Confrontation Clause, even if the
military judge erred in admitting Dr. Theer’s statements, these statements were
cumulative or not required. Other evidence properly before the court independently
established either the same points or separate facts sufficient to prove the required
elements of the offenses.

We agree with appellant’s defense counsel’s assessment at trial that “[i]f this
conspiracy was planned and executed as the prosecution says that it was, [12] it was
badly conceived, incompetently executed and any attempts to hide it and cover it up
were done stupidly.” Nevertheless, we easily conclude that if the military judge did

12
Our review indicates strong evidence that it was planned and executed as the
prosecution asserted.

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erroneously admit Dr. Theer’s co-conspirator statements those declarations were not
“the weight that tipped the scales against” appellant. Krulewitch, 336 U.S. at 445.
Error, if any, was harmless beyond a reasonable doubt.

CONCLUSION

We have considered appellant’s other assignment of error, and those matters
personally raised by appellant pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982), and find them to be without merit.

Accordingly, the findings of guilty and the sentence are affirmed.

Senior Judge HOLDEN and Judge WALBURN concur.

FOR
FOR THE
THE COURT:
COURT:

MALCOLM H.
MALCOLM H. SQUIRES,
SQUIRES, JR.
JR.
Clerk of
Clerk of Court
Court

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