United States v. Bess

This opinion is subject to revision before publication

UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________

UNITED STATES
Appellee
v.
Pedro M. BESS Jr., Hospitalman Second Class
United States Navy, Appellant
No. 15-0372
Crim. App. No. 201300311
Argued November 17, 2015—Decided January 6, 2016
Military Judges: Colleen Glaser-Allen, Douglas P. Barber Jr.
For Appellant: Major John J. Stephens, USMC (argued).
For Appellee: Captain Matthew M. Harris, USMC (ar-
gued); Colonel Mark K. Jamison, USMC, and Major Su-
zanne M. Dempsey, USMC (on brief); Lieutenant Com-
mander Keith Lofland, JAGC, USN, and Brian K. Keller,
Esq.
Judge STUCKY delivered the opinion of the Court, in
which Chief Judge ERDMANN, Judges RYAN and
OHLSON, and Senior Judge SENTELLE joined.
_______________

Judge STUCKY delivered the opinion of the Court. 1
This case requires us to address the proper application of
Rule for Courts-Martial (R.C.M.) 921(b), which allows the
military judge, “in the exercise of discretion,” to grant a re-
quest from the court members that “the court-martial be re-
opened and … additional evidence introduced.” Here, the
military judge received a request from the members for, in-
ter alia, certain muster reports, after their deliberations had
begun. Although the muster reports were properly admissi-
ble as business records, we hold that the military judge
abused his discretion by presenting them to the court mem-
bers without giving Appellant an opportunity to challenge

1 Senior Judge David B. Sentelle, of the United States Court of
Appeals for the District of Columbia Circuit, sat by designation,
pursuant to Article 142(f), Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 942(f) (2012).
 United States v. Bess, No. 15-0372
Opinion of the Court

their reliability before the factfinder. We cannot conclude
that the error was harmless beyond a reasonable doubt, and
thus reverse.
I. Background
Before a general court-martial consisting of officer and
enlisted members, Appellant, a radiological technician at a
Navy clinic, was convicted, contrary to his pleas, of two spec-
ifications of attempting to commit indecent acts and four
specifications of committing indecent acts, in violation of Ar-
ticles 80 and 120, Uniform Code of Military Justice (UCMJ),
10 U.S.C. §§ 880, 920 (2012). In each case, the indecent act
that Appellant attempted or accomplished was convincing
female X-ray examinees to fully undress without justifica-
tion and viewing them in the nude. Appellant was acquitted
of one specification of committing indecent acts, three speci-
fications of assault consummated by a battery, and one spec-
ification of attempted vaginal penetration.
During the panel’s deliberations, the court members
submitted a question to the military judge asking whether
they could view various documents that had been mentioned
during cross-examination of Appellant and in closing argu-
ments, including the “muster reports.” During a session con-
ducted outside the presence of the members, the Govern-
ment called a witness, Ms. Wilson, to lay a foundation for
the admission of the muster reports as business records. Ms.
Wilson explained the manner in which the muster reports
were created and stored, and testified that on each report
she had written the date to which it pertained. 2 Appellant’s
counsel cross-examined Ms. Wilson and also called
Hospitalman First Class (HM1) Cedric Odom, who had
submitted two of the five muster reports, as a witness. After
this testimony and arguments from both parties, the mili-
tary judge decided that the muster reports were admissible
under the exception to the hearsay rule for records of regu-
larly conducted activity, better known as the “business rec-

2 The muster reports were electronically saved by day, month,
and year, with the date being recorded as the title of the report.
But when printed, the reports did not show the title, and were
thus essentially meaningless as printed until the custodian wrote
the corresponding date on each muster report.

2
 United States v. Bess, No. 15-0372
Opinion of the Court

ords” exception. See Military Rule of Evidence
(M.R.E.) 803(6).
Although Appellant asked to question the witnesses be-
fore the panel, the military judge denied the request and
handed the reports to the panel with no explanation, stating
only that they had “been admitted into evidence.” Shortly
thereafter, the panel found Appellant guilty of six of the
eleven charged specifications.
Appellant was sentenced to a dishonorable discharge and
confinement for two years. The convening authority ap-
proved the sentence and the United States Navy–Marine
Corps Court of Criminal Appeals affirmed. United States v.
Bess, No. NMCCA 201300311, 2014 CCA LEXIS 803, at *24,
2014 WL 5449625, at *8 (N-M. Ct. Crim. App. Oct. 28, 2014).
II. Discussion
We granted review to consider Appellant’s contention
that the military judge abused his discretion by admitting
the muster reports—in a case that turned in part on the
identity of the alleged perpetrator—without allowing him to
attack their weight before the factfinder.
During deliberations, “[m]embers may request that the
court-martial be reopened and that portions of the record be
read to them or additional evidence introduced. The military
judge may, in the exercise of discretion, grant such request.”
R.C.M. 921(b); see also United States v. Lampani, 14 M.J.
22, 25 (C.M.A. 1982) (“our precedents make clear that, even
after the court members have begun their deliberations,
they may seek additional evidence”).
We review a military judge’s decision to admit or exclude
evidence for abuse of discretion. United States v. Carter, 74
M.J. 204, 206 (C.A.A.F. 2015). This standard requires more
than just our disagreement with the military judge’s deci-
sion. United States v. Stellato, 74 M.J. 473, 480 (C.A.A.F.
2015).
Instead, an abuse of discretion occurs when [the
military judge’s] findings of fact are clearly errone-
ous, the court’s decision is influenced by an errone-
ous view of the law, or the military judge’s decision
on the issue at hand is outside the range of choices

3
 United States v. Bess, No. 15-0372
Opinion of the Court

reasonably arising from the applicable facts and
the law.
Id. (alteration in original) (citation omitted) (internal quota-
tion marks omitted).
A. The Business Records Exception
The military judge did not err in concluding that the
muster reports were admissible as business records. Ms.
Wilson, who compiled and stored the muster reports by date
on a daily basis, testified that she collected daily reports
from supervisors, which were due at 8:00 a.m. Supervisors
would submit real-time information about the physical sta-
tus of those under their supervision, and Ms. Wilson would
save the data as a daily muster report. Her testimony
demonstrates that the muster reports qualified as business
records since they were
made at or near the time … from information
transmitted by, a person with knowledge … kept in
the course of a regularly conducted business activi-
ty, and … it was the regular practice of that busi-
ness activity to make the … report … all as shown
by the testimony of the custodian.
M.R.E. 803(6).
But even if these requirements are satisfied, a document
may still fail to qualify as a business record if “the source of
the information or the method or circumstances of prepara-
tion indicate a lack of trustworthiness.” Id. The opponent of
admission bears the burden of establishing sufficient indicia
of untrustworthiness. Shelton v. Consumer Products Safety
Comm’n, 277 F.3d 998, 1010 (8th Cir. 2002). Minor errors in
a business record do not show that the business record is un-
trustworthy, but significant mistakes or internal contradic-
tions may indicate a lack of trustworthiness. See United
States v. McGill, 953 F.2d 10, 14–15 (1st Cir. 1992). Howev-
er, “courts should not focus on questions regarding the accu-
racy” of a record in making the trustworthiness determina-
tion because the factfinder is responsible for weighing and
assessing credibility of the admitted evidence. Moss v. Ole
South Real Estate, Inc., 933 F.2d 1300, 1307 (5th Cir. 1991).
Appellant contends that the muster reports were so un-
trustworthy that their admission as business records consti-
tutes an abuse of discretion. This argument fails.

4
 United States v. Bess, No. 15-0372
Opinion of the Court

Appellant cross-examined Ms. Wilson with limited effect,
pointing out that one of the reports did not list the person
submitting it and that Ms. Wilson did not directly verify the
reports’ veracity. When Appellant called HM1 Odom, he tes-
tified that he relied upon line-level supervisors to report on
who was physically present. Odom also confirmed that those
listed as “present” could have left five minutes after report-
ing for muster, and that people who were late to work,
scheduled for a later shift, or detailed elsewhere on the base
were listed as “late stay/special detail.”
Given the limited results of the cross-examination and
defense witness testimony, the military judge reasonably
concluded that nothing had been presented that demon-
strated a “lack of trustworthiness.” M.R.E. 803(6). Service
members represented as “present” had been physically veri-
fied by a line-level supervisor, and the rule requires only
that the records be created based upon “information trans-
mitted by … a person with knowledge.” Id. Although the
meaning of “late stay/special detail” could vary depending on
the context, contemporaneous documentation need not be a
model of statistical clarity to qualify as a business record.
See United States v. Foerster, 65 M.J. 120, 125 (C.A.A.F.
2007) (noting that, in analyzing the analogous federal rule,
federal courts have held that the business records exception
should be “‘construed generously in favor of admissibility’”
(quoting Conoco Inc. v. Dep’t of Energy, 99 F.3d 387, 391
(Fed. Cir. 1996))). We conclude that the military judge did
not abuse his discretion by admitting the muster reports as
business records.
B. Appellant’s Right to Present a Defense
The question of admissibility is distinct, however, from
the question of whether Appellant should have been allowed
to attack the reliability of the evidence before the factfinder.
See United States v. Yeauger, 27 M.J. 199, 202 (C.M.A. 1988)
(“Once proffered evidence meets the foundational require-
ments for any of these exceptions [to the hearsay rule], it is
admissible …. It is then for the factfinder to decide how
much, if any, weight to accord it.”), overruled on other
grounds as recognized in United States v. Moreno, 36 M.J.
107, 121 (C.M.A. 1992).

5
 United States v. Bess, No. 15-0372
Opinion of the Court

“It is undeniable that a defendant has a constitutional
right to present a defense.” United States v. Dimberio, 56
M.J. 20, 24 (C.A.A.F. 2001). “Whether rooted directly in the
Due Process Clause … or in the Compulsory Process or Con-
frontation clauses of the Sixth Amendment … the Constitu-
tion guarantees criminal defendants a meaningful oppor-
tunity to present a complete defense.” Crane v. Kentucky,
476 U.S. 683, 690 (1986) (citations omitted) (internal quota-
tion marks omitted). 3
The right to present a defense has many aspects. Under
the Compulsory Process Clause, a defendant has a “right to
call witnesses whose testimony is material and favorable to
his defense.” Rock v. Arkansas, 483 U.S. 44, 52 (1987) (cita-
tion omitted) (internal quotation marks omitted); see also
Article 46, UCMJ, 10 U.S.C. § 846 (2012); R.C.M. 703; Unit-
ed States v. Blazier, 69 M.J. 218, 225 n.6 (C.A.A.F. 2010). “A
defendant’s Sixth Amendment right to confront the witness-
es against him is violated where it is found that a trial judge
has limited cross-examination in a manner that precludes
an entire line of relevant inquiry.” United States v. Israel, 60
M.J. 485, 488 (C.A.A.F. 2005). In addition, “[t]he Constitu-
tional right of a defendant to be heard through counsel nec-
essarily includes his right to have his counsel make a proper
argument on the evidence and the applicable law in his fa-
vor.” Herring v. New York, 422 U.S. 853, 860 (1975) (citation
omitted) (internal quotation marks omitted).
“[T]he right to present relevant testimony is not without
limitation. The right may, in appropriate cases, bow to ac-
commodate other legitimate interests in the criminal trial
process.” United States v. Gaddis, 70 M.J. 248, 252 (C.A.A.F.
2011) (alteration in original) (citation omitted) (internal quo-
tation marks omitted); see also Herring, 422 U.S. at 862
(“The presiding judge must be and is given great latitude in

3 Crane refers to the Due Process Clause of the Fourteenth
Amendment. Of course, it is the Due Process Clause of the Fifth
Amendment that applies to the military justice system. Weiss v.
United States, 510 U.S. 163, 165 (1994); Middendorf v. Henry, 425
U.S. 25, 43 (1976). We see no reason why the right to present a
complete defense would be narrower under the combined protec-
tions of the Sixth and Fifth Amendments than it is under the
Sixth and Fourteenth Amendments.

6
 United States v. Bess, No. 15-0372
Opinion of the Court

controlling the duration and limiting the scope of closing
summations.”); United States v. Lampani, 14 M.J. 22, 26
(C.M.A. 1982) (a military judge has “considerable discretion”
in determining whether the admission of additional evidence
requires “reargument [or] reinstructions”). “This balance is
bounded on the one hand by the broad discretion of trial
judges and rulemakers’ broad latitude under the Constitu-
tion to establish rules excluding evidence from criminal tri-
als … and on the other by the Constitution’s guarantee of a
meaningful opportunity to present a complete defense.”
Gaddis, 70 M.J. at 252 (citations omitted) (internal quota-
tion marks omitted).
While the military judge has broad latitude to control
cross-examination, giving controverted evidence to the
factfinder with no opportunity for the accused to examine or
cross-examine witnesses or in any way to rebut that evi-
dence in front of the members is unprecedented in our legal
system, and cannot be reconciled with due process. In the
full context of this trial, we conclude that Appellant’s consti-
tutional rights were violated. Giving the muster reports to
the panel without affording Appellant an opportunity to (a)
cross-examine Ms. Wilson, (b) call HM1 Odom as a rebuttal
witness, or (c) have his counsel comment on the new evi-
dence in front of the members deprived Appellant of his con-
stitutionally protected ability to present a complete defense,
and constituted an abuse of discretion.
The relevant witnesses were available, Appellant’s evi-
dence and cross-examination were relevant to the eviden-
tiary weight the court members should afford the muster
reports, and it would have been relatively easy to allow the
parties to comment on the Government’s altered case. Fail-
ure to give Appellant these opportunities violated his consti-
tutional rights.
C. Prejudice
“For constitutional errors, the Government must per-
suade us that the error was harmless beyond a reasonable
doubt.” United States v. Hall, 56 M.J. 432, 436 (C.A.A.F.
2002); see also Mitchell v. Esparza, 540 U.S. 12, 17-18 (2003)
(“A constitutional error is harmless when it appears beyond
a reasonable doubt that the error complained of did not con-

7
 United States v. Bess, No. 15-0372
Opinion of the Court

tribute to the verdict obtained”) (citation omitted) (internal
quotation marks omitted). This is a question of law, which
we review de novo. United States v. Tearman, 72 M.J. 54, 62
(C.A.A.F. 2013).
The muster reports here were properly admitted, but
Appellant was precluded from challenging the evidentiary
weight of those records before the factfinder. Accordingly,
the question before us is whether we can conclude beyond a
reasonable doubt that the members would have reached the
same six guilty verdicts had Appellant been allowed to ques-
tion the implications of the muster reports. While the ques-
tion is a close one, we cannot conclude that the error that
occurred was harmless beyond a reasonable doubt.
This was an extensive case with eleven specifications.
The Government charged Appellant with indecent conduct
or attempted indecent conduct with respect to seven victims,
and with assault consummated by battery (touching while
nude) with respect to three of those same victims. With re-
gard to one victim—J.E.—Appellant was charged with a
third count of attempted vaginal penetration. The panel, af-
ter receiving the muster reports, quickly returned a verdict
acquitting Appellant of all assault specifications but convict-
ing him of six of the seven indecent conduct specifications. 4
The core of the Government’s case was the testimony of
the seven alleged victims, each of whom testified about a
common modus operandi by the alleged perpetrator. When
no other technicians were present, the X-ray technician
would request that the victims completely disrobe. He would
explain that the X-rays were medically required, and in the
cases of A.L., D.B. and J.E., he used a sham nudity consent
form. He would then X-ray the victims in various positions
while they were nude, instructing them between X-rays on
different physical positions they were to take.
One of the main issues that emerged at trial was wheth-
er the victims had confused Appellant, an HM2 African-
American male with no discernible accent, with HM3

4 The panel acquitted Appellant of all charges with respect to
only one victim: O.L.S.

8
 United States v. Bess, No. 15-0372
Opinion of the Court

Philogene, a thinner African-American male who spoke with
a Haitian accent.
Appellant concedes that with respect to victims A.A. and
J.E. the identity of the alleged perpetrator was not at issue.
Of the remaining four victims whose allegations resulted in
a conviction, three of the victims identified Appellant as
their X-ray technician in court, 5 two remembered his rank
and his request for them to sign a nudity consent form, 6 and
all four had X-rays taken that bore Appellant’s identifying
symbol. 7 Two recalled that the perpetrator had no discerni-
ble accent. 8
But this evidence is not enough to demonstrate harm-
lessness beyond a reasonable doubt, because challenging the
evidentiary weight of the muster reports could have shaken
the Government’s case.
The muster reports were not airtight evidence of Appel-
lant’s identity as the perpetrator. Had he been afforded his
right to put on a complete defense, as we know from the tes-
timony that the military judge heard, Appellant would have
at least been able to demonstrate that Ms. Wilson did not
physically verify the accuracy of the reports herself and that
the reports were stored in an electronic location where they
could have been subsequently altered. The testimony of
HM1 Odom would have demonstrated that even those who
submitted the reports relied upon others to provide accurate
reporting data and that each muster report was only a snap-
shot of information thus submitted at 8:00 a.m., with no
guarantee that an individual “present” at 8:00 a.m. might
not immediately leave. Odom’s excluded testimony could
have also informed the panel that “late stay/special detail”
can have various meanings, including absence from the clin-
ic. If allowed to make a renewed closing summation, Appel-
lant’s counsel would have been able to argue to the
factfinder that the muster reports should not carry much
weight.

5 Victims A.L., D.B., and P.G.
6 A.L. and D.B.
7 A.L., D.B., P.G., and B.S.
8 D.B. and B.S.

9
 United States v. Bess, No. 15-0372
Opinion of the Court

Since Appellant was precluded from pursuing these in-
quiries before the panel, we cannot discern with certainty
how effective efforts of this sort might have been. When we
add to that the timing of events at the court-martial, we are
unable to conclude that the error was harmless beyond a
reasonable doubt.
In closing argument, the defense counsel had emphasized
the Government’s failure to introduce the muster reports as
a significant weakness in its case. The members began de-
liberations at 7:55 a.m., and requested the muster reports
and a number of other documents approximately an hour
later. They were told at 9:35 a.m. that the parties were
“working on” the muster reports, but that the other docu-
ments they requested were “not admissible under the rules.”
Three hours and forty-one minutes later, at 1:16 p.m., the
muster reports were handed to the panel without comment,
and over objection. They announced their findings at 1:49
p.m., only a half hour after receiving them and nearly six
hours after deliberations began.
Clearly, the members were affected by defense counsel’s
argument, since they then requested the muster reports to
see what was in them. While the Government argues that its
evidence was overwhelming, this is not the case. The mem-
bers asked for a substantial amount of additional evidence
after an hour’s deliberation (although they only received the
muster reports), and eventually acquitted Appellant of five
of the eleven specifications. Given the interest which the re-
ports clearly provoked among the members, and the timing
of the verdict, we simply cannot say that that the error did
not contribute to the verdict beyond a reasonable doubt. 9
D. Conclusion
Admitting evidence without allowing the parties to dis-
pute the reliability of that evidence before the factfinder
cannot be reconciled with Fifth Amendment due process, or
the protections of the Sixth Amendment. On these facts, we

9 As the Supreme Court directs, we look not at some hypothet-
ical reasonable panel, but at “whether the guilty verdict actually
rendered in this trial was surely unattributable to the error.” Sul-
livan v. Louisiana, 508 U.S. 275, 279 (1993) (emphasis in origi-
nal); see Chapman v. California, 386 U.S. 18, 24 (1967).

10
 United States v. Bess, No. 15-0372
Opinion of the Court

cannot conclude that the denial of Appellant’s right to pre-
sent a complete defense was harmless beyond a reasonable
doubt. While R.C.M. 921(b) permits a military judge to grant
the members’ request to introduce new evidence after they
have begun deliberations, this case demonstrates that the
military judge should review and weigh such requests with
great caution. Procedures should be employed to ensure that
no unfair prejudice is afforded to either party. See
M.R.E. 403.
III. Judgment
The judgment of the United States Navy–Marine Corps
Court of Criminal Appeals is reversed. The findings and sen-
tence are set aside and the record of trial is returned to the
Judge Advocate General of the Navy. A rehearing is author-
ized.

11