UNITED STATES, Appellee
v.
Stanley O. OTHURU, Storekeeper Second Class
U.S. Navy, Appellant
No. 06-0768
Crim. App. No. 200301631
United States Court of Appeals for the Armed Forces
Argued October 16, 2007
Decided December 12, 2007
ERDMANN, J., delivered the opinion of the court, in which
EFFRON, C.J., and BAKER, STUCKY, and RYAN, JJ., joined.
Counsel
For Appellant: Lieutenant W. Scott Stoebner, JAGC, USN
(argued); Lieutenant Stephen Reyes, JAGC, USN.
For Appellee: Lieutenant Commander Jordan A. Thomas, JAGC, USN
(argued); Commander P. C. LeBlanc, JAGC, USN, and Captain Roger
E. Mattioli, USMC (on brief); Lieutenant Craig A. Poulson, JAGC,
USN.
Military Judge: Bruce W. MacKenzie
This opinion is subject to revision before final publication.
United States v. Othuru, No. 06-0768/NA
Judge ERDMANN delivered the opinion of the court.
Storekeeper Second Class Stanley Othuru was convicted at a
general court-martial of making a false official statement and
theft of government property as a consequence of his fraudulent
collection of basic allowance for housing (BAH) as a married
servicemember while he was not legally married. He was
sentenced to sixty days of confinement, reduction to E-3, and a
fine of $34,000.00. If the fine was not paid, the sentence had
a provision for contingent confinement of one year. The
convening authority approved the sentence and the United States
Navy-Marine Corps Court of Criminal Appeals affirmed the
findings and sentence. United States v. Othuru, No. NMCCA
200301631, 2006 CCA LEXIS 139, 2006 WL 1663021 (N-M. Ct. Crim.
App. June 13, 2006). We granted Othuru’s petition for grant of
review and specified an additional issue.1
1
We granted review of the following issue:
WHETHER THE ADMISSION OF TWO SWORN OUT-OF-COURT
STATEMENTS FROM APPELLANT’S MOTHER AND WIFE WHO
ACCUSED APPELLANT OF ENTERING INTO A FRAUDULENT
MARRIAGE IS HARMLESS BEYOND A REASONABLE DOUBT IN A
COURT-MARTIAL WHERE APPELLANT WAS CONVICTED FOR
FRAUDULENTLY COLLECTING BASIC ALLOWANCE FOR HOUSING
(BAH) BY ENTERING INTO A FRAUDULENT MARRIAGE.
We specified review of the following issue:
WHETHER APPELLANT WAS DENIED DUE PROCESS OF LAW WHERE
THE LOWER COURT DECIDED APPELLANT’S CASE 1,298 DAYS
AFTER HIS COURT-MARTIAL.
64 M.J. 440 (C.A.A.F. 2007).
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Othuru asserts that he was prejudiced by the erroneous
admission of two testimonial hearsay statements which alleged
that his wife was actually his biological sister. See Crawford
v. Washington, 541 U.S. 36 (2004). He claims that the
Government cannot meet its burden of showing the error was
harmless beyond a reasonable doubt. We conclude that the
erroneous admission of the hearsay statements was harmless
beyond a reasonable doubt. There was also a delay of 1,298 days
between the end of Othuru’s trial and the date upon which the
Navy-Marine Corps Court of Criminal Appeals rendered a decision.
This delay raises an issue as to whether there was a denial of
Othuru’s due process right to speedy post-trial review. Diaz v.
The Judge Advocate General of the Navy, 59 M.J. 34, 37-38
(C.A.A.F. 2003). We conclude that there was no denial of due
process in the processing of Othuru’s appeal and therefore
affirm the United States Navy-Marine Corps Court of Criminal
Appeals.
Harmless Beyond a Reasonable Doubt
Background
Othuru is a native of Nigeria who immigrated to the United
States and joined the United States Navy. He subsequently
became a citizen and applied for visas to have his parents and
wife come to the United States. During the processing and
review of those visa applications in Nigeria, a suspicion arose
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United States v. Othuru, No. 06-0768/NA
that Othuru’s alleged wife, Michelle, was actually his
biological sister. Under Nigerian law, a marriage to a blood
sibling is null and void. The United States Consulate initiated
an investigation and the matter was referred to a fraud
investigator.
The investigator interviewed Michelle and Othuru’s mother.
Both women made oral and written statements to the investigator
admitting that Michelle was Othuru’s biological sister.
Othuru’s mother stated, “Michelle is our daughter and Stanley is
our son and she is our last daughter and we are very sorry of
what happened and sending such application.” Michelle wrote, “I
wish to confess that the petitioner Stanley Oghale Othuru is my
older brother and the first child of the family. This marriage
is not valid. I am very sorry.”
At the trial the military judge admitted the two hearsay
statements over defense counsel’s objections. The statements
were used by the Government to support charges that Othuru made
an official false statement and had engaged in BAH fraud by
claiming he was legally married to Michelle. The military judge
concluded that Othuru’s mother and Michelle were unavailable as
witnesses and that the statements had particularized guarantees
of trustworthiness. The statements were admitted as statements
against interest under Military Rule of Evidence (M.R.E.)
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United States v. Othuru, No. 06-0768/NA
804(b)(3) or as family history under M.R.E. 804(b)(4). Neither
Michelle nor Othuru’s mother testified at the trial.
On appeal to the Navy-Marine Corps Court of Criminal
Appeals, Othuru argued that the admission of the statements
violated his Sixth Amendment right to confrontation. That court
found the statements were testimonial under Crawford and they
were erroneously admitted.2 Othuru, 2006 CCA LEXIS 139, at *6-
*7, 2006 WL 1663021, at *2. The Navy-Marine Corps court
concluded, however, that the evidence of guilt was overwhelming
and the error was harmless beyond a reasonable doubt. Id. at
*10, 2006 WL 1663021, at *4.
Discussion
Othuru argues that the Court of Criminal Appeals erred in
determining that admission of the testimonial hearsay was
harmless beyond a reasonable doubt. Although some
constitutional errors may be so fundamental as to be prejudicial
in any event, see Chapman v. California, 386 U.S. 18, 23 n.8
(1967), not all constitutional errors require per se reversal:
2
Crawford was decided after Othuru’s court-martial. However,
neither party has appealed the ruling of the Navy-Marine Corps
Court of Criminal Appeals that the statements were testimonial
hearsay and erroneously admitted. Nor has either party argued
that the lower court’s Crawford ruling is “‘clearly erroneous
and would work a manifest injustice’” if the parties were bound
to it. United States v. Lewis, 63 M.J. 405, 412-13 (C.A.A.F.
2006) (quoting United States v. Doss, 57 M.J. 182, 185 (C.A.A.F.
2002)). Under such circumstances, we will treat the ruling as
law of the case and binding on the parties. Id. at 413.
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“[I]n the context of a particular case, certain constitutional
errors, no less than other errors, may have been ‘harmless’ in
terms of their effect on the factfinding process at trial.”
Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986) (citation
omitted). The Supreme Court has determined “that the denial of
the opportunity to cross-examine an adverse witness does not fit
within the limited category of constitutional errors that are
deemed prejudicial in every case.” Id. at 682 (citing
Harrington v. California, 395 U.S. 250, 254 (1969)). As the
error here involves Othuru’s Sixth Amendment right to cross-
examine the witnesses, we may test this Confrontation Clause
error for its effect upon the trial to determine whether the
error was harmless beyond a reasonable doubt. See id. at 684.
The Government bears the burden of establishing that a
constitutional error has no causal effect upon the findings.
United States v. Simmons, 59 M.J. 485, 489 (C.A.A.F. 2004);
United States v. Bins, 43 M.J. 79, 86 (C.A.A.F. 1995). To meet
this burden the Government must demonstrate that there is no
reasonable possibility that the presence of the two testimonial
statements contributed to the contested findings of guilty.
United States v. Kreutzer, 61 M.J. 293, 300 (C.A.A.F. 2005)
(citing Gutierrez v. McGinnis, 389 F.3d 300, 307-08 (2d Cir.
2004)).
To say that an error did not “contribute” to the
ensuing verdict is not, of course, to say that the
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United States v. Othuru, No. 06-0768/NA
jury was totally unaware of that feature of the trial
later held to have been erroneous. . . .
To say that an error did not contribute to the verdict
is, rather, to find that error unimportant in relation
to everything else the jury considered on the issue in
question, as revealed in the record.
Yates v. Evatt, 500 U.S. 391, 403 (1991), overruled on other
grounds by Estelle v. McGuire, 502 U.S. 62, 72 n.4 (1991). It
is in this light then that we will not affirm Othuru’s
conviction unless we are convinced beyond a reasonable doubt
that the “constitutional error was not a factor in obtaining
that conviction.” Kreutzer, 61 M.J. at 299. The determination
of whether an error of constitutional dimension is harmless
beyond a reasonable doubt is a question of law that we review de
novo. United States v. Cendejas, 62 M.J. 334, 337 (C.A.A.F.
2006); United States v. Hall, 56 M.J. 432, 436 (C.A.A.F. 2002).
Othuru’s defense was that Michelle was actually “Michelle
Samuel” and that she was the natural daughter of a friend of
Othuru’s father. Michelle had been selected to become Othuru’s
wife at a very young age and had been given to his parents who
raised her in their family, allegedly a common practice in
Nigeria. Othuru argues that the Government has failed to
demonstrate that there is no reasonable possibility that the two
statements in issue contributed to the findings of guilty.
Since the statements came from his mother and Michelle and
directly contradicted his only defense, he argues that they were
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United States v. Othuru, No. 06-0768/NA
the heart of the Government’s case. He notes that the trial
counsel highlighted the statements referring to them “[f]irst
and foremost” during closing arguments. Othuru also notes that
the only persons who could rebut the statements were unavailable
to testify.
The Government disputes that the statements were the focal
point of the prosecution’s case and points out that Othuru
presented a stipulation of Michelle’s expected testimony that
directly contradicted her testimonial statement. The Government
also argues that the statements were cumulative of other
testimony and evidence which established the fraudulent and
invalid nature of Othuru’s alleged marriage to Michelle.
Finally, the Government argues that the evidence of guilt was
overwhelming even in the absence of the contested statements.
To determine whether the constitutional error was harmless
beyond a reasonable doubt we consider the whole record. Van
Arsdall, 475 U.S. at 681. Reviewing this record we apply the
balancing test established by the Supreme Court:
The correct inquiry is whether, assuming that the
damaging potential of the cross-examination were fully
realized, a reviewing court might nonetheless say that
the error was harmless beyond a reasonable doubt.
Whether such an error is harmless in a particular case
depends upon a host of factors, all readily accessible
to reviewing courts. These factors include the
importance of the witness’ testimony in the
prosecution’s case, whether the testimony was
cumulative, the presence or absence of evidence
corroborating or contradicting the testimony of the
witness on material points, the extent of cross-
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United States v. Othuru, No. 06-0768/NA
examination otherwise permitted, and, of course, the
overall strength of the prosecution’s case.
Id. at 684; United States v. Williams, 40 M.J. 216, 218-19
(C.M.A. 1994) (citation omitted).
Our review of the record under the Van Arsdall criteria
convinces us that any error in admitting the statements of
Michelle and Othuru’s mother was harmless beyond a reasonable
doubt.3 Although trial counsel did reference the testimonial
statements in both his opening statement and his final argument,
the record reflects that the Government’s case did not hinge
upon those statements alone.
The Government introduced birth records through the
testimony of Surajudeen Odesanyu, the Custodian of Records in
the Lagos Island local government Birth and Death Registry. The
birth registry reflected the birth of “Michelle Othuru” on June
30, 1980, born to Othuru’s parents, and a certified copy of a
birth certificate for “Michelle Othuru” corresponds to that
registry. The Government also introduced hospital records
through the testimony of Abimbola Benson, the chief health
record officer at the Lagos University Teaching Hospital. The
hospital records reflected that Atim Othuru, Othuru’s mother,
3
Although the Court of Criminal Appeals cited the Van Arsdall
criteria, it appears to have relied upon only one criteria –-
the overall strength of the Government’s case –- in finding that
the error was harmless beyond a reasonable doubt. It is a
better practice to review and balance all of the Van Arsdall
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United States v. Othuru, No. 06-0768/NA
entered the Lagos University Teaching Hospital on June 30, 1980,
and gave birth to a female baby on that same day. Records from
two schools successively attended by Michelle reflected that
“Michelle Othuru” was enrolled as a student, and witnesses
testified that registration at both schools required a
supporting birth certificate. There was no challenge to the
validity of these documents.
In contrast, the birth certificate of “Michelle Samuel”
submitted in support of Michelle’s visa application, was shown
to be fraudulent. That birth certificate is dated April 15,
1997, and certifies that “Michelle Samuel” was born on June 30,
1980, coincidentally the same birth date of Michelle Othuru.
Mr. Paul Adigwu, a civil servant in the National Population
Commission for Nigeria, examined the exhibit and testified that
an actual birth certificate would not be a photocopy as is the
“Samuel” certificate. He also testified that an actual birth
certificate would be smaller than the “Samuel” certificate and
would have perforations along the left side. Adigwu further
stated that a photocopy of an actual birth certificate would not
have an original authentication stamp as does the “Samuel”
certificate.
Adigwu noted that he knew the official who purportedly
signed the “Samuel” birth certificate and that official had not
criteria in determining whether the error was harmless beyond a
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United States v. Othuru, No. 06-0768/NA
performed official duties as a registrar since March 24, 1997,
so he could not have signed a birth certificate dated April 15,
1997. Adigwu had compared the “Samuel” birth certificate to the
official birth registries in the local government offices and
found no entry for the birth of a child named “Michelle Samuel.”
Based on this review Adigwu testified that the “Samuel”
certificate was an invalid birth certificate.
This Government evidence demonstrates that the testimonial
hearsay from Michelle and Othuru’s mother was not a necessary
component of the Government’s case. Overall, the prosecution’s
evidence was strong. The two hearsay statements were cumulative
of the documentary evidence reflecting that Michelle was the
natural daughter of Othuru’s parents. Birth and school records
existed to show that Michelle was the daughter of Othuru’s
parents. Additionally, the absence of any birth records and the
apparently fraudulent birth certificate demonstrate there was no
“Michelle Samuel.” Adigwu’s testimony which indicated that
there was no such person as “Michelle Samuel” substantially
undermined the defense theory that “Michelle Samuel” had come to
live with the Othurus at a young age and been treated like a
daughter.
While there was no cross-examination of either Michelle or
Othuru’s mother as both had been deemed unavailable, the defense
reasonable doubt.
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United States v. Othuru, No. 06-0768/NA
did read a stipulation of the expected testimony of Michelle.
That stipulation refuted the substance of Michelle’s initial
statement to the fraud investigator and claimed that she made
the statement only after several hours of being interviewed and
under pressure. Therefore only the hearsay statement of
Othuru’s mother went unchallenged.
Othuru argues that the circumstances of his case are
similar to those of United States v. Hall, 58 M.J. 90, 95
(C.A.A.F. 2003), where we concluded that an improperly admitted
hearsay statement from Hall’s mother was not harmless beyond a
reasonable doubt. In Hall, the appellant had defended against
the positive results of a urinalysis by claiming that she drank
“Trimate” tea sent to her by her mother. Id. at 92. Hall
presented expert testimony that a positive result for cocaine
could be obtained after drinking “Trimate” tea, a tea made from
“decocainized” coca leaves. Id. Over defense objection, the
military judge permitted the trial counsel to present rebuttal
evidence through a law enforcement official that Hall’s mother
said she had never sent her daughter any tea. Id.
The military judge then instructed the members that they
could only consider the mother’s statement for its impeachment
value, and not for the truth of the matter stated. Id. at 92-
93. Before this court, the government conceded that the
military judge erred by admitting Hall’s mother’s statements for
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United States v. Othuru, No. 06-0768/NA
the purpose of impeaching Hall’s testimony. Id. at 91.
Applying the factors from Van Arsdall, Hall is distinguishable.
The testimony of Hall’s mother played a critical role in
the prosecution’s case, undermining both the factual basis for
the innocent ingestion defense and Hall’s credibility. Hall’s
mother’s statement was not cumulative, nor was there any other
evidence refuting the mother’s statement except Hall’s own
testimony, the credibility of which had been shattered by her
mother’s statement. The case against Hall was based upon a
positive urinalysis which we noted was not synonymous with
“conviction.” Id. at 94. In short, the factors balanced in
Hall stand in contrast to the overall record and factors present
in Othuru’s case.
After considering the record as a whole and balancing the
Van Arsdall factors, we conclude that the testimonial hearsay
statements from Michelle and Othuru’s mother did not contribute
to Othuru’s conviction. Any error in admitting these two
statements was harmless beyond a reasonable doubt.
Appellate Delay
Background
Othuru was sentenced on November 23, 2002. The convening
authority took action on June 20, 2003. The case was docketed
before the Navy-Marine Corps court on August 21, 2003. On
January 31, 2005, appellate defense counsel filed a brief on
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United States v. Othuru, No. 06-0768/NA
behalf of Othuru. The Government filed its answer on November
18, 2005. The lower court issued its decision in this case on
June 13, 2006 -- 1,298 days after Othuru was sentenced.
Discussion
We specified an issue to consider whether Othuru was denied
due process by the 1,298 days that elapsed between his trial and
completion of appellate review by the Navy-Marine Corps court.
We review whether Othuru was denied due process de novo using
the methodology for reviewing issues of post-trial and appellate
delay set out in United States v. Moreno, 63 M.J. 129 (C.A.A.F.
2006). We ask first whether the particular delay is facially
unreasonable. Id. at 136. If we conclude that the delay is
facially unreasonable, we then examine the four factors set
forth in Barker v. Wingo, 407 U.S. 514, 530 (1972): (1) the
length of the delay; (2) the reasons for the delay; (3) the
appellant’s assertion of the right to timely review and appeal;
and (4) prejudice. See United States v. Young, 64 M.J. 404,
408-09 (C.A.A.F. 2007); Moreno, 63 M.J. at 135-36; United States
v. Jones, 61 M.J. 80, 83 (C.A.A.F. 2005); Toohey v. United
States, 60 M.J. 100, 102 (C.A.A.F. 2004).
The delay from trial to completion of review at the Court
of Criminal Appeals was three years, six months, and twenty
days. In our view, this delay is facially unreasonable and
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United States v. Othuru, No. 06-0768/NA
therefore sufficient to trigger an analysis of the four Barker
factors. This unreasonable delay would cause the first factor
-- length of the delay -- to favor Othuru. As reason for the
delay, the Government has pointed to the length and complexity
of the record, but acknowledges that there is no reason for the
delay at the appellate level in this case. Even assuming that
this record may have been more difficult to prepare than others,
we conclude that there is no good cause for the lengthy delay
herein and that the second factor favors Othuru.
Othuru did not complain about the delay in his case until
he filed his initial brief at the Court of Criminal Appeals.
Such an assertion is not timely, and the third factor weighs
slightly against Othuru. See Moreno, 63 M.J. at 138. Finally,
we discern no basis for a finding of prejudice in this case.
Othuru has not prevailed on any other substantive issue and no
prejudice is manifest on this record. This fourth and final
factor weighs against Othuru. Balancing all these factors, we
conclude that there is no denial of Othuru’s due process right
to a timely review and appeal.
Decision
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is affirmed.
15