Opinion of the Court
Quinn, Chief Judge:We granted review to consider whether the trial judge erred to the accused’s prejudice by admitting in evidence, over defense counsel’s objection, a deposition which had been taken by the Government in anticipation that the witness would be unavailable to testify at trial.
Trial was held in the Republic of Vietnam. Subsequent to the deposition and before trial, the witness had left Vietnam to return to the United States and had been discharged from the service. There is evidence that, before trial, he was asked if he would return at Government expense to Vietnam to testify and he said he would not.
Article 49, Uniform Code of Military Justice, 10 USC § 849, authorizes both the Government and the accused to take the deposition of a witness. However, the deposition may not be read into evidence at trial, unless at least one of several enumerated conditions is shown to exist. Two conditions directly applicable to this case are: (1) That the witness is outside the boundaries of the state or territory in which the court is ordered to sit; and (2) that for “reasonable cause” the witness “is unable or refuses to appear and testify in person at the place of trial.”
During argument on his objection to the admission of the deposition, defense counsel acknowledged that a “private citizen” could not be expected “to come ... to a war zone . . . to testify at a court-martial.” If the concession is valid, it would appear that, in terms of the literal language of Article 49, the Government established a satisfactory predicate for consideration of the deposition both because the witness was outside the Republic of Vietnam and because he had “reasonable cause” to refuse to appear in person. On this appeal, however, the accused contends that evidence of mere absence from the geographical area of the court’s jurisdiction, as distinguished from evidence of the witness’ actual unavailability to testify in person, is insufficient to deny him the constitutional right to confront the witness at trial. See Barber v Page, 390 US 719, 20 L Ed 2d 255, 88 S Ct 1318 (1968); United States v Davis, 19 USCMA 217, 41 CMR 217 (1970).
Exploration of the limits and the limitations of the accused’s present contention is unnecessary. For the purpose of this appeal, we assume, without deciding, that a witness physically in the United States may be subpoenaed to attend and testify at a court-martial convened in a foreign country. See Article 47, Code, supra, 10 USC § 847; Manual for Courts-Martial, United States, 1969 (Revised edition), paragraph 115. Cf. Rule 17(e), Federal Rules of Criminal Procedure; Blackmer v United States, 284 US 421, 76 L Ed 375, 52 S Ct 252 (1932). We also assume, without deciding, that attending a trial in a combat zone presents such grave danger to a civilian witness that we can properly compare his situation to one who, because of illness or disease, would be in grave danger if compelled to attend and testify, but because the Government procured the witness’ departure from Vietnam and effected his discharge from the service before the expiration of enlistment, it is prevented from asserting the witness’ inability to attend as justification for use of his deposition. Cf. United States v Ciarletta, 7 USCMA 606, 610-611, 23 CMR 70 (1957); Reynolds v United States, 98 US 145, 158, 25 L Ed 244 (1879). Finally, we assume, without deciding, that regardless of the language of Article 49 a witness’ unwillingness to testify is not tantamount to his unavailability. United States v Barcomb, *4142 USCMA 92, 6 CMR 92 (1952); United States v Hayutin, 398 F2d 944 (CA 2d Cir) (1968), certiorari denied, 393 US 961, 21 L Ed 2d 374, 89 S Ct 400 (1968). None of these assumptions help the accused.
Defense counsel indicated in his opening argument that the “facts” of the defense case “diifer[ed] very little” from those “presented by the government.” Government evidence, independent of the deposition, established beyond all doubt, and the accused admitted, that he fired a burst from an M-16 rifle “in the direction of the victim’s house.” The deposition indicates that, because of his position, the accused “could not see the woman” who was shot by him; the accused’s testimony is to the same effect. Only one material matter in the deposition is not covered by the accused’s own testimony. The deposition witness referred to a statement he heard the accused make after the incident. The statement was made when the accused “was back in the MP jeep.” However, the entire conversation in which the statement appears was recounted, without objection by the defense, by the military policeman who had the conversation with the accused. From any standpoint, therefore, the deposition, in its essentials, contains nothing that was not expressly admitted by the accused or not compellingly and more directly established by other evidence. Thus, even assuming the deposition was erroneously admitted into evidence, there is no fair risk that anything in it influenced the court members adversely to the accused in regard to either the findings of guilty or the sentence. United States v Jester, 4 USCMA 660, 16 CMR 234 (1954); United States v O’Callahan, 16 USCMA 568, 37 CMR 188 (1967), followed in United States v Parker, 390 F2d 360 (CA 3d Cir) (1968), reversed on another ground, O’Callahan v Parker, 395 US 258, 23 L Ed 2d 291, 89 S Ct 1683 (1969).
The decision of the United States Navy Court of Military Review is affirmed.
Judge Darden concurs.