UNITED STATES, Appellee
v.
Bradley K. RHODES, Staff Sergeant
U.S. Air Force, Appellant
No. 04-0336
Crim. App. No. 34697
United States Court of Appeals for the Armed Forces
Argued February 25, 2005
Decided September 19, 2005
GIERKE, C.J., delivered the opinion of the Court, in which
EFFRON and BAKER, JJ., joined. CRAWFORD and ERDMANN, JJ., each
filed a separate opinion concurring in part and dissenting in
part.
Counsel
For Appellant: Major Andrew S. Williams (argued); Colonel
Carlos L. McDade, Major Terry L. McElyea, and Major James M.
Winner (on brief); Colonel Beverly B. Knott, and Major Antony B.
Kolenc.
For Appellee: Captain C. Taylor Smith (argued); Lieutenant
Colonel Gary F. Spencer, Lieutenant Colonel Robert V. Combs, and
Major John C. Johnson (on brief); Colonel LeEllen Coacher.
Military Judge: David F. Brash
This opinion is subject to revision before final publication.
Chief Judge GIERKE delivered the opinion of the Court.
INTRODUCTION
Senior Airman (SrA) John Daugherty made a confession that
implicated both himself and Appellant in drug offenses. About
five months after confessing, SrA Daugherty spoke to Appellant
and Appellant’s defense counsel, then signed an affidavit
claiming he no longer remembered Appellant’s involvement in the
offenses. He testified at Appellant’s trial and was subject to
cross-examination, but continued to claim a lack of memory.
This appeal concerns whether the admission of his confession
violated Appellant’s confrontation rights or the bar against
hearsay evidence. We hold that Appellant’s confrontation rights
were satisfied because SrA Daugherty took the stand and was
subject to cross-examination. We also hold that his confession
was properly admitted under the hearsay exception for statements
against interest. But we reverse the affected findings and the
sentence because the military judge erroneously allowed the
Government to suggest that Appellant was at fault for SrA
Daugherty’s memory loss.1
1
We heard oral argument in this case at the University of North
Dakota School of Law, Grand Forks, North Dakota, as part of the
Court’s “Project Outreach.” See United States v. Mahoney, 58
M.J. 346, 347 n.1 (C.A.A.F. 2003).
2
BACKGROUND
At his court-martial, Appellant entered mixed pleas. The
charges and specifications at issue in this appeal alleged
violations of Article 112a of the Uniform Code of Military
Justice (UCMJ)2 by using and possessing psilocyn and introducing
it onto a military base. Appellant pleaded not guilty to these
offenses.3 A general court-martial panel found Appellant guilty
of the specifications alleging use and possession. The members
found Appellant not guilty of the introduction specification.
The United States Air Force Court of Criminal Appeals affirmed
the court-martial’s results in an unpublished opinion.4 We
granted review to determine whether a Government witness’s
pretrial statement implicating Appellant was properly admitted
into evidence and whether uncharged misconduct evidence was
erroneously admitted.5
As the Air Force Court observed, “This case arose from an
investigation of drug abuse at Yokota Air Base, Japan, involving
several military members.”6 SrA Daugherty was interrogated by
the Air Force Office of Special Investigation (OSI) agent as
part of that investigation. He made a five-page handwritten
2
10 U.S.C. § 912a (2000).
3
Appellant pleaded guilty to larceny and disorderly conduct.
4
United States v. Rhodes, No. ACM 34697, 2004 CCA LEXIS 42, 2004
WL 388964 (A.F. Ct. Crim. App. Feb. 24, 2004).
5
United States v. Rhodes, 60 M.J. 378 (C.A.A.F. 2004)(order
granting review).
6
Rhodes, 2004 CCA LEXIS 42, at *2, 2004 WL 388964, at *1.
3
confession that admitted using illegal drugs, including
psilocyn, which is “a hallucinogenic contained in a particular
kind of dried mushroom that is a Schedule I controlled
substance.”7 In the confession, SrA Daugherty described buying
ten bags of “mushrooms.” He wrote that “[a] guy named Brad was
with me.” SrA Daugherty later identified “Brad” as Appellant.
The confession stated that “Brad” and his girlfriend took three
of the bags, ate about half of one bag, and kept the rest.
SrA Daugherty later testified that the following events
occurred four-and-a-half months after his confession. Appellant
approached him in SrA Daugherty’s quarters and asked SrA
Daugherty to speak with his defense counsel. SrA Daugherty
testified that when he asked why, Appellant replied that he
could not tell him. SrA Daugherty also testified that Appellant
neither suggested he should forget what happened nor asked him
to lie. Appellant gave SrA Daugherty the area defense counsel’s
telephone number. SrA Daugherty called and spoke to the area
defense counsel over the telephone. SrA Daugherty later went to
the defense counsel’s office, unaccompanied by Appellant. At
the defense counsel’s office, SrA Daugherty signed an affidavit
claiming that he no longer remembered the details of the
7
2004 CCA LEXIS 42, at *3, 2004 WL 388964, at *1.
4
mushroom purchase. The affidavit specifically stated, “It was
likely that Brad never did go with me” to purchase mushrooms.
SrA Daugherty testified that no defense counsel stated or
implied that he should not tell the truth. SrA Daugherty also
testified that he and Appellant never discussed the affidavit
after he executed it.
To place the events in their temporal order, we note that
Appellant’s alleged psilocyn use and possession occurred around
December 1999 to January 2000. SrA Daugherty confessed on July
21, 2000. SrA Daugherty’s affidavit claiming that he no longer
remembered Appellant’s involvement in the offenses was dated
December 6, 2000. Appellant’s court-martial then occurred in
late March and early April of 2001.
At trial, the Government filed a motion in limine seeking a
ruling on the admissibility of SrA Daugherty’s confession. The
defense also filed a motion in limine seeking to exclude any
evidence suggesting that Appellant “was charged with or
otherwise suspected of obstructing justice in regards to . . .
SrA John Daugherty.”
During a hearing on the motions, both SrA Daugherty and the
OSI agent who interrogated him testified. SrA Daugherty stated
that he was “sure” he was telling the truth when he confessed,
but he claimed to “have forgotten” most of the events that his
confession describes. He also testified that he no longer
5
remembered whether Appellant went with him to purchase the
mushrooms. The military judge summarized SrA Daugherty’s
testimony with the observation that while he remembered some of
his own misconduct, he claimed to no longer “remember any drug
use or involvement that could be attributable” to Appellant.
When the military judge asked SrA Daugherty what he thought
the consequences of his confession would be, his immediate
response was “Leavenworth.” He later explained that he thought
there was a “very good possibility” that he would be confined as
a result of his confession.
The military judge made what the Air Force Court aptly
called “extensive findings of fact and conclusions of law.”8 He
ruled that SrA Daugherty’s confession was admissible under
Military Rule of Evidence (M.R.E.) 804(b)(3) as a statement
against interest, but attached five conditions to the
Government’s use of the evidence. First, the military judge
required that if the Government introduced the statement, it
must also introduce SrA Daugherty’s affidavit claiming a lack of
memory and the possibility that Appellant had not accompanied
him when SrA Daugherty purchased mushrooms. Second, the
Government was required to introduce the declaration during SrA
Daugherty’s testimony. Third, the military judge precluded the
Government from introducing any statements SrA Daugherty made
8
2004 CCA LEXIS 42, at *4, 2004 WL 388964, at *2.
6
during his interrogation other than those in his handwritten
confession. Fourth, the military judge gave the defense the
discretion to question either SrA Daugherty or the Air Force OSI
agent who took his confession about the interrogation. And
fifth, if the defense were to introduce any part of the
interrogation into evidence, the Government would be permitted
to introduce the remainder.
The military judge also denied the defense’s motion to
preclude evidence suggesting that Appellant had obstructed
justice by asking SrA Daugherty to change his testimony. The
military judge applied the three-part test established by United
States v. Reynolds9 to determine the evidence’s admissibility
under M.R.E. 404(b). The military judge first found that there
was adequate circumstantial evidence to allow the members to
reasonably find that Appellant sought to influence SrA
Daugherty’s testimony. The military judge also found that any
attempt by Appellant to influence SrA Daugherty’s testimony was
relevant because it exhibited consciousness of guilt concerning
the mushroom incident. Finally, the military judge determined
that the evidence’s probative value was not substantially
outweighed by the danger of unfair prejudice. This conclusion
was based, in part, on the military judge’s decision to give a
tailored instruction informing the members that an accused has a
9
29 M.J. 105 (C.M.A. 1989).
7
right to assist in his own defense and that “there is nothing
improper per se in an accused meeting with potential witnesses
and arranging meetings for them with his lawyer.”
During his opening statement, the trial counsel discussed
SrA Daugherty’s claimed inability to remember Appellant’s
involvement in the offenses. The trial counsel told the members
that “the accused asked Airman Daugherty to go see his lawyer.
You’re going to hear that within hours, Airman Daugherty lost
his memory.” The trial counsel contended that while “Airman
Daugherty will tell you that his loss of memory of all these
incidents has nothing to do with the visit of the accused[,]
[t]he evidence will demonstrate differently. The evidence will
prove that the accused encouraged in some fashion Airman
Daugherty to forget this evidence.” The trial counsel told the
members that “[t]his is consciousness of guilt.”
SrA Daugherty testified during the Government’s case. SrA
Daugherty “identified his hand-written confession and testified
that he gave the statement under oath.”10 But he testified “that
he could no longer remember the incidents in question.
Significantly, however, he testified that he was sure the
contents of his confession were true at the time he made them.”11
He also stated that his memory would have been better when he
10
Rhodes, 2004 CCA LEXIS 42, at *5-*6, 2004 WL 388964, at *2.
11
2004 CCA LEXIS 42, at *6, 2004 WL 388964, at *2.
8
made the statement than it was at trial.12 SrA Daugherty “also
admitted that he went out socially with the appellant on
Christmas Eve, a few weeks after making the affidavit declaring
his lack of recall.”13 The Government also “introduced into
evidence SrA Daugherty’s written confession and his affidavit
professing a lack of memory.”14 The trial defense counsel then
“cross-examined SrA Daugherty at length.”15 During this cross-
examination, the defense counsel “attacked SrA Daugherty’s
ability to perceive and recall, his prior drug use, his bias,
and his motivation for making the statement. SrA Daugherty
continued to assert that he could not remember the details of
the events, but that he did not lie in his statement to
investigators.”16
Before counsel made their closing arguments, the military
judge instructed the members concerning the “[e]vidence that the
accused may have contributed to Senior Airman Daugherty’s lack
of present memory.” He told the members that this evidence “may
be considered by you for the limited purpose of its tendency, if
any, to show the accused’s awareness of his guilt of the
psilocyn allegations.” The military judge then cautioned the
members that:
12
Id.
13
Id.
14
Id.
15
Id.
16
Id.
9
[A]n accused has a right to assist in his own defense.
This right includes the ability to assist his counsel
in securing evidence and witnesses for use in the
defense of the case. An accused may also interview
witnesses and request that witnesses meet with the
defense counsel. In sum, there is nothing improper
per se in an accused meeting with potential witnesses
and arranging meetings for them with his lawyer.
If you find that the accused did indeed influence
Senior Airman Daugherty, you may not consider this
evidence for any other purpose and you may not
conclude from this evidence that the accused is a bad
person or has criminal tendencies and that he,
therefore, committed the offenses charged.
During his closing argument, the trial counsel referred to
Appellant’s “sham visit” to SrA Daugherty. The trial counsel
elaborated:
[T]he accused went on a personal visit here to meet
with Airman Daugherty. And, inexplicably within hours
of that meeting, within hours of that personal and up
close invitation to go see his lawyer, Airman
Daugherty’s memory goes poof and disappears. Members,
I don’t know how to state the obvious any more
clearly, but this unscrupulously, unusual visit. This
preposterous memory loss could not be anymore
indicative of the accused’s statement, an approach of,
“I just wish we could have stuck together better.”
Airman Daugherty and the accused came to an agreement
of some sort, of some fashion; we may never know.
But, there’s an agreement here somewhere to hang
together or, as they say, hang separately. . . .
Airman Daugherty, it was very clear, he is lying
through his teeth on this alleged memory loss.
As previously noted, the members ultimately found Appellant
guilty of the use and possession of psilocyn.
10
DISCUSSION
A. Confrontation
The first issue before us is whether the admission of SrA
Daugherty’s statement violated Appellant’s Sixth Amendment right
“to be confronted with the witnesses against him.”17 It did not
because SrA Daugherty took the stand, testified, and was subject
to cross-examination, thereby satisfying Appellant’s
confrontation right.
This issue is controlled by the Supreme Court’s opinion in
United States v. Owens.18 In Owens, the Supreme Court held that
the Confrontation Clause guarantees only “an opportunity for
effective cross-examination, not cross-examination that is
effective in whatever way, and to whatever extent, the defense
might wish.”19 The Supreme Court observed that the “opportunity”
for cross-examination “is not denied when a witness testifies as
to his current belief but is unable to recollect the reason for
that belief.”20 Rather, “[i]t is sufficient that the defendant
has the opportunity to bring out such matters as the witness’
bias, his lack of care and attentiveness, his poor eyesight, and
17
U.S. Const. amend. VI.
18
484 U.S. 554 (1988).
19
Id. at 559 (alteration in original) (quoting Kentucky v.
Stincer, 482 U.S. 730, 739 (1987)).
20
Id.
11
even (what is often a prime objective of cross-examination) the
very fact that he has a bad memory.”21 The Court reasoned:
If the ability to inquire into these matters suffices
to establish the constitutionally requisite
opportunity for cross-examination when a witness
testifies as to his current belief, the basis for
which he cannot recall, we see no reason why it should
not suffice when the witness’ past belief is
introduced and he is unable to recollect the reason
for that past belief.22
The Court added that “[t]he weapons available to impugn the
witness’ statement when memory loss is asserted will of course
not always achieve success, but successful cross-examination is
not the constitutional guarantee. They are, however, realistic
weapons . . . .”23
The Supreme Court’s later decision in Crawford v.
Washington24 is consistent with the Owens holding. In Crawford,
the Supreme Court reiterated that “when the declarant appears
for cross-examination at trial, the Confrontation Clause places
no constraint at all on the use of his prior testimonial
statements.”25
The defense seeks to rely on a statement in footnote 9 of
the Crawford opinion that the Confrontation Clause “does not bar
admission of a statement so long as the declarant is present at
21
Id. (internal citations omitted).
22
Id.
23
Id. at 560.
24
541 U.S. 36 (2004).
25
Id. at 59 n.9.
12
trial to defend or explain it.”26 Contrary to Appellant’s
argument, footnote 9 of Crawford did not sub silentio overrule
Owens by using the phrase “to defend or explain it.” As Owens
makes clear, the declarant’s explanation may be that he or she
has no recollection of the underlying event, and the defense can
meaningfully confront a witness who claims such a lack of
memory.
Several courts have held that Justice Scalia’s opinion for
the Court in Crawford did not overrule Justice Scalia’s opinion
for the Court in Owens.27 We agree. Because SrA Daugherty
testified in this case and was cross-examined by the defense
counsel, there was no Confrontation Clause violation.
B. Statement Against Interest
Having determined that the admission of SrA Daugherty’s
statement did not violate the Confrontation Clause, we must now
determine whether it was properly admitted under the hearsay
exception for statements against interest.
It seems counterintuitive that a witness who professes no
memory of an event described in an earlier statement is
available for confrontation purposes but unavailable for hearsay
purposes. Yet that is the law. M.R.E. 804 provides certain
26
Id.
27
See, e.g., People v. Argomaniz-Ramirez, 102 P.3d 1015 (Colo.
2004); Mercer v. United States, 864 A.2d 110, 114 n.4 (D.C.
2004); People v. Sharp, 825 N.E.2d 706 (Ill. App. Ct. 2005).
13
hearsay exceptions where the declarant is unavailable. That
rule expressly defines “unavailability” to include situations
where the declarant “testifies to a lack of memory of the
subject matter of the declarant’s statement.”28 So SrA Daugherty
was “unavailable” for purposes of M.R.E. 804(b)(3). That rule
permits the admission of a “statement against interest,” which
includes a statement that “so far tended to subject the
declarant to . . . criminal liability . . . that a reasonable
person in the position of the declarant would not have made the
statement unless the person believed it to be true.”29
As the Air Force Court correctly observed, “The rule ‘is
founded on the commonsense notion that reasonable people, even
reasonable people who are not especially honest, tend not to
make self-inculpatory statements unless they believe them to be
true.’”30 But courts must be cautious when considering
statements offered under this hearsay exception. “Only those
statements that are truly self-inculpatory are admissible under
this rule. Statements that are not self-inculpatory are not
admissible, even if they are included ‘within a broader
narrative that is generally self-inculpatory.’”31 As the United
28
M.R.E. 804(a)(3).
29
M.R.E. 804(b)(3).
30
Rhodes, 2004 CCA LEXIS 42, at *9, 2004 WL 388964, at *4
(quoting Williamson v. United States, 512 U.S. 594, 599 (1994)).
31
2004 CCA LEXIS 42, at *10, 2004 WL 388964, at *4 (quoting
Williamson, 512 U.S. at 600-01).
14
States Court of Appeals for the Seventh Circuit has observed,
“Portions of inculpatory statements that pose no risk to the
declarants are not particularly reliable; they are just garden
variety hearsay.”32
The Supreme Court has stressed that “whether a statement is
self-inculpatory or not can only be determined by viewing it in
context.”33 So the admissibility of a statement against interest
must be evaluated “in light of all the surrounding
circumstances.”34
We agree with the Air Force Court’s well-reasoned
conclusion that under the circumstances of this case, the
portions of SrA Daugherty’s confession that implicated Appellant
were self-inculpatory. As Justice Scalia noted in his
concurring opinion in Williamson, “a declarant’s statement is
not magically transformed from a statement against penal
interest into one that is inadmissible merely because the
declarant names another person or implicates a possible
codefendant.”35
The portions of SrA Daugherty’s confession in which he
admitted buying psilocyn mushrooms, taking them onto base, using
them, and providing them to others were clearly self-
32
Carson v. Peters, 42 F.3d 384, 386 (7th Cir. 1994).
33
Williamson, 512 U.S. at 603.
34
Id. at 604.
35
Id. at 606 (Scalia, J., concurring).
15
incriminatory.36 SrA Daugherty also implicated himself in the
portions of his confession discussing Appellant’s misconduct.
As the Air Force Court concluded, the confession’s “references
to ‘Brad’ (the appellant) and his girlfriend were . . . self-
inculpatory” for five reasons.37 First, “they would lead
investigators to other witnesses to the crimes, necessary for
corroboration of the confession.”38 Second, SrA Daugherty “knew
that his friends were under investigation before making the
statement, thus he would know that statements admitting his
connection with them would link him to their crimes.”39 Third,
“each distribution was potentially a separate offense, so that
including ‘Brad’ as a recipient of the psilocyn mushrooms was
directly incriminating to the declarant.”40 Fourth, “each
statement demonstrates that the declarant was guilty as a
principal of the use and possession offenses of the others named
in the confession.”41 Finally, “the circumstances do not
indicate that the statements were actually self-serving. The
tenor of the statements does not suggest that they were made in
an attempt to minimize the declarant’s culpability, or to shift
36
Rhodes, 2004 CCA LEXIS 42, at *12-*13, 2004 WL 388964, at *5.
37
2004 CCA LEXIS 42, at *13, 2004 WL 388964, at *5.
38
Id.
39
Id.
40
Id.
41
Id.
16
blame to the appellant or others.”42 Rather, SrA Daugherty made
the statements due to “resignation and remorse.”43
In Williamson, the Supreme Court emphasized that “[t]he
question under Rule 804(b)(3) is always whether the statement
was sufficiently against the declarant’s penal interest ‘that a
reasonable person in the declarant’s position would not have
made the statement unless believing it to be true.’”44 We agree
with the military judge and the Air Force Court that the
portions of SrA Daugherty’s confession that implicated Appellant
satisfied that test. The military judge did not abuse his
discretion by admitting the confession into evidence.
C. Uncharged Misconduct
Shortly before SrA Daugherty executed an affidavit claiming
to have forgotten Appellant’s involvement in the psilocyn
mushroom purchase, Appellant had sought him out in his quarters
to ask him to speak with his defense counsel. The final issue
in this case is whether the military judge erred by allowing the
Government to use this evidence to suggest that Appellant
obstructed justice.
The admissibility of uncharged misconduct is governed by
the three-part Reynolds test. That three-part test asks:
1. Does the evidence reasonably support a finding by
the court members that appellant committed prior
42
Id.
43
2004 CCA LEXIS 42, at *13-*14, 2004 WL 388964, at *5.
44
512 U.S. at 603-04.
17
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”?45
If any one of the three parts is not met, the evidence is not
admissible.46 Because we hold that the military judge clearly
abused his discretion in applying the third part of the Reynolds
test, we need not address the other two.
Writing for the Second Circuit, Judge Friendly has
explained why a change in a witness’s recollection is, by
itself, insufficient to support an inference of wrongdoing by
the party who benefited from the change:
If a witness who once professed testimonial knowledge
favorable to the proponent denies this knowledge on
the stand, the mind asks what caused the change and
recognizes that wrongful pressure from the opponent
might be the explanation. Intimidation of the witness
would, of course, be independently relevant, and proof
of this admissible. But mere failure of a witness to
repeat a prior statement helpful to the proponent
gives an exceedingly slight basis for drawing the
inference. The first statement itself may have been
wrong and the oath or the prospect of cross-
examination may have led the witness spontaneously to
correct it; if the opponent had spoken to the witness,
he can as well have been asking information as giving
directions; or the witness may simply have forgotten .
. . .47
As Judge Friendly suggests, in any given case there may be
alternative explanations for a witness’s memory loss.
45
Reynolds, 29 M.J. at 109 (citations omitted).
46
United States v. Cousins, 35 M.J. 70, 74 (C.M.A. 1992).
47
Taylor v. Baltimore & Ohio R.R. Co., 344 F.2d 281, 284 (2d
Cir. 1965) (internal citation omitted).
18
In this case, the evidence’s probativeness of misconduct by
Appellant is further undermined by SrA Daugherty’s testimony
that Appellant had nothing to do with his memory loss. On the
one hand, the Government’s case on the psilocyn specifications
rested on SrA Daugherty’s confession and his in-court testimony
of forgetfulness that was necessary for the confession to be
admitted under M.R.E. 804. SrA Daugherty’s testimony that he
was sure he was telling the truth when he confessed was also
highly damaging to the defense. On the other hand, concluding
that Appellant was complicit in SrA Daugherty’s memory loss
would require disbelieving a portion of SrA Daugherty’s in-court
testimony. Under the peculiar facts of this case, the military
judge clearly abused his discretion48 by concluding that the
memory loss’s probativeness as evidence of Appellant’s
consciousness of guilt was not substantially outweighed by the
danger of unfair prejudice. It therefore failed the third part
of the Reynolds test for the admissibility of uncharged
misconduct evidence.
We do not hold that the military judge erred by allowing
the Government to present evidence concerning Appellant’s
meeting with SrA Daugherty the day before SrA Daugherty signed
the affidavit claiming memory loss. This evidence provided the
members with important background information concerning SrA
48
See United States v. Browning, 54 M.J. 1, 7 (C.A.A.F. 2000).
19
Daugherty’s claimed memory loss. The fact that the meeting took
place was an appropriate matter for the members to consider.
For example, the meeting might have induced SrA Daugherty to
falsely claim loss of memory due to feelings of remorse over
betraying a friend. But the military judge erred by admitting
the evidence for the improper purpose of demonstrating
consciousness of guilt rather than for the proper purpose of
evaluating the truthfulness of SrA Daugherty’s claim of memory
loss.
The military judge compounded this error by instructing the
members that they could consider this evidence “for the limited
purpose of its tendency, if any, to show the accused’s awareness
of his guilt of the psilocyn allegations.” “When evidence is
admitted under Rule 404(b), the [members] must be clearly,
simply, and correctly instructed concerning the narrow and
limited purpose for which the evidence may be considered.”49
Here, the military judge’s instructions allowed the members to
consider the evidence for an impermissible purpose.
Having determined that the military judge erred by allowing
the Government to use this evidence to suggest Appellant’s
consciousness of guilt, we must determine whether that error
prejudiced Appellant. “Where error is founded on a violation of
49
United States v. Jobson, 102 F.3d 214, 222 (6th Cir. 1996)
(internal quotation marks and citation omitted)).
20
Rule 404(b), the test for harmlessness is ‘whether we can say
with fair assurance, after pondering all that happened without
stripping the erroneous action from the whole, that the judgment
was not substantially swayed by the error.’”50 As we apply this
standard, the defense must initially meet the “threshold burden
of showing that an error has occurred which is ‘of such a
character that its natural effect is to prejudice a litigant’s
51
substantial rights.’” The burden then “shifts to the
Government to persuade us that the error was harmless.”52
Because we conclude that the error might have swayed the members
concerning the psilocyn use and possession specifications, we
must reverse the members’ findings as to those specifications.
The “natural effect” of the way the trial counsel used the
uncharged misconduct evidence case was certainly prejudicial.
The Government used the evidence to suggest Appellant’s guilt of
the underlying offense and the military judge’s instructions
expressly allowed the members to use the evidence for that
purpose. Additionally, the Government’s case concerning the
psilocyn mushroom offenses rested almost solely on SrA
Daugherty’s pretrial statement. So the Government’s case was
50
United States v. Madden, 38 F.3d 747, 753 (4th Cir. 1994)
(quoting United States v. Nyman, 649 F.2d 208, 211-12 (4th Cir.
1980)); see Kotteakos v. United States, 328 U.S. 750, 765
(1946).
51
United States v. Pollard, 38 M.J. 41, 52 (C.M.A. 1993)
(quoting Kotteakos, 328 U.S. at 760).
52
Id.
21
certainly not overwhelming. The suggestion that Appellant
suborned perjury could have been crucial to the outcome.
Finally, the trial counsel extensively used the alleged
uncharged misconduct in both opening statement and closing
argument. Accordingly, the Government has not carried its
burden to persuade us that the erroneous use of this evidence
was harmless.
DECISION
The portions of the United States Air Force Court of
Criminal Appeals’ decision affirming the findings of guilty to
the Charge and its specification (use of psilocyn),
specification 2 of Additional Charge I (possession of psilocyn),
and the sentence are reversed. Those findings and the sentence
are set aside. The portions of the Air Force Court of Criminal
Appeals’ decision affirming the findings of guilty to Additional
Charges II and III and their specifications (larceny and
disorderly conduct) are affirmed. The record is returned to the
Judge Advocate General of the Air Force. A rehearing on the
Charge and its specification and specification 2 of Additional
Charge I and the sentence is authorized. If a rehearing on
these charges and specifications is not practicable, a rehearing
on the sentence for the affirmed findings may be held.
22
United States v. Rhodes, No. 04-0336/AF
CRAWFORD, Judge (concurring in part and dissenting in
part):
Although I concur with the majority on Issues I and II, I
respectfully dissent on Issue III. While I concur with Judge
Erdmann’s conclusion that the military judge did not abuse his
discretion by admitting the evidence of uncharged misconduct, I
write separately to emphasize the important jurisprudential
considerations underlying this Court’s test in United States v.
Reynolds, 29 M.J. 105 (C.M.A. 1989).
FACTS
The relevant facts in this case are as follows. A key
Government witness, Senior Airman (SrA) Daugherty, produced a
hand-written statement to Office of Special Investigations (OSI)
implicating Appellant with regards to illegal drug use and
possession. Four-and-a-half months later, SrA Daugherty was
personally approached in his quarters by Appellant. On the
following day, it was discovered by Appellant’s defense counsel
that Daugherty was suffering from memory loss and could no
longer attest to the accuracy of his original confession. In a
new affidavit prepared by defense counsel, SrA Daugherty
recanted, stating: “It was likely that [Appellant] never did go
with me” to purchase drugs. In response, the Government sought
to introduce evidence that Appellant influenced the witness --
primarily that Appellant met with him just prior to the claimed
United States v. Rhodes, No. 04-0336/AF
memory loss. Ultimately, the judge admitted this evidence
pursuant to Military Rule of Evidence (M.R.E.) 404(b), which is
exactly the same as Federal Rule of Evidence (Fed. R. Evid.)
404(b). The Government argued to the members that Appellant
obstructed justice by influencing SrA Daugherty, and that such
acts were indicative of Appellant’s consciousness of guilt.
Appellant was subsequently convicted of drug use and possession.
The issue at hand questions the military judge’s decision to
admit evidence of Appellant’s undue influence on the witness.
DISCUSSION
When determining admissibility, the military judge
correctly applied the test set forth in Reynolds, which
requires, in this case, that (1) the evidence reasonably
supports a finding that Appellant committed prior crimes,
wrongs, or acts, (2) that the evidence increases the likelihood
that Appellant is guilty of the drug offenses brought against
him, and (3) the probative value of the evidence is not
substantially outweighed by unfair prejudice.
Our Reynolds opinion was decided after Huddleston v. United
States, 485 U.S. 681 (1988), but interestingly enough, did not
directly cite Huddleston.
Huddleston provides that “Rule 404(b) . . . evidence is
relevant only if the jury can reasonably conclude that the act
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occurred and that the defendant was the actor.” Id. at 689.
This is the first prong of our Reynolds test.
The second prong of Reynolds does not deviate from
Huddleston. “The threshold inquiry . . . is whether that
evidence is probative of a material issue other than character.”
Id. at 686. The Court goes on to recognize that Fed. R. Evid.
401 and 402 (like M.R.E. 401 and 402) “establish the broad
principle that relevant evidence -- evidence that makes the
existence of any fact at issue more or less probable -- is
admissible unless the Rules provide otherwise.” Id. at 687.
The third prong of Reynolds is likewise discussed in
Huddleston. In its discussion of the danger of undue prejudice,
the Supreme Court stated, “The House made clear that the version
of Rule 404(b) which became law was intended to ‘plac[e] greater
emphasis on admissibility than did the final Court version.’”
Id. at 688. The Court continued:
The Senate echoed this theme: “[T]he use of the
discretionary word ‘may’ with respect to the
admissibility of evidence of crimes, wrongs, or other
acts is not intended to confer any arbitrary
discretion on the trial judge.” S. Rep. No. 93-1277,
. . . at 24. Thus, Congress was not nearly so
concerned with the potential prejudicial effect of
Rule 404(b) evidence as it was with ensuring that
restrictions would not be placed on the admission of
such evidence.
Id. at 688-89.
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When using the Reynolds test, it is necessary to recognize
the difference between the factual relevance prong (Prong I) and
the legal relevance prong (Prong III). While Prong I is meant
to determine the sufficiency of the evidence, Prong III is meant
to weigh the evidence’s potential unfair prejudice. It is easy
to confuse the sufficiency of the evidence (Prong I) with the
evidence’s probative value (Prong III). It is therefore
necessary to reconsider the Reynolds test in full to lend
perspective to the majority opinion.
Beginning with Prong I of the Reynolds test, the meeting
between Appellant and SrA Daugherty strongly suggests that
Appellant unduly influenced him to recant his original
statement. Soon after their meeting, the witness forgot the
details of a hand-written statement, even while he and others
were being prosecuted based on the statement’s details. Not
only did the witness forget a set of events that were seemingly
central and fresh in his mind, but this memory loss was also
discovered by defense counsel only a day after Appellant visited
SrA Daugherty. Arguing that such facts are insufficient to
support a finding that Appellant influenced SrA Daugherty to
recant tests the bounds of coincidence when one considers the
details of the events, the timing of the visit, and the
subsequent lapse of memory.
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Nevertheless, the majority has misgivings about the
relevance of this evidence. The majority posits an alternate
explanation for the memory loss, noting that the meeting might
have induced SrA Daugherty to recant “due to feelings of remorse
over betraying a friend.” United States v. Rhodes, 61 M.J. at
___ (20) (C.A.A.F. 2005). Aside from being unlikely, such
alternatives are irrelevant because “the trial court neither
weighs credibility nor makes a finding that the Government has
proved the conditional fact by a preponderance of the evidence.
The court simply . . . decides whether the jury could reasonably
find the conditional fact” -- here, that Appellant prompted the
witness to claim memory loss. Huddleston, 485 U.S. at 782-83
(emphasis added); see also United States v. Mirandes-Gonzalez,
26 M.J. 411, 413-14 (C.M.A. 1988). Indeed, M.R.E. 104(b) notes
that “[w]hen the relevancy of evidence depends upon the
fulfillment of a condition of fact, the military judge shall
admit it upon, or subject to, the introduction of evidence
sufficient to support a finding of the fulfillment of the
condition.” Emphasis added. The meeting between Appellant and
the witness is a strong circumstantial indication of undue
influence, and is clearly relevant under this standard.
Weighing the evidence against alternative explanations and
counter-evidence is inappropriate because such is the role of
the members. Defense counsel’s arguments and use of contrary
5
United States v. Rhodes, No. 04-0336/AF
testimony were simply unpersuasive, and it is not the place of
this Court to second-guess the members’ findings.
Curiously, the majority uses a lengthy quotation from
Taylor v. Baltimore & Ohio R.R. Co., 344 F.2d 281 (2d Cir.
1965), to argue that the evidence is too speculative to be
admitted. In Taylor, a civil action under the Federal
Employer’s Liability Act, a witness had originally provided a
statement in a way that benefited the plaintiff. At trial five
years later, this same witness could not recall his original
statement -- a loss in memory that critically damaged the
plaintiff’s case. In the opinion, Judge Friendly discussed the
plaintiff’s potential argument that the defendant tampered with
the witness:
[I]f the opponent had spoken to the witness, he can as
well have been asking information as giving
directions; or the witness may simply have forgotten -
- a fair possibility here, when over five years had
intervened between the accident and the trial. The
basis for an inference of intimidation is extremely
weak as against the danger that if the statement is
admitted, the jury will use it substantively
regardless of what the judge may say.
Id. at 284. Not only are the facts in Taylor distinguishable
from the present case, its holding also conflicts with the
majority decision.
First, aside from being a Second Circuit civil case from
the 1960s, the facts in Taylor are critically different. In
Taylor, the memory loss occurred over a period of five years, a
6
United States v. Rhodes, No. 04-0336/AF
fact omitted by ellipsis from the majority’s quote. 61 M.J. at
__ (18). Furthermore, Judge Friendly’s commentary did not
assume the present situation, where a meeting occurs immediately
prior to discovering the witness’s memory loss. The present
case is not diluted by a five-year time span, during which facts
could be legitimately forgotten, and an opportunity to influence
the witness may not present itself. On the contrary, Appellant
approached SrA Daugherty only four-and-a-half months after the
original written statement was made, and on the very next day
Daugherty recanted, claiming memory loss. The majority’s
assertion, that “a change in a witness’s recollection is, by
itself, insufficient,” 61 M.J. at __ (18), disregards the highly
coincidental nature of the present case -- a scenario that Judge
Friendly wisely anticipated by limiting the Taylor decision to
its particular facts. Finally, Judge Friendly’s opinion deals
with a fundamentally different question: whether the witness’s
original statement should be introduced at all. This Court has
no qualms with the introduction of SrA Daugherty’s original
confession to OSI.
Second, the majority opinion is inconsistent with Taylor.
Under its set of facts, the court in Taylor would have found
evidence of witness tampering to be completely inadmissible due
to the risk of confusing the jury. In contrast, the majority
creatively deems such evidence admissible while also condemning
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United States v. Rhodes, No. 04-0336/AF
its use in the Government’s arguments and the jury instruction.
While the meeting was “important background information” that
helps explain SrA Daugherty’s loss of memory, they would not
allow the Government or the jury to consider the notion that
Appellant actually caused the recantation. Hence, the majority
would admit the same evidence described in Taylor but require
that nobody mention its obvious inference, thereby disregarding
Judge Friendly’s caution that “the jury will use [the evidence]
substantively regardless of what the judge may say.” Id. at
284. Considering its distinguishing characteristics and
apparent misapplication, Taylor sheds but a glimmer of guiding
light on the case at hand and only illustrates an extreme
instance where no circumstantial evidence existed from which to
infer undue witness influence.
In sum, the first prong of the Reynolds test is satisfied
because evidence of a highly coincidental meeting between
Appellant and SrA Daugherty is relevant, and reasonably supports
the finding that Appellant influenced the recantation.
While not actively disputed, the second prong of the
Reynolds test requires that the evidence increase the likelihood
that Appellant is guilty of the drug offenses brought against
him. Here, the evidence indicates that Appellant was aware of
his wrongdoings and was attempting to influence a witness to
reach a favorable conclusion at trial. Appellant’s
8
United States v. Rhodes, No. 04-0336/AF
consciousness of guilt would make it more likely that he
committed the alleged drug offenses, and the second prong is
thereby satisfied.
The third prong of the Reynolds test requires that evidence
be excluded if it is substantially more prejudicial than
probative. See M.R.E. 403. First, the probative value of the
meeting between Appellant and the witness is very high given the
nature of this case. Generally, evidence of consciousness of
guilt is very probative and “second only to a confession in
terms of probative value.” United States v. Meling, 47 F.3d
1546, 1557 (9th Cir. 1995). In this case, such evidence is
critically important to the Government. As the majority notes,
“the Government’s case concerning the psilocyn mushroom offenses
rested almost solely on SrA Daugherty’s pretrial statement.” 61
M.J. at __ (21). Given the convenient and coincidental nature
of the memory loss, evidence suggesting that Appellant spoiled
SrA Daugherty’s statement is very probative and central to the
Government’s ability to prove guilt.
Second, the risk of unfair prejudice is slight. To analyze
prejudice, this Court must determine to what degree the evidence
may mislead, interfere with, or confuse the members in assessing
the principal charges. See M.R.E. 403; United States v. Kinman,
25 M.J. 99 (C.M.A. 1987) (applying M.R.E. 403 to introduction of
uncharged misconduct evidence). See also Taylor, 344 F.2d at
9
United States v. Rhodes, No. 04-0336/AF
284. Acts showing consciousness of guilt are unique from other
forms of uncharged misconduct in that they almost always
directly relate to the charges at hand -- which may explain why
it is difficult to articulate any true unfair prejudice in the
present case. For example, there is little risk that the
members would believe that Appellant used or possessed drugs
simply due to a general propensity to obstruct justice. Rather,
they would believe that Appellant is guilty of these offenses
because influencing SrA Daugherty to recant his original
statement is directly indicative of guilt in this particular
case. The introduction of this evidence has little collateral
or prejudicial effect. Furthermore, any remaining risk of
unfair prejudice was tempered by the military judge’s limiting
instruction, stating that “there is nothing improper per se in
an accused meeting with potential witnesses and arranging
meetings for them with his lawyer.”
In applying the third prong of the Reynolds test, the
majority asserts that the prejudicial value of the meeting
substantially outweighs its probative value pursuant to M.R.E.
403. M.R.E. 403 is a rule of evidence, not a rule of argument.
It speaks to the admissibility of the evidence alone. The
majority applies the third prong against the “erroneous use of
this evidence” instead of its admission. 61 M.J. at __ (22)
(emphasis added). It goes without saying that the use of
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United States v. Rhodes, No. 04-0336/AF
damaging evidence will be extremely prejudicial to the
defendant’s liberty interest, “as is most good prosecution
evidence.” Reynolds, 29 M.J. at 109. This does not make the
evidence itself unfairly prejudicial or inadmissible. In the
present case, the meeting between Appellant and SrA Daugherty on
the day before his memory loss directly implies that Appellant
influenced him. This evidence did not suddenly transform when
the Government argued this theory or when the military judge
used it in an instruction.
While the meeting made Appellant appear more guilty in the
instant case -- as is the purpose of such evidence –- this is
not an example of unfair prejudice. The evidence’s probative
value is not mitigated by the testimony of SrA Daugherty “that
Appellant had nothing to do with his memory loss.” 61 M.J. at
__ (19). The testimony must be weighed against his prior
statements and in the context of his conversation with
Appellant. SrA Daugherty’s testimony is an insufficient basis
for a legal conclusion of inadmissibility because the evaluation
of this conflicting evidence is left to members. Thus, the
third prong of the Reynolds test is more than satisfied, as the
probative value of the evidence outweighs any potential
prejudice.
I therefore agree that the military judge’s application of
the Reynolds-Huddleston test was not an abuse of discretion. “A
11
United States v. Rhodes, No. 04-0336/AF
military judge’s ruling on admissibility of evidence . . . will
not be overturned on appeal ‘absent a clear abuse of
discretion.’” United States v. Johnson, 46 M.J. 8, 10 (C.A.A.F.
1997) (quoting United States v. Redmond, 21 M.J. 319, 326
(C.M.A. 1986)). This Court’s split on this issue indicates that
reasonable minds can disagree on whether to allow such evidence
under these circumstances. Even so, simple disagreement is not
sufficient to overturn the military judge’s decision:
[A]n abuse of discretion involves far more than a
difference in judicial opinion . . . The challenged
action must . . . be found to be “arbitrary, fanciful,
clearly unreasonable,” or “clearly erroneous” in order
to be invalidated on appeal. If, on the other hand,
reasonable [minds] could differ as to its propriety,
then it cannot be said that the trial judge abused his
discretion.
United States v. Glenn, 473 F.2d 191, 196 (D.C. Cir. 1972)
(internal citations omitted). Accord United States v. Travers,
25 M.J. 61, 62-63 (C.M.A. 1987) (citing Glenn, 473 F.2d at 196).
This Court has recently stated that an abuse of discretion
occurs only when findings of fact are clearly erroneous, when
incorrect law is applied, or when the law is applied
incorrectly. United States v. Roberts, 59 M.J. 323, 326
(C.A.A.F. 2004). Here, the military judge’s decision is not an
abuse of discretion because the correct legal test was applied
against a set of undisputed facts. The military judge concluded
that “the members could reasonably find that the uncharged
12
United States v. Rhodes, No. 04-0336/AF
misconduct occurred” based on the circumstantial evidence, that
the evidence increased the probability of Appellant’s guilt,
that the probative value was high given the coincidental nature
of the memory loss, and that any risk of prejudice could be
cured by instruction. While the conclusion drawn by the
military judge may differ from that of the majority, this is not
a basis for overturning the result.
I would therefore affirm the judgment of the United States
Air Force Court of Criminal Appeals.
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United States v. Rhodes, 04-0336/AF
ERDMANN, Judge (concurring in part and dissenting in part):
I concur in the resolution of Issues I and II regarding
Staff Sergeant Rhodes’s Sixth Amendment rights and the
admissibility of Senior Airman Daugherty’s statement under
Military Rule of Evidence (M.R.E.) 804(b)(3). I write
separately because I cannot agree that the military judge abused
his discretion by admitting evidence of Rhodes’s uncharged
misconduct.
The majority correctly asserts that evidence of uncharged
misconduct must be evaluated using the three-part test set out
in United States v. Reynolds, 29 M.J. 105, 109 (C.M.A. 1989):
1. Does the evidence reasonably support a finding that
appellant committed prior crimes, wrongs or acts?
2. What “fact of consequence” is made more or less
probable by the existence of the evidence?
3. Is the probative value of the evidence substantially
outweighed by the danger of unfair prejudice?
Here, there was circumstantial evidence that Rhodes may
have played a role in Daugherty’s convenient memory loss. At
first, Daugherty remembered Rhodes buying and taking drugs.
Later, following a personal visit from Rhodes, Daugherty told
defense counsel that he could no longer remember whether or not
Rhodes had been involved. Presented with this evidence,
reasonable members could certainly conclude that Rhodes had
influenced Daugherty’s forgetfulness.
United States v. Rhodes, 04-0336/AF
Next, to the extent that the members believed that Rhodes
influenced Daugherty to forget what he had written in his
confession to the Office of Special Investigations, that
evidence makes it more probable that Rhodes was guilty and was
trying to cover up his misdeeds. The majority relies on Taylor
v. Baltimore & Ohio R.R. Co., 344 F.2d 281 (2d Cir. 1965), for
the proposition that this evidence was too speculative to
support an inference of wrongdoing. In Taylor, a witness
provided a written statement prior to trial that he had seen a
particular accident. At trial, however, he testified that “I
heard something, that’s all.” Id. at 283. The case did not
involve a complete memory loss of the event and there was no
evidence that a party to the lawsuit met with the witness
immediately prior to the memory loss.
Ultimately, the admissibility of evidence concerning
Rhodes’s visit to Daugherty’s barracks room comes down to the
balancing test set out in M.R.E. 403 -– is the evidence
substantially more prejudicial than probative? The question
here is not whether or not this court views the potential
prejudice to Rhodes as substantially outweighing the probative
value of the evidence. The question is whether the military
judge’s conclusion that the evidence would not unduly inflame
the passions of the members or cloud their judgment was
arbitrary, fanciful, clearly unreasonable, clearly untenable or
2
United States v. Rhodes, 04-0336/AF
clearly erroneous. See United States v. Williams, 37 M.J. 352,
356 (C.M.A. 1993); United States v. Travers, 25 M.J. 61, 62
(C.M.A. 1987).
This court has previously held that, “[a] military judge
abuses his discretion when his findings of fact are clearly
erroneous, when he is incorrect about the applicable law, or
when he improperly applies the law.” United States v. Roberts,
59 M.J. 323, 326 (C.A.A.F. 2004). There are no findings of fact
at issue here and there is no dispute that the military judge
used the correct legal test. It is his application of the law
to the facts and his conclusion that the majority questions.
But as this court has previously explained, “To reverse for ‘an
abuse of discretion involves far more than a difference in . . .
opinion. . . .’” Travers, 25 M.J. at 63 (quoting United States
v. Yoakum, 8 M.J. 763 (A.C.M.R. 1980), aff’d on other grounds, 9
M.J. 417 (C.M.A. 1980) (internal citation omitted).
As Rhodes presented no evidence that the military judge
acted arbitrarily or reached a clearly untenable conclusion, I
conclude that the military judge’s decision fell within the
realm of his considerable discretion. Accordingly, I would
affirm the decision of the United States Air Force Court of
Criminal Appeals.
3
United States v. Rhodes
Court: Court of Appeals for the Armed Forces
Date filed: 2005-09-19
Citations: 61 M.J. 445
Copy CitationsCombined Opinion