United States v. Becker ( 2021 )

This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Craig R. BECKER, Lieutenant
United States Navy, Appellant
No. 21-0236
Crim. App. No. 201900342
Argued May 25, 2021—Decided September 14, 2021
Military Judge: Aaron C. Rugh
For Appellant: Captain Marcus N. Fulton, JAGC, USN
(argued); Lieutenant Daniel Moore, JAGC, USN.
For Appellee: Major Kerry E. Friedewald, USMC (argued);
Lieutenant Colonel Nicholas L. Gannon, USMC, Major
Clayton L. Wiggins, USMC, and Brian K. Keller, Esq.
Judge SPARKS delivered the opinion of the Court, in
which Chief Judge OHLSON, Judge MAGGS and Judge
HARDY, and Senior Judge STUCKY, joined.
_______________
Judge SPARKS delivered the opinion of the Court.
In this Article 62, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 862 (2018), case, the Government
charged Appellant at a general court-martial with one
specification of premeditated murder, two specifications of
assault consummated by a battery, and three specifications of
conduct unbecoming an officer and a gentleman in violation
of Articles 118, 128, and 133, UCMJ, 10 U.S.C. §§ 918, 928,
933 (2012), for allegedly strangling his wife, Mrs. Becker, in
August 2013, physically and emotionally abusing her over the
following two years, and then drugging her and causing her
to fall from a seventh-floor apartment window to her death in
October 2015. United States v. Becker, 81 M.J. 525, 527–28
(N-M. Ct. Crim. App. 2021). As explained in detail below, the
Government pursued the admission of prior statements by
the decedent, Mrs. Becker, under the forfeiture by
wrongdoing exception to the Sixth Amendment Confrontation
Clause and the hearsay rule. Id. at 527. The military judge
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ruled some of these statements inadmissible concluding that
the Government failed to meet its burden to demonstrate that
the accused had waived his right to confrontation by
wrongdoing or had forfeited his hearsay objections under
Military Rule of Evidence (M.R.E) 804(b)(6) because the
preponderance of the evidence failed to show that the accused
intended to prevent Mrs. Becker’s testimony by causing her
death in October 2015. Ultimately, the lower court reversed
the military judge’s ruling. Becker, 81 M.J. at 535. We granted
review to determine whether the Court of Criminal Appeals
engaged in impermissible factfinding beyond the scope of
Article 62, UCMJ, review.1 We hold that the lower court did
engage in improper factfinding and the military judge did not
abuse his discretion in ruling the statements inadmissible.
Accordingly, the decision of the lower court is reversed.
I. Background
The United States Navy-Marine Corps Court of Criminal
Appeals succinctly summarized the relevant facts
surrounding the relationship between Appellant and Mrs.
Becker, including the night of her death, as follows:
The pending charges arise from the troubled
relationship of [Appellant] and Mrs. Becker, whom
[Appellant] allegedly murdered by pushing her from
their apartment’s seventh-story window in Mons,
Belgium, in October 2015. Two years earlier, in
August 2013, after learning of his wife’s infidelity,
[Appellant] allegedly threw her around their hotel
room and strangled her. Mrs. Becker reported the
alleged abuse to several individuals, including the
desk clerk at the Army Lodge where they were
staying and a military police officer who responded
to the scene. Later that day, she made follow-up
statements and a formal report to law enforcement.
She alleged that in addition to physically assaulting
her, [Appellant] had taken her identification and
credit cards and changed their bank account
1 We granted review of the following issue: “Whether the lower
court erred in its abuse of discretion analysis by failing to give the
trial judge’s findings of fact deference, substituting its own
discretion for the military judge’s, and engaging in fact-finding
beyond the scope of Article 62 review.”
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passwords, effectively leaving her isolated and
trapped.
That evening, after attending counseling with
[Appellant], Mrs. Becker recanted her allegations.
She denied [Appellant] had taken her identification
and credit cards and later formally recanted her
report to law enforcement, explaining that
[Appellant] had not strangled her and instead was
trying to keep her from harming herself. She blamed
her report on the effects of her medication. After
Mrs. Becker’s recantation, the criminal
investigation stopped, and all further action on her
allegations was formally closed in June 2014.
Despite her recantation to authorities, Mrs.
Becker told a different story to friends and family
members. She told them the allegations were true
and that she had feared for her life during the
assault, but that she recanted out of concern that
they would negatively impact [Appellant’s] career;
she told one friend that she was afraid of what
[Appellant] would do if he lost his career. She
described how [Appellant] was controlling and
manipulative and monitored her communications on
her personal phone. She said he prevented her from
contacting her friends and family while she was
recovering from a surgery, and controlled who could
visit her at their apartment in Belgium. She said he
controlled how she could dress, prevented her from
getting a tattoo, and destroyed her cosmetic
products.
The discord within the Beckers’ marriage
culminated in their separation in the summer of
2015, after which Mrs. Becker decided to remain in
Belgium, but live apart from [Appellant]. On the
surface, the separation appeared amicable; the two
intended to remain friends, to have regular
interactions to raise their daughter, and to continue
working in a joint business venture. But [Appellant]
had a visceral reaction when he learned Mrs. Becker
had a new boyfriend, with whom she worked, and
she had begun spending nights at his home about a
week before her death.
On the day Mrs. Becker died, she signed a lease
and paid the deposit on an apartment of her own.
That night, [Appellant] and Mrs. Becker had dinner
at their seventh-floor apartment. Witnesses heard a
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scream around 2100 and saw Mrs. Becker fall from
the seventh floor to the ground. The Government
alleges [Appellant] put a sedative in her wine and
pushed her out of a window. She survived the initial
fall, but died later at a Belgian hospital.
United States v. Becker, 80 M.J. 563, 565 (N-M. Ct. Crim. App.
2020) (per curiam).
Following Mrs. Becker’s death, a toxicological exam
revealed that although her blood alcohol content was negative
at her time of death, zolpidem and a high level of tramadol
were found in her blood system. According to the exam’s
findings, tramadol is a morphine-based drug used in the
treatment of moderate to severe pain, whereas zolpidem is a
sedative with undesirable side effects, including
hallucinations and restlessness. A third medication,
midazolam, was also found present in her system. This drug
is typically reserved for hospital environments and used for
anesthesia induction. Further, one of Appellant’s work
colleagues reported that a day or so before Mrs. Becker’s
death, Appellant had picked up a small bag of small, round,
pink pills from his old office. Becker, 81 M.J. at 529.
In its pretrial motion, the Government argued that Mrs.
Becker’s statements were admissible without confrontation
and over hearsay objection because Appellant wrongfully
caused Mrs. Becker’s unavailability when he allegedly caused
her to fall from their apartment window in Belgium and did
so with the intent to make her unavailable to testify against
him. The Government argued Appellant killed Mrs. Becker
with the intent, at least in part, of preventing her from
repeating and expounding on her earlier abuse allegations
against Appellant since it was reasonable to infer that a
person who recanted prior allegations to save her spouse’s
career might again pursue them once their relationship
ended. Becker, 80 M.J. at 565–66. In response, Appellant
argued that any concern regarding whether Mrs. Becker
would revive her earlier allegations against him was entirely
speculative, particularly since their separation appeared to be
proceeding amicably. Id. at 566. Appellant contended that
Mrs. Becker appeared “upbeat regarding her post-separation
life” and that she and Appellant had “made plans to continue
working on a joint-venture business together” even after their
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separation. Furthermore, even if a revival of her earlier
allegations could be expected, this fact without more, did not
weigh in favor of an inference that Appellant intended to
silence Mrs. Becker as a witness because there were no
pending charges against him, there was no ongoing
investigation, and no indication an investigation would be
opened against him in the future. Thus, according to the
defense, it was not reasonably foreseeable that any
investigation would culminate in the bringing of charges
against Appellant. Id.
The military judge citing M.R.E. 804(b)(6) in light of Giles
v. California, 554 U.S. 353, 367 (2008), ruled that the
Government had failed to demonstrate that Appellant acted
on the day of Mrs. Becker’s death “in order to prevent Mrs.
Becker’s testimony.” The military judge noted that “by
October 9th, 2015, there were no active . . . and no anticipated
investigations” of Appellant regarding Mrs. Becker’s earlier
allegations of Appellant’s physical and emotional abuse.
Further, “although Mrs. Becker raised the 2013 incident with
friends and family on several occasions, she never expressed
any disappointment that the original investigation had closed
or a desire to see the accused further investigated.” He
ultimately agreed with the defense and concluded that it was
not “reasonably foreseeable” that Appellant would be
investigated regarding Mrs. Becker’s prior allegations
against him or that Appellant might face charges based on
those allegations, such that Mrs. Becker might be required to
testify against him.
The Government appealed pursuant to Article 62, UCMJ,
and the lower court found that the military judge erred as a
matter of law by adopting a “reasonable foreseeability”
standard, thereby unnecessarily and erroneously narrowing
the forfeiture by wrongdoing exception. Becker, 80 M.J. at
568. The lower court remanded the case for further
consideration under the Giles rule, holding that the military
judge erred in applying the pre-Giles “reasonable
foreseeability” test to determine the admissibility of Mrs.
Becker’s statements because that standard “stray[ed] too far
from the intent requirement announced under Giles.” Id.
(noting the Giles inquiry is a subjective, not objective inquiry
into the intent of the party who wrongfully caused the
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unavailability). Upon remand, the military judge adopted his
previous findings of fact, and once again excluded the
statements. The military judge was still not convinced that
the Government had met its burden to demonstrate Appellant
forfeited his right to confrontation by wrongdoing. A key
consideration for the military judge was that the accused was
not under any active investigation, nor was there any
indication that he would be investigated in the future. Mrs.
Becker had recanted her previous allegations against
Appellant and had not displayed any signs of wanting to
initiate another investigation. The military judge stated that
he found it “wholly speculative that an investigation,
including one in which Mrs. Becker might make testimonial
statements, would culminate in the bringing of charges.” In
the military judge’s analysis, this was a key factor considering
the lack of direct evidence of the Appellant’s intent regarding
Mrs. Becker on October 8, 2015.
Additionally, the military judge concluded there was “no
evidence that, leading up to 8 October 2015, the accused was
engaged in behaviors intended to isolate the victim from
outside help.” The military judge noted there was little
circumstantial evidence from which the court might
reasonably infer Appellant’s intent, as Appellant and Mrs.
Becker remained business partners. Mrs. Becker also
continued to stay engaged in friendships, regularly stayed the
night in another residence with another person, and on the
day of her death, had lunch with several close acquaintances.
Consequently, the military judge found that the
preponderance of the evidence failed to establish that Mrs.
Becker intended to testify at a formal proceeding, report
allegations of abuse to outside authorities, cooperate with law
enforcement, or resort to outside help in the future.
II. Lower Court’s Review
The Government again appealed pursuant to Article 62,
UCMJ. The lower court found certain facts supported the
finding that Appellant intentionally killed Mrs. Becker and
that “at least part of his intent was to prevent [her] from
causing him any more problems akin to the ‘living nightmare’
she had caused him when she reported her prior allegations
of abuse to the authorities.” Becker, 81 M.J. at 534. According
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to the lower court, the facts relevant to its Giles inquiry
included:
 Two days before her death, [Appellant] was concerned
about [Mrs. Becker’s] “making problems” for him upon
moving out. While informing the police of his concern,
[Appellant] also reported the problematic effects of Mrs.
Becker’s alcohol consumption, yet bought a bottle of
wine for their apartment that same day.
 A day or so before Mrs. Becker’s death, [Appellant]
retrieved pills from his old office matching the physical
description of prescription pills containing the same
sedative later found in Mrs. Becker’s system.
 Just prior to Mrs. Becker’s death, text messages
evidencing her ostensible desire to get back together
with [Appellant], but being distraught about being
rejected by him, were sent from Mrs. Becker’s phone to
her new boyfriend, at times when [Appellant] was not
using his own phone.
 [Appellant] told the police he heard only an initial
scream from Mrs. Becker’s bedroom before arriving just
in time to see her go out the window, whereas multiple
bystanders heard Mrs. Becker repeatedly and fearfully
crying for help, saw her struggling to hold onto a window
ledge for a period of time before falling, and then saw
him looking down from the window to where she fell,
which he denied.
 Two days after Mrs. Becker’s death, [Appellant] was still
thinking and talking about the “living nightmare” she
had caused when she reported he had assaulted and
strangled her in the Army hotel in August 2013.
 In addition to being investigated previously for
assaultive conduct toward Mrs. Becker—which he
considered harmful to his career—at the time of her
death [Appellant] had an ongoing child custody dispute
over children from a previous marriage, which he feared
would be negatively impacted by even the report that
Mrs. Becker had committed suicide or accidentally
fallen.
 Among the things Mrs. Becker revealed to friends and
family members about her abusive marriage, was her
fear of what [Appellant] would do if he lost his career.
Id. at 533–34.
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The lower court held that Mrs. Becker’s prior statements
were admissible under the forfeiture by wrongdoing
exception, and concluded that the military judge abused his
discretion by failing to consider the above facts in discerning
Appellant’s intent. Id. at 535.
III. Discussion
A. Standard of Review
“In an Article 62, UCMJ, appeal, this Court reviews the
military judge’s decision directly and reviews the evidence in
the light most favorable to the party which prevailed at trial,”
which in this case is Appellant. United States v. Pugh, 77 M.J.
1, 3 (C.A.A.F. 2017) (internal quotation marks omitted)
(citation omitted). A military judge’s decision to exclude
evidence is reviewed for an abuse of discretion. United States
v. Bowen, 76 M.J. 83, 87 (C.A.A.F. 2017). “An abuse of
discretion occurs when a military judge either erroneously
applies the law or clearly errs in making his or her findings
of fact.” United States v. Donaldson, 58 M.J. 477, 482
(C.A.A.F. 2003). These standards also apply to interlocutory
appeals under Article 62, UCMJ. United States v. Mitchell, 76
M.J. 413, 417 (C.A.A.F. 2017).
B. Forfeiture by Wrongdoing
The Sixth Amendment’s Confrontation Clause holds that
“[i]n all criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against him.”
U.S. Const. amend. VI. This “bedrock procedural guarantee”
applies to both federal and state prosecutions and is a concept
that dates back to Roman times. Crawford v. Washington, 541
U.S. 36, 42–43 (2004). In Crawford, the Supreme Court held
that “[w]here testimonial evidence is at issue . . . the Sixth
Amendment demands what the common law required:
unavailability and a prior opportunity for cross-examination.”
Id. at 68. In Giles, the Supreme Court subsequently
addressed two exceptions to the cross-examination
requirement. 554 U.S. at 358. One of those exceptions,
derived from common law, is the doctrine of forfeiture by
wrongdoing, which provides that where an accused’s wrongful
actions prevent a witness from testifying, and where those
actions were designed to prevent the witness from testifying,
admission of out-of-court statements by that witness does not
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offend the Confrontation Clause of the United States
Constitution. Id. at 359. This Court has not addressed the
doctrine of forfeiture by wrongdoing.
The Supreme Court in Reynolds v. United States, provided
the following explanation of this exception: “[t]he
Constitution does not guarantee an accused person
[protection] against the legitimate consequences of his own
wrongful acts. It grants him the privilege of being confronted
with the witnesses against him; but if he voluntarily keeps
the witnesses away, he cannot insist on his privilege.” 98 U.S.
145, 158 (1878). The Court in Giles specifically addressed this
language from Reynolds but noted that even though
“Reynolds invoked broad forfeiture principles to explain its
holding,” it only did so to admit testimony where the
defendant intended to keep the witness away. 554 U.S. at 366.
The Court in Giles further observed that Reynolds “indicated
that it was adopting the common-law rule,” which, as the
Court explained in Giles, requires the defendant to intend to
keep the witness from testifying. Id.In military practice, the prohibition against the admission
of hearsay is contained in M.R.E 802. The forfeiture by
wrongdoing exception to M.R.E. 802 can be found in M.R.E.
804(b)(6) which allows “[a] statement offered against a party
that wrongfully caused or acquiesced in wrongfully causing
the declarant’s unavailability as a witness, and did so
intending that result.”
In Giles, the Supreme Court held that a California rule of
evidence creating a general exception to hearsay for any
wrongdoing violated the Confrontation Clause. 554 U.S. at
366. The Court, however, asserted that an exception limited
to wrongdoing for the purpose of preventing a declarant from
testifying would be constitutional. Id. at 361–62. M.R.E.
804(b)(6) requires an intent to cause a declarant’s
unavailability and therefore does not suffer the same flaw as
the California rule at issue in Giles.
For a statement to qualify under the forfeiture by
wrongdoing exception, (1) the party against whom the
statement is offered must have wrongfully caused the
declarant’s unavailability as a witness, and (2) the party
caused the witness’s unavailability with the intent to make
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that witness unavailable, i.e., that the accused intended their
conduct to prevent the witness from testifying against them
in court. Id. at 364–68. With respect to the second prong, the
party’s intent, in causing the declarant’s unavailability, need
not be motivated solely by the desire to prevent the
declarant’s would-be testimony, rather, only that it was a
motivating factor in the party’s decision to take such an
action. United States v. Jackson, 706 F.3d 264, 269 (4th Cir.
2013).2
C. Review of the Military Judge’s Second Findings
On matters of fact with respect to appeals under Article
62, UCMJ, this Court is “bound by the military judge’s factual
determinations unless they are unsupported by the record or
clearly erroneous.” Pugh, 77 M.J. at 3 (citing United States v.
Gore, 60 M.J. 178, 185 (C.A.A.F. 2004)). A reviewing court
may not “find its own facts or substitute its own
interpretation of the facts.” United States v. Cossio, 64 M.J.
254, 256 (C.A.A.F. 2007). It is an abuse of discretion if the
military judge: (1) “predicates his ruling on findings of fact
that are not supported by the evidence”; (2) “uses incorrect
legal principles”; (3) “applies correct legal principles to the
facts in a way that is clearly unreasonable”; or (4) “fails to
consider important facts.” United States v. Commisso, 76 M.J.
2 In the context of domestic abuse, the Supreme Court has
recognized that:
Acts of domestic violence often are intended to
dissuade a victim from resorting to outside help, and
include conduct designed to prevent testimony to
police officers or cooperation in criminal
prosecutions. Where such an abusive relationship
culminates in murder, the evidence may support a
finding that the crime expressed the intent to isolate
the victim and to stop her from reporting abuse to
the authorities or cooperating with a criminal
prosecution—rendering her prior statements
admissible under the forfeiture doctrine. Earlier
abuse, or threats of abuse, intended to dissuade the
victim from resorting to outside help would be highly
relevant to this inquiry, as would evidence of
ongoing criminal proceedings at which the victim
would have been expected to testify.
Giles, 554 U.S. at 377.
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315, 321 (C.A.A.F. 2017) (citing United States v. Ellis, 68 M.J.
341, 344 (C.A.A.F. 2010)). We conclude the military judge’s
findings of fact on the second element of the exception to the
hearsay rule in M.R.E. 804(b)(6) were not clearly erroneous.
The military judge did not abuse his discretion in finding
that the circumstantial evidence did not warrant an inference
that Appellant acted with such an intention. His findings of
fact and conclusions of law were thorough, based upon an
application of the correct legal principles to Mrs. Becker’s
prior statements, and were supported by the evidence
provided in the record. The military judge was not convinced
that the “unavailable witness,” Mrs. Becker, would have been
called to render testimony against Appellant in any future
proceedings due to her recantation and refusal to cooperate
with law enforcement. These findings of fact are supported by
the record.
When determining the applicability of the forfeiture by
wrongdoing exception, the military judge applied the
appropriate standard articulated in Giles. As he stated in his
findings:
To establish waiver/forfeiture by wrongdoing, the
government must demonstrate both that the
accused’s actions caused the witness’ unavailability
and the accused’s conduct was “designed” to prevent
the witness’ testimony. United States v. Giles, 554
U.S. 353, 364 (2008). Therefore, the accused must
have “intended” to prevent the witnesses’ testimony
before waiver applies and statements are admitted
without confrontation.
In light of the available circumstantial evidence, the
military judge concluded that the second prong in Giles had
not been satisfied, i.e., that Appellant’s actions against Mrs.
Becker were done with the intention of preventing her
testimony. He simply was not persuaded that the record
supported a ruling stripping Appellant of his right to
confrontation regarding Mrs. Becker’s statements.3
3 Nor are we persuaded, contrary to the lower court’s implied
insinuation to the contrary, that the military judge ignored
important facts. The situation in this case is nothing akin to the
situations we have encountered in the past where we concluded the
military judge had indeed done so. See Commisso, 76 M.J. at 323
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Finally, as noted earlier, we directly review the military
judge’s findings for an abuse of discretion. That said, we
disagree with the lower court’s decision to disregard the
military judge’s analysis and conduct a Giles analysis on a
particular set of facts determined to be important to the lower
court. On an Article 62, UCMJ, appeal, the lower court is not
authorized to make factual determinations to support a
simple difference of opinion between it and the military judge.
IV. Conclusion
We hold there was no abuse of discretion in the ruling to
suppress the statements provided by Mrs. Becker based on
the facts and the applicable legal standards. The decision of
the United States Navy-Marine Corps Court of Criminal
Appeals is reversed. The case is returned to the Judge
Advocate General of the Navy for remand to the military
judge for further proceedings consistent with this opinion.
(the military judge neglected to consider facts that should have
been weighed heavily in resolving the critical issue); United States
v. Solomon, 72 M.J. 176, 181 (C.A.A.F. 2013) (the military judge
failed to reconcile or even mention uncontroverted police report
showing accused was in custody at the time the victims were being
assaulted).
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