United States v. Reynoso , 2008 CAAF LEXIS 531 ( 2008 )

UNITED STATES, Appellee
v.
Joseph M. REYNOSO, Sergeant
U.S. Marine Corps, Appellant
No. 07-0221
Crim. App. No. 200401465
United States Court of Appeals for the Armed Forces
Argued December 12, 2007
Decided April 25, 2008
BAKER, J., delivered the opinion of the Court, in which EFFRON,
C.J., and ERDMANN, STUCKY, and RYAN, JJ., joined.
Counsel
For Appellant: Lieutenant Brian D. Korn, JAGC, USN (argued);
Major Jeffrey S. Stephens, USMC.
For Appellee: Lieutenant Derek D. Butler, JAGC, USN (argued);
Commander Paul C. LeBlanc, JAGC, USN (on brief); Major Kevin C.
Harris, USMC, and Lieutenant David H. Lee, JAGC, USN.
Military Judge: J. G. Baker
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Reynoso, No. 07-0221/MC
Judge BAKER delivered the opinion of the Court.
Appellant was tried by a general court-martial convened with
members at Camp Foster, Okinawa, Japan. Contrary to his pleas,
he was found guilty of making false official statements,
wrongful use of marijuana, larceny, and making a false claim,
all in violation of Articles 107, 112a, 121, 132, Uniform Code
of Military Justice (UCMJ), 10 U.S.C. §§ 907, 912a, 921, 932
(2000). The court members sentenced Appellant to confinement
for three years, a dishonorable discharge, reduction to the
lowest enlisted grade, and payment of a fine of $28,000, with an
additional period of confinement if the fine was not paid. The
convening authority approved the adjudged sentence, but
suspended the amount of the fine in excess of $18,000, and
disapproved the contingent confinement. The findings and the
sentence, as approved by the convening authority, were affirmed
by the United States Navy-Marine Corps Court of Criminal
Appeals. United States v. Reynoso, No. NMCCA 200401465 (N-M.
Ct. Crim. App. July 26, 2005). This Court granted review of the
following questions:
DID A DEFENSE OBJECTION OF “LACK OF FOUNDATION” TO A
SUMMARY DOCUMENT MOVED INTO EVIDENCE UNDER M.R.E. 1006
EITHER INCLUDE OR PRESERVE AN OBJECTION TO THE
ADMISSIBILITY OF THE UNDERLYING EVIDENCE UPON WHICH THE
SUMMARY WAS BASED?
WAS THE EVIDENCE UPON WHICH THE M.R.E. 1006 SUMMARY WAS
BASED ADMISSIBLE AS AN EXCEPTION TO HEARSAY AND
PROFFERED BY A COMPETENT WITNESS?
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Based on the reasoning below, we find that Appellant failed to
preserve any error with respect to Military Rule of Evidence
(M.R.E.) 1006, and that the subsequent admission of the evidence
at issue in this case was not plain error.
I.
Appellant, while stationed in Okinawa, Japan, completed a
dependency application form (NAVMC 10922) that indicated that he
had recently married, and that his wife lived in San Francisco,
California. Based on the information that Appellant provided in
the application, he received a basic allowance for housing (BAH)
based on the rate established for dependents residing in the San
Francisco region. However, testimony at trial established that
during the relevant period, Mrs. Reynoso actually lived in
Virginia Beach, Virginia, a fact known to Appellant.
The Government called Chief Warrant Officer 2 (CWO2) John
Ruiz who was accepted on the record as an expert on personnel
administration matters. During the course of CWO2 Ruiz’s
testimony, the Government moved into evidence Prosecution
Exhibit 6 (PE 6), a chart that CWO2 Ruiz had helped formulate
demonstrating the difference in BAH rates and the cost of living
allowances (COLA) for San Francisco and Virginia Beach. The
chart had been compiled using information drawn from the Defense
Finance and Accounting Service (DFAS) website and Appellant’s
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United States v. Reynoso, No. 07-0221/MC
leave and earning statements. Prior to offering the exhibit,
trial counsel’s questions to the witness were as follows:
Q. Did you help formulate what was on that document?
A. Yes, I did.
Q. Is it a fair and accurate depiction of what the accused
actually drew?
A. Yes. During those times, yes, sir.
Q. Is it a fair and accurate depiction of what he would have
rated if his wife lives [sic] in Virginia?
A. Yes, sir.
Q. Would using this diagram help you to explain your
testimony to the members and to this court?
A. I think it would, sir. It would actually just give it an
actual hard number of the difference in entitlements.
At this point, defense counsel objected to the admission of
PE 6, stating the grounds to be “foundation.” Defense counsel
then conducted voir dire of CWO2 Ruiz, asking him, inter alia,
whether he had personally verified the information on PE 6 to
which CWO2 Ruiz stated that he had not. The court then recessed
for twelve minutes, after which trial counsel questioned CWO2
Ruiz about matters raised during defense counsel’s voir dire.
He established that, while CWO2 Ruiz had not verified the COLA
and BAH rates for each month, he had checked the entitlement
amounts at points where they were likely to change. CWO2 Ruiz
also described how he obtained the information from the DFAS
website and Appellant’s leave and earnings statements. The
Government again moved the exhibit into evidence, and defense
counsel renewed his objection on the grounds of foundation. The
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United States v. Reynoso, No. 07-0221/MC
military judge overruled the objection, and the exhibit was
admitted.
The United States Navy-Marine Corps Court of Criminal
Appeals affirmed Appellant’s conviction on an appeal submitted
without assignment of error. On appeal to this Court, Appellant
argues that PE 6 was inadmissible because it was a summary of
the source documents on the DFAS website, and the Government did
not lay a proper foundation under M.R.E. 1006 to admit the
summary. Further, Appellant argues that the information
contained on the DFAS website, from which CWO2 Ruiz derived PE
6, constituted hearsay, and was thus inadmissible under M.R.E.
802.
II.
The threshold question in this case is whether Appellant’s
objection on foundational grounds preserved the issues he now
advances on appeal. M.R.E. 103(a)(1) states that in order to
preserve an objection when “the ruling is one admitting
evidence” the objecting party must make “a timely objection or
motion to strike . . . in the record, stating the specific
ground of objection, if the specific ground was not apparent
from the context.” In United States v. Datz, 61 M.J. 37, 42
(C.A.A.F. 2005), this Court stated that “[o]n its face, M.R.E.
103 does not require the moving party to present every argument
in support of an objection, but does require argument sufficient
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United States v. Reynoso, No. 07-0221/MC
to make the military judge aware of the specific ground for
objection.” In short, M.R.E. 103 should be applied in a
practical rather than a formulaic manner.
With this backdrop, it is not clear from the record that
Appellant’s “[o]bjection on foundation,” taken in context, was
sufficient to make the military judge aware of the issues he is
now raising before this Court. At trial, defense counsel’s voir
dire appeared designed to suggest that CWO2 Ruiz was not in a
position to know whether the figures he relied on were accurate.1
Therefore, it is not clear that the objection was intended to
challenge the hearsay nature of the underlying figures. Given
the numerous bases on which a foundational objection might be
lodged, some further indication of defense counsel’s specific
concern was necessary.
As a result, this case is distinguished from Datz, where
the defense counsel initially objected on relevancy grounds to
testimony about the defendant nodding in response to
questioning, only later to argue that the head nod was not an
1
For example, the record contains the following exchange:
Q: What about the next number . . . did you verify that
one?
A: I didn’t audit this for -– to say that it’s all
correct. . . .
Q: So you really don’t know if this is correct or not?
A: No.
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adoptive admission under M.R.E. 802(d)(2). 61 M.J. at 41-42.
Thus, although defense counsel in Datz cited one rule as the
basis of the defendant’s objection, the subsequent discussion
clearly established the grounds on which the subsequent
challenge on appeal was based. Therefore, we are hard pressed
to hold that, in this case, the mere utterance, “Objection on
foundation,” preserved any issue under M.R.E. 1006 regarding the
document itself or any hearsay issue regarding the underlying
evidence upon which the document was based. This is the very
reason for the specificity requirement under M.R.E. 103(a)(1).
III.
Having determined that Appellant forfeited the claim of
error he now asserts, we review the admission of PE 6 for plain
error. See M.R.E. 103(d); United States v. Moran, 65 M.J. 178,
181 (C.A.A.F. 2007).
Although no specific rule of admissibility was cited at
trial, the Government argues that PE 6 was properly admitted as
a summary under M.R.E. 1006. M.R.E. 1006 states:
The contents of voluminous writings, recordings, or
photographs which cannot conveniently be examined in court
may be presented in the form of a chart, summary, or
calculation. The originals, or duplicates, shall be made
available for examination or copying, or both, by other
parties at reasonable time and place. The military judge
may order that they be produced in court.
The Drafters’ Analysis of M.R.E. 1006 notes that it was adopted
from Fed. R. Evid. 1006 “without change.” Manual for Courts-
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United States v. Reynoso, No. 07-0221/MC
Martial, United States, Analysis of the Military Rules of
Evidence app. 22 at A22-60 (2005 ed.) [hereinafter Drafters’
Analysis]. It is therefore appropriate to consider the
admissibility of such summaries under the analysis used by the
civilian federal courts. In federal civilian practice, summary
evidence is admissible under Fed. R. Evid. 1006 only if the
underlying materials upon which the summary is based are
admissible. See AMPAT/Midwest, Inc. v. Illinois Tool Works,
Inc., 896 F.2d 1035, 1045 (7th Cir. 1990); United States v.
Meyers, 847 F.2d 1408, 1412 (9th Cir. 1988); State Office
Systems, Inc. v. Olivetti Corp. of Am., 762 F.2d 843, 845 (10th
Cir. 1985); Hackett v. Housing Auth., 750 F.2d 1308, 1312 (5th
Cir. 1985); Paddack v. Dave Christensen, Inc., 745 F.2d 1254,
1259 (9th Cir. 1984); United States v. Johnson, 594 F.2d 1253,
1255-57 (9th Cir. 1979). However, civilian practice permits an
exception to this rule. See, e.g., Olivetti Corp. of Am., 762
F.2d at 845-46 (summary of lost profits admissible as opinion
evidence of qualified expert witness). Military practice
permits an exception as well, as indicated in the Drafters’
Analysis to the rule. Specifically, “It is possible for a
summary that is admissible under Rule 1006 to include
information that would not itself be admissible if that
information is reasonably relied upon by an expert preparing the
summary.” Drafters’ Analysis at A22-60.
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In the present case, CWO2 Ruiz was already qualified as an
expert in personnel administration and had stated that he had
relied on the DFAS website to compile the information. Thus,
under M.R.E. 1006, PE 6 might have been admitted under this
expert witness exception because the figures CWO2 Ruiz used were
“reasonably relied upon by an expert preparing the summary.”
Furthermore, had there been an objection specific to M.R.E.
1006, the parties could have litigated before the military judge
the fairly detailed foundation for the admissibility of such
evidence.2 Therefore, since PE 6 was not clearly inadmissible,
in the absence of a more specific objection and some indication
on the record that the foundational elements of M.R.E. 1006 were
not met, there was no plain error in admitting it.
DECISION
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is affirmed.
2
For instance, the proponent might or might not have been able
to show: the originals or duplicates of the originals would be
admissible; the originals or duplicates were too numerous or too
voluminous to be conveniently introduced during trial; the
relevant fact was a summary of the record’s contents; the
opponent was granted access to the originals or duplicates for
inspection; or, the witness personally reviewed all the records
or was a member of a team of experts who reviewed the records.
Edward J. Imwinkelried, Evidentiary Foundations § 8.08[7] (6th
ed. 2005).
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