United States v. Cabrera-Frattini , 2007 CAAF LEXIS 819 ( 2007 )

UNITED STATES, Appellant
v.
Jose R. CABRERA-FRATTINI, Lance Corporal
U.S. Marine Corps, Appellee
No. 07-5001
Crim. App. No. 200201665
United States Court of Appeals for the Armed Forces
Argued February 5, 2007
Decided June 22, 2007
RYAN, J., delivered the opinion of the Court, in which EFFRON,
C.J., and BAKER, ERDMANN, and STUCKY, JJ., joined.
Counsel
For Appellant: Major Brian K. Keller, USMC (argued); Commander
P .C. LeBlanc, JAGC, USN, and Colonel R. F. Miller, USMC (on
brief).
For Appellee: Captain S. Babu Kaza, USMC (argued).
Military Judges: A. W. Keller and T. A. Daley (arraignment)
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Cabrera-Frattini, No. 07-5001/MC
Judge RYAN delivered the opinion of the Court.
In Crawford v. Washington, the Supreme Court held that
“[t]estimonial statements of witnesses absent from trial” are
admissible “only where the declarant is unavailable, and only
where the defendant has had a prior opportunity to cross-examine
[the witness].” 541 U.S. 36, 59 (2004). We are asked in this
case to determine whether the military judge abused his
discretion by finding a thirteen-year-old witness suffering from
bipolar disorder and post-traumatic stress syndrome unavailable
for Confrontation Clause purposes based on the witness’s medical
records and the testimony of a board-certified child
psychiatrist that testifying would be detrimental to the
witness’s mental and physical health, including possible suicide
at both the time of trial and the foreseeable future. We hold
that the military judge did not abuse his discretion by ruling
that the witness was unavailable.
A general court-martial, composed of officer and enlisted
members, convicted Appellee, contrary to his pleas, of carnal
knowledge and committing an indecent act with a minor in
violation of Articles 120 and 134, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. §§ 920, 934 (2000). The sentence
adjudged by the court-martial and approved by the convening
authority included forfeiture of all pay and allowances,
reduction to the lowest enlisted grade, confinement for three
2
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years, and a dishonorable discharge. The United States Navy-
Marine Corps Court of Criminal Appeals set aside the findings
and sentence, holding that the military judge erred by
determining that the witness was unavailable and admitting her
videotaped deposition, in violation of Appellee’s Sixth
Amendment right to confrontation. United States v. Cabrera-
Frattini, No. NMCCA 200201665, 2006 CCA LEXIS 218, at *1 (N-M.
Ct. Crim. App. Aug. 2, 2006)(unpublished). Chief Judge Rolph,
in dissent, concluded that the military judge had not erred.
Id. at *32-*68.
Pursuant to Article 67(a)(2), UCMJ, 10 U.S.C. § 867 (a)(2)
(2000), the Judge Advocate General of the Navy certified to this
Court this issue:
WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS
ERRONEOUSLY HELD THAT THE MILITARY JUDGE ABUSED HIS
DISCRETION BY FINDING THE 13-YEAR-OLD WITNESS UNAVAILABLE ON
THE BASIS OF MENTAL ILLNESS OR INFIRMITY, AND THUS THAT THE
MILITARY JUDGE HAD ERRONEOUSLY ADMITTED THE WITNESS’S
VIDEOTAPED DEPOSITION.
A. Background
1. TO’s deposition
The charges referred against Appellee arise from sexual
intercourse he had with TO while another Marine anally sodomized
her. TO, then a twelve-year-old girl, is unrelated to Appellee.
In October 2001, the military judge ordered the deposition
of TO so that Appellee would not be denied the opportunity to
3
United States v. Cabrera-Frattini, No. 07-5001/MC
cross-examine a key Government witness under oath prior to
trial.1
TO was deposed on November 13, 2001. The deposition was
videotaped in accordance with R.C.M. 702(g)(3). TO gave her
testimony under oath and in Appellee’s presence. Appellee’s
military counsel conducted a full cross-examination of TO
without limitation.2 This post-referral deposition was taken in
full contemplation of the charged offenses referred to general
court-martial.
2. Prosecution subpoenas and attempts to obtain TO for trial
Trial was scheduled to begin on December 10, 2001. Trial
counsel subpoenaed TO and her mother to appear, issued travel
orders, and made arrangements for them to fly from St. Louis,
Missouri, to Parris Island, South Carolina.
1
TO had moved to another state, and was unavailable at
Appellee’s Article 32, UCMJ, 10 U.S.C. § 832 (2000),
investigation. Appellee sought to depose TO so that he could
cross-examine her to “ask her those hard questions and get them
on the record.” The military judge ordered the deposition, but
denied Appellee’s motion for a new Article 32, UCMJ,
investigation. He found the existing investigation in
substantial compliance with Rule for Courts-Martial (R.C.M.)
405(a). The military judge instead ordered the Article 32,
UCMJ, investigation reopened for the sole purpose of considering
TO’s deposition. After considering TO’s deposition, the
investigating officer again recommended a general court-martial.
2
The Navy Marine Corps Court of Criminal Appeals noted: “There
is no dispute that the deposition was properly ordered and
conducted, and that appellant had ample and full opportunity to
cross-examine TO, with a view toward the deposition’s possible
later use at trial.” Cabrera-Frattini, 2006 CCA LEXIS 218, at
*13. This portion of the decision was not appealed.
4
United States v. Cabrera-Frattini, No. 07-5001/MC
3. TO’s hospitalization
Shortly after her deposition, TO attempted suicide. On
December 4, 2001, she was admitted to a psychiatric hospital in
St. Louis, Missouri, because she was a severe danger to herself.
Upon admission, TO was preoccupied with suicidal thoughts.
Dr. Linda Bock, a psychiatrist who specializes in child and
adolescent psychiatry, initiated in-patient psychiatric
treatment of TO’s “significant psychiatric problems.”
4. TO’s absence from trial
On December 7, trial counsel received a faxed letter from
TO’s treating physician, Dr. Bock, which informed trial counsel
that TO was hospitalized for in-patient psychiatric evaluation
and treatment in St. Louis, Missouri, because TO was a “severe
danger to herself.” The letter stated TO was having
“significant psychiatric problems” and was being treated with
medications, but having “medication adjustment reactions.” It
further stated she could not attend court before the end of
December 2001 and that her date of discharge from the hospital
was unknown.
5. The military judge’s inquiry
On December 10, 2001, Appellee’s counsel filed a motion in
limine to exclude TO’s videotaped deposition testimony. Several
hearings on the motion were held at which the Government offered
documentary evidence to explain TO’s hospitalization and ongoing
5
United States v. Cabrera-Frattini, No. 07-5001/MC
medical condition as the reason for her unavailability for
trial.
The military judge required more. Consequently, pursuant
to the military judge’s order, the trial counsel produced Dr.
Bock for an Article 39(a), UCMJ, 10 U.S.C. § 839(a) (2000),
session on January 22, 2002. Dr. Bock appeared before the
military judge to address TO’s medical and psychiatric
condition. Without objection, Dr. Bock established her
credentials and expertise as a board-certified child
psychiatrist and practicing psychiatric analyst with more than
twenty years of experience.3
In addition to her curriculum vitae, Dr. Bock presented
eighty-eight pages of TO’s medical and psychiatric treatment
records. In her sworn testimony, Dr. Bock reiterated the
diagnosis she had previously documented in TO’s medical records.
She described bipolar disorder as a mood disorder that caused TO
to suffer disturbed, erratic behavior. She explained that TO
suffered from bipolar II disorder, rapid cycling and post-
traumatic stress disorder, as defined by criteria set forth in
3
Dr. Bock’s curriculum vitae reflected an internship in
pediatrics, a residency in psychiatry, and a fellowship in child
and adolescent psychiatry. She served in numerous consulting
and teaching positions relating to her profession, published
extensively in her field, and was a member and/or director of
multiple professional organizations related to the treatment of
psychiatric disorders.
6
United States v. Cabrera-Frattini, No. 07-5001/MC
the Diagnostic and Statistical Manual of Mental Disorders (DSM-
IV) (4th ed. 1994).
Dr. Bock testified that TO’s mental condition deteriorated
significantly after TO gave her deposition. As evidence, Dr.
Bock cited TO’s suicide attempt. Its gravity was magnified by
the fact that it was her second attempt. In her sessions with
Dr. Bock, TO focused on the issue of testifying at the trial as
one of the reasons that she could not go on living, believing it
would be better to be dead than to testify. TO’s condition
required Dr. Bock to administer antipsychotic and mood-
stabilizer medications to treat her disorders. Dr. Bock and
other practitioners treated TO in the hospital for almost a
week. Dr. Bock discharged TO on December 10, 2001.
Dr. Bock described TO’s prognosis upon release from
hospitalization as “guarded,” noting that TO had “a serious
chronic psychiatric disorder.” She did not expect TO’s mood to
begin to show signs of stabilizing for at least six to twelve
months due to her illness, as that was the time needed for the
antipsychotic and mood-stabilizing drugs to have an appreciable
effect. Dr. Bock expected a difficult recovery period with a
possibility of re-hospitalization. Dr. Bock concluded that it
would be detrimental for TO to testify as a witness based upon
TO’s demonstrated psychological abnormalities before and during
hospitalization.
7
United States v. Cabrera-Frattini, No. 07-5001/MC
On cross-examination, Dr. Bock reiterated her medical
conclusion that TO could not testify because it would aggravate
TO’s bipolar disorder. She testified that TO was on the verge
of psychotic mania during her hospitalization. She stated that
she had prescribed medications to get TO’s stress levels down
and that, while testifying out of the sight of the members might
be less stressful, it still would detrimentally increase brain
stimulation.
In response to the military judge’s questions, Dr. Bock
testified that TO’s mental illness was ongoing and its treatment
would be long-term and protracted. She told the military judge
that testifying would be a major, over-stimulating event for TO,
which could predictably result in a repeat suicide attempt or a
repeat psychiatric hospitalization.
Dr. Bock further testified on both direct and cross-
examination that TO would not be able to talk about what
happened to her until TO, who was then thirteen, was eighteen to
twenty-five, and perhaps not even then.
At the time of this hearing, a month and a half had passed
since Dr. Bock had seen TO. Dr. Bock addressed the current
accuracy of her prognosis, stating there was no other data that
would be pertinent to change her view.
8
United States v. Cabrera-Frattini, No. 07-5001/MC
6. The military judge’s findings of fact
Based upon Dr. Bock’s testimony and the medical record
evidence, the military judge found that TO had two significant
psychiatric illnesses: bipolar II disorder and post-traumatic
stress disorder. He found that she was being treated with
Seroquel, a brain protectant and antipsychotic, and Tegretol, a
mood stabilizer. As a result, he found that it “would be
detrimental to [TO]’s mental and physical health now and in the
foreseeable future to testify at the court-martial or any
hearing regarding the charges before the court . . . .” He
concluded that “any court appearance would re-traumatize [TO]
and would worsen her mental and physical health to include her
possible suicide.”
Moreover, he found that TO “had first-hand knowledge of the
material facts in her deposition[,] . . . appreciated the moral
duty to tell the truth[,] . . . was reluctant to testify against
the accused[,] . . . [and] lacked a motive to fabricate having
consensual sexual intercourse with the accused.”
7. The military judge’s conclusion of law
The military judge concluded TO was unavailable and
admitted TO’s videotaped deposition. The military judge ruled
that the prosecution had established the requirement of
unavailability for purposes of both the Sixth Amendment and
9
United States v. Cabrera-Frattini, No. 07-5001/MC
Military Rule of Evidence (M.R.E.) 804.4 He concluded the
government had made a reasonable and good-faith effort to obtain
TO’s presence.
Appellee’s counsel did not introduce contradictory expert
testimony, ask to perform his own psychiatric assessment of TO,
or request a continuance.
Based on TO’s videotaped deposition and the other evidence
presented at trial, Appellee was convicted.
B. Discussion
The Confrontation Clause of the Sixth Amendment provides
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. The Supreme Court recently decided
that, before “testimonial” statements may be admitted, the
Confrontation Clause requires that the accused have been
afforded a prior opportunity to cross-examine the witness, and
that the witness be unavailable. Crawford, 541 U.S. at 53-54.
The military judge decided this case prior to the Supreme
Court’s decision in Crawford. At that time, the admissibility
of out-of-court statements under the Confrontation Clause was
controlled by Ohio v. Roberts, 448 U.S. 56 (1980). Crawford
applies to criminal cases, such as this one, that are still
4
As we respond only to the certified issue relating to
unavailability, we will not address the other findings of the
military judge related to the admissibility of the deposition.
10
United States v. Cabrera-Frattini, No. 07-5001/MC
pending on direct review. See Griffith v. Kentucky, 479 U.S
314, 328 (1987) (holding “a new rule for the conduct of criminal
prosecutions is to be applied retroactively to all cases . . .
pending on review”); see also Whorton v. Bockting, 127 S. Ct.
1173, 1181 (2007) (declaring Crawford to be a new rule of law).
Crawford did not purport to change the test of witness
“unavailability.” Crawford, 541 U.S. at 53-54.
1. Legal framework
It has been the rule in this Court for more than twenty
years that a military judge’s determination of a witness’s
unavailability (and the antecedent question of the government’s
good-faith efforts) is reviewed for abuse of discretion. United
States v. Cokeley, 22 M.J. 225, 229 (C.M.A. 1986). “Findings of
fact are affirmed unless they are clearly erroneous; conclusions
of law are reviewed de novo.” United States v. Rader, 65 M.J.
30, 32 (C.A.A.F. 2007). So long as the military judge
understood and applied the correct law, and the factual findings
are not clearly erroneous, neither the military judge’s decision
to admit evidence, nor his unavailability ruling, should be
overturned. United States v. McDonald, 59 M.J. 426, 430
(C.A.A.F. 2004) (citations omitted).
In order for a witness to be “unavailable” for Sixth
Amendment purposes, the government must first make a “good
faith” effort to secure the witness’s presence at trial. Barber
11
United States v. Cabrera-Frattini, No. 07-5001/MC
v. Page, 390 U.S. 719, 724-25 (1968). In Roberts, the Supreme
Court held that the lengths to which the prosecution must go to
produce a witness is determined under a reasonableness standard.
448 U.S. at 74. “[E]valuation of reasonableness or good-faith
effort ‘requires us to consider all the circumstances rather
than to apply a per se rule.’” Cook v. McKune, 323 F.3d 825,
835 (10th Cir. 2003) (quoting Martinez v. Sullivan, 881 F.2d
921, 924 n.1 (10th Cir. 1989)). See also Cokeley, 22 M.J. at
229 (recognizing that “there is no bright-line rule which will
fit every situation,” and that the “judge must carefully weigh
all facts and circumstances of the case, keeping in mind the
preference for live testimony.”). The test for unavailability
focuses on “whether the witness is not present in court in spite
of good-faith efforts by the Government to locate and present
the witness.” Cokeley, 22 M.J. at 228.
Courts are not without guidance in undertaking this fact-
and circumstance-driven inquiry. This Court has addressed some
factors that should be considered to determine unavailability,
including “the importance of the testimony, the amount of delay
necessary to obtain the in-court testimony, the trustworthiness
of the alternative to live testimony, the nature and extent of
earlier cross-examination, the prompt administration of justice,
and any special circumstances militating for or against delay.”
Id. Where the absence of the witness results from illness, a
12
United States v. Cabrera-Frattini, No. 07-5001/MC
court should also consider the nature of the illness and the
probable duration of the illness. See United States v. Faison,
679 F.2d 292, 297 (3d Cir. 1982).
2. Analysis
“When reviewing a decision of a Court of Criminal Appeals
on a military judge’s ruling, ‘we typically have pierced through
that intermediate level’ and examined the military judge’s
ruling, then decided whether the Court of Criminal Appeals was
right or wrong in its examination of the military judge’s
ruling.” United States v. Shelton, 64 M.J. 32, 37 (C.A.A.F.
2006) (quoting United States v. Siroky, 44 M.J. 394, 399
(C.A.A.F. 1996)). The sole issue before us is whether the lower
court erred in reversing the military judge’s ruling that TO was
unavailable for purposes of the Sixth Amendment. We conclude
that it did.
The military judge’s ruling on the motion in limine
identifies the appropriate framework for legal analysis for an
unavailability determination and addresses the relevant Cokeley
and Faison factors, in the context of undisputed factual
13
United States v. Cabrera-Frattini, No. 07-5001/MC
findings.5 Those factual findings are not clearly erroneous, and
we accept them as the factual predicate for our decision.
The military judge’s good faith/unavailability findings
included the following: (a)the government subpoenaed TO and her
mother, issued their travel orders and made arrangements to fly
them to Parris Island; (b) TO’s hospitalization prevented her
from complying with the subpoena; (c) TO had two significant
psychiatric illnesses -- bipolar II disorder and post-traumatic
stress disorder; (d) TO was taking Seroquel, a brain protectant
and antipsychotic drug, and Tegretol, a mood stabilizer; (e) it
“would be detrimental to TO’s mental and physical health now and
in the foreseeable future to testify at this court-martial or
any hearing regarding the charges that were before the court”;
and (f) “[a]ny court appearance would re-traumatize [TO] and
would worsen her mental and physical health to include her
possible suicide” (emphasis added).
In this case, the military judge did not abuse his
discretion by concluding that the Government exercised good
faith efforts under the circumstances to produce TO at trial and
that she was, nonetheless, unavailable. As both the majority
and dissent below recognize, “[t]here is ample precedent for
5
Cokeley, of course, was decided in the context of a military
judge’s denial of a defense request for a continuance. There
was no such request in this case.
14
United States v. Cabrera-Frattini, No. 07-5001/MC
finding a witness, even a critical one, unavailable where the
act of testifying in court is determined to be detrimental to
the witness’s physical or mental well-being.” Cabrera-Frattini,
2006 CCA LEXIS 218, at *13-*14 (citing United State v. Keithan,
751 F.2d 9, 12-13 (1st Cir. 1984) (finding unavailability in
case of an elderly witness whose infirmity prevented travel);
Howard v. Sigler, 454 F.2d 115, 120-21 (8th Cir. 1972)
(upholding unavailability determination where tuberculosis
prevented travel, even though witness might recover some day));
accord Cabrera-Frattini, 2006 CCA LEXIS 218, at *53 (Rolph,
C.J., dissenting) (citing United States v. Donaldson, 978 F.2d
381, 393 (7th Cir. 1992) (affirming unavailability determination
of pregnant female admitted to hospital on the eve of trial));
see also Ecker v. Scott, 69 F.3d 69, 70-73 (5th Cir. 1995)
(finding unavailability where there was a fifty-percent chance
the witness would still be unavailable after three to four
weeks); Conley v. McKune, 2004 U.S. Dist LEXIS 26315, at *18-*19
(D. Kan. 2000) (finding unavailability as a result of a
witness’s medical condition and not as a result of the
prosecution’s lack of reasonable diligence); Warren v. United
States, 436 A.2d 821, 827-28 (D.C. 1981) (affirming a finding of
unavailability where there was a high likelihood of temporary or
permanent psychological injury). And this Court’s precedent
15
United States v. Cabrera-Frattini, No. 07-5001/MC
reaffirms that “[u]navailability is clear when the witness is
not expected to improve.” Cokeley, 22 M.J. at 229.
Expert testimony supported the military judge’s finding
that TO suffered from severe psychiatric illness that would make
testifying at trial or any hearing “now and in the foreseeable
future” detrimental to TO’s mental and physical health.6 Under
the facts of this case, “detrimental” included the possible
suicide of TO.
The military judge’s analysis and rulings reflect that he
understood that Confrontation Clause considerations are most
consequential “when the testimony of a witness is critical to
the prosecution’s case against the defendant.” United States v.
Quinn, 901 F.2d 522, 529 (6th Cir. 1990) (quoting United States
v. Lynch, 499 F.2d 1011, 1022 (D.C. Cir. 1974)). Contrary to
Appellee’s assertion, the actions of the military judge in this
case are dissimilar from those at issue in Cokeley, 22 M.J. at
229 (finding military judge abused his discretion based on
misapprehension of the applicable law and a failure to
6
We note that a continuance was not requested and, in any event,
“is not necessary in every case where a witness is ill but may
recover someday.” Cokeley, 22 M.J. at 229. Given the testimony
about the protracted nature of TO’s psychiatric illness, the
benefit of a continuance is speculative, at best. See also
United States v. Crockett, 21 M.J. 423, 427-28 (C.M.A. 1986)
(affirming finding of unavailability where videotaped deposed
witnesses were in Florida and unwilling to travel to Germany for
trial).
16
United States v. Cabrera-Frattini, No. 07-5001/MC
articulate the relevant factors on the record) and Burns v.
Clusen, 798 F.2d 931, 942 (7th Cir. 1986) (concluding that the
factual findings were not supported by the record). In this
case, the military judge not only entered detailed findings of
fact and conclusions of law, he also required the prosecution to
carry its burden of demonstrating “unavailability” before the
witness’s out-of-court statement was admitted.7 See Roberts, 448
U.S. at 74-75; Cokeley, 22 M.J. at 229.
The lower court held that the military judge erred by
finding TO unavailable based solely on the evidence presented by
the Government. The question that divided the lower court was
whether the trial judge took sufficient steps to determine that
TO was unavailable for trial. The majority concluded that the
military judge should have required more, such as an updated
prognosis, an independent medical opinion from a court-appointed
expert, a recent letter from TO or her mother, or explicit
exploration of the alternative of remote testimony. There could
be a case where the alternative steps proposed by the lower
court might be warranted. But in this case, Dr. Bock
7
We note that the military judge required, over the Government’s
objection, that Government counsel call Dr. Bock to testify in
order to demonstrate unavailability. But for the military
judge’s insistence on this additional evidence, it is
questionable that the Government would have met its burden of
proof regarding the unavailability of a key Government witness
by assuming it needed to put forward only the faxed letters
initially offered.
17
United States v. Cabrera-Frattini, No. 07-5001/MC
established both that TO was suffering from a serious mental
illness that would likely demand years of medication and therapy
to control, and that the risk of suicide was ongoing and would
be exacerbated by testifying in any forum in the foreseeable
future.
While Dr. Bock’s testimony was presented to the trial judge
forty-four days after her examination, Dr. Bock addressed the
current accuracy of her prognosis, stating there was no other
data that would be pertinent to change her view. We agree with
Chief Judge Rolph that Dr. Bock’s diagnosis was not stale.
Cabrera-Frattini, 2006 CCA LEXIS 218, at *57-*59 (Rolph, C.J.,
dissenting).
The military judge found that it would cause TO harm “now
and in the foreseeable future” to testify “at this court martial
or any hearing regarding the charges before the court.” In
light of this finding, exploring the option of remote live
testimony was not indicated.
The lower court did not hold that the military judge’s
findings of fact were clearly erroneous or unsupported by the
record. And it did “not quibble with the qualifications of Dr.
Bock’s or her diagnosis that TO was suffering from a serious
mental illness in December 2001 that would likely demand years
of medication and therapy to control.” Cabrera-Frattini, 2006
CCA LEXIS 218, at *22. Rather, it noted that Dr. Bock’s opinion
18
United States v. Cabrera-Frattini, No. 07-5001/MC
was “based on considerable medical acumen and reliable
statistics . . . .” Id. at *23.
Appellee has not identified precedent requiring a second
medical opinion upon a trial court finding that a mental or
physical illness could be exacerbated, with potentially life-
threatening consequences, by a court appearance. Nor are we
aware of a rule requiring courts to investigate independently
the established medical condition of an unavailable witness,
absent defendant’s request for an examination. See Alcala v.
Woodford, 334 F.3d 862, 880-81 (9th Cir. 2003) (holding courts
have no duty to investigate, sua sponte, the medical condition
of an alleged unavailable witness); Warren, 436 A.2d at 830(finding no responsibility on the part of court to request, sua
sponte, an updated report of psychological health, relying
instead on “a reasonable presumption of continuing mental
condition”).
We decline to hold that while non-amenability and refusal
of a witness to voluntarily appear can establish constitutional
unavailability, a life-threatening illness can not. See Mancusi
v. Stubbs, 408 U.S. 204, 212 (1972) (holding witness unavailable
because state was powerless to compel witness’s attendance at
trial); Crockett, 21 M.J. at 427-28 (reasoning that witnesses in
Florida were unavailable because they could not be compelled
against their will to testify in Germany).
19
United States v. Cabrera-Frattini, No. 07-5001/MC
Under the particular facts of this case, we hold that the
military judge did not abuse his discretion by concluding that
the Government made good faith efforts to procure the witness’s
presence for trial, concluding that TO was unavailable, and
admitting TO’s videotaped deposition testimony.8
3. Decision
We answer the certified question in the affirmative. The
decision of the United States Navy-Marine Corps Court of
Criminal Appeals is set aside. The record of trial is returned
to the Judge Advocate General of the Navy for remand to that
court for further review in accordance with Article 66, UCMJ, 10
U.S.C. § 866 (2000).
8
Concluding that TO was unavailable under the Confrontation
Clause, we also are satisfied that the military judge did not
abuse his discretion in finding TO unavailable under M.R.E.
804(a)(4).
20