United States v. Becker ( 2020 )


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  • This opinion is subject to administrative correction before final disposition.
    Before
    GASTON, STEPHENS, and STEWART
    Appellate Military Judges
    _________________________
    UNITED STATES
    Appellant
    v.
    Craig R. BECKER
    Lieutenant (O-3), U.S. Navy
    Appellee
    No. 201900342
    Decided: 24 July 2020
    Appeal by the United States Pursuant to Article 62, UCMJ
    Military Judge:
    Aaron C. Rugh
    Arraignment 13 February 2019 before a general court-martial con-
    vened at Naval Base San Diego, California, consisting of officer mem-
    bers.
    For Appellant:
    Major Kerry E. Friedewald, USMC
    Lieutenant Commander Timothy C. Ceder, JAGC, USN
    For Appellee:
    Lieutenant Daniel O. Moore, JAGC, USN
    Captain Marcus N. Fulton, JAGC, USN
    United States v. Becker, NMCCA No. 201900342
    Opinion of the Court
    _________________________
    PUBLISHED OPINION OF THE COURT
    _________________________
    PER CURIAM:
    This case is before us on an interlocutory appeal pursuant to Article
    62(a)(1)(B), Uniform Code of Military Justice [UCMJ]. Appellee is charged
    with premeditated murder, assault consummated by battery, and 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 abusing and then
    killing his wife. Upon referral of charges, the Government pursued the
    admission of prior statements by the decedent, Mrs. Becker, under the
    doctrine of forfeiture by wrongdoing. After two Article 39(a), UCMJ, hearings,
    the military judge ruled some of the statements inadmissible, which the
    Government now appeals. We find error in the judge’s ruling and remand.
    I. BACKGROUND
    The pending charges arise from the troubled relationship of Appellee and
    Mrs. Becker, whom Appellee 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, Appellee
    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, Appellee had taken her identification and credit cards and
    changed their bank account passwords, effectively leaving her isolated and
    trapped.
    That evening, after attending counseling with Appellee, Mrs. Becker re-
    canted her allegations. She denied Appellee had taken her identification and
    credit cards and later formally recanted her report to law enforcement,
    explaining that Appellee 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.
    2
    United States v. Becker, NMCCA No. 201900342
    Opinion of the Court
    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 Appellee’s career; she told one
    friend that she was afraid of what Appellee would do if he lost his career. She
    described how Appellee 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 Bel-
    gium, but live apart from Appellee. 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
    Appellee 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, Appellee and Mrs. Becker had dinner
    at their seventh-floor apartment. Witnesses heard a scream around 2100 and
    saw Mrs. Becker fall from the seventh floor to the ground. The Government
    alleges Appellee 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.
    II. DISCUSSION
    A. The Military Judge’s Ruling
    In a pretrial motion, the Government sought a ruling that certain prior
    statements by Mrs. Becker relating to her alleged abuse were admissible
    under the doctrine of forfeiture by wrongdoing, an exception to both the Sixth
    Amendment Confrontation Clause and the hearsay rule. Giles v. California,
    
    554 U.S. 353
    (2008); Military Rule of Evidence [Mil. R. Evid.] 804(b)(6).
    Citing the doctrine’s two-part test as set out in United States v. Dhinsa, 
    243 F.3d 635
    (2nd Cir. 2001), the Government argued that a preponderance of the
    evidence supported that by pushing Mrs. Becker out of the window to her
    death, Appellee (1) was involved in, or responsible for procuring, her unavail-
    ability through knowledge, complicity, planning, or in any other way, and (2)
    acted with the intent of procuring her unavailability as an actual or potential
    witness. See 
    Dhinsa, 243 F.3d at 653-54
    . The Government argued Appellee
    3
    United States v. Becker, NMCCA No. 201900342
    Opinion of the Court
    killed Mrs. Becker with the intent, at least in part, of preventing her from
    repeating and expounding on her earlier abuse allegations, since it was
    reasonable to infer a person who recanted such allegations to save her
    spouse’s career might again pursue them once their relationship was over.
    In response, the Defense argued that any concern over Appellee’s career
    or whether Mrs. Becker would revive her 2013 allegations was entirely
    speculative, particularly since their separation appeared to be proceeding
    amicably. The Defense argued that even if a revival of her earlier allegations
    could be expected, this fact, without more, did not weigh in favor of an infer-
    ence that Appellee intended to silence Mrs. Becker as a witness because there
    were no pending charges against Appellee, no ongoing investigation, and no
    indication an investigation would be opened. Thus, it was not “reasonably
    foreseeable that [any] investigation would culminate in the bringing of
    charges.” 1
    The military judge resolved the Government’s motion in a written ruling
    with detailed findings of fact and conclusions of law. He cited the above two-
    prong test for forfeiture by wrongdoing and correctly found that with respect
    to the intent prong, “[i]n order to demonstrate the design to prevent [the
    witness from testifying], it is not necessary that criminal charges be pend-
    ing.” 2 He then adopted the principle cited by the Defense that for the wrong-
    doer to have the requisite intent, “it must be ‘reasonably foreseeable that any
    investigation [would] culminate in the bringing of charges.’ ” 3 Using this legal
    standard, the military judge concluded that notwithstanding her continued
    complaints of abuse to friends and family, in light of Mrs. Becker’s recanta-
    tion of her 2013 allegations, the subsequent closing of all investigation and
    action relating to them as of June 2014, and her ostensibly amicable separa-
    tion from Appellee, as of the day of her death:
    it was not reasonably foreseeable that the accused would be in-
    vestigated as a result of any prior, formal or informal allega-
    tion made by Mrs. Becker. Further, the accused could not have
    reasonably foreseen that he might face charges based on those
    1  App. Ex. XIX at 3 (citing United States v. Burgos-Montes, 
    786 F.3d 92
    , 99 (1st
    Cir. 2015)).
    2   App. Ex. LXXIX at 6.
    3  App. Ex. LXXIX at 6 (quoting United States v. Houlihan, 
    92 F.3d 1271
    , 1280
    (1st Cir. 1996)).
    4
    United States v. Becker, NMCCA No. 201900342
    Opinion of the Court
    allegations and that Mrs. Becker might be required to testify
    against him. 4
    From this, the military judge concluded the Government had failed to demon-
    strate that Appellee acted on the day of Mrs. Becker’s death “in order to
    prevent Mrs. Becker’s testimony.” 5 Absent proof of such intent, he found that
    several of Mrs. Becker’s prior statements relating to her alleged abuse were
    not admissible under forfeiture by wrongdoing.
    B. Jurisdiction and Standard of Review
    We have statutory authority to hear this appeal under Article 62(a)(1)(B),
    UCMJ, which authorizes the Government to appeal an order or ruling “which
    excludes evidence that is substantial proof of a fact material to the proceed-
    ing.” The evidence determined inadmissible by the military judge—
    Mrs. Becker’s follow-up statements and formal report of abuse to law enforce-
    ment in August 2013, her statements to friends regarding the August 2013
    incident, and her statements to friends and family members regarding
    Appellee’s continuing conduct toward her between August 2013 and October
    2015—meet that definition. 6
    In an Article 62 appeal, we review the military judge’s decision “directly”
    and review the evidence “in the light most favorable to the party which
    prevailed at trial.” United States v. Henning, 
    75 M.J. 187
    , 190-91 (C.A.A.F.
    2016) (citation and internal quotation marks omitted). We review rulings to
    admit or exclude evidence for an abuse of discretion. United States v. Solo-
    mon, 
    72 M.J. 176
    , 179 (C.A.A.F. 2013); United States v. Czachorowski, 
    66 M.J. 432
    , 434 (C.A.A.F. 2008) (reviewing evidentiary rulings dealing with
    hearsay for an abuse of discretion). 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. 315
    , 321
    (C.A.A.F. 2017) (citing United States v. Ellis, 
    68 M.J. 341
    , 344 (C.A.A.F.
    2010); 
    Solomon, 72 M.J. at 180-81
    ).
    4   App. Ex. LXXIX at 7.
    5
    Id. 6 Appellee
    is charged with assault consummated by a battery and conduct unbe-
    coming an officer and a gentleman for the conduct Mrs. Becker alleged in these
    statements.
    5
    United States v. Becker, NMCCA No. 201900342
    Opinion of the Court
    C. Forfeiture by Wrongdoing
    The Sixth Amendment’s Confrontation Clause holds that in all criminal
    prosecutions, the accused shall have the right “to be confronted with the
    witnesses against him.” U.S. Const. amend. VI. This clause, with very few
    exceptions, serves as an ironclad bar to the admission of “testimonial” hear-
    say unless the declarant is unavailable to testify as a witness and the accused
    had a prior opportunity for cross-examination. Crawford v. Washington, 
    541 U.S. 36
    (2004). 7
    One of those exceptions, derived from common law, is the doctrine of for-
    feiture 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 offend the Confrontation Clause. Giles v.
    California, 
    554 U.S. 353
    , 359 (2008). The rationale for this exception was
    provided as far back as 1878, when the Supreme Court explained:
    The Constitution does not guarantee an accused person 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.
    Reynolds v. United States, 
    98 U.S. 145
    , 158 (1878). In other words, a criminal
    defendant is not permitted “to benefit from his own wrong,” which would
    create “intolerable incentives.” 
    Giles, 554 U.S. at 365
    .
    Forfeiture by wrongdoing is also an exception to the hearsay rule. Mil. R.
    Evid. 804(b)(6). As Giles suggests and courts have repeatedly held, the
    operation of the exception to the hearsay rule is substantially the same as the
    exception to the Confrontation Clause; where the evidence satisfies the
    exception to one, it will typically also satisfy the exception to the other.8
    7 While the Confrontation Clause is only implicated by statements deemed “tes-
    timonial,” the Supreme Court has struggled to precisely define that term. See Davis
    v. Washington, 
    547 U.S. 813
    , 822 (2006). We focus our analysis here only on the
    content and application of the forfeiture-by-wrongdoing exception to the Confronta-
    tion Clause, not on whether the statements at issue are testimonial.
    8 See 
    Giles, 554 U.S. at 365
    (“No case or treatise that we have found . . . suggested
    that a defendant who committed wrongdoing forfeited his confrontation rights but
    not his hearsay rights.”); United States v. Emery, 
    186 F.3d 921
    , 926 (8th Cir. 1999)
    (stating that where one’s confrontation rights are waived, objections based on
    hearsay are similarly waived under Fed. R. Evid. 804(b)(6)); United States v. Jack-
    6
    United States v. Becker, NMCCA No. 201900342
    Opinion of the Court
    Thus, our discussion of the exception applies equally to both sources of the
    doctrine. 9
    The forfeiture-by-wrongdoing exception has two components: (1) the party
    against whom the statement is offered wrongfully caused the declarant’s
    unavailability as a witness; and (2) the party did so intending that result (i.e.,
    his conduct was “designed” to prevent the witness from testifying). 
    Giles, 554 U.S. at 360-61
    ; Mil. R. Evid. 804(b)(6). 10 We agree with our sister court that
    these two elements must be satisfied by a preponderance of the evidence.
    United States v. Marchesano, 
    67 M.J. 535
    , 544 (A. Ct. Crim. App. 2008)
    (citing United States v. Gray, 
    405 F.3d 227
    , 241 (4th Cir. 2005)); see also
    
    Giles, 554 U.S. at 379
    (Souter, J., concurring). And with respect to the second
    prong regarding the party’s intent, the conduct rendering the declarant
    unavailable need not have been motivated solely by a desire to prevent the
    declarant from testifying as a witness, so long as it was a motivation. See
    United States v. Jackson, 
    706 F.3d 264
    , 269 (4th Cir. 2013) (finding that to
    allow defendants with multiple motives for their actions to murder, intimi-
    date, or injure potential witnesses and then claim their confrontation right
    would impermissibly erode the rationale behind the exception).
    Here, the military judge cited the two-prong test in his ruling and correct-
    ly found that “[i]n order to demonstrate the design to prevent [the witness
    from testifying], it is not necessary that criminal charges be pending.” 11
    However, drawing from a pre-Giles case from the First Circuit, he then
    adopted the principle that for the wrongdoer to have the requisite intent, “it
    son, 
    706 F.3d 264
    , 268 (4th Cir. 2013) (stating “the Giles decision . . . merely clarified
    existing precedent and affirmed that the intent requirement of Rule 804(b)(6) is
    sufficient to prevent any violation of the Confrontation Clause); United States v.
    Marchesano, 
    67 M.J. 535
    , 542 (A. Ct. Crim. App. 2008) (finding Mil. R. Evid.
    804(b)(6) identical to its civilian counterpart and observing that while Crawford
    “functionally separated the constitutional and evidentiary hearsay concepts, the
    [Supreme Court]’s analysis of the Confrontation Clause forfeiture by wrongdoing and
    Fed. R. Evid. 804(b)(6) indicated the two are related”).
    9The military judge identified the same, and analyzed both the hearsay and Con-
    frontation Clause exceptions in the same way.
    10The evidentiary rule is essentially the same two-part test contained in Giles
    and provides that “[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” is not excluded on hearsay grounds if the declarant is
    unavailable as a witness. Mil. R. Evid. 804(b)(6).
    11   App. Ex. LXXIX at 6.
    7
    United States v. Becker, NMCCA No. 201900342
    Opinion of the Court
    must be ‘reasonably foreseeable that any investigation [would] culminate in
    the bringing of charges.’ ” 12 Using this legal standard, he determined that
    under the circumstances of this case it was not reasonably foreseeable either
    that Appellee would be investigated regarding Mrs. Becker’s prior allegations
    or that Appellee might face charges based on those allegations, such that
    Mrs. Becker might be required to testify against him. 13 From this, the mili-
    tary judge concluded the Government had failed to demonstrate that Appel-
    lee acted on the day of Mrs. Becker’s death “in order to prevent Mrs. Becker’s
    testimony.” 14
    We find error in the military judge’s use of the “reasonable foreseeability”
    standard in this manner, which strays too far from the intent requirement
    announced under Giles. Determining whether it is reasonably foreseeable
    that an investigation will culminate in the bringing of charges puts an
    objective gloss on an inquiry that is fundamentally directed at the subjective
    intent of the party who “wrongfully caused or acquiesced in the declarant’s
    unavailability as a witness.” Mil. R. Evid. 804(b)(6).
    The standard is thus underinclusive in comparison with a more straight-
    forward application of Giles. One can imagine, for example, a scenario where
    an accused wrongfully acts with at least some subjective intention or design
    of making a potential witness unavailable (satisfying Giles), yet does so at a
    time when the prospect that charges will be brought is not reasonably fore-
    seeable—e.g., a domestic violence situation where a child-custody or other
    civil proceeding looms after an investigation—though the accused unreasona-
    bly believes the contrary. Applying a “reasonable foreseeability” standard
    would thus allow the unreasonable accused to avoid application of the rule to
    his conduct, even when his actions are subjectively intended or designed
    exclusively to silence a witness. 15 Giles stands for a broader forfeiture-by-
    wrongdoing exception.
    12  App. Ex. LXXIX at 6 (quoting United States v. Houlihan, 
    92 F.3d 1271
    , 1280
    (1st Cir. 1996)).
    13   App. Ex. LXXIX at 7.
    14
    Id. 15 We
    liken this difference to the difference between the defenses of honest versus
    reasonable mistake of fact:
    If the ignorance or mistake goes to an element requiring . . . specific
    intent . . . the ignorance or mistake need only have existed in the
    mind of the accused. If the ignorance or mistake goes to any other el-
    ement requiring only general intent or knowledge, the ignorance or
    8
    United States v. Becker, NMCCA No. 201900342
    Opinion of the Court
    In fact, Giles expressly contemplates the application of forfeiture by
    wrongdoing to the silencing of witnesses before they report crimes at all,
    particularly in domestic violence situations. 16 As the Court explained:
    Acts of domestic violence often are intended to dissuade a vic-
    tim from resorting to outside help, and include conduct de-
    signed to prevent testimony to police officers or cooperation in
    criminal prosecutions. Where such an abusive relationship cul-
    minates 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 admissi-
    ble under the forfeiture doctrine. Earlier abuse, or threats of
    abuse, intended to dissuade the victim from resorting to out-
    side help would be highly relevant to this inquiry, as would ev-
    idence of ongoing criminal proceedings at which the victim
    would have been expected to testify.
    
    Giles, 554 U.S. at 377
    (emphasis added); see also
    id. at 379
    (Souter, J., con-
    curring) (suggesting that the exception’s common law roots leave no reason to
    doubt that “the element of intent would normally be satisfied by the intent
    inferred on the part of the domestic abuser in the classic abusive relationship,
    which is meant to isolate the victim from outside help . . .”). Giles thus envi-
    sions unconfronted, testimonial statements potentially being rendered admis-
    sible where a prior abusive relationship suggests that a wrongful act is
    performed with an intent to prevent the witness not only from testifying at
    some formal proceeding, but also from reporting abuse, cooperating with law
    enforcement, or resorting to outside help, irrespective of whether criminal
    charges are reasonably foreseeable at the time of the conduct. In other words,
    under Giles, the doctrine applies equally to wrongdoing to prevent testimony
    mistake must have existed in the mind of the accused and must have
    been reasonable under all the circumstances.
    R.C.M. 916(j)(1). In essence, Giles requires only specific intent—that the intent or
    design to cause the witness’ unavailability exist in the mind of the accused—not that
    such intent be reached or measurable in any objectively reasonable way.
    16  Giles itself involved a domestic violence situation where the defendant shot and
    killed his ex-girlfriend, claiming self-defense. Prosecutors sought to introduce
    statements the decedent made to police three weeks before the shooting, alleging the
    defendant had physically assaulted her over a suspected affair and threatened to kill
    her if he ever found her cheating on him. 
    Giles, 554 U.S. at 356-57
    .
    9
    United States v. Becker, NMCCA No. 201900342
    Opinion of the Court
    and to wrongdoing to prevent testimonial statements, such as formal report-
    ing to law enforcement. See, e.g., Hammon v. Indiana, 
    547 U.S. 813
    (2006)
    (companion case to Davis v. Washington, 
    547 U.S. 813
    (2006), wherein affida-
    vit of wife to police officer responding to reported domestic disturbance was
    held to be testimonial).
    Accordingly, we find that the military judge erred in applying the “rea-
    sonable foreseeability” standard to evaluate intent or design, which unneces-
    sarily narrows the forfeiture-by-wrongdoing test articulated by Giles and Mil.
    R. Evid. 804(b)(6).
    D. Relief
    As the military judge’s determination of the inadmissibility of certain pri-
    or statements by Mrs. Becker was based on a legal principle we now hold to
    be incorrect, we find his ruling was an abuse of discretion. We determine the
    appropriate remedy for the error is to remand the case for additional proceed-
    ings consistent with this opinion. United States v. Kosek, 
    41 M.J. 60
    , 64
    (C.M.A. 1994).
    III. CONCLUSION
    The Government’s appeal is GRANTED. The military judge’s ruling is
    VACATED and the record of trial is returned to the Judge Advocate General
    for remand to the convening authority and delivery to the military judge for
    further consideration in light of this opinion. The military judge may, sua
    sponte or at the request of either party, permit additional evidence or argu-
    ment on the question of whether the preponderance of the evidence supports
    application of the forfeiture-by-wrongdoing exception to the Confrontation
    Clause and Military Rule of Evidence 804(b)(6) in light of Giles.
    FOR THE COURT:
    RODGER A. DREW, JR.
    Clerk of Court
    10