United States v. Swift

This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Justin P. SWIFT, Specialist
United States Army, Appellant
No. 16-0407
Crim. App. No. 20100196
Argued November 16, 2016—April 26, 2017
Military Judges: Michael J. Hargis and Timothy P. Hayes Jr.
For Appellant: Captain Michael A. Gold (argued); Lieutenant
Colonel Melissa R. Covolesky, Lieutenant Colonel Charles D.
Lozano, Captain Katherine L. DePaul, and Captain Heather L.
Tregle (on brief); Lieutenant Colonel Jonathan F. Potter and
Major Andres Vasquez Jr.
For Appellee: Captain Samuel E. Landes (argued); Lieutenant
Colonel A. G. Courie III and Major Jihan Walker (on brief).
Judge RYAN delivered the opinion of the Court, in which
Chief Judge ERDMANN, and Judges STUCKY, OHLSON,
and SPARKS, joined.
_______________
Judge RYAN delivered the opinion of the Court.
A panel of officers and enlisted members sitting as a
general court-martial convicted Appellant, contrary to his
pleas, of two specifications of indecent acts with a child in
violation of Article 134, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 934 (2000). The panel sentenced Appel-
lant to a dishonorable discharge, fourteen years of confine-
ment, forfeiture of all pay and allowances, and reduction to
the grade of E-1. The convening authority approved the sen-
tence as adjudged.
On appeal under Article 66, UCMJ, 10 U.S.C. § 866(2012), the United States Army Court of Criminal Appeals
(ACCA), in consideration of this Court’s decision in United
States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012), dismissed
the Charge and its specifications without prejudice for fail-
ure to allege the terminal element of Article 134, UCMJ,
noting that there was no “bar to a new trial on the underly-
United States v. Swift, No. 16-0407/AR
Opinion of the Court
ing misconduct.” United States v. Swift, No. ARMY
20100196, 2012 CCA LEXIS 459, at *5, 2012 WL 6021474,
at *2 (A. Ct. Crim. App. Nov. 29, 2012) (unpublished). The
Judge Advocate General of the Army certified the disposi-
tion of that issue pursuant to Article 67(a)(2), UCMJ, 10
U.S.C. § 867(a)(2) (2012). 72 M.J. 37 (C.A.A.F. 2013). This
Court summarily affirmed the decision of the ACCA. 72 M.J.
466 (C.A.A.F. 2013).
A military judge alone, sitting as a general court-martial,
subsequently convicted Appellant, contrary to his pleas, of
two specifications of indecent acts with a child in violation of
Article 134, UCMJ, based on the same underlying miscon-
duct. 1 Appellant was sentenced to a dishonorable discharge,
eleven years of confinement, and a reduction to the grade of
E-1. The convening authority approved the sentence as ad-
judged. The ACCA affirmed the findings of guilty and sen-
tence. United States v. Swift, No. ARMY 20100196, 2016
CCA LEXIS 26, at *10, 2016 WL 270822, at *4 (A. Ct. Crim.
App. Jan. 21, 2016) (unpublished).
We granted Appellant’s petition to review the following
issues:
I. Whether the Army Court denied Appellant his substan-
tial right to an Article 66(c) review by affirming the find-
ings and sentence on uncharged misconduct presented at
trial rather than the charged offenses.
II. Whether the military judge erred by admitting Appel-
lant’s pretrial statement where there was no independent
evidence to corroborate the essential facts admitted.
III. Whether the evidence of the two convictions of indecent
acts with a child is legally sufficient.
While the facts underlying our decision are complicated,
the law is quite straightforward. First, where, as here, a
CCA’s Article 66(c), UCMJ, factual and legal sufficiency re-
view appears to affirm the findings of guilty based solely up-
on uncharged misconduct, it is legally deficient, and a proper
Article 66(c), UCMJ, review must be conducted upon remand
from this Court. United States v. McAllister, 55 M.J. 270,
277 (C.A.A.F. 2001). Second, where, as here, an accused
states he has “no objection” to the admission of a confession
at trial, he has waived his right to complain on appeal that
1 Appellant did not object to his retrial, and raised no issues
related to retrial before either the ACCA or this Court.
2
United States v. Swift, No. 16-0407/AR
Opinion of the Court
the confession lacked sufficient corroboration to be admitted.
See Military Rule of Evidence (M.R.E.) 304(c), (f)(1), Sup-
plement to the Manual for Courts-Martial, United States
(2012 ed.) (as amended by Exec. Order No. 13,643, 78 Fed.
Reg. 29,559, 29,564 (May 15, 2013)); see also United States v.
Miller, 31 M.J. 247, 252 (C.M.A. 1990). Finally, we leave it
to the ACCA in the first instance to assess the status and
relevance of the uncharged misconduct when determining
whether the evidence of the charged offenses was legally and
factually sufficient.
The decision of the ACCA is vacated, and the case is re-
manded to the ACCA for further action consistent with this
opinion.
I. FACTS
A. The Charged Conduct
In a sworn statement to Criminal Investigation Com-
mand (CID), Appellant confessed to molesting his daughter
KS on two occasions. First, Appellant admitted that he
touched KS in Hawaii in November or December of 2003 af-
ter mistaking her for his wife in bed (hereinafter Hawaii
Bedside Incident). According to his confession, Appellant en-
tered his bedroom in the dark and climbed into bed with his
wife. Unaware that KS was also in bed sleeping with his
wife, he reached down the undergarments of KS, thinking it
was his wife, and fondled KS’s vagina. His wife then told
him that KS was in bed with them, and upon realizing he
was touching KS, he immediately removed his hand.
Second, Appellant admitted that he touched KS in Texas
in June of 2007 while asleep and dreaming of making love to
an “old flame” (hereinafter Texas “Old Flame” Incident). In
his sworn statement, Appellant stated that he was lying in
bed with KS reading her a book. He recounts blacking out
and dreaming that he was laying his head on a woman’s
chest and fondling her vagina. He further recounts being
woken up from his dream by his wife while he was asleep on
the couch, and he could not remember how he moved from
the bed to the couch. After waking him up, his wife asked
him if he had touched KS.
The Government charged these acts as violations of Arti-
cle 134, UCMJ. Specification One alleged that Appellant:
[D]id, at or near Schofield Barracks, Hawaii, be-
tween on or about 1 November 2003 and on or
about 31 December 2003, commit an indecent act
3
United States v. Swift, No. 16-0407/AR
Opinion of the Court
upon the body of Miss KS, a female under 16 years
of age, not the wife of the accused, by touching her
vulva with his hand . . . .
Specification Two alleged that Appellant:
[D]id at or near Fort Bliss, Texas, between on or
about 1 May 2007 and on or about 5 September
2007, commit an indecent act upon the body of Miss
KS, a female under 16 years of age, not the wife of
the accused, by lying his head upon her chest and
touching her vulva with his hand . . . .
B. M.R.E. 404(b) and 414 Evidence
The Government filed a motion in limine to admit evi-
dence of uncharged misconduct pursuant to M.R.E. 404(b)
and M.R.E. 414 to “demonstrate an opportunity, intent, and
absence of mistake or accident,” and “because other similar
incidents of [child] molestation would make it more probable
that the Accused committed the charged acts.” The acts of
child molestation depicted in the specifications, supra, are
referenced in the motion and are specifically tied to Appel-
lant’s sworn statement to CID:
The accused stated that on one of these occasions,
he was mistaken as to the fact that it was his
daughter and not his wife whom he was fondling
and, on the other occasion, that he was sleep-
walking and did not realize what he was doing un-
til he had fondled his daughter.
The Government then offered a summary of three in-
stances of uncharged misconduct it intended to introduce,
pursuant to M.R.E. 404(b) and 414, albeit without dates or
places:
First, the Couch “Peeing” Incident: 2
KS’s therapist, [CR], (now [CL]) called Child Pro-
tective Services to report an incident in which KS
straddled the Accused while he was laying on the
sofa. The Accused had his penis exposed. According
to KS, the Accused “peed” on the couch on her night
gown. KS then cleaned up the mess and stated,
“Here we go again!” The Accused then made the
statement, “I hope no one gets the wrong idea about
this,” or words to that effect.
2 Both the Couch “Peeing” and Hawaii Van Incidents were also
identified by the Government as uncharged misconduct at Appel-
lant’s first trial.
4
United States v. Swift, No. 16-0407/AR
Opinion of the Court
Second, the Hawaii Van Incident: 3
During a forensic interview on 29 June 2006, KS
revealed that the Accused touched her vulva in the
back seat of a van when she was four.
Third, the Texas Pool Incident:
KS remembers an incident where the Accused
touched her vagina while she was changing in her
bedroom. According to KS, she had been mean to
her sister by pushing her into a pool and was put in
time-out in her room. When her time-out was over,
the Accused told her to change out of her bathing
suit. While she was changing, the Accused told her
to stop and sat her on the bed. The accused then
fondled her vulva and rubbed his finger between
her labia.
In support of its motion, the Government offered two memos
from Child Protective Services recounting these incidents.
C. Other Uncharged Misconduct
Prior to trial, the military judge held a closed session
pursuant to Rule for Courts-Martial (R.C.M.) 802 at which
the parties discussed “the interview of the complaining wit-
ness by the defense, [in which KS provided] information
that . . . would indicate an additional act of misconduct by
the accused and which goes hand in hand with the 413, 414,
or 404(b) motion.” Neither the parties nor the military judge
expressly identified the nature of this “additional act.”
D. Trial
With respect to the Government’s motion in limine, the
military judge stated that the parties had agreed that, con-
sidering the choice of trial by military judge alone, a ruling
on the motion in advance of trial was not necessary. He not-
ed that they “could take up the issue as it came up during
the merits portion of the trial concerning any evidence of un-
charged or similar misconduct being brought by the govern-
ment.” The military judge also discussed the “additional act”
of misconduct and agreed that “if necessary, the defense may
request a bill of particulars from the government as to which
misconduct that they are actually charging in the case. And,
we will take that up as it comes, but we should be able to
resolve that as well.”
3 The locations for this conduct and the Texas Pool Incident
are derived from trial testimony by KS. See infra p. 6.
5
United States v. Swift, No. 16-0407/AR
Opinion of the Court
At trial, the Government offered the testimony of KS, her
mother, her third-grade teacher, and three counselors to
whom KS made general allegations of sexual abuse by Ap-
pellant. It also offered the testimony of a physician’s assis-
tant who found no evidence of a sleep disorder in Appellant’s
medical records, and the testimony of a clinical psychologist
who vouched for the forensic integrity of one of KS’s inter-
views and opined that KS’s various outcries and recanta-
tions were consistent with normal behavior of a sexually
abused child.
KS did not testify about either the Hawaii Bedside Inci-
dent or the Texas “Old Flame” Incident, the charged conduct
alleged in the specifications. Instead, she testified that Ap-
pellant inappropriately touched her on “two or three” occa-
sions.
First, KS testified that Appellant touched her while they
were cleaning the family van in Hawaii when she was four
years old (Hawaii Van Incident). KS testified that Appellant
touched her vagina over her clothes and fondled her “[f]or a
couple of minutes” in a massaging motion.
Second, KS testified that Appellant massaged her vagi-
nal area while she was in time out after pushing her sister
into the family’s pool. KS testified that the incident occurred
in Texas when she was seven (Texas Pool Incident). As she
began to testify about the details of this incident, the mili-
tary judge asked the Government if this was charged or un-
charged misconduct. The Government responded that it was
uncharged misconduct.
Third, KS testified about the Texas Bedside Incident,
which occurred in Texas when she was seven. KS testified
that after having a nightmare she went to sleep in bed with
her mother. Appellant came home, got in bed, and fondled
KS’s vagina. While this conduct is physically like the con-
duct underlying Specification 1, the charged Hawaii Bedside
Incident that derived from Appellant’s confession occurred
in a different state, and several years earlier. It is also dis-
tinct from Specification 2, the charged Texas “Old Flame”
Incident, which Appellant and the Government described as
having occurred while he was asleep and not in the presence
of his wife.
Fourth, when questioned about her counseling with Ms.
CL, KS remembered an incident where she and Appellant
were on a couch and his penis fell out of his pants. Ms. CL
6
United States v. Swift, No. 16-0407/AR
Opinion of the Court
provided the remaining details of that uncharged miscon-
duct, the Couch “Peeing” Incident, based on KS’s disclosure
to her in January 2008. Ms. CL testified that KS revealed
that Appellant was asleep on the couch, and KS straddled
him to wake him up. As she straddled him, he placed his
hand in his pants, scratched himself, and “peed.”
The Government also offered evidence in the form of tes-
timony about generalized disclosures by KS in 2007 to her
third-grade teacher, Ms. VA, and in 2006 to her social work-
er, Ms. RL. In addition, Ms. LF, a child forensic interviewer
with the Department of Public Safety for Texas, testified
that KS disclosed a sexual touching to her during an inter-
view in 2006. A video recording of the forensic interview re-
vealed that KS had described the Hawaii Van Incident.
Finally, Special Agent JS laid the foundation for the ad-
mission of Appellant’s confession, in which Appellant de-
scribes the Hawaii Bedside Incident and the Texas “Old
Flame” Incident. When trial counsel moved to enter the con-
fession for identification, defense counsel stated on the rec-
ord that he had “[n]o objection, sir,” and proceeded to discuss
the contents of the exhibit throughout his cross-
examination. When the military judge later asked the par-
ties to confirm that the exhibit was one he would review dur-
ing his deliberation, defense counsel agreed, “[i]t is, Your
Honor.” The defense subsequently relied on the statement to
argue, inter alia, that, either Appellant told the truth to CID
and has a valid mistake-of-fact defense, or “[KS] co-opted
that statement” to avoid being forced back into her parents’
home.
In closing argument, the Government highlighted KS’s
various disclosures, the videotaped interview of KS, and Ap-
pellant’s own admissions: “[Appellant] admitted to every-
thing that is on the charge sheet. And, that is something
that defense can’t get around.” The Government’s closing
argument clearly distinguished the two incidents in the
charge sheet—the Hawaii Bedside and Texas “Old Flame”
Incidents—from the other incidents of uncharged conduct:
And while the accused only admits to assaulting
[KS] twice, you heard her testify that in addition to
those two times, there are three others that she
remembers. The first, when she was four years old
in the family van in Hawaii. Just her and her dad,
cleaning out the van, and he rubs her four-year-old
vagina. [Hawaii Van Incident]
7
United States v. Swift, No. 16-0407/AR
Opinion of the Court
The second when she was here in Texas; a little girl
in timeout from pushing her sister into the pool.
And, as he’s asking her if she’s thought about what
she’s done, he assaults her again. [Texas Pool Inci-
dent] And, finally, another time, where a young
child seeks comfort in the bed of her mother after
she has a nightmare. And, the accused comes in
and again assaults his young daughter. [Texas
Bedside Incident]
On rebuttal, the Government again distinguished the un-
charged Hawaii Van Incident from the “bigger question” of
the conduct admitted in Appellant’s confession. Addressing
an assertion by Appellant’s mother that he touched KS in
the van only because they smelled urine and discovered KS’s
pants were wet, trial counsel argued:
Yes, a four, almost five-year-old is old enough to
say whether or not they are wet. They don’t need to
be cupped on their vagina to determine that. But,
the bigger question, sir, is was the accused check-
ing to see if [KS] was wet when he fondled her in
the bed at four years old? [Hawaii Bedside Incident]
Was he checking to see if she was wet when he
talked about having a dream of his old flame and
fondling her vagina and, oh, waking up and realiz-
ing no, it is my daughter at seven? [Texas “Old
Flame” Incident] Is he really not going to report a
sleep disturbance that causes him to sexually as-
sault his own children? That’s what he is going to
keep to himself? He’s not going to tell a physician’s
assistant about that? That’s what this court is to
believe? The accused sexually assaulted his daugh-
ter starting at the age of four. He admitted to it. He
is guilty of it. And, this court should find him so.
(emphasis added).
The military judge convicted Appellant of both specifica-
tions, but excepted the language “lying his head upon her
chest and” from Specification 2 of the Charge, and the lan-
guage “prejudicial to good order and discipline in the armed
forces” from both specifications.
II. PROCEDURAL POSTURE
The military judge permitted the introduction of evidence
of all four incidents of uncharged misconduct without ever
actually ruling on whether they were admissible under
M.R.E. 404(b) or 414. In turn, the defense never definitively
stated whether it agreed to or objected to admission of the
8
United States v. Swift, No. 16-0407/AR
Opinion of the Court
evidence, or its use for M.R.E. 404(b) or 414 purposes. We do
not, therefore, have the benefit of the military judge’s find-
ings of fact and conclusions of law. Nor did either party re-
quest special findings, as R.C.M. 918(b) permits. There is no
question, however, that Appellant was charged with and
convicted of the two offenses described in his confession—the
Hawaii Bedside and Texas “Old Flame” Incidents.
On appeal, the ACCA affirmed the findings and sentence,
albeit solely by reference to evidence of uncharged miscon-
duct. 2016 CCA LEXIS 26, at *10, 2016 WL 270822, at *4. In
a summary statement of the facts, the ACCA asserted that:
Appellant was convicted of sexually assaulting his
natural daughter, KS. On one occasion, appellant
rubbed his four-year-old daughter’s vagina over her
clothing while they were cleaning the inside of the
family van [Hawaii Van Incident]. On another oc-
casion, appellant massaged his daughter’s vagina
while she was lying in bed with her mother. KS . . .
[also] describe[d] an occasion when KS straddled
appellant on the couch as he slept and appellant
“peed” when he awoke; KS told her counselor the
appellant had his hand down his pants when this
occurred and that she had to clean it up [Couch
“Peeing” Incident].
2016 CCA LEXIS 26, at *2–3, 2016 WL 270822, at *1.
While the court’s reference to “appellant massag[ing] his
daughter’s vagina” might reflect the charged Hawaii Bedside
Incident, rather than the uncharged Texas Bedside Incident,
that is far from clear from either the record or the court’s
subsequent analysis. In its discussion of the admission of
KS’s “outcry” to her third-grade teacher, the CCA conflated
and confused the factual similarities between the Hawaii
Bedside Incident and the Texas Bedside Incident. 2016 CCA
LEXIS 26, at *7–9, 2016 WL 270822, at *2–4. The court rea-
soned that “Appellant’s statement that he mistakenly be-
lieved he was touching his wife’s vagina and not his seven
year old daughter was implausible, considering his wife was
considerably larger than KS at the time.” Id. (emphasis add-
ed). Unfortunately, KS testified that the Texas Bedside Inci-
dent—characterized by the Government in closing and re-
buttal as uncharged conduct—occurred in Texas when KS
was seven. By contrast, Appellant’s statement and Specifica-
tion 1 described the Hawaii Bedside Incident, which oc-
curred in Hawaii, when KS was four.
9
United States v. Swift, No. 16-0407/AR
Opinion of the Court
Like the military judge, the ACCA did not rule on
whether the incidents of uncharged conduct were admissible
under either M.R.E. 404(b) or 414. 2016 CCA LEXIS 26, at
*5, 2016 WL 270822, at *2. Instead, the ACCA facially
treated them as if they were the charged conduct, concluded
the findings of guilty were legally and factually sufficient,
and affirmed. Id.III. DISCUSSION
While the facts in this case are both unsavory and com-
plicated, the law controlling the decisional issues is very
clear.
A. The ACCA Erred in its Article 66(c), UCMJ, Review
Article 66(c), UCMJ, requires the service courts to con-
duct a plenary review of the record and “affirm only such
findings of guilty and the sentence or such part or amount of
the sentence, as [they] find[] correct in law and fact and de-
termine[], on the basis of the entire record, should be ap-
proved.” Article 66(c), UCMJ, 10 U.S.C. § 866 (2012). A com-
plete Article 66, UCMJ, review is a “substantial right” of an
accused. United States v. Jenkins, 60 M.J. 27, 30 (C.A.A.F.
2004). The CCAs have an “affirmative obligation to ensure
that the findings and sentence in each such case are ‘correct
in law and fact . . . and should be approved.’ ” United States
v. Miller, 62 M.J. 471, 472 (C.A.A.F. 2006) (alteration in
original) (quoting Article 66(c), UCMJ).
While the CCA has broad discretion in conducting its Ar-
ticle 66(c) review, United States v. Atchak, 75 M.J. 193, 196
(C.A.A.F. 2016) (citing United States v. Cole, 31 M.J. 270,
272 (C.M.A. 1990)), a CCA’s factual sufficiency review is con-
fined to “findings of guilty” “approved by the convening au-
thority.” Article 66(c), UCMJ; cf. United States v. Rosario, 76
M.J. 114, 117 (C.A.A.F. 2017) (“[The CCA] cannot find as
fact any allegations of which the accused was found not
guilty at trial.”). An even more fundamental concept, of
course, is that an accused may only be found guilty of an of-
fense with which he was charged, as well as any lesser-
included offenses thereunder—and it is only those offenses
that may be affirmed by a reviewing court. United States v.
Jones, 68 M.J. 465, 468 (C.A.A.F. 2010) (citing United States
v. Miller, 67 M.J. 385, 388 (C.A.A.F. 2009)); United States v.
Medina, 66 M.J. 21, 28 (C.A.A.F. 2008); United States v.
Wray, 17 M.J. 375, 376 (C.M.A. 1984) (“Clearly an accused
cannot be convicted of a crime different from that charged.”).
10
United States v. Swift, No. 16-0407/AR
Opinion of the Court
Moreover, even where the evidence itself might fit within
the technical contours of a specification or indictment, an
appellate court may not affirm a conviction based on a theo-
ry not presented to the trier of fact. See Chiarella v. United
States, 445 U.S. 222, 236 (1980); see also United States v.
Bennitt, 74 M.J. 125, 128 (C.A.A.F. 2015).
It is against this legal backdrop that we consider the
Government’s surprising assertion that the ACCA’s Article
66(c), UCMJ, review is defensible here. The error here is not,
as the Government suggests, some minor gap or variance
between pleadings and proof. Rather, the legal problem is
the basis upon which the ACCA affirmed Appellant’s convic-
tions. The Government’s position at trial (from the staff
judge advocate’s recommendation to reprosecute the “same
misconduct” all the way up through closing arguments) was
that the charged misconduct consisted of the two incidents
described in Appellant’s confession, the Hawaii Bedside and
Texas “Old Flame” Incidents. Relatedly, the Government re-
peatedly maintained through its pretrial motions and argu-
ments that the Couch “Peeing,” Hawaii Van, Texas Pool, and
Texas Bedside Incidents reflected uncharged conduct.
With these distinctions and instances of conduct demar-
cated as they were by the Government, there is no reasona-
ble basis upon which it can base its defense of the ACCA’s
Article 66(c), UCMJ, review, which affirmed the findings of
guilty solely by reference to uncharged conduct. 2016 CCA
LEXIS 26, at *2, 2016 WL 270822, at *1 (describing the
Couch “Peeing,” Hawaii Van, and either the Texas or Hawaii
Beside Incident). The CCA simply may not substitute un-
charged for charged conduct as either the basis for a convic-
tion or the basis for affirming a finding of guilty under Arti-
cle 66(c), and its review was legally infirm. See Bennitt, 74
M.J. at 128; Miller, 67 M.J. at 388 (“ ‘Appellate courts are
not free to revise the basis on which a defendant is convicted
simply because the same result would likely obtain on retri-
al.’ ”) (quoting Dunn v. United States, 442 U.S. 100, 107
(1979)); cf. United States v. Schroder, 65 M.J. 49, 56
(C.A.A.F. 2007) (“[T]he factfinder may not convict on the ba-
sis of propensity evidence alone.”).
Under these circumstances, where the “underlying valid-
ity of the Article 66(c), UCMJ, review is in question . . . the
remedy is to remand the case for a proper factual and legal
sufficiency review of the findings of guilty.” United States v.
Beatty, 64 M.J. 456, 459 (C.A.A.F. 2007) (noting that remand
11
United States v. Swift, No. 16-0407/AR
Opinion of the Court
should not be construed as any determination by this Court
as to legal and factual sufficiency based on the evidence pre-
sented at trial, which are matters for the lower court to con-
sider de novo).
B. The Military Judge Did Not Err in
Admitting Appellant’s Confession
With respect to the ACCA’s review on remand, the court
may consider Appellant’s pretrial confession that was admit-
ted without objection at trial. Appellant argues, first, that
the military judge plainly erred in admitting his pretrial
confession without sua sponte evaluating whether there was
independent evidence to corroborate the essential facts ad-
mitted therein and, second, that no such corroboration exist-
ed. But Appellant not only failed to object to the admission
of his confession on the grounds of insufficient corroboration,
he explicitly stated he had “[n]o objection” when the Gov-
ernment proffered his sworn statement. He also affirmative-
ly agreed to its use in deliberations. Based both on the ordi-
nary rules of waiver, United States v. Campos, 67 M.J. 330,
332–33 (C.A.A.F. 2009), and the specific dictates of M.R.E.
304(f)(1), Appellant waived his right to complain that his
confession was inadmissible because it lacked corroboration.
On the one hand, we agree with Appellant that M.R.E.
304(c) reflects the common law’s skepticism towards using
out-of-court confessions and admissions to prove the ele-
ments of a crime. See Smith v. United States, 348 U.S. 147,
152–53 (1954); Opper v. United States, 348 U.S. 84, 89–90
(1954). Indeed, as a rule, “[a]n admission or a confession of
the accused may be considered as evidence against the ac-
cused on the question of guilt or innocence only if independ-
ent evidence . . . has been admitted into evidence that cor-
roborates the essential facts admitted to justify sufficiently
an inference of their truth.” M.R.E. 304(c)(1) (emphasis add-
ed) (amended by Exec. Order No. 13,730 (May 20, 2016), 81
Fed. Reg. 33,331, 33,350–51 (May 26, 2016)).
But M.R.E. 304(c) does not exist in a vacuum. First, as a
general proposition of law, “no objection” constitutes an af-
firmative waiver of the right or admission at issue. See
Campos, 67 M.J. at 332–33. Appellant was fully aware of the
content of the statement, and he had numerous opportuni-
ties to contest its admission and use. Second, adding rule-
based suspenders to the ordinary waiver belt, M.R.E.
304(f)(1) provides that any objection under M.R.E. 304,
which broadly governs “Confessions and admissions,” to the
12
United States v. Swift, No. 16-0407/AR
Opinion of the Court
admission of a confession shall be made before the submis-
sion of a plea, and that “[f]ailure to so move or object consti-
tutes a waiver of the objection.” M.R.E. 304(f)(1). By its
terms, M.R.E. 304(f)(1) applies to objections based on a lack
of corroboration under M.R.E. 304(c), and Appellant’s claim
was waived. See also R.C.M. 905(b)(3) (requiring suppres-
sion motions to be made prior to arraignment); R.C.M.
905(e) (providing that failure to raise an objection under
subsection (b) “shall constitute waiver”); cf. United States v.
Ahern, __ M.J. __ (6–7) (C.A.A.F. 2017). Furthermore, con-
sidering Appellant’s waiver, we do not resolve the question
whether the confession was in fact corroborated. See Cam-
pos, 67 M.J. at 332 (holding that a valid waiver leaves no
error to correct on appeal).
Our reading of M.R.E. 304(f)(1) is informed by the under-
lying rationale of United States v. Miller, 31 M.J. at 252. In
that case, this Court addressed the question whether the
right to contest the voluntariness of a confession, under
304(a) and (e)(1), can be waived by failure to object, pursu-
ant to M.R.E. 304(d)(2)(A), the predecessor of M.R.E.
304(f)(1). Id. at 249. Consistent with our resolution in this
case, Miller concluded that the military judge was required
to make findings about the issue of voluntariness “only when
there has been some contest as to whether an accused’s
statement was voluntary or was preceded by the necessary
warnings of his rights.” Id. at 252. The Court noted that
“[c]learly, [304(d)(2)(A)] intends to place on the defense the
burden of complaining that a confession or admission is in-
voluntary or was obtained without a warning to the accused
of his rights.” Id. at 251 (emphasis added). Thus, absent an
objection or contest, the issue of voluntariness was waived.
Id. at 252. We apply the same analysis to an objection under
M.R.E. 304(c) related to corroboration; it is waived absent an
objection. Thus, even giving no effect to his affirmative
statements of waiver (i.e., “[n]o objection, sir”), Appellant
waived the issue of corroboration in this case. Miller, 31 M.J.
at 252; cf. United States v. Maio, 34 M.J. 215, 218 n.2, 219
n.3 (C.M.A. 1992) (noting that the accused failed to object at
suppression hearing to admission of other statements used
to corroborate his confession); United States v. Melvin, 26
M.J. 145, 147 (C.M.A. 1988); United States v. Latour, 75
M.J. 723, 727 (N-M. Ct. Crim. App. 2016) (“[W]e agree that
[M.R.E.] 304(f)(1) applies to objections based on lack of cor-
roboration . . . .”).
13
United States v. Swift, No. 16-0407/AR
Opinion of the Court
C. Additional Matters
We note that the ACCA neither identified the military
judge’s failure to rule on the admissibility of the M.R.E.
404(b) and 414 evidence, nor conducted its own analysis as
to whether and how that evidence was admissible and could
be used. Those issues should be addressed and resolved in
the course of the ACCA’s action on remand. See United
States v. Davis, 65 M.J. 766, 771 (A. Ct. Crim. App. 2007)
(conducting independent balancing under M.R.E. 414 and
403 where the military judge’s error meant his analysis was
entitled to no deference (citing United States v. Berry, 61
M.J. 91, 96 (C.A.A.F. 2005))).
IV. DECISION
The decision of the United States Army Court of Crimi-
nal Appeals is set aside. The case is returned to the Judge
Advocate General of the Army for remand to that court for
further proceedings consistent with this opinion.
14