United States v. Jones

This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Randy E. JONES, Chief Warrant Officer Two
United States Army, Appellant
No. 17-0608
Crim. App. No. 20150370
Argued April 4, 2018—Decided July 31, 2018
Military Judges: Christopher T. Fredrikson and
James W. Herring Jr.
For Appellant: Captain Zachary A. Gray (argued); Lieuten-
ant Colonel Tiffany M. Chapman, Captain Cody Cheek,
and Captain Joshua B. Fix (on brief); Lieutenant Colonel
Christopher D. Carrier and Captain Bryan Anthony
Osterhage.
For Appellee: Captain Jeremy S. Watford (argued); Lieu-
tenant Colonel Eric K. Stafford and Major Cormac M.
Smith (on brief).
Amicus Curiae for Appellant: Girija Hathaway (law stu-
dent) (argued); Jacob Smith (law student) and Stephen I.
Vladeck, Esq. (supervising attorney) (on brief) — the Uni-
versity of Texas at Austin, School of Law.
Judge MAGGS delivered the opinion of the Court, in
which Chief Judge STUCKY, and Judges RYAN,
OHLSON, and SPARKS, joined.
_______________
Judge MAGGS delivered the opinion of the Court.1
A military judge sitting as a general court-martial found
Appellant guilty, contrary to his pleas, of one specification of
larceny of military property of a value of more than $500
and one specification of larceny of military property of a
1 We heard oral argument in this case at the University of
Texas at Austin, School of Law, Austin, Texas, as part of the
Court’s Project Outreach. This practice was developed as a public
awareness program to demonstrate the operation of a federal
court of appeals and the military justice system.
United States v. Jones, No. 17-0608/AR
Opinion of the Court
value of $500 or less, in violation of Article 121, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. § 921 (2012).
The military judge found Appellant not guilty of one
specification of conspiracy to commit the charged larceny
offenses under Article 81, UCMJ, 10 U.S.C. § 881 (2012).
The military judge sentenced Appellant to be reprimanded,
confined for seventeen days, and dismissed from the service.
The convening authority approved the finding of guilt for the
lesser of the two Article 121, UCMJ, offenses as adjudged.
With respect to the greater Article 121, UCMJ, offense, the
convening authority approved “only so much of the finding . .
. as finds a larceny of military property of a value of $500 or
less.” The convening authority approved the sentence as
adjudged. The United States Army Court of Criminal
Appeals summarily affirmed the findings and the sentence
as approved by the convening authority. United States v.
Jones, No. ARMY 20150370, slip op. at 1 (A. Ct. Crim. App.
Aug. 3, 2017) (per curiam).
On appeal, Appellant argues that the military judge
erred in admitting statements that he and his alleged cocon-
spirator, Master Sergeant (MSG) Kenneth Addington, made
to agents of the Army Criminal Investigation Command
(CID) in Kandahar, Afghanistan. Appellant asserts his
statement lacked corroboration as required by the version of
Military Rule of Evidence (M.R.E.) 304(c) that was in effect
at the time of his trial in 2015.2 He further asserts that
MSG Addington’s statement was inadmissible hearsay and
that its admission violated his Sixth Amendment right of
confrontation. We conclude that the military judge did not
err in admitting Appellant’s statement. We further conclude
that the military judge improperly admitted MSG Adding-
ton’s statement, but we find that the error was harmless be-
yond a reasonable doubt.
2 Appellant was tried in May 2015. The version of M.R.E. 304
applicable to his case is found in Exec. Order No. 13,643, 78 Fed.
Reg. 29,559 (May 15, 2013), and printed in the Supplement to
Manual for Courts-Martial, United States, Military Rules of Evi-
dence (2012 ed.). In 2016, the President amended M.R.E. 304 in
Exec. Order No. 13,730, 81 Fed. Reg. 33,331 (May 20, 2016). This
opinion does not address the 2016 amendment, which is printed in
the Manual for Courts-Martial, United States (2016 ed.) (MCM).
2
United States v. Jones, No. 17-0608/AR
Opinion of the Court
I. Background
Appellant is a civilian high school teacher and an Army
reservist. In October 2013, he deployed to Afghanistan and
served as the officer in charge of his unit’s woodshop. The
unit used woodworking tools that previous units had left be-
hind. The woodshop also included tools that Appellant and
others had salvaged from a nearby Retro-Sort Yard (RSY).
The RSY held miscellaneous equipment and materials, some
of which were set to be destroyed when the unit departed.
The larceny specifications of which Appellant was found
guilty state that Appellant “did, at or near Kandahar Air-
field, Afghanistan, on divers occasions between on or about 1
December 2013 and on or about 20 April 2014, steal tools
and other equipment, military property.” The Government’s
theory was that Appellant stole tools from the woodshop,
that he mailed the tools to his home in North Carolina, and
that he intended to keep at least some of the tools for use by
students at the high school where he teaches.
At trial, the military judge admitted a redacted version
of a sworn statement that Appellant had made to a CID
agent at the Kandahar CID Office. In the statement, Appel-
lant admitted that “over the past months” he had mailed
tools to his home address. These tools included various saws,
drills, screwdrivers, and wrenches; a sander and an angle
grinder; and various batteries and accessories. Appellant es-
timated that the value of the equipment, if new, was
“around $2,030.00.” The redacted statement further contains
the following questions and answers:
Q: What did you intend to do with this property?
A: I intended it to be used by the Soldiers at the
unit or the students at school.
....
Q: Where did you get the tools?
A: From the woodshop.
Q: How did they get to the woodshop?
A: We fell in on the tools at the woodshop.
The military judge determined that the redacted statement
was admissible notwithstanding the limitation in M.R.E.
3
United States v. Jones, No. 17-0608/AR
Opinion of the Court
304(c) because independent evidence corroborated the essen-
tial facts of the statement.
The military judge also admitted a redacted statement
by MSG Addington. In this statement, MSG Addington
described how he and Appellant jointly obtained some of the
tools from the woodshop and the RSY. The military judge
concluded that the hearsay rule did not apply to MSG
Addington’s statement because M.R.E. 801(d)(2)(E) excludes
from the definition of hearsay a statement “made by the
party’s co-conspirator during and in furtherance of the
conspiracy.”
Other testimony and physical evidence at trial showed
that Appellant mailed seventeen boxes from Afghanistan to
his home in North Carolina, that he paid $579.38 of his own
money to mail the boxes, and that the boxes contained more
than 850 tools or other items. Evidence also showed that
Appellant had talked to his unit’s leadership about creating
a garrison woodshop when the unit returned from Afghani-
stan, but the leadership did not approve this plan. In addi-
tion, a senior noncommissioned officer testified that he had
informed Appellant of the proper procedures for returning
military property from Afghanistan to the garrison.
The Government did not present any testimony or other
evidence, apart from Appellant and MSG Addington’s
statements, that directly showed where Appellant acquired
the tools that he mailed home or that the tools were military
property. The woodshop did not keep inventory records that
could demonstrate that specific tools were missing.
On appeal, Appellant argues that the military judge
improperly admitted the statements that he and MSG
Addington made to the CID agents. Appellant objected to
admitting these statements at trial under M.R.E. 304(c) and
M.R.E. 802.
II. Admission of Appellant’s Statement
Appellant contends that, under M.R.E. 304(c), the mili-
tary judge should not have admitted the portions of his
statement to the CID agent in which he admitted that he got
the tools “from the woodshop” and that he “intended [the
tools] to be used by the Soldiers at the unit or the students
4
United States v. Jones, No. 17-0608/AR
Opinion of the Court
at school,” because these statements were not adequately
corroborated by independent admissible evidence. Appellant
further argues that, without these portions of his statement,
the Government did not prove all five elements of the offense
of larceny of military property.3 We review the military
judge’s determination that M.R.E. 304(c) did not bar admis-
sion of the statement for an abuse of discretion. See United
States v. Adams, 74 M.J. 137, 139 (C.A.A.F. 2015) (citing
United States v. McCollum, 58 M.J. 323, 335 (C.A.A.F.
2003)).
A. M.R.E. 304(c)’s Corroboration Requirement
M.R.E. 304(c) is a complicated provision that has three
parts relevant to this appeal. First, M.R.E. 304(c)(1) con-
tains a general requirement of corroboration:
An admission or a confession of the accused may be
considered as evidence against the accused on the
question of guilt or innocence only if independent
evidence, either direct or circumstantial, has been
admitted into evidence that corroborates the essen-
tial facts admitted to justify sufficiently an infer-
ence of their truth.
3 The elements of larceny of military property are:
(a) That the accused wrongfully took, obtained, or
withheld certain property from the possession of
the owner or of any other person;
(b) That the property belonged to a certain person;
(c) That the property was of a certain value, or of
some value; and
(d) That the taking, obtaining, or withholding by
the accused was with the intent permanently to de-
prive or defraud another person of the use and ben-
efit of the property or permanently to appropriate
the property for the use of the accused or for any
person other than the owner.
(e) That the property was military property.
MCM pt. IV, para. 46.b.(1)(a)−(e) (2012 ed.). The value of the
property is not an element of the offense. But larceny of property
having a value of more than $500 carries a larger sentence than
larceny of property having a lesser value. See id. para.
46.e.(1)(a),(c).
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United States v. Jones, No. 17-0608/AR
Opinion of the Court
The requirement of corroboration addresses traditional con-
cerns about the possible untrustworthiness of admissions
and confessions. The Supreme Court has explained: “In our
country the doubt persists that the zeal of the agencies of
prosecution to protect the peace . . . or the aberration or
weakness of the accused under the strain of suspicion may
tinge or warp the facts of [a] confession.” Opper v. United
States, 348 U.S. 84, 89−90 (1954).
Second, M.R.E. 304(c)(2) requires corroboration of each
essential fact in an admission or confession.4 The second
sentence of this provision says:
If the independent evidence raises an inference of
the truth of some but not all of the essential facts
admitted, then the confession or admission may be
considered as evidence against the accused only
with respect to those essential facts stated in the
confession or admission that are corroborated by
the independent evidence.
To comply with this provision, a military judge can redact a
statement by excising the uncorroborated portions and then
admitting the redacted statement into evidence. See Adams,
74 M.J. at 140.
Third, only a small quantum of evidence is needed to cor-
roborate an essential fact in a confession or admission.
M.R.E. 304(c)(4) provides in relevant part: “The independent
evidence necessary to establish corroboration need not be
sufficient of itself to establish beyond a reasonable doubt the
truth of facts stated in the admission or confession. The in-
dependent evidence need raise only an inference of the truth
of the essential facts admitted.” In addition, as M.R.E.
4 In Adams, this Court held: “There is no ‘tipping point’ of cor-
roboration which would allow admission of the entire confession if
a certain percentage of essential facts are found to be corroborat-
ed. If four of five essential facts were corroborated, the entire con-
fession is not admissible. Only the four corroborated facts are ad-
missible . . . .” 74 M.J. at 140. The 2016 amendments to M.R.E.
304, which are not applicable to this case, address this rule. As
amended, M.R.E. 304(c)(2) provides: “Not every element or fact
contained in a confession or admission must be independently
proven for the confession or admission to be admitted in evidence
in its entirety.” See supra note 2.
6
United States v. Jones, No. 17-0608/AR
Opinion of the Court
304(c)(1) makes clear, this corroborating evidence can be “ei-
ther direct or circumstantial.” We traditionally have de-
scribed the quantum of evidence needed as being “slight.”
Adams, 74 M.J. at 140.
B. Military Property
A key element of the offense of larceny of military prop-
erty is, of course, that “the property was military property.”
MCM pt. IV, para. 46.b.(1)(e). To prove this element, the
Government relied on Appellant’s admission in his state-
ment to the CID agent that he acquired the tools that he
sent home “[f]rom the woodshop.” Witnesses testified that
the tools in the woodshop were military property. But Ap-
pellant asserts that no independent admissible evidence cor-
roborated the essential fact in his admission that the tools at
his home came from the woodshop.5 He emphasizes that the
woodshop did not keep an inventory and thus could not iden-
tify any tools as missing. Without corroboration of the essen-
tial fact of where the tools came from, Appellant argues that
his statement was inadmissible under M.R.E. 304(c)(1).
Our precedents have addressed the issue of what can
corroborate an admission that stolen property is military
property. Two cases with similar facts are United States v.
Leal, 7 C.M.A. 15, 21 C.M.R. 141 (1956), and United States
v. Evans, 1 C.M.A. 207, 2 C.M.R. 113 (1952). In Leal, the ac-
cused was assigned to a unit responsible for maintaining
communications equipment. He admitted to stealing a large
number of vacuum tubes from his unit’s workshop, but no
inventory records could confirm that the tubes were missing.
This Court held that the accused’s admission that the prop-
erty was military property was sufficiently corroborated by
independent evidence “that the equipment was of the type
and kind of Government property to be found within the
unit workshop; that the accused had access to this equip-
ment; that he had opportunity safely to remove it from the
premises; [and] that he was not authorized to possess the
property.” 7 C.M.A. at 20, 21 C.M.R. at 146. In Evans, the
accused admitted that he and others had stolen cigarettes
5 MSG Addington’s statement would provide corroboration,
but we agree with Appellant that MSG Addington’s statement was
inadmissible. See infra Part III.
7
United States v. Jones, No. 17-0608/AR
Opinion of the Court
that were military property but no inventory records could
confirm that “cigarettes of the quantity alleged to be stolen
were missing from the Army warehouse.” 1 C.M.A. at 209, 2
C.M.R. at 115. This Court held that the accused’s admission
that the stolen property was military property was corrobo-
rated by “the employment of [the accused and the other] sol-
diers in a position where they had access to great quantities
of cigarettes thus furnishing opportunity to perpetrate the
offense charged” and by other independent evidence. Id., 2
C.M.R. at 115.
As in Leal and Evans, independent circumstantial evi-
dence corroborated the essential fact of Appellant’s admis-
sion that the tools he sent home came from the woodshop.
Appellant had access to the tools in the unit woodshop be-
cause he was the officer in charge of the unit woodshop.
Most of the tools that the Government found at Appellant’s
home were carpentry tools like those in the unit woodshop.
The woodshop would be a likely place in the deployed envi-
ronment in Afghanistan to acquire woodworking tools. These
circumstances by themselves alone may not prove beyond a
reasonable doubt that Appellant took the tools from the
woodshop. But in accordance with M.R.E. 304(c), they sup-
port an inference that Appellant was speaking the truth
when he confessed that he took them from the woodshop.
C. Intent to Steal
Another element of the offense of larceny of military
property is that “the taking . . . by the accused was with the
intent permanently . . . to appropriate the property for the
use of the accused or for any person other than the owner.”
MCM pt. IV, para. 46.b.(1)(d). To prove this element, the
Government relied on the portion of Appellant’s statement
to the CID agent in which he asserted that he intended for
the tools “to be used by . . . the students at school.” This ad-
mission shows that Appellant intended to appropriate at
least some of the tools for use by persons other than the
owner, the United States Government. Appellant argues
that the military judge should not have admitted this por-
tion of his statement because it lacked corroboration by in-
dependent admissible evidence.
8
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Opinion of the Court
A complication in resolving this issue is that the parties
have expressed different views about how to identify the es-
sential fact in Appellant’s admission. The Government as-
serts that the essential fact is “appellant’s intent to perma-
nently deprive the military of the stolen property.”
Appellant, in contrast, contends that the essential fact is
more specific; it is that Appellant “intend[ed] to use the tools
for his students.” In some instances, disagreements about
how to describe the essential fact in an admission may have
material consequences. But in this case, we need not resolve
the question. Under either party’s characterization the
statement was admissible under M.R.E. 304(c).
If the essential fact is that Appellant had the intent per-
manently to deprive the military of its property, there was
enough independent evidence to support an inference of this
essential fact. Appellant spent $579.38 of his own funds to
mail fourteen separate shipments of military equipment.
Appellant sent the tools to his personal address, rather than
to the address of his unit. The tools remained at his home or
nearby until discovered by investigators. Appellant was in-
formed of the proper procedures for sending military mate-
rial back to the unit, but he did not use those procedures.
The unit leadership also had not approved any plan for us-
ing the tools at the unit. This circumstantial evidence sup-
ports an inference that Appellant intended to deprive the
military of the property permanently. See MCM pt. IV, para.
46.c.(1)(f)(ii) (“An intent to steal may be proved by circum-
stantial evidence.”); see also United States v. Pacheco, 56
M.J. 1, 3 (C.A.A.F. 2001) (circumstantial evidence that the
accused did not return a firearm and did not inform the au-
thorities that he took it showed an intent permanently to
deprive the military of the property); see also United States
v. Cosby, 14 M.J. 3, 5 (C.M.A. 1982) (circumstantial evidence
that the accused acquired two military winches by paying
another servicemember to allow him to take them and that
the accused had no legitimate use for the winches showed an
intent permanently to deprive the military of the property).
Even if the essential fact is characterized more narrowly
as being that Appellant specifically intended that his stu-
dents would use the equipment at his school, sufficient inde-
pendent evidence also supports “an inference of the truth” of
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Opinion of the Court
this essential fact. See M.R.E. 304(c)(2). Appellant was a
high school woodshop teacher. He sent the tools to his home.
The tools were of the kind that could be used in the high
school woodshop. And the tools were not returned to the
Government. This circumstantial evidence establishes that
Appellant had access to the school, an opportunity to provide
tools to students at the school permanently, and a possible
motive for doing so. This case is thus very different from
Adams, in which there was no evidence of motive, access,
and opportunity to corroborate the essential facts of the ap-
pellant’s confession. See 74 M.J. at 141. We therefore hold
that the military judge properly admitted the redacted ver-
sion of Appellant’s statement to the CID agent in Kandahar
in compliance with M.R.E. 304(c).
III. MSG Addington’s Statement
At trial, Appellant objected to the admission of MSG Ad-
dington’s statement on grounds that it was hearsay, but the
military judge overruled the objection and admitted the
statement. The Government now concedes, and we agree,
that the military judge erred in this ruling. The statement
was not made “during and in furtherance” of a conspiracy
but instead was made to the CID agent who was investigat-
ing the possible conspiracy after it had concluded. M.R.E.
801(d)(2)(E); see Fiswick v. United States, 329 U.S. 211, 217
(1946). “There can be no furtherance of a conspiracy that has
ended.” Lutwak v. United States, 344 U.S. 604, 617 (1953);
see also 4 Christopher B. Mueller & Laird C. Kirkpatrick,
Federal Evidence § 8:61 (4th ed. 2013) (“When a conspirator
knowingly speaks to law enforcement agents, what he says
almost always fails the furtherance requirement. In many
such cases, the speaker’s purpose is almost the opposite of
furthering the venture . . . .”). MSG Addington’s statement
therefore was not properly admitted under M.R.E.
801(d)(2)(E). The statement was hearsay, and should have
been excluded under the rule against hearsay in M.R.E. 802.
In addition, Appellant and Amicus Curiae argue that
admitting MSG Addington’s statement also violated Appel-
lant’s rights under the Sixth Amendment’s Confrontation
Clause. See U.S. Const. amend. 6. Even though we have
found error under M.R.E. 802, we must address this addi-
tional argument to determine the appropriate standard of
10
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Opinion of the Court
review. When hearsay is admitted in violation of the Mili-
tary Rules of Evidence, the ordinary rule is that we can af-
firm only if we do not find “material prejudice[].” Article
59(a), UCMJ, 10 U.S.C. § 859(a) (2012) (“A finding or sen-
tence of court-martial may not be held incorrect on the
ground of an error of law unless the error materially preju-
dices the substantial rights of the accused.”); see also United
States v. Lovett, 59 M.J. 230, 234 (C.A.A.F. 2004). But as de-
scribed below, if admission of the evidence also violates the
Constitution, and the error is not waived, the standard of
review is higher.
Appellant has cited nothing in the record of trial that in-
dicates Appellant made a Confrontation Clause objection be-
fore or during the trial. When an appellant does not raise an
objection to the admission of evidence at trial, we first must
determine whether the appellant waived or forfeited the ob-
jection. See United States v. Sweeney, 70 M.J. 296, 303−04
(C.A.A.F. 2011). If the appellant waived the objection, then
we may not review it at all. See United States v. Campos, 67
M.J. 330, 332 (C.A.A.F. 2009). But if the appellant merely
forfeited the objection, then we may review the objection for
plain error. See Sweeney, 70 M.J. at 304.
Waiver can occur either by operation of law, see, e.g.,
United States v. Hardy, 77 M.J. 438, 441−42 (C.A.A.F. 2018),
or by the “intentional relinquishment or abandonment of a
known right,” Sweeney, 70 M.J. at 303 (internal quotation
marks omitted) (citations omitted). We do not see any waiver
by operation of law here. We thus must consider whether
Appellant intentionally relinquished or abandoned his
Confrontation Clause objection. In previous cases in which
an appellant failed to raise a Confrontation Clause objection
at trial, we have considered the particular circumstances of
each case to determine whether there was a waiver. See, e.g.,
United States v. Harcrow, 66 M.J. 154, 158 (C.A.A.F. 2008);
Sweeney, 70 M.J. at 304. We have also applied a
presumption against finding a waiver of constitutional
rights. See Sweeney, 70 M.J. at 304. A waiver of a
constitutional right is effective if it “clearly established that
there was an intentional relinquishment of a known right.”
Id. at 303–04 (internal quotation marks omitted) (citation
omitted). In certain and exceptional circumstances, counsel
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may waive a constitutional right on behalf of a client. See
Harcrow, 66 M.J. at 157 (recognizing that counsel may
waive his client’s constitutional rights by stipulating to the
admission of evidence when the client does not oppose the
stipulation and counsel’s decision was part of a legitimate
trial tactic or part of a prudent trial strategy). Considering
the particular circumstances here, we can see no strategic
reason that defense counsel would object to MSG
Addington’s statement as hearsay and not also object to the
statement on Confrontation Clause grounds. We therefore
infer that the failure to make the Confrontation Clause
objection was unintentional, and we conclude that Appellant
forfeited the objection rather than waived it. We therefore
will apply plan error review.
Plain error occurs “where (1) there was error, (2) the er-
ror was plain and obvious, and (3) the error materially prej-
udiced a substantial right of the accused.” Sweeney, 70 M.J.
at 304 (citation omitted). Here, there was error, and the er-
ror was plain or obvious. Admitting MSG Addington’s
statement violated the Confrontation Clause as interpreted
in Davis v. Washington, 547 U.S. 813, 821−22 (2006), and
Crawford v. Washington, 541 U.S. 36, 53−54 (2004). The
statement was testimonial, because the primary purpose of
the CID agent’s interrogation of MSG Addington was to as-
certain facts relevant to a later prosecution. See Davis, 547
U.S. at 822. And Appellant did not have the opportunity to
cross-examine MSG Addington about the statement. See
Crawford, 541 U.S. at 53−54. When a constitutional issue is
reviewed for plain error, the prejudice analysis considers
whether the error was harmless beyond a reasonable doubt.
United States v. Payne, 73 M.J. 19, 25–26 (C.A.A.F. 2014).
We will apply this standard of review to the admission of
MSG Addington’s statement.
In this case, MSG Addington’s statement was not neces-
sary to prove the larceny specifications. Those specifications
were proved beyond a reasonable doubt by Appellant’s
statement to the CID agent and other evidence. MSG Ad-
dington’s statement was also not necessary to corroborate
Appellant’s statement. As explained above, other independ-
ent evidence that did not come from MSG Addington’s
statement corroborated Appellant’s statement to the CID
12
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Opinion of the Court
agent. To be sure, MSG Addington’s statement did provide
evidence to support the conspiracy charge. But as the mili-
tary judge found Appellant not guilty of the conspiracy
charge, admission of MSG Addington’s statement was incon-
sequential. We thus conclude that admission of MSG Ad-
dington’s statement to the CID agent in violation of M.R.E.
802 and the Confrontation Clause did not materially preju-
dice Appellant and, indeed, was harmless beyond a reasona-
ble doubt.6
IV. Judgment
The judgment of the United States Army Court of Crimi-
nal Appeals is affirmed.
6 Because the more stringent harmless beyond a reasonable
doubt standard subsumes the harmlessness standard for
nonconstitutional error, we likewise conclude that Appellant was
not prejudiced by the M.R.E. 802 error.
13