U.S. v. Jones, 78 M.J. 37

First Principles: Constitutional Matters: Generally

1. an appellate court applies a presumption against finding a waiver of constitutional rights
2. a waiver of a constitutional right is effective if it clearly established that there was an intentional relinquishment of a known right
3. in certain and exceptional circumstances, counsel may waive a constitutional right on behalf of a client
4. when a constitutional issue is reviewed for plain error, the prejudice analysis considers whether the error was harmless beyond a reasonable doubt

First Principles: Constitutional Matters: Confrontation

1. in this case, appellant did not intentionally relinquish or abandon a Confrontation Clause objection to the admission of a statement made by his co-conspirator to a CID agent where, considering the particular circumstances, there was no strategic reason for trial defense counsel to object to the statement as hearsay and not also object to the statement on Confrontation Clause grounds; accordingly, an inference can be made that the failure to make the Confrontation Clause objection was unintentional; thus, appellant forfeited the objection rather than waived it and the issue is reviewed for plain error

Core Criminal Law Subjects: Crimes: Article 121 - Larceny and Wrongful Appropriation Pre-2019 offenses

1. with respect to the offense of larceny, the value of the property taken, obtained, or withheld is not an element of the offense; however, larceny of property having a value of more than $500 carries a larger sentence than larceny of property having a lesser value

Core Criminal Law Subjects: Evidence: Confessions and Admissions › Corroboration

1. in this case which was tried prior to the 2016 amendments to MRE 304(c), an admission or a confession of the accused could be considered as evidence against the accused on the question of guilt or innocence only if independent evidence, either direct or circumstantial, had been admitted into evidence that corroborated the essential facts admitted to justify sufficiently an inference of their truth; this corroboration requirement addressed traditional concerns about the possible untrustworthiness of admissions and confessions; although MRE 304(c) prior to the 2016 amendments required corroboration of each essential fact in the admission or confession, a military judge could redact a statement by excising the uncorroborated portions and then admitting the redacted statement into evidence
2. the 2016 amendments to MRE 304, which were not applicable to this case, provide that 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
3. in this case which was tried prior to the 2016 amendments to MRE 304(c), only a small quantum of evidence was needed to corroborate the essential facts in a confession or admission; the independent evidence necessary to establish corroboration did not need to be sufficient of itself to establish beyond a reasonable doubt the truth of facts stated in the admission or confession; the independent evidence needed only to raise an inference of the truth of the essential facts admitted; this corroborating evidence could be either direct or circumstantial; and the quantum of evidence needed only to be slight
4. in this case, independent circumstantial evidence corroborated the essential fact of appellant’s admission that the tools he sent home came from his unit’s woodshop in Afghanistan and thus were military property; appellant had access to the tools in the unit woodshop because 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; and the woodshop was a likely place in the deployed environment in Afghanistan to acquire woodworking tools; although these circumstances by themselves alone may not have proved beyond a reasonable doubt that appellant took the tools from the woodshop, in accordance with MRE 304(c), they supported an inference that appellant was speaking the truth when he confessed that he took them from the woodshop
5. in this case, independent circumstantial evidence corroborated the essential fact of appellant’s admission that he took the property with the intent to deprive the military of its property permanently and with the intent that his students use the tools at his school; there was enough independent evidence to support an inference of the essential fact that appellant had the intent permanently to deprive the military of its property, where appellant spent $579.38 of his own funds to mail fourteen separate shipments of military equipment, where appellant sent the tools to his personal address, rather than to the address of his unit, where the tools remained at his home or nearby until discovered by investigators, where appellant was informed of the proper procedures for sending military material back to the unit, but he did not use those procedures, and where the unit leadership also had not approved any plan for using the tools at the unit; in addition, there was enough independent evidence to support an inference of the essential fact that appellant specifically intended that his students would use the equipment at his school where appellant was a high school woodshop teacher, where he sent the tools to his home, where the tools were of the kind that could be used in the high school woodshop, and where the tools were not returned to the government - circumstantial evidence that established 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

Core Criminal Law Subjects: Evidence: Hearsay › Generally

1. the military judge erred in admitting the statement of appellant’s co-conspirator made to a CID agent who was investigating a possible conspiracy after it had concluded because the statement was not made during and in furtherance of the conspiracy; there can be no furtherance of a conspiracy that has ended; the statement therefore was not properly admitted under MRE 801(d)(2)(E), an exclusion to the hearsay rule when a statement is made by an accused’s co-conspirator during and in furtherance of the conspiracy; the statement was hearsay, and should have been excluded under the rule against hearsay in MRE 802

Core Criminal Law Subjects: Evidence: Waiver

1. when an appellant does not raise an objection to the admission of evidence at trial, an appellate court first must determine whether the appellant waived or forfeited the objection; if the appellant waived the objection, then it may not review it at all; but if the appellant merely forfeited the objection, then it may review the objection for plain error
2. waiver can occur either by operation of law or by the intentional relinquishment or abandonment of a known right
3. an appellate court applies a presumption against finding a waiver of constitutional rights
4. a waiver of a constitutional right is effective if it clearly established that there was an intentional relinquishment of a known right
5. in certain and exceptional circumstances, counsel may waive a constitutional right on behalf of a client
6. in this case, appellant did not intentionally relinquish or abandon a Confrontation Clause objection to the admission of a statement made by his co-conspirator to a CID agent where, considering the particular circumstances, there was no strategic reason for trial defense counsel to object to the statement as hearsay and not also object to the statement on Confrontation Clause grounds; accordingly, an inference can be made that the failure to make the Confrontation Clause objection was unintentional; thus, appellant forfeited the objection rather than waived it and the issue is reviewed for plain error

Core Criminal Law Subjects: Witnesses: Confrontation

1. in this case, the erroneous admission of a hearsay statement made by a co-conspirator to a CID agent that was not in furtherance of the conspiracy also violated the Confrontation Clause where the statement was testimonial, because the primary purpose of the CID agent’s interrogation of the co-conspirator was to ascertain facts relevant to a later prosecution, and appellant did not have the opportunity to cross-examine the co-conspirator about the statement; the error was plain or obvious

Trial Stages: Appeals: Harmless / Prejudicial Error

1. when a constitutional issue is reviewed for plain error, the prejudice analysis considers whether the error was harmless beyond a reasonable doubt
2. in this case, the erroneous admission of a hearsay statement made by a co-conspirator to a CID agent that also violated the Confrontation Clause was harmless beyond a reasonable doubt where the statement was not necessary to prove the larceny specifications and the statement was also not necessary to corroborate appellant’s admissions where those admissions were corroborated by other independent evidence; because the more stringent harmless beyond a reasonable doubt standard subsumed the harmlessness standard for nonconstitutional error, appellant was also not materially prejudiced by the MRE 802 hearsay error

Trial Stages: Appeals: Preservation of Error / Plain Error

1. when an appellant does not raise an objection to the admission of evidence at trial, an appellate court first must determine whether the appellant waived or forfeited the objection; if the appellant waived the objection, then it may not review it at all; but if the appellant merely forfeited the objection, then it may review the objection for plain error
2. in this case, appellant did not intentionally relinquish or abandon a Confrontation Clause objection to the admission of a statement made by his co-conspirator to a CID agent where, considering the particular circumstances, there was no strategic reason for trial defense counsel to object to the statement as hearsay and not also object to the statement on Confrontation Clause grounds; accordingly, an inference can be made that the failure to make the Confrontation Clause objection was unintentional; thus, appellant forfeited the objection rather than waived it and the issue is reviewed for plain error
3. plain error occurs where (1) there was error, (2) the error was plain and obvious, and (3) the error materially prejudiced a substantial right of the accused
4. when a constitutional issue is reviewed for plain error, the prejudice analysis considers whether the error was harmless beyond a reasonable doubt

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. an appellate court reviews a military judge’s determination that an appellant’s statement was adequately corroborated by independent admissible evidence under MRE 304(c) for an abuse of discretion
2. when hearsay is admitted in violation of the Military Rules of Evidence, the ordinary rule is that an appellate court can affirm only if it does not find material prejudice; however, if admission of the evidence also violates the Constitution, and the error is not waived, the standard of review is higher
3. when an appellant does not raise an objection to the admission of evidence at trial, an appellate court first must determine whether the appellant waived or forfeited the objection; if the appellant waived the objection, then it may not review it at all; but if the appellant merely forfeited the objection, then it may review the objection for plain error
4. in this case, appellant did not intentionally relinquish or abandon a Confrontation Clause objection to the admission of a statement made by his co-conspirator to a CID agent where, considering the particular circumstances, there was no strategic reason for trial defense counsel to object to the statement as hearsay and not also object to the statement on Confrontation Clause grounds; accordingly, an inference can be made that the failure to make the Confrontation Clause objection was unintentional; thus, appellant forfeited the objection rather than waived it and the issue is reviewed for plain error
5. when a constitutional issue is reviewed for plain error, the prejudice analysis considers whether the error was harmless beyond a reasonable doubt

Trial Stages: Appeals: Waiver

1. when an appellant does not raise an objection to the admission of evidence at trial, an appellate court first must determine whether the appellant waived or forfeited the objection; if the appellant waived the objection, then it may not review it at all; but if the appellant merely forfeited the objection, then it may review the objection for plain error
2. waiver can occur either by operation of law or by the intentional relinquishment or abandonment of a known right
3. an appellate court applies a presumption against finding a waiver of constitutional rights
4. a waiver of a constitutional right is effective if it clearly established that there was an intentional relinquishment of a known right
5. in certain and exceptional circumstances, counsel may waive a constitutional right on behalf of a client
6. in this case, appellant did not intentionally relinquish or abandon a Confrontation Clause objection to the admission of a statement made by his co-conspirator to a CID agent where, considering the particular circumstances, there was no strategic reason for trial defense counsel to object to the statement as hearsay and not also object to the statement on Confrontation Clause grounds; accordingly, an inference can be made that the failure to make the Confrontation Clause objection was unintentional; thus, appellant forfeited the objection rather than waived it and the issue is reviewed for plain error