United States v. Arnold , 61 M.J. 254 ( 2005 )

United States, Appellee
v.
John M. ARNOLD, Private First Class
U.S. Army, Appellant
No. 04-0524
Crim. App. No. 20010713
United States Court of Appeals for the Armed Forces
Argued February 8, 2005
Decided August 3, 2005
BAKER, J., delivered the opinion of the Court, in which GIERKE,
C.J., and CRAWFORD, EFFRON, and ERDMANN, JJ., joined.
Counsel
For Appellant: Captain Rob W. MacDonald (argued); Colonel Mark
Cremin, Lieutenant Colonel Mark Tellitocci, and Major Allyson G.
Lambert (on brief); Captain Charles L. Pritchard Jr.
For Appellee: Captain Isaac C. Spragg (argued); Colonel Steven
T. Salata, Lieutenant Colonel Mark L. Johnson, and Major Natalie
A. Kolb (on brief).
Military Judge: Patrick J. Parrish
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION
United States v. Arnold, No. 04-0524/AR
Judge BAKER delivered the opinion of the Court.
Contrary to his plea, Appellant was convicted by a military
judge before a general court-martial of one specification of
wrongful distribution of ecstasy1 in violation of Article 112a,
Uniform Code of Military Justice (UCMJ) 10 U.S.C. § 912a (2000).2
The adjudged and approved sentence provided for a bad-conduct
discharge, confinement for six months, forfeiture of all pay and
allowances, and reduction to the lowest enlisted grade, E-1.
The United States Army Court of Criminal Appeals affirmed in a
short-form per curiam opinion. United States v. Arnold, No.
ARMY 20010713 (A. Ct. Crim. App. Mar. 22, 2004) (unpublished).
We granted review to determine whether the evidence admitted to
corroborate Appellant’s confession was, in fact, independent of
the confession as required by Military Rule of Evidence (M.R.E.)
304(g).3 We conclude there was no error, plain or otherwise, and
affirm.
BACKGROUND
Appellant and Private Dominic I. Guisti lived in the same
barracks at Fort Bragg and shared mutual friends. One evening
1
This drug is formally known as 3, 4-methylenedioxymethamphetamine or MDMA.
2
Appellant was acquitted of an accompanying specification alleging a wrongful
distribution of lysergic acid diethylamide or LSD.
3
The granted issue reads as follows:
WHETHER THE MILITARY JUDGE PLAINLY ERRED BY ADMITTING APPELLANT’S
CONFESSION BASED ON TESTIMONY DERIVED EXCLUSIVELY FROM THE
CONFESSION ITSELF, WHICH FAILED TO SATISFY THE INDEPENDENCE
REQUIREMENT OF THE CORROBORATION RULE.
2
United States v. Arnold, No. 04-0524/AR
in September of 2000, Appellant, Guisti and three other soldiers
went to a rave club called Studio 315. Guisti, who had
purchased drugs at the club on previous occasions, wanted to
obtain some ecstasy pills. Upon arriving at the club, Guisti
was able to obtain the ecstasy pills and gave each of the other
four soldiers one pill. Later, according to Guisti’s testimony
at Appellant’s trial, while the soldiers were still at the club,
Appellant asked Guisti, “Hey, you wanna [sic] get some more?”
Guisti collected the money from the others and gave it to
Appellant who left to procure more of the drug. Appellant
returned and distributed ecstasy pills to Guisti and the others
in the group.
During an investigation by the Criminal Investigation
Command in November 2000, Guisti was interrogated and made a
statement implicating himself and other soldiers, including
Appellant, in a variety of drug offenses. In this statement,
although Guisti admitted to distributing ecstasy to Appellant at
Studio 315, he did not indicate that Appellant had distributed
ecstasy to him. On January 19, 2001, Appellant was interrogated
and admitted to purchasing and distributing ecstasy at Studio
315. He also admitted to distributing LSD on other occasions.
Appellant memorialized his admissions in a written statement in
which he recounted the events described above.
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United States v. Arnold, No. 04-0524/AR
On March 1, 2001, Appellant’s investigation pursuant to
Article 32, UCMJ, 10 U.S.C. § 832 (2000), was convened on
charges of conspiracy to distribute LSD and distribution of LSD.
On March 20, 2001, the investigating officer concluded that no
reasonable grounds existed to support either charge. However,
he concluded that reasonable grounds existed to charge Appellant
with conspiracy to distribute ecstasy and distribution of
ecstasy.
Also in March, Guisti negotiated a plea agreement and was
subsequently tried on March 27, 2001. The agreement required
him to cooperate in the trials of other soldiers implicated in
the investigation. The day before his trial, Guisti executed a
second sworn statement focused exclusively on his use and
distribution of LSD. In this statement, he admitted to
distributing LSD to Appellant, but indicated that he had no
knowledge of Appellant’s distribution of LSD. In late May, the
Government withdrew the charge against Appellant for conspiracy
to distribute LSD, proceeded with the charge of distribution of
LSD and preferred an additional charge of distribution of
ecstasy.
Appellant was arraigned on June 6, 2001, and at an Article
39(a) session on July 5, 2001, the military judge granted a
defense motion to reopen the Article 32 investigation to
properly reinvestigate the additional charge of ecstasy
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United States v. Arnold, No. 04-0524/AR
distribution. The investigation was reopened on July 13, 2001,
and the investigating officer reported on July 17, 2001, that
reasonable grounds existed to support the additional charge.
Trial on the merits in Appellant’s court-martial began on
August 3, 2001. Appellant’s confession was admitted after the
military judge denied Appellant’s motion to suppress his
confession on the ground that it was involuntary. Guisti was
called as a witness for the prosecution and testified that
Appellant purchased and distributed ecstasy at Studio 315 the
previous September. On cross-examination, he admitted that it
was the first time he had made such a statement in court.
During cross-examination, the following colloquy occurred
between Guisti and defense counsel:
Q. Isn’t it true, Private Guisti, that you saw PFC
[Private First Class] Arnold’s statements from
the prosecutor yesterday?
A. Yes, that is true.
Q. The prosecutor showed you that when he was
interviewing you for this case, isn’t that true?
A. Yes, ma’am.
Q. So you knew what you were looking at before you
came in here?
A. Yes, I did, ma’am.
On appeal, Appellant argues that this line of questioning
indicates that Guisti’s testimony was derived from his viewing
of Appellant’s statement the previous day, and not from his
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United States v. Arnold, No. 04-0524/AR
independent knowledge and recollection of Appellant’s conduct.
However, the record contains other additional material relevant
to the assigned issue. After Appellant’s colloquy with defense
counsel, the military judge questioned Guisti regarding the
events at Studio 315:
Q. When was the first time that you remembered that
the accused gave you this pill of ecstasy? The
second time that you just described, that the
accused went and got these pills -- when was the
first time you happened to remember that that
actually happened?
A. It was after the statements I made, sir.
Q. So it was sometime after 26 March, that’s when
you first remember that happening?
A. Yes, sir. It never came up in any of the
previous questioning -– the previous statements
that I gave.
. . . .
Q. So is today, in court, the first time you told
that to anybody?
A. As far as on the record, sir.
Q. But prior to today, have you told anybody that
the accused gave you this pill?
A. As far as being on the record?
Q. Well, not under oath --
A. I told the defense attorney when she was
questioning me before the Article 32.
Immediately following this exchange, defense counsel
examined Guisti as follows:
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United States v. Arnold, No. 04-0524/AR
Q. That conversation that you had, where you
disclosed you’d had this memory regarding PFC
Arnold and distribution of ecstasy, that occurred
about two weeks ago, correct?
A. No, that’s the first time I told you about it.
Q. About two weeks ago?
A. Yes.
Later during the trial, defense counsel argued that Guisti’s
testimony was inadequate corroboration for Appellant’s
admissions to ecstasy distribution at Studio 315 because
Guisti’s testimony was inconsistent and untruthful. However,
defense counsel did not contend that Guisti’s corroborating
testimony was not independent evidence. Appellant now contends
that Guisti’s testimony was derived exclusively from reading
Appellant’s confession prior to Appellant’s trial and therefore,
“cannot serve as substantial independent evidence to corroborate
that very same confession.”
DISCUSSION
M.R.E. 304(g) provides:
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 . . . has been introduced that corroborates
the essential facts admitted to justify sufficiently
an inference of their truth.
Emphasis added. Independent evidence is evidence that is not
based on or derived from the accused’s extrajudicial statements.
Opper v. United States, 348 U.S. 84, 93 (1954). The principle
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United States v. Arnold, No. 04-0524/AR
of corroboration embedded in M.R.E. 304(g), like the principle
underpinning its civilian counterparts, is intended to guard
against the false or coerced confession. However, corroborating
evidence need not confirm each element of an offense, but rather
must “corroborate[] the essential facts admitted to justify
sufficiently an inference of their truth.” M.R.E. 304(g). This
inference may be drawn from a quantum of corroborating evidence
that this Court has described as “very slight.” United States
v. Melvin, 26 M.J. 145, 146 (C.M.A. 1988).
Appellant correctly frames the legal issue presented. If
Guisti’s testimony was solely derived from his review of
Appellant’s sworn statement, his testimony could not
independently serve to corroborate Appellant’s statement.
However, the record does not support Appellant’s factual
conclusion.
The record reflects that Guisti was shown and read
Appellant’s statement the day before the trial. The military
judge questioned Guisti to discern whether his description of
the events at Studio 315 was derived from Appellant’s statement
or was derived, in part or in whole, from his own independent
recollection. When asked by the military judge when he
remembered that Appellant had given him an ecstasy pill, Guisti
said, “I told the defense attorney when she was questioning me
before the Article 32.” The reopening of Appellant’s Article 32
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United States v. Arnold, No. 04-0524/AR
investigation relevant to the ecstasy distribution offense
occurred on July 16. Defense counsel, during the Article 32
investigation, responded with the following question to Guisti:
“[T]hat occurred about two weeks ago, correct?” Guisti
answered, “Yes.”
If, as the record reflects, Guisti implicated Appellant
prior to the reopening of Appellant’s Article 32 investigation
on July 16, his subsequent testimony must, at least in part, be
derived independently of Appellant’s statement, which he read
the day before trial. Further, Guisti’s response to the
military judge indicates that he implicated Appellant regarding
the essential fact contained in Appellant’s confession –-
distribution of ecstasy at Studio 315. As a result, Guisti’s
testimony provides independent and sufficient corroboration of
Appellant’s confession and the military judge did not err in
admitting the confession.
DECISION
The decision of the United States Army Court of Criminal
Appeals is affirmed.
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