                                  IN THE CASE OF


                          UNITED STATES, Appellee

                                          v.


                       Anson D. BENTON, Specialist
                           U.S. Army, Appellant


                                   No. 01-0289


                           Crim. App. No. 9800862

       United States Court of Appeals for the Armed Forces

                          Argued October 24, 2001

                            Decided July 5, 2002

SULLIVAN, S.J., delivered the opinion of the Court, in which
GIERKE and BAKER, JJ., joined. CRAWFORD, C.J., filed an opinion
concurring in the result. EFFRON, J., filed a dissenting opinion.

                                      Counsel

For Appellant: Captain Terri J. Erisman (argued); Colonel Adele
    H. Odegard, Lieutenant Colonel E. Allen Chandler, Jr., and
    Major Imogene M. Jamison (on brief); Major Scott R. Morris,
    Major Jonathan F. Potter, and Captain Steven P. Haight.


For Appellee: Captain Janine P. Felsman (argued); Colonel Steven
    T. Salata, Lieutenant Colonel Denise R. Lind, and Major
    Margaret B. Baines (on brief); Captain Paul T. Cygnarowicz.




Military Judges: Lawrence M. Cuculic, Debra L. Boudreau, and
    Stephen V. Saynisch

       THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Benton, 01-0289/AR


    Senior Judge SULLIVAN delivered the opinion of the Court.

    During the Spring of 1998, appellant was tried by a general

court-martial composed of officer and enlisted members at Fort

Lewis, Washington.   Contrary to his pleas, he was found guilty of

kidnapping and forcibly sodomizing CM, in violation of Articles

134 and 125, Uniform Code of Military Justice, 10 USC §§ 934 and

925.   On June 19, 1998, he was sentenced to a bad-conduct

discharge, confinement for two years and six months, total

forfeitures, and reduction to pay grade E-1.   The convening

authority approved this sentence on November 16, 1998.    The Army

Court of Criminal Appeals affirmed on January 22, 2001.   54 MJ

717.

    This Court on June 25, 2001, granted the following two issues

for review:

           I. WHETHER THE ARMY COURT OF CRIMINAL
           APPEALS ERRED BY FINDING NO PREJUDICE TO
           APPELLANT, DESPITE FINDING THE MILITARY
           JUDGE ABUSED HIS DISCRETION IN REFUSING TO
           PERMIT THE DEFENSE TO ELICIT THE
           EXCULPATORY PORTIONS OF A GOVERNMENT
           INTRODUCED CONFESSION.

           II. WHETHER THE ARMY COURT OF CRIMINAL
           APPEALS ERRED BY CONCLUDING THAT A CO-
           ACCUSED’S ADMISSION TO A CELLMATE THAT HE
           THREATENED APPELLANT WITH A GUN AT THE
           TIME OF THE OFFENSES WAS NEITHER AGAINST
           THE DECLARANT’S PENAL INTEREST NOR
           SUFFICIENTLY TRUSTWORTHY.

We hold that the military judge’s refusal to admit hearsay

evidence of appellant’s out-of-court pretrial statement

exculpating himself was harmless error.   See United States v.

Levy-Cordero, 156 F.2d 244, 247 (1st Cir. 1998).   We further hold

that the trial judge did not err when he refused to admit


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United States v. Benton, 01-0289/AR


additional hearsay testimony that appellant’s co-accused

purportedly exonerated appellant of the charged offenses.   See

United States v. Seabolt, 958 F.2d 231, 233 (8th Cir. 1992).



    The Court of Criminal Appeals, in a detailed opinion,

delineated the facts in this case and the evidence profferred by

the Government concerning appellant’s liability for the

kidnapping and sodomy of CM.   It said:

            On the evening of 17 October 1997, the
          appellant and his alleged accomplice,
          Private First Class (PFC) Taori Ransom,
          spent several hours driving around in the
          vicinity of Lakewood, Washington, an area
          near Fort Lewis. The appellant, who was
          driving PFC Ransom’s car, stopped the car
          at PFC Ransom’s direction near two young
          women, CM and her cousin, PFC Ruiz. Much
          of CM’s chilling account of her
          kidnapping, rape, and forcible sodomy by
          PFC Ransom that evening was unchallenged
          at trial, although the appellant
          vigorously contested his criminal
          liability for what transpired. Some of
          the evidence surrounding the offenses of
          which the appellant was acquitted places
          the challenged evidentiary rulings in
          context and is thus included in our
          discussion of the facts.
                  A.   The Government’s Case

            CM and PFC Ruiz both testified that they
          were talking outside the home of PFC Ruiz’
          boyfriend when they heard a car pull up.
          They saw a man leave the car and walk
          toward them, brandishing a 9 mm semi-
          automatic pistol. He grabbed CM’s hair
          and dragged her, screaming and struggling,
          into his car. When PFC Ruiz attempted to
          aid her cousin, the man struck PFC Ruiz
          across the forehead with the pistol. The
          appellant then drove off with the man in
          the back seat with CM.

            According to CM, once she was in the
          car, the man, later identified as PFC


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United States v. Benton, 01-0289/AR


          Ransom, pointed his gun at her and told
          her to undress and then ordered her to
          perform oral sodomy upon him. CM did so.
          He thereafter climbed on top of her and
          raped her. While PFC Ransom was sexually
          assaulting her, she saw the appellant look
          back and grin or smile at her. When the
          car stopped at a dead end in a wooded
          area, the appellant announced that it was
          “his turn.”

            CM testified that PFC Ransom pulled her
          by her hair through a barbed wire fence
          and led her into the woods, and the
          appellant followed them. She did not see
          the gun after they left the car, but was
          fearful that PFC Ransom was still armed.
          Private First Class Ransom ordered her to
          get on her knees to perform oral sodomy on
          the appellant, who had already removed his
          erect penis from his pants. She complied,
          placing her mouth on his penis. The
          appellant thereafter left the area to move
          the car and did not return.

            Meanwhile, local police were looking for
          the appellant, PFC Ransom, and CM. Based
          on descriptions provided by PFC Ruiz and
          additional assistance from her boyfriend,
          the police stopped the appellant while he
          was driving PFC Ransom’s car along an
          interstate highway several miles from the
          scene of the abduction. The appellant was
          the only occupant, and, just before he
          emerged from the car, the arresting
          officers observed him reach down under the
          front of the driver’s seat. A later
          search of the vehicle disclosed a 9 mm
          semi-automatic pistol under the driver’s
          seat and clothes (jeans, sweater, and
          underwear) belonging to CM in the back and
          front seats.

            When questioned by one of the arresting
          officers, the appellant first claimed that
          he had borrowed the car from a friend and
          was taking some other friends to a club in
          Seattle. He then stated that he had
          dropped the friends off at Fort Lewis and
          was going on to the club by himself, but
          could not explain why. He made no mention
          of CM’s abduction.




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United States v. Benton, 01-0289/AR


            In a taped statement made to police
          detectives in the early morning hours of
          18 October, the appellant admitted that he
          and PFC Ransom had been driving around in
          the early evening of 17 October. In the
          statement, the appellant asserted that as
          they neared the appellant’s house, PFC
          Ransom told him to stop. He did not know
          what PFC Ransom was doing until he heard
          “the scream and holler.” He saw CM forced
          into the car, and then PFC Ransom told him
          to drive. He said that he did as he was
          told, stopping the car in a wooded area
          and entering the woods with PFC Ransom and
          CM. He indicated that PFC Ransom told CM
          to “give me [the appellant] some” but
          denied that CM actually performed oral sex
          on him. He stated that CM grabbed his
          genitals through his clothing. The
          appellant then returned to the car because
          he was scared. The tape of this
          interrogation was played for the court
          members, and a transcript was introduced
          as a prosecution exhibit.

54 MJ at 719-20 (footnote omitted).

    The Court of Criminal Appeals then fully delineated the

proffered defense evidence, which was rejected by the military

judge.
               B.   The Testimony of Private New

            The challenged evidentiary rulings
          stemmed from the testimony of Private
          (PV2) New, a pretrial confinee at the
          regional confinement facility where the
          appellant and PFC Ransom were also being
          held in pretrial confinement. Testifying
          under a grant of leniency,2/ PV2 New
          recounted certain statements that the
          appellant made while they were cellmates.


            Private New’s testimony on direct
          examination tracked fairly closely with
          the appellant’s taped statement to the
          local police. According to PV2 New, the
          appellant said that he and PFC Ransom had
          been driving around for some time when PFC
          Ransom told the appellant to stop near two
          women, and that the appellant had no idea


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United States v. Benton, 01-0289/AR


          that PFC Ransom was going to abduct one of
          them until PFC Ransom dragged CM into the
          car.

            Private New recounted the appellant’s
          observations of PFC Ransom sodomizing and
          raping CM in the back seat of the car
          while the appellant drove around. He
          testified that the appellant described
          stopping the car in a wooded area, and
          that PFC Ransom directed CM to perform
          oral sodomy on the appellant. The
          appellant told PV2 New that he left the
          area before any sodomy occurred.

            On cross-examination, the defense
          counsel challenged PV2 New’s credibility
          by exploring the grant of leniency, PV2
          New’s Canadian conviction for vehicular
          homicide, his stint in an Arkansas mental
          hospital as the result of a suicide
          attempt, his false claims to medical
          authorities that he was a Special Forces
          sergeant, and his possible access to
          transcripts of the appellant’s and PFC
          Ransom’s Article 32, UCMJ, hearings while
          he was their cellmate.

            Switching tactics, the defense then
          sought to elicit additional statements
          that the appellant made to PV2 New.
          Specifically, the defense asked PV2 New if
          the appellant also stated that, at the
          time of the kidnapping, PFC Ransom pointed
          a gun at him in the car and ordered him to
          drive. The military judge sustained a
          hearsay objection to this testimony,
          although the defense counsel argued that
          the “rule of completeness” made the
          additional statements admissible. This
          ruling and the military judge’s response
          to subsequent attempts to introduce the
          same evidence form the basis for the
          appellant’s first assignment of error.

            Later in the cross-examination, the
          defense counsel asked PV2 New if, during a
          separate conversation with PFC Ransom, PFC
          Ransom admitted pointing a gun at the
          appellant. The military judge again
          sustained a hearsay objection, with
          comments suggesting that he considered
          this as the same question the defense had
          asked earlier. The defense counsel


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United States v. Benton, 01-0289/AR


          pointed out that he was trying to elicit
          statements of PFC Ransom to PV2 New, not
          statements of the appellant to PV2 New,
          and that the penal interest exception to
          the hearsay rule applied. In an Article
          39(a), UCMJ, session, the defense made a
          more complete proffer of the out-of-court
          statement of PFC Ransom that he intended
          to elicit, but the military judge
          sustained the prosecution’s hearsay
          objection. This ruling is the basis of
          the appellant’s second assignment of
          error.

            At the conclusion of the government’s
          case, the defense counsel asked the
          military judge to reconsider his rulings
          on the admissibility of the statements
          that the appellant and PFC Ransom had made
          to PV2 New. As a proffer of what PV2 New
          would say, the defense asked that PV2
          New’s sworn statement, previously marked
          as a defense exhibit but not admitted, be
          made an appellate exhibit. The military
          judge indicated that remarking the
          statement was not necessary, and adhered
          to his earlier rulings.

          ____________
          2/
             Private New disclosed that he was
          facing trial by court-martial himself for
          manslaughter, absence without leave, and
          other military offenses. Canadian
          authorities had already tried him for
          dangerous driving that had caused the
          death of his best friend, another soldier.
          The military manslaughter charge
          apparently involved the same death. In
          exchange for delaying his own trial until
          he testified against the appellant and PFC
          Ransom, the grant of leniency involved
          dropping the manslaughter charge and
          limiting any sentence on the other
          offenses to time served in pretrial
          confinement.

Id. at 720-21 (emphasis added).

    Finally, the appellate court below delineated the remainder

of the defense evidence at this court-martial.




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United States v. Benton, 01-0289/AR


                C.   The Appellant’s Testimony

            The appellant testified on the merits,
          and in general, his testimony was
          consistent with his pretrial statement to
          the police. He testified that he and PFC
          Ransom were riding around and listening to
          music, as they had done many times before.
          Because PFC Ransom liked to drink (and had
          drunk to the point of vomiting earlier
          that evening), the appellant was driving
          PFC Ransom’s car. Although the appellant
          had consumed some beer himself, he
          testified that he was not drunk. He
          indicated that on previous occasions when
          he and PFC Ransom had gone out, PFC Ransom
          flirted with women he met.

            The appellant testified that he was
          driving in the general area of his home
          when PFC Ransom told him to stop near two
          young women and then left the car. The
          appellant was collecting his compact disks
          from the floor of the car and did not hear
          or see what went on after he stopped the
          car. When he looked up again, CM was
          climbing into the car’s rear seat with PFC
          Ransom, apparently willingly. The
          appellant denied hearing any screaming or
          crying, but on cross-examination, admitted
          that he heard some screaming and yelling
          when the back door was opened.

            In details not included in his taped or
          oral statements to the police, the
          appellant testified that after PFC Ransom
          entered the car, PFC Ransom put a gun to
          the appellant’s face and ordered him to
          drive away. He was scared because PFC
          Ransom was drunk, so he complied. While
          driving, the appellant looked into the
          back seat and saw PFC Ransom on top of CM.
          He began hitting PFC Ransom in the side
          repeatedly with his fist in an effort to
          get his attention.

            The appellant testified that he stopped
          the car at a dead end in a wooded area
          pursuant to PFC Ransom’s instructions. He
          exited the car with PFC Ransom and CM. He
          initially denied noticing that CM was
          nearly naked, but admitted during recross-
          examination that she was naked from the


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United States v. Benton, 01-0289/AR


           waist down when they went through the
           barbed wire fence into the woods. He
           again denied that CM performed oral sodomy
           on him. He testified that when PFC Ransom
           told CM to perform oral sodomy on him, the
           appellant gave PFC Ransom “a look,” and
           PFC Ransom responded by telling him to
           move the car. The appellant then left the
           area because he did not want to have
           anything to do with what he expected was
           going to happen; that PFC Ransom was going
           to rape CM. When he got back to the car,
           he drove off, leaving CM and PFC Ransom in
           the woods.

             The appellant testified that after being
           stopped, he lied to the police officers
           about being on his way to a club in
           Seattle because things "looked bad" for
           him.

             Based on the appellant’s testimony that
           he was in fear of PFC Ransom because PFC
           Ransom was drunk and had pointed a weapon
           at his head in the car, the military judge
           instructed the court members on the
           defense of duress with regard to both
           offenses of which the appellant was
           convicted.

Id. at 721-22 (emphasis added).



                                ___ ___ ___

    Appellant makes two claims of evidentiary error in his case.

First, he contends that the military judge erred when he

suppressed testimony from a fellow pretrial confinee, PV2 New,

that appellant had said that his co-accused,           PFC Ransom, pointed

a gun at him and ordered him to drive at the time of the alleged

kidnapping of CM.     See generally Mil.R.Evid. 304(h)(2), Manual

for Courts-Martial, United States (1998 ed.).1



1   All Manual provisions are identical to the ones in effect at the time of
appellant’s court-martial.


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United States v. Benton, 01-0289/AR


Second, he asserts that the military judge erred when he excluded

profferred testimony, again from PV2 New, that PFC Ransom also

said that he pointed a gun at appellant at that time, probably

because he was drunk. (R. 423)    See generally Mil.R.Evid. 804

(b)(3).    On the basis of these evidentiary errors, appellant

asserts the “it can hardly be argued that [he] received the fair

trial to which he was entitled.”      Final Brief at 24.



    Appellant’s evidentiary claims arose in the context of a

contested trial, where he was ultimately found guilty of

kidnapping and sodomizing CM.    He testified in his own defense to

the kidnapping charge that his alleged co-actor, PFC Ransom,

coerced him into committing this crime by threatening him with a

gun.    See RCM 916(h), Manual, supra.    He also testified in

defense to the sodomy charge that he refused to commit that

offense, although PFC Ransom tried to force him to do this act.

The alleged victim, however, testified that appellant was a

willing participant in committing the charged offenses and that

she did not see PFC Ransom threaten appellant with a gun at any

time.    PFC Ransom did not testify at appellant’s trial.    An

arresting officer and the investigating detective testified that

appellant gave different exculpatory stories, neither one

mentioning that he was threatened with a gun by PFC Ransom.       The

Government finally called PV2 New, a fellow pretrial confinee of

appellant and PFC Ransom, to testify to various admissions made

by them prior to trial.    The defense sought the excluded




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United States v. Benton, 01-0289/AR


testimony on PFC Ransom’s purported threat on cross-examination

of PV2 New.



                                 I

    Appellant asserts that PV2 New’s proffered testimony that

appellant said he was threatened by PFC Ransom at the time of the

kidnapping was admissible under Mil.R.Evid. 304(h)(2). 2   He

asserts that this exculpatory statement was part of his purported

confession, otherwise evidenced on direct examination by the

Government’s witness, PV2 New.   The appellate court below held

that the trial judge erred in excluding this testimony, but it

was harmless.   It conducted a detailed analysis of this purported

error in the context of appellant’s court-martial and said:


            Had the appellant’s statement to PV2 New
          been admitted, we are confident that the
          credibility assessment would still have
          heavily favored CM’s recitation of events.
          Having no “grave doubts” about the impact
          of the excluded evidence on the results
          obtained at trial, we conclude that the
          appellant suffered no material prejudice
          from the erroneous exclusion of PV2 New’s
          testimony. See UCMJ art. 59(a), 10 USC
          § 859(a); United States v. Pollard, 38 MJ
          41, 52 (CMA 1993) (quoting Kotteakos v.
          United States, 328 U.S. 750, 765 . . .
          (1946)).

54 MJ at 725.

    We agree with the appellate court below for several reasons.

First, appellant himself was allowed to testify that his


2 It states: “Completeness. If only part of an alleged
admission or confession is introduced against the accused, the
defense, by cross-examination or otherwise, may introduce the
remaining portions of the statement.”


                                 11
United States v. Benton, 01-0289/AR


participation in CM’s kidnapping was coerced by PFC Ransom’s

threatening conduct with a gun and that he did not sodomize her.

See United States v. Scheffer, 523 U.S. 303 (1998) (holding no

violation of constitutional right of defense where accused

allowed to substantially present his defense through other

evidence); United States v. Lea, 249 F.3d 632, 642 n.8 (7th Cir.

2001).    Second, the corroborative value of the excluded evidence

that appellant told a fellow pretrial confinee sometime after the

crime the same exculpatory story was not great.   See generally

United States v. Mathis, 264 F.3d 321, 342-44 (3rd Cir. 2001) (in

context of record as a whole, excluded testimony was highly

unlikely to have caused a different result).   Finally, any

corrective value which the excluded evidence might have had to

prevent the members from thinking appellant had confessed to PV2

New was largely minimized by appellant’s own testimony in this

case. 3


    On this last point, we note the telling words of the

appellate court below:


           More significantly, during direct
           examination, the appellant denied having
           the conversation in question with PV2 New.
           He suggested that PV2 New’s knowledge of
           the events to which he testified derived
           from reading the transcript of the Article
           32(b), UCMJ, investigation that the
           appellant kept in his cell. By denying

3   We reject the dissent’s additional assertion that the
military judge’s ruling excluding evidence of the remainder of
appellant’s statement to PV2 New prejudicially undercut
appellant’s trial testimony by showing it to be a recent
fabrication. The admission of appellant’s pretrial statements to
his arresting officer and, later, to an investigating detective
amply demonstrated that fact.

                                 12
United States v. Benton, 01-0289/AR


             that the conversation to which PV2 New
             testified actually occurred, the appellant
             impaled himself on the horns of a dilemma:
             on the one hand arguing that his
             statements to PV2 New were admissible
             under the rule of completeness and on the
             other hand arguing that there were no
             statements to complete. He is now in no
             position to claim that he was gored.

54 MJ at 725 (emphasis added);     see United States v. Levy-

Cordero, 156 F.3d at 247 (holding that the erroneous exclusion of

evidence of facts which accused recanted certainly was harmless

error).     We agree.



                                   II

    The second issue in this case is whether the Court of

Criminal Appeals prejudicially erred when it affirmed the

military judge’s refusal to admit additional testimony from PV2

New which purportedly exculpated appellant.     In particular,

appellant asserts that the military judge erroneously prohibited

the defense from asking PV2 New whether PFC Ransom, admitted that

he pointed a gun at appellant during the incident with CM.       (R.

420, 423)    The record reflects that PV2 New would have testified

that he asked PFC Ransom,“Why’d you pull a gun at your boy?” and

he (Ransom) responded, “I don’t know.     I guess because I was

drunk or something.”    (R. 426)


    Defense counsel asserted at trial that PV2 New’s testimony

concerning PFC Ransom’s out-of-court statement was admissible

hearsay under Mil.R.Evid. 804(b)(3), the declaration-against-

interest exception to the hearsay rule.     (R. 422, 534-36)    See

generally Williamson v. United States, 512 U.S. 594 (1994).       The


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United States v. Benton, 01-0289/AR


military judge sustained the Government’s objection to this

proffered defense evidence as hearsay, suggesting he considered

it untrustworthy. (R. 427)   He was also asked at a later date to

reconsider his ruling and make specific findings of fact

pertaining to this motion, which he indicated he would do, but

which he failed to do. (R. 536)    The Court of Criminal Appeals

held that the proffered evidence did not qualify as a declaration

against penal interest.   54 MJ at 727.



    Mil.R.Evid. 804(b)(3) states:



            (b) Hearsay Exceptions. The following
          are not excluded by the hearsay rule if
          the declarant is unavailable as a witness.

                             * * *

            (3) Statement against interest. A
          statement which was at the time of its
          making so far contrary to the declarant’s
          pecuniary or proprietary interest, or so
          far tended to subject the declarant to
          civil or criminal liability, or to render
          invalid a claim by the declarant against
          another, that a reasonable person in the
          position of the declarant would not have
          make the statement unless the person
          believed it to be true. A statement
          tending to expose the declarant to
          criminal liability and offered to
          exculpate the accused is not admissible
          unless corroborating circumstances clearly
          indicate the trustworthiness of the
          statement.

(Emphasis added.)


    To gain admission of PV2 New’s exculpatory hearsay testimony

under this rule, it was appellant’s burden to show, inter alia,

that (1) PFC Ransom was unavailable to testify at trial, (2) PFC


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United States v. Benton, 01-0289/AR


Ransom’s statement was against his penal interest, and (3)

corroborating circumstances clearly indicated the trustworthiness

of the statement.   See United States v. Paguio, 114 F.3d 928, 932

(9th Cir. 1997); United States v. Bumpass, 60 F.3d 1099, 1102 (4th

Cir. 1995).


    The Court of Criminal Appeals held, inter alia, that

appellant failed to show PFC Ransom’s out-of-court statement was

actually against his penal interests. (Requirement 2)    See

generally United States v. Tropeano, 252 F.3d 653, 659 (2d Cir.

2001) (recognizing a “sufficiently self-inculpatory” standard for

determining whether out-of-court statements qualify as

declarations against penal interest).    In this regard, we note

that PFC Ransom’s statement was evasive on its face and fell far

short of an unambiguous admission to coercing appellant to commit

a crime by pointing a gun at him.     See United States v. Seabolt,

958 F.2d at 233; cf. United States v. Thomas, 571 F.2d 285, 288

(5th Cir. 1978) (direct confession not required, only disserving

statements which would have probative value against declarant).

       Moreover, to the extent he did so implicitly, he attempted

to diminish his culpability by blaming his conduct on

overindulgence in alcohol.   See generally RCM 916(l)(2)

(evidence of voluntary intoxication may be introduced to

disprove specific intent offenses); see also United States v.

Jacobs, 44 MJ 301, 306 (1996); United States v. Fowlie, 24 F.3d

1059, 1068 (9th Cir. 1994) (statement not against interest where

it indicates that declarant thinks he would not be prosecuted

for admissions).    We conclude that the appellate court below did


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United States v. Benton, 01-0289/AR


not err in holding that PV2 Ransom’s statement did not

sufficiently expose him to criminal liability to the extent that

a reasonable person in the declarant’s position would not have

made the statement unless believing it to be true.     Williamson

v. United States, 512 U.S. at 603-04.


    Assuming error in this regard, we next turn to the question

of trustworthiness under Mil.R.Evid. 804(b)(3). (Requirement 3)

A preliminary decision must be made by the military judge whether

there exist “corroborating circumstances which clearly indicate

the trustworthiness” of the out-of-court statement.    United

States v. Price, 134 F.3d 340, 347-48 (6th Cir. 1998)(emphasis

added).   In United States v. Rasmussen, 790 F.2d 55, 56 (8th Cir.

1986), the Eighth Circuit delineated several circumstances which

bear on this question:


             The trustworthiness of a statement
           against the declarant’s penal interest is
           determined by analysis of two elements:
           “the probable veracity of the in-court
           witness, and the reliability of the out-
           of-court declarant.” Alvarez, supra, 584
           F.2d at 701. Factors to be considered in
           such an analysis include: (1) whether
           there is any apparent motive for the out-
           of-court declarant to misrepresent the
           matter, (2) the general character of the
           speaker, (3) whether other people heard
           the out-of-court statement, (4) whether
           the statement was made spontaneously, (5)
           the timing of the declaration and the
           relationship between the speaker and the
           witness. Id. at 702 n.10.



    The record before us in this case established several

circumstances relevant to this trustworthiness question.    See



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United States v. Benton, 01-0289/AR


United States v. Bumpass, 60 F.3d at 1102.        First, PFC Ransom,

the out-of-court declarant, had a motive for misrepresentation in

this matter.   PV2 New’s pretrial statement (Defense Exhibit A for

ID), which was before the military judge, asserts that “Benton

said he was going to testify against Ransom if Ransom wouldn’t

sign a paper saying Benton didn’t do anything.” (R. 417-18)        See

United States v. Bumpass, 60 F.3d at 1103.        Second, in view of

the numerous serious offenses charged against PFC Ransom

concerning CM, there was a low probability PFC Ransom would ever

be additionally charged or punished for aggravated assault on his

co-accused or perjury.   See United States v. Silverstein, 732

F.2d 1338, 1346 (7th Cir. 1984).        Third, nobody else heard the

statement purportedly made by PFC Ransom to PV2 New, a fellow

pretrial confinee, and it was made in circumstances suggesting

that it was mere jailhouse braggadocio.        See United States v.

Sanchez-Satelo, 8 F.3d 202, 213 (5th Cir. 1993); United States v.

Seabolt, 958 F.2d at 233; cf. United States v. Hamilton, 19 F.3d

350, 357 (7th Cir. 1994).   Finally, the purported statement was

not made spontaneously, but in response to a specific question

asked by a fellow pretrial confinee, who had previously discussed

this case in great detail with the subsequently exonerated co-

accused.   Cf. United States v. Thomas, 571 F.2d 285, 290 (5th

Cir. 1978).



    Appellant had a heavy burden to establish corroborating

circumstances clearly indicating the trustworthiness of PFC

Ransom’s out-of-court statement.        See United States v. Bumpass,



                                   17
United States v. Benton, 01-0289/AR


supra.   The record before us, however, overwhelmingly supports

the conclusion of the judge that such circumstances did not exist

in this case.   Cf. United States v. Paguio, 114 F.3d at 933

(where evidence cuts both ways on trustworthiness, statement

should be admitted for the jurors’ determination).   Instead, the

circumstances in this case clearly show the exact type of

evidence that Mil.R.Evid. 804(b)(3) was designed to preclude.

See United States v. Silverstein, supra (the rule was designed to

circumvent fabrication by the defendant’s pals where there was

little chance that the pals would be prosecuted).


    The decision of the United States Army Court of Criminal

Appeals is affirmed.




                                18
United States v. Benton, No 01-0289/AR


     CRAWFORD, Chief Judge (concurring in the result):

     Appellant seeks to overturn his conviction in this case by

claiming that the military judge erred in failing to admit two

statements by a pretrial confinee, PV2 New, that could have been

employed to exonerate appellant.   First, appellant told PV2 New

that PFC Ransom pointed a gun at appellant; and second, Ransom

told New that Ransom pointed a gun at appellant.    Both Ransom

and appellant were charged with numerous offenses, and appellant

was convicted of forcible sodomy and kidnapping of the victim.

     Statements may be admitted under Mil. R. Evid. 804(b)(3),

Manual for Courts-Martial, United States (2000 ed.), to

exonerate the defendant or implicate the defendant.    Rule

804(b)(3) demands corroboration only when the defense offers an

exonerating declaration against interest.   There is no

requirement for corroboration when the prosecution seeks to

admit statements implicating the defendant.    I would hold that

any error in this case is harmless and leave for another day the

constitutionality of Rule 804(b)(3).

     The victim testified that appellant turned and looked at

her several times while she was being raped.    The contention

that appellant was driving the car while Ransom, over an

extended period of time, was raping the victim, and at the same

time forcing appellant to drive the car, strains credulity.

New’s testimony that appellant said Ransom pointed a gun at him
United States v. Benton, No 01-0289/AR


was specifically denied by appellant during the trial.

Likewise, Ransom’s statement that he pointed a gun at appellant

is unclear and ambiguous.   Additionally, as the majority

indicates, Ransom’s statement did not reasonably expose him to

any more criminal liability than he already faced. Because the

defense failed to establish the trustworthiness of Ransom’s

statement, the judge did not abuse his discretion in excluding

it.
United States v. Benton, No. 01-0289/AR




     EFFRON, Judge (dissenting):



     I agree with the majority opinion that the military judge

erred in excluding the exculpatory portions of Private (PV2)

New’s testimony about appellant’s admissions.     I respectfully

dissent, however, from the majority opinion’s conclusion that

the error was harmless.



        I.    THE PRETRIAL STATEMENT AND EVIDENCE OF DURESS

     Appellant was charged with participating with Private First

Class (PFC) Taori Ransom in a variety of crimes against Ms. CM,

including rape, kidnapping, and forcible sodomy.     Appellant and

PFC Ransom were placed in pretrial confinement, where they met

PV2 New.     Prior to appellant’s trial, PV2 New informed law

enforcement personnel that he and appellant had discussed the

charges against appellant.      PV2 New provided a sworn, written

statement relating his conversation with appellant, which

includes the following:

          Benton told me that he and Ransom were driving
     around when they saw two girls in Woodbrook and they
     were going to “mack on them.” I understood “mack” to
     mean sex or something.... Ransom got out of the car,
     and Benton said he saw Ransom hit one of the females
     on the head with a gun. Ransom then pushed the girl
     in the car. Benton said Ransom put the gun to his
     (Benton's) head and said “drive, drive, go,” or words
     to that effect.
United States v. Benton, No. 01-0289/AR


          Benton said he pulled over to the side of the
     road; Ransom did not tell him to stop. Benton said he
     pulled into a dead end and turned the car around.
     According to Benton all three people…got out of the
     car. Ransom told the girl to “hook my boy up,” or
     words to that effect. Benton told me that the female
     victim began to undo his (Benton’s) pants and was
     going to perform oral sex on him, then he changed his
     mind and pulled his pants up.


According to New, Benton also told him he saw Ransom have oral

sex, sexual intercourse, and anal sex with the victim.



    II.   THE INCOMPLETE STATEMENT AND MISLEADING PRESENTATION
                 OF THE PRETRIAL STATEMENT AT TRIAL

     At trial, PV2 New testified as a witness for the

prosecution.   The prosecution used New’s testimony to introduce

appellant’s out-of-court statements as evidence of appellant’s

participation in the charged offenses.    During the direct

examination, the prosecution elicited the substance of New’s

entire pretrial statement regarding his discussion with

appellant, with one major exception.   Trial counsel carefully

avoided any questions about New’s pretrial assertion that,

according to his conversation with appellant, Ransom had placed

a gun to appellant’s head when Ransom returned to the car with

Ms. CM.   Despite omitting that critical element of his pretrial

statement, PV2 New told the court-martial that appellant had

told him “everything” about the incident.




                                 2
United States v. Benton, No. 01-0289/AR


     On cross-examination, defense counsel sought to elicit that

portion of New's pretrial statement describing Ransom placing a

gun to appellant’s head.   Trial counsel objected, asserting that

the question called for inadmissible hearsay.    Defense counsel

countered that the statement was admissible under the rule of

completeness.   The military judge sustained the objection and

precluded the testimony.

     Appellant subsequently testified.    The critical point of

his testimony was that he was coerced into committing the

offenses as a result of Ransom placing a gun to his head.     He

also denied that he had made any statement to PV2 New.    In light

of appellant's testimony that he was coerced by Ransom placing a

gun at his head, the military judge instructed the members on

the defense of duress.   See RCM 916(h), Manual for Courts-

Martial, United States (1998 ed.).

     The members returned a mixed verdict, convicting appellant

of several offenses and acquitting him of several offenses.     On

direct review, the Court of Criminal Appeals held that the

military judge erred by precluding New from testifying as to

that portion of his statement recounting appellant's description

of Ransom placing a gun to his head.   The court, however,

concluded that the error was harmless, a view that has been

adopted in the majority opinion.




                                   3
United States v. Benton, No. 01-0289/AR


      III.    THE PREJUDICIAL IMPACT OF THE MILITARY JUDGE'S
                          ERRONEOUS RULING

     The majority opinion offers three grounds in support of the

proposition that the error was harmless.    First, the majority

opinion contends that the error was harmless because appellant

was allowed to present his defense -- duress -- through other

evidence.    The purpose of the rule of completeness, however,

goes beyond allowing an accused to introduce exculpatory

statements.   The purpose is to ensure that the factfinders are

not misled as to the nature and quality of the accused's

statement.    Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 171-72

n.14 (1988)

     In the present case, the members were misled.    The problem

with PV2 New's in-court testimony is that it created the

erroneous impression that appellant had told New "everything"

about the incident -- and that "everything" amounted to an

unqualified, inculpatory statement.    In that form, New's

testimony undercut appellant's in-court testimony by making

appellant’s in-court statement regarding duress appear to be a

recent fabrication.

     The essence of the defense contention on appeal is not that

New's complete testimony was needed to establish the defense of

duress.   The issue raised by the defense is that the incomplete

nature of New's testimony contradicted appellant's in-court



                                  4
United States v. Benton, No. 01-0289/AR


testimony.   As the Supreme Court has emphasized, the rule of

completeness is designed to ensure "that the court not be misled

because portions of a statement are taken out of context" and to

avoid "the danger that an out-of-context statement may create

such prejudice that it is impossible to repair by a subsequent

presentation of additional material." Id.

     The majority opinion also contends that the error was

harmless because there was not much corroborative value in the

fact that appellant's in-court testimony was the same as the

statement he made to another person in confinement shortly after

the crime.   The critical problem, as noted above, was not the

absence of corroborative testimony.   The problem was that

appellant's in-court testimony was undercut by the glaring

difference between his testimony at trial -- raising the defense

of duress -- and New's selective testimony about appellant's

pretrial statement   -- leaving the impression that there was no

such coercion.

     The majority opinion further contends that the error was

harmless because when appellant denied making any statement to

New, his position "largely minimized" any value of the excluded

testimony. __ MJ at (12).   The majority opinion suggests that

appellant created a "dilemma" by arguing both that the evidence

was needed to complete his statement to New and that he made no

such statement.   The problem in this case was not created by the


                                 5
United States v. Benton, No. 01-0289/AR


defense, but by the prosecution’s misleading and incomplete

account of the pretrial statement.

     This is not a case of the defense affirmatively seeking to

introduce an exculpatory pretrial statement into the trial as

part of the defense case-in-chief.    New's testimony was

interjected into the trial by the prosecution, not the defense.

The decision to present New's recollection in a selective rather

than a comprehensive manner was made by the prosecution, not the

defense.   The ruling of the military judge was prejudicial to

appellant's right to have the members assess the credibility of

appellant's duress.   The ruling allowed the prosecution to

present an incomplete, misleading account of appellant’s

pretrial statement, an account which left the impression that

appellant had changed his story prior to trial.

     It is also noteworthy that the prosecution's presentation

was far from compelling, as evidenced by the fact that the panel

members did not accept the prosecution's primary theory of the

case.   The prosecution's theory was that appellant and Ransom

planned and executed the attack on CM.    The members, however,

acquitted appellant of all the specifications involving

vicarious liability for the acts of PFC Ransom, as well as the

specification involving conspiracy.    He was convicted only of

the offenses to which the duress defense was most directly

applicable -- kidnapping and forcible sodomy.


                                 6
United States v. Benton, No. 01-0289/AR


     The ruling of the military judge meant that the evidence

which the members took into the deliberation room consisted of

conflicting testimony between the victim and appellant, and what

appeared to be a complete and unqualified pretrial confession by

appellant to his cellmate.   The members were left with the

impression that appellant had never told anyone prior to trial

that PFC Ransom had pointed the gun at him.   The members easily

could have concluded that appellant concocted this story in

preparation for trial in order to create a defense.   Under these

circumstances, the error was prejudicial.




                                 7
