UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                           Before
                               COOK 1, HAIGHT, and PENLAND
                                  Appellate Military Judges

                              UNITED STATES, Appellee
                                           v.
                            Staff Sergeant PAUL S. TALAR
                             United States Army, Appellant

                                     ARMY 20130603

                               Headquarters, Fort Bragg
                       Tara Osborn, Military Judge (arraignment)
               Kirsten Brunson, Military Judge (pretrial motions and trial)
                      Colonel Paul S. Wilson, Staff Judge Advocate


For Appellant: Captain Payum Doroodian, JA (argued); Colonel Kevin Boyle, JA;
Major Yolanda McCray Jones, JA; Captain Payum Doroodian, JA (on brief); Major
Amy E. Nieman, JA; Captain Payum Doroodian, JA (on brief on supplemental
assignment of error).

For Appellee: Captain Robyn M. Chatwood, JA (argued); Major A.G. Courie III,
JA; Major John K. Choike, JA; Major Matthew T. Grady, JA (on brief).


                                      24 August 2015
                                 ---------------------------------
                                  OPINION OF THE COURT
                                 ---------------------------------

HAIGHT, Judge:

      A panel composed of officers and enlisted members sitting as a general court-
martial convicted appellant, contrary to his pleas, of false official statement, abusive
sexual contact, and bigamy, in violation of Articles 107, 120, and 134, Uniform
Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 907, 920, and 934 (2006
& Supp. IV). 2 The panel sentenced appellant to a dishonorable discharge, two years


1
    Senior Judge COOK took final action in this case prior to his retirement.
2
    The panel acquitted appellant of a specification of rape.
TALAR—ARMY 20130603

of confinement, forfeiture of all pay and allowances, and reduction to the grade of
E-1. The convening authority approved the adjudged sentence.

       Appellant’s case is now pending review before this court pursuant to Article
66, UCMJ. Appellant raises multiple assignments of error, one of which merits
discussion and relief. The other assignments of error and the issues personally
raised by appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.
1982), are either rendered moot by our disposition of this case or do not warrant
discussion or relief.

                                  BACKGROUND

       Appellant married his first wife, TJC, in November 1992. Appellant married
his second wife, AO, in February 2001, while still married to TJC. Appellant
married his third wife, SMG, in July 2010, while still married to TJC and still in a
void, bigamous marriage to AO.

       After a fully contested trial, appellant was acquitted of raping AO in 2003 but
convicted of engaging in sexual contact with SMG in 2011 while she was
substantially incapacitated, committing bigamy by marrying SMG in 2010 while still
married to TJC, and making a false official statement in 2010 by submitting from
Afghanistan an altered marriage certificate for input to the Defense Enrollment
Eligibility Reporting System (DEERS). Appellant asserts the finding of guilty to the
false official statement charge should be set aside because the evidence used to
prove that offense violated his confrontation rights under the Sixth Amendment. We
agree.

                                   DISCUSSION

       The false official statement charge was based upon the fact that appellant’s
digital military personnel file contained a Tennessee Marriage Certificate indicating
appellant and SMG were married on 29 July 2010. Actually, the two were married
twelve days prior, on 17 July 2010. However, as appellant and AO, his second wife,
were not divorced until 29 July 2010, the government’s theory was that appellant
altered the date in order to submit the marriage certificate pertaining to SMG and
thereby qualify her and her child for military benefits without raising any red flags
regarding his bigamy. 3 The preferred and referred specification alleged:



3
 Apparently, appellant’s first wife, TJC, was never enrolled in DEERS.
Accordingly, an overlapping marriage with TJC would not create a conflict in
appellant’s records whereas an overlapping marriage with AO, who was enrolled in

                                                                      (continued . . .)


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             In that Staff Sergeant (E-6) Paul S. Talar, U.S. Army, did,
             at or near Fort Bragg, North Carolina, between on or about
             1 August 2010 and on or about 30 November 2010, with
             intent to deceive, make an official statement, to wit: State
             of Tennessee Marriage Certificate dated 29 July 2010
             between Paul Steven Talar and [SMG], which record was
             false in that the date of marriage was 17 July 2010, and
             was then known by the said Staff Sergeant Paul S. Talar to
             be so false.

       The defense prepared for trial and planned on showing that appellant could
not possibly have submitted the falsified document at Fort Bragg, North Carolina, as
charged, because appellant was deployed to Afghanistan during that time frame. In
that same vein, the government’s continued investigation and pretrial preparation
revealed that the altered document was, in fact, scanned into the system on 18
September 2010 by a Human Resources Specialist, JP, who was working at the
DEERS and ID card section in Bagram, Afghanistan, at that time. So, two weeks
before trial, the government moved to amend the location of this offense from “at or
near Fort Bragg, North Carolina” to “at or near Bagram, Afghanistan.” Predictably,
the government asserted this was a minor change, and the defense claimed this was a
prejudicial major change. The military judge agreed with the government and
granted the motion to amend.

       At trial, it was plainly evident that the government’s case regarding the false
official statement depended on showing that appellant submitted a falsified
document to JP, while they were both in Afghanistan, so that JP would then add that
document to the DEERS database via the Real-time Automated Personnel
Identification System (RAPIDS). In fact, in response to defense’s Rule for Courts-
Martial [hereinafter R.C.M.] 917 motion for a finding of not guilty and the military
judge’s request for legal authority for the “proposition that submitting a false
document constitutes making a statement,” the trial counsel responded:

             Your Honor, in addition to the gesture of handing it to
             [JP], he still caused an agent to do that who [sic] actually
             uploaded this document. There’s certainly circumstantial
             evidence that it was handed to [JP], who then scanned a
             document and uploaded it -- caused it to be uploaded.



(. . . continued)
DEERS, would indicate bigamy and consequently disqualify SMG from military
benefits.




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TALAR—ARMY 20130603

The military judge then explicitly found that appellant could have “made” a false
official statement by “submitting a false marriage certificate.”

        The error in this case boils down to the fact that there was no admissible so-
called “circumstantial evidence” that appellant submitted anything to JP, let alone
this altered marriage certificate. To the contrary, JP was never asked if he
recognized appellant or remembered any interaction whatsoever with appellant, in
Afghanistan or otherwise. Instead, JP merely testified to the fact that he was in
Afghanistan in September 2010 and that uploading documents such as marriage
certificates into DEERS was part of his assigned duties. Therefore, to fill the
absence of proof regarding any connection between JP and appellant, the government
offered a “Certification of Records Declaration,” authored by CV, “a duly authorized
custodian of records and qualified person of the Defense Manpower Data Center
(DMDC).”

       The typical certificate created pursuant to Military Rule of Evidence
[hereinafter Mil. R. Evid.] 902(11) (“Certified domestic records of regularly
conducted activity”) simply certifies a record “(A) was made at or near the time of
the occurrence of the matters set forth by, or from information transmitted by, a
person with knowledge of those matters; (B) was kept in the course of the regularly
conducted activity; and (C) was made by the regularly conducted activity as a
regular practice.” Here, on the other hand the one and a half-page affidavit of CV,
purporting to be a mere certificate of records, went well beyond the allowable
declarations and provided material and damning evidence against appellant.
Specifically, CV swears under penalty of perjury:

             I have conducted a thorough search of the records within
             my custody and control and located Marriage Certificates
             from the State of Tennessee (County of Sevier) for Staff
             Sergeant (SSG) Paul S. Talar, USA and Ms. [SMG]
             (formerly Talar). I also located the first page of a
             Judgment of Dissolution of Marriage from the Jackson
             County Circuit Court of the State of Oregon between SSG
             Talar and Ms. [AO].

             The DMDC auditing application reflects on September 18,
             2010, Mr. [JP] at the 510 th PSD (CAC Deployable),
             Germany terminated Ms. Talar’s record to divorce and
             enrolled Ms. [SMG] under the sponsorship of SSG Talar.
             During these transactions, Mr. [JP] scanned a marriage
             certificate (attachment 1) and divorce decree (attachment
             3) into RAPIDS. On November 8, 2010, Ms. [EL] at the
             Fort Bragg IAG ID Card Facility, North Carolina enrolled
             [TCL], Ms. [SMG]’s child, under the sponsorship of SSG



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TALAR—ARMY 20130603

             Talar as his stepchild. Ms. [EL] scanned a marriage
             certificate (attachment 2) into RAPIDS. . . .

(emphasis added). Ms. CV was never called to the stand and was never subject to
cross-examination. However, her critical testimony, in the form of her records
certification, linking the questionable marriage certificate to JP, which in turn linked
the document to Afghanistan, which in turn linked the document to appellant, was
not only admitted into evidence over defense objection, but the above portion of the
certificate was then read to the panel verbatim by a government witness, Ms. NF, an
employee of the local Fort Bragg ID office.

        When this expected testimony, disguised as a records certification, was
offered, the defense objected not to the underlying attachments but to the cover
letter/certification on grounds of hearsay, lack of foundation, and introduction of
testimonial hearsay via an inappropriate witness. Initially, the military judge
agreed, stating “you’ve got a certification that’s providing testimony other than
simply these are the records that were found.” The military judge continued:

             I see testimonial information in the certification of records
             declaration. It appears to be -- and I’ll hear your
             argument -- it appears to be more than simply a statement
             from the custodian of these records are contained within
             the system; it goes a little further than that, and is
             responding specifically to questions about when -- you
             know, who did what, when, where and why. Again, I
             understand you’re saying that that’s -- everything that
             shows in the system, but I’m questioning that. It seems to
             me that a search of the records -- I’m wondering why a
             search of the records in DEERS wouldn’t simply show
             that, for example, Staff Sergeant Talar has one dependent
             child entered on this date. That he -- that a marriage was
             recorded entered on this date, and I can print off the
             documents that support that.

In response, trial counsel explained that while both Ms. CV, a DMDC employee, and
Ms. NF, a local DEERS employee, can both view the underlying documents from
their respective computers, only DMDC employees have access to and “can see” to
whom and from where the underlying documents were submitted and uploaded.
Ultimately, the military judge relented and allowed the “records certification.” This
was error.

       We determine that allowing a records custodian to swear to and certify
information as to what her databases “reflect” without calling that custodian to the
stand and without introducing the actual data, screen shot, print-out, or record which



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TALAR—ARMY 20130603

“reflects” the relevant information implicates not only confrontation problems, but
hearsay and best evidence hurdles as well. 4 To be clear, the attachments to the
records certification, specifically the marriage certificate, do not contain any
markings or indication of any sort showing to which DEERS employee they were
submitted, when they were submitted, or from where they were uploaded into the
system. In other words, the authentication certificate, not the attached documents,
was the evidence which provided the prosecution the crucial link between appellant
and JP.

       This very scenario was discussed in Melendez-Diaz v. Massachusetts and
ruled to be impermissible.

             The dissent identifies a single class of evidence which,
             though prepared for use at trial, was traditionally
             admissible: a clerk’s certificate authenticating an official
             record--or a copy thereof--for use as evidence. But a
             clerk’s authority in that regard was narrowly
             circumscribed. He was permitted to certify to the
             correctness of a copy of a record kept in his office, but
             had no authority to furnish, as evidence for the trial of a
             lawsuit, his interpretation of what the record contains or
             shows, or to certify to its substance or effect. . . . A clerk
             could by affidavit authenticate or provide a copy of an
             otherwise admissible record, but could not do what the
             analysts did here: create a record for the sole purpose of
             providing evidence against a defendant.

557 U.S. 305, 322-23 (2009) (internal citations and internal quotation marks
omitted) (emphasis in original).

        Accordingly, Ms. CV could authenticate the underlying documents over which
she was a proper custodian. But, she could not create the cover letter for purposes
of trial and therein provide testimony regarding her interpretation of whatever it is
that she reviewed when conducting her “auditing application.” Portions of the cover
letter were not an appropriate certification of an underlying business record.

             Business and public records are generally admissible
             absent confrontation not because they qualify under an


4
 We emphasize this ruling in no way addresses the scenario contemplated in Mil. R.
Evid. 803(10) where a review of pertinent databases reflects an absence of a record
or entry.




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TALAR—ARMY 20130603

              exception to the hearsay rules, but because--having been
              created for the administration of an entity’s affairs and not
              for the purpose of establishing or proving some fact at
              trial--they are not testimonial. Whether or not they
              qualify as business or official records, the analysts’
              statements here--prepared specifically for use at
              petitioner’s trial--were testimony against petitioner, and
              the analysts were subject to confrontation under the Sixth
              Amendment.

Id. at 324.

       Because portions of Ms. CV’s affidavit, as discussed, went beyond
authentication of existing business records and into the realm of creating and
providing testimony against appellant, those same portions which violated
appellant’s confrontation rights were also statements “offered in evidence to prove
the truth of the matter asserted” and did not qualify under any exception to the
hearsay prohibition. Mil. R. Evid. 801(c); see also Mil. R. Evid. 803(6). Similarly,
without the benefit of being able to view whatever screen, data field, or record that
Ms. CV viewed in order to create her testimonial affidavit, the panel was deprived of
the best evidence of the contents of that writing – that is, the writing itself.

                                    CONCLUSION

       The military judge abused her discretion in admitting the portions of Ms.
CV’s records certification that went beyond the required declarations of Mil. R.
Evid. 902(11). As this evidence was crucial to the government’s case regarding the
false official statement charge, especially so in light of the allowed change to the
situs of this offense, this error was not harmless by any standard. The findings of
guilty to Charge IV and its Specification are set aside and that charge and
specification are DISMISSED.

       The remaining findings of guilty are AFFIRMED.

       We are able to reassess the sentence on the basis of the error noted and do so
after conducting a thorough analysis of the totality of circumstances presented by
appellant’s case and in accordance with the principles articulated by our superior
court in United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013) and
United States v. Sales, 22 M.J. 305 (C.M.A. 1986). In evaluating the Winckelmann
factors, we first find no dramatic change in the penalty landscape that might cause
us pause in reassessing appellant’s sentence. Further, although appellant was tried
and sentenced by a panel, the nature of the remaining offenses still captures the
gravamen of the original offenses and the circumstances surrounding appellant’s
conduct. Finally, based on our experience, we are familiar with the remaining



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TALAR—ARMY 20130603

offenses so that we may reliably determine what sentence would have been imposed
at trial.

       Reassessing the sentence based on the noted error, the remaining findings of
guilty, and the requested relief by appellate defense counsel at oral argument, we
AFFIRM only so much of the sentence as provides for a dishonorable discharge,
eighteen months of confinement, and reduction to the grade of E-1. We find this
reassessed sentence is not only purged of any error but is also appropriate. All
rights, privileges, and property, of which appellant has been deprived by virtue of
that portion of the findings and sentence set aside by our decision, are ordered
restored. See UCMJ arts. 58b(c) and 75(a).

      Senior Judge COOK and Judge PENLAND concur.

                                       FOR
                                       FOR THE
                                           THE COURT:
                                               COURT:




                                       MALCOLM H. SQUIRES, JR.
                                       MALCOLM     H. SQUIRES, JR.
                                       Clerk of Court
                                       Clerk of Court




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