                          UNITED STATES, Appellee

                                         v.

                      Robert B. CLAYTON, Sergeant
                          U.S. Army, Appellant

                                  No. 08-0417

                         Crim. App. No. 20040903

       United States Court of Appeals for the Armed Forces

                        Argued December 16, 2008

                          Decided March 26, 2009

BAKER, J., delivered the opinion of the Court, in which EFFRON,
C.J., and ERDMANN and RYAN, JJ., joined. STUCKY, J., filed a
separate opinion concurring in part and in the result.


                                     Counsel

For Appellant: Captain Jennifer A. Parker (argued); Lieutenant
Colonel Matthew M. Miller, Lieutenant Colonel Mark Tellitocci,
and Major Grace M. Gallagher (on brief); Colonel Christopher J.
O’Brien, Lieutenant Colonel Steven C. Henricks, Major Bradley M.
Voorhees, Major Sean F. Mangan, and Captain Kathleena R.
Scarpato.

For Appellee: Major Christopher R. Clements (argued); Colonel
Denise R. Lind, Lieutenant Colonel Mark H. Sydenham, and Major
Lisa L. Gumbs (on brief); Major Dana E. Leavitt.

Military Judge:    R. L. Hall

            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Clayton, No. 08-0417/AR


       Judge BAKER delivered the opinion of the Court.

       A general court-martial with members convicted Appellant,

contrary to his pleas, of use of marijuana, possession of

marijuana, two specifications of obstruction of justice,

possession of marijuana with intent to distribute, reckless

driving, assault on a law enforcement officer, and fleeing

apprehension in violation of Articles 111, 112a, 128, and 134,

Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 911, 912a,

928, 934 (2000).    Appellant was sentenced to a dishonorable

discharge, confinement for five years, forfeiture of all pay and

allowances, and reduction to grade E-1.    The convening authority

approved the sentence as adjudged, as well as thirty-three days

of confinement credit for time served and post-trial delay.      The

United States Army Court of Criminal Appeals affirmed the

findings of guilty and the sentence.    United States v. Clayton,

No. ARMY 20040903 (A. Ct. Crim. App. Jan. 23, 2008) (per

curiam).

       We granted Appellant’s petition for grant of review and

specified two issues that relate to the admission of a German

civilian police report.1    We hold that the police report


1
    We specified review of the following issues:

       I. WHETHER THE CIVILIAN POLICE DRUG SEIZURE REPORT IN THIS
       CASE IS A REPORT SETTING FORTH “MATTERS OBSERVED BY POLICE
       OFFICERS . . . ACTING IN A LAW ENFORCEMENT CAPACITY,” AND,
       IF SO, WHETHER IT WAS PROPERLY ADMITTED UNDER M.R.E. 803(6)

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United States v. Clayton, No. 08-0417/AR


constitutes testimonial hearsay and the military judge committed

constitutional error by admitting it as evidence at Appellant’s

court-martial.   We further hold that the error was not harmless

beyond a reasonable doubt.2

                              BACKGROUND

     Although only the specification under Charge IV of

possession of marijuana with the intent to distribute is at

issue in this appeal, several of Appellant’s charges relate to

the events of March 16, 2004, in Ansbach, Germany.3   On that day,



     (BUSINESS RECORD EXCEPTION), WHEN IT WOULD NOT BE
     ADMISSIBLE UNDER M.R.E. 803(8) (PUBLIC RECORDS EXCEPTION).
     COMPARE, e.g., UNITED STATES v. OATES, 560 F.2d 45, 77-78
     (2d Cir. 1977) (HOLDING THAT POLICE RECORDS THAT WOULD BE
     INADMISSIBLE UNDER THE PUBLIC RECORDS EXCEPTION AGAINST THE
     ACCUSED WOULD ALSO BE INADMISSIBLE UNDER ANY OTHER
     EXCEPTION TO THE HEARSAY RULE) WITH UNITED STATES v. HAYES,
     861 F.2d 1225, 1230 (10th Cir. 1988) (HOLDING THAT THERE IS
     NO LIMITATION TO THE BUSINESS RECORD EXCEPTION IF THE
     AUTHOR OF THE PROFFERED DOCUMENT TESTIFIES AT TRIAL).

     II. IF THE MILITARY JUDGE ABUSED HER DISCRETION IN
     ADMITTING THE POLICE DRUG SEIZURE REPORT, WHETHER THE ERROR
     MATERIALLY PREJUDICED APPELLANT’S SUBSTANTIAL RIGHTS?

67 M.J. 42 (C.A.A.F. 2008).
2
  In light of our conclusion that the report was inadmissible
testimonial hearsay, we need not reach the specified issues.
This report would not qualify as either a business record or a
public record. See United States v. Rankin, 64 M.J. 348, 353
(C.A.A.F. 2007) (concluding that the documents were
nontestimonial under Crawford v. Washington, 541 U.S. 36 (2004),
before proceeding to determine whether the documents were
otherwise admissible).
3
  The panel found Appellant guilty of five offenses related to
the events of March 16, 2004, in Ansbach, Germany:

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United States v. Clayton, No. 08-0417/AR


the German civilian police (Polizei) organized a drug sting

operation.    Private Tyler Swafford agreed to work with the



CHARGE IV:    VIOLATION OF THE UCMJ, ARTICLE 112A

SPECIFICATION: In that Sergeant Robert B. Clayton, U.S. Army,
did, at or near Ansbach, Germany, on or about 16 March 2004,
wrongfully possess some amount of marijuana with intent to
distribute the said controlled substance.

CHARGE V:    VIOLATION OF THE UCMJ, ARTICLE 111

SPECIFICATION: In that Sergeant Robert B. Clayton, U.S. Army,
did, at or near Ansbach, Germany, on or about 16 March 2004, at
or near the intersection of Feuchtwanger Strasse and the turn-
off lane of Hohenzollern Ring, operate a vehicle, to wit: a
passenger car, in a wanton and reckless manner by driving the
vehicle back and forth several times in a hectic manner and did
thereby cause said vehicle to injure Jurgen Brenner.

CHARGE VI:    VIOLATION OF THE UCMJ, ARTICLE 128

SPECIFICATION: In that Sergeant Robert B. Clayton, U.S. Army,
did, at or near Ansbach, Germany, on or about 16 March 2004,
assault Jurgen Brenner, who then was and was then known by the
accused to be a person then having and in the executive of
civilian law enforcement duties, by striking him on the leg with
a vehicle, to wit: a passenger car.

CHARGE VII:   VIOLATION OF THE UCMJ, ARTICLE 134

SPECIFICATION 1: In that Sergeant Robert B. Clayton, U.S. Army,
did, at or near Ansbach, Germany, on or about 16 March 2004,
wrongfully endeavor to impede an investigation in the case of
United States v. Clayton, by disposing of evidence.

SPECIFICATION 2: In that Sergeant Robert B. Clayton, U.S. Army,
did, at or near Ansbach, Germany, on or about 16 March 2004,
flee apprehension by Ansbach Criminal Police, armed policemen,
persons authorized to apprehend the accused, which conduct was
to the prejudice of good order and discipline in the armed
forces or was of a nature to bring discredit upon the armed
forces.




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United States v. Clayton, No. 08-0417/AR


German police to apprehend Ms. Monica McLemore, his drug dealer

whom the German police had been investigating since November

2003.    Private Swafford arranged a time and place to meet Ms.

McLemore to purchase “[o]ne thousand pills of ecstasy for 7,500

Euro.”    Appellant drove the car with Ms. McLemore to the

designated location on March 16, 2004.    When Ms. McLemore

indicated that she had the drugs with her, Private Swafford

popped the trunk of his car to “signal the bust” to the German

police.    However, the German police failed to respond to the

signal, so Private Swafford “told [Ms. McLemore] that [they]

were going to a different location.”

        En route to the second location, the German police tried to

stop Appellant and Ms. McLemore at a traffic light.    Private

Swafford testified about what happened next:

        A Polizei car, marked Polizei car, came to the
        intersection. It was about three cars in front of me,
        stopped, had its lights on. A Polizei got out and
        started walking on the left side of the traffic up
        towards my car, and I looked back and I saw one of the
        German investigators running towards their car behind
        me. He had his gun out. He put his gun to the
        window, tried to open the door, and the door was
        locked.

        . . . .

        There was a gunshot fired after -- when -- well when
        the Polizei came up to the window of the car, he had
        his gun to the window and the car took off around
        mine.




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United States v. Clayton, No. 08-0417/AR


A chase ensued, and the German police lost sight of the car for

about two minutes before finding it stopped and empty with the

doors open.   Ms. McLemore was apprehended immediately and

Appellant fled on foot, only to be apprehended approximately

twenty-five minutes later.

     The German police then collected drugs from the car driven

by Appellant and along the route of the chase.    The lead German

investigator, Mr. Wolfgang Held, “personally picked up . . .

three packages” of psilocybin mushrooms at the scene.   Another

German police officer recovered a “rucksack” containing an array

of drugs “in the foot area of the passenger seat” of the car

driven by Appellant.   Other German police officers collected

drugs from along the route of the chase, some of which were

brought to their attention by pedestrians who said that the

drugs were discarded from a car “driving at a high rate of speed

. . . and after that vehicle was a police car.”   Of the police

officers who collected the drugs, including the marijuana at

issue in Charge IV and its specification, only Mr. Held and one

other officer testified at Appellant’s court-martial.   None of

the pedestrians testified about how and where they found the

drugs.   No witness testified about how the drugs came to be

located where they were found along the chase route or that they

actually saw Appellant or Ms. McLemore discard the drugs.




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United States v. Clayton, No. 08-0417/AR


     At Appellant’s court-martial, the military judge admitted

into evidence, over defense counsel’s objections, a report from

the German police pursuant to the business records exception to

the hearsay rule.   Military Rule of Evidence (M.R.E.) 803(6).

The report in question listed the drug evidence collected from

the car and the chase route, including “where the narcotics were

found, the time when it was found, and the police officer who

found it or who took it over from a pedestrian.”   Mr. Held

verified that he prepared the report as part of the “regular

course of [his] business” and such documents are “always

prepared when evidence is received.”   Mr. Held also testified

that, although he counted and recorded the drugs in the report,

he personally seized only three items and none of the marijuana

listed in the report, saw the rucksack in the car but did not

personally seize it from the car, and did not see anything

thrown from the car.

     In addition, the original report, about which Mr. Held

testified, was in German, and the military judge submitted to

the panel a “redacted American version” of the report translated

into English.   Although defense counsel only objected to the

admission of the German version, the English version merely

translated the content of the German version into a language

spoken by the members of the panel.    However, the German version

of the document is dated March 24, 2004, eight days after


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United States v. Clayton, No. 08-0417/AR


Appellant’s arrest.   The translation is dated September 1, 2004,

which was during Appellant’s court-martial.    The German document

contains seven paragraphs, and the translation contains four

paragraphs because certain drugs later seized from Ms.

McLemore’s quarters that were listed in the German version were

not included in the translation.

                            DISCUSSION

     This Court reviews a military judge’s decision to admit or

exclude evidence for an abuse of discretion.    United States v.

Datz, 61 M.J. 37, 42 (C.A.A.F. 2005).    “We review factfinding

under the clearly-erroneous standard and conclusions of law

under the de novo standard.”   United States v. Rodriguez, 60

M.J. 239, 246 (C.A.A.F. 2004) (citation and quotation marks

omitted).   We must first determine whether the report is

constitutionally admissible as nontestimonial hearsay.    Rankin,

64 M.J. at 353.   Whether evidence constitutes testimonial

hearsay is a question of law reviewed de novo.    United States v.

Foerster, 65 M.J. 120, 123 (C.A.A.F. 2007).    Because we conclude

that the report is testimonial under Crawford, 541 U.S. 36, and

its progeny, we hold that the military judge erred in admitting

the report as evidence.   See, e.g., Davis v. Washington, 547 U.S.

813 (2006); Rankin, 64 M.J. at 348.     We further hold that this

constitutional error was not harmless beyond a reasonable doubt.




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United States v. Clayton, No. 08-0417/AR


Error Under Crawford

     The Sixth Amendment provides that “[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to be

confronted with witnesses against him.”    U.S. Const. amend. VI.

This right applies to testimonial statements made out of court

because the declarant is a witness within the meaning of the

Sixth Amendment, and thus the accused must be afforded the right

to cross-examine that witness.    Foerster, 65 M.J. at 123 (citing

Davis, 547 U.S. at 821).     Although Mr. Held and one other

officer who discovered some of the drugs testified, two other

officers listed in the report, as well as the pedestrians who

provided the drugs to the officers, did not testify at

Appellant’s court-martial.    Further, only one of the officers

who found part of the marijuana at issue in Charge IV and its

specification testified, and he discovered it with the help of

pedestrians.   Appellant did not have the opportunity to cross-

examine these potential witnesses.     The question becomes whether

their statements in the report are testimonial, and thus whether

the report’s admission as evidence violated Appellant’s right to

confront witnesses against him.

     Although the Supreme Court has not defined testimonial

hearsay precisely, it has said that the distinction between

testimonial and nontestimonial hearsay aims to guard against

“abuses at which the Confrontation Clause was directed,” like


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United States v. Clayton, No. 08-0417/AR

“use of ex parte examinations as evidence against the accused.”

Crawford, 541 U.S. at 50, 68.   Most pertinent to this case, the

Supreme Court has identified “‘statements that were made under

circumstances which would lead an objective witness reasonably

to believe that the statement would be available for use at a

later trial’” as an example of “core” testimonial hearsay.

Rankin, 64 M.J. at 351 (quoting Crawford, 541 U.S. at 52).     In

turn, this Court has established “a number of questions . . .

relevant in distinguishing between testimonial and

nontestimonial hearsay made under circumstances that would cause

an objective witness to reasonably believe that the statement

would be available for use at a later trial.”   Id. at 352.

     First, was the statement at issue elicited by or made
     in response to law enforcement or prosecutorial
     inquiry? Second, did the statement involve more than
     a routine and objective cataloging of unambiguous
     factual matters? Finally, was the primary purpose for
     making, or eliciting, the statements the production of
     evidence with an eye toward trial?

Id.; see also United States v. Harcrow, 66 M.J. 154, 158

(C.A.A.F. 2008); Foerster, 65 M.J. at 123.   We answer all three

of these questions in the affirmative.   Thus, the report is

testimonial.

     First, the report was prepared in the course of an

investigation.   Mr. Held, a German police officer, prepared the

original report after a drug sting operation that resulted in

Appellant’s arrest for suspected drug possession.    See Harcrow,


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United States v. Clayton, No. 08-0417/AR

66 M.J. at 159 (finding that a state police laboratory report

from analysis conducted after the accused had become a suspect

and that identified him as a suspect was testimonial hearsay).

The report also incorporated the statements of other officers

regarding where they, or the pedestrians, found the drugs, which

they provided in furtherance of the investigation as part of

their law enforcement duties.   Furthermore, the German version

of the report was not translated into English until Appellant’s

court-martial in response to a prosecutorial request.

     Second, the report “involve[d] more than a routine and

objective cataloging of unambiguous factual matters.”    Rankin,

64 M.J. at 352.   Although Mr. Held testified that such reports

are routinely created, there is an important distinction between

a routine police report, such as a log, and an investigative

report that describes criminal events.   Mr. Held prepared this

report eight days after March 16, 2004, to describe the drugs

found in the car and along the chase route, who found them, and

where they found them.   Moreover, Mr. Held testified based on

the German version of the document, but the military judge

admitted the English version into evidence.   Although the

English version translates the information from the German

version, Mr. Held did not personally create the English version

and it was facially different from the German version.

Therefore, whatever arguments might be made about the initial


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United States v. Clayton, No. 08-0417/AR

German report, the English version certainly was not a routine

report of the German police.

     Further, the report does more than objectively inventory

the marijuana or record the chain of custody; it links the

marijuana listed therein to the scene and to Appellant by

extension.   The information included in the report is subject to

debate, such as how the marijuana was found and traced to

Appellant, as well as why one of the items listed was

“(supposedly) marihuana.”4    Accordingly, the circumstances in

which the report was created imply that the report contained

more than objective, unambiguous facts, which the report itself

confirms.

     Third, the report and its English translation were created

“with an eye toward trial.”    Rankin, 64 M.J. at 352.   Mr. Held

took eight days to create the report and included in it

information about who found the drugs and where.    The lapse of

time and content imply that the report is more than a police log

and was intended to serve as an exhibit in Appellant’s future

prosecution.   The date of the English translation of the report

and the discussion about it during the Article 39(a), UCMJ, 10

4
  Although the original German version of the report also
includes “(vermutl.) marihuana,” which translates as
“(supposedly) marihuana,” no explanation was provided regarding
why or how it was only “(supposedly) marihuana.” If it was only
“(supposedly) marihuana,” the question arises as to why it was
included in the report at all and whether or not it was tested
to verify that it was marijuana.

                                 12
United States v. Clayton, No. 08-0417/AR

U.S.C. § 839a (2000), session at Appellant’s court-martial

reflect that it was created specifically for Appellant’s court-

martial.    The English translation of the report also tailored

the original German report to Appellant’s court-martial by

excluding drugs recovered from Ms. McLemore’s quarters, which

had not been linked to Appellant.

       For these reasons, we conclude that the German police

report and its English translation are testimonial hearsay.     The

military judge thus committed constitutional error by admitting

testimonial hearsay infringing on Appellant’s Sixth Amendment

right to confront the officer and pedestrian witnesses against

him.

Prejudice

        “The Government bears the burden of establishing that a

constitutional error has no causal effect upon the findings.”

United States v. Othuru, 65 M.J. 375, 377 (C.A.A.F. 2007).      To

carry its burden, the Government must demonstrate that there is

no reasonable possibility that the testimonial German police

report contributed to the contested finding of guilty to

possession of marijuana with the intent to distribute.   Id.

       To say that an error did not “contribute” to the
       ensuing verdict is not, of course, to say that the
       jury was totally unaware of that feature of the trial
       later held to have been erroneous. . . .

       To say that an error did not contribute to the verdict
       is, rather, to find that error unimportant in relation


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United States v. Clayton, No. 08-0417/AR

        to everything else the jury considered on the issue in
        question, as revealed in the record.

Id. (quoting Yates v. Evatt, 500 U.S. 391, 403 (1991), overruled

on other grounds by Estelle v. McGuire, 502 U.S. 63, 72 n.4

(1991)).    The Government has not carried its burden in this

case.

        On the one hand, the Government presented a strong case

against Appellant and independently established much of the

information contained in the report.    Among other things,

multiple witnesses testified to the events that took place,

including the dramatic car chase, and the Government entered

photographs of the seized marijuana into evidence.

        On the other hand, the report effectively relieved the

Government of its burden to present direct testimony regarding

where the marijuana was recovered, how it was traced to

Appellant, and other necessary elements to prove that Appellant

possessed marijuana with the intent to distribute.    Rather than

forcing the members to hear and weigh testimony from the

officers listed in the report and draw their own conclusions

about the truth of their stories, the report allowed the members

to rely on seemingly objective facts contained in the document.

Further, the report offered members a straightforward, written

accounting of the evidence, which, for some members, might well




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United States v. Clayton, No. 08-0417/AR

have carried more weight than their recollections of witness

testimony.

     Additionally, the report contained a detailed catalogue of

drugs other than marijuana in amounts clearly not intended for

personal consumption.5   The military judge correctly instructed

the members that they could rely on circumstantial evidence,

such as the packaging and amount of drugs, to conclude that

Appellant possessed the marijuana with intent to distribute.

However, with those instructions in mind and looking at the list

of drugs and amounts in the report, a reasonable member would

have been hard pressed not to conclude that Appellant possessed

the marijuana with the intent to distribute.

     In light of these factors, we are unable to conclude beyond

a reasonable doubt that the error did not contribute to the

verdict of guilty of possession of marijuana with the intent to

distribute.   Consequently, the error was not harmless beyond a

reasonable doubt.

                             DECISION

     The decision of the United States Army Court of Criminal

Appeals is set aside with respect to Charge IV and the

specification thereunder and with respect to the sentence.    The

remaining findings are affirmed.     The record of trial is

5
  Among other things, the report indicated that the drugs seized
included 62 grams of marijuana, 79.5 pills of ecstasy of six
different varieties, and 75.6 grams of psilocybin mushrooms.

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United States v. Clayton, No. 08-0417/AR


returned to the Judge Advocate General of the Army for remand to

that court for reassessment of the sentence or, in the

alternative, that court may remand for a rehearing on the

affected charge and specification.




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United States v. Clayton, No. 08-0417/AR


     STUCKY, Judge (concurring in part and in the result):

     I concur with the majority that the German polizei (police)

report:   (1) is not a business or public record under Military

Rule of Evidence (M.R.E.) 803(6) or M.R.E. 803(8); (2) is

testimonial; (3) should not have been admitted into evidence at

Appellant’s court-martial; and (4) that the error was not

harmless beyond a reasonable doubt.   However, the majority

opinion implies that there are Confrontation Clause issues that

are specific to the English translation and are independent from

the Confrontation Clause issues with the original German police

report.   I disagree.

     The opinion suggests that there is some Confrontation

Clause significance to the facts that the English translation

was prepared months after the incident and after the preparation

of the original report; was prepared at the request of the

prosecution in anticipation of trial; and was not prepared by

the person who prepared the original.   Those facts might be

relevant to the admissibility of the original report, but are

not relevant to that of the translation.   When a party attempts

to introduce both a translation and the document translated into

evidence, if the translation is accurate -- and Appellant made

no objection to the accuracy of the translation in this case --

the admissibility of the translation is wholly dependent upon
United States v. Clayton, No. 08-0417/AR


the admissibility of the underlying document.   Since the

original report was not admissible, neither was the translation.

     The majority opinion also suggests that there is some

significance to the fact that the translation was redacted.   It

appears that the redactions were made to delete evidence of

drugs that the German police were unable to link to Appellant.

Absent an objection from Appellant on the ground of

completeness, M.R.E. 106, this fact has no significance as to

the admissibility of a translation.

     I concur in the result.




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