                        United States, Appellee

                                      v.

                  John M. ARNOLD, Private First Class
                          U.S. Army, Appellant


                                No. 04-0524

                        Crim. App. No. 20010713


       United States Court of Appeals for the Armed Forces

                        Argued February 8, 2005

                         Decided August 3, 2005

BAKER, J., delivered the opinion of the Court, in which GIERKE,
C.J., and CRAWFORD, EFFRON, and ERDMANN, JJ., joined.

                                   Counsel

For Appellant: Captain Rob W. MacDonald (argued); Colonel Mark
Cremin, Lieutenant Colonel Mark Tellitocci, and Major Allyson G.
Lambert (on brief); Captain Charles L. Pritchard Jr.

For Appellee: Captain Isaac C. Spragg (argued); Colonel Steven
T. Salata, Lieutenant Colonel Mark L. Johnson, and Major Natalie
A. Kolb (on brief).



Military Judge:    Patrick J. Parrish



          THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION
United States v. Arnold, No. 04-0524/AR


        Judge BAKER delivered the opinion of the Court.

        Contrary to his plea, Appellant was convicted by a military

judge before a general court-martial of one specification of

wrongful distribution of ecstasy1 in violation of Article 112a,

Uniform Code of Military Justice (UCMJ) 10 U.S.C. § 912a (2000).2

The adjudged and approved sentence provided for a bad-conduct

discharge, confinement for six months, forfeiture of all pay and

allowances, and reduction to the lowest enlisted grade, E-1.

The United States Army Court of Criminal Appeals affirmed in a

short-form per curiam opinion.          United States v. Arnold, No.

ARMY 20010713 (A. Ct. Crim. App. Mar. 22, 2004) (unpublished).

We granted review to determine whether the evidence admitted to

corroborate Appellant’s confession was, in fact, independent of

the confession as required by Military Rule of Evidence (M.R.E.)

304(g).3     We conclude there was no error, plain or otherwise, and

affirm.

                                   BACKGROUND

        Appellant and Private Dominic I. Guisti lived in the same

barracks at Fort Bragg and shared mutual friends.              One evening


1
    This drug is formally known as 3, 4-methylenedioxymethamphetamine or MDMA.
2
  Appellant was acquitted of an accompanying specification alleging a wrongful
distribution of lysergic acid diethylamide or LSD.
3
    The granted issue reads as follows:
        WHETHER THE MILITARY JUDGE PLAINLY ERRED BY ADMITTING APPELLANT’S
        CONFESSION BASED ON TESTIMONY DERIVED EXCLUSIVELY FROM THE
        CONFESSION ITSELF, WHICH FAILED TO SATISFY THE INDEPENDENCE
        REQUIREMENT OF THE CORROBORATION RULE.


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United States v. Arnold, No. 04-0524/AR


in September of 2000, Appellant, Guisti and three other soldiers

went to a rave club called Studio 315.    Guisti, who had

purchased drugs at the club on previous occasions, wanted to

obtain some ecstasy pills.   Upon arriving at the club, Guisti

was able to obtain the ecstasy pills and gave each of the other

four soldiers one pill.   Later, according to Guisti’s testimony

at Appellant’s trial, while the soldiers were still at the club,

Appellant asked Guisti, “Hey, you wanna [sic] get some more?”

Guisti collected the money from the others and gave it to

Appellant who left to procure more of the drug.   Appellant

returned and distributed ecstasy pills to Guisti and the others

in the group.

       During an investigation by the Criminal Investigation

Command in November 2000, Guisti was interrogated and made a

statement implicating himself and other soldiers, including

Appellant, in a variety of drug offenses.   In this statement,

although Guisti admitted to distributing ecstasy to Appellant at

Studio 315, he did not indicate that Appellant had distributed

ecstasy to him.   On January 19, 2001, Appellant was interrogated

and admitted to purchasing and distributing ecstasy at Studio

315.   He also admitted to distributing LSD on other occasions.

Appellant memorialized his admissions in a written statement in

which he recounted the events described above.




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United States v. Arnold, No. 04-0524/AR


     On March 1, 2001, Appellant’s investigation pursuant to

Article 32, UCMJ, 10 U.S.C. § 832 (2000), was convened on

charges of conspiracy to distribute LSD and distribution of LSD.

On March 20, 2001, the investigating officer concluded that no

reasonable grounds existed to support either charge.   However,

he concluded that reasonable grounds existed to charge Appellant

with conspiracy to distribute ecstasy and distribution of

ecstasy.

     Also in March, Guisti negotiated a plea agreement and was

subsequently tried on March 27, 2001.   The agreement required

him to cooperate in the trials of other soldiers implicated in

the investigation.   The day before his trial, Guisti executed a

second sworn statement focused exclusively on his use and

distribution of LSD.   In this statement, he admitted to

distributing LSD to Appellant, but indicated that he had no

knowledge of Appellant’s distribution of LSD.   In late May, the

Government withdrew the charge against Appellant for conspiracy

to distribute LSD, proceeded with the charge of distribution of

LSD and preferred an additional charge of distribution of

ecstasy.

     Appellant was arraigned on June 6, 2001, and at an Article

39(a) session on July 5, 2001, the military judge granted a

defense motion to reopen the Article 32 investigation to

properly reinvestigate the additional charge of ecstasy


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United States v. Arnold, No. 04-0524/AR


distribution.   The investigation was reopened on July 13, 2001,

and the investigating officer reported on July 17, 2001, that

reasonable grounds existed to support the additional charge.

     Trial on the merits in Appellant’s court-martial began on

August 3, 2001.   Appellant’s confession was admitted after the

military judge denied Appellant’s motion to suppress his

confession on the ground that it was involuntary.   Guisti was

called as a witness for the prosecution and testified that

Appellant purchased and distributed ecstasy at Studio 315 the

previous September.   On cross-examination, he admitted that it

was the first time he had made such a statement in court.

During cross-examination, the following colloquy occurred

between Guisti and defense counsel:

     Q.   Isn’t it true, Private Guisti, that you saw PFC
          [Private First Class] Arnold’s statements from
          the prosecutor yesterday?

     A.   Yes, that is true.

     Q.   The prosecutor showed you that when he was
          interviewing you for this case, isn’t that true?

     A.   Yes, ma’am.

     Q.   So you knew what you were looking at before you
          came in here?

     A.   Yes, I did, ma’am.

     On appeal, Appellant argues that this line of questioning

indicates that Guisti’s testimony was derived from his viewing

of Appellant’s statement the previous day, and not from his


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United States v. Arnold, No. 04-0524/AR


independent knowledge and recollection of Appellant’s conduct.

However, the record contains other additional material relevant

to the assigned issue.   After Appellant’s colloquy with defense

counsel, the military judge questioned Guisti regarding the

events at Studio 315:

     Q.   When was the first time that you remembered that
          the accused gave you this pill of ecstasy? The
          second time that you just described, that the
          accused went and got these pills -- when was the
          first time you happened to remember that that
          actually happened?

     A.   It was after the statements I made, sir.

     Q.   So it was sometime after 26 March, that’s when
          you first remember that happening?

     A.   Yes, sir. It never came up in any of the
          previous questioning -– the previous statements
          that I gave.

     . . . .

     Q.   So is today, in court, the first time you told
           that to anybody?

     A.   As far as on the record, sir.

     Q.   But prior to today, have you told anybody that
          the accused gave you this pill?

     A.   As far as being on the record?

     Q.   Well, not under oath --

     A.   I told the defense attorney when she was
          questioning me before the Article 32.

     Immediately following this exchange, defense counsel

examined Guisti as follows:



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United States v. Arnold, No. 04-0524/AR


     Q.   That conversation that you had, where you
          disclosed you’d had this memory regarding PFC
          Arnold and distribution of ecstasy, that occurred
          about two weeks ago, correct?

     A.   No, that’s the first time I told you about it.

     Q.   About two weeks ago?

     A.   Yes.

Later during the trial, defense counsel argued that Guisti’s

testimony was inadequate corroboration for Appellant’s

admissions to ecstasy distribution at Studio 315 because

Guisti’s testimony was inconsistent and untruthful.   However,

defense counsel did not contend that Guisti’s corroborating

testimony was not independent evidence.    Appellant now contends

that Guisti’s testimony was derived exclusively from reading

Appellant’s confession prior to Appellant’s trial and therefore,

“cannot serve as substantial independent evidence to corroborate

that very same confession.”

                              DISCUSSION

     M.R.E. 304(g) provides:

     An admission or a confession of the accused may be
     considered as evidence against the accused on the
     question of guilt or innocence only if independent
     evidence . . . has been introduced that corroborates
     the essential facts admitted to justify sufficiently
     an inference of their truth.

Emphasis added.   Independent evidence is evidence that is not

based on or derived from the accused’s extrajudicial statements.

Opper v. United States, 348 U.S. 84, 93 (1954).    The principle


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United States v. Arnold, No. 04-0524/AR


of corroboration embedded in M.R.E. 304(g), like the principle

underpinning its civilian counterparts, is intended to guard

against the false or coerced confession.   However, corroborating

evidence need not confirm each element of an offense, but rather

must “corroborate[] the essential facts admitted to justify

sufficiently an inference of their truth.”   M.R.E. 304(g).   This

inference may be drawn from a quantum of corroborating evidence

that this Court has described as “very slight.”   United States

v. Melvin, 26 M.J. 145, 146 (C.M.A. 1988).

     Appellant correctly frames the legal issue presented.     If

Guisti’s testimony was solely derived from his review of

Appellant’s sworn statement, his testimony could not

independently serve to corroborate Appellant’s statement.

However, the record does not support Appellant’s factual

conclusion.

     The record reflects that Guisti was shown and read

Appellant’s statement the day before the trial.   The military

judge questioned Guisti to discern whether his description of

the events at Studio 315 was derived from Appellant’s statement

or was derived, in part or in whole, from his own independent

recollection.   When asked by the military judge when he

remembered that Appellant had given him an ecstasy pill, Guisti

said, “I told the defense attorney when she was questioning me

before the Article 32.”   The reopening of Appellant’s Article 32


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United States v. Arnold, No. 04-0524/AR


investigation relevant to the ecstasy distribution offense

occurred on July 16.    Defense counsel, during the Article 32

investigation, responded with the following question to Guisti:

“[T]hat occurred about two weeks ago, correct?”   Guisti

answered, “Yes.”

     If, as the record reflects, Guisti implicated Appellant

prior to the reopening of Appellant’s Article 32 investigation

on July 16, his subsequent testimony must, at least in part, be

derived independently of Appellant’s statement, which he read

the day before trial.   Further, Guisti’s response to the

military judge indicates that he implicated Appellant regarding

the essential fact contained in Appellant’s confession –-

distribution of ecstasy at Studio 315.    As a result, Guisti’s

testimony provides independent and sufficient corroboration of

Appellant’s confession and the military judge did not err in

admitting the confession.

                              DECISION

     The decision of the United States Army Court of Criminal

Appeals is affirmed.




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