                                  IN THE CASE OF


                           UNITED STATES, Appellee

                                           V.

                   Shawn P. HOLT, Airman First Class
                       U.S. Air Force, Appellant


                                    No. 02-0632


                             Crim. App. No. 34145



       United States Court of Appeals for the Armed Forces

                           Argued February 5, 2003

                             Decided May 22, 2003

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

                                       Counsel
For Appellant: Captain James M. Winner (argued); Colonel Beverly
   B. Knott, Major Jefferson B. Brown, and Major Terry L.
   McElyea (on brief); Major Marc A. Jones and Major Jeffrey A.
   Vires.

For Appellee: Major Jennifer R. Rider (argued); Colonel LeEllen
   Coacher and Lieutenant Colonel Lance B. Sigmon (on brief).

Military Judge:      Kurt D. Schuman




        THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Holt, No. 02-0632/AF


      Judge ERDMANN delivered the opinion of the Court.

      Appellant, Airman First Class Shawn P. Holt, was tried by

general court-martial at Minot Air Force Base, North Dakota.

Pursuant to his pleas, he was convicted of 58 specifications of

dishonorable failure to maintain sufficient funds for the payment

of checks in violation of Article 134, Uniform Code of Military

Justice [hereinafter UCMJ], 10 U.S.C. § 934 (2000).     A court of

officer members sentenced Appellant to a bad-conduct discharge,

confinement for one year, total forfeitures, and reduction to E-

1.   On June 25, 2000, the convening authority approved the

sentence as adjudged.      On April 15, 2002, the Air Force Court of

Criminal Appeals affirmed the findings and sentence in an

unpublished opinion.      United States v. Holt, ACM 34145 (A.F. Ct.
Crim. App. April 15, 2002).

      We granted Appellant’s petition for grant of review on the

following issues:

                                        I.

            WHETHER A PROPONENT OF HEARSAY EVIDENCE MAY
            ADMIT THAT EVIDENCE UNDER THE RESIDUAL
            HEARSAY EXCEPTION WITHOUT GIVING THE ADVERSE
            PARTY NOTICE OF THE INTENT TO USE THAT
            PARTICULAR EXCEPTION.

                                        II.

            WHETHER M.R.E. 803(3) PERMITS THE USE OF OUT-
            OF-COURT STATEMENTS MADE BY ONE PERSON FOR
            THE PURPOSE OF DISCLOSING THE STATE OF MIND
            OF A DIFFERENT PERSON.

Additionally, we specified the following issue to be addressed by

the parties:

            WHETHER THE AIR FORCE COURT OF CRIMINAL
            APPEALS ERRED AND DEPRIVED APPELLANT OF A
            REVIEW PROPERLY LIMITED TO THE RECORD OF
            TRIAL PURSUANT TO ARTICLE 66(c), UCMJ, WHEN


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United States v. Holt, No. 02-0632/AF


            THAT COURT CONSIDERED PROSECUTION EXHIBITS
            16, 17, 18, 19, 21, 24, 26, 29, 30, 31, 32,
            AND 34, FOR THE TRUTH OF THE MATTER STATED
            THEREIN DESPITE A CONTRARY RULING BY THE
            MILITARY JUDGE AND DESPITE THE FACT THAT THE
            MEMBERS WERE INSTRUCTED THAT THE EXHIBITS
            WERE NOT TO BE CONSIDERED FOR THE TRUTH OF
            THE MATTERS STATED THEREIN.

      For the reasons that follow, we set aside the decision of

the Air Force Court of Criminal Appeals and remand this case to

that court for further review.



                                    FACTS


a.   Treatment of Sentencing Exhibits in the Trial Forum.

      Prosecution Exhibit (PE) 16 is a letter to Appellant from a

cartoonist, Mr. Richardson, concerning a bad check Appellant had

written to him.     When trial counsel offered the exhibit into

evidence during sentencing, defense counsel objected contending

the letter did not fall within the parameters of Rule for Courts-

Martial 1001 [hereinafter R.C.M.] and that the letter was

hearsay.    Initially, the military judge responded that he saw the
letter as proper evidence in aggravation under R.C.M. 1001(b)(4),

that the rules of evidence were relaxed during sentencing, and

that he found the evidence more probative than prejudicial.

Ultimately, the military judge ruled as follows:

                 Next, we have a letter [from] Mister
            Richardson, Prosecution Exhibit 16 for
            Identification. And again, this is a letter
            – the objection here was based on hearsay,
            and trial counsel proffered that it wasn’t
            offered to prove the truth of the matter
            asserted, but rather to show the impact upon
            Mister Richardson, as well as, to show the
            members the full picture surrounding these
            particular offenses.


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United States v. Holt, No. 02-0632/AF


                 Now, I’ll note that this was, in fact,
            one of the checks that – to which the accused
            pled guilty, and again, and having – I’ll
            state again just for clarity – that I did
            conduct the analysis and the test under 403.
            However, the objection to Prosecution Exhibit
            16 for Identification on those basis [sic] is
            overruled, and I will admit Prosecution
            Exhibit 16 for Identification as Prosecution
            Exhibit 16.

      Prosecution Exhibits 17 through 34 consist of copies of

cancelled checks with markings on the back of them, various debt

collection documents, bad check notification documents, and a

pawn ticket.    Defense counsel objected to admission of these

exhibits on a number of grounds, including that the documents

were not proper aggravation, that they were hearsay, and that

they were not related to the charges.       Trial counsel asserted

that the documents reflected Appellant’s state of mind and were

relevant to rehabilitation potential.

      Concerning these 18 exhibits, the military judge ruled as

follows:

            Now, looking at Prosecution Exhibit 17
            through 34, inclusive, which include a number
            of checks, copies of checks, notices of
            deficiencies, and nonpayment, demands for
            payment – again, I disagree with the defense
            counsel. I don’t feel that these are offered
            to prove the truth of the matter asserted in
            these documents, but rather they’re offered
            to provide the full picture – all of the
            facts and circumstances of this case. And,
            with regard to those checks that were not
            specifically charged and pled to in this
            case, they are still part and parcel and
            certainly show a course of doing business on
            the part of the accused, and, therefore,
            those defense objections to these exhibits
            are overruled and I will admit Prosecution
            Exhibits 17 through 34 for Identification as
            Prosecution Exhibits 17 through 34.




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United States v. Holt, No. 02-0632/AF


      Subsequent to the military judge’s rulings on PEs 16 through

34, defense counsel noted that the defense did not request that

the rules of evidence be relaxed.           The military judge provided

further clarification for his ruling:

            I just want to clarify, based on comments
            from counsel, comments with regard to
            relaxing the rules of evidence during
            sentencing. There is no requirement, number
            one, that anybody ask to have the rules
            relaxed. That’s a matter for the judge’s
            discretion. With that said, I want to
            clarify my rulings with regard to the
            prosecution exhibits. I did not relax the
            rules of evidence, rather I found that those
            exhibits were not hearsay and were offered
            for other purposes, and based on that I
            overruled the objections. Again, after the
            balancing test of 403.

      When PEs 16 through 34 were published to the members, the

military judge gave the following limiting instruction:

            And, you will also have before you documents,
            Prosecution Exhibits 16 through 34. These
            documents have been admitted for the purpose
            of showing you the complete set of
            circumstances surrounding the commission of
            the offenses, the state-of-mind of the
            accused at the time he commit [sic] the
            offenses, and the impact of the offenses on
            the victim. You may not consider the
            documents as proof of the matters asserted
            therein.

(Emphasis added.)

      During his formal sentencing instructions, the military

judge informed the members that they could consider PEs 16

through 34 as “matters in aggravation of the offense” but he did

not repeat the limitation that the exhibits were not to be

considered “as proof of the matters asserted therein.”




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United States v. Holt, No. 02-0632/AF


b.   Treatment of Sentencing Exhibits during Review Pursuant to

Article 66(c).

      Before the Air Force Court of Criminal Appeals, Appellant

claimed that the military judge abused his discretion by

admitting PEs 16 through 34.        In general, Appellant claimed that

because the rules of evidence had not been relaxed the exhibits

were not in an admissible form, that trial counsel had not laid a

proper foundation to authenticate the exhibits, and that the

exhibits were inadmissible hearsay.

      Concerning PE 16, the Court of Criminal Appeals found the

letter from Mr. Richardson was properly authenticated.       The court

below went on to address the hearsay allegation as follows:

            [W]e must now deal with the hearsay contained
            in the letter. While ordinarily the
            information contained in the letter would be
            proper evidence of victim impact, Mr.
            Richardson never testified in court about the
            impact the offense had on him. Further, the
            information was not obtained by a deposition
            conducted in accordance with R.C.M. 702.
            However, we find that the information
            qualifies under the residual hearsay
            exception to the hearsay rule. Mil.R.Evid.
            807. The evidence that authenticated the
            letter also provided sufficient
            circumstantial guarantees of trustworthiness
            for the information contained in the letter.
            Further, the information was evidence of a
            material fact as it pertained to the impact
            of the offense on the victim. Additionally,
            the letter was more probative on the issue of
            victim impact than any other evidence offered
            by the government. Finally, the interests of
            justice were served by providing the members
            with the evidence of the offense’s impact on
            the victim so that they might adjudge an
            appropriate sentence for the appellant.

Holt, slip op. at 4.
      The Court of Criminal Appeals gave separate consideration to

PE 17.   Prosecution Exhibit 17 consists of photocopies of various


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United States v. Holt, No. 02-0632/AF


checks written by Appellant.        The photocopies included numerous

bank stamps reflecting that the account upon which a given check

had been written was closed, that a check was not paid, or that a

check was not to be re-deposited.           In upholding the admissibility

of PE 17, the Air Force Court of Criminal Appeals wrote:

            [W]e find that this information is admissible
            under Mil. R. Evid. 803(3), as evidence of
            the appellant’s state of mind at the time of
            the offenses. One of the elements of the
            offense to which the appellant pled guilty
            was that his conduct in failing to maintain
            sufficient funds in his checking/credit union
            accounts was dishonorable. Manual for
            Courts-Martial, United States (MCM), Part IV,
            ¶ 68(b)(4) (2000 ed.). Additionally, the
            appellant’s conduct must reflect bad faith or
            gross indifference to his financial
            responsibilities. MCM, Part IV, ¶ 68(c). In
            this regard, the appellant specifically
            stated during the plea inquiry that he had a
            “grossly indifferent” attitude toward his
            checking accounts. Further. Pros. Ex. 17
            demonstrates that the appellant knowingly
            wrote a large number of checks, over a
            prolonged period of time, for varying amounts
            of money, with a gross indifference to his
            financial situation. Accordingly, the
            exhibit provided the members with evidence of
            the appellant’s state of mind at the time he
            wrote the checks. The exhibit conveyed to
            the members the sense that the appellant had
            a grossly indifferent attitude toward the
            state of his checking accounts and his just
            obligations. Therefore, the military judge
            did not abuse his discretion when he admitted
            the exhibit into evidence.

Id. at 5.

      Thereafter, the Court of Criminal Appeals addressed the

hearsay within PEs 18, 19, 21, 24, 26, 29, 30-32, and 34

collectively.     The court held that the exhibits were “admissible

as evidence of the appellant’s state of mind” under Military Rule

of Evidence 803(3) [hereinafter M.R.E.].          Holt, slip op. at 6.

The Air Force Court of Criminal Appeals concluded that


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United States v. Holt, No. 02-0632/AF


Appellant’s sentence was “correct in law and fact” and that the

sentence should be affirmed.        Id. at 13.


                                 DISCUSSION



a.   Application of Exceptions to the Hearsay Rule at the Court of

Criminal Appeals.

      Admissibility of evidence is reviewed for an abuse of

discretion, and that discretion is abused when evidence is

admitted based upon an erroneous view of the law.          See United
States v. Allen, 53 M.J. 402, 405-06 (C.A.A.F. 2000); United

States v. Henry, 53 M.J. 108, 110 (C.A.A.F. 2000); United States

v. Owens, 51 M.J. 204, 209 (C.A.A.F. 1999).          We find that the

Court of Criminal Appeals erred when it applied M.R.E.’s 807 and

803(3) to sustain the admissibility of PEs 16-19, 21, 24, 26, 29,

30-32, and 34.

      The court below found that PE 16 was admissible under the

residual hearsay rule, M.R.E. 807.          That rule provides:

                 A statement not specifically covered by
            Rule 803 or 804 but having equivalent
            circumstantial guarantees of trustworthiness,
            is not excluded by the hearsay rule, if the
            court determines that (A) the statement is
            offered as evidence of a material fact; (B)
            the statement is more probative on the point
            for which it is offered than other evidence
            which the proponent can procure through
            reasonable efforts; and (C) the general
            purposes of these rules and the interests of
            justice will best be served by admission of
            the statement into evidence. However, a
            statement may not be admitted under this
            exception unless the proponent of it makes
            known to the adverse party sufficiently in
            advance of the trial or hearing to provide
            the adverse party with a fair opportunity to
            prepare to meet it, the proponent's intention


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United States v. Holt, No. 02-0632/AF


            to offer the statement and the particulars of
            it, including the name and address of the
            declarant.

Our concern with respect to PE 16 and the lower court’s ruling

that the exhibit was admissible under the residual hearsay rule

focuses on two elements of that rule:            (1) whether the statement

is “more probative on the point for which it is offered than

other evidence which the proponent can procure through reasonable

efforts,” and (2) whether Appellant received the required notice.

      In addressing the requirements of M.R.E. 807, the court

below said, in part, “[A]dditionally, the letter was more

probative on the issue of victim impact than any other evidence

offered by the government.”       Holt, slip op. at 4 (emphasis
added).   The court did not discuss whether the exhibit was more

probative of victim impact than any other evidence the Government

could have “procure[d] through reasonable efforts.”            We find

nothing to indicate whether, for example, Mr. Richardson might

have been willing to personally testify about the impact of

Appellant’s misconduct upon him.            The nature of PE 16 itself

suggests that Mr. Richardson might have been amenable to
testifying personally about the impact of Appellant’s misconduct.

We find that the court below misapplied this foundational

requirement of M.R.E. 807, looking at the evidence that was

produced rather than at evidence that could have been produced of

victim impact.

      In addition, the court below is silent with regard to the

notice requirement of the residual hearsay rule.            Military Rule

of Evidence 807 requires notice “sufficiently in advance of the

trial or hearing to provide the adverse party with a fair


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United States v. Holt, No. 02-0632/AF


opportunity to prepare to meet it.”          This notice requirement has

critical significance in light of the foundational requirements

supporting residual hearsay.        See United States v. Haner, 49 M.J.
72, 77 (C.A.A.F. 1998)(citing United States v. Kelley, 45 M.J.

275, 280 (C.A.A.F. 1996)(the foundational requirements for

residual hearsay under the precursor to M.R.E. 807:         (1)

materiality; (2) necessity; and (3) reliability)).         We find

nothing in this record to indicate that Appellant was provided

notice pursuant to M.R.E. 807 either before trial or appellate

proceedings that would afford him an adequate opportunity to

prepare to challenge the admissibility of this document as

residual hearsay.

      The military judge “found that those exhibits were not

hearsay and were offered for other purposes.”         Despite this

limited trial ruling, the Air Force court admitted PE 16 for the

truth of the matter asserted as residual hearsay.         In so doing,

the Air Force court misstated and/or ignored foundational

requirements of M.R.E. 807.       Thus, the Air Force court abused its

discretion.

      The Air Force court found the remaining exhibits in issue,

PEs 17-19, 21, 24, 26, 29, 30-32, and 34, admissible under M.R.E.

803(3) pertaining to statements of a declarant’s then existing

state of mind.     In its final brief, the Government conceded that

M.R.E. 803(3) did not properly apply to these exhibits.           In this

case, the Government’s concession is well-founded, and we accept

it.   “A relevant state of mind may be proven by the person’s own,

out-of-court, uncross-examined, concurrent statements as to its

existence.”    Raborn v. Hayton, 208 P.2d 133, 136 (1949)(citing


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United States v. Holt, No. 02-0632/AF


Mutual Life Insurance Company of New York v. Hillmon, 145 U.S.

285 (1892)).

      Here, the documents and the markings on the backs of the bad

checks were created by third parties, not by Appellant.         Because

documents and markings by third parties cannot be used to reflect

Appellant’s state of mind, the Air Force court erred by ruling

that these exhibits were admissible for the truth of the matters

stated under M.R.E. 803(3).

      We therefore answer Granted Issues I and II in the negative.

Under normal circumstances we would next determine whether these

errors materially prejudiced a substantial right, Article 59(a),

UCMJ, 10 U.S.C. § 859(a) (2000), and in light of Appellant’s

provident pleas of guilty and the wealth of evidence in this

record revealing the extent of Appellant’s bad check scheme, we

would view these errors as harmless.         However, because these

errors were committed within the unique context of appellate

review pursuant to Article 66(c) we proceed to the Specified

Issue to determine whether these errors impacted Appellant’s

appellate rights.



b.   Article 66(c) review.
      Article 66(c) provides:

            In a case referred to it, the Court of
            Criminal Appeals may act only with respect to
            the findings and sentence as approved by the
            convening authority. It may affirm only such
            findings of guilty and the sentence or such
            part or amount of the sentence, as it finds
            correct in law and fact and determines, on
            the basis of the entire record, should be
            approved. In considering the record, it may
            weigh the evidence, judge the credibility of
            witnesses, and determine controverted


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United States v. Holt, No. 02-0632/AF


            questions of fact, recognizing that the trial
            court saw and head the witnesses.

This Court has held that Article 66(c) limits the Courts of

Criminal Appeals “to a review of the facts, testimony, and

evidence presented at the trial, and precludes a Court of

Criminal Appeals from considering ‘extra-record’ matters when

making determinations of guilt, innocence, and sentence

appropriateness.”     United States v. Mason, 45 M.J. 483, 484
(C.A.A.F. 1997).     See also United States v. Reed, 54 M.J. 37, 43

(C.A.A.F. 2000); United States v. Dykes, 38 M.J. 270, 272 (C.M.A.

1993); United States v. Bethea, 22 U.S.C.M.A. 223, 224-25,        46

C.M.R. 223, 224-25 (1973).       Similarly, the Courts of Criminal

Appeals are precluded from considering evidence excluded at trial

in performing their appellate review function under Article

66(c).   United States v. Starr, 1 M.J. 186, 189-90 (C.M.A. 1975);

United States v. Pierce, 2 M.J. 654, 655-56 (A.F.C.M.R. 1976).

      The military judge defined the nature and quality of the

evidence in this record of trial by his rulings and instructions.

He held that PEs 16-19, 21, 24, 26, 29, 30-32, and 34 were “not
hearsay and were offered for other purposes.”       He then

specifically instructed the members, “You may not consider the

documents as proof of the matters asserted therein.”       This

record, defined as it must be by the rulings and instructions of

the military judge, contained the questioned exhibits which were

admitted not for the truth of the matters asserted.

      Rather than limiting itself to reviewing the propriety of

the military judge’s trial determinations, the Court of Criminal

Appeals changed the evidentiary nature of these exhibits by



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United States v. Holt, No. 02-0632/AF


holding that the exhibits were admissible under specified

exceptions to the hearsay rule.          The exhibits were elevated to

exhibits admitted for the “truth of the matter asserted.”           M.R.E.

801(c).   The effect of this action was to enhance the aggravating

nature of this sentencing evidence and to modify the qualitative

evidentiary content of the record of trial.          The “truth of the

matter asserted,” which had been excluded at trial, became part

of the record evidence.       This was error; the Court of Criminal

Appeals may not resurrect excluded evidence during appellate

review under Article 66(c).

      The Government has urged that even if the lower court erred

in this context, the error is not prejudicial.          They point to the

fact that the stipulation of fact and the various documents

otherwise properly before the court provide essentially the same

information as the exhibits in question.          Appellant responds that

it is fundamentally unfair to affirm his sentence on appeal by

considering evidence in a manner specifically prohibited by the

military judge on the record of trial.

      In reviewing guilt, evidence excluded in a trial forum

cannot be considered on appeal to affirm guilt.          The same

limitation applies to the Court of Criminal Appeals when that

court acts pursuant to the statutory mandate to “affirm only . .

. the sentence or such part or amount of the sentence, as it

finds correct in law and fact . . . .”          The legal review of the

sentence is limited to “the facts, testimony, and evidence

presented at trial.”      Mason, 45 M.J. at 484.      The Air Force Court
of Criminal Appeals erred when it altered the evidentiary quality

of PEs 16-19, 21, 24, 26, 29, 30-32, and 34, then proceeded to


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United States v. Holt, No. 02-0632/AF


review the Appellant’s sentence.             As Appellant did not receive a

proper legal review under Article 66(c) the remedy is a remand to

the Court of Criminal Appeals for a proper review.            Cf. United
States v. McAllister, 55 M.J. 270, 277 (C.A.A.F. 2001).



                                  Decision

      The decision of the Air Force Court of Criminal Appeals is

set aside.    The case is returned to the Judge Advocate General of

the Air Force for remand to that court for further review

consistent with this opinion.




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United States v. Holt, No. 02-0632/AF


     CRAWFORD, Chief Judge (dissenting):

     This case does not need to be remanded to the Court of

Criminal Appeals, which admittedly for very wrong reasons,

nonetheless rightly affirmed Appellant’s sentence.    Whether

the court below impermissibly considered the disputed

Prosecution Exhibits (PEs) for their truth is academic

because the truth of those matters was never contested.      As

a result, neither benefit nor harm could come at trial or

on appeal from the PEs being considered for their truth.

                         Background

     At trial, Appellant pleaded guilty to numerous

specifications of failing to maintain sufficient funds to

pay checks he had written.    The specifications set forth

the dates and amounts of the checks, the check numbers, the

names of the payees, and the names of the banks on which

the checks were drawn.    Before the military judge accepted

Appellant’s guilty pleas, he conducted a detailed, factual

inquiry of Appellant, during which Appellant admitted that

everything in the specifications was true.    See Rule for

Courts-Martial 910(e)[hereinafter R.C.M.]; United States v.

Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969).

     In support of his guilty pleas, Appellant also entered

into a written stipulation of fact.    See R.C.M. 705(c)(2),
United States v. Holt, No. 02-0632/AF


811.    The stipulation was signed by Appellant, his defense

counsel, and the prosecutor, and it set forth the dates and

amounts of the bad checks, and the names of the payees and

banks on which the checks were drawn.    It also stated that

the checks “were returned for collection as unpaid”; the

checking accounts were “involuntarily closed”; and

Appellant “received notice” of the account closings.

Significantly, the stipulation, which itself was admitted

into evidence, contained the following language:

       It is hereby stipulated and agreed by and between the
       prosecution and the defense with the express consent
       of the Accused that the [facts set forth herein] are
       true and admissible in evidence for all purposes to
       include findings and sentencing[.]

(Emphasis added.)

       Based on Appellant’s admissions during the plea

inquiry, and in the stipulation of fact, the military judge

accepted Appellant’s guilty pleas.    He then moved on to the

sentencing phase of the court-martial, which included

admitting the twelve disputed PEs into evidence over the

defense’s hearsay objection.    In support of his ruling, the

military judge concluded the PEs were not hearsay because

they were not offered for the truth of the matters asserted

therein.    Rather, they were offered to show victim impact




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United States v. Holt, No. 02-0632/AF


and “to provide the full picture – all of the facts and

circumstances of this case.”

     The twelve PEs – all of which were taken from

Appellant’s possession – consisted of a handwritten letter

from one payee complaining about the bad check Appellant

wrote; photocopies of numerous bad checks Appellant wrote

that were stamped “Account Closed Not Paid”; and letters

from various payees and collection agencies notifying

Appellant his checks had bounced and requesting payment.

These PEs were given to the members of Appellant’s court-

martial for use in determining an appropriate sentence.

However, the members were instructed that they could “not

consider the documents as proof of the matters asserted

therein,” because the PEs were admitted only to show “the

complete set of circumstances surrounding the commission of

the offenses, the state-of-mind of the accused at the time

he commit[ted] the offenses, and the impact of the offenses

on the victim.”

     Of course, the members did not need to consider the

PEs for the truth of the matters asserted therein because

the truth of those matters was already spelled out in the

stipulation of fact, which they also received and used in

arriving at a sentence.   Thus, although the instruction was




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United States v. Holt, No. 02-0632/AF


technically correct because the PEs were properly admitted

as non-hearsay (see infra), it must have left the members

scratching their heads as they tried to reconcile the

instruction with the stipulation’s pronouncement that all

the identical facts it contained were true for purposes of

sentencing.

     In any event, Appellant was sentenced, his court-

martial was adjourned, and he appealed to the Court of

Criminal Appeals, where he again argued the PEs were

inadmissible hearsay.   That court agreed the PEs were

hearsay, but found them nonetheless admissible as

exceptions to the hearsay rule under Military Rules of

Evidence 803(3) and 807 [hereinafter M.R.E.].   From these

rulings, Appellant appealed to this Court, where he argues

the court below correctly held the exhibits were hearsay,

but incorrectly held they were admissible exceptions to the

hearsay rule.   He further argues that in so holding, that

court improperly considered the PEs for the truth of the

matters asserted therein, to his prejudice.

     Appellant’s argument is all smoke and no fire, and

should not result in a remand.




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United States v. Holt, No. 02-0632/AF




                         Discussion

     Hearsay is an out-of-court statement “offered in

evidence to prove the truth of the matter asserted.”

M.R.E. 801(c)(emphasis added).    When such a statement is

offered for that purpose, M.R.E. 802 generally renders it

inadmissible because

     [w]hen an out-of-court statement is offered for its
     truth, it is only probative if the person who made the
     statement – the declarant – was telling the truth.
     But the truthfulness of an out-of-court declarant
     cannot be assessed by the ordinary methods with which
     we determine the truth of testimonial evidence – oath,
     cross-examination, and the factfinder’s scrutiny of
     the witness’[s] demeanor. Therefore, hearsay is
     presumptively unreliable.

4 Stephen A. Saltzburg et al., Federal Rules of Evidence

Manual § 801.02[1][a](8th ed. 2002)(emphasis added).

     However, when an out-of-court statement is not

offered for its truth, it is not hearsay and generally

is admissible.   United States v. Johnson, 297 F.3d 845,

863 (9th Cir. 2002); United States v. Murphy, 193 F.3d 1,

5 (1st Cir. 1999); United States v. McKneely, 69 F.3d 1067,

1074 (10th Cir. 1995).   Moreover, an out-of-court statement

is not hearsay if it “is offered against a party and is

. . . a statement of which the party has manifested the

party’s adoption or belief in its truth[.]”    M.R.E.




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United States v. Holt, No. 02-0632/AF


801(d)(2)(B).   The reason for these rules is obvious: in

both scenarios, the danger hearsay creates (“proof” of

guilt with unreliable evidence) does not exist.

     Both of these rules applied at Appellant’s court-

martial, making the PEs non-hearsay.    With Appellant’s

admissions during the plea inquiry, and in the stipulation

of fact, he clearly manifested his belief in the truth of

the matters contained in the PEs.   Furthermore, because the

uncontested truth of those matters was already proven and

before the members in a stipulation of fact, the PEs were

not needed for that purpose.   See United States v.

Hatchett, 918 F.2d 631, 638 n.8 (6th Cir. 1990).    Their

purpose, then, had to be something else, which the military

judge correctly identified as conveying victim impact and

“circumstances directly relating to or resulting from”

Appellant’s offenses.   R.C.M. 1001(b)(4); United States v.

Vickers, 13 M.J. 403 (C.M.A. 1982); see also United States

v. Gonzales, 307 F.3d 906, 910 (9th Cir. 2002)(sheets used

to keep track of drug sales were non-hearsay since “not

offered for the specific information conveyed by the




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United States v. Holt, No. 02-0632/AF


writings . . . but . . . for their significance as objects

closely associated with the drug trade”).*

      Thus, the military judge properly admitted the PEs as

non-hearsay, and the Court of Criminal Appeals erred in

holding otherwise.      That court based its holding on United

States v. Brandell, 35 M.J. 369 (C.M.A. 1992), but reliance

on Brandell was sorely misplaced.          In Brandell, this Court

did hold that photocopies of bad checks and bank statements

were hearsay.     Id. at 371-72.       However, the reason they

were hearsay is because Brandell was a contested case, and

the documents were offered to prove Brandell committed the

bad check offenses with which he was charged.           In other

words, unlike the non-hearsay PEs in Appellant’s case, the

documents in Brandell were offered for their truth, and

were not excluded from the definition of hearsay by M.R.E.

801(d)(2)(B).     As a result, Brandell is not applicable

here.

      After erroneously concluding the PEs were hearsay, the

Court of Criminal Appeals nonetheless found them admissible

as exceptions to the hearsay rule.          Specifically, the court

held the handwritten letter was admissible as residual

*
  Because Appellant pleaded guilty and testified the matters in the PEs
were true, and because they were seized from his possession, they were
properly authenticated and admitted pursuant to Military Rule of
Evidence 901.




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United States v. Holt, No. 02-0632/AF


hearsay under M.R.E. 807, and the other PEs were admissible

under M.R.E. 803(3) as evidence of Appellant’s state of

mind.   Appellant takes issue with these rulings, arguing

that M.R.E. 807 does not apply because its notice

requirements were not complied with, and that M.R.E. 803(3)

does not apply because the PEs are statements made by

others and, therefore, cannot be used to prove his state of

mind.

     Regardless of the merit of these two positions, they

are irrelevant in Appellant’s case because the PEs were

properly admitted at trial as non-hearsay.   That said, the

only question remaining is whether we should remand this

case to the court below so it can perform a “proper” review

of Appellant’s case by treating the PEs as non-hearsay

instead of hearsay.   The answer to that should certainly be

no, because Appellant suffered no prejudice when the lower

court treated the PEs as hearsay.   See Art. 59(a), Uniform

Code of Military Justice, 10 U.S.C. § 859(a) (2000).

     Appellant argues that because hearsay is offered for

the truth of the matter asserted, and because the lower

court concluded the PEs were hearsay, that court

impermissibly considered them for their truth, instead of

for their limited non-hearsay purpose of strengthening the




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United States v. Holt, No. 02-0632/AF


Government’s sentencing case.       Yet once again, the

uncontested truth of those matters was already before that

court - not only in the stipulation of fact, but also in

the charges and specifications and Appellant’s guilty plea.

Consequently, no matter how that court treated the PEs, the

result to Appellant was the same: a thorough review of all

the facts and circumstances surrounding his offenses, with

no unreliable or inadmissible matter considered, and the

findings and sentence affirmed.

     For these reasons, we should not remand this case.

Instead, we should affirm the lower court’s decision as to

result only.   See Murphy, 193 F.3d at 7 (harmless error

when matter contained in hearsay is also proved by other

evidence).




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