                       UNITED STATES, Appellee

                                    v.

                  Mathew P. SCHEURER, Senior Airman
                      U.S. Air Force, Appellant

                              No. 04-0081

                         Crim. App. No. 34866


       United States Court of Appeals for the Armed Forces

                        Argued October 7, 2004

                     Decided September 29, 2005

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

                                 Counsel

For Appellant: Major Andrew S. Williams (argued); Lieutenant
Colonel Carlos L. McDade (on brief).

For Appellee: Captain C. Taylor Smith (argued); Colonel LeEllen
Coacher, Lieutenant Colonel Robert V. Combs, and Major James K.
Floyd (on brief).

Military Judge:   David F. Brash


       This opinion is subject to revision before final publication.
United States v. Scheurer, No. 04-0081/AF




      Chief Judge GIERKE delivered the opinion of the Court.1

     This case presents four issues.          The principal issue is

whether the Sixth Amendment’s Confrontation Clause barred the

admission of statements Appellant’s wife made in discussions

with a co-worker that incriminated Appellant.         Because these

statements were not “testimonial,” as that term is used in

Crawford v. Washington,2 the portions of these discussions that

bore adequate indicia of reliability were admissible under the

Sixth Amendment.     We also reject Appellant’s argument that the

Air Force Court of Criminal Appeals misused evidence that the

military judge admitted for a limited purpose.         But our

resolution of the two remaining issues entitles Appellant to

relief.   We must set aside the finding of guilty to one

specification due to the evidence’s legal insufficiency and

another because the military judge’s announcement of the finding

was fatally ambiguous.

                                 Background

     Appellant and his wife, both Air Force enlisted members,

committed numerous drug offenses while assigned to Yokota Air

1
  We heard oral argument in this case at Harvard Law School as
part of the Court’s “Project Outreach.” See United States v.
Mahoney, 58 M.J. 346, 347 n.1 (C.A.A.F. 2003). This practice
was developed as part of a public awareness program to
demonstrate the operation of a federal court of appeals and the
military justice system.
2
  541 U.S. 36 (2004).


                                      2
United States v. Scheurer, No. 04-0081/AF


Base in Japan.     As the Air Force Court of Criminal Appeals

explained, Appellant “and his wife used a variety of drugs on

almost a daily basis, both together and separately.        Sometimes

they used drugs alone as a couple.”3        Sometimes Appellant and his

wife used drugs with other individuals, including an American

high school student, NK.       Appellant and his wife also purchased

drugs and supplied them to others, including the high school

student, “although they did this more as social facilitators

than as dealers.”4

     The Government’s case included the testimony of Senior

Airman (SrA) Sherry Sullivan, who was assigned to the same duty

station as Airman (Amn) Anne Scheurer, Appellant’s wife.        “Over

a period of about eight months beginning in January 2000, while

working at her duty station, the appellant’s wife told [SrA

Sullivan] about the drug use, including the participation of the

minor,” NK.5    SrA Sullivan “had an amiable on-the-job

relationship with the appellant’s wife,” but “was not a close

friend.”6   Typically, Appellant’s wife “initiated the




3
  United States v. Scheurer, No. ACM 34866, 2003 CCA LEXIS 195,
at *2-*3, 2003 WL 22047899, at *1 (A.F. Ct. Crim. App. Aug. 25,
2003)(unpublished).
4
  Id. at *3, 2003 WL 22047899, at *1.
5
  Id., 2003 WL 22047899, at *1. While NK was a minor at the time
of the offenses, he was eighteen years old when he testified at
Appellant’s Article 32, Uniform Code of Military Justice (UCMJ),
10 U.S.C. § 852 (2000), investigation.
6
  Id., 2003 WL 22047899, at *1.

                                      3
United States v. Scheurer, No. 04-0081/AF


conversations about drug activity.”7        She usually described drug

use she committed with her husband.         But in a few instances, she

described “incidents where either she or her husband acted alone

while using drugs.”8     Appellant’s wife told SrA Sullivan “how she

and her husband would use body cleansing soaps and shampoos to

purge their systems of drugs.”9        Appellant’s wife also revealed

her belief that “the Air Force Office of Special Investigations

(AFOSI) was ‘watching them’ and looking to ‘get’ both” Amn

Scheurer and Appellant “for distributing drugs to a minor.”10

     SrA Sullivan “eventually contacted the AFOSI and agreed to

wear a ‘wire’ to facilitate recording of the wife’s statements.

Two of the conversations between Appellant’s wife and the co-

worker in August 2000 were preserved in this manner.        The

conversations ceased shortly thereafter.”11

     The defense moved in limine to exclude from evidence all of

Appellant’s wife’s statements to SrA Sullivan.        During a motions

hearing, the Government called Amn Scheurer as a witness, but

she invoked the spousal incapacity rule and refused to testify

against her husband.      SrA Sullivan testified and described her

conversations with Amn Scheurer.




7
   Id., 2003 WL 22047899, at *1.
8
   Id.
9
   Id. at *3-*4, 2003 WL 22047899, at *1.
10
    Id. at *4, 2003 WL 22047899, at *1.
11
    Id., 2003 WL 22047899, at *1

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United States v. Scheurer, No. 04-0081/AF


       The military judge denied the defense motion to exclude the

statements, making “detailed findings of fact” and “extensive

conclusions of law.”12

       His conclusions included the following relevant rulings:

       (1) The appellant’s wife, as the declarant, was
       unavailable as a witness; (2) Admissibility under Mil.
       R. Evid. 804(b)(3) requires that the statement tends
       to subject the declarant to criminal liability to the
       extent that a reasonable person in the position of the
       declarant would not have made the statement unless she
       believed it to be true; (3) The statements were
       against her interest in that the wife was well aware
       of her criminal liability when making the statements;
       (4) Under a line-by-line analysis, each implication of
       the appellant by the wife carried with it an attendant
       description of her own involvement and there was no
       attempt to shift blame away from the declarant toward
       the appellant -- thus the statements were truly self-
       inculpatory; (5) There was no animosity toward the
       appellant on the part of the wife; and (6) The
       presumption of unreliability that attaches to
       statements like the wife’s was overcome by the
       particular facts of the case.13

       The military judge also considered the statements’

admissibility under Military Rules of Evidence (M.R.E.) 401 and

403.   He ruled that evidence of Amn Scheurer’s statements to SrA

Sullivan was relevant.      He also ruled that the statements passed

the M.R.E. 403 balancing test, relying in part on the following

curative instruction that he planned to deliver:14


12
   Id. at *5, 2003 WL 22047899, at *1.
13
   Id. at *5-*6, 2003 WL 22047899, at *1.
14
   The Appellant elected to be tried by military judge alone
after the judge initially ruled that these statements were
admissible. Because the case was tried before the military
judge alone, the military judge never gave the proposed curative
instruction.

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United States v. Scheurer, No. 04-0081/AF


       [Y]ou may consider evidence that Airman Anne Scheurer
       alone was involved in drug activity for the limited
       purpose of its tendency, if any, to first demonstrate
       the accused had the opportunity to engage in similar
       activity; demonstrate that the accused had access to
       the various drugs described by his wife; demonstrate
       Anne Scheurer’s familiarity with the specifics of drug
       activity; and consider such background in assessing
       the credibility of her descriptions of the accused’s
       alleged activity. You may not consider this evidence
       [for] any other purpose and you may not conclude from
       this evidence that the accused is a bad person or has
       general criminal tendencies and that he therefore
       committed the offenses charged, simply because of his
       association with his wife.

       The military judge also denied a later defense request that

he reconsider his ruling on the admissibility of the statements.

       At his court-martial, Appellant was charged with three

specifications of violating Article 112a, UCMJ,15 by distributing

controlled substances (ecstasy, methamphetamine, and LSD) on

divers occasions, five specifications of violating Article 112a

by wrongfully using controlled substances (ecstasy, two

specifications of methamphetamine, LSD, and cocaine), one

specification of violating Article 112a by introducing

methamphetamine onto Yokota Air Base, one specification of

violating Article 111, UCMJ,16 by physically controlling a

passenger car while impaired by controlled substances on divers

occasions, and one specification of violating Article 134,

UCMJ,17 by wrongfully soliciting another individual to use


15
     10 U.S.C. § 912a (2000).
16
     10 U.S.C. § 911 (2000).
17
     10 U.S.C. § 944 (2000).

                                      6
United States v. Scheurer, No. 04-0081/AF


methamphetamine.     Appellant pleaded guilty to the two

specifications alleging use of methamphetamine but not guilty to

the other offenses.      The military judge found Appellant not

guilty of the cocaine use and LSD distribution offenses, but

guilty of all other charges and specifications.     In his

findings, the military judge excepted some language from four of

the specifications, three of which we will address below.

     The military judge sentenced Appellant to confinement for

three years, a dishonorable discharge, forfeiture of all pay and

allowances, and reduction to the lowest enlisted grade.      The

convening authority approved the sentence as adjudged.       In an

unpublished opinion, the Air Force Court affirmed the findings

and sentence.18    We then granted Appellant’s petition to review

his case.19


18
  Scheurer, 2003 CCA LEXIS 195, 2003 WL 22047899.
19
  United States v. Scheurer, 60 M.J. 117 (C.A.A.F. 2004).         We
granted review of the following issues:

      I. Whether the Air Force Court of Criminal Appeals
      improperly conducted its appellate review under Article
      66(c), UCMJ, by considering evidence outside the record in
      violation of United States v. Holt, 58 M.J. 227 (C.A.A.F.
      2003).

      II. Whether the military judge improperly deprived
      Appellant of his Sixth Amendment right to confrontation by
      admitting an accomplice’s statements without requiring that
      all references to Appellant be redacted.

      III. Whether the evidence is legally insufficient to
      sustain Appellant’s conviction under Article 111, UCMJ,
      where the prosecution did not present evidence that
      Appellant physically controlled a vehicle while impaired.

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United States v. Scheurer, No. 04-0081/AF


             Confrontation and Statements to a Co-Worker

     We first consider whether the military judge violated the

Confrontation Clause by admitting evidence of the statements

Appellant’s wife made in conversations with her co-worker, SrA

Sullivan.    To answer this question, we examine the Supreme

Court’s landmark Confrontation Clause decision of Crawford v.

Washington.20

     Like this case, Crawford involved the admissibility of

incriminating statements made by the defendant’s wife.     Also

like in this case, Crawford’s wife did not testify based on a

spousal privilege.21     This presented the issue of whether the




      IV. Whether, in light of United States v. Walters, 58 M.J.
      391 (C.A.A.F. 2003), the findings of guilty to
      specifications 3 and 5 of the original Charge and Additional
      Charge I and its supporting specification may be affirmed on
      appeal where the fact finder excepted the phrase “on divers
      occasions” and substituted nothing in its place.
20
  541 U.S. 36 (2004).
21
  Id. at 40. The spousal privilege rules at issue in Crawford
and this case are different. The rule in Washington apparently
allowed the defendant to invoke spousal privilege to keep his
wife from testifying. See id. In the military, on the other
hand, spousal incapacity allows the witness spouse, not the
accused, to decide whether to testify. See M.R.E. 504(a). So
the case for finding unavailability seems even greater under the
Military Rules of Evidence than under the Washington state
statute that rendered Crawford’s wife “unavailable.” Holding
that Appellant’s wife was unavailable in this case is
inconsistent with our ruling in United States v. Hughes, 28 M.J.
391 (C.M.A. 1989), where we treated a spouse who invoked spousal
incapacity as available for confrontation purposes. In Hughes,
we reasoned that the spouse “was at all times available to
appellant for examination as to her out-of-court statements.”
Id. at 395. She declined to testify “out of a desire to protect

                                      8
United States v. Scheurer, No. 04-0081/AF


Confrontation Clause permitted the court to consider the wife’s

pretrial statements implicating her husband.          Where this case

differs markedly from Crawford is the context within which the

pretrial statements were made.        In Crawford, the statements at

issue consisted of a tape recording of police officers

questioning the defendant’s wife.           In this case, the statements

at issue consisted of conversations between Appellant’s wife and

a co-worker during which Appellant’s wife implicated both her

husband and herself in ongoing drug offenses.

     Crawford held that the Confrontation Clause forbids the

“admission of testimonial statements of a witness who did not

appear at trial unless he was unavailable to testify, and the

defendant had had a prior opportunity for cross-examination.”22

As the Third Circuit has explained, “The lynchpin of the

Crawford decision . . . is its distinction between testimonial

and nontestimonial hearsay; simply put, the rule announced in

Crawford applies only to the former category of statements.”23



the integrity of her marriage, but it could scarcely have
threatened the marriage for appellant himself to call his wife
as a witness to explain, if she could, her earlier statements.”
Id. Hughes’s approach to the confrontation implications of
spousal incapacity is inconsistent with the Supreme Court’s
opinion in Crawford, as well as other federal precedent. See,
e.g., United States v. Chapman, 866 F.2d 1326, 1330 (11th Cir.
1989); United States v. Barlow, 693 F.2d 954, 964 (6th Cir.
1982). We hereby overrule Hughes to the extent that it holds a
spouse who invoked spousal incapacity remains available for
confrontation purposes.
22
   541 U.S. at 53-54.
23
   United States v. Hendricks, 395 F.3d 173, 179 (3d Cir. 2005).

                                      9
United States v. Scheurer, No. 04-0081/AF


So “unless a particular hearsay statement qualifies as

‘testimonial,’ Crawford is inapplicable. . . .”24

     The Third Circuit also observed that despite “the

centrality of the term to its decision, the Crawford Court

expressly declined to provide a comprehensive definition of

‘testimonial statements.’”25       Referring to statements “made to

private individuals not associated with the government with no

expectation of being conveyed to the police, the prosecution, or

other officials,” one commentator observed that “statements made

to family, friends, and acquaintances without an intention for

use at trial have consistently been held not to be testimonial,

even if highly incriminating to another.”26       We agree that in

this case the “declarant’s statements to a confidential

informant, whose true status is unknown to the declarant, do not

constitute testimony within the meaning of Crawford.”27

     The Third Circuit offered the following rationale for its

view that    statements unwittingly made to government informants

24
   Id.
25
   Id.
26
   Robert P. Mosteller, Crawford v. Washington: Encouraging and
Ensuring the Confrontation of Witnesses, 39 U. Rich. L. Rev.
511, 540 (2005).
27
   United States v. Saget, 377 F.3d 223, 229 (2d Cir. 2004).
Accord Hendricks, 395 F.3d at 181 (citing, among other cases,
Horton v. Allen, 370 F.3d 75, 84 (1st Cir. 2004) (finding
“statements . . . made during a private conversation”
nontestimonial); United States v. Robinson, 367 F.3d 278, 292
n.20 (5th Cir. 2004) (“The statement challenged as hearsay was
made during the course of the conspiracy and is non-testimonial



                                     10
United States v. Scheurer, No. 04-0081/AF


are nontestimonial.      First, such statements “neither fall within

nor are analogous to any of the specific examples of testimonial

statements mentioned by” Crawford.28        Second, such conversations

“do not qualify as ‘testimonial’ under any” of the definitions

suggested by Crawford.      “They are not ‘ex parte in-court

testimony or its functional equivalent,’ nor are they

‘extrajudicial statements . . . contained in formalized . . .

materials, such as affidavits, depositions, prior testimony, or

confessions.’”29    Finally, “[e]ach of the examples referred to by

[Crawford] or the definitions it considered entails a formality

to the statement absent from” statements made in conversation

with an informant.30     Statements “cannot be deemed testimonial”

if the declarants “did not make the statements thinking that

they would be available for use at a later trial.”31

     In reaching a similar conclusion, the Second Circuit

reasoned that Crawford offers the Supreme Court’s opinion in

Bourjaily v. United States,32 “which involved a co-defendant’s



in nature.”); United States v. Reyes, 362 F.3d 536, 541 n.4 (8th
Cir. 2004) (“Co-conspirator statements are nontestimonial.”)).
28
   Hendricks, 395 F.3d at 181 (citing Crawford, 541 U.S. at 68
and noting that the Supreme Court listed “‘prior testimony
[given] at a preliminary hearing, before a grand jury, or at a
former trial[,] and to police interrogations’ as examples of
obviously testimonial statements”).
29
   Id. (alternations in original) (quoting Crawford, 541 U.S. at
51-52).
30
   Id.
31
   Id. (quoting Crawford, 541 U.S. at 52)(citation and quotation
marks omitted).
32
   483 U.S. 171 (1987).

                                     11
United States v. Scheurer, No. 04-0081/AF


unwitting statements to an FBI informant, as an example of a

case in which nontestimonial statements were correctly admitted

against the defendant without a prior opportunity for cross-

examination.”33

        In Crawford, the Supreme Court stated, “Involvement of

government officers in the production of testimony with an eye

toward trial presents unique potential for prosecutorial abuse -

- a fact borne out time and again throughout a history with

which the Framers were keenly familiar.”34    Crawford explains

that an “accuser who makes a formal statement to government

officers bears testimony in a sense that a person who makes a

casual remark to an acquaintance does not.”35    The communications

at issue in this case fall within the latter category.    The

casual remarks in the present case stands in stark contrast to

the “recorded statement, knowingly given in response to [the]

structured police questioning”36 at issue in Crawford.

        Our conclusion that the casual remarks at issue in the

present case were not testimonial leaves open the question, not

necessary for the decision in this case, as to whether

Government involvement in the formulation of the inquiries made

on behalf of the Government can establish the testimonial nature



33
     Saget, 377 F.3d at 229 (citing Crawford, 541 U.S. at 58).
34
     Crawford, 541 U.S. at 56 n. 7.
35
     Id. at 51.
36
     Id. at 53 n.4.

                                     12
United States v. Scheurer, No. 04-0081/AF


of the conversation.37     For purposes of the Confrontation Clause,

there may be a substantial difference -- with regard to cross-

examining of a hearsay declarant -- between a hearsay

declarant’s casual remarks and the declarant’s response to

questions structured by the Government.          In the present case,

the distinction is not applicable because the military judge

found that the Government’s role in obtaining the statements

amounted only to facilitation, not direction or suggestion.

      Crawford’s requirement to exclude testimonial hearsay

offered without an opportunity to cross-examine the declarant

does not apply to Amn Scheurer’s statements to SrA Sullivan.            So

what confrontation test does apply?         We agree with the

conclusion of every published appellate court decision that has

considered this issue since Crawford:          the Ohio v. Roberts38

requirement for particularized guarantees of trustworthiness

continues to govern confrontation analysis for nontestimonial

statements.

     The Fifth Circuit’s analysis of this question is typical of

post-Crawford appellate decisions.          That court concluded that

for nontestimonial statements, “Crawford leaves in place the

Roberts approach” for determining the statement’s admissibility

37
   See Hammon v. State, 829 N.E.2d 444 (Ind. 2005); see also
People v. Wahlert, 31 Cal. Rptr. 3d 603, modified by People v.
Wahlert, EO35174, 2005 Cal. App. LEXIS 1108 (Cal. Ct. App., July
19, 2005) (focusing on extent of government involvement in
formulation of dialogue during pretext phone calls).


                                     13
United States v. Scheurer, No. 04-0081/AF


under the Confrontation Clause.39           The Fifth Circuit acknowledged

that Crawford raises the possibility that nontestimonial

statements are “exempted . . . from Confrontation Clause

scrutiny altogether.”40      But because the Supreme Court declined

to overrule White v. Illinois,41 which rejected the proposition

that the Confrontation Clause placed no restrictions on the

admissibility of nontestimonial statements, “Roberts remains

controlling for purposes of nontestimonial statements.”42           The

Wisconsin Supreme Court recently noted that its research

revealed “only one reported case, a [New York state] trial court

decision,” that had “construed Crawford as exempting


38
   448 U.S. 56 (1980).
39
   United States v. Holmes, 406 F.3d 337, 347 (5th Cir. 2005).
40
   Id. at 348 n.14 (quoting Crawford, 541 U.S. at 68).
41
   502 U.S. 346 (1992).
42
   Holmes, 406 F.3d at 347 n.14 (citing Crawford, 541 U.S. at
61). Accord Hendricks, 395 F.3d at 179 n.7 (noting that
removing nontestimonial statements from Confrontation Clause
scrutiny “is beyond the province of this court”); Saget, 377
F.3d at 227 (“Crawford leaves the Roberts approach untouched
with respect to nontestimonial statements. The Crawford Court
expressly declined to overrule White . . . .”); Horton, 370 F.3d
at 84 (“unless . . . statements qualify as ‘testimonial,’
Crawford is inapplicable and Roberts continues to apply”); State
v. Martin, 695 N.W.2d 578, 584 (Minn. 2005) (holding that
Crawford “announced a new test for the admissibility of those
statements that are ‘testimonial’ but left the Roberts test in
place for nontestimonial statements”); State v. Rivera, 844 A.2d
191, 202 (Conn. 2004) (“because this statement was
nontestimonial in nature, application of the Roberts test
remains appropriate”); State v. Dedman, 102 P.3d 628, 636 (N.M.
2004) (“the federal Confrontation Clause still requires the
application of the Roberts test to non-testimonial hearsay
evidence, Crawford notwithstanding”); Miller v. State, 98 P.3d
738, 744 (Okla. Ct. Crim. App. 2004) (“we continue to apply [the
Roberts] test to nontestimonial hearsay”).

                                     14
United States v. Scheurer, No. 04-0081/AF


nontestimonial hearsay from Confrontation Clause analysis

altogether.”43    And that decision, the Wisconsin Supreme Court

observed, “seemed to rest on a misquotation of Crawford.”44

     We will evaluate Amn Scheurer’s statements to SrA Sullivan

under the Roberts test.      Ohio v. Roberts provides that where the

declarant is unavailable to be cross-examined, the Confrontation

Clause permits the admission of a hearsay statement in a

criminal trial only if:      (1) the statement “falls within a

firmly rooted hearsay exception,” or (2) it bears other

“particularized guarantees of trustworthiness.”45

     In Lilly v. Virginia,46 a four-Justice plurality indicated

that “accomplices’ confessions that inculpate a criminal

defendant are not within a firmly rooted exception to the

hearsay rule as that concept has been defined in our

Confrontation Clause jurisprudence.”47           Rather, such statements

are “presumptively unreliable.”48           Accordingly, we will

scrutinize such statements to determine whether they bear

sufficient particularized guarantees of trustworthiness to

overcome this presumption of unreliability.



43
   State v. Manuel, 697 N.W.2d 811, 826 n.15 (Wisc. 2005) (citing
People v. Conyers, 777 N.Y.S.2d 274, 276 (N.Y. Sup. Ct. 2004)).
44
   Id.
45
   448 U.S. 56, 66 (1980).
46
   527 U.S. 116 (1999) (plurality opinion).
47
   Id. at 134.
48
   Id. at 131 (quoting Lee v. Illinois, 476 U.S. 530, 541
(1986)).

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United States v. Scheurer, No. 04-0081/AF


     Amn Scheurer’s statements to SrA Sullivan can be divided

into three groups:     (1) three statements that incriminated

herself only; (2) approximately thirteen statements that

incriminated both herself and her husband; and (3) four

statements that incriminated her husband only.     The lower court

held, and we agree, that the statements in the third category

were not relevant to any of the offenses of which Appellant was

convicted.49     So we need not determine whether they were properly

admitted into evidence.      Rather, our focus is on the statements

in which Amn Scheurer incriminated both her husband and herself.

If those statements survive Confrontation Clause scrutiny –- as

we conclude they do –- then a fortiori Amn Scheurer’s three

purely self-incriminatory statements that the military judge

admitted for a limited purpose did not offend the Confrontation

Clause.

     In determining whether hearsay statements by unavailable

declarants bear adequate indicia of reliability, the Lilly

plurality emphasized that appellate courts “should independently

review whether the government’s proffered guarantees of

trustworthiness satisfy the demands of the [Confrontation]

Clause.”50     Our independent assessment of the evidence in this

case leads to the same conclusion as the military judge’s:      Amn


49
   Scheurer, 2003 CCA LEXIS 195, at *14-*16, 2003 WL 22047899, at
*5.
50
   527 U.S. at 137.

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United States v. Scheurer, No. 04-0081/AF


Scheurer’s statements to SrA Sullivan that jointly implicated

her husband and herself bore sufficient particularized

guarantees of trustworthiness to overcome the presumption of

unreliability.

     We agree with the military judge that Amn Scheurer’s

statements were truly self-incriminatory and that a reasonable

declarant in her position would not have made the statements

unless she believed them to be true.        As the military judge

observed, she made her statements “to a fellow military member

on an almost daily basis, over an eight-month period,” revealing

“a spectrum of drug activity deep in both frequency and

breadth.”    Amn Scheurer’s statements revealed “[c]hronic use and

frequent distribution.”      They also demonstrated her

consciousness of the possibility of prosecution “as fear of OSI

[Office of Special Investigations] investigation crept into the

conversations.”     Additionally, we note that the statements’

potential to subject Amn Scheurer to criminal penalties was far

from hypothetical.     Four days after Appellant’s court-martial

concluded, his wife was tried and convicted of multiple drug

offenses and received a sentence that included thirty months of

confinement and a bad-conduct discharge.51       The danger created by

Appellant’s wife’s statements was further demonstrated by SrA


51
  United States v. Scheurer, No. ACM 34865, 2003 CCA LEXIS 115,
2003 WL 21004683 (A.F. Ct. Crim. App. Apr. 10, 2003), petition
denied, 59 M.J. 57 (C.A.A.F. 2003).

                                     17
United States v. Scheurer, No. 04-0081/AF


Sullivan’s decision to reveal her admissions to law enforcement

authorities and to wear a hidden microphone to record their

conversations.     No one in Amn Scheurer’s position would likely

make such admissions unless they were actually true.         As the

Supreme Court has observed, “reasonable people, even reasonable

people who are not especially honest, tend not to make self-

inculpatory statements unless they believe them to be true.”52

       The military judge also noted that “there was no government

involvement in securing the statements until the wire device was

used by OSI in August.      Thus, there was no government activity

afoot for the first seven months.”          Additionally, “it appears

the conversations were initiated by the declarant rather than

Sullivan.    Thus, even when the wires were used, this amounted to

facilitation only on the part of the government, rather than

direction or suggestion.”

       The military judge also found that there was “no evidence

of animosity toward the accused on the part of the declarant.”

       Finally, and critically, Amn Scheurer’s statements were not

made in an attempt to shift blame from herself to her husband or

in an effort to seek leniency or favorable treatment from law

enforcement officials.      Rather, as the military judge found, her

statements were “truly self-inculpatory.”




52
     Williamson v. United States, 512 U.S. 594, 599 (1994).

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United States v. Scheurer, No. 04-0081/AF


       Accordingly, on the basis of our independent review of the

evidence, we conclude that Amn Scheurer’s statements to SrA

Sullivan bore particularized guarantees of trustworthiness that

warrant their admissibility despite the general presumption of

unreliability that attaches to a declarant’s statement

implicating an accomplice.       The military judge did not err when

he admitted them into evidence.

     The Air Force Court’s Use of Evidence Admitted for a Limited
                                Purpose

       Appellant also argues that the Air Force Court misused Amn

Scheurer’s statements to SrA Sullivan that the military judge

admitted for a limited purpose.        We disagree.

       In United States v. Holt,53 the military judge admitted

certain sentencing exhibits into evidence and ruled that the

members could not consider them for the truth of the matter they

asserted.    Nevertheless, in reviewing the case, the Air Force

Court of Criminal Appeals considered the exhibits as substantive

evidence.    We held that a court of criminal appeals “may not

resurrect excluded evidence” or consider evidence in a manner

inconsistent with the limited purpose for which the military

judge admitted it.54     In this case, Appellant argues that the Air

Force Court violated this rule in its use of Amn Scheurer’s




53
     58 M.J. 227 (C.A.A.F. 2003).
54
     Id. at 232-33.

                                     19
United States v. Scheurer, No. 04-0081/AF


statements.    That contention, however, is based on a misreading

of the record.

       Appellant’s argument assumes that the military judge’s

limitation on the use of Amn Scheurer’s statements55 applied to

all of the statements that she made.         But that is not true.     The

limiting instruction that the military judge planned to give if

this had been a members trial (which clearly served as his

announcement of the limited purpose for which he admitted the

evidence) applied only to the three statements in which Amn

Scheurer incriminated herself and not her husband.        The

limitation clearly did not apply to the approximately thirteen

statements that incriminated both of them or the four statements

that incriminated her husband only.         The instruction began by

referring to “evidence that Airman Anne Scheurer alone was

involved in drug activity.”       The ruling’s distinction between

the three statements in which she implicated only herself and

those statements that also implicated her husband came into even

sharper focus when the limiting instruction stated that her

statements could be considered “in assessing the credibility of

her descriptions of the accused’s alleged activity.”        This makes

clear that the limiting instruction did not apply to Amn

Scheurer’s statements that described Appellant’s alleged drug




55
     See supra pp. 5-6.

                                     20
United States v. Scheurer, No. 04-0081/AF


use.   Rather, the military judge admitted those statements into

evidence without limitation.

       The Air Force Court’s opinion in this case contains no hint

that the court used the evidence of Amn Scheurer’s three

statements implicating only herself inconsistently with the

limiting instruction.      “[T]he mature and experienced judges who

serve on the Courts of Criminal Appeals are presumed to know and

apply the law correctly . . . .”56          In the absence of any

indication to the contrary, we will presume that the Air Force

Court considered Amn Scheurer’s three statements that were

solely self-incriminating only for the purposes permitted by the

limiting instruction.

            Physically Controlling a Vehicle While Impaired

       We also granted review to consider whether the evidence is

legally sufficient to uphold Appellant’s conviction for

controlling a vehicle under the influence of LSD.          “Our standard

of review on a question of legal sufficiency of the evidence is

whether, considering the evidence in the light most favorable to

the Government, a reasonable factfinder could find each element

of the offense beyond a reasonable doubt.”57          In this case, the

evidence would not permit a reasonable factfinder to conclude




56
  United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002).
57
  See United States v. Wright, 42 M.J. 163, 166 (C.A.A.F. 1995)
(citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

                                     21
United States v. Scheurer, No. 04-0081/AF


beyond a reasonable doubt that Appellant controlled a car while

he was under the influence of LSD.

     Drunk driving has long been a military offense.58        In 1986,

Congress expanded Article 111 to prohibit operation of a vehicle

while impaired by a controlled substance.59        In 1992, Congress

“substantially revised” Article 111.60        Most significantly for

the purposes of this case, Congress expanded Article 111 “to

prohibit physically controlling, as well as operating, a

vehicle, aircraft, or vessel.”61        The 1992 “amendments to Article

111 were designed to bring the military’s criminal justice

system more closely in line with civilian criminal law.”62

     Courts have defined “physical control” of a vehicle

broadly.   As the Army Court has observed, courts have held that

this element is satisfied where the accused was:        (1) sitting

behind and leaning against the steering wheel; (2) sitting in

the driver’s seat of a parked car with hands on the steering

58
   See generally R. Peter Masterton, The Military’s Drunk Driving
Statute: Have We Gone Too Far?, 150 Mil. L. Rev. 353, 355
(1995) (noting that “[t]he military’s prohibition on drunk
driving originated with the 96th Article of War, the general
article that proscribed disorders and neglects to the prejudice
of good order and military discipline.”).
59
   Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, tit. III, §
3055, 100 Stat. 3207-76 (1986) (codified at 10 U.S.C. § 911
(2000)).
60
   Masterton, supra note 58, at 356. See generally National
Defense Authorization Act for Fiscal Year 1993, Pub. L. No. 102-
484, § 1066(a)(1), 106 Stat. 2506 (1992) (codified at 10 U.S.C.
§ 911 (2000)).
61
   Masterton, supra note 58, at 356.



                                     22
United States v. Scheurer, No. 04-0081/AF


wheel and the key in the ignition, but without the engine

running; and (3) sitting behind the wheel with the key in the

ignition.63   The Army Court explains that the “statutes are

designed to deter individuals who are intoxicated from getting

into vehicles except as passengers.”64      So the revised Article

111 “is a preventive measure designed to deter unsafe drivers

from taking the first step, that is, sitting behind the wheel of

an instrument which, in their hands, can cause great injury and

death.”65

     The Army Court’s analysis makes clear that sitting in a

passenger seat of a car while someone else drives does not

result in “physical control” of the vehicle.      On the contrary,

the very purpose of the legislation is to remove impaired people

from the driver’s seat.      So unless the Government proves beyond

a reasonable doubt that Appellant was in the driver’s seat,

rather than the front passenger’s seat, the Government has not

established an Article 111 offense.

     In this case, considering the evidence in the light most

favorable to the Government, we conclude that a reasonable


62
   Id. (citing H. Conf. Rep. No. 102-966 (1992), reprinted in
1992 U.S.C.C.A.N. 1769, 1849).
63
   United States v. Barnes, 24 M.J. 534, 535 (A.C.M.R. 1987)
(citing, among other authorities, James O. Pearson Jr.,
Annotation, What Constitutes Driving, Operating, or Being in
Control of Motor Vehicle for Purposes of Driving While
Intoxicated Statute or Ordinance, 93 A.L.R. 3d 7 (1979)).
64
   Id.
65
   Id.

                                     23
United States v. Scheurer, No. 04-0081/AF


factfinder could not find beyond a reasonable doubt that

Appellant was in the driver’s seat of the car while he was under

the effects of LSD.      The evidence concerning this specification

comes entirely from NK’s testimony at the Article 32

investigation, a redacted version of which became part of the

Government’s case on the merits.          NK testified that Appellant

and his wife “said that they were going to go down to Roppongi

and they asked me if I wanted to go with them.         So we got into

the car and left.”     He continued, “We went to Roppongi.       I was

in the back seat and Matt and Anne were in the front.           That was

normal.”   That is the only information in the record concerning

the three individuals’ location in the car.         Even when

considered in the light most favorable to the Government, this

cannot support concluding beyond a reasonable doubt that

Appellant was driving the car.        On the contrary, the testimony –

- which the military judge read rather than hearing in person –-

is equally consistent with Appellant’s wife driving as with

Appellant driving.

     In arguing to the contrary, the Government mischaracterizes

the evidence.    The Government acknowledges that the evidence on

this charge is limited to the transcript of NK’s testimony at

the Article 32 investigation.        But the Government incorrectly

argues that NK testified that during the car ride after

Appellant ingested LSD, Appellant and his wife “were in their



                                     24
United States v. Scheurer, No. 04-0081/AF


‘normal’ places in the car.”       The Government then argues that it

is “apparent the normal places were with Appellant driving, Amn

Anne Scheurer in the passenger seat, and [NK] in the back.”        But

NK did not testify that Appellant and his wife were in their

“‘normal’ places.”     Rather, he stated only that Appellant and

his wife “were in the front” of the car and “[t]hat was normal.”

     Without the additional characterization that the Government

incorrectly attributes to NK, it is apparent that the evidence

does not prove beyond a reasonable doubt that Appellant was in

physical control of the car the night he ingested LSD.

Accordingly, we must set aside the finding of guilty to the

Additional Charge and its specification and dismiss them with

prejudice.

                      Excepting “Divers Occasions”

     When the military judge announced his findings, he excepted

the words “divers occasions” from three of the specifications

that resulted in findings of guilty.        One of those

specifications was the driving under the influence allegation

that we discussed above and set aside on legal insufficiency

grounds.   The other two specifications alleged drug use.

Specification 3 of the original Charge alleged that Appellant

used ecstasy “at or near Yokota Air Base, Japan, and Tokyo,

Japan, on divers occasions between on or about 1 June 1999 and

on or about 31 July 2000.”       Specification 5 of the original



                                     25
United States v. Scheurer, No. 04-0081/AF


Charge alleged that Appellant used LSD “at or near Tokyo, Japan,

and Mt Fuji, Japan, on divers occasions between on or about 1

April 2000 and on or about 31 July 2000.”

     The military judge found Appellant guilty of specification

3 “excepting the words ‘and Tokyo, Japan on divers occasions.’”

He found Appellant guilty of specification 5 “excepting the

words ‘and Mt. Fuji[,] Japan on divers occasions.’”    He found

Appellant not guilty of the excepted words and substituted

nothing in their place.

     As we recently explained, when an accused is charged with

committing “illegal conduct ‘on divers occasions’ and the

[court-martial] find[s] the accused guilty of charged conduct

but strikes out the ‘on divers occasions’ language, the effect

of the findings is that the accused has been found guilty of

misconduct on a single occasion and not guilty of the remaining

occasions.”66    When this occurs, if “the findings do not disclose

the single occasion on which the conviction is based, the Court

of Criminal Appeals cannot conduct a factual sufficiency review

or affirm the findings because it cannot determine which

occasion the servicemember was convicted of and which occasion

the servicemember was acquitted of.”67




66
   United States v. Augspurger, 61 M.J. 189, 190 (C.A.A.F. 2005);
see United States v. Walters, 58 M.J. 391 (C.A.A.F. 2003).
67
   Id.

                                     26
United States v. Scheurer, No. 04-0081/AF


     The key issue when applying this precedent is whether the

findings establish which of the charged divers occasions

provided the basis for the conviction.          In this case, the

findings provide such certainty as to one of the specifications

(specification 5), but not the other (specification 3).

     Specification 3 of the original Charge alleged that

Appellant “did, at or near Yokota Air Base, Japan, and Tokyo,

Japan, on divers occasions between on or about 1 June 1999 and

on or about 31 July 2000 wrongfully use 3,4-

Methylenedioxymethamphetamine (MDMA) (Ecstasy), a Schedule I

controlled substance.”      The Government called SrA Andrew

Wuthrich as a witness.      He testified that he had heard Appellant

say he was “rolling,” which he understood to mean that Appellant

was under the effects of ecstasy.           SrA Wuthrich’s testimony did

not indicate either when or where Appellant made that comment.

SrA Wuthrich also testified that he saw Appellant under the

apparent effects of ecstasy in a Tokyo nightclub and that he saw

an ecstasy pill at Appellant’s residence.

     Airman Basic Tracy Svendsen testified about an occasion

around March 2000 when Appellant appeared to be under the

effects of ecstasy at a club in Tokyo.          But he also testified

that he never actually saw Appellant ingest ecstasy.

     SrA Sullivan testified about her conversations with

Appellant’s wife concerning drug use.          SrA Sullivan testified



                                     27
United States v. Scheurer, No. 04-0081/AF


that Appellant’s wife told her that Appellant used “the pills.”

She also testified that Appellant’s wife told her that Appellant

used a “Buddha” pill at a party on Mount Fuji.

     NK testified that he saw Appellant use ecstasy on two

occasions.    He testified68 about an incident when he and

Appellant both took ecstasy in a parking lot in Shinjuku.

Additionally, NK testified that he once saw Appellant apparently

under the effects of ecstasy at Appellant’s residence.

      The military judge ultimately found Appellant guilty of

this specification “excepting the words ‘and Tokyo, Japan on

divers occasions.’”      So the military judge found Appellant

guilty of a single use of ecstasy between June 1, 1999 and July

31, 2000, at or near Yokota Air Base.       Based on the record, we

are unable to discern which use was the single incident that

formed the basis for this finding.

     But we come to a different conclusion regarding the other

specification where the military judge excepted the “divers

occasions” language.      Specification 5 of the original Charge

alleged that Appellant “did, at or near Tokyo, Japan, and Mt.

Fuji, Japan, on divers occasions between on or about 1 April

2000 and on or about 31 July 2000 wrongfully use lysergic acid

diethylamide (LSD).”

68
  NK was a civilian. He had testified at the Article 32
investigation in this case, but refused to return to Japan for



                                     28
United States v. Scheurer, No. 04-0081/AF


     The evidence concerning Appellant’s use of LSD is limited

to two occasions.     SrA Sullivan testified that Appellant’s wife

told her that Appellant used a “pill named Buddha and acid”

during a party at Mount Fuji.        NK testified about an incident

when Appellant said he was feeling the effects of LSD.       While NK

and the Scheurers were driving from Yokota Air Base to Roppongi,

Appellant’s wife gave half of an LSD tab to NK, who took it and

experienced “[m]ild hallucinations.”        Because the record

contains evidence of only two LSD uses, when the military judge

excepted the language, “and Mt Fuji, Japan, on divers occasions”

from specification 5, he was necessarily finding Appellant

guilty of the only other use, about which NK testified.

     Our uncertainty concerning the basis for the finding of

guilty to specification 3 requires that we set aside that

finding.   As we explained in Walters, where the conversion of a

“divers occasions” specification to a single occasion

specification prevents the Court of Criminal Appeals from

determining the factual basis for the conviction, the “ambiguous

verdict” prevents the “proper exercise of [the Court of Criminal

Appeals’] appellate review authority under Article 66(c).”69

This conclusion flows from the prohibition against a Court of



the court-martial. Accordingly, the military judge considered a
redacted version of his Article 32 testimony.
69
   Walters, 58 M.J. at 395 (discussing, with approval, United
States v. King, 50 M.J. 686 (A.F. Ct. Crim. App. 1999) (en
banc)).

                                     29
United States v. Scheurer, No. 04-0081/AF


Criminal Appeals “find[ing] as fact any allegation in a

specification for which the fact-finder below has found the

accused not guilty.”70     That limitation “precludes any proper

appellate review of this type of ambiguous verdict.”71       To affirm

a finding of guilty, the Court of Criminal Appeals must itself

weigh the evidence and be “convinced beyond a reasonable doubt

of Appellant’s guilt of engaging in wrongful use on the same

‘one occasion’ that served as the basis for the [court-

martial’s] guilty finding.”72       But “[w]ithout knowing which

incident that Appellant had been found guilty of and which

incidents he was found not guilty of, that task is impossible.”73

     Of course, this problem is easily avoided.       As we noted in

Walters, where a “divers occasions” specification is converted

to a “one occasion” specification, the finder of fact should

substitute language into the specification to “clearly put the

accused and the reviewing courts on notice of what conduct

served as the basis for the findings.”74       But in this case, which

was tried almost two years before Walters was announced, the

military judge did not accompany the exception of “divers




70
   Id. at 396.
71
   Id.
72
   Id.
73
   Id.
74
   Id.; see also Jeffrey C. Hagler, Duck Soup: Recent
Developments in Substantive Criminal Law, 2004 Army Law. 79, 97
(July 2004), at 97 (discussing how to avoid Walters issues).

                                     30
United States v. Scheurer, No. 04-0081/AF


occasions” with any substitution to specify the one occasion of

use that formed the basis for the finding of guilty.

     Because double jeopardy principles would bar any rehearing

on incidents of which Appellant was found not guilty, and

because ambiguous findings preclude distinguishing incidents

that resulted in acquittal from the single incident that

resulted in a conviction, the remedy for a Walters violation is

to set aside the finding of guilty to the affected specification

and dismiss it with prejudice.75        Accordingly, we set aside the

finding of guilty to specification 3 of the original Charge and

dismiss that specification with prejudice.

                                  DECISION

     The findings of guilty to specification 3 of the original

Charge and to Additional Charge 1 and its specification are set

aside.   Those specifications and that charge are dismissed with

prejudice.    The remaining findings of guilty as affirmed by the

United States Air Force Court of Criminal Appeals are affirmed.

The sentence is set aside.       The record of trial is returned to

the Judge Advocate General of the Air Force for remand to the

Court of Criminal Appeals for reassessment of the sentence or

remand for a sentence rehearing if the court concludes that it

cannot appropriately reassess the sentence.



75
  See 58 M.J. at 397; see also United States v. Seider, 60 M.J.
36 (C.A.A.F. 2004).

                                     31
United States v. Scheurer, No. 04-0081/AF


     CRAWFORD, Judge (concurring in part and dissenting in

part):

     I concur with the majority as to Issue I and III and

dissent as to Issue IV.   See my dissent in United States v.

Walters, 58 M.J. 391, 397 (C.A.A.F. 2003) (Crawford, C.J.,

dissenting).

     As to Issue II, I concur in the result.   At the outset, I

note that this case was tried before the decision in Crawford v.

Washington, 541 U.S. 36 (2004).   Thus, the initial question

raised by this appeal is whether Crawford applies retroactively.

Federal courts that have considered the question of Crawford

retroactivity have done so in the context of a habeas petition.

Cf. Bockting v. Bayer, 399 F.3d 1010 (9th Cir. 2005); Evans v.

Luebbers, 371 F.3d 438 (8th Cir. 2004); Hirachetavag v. Attorney

Gen. of California, 105 F. App’x 937 (9th Cir. 2004).   For

purposes of this opinion I would assume retroactivity, without

deciding, and hold that Crawford is not applicable because there

was no active police involvement to obtain evidence for trial.

I would also rely upon the language of the Crawford opinion

itself in conducting the legal analysis to support this holding.

     For more than two decades, prior to Crawford, the Court

held that a declarant’s out of court statement could be admitted

under a hearsay exception if (1) the declarant was unavailable

at trial and (2) the prosecution could demonstrate indicia of
United States v. Scheurer, No. 04-0081/AF


reliability or that the statement was “firmly rooted.”   Ohio v.

Roberts, 448 U.S. 56 (1980).   However, in Crawford, the Court

held that “testimonial” hearsay statements may not be admitted

unless the witness is available to testify and the defendant has

the opportunity for cross-examination.

     Crawford does not do away with the foundational

requirements under the Military Rules of Evidence and does not

change the hearsay rules.   Crawford is “fundamentally about the

hearsay rules” and not about offering statements other than for

the truth of the matter stated or asserted.   Id. at 59 n.9.    The

one thing we can say is that Crawford will not apply where the

declarant is available and there is an opportunity for cross-

examination.

     What is testimonial?   In Crawford, the Court noted that

“[v]arious formulations of this core class of ‘testimonial’

statements exist.”   Crawford, 541 U.S. at 51.   The Court

expressly stated “[w]e leave for another day any effort to spell

out a comprehensive definition of ‘testimonial.’”   Id. at 68.

In determining what is testimonial the Court identified three

“formulations of [the] core class of testimonial statements”:

     [(1)] Ex parte in-court testimony or its functional
     equivalent -- that is, material such as affidavits,
     custodial examinations, prior testimony that the
     defendant was unable to cross-examine, or similar
     pretrial statements that declarants would reasonably
     expect to be used prosecutorially; [(2)] extrajudicial
     statements . . . contained in formalized testimonial


                                 2
United States v. Scheurer, No. 04-0081/AF


     materials, such as affidavits, depositions, prior
     testimony, or confessions; [(3)] 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.

Id. at 51-52 (citations and quotation marks omitted).

     We need not decide which of these categories, if any,

apply.   Certainly statements made by Appellant’s spouse in this

case are not the type of “interrogations by law enforcement

officers” that would constitute “testimonial” evidence within

the meaning of Crawford.




                                 3
