                       UNITED STATES, Appellee

                                    v.

           Stanley O. OTHURU, Storekeeper Second Class
                       U.S. Navy, Appellant

                              No. 06-0768

                       Crim. App. No. 200301631

       United States Court of Appeals for the Armed Forces

                       Argued October 16, 2007

                      Decided December 12, 2007

ERDMANN, J., delivered the opinion of the court, in which
EFFRON, C.J., and BAKER, STUCKY, and RYAN, JJ., joined.

                                 Counsel

For Appellant: Lieutenant W. Scott Stoebner, JAGC, USN
(argued); Lieutenant Stephen Reyes, JAGC, USN.

For Appellee: Lieutenant Commander Jordan A. Thomas, JAGC, USN
(argued); Commander P. C. LeBlanc, JAGC, USN, and Captain Roger
E. Mattioli, USMC (on brief); Lieutenant Craig A. Poulson, JAGC,
USN.

Military Judge:   Bruce W. MacKenzie


       This opinion is subject to revision before final publication.
United States v. Othuru, No. 06-0768/NA

       Judge ERDMANN delivered the opinion of the court.

       Storekeeper Second Class Stanley Othuru was convicted at a

general court-martial of making a false official statement and

theft of government property as a consequence of his fraudulent

collection of basic allowance for housing (BAH) as a married

servicemember while he was not legally married.   He was

sentenced to sixty days of confinement, reduction to E-3, and a

fine of $34,000.00.    If the fine was not paid, the sentence had

a provision for contingent confinement of one year.   The

convening authority approved the sentence and the United States

Navy-Marine Corps Court of Criminal Appeals affirmed the

findings and sentence.    United States v. Othuru, No. NMCCA

200301631, 2006 CCA LEXIS 139, 2006 WL 1663021 (N-M. Ct. Crim.

App. June 13, 2006).    We granted Othuru’s petition for grant of

review and specified an additional issue.1


1
    We granted review of the following issue:

       WHETHER THE ADMISSION OF TWO SWORN OUT-OF-COURT
       STATEMENTS FROM APPELLANT’S MOTHER AND WIFE WHO
       ACCUSED APPELLANT OF ENTERING INTO A FRAUDULENT
       MARRIAGE IS HARMLESS BEYOND A REASONABLE DOUBT IN A
       COURT-MARTIAL WHERE APPELLANT WAS CONVICTED FOR
       FRAUDULENTLY COLLECTING BASIC ALLOWANCE FOR HOUSING
       (BAH) BY ENTERING INTO A FRAUDULENT MARRIAGE.

We specified review of the following issue:

       WHETHER APPELLANT WAS DENIED DUE PROCESS OF LAW WHERE
       THE LOWER COURT DECIDED APPELLANT’S CASE 1,298 DAYS
       AFTER HIS COURT-MARTIAL.

64 M.J. 440 (C.A.A.F. 2007).

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United States v. Othuru, No. 06-0768/NA

     Othuru asserts that he was prejudiced by the erroneous

admission of two testimonial hearsay statements which alleged

that his wife was actually his biological sister.   See Crawford

v. Washington, 541 U.S. 36 (2004).    He claims that the

Government cannot meet its burden of showing the error was

harmless beyond a reasonable doubt.   We conclude that the

erroneous admission of the hearsay statements was harmless

beyond a reasonable doubt.   There was also a delay of 1,298 days

between the end of Othuru’s trial and the date upon which the

Navy-Marine Corps Court of Criminal Appeals rendered a decision.

This delay raises an issue as to whether there was a denial of

Othuru’s due process right to speedy post-trial review.    Diaz v.

The Judge Advocate General of the Navy, 59 M.J. 34, 37-38

(C.A.A.F. 2003).   We conclude that there was no denial of due

process in the processing of Othuru’s appeal and therefore

affirm the United States Navy-Marine Corps Court of Criminal

Appeals.

               Harmless Beyond a Reasonable Doubt

Background

     Othuru is a native of Nigeria who immigrated to the United

States and joined the United States Navy.   He subsequently

became a citizen and applied for visas to have his parents and

wife come to the United States.   During the processing and

review of those visa applications in Nigeria, a suspicion arose



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United States v. Othuru, No. 06-0768/NA

that Othuru’s alleged wife, Michelle, was actually his

biological sister.    Under Nigerian law, a marriage to a blood

sibling is null and void.   The United States Consulate initiated

an investigation and the matter was referred to a fraud

investigator.

     The investigator interviewed Michelle and Othuru’s mother.

Both women made oral and written statements to the investigator

admitting that Michelle was Othuru’s biological sister.

Othuru’s mother stated, “Michelle is our daughter and Stanley is

our son and she is our last daughter and we are very sorry of

what happened and sending such application.”    Michelle wrote, “I

wish to confess that the petitioner Stanley Oghale Othuru is my

older brother and the first child of the family.   This marriage

is not valid.   I am very sorry.”

     At the trial the military judge admitted the two hearsay

statements over defense counsel’s objections.   The statements

were used by the Government to support charges that Othuru made

an official false statement and had engaged in BAH fraud by

claiming he was legally married to Michelle.    The military judge

concluded that Othuru’s mother and Michelle were unavailable as

witnesses and that the statements had particularized guarantees

of trustworthiness.   The statements were admitted as statements

against interest under Military Rule of Evidence (M.R.E.)




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United States v. Othuru, No. 06-0768/NA

804(b)(3) or as family history under M.R.E. 804(b)(4).    Neither

Michelle nor Othuru’s mother testified at the trial.

     On appeal to the Navy-Marine Corps Court of Criminal

Appeals, Othuru argued that the admission of the statements

violated his Sixth Amendment right to confrontation.    That court

found the statements were testimonial under Crawford and they

were erroneously admitted.2    Othuru, 2006 CCA LEXIS 139, at *6-

*7, 2006 WL 1663021, at *2.    The Navy-Marine Corps court

concluded, however, that the evidence of guilt was overwhelming

and the error was harmless beyond a reasonable doubt.    Id. at

*10, 2006 WL 1663021, at *4.

Discussion

     Othuru argues that the Court of Criminal Appeals erred in

determining that admission of the testimonial hearsay was

harmless beyond a reasonable doubt.    Although some

constitutional errors may be so fundamental as to be prejudicial

in any event, see Chapman v. California, 386 U.S. 18, 23 n.8

(1967), not all constitutional errors require per se reversal:



2
  Crawford was decided after Othuru’s court-martial. However,
neither party has appealed the ruling of the Navy-Marine Corps
Court of Criminal Appeals that the statements were testimonial
hearsay and erroneously admitted. Nor has either party argued
that the lower court’s Crawford ruling is “‘clearly erroneous
and would work a manifest injustice’” if the parties were bound
to it. United States v. Lewis, 63 M.J. 405, 412-13 (C.A.A.F.
2006) (quoting United States v. Doss, 57 M.J. 182, 185 (C.A.A.F.
2002)). Under such circumstances, we will treat the ruling as
law of the case and binding on the parties. Id. at 413.

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United States v. Othuru, No. 06-0768/NA

“[I]n the context of a particular case, certain constitutional

errors, no less than other errors, may have been ‘harmless’ in

terms of their effect on the factfinding process at trial.”

Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986) (citation

omitted).   The Supreme Court has determined “that the denial of

the opportunity to cross-examine an adverse witness does not fit

within the limited category of constitutional errors that are

deemed prejudicial in every case.”   Id. at 682 (citing

Harrington v. California, 395 U.S. 250, 254 (1969)).     As the

error here involves Othuru’s Sixth Amendment right to cross-

examine the witnesses, we may test this Confrontation Clause

error for its effect upon the trial to determine whether the

error was harmless beyond a reasonable doubt.   See id. at 684.

    The Government bears the burden of establishing that a

constitutional error has no causal effect upon the findings.

United States v. Simmons, 59 M.J. 485, 489 (C.A.A.F. 2004);

United States v. Bins, 43 M.J. 79, 86 (C.A.A.F. 1995).    To meet

this burden the Government must demonstrate that there is no

reasonable possibility that the presence of the two testimonial

statements contributed to the contested findings of guilty.

United States v. Kreutzer, 61 M.J. 293, 300 (C.A.A.F. 2005)

(citing Gutierrez v. McGinnis, 389 F.3d 300, 307-08 (2d Cir.

2004)).

     To say that an error did not “contribute” to the
     ensuing verdict is not, of course, to say that the


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United States v. Othuru, No. 06-0768/NA

        jury was totally unaware of that feature of the trial
        later held to have been erroneous. . . .

        To say that an error did not contribute to the verdict
        is, rather, to find that error unimportant in relation
        to everything else the jury considered on the issue in
        question, as revealed in the record.

Yates v. Evatt, 500 U.S. 391, 403 (1991), overruled on other

grounds by Estelle v. McGuire, 502 U.S. 62, 72 n.4 (1991).       It

is in this light then that we will not affirm Othuru’s

conviction unless we are convinced beyond a reasonable doubt

that the “constitutional error was not a factor in obtaining

that conviction.”    Kreutzer, 61 M.J. at 299.   The determination

of whether an error of constitutional dimension is harmless

beyond a reasonable doubt is a question of law that we review de

novo.    United States v. Cendejas, 62 M.J. 334, 337 (C.A.A.F.

2006); United States v. Hall, 56 M.J. 432, 436 (C.A.A.F. 2002).

        Othuru’s defense was that Michelle was actually “Michelle

Samuel” and that she was the natural daughter of a friend of

Othuru’s father.    Michelle had been selected to become Othuru’s

wife at a very young age and had been given to his parents who

raised her in their family, allegedly a common practice in

Nigeria.    Othuru argues that the Government has failed to

demonstrate that there is no reasonable possibility that the two

statements in issue contributed to the findings of guilty.

Since the statements came from his mother and Michelle and

directly contradicted his only defense, he argues that they were



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United States v. Othuru, No. 06-0768/NA

the heart of the Government’s case.   He notes that the trial

counsel highlighted the statements referring to them “[f]irst

and foremost” during closing arguments.   Othuru also notes that

the only persons who could rebut the statements were unavailable

to testify.

     The Government disputes that the statements were the focal

point of the prosecution’s case and points out that Othuru

presented a stipulation of Michelle’s expected testimony that

directly contradicted her testimonial statement.   The Government

also argues that the statements were cumulative of other

testimony and evidence which established the fraudulent and

invalid nature of Othuru’s alleged marriage to Michelle.

Finally, the Government argues that the evidence of guilt was

overwhelming even in the absence of the contested statements.

     To determine whether the constitutional error was harmless

beyond a reasonable doubt we consider the whole record.    Van

Arsdall, 475 U.S. at 681.   Reviewing this record we apply the

balancing test established by the Supreme Court:

     The correct inquiry is whether, assuming that the
     damaging potential of the cross-examination were fully
     realized, a reviewing court might nonetheless say that
     the error was harmless beyond a reasonable doubt.
     Whether such an error is harmless in a particular case
     depends upon a host of factors, all readily accessible
     to reviewing courts. These factors include the
     importance of the witness’ testimony in the
     prosecution’s case, whether the testimony was
     cumulative, the presence or absence of evidence
     corroborating or contradicting the testimony of the
     witness on material points, the extent of cross-


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United States v. Othuru, No. 06-0768/NA

     examination otherwise permitted, and, of course, the
     overall strength of the prosecution’s case.

Id. at 684; United States v. Williams, 40 M.J. 216, 218-19

(C.M.A. 1994) (citation omitted).

      Our review of the record under the Van Arsdall criteria

convinces us that any error in admitting the statements of

Michelle and Othuru’s mother was harmless beyond a reasonable

doubt.3   Although trial counsel did reference the testimonial

statements in both his opening statement and his final argument,

the record reflects that the Government’s case did not hinge

upon those statements alone.

     The Government introduced birth records through the

testimony of Surajudeen Odesanyu, the Custodian of Records in

the Lagos Island local government Birth and Death Registry.      The

birth registry reflected the birth of “Michelle Othuru” on June

30, 1980, born to Othuru’s parents, and a certified copy of a

birth certificate for “Michelle Othuru” corresponds to that

registry.   The Government also introduced hospital records

through the testimony of Abimbola Benson, the chief health

record officer at the Lagos University Teaching Hospital.     The

hospital records reflected that Atim Othuru, Othuru’s mother,

3
  Although the Court of Criminal Appeals cited the Van Arsdall
criteria, it appears to have relied upon only one criteria –-
the overall strength of the Government’s case –- in finding that
the error was harmless beyond a reasonable doubt. It is a
better practice to review and balance all of the Van Arsdall



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United States v. Othuru, No. 06-0768/NA

entered the Lagos University Teaching Hospital on June 30, 1980,

and gave birth to a female baby on that same day.   Records from

two schools successively attended by Michelle reflected that

“Michelle Othuru” was enrolled as a student, and witnesses

testified that registration at both schools required a

supporting birth certificate.   There was no challenge to the

validity of these documents.

     In contrast, the birth certificate of “Michelle Samuel”

submitted in support of Michelle’s visa application, was shown

to be fraudulent.   That birth certificate is dated April 15,

1997, and certifies that “Michelle Samuel” was born on June 30,

1980, coincidentally the same birth date of Michelle Othuru.

Mr. Paul Adigwu, a civil servant in the National Population

Commission for Nigeria, examined the exhibit and testified that

an actual birth certificate would not be a photocopy as is the

“Samuel” certificate.   He also testified that an actual birth

certificate would be smaller than the “Samuel” certificate and

would have perforations along the left side.   Adigwu further

stated that a photocopy of an actual birth certificate would not

have an original authentication stamp as does the “Samuel”

certificate.

     Adigwu noted that he knew the official who purportedly

signed the “Samuel” birth certificate and that official had not


criteria in determining whether the error was harmless beyond a


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United States v. Othuru, No. 06-0768/NA

performed official duties as a registrar since March 24, 1997,

so he could not have signed a birth certificate dated April 15,

1997.    Adigwu had compared the “Samuel” birth certificate to the

official birth registries in the local government offices and

found no entry for the birth of a child named “Michelle Samuel.”

Based on this review Adigwu testified that the “Samuel”

certificate was an invalid birth certificate.

        This Government evidence demonstrates that the testimonial

hearsay from Michelle and Othuru’s mother was not a necessary

component of the Government’s case.    Overall, the prosecution’s

evidence was strong.    The two hearsay statements were cumulative

of the documentary evidence reflecting that Michelle was the

natural daughter of Othuru’s parents.    Birth and school records

existed to show that Michelle was the daughter of Othuru’s

parents.    Additionally, the absence of any birth records and the

apparently fraudulent birth certificate demonstrate there was no

“Michelle Samuel.”    Adigwu’s testimony which indicated that

there was no such person as “Michelle Samuel” substantially

undermined the defense theory that “Michelle Samuel” had come to

live with the Othurus at a young age and been treated like a

daughter.

        While there was no cross-examination of either Michelle or

Othuru’s mother as both had been deemed unavailable, the defense



reasonable doubt.

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United States v. Othuru, No. 06-0768/NA

did read a stipulation of the expected testimony of Michelle.

That stipulation refuted the substance of Michelle’s initial

statement to the fraud investigator and claimed that she made

the statement only after several hours of being interviewed and

under pressure.   Therefore only the hearsay statement of

Othuru’s mother went unchallenged.

      Othuru argues that the circumstances of his case are

similar to those of United States v. Hall, 58 M.J. 90, 95

(C.A.A.F. 2003), where we concluded that an improperly admitted

hearsay statement from Hall’s mother was not harmless beyond a

reasonable doubt.   In Hall, the appellant had defended against

the positive results of a urinalysis by claiming that she drank

“Trimate” tea sent to her by her mother.    Id. at 92.   Hall

presented expert testimony that a positive result for cocaine

could be obtained after drinking “Trimate” tea, a tea made from

“decocainized” coca leaves.   Id.    Over defense objection, the

military judge permitted the trial counsel to present rebuttal

evidence through a law enforcement official that Hall’s mother

said she had never sent her daughter any tea.    Id.

      The military judge then instructed the members that they

could only consider the mother’s statement for its impeachment

value, and not for the truth of the matter stated.     Id. at 92-

93.   Before this court, the government conceded that the

military judge erred by admitting Hall’s mother’s statements for



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United States v. Othuru, No. 06-0768/NA

the purpose of impeaching Hall’s testimony.       Id. at 91.

Applying the factors from Van Arsdall, Hall is distinguishable.

     The testimony of Hall’s mother played a critical role in

the prosecution’s case, undermining both the factual basis for

the innocent ingestion defense and Hall’s credibility.         Hall’s

mother’s statement was not cumulative, nor was there any other

evidence refuting the mother’s statement except Hall’s own

testimony, the credibility of which had been shattered by her

mother’s statement.   The case against Hall was based upon a

positive urinalysis which we noted was not synonymous with

“conviction.”   Id. at 94.    In short, the factors balanced in

Hall stand in contrast to the overall record and factors present

in Othuru’s case.

     After considering the record as a whole and balancing the

Van Arsdall factors, we conclude that the testimonial hearsay

statements from Michelle and Othuru’s mother did not contribute

to Othuru’s conviction.   Any error in admitting these two

statements was harmless beyond a reasonable doubt.

                             Appellate Delay

Background

     Othuru was sentenced on November 23, 2002.        The convening

authority took action on June 20, 2003.        The case was docketed

before the Navy-Marine Corps court on August 21, 2003.         On

January 31, 2005, appellate defense counsel filed a brief on



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United States v. Othuru, No. 06-0768/NA

behalf of Othuru.    The Government filed its answer on November

18, 2005.    The lower court issued its decision in this case on

June 13, 2006 -- 1,298 days after Othuru was sentenced.

Discussion

        We specified an issue to consider whether Othuru was denied

due process by the 1,298 days that elapsed between his trial and

completion of appellate review by the Navy-Marine Corps court.

We review whether Othuru was denied due process de novo using

the methodology for reviewing issues of post-trial and appellate

delay set out in United States v. Moreno, 63 M.J. 129 (C.A.A.F.

2006).    We ask first whether the particular delay is facially

unreasonable.    Id. at 136.   If we conclude that the delay is

facially unreasonable, we then examine the four factors set

forth in Barker v. Wingo, 407 U.S. 514, 530 (1972):     (1) the

length of the delay; (2) the reasons for the delay; (3) the

appellant’s assertion of the right to timely review and appeal;

and (4) prejudice.    See United States v. Young, 64 M.J. 404,

408-09 (C.A.A.F. 2007); Moreno, 63 M.J. at 135-36; United States

v. Jones, 61 M.J. 80, 83 (C.A.A.F. 2005); Toohey v. United

States, 60 M.J. 100, 102 (C.A.A.F. 2004).

        The delay from trial to completion of review at the Court

of Criminal Appeals was three years, six months, and twenty

days.    In our view, this delay is facially unreasonable and




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United States v. Othuru, No. 06-0768/NA

therefore sufficient to trigger an analysis of the four Barker

factors.   This unreasonable delay would cause the first factor

-- length of the delay -- to favor Othuru.   As reason for the

delay, the Government has pointed to the length and complexity

of the record, but acknowledges that there is no reason for the

delay at the appellate level in this case.   Even assuming that

this record may have been more difficult to prepare than others,

we conclude that there is no good cause for the lengthy delay

herein and that the second factor favors Othuru.

     Othuru did not complain about the delay in his case until

he filed his initial brief at the Court of Criminal Appeals.

Such an assertion is not timely, and the third factor weighs

slightly against Othuru.   See Moreno, 63 M.J. at 138.   Finally,

we discern no basis for a finding of prejudice in this case.

Othuru has not prevailed on any other substantive issue and no

prejudice is manifest on this record.   This fourth and final

factor weighs against Othuru.    Balancing all these factors, we

conclude that there is no denial of Othuru’s due process right

to a timely review and appeal.

                             Decision

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.




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