                            UNITED STATES, Appellee


                                          v.


                      Shawn T. GOLDWIRE, Airman Basic
                         U.S. Air Force, Appellant


                                  No. 00-0349/AF

                              Crim. App. No. 32840


         United States Court of Appeals for the Armed Forces

                            Argued November 9, 2000

                            Decided June 14, 2001

     CRAWFORD, C.J., delivered the opinion of the Court, in
which GIERKE and EFFRON, JJ., joined. SULLIVAN and BAKER, JJ.,
each filed an opinion concurring in the result.

                                      Counsel

For Appellant: Captain Patience E. Schermer (argued);
Lieutenant Colonel James R. Wise and Major Stephen P. Kelly
(on brief); Lieutentant Colonel Timothy W. Murphy.

For Appellee: Captain Suzanne Sumner (argued);
Colonel Anthony P. Dattilo, Lieutenant Colonel Ronald A.
Rodgers, Major Harold M. Vaught, and Major Mitchel Neurock
(on brief); Major Lance B. Sigmon and Captain Christa S.
Cothrel.

Military Judge:       J. Jeremiah Mahoney


THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Goldwire, No. 00-0349/AF

       Chief Judge CRAWFORD delivered the opinion of the Court.

       Contrary to his pleas, appellant was convicted by officer

members at a general court-martial of rape and wrongfully

possessing alcohol while under 21 years of age, in violation of

Articles 120 and 134, Uniform Code of Military Justice (UCMJ),

10 USC §§ 920 and 934.    He was sentenced to a bad-conduct

discharge and 42 months’ confinement.    The convening authority

reduced the period of confinement to 24 months, but otherwise

approved the sentence.    The court below affirmed.    52 MJ 731

(1999).    We granted review of the following issue:

            WHETHER THE MILITARY JUDGE ERRED BY PERMITTING
            MASTER SERGEANT GREEN TO TESTIFY AS TO HIS OPINION
            AS TO APPELLANT’S CHARACTER FOR TRUTHFULNESS.

For the reasons stated herein, we hold that the military judge

did not err by permitting Master Sergeant Green to testify as to

appellant’s character for truthfulness.

                                FACTS

       On July 5, 1996, appellant and two of his friends, Airman B

and Airman M, invited Airman K, the female victim of the rape,

to attend a party at Airman B’s off-base apartment the following

day.    Airman K had never spoken to appellant before that night.

Nevertheless, she agreed to attend the party because she thought

it would be fun.

       The next morning, Airman K met appellant and his friends to

accompany them to the party.    Their plan was “to go to Airman


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United States v. Goldwire, No. 00-0349/AF

[B’s] apartment and drink.”    On the way to the party, the group

stopped at a liquor store where Airman K bought beer, a bottle

of vodka, and orange juice.    The party started that morning and

continued throughout the day.    At one point, Airman K went to

Taco Bell for lunch with appellant.    On the way back, they

stopped at a second liquor store and purchased more alcoholic

beverages for the party.    The in-party activities consisted of

drinking, listening to the radio, and playing cards and

dominoes.

       During the course of the day, appellant became very

intoxicated, to the point of becoming ill.    Airman K and Airman

B found appellant lying on the bathroom floor and helped him

into the bedroom.    By evening, Airman B, Airman M, Airman K, and

appellant remained at the apartment.    Airman B and Airman K

began to play a drinking game while Airman M watched.    During

the game, Airman K consumed orange juice and vodka.    After the

game, Airman K sat at one end of the couch with Airman M at the

other end, and Airman B sat in a chair.    The three airmen fell

asleep.    At that point, appellant was still in the bedroom.

       Airman K testified that the next thing she remembered was

waking up on the bed in the bedroom with appellant on top of

her.    She was naked from the waist down, and her shirt and bra

were pushed above her breasts.    She said appellant’s legs were

on top of hers, and his hands were at either side of her waist.


                                  3
United States v. Goldwire, No. 00-0349/AF

     Airman K testified that she attempted to push appellant

away when someone grabbed her wrists and pulled her arms back

against the bed.    She stated that she started fighting and

screaming and telling appellant to stop, and that is when

appellant started having sex with her.    She remembered appellant

having sex with her for about a minute while she was telling him

to get off of her and let her go.     Airman K also testified that

she pushed appellant and he jumped off the bed.    Airman K got

off the bed and put on some pants that were on the floor.      She

testified that appellant tried to block her from leaving the

room, but she hit him and got outside.    She headed for the guard

shack with appellant trying to get her to come back to the

apartment.    Someone passing the area stopped and gave Airman K a

ride back to her squadron.

     Airman K returned to her dormitory room at approximately

10:00 p.m.    When her roommate opened the door, Airman K was

holding her pants with one hand and crying hysterically.    After

describing what happened to her, Airman K told her roommate that

she could not believe that appellant did that to her.    Airman K

was taken to the emergency room at the base hospital, where a

test taken at 1:30 a.m. on July 7, 1996, showed her blood

alcohol level to be .142.

     Airman B testified for the Government under a grant of

immunity.    He testified that he woke up that evening with his


                                  4
United States v. Goldwire, No. 00-0349/AF

hand on Airman K’s leg.    He noticed that Airman M seemed to be

“half awake.”    Airman B proceeded to touch Airman K’s breasts

under her clothing.    Airman M did the same.   Airman B then

exposed Airman K’s breasts by pushing her shirt up over her

breasts.    He then unbuttoned and unzipped Airman K’s jeans.   He

and Airman M proceeded to remove Airman K’s jeans and underwear.

At that point, appellant came out of the bedroom and began to

fondle Airman K’s breasts, rub her legs, and kiss her neck.

There was no initial response from Airman K, but she began to

rub appellant’s neck and back when he started to have

intercourse with her.    Airman B saw Airman K wake up and tell

appellant to stop.    Appellant did so.   At that point, appellant

picked up Airman K and took her into the bedroom.     Shortly

thereafter, Airman K left the apartment followed by appellant.

     Appellant did not testify at trial.    Special Agent Donald

I. Phillips was called by the Government and testified that

following a rights advisement, appellant gave an oral statement

in December, approximately five months after the incident with

Airman K.   In the statement, appellant admitted having sexual

intercourse with Airman K.    Appellant also stated that prior to

having sex with him, Airman K had not said anything, and her

eyes were closed.    However, he claimed there were a couple of

times when his penis came out of Airman K’s vagina and she

reinserted it.


                                  5
United States v. Goldwire, No. 00-0349/AF

     During cross-examination of Agent Phillips, defense counsel

established that a number of facts contained in appellant’s

statement were consistent with a consensual act of intercourse:

Airman K was not so intoxicated that she could not participate

in foreplay; Airman K rubbed the back of appellant’s neck prior

to sexual intercourse; twice she asked appellant to stop and he

did stop; and appellant told Agent Phillips that when they

completed having sexual intercourse, they talked.

     Later, the military judge, after a timely objection by

trial defense counsel, permitted appellant’s first sergeant,

Master Sergeant (MSgt) Gary E. Green, to offer his opinion of

appellant’s character for truthfulness.    MSgt Green testified as

follows:

     Q.    Sergeant Green, in your duties as first sergeant

           have you had contacts with the accused?

     A.    Yes, I have.

     Q.    And, based on those contacts with the accused,
           have you been able to form an opinion as to his
           character for truthfulness?

     A.    Yes, I have.

     Q.    What is that opinion?

     A.    That he is not truthful.

     After admitting the opinion character evidence from

appellant’s first sergeant, the military judge gave the

following cautionary instruction to the members:


                                   6
United States v. Goldwire, No. 00-0349/AF

      Members of the court, with regard to the testimony you
      heard yesterday from Sergeant Green, Master Sergeant
      Green was permitted to express his opinion of the
      accused’s character for truthfulness for your
      evaluation in considering the weight you’ll accord the
      accused’s out of court statements as related in the
      testimony of other witnesses. As defense counsel
      attempted to point out in cross-examination of Master
      Sergeant Green, and as I subsequently confirmed with
      Master Sergeant Green after you were excused for the
      day, his opinion was based solely on one instance
      where the accused lied to a detail supervisor about
      his whereabouts. So you should consider that fact in
      determining the weight you’ll accord the opinion of
      Master Sergeant Green. In any event, you may not
      infer from his opinion or it’s basis that the accused
      is a bad person and must therefore have committed the
      offenses here charged.

      Appellant contends that when trial defense counsel cross-

examined Agent Phillips about appellant’s oral statement,

appellant was merely exercising his rights under the rule of

completeness.     As such, this did not put appellant’s credibility

in issue, and admission of MSgt Green’s opinion regarding

appellant’s character for truthfulness was improper.             Appellant

also asserts that his statement to the investigator should not

have been admitted as hearsay, but rather, should have been

admitted as an admission by a party-opponent under Mil.R.Evid.

801(d)(2)(A), Manual for Courts-Martial, United States (2000

ed.).1   Consequently, his credibility was not subject to attack

under Mil.R.Evid. 806.      Moreover, he argues that the probative




1
  All Manual provisions are identical to the ones in effect at the time of
appellant’s trial.

                                      7
United States v. Goldwire, No. 00-0349/AF

value of MSgt Green’s opinion was far outweighed by the danger

of unfair prejudice to the appellant.

     Appellant further argues that even if such character

evidence was admissible, his first sergeant lacked an adequate

foundation to offer an opinion as to appellant’s character for

truthfulness.    He points out that this Court in United States v.

Toro, 37 MJ 313, 317 (CMA 1993), concluded that “[t]o lay a

proper foundation for opinion evidence, the proponent must show

that the character witness personally knows the witness and is

acquainted with the witness well enough to have had an

opportunity to form an opinion of the witness’ character for

truthfulness.”   He argues that MSgt Green lacked such a

foundation.

                             DISCUSSION

     We review the decision by the military judge to admit the

first sergeant’s opinion evidence under the abuse of discretion

standard.   United States v. Johnson, 46 MJ 8, 10 (1997).

     This is a case where the defense counsel attempted to

advocate his cause through the use of his client’s out-of-court

statement to an investigator.   That statement contained both

exculpatory and inculpatory facts.    Trial defense counsel

elicited appellant’s exculpatory statements through his zealous

cross-examination of a government witness, and in so doing,

suggested to the factfinder that the exculpatory statements


                                  8
United States v. Goldwire, No. 00-0349/AF

deserved more weight than appellant’s inculpatory statements.

Proper resolution of the granted issue requires us to discuss a

number of interlocking rules of evidence and theories, to

include Mil.R.Evid. 106, 304, 607, and 806, as well as the

common law rule of completeness.

                       1. Rule of Completeness

     Mil.R.Evid. 106, the rule of completeness, which is taken

“without change” from the federal rule (Drafters’ Analysis of

Mil.R.Evid. 106, Manual, supra at A22-4), provides:

            When a writing or recorded statement or part
            thereof is introduced by a party, an adverse
            party may require that party at that time to
            introduce any other part or any other writing
            or recorded statement which ought in fairness
            to be considered contemporaneously with it.

The rule of completeness is a rule that governs the scope of

evidence.    It particularizes the type of evidence (written and

oral), the relationship between when all or part of a written or

oral statement may be introduced, and the operation of

procedural rules.

     Moreover, in Beech Aircraft Corp. v. Rainey, 488 U.S. 153,

172 (1988), the Court indicated that Fed.R.Evid. 106 “partially

codified” the common law completeness doctrine.    Under the

common law rule of completeness, “[t]he opponent, against whom a

part of an utterance has been put in, may in his turn complement

it by putting in the remainder, in order to secure for the



                                   9
United States v. Goldwire, No. 00-0349/AF

tribunal a complete understanding of the total tenor and effect

of the utterance.”     Id. at 171, quoting 7 Wigmore, Evidence

§ 2113 at 653 (Chadbourn rev. 1978).

     The rule of completeness must be examined in terms of the

common law rule and the authority of the judge under Fed.R.Evid.

611(a).   Under either the federal or military rules version,

Rule 106 only applies to written or recorded statements.

However, under the common-law version, and at the discretion of

the judge under Rule 611(a), the rule is applicable to oral

testimony as well.     See, e.g., United States v. Alvarado, 882

F.2d 645, 650 n.5 (2d Cir. 1989).

     Under Fed.R.Evid. 106 and its military counterpart, the

opponent may demand that the proponent expand the scope of

questioning and introduce the entire statement to avoid creating

a misleading impression.      If the defense in this case had

required the prosecution to introduce the remainder of

appellant’s statement to Agent Phillips, that would not have

prevented the application of Rule 806, as explained below.2

     Here, the defense did not require the prosecution to

introduce a part of the statement during its direct examination.

Rather than invoking Rule 106, the defense applied the common

law completeness doctrine and waited for their own stage of


2
  Fed.R.Evid. 806 and Mil.R.Evid. 806 are the same. See Drafters’ Analysis of
Mil.R.Evid. 806, Manual for Courts-Martial, United States (2000 ed.) at A22-
57.

                                     10
United States v. Goldwire, No. 00-0349/AF

presentation of proof.        Since the prosecution had introduced

part of the statement, the defense could introduce the

remainder, since there was no question as to its relevance.

        The defense argues that since they introduced the rest of

the statement through their cross-examination of Agent Phillips,

that precluded the Government from relying on Rule 806.              But had

the entire statement been introduced by the prosecution, Rule

6073 would not have precluded them, as the proponent of the

evidence, from impeaching their own witness.            But as we

indicated, the judge has discretion under Rule 6ll(a)4 and Rule

4035 to exclude the evidence when its introduction may be unfair

to a party, a waste of time, or confusing to the jury.

        Thus, Rule 106 permits the defense to interrupt the

prosecution’s presentation of the case as to written and

recorded statements.        See, e.g., United States v. Branch, 91 F.

3d 699 (5th Cir. 1996)(some circuits have held that Rule 106 does

not apply to testimony concerning oral conversations).

        It must be recognized that some states have broadened their

counterpart to Fed.R.Evid. 106 by covering all statements,

whether or not written or recorded.           See Iowa R. Evid. 106;

Oregon Evid. Code, Rule 106.         We need not decide this issue on

the common law rule because Mil.R.Evid. 304(h)(2) provides:


3
    Mil.R.Evid. 607 and Fed.R.Evid. 607 are the same. Id. at A22-46.
4
    Mil.R.Evid. 611(a) and Fed.R.Evid. 611(a) are the same. Id. at A22-47.
5
    Mil.R.Evid. 403 and Fed.R.Evid. 403 are the same. Id. at A22-34.

                                       11
United States v. Goldwire, No. 00-0349/AF

          If only part of an alleged admission   or
          confession is introduced against the   accused,
          the defense, by cross-examination or   otherwise,
          may introduce the remaining portions   of the
          statement.

The Drafters’ Analysis of this rule states:

          Rule 304(h)(2) allows the defense to complete
          an incomplete statement regardless of whether
          the statement is oral or in writing. As Rule
          304(h)(2) does not by its terms deal only with
          oral statements, it provides the defense in this
          area with the option of using Rule 106 or 304(h)
          (2) to complete a written statement.

Manual, supra at A22-13.    Accordingly, under the Military Rules

of Evidence, appellant’s entire statement was properly before

the factfinders.

           2. Impeachment of Non-Testifying Declarant

     Mil.R.Evid. 806 provides in part:

        When a hearsay statement, or a statement defined
     in Mil.R.Evid. 801(d)(2)(C), (D), or (E), has been
     admitted in evidence, the credibility of the declarant
     may be attacked, and if attacked may be supported,
     by any evidence which would be admissible for those
     purposes if [the] declarant had testified as a
     witness.

By its terms, Rule 806 applies to the introduction of “a hearsay

statement, or a statement defined in Mil.R.Evid. 801(d)(2), (C),

(D), or (E).”

     The first part of the rule would encompass a “hearsay”

admission by appellant.    When considering adoption of Rule 806,

the Senate Judiciary Committee “considered it unnecessary to

include statements contained in rule 801(d)(2)(A) and (B) -- the


                                 12
United States v. Goldwire, No. 00-0349/AF

statement by the party-opponent himself or the statement of

which he has manifested his adoption -- because the credibility

of the party opponent is always subject to an attack on his

credibility [sic].”    S.Rep. No. 93-1277 (1974), reprinted in

1974 U.S.C.C.A.N. 7051, 7069 n.28.    This is not a case where the

prosecution sought to introduce the accused’s inconsistent

statement under Mil.R.Evid. 801(d)(2)(A) or (B) for the purpose

of impeaching the accused under Mil.R.Evid. 806.    In these

situations, the trial judge has the discretion under Rule 403 to

balance equities and control the introduction of evidence.      See

United States v. Dent, 984 F.2d 1453, 1460 (7th Cir. 1993).

       Although it was able to find no military cases that address

this exact issue, the Court of Criminal Appeals resolved that it

was not reasonable to conclude that attacks on the credibility

of the speaker’s statement are excluded merely because the

statement is admitted as made by a party-opponent.    52 MJ at

733.    In so doing, the lower court relied on the rationale of

the Senate Judiciary Committee, as well as the holdings of two

federal Circuit Courts that previously confronted the very same

issue.    Id.; United States v. Shay, 57 F.3d 126, 132 (1st Cir.

1995); United States v. Velasco, 953 F.2d 1467, 1473 (7th Cir.

1992).    We agree with both the Court of Criminal Appeals and the

First and Seventh Circuits.    When the defense affirmatively

introduces the accused’s statement in response to the


                                 13
United States v. Goldwire, No. 00-0349/AF

prosecution’s direct examination, the prosecution is not

prohibited from impeaching the declarant under Mil.R.Evid. 806.

                         3. Character Evidence

     Responding to appellant’s assertion that the first sergeant

lacked a sufficient basis to provide an opinion on appellant’s

character for truthfulness, the court below found as follows:

                In reviewing the facts here, the evidence
             demonstrates that the first sergeant’s opinion
             was based on his personal knowledge that the
             appellant lied to his supervisor, not
             speculation. The lie involved the appellant’s
             military duties and was a distinct offense under
             the UCMJ. The appellant lied to his supervisor
             beforehand, in order to avoid duty. The lie
             occurred after the appellant was already under
             investigation for rape. Under these
             circumstances, we find the first sergeant was
             qualified to offer an opinion concerning the
             appellant’s character for truthfulness.

52 MJ at 735.

     Mil.R.Evid. 405(a) permits the introduction of both

reputation and opinion type evidence.       See United States v.

Breeding, 44 MJ 345, 350 (1996).       To introduce this evidence, it

must be shown that the witness was a member of the community

long enough to have become familiar with the accused’s

reputation in the community, or that the witness knew the

accused long enough to have formed an opinion as to his

character.    Id.   Certainly, a first sergeant knew appellant long

enough to have formed an opinion as to appellant’s truthfulness.




                                  14
United States v. Goldwire, No. 00-0349/AF

However, Mil.R.Evid. 405(a) and (b)6 preclude the introduction of

specific acts to establish a witness’s credibility.

      The unique nature of military society does not justify a

finding that a single lie would constitute an adequate basis for

opinion testimony regarding a witness’s character for

truthfulness.     The standard is whether the circumstances --

including the circumstances surrounding a particular aspect of

military life -- provide a sufficient basis to conclude that a

single statement is sufficient to form an opinion as to

credibility.    The first sergeant was acquainted with appellant

through his role as first sergeant and as an investigator and

could form an opinion of appellant’s character through that

exposure.    In this case, before the judge allowed the witness to

testify in front of the members, he limited the testimony and

excluded the details that were used to establish an adequate

foundation.

      MSgt Green testified out of the hearing of the members that

he was appellant’s first sergeant at the 338th Training Squadron,

Keesler Air Force Base.       He addressed appellant’s involvement

with underage drinking at his off-post apartment.            He saw

appellant numerous times, both before and after the date of the

offense, and was personally involved with appellant on at least



6
  Mil.R.Evid. 405(a) and (b) are the same as Fed.R.Evid. 405(a) and (b).   Id.
at A22-35.

                                     15
United States v. Goldwire, No. 00-0349/AF

two occasions, including disciplinary actions against appellant.

As the first sergeant, he investigated the incidents involving

appellant.

     We hold that the prosecution established an adequate

foundation for the first sergeant’s opinion as to appellant’s

untruthfulness, and that the judge correctly precluded specific

instances of misconduct to be introduced to support that

opinion.

                            DECISION

     The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




                                16
United States v. Goldwire, 00-0349/AF




    SULLIVAN, Judge (concurring in the result):


    Appellant was charged with the rape of Airman Christine K in

the summer of 1996 at the off-base apartment of Airman B in

Biloxi, Mississippi.   The victim testified at this court-martial,

but appellant did not.   His version of what happened that night

was contained in oral statements to police investigators, which

were evidenced at trial and partially corroborated by the

testimony of Airman B.   Appellant challenges on appeal, as he did

at trial, the military judge’s decision to permit the prosecution

to admit opinion testimony from Master Sergeant Green that he

(appellant) had a poor character for truthfulness. (R. 303-04)

The Government responds that, even though appellant was not a

witness at this court-martial (see Mil. R. Evid. 607 and 608(a),

Manual for Courts-Martial, United States (1995 ed.) (a witness

may be impeached by opinion testimony on poor character for

truthfulness)), the challenged impeachment testimony was

admissible under Mil. R. Evid. 806.



    The particular question before this Court is whether Master

Sergeant Green’s testimony concerning appellant’s poor character

for truthfulness was admissible under Mil. R. Evid. 806.    It

states:


          Rule 806. Attacking and supporting
          credibility of declarant
United States v. Goldwire, 00-0349/AF



                 When a hearsay statement, or a statement
               defined in Mil. R. Evid. 801(d)(2)(C),
               (D), or (E), has been admitted in
               evidence, the credibility of the declarant
               may be attacked, and if attacked may be
               supported, by any evidence which would be
               admissible for those purposes if [the]
               declarant had testified as a witness.


Since no out-of-court statement by appellant’s representative,

agent or servant, or co-conspirator was admitted in this case

under Mil. R. Evid. 801(d)(2)(C),(D), or (E), an obvious question
           1
remains.        Were “hearsay statement[s]” of appellant admitted in

this case which would allow the admission of poor character
                                                                        2
opinion testimony to impeach appellant under Mil. R. Evid. 806?



    Turning to the record of trial, I note that the alleged

victim testified she awoke in a bed in Airman B’s bedroom, with

appellant on top of her. (R. 206-07)       She testified that someone

grabbed her wrists, and appellant proceeded to engage in sexual

1
   Several Courts of Appeals have also held that Fed. R. Evid.
806 permits the impeachment of an accused whose out-of-court
statement is introduced by the Government as admissions of a
party-opponent under Fed. R. Evid. 801(d)(2)(A) or (B). These
statements are not technically hearsay, nor otherwise expressly
permitted to be impeached under this rule. See United States v.
Shay, 57 F.3d 126, 131-32 (1st Cir. 1995); United States v.
Valesco, 953 F.2d 1467, 1473 n.5 (7th Cir. 1992). We need not
decide this question today.
2
   This rule has been severely criticized because, on its face,
it allows the prosecution to place an accused’s credibility in
issue by introducing hearsay statements favoring an accused. See
Margaret M. Cordray, Evidence Rule 806 and the Problem of
Impeaching the Nontestifying Declarant, 56 Ohio St. L.J. 495,
501-02, 512-18, 542-46 (1995).


                                     2
United States v. Goldwire, 00-0349/AF


intercourse with her despite her verbal protests and physical

resistance. (R. 208)   She further stated that appellant stopped

after a minute, and she attempted to leave the room.   Appellant

prevented her, but she ultimately succeeded in leaving. (R. 209)



   Appellant did not testify in this case, but evidence of his

out-of-court statements was admitted which asserted that he

engaged in sexual intercourse on a couch in Airman B’s living

room with the victim, who he discovered there half-naked after a

night of heavy drinking.   He also asserted that she gave him

physical encouragement (rubbed his neck) before the sexual

intercourse and physical assistance during that sexual

intercourse (reinserted his penis in her vagina). (R. 179)

Finally, he stated that he later carried the apparently

intoxicated woman into Airman B’s bedroom and then went outside

and smoked a cigar (R. 184), but he did not directly comment on

the victim’s allegation of rape in Airman B’s bedroom.



   Hearsay, as defined in the military rules of evidence, is “a

statement, other than the one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove

the truth of the matter asserted.”   Mil. R. Evid. 801(c).

However, it does not include admissions by a party-opponent

(i.e., criminal defendant) offered against that party.    See Mil.

R. Evid. 801(d)(2)(A).   Here, the Government first evidenced



                                 3
United States v. Goldwire, 00-0349/AF


certain oral admissions made by appellant on December 17, 1996,

to Special Agent (SA) Phillips, i.e., that he engaged in sexual

intercourse with the victim on the night in question; he had no

verbal consent to do so; her eyes were closed until she told him

to stop; and he knew that she previously engaged in heavy

drinking.   SA Phillips’ testimony was some evidence of an

admission of guilt to rape by appellant.   See United States v.

Grier, 53 MJ 30 (2000) (sexual intercourse with person

incapacitated by alcohol may be considered rape).   As such, it

was not hearsay (Mil. R. Evid. 801(d)), and therefore, arguably

not subject to impeachment under Mil. R. Evid. 806.   But see note

1, supra.



    Nevertheless, the defense adduced additional testimony from

SA Phillips concerning appellant’s statement on December 17,

1996. (R. 182-86)   He testified on cross-examination that

appellant disclosed other details about this incident, i.e.,

appellant said before engaging in sexual intercourse that he

kissed the alleged victim for a period of time, and she rubbed

his neck.   The defense also adduced testimony that appellant said

he forthrightly confronted the confused complainant outside the

apartment after the incident and asked her if she recalled

engaging in sexual intercourse with him, and that she physically

assisted during the sexual act. (R. 187)




                                 4
United States v. Goldwire, 00-0349/AF


   In my view, the defense was affirmatively using the evidence

of appellant’s out-of-court statements to SA Phillips for the

truth of the matters asserted in those statements.   See Mil. R.

Evid. 801(c).   The military judge reached the same conclusion.

(R. 304)   Defense counsel also expressly made this point in his

closing argument:



           The bottom line as you look at the
           evidence in a number of different ways,
           and the Government says that this is the
           road that you’ve got to follow, this is
           what all the evidence shows, there’s
           another road, and perhaps a road a little
           bit less traveled, that goes off of that,
           and that’s a road you’ve got to go down to
           look at all the evidence and say, “Well,
           we’ve got some doubts here.” Go down that
           road with all those doubts. Because the
           bottom line, members, is what happened
           that evening, yes, was unfortunate. It
           was very unfortunate. And you have a case
           here where you have two people
           realistically who really believe what
           happened. Airman Knox isn’t up here lying
           to you . She’s telling you things as best
           as she can remember, as best as she can
           piece them together. But Airman Goldwire,
           and his statements to Airman Phillips, to
           the OSI, likewise is telling you he
           thought he had consent, and for this 19-
           year-old airman it was reasonable. Thank
           you.


(R. 387)(emphasis added).



In view of appellant’s affirmative use of the out-of-court

statement for hearsay purposes, I conclude impeachment by

evidence of his poor character for trustworthiness was admissible


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United States v. Goldwire, 00-0349/AF


under Mil. R. Evid. 806.   See United States v. Bovain, 708 F.2d

606, 613 (11th Cir. 1983); see generally Cordray, note 2, supra

at 543-46, 553.



    In closing, I must note my disagreement with the majority’s

discussion and use of Mil. R. Evid. 106 and the common law

doctrine of completeness to decide this case.   Mil. R. Evid. 106

extends only to a “writing or recorded statement,” whereas

appellant’s case concerns a verbal statement.   Moreover, Mil. R.

Evid. 101(b)(2) provides that “[i]f not otherwise prescribed in

[the] Manual,” the rules of evidence at common law may be

applicable.   As noted below, a particular military rule of

evidence covers appellant’s case.



    Admittedly, appellant did argue to the military judge that he

was entitled to question SA Phillips on the remaining portions of

his December statement to avoid misleading the members that it

only contained admissions helpful to the Government. (R. 186)

However, he used this evidence to exculpate himself based on the

truth of the facts asserted in those portions of the statement.

It is the use of these statements for this purpose which exceeds

the scope of the common law doctrine of completeness.   See United

States v. Collicott, 92 F.3d 973, 982-83 (9th Cir. 1996)

(remaining exculpatory portions of statement containing

admissions previously evidenced by Government are inadmissible



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United States v. Goldwire, 00-0349/AF


hearsay, even if permitted under Fed. R. Evid. 106); see

generally 7 Wigmore, Evidence § 2113 at 659-60 (Chadbourn rev.

1978).



    I believe Mil. R. Evid. 304(h)(2) is the applicable rule for

those portions of his statement used to exculpate himself, not

Mil. R. Evid. 106 or the common law rule of completeness.      It

broadly states:   “Completeness.   If only part of an alleged

admission or confession is introduced against the accused, the

defense, by cross-examination or otherwise, may introduce the

remaining portions of the statement.”      It does not have the

limitations of the common law rule of completeness.      See Wigmore,

supra, and United States v. Velasco, 953 F.2d 1467, 1476 n.9 (7th

Cir. 1992) (evidence of remaining portion of statement not per se

admissible under Fed. R. Evid. 106 unless relevant and necessary

to explain portions of statement previously admitted).



    I would hold that admission of appellant’s statements under

Mil. R. Evid. 304(h)(2) permits the introduction of impeaching

evidence under Mil. R. Evid. 806.      These statements were

subsequently used by the defense for the truth of the matter

asserted in them so as to exculpate appellant.      Accordingly, they

were hearsay, and their impeachment was authorized by Mil. R.

Evid. 806.   See Cordray, note 2, supra at 516-17; see also United

States v. Ortega, 203 F.3d 675, 682 (9th Cir. 2000).



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United States v. Goldwire, No. 00-0349/AF


BAKER, Judge (concurring in the result):

     While I concur in the result reached by the majority,

I write separately because I believe that reference to

Mil.R.Evid. 106 and the common law doctrine of completeness

is unnecessary for resolution of the issues in this case.

The majority suggests that the trial defense counsel relied

on the common law doctrine to elicit additional oral

statements made by appellant to Special Agent Phillips.

The majority opinion then discusses Rule 106 and its

relationship to the common law doctrine of completeness.

Rule 304 is a passing reference: “We need not decide this

issue on the common law rule because Mil.R.Evid. 304(h)(2)

provides….”    MJ at (12).   Mil.R.Evid. 304(h)(2) is the

more relevant rule to military practice.

     Rule 106 by its express terms is limited to writings

and recorded statements.   As the majority recognizes, the

rule is adopted without change from its federal

counterpart, so one can presume that the President intended

to adopt the purpose and rationale of Fed.R.Evid. 106.    The

Advisory Committee’s Note to Fed.R.Evid. 106 states, “For

practical reasons, the rule is limited to writings and

recorded statements and does not apply to conversations.”

56 F.R.D. 183, 201 (emphasis added).




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United States v. Goldwire, No. 00-0349/AF


The language of Mil.R.Evid. 106 and Fed.R.Evid. 106

notwithstanding, the majority argues that a military judge

can fit oral statements into Rule 106 by exercising the

authority granted in Mil.R.Evid. 611 to control the mode

and presentation of evidence.       However, it is unnecessary

to have a military judge fit this square peg into that

round hole since Rule 304(h)(2), on its face, expressly

allows completeness of oral statements.       Unlike Mil.R.Evid.

106, there is no federal counterpart to Mil.R.Evid.

304(h)(2).   Furthermore, long ago, the President recognized

the need to provide counsel an opportunity to show the

remainder of an accused’s oral or written confession or

admission when only part of it was introduced.       See para.

140a, Manual for Courts-Martial, United States, 1951.

     Over reliance on the common law doctrine carries with

it some potential for confusion as well.       Wigmore suggests

there are certain limitations that pertain to use of the

doctrine.    A significant one is that “the remainder [of the

statement] thus received merely aids in the construction of

the utterance as a whole, and is not in itself testimony.”

7 Wigmore, Evidence § 2113 at 659 (Chadbourne rev. 1978)

(emphasis added).   In other words, the common law doctrine

did not contemplate substantive use of the statements used

to complete the utterance.    Wigmore goes on to state, “The


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United States v. Goldwire, No. 00-0349/AF


remainder of the utterance, regarded as an assertion of the

facts contained in it, is merely a hearsay statement, and

as such has no standing.” Id. Mil.R.Evid. 304(h)(2), on the

other hand, is specific to admissions and confessions,

which are not hearsay and are introduced precisely for

their substantive value.

     In sum, the typical situation will be that encountered

by the defense counsel in this case, where the remainder of

an accused’s oral admissions are at issue.    It is difficult

to believe that counsel would have been contemplating the

intricate intersection between Rule 106 and Wigmore’s

common law approach when counsel had a simple, explicit

rule of evidence close at hand.

     Finally, I join Judge Sullivan in his analysis of

Mil.R.Evid. 806 and the conclusion reached.




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