                        UNITED STATES, Appellee

                                     v.

                      Bobby D. SEAY II, Sergeant
                         U.S. Army, Appellant

                              No. 03-0246/AR

                         Crim. App. No. 9900779

       United States Court of Appeals for the Armed Forces

                      Argued April 20, 2004

                      Decided June 30, 2004


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



                                  Counsel

For Appellant: Captain Fansu Ku (argued); Colonel Robert D.
Teetsel and Lieutenant Colonel Mark Tellitocci (on brief);
Lieutenant Colonel E. Allen Chandler, Jr.

For Appellee: Captain Michael D. Wallace (argued); Colonel
Lauren B. Leeker, Lieutenant Colonel Margaret B. Baines, and
Lieutenant Colonel Virginia G. Beakes (on brief).

Military Judges: R. J. Hough and P. J. Parrish.




  THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Seay, No. 03-0246/AR


     Chief Judge CRAWFORD delivered the opinion of the Court.

     Contrary to his pleas, Appellant was convicted of

conspiracy, premeditated murder, larceny, and kidnapping, in

violation of Articles 81, 118, 121, and 1341.   The convening

authority approved the sentence of confinement for life, a

dishonorable discharge, total forfeitures, and reduction to the

lowest enlisted grade.   The Army Court of Criminal Appeals

affirmed the findings and sentence in an unpublished opinion.

This Court subsequently granted review of the following issues:

     I.    WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION
           IN NOT SUPPRESSING APPELLANT’S PRETRIAL
           STATEMENTS TO ARMY INVESTIGATORS.

     II.   IF APPELLANT’S PRETRIAL STATEMENTS SHOULD HAVE
           BEEN SUPPRESSED (ISSUE I), WHETHER THE REMAINING
           EVIDENCE IS LEGALLY SUFFICIENT TO SUPPORT
           FINDINGS OF GUILTY TO ALL CHARGES AND
           SPECIFICATIONS.

     III. WHETHER PORTIONS OF APPELLANT’S STATEMENTS TO
          ARMY INVESTIGATORS WERE UNCORROBORATED, AND, IF
          SO, WHETHER THE MILITARY JUDGE ERRONEOUSLY
          PERMITTED THE PANEL MEMBERS TO CONSIDER THE
          PERTINENT PORTIONS OF APPELLANT’S STATEMENTS
          REGARDING THE CHARGE OF LARCENY.

     IV.   WHETHER THE EVIDENCE IS LEGALLY SUFFICIENT TO
           SUPPORT A FINDING OF GUILTY TO THE CHARGE THAT
           APPELLANT STOLE PFC CHAFIN’S WALLET.

     V.    WHETHER THE EVIDENCE IN THIS CASE IS LEGALLY
           SUFFICIENT TO SUPPORT A FINDING TO THE CHARGE
           THAT APPELLANT KIDNAPPED PFC CHAFIN.



1
  Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C.
§§ 881, 918, 921, and 934 (1994).

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United States v. Seay, No. 03-0246/AR


For the reasons set forth below, we affirm the findings and

sentence.

                               FACTS

     On the evening of August 29, 1997, Appellant, PFC Jason

Chafin, and Sergeant Darrell Shelton went to Appellant’s

apartment near Colorado Springs, Colorado, after a fight

occurred in the local barracks between Chafin and another man.

After about 30 minutes – during which Chafin passed out from

drinking, and then reawakened – the three left Appellant’s

apartment in Appellant’s truck.   Shelton drove the truck, with

Chafin seated up front in the passenger seat and Appellant

seated behind Chafin armed with a length of cord.

     While driving, Shelton directed Appellant to wrap the cord

around Chafin’s neck and attempt to strangle him.    Appellant

complied, but was unsuccessful in strangling Chafin, who jumped

out of the truck and fled.   Shelton ran after Chafin, caught

him, and pinned him to the ground.     Once Appellant reached them,

Shelton handed Appellant the Gerber knife Appellant kept in his

truck, and instructed Appellant to stab Chafin.    According to

Appellant, Chafin asked him, “What have I ever done to you, Bo?”

and Appellant whispered back, “Ask the Lord for forgiveness.”

Appellant stabbed Chafin in the neck and ribs, and then passed

the knife to Shelton, who stabbed Chafin a number of times.




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     Appellant and Shelton fled the scene, leaving Chafin’s body

in a nearby field.   They returned to the scene several days

later to take Chafin’s wallet and its contents.   Chafin’s

skeletal remains were discovered by hunters four months later.

     Upon watching the local media coverage of Chafin’s murder,

Appellant’s wife, Wendy, realized that on the night of the

murder, Chafin was in her apartment in the company of her

husband and Shelton.   With this recollection, Wendy became

suspicious of her husband’s potential involvement in Chafin’s

murder.   Acting on her suspicions, Wendy contacted Detective

Derek Graham of the Colorado Springs Police Department on

January 6, 1999.

     Wendy told Graham that during the 1997 Labor Day weekend,

there was a young man in her apartment whom she had not seen

before and whom she subsequently realized was Chafin.    She

stated that Chafin was very drunk, and that Appellant and

Shelton were very rude to him and began kicking him.    After 20

to 30 minutes, Appellant, Shelton, and Chafin left the

apartment.   Appellant returned to the apartment several hours

later, at which time Wendy overheard Shelton say something to

the effect, “I can’t believe you did that.”

     Over the next several months, she became suspicious because

of various events.   She overheard Appellant say to Shelton, “No,




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United States v. Seay, No. 03-0246/AR


there hasn’t been anything on the news about it.   There’s

nothing in the paper about it.”

     Wendy also described a telephone call between Appellant and

his parents, during which she overheard Appellant stating that

“he had done something very bad that was possibly going to get

him the death penalty.”   Wendy further noted to Graham that

while she and Appellant watched a movie in which two detectives

treated a suspect rudely, Appellant said to her, “You know if

someone ever treated me like that, I would kill them.”   Wendy

responded to the effect, “Well you know you can’t do that,” to

which he replied, “Well, I already have gotten away with it.”

     Finally, Wendy told Graham that Appellant on several

occasions asked her to lie to authorities if ever she were

questioned, by saying that Chafin was not in their home on the

night of the murder.   He told her: “Do you remember that night

that [Shelton] and I came home?   It was just the two of us, you

remember that?”   Appellant also told Wendy that if the police

were to ask about his knife, she should tell them he lost it.

  A. First Questioning of Appellant

     After speaking with Wendy Seay, Detective Graham went to

Appellant’s residence.    He told Appellant he was investigating

the murder of Jason Chafin and asked if Appellant would “be

willing to come to the police operation center for an

interview.”   Appellant agreed, and because Appellant’s car was


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United States v. Seay, No. 03-0246/AR


out of commission, the police gave him a ride to the police

station.   Upon Appellant’s arrival at the station, the police

informed him of his rights, which Appellant waived.   When Graham

indicated to Appellant that Shelton had been implicated in

Chafin’s murder, Appellant invoked his right to silence.   Graham

accordingly terminated the interview and drove Appellant home.

With Appellant’s permission, the police videotaped and

audiotaped the interview.

  B. Second Questioning of Appellant

     After Detective Graham returned to his office, he decided

to have Wendy make recorded “pretext phone calls” to Appellant,

in the hopes of obtaining a confession.   As a courtesy, Graham

called Special Agent Chris Barone of the Army Criminal

Investigations Command (CID) to inform him of Wendy’s

implication of Appellant and the planned pretextual calls.

Graham invited both Barone and CID Special Agent Martinez to

observe the calls.   Although Graham set the ground rules for the

pretextual phone calls, Barone and Martinez offered some

suggestions, which Graham accepted or rejected at his

discretion.

     Pursuant to this plan, Wendy used a phone at the Colorado

Springs Police Department office to call Appellant three times

at his apartment, over the course of three hours.   Despite

Wendy’s persistent inquiries, Appellant did not confess to the


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United States v. Seay, No. 03-0246/AR


murder.   Instead, Appellant stated that he wanted to talk to

Wendy face to face and during the telephone conversations, he

made the following statements to her about obtaining a lawyer:

     You know what – you think I need to get a lawyer.

     Well, why can’t I just get a lawyer and not answer no more
     questions?

     Why don’t I just get a lawyer and not answer any more
     questions?

     I think I need to get a lawyer, Wendy.

     [B]ut for my safety and your safety getting a lawyer might
     be the best thing to do right now and cooperate with the
     police through a lawyer and not one on one.

     Can you please wait . . . [s]o I can get a lawyer.

     I think I need to get a lawyer and you can ask if you can
     go home and tell them.

     Well, everything that’s going on tonight.    That’s why I
     need a lawyer.

     Can you tell them that things are this serious and I might
     need to get a lawyer?

     I just ask that you tell the police that . . . [you’ve]
     been trying to talk to [your] husband. It seems that he
     should get a lawyer.

     Can you please [tell the police] . . . that [your husband]
     thinks he needs a lawyer.

Appellant asked Wendy to call him back after the first call

ended.    After the last call, Wendy was videotaped to recount

what occurred during the conversations.   Both local and military

authorities agreed at that point that the CID should take over

the investigation entirely, which it did.


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United States v. Seay, No. 03-0246/AR


    C. Third Questioning of Appellant

       Concerned for Wendy’s safety, the CID suggested she meet

with Appellant in the CID office rather than at her home.     Wendy

called Appellant from the CID office, and he agreed to meet her

there.    Appellant arrived approximately 20 minutes later, at

around midnight on January 7, 1999.     CID agents frisked

Appellant for weapons, and secured his keys and military

identification.    One agent then led Appellant to the room where

Wendy was waiting, which was monitored by an internal video

camera and microphone.    Appellant was told that his conversation

would be recorded.    Agent Martinez decided to terminate the

conversation when he heard Wendy ask the potentially

incriminating question of whether Shelton had planned the

murder.

       After the conversation ended, Martinez advised Appellant

that his cooperation would be appreciated and told him “that

anything he said previous to that, we weren’t going to use.”

Appellant agreed to cooperate and was advised by Agent Barone of

his rights under Article 31(b)2, which Appellant waived.     The

agents asked Appellant to tell them what happened, and Appellant

gave a detailed narrative of the murder.    Appellant thereafter

reviewed his statement, initialed each page, and swore to its

accuracy.    Later, Barone asked Appellant to provide a second

2
    UCMJ, 10 U.S.C. § 831(b) (1994).

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United States v. Seay, No. 03-0246/AR


sworn statement of confession, as well as a videotaped statement

describing the murder.    After again waiving his Article 31(b)

rights, Appellant gave the requested statements.

                              DISCUSSION

          Issue I.   Admissibility of Appellant’s Confession

       The Supreme Court has held that a subsequent administration

of rights warnings may remove the taint when a suspect has

already given an unwarned but uncoerced statement.    Appellant

invoked his right to remain silent before returning to his home

following a warned non-custodial interrogation by civilian

police.    During several pretextual and unwarned telephone calls

from his spouse (acting at the request of civilian and military

law enforcement officers engaged in a joint investigation),

Appellant then made several references as to whether he should

get a lawyer.    Appellant subsequently presented himself to

military authorities, waived his rights after receiving a

cleansing warning, and confessed to Chafin’s murder.    The

question before us is whether Appellant’s confession is

admissible.    We conclude that under the facts of this case,

Appellant’s confession was properly admitted into evidence.

       “A military judge’s decision to admit or exclude evidence

is reviewed for an abuse of discretion.”3    “A military judge

abuses his discretion when his findings of fact are clearly

3
    United States v. McCollum, 58 M.J. 323, 335 (C.A.A.F. 2003).

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United States v. Seay, No. 03-0246/AR


erroneous, when he is incorrect about the applicable law, or

when he improperly applies the law.”4

     The Fifth Amendment in pertinent part guarantees that no

suspect “shall be compelled in any criminal case to be a witness

against himself.”   The Supreme Court has interpreted the Fifth

Amendment privilege against self-incrimination to encompass two

distinct rights: the right to silence and the right to counsel

specifically during pretrial questioning.5     The privilege against

self-incrimination is further protected by Articles 27 and 316

and Military Rules of Evidence [hereinafter M.R.E.] 305(e) and

305(f).

     Given the inherently compelling pressures of custodial

police interrogation, the Court enunciated the requirement, in

pertinent part, that “if a person in custody is to be subjected

to interrogation, he must first be informed in clear and

unequivocal terms that he has the right to remain silent,”7 and

“has the right to consult with a lawyer and to have the lawyer

with him during interrogation.”8     Even after Miranda warnings are


4
  United States v. Roberts, 59 M.J. 323, 326 (C.A.A.F. 2004).
5
  Davis v. United States, 512 U.S. 452, 457 (1994); Edwards v.
Arizona, 451 U.S. 477 (1981); Miranda v. Arizona, 384 U.S. 436
(1966). The Fifth Amendment right to counsel applies to
pretrial interrogation. The Sixth Amendment provides criminal
accused the right to counsel during criminal proceedings.
United States v. Scott, 51 M.J. 326, 329 (C.A.A.F. 1999).
6
  UCMJ, 10 U.S.C. §§ 827 and 831 (1994).
7
  Miranda, 384 U.S. at 468.
8
  Id. at 471.

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United States v. Seay, No. 03-0246/AR


given and waived, a suspect may change his mind during

questioning and assert these rights.    The Supreme Court in

Miranda twice emphasized that if the suspect invokes the right

to remain silent or the right to speak to a lawyer, “the police

may not question him.”9

     Addressing the concern that the warning requirements would

interfere with lawful police investigations, the Supreme Court

cited the rights warnings required under Article 31(b) since the

adoption of the Uniform Code of Military Justice in 1951.10

Under Article 31(b):

          No person subject to this chapter may
     interrogate, or request any statement from an accused
     or person suspected of an offense without first
     informing him of the nature of the accusation and
     advising him that he does not have to make any
     statement regarding the offense of which he is accused
     or suspected and that any statement made by him may be
     used as evidence against him in a trial by court-
     martial.

In United States v. Tempia,11   the military explicitly adopted

the Miranda warning requirements.

     Amplifying Miranda as to a suspect’s right to silence, the

Supreme Court in Michigan v. Mosley,12 stated:

     We therefore conclude that the admissibility of
     statements obtained after the person in custody has
     decided to remain silent depends under Miranda on


9
   Id. at 444-45, 474.
10
    Miranda, 384 U.S. at 489.
11
    16 C.M.A. 629, 37 C.M.R. 249 (1967).
12
    423 U.S. 96, 100 (1975).

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United States v. Seay, No. 03-0246/AR


     whether his “right to cut off questioning” was
     “scrupulously honored.”13

As to a suspect’s right to counsel in a Miranda context, the

Court in Edwards opined:

     [W]hen an accused has invoked his right to have
     counsel present during custodial interrogation, a
     valid waiver of that right cannot be established by
     showing only that he responded to further police-
     initiated custodial interrogation even if he has been
     advised of his rights. We further hold that an
     accused . . . having expressed his desire to deal with
     the police only through counsel, is not subject to
     further interrogation by the authorities until counsel
     has been made available to him, unless the accused
     himself initiates further communication, exchanges, or
     conversations with the police.14

While Mosley protects the right to remain silent, Edwards

protects the right to counsel.   The “scrupulously honored” test

in Mosley differs from Edwards because under Edwards the accused

must initiate further communications or exchanges with police.

Both Mosley and Edwards were adopted in M.R.E. 305(e) and (f).

     Appellant’s numerous references to counsel did not affect

Appellant’s confession because Appellant did not make an

unambiguous request for counsel.15    Appellant’s references to

counsel did not occur during the custodial interrogation.16


13
   See also M.R.E. 305(f)(1).
14
   Id. at 485. See also M.R.E. 305(e)(1) and (f)(2).
15
    See Davis.
16
   United States v. Schroeder, 39 M.J. 471, 474 (C.M.A.
1994)(“[A]ppellant’s request was too little and too early to
qualify as an invocation of Miranda under applicable Supreme
Court precedent.”). See generally People v. Villalobos, 737
N.E.2d 639, 642-46 (Ill. 2000)(canvassing Federal and State

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United States v. Seay, No. 03-0246/AR


     We hold that even assuming Appellant’s Fifth Amendment

rights, Article 31(b), and the Military Rules of Evidence were

violated by the authorities’ continued interrogation of

Appellant despite his invocation of the right to silence during

the first questioning, the failure to provide Appellant

appropriate rights warnings during the pretextual phone calls,

and the failure to terminate the pretextual phone calls,

Appellant’s eventual confession was untainted.   The Supreme

Court has recognized that

     [a] subsequent administration of [rights] warnings to
     a suspect who has given a voluntary but unwarned
     statement ordinarily should suffice to remove the
     conditions that precluded admission of the earlier
     statement. In such circumstances, the finder of fact
     may reasonably conclude that the suspect made a
     rational and intelligent choice whether to waive or
     invoke his rights.17

Accordingly, in United States v. Marquardt18 this Court held that

subsequent rights warnings may effect a “purging of the taint”

from prior unwarned statements.19



rulings concerning whether a suspect can successfully invoke the
Miranda right to counsel before a custodial interrogation has
begun and concluding that “one cannot anticipatorily invoke the
right to counsel prior to custodial interrogation”).
17
   Oregon v. Elstad, 470 U.S. 298, 314 (1985).
18
   39 M.J. 239 (C.M.A. 1994).
19
   Id. at 241. See also United States v. Vaughters, 44 M.J. 377,
378 (C.A.A.F. 1996) (custodial interrogation may be reinitiated
without counsel being present where a suspect is provided a
meaningful opportunity to consult with counsel, and subsequently
waives his right to counsel); United States v. Wimberley, 16
U.S.C.M.A. 3, 9, 36 C.M.R. 159, 165 (1966) (after tainted first
statement, passage of time, fact that a different agent took

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United States v. Seay, No. 03-0246/AR


     Appellant’s confession did not derive from either the

initial interview by Detective Graham, or the pretextual phone

calls which followed.   In fact, no statements from Appellant’s

first or second questioning were admitted into evidence at

trial.   Rather, Appellant confessed to Chafin’s murder on a

third occasion, after having voluntarily driven to the CID

office and met with his wife.   Immediately prior to Appellant’s

confession on this occasion, Mrs. Seay was removed from the room

and a CID agent administered new rights warnings, as well as a

“cleansing warning” advising Appellant that the CID would not

use against Appellant anything Appellant had previously said.

After receiving these warnings, Appellant waived his rights, and

only then gave his voluntary confession.

     In short, immediately prior to Appellant’s confession,

“[h]e was thus reminded again that he could remain silent and

could consult with a lawyer, and was carefully given a full and

fair opportunity to exercise these options.”20   Appellant waived

those rights anew, and in so doing created a clean slate for his

confession.

     Because Appellant’s confession was untainted by prior

events, the military judge did not abuse his discretion in




second statement, and new Article 31 rights advisement before
second statement erases taint).
20
   Mosley, 423 U.S. at 104-05.

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United States v. Seay, No. 03-0246/AR


admitting the confession into evidence at trial.   As a result of

this conclusion, Issue II becomes moot.

  Issues III and IV.    Appellant’s Conviction of Larceny of PFC

  Chafin’s Wallet

     Issues III and IV concern Appellant’s conviction of larceny

of PFC Chafin’s wallet, alleged in Charge IV.    Appellant’s

written confession contained the following exchange as to the

wallet:

     Q:   What happened to CHAFIN’s wallet?

     A: At the time CHAFIN was stabbed, it was in his
     pocket. SHELTON and I went back to CHAFIN’s body
     sometime after that night and SHELTON took the wallet.
     SHELTON had found out there was money in the wallet
     after the unit started saying he was missing, so he
     wanted to go back for the money. We went back on some
     night and tried to find the body by trial and error.
     SHELTON wanted me to go out and look for the body and
     I did not want to. I would go out into the field, lay
     down, and then go back to the car. Finally, SHELTON
     got out and went straight to the body. He came back
     with CHAFIN’s wallet and got into the car. . . .

     Q:   What did SHELTON do with the wallet?

     A: I saw him go through the wallet and take out some
     money. I don’t remember how much but there was a lot.
     He gave me some of the money but I don’t remember how
     much it was. SHELTON through [sic] something out of
     the window. I don’t remember was [sic] it was but it
     may have been the wallet. . . .

     Q:   Where did SHELTON throw the wallet out of the car?

     A: I don’t remember.   It was somewhere before we got
     back to town.




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United States v. Seay, No. 03-0246/AR


CID Special Agent Barone testified that a wallet was not found

among Chafin’s effects during a postmortem inventory.

     Appellant first avers that the military judge improperly

admitted into evidence Appellant’s uncorroborated confession as

to the larceny charge.   Appellant further contends that even if

his confession were admissible, the evidence of larceny of

Chafin’s wallet is insufficient, as the only evidence to support

Appellant’s statement that his accomplice, Shelton, took the

wallet was a CID investigator’s testimony that a wallet was not

found among PFC Chafin’s effects.    We disagree on both accounts.

     “An admission or a confession of the accused may be

considered as evidence against the accused on the question of

guilt or innocence only if independent evidence, either direct

or circumstantial, had been introduced that corroborates the

essential facts admitted to justify sufficiently an inference or

their truth.”21

     The corroboration requirement for admission of a
     confession at court-martial does not necessitate
     independent evidence of all the elements of an offense
     or even of the corpus delicti of the offense. Rather,
     the corroborating evidence must raise only an
     inference of truth as to the essential facts admitted.
     Moreover, while the reliability of the essential facts
     must be established, it need not be done beyond a
     reasonable doubt or by a preponderance of the
     evidence.22


21
  M.R.E. 304(g).
22
  United States v. Cottrill, 45 M.J. 485, 489 (C.A.A.F. 1997)
(internal citations omitted).

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United States v. Seay, No. 03-0246/AR


    Both M.R.E. 304(g) and Cottrill set forth a very low

standard.   It is not necessary for the members to conclude that

Chafin carried a wallet.   The issue is whether the facts justify

the inference as to the truth of the confession:   Appellant and

the other person named in the confession were seen with the

victim shortly before he disappeared; the victim died as a

result of foul play; the victim’s body was found in a concealed

place; the post-mortem revealed no wallet; and no wallet was

ever found.   For the purposes of corroborating a confession,

there is no requirement that the members conclude beyond a

reasonable doubt, or even by a preponderance of the evidence,

that the corroborating facts alone (i.e., without the

confession) establish that this victim, in fact, carried a

wallet at the time of death; rather, the rule simply requires a

presence of facts that enable the members to infer the truth of

the essential facts in the confession.   When a person confesses

to participation in the larceny of a wallet, it is reasonable to

infer the truth of the confession from the fact that the victim

named in the confession knew the Appellant, died as a result of

foul play, was found in a concealed place, and did not have a

wallet at the time or thereafter.    We therefore hold that these

reasonable inferences adequately corroborated Appellant’s

confession, and we therefore find no merit in Issue III.

Regarding Issue IV, we also hold that the properly corroborated


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United States v. Seay, No. 03-0246/AR


confession adequately established the essential elements of

larceny beyond a reasonable doubt to support Appellant’s larceny

conviction.

     Issue V.   Appellant’s Conviction of Kidnapping PFC Chafin

       Finally, Issue V questions the legal sufficiency of the

evidence supporting Appellant’s kidnapping conviction.     For the

following reasons, we hold that the evidence was legally

sufficient to support Appellant’s kidnapping conviction.

       As noted above, “[t]he test for legal sufficiency of the

evidence is whether, ‘after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a

reasonable doubt.’”23    This Court reviews questions of legal

sufficiency de novo.24

       The Uniform Code of Military Justice punishes kidnapping as

an offense to the prejudice of good order and discipline or of a

nature to bring discredit to the armed forces, under Article

134.    The Manual for Courts-Martial [MCM] lists the elements of

kidnapping as follows:

            (1) That the accused seized, confined, inveigled,
       decoyed, or carried away a certain person;
            (2) That the accused then held such person
       against that person’s will;


23
   United States v. Riley, 58 M.J. 305, 311 (C.A.A.F. 2003)
(quoting Jackson, 443 U.S. at 319).
24
   Id.

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United States v. Seay, No. 03-0246/AR


          (3) That the accused did so willfully and
     wrongfully; and
          (4) That, under the circumstances, the conduct of
     the accused was to the prejudice of good order and
     discipline in the armed forces or was of a nature to
     bring discredit upon the armed forces.25

To determine whether the asportation – or the “carrying away”26 –

of an individual is more than an incidental or momentary

detention, this Court considers the following factors:

     a. The occurrence of an unlawful seizure, confinement,
     inveigling, decoying, kidnapping, abduction or
     carrying away and a holding for a period. Both
     elements must be present.

     b. The duration thereof. Is it appreciable or de
     minimis? This determination is relative and turns on
     the established facts.

     c. Whether these actions occurred during the
     commission of a separate offense.

     d. The character of the separate offense in terms of
     whether the detention/asportation is inherent in the
     commission of that kind of offense, at the place where
     the victim is first encountered, without regard to the
     particular plan devised by the criminal to commit it.
     . . .

     e. Whether the asportation/detention exceeded that
     inherent in the separate offense and, in the
     circumstances, evinced a voluntary and distinct
     intention to move/detain the victim beyond that
     necessary to commit the separate offense at the place
     where the victim was first encountered. . . .

     f. The existence of any significant additional risk to
     the victim beyond that inherent in the commission of
     the separate offense at the place where the victim is
     first encountered. It is immaterial that the

25
  MCM, Part IV, para. 92.b.
26
  Black’s Law Dictionary 109 (7th ed. 1999) (defining
“asportation”).

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United States v. Seay, No. 03-0246/AR


     additional harm is not planned by the criminal or
     that it does not involve the commission of another
     offense.27

     In the case at bar, Appellant’s confession, which the

military judge found to be voluntary and credible, and the

forensic evidence of the murder, including Chafin’s body and the

crime scene itself, establish the following.   While Chafin was

seated as a passenger in Appellant’s truck, en route to a remote

location several miles from Appellant’s apartment, Appellant

strangled Chafin from behind with a cord, thereby confining

Chafin and holding him against his will in the truck.    When

Chafin attempted to flee from the truck, Shelton pinned him to

the ground, while Appellant stabbed him, thereby further holding

Chafin against his will.   These acts of restraint and

asportation occurred prior to the actual murder, and exceeded

those acts inherent to the commission of murder, as Appellant

and Shelton could have killed Chafin in the apartment, or in the

truck before Shelton drove to a secluded location.   Appellant

experienced an increased risk as a result of these acts, as he

was less likely to find help in the secluded location to which

he was driven.




27
  United States v. Santistevan, 22 M.J. 538, 543 (N.M.C.M.R.
1986) (internal citations omitted); see also United States v.
Newbold, 45 M.J. 109, 112 (C.A.A.F. 1996) (endorsing Santistevan
factors).

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     We therefore hold that a reasonable trier of fact could

find beyond a reasonable doubt that the elements of kidnapping

were satisfied: that Appellant confined Chafin and held him

against his will in the truck, that Appellant did so willfully

and wrongfully, and that this conduct was prejudicial to good

order and discipline in the military, as well as service-

discrediting.

                            DECISION

     The decision of the United States Army Court of Criminal

Appeals is affirmed.




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       ERDMANN, Judge (dissenting in part, concurring in part and
       concurring in the result):

       I concur with the majority on Issues I, II and V.   I

respectfully dissent from their resolution of Issues III and IV.

I find no corroboration of the confession to larceny and would

reverse the Army Court of Criminal Appeals on Issue III,

rendering Issue IV moot.

      The corroboration requirement for admission of a confession

at court-martial requires independent evidence which establishes

the trustworthiness of the confession.1    The purpose of the

corroboration rule “is to prevent ‘errors in convictions based

upon untrue confessions alone’ or suspect convictions based upon

words which might ‘reflect the strain and confusion’ caused by

‘the pressure of a police investigation.’”2

      Although we have described the quantum of independent

evidence required for corroboration as “slight,”3 Military Rule

of Evidence 304(g)(1) still requires that it be sufficient to

raise an inference of the truth of the essential facts admitted.

“Slight” in this context does not mean the barest wisp of

possibility.    An inference of truth is raised only when "there

is substantial independent evidence that the offense has been



1
    United States v. Maio, 34 M.J. 215, 218 (C.M.A. 1992).
2
    United States v. Yeoman, 25 M.J. 1, 4 (C.M.A. 1987)(quoting
    Smith v. United States, 348 U.S. 147, 153 (1954)).
3
    Yeoman, 25 M.J. at 4.

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United States v. Seay II, No. 03-0246/AR


committed."4   Here, there is simply no independent evidence,

substantial or otherwise, that a larceny has been committed.

    The majority opinion concludes that Seay’s confession to

larceny of Chafin’s wallet was sufficiently corroborated, but

base that conclusion on a skein of inferences that arise from

facts unessential to the offense of larceny:

          When a person confesses to participation in the
          larceny of a wallet, it is reasonable to infer
          the truth of the confession from the fact that
          the victim named in the confession knew the
          Appellant, died as a result of foul play, was
          found in a concealed place, and did not have a
          wallet at the time or thereafter. We therefore
          hold that these reasonable inferences adequately
          corroborated Appellant’s confession[.]

     Relying on these inferences as independent evidence, the

majority opinion stretches the corroboration requirement beyond

the breaking point.   The corroboration rule requires independent

evidence upon which inferences can be drawn, not inferences

which substitute for evidence.   Apart from the confession

itself, no evidence suggests that Chafin ever possessed a wallet

at all, much less that he was carrying one at the time of his

murder.

    The majority opinion notes that “[i]t is not necessary for

the members to conclude that Chafin carried a wallet.”   However,

without evidence that Chafin possessed a wallet, we can give no


4
  United States v. Melvin, 26 M.J. 145, 146 (C.M.A. 1988)
(quoting Smith v. United States, 348 U.S. at 156)).

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United States v. Seay II, No. 03-0246/AR


weight to the fact that no wallet was found.    There is no fact

from which the essential truth of the confession may be

inferred:    i.e., that a wallet was stolen.

      We have previously held that there was insufficient

corroboration to illegal drug use where independent evidence

showed only that the appellant had the opportunity to ingest

illegal drugs and was with friends who had previously used

illegal drugs.5    Similarly, we have found insufficient

corroboration to child abuse where independent evidence showed

only that the accused parent had access and opportunity.6       In

this latter case, United States v. Faciane, we noted that

“[a]lthough the Government argues that appellant's exclusive

custody of the child establishes that he had access and the

opportunity to abuse her, we are unwilling to attach a criminal

connotation to the mere fact of a parental visit.”7

       The fact that the victim’s body was found in a concealed

place, that he died as the result of foul play, that he knew

Seay, and that a wallet was not found with the body is simply

not enough to “corroborate[] the essential facts [of the

larceny] to justify sufficiently an inference of their truth.”8

Lacking substantial independent evidence that a larceny was


5
    United States v. Rounds, 30 M.J. 76 (C.M.A. 1990).
6
    United States v. Faciane, 40 M.J. 399, 403 (C.M.A. 1994).
7
    Id.
8
    Military Rule of Evidence 304(g).

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United States v. Seay II, No. 03-0246/AR


committed, the military judge erred by admitting Seay’s

confession to the larceny as evidence against him.

     I would therefore reverse the decision of the Court of

Criminal Appeals as to Issue III and set aside Seay’s conviction

for larceny, thus mooting Issue IV.   Nonetheless, because Seay’s

sentence would be unaffected by this change as a result of his

mandatory minimum life sentence for premeditated murder,9 I

concur in the result.




9
  Article 118, Uniform Code of Military Justice, 10 U.S.C. § 918
(2000).

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