                         UNITED STATES, Appellee

                                         v.

                      Joseph M. REYNOSO, Sergeant
                     U.S. Marine Corps, Appellant

                                  No. 07-0221

                        Crim. App. No. 200401465

       United States Court of Appeals for the Armed Forces

                        Argued December 12, 2007

                          Decided April 25, 2008

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


                                     Counsel


For Appellant: Lieutenant Brian D. Korn, JAGC, USN (argued);
Major Jeffrey S. Stephens, USMC.


For Appellee: Lieutenant Derek D. Butler, JAGC, USN (argued);
Commander Paul C. LeBlanc, JAGC, USN (on brief); Major Kevin C.
Harris, USMC, and Lieutenant David H. Lee, JAGC, USN.



Military Judge:    J. G. Baker



            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Reynoso, No. 07-0221/MC


    Judge BAKER delivered the opinion of the Court.

    Appellant was tried by a general court-martial convened with

members at Camp Foster, Okinawa, Japan.    Contrary to his pleas,

he was found guilty of making false official statements,

wrongful use of marijuana, larceny, and making a false claim,

all in violation of Articles 107, 112a, 121, 132, Uniform Code

of Military Justice (UCMJ), 10 U.S.C. §§ 907, 912a, 921, 932

(2000).    The court members sentenced Appellant to confinement

for three years, a dishonorable discharge, reduction to the

lowest enlisted grade, and payment of a fine of $28,000, with an

additional period of confinement if the fine was not paid.    The

convening authority approved the adjudged sentence, but

suspended the amount of the fine in excess of $18,000, and

disapproved the contingent confinement.    The findings and the

sentence, as approved by the convening authority, were affirmed

by the United States Navy-Marine Corps Court of Criminal

Appeals.   United States v. Reynoso, No. NMCCA 200401465 (N-M.

Ct. Crim. App. July 26, 2005).   This Court granted review of the

following questions:

    DID A DEFENSE OBJECTION OF “LACK OF FOUNDATION” TO A
    SUMMARY DOCUMENT MOVED INTO EVIDENCE UNDER M.R.E. 1006
    EITHER INCLUDE OR PRESERVE AN OBJECTION TO THE
    ADMISSIBILITY OF THE UNDERLYING EVIDENCE UPON WHICH THE
    SUMMARY WAS BASED?

    WAS THE EVIDENCE UPON WHICH THE M.R.E. 1006 SUMMARY WAS
    BASED ADMISSIBLE AS AN EXCEPTION TO HEARSAY AND
    PROFFERED BY A COMPETENT WITNESS?


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United States v. Reynoso, No. 07-0221/MC


Based on the reasoning below, we find that Appellant failed to

preserve any error with respect to Military Rule of Evidence

(M.R.E.) 1006, and that the subsequent admission of the evidence

at issue in this case was not plain error.

                                I.

     Appellant, while stationed in Okinawa, Japan, completed a

dependency application form (NAVMC 10922) that indicated that he

had recently married, and that his wife lived in San Francisco,

California.   Based on the information that Appellant provided in

the application, he received a basic allowance for housing (BAH)

based on the rate established for dependents residing in the San

Francisco region.   However, testimony at trial established that

during the relevant period, Mrs. Reynoso actually lived in

Virginia Beach, Virginia, a fact known to Appellant.

     The Government called Chief Warrant Officer 2 (CWO2) John

Ruiz who was accepted on the record as an expert on personnel

administration matters.   During the course of CWO2 Ruiz’s

testimony, the Government moved into evidence Prosecution

Exhibit 6 (PE 6), a chart that CWO2 Ruiz had helped formulate

demonstrating the difference in BAH rates and the cost of living

allowances (COLA) for San Francisco and Virginia Beach.   The

chart had been compiled using information drawn from the Defense

Finance and Accounting Service (DFAS) website and Appellant’s




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United States v. Reynoso, No. 07-0221/MC


leave and earning statements.   Prior to offering the exhibit,

trial counsel’s questions to the witness were as follows:

    Q.   Did you help formulate what was on that document?
    A.   Yes, I did.

    Q.   Is it a fair and accurate depiction of what the accused
         actually drew?
    A.   Yes. During those times, yes, sir.

    Q. Is it a fair and accurate depiction of what he would have
        rated if his wife lives [sic] in Virginia?
    A. Yes, sir.

    Q.  Would using this diagram help you to explain your
        testimony to the members and to this court?
    A. I think it would, sir. It would actually just give it an
       actual hard number of the difference in entitlements.

    At this point, defense counsel objected to the admission of

PE 6, stating the grounds to be “foundation.”   Defense counsel

then conducted voir dire of CWO2 Ruiz, asking him, inter alia,

whether he had personally verified the information on PE 6 to

which CWO2 Ruiz stated that he had not.    The court then recessed

for twelve minutes, after which trial counsel questioned CWO2

Ruiz about matters raised during defense counsel’s voir dire.

He established that, while CWO2 Ruiz had not verified the COLA

and BAH rates for each month, he had checked the entitlement

amounts at points where they were likely to change.   CWO2 Ruiz

also described how he obtained the information from the DFAS

website and Appellant’s leave and earnings statements.   The

Government again moved the exhibit into evidence, and defense

counsel renewed his objection on the grounds of foundation.    The


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United States v. Reynoso, No. 07-0221/MC


military judge overruled the objection, and the exhibit was

admitted.

       The United States Navy-Marine Corps Court of Criminal

Appeals affirmed Appellant’s conviction on an appeal submitted

without assignment of error.   On appeal to this Court, Appellant

argues that PE 6 was inadmissible because it was a summary of

the source documents on the DFAS website, and the Government did

not lay a proper foundation under M.R.E. 1006 to admit the

summary.    Further, Appellant argues that the information

contained on the DFAS website, from which CWO2 Ruiz derived PE

6, constituted hearsay, and was thus inadmissible under M.R.E.

802.

                                 II.

       The threshold question in this case is whether Appellant’s

objection on foundational grounds preserved the issues he now

advances on appeal.   M.R.E. 103(a)(1) states that in order to

preserve an objection when “the ruling is one admitting

evidence” the objecting party must make “a timely objection or

motion to strike . . . in the record, stating the specific

ground of objection, if the specific ground was not apparent

from the context.”    In United States v. Datz, 61 M.J. 37, 42

(C.A.A.F. 2005), this Court stated that “[o]n its face, M.R.E.

103 does not require the moving party to present every argument

in support of an objection, but does require argument sufficient


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United States v. Reynoso, No. 07-0221/MC


to make the military judge aware of the specific ground for

objection.”    In short, M.R.E. 103 should be applied in a

practical rather than a formulaic manner.

       With this backdrop, it is not clear from the record that

Appellant’s “[o]bjection on foundation,” taken in context, was

sufficient to make the military judge aware of the issues he is

now raising before this Court.    At trial, defense counsel’s voir

dire appeared designed to suggest that CWO2 Ruiz was not in a

position to know whether the figures he relied on were accurate.1

Therefore, it is not clear that the objection was intended to

challenge the hearsay nature of the underlying figures.      Given

the numerous bases on which a foundational objection might be

lodged, some further indication of defense counsel’s specific

concern was necessary.

       As a result, this case is distinguished from Datz, where

the defense counsel initially objected on relevancy grounds to

testimony about the defendant nodding in response to

questioning, only later to argue that the head nod was not an


1
    For example, the record contains the following exchange:

       Q: What about the next number . . . did you verify that
       one?
       A: I didn’t audit this for -– to say that it’s all
       correct. . . .

       Q:   So you really don’t know if this is correct or not?
       A:   No.


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United States v. Reynoso, No. 07-0221/MC


adoptive admission under M.R.E. 802(d)(2).    61 M.J. at 41-42.

Thus, although defense counsel in Datz cited one rule as the

basis of the defendant’s objection, the subsequent discussion

clearly established the grounds on which the subsequent

challenge on appeal was based.    Therefore, we are hard pressed

to hold that, in this case, the mere utterance, “Objection on

foundation,” preserved any issue under M.R.E. 1006 regarding the

document itself or any hearsay issue regarding the underlying

evidence upon which the document was based.   This is the very

reason for the specificity requirement under M.R.E. 103(a)(1).

                                 III.

     Having determined that Appellant forfeited the claim of

error he now asserts, we review the admission of PE 6 for plain

error.   See M.R.E. 103(d); United States v. Moran, 65 M.J. 178,

181 (C.A.A.F. 2007).

     Although no specific rule of admissibility was cited at

trial, the Government argues that PE 6 was properly admitted as

a summary under M.R.E. 1006.   M.R.E. 1006 states:

     The contents of voluminous writings, recordings, or
     photographs which cannot conveniently be examined in court
     may be presented in the form of a chart, summary, or
     calculation. The originals, or duplicates, shall be made
     available for examination or copying, or both, by other
     parties at reasonable time and place. The military judge
     may order that they be produced in court.

The Drafters’ Analysis of M.R.E. 1006 notes that it was adopted

from Fed. R. Evid. 1006 “without change.”    Manual for Courts-


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United States v. Reynoso, No. 07-0221/MC


Martial, United States, Analysis of the Military Rules of

Evidence app. 22 at A22-60 (2005 ed.) [hereinafter Drafters’

Analysis].    It is therefore appropriate to consider the

admissibility of such summaries under the analysis used by the

civilian federal courts.   In federal civilian practice, summary

evidence is admissible under Fed. R. Evid. 1006 only if the

underlying materials upon which the summary is based are

admissible.   See AMPAT/Midwest, Inc. v. Illinois Tool Works,

Inc., 896 F.2d 1035, 1045 (7th Cir. 1990); United States v.

Meyers, 847 F.2d 1408, 1412 (9th Cir. 1988); State Office

Systems, Inc. v. Olivetti Corp. of Am., 762 F.2d 843, 845 (10th

Cir. 1985); Hackett v. Housing Auth., 750 F.2d 1308, 1312 (5th

Cir. 1985); Paddack v. Dave Christensen, Inc., 745 F.2d 1254,

1259 (9th Cir. 1984); United States v. Johnson, 594 F.2d 1253,

1255-57 (9th Cir. 1979).   However, civilian practice permits an

exception to this rule.    See, e.g., Olivetti Corp. of Am., 762

F.2d at 845-46 (summary of lost profits admissible as opinion

evidence of qualified expert witness).   Military practice

permits an exception as well, as indicated in the Drafters’

Analysis to the rule.   Specifically, “It is possible for a

summary that is admissible under Rule 1006 to include

information that would not itself be admissible if that

information is reasonably relied upon by an expert preparing the

summary.”    Drafters’ Analysis at A22-60.


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United States v. Reynoso, No. 07-0221/MC


     In the present case, CWO2 Ruiz was already qualified as an

expert in personnel administration and had stated that he had

relied on the DFAS website to compile the information.   Thus,

under M.R.E. 1006, PE 6 might have been admitted under this

expert witness exception because the figures CWO2 Ruiz used were

“reasonably relied upon by an expert preparing the summary.”

Furthermore, had there been an objection specific to M.R.E.

1006, the parties could have litigated before the military judge

the fairly detailed foundation for the admissibility of such

evidence.2   Therefore, since PE 6 was not clearly inadmissible,

in the absence of a more specific objection and some indication

on the record that the foundational elements of M.R.E. 1006 were

not met, there was no plain error in admitting it.

                             DECISION

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.




2
  For instance, the proponent might or might not have been able
to show: the originals or duplicates of the originals would be
admissible; the originals or duplicates were too numerous or too
voluminous to be conveniently introduced during trial; the
relevant fact was a summary of the record’s contents; the
opponent was granted access to the originals or duplicates for
inspection; or, the witness personally reviewed all the records
or was a member of a team of experts who reviewed the records.
Edward J. Imwinkelried, Evidentiary Foundations § 8.08[7] (6th
ed. 2005).


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