This opinion is subject to administrative correction before final disposition.




                               Before
                  GASTON, STEPHENS, and STEWART
                      Appellate Military Judges

                        _________________________

                          UNITED STATES
                             Appellant

                                     v.

                         Craig R. BECKER
                      Lieutenant (O-3), U.S. Navy
                               Appellee

                             No. 201900342

                           Decided: 24 July 2020

        Appeal by the United States Pursuant to Article 62, UCMJ

                              Military Judge:
                              Aaron C. Rugh

 Arraignment 13 February 2019 before a general court-martial con-
 vened at Naval Base San Diego, California, consisting of officer mem-
 bers.

                           For Appellant:
                  Major Kerry E. Friedewald, USMC
         Lieutenant Commander Timothy C. Ceder, JAGC, USN

                              For Appellee:
                 Lieutenant Daniel O. Moore, JAGC, USN
                 Captain Marcus N. Fulton, JAGC, USN
               United States v. Becker, NMCCA No. 201900342
                            Opinion of the Court

                          _________________________

                 PUBLISHED OPINION OF THE COURT

                          _________________________

PER CURIAM:
    This case is before us on an interlocutory appeal pursuant to Article
62(a)(1)(B), Uniform Code of Military Justice [UCMJ]. Appellee is charged
with premeditated murder, assault consummated by battery, and conduct
unbecoming an officer and a gentleman in violation of Articles 118, 128, and
133, UCMJ, 10 U.S.C. §§ 918, 928, 933 (2012), for allegedly abusing and then
killing his wife. Upon referral of charges, the Government pursued the
admission of prior statements by the decedent, Mrs. Becker, under the
doctrine of forfeiture by wrongdoing. After two Article 39(a), UCMJ, hearings,
the military judge ruled some of the statements inadmissible, which the
Government now appeals. We find error in the judge’s ruling and remand.

                              I. BACKGROUND

    The pending charges arise from the troubled relationship of Appellee and
Mrs. Becker, whom Appellee allegedly murdered by pushing her from their
apartment’s seventh-story window in Mons, Belgium, in October 2015. Two
years earlier, in August 2013, after learning of his wife’s infidelity, Appellee
allegedly threw her around their hotel room and strangled her. Mrs. Becker
reported the alleged abuse to several individuals, including the desk clerk at
the Army Lodge where they were staying and a military police officer who
responded to the scene. Later that day, she made follow-up statements and a
formal report to law enforcement. She alleged that in addition to physically
assaulting her, Appellee had taken her identification and credit cards and
changed their bank account passwords, effectively leaving her isolated and
trapped.
   That evening, after attending counseling with Appellee, Mrs. Becker re-
canted her allegations. She denied Appellee had taken her identification and
credit cards and later formally recanted her report to law enforcement,
explaining that Appellee had not strangled her and instead was trying to
keep her from harming herself. She blamed her report on the effects of her
medication. After Mrs. Becker’s recantation, the criminal investigation
stopped, and all further action on her allegations was formally closed in June
2014.




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               United States v. Becker, NMCCA No. 201900342
                            Opinion of the Court

    Despite her recantation to authorities, Mrs. Becker told a different story
to friends and family members. She told them the allegations were true and
that she had feared for her life during the assault, but that she recanted out
of concern that they would negatively impact Appellee’s career; she told one
friend that she was afraid of what Appellee would do if he lost his career. She
described how Appellee was controlling and manipulative and monitored her
communications on her personal phone. She said he prevented her from
contacting her friends and family while she was recovering from a surgery,
and controlled who could visit her at their apartment in Belgium. She said he
controlled how she could dress, prevented her from getting a tattoo, and
destroyed her cosmetic products.
    The discord within the Beckers’ marriage culminated in their separation
in the summer of 2015, after which Mrs. Becker decided to remain in Bel-
gium, but live apart from Appellee. On the surface, the separation appeared
amicable; the two intended to remain friends, to have regular interactions to
raise their daughter, and to continue working in a joint business venture. But
Appellee had a visceral reaction when he learned Mrs. Becker had a new
boyfriend, with whom she worked, and she had begun spending nights at his
home about a week before her death.
    On the day Mrs. Becker died, she signed a lease and paid the deposit on
an apartment of her own. That night, Appellee and Mrs. Becker had dinner
at their seventh-floor apartment. Witnesses heard a scream around 2100 and
saw Mrs. Becker fall from the seventh floor to the ground. The Government
alleges Appellee put a sedative in her wine and pushed her out of a window.
She survived the initial fall, but died later at a Belgian hospital.

                              II. DISCUSSION

A. The Military Judge’s Ruling
    In a pretrial motion, the Government sought a ruling that certain prior
statements by Mrs. Becker relating to her alleged abuse were admissible
under the doctrine of forfeiture by wrongdoing, an exception to both the Sixth
Amendment Confrontation Clause and the hearsay rule. Giles v. California,
554 U.S. 353 (2008); Military Rule of Evidence [Mil. R. Evid.] 804(b)(6).
Citing the doctrine’s two-part test as set out in United States v. Dhinsa, 243
F.3d 635 (2nd Cir. 2001), the Government argued that a preponderance of the
evidence supported that by pushing Mrs. Becker out of the window to her
death, Appellee (1) was involved in, or responsible for procuring, her unavail-
ability through knowledge, complicity, planning, or in any other way, and (2)
acted with the intent of procuring her unavailability as an actual or potential
witness. See Dhinsa, 243 F.3d at 653-54. The Government argued Appellee


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                 United States v. Becker, NMCCA No. 201900342
                              Opinion of the Court

killed Mrs. Becker with the intent, at least in part, of preventing her from
repeating and expounding on her earlier abuse allegations, since it was
reasonable to infer a person who recanted such allegations to save her
spouse’s career might again pursue them once their relationship was over.
    In response, the Defense argued that any concern over Appellee’s career
or whether Mrs. Becker would revive her 2013 allegations was entirely
speculative, particularly since their separation appeared to be proceeding
amicably. The Defense argued that even if a revival of her earlier allegations
could be expected, this fact, without more, did not weigh in favor of an infer-
ence that Appellee intended to silence Mrs. Becker as a witness because there
were no pending charges against Appellee, no ongoing investigation, and no
indication an investigation would be opened. Thus, it was not “reasonably
foreseeable that [any] investigation would culminate in the bringing of
charges.” 1
    The military judge resolved the Government’s motion in a written ruling
with detailed findings of fact and conclusions of law. He cited the above two-
prong test for forfeiture by wrongdoing and correctly found that with respect
to the intent prong, “[i]n order to demonstrate the design to prevent [the
witness from testifying], it is not necessary that criminal charges be pend-
ing.” 2 He then adopted the principle cited by the Defense that for the wrong-
doer to have the requisite intent, “it must be ‘reasonably foreseeable that any
investigation [would] culminate in the bringing of charges.’ ” 3 Using this legal
standard, the military judge concluded that notwithstanding her continued
complaints of abuse to friends and family, in light of Mrs. Becker’s recanta-
tion of her 2013 allegations, the subsequent closing of all investigation and
action relating to them as of June 2014, and her ostensibly amicable separa-
tion from Appellee, as of the day of her death:
         it was not reasonably foreseeable that the accused would be in-
         vestigated as a result of any prior, formal or informal allega-
         tion made by Mrs. Becker. Further, the accused could not have
         reasonably foreseen that he might face charges based on those




   1  App. Ex. XIX at 3 (citing United States v. Burgos-Montes, 786 F.3d 92, 99 (1st
Cir. 2015)).
   2   App. Ex. LXXIX at 6.
   3  App. Ex. LXXIX at 6 (quoting United States v. Houlihan, 92 F.3d 1271, 1280
(1st Cir. 1996)).




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                 United States v. Becker, NMCCA No. 201900342
                              Opinion of the Court

         allegations and that Mrs. Becker might be required to testify
         against him. 4
From this, the military judge concluded the Government had failed to demon-
strate that Appellee acted on the day of Mrs. Becker’s death “in order to
prevent Mrs. Becker’s testimony.” 5 Absent proof of such intent, he found that
several of Mrs. Becker’s prior statements relating to her alleged abuse were
not admissible under forfeiture by wrongdoing.

B. Jurisdiction and Standard of Review
    We have statutory authority to hear this appeal under Article 62(a)(1)(B),
UCMJ, which authorizes the Government to appeal an order or ruling “which
excludes evidence that is substantial proof of a fact material to the proceed-
ing.” The evidence determined inadmissible by the military judge—
Mrs. Becker’s follow-up statements and formal report of abuse to law enforce-
ment in August 2013, her statements to friends regarding the August 2013
incident, and her statements to friends and family members regarding
Appellee’s continuing conduct toward her between August 2013 and October
2015—meet that definition. 6
   In an Article 62 appeal, we review the military judge’s decision “directly”
and review the evidence “in the light most favorable to the party which
prevailed at trial.” United States v. Henning, 75 M.J. 187, 190-91 (C.A.A.F.
2016) (citation and internal quotation marks omitted). We review rulings to
admit or exclude evidence for an abuse of discretion. United States v. Solo-
mon, 72 M.J. 176, 179 (C.A.A.F. 2013); United States v. Czachorowski, 66
M.J. 432, 434 (C.A.A.F. 2008) (reviewing evidentiary rulings dealing with
hearsay for an abuse of discretion). It is an abuse of discretion if the military
judge: (1) “predicates his ruling on findings of fact that are not supported by
the evidence”; (2) “uses incorrect legal principles”; (3) “applies correct legal
principles to the facts in a way that is clearly unreasonable”; or (4) “fails to
consider important facts.” United States v. Commisso, 76 M.J. 315, 321
(C.A.A.F. 2017) (citing United States v. Ellis, 68 M.J. 341, 344 (C.A.A.F.
2010); Solomon, 72 M.J. at 180-81).




   4   App. Ex. LXXIX at 7.
   5   Id.
   6 Appellee is charged with assault consummated by a battery and conduct unbe-
coming an officer and a gentleman for the conduct Mrs. Becker alleged in these
statements.




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                United States v. Becker, NMCCA No. 201900342
                             Opinion of the Court

C. Forfeiture by Wrongdoing
   The Sixth Amendment’s Confrontation Clause holds that in all criminal
prosecutions, the accused shall have the right “to be confronted with the
witnesses against him.” U.S. Const. amend. VI. This clause, with very few
exceptions, serves as an ironclad bar to the admission of “testimonial” hear-
say unless the declarant is unavailable to testify as a witness and the accused
had a prior opportunity for cross-examination. Crawford v. Washington, 541
U.S. 36 (2004). 7
    One of those exceptions, derived from common law, is the doctrine of for-
feiture by wrongdoing, which provides that where an accused’s wrongful
actions prevent a witness from testifying, and where those actions were
“designed” to prevent the witness from testifying, admission of out-of-court
statements by that witness does not offend the Confrontation Clause. Giles v.
California, 554 U.S. 353, 359 (2008). The rationale for this exception was
provided as far back as 1878, when the Supreme Court explained:
        The Constitution does not guarantee an accused person against
        the legitimate consequences of his own wrongful acts. It grants
        him the privilege of being confronted with the witnesses
        against him; but if he voluntarily keeps the witnesses away, he
        cannot insist on his privilege.
Reynolds v. United States, 98 U.S. 145, 158 (1878). In other words, a criminal
defendant is not permitted “to benefit from his own wrong,” which would
create “intolerable incentives.” Giles, 554 U.S. at 365.
   Forfeiture by wrongdoing is also an exception to the hearsay rule. Mil. R.
Evid. 804(b)(6). As Giles suggests and courts have repeatedly held, the
operation of the exception to the hearsay rule is substantially the same as the
exception to the Confrontation Clause; where the evidence satisfies the
exception to one, it will typically also satisfy the exception to the other.8



    7 While the Confrontation Clause is only implicated by statements deemed “tes-
timonial,” the Supreme Court has struggled to precisely define that term. See Davis
v. Washington, 547 U.S. 813, 822 (2006). We focus our analysis here only on the
content and application of the forfeiture-by-wrongdoing exception to the Confronta-
tion Clause, not on whether the statements at issue are testimonial.
    8 See Giles, 554 U.S. at 365 (“No case or treatise that we have found . . . suggested
that a defendant who committed wrongdoing forfeited his confrontation rights but
not his hearsay rights.”); United States v. Emery, 186 F.3d 921, 926 (8th Cir. 1999)
(stating that where one’s confrontation rights are waived, objections based on
hearsay are similarly waived under Fed. R. Evid. 804(b)(6)); United States v. Jack-



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                  United States v. Becker, NMCCA No. 201900342
                               Opinion of the Court

Thus, our discussion of the exception applies equally to both sources of the
doctrine. 9
    The forfeiture-by-wrongdoing exception has two components: (1) the party
against whom the statement is offered wrongfully caused the declarant’s
unavailability as a witness; and (2) the party did so intending that result (i.e.,
his conduct was “designed” to prevent the witness from testifying). Giles, 554
U.S. at 360-61; Mil. R. Evid. 804(b)(6). 10 We agree with our sister court that
these two elements must be satisfied by a preponderance of the evidence.
United States v. Marchesano, 67 M.J. 535, 544 (A. Ct. Crim. App. 2008)
(citing United States v. Gray, 405 F.3d 227, 241 (4th Cir. 2005)); see also
Giles, 554 U.S. at 379 (Souter, J., concurring). And with respect to the second
prong regarding the party’s intent, the conduct rendering the declarant
unavailable need not have been motivated solely by a desire to prevent the
declarant from testifying as a witness, so long as it was a motivation. See
United States v. Jackson, 706 F.3d 264, 269 (4th Cir. 2013) (finding that to
allow defendants with multiple motives for their actions to murder, intimi-
date, or injure potential witnesses and then claim their confrontation right
would impermissibly erode the rationale behind the exception).
    Here, the military judge cited the two-prong test in his ruling and correct-
ly found that “[i]n order to demonstrate the design to prevent [the witness
from testifying], it is not necessary that criminal charges be pending.” 11
However, drawing from a pre-Giles case from the First Circuit, he then
adopted the principle that for the wrongdoer to have the requisite intent, “it



son, 706 F.3d 264, 268 (4th Cir. 2013) (stating “the Giles decision . . . merely clarified
existing precedent and affirmed that the intent requirement of Rule 804(b)(6) is
sufficient to prevent any violation of the Confrontation Clause); United States v.
Marchesano, 67 M.J. 535, 542 (A. Ct. Crim. App. 2008) (finding Mil. R. Evid.
804(b)(6) identical to its civilian counterpart and observing that while Crawford
“functionally separated the constitutional and evidentiary hearsay concepts, the
[Supreme Court]’s analysis of the Confrontation Clause forfeiture by wrongdoing and
Fed. R. Evid. 804(b)(6) indicated the two are related”).
    9The military judge identified the same, and analyzed both the hearsay and Con-
frontation Clause exceptions in the same way.
    10The evidentiary rule is essentially the same two-part test contained in Giles
and provides that “[a] statement offered against a party that wrongfully caused or
acquiesced in wrongfully causing the declarant’s unavailability as a witness, and did
so intending that result” is not excluded on hearsay grounds if the declarant is
unavailable as a witness. Mil. R. Evid. 804(b)(6).
    11   App. Ex. LXXIX at 6.




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                 United States v. Becker, NMCCA No. 201900342
                              Opinion of the Court

must be ‘reasonably foreseeable that any investigation [would] culminate in
the bringing of charges.’ ” 12 Using this legal standard, he determined that
under the circumstances of this case it was not reasonably foreseeable either
that Appellee would be investigated regarding Mrs. Becker’s prior allegations
or that Appellee might face charges based on those allegations, such that
Mrs. Becker might be required to testify against him. 13 From this, the mili-
tary judge concluded the Government had failed to demonstrate that Appel-
lee acted on the day of Mrs. Becker’s death “in order to prevent Mrs. Becker’s
testimony.” 14
    We find error in the military judge’s use of the “reasonable foreseeability”
standard in this manner, which strays too far from the intent requirement
announced under Giles. Determining whether it is reasonably foreseeable
that an investigation will culminate in the bringing of charges puts an
objective gloss on an inquiry that is fundamentally directed at the subjective
intent of the party who “wrongfully caused or acquiesced in the declarant’s
unavailability as a witness.” Mil. R. Evid. 804(b)(6).
    The standard is thus underinclusive in comparison with a more straight-
forward application of Giles. One can imagine, for example, a scenario where
an accused wrongfully acts with at least some subjective intention or design
of making a potential witness unavailable (satisfying Giles), yet does so at a
time when the prospect that charges will be brought is not reasonably fore-
seeable—e.g., a domestic violence situation where a child-custody or other
civil proceeding looms after an investigation—though the accused unreasona-
bly believes the contrary. Applying a “reasonable foreseeability” standard
would thus allow the unreasonable accused to avoid application of the rule to
his conduct, even when his actions are subjectively intended or designed
exclusively to silence a witness. 15 Giles stands for a broader forfeiture-by-
wrongdoing exception.



   12  App. Ex. LXXIX at 6 (quoting United States v. Houlihan, 92 F.3d 1271, 1280
(1st Cir. 1996)).
   13   App. Ex. LXXIX at 7.
   14   Id.
   15 We liken this difference to the difference between the defenses of honest versus
reasonable mistake of fact:
         If the ignorance or mistake goes to an element requiring . . . specific
         intent . . . the ignorance or mistake need only have existed in the
         mind of the accused. If the ignorance or mistake goes to any other el-
         ement requiring only general intent or knowledge, the ignorance or



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                United States v. Becker, NMCCA No. 201900342
                             Opinion of the Court

   In fact, Giles expressly contemplates the application of forfeiture by
wrongdoing to the silencing of witnesses before they report crimes at all,
particularly in domestic violence situations. 16 As the Court explained:
        Acts of domestic violence often are intended to dissuade a vic-
        tim from resorting to outside help, and include conduct de-
        signed to prevent testimony to police officers or cooperation in
        criminal prosecutions. Where such an abusive relationship cul-
        minates in murder, the evidence may support a finding that the
        crime expressed the intent to isolate the victim and to stop her
        from reporting abuse to the authorities or cooperating with a
        criminal prosecution—rendering her prior statements admissi-
        ble under the forfeiture doctrine. Earlier abuse, or threats of
        abuse, intended to dissuade the victim from resorting to out-
        side help would be highly relevant to this inquiry, as would ev-
        idence of ongoing criminal proceedings at which the victim
        would have been expected to testify.
Giles, 554 U.S. at 377 (emphasis added); see also id. at 379 (Souter, J., con-
curring) (suggesting that the exception’s common law roots leave no reason to
doubt that “the element of intent would normally be satisfied by the intent
inferred on the part of the domestic abuser in the classic abusive relationship,
which is meant to isolate the victim from outside help . . .”). Giles thus envi-
sions unconfronted, testimonial statements potentially being rendered admis-
sible where a prior abusive relationship suggests that a wrongful act is
performed with an intent to prevent the witness not only from testifying at
some formal proceeding, but also from reporting abuse, cooperating with law
enforcement, or resorting to outside help, irrespective of whether criminal
charges are reasonably foreseeable at the time of the conduct. In other words,
under Giles, the doctrine applies equally to wrongdoing to prevent testimony




        mistake must have existed in the mind of the accused and must have
        been reasonable under all the circumstances.
R.C.M. 916(j)(1). In essence, Giles requires only specific intent—that the intent or
design to cause the witness’ unavailability exist in the mind of the accused—not that
such intent be reached or measurable in any objectively reasonable way.
   16  Giles itself involved a domestic violence situation where the defendant shot and
killed his ex-girlfriend, claiming self-defense. Prosecutors sought to introduce
statements the decedent made to police three weeks before the shooting, alleging the
defendant had physically assaulted her over a suspected affair and threatened to kill
her if he ever found her cheating on him. Giles, 554 U.S. at 356-57.




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               United States v. Becker, NMCCA No. 201900342
                            Opinion of the Court

and to wrongdoing to prevent testimonial statements, such as formal report-
ing to law enforcement. See, e.g., Hammon v. Indiana, 547 U.S. 813 (2006)
(companion case to Davis v. Washington, 547 U.S. 813 (2006), wherein affida-
vit of wife to police officer responding to reported domestic disturbance was
held to be testimonial).
    Accordingly, we find that the military judge erred in applying the “rea-
sonable foreseeability” standard to evaluate intent or design, which unneces-
sarily narrows the forfeiture-by-wrongdoing test articulated by Giles and Mil.
R. Evid. 804(b)(6).

D. Relief
    As the military judge’s determination of the inadmissibility of certain pri-
or statements by Mrs. Becker was based on a legal principle we now hold to
be incorrect, we find his ruling was an abuse of discretion. We determine the
appropriate remedy for the error is to remand the case for additional proceed-
ings consistent with this opinion. United States v. Kosek, 41 M.J. 60, 64
(C.M.A. 1994).

                              III. CONCLUSION

    The Government’s appeal is GRANTED. The military judge’s ruling is
VACATED and the record of trial is returned to the Judge Advocate General
for remand to the convening authority and delivery to the military judge for
further consideration in light of this opinion. The military judge may, sua
sponte or at the request of either party, permit additional evidence or argu-
ment on the question of whether the preponderance of the evidence supports
application of the forfeiture-by-wrongdoing exception to the Confrontation
Clause and Military Rule of Evidence 804(b)(6) in light of Giles.


                                FOR THE COURT:




                                RODGER A. DREW, JR.
                                Clerk of Court




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