UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                           Before
                              COOK, CAMPANELLA, and HAIGHT
                                  Appellate Military Judges

                               UNITED STATES, Appellant
                                             v.
                              Specialist ROBERT J. TRANK
                               United States Army, Appellee

                                    ARMY MISC 20130742

                         Headquarters, 25th Infantry Division
                            David L. Conn, Military Judge
                    Colonel Mark A. Bridges, Staff Judge Advocate


For Appellee: Colonel Kevin Boyle, JA; Major Jacob D. Bashore, JA; Major Amy E.
Nieman, JA (on brief).

For Appellant: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley,
JA; Major Kenneth W. Borgnino, JA (on brief).


                                        19 November 2013

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                    MEMORANDUM OPINION AND ACTION ON APPEAL
                       BY THE UNITED STATES FILED PURSUANT TO
                   ARTICLE 62, UNIFORM CODE OF MI LITARY JUSTICE
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  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

CAMPANELLA, Judge:

       Appellee is charged with one specification of aggravated sexual assault, one
specification of aggravated sexual contact, and one specification of lewd acts, all
with a child between the ages of 12 and 16 years of age, in violation of Article 120,
Uniform Code of Military Justice 10, U.S.C. § 920 (2006 & Supp. III) [hereinafter
UCMJ]. This case is before this court pursuant to a government appeal of the
military judge’s ruling in accordance with Article 62, UCMJ, and Rule for Courts-
Martial 908(a).

      The alleged child victim in this case, (ST), provided sworn testimony at
appellee’s Article 32, UCMJ, investigative hearing [hereinafter Article 32 hearing].
ST subsequently obtained legal representatio n and invoked her right against self-
TRANK – ARMY MISC 20130742

incrimination at an Article 39(a), UCMJ, session the military judge held several
months later. At that time, she also refused to cooperate further without first being
granted transactional immunity, despite already being provided testimonial
immunity.

       The government subsequently moved to have ST declared unavailable and to
allow her Article 32 hearing testimony to be admitted into evidence at appellee’s
court-martial. 1 The military judge determined ST was “unavailable” for purposes of
Military Rule of Evidence 804(b)(1), but then found that the defense did not have a
“similar motive” to cross-examine ST at the Article 32 hearing as they would have at
the court-martial due to her subsequent proffered recantation. It was upon this
second basis that the military judge determined ST’s Article 32 hearing testimony
could not be used as a substitute for her testimony at the court-martial.

       As discussed below, we find that the defense had not only the opportunity to
cross-examine ST, but also possessed a similar motive at the Article 32 hearing to
develop ST’s testimony during cross-examination as they would at a court -martial.
We find that the military judge abused his discretion in denying the government’s
motion to admit the ST’s Article 32 hearing testimony. We, therefore, reverse the
military judge’s decision to deny the admission of ST’s Article 32 hearing testimony
and remand for further action in accordance with this ruling.

                                  BACKGROUND

       On 1 November 2012, while appellee was deployed to Afghanistan, ST
alleged in a note to her mother that her stepfather (appellee), had “touched [her]
inappropriately” and that it had been occurring for “a while.” She wrote that she
was depressed and she did not want to tell her mother because she wanted her
mother to be happy. ST concluded by asserting, “If you don’t believe me, it[’s] fine
but either way, I can’t stay here.” At the time of the alleged offenses, ST was
thirteen and fourteen years old.




1
 In accordance with Mil. R. Evid. 804(b)(1), the government moved to admit a
“transcript” of ST’s Article 32 hearing testimony. Although its motion in limine
did not expressly designate ST’s testimony as a “verbatim record” of the hearing as
required by the rule, the government provided this court with a typewritten copy that
purports to be a verbatim transcript, and the military judge’s findings and
conclusions were based on this presumption as well. Our decision is conditioned
upon the availability and introduction of a verbatim transcript of ST’s Article 32
hearing testimony.




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       On 2 November 2012, in response to her daughter’s assertion regarding her
stepfather, ST’s mother confronted appellee via video-teleconference (Skype), in the
presence of ST. Appellee denied the allegations and suggested ST had concocted the
allegations in an effort to return to Alabama.

       On 2 November 2012, ST confided in her friend, JT, via text-message, that
appellee had touched her inappropriately and that she was depressed. ST also wrote
that she had told her mother about appellee touching her inappropriately. JT, in
turn, told her mother who then contacted the military police. ST previously told at
least two other friends on previous occasions that appellee had been touching her
inappropriately.

       On 3 November 2012, Army criminal investigators opened a criminal
investigation into the allegations and interviewed ST and her mother. In a sworn
statement, ST generally alleged appellee had, on divers occasions in 2011, touched
her inappropriately. ST specifically alleged that shortly after the family moved to
Hawaii in 2011, appellee began entering her bedroom once or twice a week at around
0530 in the morning, ostensibly to wake her up. Sometimes he would sit on the edge
of the bed, while other times he would lie down next to her. During these occasions,
appellee allegedly touched ST’s vagina both over and inside her panties. She
alleged that on at least three occasions he placed his finger inside her vagina. ST
also alleged appellee touched her buttocks and breasts. The incidents continued for
about a year until shortly before appellee deployed in 2012. In her sworn statement
to investigators, ST stated she was scared appellee would “take it too far” by
“putting his penis into [her] vagina.”

      ST’s mother, in an interview with Army criminal inv estigators on 3 November
2012, expressed some reservations about whether or not ST was telling the truth.
She indicated the allegations may be a way for ST to return to Alabama.

      On 20 February 2013, charges were preferred against the appellee.

      On 5 April 2013, ST testified at appellee’s Article 32 hearing, consistent with
her sworn statement to criminal investigators. At the Article 32 hearing, the defense
had the opportunity to cross-examine ST and did so regarding many matters such as
ST’s possible bias and possible motive to fabricate.

      On 2 May 2013, the convening authority referred the case to a general court-
martial and the case was docketed for trial.

      On 22 May 2013, appellee was arraigned and the military judge set the court -
martial date for 22-24 July 2013.




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TRANK – ARMY MISC 20130742

       On 21 June 2013, the trial counsel received a phone call from a lawyer who
had been retained by ST’s mother to represent ST. The lawyer stated that ST would
recant if called to testify and she no longer wished to testify. He further stated that
under advice of counsel, ST would invoke her right against self-incrimination if
called to testify.

       In an effort to facilitate obtaining ST’s further cooperation and testimony, the
government sought a grant of testimonial immunity from the Assistant United States
Attorney in Hawaii. On 17 July 2013, the government’s request was granted by the
Department of Justice. The government also attempted to obtain testimonial
immunity from the state of Hawaii, but it declined and provided the government with
case law to indicate the probability of prosecution was extremely remote given
judicial precedent.

       On 24 July 2013, the military judge held an Article 39(a), UCMJ, session to
resolve the issue related to ST’s further testimonial cooperati on. At this session, ST
was questioned by the military judge and government counsel, and refused to answer
any questions related to the substantive sexual allegations she had previously lodged
against appellee. ST also indicated she would invoke her right against self-
incrimination regarding the allegations if called to testify and she would refuse to
follow the military judge’s order to testify, unless the testimonial immunity was
broadened to transactional immunity. Her legal counsel further explained ST’s
position, proffering that ST would make statements inconsistent with her previous
statements if she were to testify and he reiterated that absent transactional immunity
to fully protect her from possible prosecution , ST would invoke her right against
self-incrimination.

       During the Article 39(a) session, the government asserted that it had tried and
failed in obtaining transactional immunity from the State of Hawaii and that it did
not intend to seek such a grant from the Department of Justice.

      The government moved to have ST declared unavailable under Military Rule
of Evidence [hereinafter Mil. R. Evid.] 804 due to her refusal to testify and to admit
her Article 32 hearing testimony as a substitute for her appearance at appellee’s
court-martial.

       The military judge considered both government and defense written briefs and
issued findings of fact and conclusions of law on 22 August 2013. The military
judge determined that ST was “unavailable” within the meaning of Mil. R. Evid.
804, but that the government had failed to meet its burden to show that the defense
had a sufficiently “similar motive” to cross-examine ST at the Article 32 hearing as
they did after the subsequent “recantation” proffered by her legal counsel. The
military judge, therefore, decided ST’s Article 32 hearing testimony could not be
used as a substitute for her appearance at the court -martial.



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TRANK – ARMY MISC 20130742

    MILITARY JUDGE’S FINDINGS OF FACT AND CONCLUSIONS OF LAW

       In making his findings of fact, the military judge found as follows:

      Subsequent to the referral of charges, ST retained legal counsel. ST’s legal
counsel advised the government that ST “had recanted her earlier allegations and
testimony and would invoke her 5 th Amendment privilege against self-
incrimination.” The government obtained testimonial immunity from the
Department of Justice, but not from the State of Hawaii. Hawaii provided judicial
precedent reflecting that immunity was not necessary and the likelihood of
prosecution was extremely remote.

      ST appeared at an Article 39(a) session and invoked her right against self -
incrimination regarding her anticipated testimony and refused to obey the military
judge’s order to testify absent an extension of testimonial immunity to transactional
immunity.

       ST’s legal counsel reiterated that ST would continue to refuse to provide
substantive testimony regarding the allegations and not comply with the court’s
order to testify absent a grant of [transactional] immunity. 2

       In stating his conclusions of law the military judge wrote:

             The similar motive requirement considers the similarity of
             the underlying issues and the context of the questioning
             . . . [at the] Article 32 [hearing], the Defense had no basis
             to seek to impeach [ST] on her recantation, and will not be
             able to confront her on this recantation if the Government
             were permitted to offer such evidence in the form of her
             Article 32 [hearing] testimony at trial.

       He further concluded:

             The substance of the Defense Counsel’s cross -examination
             would be fundamentally different at trial and the necessity
             of confrontation on issues not in existence at the time of
             the Article 32 [hearing] would be paramount. I conclude

2
 The military judge apparently mistakenly wrote “grant of testimonial immunity” in
his written decision but it is clear from the context and content of the Article 39(a),
UCMJ, hearing transcript and the briefs that the military judge meant “transactional
immunity.”




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TRANK – ARMY MISC 20130742

             that the Government failed to bear its burden to
             demonstrate a “similar motive” to cross-examine [ST].

      The government appealed the military judge’s ruling pursuant to R.C.M. 908
and Article 62, UCMJ.

                             STANDARD OF REVIEW

       A military judge’s decision to exclude or suppress evidence is reviewed for an
abuse of discretion. United States v. Wuterich, 67 M.J. 63, 77 (C.A.A.F. 2008);
United States v. Baker, 70 M.J. 283, 287 (C.A.A.F. 2011). We will reverse for an
abuse of discretion if the military judge’s findings of fact are clearly erroneous or if
his decision is influenced by an erroneous view of the law. United States v. Owens,
51 M.J. 204, 209 (C.A.A.F. 1999). Moreover, when reviewing matters under Article
62(b), UCMJ, we “will take action only with respect to matters of law,” and we are
“bound by the military judge’s factual determinations unless they are unsupported by
the record or clearly erroneous.” R.C.M. 908(c)(2); United States v. Gore, 60 M.J.
178, 185 (C.A.A.F. 2004). “On a mixed question of law and fact . . . a military judge
abuses his discretion if his findings of fact are clearly erroneous or his conclusions
of law are incorrect.” Baker, 70 M.J. at 287 (quoting United States v. Ayala, 43 M.J.
296, 298 (C.A.A.F 1995)).

                                         LAW

       At its core, the simple question posed by this government appeal is whether
the motive to cross-examine a complaining witness is changed somehow by an
indication that the witness may desire to recant. We find the motive does not
change. While cross-examination of a witness is likely easier when that witness has
provided a prior inconsistent statement, the appellee’s motive to cast doubt upon the
victim’s story remains the same.

       The Confrontation Clause of the Sixth Amendment provides that “[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him.” U.S. Const. amend. VI. The Supreme Court has decided
that before the prosecution may introduce “testimonial” out-of-court statements into
evidence against an accused, the Confrontation Clause requires that the witness who
made the statement be unavailable, and that the accused have had a prior opportunity
to cross-examine the witness. 3 Crawford v. Washington, 541 U.S. 36, 53–54 (2004).

3
  “In order for a witness to be ‘unavailable’ for Sixth Amendment purposes, the
government must first make a ‘good faith’ effort to secure the witness’s presence a t
trial. . . . [T]he lengths to which the prosecution must go to produce a witness is

                                                                        (continued . . .)


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TRANK – ARMY MISC 20130742

“An important function of this constitutionally protected right is to provide the
defense an opportunity to expose the possible interests, motives, and biases of
prosecution witnesses.” United States v. Carruthers, 64 M.J. 340, 341 (C.A.A.F.
2007).

       The United States can compel testimony from an unwilling witness who
invokes the Fifth Amendment privilege against compulsory self -incrimination by
conferring testimonial immunity, as provided by 18 U.S.C. § 6002 (2012). The
compelled testimony and evidence derived therefrom is not admissible in subsequent
criminal proceedings against the immunized party, and this immunity is sufficient to
compel testimony over a claim of the privilege. “Transactional immunity” would
afford broader protection than the Fifth Amendment privilege, but is not
constitutionally required. Kastigar v. United States, 406 U.S. 441, 453 (1972).

       Regarding hearsay statements, the Military Rules of Evidence, like their
Federal counterpart, flow from the Sixth Amendment and generally prohibit the use
of hearsay evidence. Military Rule of Evidence 804(b)(1) provides that verbatim
Article 32 hearing testimony is admissible when “the party against whom the former
testimony is now offered had an opportunity and similar motive to develop the
testimony by direct, cross, or redirect examination. ” The “similar motive”
requirement is satisfied if counsel had the opportunity to cross -examine the witness
without restriction on the scope of the examination even if counsel subsequently
discovers information which was not available at the Article 32 hearing. United
States v. Connor, 27 M.J. 378, 389 (C.M.A. 1989).

      . . . [The] admissibility of the former testimony is not impaired by
      lack of an opportunity to cross-examine the witness about matters of
      which the defense has subsequently acquired knowledge, so long as
      it reasonably can be concluded that the motive for cross-
      examination at the pretrial hearing was “similar” to that which
      would have existed if the witness had appeared at trial. In short,
      “opportunity” to cross-examine does not mean that the cross-
      examiner have at his disposal all the materials which he might
      desire.

Id. at 391 (citing Pennsylvania v. Ritchie, 480 U.S. 39 (1987)).


(. . . continued)
determined under a reasonableness standard. . . . The test for unavailability focuses
on ‘whether the witness is not present in court despite good-faith’ efforts by the
government to locate and present the witness. ” United States v. Cabrera-Frattini,
65 M.J. 241, 245 (C.A.A.F. 2007) (citations omitted).




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TRANK – ARMY MISC 20130742

        In United States v. Salerno, the Supreme Court held that a party has no right
to introduce former testimony under Federal Rule of Evidence 804 without showing
similar motive. 505 U.S. 317, 322 (1992). “Because ‘similar motive’ does not mean
‘identical motive,’ the similar-motive inquiry . . . is inherently a factual inquiry,
depending in part on the similarity of the underlying issues and on the context of the
. . . questioning.” Id. at 326 (Blackmun, J., concurring) (emphasis in original).
Further, “the Confrontation Clause guarantees only ‘an opportunity for effective
cross-examination, not cross-examination that is effective in whatever way, and to
whatever extent, the defense might wish.’” United States v. Rhodes, 61 M.J. 445,
449 (C.A.A.F. 2005) (quoting United States v. Owens, 484 U.S. 554, 559 (1988)).

                                     ANALYSIS

       Reviewing the military judge’s conclusions of law de novo, we find he abused
his discretion in determining that the government failed to meets its burden to show
“similar motive” to cross-examine ST at the time of the Article 32 hearing. We
further find the military judge based his conclusions of law on clearly erroneous
findings of fact.

       The government demonstrated a good faith effort to make ST available for
appellee’s court-martial. After the government was informed by ST’s legal counsel
that ST would not testify at appellee’s court-martial without immunity, the
government sought and obtained testimonial immunity from the Department of
Justice to overcome the victim’s privilege against self-incrimination. The defense’s
assertion that the government need only obtain transactional immunity to make the
witness available fails in light of the holding in Kastigar, 406 U.S. 441, 453. The
government is not required to seek transactional immunity to demonstrate a good
faith effort. By obtaining testimonial immunity, the government provided the
constitutionally required protection provided by the Fifth Amendment. Id. We
agree with the military judge’s ruling that ST was “unavailable” pursuant to Mil. R.
Evid. 804.

       Once declared unavailable in accordance with Mil. R. Evid. 804, former
verbatim testimony given as a witness at an Article 32 hearing may be used against a
party who had a similar motive and opportunity to develop the testimony at that
hearing by cross-examination. In a case where a motive exists to dispute a victim’s
account of information and a victim’s credibility is the central issue in the case, it
would be significant to the defense to demonstrate the implausibility or
unbelievability of the victim’s testimony. In this case, the defense’s motive to
develop ST’s testimony at the Article 32 hearing is not just similar, it is the same as
it would be at a court-martial. The defense’s motive to cross-examine ST’s
testimony was to attack ST’s credibility, to examine ST for possible bias, to find
motive to fabricate, and to deconstruct and analyze any inconsistencies in her
allegations. The opportunity to develop this motive is exhibited by the defense in



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TRANK – ARMY MISC 20130742

their probing cross-examination of ST at the Article 32 hearing. We are at a loss to
see how the proffered “recantation” by ST’s defense counsel change s the nature of
the defense’s motive to develop that testimony.

       That said, even if the military judge’s legal analysis w as sound regarding the
“similar motive” analysis, we find the military judge’s legal conclusion is based on
clearly erroneous facts.

      The military judge asserted that at the time of the Article 32 hearing, the
defense had no basis to impeach ST on her “recantation” and “will not be able to
confront her on this recantation if the government were permitted to offer such
evidence in the form of her Article 32 testimony at trial.” A careful reading of the
record reveals that it contains no actual recantation by ST. At the Article 39(a)
session, ST exercised her right to not i ncriminate herself and requested transactional
immunity. She did not recant.

       Her legal counsel’s proffer of a possible recantation is not evidence. This
court will not speculate as to the possible existence of a recantation. In fact, the
most compelling indication of what a witness would say under oath and subject to
cross-examination is what that witness has previously said under oath and subject to
cross-examination. As such, we find that the military judge’s findings of fact
reflecting that a similar motive does not exist because the defense cannot cross the
victim on her “recantation,” clearly erroneous.

                                   CONCLUSION

       Based upon our review of the record, the appeal of the United States is
granted. The military judge’s ruling to deny the government’s motion to admit ST’s
testimony provided at appellee’s Article 32, UCMJ, investigative hearing is,
therefore, reversed. The appellee’s court-martial may proceed to trial in accordance
with Rule for Courts-Martial 908(c)(3).

      Senior Judge COOK and Judge HAIGHT concur.

                                        FOR THE
                                            THECOURT:
                                                COURT:




                                        MALCOLM H.
                                        MALCOLM       H.SQUIRES,
                                                         SQUIRES,JR.JR.
                                        Clerk of Court
                                        Clerk of Court




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