                                    IN THE CASE OF



                            UNITED STATES, Appellee

                                            v.

                      David N. BARRETO, Senior Airman
                         U.S. Air Force, Appellant

                                     No. 01-0819
                              Crim. App. No. 33948

             United States Court of Appeals for the Armed Forces

                              Argued February 26, 2002

                               Decided August 2, 2002

     EFFRON, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., GIERKE and BAKER, JJ., and SULLIVAN, S.J.,
joined.


                                        Counsel

For Appellant: Major Marc A. Jones (argued); Lieutenant Colonel Beverly B.
     Knott, Lieutenant Colonel Timothy W. Murphy, and Captain Patrick J. Dolan
     (on brief).


For Appellee: Captain Christa S. Cothrel (argued); Colonel Anthony P.
     Dattilo and Lieutenant Colonel Lance B. Sigmon (on brief).




Military Judge:   Rodger A. Drew, Jr.




         THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Barreto, No. 01-0819/AF



   Judge EFFRON delivered the opinion of the Court.

   A general court-martial composed of a military judge sitting

alone convicted appellant, in accordance with his pleas, of one

specification of reckless driving and one specification of

negligent homicide, in violation of Articles 111 and 134,

Uniform Code of Military Justice, 10 USC §§ 911 and 934.     He was

sentenced to a bad-conduct discharge, confinement for seven

months, forfeiture of $717 pay per month for seven months, and

reduction to E-2.    The convening authority approved the

sentence.    The Court of Criminal Appeals affirmed.   55 MJ 568

(2001).


     On appellant’s petition, we granted review of the following

issues:

            I. WHETHER THE MILITARY JUDGE ERRED IN
            DENYING THE DEFENSE'S MOTION FOR ABATEMENT
            OF APPELLANT'S COURT-MARTIAL PROCEEDINGS
            UNTIL SUCH TIME AS APPELLANT WAS ABLE TO
            ADEQUATELY ASSIST IN HIS DEFENSE.

            II. WHETHER THE MILITARY JUDGE ERRED IN
            DENYING THE DEFENSE'S MOTION FOR ABATEMENT
            OF APPELLANT'S COURT-MARTIAL PROCEEDINGS
            UNTIL SUCH TIME AS THE GOVERNMENT WAS ABLE
            TO SECURE THE PRESENCE OF ESSENTIAL
            WITNESSES.

For the reasons set forth below, we affirm.




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United States v. Barreto, No. 01-0819/AF


                            Background

     Appellant was involved in an automobile collision on

Bundesstrasse 50 (“B-50”), a winding two-lane highway in

Germany, between Spangdahlem and Bitburg Air Bases.     In support

of his guilty pleas, appellant entered into a stipulation with

the prosecution that established the following facts.     The

posted speed limit was 100 kilometers per hour (kph)

(approximately 62 miles per hour).   Due to congestion, traffic

in appellant’s direction was moving at 70 kph (approximately 43

miles per hour).   Appellant was observed driving a 1987 BMW 325i

in excess of the posted speed limit.     Appellant, while driving

in the left lane, passed three or four cars, then abruptly

reentered the right lane to avoid approaching cars.


     Moments later, after moving beyond the line of approaching

cars, appellant again pulled into the left lane to begin a

second passing maneuver.   The parties further stipulated:


          In the second passing maneuver, the accused
          crested a hill. . . . From the crest of
          this hill, an observer has the ability to
          see whether there is any oncoming traffic
          for seven or eight hundred meters. . . .
          After cresting the hill, the accused passed
          at least four cars while traveling downhill
          on a left curve at a speed in excess of 100
          kph. As the accused was passing, passengers
          in the vehicles he passed have stated that
          they believed that he would not be able to
          return to the right lane without hitting the
          oncoming truck.


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United States v. Barreto, No. 01-0819/AF



Witnesses further reported that appellant again reentered the

right lane abruptly, then braked to avoid going off the right

edge of the road as he rounded the curve.          As appellant engaged

the brakes and steered left, he overcorrected and lost control

of his car.    The car fishtailed, oscillating laterally to the

right and left, and spun into the path of the oncoming traffic.

Appellant missed the first two oncoming vehicles but struck two

others, a military-owned pickup truck and a civilian truck.


      Appellant’s passenger, Stephanie Dorfey, a German national,

suffered massive head trauma and died at the scene.            The driver

of the military pickup (a captain) and her passenger (a 15-year-

old military dependent) were seriously injured.           Each was

hospitalized for three days.        Appellant suffered a variety of

injuries, including a closed head injury, which required a five-

day hospital stay.      As a result of the head trauma, appellant

has not been able to remember the accident or the events

immediately preceding it.       Appellant has been diagnosed with

retrograde and anterograde amnesia.1         His only memory of the




1
  At defense request, a sanity board was convened to evaluate appellant’s
competence to stand trial. The board concluded that appellant was not
malingering and suffered from retrograde and anterograde amnesia, a condition
“very consistent with the type of [head] injury he received.” The board
further concluded that “there is no evidence that supports SrA Barreto having
any mental disease or defect either before or at the time of the motor
vehicle accident,” other than appellant’s inability to recall the accident.


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United States v. Barreto, No. 01-0819/AF


incident involves leaving Spangdahlem Air Base en route to the

Bitburg Exchange, and then waking up in the hospital.


                             *   *    *

     Prior to entering his guilty pleas, appellant moved to

abate the proceedings on account of his amnesia, contending his

condition prevented him from competently assisting in his

defense because he could not “communicate to his attorneys the

events surrounding the . . . accident” or “accurately or

reliably testify” to these facts.    Appellant also sought to

abate the proceedings on grounds that the prosecution failed to

produce two witnesses -- the driver of the oncoming truck in the

left lane and the last driver appellant passed in his lane of

travel -- whose testimony the defense claimed was “essential to

a fair trial, and there [wa]s no adequate substitute.”


     The prosecution's evidence in response to the defense

motions included the findings of two accident reconstruction

experts, physical evidence from the crash site, a computer

simulation reconstructing the accident, and 14 eyewitness

accounts that included 5 sworn statements.    The prosecution also

indicated that the convening authority provided appellant with

his own accident reconstruction expert and a part-time

investigator to assist the defense in analyzing the Government’s

evidence.   The parties further stipulated that appellant


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United States v. Barreto, No. 01-0819/AF


attended a “Local Conditions” briefing conducted by the Wing

Safety Office one month prior to the accident as a precondition

to obtaining a military driver’s license.          The briefing noted

that B-50 was Germany’s most dangerous highway and most problems

were due to excessive speed and improper passing.


      The Government’s evidence established that appellant’s BMW

had no defects which might have caused or otherwise contributed

to the accident, and the accident was the result of driver

error.   Prosecution experts concluded that appellant’s second

passing maneuver was unsafe because “the passing occurred on a

curve, at a high rate of speed, and in the face of oncoming

traffic.”    In addition, the experts concluded that appellant

lost control of his vehicle from overcorrecting his steering

after reentering his lane of travel.         The parties entered into a

pretrial agreement whereby appellant conditionally pled guilty,

preserving the right to appeal the two issues now before us.

See RCM 910(a)(2), Manual for Courts-Martial, United States

(2000 ed.).2


                                  ISSUE I


      As previously noted, the defense at trial moved to abate

the proceedings on grounds that appellant was incompetent to


2
  All Manual provisions cited are identical to the ones in effect at the time
of appellant’s court-martial.


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United States v. Barreto, No. 01-0819/AF


stand trial by reason of his amnesia.    The defense takes a

similar position in the present appeal, contending that

appellant’s memory loss “indicate[s] an inability to cooperate

rationally in [his] defense” because appellant could not tell

his counsel what happened or testify on his own behalf as to

what occurred.   Final Brief at 9.   The defense further contends

that as a matter of due process, a person who has no memory of

the alleged crime cannot be convicted unless the prosecution’s

evidence “negates all reasonable hypotheses of innocence.”      Id.

at 10, citing Wilson v. United States, 391 F.2d 460 (D.C. Cir.

1968).   The defense suggests that there is a “reasonable”

hypothesis of innocence -- the “possib[ility] that . . . his

passenger [Ms. Dorfey] engaged in some negligent act – such as

grabbing at the wheel or otherwise distracting” appellant, and

that her conduct was the proximate cause of the accident.      Id.

at 11.


                            Discussion

     The question of whether an accused is mentally competent to

stand trial is one of fact, and “we will overturn the military

judge’s determination on appeal only if it is clearly

erroneous.”   United States v. Proctor, 37 MJ 330, 336 (CMA

1993); see also RCM 909(e), Manual, supra.    The governing

provision, RCM 909, provides in relevant part:



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United States v. Barreto, No. 01-0819/AF


          (a) In general. No person may be brought to
          trial by court-martial if that person is
          presently suffering from a mental disease or
          defect rendering him or her mentally
          incompetent to the extent that he or she is
          unable to understand the nature of the
          proceedings against them or to conduct or
          cooperate intelligently in the defense of
          the case.



          (b) Presumption of capacity. A person is
          presumed to have the capacity to stand trial
          unless the contrary is established.


                              * * *

          (e) Incompetence determination hearing.

          (1) Nature of issue. The mental capacity of
          the accused is an interlocutory question of
          fact.

          (2) Standard. Trial may proceed unless it
          is established by a preponderance of the
          evidence that the accused is presently
          suffering from a mental disease or defect
          rendering him or her mentally incompetent to
          the extent that he or she is unable to
          understand the nature of the proceedings or
          to conduct or cooperate intelligently in the
          defense of the case. In making this
          determination, the military judge is not
          bound by the rules of evidence except with
          respect to privileges.

          (3) If the military judge finds the accused
          is incompetent to stand trial, the judge
          shall report this finding to the general
          court-martial convening authority, who shall
          commit the accused to the custody of the
          Attorney General.

(Emphasis added.)


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United States v. Barreto, No. 01-0819/AF


     Under the rule, an accused must have “sufficient present

ability to consult with his lawyer with a reasonable degree of

rational understanding – and . . . a rational as well as factual

understanding of the proceedings against him” in order to stand

trial.   Proctor, 37 MJ at 336 (quoting Dusky v. United States,

362 U.S. 402 (1960)).    An accused’s inability to remember the

details of an offense does not, without more, compel a finding

of incompetence.    United States v. Olvera, 4 USCMA 134, 15 CMR

134 (1954).   With respect to amnesia, we have noted:

               Concededly, such an accused is at some
          disadvantage -- for, if innocent, he does
          not demonstrate that quality by testimony
          that he . . . does not remember. However,
          he is still quite competent to assume the
          witness stand, and to assure the court that
          he does not remember -- and he is certainly
          able to analyze rationally the probabilities
          of his having committed the offense in light
          of his own knowledge of his character and
          propensities.

Id. at 142, 15 CMR at 142.


     As in Olvera, appellant’s amnesia did not preclude him from

intelligently cooperating in his defense or taking the stand on

his own behalf.    RCM 909(a).   He does not contend that   his

amnesic condition impaired his ability to rationally examine and

assess the strength of the Government’s evidence against him.

As noted in the military judge's findings of fact, appellant

exhibited “poise[], clearly understood the questions put to him



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United States v. Barreto, No. 01-0819/AF


by his counsel, and provided clear and credible responses” when

he testified during the hearing to consider the abatement

motion.   Moreover, the defense was provided with its own

accident reconstruction expert and an independent investigator

to assist in preparing a defense and evaluating the Government’s

evidence.   The prosecution also provided the defense with

unlimited access to the Government’s experts, and all its

evidentiary files.


     The military judge also noted that, although appellant had

no memory of the accident itself, he was not precluded from

“providing his defense counsel with his knowledge of his

character, propensities, driving habits, and previous

experiences with his vehicle and the roadway involved in the

incident,” and identifying character witnesses to corroborate or

otherwise testify to these matters on his behalf.   See Olvera,

supra.


     Under these circumstances, appellant’s decision to plead

guilty reflected a rational decision made in light of the

prosecution’s overwhelming evidence of his guilt.   This included

14 eyewitnesses -- witnesses who were available to the defense

for interview and cross-examination -- the testimony of two

accident reconstruction experts, physical and documentary

evidence collected at the crash site, and a computer simulation


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United States v. Barreto, No. 01-0819/AF


reconstructing the accident.        This evidence provided ample

grounds to prove that appellant was driving recklessly along B-

50 prior to the accident, with specific knowledge that B-50 was

a dangerous roadway,3 and that his BMW spun out of control after

he attempted to pass four or five cars along a curve at an

unsafe speed in the face of oncoming traffic.


      In affirming the military judge’s ruling, the Court of

Criminal Appeals relied on the test set out in Wilson, supra.4

In Wilson, the court identified six factors to be considered

when assessing the capacity of an amnesic defendant to stand

trial, three of which are pertinent to the present case:


            (3) The extent to which the evidence in suit
            could be extrinsically reconstructed in view
            of the defendant's amnesia. Such evidence
            would include evidence relating to the crime
            itself as well as any reasonably possible
            alibi.

            (4) The extent to which the Government
            assisted the defendant and his counsel in
            that reconstruction.

            (5) The strength of the prosecution's case.
            Most important here will be whether the

3
  Appellant’s amnesia did not prevent him from remembering the fact that he
had attended the “Local Conditions” briefing on B-50 just weeks before the
accident and had personal knowledge that it was a dangerous highway. His
memory loss was only limited to the facts of the accident. See n.1, supra.
4
  We need not decide whether, as a general matter, the test in Wilson should
be applied in all memory loss cases. In the present case, the application of
the Wilson factors by the Court of Criminal Appeals satisfied the standards
we have applied in prior cases and more than adequately protected appellant’s
substantial rights.


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United States v. Barreto, No. 01-0819/AF


              Government's case is such as to negate all
              reasonable hypotheses of innocence. If
              there is any substantial possibility that
              the accused could, but for his amnesia,
              establish an alibi or other defense, it
              should be presumed that he would have been
              able to do so.[5]

391 F.2d at 463 (footnote omitted).


        Regarding the third factor, the court below concluded that

this requirement was more than met by the Government’s

submitting into evidence the findings of its two accident

reconstruction experts, physical evidence taken from the

accident site, and a computer simulation reconstructing the

accident.      55 MJ at 571.     The court further observed that the

Government “went to great lengths to assist the defense” by

providing the defense team its own independent investigator and

accident reconstruction expert, satisfying the fourth factor.

Id.




5
    The other factors identified by the Wilson court are:

              (1) The extent to which the amnesia affected the
              defendant's ability to consult with and assist his
              lawyer.

              (2) The extent to which the amnesia affected the
              defendant's ability to testify in his own behalf.

                                    *   *    *

              (6) Any other facts and circumstances which would
              indicate whether or not the defendant had a fair
              trial.



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United States v. Barreto, No. 01-0819/AF


      We agree with the Court of Criminal Appeals that this

evidence “negated any other reasonable hypothesis” of

appellant’s innocence (fifth factor).         Id.   Appellant’s

passenger interference theory –- that Ms. Dorfey may have done

something to interfere with his driving when he abruptly

reentered the right lane –- is speculative at best.            The record

is devoid of evidence that would justify concluding that this

theory constituted a “reasonable” hypothesis of innocence.

Moreover, the defense did not otherwise present sufficient

evidence to demonstrate a “substantial possibility” that

appellant could have established a defense even with a full

memory.   We also note that while the fact of appellant’s amnesia

did not warrant the abatement of his trial, he was free to

present evidence of his memory loss and his theory of passenger

interference to the court-martial.6


                                  ISSUE II


      At trial, defense counsel also moved to compel production

of two witnesses -- the driver of the lead truck approaching in

the left lane and the driver of the last vehicle appellant


391 F.2d at 463-64 (footnote omitted).
6
  We have noted elsewhere that if it were shown that an accused’s amnesic
condition was temporary, judicial discretion may warrant the grant of a
“reasonable continuance[] to effectuate the recovery of memory.” United
States v. Olvera, 4 USCMA 134, 142, 15 CMR 134, 142 (1954). However, the
sanity board concluded, and appellant concedes, that it is likely he will
never recover his memory of the accident.


                                     13
United States v. Barreto, No. 01-0819/AF


passed in the right lane -- or, in the alternative, to abate the

proceedings.       Neither the defense nor the prosecution had

knowledge of the names or contact information for these

witnesses.      The defense first requested production of the

unknown witnesses on May 3, 1999, in a memorandum to the Article

327 investigating officer pursuant to RCM 405(g), Manual, supra,

approximately eight months after the accident.        In an attempt to

locate the witnesses, the Government placed ads in German and

U.S. newspapers in the summer of 1999. Although four

eyewitnesses responded, there was no response from the two

drivers requested by the defense.


        Defense counsel argued that testimony from the unknown

witnesses was essential to a fair trial because they were the

only persons with unobstructed views of the accident.        In

response, the Government noted that 3 of its 14 eyewitnesses

stated that they had unobstructed views of appellant’s second

passing maneuver and of the accident itself.


        The military judge denied the defense motion and noted:


              [T]he prosecution has done all that it is
              required to do in the way of investigating
              its case, as well as disclosing the
              information that it has available to the
              defense . . . . It is impressive that the
              number of witnesses that the prosecution has
              been able to locate, even given the amount
7
    Uniform Code of Military Justice, 10 USC § 832.


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United States v. Barreto, No. 01-0819/AF


          of time after the events occurred, when the
          Government began its media campaign, if you
          will, to try to alert the members of the
          U.S. and German communities as to the need
          for them to come forward. A number of such
          people did, in fact, come forward[.]

The military judge further found that the prosecution’s evidence

was more than sufficient to substitute for the unknown

witnesses.     The defense did not allege bad faith and agreed that

the “prosecutors have acted in good faith and done everything

they could, [but] they didn’t start until too late.”


                              Discussion


     We have held that “[a] trial may proceed in the absence of

a relevant and necessary witness if that witness is not amenable

to process.”    United States v. Davis, 29 MJ 357, 359 (CMA 1990)

(citing Mil. R. Evid. 804(a) and RCM 703(b)(3), Manual, supra).

The issue as to whether the prosecution has satisfied its duty

to produce under RCM 703 “‘is a question of reasonableness.’

The ultimate question is whether the witness is unavailable

despite good-faith efforts undertaken prior to trial to locate

and present that witness.”    Id. (quoting Ohio v. Roberts, 448

U.S. 56, 74 (1980)).    Once the unavailability of a witness is

established, RCM 703(b)(3) provides:


          Unavailable witness. Notwithstanding
          subsections (b)(1) and (2) of this rule, a
          party is not entitled to the presence of a


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United States v. Barreto, No. 01-0819/AF


            witness who is unavailable within the
            meaning of Mil. R. Evid. 804(a). However,
            if the testimony of a witness who is
            unavailable is of such central importance to
            an issue that it is essential to a fair
            trial, and if there is no adequate
            substitute for such testimony, the military
            judge shall grant a continuance or other
            relief in order to attempt to secure the
            witness’ presence or shall abate the
            proceedings, unless the unavailability of
            the witness is the fault of or could have
            been prevented by the requesting party.


     We note, as an initial matter, that the Government had very

little with which to work as it attempted to locate the unknown

witnesses.    Defense counsel did not provide the prosecution with

names, contact data, or any other identifying information that

could be used to locate and produce them, as the Manual

requires.     See RCM 703(c)(2)(B)(i).   Appellant does not contend

that the Government failed to undertake reasonable efforts or

exert due diligence in this endeavor, and does not allege bad

faith by the prosecutors or investigators.     We also note that

defense counsel did not suggest to the court other means that

the Government could have been ordered to employ, in addition to

running newspaper ads, to locate the two drivers.


     We reject appellant’s contention that the missing witnesses

were “critical and vital” to his defense and necessary for a

fair trial.    It is not clear whether the driver of the lead

truck in the left lane even witnessed the accident, and the


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United States v. Barreto, No. 01-0819/AF


record indicates that the driver of the lead truck did not stop.

Appellant hit the third vehicle, and the driver of the second

car -- a surgeon who stopped to render aid -- stated that he

witnessed the collision from his rearview mirror.   Further, the

Government’s proffer of three witnesses with unobstructed views

of appellant as he drove along B-50 and the accident, in

addition to its other eyewitness and expert evidence,

constituted an adequate substitute for the testimony of the

unknown witnesses.


                           Conclusion

     The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




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