                        UNITED STATES, Appellee


                                     v.

               Daniel M. PACK Jr., Gunnery Sergeant
                   U.S. Marine Corps, Appellant

                               No. 07-0085
                       Crim. App. No. 200400772

       United States Court of Appeals for the Armed Forces

                        Argued October 25, 2007

                      Decided December 12, 2007

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

                                  Counsel

For Appellant: Lieutenant Kathleen L. Kadlec, JAGC, USN
(argued); Lieutenant Brian L. Mizer, JAGC, USN.

For Appellee: Captain Roger E. Mattioli, USMC (argued); Major
Brian K. Keller, USMC (on brief); Commander Paul C. LeBlanc,
JAGC, USN.

Amicus Curiae for Appellant: Susan A. Castorina (law student)
(argued); Seth M. Lahn, Esq. (supervising attorney); Emmanuel V.
R. Boulukos, (law student) (on brief) -- for the Indiana Law
School, Bloomington.

Amicus Curiae for Appellee: Paul H. Threatt (law student)
(argued); Aviva A. Orenstein, Esq. (supervising attorney);
Aravon B. McCalla (law student) (on brief) -- for the Indiana
Law School, Bloomington.

Military Judges: S. M. Immel (arraignment) and P. J. Betz Jr.
(trial)



        THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Pack Jr., No. 07-0085/MC


    Judge RYAN delivered the opinion of the Court.

    The decisional issue in this case is whether Crawford v.

Washington, 541 U.S. 36 (2004) so undermined the reasoning in

Maryland v. Craig, 497 U.S. 836 (1990) that this Court is free

to disregard Craig and hold that anything short of face-to-face

confrontation at trial violates the Sixth Amendment.   If so, it

would inexorably follow that Rule for Courts Martial (R.C.M.)

914A and Military Rule of Evidence (M.R.E.) 611(d), which are

based on the holding in Craig and permit a child witness to

testify via closed-circuit television, are unconstitutional.

    There is support for Appellant’s argument that aspects of

Crawford are difficult to reconcile with aspects of Craig.      See

infra, at pp. 8-11.    But the Supreme Court did not overrule

Craig or even mention it in Crawford.    And the holding in

Crawford turned on whether, and under what circumstances,

testimonial hearsay, which by definition does not involve face-

to-face confrontation at trial, may be admitted, consonant with

the Confrontation Clause of the Sixth Amendment.   Consequently,

Craig continues to control the questions whether and how child

witness testimony via closed-circuit television is

constitutional.

                      I.   Procedural Background

     A general court-martial composed of officer and enlisted

members convicted Appellant, contrary to his pleas, of six


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United States v. Pack Jr., No. 07-0085/MC


specifications of indecent acts with a child in violation of

Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §

934 (2000).   The sentence adjudged by the court-martial and

approved by the convening authority included a dishonorable

discharge, confinement for twenty-three years, and reduction to

the lowest enlisted grade.    The Navy-Marine Corps Court of

Criminal Appeals dismissed one specification, reassessed the

sentence, and approved the adjudged sentence, but reduced

confinement to twenty-two years.       United States v. Pack, No.

NMCCA 200400772, 2006 CCA LEXIS 286, at *27, 2006 WL 4579021, at

*10 (N-M. Ct. Crim. App. Oct. 26, 2006) (unpublished).

     On Appellant’s petition, we granted review of the question:

     [WHETHER] IN LIGHT OF CRAWFORD V. WASHINGTON, 541 U.S. 36
     (2004), WAS APPELLANT DENIED HIS SIXTH AMENDMENT RIGHT TO
     CONFRONT HIS ACCUSER WHEN THE MILITARY JUDGE ALLOWED MP TO
     TESTIFY FROM A REMOTE LOCATION VIA ONE-WAY CLOSED-CIRCUIT
     TELEVISION.1


                      II.    Factual Background

     The charges referred against Appellant arise from his

sexual abuse of his eight-year-old stepdaughter MP over a period


1
  65 M.J. 276 (C.A.A.F. 2007). We heard oral argument in this
case at the Indiana University School of Law, Bloomington,
Indiana, as part of the Court’s Project Outreach. See United
States v. Mahoney, 58 M.J. 346, 347 n.1 (C.A.A.F. 2003). This
practice was developed as part of a public awareness program to
demonstrate the operation of a federal court of appeals and the
military justice system.




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United States v. Pack Jr., No. 07-0085/MC


in excess of a year.    At the time of trial, MP was ten years

old.   Appellant’s actions resulted in MP suffering psychological

problems, for which she required extensive counseling.    The

Government petitioned the military judge to allow MP to testify

from a remote location via one-way closed-circuit television

pursuant to M.R.E. 611(d) and R.C.M. 914A.   The defense objected

to the request, arguing that it denied Appellant his right to

confront his accuser.

       The military judge conducted an evidentiary hearing on the

Government’s motion.    At the hearing, the military judge heard

expert testimony from MP’s treating psychologist.   Based on this

testimony, the military judge made findings of fact and

conclusions of law.    The military judge recognized that the

requirements of M.R.E. 611 must be read in conjunction with

Craig, 497 U.S. at 836, in which the Supreme Court held the use

of remote live testimony via one-way closed-circuit television

permissible only where particular circumstances were found.2

Based on the evidence presented, the military judge found those

circumstances in this case:   the need to protect the welfare of

the child witness seeking to testify; traumatization of the

child by the presence of the defendant, not the courtroom




2
  Accord United States v. McCollum, 58 M.J. 323, 330 (C.A.A.F.
2003).

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United States v. Pack Jr., No. 07-0085/MC


generally; and a more than de minimis emotional distress

suffered by the child.

     MP’s testimony was under oath and in the presence of trial

counsel and defense counsel.         A television monitor was

positioned in the courtroom so that Appellant, the members, the

military judge, and the court reporter could hear MP and observe

her demeanor.   MP testified on both direct and cross-examination

from the remote location without ever seeing Appellant.

                              III.    Analysis

     The Confrontation Clause of the Sixth Amendment provides,

inter alia, that:   “In all criminal prosecutions, the accused

shall enjoy the right . . . to be confronted with the witnesses

against him.”   U.S. Const. amend. VI.         The question of what law

controls resolution of a claimed constitutional violation is one

of law, which we review de novo.           See United States v. Cabrera-

Frattini, 65 M.J. 241, 245 (C.A.A.F. 2007).

                         A.   Maryland v. Craig

     In Craig, the Supreme Court upheld a Maryland statute that

required:   the “child witness . . . be competent to testify and

. . . testify under oath; the defendant retain[] full

opportunity for contemporaneous cross-examination; and the

judge, jury, and defendant . . . [be] able to view (albeit by

video monitor) the demeanor (and body) of the witness as he or

she testifies.”   497 U.S. at 851.


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United States v. Pack Jr., No. 07-0085/MC


     In the process, the Supreme Court reasoned that “[a]lthough

face-to-face confrontation forms ‘the core of the values

furthered by the Confrontation Clause,’ we have nevertheless

recognized that it is not the sine qua non of the confrontation

right.”   Id. at 847 (citations omitted).   Craig went on to

reject a literal reading of the Confrontation Clause in favor of

a “‘preference for face-to-face confrontation at trial,’ a

preference that ‘must occasionally give way to considerations of

public policy and the necessities of the case.’”   Id. at 849

(citations omitted).

     Craig then considered those principles in the context of a

child witness testifying remotely against a defendant in a

criminal trial.   Ultimately, the Supreme Court held that one-way

closed-circuit testimony was admissible and consonant with the

requirements of the Confrontation Clause when:   (1) the court

determines that it is necessary “to protect the welfare of the

particular child witness”; (2) the court finds “that the child

witness would be traumatized, not by the courtroom generally,

but by the presence of the defendant”; and (3) “the trial court

[finds] that the emotional distress suffered by the child

witness in the presence of the defendant is more than de

minimis.”   Id. at 855-56 (citations omitted).

     Appellant does not argue that the requirements under R.C.M.

914A or M.R.E. 611(d) were not met.   Nor does he argue that the


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United States v. Pack Jr., No. 07-0085/MC


three requirements outlined in Craig went unsatisfied.    The

narrow question in this case is whether the holding in Craig

allowing this type of testimony may be disregarded by this Court

in light of Crawford.

                     B.   Crawford v. Washington

      Crawford considered whether and how testimonial hearsay

statements made by witnesses who did not testify at trial were

admissible in light of the Confrontation Clause.   541 U.S. at

68-69.   The issue of face-to-face confrontation at trial was not

directly implicated by Crawford, although Crawford did consider

fully the historical context within which the Confrontation

Clause was drafted and the evils at which it was aimed.   Id. at

43-50.

      Crawford did hold that testimonial hearsay statements were

inadmissible absent the right to confrontation.    Id. at 68-69.

But it concluded that the Sixth Amendment as informed by the

common law required, at least in the context of testimonial

hearsay, “unavailability and a prior opportunity for cross-

examination,” not face-to-face confrontation at trial.    Id. at

68.

            C.   Craig Was Not Overruled by Implication

      Crawford did not purport to overrule Craig explicitly;

Craig is not even cited in the opinion.    In light of the dissent

in Craig and the plethora of state and federal laws permitting


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United States v. Pack Jr., No. 07-0085/MC


remote testimony, including M.R.E. 611 and R.C.M. 914A, we

expect that if the Supreme Court were overruling or undermining

Craig, it would have said so explicitly.    See, e.g., Carmell v.

Texas, 529 U.S. 513, 538 (2000) (stating that where the Supreme

Court expressly overruled two cases in a decision, it should not

be assumed that it impliedly overruled a third in the same

decision).

     Appellant, nonetheless, argues that Crawford overruled

Craig by implication because it undermined the foundations upon

which it rested.   Of course, overruling by implication is

disfavored.   See Eberhart v. United States, 546 U.S. 12, 19-20

(2005) (stating that circuit courts should adhere to precedent

even when subsequent decisions call earlier Supreme Court

decisions into question); State Oil Co. v. Khan, 522 U.S. 3, 19

(1997) (stating the same); Rodriguez de Quijas v.

Shearson/American Express, Inc., 490 U.S. 477, 484 (1989)

(stating “[i]f a precedent of this Court has direct application

in a case, yet appears to rest on reasons rejected in some other

line of decisions, the Court of Appeals should follow the case

which directly controls, leaving to this Court the prerogative

of overruling its own decisions”).   But even if overruling by

implication were acceptable, we disagree that Crawford had the

impact on Craig that Appellant suggests.




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United States v. Pack Jr., No. 07-0085/MC


        Crawford explicitly rejected the rationale of Ohio v.

Roberts, 448 U.S. 56 (1980).     541 U.S. at 63-65.   Roberts held

that admitting the preliminary hearing testimony of an

unavailable witness did not violate the Confrontation Clause of

the Sixth Amendment, reasoning that reliability could be

“inferred without more in a case where the evidence falls within

a firmly rooted hearsay exception” because “hearsay rules and

the Confrontation Clause are generally designed to protect

similar values,” and “stem from the same roots.”      448 U.S. at 66

(citations and quotation marks omitted).    Roberts, like Craig,

turned in part on reliability.    But the focus in Craig was not

simply on reliability, but on the adversarial process.     497 U.S.

at 846 (“The combined effect of these elements of confrontation

. . . serves the purpose of the Confrontation Clause by ensuring

that evidence admitted against the accused is reliable and

subject to the rigorous adversarial testing that is the norm of

Anglo-American criminal proceedings.”).    That focus was retained

in Crawford, 541 U.S. at 61 (“[T]he Clause’s ultimate goal is to

ensure reliability of evidence” and that “reliability be

assessed . . . by testing in the crucible of cross-

examination.”).    It is important to recognize that Crawford did

not hold that face-to-face confrontation is required in every

case.    Rather, it held that the Confrontation Clause required




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United States v. Pack Jr., No. 07-0085/MC

cross-examination and unavailability before testimonial hearsay

could be admitted into evidence.     Id. at 69.

     In fairness to Appellant, there are glimmers of an

interpretation of the Confrontation Clause tied more closely to

its text and historical context in the Supreme Court’s recent

opinions.   See Davis v. Washington, 126 S. Ct. 2266, 2274-77

(2006) (discussing text of the Confrontation Clause, citing to

the dictionary definition of “testimony,” reviewing early

American cases involving the right to confrontation, and

comparing the evidence adduced in Davis to that in Raleigh’s

Case, 2 How. St. Tr. 1 (1603)); Crawford, 541 U.S. at 43-47

(discussing historical framework of the right to confrontation

within the context of English and American common law dating to

1554).   And no one, having read the dissent in Craig, doubts

that it argues for an undilutable requirement for face-to-face

confrontation at trial.

     Moreover, the Crawford opinion itself contains statements

that are difficult to reconcile with certain other statements in

the Craig opinion.   Compare, e.g., Craig, 497 U.S. at 848 (“a

literal reading of the Confrontation Clause would ‘abrogate

virtually every hearsay exception, a result long rejected as

unintended and too extreme’”) (citation omitted), and id. at 845

(“any exception to the right ‘would surely be allowed only when

necessary to further an important public policy’”) (citation


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United States v. Pack Jr., No. 07-0085/MC

omitted), with Crawford, 541 U.S. at 51 (“[l]eaving the

regulation of out-of-court statements to the law of evidence

would render the Confrontation Clause powerless to prevent even

the most flagrant inquisitorial practices”), id. at 54 (“[t]he

text of the Sixth Amendment does not suggest any open-ended

exceptions from the confrontation requirement to be developed by

the courts”), and id. at 61 (“[a]dmitting statements deemed

reliable by a judge is fundamentally at odds with the right to

confrontation”).

     But the question is neither whether tension exists between

aspects of particular cases nor whether this Court, as a matter

of first impression, might hold that the Confrontation Clause of

the Sixth Amendment gives a criminal defendant the “‘right to

meet face-to-face all those who appear and give evidence at

trial’” in every case, without exception.   Craig, 497 U.S. at

862 (Scalia, J., dissenting) (quoting Coy v. Iowa, 487 U.S.

1012, 1016 (1988)).   “Rather, lower courts should follow the

case which directly controls, leaving to this Court the

prerogative of overruling its own decisions.” Agostini v.

Felton, 521 U.S. 203, 237 (1997) (citation omitted); see U.S.

Const. art. III, § 1; Eberhart, 546 U.S. at 19-20.   The Supreme

Court has not overruled Craig nor distinguished its holding in a

manner that alters its application to military practice.    Nor

have the parties proffered any reason why Craig should apply


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United States v. Pack Jr., No. 07-0085/MC

differently in the military context.   Under these circumstances,

this Court is not free to disregard Craig.

     We join the weight of authority in holding that Craig

continues to control the questions whether, when, and how,

remote testimony by a child witness in a criminal trial is

constitutional.   United States v. Yates, 438 F.3d 1307, 1313-18

(11th Cir. 2006); United States v. Bordeaux, 400 F.3d 548, 553-

54 (8th Cir. 2005); State v. Henriod, 2006 UT 11, ¶ 13-17, 131

P.3d 232, 237; State v. Blanchette, 134 P.3d 19, 29 (Kan. Ct.

App. 2006); State v. Griffin, 202 S.W.3d 670, 680-81 (Mo. Ct.

App. 2006); State v. Vogelsberg, 2006 WI App 228, ¶ 13-17, 297

Wis. 2d 519, 527-29, 724 N.W.2d 649, 654.

                           IV.   Decision

     The decision of the United States Navy-Marine Corps

Court of Criminal Appeals is affirmed.




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