                       UNITED STATES, Appellee

                                    v.

                  Matthew R. ADAMS Jr., Specialist
                        U.S. Army, Appellant

                              No. 14-0495

                       Crim. App. No. 20110503

       United States Court of Appeals for the Armed Forces

                       Argued January 14, 2015

                        Decided April 27, 2015

ERDMANN, J., delivered the opinion of the court, in which STUCKY
and OHLSON, JJ., joined. BAKER, C.J., filed a separate
dissenting opinion, in which RYAN, J., joined.

                                 Counsel

For Appellant: Captain Nicholas J. Larson (argued); Lieutenant
Colonel Jonathan F. Potter (on brief); Colonel Kevin Boyle,
Lieutenant Colonel Peter Kageleiry Jr., Major Aaron R.
Inkenbrandt, Major Vincent T. Shuler, and Captain Brian D.
Andes.

For Appellee: Captain Jaclyn E. Shea (argued); Colonel John P.
Carrell, Major John Choike, Major Daniel D. Derner, and Captain
Timothy C. Erickson (on brief).

Military Judge:   Andrew J. Glass


       This opinion is subject to revision before final publication.
United States v. Adams Jr., No. 14-0495/AR

       Judge ERDMANN delivered the opinion of the court.

       Specialist (SPC) Matthew R. Adams Jr. was charged with

numerous offenses, including robbery, in violation of Article

122, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 921

(2006).    Consistent with his plea, Adams was acquitted of all

charges but was found guilty of larceny, as a lesser included

offense of robbery, in violation of Article 121, UCMJ, 10 U.S.C.

§ 921 (2006).     This Court granted review to determine whether

the confession admitted by the military judge was properly

corroborated. 1   Finding insufficient corroboration for a number

of essential facts admitted in the confession, we hold the

military judge abused his discretion and therefore reverse the

decision of the United States Army Court of Criminal Appeals

(CCA).

                              Background

       SPC DT implicated himself and Adams in a robbery of cocaine

from a local drug dealer and also alleged that Adams had a

weapon and cocaine in his house.       Based on this information,

Special Agents (SA) McKinney and Villegas of the Army’s Criminal


1
    We granted review of the following issue:

       Whether the Army Court of Criminal Appeals erred in
       finding that the military judge did not abuse his
       discretion in admitting the portion of Appellant’s
       sworn statement regarding the [theft] of cocaine
       because the government failed to corroborate, in
       accordance with Military Rule of Evidence 304(g), the
       essential fact that Appellant took cocaine.

                                   2
United States v. Adams Jr., No. 14-0495/AR

Investigation Division (CID) obtained a search authorization for

Adams’ house.     While searching the house, the agents found a

Smith & Wesson “Sigma” .40 caliber handgun.     No cocaine was

found.

        After the search, Adams was brought in for questioning.

Adams provided a sworn statement in which he confessed to

stealing cocaine from a drug dealer named Ootz 2 with DT and

another co-conspirator.    In his statement, Adams provided his

motive for the larceny, the general location of the offense,

admitted that he brandished a .40 caliber Smith & Wesson “Sigma”

handgun, and that his co-conspirator grabbed the cocaine from

Ootz.

     At trial, the government did not call Ootz or the two

accomplices, but relied on Adams’ confession and corroboration

testimony from the two CID agents.     SA McKinney testified that

she knew of a “Timothy” Ootz and that he was “a previous

soldier.”    She did not testify how or when she learned of Ootz

or that she knew him to be a drug dealer.    SA McKinney testified

that, during her interview of Adams, he told her that the

larceny “started at the Walmart, and then it moved to another

location,” but she did not remember where.    SA McKinney

testified there was a Walmart located in Calcium, New York,

2
  There was no consensus at trial as to either Ootz’ first name
or the spelling of his last name. SA McKinney identified him as
Timothy while SA Villegas identified him as Matthew.



                                   3
United States v. Adams Jr., No. 14-0495/AR

“right outside the north gate,” but did not testify about a

Microtel at all.   SA McKinney also confirmed that CID did not

find any cocaine at Adams’ house.

      Special Agent Villegas testified that she was not aware of

Ootz until March 4, the day CID interviewed both DT and Adams.

She further testified that Ootz “was a former [s]oldier,

reported to be a drug dealer in the local area.”   Villegas

indicated that she had obtained this information from her

“research running through cases that we have had at CID.”

Villegas testified there was a Walmart in Evans Mills, New York,

but did not believe there was one in Calcium, as stated by

McKinney.   Villegas also testified that the Walmart in Evans

Mills was located near a Microtel.

     During McKinney’s testimony, the government sought to admit

Adams’ written statement.   The defense objected to the admission

on the grounds it lacked corroboration.   Following additional

testimony and arguments, the military judge granted the defense

motion in part and denied it in part.   After excising a portion

of the confession for lack of corroboration, the military judge

admitted the following portions: 3

     [Adams:] . . . [DT] told me who the person was Ootz
     [sic], who had ripped me off previously & gave me the
     idea to rob him. We met him [Ootz] at Walmart and had
     him drive over to the Microtel where we got in his
     car. [DT] looked at the stuff began talking shit & I

3
  Following a short narrative, the statement continued in
question and answer format.

                                 4
United States v. Adams Jr., No. 14-0495/AR

     pulled my gun out and [DT] grabbed the coke & we got
     out of Ootz [sic] car & got in mine and returned to
     base.

     . . . .

     Q: What day did this take place?

     A: 28 Feb 2011[.]

     . . . .

     Q: What was [the] deal agreed upon by [DT] and Ootz?

     A: A ball for $220[.]

     Q: Did you have the $220 on you?

     A: No only $80 cause we were gonna rob him[.]

     . . . .

     Q: What happened after you all got in Ootz [sic]
     vehicle?

     A: [DT] asked for the stuff and an argument began and
     I pulled out my gun[.]

     Q: Did you say anything to Ootz?

     A: I told him not to do that shit again & then we got
     out[.]

     Q: What did you mean by that?

     A: About ripping [me] off[.]

     Q: Did Ootz say anything?

     A: No[.]

     Q: Did Ootz see the gun in your hand?

     A: Yes I waived [sic] it around quick[.]

     Q: What kind of gun did you have?

     A: S&W 40 cal sigma[.]


                                 5
United States v. Adams Jr., No. 14-0495/AR

       Q: Where did you get the gun?

       A: Bought in PA/ April 2010[.]

       Q: When did you bring the gun to FDNY? 4

       A: Christmas leave 2010[.]

       Q: What happened after you, [DT] and [the other co-
       conspirator] got back in your vehicle?

       A: Nothing we drove back to post[.]

       Q: Where was the gun when you were driving back on
       post?

       A: On me in my pants[.]

       The military judge held that the evidence which

corroborated these essential facts in Adams’ confession

consisted of:

       The description of the handgun the accused admitted to
       “waiving [sic] around quick” is a “S&W .40 cal.” This
       matches the description of [the weapon found in the
       search]. . . . [T]he Court finds that these items
       found in the accused’s home four days after the
       alleged crimes coupled with the testimony regarding
       the location of a Walmart and Microtel in Evans Mills,
       New York to be sufficient to meet the standard of the
       slight corroboration required by the rule and case
       law.

       On appeal, the CCA affirmed Adams’ conviction.    United

States v. Adams, No. ARMY 20110503, 2014 CCA LEXIS 61, at *9,

2014 WL 448415, at *3 (A. Ct. Crim. App. Jan. 29, 2014).      The

CCA held the military judge did not abuse his discretion in

admitting the confession, agreeing that it was corroborated by

the handgun and the testimony as to the proximity of a Walmart

4
    Fort Drum, New York.

                                    6
United States v. Adams Jr., No. 14-0495/AR

and a Microtel.     2014 CCA LEXIS 61, at *6-9, 2014 WL 448415, at

*2-3. The CCA went on to hold that the confession was also

corroborated by SA Villegas’ testimony of a known drug dealer in

the local area named Ootz.

                              Discussion

     We review a military judge’s admission of evidence for an

abuse of discretion.     United States v. McCollum, 58 M.J. 323,

335 (C.A.A.F. 2003).

     Military Rule of Evidence (M.R.E.) 304(c) reads, in

pertinent part: 5

     An admission or a confession of the accused may be
     considered as evidence against the accused . . . only
     if independent evidence . . . has been introduced that
     corroborates the essential facts admitted to justify
     sufficiently an inference of their truth. . . . If the
     independent evidence raises an inference of the truth
     of some but not all of the essential facts admitted,
     then the confession or admission may be considered as
     evidence against the accused only with respect to
     those essential facts stated in the confession or
     admission that are corroborated by the independent
     evidence.

Emphasis added.     The current iteration of M.R.E. 304(c) 6 was

established in the Manual for Courts-Martial, United States

(MCM) in 1969 and was based on the Supreme Court’s decisions in

Opper v. United States, 348 U.S. 84 (1954), and Smith v. United


5
  At the time of Adams’ trial, M.R.E. 304(c) was M.R.E. 304(g).
6
  Originally para. 140a, then M.R.E. 304(g), now M.R.E. 304(c).
While there have been changes in word order, M.R.E. 304(c)
remains substantively the same as the original para. 140a. MCM,
ch. XXVII, para. 140a, at 27-15 (1969 rev. ed.).



                                   7
United States v. Adams Jr., No. 14-0495/AR

States, 348 U.S. 147 (1954).    See Dep’t of the Army Pam. 27-2,

Analysis of Contents Manual for Courts-Marital, United States

1969 Rev. Ed. ch. 27, para. 140a(5) (July 1970); see also

Article 36, UCMJ, 10 U.S.C. § 836 (2012); Exec. Order No. 11430,

33 Fed. Reg. 13,502 (Sept. 11, 1968).    While in Opper the

Supreme Court held that it “is necessary . . . to require the

Government to introduce substantial independent evidence which

would tend to establish the trustworthiness of the statement,”

348 U.S. at 164, the “substantial” corroboration language was

not incorporated into M.R.E. 304(c).    Instead, M.R.E. 304(c)

requires an amount of independent evidence sufficient to justify

an inference of truth of the essential facts admitted from the

confession. 7   While we have previously noted that a sufficient

amount of evidence can be slight, the evidence must nevertheless

be sufficient in quantity and quality to meet the plain language

of the rule.    United States v. McClain, 71 M.J. 80, 82 (C.A.A.F.

2012); United States v. Grant, 56 M.J. 410, 416 (C.A.A.F. 2002);

United States v. Rounds, 30 M.J. 76, 83 (C.M.A. 1990) (Everett,

C.J., concurring in part and dissenting in part).


7
  The dissent would change the standard in M.R.E. 304(c) to a
“trustworthiness” standard, where, if one part of the confession
is found to be “trustworthy,” that “trustworthiness” can be
extrapolated to those portions of the confession which are not
supported by independent evidence, thereby allowing the entire
confession to be admitted into evidence. However, M.R.E. 304(c)
expressly rejects the concept of extrapolating “trustworthiness”
by requiring independent evidence of each essential fact to be
corroborated.

                                  8
United States v. Adams Jr., No. 14-0495/AR

     In United States v. Cottrill, 45 M.J. 485 (C.A.A.F. 1997),

we explained:

          The corroboration requirement for admission of a
     confession at court-martial does not necessitate
     independent evidence of all the elements of an offense
     or even the corpus delicti of the confessed offense.
     Rather, the corroborating evidence must raise only an
     inference of truth as to the essential facts admitted.

Id. at 489 (citation omitted).    Nevertheless, the evidence

corroborating the essential facts of the confession must be

independent.    Grant, 56 M.J. at 416.

     What constitutes an essential fact of an admission or

confession necessarily varies by case.     Essential facts we have

previously considered include the time, place, persons involved,

access, opportunity, method, and motive of the crime.      See,

e.g., United States v. Baldwin, 54 M.J. 464, 465-66 (C.A.A.F.

2001); Rounds, 30 M.J. at 77-78; United States v. Melvin, 26

M.J. 145, 147 (C.M.A. 1988).

     When independent evidence which is sufficient to

corroborate an essential fact is provided, that essential fact

is admissible.   M.R.E. 304(c).   If sufficient corroborating

evidence of an essential fact is not provided, then the

uncorroborated fact is not admissible and the military judge

must excise it from the confession.      See id.   The essential

facts which are corroborated may be used against the accused

alongside any other properly admitted evidence.      See, e.g.,

Opper, 348 U.S. at 93 (“Those facts plus the other evidence


                                  9
United States v. Adams Jr., No. 14-0495/AR

besides the admission must, of course, be sufficient to find

guilt beyond a reasonable doubt.”).

     There is no “tipping point” of corroboration which would

allow admission of the entire confession if a certain percentage

of essential facts are found to be corroborated.    For instance,

if four of five essential facts were corroborated, the entire

confession is not admissible.    Only the four corroborated facts

are admissible and the military judge is required to excise the

uncorroborated essential fact.    M.R.E. 304(c).   This analysis is

completed by the military judge examining the potential

corroboration for each essential fact the government wishes to

admit.   Id. 8

     In the present case, three facts were found to have

corroborated Adams’ confession:    the possession of a handgun;

testimony concerning the existence of a drug dealer named Ootz;

and testimony regarding the location of a Walmart and a

Microtel.    The portion of Adams’ confession admitting that he

possessed a handgun was sufficiently corroborated by the

matching handgun found by CID during the search of his house.


8
  In United States v. Seay, 60 M.J. 73, 80 (C.A.A.F. 2004), while
interpreting the corroboration requirements under M.R.E. 304(g),
the court stated: “The issue is whether the facts justify the
inference as to the truth of the confession.” While that
statement could be interpreted to mean that the proper analysis
is whether an appellant’s confession is admissible in its
entirety, it must be read in conjunction with the Seay court’s
earlier reference to the plain language of the rule referencing
the need for corroboration of the essential facts. Id. at 79.

                                  10
United States v. Adams Jr., No. 14-0495/AR

While questions arise as to whether the location evidence

sufficiently corroborated the place of the crime and whether the

identification of Ootz was sufficiently reliable and independent

of Adams’ confession, we need not decide those issues.

     In a case where the only direct evidence of the crime was

the confession, it is important to determine what was not

corroborated.   Here, there is no evidence which corroborates

Adams’ opportunity or motive to commit the crime, his access,

his intent, the accomplices involved, the subject of the larceny

(i.e., cocaine), the time of the crime, or the act of the

larceny itself (waving the handgun while [DT] grabbed the

cocaine).   In short, virtually none of the facts we have

previously articulated as essential were corroborated.   Even if

we were to assume that the evidence relied upon below properly

corroborated the location of the larceny and the identity of the

victim, those facts, combined with the ownership of the handgun,

are legally insufficient to support the larceny conviction

absent any additional direct evidence of a crime.   We therefore

conclude that the military judge abused his discretion when he

admitted numerous uncorroborated essential facts from Adams’

confession.   Because the confession was “the government’s key

piece of evidence” Adams, 2014 CCA LEXIS 61, at *3, 2014 WL

448415 at *1; the admission of the uncorroborated essential

facts was prejudicial to Adams.



                                  11
United States v. Adams Jr., No. 14-0495/AR

                             Decision

     The decision of the United States Army Court of Criminal

Appeals is reversed and the findings and sentence are set aside.

The record is returned to the Judge Advocate General of the

Army.   A rehearing may be authorized.




                                12
United States v. Adams Jr., No. 14-0495/AR


      BAKER, Chief Judge, with whom RYAN, Judge, joins

(dissenting):

      This Court is riding a pendulum back and forth when it

comes to the law on corroborating confessions.       In eleven years,

we have moved from one extreme in United States v. Seay, 60 M.J.

73 (C.A.A.F. 2004), to the other extreme in United States v.

Adams, __ M.J. __ (C.A.A.F. 2015).     In Seay, the Court found the

appellant’s confession to stealing a wallet was corroborated by

the fact -- or more precisely the absence of the fact -- that no

wallet was found on the victim’s body.     60 M.J. at 80.   From the

absence of this fact, the Court made an inference that because

no wallet was found on the victim, the appellant must have taken

it.   Id.   Thus, his confession to stealing the wallet was

corroborated.     Id.

      Today, the Court swings the law back to the opposite

extreme.     In the view of the majority, “[w]hen independent

evidence which is sufficient to corroborate an essential fact is

provided, that essential fact is admissible.”     Adams, __ M.J. at

__ (9).     However, they go on to say, “if sufficient

corroborating evidence of an essential fact is not provided,

then the uncorroborated fact is not admissible and the military

judge must excise it from the confession.”     Id.    The majority

thus requires that every essential fact identified in a
United States v. Adams Jr., No. 14-0495/AR


confession must be individually corroborated on a one-for-one

basis.

     The majority’s approach precludes the drawing of

appropriate inferences from an otherwise trustworthy statement.

Moreover, because the only essential fact in Appellant’s

statement that is not demonstrated by independent evidence is

the actual theft of the cocaine, the Court’s decision

effectively returns the law to a corpus delecti test.

     The majority is trying to have it both ways.   It purports

to adhere to United States v. Cottrill, 45 M.J. 485 (C.A.A.F.

1997), disavowing the corpus delecti test or a requirement to

prove all the elements of the offense, but then rejects

Appellant’s statement for lack of independent evidence, where

the only independent evidence of an essential fact that is

lacking is of the crime itself:   “[DT] grabbed the coke.”   It is

difficult to imagine, however, that a drug dealer would ever

report the theft of cocaine to the police.   All the other facts

in Appellant’s statement are corroborated:   the weapon used, the

place of the crime, Appellant’s participation in drug culture,

and most importantly, the unique name of the “victim.”    The last

point is particularly noteworthy because of the unlikelihood

that Appellant could make up the name “Ootz,” which then also

happened to be the name of a known drug dealer in the area.



                                  2
United States v. Adams Jr., No. 14-0495/AR


     I did not join Seay and I do not join the Court today.      I

believe the law is and should be in a different place between

the extremes presented in Seay and in Adams.

     I would start with two principles.    The purpose of the law

as stated in Smith v. United States, 348 U.S. 147, 153 (1954)

(citing Warszower v. United States, 312 U.S. 342, 345 (1941)),

is to protect against false confessions.    More specifically,

Military Rule of Evidence (M.R.E.) 304(g) and case law seek to

protect against three possibilities:   the risk that

interrogation might produce a false confession; the risk that

for psychological reasons or attention gathering purposes a

person might choose to falsely confess; and, in the military

context, there is the additional risk that grade and command

differentials might result in false confessions.    See United

States v. Yeoman, 25 M.J. 1, 4 (C.M.A. 1987) (stating that the

purpose of the corroboration rule is to prevent “errors in

convictions based upon untrue confessions alone” or confessions

“based upon words which might reflect the strain and confusion

caused by the pressure of a police investigation”) (citation and

internal quotation marks omitted).   To this end, the law

requires “the Government to introduce substantial independent

evidence which would tend to establish the trustworthiness of

the statement.”   Opper v. United States, 348 U.S. 84, 93 (1954).



                                 3
United States v. Adams Jr., No. 14-0495/AR


     The first principle, therefore, is that the purpose of the

law is to establish the trustworthiness of the statement.     In

other words, not every element or fact contained in the

confession must be independently proved.   The goal is

trustworthiness.   Thus, if substantial independent evidence

indicates the statement is trustworthy, then appropriate

inferences may be drawn from the statement beyond those for

which there is independent evidence including the fact that a

crime has been committed.

     The second principle is that where a conviction is based

exclusively on a confession, a court’s inquiry should, as

always, be rigorous and searching.   But the test is one of

corroboration.   The purpose is to establish the trustworthiness

of the statement, not to have a mini-trial to establish the

elements of the confession and thus the crime, so that one can

then introduce the confession in order to prove the crime.

     If the government were required to have independent

evidence of every essential fact in the confession as the

majority now concludes, then the confession is no longer

independent evidence, it is a redundant supplement to the

government’s other evidence.   Moreover, the government would be

barred from using the confession to fill in essential facts that

might not otherwise be known to the government.   As Cottrill

recognized, the “quantum” of evidence required to corroborate

                                 4
United States v. Adams Jr., No. 14-0495/AR


need only be slight.   45 M.J. at 489.      That is why, consistent

with our approach to Article 31, Uniform Code of Military

Justice (UCMJ), 10 U.S.C. § 831 (2012), this Court has not

adopted a literal reading of M.R.E. 304(g), because the result

would be unworkable in practice.       Rather, this Court has

recognized that M.R.E. 304(g) was intended to implement Opper.

See Manual for Courts-Martial, United States ch. xxvii, para.

140.a.(5) (1968 ed.) (MCM) (the corroboration rule was updated

in the 1968 MCM to say, in part, “the independent evidence need

only raise an inference of the truth of the essential facts

admitted,” thus reflecting the Supreme Court’s holding in

Opper); United States v. Rounds, 30 M.J. 76, 80-82 (C.A.A.F.

1990).   Thus, the Court has heretofore applied a purpose-based

reading of the rule that tests for trustworthiness through

independent evidence of those essential facts necessary to

validate the trustworthiness of the confession.       United States

v. Maio, 34 M.J. 215, 218 (C.M.A. 1992); Cottrill, 45 M.J. at

489; Seay, 60 M.J. at 79-80.

     In this case, the military judge admitted Appellant’s

statement that:

     After my friend Beirl move [sic] me, [DT] & Anderson where
     [sic] at my house and [DT] was trying to get drugs. He
     told me who the person was Ootz [sic], who had ripped me
     off previously & gave me the idea to rob him. We met him
     at a Walmart and had him drive over to the Microtel where
     we got in his car. [DT] looked at the stuff began talking


                                   5
United States v. Adams Jr., No. 14-0495/AR


     shit & I pulled my gun out and [DT] grabbed the coke & we
     got out of Ootz car & got in mine and returned to base.

     Q:   What day did this take place?

     A:   28 Feb 2011[.]

     . . . .

     Q:   What was deal agreed upon by [DT] and Ootz?

     A:   A ball for $220[.]

     Q:   Did you have the $220 on you?

     A:   No only $80 cause we were gonna rob him[.]

     . . . .

     Q:   What happened after you all got in Ootz [sic] vehicle?

     A: [DT] asked for the stuff and an argument began and I
     pulled out my gun[.]

     Q:   Did you say anything to Ootz?

     A: I told him not to do that shit again & then we got
     out[.]

     Q:   What did you mean by that?

     A:   About ripping [people] off[.]

     Q:   Did Ootz say anything?

     A:   No[.]

     Q:   Did Ootz see the gun in your hand?

     A:   Yes I waived it around quick[.]

     Q:   What kind of gun did you have?

     A:   S&W 40 cal sigma[.]

     Q:   Where did you get the gun?


                                   6
United States v. Adams Jr., No. 14-0495/AR


     A:    Bought in PA/ April 2010[.]

     Q:    When did you bring the gun to FDNY?

     A:    Christmas leave 2010[.]

     Q: What happened after you, [DT] and Anderson got back in
     your vehicle?

     A:    Nothing we drove back to post[.]

     Q:    Where was the gun when you were driving back on post?

     A:    On me in my pants[.]

     The military judge and CCA concluded this statement was

corroborated.    I agree and concur in the lower court’s

assessment of the corroborating facts.    The evidence of

corroboration is strong.    First, Ootz was a former soldier and

known drug dealer, with an uncommon if not unique last name that

matched the name of the drug dealer Appellant confessed to

robbing.    CID knew this based on its independent search of its

files.    Second, the same type of weapon -- a .40 mm Smith &

Wesson -- Appellant stated he used in the crime was found in his

residence four days later.    Third, bags of synthetic marijuana,

smoking devices, and a syringe were also found in Appellant’s

house.    While cocaine is a perishable item, this evidence

demonstrated Appellant’s knowledge and connection to drug

culture.    Less important is the fact that the locations where

Appellant stated the events took place, in fact, exist in the

actual area of the base.    What is missing is independent


                                     7
United States v. Adams Jr., No. 14-0495/AR


evidence of the robbery itself, i.e., that “[DT] grabbed the

coke.”   But requiring evidence of this fact leaves us with the

corpus delecti test.   What we have instead is corroboration of

the means, the place, the drug connection, and the unique name

of the “victim” all of which indicate the statement is

trustworthy.   Therefore, I would affirm the military judge, the

CCA, and the conviction, and respectfully dissent.




                                 8
