THOMAS W. SPINDLE, PETITIONER V. UNITED STATES OF AMERICA
   No. 89-25
   In the Supreme Court of the United States
   October Term, 1989
   On Petition for a Writ of Certiorari to the United States Court of
Military Appeals
   Brief for the United States in Opposition
            TABLE OF CONTENTS
   Opinions below
   Jurisdiction
   Question Presented
   Statement
   Argument
   Conclusion
                            OPINIONS BELOW
   The opinion of the Court of Military Appeals (Pet. App. 1a-4a) is
reported at 28 M.J. 35.  The opinion of the Army Court of Military
Review (Pet. App. 1c-3c) is unreported.
                             JURISDICTION
   The judgment of the Court of Military Appeals was entered on March
10, 1989.  A petition for reconsideration was denied on May 9, 1989.
The petition for a writ of certiorari was filed on July 7, 1989.  The
jurisdiction of this Court is invoked under 28 U.S.C. 1259(c) (Supp. V
1987).
                          QUESTION PRESENTED
   Whether the admission at trial of the recorded and sworn testimony
of an unavailable witness given at a preliminary hearing violated the
Confrontation Clause of the Sixth Amendment or the Due Process Clause
of the Fifth Amendment.
                               STATEMENT
   Petitioner, a member of the United States Army, was tried by a
general court-martial at Fort Shafter, Hawaii.  He was convicted of
assault with intent to commit sodomy, attempted sodomy, committing
indecent acts with a male under the age of 16, and felony murder, in
violation of Articles 80, 118, and 134 of the Uniform Code of Military
Justice (UCMJ), 10 U.S.C. 880, 918, and 934.  /1/ He was sentenced to
life imprisonment, a dishonorable discharge, forfeiture of part of his
pay, and a reduction in rank.  The convening authority approved the
findings and sentence.  The Army Court of Military Review dismissed
the assault charge, affirmed the remaining findings, and affirmed the
sentence.  Upon discretionary review, the Court of Military Appeals
affirmed.
   1. On the evening of February 5, 1982, Derek Kusumoto and his
14-year-old twin brother Dominic went to a bowling alley near their
home at Schofield Barracks, Hawaii.  Tr. 397.  Derek left the bowling
alley at about 8:30 p.m., telling his brother that they would meet at
9 p.m. at their home.  Tr. 403-404.  Dominic returned home;  Derek did
not.  Tr. 379, 405.  At 11 p.m., the boys' father, Lieutenant Colonel
Kusumoto, reported to the military police that Derek was missing.  Tr.
380.  The following evening, at about 10:30 p.m., Colonel Kusumoto
identified the dead body of his son Derek at the Tripler Army Medical
Center in Hawaii.  Tr. 381.  See 89-26 Pet. App. 3a.
   At about 5 p.m. on February 6, 1982, petitioner reported that he
had found Derek's body.  Tr. 577-578;  GX 26.  In a sworn statement,
petitioner told Army Criminal Investigation Division (CID) agents that
he found the body while he was photographing various sites at
Schofield Barracks.  Ibid.  Petitioner was photographing an
underground bomb shelter when he looked down the stairs of the
structure.  Tr. 577;  GX 26.  Using a flashlight, petitioner walked
down the stairs and found the body.  Petitioner described Derek's
partially clothed body to investigators.  He said that the boy was
wearing white, knee-high socks with red and blue stripes.  Tr. 564,
567.  Military policemen, responding to petitioner's report, found
Derek's body face down and naked from the waist down except for a pair
of white socks.  Tr. 435;  GX 7.  The socks were rolled down to
Derek's ankles;  the socks had red and yellow stripes, but the stripes
were not visible.  GXs 7, 30.  See 89-26 Pet. App. 4a.  /2/
   Doctor Wong, a forensic pathologist, examined Derek's body.  Dr.
Wong found "abrasions and contusions present on, practically, every
surface of the external surface of the body, including the head, the
neck, chest, abdomen, the right and left upper extremities, the
posterior surface of the chest and also * * * on the right and left
knees." Tr. 501.  Those abrasions and contusions, according to Dr.
Wong, were consistent with the boy having been forcibly moved "either
up or down, following the longitudinal axis of the body." Tr. 512-513.
Doctor Wong also found a bite mark on Derek's chest.  Tr. 533.  He
determined that the cause of death was "asphyxia due to suffocation"
caused by "an object or objects (being) applied to * * * the nose and
mouth" for three to five minutes.  Tr. 520, 521, 525.  See 89-26 Pet.
App. 5a.
   Private First Class Joseph Courtney, who was with petitioner on the
evening of February 5, 1982, implicated petitioner in Derek's death.
Based on Courtney's statements and other evidence, /3/ petitioner was
charged with murdering Derek.
   2. a. Article 32 of the UCMJ, 10 U.S.C. 832, provides that no
charges can be referred to a general court-martial until there has
been a thorough and impartial hearing on all matters set forth in the
charges.  An Article 32 hearing is similar to a preliminary hearing
conducted to determine probable cause to hold a defendant for trial.
The accused has the right to be informed of the charges against him,
to be present during the hearing, to be represented by counsel, to be
informed of the witnesses that the prosecution expects to call, to be
informed of the identity of his accuser, to cross-examine all
available witnesses, and to present evidence in his defense.  He may
also present any evidence that would mitigate the severity of the
offenses.  A defendant has the right to have defense counsel appointed
to assist him during the hearing.  Art. 38, UCMJ, 10 U.S.C. 838 (1982
& Supp. V 1987);  Rule for Courts-Martial 405(f) and (g), Manual for
Courts-Martial, United States -- 1984.  Moreover, the convening
authority may not refer a charge to a general court-martial for trial
without independently assessing the sufficiency of the evidence.  Art.
34(a), UCMJ, 10 U.S.C. 834(a) (1982 & Supp. V 1987).
   b. In this case, Private Courtney testified under oath during the
Article 32 hearing.  Petitioner and his appointed counsel were present
during his testimony.  Tr. 651.  Private Clifford Hubbard, who was
also accused of participating in Derek's murder, was present with his
appointed counsel.  Ibid.  The verbatim transcript of Courtney's
testimony during the hearing totalled 129 pages, Tr. 712-841, of which
43 pages consisted of defense counsels' cross-examination of Courtney.
 See Tr. 754-769, 825-828 (cross-examination by Hubbard's counsel);
Tr. 769-782, 828-836 (cross examination by petitioner's counsel).
   Private Courtney testified twice at the hearing.  Initially,
Courtney denied being with petitioner and Hubbard on the evening of
February 5, 1982.  Tr. 715, 722-723.  Courtney acknowledged that he
had made a sworn statement to the Army CID that he was at the bunker
with petitioner and Hubbard when Derek was murdered, Tr. 716-717, but
he said that the statement was not true, Tr. 720.  The Article 32
investigating officer warned Courtney about the possibility that he
could be prosecuted for giving a false official statement and advised
Courtney of his rights under Article 31(b), UCMJ, 10 U.S.C. 831(b).
Tr. 723.  Courtney indicated that he wanted to speak with a lawyer,
Tr. 724, and he was given the opportunity to do so.  The Article 32
hearing was then adjourned for two days.  See 89-26 Pet. App. 5a-6a.
   When the hearing resumed Courtney testified that on the evening of
February 5, he, petitioner, and Hubbard met Derek outside a club for
enlisted soldiers located near the bowling alley where Derek and his
brother had been.  Tr. 728, 733.  They asked Derek if he "wanted to go
get high," and Derek said he did.  Tr. 733-734.  The group walked to a
tree near the bunker and smoked marijuana for about ten minutes.  Tr.
736-737.  Petitioner and Hubbard then began wrestling with each other
and "started pushing the kid around." Tr. 737.  At one point, Hubbard
sat on Derek's chest while petitioner pulled down Derek's pants.
Ibid.  Hubbard rolled Derek onto his stomach and petitioner held Derek
down while Hubbard "started rectal intercourse." Tr. 738.  When Derek
tried to scream, petitioner put his hand over the boy's mouth.  Tr.
739.  When Courtney tried to intervene, Hubbard pushed him away and
brandished a knife.  /4/ Tr. 740-741.  Ultimately, Derek went into a
"seizure," and stopped struggling.  Tr. 747-748.  Courtney pushed
petitioner and Hubbard off Derek and checked Derek's pulse.  Tr. 748.
Finding none, Courtney said, "he's dead." Ibid.  Thereafter,
petitioner and Hubbard carried Derek's body three-quarters of the way
down the bunker stairs and let it roll the rest of the way, while
Courtney held a flashlight at the top of the stairs.  Tr. 750-751.
See Pet. App. 6a-7a.  /5/
   c. Before trial, Courtney left Hawaii for the mainland.  Despite
diligent efforts by the Army to locate Courtney, he was not found
before the trial.  See 89-26 Pet. App. 4d.  /6/
   At trial, the government moved, pursuant to Mil. R. Evid.
804(b)(1), /7/ to admit Private Courtney's testimony at the Article 32
hearing as the testimony of an unavailable witness.  Tr. 650.
Petitioner objected, arguing that Courtney was not unavailable and
that petitioner's counsel did not have a full opportunity to
cross-examine Courtney at the hearing.  Tr. 651.  Petitioner alluded
to laboratory reports and the autopsy report that had been prepared
after Courtney testified, implying that he wanted to question Courtney
about those reports.  Tr. 685.  The government established that
Courtney was unavailable because he was absent without leave.  The
trial judge then admitted Courtney's Article 32 testimony, Tr.
686-687, noting that petitioner's counsel and Hubbard's counsel had
"vigorously" cross-examined Courtney at the hearing.  Tr. 685.
   d. During trial, petitioner called Dr. Larry O'Neil, a dentist, /8/
who had examined the bite marks on Derek's chest.  Tr. 909.  Dr.
O'Neil testified that he found five to seven points of favorable
comparison between petitioner's bite pattern and the chest bite mark.
Tr. 928.  He concluded, however, that the chest bite mark was not
consistent with the bite pattern of petitioner, Hubbard, or Courtney.
Tr. 911, 914.
   3. The Army Court of Military Review affirmed.  Pet. App. 1c-3c.
It upheld the trial court's finding that Courtney's former testimony
was admissible, citing its opinion in United States v. Hubbard, 18
M.J. 678 (A.C.M.R. 1984), aff'd, 28 M.J. 27 (C.M.A. 1989), petition
for cert. pending, No. 88-26.  Pet. App. 2c.  In Hubbard, the same
trial judge considered identical testimony offered under identical
circumstances.  The court of military review in Hubbard agreed with
the trial court that Courtney was unavailable and found that Hubbard's
cross-examination of Courtney was "thorough, lengthy and vigorous."
Hubbard, 18 M.J. at 683 (89-26 Pet. App. 8d).  The court in Hubbard
therefore concluded that the admission of Courtney's pretrial
testimony did not violate the Confrontation Clause.  Ibid.  (89-26
Pet. App. 8d).
   4. The Court of Military Appeals affirmed.  Pet. App. 1a-4a.  The
court found that Courtney was unavailable to testify at trial and
concluded that the admission at trial of his testimony at the pretrial
hearing did not violate the Confrontation Clause.  The court observed
that Courtney's testimony was subjected to "extensive
cross-examination by counsel for both accused." Id. at 2a.  Responding
to petitioner's argument that his cross-examination of Courtney was
hindered by the unavailability of Dr. O'Neil's bite mark evidence, the
court noted that "(a)bsent any suppression of evidence by the
prosecution, admissibility of the former testimony is unaffected." Id.
at 3a.  /9/ In so ruling, the court relied on its opinion in United
States v. Hubbard, 28 M.J. 27 (C.M.A. 1989), in which the court
emphasized that the "'Confrontation Clause guarantees an opportunity
for effective cross-examination, not cross-examination that is
effective in whatever way, and to whatever extent, the defense might
wish.'" 28 M.J. at 33 n.5 (89-26 Pet. App. 11a n.5), quoting Delaware
v. Fensterer, 474 U.S. 15, 20 (1985).
                               ARGUMENT
   1. Petitioner contends (Pet. 8-13) that the admission of Courtney's
testimony at the Article 32 hearing violated the Confrontation Clause
of the Sixth Amendment.  Petitioner's claim, however, is quite narrow.
 Petitioner does not deny that Courtney was unavailable to testify at
trial;  he does not dispute that Courtney's testimony at the Article
32 hearing was admissible under the former testimony exception to the
hearsay rule;  and he does not claim that the presiding officer at the
pretrial hearing improperly limited his cross-examination of Courtney
in any way.  Instead, petitioner claims that Courtney's testimony was
inadmissible since petitioner was unable effectively to cross-examine
Courtney, because the defense was unaware at that hearing that bite
marks had been found on Derek's body.  Petitioner relies on this
Court's decision in Pennsylvania v. Ritchie, 480 U.S. 39 (1987), and
in particular on Justice Blackmun's concurring opinion in that case.
   In Ritchie, the defendant was charged with sexually abusing his
daughter, and the defense sought access to records compiled by a state
child welfare agency regarding their investigation of that incident,
as well as a report that the defendant's children has been sexually
abused on a prior occasion.  When the request was denied, the
defendant claimed that his confrontation rights had been violated.  A
plurality of this Court rejected that contention, holding that a
defendant can establish a Confrontation Clause violation "only where
there was a specific statutory or court-imposed restriction at trial
on the scope of questioning." 480 U.S. at 53-54.  See id. at 53 n.9
("(T)he Confrontation Clause only protects a defendant's trial rights,
and does not compel the pretrial production of information that might
be useful in preparing for trial.").  Thus, the plurality held that
the Confrontation Clause was not violated where defense counsel was
permitted fully to cross-examine the witness, but was not able to use
unavailable records in that cross-examination.  Id. at 54.  The
plurality stated that the proper analysis under those circumstances is
to determine whether denying the defense access to the records
violated the Due Process Clause under Brady v. Maryland, 373 U.S. 83
(1963).  480 U.S. at 53 n.9, 56-58.  The plurality also distinguished
Davis v. Alaska, 415 U.S. 308 (1974), in which the Court held that the
Confrontation Clause was violated when the defense was not allowed to
impeach the critical prosecution witness with the fact that he was on
juvenile probation and therefore might have been "cooperating" with
the State.  The error in that case, in the view of the plurality, was
in the fact that the defense was denied any opportunity to use that
evidence at trial, not in the fact that the witness's juvenile record
was confidential.  480 U.S. at 54.  Justice Blackmun concurred in the
judgment.  He concluded that, under Davis, the denial of access to
material information could violate the Confrontation Clause if, for
example, it prevented the defense from demonstrating that the witness
was biased toward the prosecution or had made prior inconsistent
statements.  Id. at 65 (opinion of Blackmun, J.).
   This case is materially different from Ritchie (and Davis) because
the evidence regarding the bite marks on Derek's body was available to
the defense at trial, and because the unavailability of the evidence
at the preliminary hearing did not significantly undermine the
effectiveness of the cross-examination of Courtney.  The availability
of the bite mark evidence at trial, together with petitioner's (and
Hubbard's) unlimited cross-examination of Courtney at the Article 32
hearing, gave petitioner a full opportunity to challenge the accuracy
of Courtney's perception and recollection of the circumstances of
Derek's death.  Courtney unequivocally testified that only he,
petitioner, and Hubbard were together with Derek on the night in
question, and that petitioner and Hubbard murdered Derek.  Dr. O'Neil
testified that, in his opinion, the bite mark was not inflicted by
Courtney, Hubbard, or petitioner.  Petitioner was therefore able to
use Dr. O'Neil's testimony to impeach Courtney's account of the crime
by suggesting that a fourth person was present at the scene of the
crime and was the true culprit.  To be sure, petitioner was not able
to question Courtney about the bite mark evidence because the autopsy
report had not yet been prepared when Courtney testified at the
Article 32 hearing.  /10/ But that would also have been true with
regard to any other type of out-of-court statement from a
nontestifying declarant, such as an excited utterance or a
co-conspirator's declaration.  In each case, the declarant could not
be cross-examined about the bite mark.  Indeed, in light of the
extensive cross-examination of Courtney undertaken by the defense at
the Article 32 hearing, the only advantage to the defense from having
known about the bite mark at that hearing would have been the
possibility that Courtney would have recanted his testimony when
confronted with that evidence.  That possibility, however, is
sufficiently remote that it can be discounted.  Petitioner's inability
to question Courtney about the bite mark therefore did not deny
petitioner the opportunity fairly to challenge Courtney's testimony.
Cf. Arizona v. Youngblood, 109 S. Ct. 333, 338 (1988) (Stevens, J.,
concurring) (the jury's rejection of a permissive inference that the
test of semen samples that had not been properly preserved by the
prosecution would have been exculpatory demonstrated that the
unavailable test result was immaterial).
   This case therefore is governed by the general rule that the
Confrontation Clause guarantees a defendant only the opportunity for
an effective cross-examination.  Delaware v. Fensterer, 474 U.S. at
20.  That rule applies even though the evidence introduced at trial
consisted of the former testimony of Courtney.  In Ohio v. Roberts,
448 U.S. 56, 73 n. 12 (1980), this Court expressly rejected the
suggestion that a trial court must determine "whether defense
counsel's questioning at the preliminary hearing surmounts some
inevitably nebulous threshold of 'effectiveness'" before the
preliminary hearing testimony of an unavailable witness may be
admitted at trial.  As the Court stated, ibid.:
         We hold that in all but such extraordinary cases (i.e., cases
      in which defense counsel has been found to have been
      constitutionally ineffective), no inquiry into "effectiveness"
      is required.  A holding that every case involving prior
      testimony requires such an inquiry would frustrate the principal
      objective of generally validating the prior-testimony exception
      in the first place -- increasing certainty and consistency in
      the application of the Confrontation Clause.
   2. Petitioner also contends (Pet. 10-12) that the admission of
Courtney's pretrial testimony violated the Due Process Clause because
the testimony was unreliable.  The Court of Military Appeals, however,
was correct in ruling that it was unnecessary to make an independent
inquiry into the reliability of Courtney's Article 32 testimony once
that testimony was found admissible under the former testimony
exception to the hearsay rule.  In Bourjaily v. United States, 483
U.S. 171, 182-183 (1987), the Court made clear that "Roberts itself
limits the requirement that a court make a separate inquiry into the
reliability of an out-of-court statement. * * * (N)o independent
inquiry into reliability is required when the evidence 'falls within a
firmly rooted hearsay exception.'" The exception for former testimony
is just such an exception.  See Mattox v. United States, 156 U.S. 237
(1895) (testimony given at a prior trial);  California v. Green, 399
U.S. 149 (1970) (testimony given at a preliminary hearing);  Ohio v.
Roberts, supra (same).
   Preliminary hearing testimony is admitted without a separate
inquiry into its reliability because it is "given under circumstances
closely approximating those that surround the typical trial."
California v. Green, 399 U.S. at 165.  This case illustrates that
principle.  The charges against petitioner were the same at the
Article 32 hearing as a trial.  Courtney was under oath during his
testimony at the proceeding.  Petitioner was present at the hearing,
and he was represented by the same counsel who represented him at
trial.  And not only did petitioner have the opportunity to
cross-examine Courtney at the hearing, but he took full advantage of
that opportunity, asking a total of 236 questions that probed
Courtney's sincerity and the consistency and accuracy of his
perception and recollection.  Petitioner also profited from the
cross-examination of Courtney conducted by counsel for co-defendant
Hubbard, who asked Courtney an additional 192 questions.  Given these
safeguards against the possibility that Courtney's Article 32
testimony was unreliable, the courts below did not err in concluding
that Courtney's prior testimony could be admitted at trial even though
Courtney was unavailable at that time for cross-examination.  /11/
   The case on which petitioner principally relies, Lee v. Illinois,
476 U.S. 530 (1986), is inapposite.  Lee involved the admission of a
confession made by an accomplice to the crime who was not subject at
any time to cross-examination by the accused.  Courtney was not shown
to be an accomplice, /12/ but even if he had been, his Article 32
testimony was not a "presumptively unreliable" custodial confession
that fell outside any exception to the hearsay rule.  See Lee, 476
U.S. at 541.  This case is therefore not governed by the decision in
Lee.
                              CONCLUSION
   The petition for a writ of certiorari should be denied.
   Respectfully submitted.
   KENNETH W. STARR
      Solicitor General
   ALFRED F. ARQUILLA
      Col., JAGC, USA
   DANIEL J. DELL'ORTO
      Lt. Col., JAGC, USA
   GARY L. HAUSKEN
      Maj., JAGC, USA
   RANDY V. CARGILL
      Capt., JAGC, USA Appellate Government Counsel Government
      Appellate Division United States Army Legal Services Agency
   AUGUST 1989
   /1/ Petitioner was convicted of crimes stemming from the same
incident in which petitioner's confederate Clifford Hubbard was was
involved.  Hubbard was separately tried, and his convictions (with one
minor modification) were upheld on appeal.  United States v. Hubbard,
18 M.J. 678 (A.C.M.R. 1984), aff'd, 28 M.J. 27 (C.M.A. 1989), petition
for cert. pending, No. 89-26.
   /2/ When later confronted with the photograph showing that Derek's
socks were rolled down, petitioner stated, "I must have been there, I
know the socks were up, I must have seen him when he was alive." Tr.
854.  Petitioner then admitted that he was at the bunker on the
evening of February 5, 1982, but he denied killing Derek.  Tr. 855.
Petitioner related that he had a dreamlike recollection of that
evening and remembered seeing three "figures" near the bunker, hearing
sounds like someone being raped, and seeing the "black guy (take) the
little figure out into the bunker." Tr. 852.  Asked why he did not
help the boy, petitioner responded, "I couldn't, I knew he was dead."
Tr. 855-856.  Petitioner then said, "I want to take that back, I
didn't mean to say that." Tr. 856.
   /3/ Investigators collected hair samples from Derek's clothing.  A
forensic serologist and hair analysis expert testified at trial that
three of these hairs matched petitioner's head hair to an 80%
certainty.  Tr. 617-618, 621-622.
   /4/ Investigators found a buck knife, GX 25, near the bunker.  Tr.
446-447.  There were no identifiable fingerprints on the knife.
   /5/ Asked to explain why he earlier denied being with petitioner
and Hubbard, Courtney said that he was afraid of them because "they
can still get at me, sir." Tr. 822.
   /6/ Petitioner states that Courtney resurfaced after trial.  Pet.
3.  Courtney was found approximately four months after petitioner's
trial and was discharged from the Army in November 1982.  Petitioner
never asked for a new trial in light of Courtney's subsequent
availability.
   /7/ Rule 804(b)(1) of the Military Rules of Evidence provides that
the verbatim record of an Article 32 proceeding is admissible at trial
if the declarant is unavailable.  Accord Fed. R. Evid. 804(b)(1).
   /8/ Petitioner overstates Dr. O'Neil's qualifications by calling
him a "forensic odontologist." Pet. 3.  In fact, Dr. O'Neil was board
certified in "general dentistry." Tr. 908.  His training in forensic
odontology consisted of a one-week course at the Armed Forces
Institute of Pathology.  Tr. 909, 924.  Dr. O'Neil had never before
testified about bite marks.  Tr. 925.
   /9/ In Hubbard, the court discussed the confrontation issue at
greater length and specifically found that the prosecution "did not
hold back from the defense" but "promptly" provided the defense all
evidence as it became available.  89-26 Pet. App. 10a.
   /10/ In Arizona v. Youngblood, 109 S. Ct. 333, 337 (1988), the
Court held that "unless a criminal defendant can show bad faith on the
part of the police, failure to preserve potentially useful evidence
does not constitute a denial of due process of law." Petitioner
concedes that the unavailability of the bite mark evidence at the
Article 32 hearing was not due to bad faith by the government, Pet. 9
n.4, and in any event petitioner used the bite mark evidence at trial.
   /11/ In any event, even if the trial court was required to
determine whether Courtney's testimony was reliable, petitioner's own
statements provided powerful corroboration of that testimony.  See
page 3 & note 2, supra.  The manner of death (asphyxiation) and the
physical evidence (hairs, knife) also corroborated Courtney's
testimony.  In the companion case, Hubbard, the Court of Military
Appeals found that Courtney's testimony "was extensively corroborated
by physical evidence and by the testimony of other witnesses." 89-26
Pet. App. 12a.
   /12/ There was no evidence that Courtney participated in any way in
Derek's murder.  Indeed, Courtney testified that he tried to help
Derek.  Tr. 740-742;  89-26 Pet. App. 6a-7a.  The trial judge gave an
accomplice instruction nonetheless, Tr. 1038, reasoning that the jury
might believe Courtney was "criminally involved in the venture." Tr.
989.  The Court of Military Appeals expressed doubt whether Courtney
was an accomplice, but found (in the Hubbard case) that his testimony
was sufficiently corroborated even if Courtney was an accomplice.
89-26 Pet. App. 13a.