ANDREW L. ARRUZA, PETITIONER, V. UNITED STATES OF AMERICA

   No. 88-839

   In The Supreme Court of the United States

   October Term, 1988

   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
   QUESTIONS PRESENTED
   Opinions below
   Jurisdiction
   Statement
   Argument
   Conclusion

                            OPINIONS BELOW

   The opinion of the Court of Military Appeals (Pet. App. 8a-20a) is
reported at 26 M.J. 234.  The opinion of the Court of Military Review
(Pet. App. 1a-7a) is reported at 21 M.J. 621.

                             JURISDICTION

   The judgment of the Court of Military Appeals was entered on July
18, 1988.  A petition for reconsideration was denied on September 22,
1988.  Pet. App. 26a.  The petition for a writ of certiorari was filed
on November 21, 1988.  The jurisdiction of this Court is invoked under
28 U.S.C. 1259(3)(Supp. IV 1986).

                          QUESTIONS PRESENTED

   1. Whether the military court violated petitioner's rights under
the Confrontation Clause by admitting at trial the recorded and sworn
testimony of a witness at a preliminary hearing, when that witness was
found to be unavailable to testify at trial.

   2. Whether petitioner was denied a fair trail when, after defense
cross-examination left the impression that an examining psychiatrist
did not believe the victim, the trial judge allowed the psychiatrist
to testify that in his opinion the victim honestly believed she had
had a sexual encounter with petitioner and that in his opinion her
testimony was worthy of belief.

   3. Whether the pretrial preliminary hearing required by Article 32
of the UCMJ, 10 U.S.C. 832, satisfies due process requirements.

   4. Whether the admission of an unavailable witness's testimony at
an Article 32 hearing violated Article 50 of the UCMJ, 10 U.S.C. 850,
which restricts the use of testimony given before "courts of inquiry"
conducted pursuant to Article 135 of the UCMJ, 10 U.S.C. 935.

   5. Whether the trial court erred by admitting rebuttal testimony by
an expert about the general characteristics of child abusers once the
defense had made petitioner's character an issue in the case.

   6. Whether the Court of Military Appeals must independently examine
the sufficiency of the evidence in every case.

                               STATEMENT

   Petitioner, a member of the United States Army, was convicted by a
general court-martial at Mainz-Gonsenheim in West Germany on two
specifications of taking indecent liberties with a female under the
age of 16, in violation of Article 134 of the Uniform Code of Military
Justice (UCMJ), 10 U.S.C. 934.  He was sentenced to confinement for
five years, dismissal from the service, and forfeiture of pay.  The
convening authority approved the findings and sentence.  The Army
Court of Military Review affirmed the findings and sentence.  The
Court of Military Appeals affirmed.

   1. Petitioner, an officer and a military chaplain, was charged with
taking indecent liberties with a six-year-old girl on two occasions
between December 29, 1982, and May 20, 1983.  His victim, Heidi Carr,
was the daughter of an Army sergeant whom petitioner had been seeing
socially.

   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 before trial in the civilian courts.  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, as well as the
identity of his accuser, to cross-examine all available witnesses, and
to present any testimony or documentary 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. IV 1986);  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. IV 1986).

   b. In this case, Heidi Carr testified under oath during an Article
32 hearing.  Both petitioner and his appointed defense counsel were
present during her testimony.  AX 11.  The verbatim transcript of
Heidi's testimony during the hearing totalled 46 pages, GX 5;  Tr.
318, 319, of which 30 pages consisted of defense counsel's
cross-examination of Heidi, GX 5, at 15-44.

   Heidi said that she was seven years old and knew that it was wrong
to lie.  GX 5, at 1.  She testified that she went to petitioner's
apartment with her mother on several occasions.  During one of their
visits, Heidi's mother left Heidi alone with petitioner.  Id. at 6.
While her mother was gone, petitioner took Heidi into the bedroom,
placed her on the bed, and "took out his penis and put it in (her)
privates." Id. at 8.  She described petitioner's penis as being placed
"(i)n the hole * * * (a) little bit," and she said that it hurt.  Id.
at 9.  She said that petitioner's penis got wet and "(h)e wiped it off
with a (yellow) tissue." Id. at 12.  Petitioner also kissed her on the
lips and on the same place as where he put his penis.  Id. at 9.
Heidi further stated that the petitioner kissed her and engaged in
other sexual acts with her, probably on more than six occasions. Id.
at 10-12.

   c. At trial, Heidi testified that she met petitioner when she
accompanied her mother to his apartment.  Tr. 219-220.  Heidi's mother
left Heidi alone in the apartment with petitioner, and petitioner took
her into an "extra room." Tr. 226.  Heidi stated that she did not
remember what happened in that room.  Tr. 226.  After a recess, she
explained that she did remember what happened, but did not "want to
talk about it." Tr. 232.  Despite attempts by the prosecutor and the
trial judge to persuade Heidi to testify, she adamantly refused to say
anything further.  Tr. 231-234.  Heidi stated that she could not
explain "it in front of the ladies." Tr. 234.  She said she would be
willing to testify if no "ladies were present." Tr. 234.  Heidi left
the stand briefly, and when the court reconvened, the trial judge
noticed that a female was seated at the defense table.  Tr. 243.
Defense counsel identified her as a member of the defense team.  Tr.
244.  The trial judge noted that the female defense attorney had
previously been a spectator to the proceeding and had not been
identified as a member of the defense team.  Tr. 244.

   Heidi returned to the stand, and she again refused to "talk in
front of the ladies." Tr. 279, 280, 284.  Heidi was then excused.
Defense counsel refused to have the female lawyer leave the defense
table during Heidi's testimony.  Tr. 285-291.  The trial judge refused
to substitute his "judgment of the defense's motives for the
articulated and stated reasons that the defense" gave.  He denied a
government motion for the removal of the female defense counsel and
the spectators so that Heidi could testify.  Tr. 292.

   On the government's motion, the trial judge found that Heidi was
unavailable to testify within the meaning of Mil. R. Evid. 804(a)(2).
Tr. 292-293.  /1/ The government then moved, pursuant to Mil. R. Evid.
804(b)(1), to admit Heidi's testimony at the Article 32 hearing as the
testimony of an unavailable witness.  Tr. 294.  The judge admitted the
testimony over defense objection.

   d. During trial, the prosecution called Dr. Michael Vandewalle, an
expert in child psychiatry who had examined Heidi on four prior
occasions, in order to explain to the court-martial panel members how
a child might react to sexual abuse.  Tr. 350, 357, 359.  Dr.
Vandewalle said that the perceptions of young children are at times
exaggerated and distorted.  Tr. 370.  He stated that children often
delay reporting molestation when the molester is someone who is close
to the family.  Tr. 369.  He also described the psychiatric traits and
characteristics associated with sexually abused children.  Tr.
360-363.  Dr. Vandewalle testified that Heidi displayed many of those
characteristics.  Tr. 367.

   During cross-examination, defense counsel asked Dr. Vandewalle if
he believed Heidi's testimony.  Dr. Vandewalle said that "something
could have happened, but (he) didn't necessarily believe all the stuff
that was in the (pretrial hearing)." Tr. 394.  The trial judge then
asked Dr. Vandewalle several questions proposed by the panel members;
defense counsel objected to two of the questions.  Tr. 409.  /2/ In
response to the questions submitted by the court members, Dr.
Vandewalle stated that in his opinion Heidi believed she had had a
sexual encounter with petitioner and that it was also his professional
opinion that Heidi did have a sexual encounter with petitioner.  Tr.
410-411.  /3/

   3. The Army Court of Military Review affirmed.  Pet. App. 1a-7a.
It upheld the trial court's finding that Heidi was unavailable, within
the meaning of Mil. R. Evid. 804(a)(2) and (b)(1).  Pet. App. 3a.  The
court also held that Heidi's testimony at the Article 32 hearing "was
buttressed by sufficient indicia of reliability," and that the
admission of her pretrial testimony therefore did not violate the
Confrontation Clause of the Sixth Amendment.  Pet. App. 3a-4a.  In
addition, the court held that the trial judge did not err by allowing
Dr. Vandewalle to give his opinion as to Heidi's beliefs and the
credibility of her testimony, because the defense had opened the door
on cross-examination by asking the doctor for his personal opinion of
Heidi's veracity.  Id. at 5a.  In any event, the court found that
petitioner was not prejudiced by the admission of the doctor's
testimony.  Id. at 7a.

   4. The Court of Military Appeals granted review limited to two
questions and affirmed.  Pet. App. 8a-20a.  The first question
involved the admissibility of Heidi's testimony from the Article 32
proceeding.  The court found that Heidi was unavailable to testify
because "through a combination of trial maneuvers and apparent
intimidation, civilian defense counsel succeeded in silencing (Heidi)
at the court-martial." Id. at 9a (footnote omitted).  The court held
that Heidi's pretrial testimony was properly admitted under Mil. R.
Evid. 804(b)(1) and that its admission did not violate the Sixth
Amendment Confrontation Clause.  Pet. App. 11a.

   The second question involved the admissibility of Dr. Vandewalle's
responses to the questions regarding Heidi's beliefs and her
credibility.  The court held that petitioner was not entitled to a new
trial based on the admission of Dr. Vandewalle's answers in response
to those inquiries from the panel members, because the defense had
"opened the door" to the testimony by asking Dr. Vandewalle on
cross-examination whether Heidi had lied or fantasized about the
events at issue in the case.  Id. at 16a.  Even if the admission of
the two answers was error, however, the court held that the error was
harmless.  Ibid.  /4/

                               ARGUMENT

   1. Petitioner claims (Pet. 12-14) that the admission at trial of
Heidi Carr's testimony at the Article 32 hearing violated the
Confrontation Clause of the Sixth Amendment.  Petitioner argues that
Heidi was available to testify at trial and that her testimony at the
Article 32 hearing should not have been admitted, because he did not
have a full and fair opportunity to cross-examine her at that hearing.
 His only motive for questioning Heidi at that time, petitioner
argues, was to obtain discovery.  That claim lacks merit.

   a. To begin with, petitioner's counsel was at least partially
responsible for Heidi's refusal to testify at trial, as the Court of
Military Appeals found.  Pet. App. 9a.  Heidi told the trial judge she
would not testify "in front of the ladies." Tr. 234.  After Heidi made
that statement, a female lawyer, who had not previously appeared for
the defense, took a place at the defense table.  Tr. 243-244.  The
defense refused to have the female attorney leave the courtroom during
Heidi's testimony.  R. 292.  See also Memorandum of Special Findings.
Accordingly, the Court of Military Appeals properly found that defense
counsel's conduct contributed to Heidi's unavailability at trial.  /5/

   Under these circumstances, petitioner cannot claim that his
confrontation rights were violated.  Relying on a concept of implicit
waiver or the principle that a person should not profit by his own
wrongdoing, the courts have consistently refused to allow a defendant
to complain about the lack of confrontation when the defendant himself
wrongfully caused a witness's unavailability.  /6/ The waiver or
estoppel doctrine applied in these cases rests "on a princple of
reciprocity similar to the equitable doctrine of 'clean hands.'"
Steele v. Taylor, 684 F.2d 1193, 1202 (6th Cir. 1982), cert. denied,
460 U.S. 1053 (1983).  That principle is applicable here.  Given the
actions of petitioner's counsel, which may be charged to petitioner
himself (Taylor v. Illinois, No. 86-5963 (Jan. 25, 1988), slip op.
16-18), petitioner should not now be heard to claim that he was denied
the right to confront Heidi at trial.

   b. Even aside from the question of defense counsel's responsibility
for Heidi's refusal to testify at trial, Heidi's pretrial testimony
was independently admissible as the testimony of an unavailable
witness at a prior judicial proceeding.  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).  Rule 804(a)(2), Mil. R.
Evid., provides that a declarant is unavailable if he persists in
refusing to testify concerning the subject matter of his prior
statement despite an order by the trial judge to testify.  In
California v. Green, 399 U.S. 149 (1970), and Ohio v. Roberts, 448
U.S. 56 (1980), this Court held that the admission of the preliminary
hearing testimony of an unavailable witness does not violate the
Confrontation Clause as long as the defendant is given a fair
opportunity to cross-examine the witness at the hearing.

   In this case, the trial judge found that Heidi was unavailable to
testify at trial, and that finding was upheld by both military
appellate courts.  Pet. App. 3a, 9a.  It therefore does not warrant
further review.  See, e.g., Goodman v. Lukens Steel Co., No. 85-1626
(June 19, 1987), slip op. 7-8;  United States v. Doe, 465 U.S. 605,
613-614 (1984).  /7/ Since Heidi was unavailable to testify at trial,
the admission of her testimony at the Article 32 hearing did not
violate the Confrontation Clause, because her testimony was "given
under circumstances closely approximating those that surround the
typical trial." California v. Green 399 U.S. at 165.  The charges
against petitioner were the same at the Article 32 proceeding as at
trial.  Heidi was under oath during her testimony at the Article 32
proceeding.  Petitioner was present at the hearing, and he was
represented by the same appointed counsel who represented petitioner
at trial.  The pretrial hearing provided a verbatim record of Heidi's
testimony.  And not only did petitioner have an opportunity to
cross-examine Heidi at the Article 32 proceeding, he took full
advantage of that opportunity:  30 of the 46 pages of Heidi's
testimony consist of defense cross-examination.  The decision below is
therefore fully consistent with this Court's decision in California v.
Green, supra, and Ohio v. Roberts, supra, which upheld the admission
of the preliminary hearing testimony of an unavailable witness in
similar circumstances.

   Petitioner contends (Pet. 13) that the admission of Heidi's
pretrial testimony was erroneous since his cross-examination at the
earlier proceeding was conducted solely for discovery purposes.  That
claim lacks merit.  Although petitioner's counsel did say at the
Article 32 hearing that he would limit his cross-examination of Heidi
to discovery purposes (Pet. 9), each of the courts below found that
counsel did not so limit his questioning.  See Pet. App. 2a-3a,
10a-11a.  /8/ As the verbatim transcript of the Article 32 proceeding
shows, see GX 5, /9/ defense counsel's questions "comported with the
principal purpose of cross-examination:  to challenge 'whether the
declarant was sincerely telling what (she) believed to be the truth,
whether the declarant accurately perceived and remembered the matter
(she) related, and whether the declarant's intended meaning is
adequately conveyed by the language (she) employed.'" Ohio v. Roberts,
448 U.S. at 71 (citation and emphasis omitted).  The record thus
demonstrates that petitioner had the opportunity to develop Heidi's
testimony in any manner he deemed in his interest and that defense
counsel made full use of that opportunity.  /10/ In these
circumstances, the courts below correctly rejected petitioner's claim.

   2. Petitioner contends (Pet. 14-15) that the trial court erred by
allowing Dr. Vandewalle to answer two questions from the court-martial
panel by stating that he believed Heidi had been sexually assaulted.
/11/ That claim lacks merit since defense counsel opened the door to
the panel's questions, as each court below found.  See Pet. App. 5a,
16a, 19a (Sullivan, J., concurring).

   Defense counsel's cross-examination created the erroneous
impression that Dr. Vandewalle did not believe Heidi had been abused
and that he believed she may have been fabricating her story.  Tr.
386, 398;  Pet. App. 12a-13a n.4.  The defense thus opened the door to
the panel's questions concerning Dr. Vandewalle's beliefs.  Petitioner
tacitly concedes as much by arguing (Pet. 15) that he had no other
means of challenging Heidi's credibility once the trial judge admitted
Heidi's Article 32 testimony.  But since petitioner was at least
partially responsible for Heidi's unavailability, petitioner cannot
now claim that he was in effect forced to try to get Dr. Vandewalle to
suggest that he did not believe Heidi's story.  In any event, given
the other proof of petitioner's guilt, the military appellate courts
correctly found that any error could not have prejudiced petitioner.
Pet. App. 7a, 16a.

   3. Petitioner next contends (Pet. 11-12) that the military justice
system should be required to follow pretrial procedures comparable to
civilian grand jury proceedings before a servicemember can be charged
with sexual assault.  /12/ That claim is meritless.  The Fifth
Amendment Indictment Clause specifically exempts "cases arising in the
land or naval forces" from the requirement of an indictment by grand
jury for serious crimes.  Ex parte Milligan, 71 U.S. (4 Wall.) 2, 123
(1866).  In the military system, the pretrial adversarial Article 32
hearing serves the grand jury's function of determining whether there
is probable cause that a crime has been committed and protecting
servicemembers against unfounded accusations.  Compare Branzburg v.
Hayes, 408 U.S. 665, 686-687 (1972).  In fact, the Article 32 hearing
guarantees a servicemember protections not afforded to his civilian
counterpart.  Gosa v. Mayden, 413 U.S. 665, 681 n.6 (1973) (plurality
opinion).  See also United States v. Ledbetter, 2 M.J. 37, 43 (C.M.A.
1976);  Mercer v. Dillon, 19 C.M.A. 264, 266, 41 C.M.R. 264, 266
(1970);  Moyer, Procedural Rights of the Military Accused:  Advantages
Over a Civilian Defendant, 22 Me. L. Rev. 105, 109-114 (1970).
Compare Gerstein v. Pugh, 420 U.S. 103, 119-125 (1975) (describing
limited procedures required at a civilian pretrial probable cause
hearing).  The pretrial procedures employed in the military justice
system therefore satisfy any possible due process requirements.

   4. Petitioner claims (Pet. 18-20) that the trial judge erred by
admitting evidence during the government's rebuttal case concerning
the general characteristics of a sexual abuser.  That claim arose in
the following setting:  At trial, petitioner introduced sworn
affidavits from various acquaintances stating, in effect, that
petitioner was moral and law-abiding.  DXs P-T and Y-Z.  In rebuttal,
the government offered the testimony of an expert, Dorothy Ogilvy-Lee,
in order to respond to petitioner's suggestion that a law-abiding
citizen is incapable of committing sexual abuse.  The trial judge
found that Ogilvy-Lee was an expert, Tr. 710, and permitted her to
testify about the general characteristics of child abusers.  /13/ On
cross-examination, defense counsel elicited several inconsistencies
between those characteristics and petitioner's, Tr. 761-768, and
counsel later argued that petitioner did not fit the profile that
Ogilvy-Lee described.  Tr. 821-822.

   Contrary to petitioner's contention, Ogilvy-Lee's testimony was
relevant because it responded to petitioner's suggestion that, as a
law-abiding citizen, he was incapable of committing sexual abuse.
Moreover, the risk that petitioner was prejudiced by Ogilvy-Lee's
testimony is extremely low.  She did not suggest that petitioner was a
child abuser;  rather, she testified only that his status did not
preclude it.  She also testified that "(p)robably a fairly large part"
of the male population shares the characteristics of a sexual
offender.  Tr. 768.  She said that a sexual offender can be a
"professional, semi-professional, or skilled blue collar" worker.  Tr.
771.  Finally, the trial judge instructed the panel members to
consider Ogilvy-Lee's testimony solely "as evidence that persons who
are credible, moral, and law abiding are capable of committing the
alleged offenses." Tr. 866.  The members were expressly instructed
"not to consider her testimony as evidence that it is more probable
that (petitioner) committed the alleged offenses." Ibid.  Under these
circumstances, the admission of Ogilvy-Lee's testimony was not error.

   5. Petitioner also contends (Pet. 15-18) that Heidi's Article 32
testimony was admitted in violation of Article 50 of the UCMJ, 10
U.S.C. 850.  Article 50 prohibits the admission, at a capital trial or
in a case in which a commissioned officer may receive a dishonorable
or bad conduct discharge, of testimony given by a witness at a "court
of inquiry." Petitioner, however, has confused an Article 32 hearing
with a military court of inquiry.

   A court of inquiry is a formal fact-finding tribunal consisting of
three or more members convened under Article 135 of the UCMJ, 10
U.S.C. 935.  A court of inquiry is used to conduct an investigation
only when no other tribunal is available and when the matter is of
grave importance to the military or to the individual, such as when a
ship is sunk.  Although a court of inquiry is a formal investigation,
the rules of evidence do not apply to such an investigation.  /14/ By
contrast, an Article 32 hearing, such as the one held in this case, is
not a court of inquiry.  It is a pretrial hearing comparable to a
preliminary hearing in the civilian criminal justice system, and it is
a prerequisite to convening a general court-martial.  Unlike a court
of inquiry, an Article 32 hearing offers the accused the same
opportunity, and supplies him with the same motivation, to defend
himself against his accusers that he has at trial.  In addition, the
Military Rules of Evidence apply at an Article 32 hearing.

   In this case, no court of inquiry was assembled.  Article 50 of the
UCMJ is therefore inapposite.  Moreover, Mil. R. Evid. 804(b)(1)
provides that the testimony of a witness given at an Article 32
hearing may be admitted at trial and therefore rebuts any suggestion
that the prohibition in Article 50 should apply to Article 32
proceedings.  Because the pretrial proceeding held in this case was an
Article 32 hearing and not an Article 135 court of inquiry,
petitioner's reliance on Article 50 is misplaced.

   6. Petitioner claims (Pet. 20-22) that the Court of Military
Appeals must review the record in every case to ensure that the
evidence is sufficient to support a conviction.  That claim lacks
merit.  The Court of Military Appeals has the statutory authority,
which it exercised in this case, to limit its decision in any case to
less than all the issues presented by a defendant.  10 U.S.C. 867(d).
That provision was designed to allow the Court of Military Appeals to
resolve only those issues of general importance to the entire military
justice system.  Moreover, the court of military review must
independently review the sufficiency of the evidence in every case
pursuant to Article 66(c) of the UCMJ, 10 U.S.C. 866(c).  That
requirement, which was satisfied here, see Pet. App. 3a, ensures that
the evidence is sufficient to support a servicemember's conviction.
/15/

                              CONCLUSION

   The petition for a writ of certiorari should be denied

   Respectfully submitted.

   WILLIAM C. BRYSON

      Acting Solicitor General

   NORMAN G. COOPER

      Col., JAGC, USA

   GARY F. ROBERSON

      Lt. Col., JAGC, USA

   GARY L. HAUSKEN

      Maj., JAGC, USA

   PATRICK D. O'HARE

      Capt., JAGC, USA

   JONATHAN F. POTTER

      Capt., JAGC, USA Appellate Government Counsel Government
      Appellate Division United States Army Legal Service Agency

   JANUARY 1989

   /1/ The judge did not believe that Heidi would answer any questions
on cross-examination under any circumstances.  He found, "based upon
my questioning of (Heidi) and my observation of her demeanor, and her
reaction to the civilian defense counsel, that even if all spectators
and females were excluded (over strenuous defense objection), and even
if she answered questions of the trial counsel, there was no
substantial likelihood that she would, thereafter, answer questions on
cross-examination." Memorandum of Special Findings.  The judge also
determined that contempt proceedings for Heidi were not a plausible
alternative.  Ibid.

   /2/ The questions to which defense counsel objected were:

         "In your professional opinion do you believe Heidi Carr had a
      sexual encounter with (petitioner)?"

         "Does Heidi Carr believe that she did have a sexual encounter
      with (petitioner)?"

   Defense counsel objected to the questions on the ground that they
went to the ultimate issue (i.e., petitioner's guilt), and on the
ground that they were irrelevant.  The prosecutor argued that defense
counsel had opened the door to the panel members' inquiry by asking
Dr. Vandewalle if he believed the substance of Heidi's testimony.  Tr.
408-410.

   /3/ Dr. Vandewalle further testified that he believed there was a
sexual touching, but that he did not believe Heidi's statements that
she was raped.  Tr. 412.  He said that Heidi believed that she was
penetrated, but that she had an insufficient concept of "penetration"
and her perception was therefore distorted.  Ibid.

   /4/ Judge Sullivan concurred in the result, on the ground that the
defense had opened the door to Dr. Vandewalle's testimony.  Pet. App.
19a.  Chief Judge Everett dissented.  He stated that in his view it
was prejudicial error to permit the panel's questions to be answered.
Id. at 20a.

   /5/ Petitioner's claim (Pet. 13) that Heidi's refusal to testify
was prompted by her fear of being exposed as a liar is unsupported by
anything in the record.

   /6/ See, e.g., Reynolds v. United States, 98 U.S. 145, 158-160
(1878);  United States v. Mastrangelo, 722 F.2d 13 (2d Cir. 1983),
cert. denied, 467 U.S. 1204 (1984);  Steele v. Taylor, 684 F.2d 1193,
1200-1204 (6th Cir. 1982), cert. denied, 460 U.S. 1053 (1983);  United
States v. Thevis, 665 F.2d 616, 630-633 (5th Cir.), cert. denied, 456
U.S. 1008 (1982);  United States v. Balano, 618 F.2d 624, 628-630
(10th Cir. 1979), cert. denied, 449 U.S. 840 (1980);  United States v.
Carlson, 547 F.2d 1346, 1355-1360 (8th Cir. 1976), cert. denied, 431
U.S. 914 (1977).

   /7/ The trial judge's finding is also amply supported by the
record.  In fact, the trial judge did everything possible to convince
Heidi to testify.  After her initial refusal to testify, Tr. 229,
Heidi was twice recalled to the stand, Tr. 231, 279, but she refused
to testify on both occasions despite the judge's efforts.  The trial
judge told Heidi that she had to testify, Tr. 234, the judge offered
to videotape her testimony with only himself, petitioner, and counsel
present, Tr. 275-276, and the judge asked defense counsel if he would
object to the removal of all women in the courtroom in order to
persuade Heidi to testify.  Tr. 285.  Defense counsel, however,
objected to any of the court's proposed solutions to the problem of
Heidi's unwillingness to proceed.  Tr. 283.  The trial judge
determined "that the threat of contempt proceedings (wa)s not a viable
consideration for dealing with a seven-year-old witness." Memorandum
of Special Findings.

   /8/ The trial judge entered special findings that defense counsel's
cross-examination at the hearing was for the dual purpose of
impeachment and discovery.  Memorandum of Special Findings.

   /9/ Defense counsel not only questioned Heidi's memory of the
events, but also attacked her veracity by attempting to demonstrate
that she had substantial knowledge about sex and had in the past made
complaints about being sexually abused.  See GX 5, at 21-33.

   /10/ Petitioner claims (Pet. 13) that cross-examination at a
preliminary hearing is not as valuable as cross-examination at trial.
That may often be true, but it is also immaterial.  This Court has
held that it is unnecessary to inquire into the effectiveness of
defense cross-examination at a particular pretrial hearing.  Ohio v.
Roberts, 448 U.S. at 73 n.12.

   /11/ Petitioner also claims that the only role for psychiatric
testimony in a child abuse case is to establish or refute a claim that
a child suffers from a mental illness affecting her credibility.
Petitioner cites no authority for that proposition, and it lacks
merit.  Testimony about the effects of abuse or molestation on a child
victim can be an appropriate subject for expert testimony.  See, e.g.,
United States v. Snipes, 18 M.J. 172 (C.M.A. 1984);  United States v.
Moore, 15 M.J. 354 (C.M.A. 1983);  State v. Myers, 359 N.W.2d 604, 610
(Minn. 1984).

   /12/ The Court of Military Appeals did not grant review on this
question, or on any of the other questions hereafter discussed in this
brief.  Accordingly, it is not clear that those questions are even
subject to review by certiorari in this Court.  The statutes providing
for certiorari review of the judgments of the Court of Military
Appeals, 28 U.S.C. 1259(3) (Supp. IV 1986) and 10 U.S.C. 867(h)(1)
(Supp. IV 1986), restrict this Court's certiorari jurisdiction to
"(d)ecisions" of the Court of Military Appeals.  Section 867(h)(1)
further provides that this Court may not review by certiorari "any
action of the Court of Military Appeals in refusing to grant a
petition for review." The Court of Military Appeals has the statutory
right, which it exercised in this case, to limit its decisions in any
case to less than all the issues urged by the accused.  See 10 U.S.C.
867(d).  Because the Court of Military Appeals accepted for review
only the first two questions raised here by petitioner, there is a
question whether that court rendered a "(d)ecision" on the remaining
issues that petitioner presents in his petition, and whether the
refusal to accept the remaining issues for review constituted an
"action" of that court "in refusing to grant a petition for review"
within the meaning of Section 867(h)(1).  Those questions do not
require an answer in this case, however, because none of the issues
presented by petitioner warrant review by this Court in any event.

   /13/ Ogilvy-Lee testified that the profile indicated (1) aggressive
sexual offenses against children are the exception rather than the
rule;  (2) most abusers are heterosexual;  (3) they are "non-assertive
and non-violent";  (4) they are often well known to the victim;  and
(5) they tend to be individuals who have no record of prior criminal
behavior.  Tr. 757-761.

   /14/ See Army Reg. 27-10, Legal Services:  Military Justice para.
10-2 (July 10, 1987).  Before a court of inquiry, the parties are
denominated as those "whose conduct is subject to inquiry" and those
having "a direct interest in the inquiry." Parties may be designated
at the beginning of the inquiry or later in the proceedings.  Id.
para. 10-5.  The presence of the parties is not essential.  See id.
paras. 10-3 to 10-8.

   /15/ Petitioner at two points (Pet. 10-11, 22-23) suggests that
there is a constitutional flaw in the statute permitting the Court of
Military Appeals to foreclose this Court's certiorari jurisdiction by
declining to grant review of particular decisions of the courts of
military review.  Petitioner cites no authority for that proposition,
and we believe there is no merit to it.

   Prior to 1983, this Court had no certiorari jurisdiction over Court
of Military Appeals cases at all.  The Military Justice Act of 1983,
Pub. L. No. 98-209, 97 Stat. 1393, created certiorari jurisdiction in
military cases for the first time, but limited that jurisdiction to
cases in which the Court of Military Appeals had granted review.
Before that Act was passed, it was accepted that the judgments of
military courts were not subject to direct review by this Court in any
case.  See In re Yamashita, 327 U.S. 1, 8 (1946);  Fowler v.
Wilkinson, 353 U.S. 583, 584 (1957).  Since the federal courts have
only the jurisdiction that Congress has granted, Argentine Republic v.
Amerada Hess Shipping Corp., No. 87-1372 (Jan. 23, 1988), slip op. 4,
there is no constitutional infirmity in a statute which ameliorates
the former rule, but does so only with respect to a limited number of
cases in the military system.  In any event, this case does not
properly present that question, because the Court of Military Appeals
granted review in this case, and because it is unclear whether the
limitation on this Court's certiorari jurisdiction applies to
non-granted issues in cases in which the Court of Military Appeals has
granted review of the lower court's judgment.  See pages 12-13 note
12, supra.