Tuesday, February 27, 2007

Othuru effect

WARNING: Because several readers have commented on the aggrandizement of the contributors to this blog, this string will contain aggrandizement of non-contributors to this blog. Those concerned with aggrandizement in general should not read further.

On February 22, 2007, C.A.A.F. granted review in United States v. Othuru. Othuru is a fascinating case, but not because of the jurisdictional problems raised by Mr. Jessup yesterday. Othuru was sentenced to one year of confinement contingent upon his paying a $34,000 fine. Because the convening authority approved the one-year sentence, jurisdiction attached pursuant to Article 66, UCMJ. This logically makes sense because springing contingent jurisdiction, dependent upon the failure to pay a fine and a vacation hearing, is unworkable. I digress.

Othuru is interesting because of the testimonial hearsay issue presented. It may also be interesting to track the effect of this case upon military recruiting in West Virginia-the Othuru effect. Othuru, a Nigerian national, married his sister just before emigrating to the United States. Upon his arrival, he enlisted and began collecting BAH for his sister/wife. After he became an American citizen, Othuru began the process of obtaining visas for his sister/wife and his mother/mother-in-law and father/father-in-law. A fraud investigator at the American Consulate in Lagos, Nigeria, confronted his sister/wife and mother/mother-in-law about their visa applications and they confessed to the very arranged marriage.

Othuru was then brought to trial on charges of making a false official statement and defrauding the United States of monies paid to him for support of his sister/wife. Othuru's sister/wife and mother/mother-in-law, who were still in Nigeria, were declared unavailable and their sworn statements given to the investigators at the consulate were admitted into evidence over defense objection as statements against interest and statements of personal or family history. The government offered the testimony of the school principal of Othuru's sister/wife, who testified that the sister/wife had always been known as Michelle Othuru. The government also offered the testimony of a Nigerian hospital worker who testified that Michelle Othuru had been born to Othuru's mother/mother-in-law and father/father-in-law. Finally, the government introduced evidence indicating that marrying one's sibling is illegal in Nigeria.

The defense offered the testimony of an investigator who tracked down Michelle's real biological brother in Nigeria. The man informed the investigator that the family had given Michelle to the Othurus when she was a little girl following the death of her family.

I share Mr. Jessup's concern as to how, in a trial by members, the confessions of Othuru's sister/wife and mother/mother-in-law could ever be harmless beyond a reasonable doubt. The author of the opinion, who has rightly been previously aggrandized on this blog, was Chief Judge Wagner. While Chief Judge Wagner is in fact one of the finest trial and appellate judges to have ever served the United States Navy, his achilles heal appears to be the Supreme Court's decision in Crawford v. Washington. He plainly got it wrong in United States v. Cabrera-Frattini, 2006 CCA LEXIS 218 (N-M. Ct. Crim. App. 2006). And he failed to appreciate the damning nature of the testimonial hearsay in Othuru. That being said, even the great Professor Wigmore defended the indefensible Articles of War in famous debates with military law reformer Professor Edmund Morgan. Chief Judge Wagner, should you ever stumble upon this blog, consider yourself aggrandized.

It would appear that Othuru's appeal is on solid legal footing after the great work done by Captain Richard Viczorek, who neither reads nor contributes to this blog, in United States v. Magyari, 63 M.J. 123 (C.A.A.F. 2006). Rick was a fine Marine Judge Advocate, and I am certain that he provided much support to Lietuenant Stephen Reyes, another fine attorney and non-contributor to this blog, who represented Othuru at the NMCCA.

I must also share Mr. Jessup's concern about the cost of this case. Could the funds expended here not have been put to post-trial delay, the war in Iraq, or that bridge to nowhere in Alaska? Who are the prosecutors who thought that they should put into evidence incriminating sworn affidavits just because a trial judge who did not know better would let them? The cost of flying witnesses to and from Nigeria, of Othuru's appeal, and inevitable rehearing will certainly outweigh the money taken by Othuru and his sister/wife. The cost of this case through appeal:$75,000. Marrying your sister to defraud the United States of money and immigration benefits: Priceless.


Nathan Jessup said...

Dear Mr. G. G.: Does your post mean that when Judge Wagner wrote:

The adjudged and approved sentence consisted of confinement for 60 days, reduction to pay grade E-3, a fine of $34,000.00, and, in the event the fine is not paid, one year of additional confinement.

he was incorrect. Instead the approved sentence did not include a fine and contingent on one year confinement? If the CA approved the fine and 1 year and 60 days confinement, isn't that greater than the adjudged sentence? I am glad to see that CA's have finally been given the authority to increase an accused's punishment. Deference to commanders' judgment is how the system should work.

Guert Gansevoort said...

No, Chief Judge Wagner was not incorrect...at least about the statement of the case. Because the CA approved one year of contingent confinement, the case was subject to Article 66 review. If it were not immediately sent to the NMCCA for review, how would it get there if Othuru failed to pay his fine and the CA jailed him for a year? Would it fall out of the mystical Article 69 review discussed her a few weeks back and onto the court's docket? You will have to look for another case to revive the glory days of unfettered command authority and the sweet goodness of rocks and shoals.

HBellamy said...

There was nothing aggrandizing about this entry. This one was great.

Chief Judge Wagner said...

Consider me aggrandized. There are many cases on the books where the overwhelming evidence of guilt made confessions harmless beyond a reasonable doubt. What is and is not harmless in a particular case is fact driven and specific to each case. Good post.

Mobile S. said...

I just took a look at the ROT in this case. Prosecution Exhibit 10 has photos of the marriage ceremony, and one depicts Othuru kissing his sister/wife. Several of the family members look visibly squemish. There may be something to the government's case here.