2 M.J. 116 | United States Court of Military Appeals | 1977
Lead Opinion
Opinion of the Court
The appellant’s court-martial resulted in his conviction of two specifications of failing to report contact with persons believed by him to be agents of governments hostile to the United States and one specification of attempted espionage, in violation of Articles 92 and 134, respectively, Uniform Code of Military Justice, 10 U.S.C. §§ 892 and 934. The appellant challenges the validity of his conviction on several grounds. We find it necessary for the resolution of this case to address only two: first, the failure of the military judge to sua sponte instruct the court members on evidence of uncharged misconduct; and, second, the denial of his right to a public trial. We find on both counts the judge erred.
The facts are not in dispute. The appellant, after a series of discussions with three individuals, each of whom worked covertly for the government, failed to report these conversations and ultimately attempted to communicate information relating to national defense, contrary to Air Force Regulation 205-37 and 18 U.S.C. § 793(d).
Throughout the proceedings the prosecution adduced numerous acts of misconduct, over defense objection, including possible earlier acts of espionage. The military judge, in an Article 39(a), 10 U.S.C. § 839(a), session, subsequent to the presentment of evidence on the merits, accurately noted each act of uncharged misconduct. He correctly stated that he was required to instruct the court members as to the limited purpose of this evidence. Appellant’s counsel requested that an uncharged misconduct instruction not be given. The judge considered the request and did not so instruct.
No evidence can so fester in the minds of court members as to the guilt or innocence of the accused as to the crime charged as evidence of uncharged misconduct. Its use must be given the weight of judicial comment, i. e., an instruction as to its limited use.
This Court’s statement in United States v. Graves, 23 U.S.C.M.A. 434, 437, 50 C.M.R. 393, 396, 1 M.J. 50, 53 (1975):
Irrespective of the desires of counsel, the military judge must bear the primary responsibility for assuring that the jury properly is instructed on the elements of the offenses raised by the evidence as well as potential defenses and other questions of law. Simply stated, counsel do not frame issues for the jury; that is the duty of the military judge based upon his evaluation of the testimony related by the witnesses during the trial,
encases the judge’s obligation to instruct. When evidence of uncharged misconduct is permitted, nothing short of an instruction will suffice.
The right of an accused to a public trial is a substantial right secured by the Sixth Amendment to the Constitution of the United States. In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948). Indeed, this Court has long held that an accused is, at the very least, entitled to have his friends, relatives, and counsel present regardless of the offense charged. United States v. Brown, 7 U.S.C.M.A. 251, 22 C.M.R. 41 (1956).
As recognized in United States v. Brown, supra, the right to a public trial is not absolute, and under exceptional circumstances, limited portions of a criminal trial may be partially closed over defense objection.
As a general rule, the public shall be permitted to attend open sessions of courts-martial. Unless otherwise limited by directives of the Secretary of a Department, the convening authority, the military judge, or the president of a special court-martial without a military judge may, for security or other good reasons, direct that the public or certain portions thereof be excluded from a trial. However, all spectators may be excluded from an entire trial, over the accused’s objection, only to prevent the disclosure of classified information. The authority to exclude should be cautiously exercised, and the right of the accused to a trial completely open to the public must be weighed against the public policy considerations justifying exclusion.
Although the presentation of classified or security matters did not develop as an historical exception to the requirement of a public trial, this Court recognizes that, within carefully limited guidelines, partial exclusion of the public on such a basis can be justified. Military appellate courts have noted the necessity to require that court personnel and members have designated security clearances, and that questions of classified materials could properly be disposed of in closed sessions. United States v. Kauffman, 33 C.M.R. 748, 795 (A.B.R.), reversed on other grounds, 14 U.S.C.M.A. 283, 34 C.M.R. 63 (1963);
It is our decision that the balancing test employed by a trial judge in instances
It is acknowledged that special deference should be accorded matters of national security. Ethyl Corporation v. Environmental Protection Agency, 478 F.2d 47 (4th Cir. 1973); Epstein v. Resor, 421 F.2d 930 (9th Cir. 1970). Although the actual classification of materials and the policy determinations involved therein are not normal judicial functions, immunization from judicial review cannot be countenanced in situations where strong countervailing constitutional interests exist which merit judicial protection. United States v. United States District Court, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972).
This Court appreciates full well that such a hearing may involve complex and delicate matters for resolution by the trial judge, yet, as recognized by the Supreme Court, these are matters that judicial officers must and should be equipped to properly determine. United States v. United States District Court, supra. Similarly, we feel that objections to this procedure because of the possibility of “leaks” are insufficient to prohibit its use; adequate measures exist to insure the necessary confidentiality required when matters of national security are concerned.
The trial judge’s determination that the prosecution has met its burden as to the nature of the materials
Applying the above criteria and procedures to the facts of the instant case it is abundantly clear that the military judge committed error of constitutional magnitude. His blanket exclusion of the public failed to satisfactorily balance the competing interests, and improperly denied the appellant his right to a public trial.
Reversal is required. The findings and sentence as approved by the United States Air Force Court of Military Review are set aside. The record of trial is returned to the Judge Advocate General of the Air Force. A rehearing may be ordered.
. The basic legal tenet and the seven exceptions to that rule which permit the introduction of uncharged misconduct are set forth in paragraph 138g of the Manual for Courts-Martial, United States, 1969 (Rev.), as reiterated by this Court in United States v. Janis, 1 M.J. 395 (1976). The fact that this evidence was admissible under that test gives rise to the question of the need for an instruction.
. The propriety or impropriety of the exclusion of the public from all or part of a trial cannot, as attempted by the government in this case, be reduced to solution by mathematical formulas. The logic and rationale governing the exclusion, not mere percentages of the total pages of the record, must be dispositive.
The dissenting judge has apparently adopted the government position that as over 60 percent of the total record was conducted in open session, there can be little or no question but that the trial judge exercised discretion in his exclusion of the public. Unfortunately what both the dissenting judge and the government have failed to do is to analyze what portions of the record are involved in this question. The “over 60 percent” figure which has been bandied about entails the preliminary procedural matters the entire trial on the merits as to the charge of which the appellant was acquitted, final instructions, and the sentencing phase of the trial. The fact that these portions of the trial were open to the public can have no bearing on the resolution of the propriety of the judge’s exclusion of the public from virtually the entire trial as to the espionage matters. Further, simple examination of the record reveals that the “bulk of the closed session” did not contain numerous and repeated references to classified matters; in fact, as noted by the government in its pleadings, only two witnesses of the total of nine would fit into this category.
. This Court is in full agreement with the concurrence of then Chief Judge Quinn that the right to a public trial is indeed required in a court-martial. To the extent that United States v. Brown, 7 U.S.C.M.A. 251, 22 C.M.R. 41 (1956), implies a “military exception” to the right to a public trial for service personnel in reliance upon Ex parte Quirin, 317 U.S. 1, 63 S.Ct. 1, 87 L.Ed. 3 (1942), it is overruled.
. See United States v. Zimmerman, 19 C.M.R. 806 (A.F.B.R.1955); United States v. Kobli, 172 F.2d 919 (3d Cir. 1949); Tanksley v. United States, 145 F.2d 58, 10 Alaska 443 (9th Cir. 1944).
. See United States ex rel. Lloyd v. Vincent, 520 F.2d 1272 (2d Cir. 1975); Stamicarbon, N.V. v. American Cyanamid Co., 506 F.2d 532 (2d Cir. 974).
. See e. g. Note, The Accused’s Right to a Public Trial, 42 Notre Dame Law 499 (1967); Note, The Right to a Public Trial in Criminal Cases, 41 N.Y.U.L.Rev. 1138 (1966); Radin, The Right to a Public Trial, 6 Temp.L.Q. 381
. In United States v. Kauffman, 33 C.M.R. 748, 795 (A.B.R.1963), the limited exclusion of the public during the portion of one witness’ testimony on espionage matters was sustained. It should be noted, however, that the exclusion was so limited that no evidence was offered, and instead only procedural matters were discussed which did not relate to the question of guilt or innocence. See United States v. Henderson, 11 U.S.C.M.A. 556, 564, 29 C.M.R. 372, 380 (1960).
. See United States v. Michaud, 48 C.M.R. 379 (N.C.M.R.1973).
. This Court recognizes that the Supreme Court in Parker v. Levy, 417 U.S. 733, 743, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974), acknowledged the uniqueness of the military society, and that it has reaffirmed that belief in recent decisions. See Middendorf v. Henry, 425 U.S. 25, 96 S.Ct. 1281, 47 L.Ed.2d 556 (1976); Greer v. Spock, 424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976); Schlesinger v. Councilman, 420 U.S. 738, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975). Yet, this Court once again must state that analysis and rationale will be determinative of the propriety of given situations, and that the mere uniqueness of the military society or military necessity cannot be urged as the basis for sustaining that which reason and analysis indicate is untenable See United States v. Robel, 389 U.S. 258, 88 S.Ct. 419, 19 L.Ed.2d 508 (1967).
. Our inquiry deals solely with requests for exclusion by the government and differs from the considerations employed when the defendant requests exclusion of the public in order to insure a fair trial. See Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965).
. See New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971). It is recognized that in this case the Supreme Court was concerned with First Amendment questions; however, the principles enunciated in regard to government’s attempts to prevent the disclosure of matters in the name of “security” are applicable to the “public trial” aspects of the Sixth Amendment present in this case.
. The Supreme Court upheld the requirement of judicial scrutiny in the form of prior warrant procedures before the utilization of wiretaps under the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. §§ 2510-2520. Government contentions that “domestic security” concerns must prevail over the protections of the Fourth Amendment were rejected. The Court did not address the question of “foreign” security matters, but instead carefully limited its holding in this and subsequent cases to “domestic” security questions. See Russo v. Byrne, 409 U.S. 1219, 93 S.Ct. 21, 34 L.Ed.2d 30 (1972) . However, the overriding concerns expressed by the Supreme Court in that case have been recently applied to matters concerning foreign security surveillance as well. Zweibon v. Mitcheli, 170 U.S.App.D.C. 1, 516 F.2d 594 (1975). We feel that this rationale is sound at least as it relates to the propriety of judicial scrutiny, and the ability of the trial judge to properly exercise this scrutiny.
. Environmental Protection Agency v. Mink, 410 U.S. 73, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973) . This case involves analysis of the Freedom of Information Act as originally enacted. Both subsequent congressional modification of that act, and the presence of additional constitutional concerns found in criminal prosecutions lead us to conclude that the trial judge may utilize in camera inspection of the material to determine whether the prosecution has met its burden should he deem it necessary. United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974); Schaffer v. Kissinger, 164 U.S.App.D.C. 282, 505 F.2d 389 (1974). See Zweibon v. Mitchell, supra.
. The potential for abuses may exist, and upon proper motion it is incumbent upon the trial judge to determine whether a particular classification was done in an arbitrary and capricious manner, thereby compelling its disclosure. Wolfe v. Froehlke, 166 U.S.App.D.C. 274, 510 F.2d 654 (1974); Schaffer v. Kissinger, supra; Epstein v. Resor, 421 F.2d 930 (9th Cir. 1970).
. See United States v. Drummond, 354 F.2d 132 (2d Cir. 1965).
. See also Rowley v. McMillan, 502 F.2d 1326 (4th Cir. 1974).
. See Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969).
. This determination does not preclude the defense from going forward and demonstrating the “public” nature of the material which would thus establish a separate ground prohibiting exclusion of the public. See 18 U.S.C. § 793.
. United States v. Clark, 475 F.2d 240, 246 (2d Cir. 1973). The Second Circuit sustained the underlying basis for the exclusion in reliance upon its prior decision of United States v. Bell, 464 F.2d 667 (2d Cir. 1972) —prevention of the disclosure of airline skyjacking profiles because of a compelling need to protect the air traveling public. However, the court would not permit the total exclusion of the public in a hearing where only a portion of the testimony presented related to this profile, and the remainder, as here, was devoted to a wide range of matters bearing on the defendant’s innocence or guilt.
. This was the procedure employed by the trial court and sustained by this Court in United States v. Kauffman, supra. We share the conclusion expressed in United States v. Clark, supra, that:
Nor does the remote possibility of an unsolicited, spontaneous disclosure of the elements of the profile justify such a broad policy of exclusion. Since the witnesses were aware of the government’s desire to maintain the*124 secrecy of the profile, the risk of inadvertent disclosure was negligible.
475 F.2d at 246. A cautionary instruction to the witness should more than adequately protect the government’s interests in a given case.
The Court recognizes that not every situation is easily “pigeon-holed” into testimony which is devoted to classified material and that which is not; as noted earlier in this opinion, we feel that trial judges should and must be capable of exercising sound discretion in their rulings. Clearly, therefore, the trial judge need not participate in so rigid a procedure as to turn his courtroom into a parade; continuity of testimony and the fact that a given witness’ testimony deals virtually exclusively with classified material are certainly factors which could lead to the exclusion of the public from all of a given witness’ testimony regardless of the fact that a portion was not concerned with such matters. The procedure we set forth is to protect an individual’s rights under the Sixth Amendment and to prevent those rights from being ignored on the basis of unthinking acceptance of government claims of need without the appropriate demonstration of that need.
. It must be apparent that exclusion of the public during a trial may cause some court members to erroneously conclude that as the witness or document needs protection, the testimony must be true, and therefore, the defendant’s innocence is to be doubted. Note, Exclusion of the General Public From A Criminal Trial — Some Problem Areas, 1966 Wash.U.L.Q. 458. See Quick, A Public Criminal Trial, 60 Dick.L.Rev. 21, 28 (1955). The fears expressed by the Supreme Court in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), that jurors cannot understand the policy consideration calling for the given exclusion are applicable to this situation. Hence, cautionary instructions tailored to the facts of the particular case are mandated lest the very purpose behind the procedures discussed be thwarted.
. The dissenting judge complains that the procedure which we adopt is defective because it unfairly compromises the governmental interests involved, and because the government is not protected from an arbitrary, or presumably a good faith but incorrect, ruling compelling disclosure of certain materials. We can share his concern that Congress has failed to provide our system with statutory authorization for Government appeals in criminal cases. See United States v. Rowel, 1 M.J. 289 (1976) (Fletcher, C. J. concurring). However, congressional inaction cannot abrogate our obligation to insure that each accused in the military justice system is afforded his rights under the Sixth Amendment.
Dissenting Opinion
(dissenting):
I disagree with both aspects of the majority opinion. As to the instruction on uncharged misconduct there is a vast difference between the failure of defense counsel to request an appropriate instruction as constituting a waiver of the trial judge’s duty to instruct on issues for determination by the court members and an affirmative request by the defense that a particular instruction not be given. In my book, the latter instance represents defense-induced error which, except in the case of a manifest miscarriage of justice, will not be considered by an appellate court as a ground for reversal of an otherwise valid conviction. Even if United States v. Graves, 23 U.S.C.M.A. 434, 50 C.M.R. 393, 1 M.J. 50
As to the public trial issue, the principal opinion acknowledges that the right to a public trial is “not absolute.” The fact that the trial judge held a preliminary hearing on the matter demonstrates to me that he was mindful of his responsibility to effect a sensitive accommodation between the accused’s right to a public trial and the Government’s need to protect classified information affecting national security. His declaration that he would “bend over backwards” to preserve the accused’s right demonstrates to me that his criterion for exclusion of the public was at least as stringent as that contemplated by the majority. The question then is whether the judge disregarded his own declaration and, in fact, wielded “an ax in place of the . required scalpel,” as the majority conclude.
Contrary to the majority’s disdain of “mere percentages of the total pages of the record,” as indicative of the scope of exclusion, in my opinion, that circumstance is very important to resolution of the issue. The defense brief represents that the trial was conducted “almost entirely in secret.” However, Government counsel’s analysis of the transcript of the record, with which I agree, indicates that over 60 percent of the proceedings were “open to the public,” and that the “bulk of the closed session of the court-martial . . . contained numerous and repeated references to classified matters.” In my opinion, therefore, the record does not reflect “blanket exclusion of the public,” as the majority describe the trial judge’s ruling, but rather it convinces me the trial judge was firmly committed to, and properly applied, the “logic and rationale governing the exclusion” of the public, which the majority posit as an appropriate standard for measuring the validity of the trial judge’s ruling. I would affirm the determination by the Court of Military Review that the accused was not improperly denied the right to the presence of the public at portions of his trial.
Turning to the standards postulated by the majority by which to determine when to exclude the public, I am constrained to express some of my misgivings. The majority, I believe, have developed their standards from an amalgam of cases dealing not only with the right to public trial, but with the right, under the Freedom of Information Act,
The majority say that a “witness whose testimony is only partially concerned with . [classified material] should testify in open court on all other matters.” The majority thus seem to equate exclusion of the public during testimony by a particular witness to the process of piecemeal excision that a trial judge may undertake in an action under the Freedom of Information
In Stamicarbon, N.V. v. American Cyanamid Co., 506 F.2d 532, 537 (2d Cir. 1974), the Second Circuit Court of Appeals perceived “frequent shuttling between public and in camera proceedings” as presenting a serious risk of prejudice to the fairness of a trial. Inferentially, the majority concede their standard entails the risk that, in a trial with court members, the closed session testimony might be accorded greater weight, merely because of its apparent greater significance; they would control the risk by requiring the trial judge “to sua sponte instruct the court members both as an introductory matter and in greater detail during his final instructions as to the underlying basis for the use of this bifurcated process.” In my opinion, the better approach is to assess the probable extent to which a witness’ testimony will deal with classified material. If the major part of the testimony is concerned with such matter, or such matter is embraced in many different parts of the anticipated testimony, then the whole of the testimony should be given with the public excluded. I believe that approach is not only conducive to a more orderly trial than the multiple exclusions demanded by the majority’s standard, but it minimizes, if it does not entirely eliminate, the risk that the court members might, from the comings and goings of the public, give added weight to the testimony heard in the nonpublic sessions. Further, I believe the approach I suggest will tend to lessen, rather than encourage, later claims by an accused that the public should not have been excluded for a particular series of questions and answers because their subject matter did not deal with classified information.
A second disturbing aspect of the majority’s standards is their apparent disregard of what to me is a very important difference between a Freedom of Information case and exclusion of the public at a trial. In a Freedom of Information Act proceeding, if the trial judge mistakenly determines that classified documents are not entitled to exemption from disclosure because not properly classified, his decision is appealable; and his decision can be stayed pending appeal. See Department of the Air Force v. Rose, 425 U.S. 352, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976). Consequently, national defense interests sought to be safeguarded by the classification are protected until the trial ruling can be reviewed. No such protection is accorded the Government against a ruling by a trial judge refusing exclusion of the public from the whole or part of a trial because classified information is involved. True, the Government must disclose classified evidence to the accused and his counsel, as the accused has the right to know the evidence against him. Alderman v. United States, 394 U.S. 165, 181, 184, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969). See also United States v. Nichols, 8 U.S.C.M.A. 119, 125, 23 C.M.R. 343, 349 (1957). However, because the accused has the right to know does not mean that disclosure must also be made to the public in general, especially if the trial is held in a foreign country and foreign nationals are in attendance. It seems to me, therefore, that as a trial ruling against the Government is not reviewable, the potentiality for irreparable harm to national security interests must be taken into account by the trial judge.
Aside from the Freedom of Information Act, the need to protect national security interests, and military secrets in particular, is so strong that, while recognizing a trial judge should not abdicate his responsibilities in the conduct of a trial to the Executive, the Supreme Court held that the judge should not jeopardize national security interests “by insisting upon an examination of the [classified] evidence, even . alone, in chambers.” United States v.
It may be that the Freedom of Information Act’s empowerment of the court to determine the correctness of a security classification and other developments in the area of in camera proceedings have undermined the limitation on the judge’s authority propounded in Reynolds, supra. See Alderman v. United States, supra, 394 U.S. at 198-99, 89 S.Ct. 961 (Harlan, J., concurring in part and dissenting in part). It may also be that the basic policy of the act favoring disclosure over secrecy requires that, in a trial under the act, a judge resolve, in favor of disclosure, any doubt he may have as to the correctness of a classification of particular matter as information affecting national security interests. However, I believe that neither individually nor in combination do these circumstances support the procedure prescribed by the majority to determine whether the public should be excluded during the presentation of classified matter at a trial.
In footnote 14 of the principal opinion, the trial judge is portrayed as the bulwark against an “arbitrary and capricious” classification. A judge can also be arbitrary and capricious. An accused who is subject to an abuse of power in the denial of a public trial may obtain relief on appeal. But when the Government is subject to an arbitrary and capricious ruling, which requires disclosure of classified matter to the public, it has no means of relief, short of terminating the trial and dropping the charges. I do not believe, therefore, that the Government is obligated, as the majority indicate it is, to demonstrate “a compelling need” to exclude the public. It seems to me that a burden of that magnitude is not only inconsistent with the majority’s earlier suggestion that “[a]ll that must be determined” is that the classification was made by a proper authority in accordance with regulations, but is also wrong in principle. I believe that the correct test is whether the classified information is of a nature that presents a real, not merely colorable, basis for a conclusion that national security interests are implicated. If there is a rational doubt, that doubt must be resolved in favor of the Government. Balancing the respective interests of the accused and the Government in this way, strikes me as eminently preferable to that propounded by the majority. It takes account of, and tries to guard against, the risks of a wrong ruling by the trial judge. If the trial is closed to the public, the accused may still be acquitted; thus he has suffered no harm from the several evils deemed to exist in a closed trial and the Government has preserved its classified information from public disclosure. If, as here, the accused is convicted, and the exclusion of the public from trial was improper, and of a magnitude justifying reversal, the accused will get a new trial. And finally, if the accused is convicted and the exclusion of the public was proper, then neither he nor the Government has been deprived of a right. The intention of the majority to preserve the right to a public trial is laudable, but I just cannot agree with the course they have chosen to fulfill that purpose.
A third issue on which we granted review was whether the findings of guilty of the offense of willfully attempting to communicate information relating to national defense, in violation of 18 U.S.C. § 793(d), (Charge I and its specification), must be reversed because the statute “is unconstitutional as applied in this case.” The argument in support of the assignment of error is a mosaic of alleged instructional deficiencies. Some of the purported deficiencies relate to matters that are wholly evidentia
I would affirm the decision of the Court of Military Review.
. See my dissent in United States v. McGee, 23 U.S.C.M.A. 591, 594, 50 C.M.R. 856, 859, 1 M.J. 193, 196 (1975), and United States v. Nelson, 1 M.J. 235 (1975).
. 5 U.S.C. § 552.
. As to the correctness of this instruction, I agree with appellate Government counsel that classification of information alleged to relate to national defense by the Government is a proper factor for the court members’ consideration in a case of this kind. Such classification is evidence that the Government has acted to protect the information from public domain. See United States v. Drummond, 354 F.2d 132, 152 (2d Cir. 1965), cert. denied, 384 U.S. 1013, 86 S.Ct. 1968, 16 L.Ed.2d 1031 (1966); United States v. Soblen, 301 F.2d 236 (2d Cir. 1962), cert. denied, 370 U.S. 944, 82 S.Ct. 1585, 8 L.Ed.2d 810 (1962); United States v. Heine, 151 F.2d 813 (2d Cir. 1945). Further, I discern no reasonable risk that the instruction could have misled the court members to conclude “that proof of classification was sufficient to prove relation to the national defense.”
