*1 STATES, Appellee, UNITED RODRIGUEZ,
Jorge Yeoman Third L. Navy, Appellant.
Class, U.S.
No. 97-0299.
Crim.App. No. 9500776. Appeals
U.S. Court Armed Forces.
Argued 2003. Nov. Aug.
Decided *2 134, Uniform Code
Articles UCMJ], 10 Military [hereinafter Justice (2000), §§ 992 and 934 U.S.C. approved adjudged and respectively. The discharge, a bad-conduct sentence included *3 years, forfeiture of for ten $200 confinement months, sixty and per reduc pay month for Appeals to E-l. The Court of Criminal tion Rodriguez, 44 v. affirmed. United States This (N.M.Ct.Crim.App.1996). 766 M.J. that decision and remanded set aside Court develop facts DuBay1 hearing to relat for a videotape requested of ed to a defense surrounding Appellant’s arrest fed events Rodriguez, agents. v. 50 eral United States (C.A.A.F.1998)(summary disposition). M.J. 38 again findings and were After the sentence court, v. lower States affirmed United (N.M.Ct.Crim.App Rodriguez, 57 M.J. BAKER, J., opinion of the delivered .2002), following granted we review of Court, C.J., CRAWFORD, in which issue: GIERKE, ERDMANN, JJ., joined. EFFRON, J., separate dissenting filed a
opinion. Elysia Ng, For Appellant: Lieutenant G. THE MILITARY JUDGE WHETHER JAGC, (argued). USNR ERRED DENYING APPELLANT’S IN MOTION TO ORDER THE PRODUC- Hines, For Appellee: Captain Glen R. OF RE- TION NBC’S RECORDINGS (argued); P. USMC Commander Robert LATING APPELLANT’S TRAFFIC TO brief). (on JAGC, Taishoff, USN SUBSEQUENT DETAIN- STOP AND (ar- Amici curiae: M. Daniel Kummer MENT, SEARCH AND INTERROGA- brief)—for (on gued); Eugene R. Fidell TION. Inc., Broadcasting Corp., National Jennifer specified following issues: We (law student)(argued); Jaskel Patricio Asfu- (law students), Ryan Tierney ra-Heim and II Barry (supervising attorney)(on and Kevin J.
brief)—for University the Catholic Amer- of AN THERE ILLE- WHETHER WAS ica, Law, Military School of Columbus IN OF APPELLANT GAL SEIZURE Security National Law Student Association. THE STOP CONJUNCTION WITH OF AND, IF APPELLANT’S CAR THERE Judge opinion BAKER delivered SEIZURE, WAS AN ILLEGAL Court. APPELLANT’S ORAL AND WHETHER February was tried AND WRITTEN ADMISSION ANY general composed court-martial officer SUBSEQUENTLY SEIZED PHYSICAL Contrary to his enlisted members. BEEN SHOULD HAVE EVIDENCE attempted pleas, he was transfer convicted EXCLUDED. desertion, firearms, conspiracy, failure obey general regulation, unlawfully engag III firearms, dealing ing thе business of unlaw AGENT unlawful transfer firearms WHETHER SPECIAL GRAB- ALCOHOL, firearms, possession OF THE ful violation MAN BUREAU OF DuBay, (1967). 1. United States 17 C.M.A. C.M.R.
TOBACCO, “Saturday Night Specials,” AND WAS RE- during FIREARMS called QUIRED February UNDER THE CIRCUM- and March of and that he TO STANCES ADVISE APPELLANT no license to sell firearms. ATF de OF appellant HIS RIGHTS UNDER ARTICLE termined that duty active UNIFORM CODE Navy, OF MILITARY JUS- in the the Naval notified Inves TICE. tigative coop Service to obtain their [NIS] case.[3]
eration IV Beginning April 1991, Monday, together ATF and NIS in a worked sur- THE WHETHER AT- ESTABLISHED appellant veillance at his home in North- TORNEY-CLIENT RELATIONSHIP Virginia work, ern and at place BETWEEN APPELLANT AND HIS in Arlington. Bureau Naval Personnel ORIGINAL DUBAY DEFENSE COUN- *4 appel- The close surveillance revealed that SEL WAS IMPROPERLY IN SEVERED making lant and YN1 multiple Moore were THE MIDST OF THE PRO- DUBAY purchases handguns gun from local CEEDINGS, IN TERMS OF WHETHER appeared It agents dealers. to the APPELLANT KNOWINGLY CON- purchases” Moore had made “straw SENTED TO THE CHANGE OR appellant appellant’s so that name would THERE WAS AN AP- OTHERWISE appear gun purchase applica- PROPRIATE REASON SEVER- FOR days Over tions. the next several ANCE ABSENT APPELLANT’S CON- agents appellant buy observed and Moore SENT. handguns. 19 such Appellant’s wife children lived in V City. York New He would often drive from WHETHER APPELLANT WAS PRO- Virginia to New York visit to them. On VIDED A TIMELY RE- APPELLATE Friday, 1991, May an informant advised VIEW UNDER THE UNIFORM CODE appellant planned the ATF and NIS that OF MILITARY THE JUSTICE AND City to drive to New York that weekend. UNITED STATES CONSTITUTION. informant ap- made no mention that For the reasons follow affirm.2 we pellant going transport any weap- Later that investiga- ons. afternoon the FACTS appellant tors followed he left as work at 1530 and drove home. There he retrieved Criminal Appeals Court of summa- large bag a transported duffle which he opinion rized the facts in its first in this case Navy Leaving back Annex. as follows: bag there, Myer dufflе he drove Fort spring Agent In the Special [SA] picked up he passengers. Ap- where two Alcohol, Grabman of the Bureau of Tobac- pellant apartment then drove to an where co, reports and Firearms [ATF] received aunt, daughter’s Soto, his Mrs. Barbara that appellant purchased had more than heavy lived. He carried a rather brown a 5-day period one firearm in gun stores paper bag into the residence but left with- Virginia. Although Northern there is bag. Returning out the to the car with legal no limit firearms number of Soto, group Mrs. of four drove north may purchase Virginia, one appellant’s on 1-95. pattern purchases Grabman caused SA open investigation. inquiry Although an Further believed SA Grabman he had appellant purchased activity revealed that enough illegal evidence of inexpensive handguns, commonly time, some 24 appellant and arrest at that he want- argument 2. We agency formally heard oral in this case at the name of this America, University Catholic Columbus School changed Investigative to the Naval Criminal Ser- Law, D.C., Washington, part as of the Court's vice. Project Mahoney, Outreach. See United States v. (C.A.A.F.2003). 58 M.J. 347 n. 1 fol- try incriminating admissions which investigation several ed continue appellant took identity other of what lowed. SA Grabman then members weapons Finding trans- contraband in custody. an interstate believed to be into agents car, portation agents permitted network. ATF NIS the Federal appellant’s appellant’s party continued thеir surveillance con- other members car unmarked law-enforcement vehicles. way to York. tinue on New their Riding ATF was an NBC in an vehicle sharing after in cake and At about that ATF had contacted to camera crew Maryland juice appellant State film what the and crew believed barracks, Spi- and SA police SA Grabman pres- newsworthy would event. Also be gener of the NIS sat down interview ent senior ATF officials and were some try to further infor- appellant and obtain public ATF affairs officer. his They appellant advised mation. Maryland trooper stopped A one State 31, UCMJ, Article U.S.C. rights under speeding. cars for of the unmarked ATF Miranda-Tampia. § advising Maryland police author- After acknowledged understanding of those they surveilling suspect ities that were rights writing and executed written investigation, part a Federal senior incriminating contained statement which coopera- personnel decided to enlist their He also consented various admissions. appellant in pulling tion over. After see- handguns at uncovered searches which *5 ing appellant’s pass position, Troop- car his Appellant to several locations. admitted minute, for er Pearce followed him about a having ground the numbers from off serial tailgating noticed him a car in the fast guns. 44 at 769. most of M.J. these lane, pulled him over to central the issues in this Other facts relevant the closely,” “following median for too a com- Galupo are in the record. SA case contained examining mon After traffic infraction. supervisor present the at the scene when registration appellant’s license and stopped Maryland Trooper the State check, computer Trooper running a Pearce speeding. ATF vehicle testified that for She a appellant warning issued citation at 1946. agent her solicit the assistance of she had requested appellant He then consent stop Trooper Appellant speed- Pearce to to a search” his car for contra- “routine of danger a him- ing “because he was ... consent, writing, Appellant band. did so in self,” she “concerned for the so, and because at 1950. Over next hours or 1-1/2 agent conveyed Pearce, agents.” special to the Trooper assisted ten or so agents, thorough trooper speeding, had conducted a search of besides finding in appellant’s expectation during car “fol- been observed the surveillance handguns. lanes,” lowing closely,” “switching one more too “driving on Grabman had the shoulder.” SA commenced, Shortly after search SA Appellant driving speeds at also observed appellant and, using Grabman took aside a Galupo “excess of 85 miles hour.” SA wallet, him card earned his advised purpose soliciting insisted of Miranda his After rights. appellant troopers was not to obtain a con- assistance acknowledged rights, his SA Grabman was, Specifically, testimony search. sent her purchases him questioned about his going trooper stop “I’m not to tell a car handguns the preceding over few months. fur- Galupo unless he sees a violation.” SA initially wrongdoing. denied agents although ther did testified then reviewed details SA Grabman probable have cause arrest appellant his case file with the extent interstate, they they believed ac- of the recent surveillance Government’s suspicion transport- that he was reasonable specifics, ap- healing tivities. After these Last, prior to ing firearms in his vehicle. stated, me.” pellant got “You SA Grab- search, asking Appellant for his consent to sought man other then out two objec- that the Trooper Pearce advised him appellant signing a form acknowl- witness his Miranda dangerous was to for “controlled edging rights tive search substances, issues, military firearms or contraband of law on both conclusions kind.” denied the motions. DISCUSSION
PROCEDURAL BACKGROUND trial, sought Prior the defense the as- sistance the Government to obtain NBC Compel The Motion Production recordings stop. video of the traffic NBC motion, pre-trial sought images during had shown of the one event compel production recordings of NBC video segments. news its The Government purchase, “involving transport sale or subpoena February served on NBC dated may Petty firearms which relate to Officer for: videotape “NBC a traffic Rodriguez.” According defense Jorge stop Rodriguez by agents of the footage videotape May from the 3 traffic Bureau of Alcohol Tobacco Firearms shot only objective “was the evidence of ac- 3,May along Maryland. 1-95 government” tions of the that would enable Nightly
Video was seen on NBC News. Jim challenge the voluntariness of reporter.” Polk was the It served second Appellant’s statements. At of the the time subpoena February dated for: “All 39(a) session, parties Article were video, recordings, NBC or written audio possession of the broadcast of the version produce May [sic] between 17 and 8 Feb 91 recording. tape NBC At the outset involving purchase, transport sale or hearing, judge attempted to as- may which Jorge of firearms YN1 relate to requested certain whether the outtakes exist- Rodriguez.” responded honoring NBC parties agreed stipulate ed. The to cer- request for the materials dur- broadcast facts, tain but the end of the discussion the ing segment, its televised news but it as- question tapes whether the was still existed news-gathering serted First Amendment *6 left point following unanswered. At that the privilege regarding production videotape colloquy place took between the assistant reporter and outtakes notes. (ATC), (MJ), military trial the judge counsel (IMC1): period Because the entered and counsel the defense 19,1992 unauthorized absence from March to I ATC: ... don’t mind stipulating these August proceedings no further took facts, Honor, Your but it not still does place and the Government chose withdraw clarify any tape that there is in exis- charges prejudice. Appel- the without When guess I point. tence. that’s the again lant was once under control agree, it MJ: I does not. authorities, charges the were referred anew Your, Honor, IMC1: has been evidence to a second court-martial. defense re- The tape that there is no offered not exis- request compel discovery its newed tence. remaining videotapes. response NBC In Agreed. MJ: We don’t have evidence motion, this the Government a third served point on that at all. subpoena on requesting NBC the same mate- argued The motion Government on the subpoena February rial as the dated that the had defense failed to show the responded 1992. NBC as it had to the Feb- requested tapes existed. Trial counsel as- ruary subpoena asserting a First Amend- the serted that defense could availed have privilege regarding any ment outtakes and itself a number of means to ascertain the reporter notes. calling tapes of the such existence as NBC 39(a), pursuant At a session to Article According to trial not hav- officials. UCMJ, 839(a) (2000), means, U.S.C. the defense ing itself of such defense availed the compel subpoe- moved enforcement of had the re- also failed demonstrate that suppress Appellants na necessary. and statements quested matter was relevant and police made at traffic and at the response, the defense that the reiterated making findings barracks. After of fact requested and material was relevant neces- and Petty Rodriguez and Officer obli- tween sary that it was the Government’s agents. Defense provide such evidence. gation on what argument did touch counsel’s Six, portion evidentiary value of that measures, taken to any, if the defense had did now provide, video NBC of the Later, tapes. of the the existence ascertain exhibit, appellate is the court as before following rele- military judge made the sup- deciding the motion to negligible findings: vant press. Three, Courts-Martial] under [Rule Seven, testimony of adequate there is 703(f)(1) (2), party each is enti- R.C.M. scene, here and I include at the witnesses is production of which tled to the evidence testimony objective [aunt of Ms. Soto necessary, but is not entitled relevant can serve appellant’s daughter], that of the production evidence which is de- were video if it for the even substitute lost, subject to stroyed, or not otherwise of the issue of voluntariness central process. position of NBC compulsory admissions. subject is not to com- is that evidence video that the entire Eight, conclude process it is constitutional- pulsory because unnecessary fairly resolve tape is it ly protected. They do not assert with court in connection issues before the not exist. does suppression motion. Four, authority of the DuBay judge, trial In contrast to the production unavailable to assist testimony judge hearing had the benefit of 703(f)(2). spelled is out evidence R.C.M. as an representatives of NBC as well from presupposes finding the evi- This correspondent news who affidavit importance is of such central to an dence DuBay judge found story. filed the that it to a fair trial and issue is essential of the persuasive” “most the sworn affidavit adequate there is no substitute for the stating videog- correspondent that his NBC evidence. any footage of com- rapher had not obtained Five, argues the entire any law munications between tape, just portion already video two officials. The made enforcement court, here in viewed relevant evidence findings relevant to this issue. significant question on the of the voluntariness of First, found at the time of Agent statements made to Grabman. Cer- object “any videotape that hearing, tainly, resolving necessity properly case, subpoenas that was in this *7 ad- the issue the voluntariness of those longer no exists.” provided, not heretofore trial, missions is to a fair howev- essential videotape “no of an Secondly, he found that er, tape impor- video not of is central appellant made.” interrogation of the to that Rather of little or tance issue. it is adopted Appeals The Court of Criminal question. importance to that The testi- DuBay findings judge of the and reaf- mony on before the court the motion upholding the deni- firmed its earlier decision admissions, suppress the which I choose to Appellant’s production to compel al of motion compel migrate over to the motion to dis- “videotape neither outtakes were because covery, that the crew was establishes video necessary clearly importance nоr of central of the Tes- focused on the conduct search. trial essential to a fair on the issue and timony also be- establishes discussions Rodriguez, at 772. 57 M.J. voluntariness.” Agent Petty and Officer tween Grabman Rodriguez, between other ATF argues and unable Appellant now he was Petty Rodriguez, place necessity and Officer took relevance and to demonstrate the away from the search to the tapes some distance where because “he had no access taking place. testimony does not the cir- videotaped footage that would show relating to the vol- seizure.” The Govern- establish that matters cumstances [his] existed, outtakes, they taped argues at if untariness issue were even video ment all, unnecessary given the actual particularly the discussions be- were cumulative fact Although witnesses to events testified existence the outtakes. NBC 39(a) original Article session. had indicated an intent assert a First privilege, responded Amendment it military judge’s ruling We review requests. seems in Government’s It retro- request production on a of evidence spect parties might have obviated for an abuse of discretion. States United they this issue done what the Breeding, 44 M.J. did, is, procured testimony (C.A.A.F.1996)(denial request of a for addi- any footage affidavits resolve whether ex- witnesses). tional specific Appellant’s isted relevant claim. Instead, Appellant’s position ap- trial to a court-martial are entitled Parties peared to assume the existence the out- “equal to an opportunity to obtain witnesses evidentiary takes and further assume their 46, UCMJ, evidence^]” other Article value. (2000). § U.S.C. The UCMJ Rules for Courts-Martial [hereinafter on the foregoing Based we conclude that compulsory also R.C.M.] include carry did not his burden as the Id.; 703(a). process. party R.C.M. “Each is moving party to demonstrate that the out- production entitled to the of evidence which requested takes Consequently, existed. 703(f)(1). necessary.” is relevant and R.C.M. they he did not show that relevant were Military Rule of Evidence 401 [hereinafter necessary produced and should have been relevant M.R.E.] defines evidence as that through compulsory process. We hold that tendency which “any has make exis- did not abuse his discre- consequence tence of fact that is of denying Appellant’s compel tion in motion to proba- determination the action more production. probable ble or than less it would be without Relevant evidence.” evidence is “neces- sary when it when it II is cumulative and party’s presentation would contribute to a an We next address whether unlawful sei- positive way case some on matter in Appellant’s person zure of occurred before or 703(f)(1) issue.” R.C.M. discussion. The during stop. Appellant the roadside seeks to persuasion burden of on appro- a motion for suppress his roadside admissions the ATF priate the moving party. relief is on R.C.M. they product grounds were the 906(b)(7). 905(c)(2)(A), unlawful seizure. further ar- At trial insisted that the re- gues Maryland that his confession at the quested were outtakes relevant and neces- any subsequently State Police barracks and sary they because were the evidence physical “best obtained evidence were derivative of available” as to whether his unlawful roadside seizure should rights were violated. The Government is suppressed have been at trial.
obligated produce compulsory process requested by military judge’s
evidence ruling We review a 703(c)(1). necessary.” “relevant and to suppress R.C.M. a motion for abuse of discre *8 However, Monroe, defense, moving 326, it as the tion. States v. 52 M.J. United party, (C.A.A.F.2000). required factfinding who was as a threshold mat- 330 review “[W]e requested ter to clearly-erroneous show that material exist- under standard and Appellant ed. failed to burden. meet this conclusions of law under the de novo stan response 296, Defense counsels evidence 43 Ayala, “no dard.” United States v. M.J. (C.A.A.F.1995). has been tape questions offered there is no not in mixed 298 On of fact, issue, attempted to existence” invert this burden. such instant “a law and as the Appellant record does reflect that if abuses his discretion attempted gain findings clearly access on his Nor is of fact are or his own. erroneous representatives there of indication NBC conclusions of law are incorrect.” Id. “In uncooperative ruling suppress, would have coun- a reviewing been had his on a motion attempted regarding light sel contact them we consider evidence ‘in most
247
omitted).
(1991) (citatiоn
See
party.” United L.Ed.2d 389
prevailing
to the’
favorable
(C.A.A.F.
1
Phillips,
30 M.J.
Reister,
409,
v.
44
413
United States
v.
M.J.
States
(citations omitted).
prec
1996)
(C.M.A.1990)(reviewingSupreme Court
time).
law
Supreme Court case
edent over
analysis necessarily
through a
travels
Our
examples of circum
provides illustrative
shifting Fourth
time and
continuum of
seizure,
of
such as
stances indicative
argues
Amendment context
officers, the
threatening presence of several
unlawfully
that if he was not
the alternative
officers,
physical
display
weapons
subsequently
highway
on
seized
language
use of
person
or the
touching of
unlawfully
times while on
seized
different
compliance
indicating that
with
or tone
appeal
parties
also
the roadside. On
might
compelled.
requests
be
Unit
officers
disparate perceptions regarding the
554,
Mendenhall,
544,
446 U.S.
ed States v.
focus,
course, remains
critical events. Our
(1980).
1870,
497
“[A]
100
64 L.Ed.2d
S.Ct.
the facts
the record and the
established
simply
po
a
not occur
because
seizure does
findings
fact.
judge’s
approaches an individual and asks
lice officer
context,
Appel-
we
address the facts and
will
434,
Bostick, 501
questions.”
a few
U.S.
arguments
chronological
order. We
lant’s
have no
111
2382. “Even when officers
S.Ct.
begin
legal
review the
frame-
with a brief
individual,
suspecting
particular
a
basis for
arguments.
applicable
work
they
questions of that
may generally ask
individual,
Under the Fourth Amendment
to examine the individual’s
Seizures
ask
identification,
request
consent to search
generally
Police
fall into one of
encounters
luggage,—as long
police
his or
as the
do
her
arrest,
categories:
investigatory stop,
three
compliance
convey message
consensual encounter.
States v.
or
United
434-35,
required.”
is
Id. at
requests
their
Williams,
399,
(5th Cir.2004);
365 F.3d
403
(citations omitted).
111
The criti
2382
S.Ct.
1168,
Ringold,
States v.
335 F.3d
United
question
cal
remains “whether
reasonable
(10th Cir.2003);
1171
v.
United States Weav-
person
feel
officer’s
would
free to decline the
(4th Cir.2002).
er,
302, 309
282 F.3d
requests
terminate the encoun
or otherwise
protects
Fourth Amendment
“[t]he
436,
ter.”
111
Michi
Id. at
S.Ct.
See
people
persons
be secure in
...
their
Chesternut,
gan v.
108
486 U.S.
against
unreasonable searches
seizures.”
(1988).
1975, 100
S.Ct.
L.Ed.2d 565
investigatory stops
Arrests and
are consid-
meaning
ered
within
seizures
Moving
A The
Surveillance
require
predicate
Fourth
Amendment
degree
suspicion.
sup-
An
must be
arrest
that he was
first asserts
by probable cause
ported
and can be effected
seized
Fourth Amendment
in violation
by physical
or
to a
force
submission
show
in”
agents’
when
him
vehicles “boxed
Hodari,
authority.
v.
499 U.S.
California
traveling
while
interstate.
626,
621,
1547,
111 S.Ct.
B. Request Consent to Search the Appellant’s According for car. Vehicle point was the Appellant’s illegal which seizure occurred. Counsel did not assert Appellant subsequently pulled that an additional or illegal further detention over Trooper warning Pearce and issued a Trooper occurred because Pearce had citation following closely. Appellant too Appellant asked for his consent to search contends that he permitted should have been following conclusion of stop. the traffic Had following to leave issuance of the citation particular grounds suppression now without questioning. further According to by Appellant trial, asserted litigated been Appellant, Trooper request Pearce’s for con a expansive more might record have result- sent to search his vehicle initiated subse stands, ed. As it is left to make quent essence, detention. he contends he this newer claim on the state of the was seized without suspicion. reasonable record. testimony Here the Trooper Pearce and “A expectations, motorist’s when he indicates sees the interaction between policeman’s lights him, flashing
the two was conversational behind are rather than con- obliged that he spend frontational in will be nature. a short testimony period suggest answering does of time trooper’s questions that the and wait- tone or ing demeanor while the intimidating officer checks his threatening. license and Trooper registration, may Pearce described that he “po- given then be citation, cooperative.” lite and parties agree but that in likely the end he most following citation, will Appel- issuance of the be allowed to way.” continue on his Ber- lant was asked to writing McCarty, consent in kemer v. to a 468 U.S.
search
(1984).
of his car. The form indicated that he S.Ct.
According thing to SA first tary judge Appellant had been found Miranda rights did read his prior given rights by his SA Grabman engaging before in a discussion with him any incriminating to him. making statement purchases. Appellant denied gun about threats, prom- judge concluded that no Ap- SA asked wrongdoing. Grabman then ises, Ap- were used to elicit or inducements pellant to sit with him in an ATF so vehicle Implicit finding this pellant’s statement. that he could reveal results judgment is a efforts that had been conduct- surveillance repeatedly Appellant did not ask termi- becoming ed into his activities. After aware The mili- nate the as he asserted. activities, encounter his surveillance into tary judge also consent search admission, found “All right, uttered Trooper began Pearce Appellant’s car point you got me.” this Grabman At SA approximately Ap- at 1952 and that at Appellant of his Miranda again advised establishing pellant made first sign a his admission rights had him form acknowl- probable cause his rights arrest. edging agreeing to waive during purchas- period Appellant then confessed to concluded them. essentially, and that ing handguns with the intent to sell them not under arrest *11 250 encounter continued to be consensual in na- much in else Fourth analysis, Amendment
ture, given the fact had consented totality courts look to a of the circumstances by Trooper to the search Pearce. mili- The and contextual factors to determine if “a tary judge following also made the findings person in suspects position reasоnable suspicion: the issue of reasonable would have understood the situation to con stitute a (PO)] restraint on [Petty
10.
freedom of movement
Rodriguez
Officer
PO
degree
which the
purchased
law associates with
himself
handguns
several
Ienco,
formal
arrest.” United
Virginia gun
various
States v.
shops in
182
517,
(7th
F.3d
May
weeks before 3
91.
523
Cir.1999)(quoting United
Corral-Franco,
(5th
States v.
(2)
Applied
Law
stances,
significant
two
upon
facts bear
question. First, Appellant
Whether the
very
reasonable limits of an inves-
testified that
tigatory stop
shortly
have
Trooper
been exceeded
after
began
thus trаns-
Pearce
forming
search,
a seizure into an
agents
arrest is not
between 10
based
arrived on
upon clear black letter distinctions. United
the scene.
Appeals
The Court of Criminal
Sharpe,
States v.
470 U.S.
105 S.Ct.
found that Trooper
Pearce was assisted
(1985). Rather,
vits
the lower court. Now Lieutenant
client
with him and when then
(LCDR)
Commander
states
she
proceeded
Velez
LT Hoole
counsel
as substitute
releasing
does
recall
from
establishing
attorney-client
her
without
an
rela-
representation, or
generally,
more
“how I
tionship with him.
Based
the state
was released from the
record,
ease.” “What
re-
appellate
we
er-
assume
these
call,”
states,
appel-
LCDR Velez
“is that
But,
rors occurred.
hold
we
has
sign any
releasing
lant did not
documents
me
prejudiced
not demonstrated that he was
representing
him
hearing.”
at the
Mr.
during
hearing.
Hoole’s affidavit indicates that he recalls re-
previously
prin
This Court has
articulated
ceiving detailing
letter to the ease and that
ciples
resolving
issues related to substi
the letter contained a mis-reference to Hos-
post-trial.
tute counsel that arise
United
pitalman
Rodriquez
Hector
rather than YN3
Howard,
(C.A.A.F.
States
M.J. 104
subject
L.
Jorge
Rodriquez,
repre-
of his
1997);
Miller,
United Statеs v.
M.J.
appeal.
sentation and this
Mr.
affi-
Hoole’s
Hickok,
(C.A.A.F.1996); United States v.
also
davit
states that
(C.A.A.F.1996).
M.J.
These cases dealt
Upon being
attempted
detailed I
to make
period
with the
sentencing
between
and the
Rodriquez
contact with YN3
to discuss
convening authority’s action when defense
ease,
importantly
matters in the
most
LT
required
counsel is
to prepare clemency mat
proposed
Velez’s
release as
coun-
ters and
review
staff
advocates
recollection,
To
my
sel.
the best of
we
post-
recommendation. We identified this
attempts
Rodriguez
made
contact YN3
period
“important stage.”
trial
Hick
phone
both
in writing
at his
ok, 45
principles
M.J. at 145. The
enunciat
*15
home of record to no avail.
at-
We also
Hickok,
apply
ed in
Miller and Howard also
tempted to discover his then-current ad-
fact-finding hearings.
to
absence
by searching through phone listings,
dress
proceeding
effectively
counsel
such
will
searches,
internet
and searches on various
in
right
result
denial
to
Id.
counsel.
LEXIS databases. These
were
efforts
Denial
to
at an important
counsel
likewise unfruitful.
stage
legally presumed
“is
preju
result in
challenged
veracity
not
has
However,
Id.
“if
dice.”
counsel who has the
affidavit,
of this
nor argued that counsel’s
legal responsibility
protect
the accused’s
efforts fell
diligence.
short as matter of
post-trial
present,
interests is
it cannot be
Rather, Appellant argues
having
failed
deprived
said
the accused has been
attorney-client
an
relationship
establish
right to
his
counsel.” Id.
In Miller
held
we
Hoole,
was,
effect,
LT
unrepre-
he
in
by
that the error
substitute counsel of serv
DuBay
sented at the
hearing.
ing
having
without first
entered into an attor
The record
an appellate
also contains
ney-client relationship could be tested for
by
rights
statement
executed
prejudice.
appro
In this was witness as contends he and examination prejudiced DuBay Thus, hearing advocacy. then it when well written while is attorney- LT improperly appropriate prejudice, Velez severed to test for each case
255 prejudice. delays material for regard- post-trial present differеnt circumstances will Tardif, M.J. 219 v. States ing relationship between counsel United Williams, (C.A.A.F.2002); v. United States DuBay ques- client and the nature of the (C.A.A.F.2001)(citing result, United must M.J. As a each case presented. tions (C.M.A.1979)). Banks, prejudice on own merits. M.J. be its States tested case, hearing indi- DuBay record this eight-year, Appellant asserts that an LT the substitute then
cates that sentencing and Hoole, represented period nine-month between fact Appeals of Criminal ar- zealously. argued He final action Court Appellant’s cause argues that He further against applicability of a news- was unreasonable. ticulately his military. delay because prejudiced in the He also gathering privilege rep Supreme unable to continue competently applicable counsel was discussed Ap- reas resenting relevant to the issue. due counsel’s precedent Court him simply pellant’s specific prejudice claim of has been signment. is And because raising a restatement of the facts the issue. confinement he is unable released from spoke LT His claim is that since Hoole never decisions. benefit from favorable him, requisite formed rela- he never by appellate This marked case thus, repre- tionship, and should never have year transpired speed. between the Over Moreover, the hearing. him at the sented authority’s the docket convening action and made record reflects that counsel efforts ing Appellant’s case at Court Crimi Appellant, who fulfill contaсt did himself 66(c), Appeals. Appellant’s initial Article nal duty to advise counsel of his whereabouts. 866(e) (2000), UCMJ, § review was 10 U.S.C. Cornett, 128, 134 United States v. 47 M.J. years af completed within two one-half (C.A.A.F.1997). Finally, questions as- convening authority’s action.5 Once ter signed did not re- consideration docketed, lower the time taken court directly late to matters within uncommon or to conduct its review was not Rather, personal knowledge. questions involving multiple for a case unreasonable relating of law a First addressed matters complex issues of law and fact. gathering privilege, and Amendment news *16 fact, involving of or not matters whether Discretionary good cause shown review possessed videotape requested NBC the a granted court and subsequently this Therefore, condoning defense. while not DuBay hearing This had the ordered. Court occurred, what that we conclude based days ordering DuBay a case for 489 before facts, DuBay presented, in these context hearing question of NBC video- on the Appellant has not demonstrated that he was tapes. DuBay process itself took over The 59(a) prejudiced in of Article when the sense days. It was over two and one-half 600 represented him at the substitute counsel DuBay hearing years after the was ordered establishing hearing first an attor- without a Appeals issued Court Criminal ney-client relationship. in this case. second decision
Appellant has
his ease that there was
made
V
review,
lengthy process
appellate
and
a
Howevеr,
delay.
Appellant
perhaps undue
delay
Appellate
prejudice.
regarding
not
has
made
case
First,
military
right
member has a
integral part
an
while a
Appellate review is
military
system,
Amendment nor
justice
and the Due
neither the Sixth
838(b)
38(b), UCMJ,
§
Article
10
guarantees that such review
U.S.C.
Process Clause
(2000),
representation by a
timely
v.
be
in a
manner. Diaz
confers
conducted
States,
Navy,
lawyer.
v.
Judge
particular
M.J.
Wheat United
Advocate
59
General of
153, 158-59,
(C.A.A.F.2003).
108
100
unreasonable
486 U.S.
S.Ct.
34
We test
(C.A.A.F.2004).
factually distinguishable
is
M.J. 100
This case
States,
presented
Toohey
United
situation
in
v.
(1988);
status,
see also United States
military judge
L.Ed.2d
finement
noted
Wiest,
v.
redress,
possible
281-82
M.J.
that there were
avenues of
(C.A.A.F.2004)(Erdmann,
J.,
dissenting).
including a
our
submission to
Court. The
Appellant
military
defense, however,
is not the first
member
seek
did not
relief from
proceeded
Court,
who has
from court-martial to ac-
nothing
our
there is
in
the record
through
stages
appeal
tion or
various
of an
indicating
sought
defense otherwise
with
different
counsel as
result of
to ensure that
did not suffer a loss
necessary
rotation and the
duration
trial
potential good
by attending
time credit
Second,
or appellate proceedings.
fact
hearings.
court-ordered
prevailed
remains that
has
military judge,
expressed signifi-
who
impor-
this
court
Court
below the
conducting
hearing
cant concern about
questions
presented
tant
lawof
and is not
absence,
obtained
assurance
Therefore,
entitled
relief.
he has
been
from detailed defense counsel that she would
prejudiced
meaningful opportu-
for want of a
“stay in
communication” with
nity for relief.
keep Appellant
everything
informed “of
being
that’s
done
his case.” Before ac-
DECISION
waiver,
cepting Appellant’s
military judge
Navy-
The decision
United States
told
that he
that I’ll
was “confident
Corps
Appeals
Marine
Court
Criminal
is
counsel]
be alert and
will be
[detailed
affirmed.
if anything
up
even more alert
comes
requires
you
information from
or a consulta-
EFFRON,
(dissenting):
Judge
you
with
will
tion
be done.”
years
our
ago,
Six
Court concluded
session,
During the initial
defense counsel
factfinding
pur
case
“a
hearing
military judge
informed the
that the defense
DuBay,
United States
suant to
17 USCMA
considering stipulation
“to the fact that
(1967),
(1)
necessary
Although
did not
the
maintain. To the best of the
Law
defense counsel
ask
NBC
military judge
impact
Department’s knowledge,
to address the adverse
no such instruc-
attending
hearing
given.
on
con-
the
tion was
terms of
identifying themselves in
thereafter,
Shortly
summarily
the
counsel
we
denied
of their clients.
and the names
motion,
clearing
way
their names
thereby
defense
DuBay
United
hearing
proceed.
to
inquire
military judge
not
on
The
did
(C.A.A.F.
Rodriguez,
States
A held L. Rodri- Appellant—YN3 third session was on Octo- contacted fact, present, is in the guez. ber was not nor there no indication any relationship to was the detailed defense counsel who had record that had prior Bethesda, represented proceedings. him at the at Bethesda or that command any responsibility provision of the third contains no record session appar- It explanation Appellant. defense counsel’s ab- legal detailed services sence, it, surrounding why contacting Appellant was the circumstances ent the task of authority person assigned having the fact a different announced an officer Commanding presence Appellant, as defense counsel. as the Of- over such *18 commander ficer at Fort Leavenworth or the record contains reference organization of to which the naval fact defense counsel was new the the assigned. was any proceedings; nor does the record contain by thе The second document submitted as to new defense counsel’s statement by the Article Government is an affidavit executed qualifications and certification under counsel, 27(b), the contents Military first detailed defense Code of Justice Uniform Ap- UCMJ], of of which underscore the inattention U.S.C. [hereinafter 827(b)(2000). significance pellant’s of simply § The record sets forth counsel DuBay proceeding. After misidentifying military judge by the l’outine statements proceeding “hearing by as practica- ordered shall consult with a client as soon as Navy-Marine Corps Court of necessary upon being Criminal ble and as often as Appeals,” assigned issue.”); the first defense counsel charac- or at case id. Rule (Communication)(“A participation involving “only terized her attorney 1.4. covered matters”—apparently administrative over- reasonably keep shall a client informed about looking in matter[.]).” her role the waiver of Despite the status of a right present, persistent to be her efforts to strong by military judge admonitions convince the the sub- that she maintain her contact with client by stantive issues raised our Court’s order present when he waived his to be at the moot, had been rendered and her decision hearing, and her assurances that she would obtaining to address those issues without so, do there is no indication in the record testimony the live of witnesses with first- any that she had contact with after hand knowledge the creation and disposi- December 1998. There is no indication in videotape. tion of the any attempt record she made expected ascertain the date of his release light The affidavit also sheds little on the any from or confinement that she made ar- surrounding replacement circumstances her rangements to maintain contact with him by a second detailed defense counsel and the appellate while he onwas leave. responsibilities termination of her her client. The first noted counsel that she was The third document submitted the Gov- scheduled detach from the defense counsel ernment is affidavit from the second de- in office November and that a new noting tailed defense counsel. After that his hearing defense counsel “was detailed to the being “recollection the details” de- prior my about four months scheduled represent Appellant tailed to was “limited”— detachment____ my understanding, To emphasizing the confusion as to name of the in was done order release me all de- detailing client in the letter—he offered the fense related duties so that I could concen- following description attempts of his to con- Legal managing trate on of- Assistance Appellant: tact Bethesda, Hospital fice at the Naval MD.” Upon being attempted detailed I to make upon assignment She also stated that with [Appellant] contact discuss matters Department new “I was told case, importantly in the most detailed [first my turn Head to file of the case over to [the proposed counsel’s] release as de- new counsel] and brief him on the case.” my fense counsel. To the best recollec- respect With to her of the termination tion, attempts to [Appel- we made contact attorney-client relationship Appellant, phone writing both on the and in lant] she noted: his home of record to no avail. We also attempted to discover his then-current
[A]t time have not been able ad- my by searching through phone to locate dress paperwork listings, this case. internet searches and searches of various I do not recall how I was released from the LEXIS These databases. efforts were appellant case. What I recall likewise unfruitful. sign did not releasing documents me representing hearing. him at the now, then, Appellant was as he is a mem- times, Navy. pertinent ber of the At all he There is no or indication the affidavit appellate was either confinement otherwise the record she had such, subject leave. As to the author- Appellant regarding contact with severance ity Disciplinary attorney-client Barracks Fort relationship. Dep’t See commanding Leavenworth and the officer Navy, Judge In- Advocate General assigned. naval unit which he struction 5803.IB [hereinafter JAGINST 5803.IB], Attorneys vague recollections both the first and Professional Conduct of Practicing Cognizance Super- under second detailed defense counsel do estab- *19 (2000), Judge respon- of the that vision Advocate General lish either counsel contacted (Diligence)(“A attorney Rule 1.3 covered ... sible officers at Fort Leavenworth or within
259
detailing
counsel in the
in
Appellant.
reflected
Navy
information about
case.
no
in this record of
There is
indication
request
official from either
written
relationship has
attorney-client
Once an
Likewise,
in
there is
indication
counsel.
detailed defense
formed with a
been
sought
counsel
assis-
this record that either
change
may
or
detailing authority
excuse
in
investigative authorities
tance from naval
(1)
initially
only when:
counsel
detailed
Appellant.
tracking down
by in
representation
the client has obtained
brought to the attention
None of this was
military
under
dividually
counsel
requested
military judge. Given the serious
of the
(2)
506(b)(3);
is ex
detailed counsel
R.C.M.
military judge
ex-
concerns that
client;
express
consent of
cused with the
Appellant’s
pressed
proceeding without
about
(3)
judge permits
military
detailed
or
session,
personal commit-
presence at the
his
good
cause shown
counsel to withdraw
kept
ment
that he would be
505(d)(2)(B). See
R.C.M.
Unit
the record.
informed,
and the assurance
counsel
(C.M.A.
Gray,
A proceeding, proving and that the burden of otherwise involves powers hearings employing court- be cannot met the defense. Such conclu- martial, however, including discovery, compulsory pro- sions, should be drawn cess, evidence, DuBay proceeding application of the rules of marred to fol- failure requirements to call and cross-examine witnesses. low the basic for establishment findings attorney-client makes of facts rela- termination context, and enters tionship. conclusions law on matters In that the record does proceeding. provide response referred In such a acceptable set- ting, attorney-client questions the establishment of an referred for consid- Court relationship, continuity of in DuBay proceeding. and the eration