Petition for Writ of Certiorari — Smalls v. United States

Supreme

/

Supkr4 Cour bs,

91-437 || cc F Ror

j

SEP 16

No. gore oF Ae Beak

q

CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

TYRONE M. SMALLS,

y Pet Honer

UNITED STATES OF AMERICA

Re spondent

Petition for Writ of Certiorari to the

United States Court of Military Appeals

PETITION FOR WRIT OF CERTIORARI

MARILYN A. GORDON

Major, Air Force

Legal Services Agency

United States Air Force

AFLSA/JAJD

Bldg. 5683

3olling AFB, DC 20332-6128

Counsel of Record

JEFFREY R. OWENS

Lieutenant Colonel, Air Force

Legal Services Agency

United States Air Force

September 1991 Counsel for Petitioner

QUESTION PRESENTED

Whether petitioner’s constitutional right against seif-

incrimination was violated by prosecuting him for failing

O Obey a el eral regulation nat required nim, unde

nonal+y Plea ten an I icicle to produc ; e :

HpeNnaily OL Criminal Pprosecullon, ) Proauce prool OI poOs-

3€S8810nN Or laWlui CGISpOSition OF certain tax-exempt item

J |

TABLE OF CONTENTS

Page

OPINIONS BELOW ]

JURISDICTION 2

CONSTITUTIONAL PROVISION INVOLVED 2

STATEMENT OF THE CASE 2

REASONS FOR GRANTING THE WRIT 4

CONCLUSION 9

APPENDIX A la

APPENDIX B 7a

APPENDIX C 18a

TABLE OF AUTHORITIES

Cases:

Albe rftson v. Sub rsive Activitie Ss Control Board,

382 U.S. 70 (1965) 6

jlackledge v. Perry, 417 U.S. 21 (1974) %

Baltimore City Department of Social Services v.

Boulknight, 110 S.Ct. 900 (1990) 7

Marchetti v. United States, 390 U.S. 39 (1968) 7

Menna v. New York, 423 U.S. 61 (1975) 8

United States v. Smalls, 32 M.J. 398 (C.M.A.

1991) 4

United States v. Williams, 29 M.J. 112 (C.M.A.

1989) 9

United States v. Smalls, 30 M.J. 666 (A.F.C.M.R.

1990) 4

United States v. Williams, 27 M.J. 710 (A.C.M.R.

19&3) 9

Constitutional Provision:

United States Constitution Amendment V 2: &

United States Code:

10 U.S.C. § 831 (a) and (b) (1988) 35

10 U.S.C. § 832 (1988)

(III)

IV

TABLE OF AUTHORITIES—Continued

Uniform Code of Military Justice: Page

Article 31 (a) and (b) 2,5

Article 22 3, 5

Article 92 (1) 3, 5

Miscellaneous:

USCINCPACREPPHILINST 4066.7R, 4 April

1986 2, 4,5

IN THE

Siyirrnw Cant of the United States

OCTOBER TERM, 1991

TYRONE M. SMALLS,

Petitioner

if

UNITED STATES OF AMERICA,

Respondent

Petition for Writ of Certiorari to the

United States Court of Military Appeals

PETITION FOR WRIT OF CERTIORARI

The petitioner, Tyrone M. Smalls, respectfully prays

that a writ of certiorari issue to review the judgment of

the United States Court of Military Appeals entered in

his case on June 21, 1991.

OPINIONS BELOW

The opinion of the United States Court of Military

Appeals is reported at 32 M.J. 398 (C.M.A. 1991), in

which Judge Cox concurred and Senior Judge Everett

dissented (Appendix A). The United States Air Force

Court of Military Review issued a decision on March 16,

1990, reported at 30 M.J. 666 (A.F.C.M.R. 1990) (Ap-

pendix B).

2

JURISDICTION |

The final order of the United States Court of Military

Appeals was entered on June 21, 1991. The jurisdiction

of this Court is invoked under 28 U.S.C. § 1259(3)

(Supp. 1989) and 10 U.S.C. § 867a (Supp. 1989).

CONSTITUTIONAL PROVISION INVOLVED

The Fifth Amendment of the Constitutien of the United

States provides in relevant part:

No person shall . . . be compelled in any criminal

case to be a witness against himself. .

On April 11, 1989, the petitioner, an Air Force Ser-

geant (E-4), was tried by a general court-martial in a

judge alone trial at Clark Air Base, Republic of the

Philippines. He pled guilty to charges of disobeying a

general regulation by wrongfully failing to show posses-

sion or authorized disposition of tax-exempt personal

property and of wrongfully disposing of his family’s pass-

ports in violation of 18 U.S.C. § 1544. He was originally

sentenced to a dishonorable discharge, confinement for

four months, forfeiture of $200.00 pay per month for

four months, and a reduction to airman basie (F-1).

The Air Force Court of Military Review modified the

findings and reduced the length of his confinement and

forfeitures to three months each. The United States

Court of Military Appeals affirmed the findings of the

Air Force Court.

United States Commander-in-Chief of the Pacific, Re-

public of the Philippines, Instruction (USCINCPACREP-

PHILINST) 4066.7R, 4 April 1986, paragraphs 2r and

3h, prohibits military members and other U.S. govern-

ment employees and sponsorees stationed in the Philip-

pines from failing to show possession or authorized dis-

position of certain tax-exempt property when directed to

|

|

STATEMENT OF THE CASE

|

»? 4

vo

do so by proper authorities (Extracted portions at Ap-

pendix C). There is no provision in the Instruction re-

quiring any military member to keep appropriate rec-

ords regarding tax-exempt property; servicemembers are

simply required to account for the whereabouts of the

property upon demand. Improperly disposing of the prop-

erty or simply failing to answer questions about the loca-

tion of the property can lead to criminal sanctions. On

May 4, 1988, pursuant to an investigation into the dis-

position of certain tax-exempt vehicles by two other in-

dividuals, petitioner was asked to account for several tax-

exempt items. Petitioner was able to account for, but not

immediately produce, some of the items. At some point

petitioner was read his rights under Article 31 of the

Uniform Code of Military Justice (U.C.M.J.), 10 U.S.C.

$ §31,! before being further questioned. Petitioner then

requested counsel and refused to account for the remain-

ing items. Petitioner was subsequently charged with and

convicted, pursuant to his pleas, of disobeying the In-

struction by failing to account for the items when re-

quested to do so. Uniform Code of Military Justice, Ar-

ticle 92 (10 U.S.C. § 892(1))-

110 U.S.C. § 831, Article 31, U.C.M.J., Compulsory — self-

incrimination prohibited:

(a) No person subject to this chapter may compel any person

to incriminate himself or to answer any question the answer to

which may tend to incriminate him.

(b) No person subject to this chapter may interrogate, or

request any statement from an accused or a person suspected

of an offense without first informing him of the nature of the

accusation and advising him that he does not have to make an)

statement regarding the offense of which he is accused or

suspected and that any statement made by him may be used

as evidence against him in a trial by court-martial... .

240 U.S.C. § 892, Article 92, U.C.M.J., “Failure to obey ord — or

regulation:

Any person subject to this chapter who

(1) violates or fails to obey any lawful general order or regula-

tion; . .. shall be punished as : uurt-martial mav direct. .. .”

4

The Air Force Court of Military Review rejected peti-

tioner’s claim that the Instruction, known as a “show and

tell” regulation, violated his privilege against self-incrimi-

nation. The Air Force Court found that the petitioner was

not a suspect in a criminal investigation at the time of

the “show and tell” and he was not asked any questions

in violation of his Article 31, U.C.M.J., or Fifth Amend-

ment rights. The court also found the military judge had

no duty to advise the petitioner that he could raise a

Fifth Amendment issue, therefore the guilty plea and the

lack of objection or motion by the defense counsel waived

the issue. United States v. Smalls, 30 M.J. 666, 668-669

(A.F.C.M.R. 1990). The Air Force Court modified the

findings of the trial court by finding that the petitioner

constructively possessed some of the items which he was

charged with failing to show to the inspectors and dis-

missed those items from the Charge; the court reassessed

the sentence accordingly. Jd. at 670-671. The Court of

Military Appeals affirmed the lower court and agreed that

the petitioner had waived Fifth Amendment and Article

31, U.C.M.J., issues by not raising them at trial and by

his plea of guilty. United States v. Smalls, 32 M.J. 398,

400 (C.M.A. 1991). Senior Judge Everett, in his dissent,

stated he would find the “show and tell” regulation to be

unconstitutional per se and would thereby reverse the con-

viction, Jd. Neither court below, in their holdings, dealt

with the issue of the underlying unconstitutionality of the

Instruction, relying instead on an Article 31, U.C.M.J.,

analysis. The analyses differ and it is this basie uncon-

stitutionality that petitioner now raises.

REASONS FOR GRANTING THE WRIT

The United States Commander-in-Chief of the Pa-

cific, Republic of the Philippines, Instruction 4066.7R

(CINCPACREPPHILINST 4066.7R), paragraphs 2r and

3h, hereinafter known as the “show and tell” regulation,

is unconstitutional on its face in that it results in military

members being ordered to incriminate themselves in

‘em

a

o

blackmarketing situations by requiring them to account

for the possession or disposition of tax-exempt property;

refusal to answer is itself a crime for which these service

personnel can be prosecuted. The “show and tell” regula-

tion involved in this case prohibits the following act:

“Failure to show possession or authorized disposition of

tax-exempt personal property when so directed by cog-

nizant authorities.” CINCPACREPPHILINST 4066.7R,

paragraph 2r (Paragraph 3h provides the same prohibi-

tion but relates to automobiles only). The failure to com-

ply with the above requirement “may result in discipli-

nary and/or adverse administrative actions.” /d. at para-

gvaph 2. Military members may be criminally prosecuted

for failing to obey a lawful general order or regulation.

Uniform Code of Military Justice (U.C.M.J.), Article 92,

10 U.S.C. §$ 892. Therefore, based on this “show and tell”

regulation, a military member finds himself in a “Catch

22” situation in which he can be prosecuted either for

having improperly disposed of tax-exempt items, for re-

fusing to answer questions as to the location of those

items, or simply for refusing to show, or even lacking the

ability to show, possession of those items. In the case at

bar, petitioner asserted his Fifth Amendment right not

to incriminate himself and was subsequently prosecuted—-

not for having blackmarketed the tax-exempt items—

but instead for asserting his privilege against self-

incrimination. In fact, it appears from a witness state-

ment contained in the Article 32 investigation (10 U.S.C.

§ 832),° that petitioner was advised by an investigator

of his rights under Article 31, U.C.M.J. (10 U.S.C.

$931), that he was not required to make a statement.

It was his invoking of this right for which he was held

criminally liable in this case. Since refusing to answer

questions regarding a possible criminal act results in

criminal prosecutions, the “show and tell” regulation is

3 An Article 32 investigation is the equivalent of a grand jury

investigation or preliminary hearing to show sufficient evidence to

proceed to trial.

7

keep any records. He was simply required to produce

the tax-exempt items or properly account for their dis-

position. If he could not ‘or would not! account for the

disposition of the items, whether they were blackmarketed

or not (for instance, if an item is destroyed or lost, a

military member could not “show” the item to the inspec-

tors as required nor could he prove that he had properly

disposed of the property), he violates the regulation. This

is similar to the situation in Marchetti v. United States,

390 U.S. 39 (1968). The requirement that Marchetti

provide information on his wagering business in the form

of a registration requirement was “not significantly dif-

ferent from a demand that he provide oral testimony.”

Id. at 57. The same rationale applies in this case. The

lack of production of tax-exempt items and the prosecu-

tion of a person who refuses to explain their whereabouts

is simply a demand that a person provide oral testi-

mony against himself. Such required information, as in

Marchetti, violates the protections provided by the Fifth

Amendment. As stated by the Marchetti Court, “[t]he

constitutional privilege was intended to shield the guilty

and imprudent as well as the innocent and foresighted;

if such an inference of antecedent choice were alone

enough to abrogate the privilege’s protection, it would be

excluded from the situations in which it has historically

been guaranteed, and withheld from those who most re-

quire it.” Id. at 51.

In Baltimore City Dept. of Social Services v. Bouk-

night, 110 S.Ct. 900 (1990), this Court found that the

Fifth Amendment’s protection applies when “the act of

complying with the government’s demand testifies to the

existence, possession, or authenticity of the things pro-

duced.” Jd. at 905. In other words, in such situations,

the production of items demanded by the government is

testimonial in nature. The request made of petitioner

falls into this category, rather than that of “the contents

or nature of the thing demanded.” /d. Here, the question

was whether the petitioner still possessed the tax-exempt

8

items. If he did not possess them, he was required to

show proper disposition of the items. If he said nothing,

he could not meet the requirements of the regulation and

his silence became a failure to “show” or “tell.” It is not

the content of the personal property displayed to the au-

thorities that matters, its the fact of whether the item is

still in the possession of the person who is the subject

of the investigation. Therefore, both the “show” and the

“tell” portions of the regulation required petitioner to

provide testimonial evidence that was potentially incrim-

inating, on pain of being prosecuted either if the items

were illegally disposed of or if he simply remained silent

as to the location of the property. This instance violates

both Albertson and Marchetti.

Since the “show and tell” portion of the regulation vio-

lates the Fifth Amendment, petitioner’s conviction cannot

stand in spite of the fact that he pled guilty to the offense.

A person cannot be convicted of an act that is not crim-

inal. If it is unconstitutional to require a person to in-

criminate himseif by his silence, then the military mem-

ber cannot be convicted of violating a lawful general reg-

ulation, since »y definition the regulation is therefore not

lawful. In both Blackledge v. Perry, 417 U.S. 21 (1974)

and Menna v. New York, 423 U-S. 61 (1975), this Court

held that a guilty plea does not preclude a defendant

from challenging issues on appeal that result in the trial

court’s inability to try the person at all rather than con-

cerning the procedural aspects of the trial. Blackledge at

31. This is petitioner’s situation. He cannot be tried at

all on this offense if to do what petitioner did is not a

crime. He cannot plead guilty to an act that is not a

criminal offense. Therefore, the court below is incorrect

in holding that petitioner waived the error by pleading

guilty to the alleged offense.

Y

CONCLUSION

The “‘show and tell” portion of the regulation is uncon-

stitutional per se since it requires military members to

incriminate themselves or be criminally prosecuted based

on their silence and assertion of the Fifth Amendment

privilege. Such a regulation leaves military members in

an untenable position. See Chief Judge Everett’s dissent

in United States v. Williams, 29 M.J. 112, 121 (1989),

quoting the dissent of Judge Smith of the Army Court of

Military Review (United States v. Williams, 27 M.J. 719,

729-30 (A.C.M.R. 1988)). This is an outright violation

of a citizen’s right to not be required to provide testi-

mony against himself. Accordingly, petitioner contends

review by this Court is warranted. Therefore, the Peti-

tion for Writ of Certiorari should be granted.

respectfully submitted,

MARILYN A. GORDON

Major, Air Force

Legal Services Agency

United States Air Force

AFLSA/JAJD

Bldg. 5683

Bolling AFB, DC 20332-6128

Counsel of Record

JEFFREY R. OWENS

Lieutenant Colonel, Air Force

Legal Services Agency

United States Air Force

September 1991 Counsel tor Petitioner

APPENDICES

la

APPENDIX A

UNITED STATES COURT OF MILITARY APPEALS

No. 64,875

ACM 27842

UNITED STATES,

_ Appellee

TYRONE M. SMALLS,

Sergeant U.S. Air Force,

A }]

A ppe liant

Submitted August 7, 1990

Decided June 21, 1991

( "Ou 1S¢ ]

For Appellant: Colonel Richard F. O’Hair and Cap-

tain Paul M. Dankovich.

For Appellee: Major Paul H. Blackwell.

Military Judge: Lemuel R. Waitman.

Opin ion

SULLIVAN, Chief Judge:

On April 14, 1989, appellant was tried by a general

court-martial composed of a military judge sitting alone

at Clark Air Base, Republic of the Philippines. Pursuant

to his pleas, he was found guilty of one specification each

of violating paragraphs 2r and 3h, Enclosure 6.

USCINCPACREPPHILINST 4066.7R (April 4, 1986),

in contravention of Article 92, Uniform Code of Military

Justice, 10 USC 892. Also, pursuant to his pleas, he was

found guilty of disposition of his family’s passports con-

2a

trary to 18 USC § 1544, a violation of Art. 134, UCMJ,

10 USC $934. He was sentenced to a dishonorable dis-

charge, confinement and forfeiture of $200 pay per month

for 4 months, and reduction to E-1. The convening au-

therity approved the sentence. On March 16, 1990, the

Court of Military Review affirmed the findings of guilty

with some modification. In reassessing the sentence, it

reduced the term of confinement and the neriod of for-

feitures to3 months. 30 MJ 666.

On August 7, 1990, this Court granted review on the

following question of law:

WHETHER APPELLANT'S PROSECUTION,

PREMISED UPON A VIOLATION OF

USCINCPACREPPHILINST 4066.7,

AMOUNTED TO A “PENALTY” ON THE

APPELLANT’S EXERCISE OF HIS FIFTH

AMENDMENT AND ARTICLE 31 RIGHTS

AGAINST SELF-INCRIMINATION.

We hold that the reeord of trial does not support a con-

clusion that appellant’s rights under the Fifth Amend-

ment or Article 31, UCMJ, 10 USC § 831, were violated.

See United States v. Williams, 29 MJ 112 (CMA 1989).

Moreover, his guilty pleas and his failure to raise these

claims at a court-martial tried after publication of our

decision in United States v. Lee, 25 MJ 457 (CMA 1988),

waived any claims he may have had in this regard. Cf.

United States v. Hilton, 27 MJ 323 (CMA 1989).

Appellant pleaded guilty to violating two so-called

“show and tell” regulations.* He did so almost 14 months

*1. Definitions. The terms “tax-exempt property” and ‘“‘tax-

exempt motor vehicles,” as used herein, refer to personal property

or motor vehicles in the RP [Republic of the Philippines] upon

which no RP import, excise, consumption, or other tax, duty, or

import has been pail by reason of the exemption granted pursuant

to reference (a). A “nontax-exempt person” is a person or other

entity not entitled to a tax exemption under reference (a). All

prohibitions relating to motor vehicles are equally applicable to the

3a

after the decision of this Court in United States v. Lee,

supra. Pursuant to these pleas, he stipulated to the fol-

lowing facts:

1. On 10 December 1987 through the present and at

all pertinent times Sergeant Tyrone M. Smalls has

been on active duty with the United States Air Force

stationed at Clark Air Base, Republic of the Philip-

pines, and assigned to the 3d Combat Support Group.

29. The Merchandise Control Activity, Commander of

the 3rd Combat Support Group, designated Major

Thomas A. Beckett as Merchandise Control Activity

IAW USCINCPACREPPHILINST 4066.7R, enclos-

ure 6, paragraph 9. Major 3eckett, in turn, author-

ized TSgt Robert Frazier, to conduct show and teil

operations on his behalf. TSgt Frazier was, there-

fore, “Cognizant Authority” for the purpose of

USCINCPACREPPHILINST 4066.7R, enclosure 6,

paragraph 2i(r} and 3th) when he conducted the

show and tell of the accused’s property on 4 May

1988.

major components of motor vehicles, i.¢., engine, transmission, dri

train, and chassis.

2. Tar-Exempt Personal Property. The following acts and prac-

tices relating to the acquisition, possession, and disposition of tax

exempt personal property are prohibited and violations may result

in disciplinary and/or adverse administrative actions:

r. Failure to show possession or authorized disposition of tax-

exempt personal property when so directed by cognizant au-

thorities.

8. Tar-Exempt Motor Vehicles. The following acts and practices

relating to the acquisition, possession, and disposition of motor

vehicle[s| are prohibited:

h. Failure Lo show PPOsst ssion or authorized dispositio! of Ts

exempt motor vehicles when so directed by cognizant authori-

ties.

r> DA, . ' ' 4

{ A | { {) {

La I \ J ry fj l4slu™' EE), f J So | j

[ t ' VIU ene

[ AIT ' ’

‘

( y (

} ‘

}

}

{

| +

4

>

7 4 f

j

' ‘ r rT TY? , ;

{ P” fa G o— -- st tity}

i J ’ ;

ba

Amendment or Article 31. United States v. Williams, 29

MJ at 117; cf. United States v. Jones, 31 MJ 189, 191

(CMA 1990). The Court of Military Review did note

some information presented at the Article 32, UCMJ, 10

USC § &32, investigation which could support an argu-

ment that appellant should reasonably have been consid-

ered a suspect by merchandise control officials at that

time. See United States v. Good, 32 MJ 105 (CMA

1991): but see United States v. Bethea, 22 USCMA 223,

46 CMR 223 (1973). Nevertheless, that court did not

find that appellant was a suspect on this basis, and ap-

pellant himself did not make such an argument at his

trial which occurred long after the decision of this Court

in Lee. In these circumstances, we agree with the court

below that appellant waived this issue by failing to both

fully develop the record and properly present such a claim

to the military judge. Cf. United States v. Hilton, 27 MJ

at 3206.

The decision of the United States Air Foree Court of

Military Review is affirmed.

COX, Judge (concurring in the result) :

I agree with Chief Judge Sullivan that the findings and

sentence should be affirmed. However, I remain of the

opinion that a servicemember may be prosecuted for fail-

ing to obey the “show and tell” regulation, See my sep-

arate opinions in United States v. Jones, 31 MJ 189, 194

(CMA 1990). and United States v. Lee, 25 MJ 457, 465

(CMA 1988).

EVERETT, Senior Judge (dissenting) :

I would set aside the conviction because, in my view,

the “show and tell” verulation on which the Government

relied in prosecuting Smalls is unconstitutional. See

United States v. Williams, 29 MJ 112, 120 (CMA 1989)

(Everett, C.J., dissenting).

10a

The appellant argues the rationale in Koh is applicable

in the instant case. If we accept the Army Court’s ra-

tionale in Williams Koh, the claim of error has no merit

because no issue regarding the constitutionality of the

regulatory accounting requirement was raised at trial.

Since the matter was not raised, the military judge had

no duty to advise the appellant of the defense available

under the Fifth Amendment privilege. 1 M.J. at 418.

This does not entirely resolve the issue. Additional

guidance regarding the constitutionality of overseas mer-

chandise control accounting requirements has recently

been provided by the United States Court of Military Ap-

peals when it rendered its decision in the Williams case.

United States v. Williams, 29 M.J. 112 (C.M.A. 1989).°

The Court of Military Appeals held that by applying

a narrow construction to the regulatory disclosure pro-

visions in such regulations, they are “not unconstitutional

per se and... |do| not compel disclosures in violation of

the Fifth Amendment or Article 31” of the UCMJ. /d.

at 113. The Court reasoned:

The operative language of this regulation [a mer-

chandise control directive applicable to U.S. Forces

personnel in Korea] requires a servicemember, upon

request, to ‘present valid and bona fide information

or documentation showing the continued or lawful

disposition .. . of’ specified items. A limited con-

struction of this language suggests that the service-

member must show physical possession of the item or

must possess some type of documentation or other

the Fifth Amendment privilege for the first time on appeal, citing

Garner v. United States, 424 U.S. 648, 96 S.Ct. 1178, 47 L.Ed.2d 370

(1976). 27 M.J. at 718-719. Accordingly, Williams’ pleas of guilty

were provident and his conviction of this offense was affirmed.

4In response to a mandate from the Court of Military Appeals,

we have also expressed our views regarding this issue in United

States v. Hilton, 29 M.J. 1036 (A.F.C.M.R. 1990), aff'd, 30 MJ. 118

(C.M.A. 1990).

lla

papers showing lawful disposition if the item is no

longer in his possession. . . . Different questions or

additional questions [absent an Article 31 rights ad-

visement|] in combination with the original request

to produce the item or documentation are not au-

thorized.

Id. at 115. The Court based its holding on the “required

records” doctrine as formulated by the United States Su-

preme Court. See United States v. Hilton, at 1043-44 for

a discussion of the development of this doctrine. The

Court of Military Appeals in Williams stated:

Production of the item or the documents specified by

regulation showing the proper disposition of the same

would seem to fit squarely within the required rec-

ords exception to the Fifth Amendment privilege.

* * * *

[We reject appellant’s argument that his pleas

were improvident and that the military judge should

have recognized a potential Fifth Amendment or Ar-

ticle 31 defense in his case. Here, the evidence of

record does not show that appellant was a suspect at

the time of questioning or that he was asked ques-

tions which violated the Fifth Amendment or Article

3i.

29 M.J. at 116-117.

The present case appears to fall within the ambit of

the Williams holding. On 4 May 1988, two merchandise

control analysts conducted the “show and tell’ at the ap-

pellant’s quarters. The record of trial itself is silent as

to why it was conducted. However, the Article 32 Inves-

tigation contains the summarized testimony of one of the

analysts. He testified that a review of two other individ-

uals’ merchandise control records revealed that the ap-

pellant had purchased a vehicle from each one of them,

but no documentation concerning the purchases was con-

tained in the appellant’s records. Security Police records

12a

indicated neither vehicle had been registered on base

after purchase by the appellant. Therefore, a “show and

teli’”’ was deemed appropriate. It was conducted at a time

prearranged through the appellant’s first sergeant. The

appellant was asked to account for all controlled items

of property listed in his records, as well as the two ve-

hicles in question. There is no affirmative indication any-

where in the allied papers that merchandise control offi-

cials suspected the appellant of being involved in black-

marketing at the time of the requested accounting.‘ Fur-

ther, it appears that all the merchandise control officials

did when they met with the appellant was ask him to ac-

count for the property. As soon as it was determined

that he could not, on the spot, account for the vehicles

and the other property now charged, the appellant ter-

minated the meeting by indicating he wanted to confer

with legal] counsel.

We find the circumstances present in this case suffi-

ciently similar to those in Williams to conclude that the

accounting provision of the regulation charged as being

violated can be constitutionally applied to the appellant.

There was no violation of the appellant’s Fifth Amend-

ment or Article 31, 10 U.S.C. § 831 rights. The military

judge had no duty to advise the appellant about his rights

under the privilege against self-incrimination. From this

perspective then, the pleas of guilty to Charge I and its

‘We do not believe the matter of whether or not an individual is

a suspect is determinative in any event. Application of the required

records doctrine is not dependent upon this factor. Wilson v. United

States, 221 U.S. 361, 382, 31 S.Ct. 538, 55 L.Ed. 771 (1911). See

also Shapiro v. United States, 335 U.S. 1, 68 S.Ct. 1375, 92 L.Ed.

1787 (1948); Davis v. United tates, 228 U.S. 582, 66 S.Ct. 1256,

00 L.Ed. 1453 (1946); United States v. Darby, 312 U.S. 100, 6)

S.Ct. 451, 85 L.Ed. 609 (1941); and cases cited in Hilton at 1044,

n. 13. The appellant here was at that time under investigation by

the Air Force Office of Special Investigations with regard to unlaw-

ful disposition of passports, but that appears to have been an en-

tirely separate matter.

13a

specifications were provident. We also believe this issue

has been waived. 27 M.J. at 718-719. See also United

States v. Clark, 28 M.J. 401 (C.M.A. 1989) ; United States

v. Hilton, 26 M.J. 635 (A.F.C.M.R. 1988) .°

B

On another basis, however, we hold that the findings of

guilty as to all but one item of property listed under Spe-

cification 1 of Charge I cannot stand as there is no fac-

tual basis to support the appellant’s plea R.C.M. 910(e).

In short, the record does not establish he committed the

offense charged. A portion of the appellant’s unsworn

statement accurately summarizes the state of the evidence

as to the property listed in Specification 1:

Lastly, Judge Waitman, I did fail to show and teli

by not showing authorized disposition of the follow-

ing items in Specification 1 of Charge I: Sanyo am-

plifier, tuner, cassette deck and speakers and Fisher

amplifier. They were all in a repair shop at the time

of the show and tell. I failed to show and tell because

after the “show” I asserted my right to legal counsel.

However, I offered to produce the above items to the

Article 32 Investigating Officer. As you can see from

Defense Exhibit DD, I told the inspectcrs my stereo

was in the shop. The Sanyo tuner and cassette deck

were also in the repair shop.

Also, at the time of the inspection my wife was in

possession of her watch also listed in Specification 1

of Charge I |the appellant’s wife was not home at

the time]. You can see from Defense Exhibit CC

isic|, I told the inspector where it was and offered

to produce it for the Article 32 Investigating Officer.

* The Court of Military Appeals decision in United States v. Lee,

25 M.J. 457 (C.M.A. 1988) was released on 2 March 1988, over a

year before this case was tried. But see United States v. Hilton, 27

M.J. 323 (C.M.A. 1989).

l4a

Lastly, the Toshiba cassette recorder listed in Spe-

cification 1 of Charge I was at work {at his office]

at the time of the inspection. I also offered to pro-

duce this item for the Article 32 Investigating Offi-

cer. The only item in Specification 1 of Charge I im-

properly disposed of was the 4 times I told you about

in my guilty plea."

This is precisely what the appellant told the military

judge, under oath, during the providence inquiry.’ The

providence inquiry itself also reveals that the appellant

did not offer to take the analysts to the repair shop or his

office where the stereo equipment was located, nor did the

analysts ask that he do so. Regarding the watch, the ap-

pellant’s wife was somewhere on base at the time, but the

appellant was not sure where. At one point the military

judge said: “You can bring it [the watch] in here if I

wanted to see it?” The appellant replied: “Yes, sir.”

We also find of interest a matter which arose during

trial counsel’s argument on sentence.

ATC: However, at the time that the Merchandise

Control representative was asking him [the appel-

lant] to account for this property he couldn’t show

any receipts. He had no receipts to show that they

were, indeed, in the shop—

DC: Objection. It’s {sic] not in evidence. There

was no request made to produce receipts at the time.

MJ: Got a point there, doesn’t he?

ATC: He was unable to show proper disposition.

MJ: Okay. But, you can’t show that he offered or

was asked about receipts. I’ll sustain the defense on

that. Go ahead.

*The Article 32 Investigating Officer’s report confirms that the

offer to produce this property was made.

7We recognize that what the Government might have been able

to prove vis-a-vis what the appellate related to the military judge

could vary. However, when assessing the validity of a guiity plea,

it’s an accused’s version of the events that counts.

ll

Lda

Neither the extracts from USCINCPACREPPHIL-

INST 4066.7R introduced at trial in this case, nor the

provisions of Clark Air Base Regulatior. 30-3, Merchan-

dise Control (24 January 1986), of which we took judi-

cial notice in our most recent opinion in the Hilton case

(see the Appendix to that opinion), and again do so, con-

tain any requirement that U.S. Forces members in the

cepublic of the Philippines maintain documentation show-

ing that items of controlled property are in a repair shop.

Nor is there any regulatory prohibition against placing

items of controlled property in a repair shop or keeping

them at a work center.

The appellant is charged with “wrongfully failing to

show possession or authorized disposition” of the property

in question. (Emphasis added.) The record before us

indicates that the appellant had constructive possession

of the stereo equipment, and that there was no unau-

thorized disposition. We hold that there is no violation

of the accounting provision of the regulation charged un-

der the circumstances present in this case as far as the

stereo equipment is concerned. There is simply no crim-

inal mens rea established. The same can be said for the

lady’s watch. To attempt to hold a servicemember crim-

inally liable for failing to account for a plece of property

when he says the property is in the possession of one of

his dependents who does not happen to be physically pres-

ent at the time the accounting is requested we find aston-

ishing. With regard to these items of property the find-

ings of guilty cannot stand. R.C.M. 910/e) and Discus-

sion, and 910th) (2).* We will take appropriate correc-

tive action in our decretal paragraph. Once the appellant

volunteered information as to the location of these items

of property in response to the initial request for account-

ing, had the merchandise contro! officials asked the appel-

"We recognize that the parties at trial may have been constrained

to some degree by virtue of the existence of a pretrial agreement in

this case.

l6a

lant to accompany them to the repair shop and the place

where he worked so they could independently verify the

existence of the stereo equipment, and the appellant re-

fused to do so, we would reach a different conclusion. But

see 29 M.J. at 115, n.2. With regard to the watch, the

officials should have made arangements to subsequently

meet with Mrs. Smalls to verify possession of that item.

If she could not show possession oy authorized disposition,

then a regulatory violation would have occurred.

I]

We find no merit in the appellant’s contention that the

military judge was improperly predisposed to adjudge a

punitive discharge. At trial, the government took the

position that 18 U.S.C. § 1544 ‘misuse of passport) had

extraterritorial application. See generally United States

v. Mosley, 14 M.J. 852 (A.C.M.R. 1982); United States

v. Johnson, 735 F.2d 373 (9th Cir. 1984); United States

», Pizzarusso, 388 F.2d 8 (2d Cir. 1968). In so ruling,

the military judge stated:

Well, I’ve considered those cases and I would find

that the court does have jurisdiction over the person

of the accused before us. I think this is an offense,

pretty clearly, that has extraterritorial effect and

that one federal case, I think, really lays that out.

Of course, if some appellate court disagrees, that will

be up to them to say so.

(Emphasis added.) It is urged that this “Freudian slip”

revealed that the military judge intended all along to ad-

judge a punitive discharge in order to insure this case

would be reviewable by an appellate court. We view this

more as a remark about the state of the law regarding

the jurisdictional issue before him; a reference to appel-

late courts in general, not necessarily one that might be

required to review this particular case. And as appellate

government counsel aptly point out: “The comment now

raised as a bases [sic] for error prompted no response at

17a

trial.” See United States v. Small, 21 M.J. 218 (C.M.A.

1986). From our review of the record we conclude that

the military judge acted fairly and impartially through-

out the trial. United States v. Berman, 28 M.J. 615, 617-

618 (A.F.C.M.R. 1989); United States v. Martinez, 19

M.J. 652 (A.C.M.R. 1986). See generally R.C.M. 801,

962; American Bar Association, Code of Judicial Conduct,

Canon 3.

In the interest of judicial economy, we will resolve the

error noted above at this level of review. Only so much

of the findings of guilty of Specification 1 of Charge I as

finds that the appellant violated the regulation set forth

by failing to show possession or authorized disposition of

four tires is affirmed. Reassessing the sentence based on

this modification, as well as our independent review of

the entire record, we find appropriate only so much

thereof as provides for a dishonorable discharge, confine-

ment for three months, forfeiture of $200.90 pay per

month for three months, and reduction to airman basic

(E-1). Article 66(c), UCMJ, 10 U.S.C. § 866(e). Ac-

cordingly, the findings uf guilty and the sentence, both as

modified, are

AFFIRMED.

Senior Judge KASTL and Judge MURDOCK concur.

lSa

APPENDIX C

| DOD LOGO |

DEPARTMENT OF THE NAVY

COMMANDER U.S. FACILITY SuBIC BAY

COMMANDER, U.S. NAVAL ForcES PHILIPPINES

Representative of the Commander in Chief

U.S. Pacific Command in the Philippines

FPO San Francisco 96651-0051

USCINCPACREPHILINST 4066.7R

007

4 Apr. 1986

USCINCPAC REP PHIL INSTRUCTION 4066.7R _ ,

Subj: GENERAL MERCHANDISE CONTROL REGULATIONS IN

THE REPUBLIC OF THE PHILIPPINES

Ref: (a) Philippines-U.S. Military Bases Agreement of

1947, as amended

(b) American Embassy Note 546 of 11 Feb 1965

(c)} RP Department of Foreign Affairs Note 4617

of 7 Mar 1966

(d) RP Department of Foreign Affairs Note 1397-

58 of 15 May 1958

(e) RP Office of the Chief of Staff Itr of 19 Oct

1977

(fi Deputy Minister of Finance, Republic of the

Philippines ltr of 20 Oct 1981

(g) USCINCPACREPPHILINST 5840.2B

(hi Joint Travel Regulations, Vols I and II

(1) Deputy Minister of Finance, Republic of the

Philippines Itr of 6 Nov 1985

nel: (1) Exchange and Commissary Privileges and

-urchase Limitations

(2) Purchase of Controlled Items

3! Information on Retiree Store Outlets, List of

Items and Authorized Quantities Approved for

Sale

19a

(4! Acquisition, Possession and Disposition of Per-

sonal Property

(5) Acquisition, Possession and Disposition of

Motor Vehicles

(6) Prohibited Acts and Practices

(7) Duty-Free Entry into or ‘etention within the

tepublic of the Philippines of personal prop-

erty belonging to certain categories of U.S.

Armed Forces Personnel

(8) Listing of PHILGEN Forms for Use by Mer-

chandise Control Offices

PRIVACY ACT STATEMENT

This regulation defines authorized and prohibited conduct

With respect to tax-exempt merchandise, It js applicable

to, and binding upon, all active duty, reserve, and retired

military personnel: civilian employees of the United

States Government: U.S. national contractor personnel;

technical representatives. as approved by the cognizant

commander; and dependents accompanying military or

civilian personnel assigned or attached, or in a transient

Status, at U.S. installations or facilities Within the Re-

public of the Philippines. Violation of this regulation may

result in disciplinary action under the provisions of the

Uniform Code of Military Justice, the Federal] Personnel

Manual, and appropriate administrative actions, inelud-

ing but not limited to, revocation of tax-free purchase

privileges and revocation of area entry approval. This

regulation is affected by the Privacy Act of 1974 and the

information requested herein is solicited under the au-

thority of PL 78-380, 58 Stat 626, as implemented by the

agreement between the United States of America and the

Republic of the Philippines concerning mulitary bases, 14

March 1947, as amended.

1. Purpose. To promulgate merchandise control policy to

fulfill the spirit, intent, and letter of United States Govy-

ernment agreements with the Government of the tepublic

of the Philippines.

20a

2. Cancellation. CINCPACREPPHILINST 4066.7Q

3. Scope. This instruction covers the acquisition of per-

sonal property, privately owned vehicles, and merchandise,

which is introduced into the Republic of the Philippines

(RP) without payment of RP taxes and duty; its posses-

sion and disposition by tax-exempt U S. personnel; estab-

lishes and delineates certain requirements and_ prohibi-

tions; and prescribes forms for implementation of the

Merchandise Control program. Merchandise includes, but

is not limited to, food, liquors, cigarettes, petroleum prod-

ucts, household effects, and motor vehicles. As of 1 Janu-

ary 1978, there is a RP ban on sales of tax-exempt mer-

chandise to nontax-exempt persons. Violation of this reg-

ulation and enclosures, or related or implementing in-

structions and regulations, by persons subject to the Uni-

form Code of Military Justice (UCMJ) is punishable

under the UCM, in addition to subjecting the violator to

appropriate administrative measures. Appropriate ad-

ministrative action will also be taken with respect to vio-

lations by persons not subject to the UCMJ. Civilian em-

ployees who violate merchandise control regulations are

subject to disciplinary and administrative action in ac-

cordance with appropriate regulations.

4. Background. Reference (a) and subsequent exchanges

of notes between the Governments of the United States

and the RP constitute the basic legal authority for the

establishment and maintenance of the U.S. military bases

in the RP, including the control of all tax-free goods

brought into the bases. Reference (a) provides in part

that:

Article V

“No import, excise, consumption, or other tax, duty, or

impost shall be charged on material, equipment, supplies,

or goods, including food stores and clothing, for the ex-

clusive use in the construction, maintenance, operation,

or defense of the bases, consigned to, or destined for, the

United States authorities and certified by them to be for

such purposes.”

21a

Article XI

“1. It is mutually agreed that the United States shall

have the right to bring into the Philippines members of

the United States military forces and the United States

nationals employed or under a contract with the United

States together with their families, and technical per-

sonnel of other nationalities (not being persons excluded

by the laws of the Philippines) in connection with the

construction, Maintenance, or operation of the bases...

2. If the status of any person within the Philippines and

admitted thereto under the foregoing paragraph shall be

altered so that he would no longer be entitled to such

admission, the United States shall notify the Philippines

and shall, if such person be required to leave the Philip-

pines by the latter Government, be responsible for provid-

ing him with a passage from the Philippines within a

reasonable time, and shall in the meantime prevent his

becoming a public responsibility of the Philippines.”

* * * *

in company with their sponsors. A depedent whose Privi-

lege Card is overstamped with a “V” will not be author-

ized a cigarette, liquor, or wine ration.

f. Personnel (sponsor and dependents) who have had

their Privilege Card suspended revoked are prohibited

from entering the commissary, exchange, convenience out-

lets, and other retail outlets (Loot Locker, Mad Money

Mart, ete.) during the period of suspension. revocation.

Prompt disciplinary administrative action shall be taken

against violators.

g. Privilege Cards issued to personnel identified in sub-

paragraphs 5b, ¢c, and d who are implicated in serious

merchandise control violations will be confiscated and the

privilege to purchase tax-free merchandise may be perma-

nently revoked.

h. Sponsors are responsible for merchandise control

violations committed by their dependents. Accordingly,

26a

g. The gift of tax-exempt property to nontax-exempt

persons, except that the occasional gift of an item or

group of items other than food, tobacco products, alcoholic

beverages, petroleum products, U.S. military uniform

items, and controlled items (listed in enclosure (2)),

which do not exceed a value of $15.00 in the aggregate,

is permitted. Gifts of food, tobacco products, alcoholic

beverages, petroleum products, U.S. military uniform

items, and controlled items are prohibited regardless of

value. However, reasonable quantities of homebaked con-

fections qualify as bonafide gifts.

h. Possession or maintenance of tax-exempt personal

property in an off-base residence other than the housing

noted in the records of the cognizant Merchandise Control

Activity.

i. Exiting a base or attempting to exit a base with

tax-exempt property without displaying properly issued

property passes or merchandise control documents, or

concealing or attempting to conceal tax-exempt property

when exiting the base.

j. Use of exchanges and commissaries except as au-

thorized in enclosure (1).

k. Possession or use, or attempted use, of the Privilege

Card of another, of a false Privilege Card, or of a

facsimile of a Privilege Card, with or without an intent

to deceive.

1. Use of any Privilege Card, or facsimile thereof, for

any purpose other than its intended purpose as set forth

in this instruction.

m. The use of a power of attorney to dispose of tax-

exempt property, except in cases of hospitalization or

hardship, when prior written approval has not been ob-

tained from the cognizant MCA.

n. The sale of controlled items, as identified in en-

closure (2), to any person other than by completing the

a ee ae

27a

transaction at the cognizant Merchandise Ccntrol Ac-

tivity.

0. The attempt by an individual or the conspiracy of

individuals to commit any of the prohibited acts or prac-

tices listed in this enclosure.

p. Uttering or submitting to the cognizant MCO a

false report of loss, theft, destruction, or other disposition

of personal property.

q. Failure to obtain clearance from the cognizant MCO

prior to completion of duty in the RP.

r. Failure to show possession or authorized disposition

of tax-exempt personal property when so directed by

cognizant authorities.

s. Failure to report to the cognizant Merchandise Con-

tre] Officer no later than 30 days prior to PCS departure

for purposes detailed in paragraph b.i. of this instruction.

3. Tar-Exempt Motor Vehicles. The following acts and

practices relating to the acquisition, possession, and dis-

position of motor vehicle are prohibited:

a. Disposal or sale of tax-exempt motor vehicles with-

out prior written approval of the cognizant MCA.

b. The sale of tax-exempt n.otor vehicles other than

by completing the transaction, including the execution

and transfer of documents evidencing title or ownership

and acceptance of consideration, at the cognizant Mer-

chandise Control Activity.

ce. The sale of tax-exempt motor vehicle other than in

accordance with enclosure (5) of this instruction.

d. The loan, mortgage, bailment, assignment. or simi-

lar transfers of a tax-exempt motor vehicle which permi:

actual use or possession of such exempt motor vehicle |

a nontax-exempt person even though the legal title re-

mains in a tax-exempt transferor.

e. The use of a power of attorney to enable a pe

to dispose of a motor vehicle through an agent, eo

28a

cases of hospitalization or hardship as determined to ex-

ist by the MCO.

f. Importation into or purchase in the RP of tax-

exempt motor vehicles primarily for the purpose of sale,

exchange, barter, or disposition to any person or entity,

or for any purpose other than to meet reasonable antici-

pated needs of the owner.

g. Uttering or submitting to the cognizant MCO a

false report of loss, theft, destruction, or other disposition

of a motor vehicle.

h. Failure to show possession or authorized disposition

of tax-exempt motor vehicles when so directed by cogni-

zant authorities.

i. The importation, or attempted importation, of more

than one tax exempt motor vehicle into the RP except as

authorized by this instruction.

4. Sales of tax-paid personal property and motor vehicles

originally imported by the owner pursuant to PCS orders

or other similar authority. Personal property and /or

motor vehicles imported into the RP by Philippine citizen

members of the U.S. military and which require payment

of full Philippine taxes duties may be sold to non tax-

exempt personnel only within 3 months of the member’s

PCS departure from the RP. The sale must be approved

by the cognizant MCO with the Deed of Sale accomplished

by the MCO. The tax-paid personal property and or

motor vehicle must remain in the possession of the mili-

tary member or his authorized dependents prior to the

approved sale of the items.

5. Personnel (sponsor and dependents) who have had

their Privilege Card suspended revoked are prohibited

from entering the commissary, exchange, convenience out-

lets, and other resale outlets (Loot Locker, Mad Money

Mart, ete.) during the period of suspension ‘revocation.

* * * *

TF U. S. GOVERNMENT PRINTING OFFice. 1991 301585 59005