Opposition Brief — Smalls v. United States

No. 91-437

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Hu the Supreme Court of the Guted States

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Rm THE UNITED STATES

OPPOSITION

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Albertson v. Subversive Activities Control Board,

as sacssnsoosovovosvnovessocesvesds %

Baltimore City Dep't of Social Servs. v. Boukunight,

a cnccennnsedensevoosorsscssoossocnerres 10, 11

Blackledge v. Perry, 417 U.S. 21 (A9TA)...0.0...ccccecceeeeeeee 5

Davis v. United States, 328 U.S. 682 (1946)... 6

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

McMann v. Richardson, 397 U.S. 759 (1970)...0000000...... 5,6

Menna v. New York, 423 U.S. 61 (1975)........................ 5

Shapiro v. United States, 335 U.S. 1 (1948).....00000000... 6

Tollett v. Henderson, 411 U.S. 258 (1973)...0000.000000 eee 5

United States v. Care, 40 C.M.R. 247 (C.M.A. 1969)... 4

United States v. Hilton, 29 M.J. 1036 (A.F.C.M.R.),

air, 20 M.d. 118 (C.B.A. 1990).......000ccccccseccoee00e- 2, 3, 7, 8, 9, 10

United States v. Lee, 25 M.J. 457 (C.M.A. 1988)........... 3

United States vy. Williams, 29 M.J. 112 (C.M.A. 1989). 3, 7,

a)

Constitution, treaty, and regulations:

I censcassnsvanarcedesecoossecers 4, 5,6, 9,10

Military Base Agreement with the Republic of the

I a nccondssoeceartasacesocessosevise 2

(III)

lV

Reygulations—Continued: ! Page

Genezal Merchandise Control Regulations of the

Republic of the Philippines,

USCINCPACREPPHILINST 4066.7Q:

PN VAEY PAO TI cee pesctnssasacsicsetscuasevsecteosonstic 2

Prohibited Acts and Practices.............0........ 2, 3, 6, 8, 9, 10

Jun the Supreme Court of the Guited States

OCTOBER TERM, 1991

No. 91-437

TYRONE M. SMALLS, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF MILITARY APPEALS

BRIEF FOR THE UNITED STATES

IN OPPOSITION

OPINIONS BELOW

The opinion of the Court of Military Appeals, Pet.

App. la-6a, is reported at 32 M.J. 398. The opinion of

the Air Force Court of Military Review, Pet. App. 7a-

17a, is reported at 30 M.J. 666.

JURISDICTION

The judgment of the Court of Military Appeals was

entered on June 21, 1991. The petition for a writ of

certiorari was filed on September 17, 1991. The juris-

diction of this Court is invoked under 28 U.S.C.

1259(3).

(1)

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STATEMENT

1. By agreement with the United States, the

Republic of the Philippines permits United States

servicemembers stationed there to import various

goods from abroad without paying local taxes and cus-

toms duties. USCINCPACREPPHILINST 4066.7Q,

General Merchandise Control Regulations of the

Republic of the Philippines, Privacy Act Statement 4

4 (Background), Pet. App. 20a-2la [hereinafter

GMCRI]; see GMCR Privacy Act Statement 4 1

(Statement of Purpose), Pet. App. 19a. Tax-exempt

goods are for the use of United States service-

members only; they may not be resold to Filipinos, as

such sales would deprive the Philippine government

of income from import duties. GMCR Prohibited Acts

and Practices § 2a, Pet. App. 25a; United States v.

Hilton, 29 M.J. 1056, 1041 (A.FLC.M.R.), aff'd, 50 ML.

118 (C.M.A. 1990). The agreement between the United

States and the Republic ef the Philippines imposes on

the United States an affirmative duty to ensure that

tax-exempt goods are not resold to Filipinos on the

black market. Jbid. (quoting U.S. Military Base

Agreement with the Republic of the Philippines, Art.

XVIII). ;

The incentive for the development of a black market

in tax-exempt goods is quite strong. Customs duties

in the Philippines can double the cost of some goods,

such as automobiles. See Hilton, 29 M.J. at 1042. As a

result, Filipinos can save a substantial amount of

money by buying—and United States service-

members can make a handsome profit by selling—tax-

exempt goods on the black market.

To comply with its agreement to prevent the devel-

opment of a black market, the United States Air

Force adopted regulations prohibiting service-

members from disposing of tax-free goods to individa-

3

als who are not servicemembers. GMCR Prohibited

Acts and Practices § 2a, Pet. App. 25a; see Hilton, 29

M.J. at 1048-1044. Servicemembers are also required

to “show possession or authorized disposition of” tax-

exempt property when directed to do so by military

authorities. GMCR Prohibited Acts and Practices 44

2r, 3h, Pet. App. 27a, 28a. Aware that this latter re-

quirement could raise Fifth Amendment concerns,

military courts have held that the regulations re-

quire production of the tax-free item or documenta-

tion showing lawful disposition, United States v.

Williams, 29 M.J. 112, 115 (C.M.A. 1989), but that they

may not be used to compel testimony that would in-

criminate the individual, United States v. Lee, 25 M.J.

457 (C.M.A. 1988).

2. Petitioner is a member of the United States Air

Force stationed at Clark Air Base, in the Philippines.

He purchased a tax-exempt Chevrolet Blazer and a

tax-exempt Toyota Celica, but he failed to register

either of them at the base. A merchandise control offi-

cer, noting petitioner’s failure to register the cars,

‘asked petitioner to show possession or authorized

disposition of his tax-exempt items. The officer did

not ask petitioner to admit that he made an unautho-

rized transfer of the cars, nor did he ask petitioner to

admit having ever owned or possessed them. In

response to the inquiry, petitioner failed to produce

the tax-exempt items or proof of their lawful disposi-

tion. PX 1. When petitioner requested counsel, the

inquiry was terminated.

3. Petitioner was charged with violating two pro-

visions of the GMCR by failing to show possession or

authorized disposition of tax-exempt personal proper-

ty, namely four car tires and two cars. GMCR Pro-

hibited Acts and Practices 44 2r, 3h, Pet. App. 27a,

28a. He pleaded guilty. He admitted that he had failed

4

to show possession or authorized disposition, because

he had sold the tires and cars illegally. Tr. 34-35, 38-

40. In fact, it appears that petitioner purchased both

cars solely for the purpose of selling them illegally,

since he never took possession of either one. Tr. 38-

44.

During the detailed guilty plea inquiry required in

the military system,! petitioner said he was satisfied

with the advice of both of his attorneys. Tr. 13-14.

Petitioner also acknowledged orally and in writing

that he considered his attorneys competent, that they

had discussed potential defenses that might apply, and

that it was petitioner’s decision to plead guilty. Tr.

53-54; AX 5. Petitioner did not assert a violation of

his Fitth Amendment privilege against compelled

self-incrimination.

4. On appeal to the Air Force Court of Military

Review, petitioner argued that his pleas of guilty

were involuntary because the trial judge did not ad-

vise him that he had a possible defense based on his

privilege against compelled agetmst self-incrimina-

tion. The court of military review upheld the convic-

tion, with a slight modification. Pet. App. 7a-17a. The

Court of Military Appeals granted discretionary

review and affirmed. Pet. App. la-6a.

ARGUMENT

Petitioner failed to raise a legal challenge to his

conviction before the court-martial, and instead

entered his guilty plea. Now, however, he asks this

See United States v. Care, 40 C.M.R. 247 (CLM.A. 1969

(when a military accused desires to plead guilty, the trial judge

must explain the elements of the offense(s) to the accused, ask

questions to be convinced the accused is guilty, and advise the

accused of the various rights he forfeits by his plea, such that

his plea is knowing, intelligent, and conscious)

BEST AVAILABLE COPY}

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Court to reverse his conviction on the ground that it

is inconsistent with the Fifth Amendment. Because

petitioner did not properly raise the claim below and

because the regulation is constitutional in any case,

review by this Court is unwarranted.

l. In Tollett v. Henderson, 411 U.S. 258, 267 (1973),

this Court stated:

When a criminal defendant has solemnly admitted

in open court that he is in fact guilty of the of-

fense with which he is charged, he may not there-

after raise independent claims relating to the

deprivation of constitutional rights that occurred

prior to the entry of the guilty plea.

Because petitioner failed to raise the claimed depriva-

tion of his Fifth Amendment rights before pleading

guilty, Tollett forecloses his challenge to his convic-

tion. Cf. McMann v. Richardson, 397 U.S. 759 (1970)

(guilty plea constitutes a waiver of the claim that the

government extorted a confession from the defendant,

in violation of the Fifth Amendment).

Relying on Blackledge v. Perry, 417 U.S. 21 (1974),

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

tioner asserts that his challenge is not) barred

because it goes to the very power of the government

to bring him into court. Specifically, petitioner main-

tains that the offense to which he pleaded guilty is

not an offense at all. It is by no means clear, however,

that the claim petitioner now seeks to raise is one

that challenges the authority of the government to

oring him to trial) His claim is simply that the regu-

lations at issue required him to incriminate himself,

which is not necessarily different from the claim that

a law enforcement officer forced petitioner to incrim-

inate himself under a different regulation. In either

Jase, petitioner's challenge is not to the govern-

6

ment’s authority to try him, but is to the govern-

ment’s use of legal or extra-legal authority to wring

incriminating evidence from him. That type of claim

is one that is waived through a guilty plea. McMann

v. Richardson, supra. In any event, the regulation at

issue in this case is constitutional.

2. It is well established that the government may

require the keeping of records that may be inspected

and used in prosecuting statutory violations commit-

ted by the recordkeeper himself. Shapiro v. United

States, 335 U.S. 1, 32-33 (1948); Davis v. United

States, 328 U.S. 582, 589-590 (1946). As this Court has

explained, the Fifth Amendment privilege may not be

asserted “in relation to ‘records required by law to be

kept in order that there may be suitable information

of transactions which are the appropriate subjects of

governmental regulation and the enforcement of

restrictions validly established.”” Shapiro, 335 U.S.

at 33 (quoting Davis, 828 U.S. at 589-590). That set-

tled principle controls this case.

a. To comply with its treaty obligations with the

tepublie of the Philippines, the United States Air

Force prohibits the sale of tax-exempt items to per-

sons who are not servicemembers. The pertinent

regulation requires servicemembers to show, on

demand from an appropriate authority, “possession or

authorized disposition of” tax-exempt property.

GMCR Prohibited Acts and Practices ¥¥ 2r, 3h, Pet.

App. 27a, 28a. It cannot be claimed that the restric-

tions on sales of tax-exempt goods are not “validly

established,” Shapiro, 385 U.S. at 33; the Air Force

has a weighty and legitimate interest in upholding its

treaty obligations by prohibiting its members from

black-marketing tax-exempt goods. Nor can it be

asserted that the transactions are not “the appropri-

ate subjects of governmental regulation.” [bid. The

7

Air Force may legitimately enforce its restrictions

by requiring servicemembers to maintain records of

transactions conducted in tax-exempt goods. Peti-

tioner does not contend otherwise. Instead, petitioner

claims that the regulation is not a recordkeeping

requirement at all because it does not require him “to

keep any records.” Pet. 6-7.

As the Court of Military Appeals explained in

United States v. Williams, 29 M.J. at 115, the Air

Force regulations require the possession of the item

or “some type of documentation or other papers show-

ing lawful disposition.” See Hilton, 29 MJ. at 1049

(quoting Williams). Indeed, military officials are

permitted to request production of only the item or

documents reflecting its disposition: “Different ques-

tions or additional questions in combination with the

original request to produce the item or documenta-

tion are not authorized.” Williams, 29 MJ. at 115 &

n.2: Hilton, 29 M.J. at 1048-1049. Clearly, the re-

quested “documents” or “papers” are required

records.

There is no force to petitioner’s suggestion that

the regulation cannot be a record-keeping require-

nent since it does not prescribe the use of a particu-

lar form. Of course, the Air Force could have pre-

scribed a specific form, but the Air Force was also

free to permit servicemembers to retain the required

information in the manner they found most conve-

nient. A regulation requiring persons to maintain

bona fide documentation does not cease to be a

recordkeeping requirement simply because it does

not dictate the precise manner in which the informa-

tion is to be recorded or maintained.”

¢ Petitioner also attempts to characterize the regulation as

requiring testimony rather than documents by referring to the

reyulation as a “show and tell” requirement. See Pet. 4-9 But

8

b. Petitioner challenges the recordkeeping

requirement by invoking the exception enunciated in

Albertson vy. Subversive Activities Control Board,

382 U.S. 70 (1965), and Marchetti v. United States, 390

U.S. 39 (1968). Pet. 6-8. In Albertson and Marchetti

this Court held various registration requirements

unconstitutional on the ground that they had a direct

tendency to incriminate the registrants and were

directed at a “selective group inherently suspect of

criminal activities.” Albertson, 382 U.S. at 79;

Marchetti, 390 U.S. at 57. By contrast, in this case

the disclosure requirement is directed at all military

servicemembers—active duty, reserve, retired, their

dependents, and civilian employees-—if they purchase

tax-free items in the Philippines. Such persons do not

constitute an inherently suspect group; on the con-

trary, the group includes virtually all military per-

sonnel stationed in the Philippines.

In Albertson the government demanded admissions

that the individuals were members of the Communist

Party at a time when such membership was arguably

criminal. 382 U.S. at 77. And in Marchetti the govern-

ment demanded registration of the defendant’s wager-

ing business when wagering was illegal. 390 U.S. at

48-49. Because those laws required disclosure of ille-

gal conduct, the individuals could not compiy with the

registration requirements without incriminating

themselves. The recordkeeping requirement in this

that characteristization is misleading. The regulation does not

require the servicemember to “tell” anything; it requires only

that the servicemember “show” the item or authorized disposi-

tion. GMCR Prohibited Acts and Practices 44 2r, 3h, Pet. App.

27a, 28a. The military courts have held that the regulation

extends to documents and papers showing authorized disposi

tion only; it does not authorize military officials to ask any-

thing more. Williams, 29 M.J- at 115; Hilton, 29 M_J. at 1046.

Hy)

‘ase, by contrast, did not compel anyone to incrimi-

nate himself.

GMCR Prohibited Acts and Practices 9 2r re-

quires the servicemember to show one of two things:

“possession” of the tax-exempt item, or “authorized

disposition” of it. Neither is incriminating. If the ser-

vicemember shows “possession” as required, he has

not incriminated himself, because possession is legal.

Nor has he incriminated himself if he shows

“authorized disposition,” since an authorized disposi-

tion is also legal.

Petitioner’s assertion that he could be “prosecuted

* * * for refusing to answer questions as to the loca-

tion of thle] items,” Pet. 5, stems from a misreading

of the regulations. The text of the regulations re-

quires only proof of possession or authorized disposi-

tion: it does not require the individual to give the

location of the item. In fact, as the Court of Military

Appeais has explained, the regulation does not permit

the suspect to be questioned about the whereabouts of

the item. See Williams, 29 MJ. at 115 & n2

(“Different questions or additional questions in com-

bination with the original request to produce the item

or documentation are not authorized.”); Hilton, 29

MJ. at 1048-1049.

Petitioner’s situation is conceptually no different

from that of a motorist who is asked to produce, under

threat of legal sanction, proof that his car is properly

registered, Such a request does not violate the Fifth

Amendment, for proof of registration does not tend to

incriminate the motorist. The case here presents the

same analysis. GMCR Prohibited Acts and Practices

paragraphs 2r and 2h do not compel servicemembers

to admit they have illegally disposed of property; it

only requires them to show lawful possession or

authorized disposition. It was for failing to make that

10

showing, not for failing to incriminate himself, that

petitioner was prosecuted.

3. Even if the regulation were not a recordkeeping

requirement, it still would not violate the Fifth

Amendment. As this Court explained in Baltimore

City Dep’t of Social Servs. v. Bouknight, 493 U.S.

549, 558 (1990), “[wihen a person assumes control over

items that are the legitimate object of the govern-

ment’s non-criminal regulatory powers, the ability to

invoke the privilege is reduced.” Tax-exempt items

are certainly a legitimate object of governmental

regulation. Pursuant to its treaty obligations with

the Republic of the Philippines, the Air Force must

regulate the transfer of such items. To that end, the

Air Force has promulgated regulations that permit

servicemembers to purchase certain merchandise

introduced into the Philippines without the payment

of taxes, provided they comply with certain require-

ments and conditions enumerated in the regulations.

Pet. App. 20a. One of the conditions is that the

servicemember be willing to show possession or au-

thorized disposition of the item when directed to do so

by appropriate military authorities. Pet. App. 27a,

28a.

Nothing requires servicemembers to subject them-

selves to the regulation; they are free to avoid the

regulation by not purchasing tax-exempt items. But,

in the words of the Air Force Court of Military

Review, “lilf [they] want to play the game, [they] have

to comply with its rules.” Hilton, 29 M.J. at 1046. By

purchasing the tax-exempt items, petitioner

“submitted to the routine operation of the regulatory

interests and agreed” to maintain the items or proof

of disposition “in a manner consonant with the * * *

regulatory system and subject to inspection,”

Bouknight, 493 U.S. at 558.

1]

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

WILLIAM R. DUGAN, JR.

Col, AFLSA, USAF

BRENDA J. HOLLIS

Lt. Col., AFLSA, USAF

JAMES C. SINWELL

Capt, AFLSA, USAF

Appellate Government Counsel

Government Trial and

Appellate Counsel Division

Aur Force Legal Services Division

NOVEMBER 1991