Petition for Writ of Certiorari — Medley v. United States

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Gurcere Goer, BS

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No.

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Jn the Supreme Court of the Unitev- States

OCTOBER TERM, 1991

ROSEMARY M. MEDLEY, PETITIONER

V.

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

PETITION FOR A WRIT OF CERTIORARI

MICHAEL D. BuRI

Captain, Air Force Legal

Services Agency

United States Air Force

AFLSA/JAJID

Bldg 5683

Bolling AFB, DC 20332-6128

(202) 767-1562

Counsel of Record

Jiri Rey R. OWENS

Colonel, Aur Force Legal

Services Agency

United States Aur Force

December 199] Counsel for Petitioner

QUESTION PRESENTED

Whether petitioner’s right to avoid compulsory self-

incrimination under the Fifth Amendment to the United

States Constitution was violated by her conviction for fail-

ing to report to military authorities the drug use of those

with whom she had used drugs.

(1)

TABLE OF CONTENTS

Page

EE a ee l

ag a A 2

Constitutional Provision Involved .............. F

een Gr OO RO Le eee 2

Reasons for Granting the Writ ................. 3

A 1]

ee ek wa bebe eb’ la

ge Ta

TABLE OF AUTHORITIES

CASES:

United States Supreme Court Decisions:

Albertson v. Subversive Activities Control

Board, 362 U.S. 70(1965) ............... 4

Baltimore City Dep’t of Soctal Services vy.

Bouknight, 493 U.S. 549 (1990) .......... 5

California v. Byers, 402 U.S. 424 (1971) ..... 4,5,7

Grosso v. United States, 390 U.S. 62 (1968) .. 4

Hoffman v. United States, 341 U.S. 479

ER SE ee 4

Marchetti vy. United States, 390 U.S. 39

ee a dks pale «so 4,5

Miranda v. Arizona, 384 U.S. 436 (1966) .... 3

Federal Circuit Court of Appeals Decisions:

United States v. Kuh, 541 &.2d 672 (7th Cir.

a a gi ve bse ea bn 8 4

United States Court of Military Appeals Decisions:

United States v. Clifton, 15 M.J. 26 (C.M.A.

NE Sa 3

(iv)

CASES — Continued: Page

United States v. Dupree, 24 M.J. 319 (C.M.A.

PRUE eee eke cen eh Oe heer LAA 5

United States v. Heyward, 22 M.J. 35

ae EE yw eek bec ee ked ea deecet: 5,9

United States v. Hoff, 27 M.J. 70 (C.M.A.

a PER GA ARIE iy che ter tol catgicns pee baty! 6

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

WS bg bak Canoe ele bee ae eS a 4

United States v. Medley, 33 M.J. 75 (C.M.A.

PE bb ee eas aS eae Cee ee ee ee a

United States v. Reed, 24 M.J. 80 (C.M.A.

IR rh i 8 ee eee eee eae E 5

United States v. Thompson, 22 M.J. 40

ee Ss ec aes a ees 5

Courts of Military Review Decisions:

United States v. Brunton, 24 M.J. 566,

CG as ees CNTR noe cr ee ee ees 10

United States vy. Medley, 30 M.J. 879

CAL Bs NOD svc cee pewseseaceus |

United States v. Tyson, 2 M.J. 583

Ca Ses SPE ceca era tea eeens 4

State Court Authorities:

State v. Carson, 262 S.E.2d 918 (S.C. 1980) .. 6

CONSTITUTIONAL PROVISIONS:

eee ee oe rr me oe. etn ies ee y Fa

STATUTORY AUTHORITIES:

TT SA. BB re ee iri Mek k tae

10 U.S.C. § 867(h) (Supp. 1990) ............

Se ee EG aie oe Se ee

ee bo

(Vv)

STATUTORY AUTHORITIES — Continued:

10 U.S.C. § 912(a) (1988)... 0.200 ..

28 U.S.C. § 1259(3) (1988) ................

MISCELLANEOUS:

R. Perkins and R. Boyce, Criminal Law, 742

fe es es ss ee eee ean ea cete

In the Supreme Court of the United States

OCTOBER TERM, 1991

No.

ROSEMARY M. MEDLEY, PETITIONER

Vv.

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

The petitioner, Rosemary M. Medley, respectfully prays

that a writ of certiorari issue to review the judgment of the

United States Court of Military Appeals entered in her

case On September 4, 1991.

OPINIONS BELOW

The United States Air Force Court of Military Review

issued its reported decision affirming petitioner’s convic-

tion for dereliction of duty, in violation of Article 92,

UCMJ, 10 U.S.C. § 892 (1988) and wrongful use of co-

caine in violation of Article 112a, UCMJ, 10 U.S.C.

§ 912a (1988) on April 18, 1990. United States v. Medley,

30 M.J. 879 (A.F.C.M.R. 1990) (Appendix A). (The court

also set aside a specification alleging dereliction of duty.)

The decision of the United States Court of Military Ap-

peals affirming the Air Force Court of Military Review is

reported at 33 M.J. 75 (C.M.A. 1991) (Appendix B).

(1)

JURISDICTION

The final erder of the United States Court of Military

Appeals was entered on September 4, 1991. The jurisdic-

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

(1988) and 10 U.S.C. § 867(h) (Supp. 1990).

CONSTITUTIONAL PROVISION INVOLVED

The Fifth Amendment of the Constitution of the United

States provides in pertinent part:

No person shall . . . be compelled in any criminal case

to be a witness against himself .. .

STATEMENT OF THE CASE

Petitioner was convicted, contrary to her pleas, of

wrongful use of cocaine (Additional Charge I) and derelic-

tion of duty for failure to-report those military members

with whom she allegedly had used the drugs (Additional

Charge II).

The evidence against petitioner consisted of the

testimony of four military members: Technical Sergeant

(TSgt) Ennis Wallace, Staff Sergeant (SSgt) Michael

Banks, Airman (Amn) Sandra Fairley, and Airman Basic

(AB) Andra Riles. All of these witnesses were admitted

drug abusers charged with similar offenses who testified

under grants of immunity that petitioner had used with

them. Petitioner was apparently aware of these and other

instances when this group of individuals had used illegal

narcotics. She did not inform any military or law enforce-

ment authorities of this knowledge.

The parties stipulated that Air Force Regulations im-

pose an affirmative obligation on noncommissioned of-

ficers to disclose such knowledge.

The Air Force Court of Military Review concluded that

petitioner’s conviction for dereliction of that duty for fail-

ing to report the drug use of those with whom she had used

drugs with respect to the times when she actually used

drugs herself could not stand. The court found that requir-

ing such a disclosure trampled petitioner’s right to be free

from compulsory self-incrimination. The court, however,

affirmed findings of guilt for dereliction of duty relating

to her failure to inform on her friends regarding times

when she was present, but did not personally use drugs.

The United States Court of Military Appeals affirmed the

decision of the Air Force Court of Military Review.

Such additional facts as may be necessary to the disposi-

tion of this matter are contained in the reasons for grant-

ing the writ, .2fra.

REASONS FOR GRANTING THE WRIT

The requested Writ is appropriate in this case because

the requirement that a service member report the drug

abuse of those with whom that person has used drugs

blatantly violates the constitutional rights of that member.

No person in a criminal case may be compelled to be a

Witness against himself. U.S. Const., amend. V; Miranda

v. Arizona, 384 U.S. 436 (1966). The fundamental right of

an individual to be free from compulsory © self-

incrimination is applicable to service members as well as

civilians. See United States v. Clifton, 15 M.J. 26(C.M.A.

1983). The Uniform Code of Military Justice specifically

provides that “[n]o person subject to this chapter may

compel any person to incriminate himself or to answer any

question fhe answer to which may tend to incriminate

him.” Article 31(a), UCMJ, 10 U.S.C. § 831 (1988) (em-

phasis added).

4

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

Court held that the privilege against self-incrimination

protected an individual from prosecution for failing to

report to the Internal Revenue Service income derived

from illegal gambling activities. See Grosso v. United

States, 390 U.S. 62 (1968); Albertson v. Subversive Ac-

tivities Control Board, 382 U.S. 70 (1965); see generally

United States v. Tyson, 2 M.J. 583 (N.M.C.M.R. 1976).

This Court focused on whether the hazard of self-

incrimination was “real and appreciable” and held that it

was the substantiality of the risk that the disclosure would

result in self-incrimination that controls the applicability

of the Fifth Amendment’s protection. Marchetti, at 53; see

California v. Byers, 402 U.S. 424 (1971); Hoffman v.

United States, 341 U.S. 479 (1951). Because, as in the case

at bar, Marchetti’s statements were to be made readily

available to law enforcement officials, this Court con-

cluded that the risk was so substantial as to require rever-

sal of the conviction.

The protections of the Fifth Amendment extend, not

only to statements that would in themselves support con-

viction, but, likewise, to those which would furnish links

in the chain of evidence that could lead to prosecution,

provided that the individual has reasonable cause to

believe that he might thereby be convicted of a crime.

Hoffman, supra, at 486; United States vy. Kuh, 541 F.2d

672 (7th Cir. 1976).

Military law enforcement personnel may not use a

regulatory disclosure requirement to subvert a member’s

right to be free from compulsory self-incrimination or as a

pretext for obtaining evidence of crimes in violation of the

Fifth Amendment. United States v. Lee, 25 M.J. 457

(C.M.A. 1988). In Lee, the United States Court of

Military Appeals held that military authorities could not

use a “show and tell” regulation, requiring the disclosure

of all duty free goods possessed by a member in the

Republic of Korea, to compel the disclosure of in-

criminating information otherwise protected by the Fifth

Amemdment and Article 31, UCMJ.

This case is dissimilar to Baltimore City Dept. of Social

Services v. Bouknight, 493 U.S. 549 (1990), in which this

Court determined that the Fifth Amendment did not pro-

tect a mother from complying with a ccurt order, pursuant

to State social services regulations, to produce the body of

her infant son. (The Court expressly left open the uses to

which testimonial evidence derived from Bouknight’s

disclosures could be put). In Bouknight, this Court found

that the State’s regulatory scheme promoted state interests

unrelated to the enforcement of its criminal laws. See

California v. Byers, supra. (In vigorous dissent, Justices

Marshall and Brennan found that the required disclosure

rode roughshod over Bouknight’s constitutional right to

be free from compelled self-incrimination). In the case at

bar, however, petitioner was convicted of dereliction for

failure to follow a regulatory directive that she reveal

criminal conduct of which she was aware. As in Marchetti,

supra, this case involves the failure to disclose criminal

conduct of “a select group inherently suspect of criminal

activities.” Marchetti, at 57. The Bouknight rationale is,

therefore, inapplicable.

In United States v. Heyward, 22 M.J. 35 (C.M.A. 1986)

the Court of Military Appeals recognized that the privilege

against compulsory self-incrimination may excuse a

failure to report the illegal drug activity of others where

the witness to drug use is culpably involved in the activity

himselt. See United States v. Reed, 24 M.J. 80 (C.M.A.

1987); United States v. DuPree, 24 M.J. 319 (C.M.A.

1987); United States v. Thompson, 22 M.J. 40 (C.M.A.

1986); U.S. Const., amend. V. The court dismissed the

dereliction allegation in its entirety, despite the fact that

6

Heyward was involved in using drugs on only 3 of the 5 oc-

casions that he failed to report. The court found that the

membeis may have convicted Heyward of dereliction of

duty for failing to report the same drug abuse to which he

was a principal. Because such a conviction would violate

Heyward’s rights under the Fifth Amendment, the find-

ings of guilty were disapproved.

In the instant case, requiring petitioner to report the

drug abuse of those with whom she had used in the past

would have necessarily resulied in her incriminating

herself. The risk of self-incrimination was therefore very

real and very appreciable. As a consequence, her convic-

tion of dereliction of duty for failure to so report can not

stand.

This case is unlike United States v. Hoff, 27 M.J. 70

(C.M.A. 1988), in which the United States Court of

Military Appeals held that the privilege against com-

pulsory self-incrimination did not excuse the failure to

report oihers in whose criminal activity Hoff was involved

only as an accessory after the fact. The court, in Hoff, ar-

rived at its conclusion by reviewing the history of the of-

fense of misprison of a felon and determined that the of-

fense required more than mere silence but that additional

affirmative acts underlie such prosecutions. Hoff, at 72;

see State v. Carson, 262 S.E.2d 918 (S.C. 1980). Quite

unlike the case at bar, Hoff was not involved in the

underlying criminal conduct of those he subsequently pro-

tected. Hoff’s additional “positive acts” in concealing the

criminal conduct of his larcenous shipmates was deter-

mined to be separate and apart from the theft offenses

that they commitied. Here, however, petitioner’s use of

drugs was intertwined with the uses of the individuals that

she was required to report.

In affirming petitioner’s conviction, the Air Force Court

of Military Review focused its analysis on the faci that the

findings of the trial court reflect that petitioner did not ac-

tually use drugs every time others in her company did. The

court viewed petitioner’s position as one only culpably in-

volved in discreet instances, severable from other instances

in which she was not so involved. The lower court stated

that, while revealing the drug use of her co-actors would

constitute “professional suicide”, requiring that revelation

did not violate petitioner’s fundamental right to be free

from compulsory self-incrimination.

Any hesitancy to report the drug use of these other

individuals, however, was certainly not the product of

petitioner’s concern for her resumé. The uses of this group

appear so intertwined that the entire process actually con-

stituted an ongoing course of conduct, with each in-

dividual culpably involved at different specific times. Each

discreet use was, therefore, intricately related to each

Other use. Because these uses were so closely related, no

member could have reported the use of any of his co-

actors without necessarily revealing his own involvement.

Informing law enforcement agents of any aspect of this

behavior would have necessarily and most certainly ex-

posed the informant to criminal prosecution, not mere

professional embarrassment.

The United States Court of Military Appeals agreed

with the Court of Review, stating that “. . . the possibility

of touching off a chain reaction that might come back to

bite her [petitioner] is not the litmus test for self-

incrimination.” United States v. Medley, 33 M.J. 75, 77

(C.M.A 1991). Citing California v. Byers, supra, the

Court of Military Appeals contended that:

We have never intimated that it is lawful or excusable

for a person in a position of military leadership to

consciously ignore the blatant criminal conduct of

subordinates. This classic duty not to tolerate mal-

‘

feasance cuts to the very core of military leadership

and responsibility. It is a duty with respect to others

that clearly exceeds the duty of ordinary citizens. Cf.

R. Perkins and R. Boyce, Criminal Law, 742 (3d ed.

1982).

United States v. Medley, 33 M.J. 75, 77 (C.M.A. 1991).

The court concluded that petitioner’s noncommissioned

officer status, therefore, provided a policy in favor of

disclosure that overcame the infringement on petitioner’s

right to avoid compulsory self-incrimination.

That decision was clearly wrong —the violation of peti-

tioner’s constitutional right to avoid compulsory self-

incrimination in this case was in no way overcome by peti-

tioner’s military status. The Air Force Court of Military

Review recognized as much when it set aside the findings

of guilty regarding the dereliction allegation relating to the

times that petitioner actually used drugs with those whom

she is accused of failing to report. A service member does

not shed his or her rights under the Fifth Amemdment

when the uniform is donned. If the military felt that peti-

tioner’s conduct was inconsistent with leadership, the ap-

propriate response would be to remove her from her

leadership position. The application of a patently un-

constituttonal criminal sanction, however, should not be

permitted to stand under these circumstances.

As the Court of Review noted, the government received

an “unexpected buon” when the members found petitioner

guilty of failing to report uses on divers Occasions, but

guilty of using cocaine on but a single occasion. Apparent-

ly, Additional Charge | and Additional Charge II were

originally charged in the alternative, i.e., either petitioner

used cocaine with her friends or she was derelict by failing

to report their use. Had she been found guilty as charged,

even the prosecution conceded that the dereliction offense

9

would have failed and the military judge so instructed. (R.

265-266). It is manifestly unfair to penalize petitioner for

the clearly unintended consequences of a jury’s vote to

partially acquit the accused.

The jury’s findings merely excepted the words “on divers

occasions”, without specifying any more exact time for the

presumably single use of which they convicted. (R. 282;

App. Exh. XIX). The evidence in the case does little io

clarify which of the numerous uses attested to by the pros-

ecution witnesses was intended. The court members could

have been referring to an alleged use at the home of Ellis

Lindsey in August, 1987. (R. 82). The court could have in-

tended to convict of an alleged use at the Overtime Hotel

in the “fall of 1987”. (R. 150, 163, 195). Perhaps the jury

believed petitioner used cocaine at her own home in

November of 1987. (R. 199-201). Or the court members

may have had some other occasion in mind. It 1s simply

impossible to determine from the vague testimony ad-

duced at trial and the ambiguous findings of the court

members to what specific date the finding of guilty regard-

ing Specification 2 under Additional Charge | was

directed. It is, therefore, unclear that petitioner was not

convicted of dereliction for failing to report a use to which

she was a principal. Heyward, supra, at 38.

Petitioner does not argue that culpable involvement

with another necessarily vitiates any obligation to reveal

even Wholly unrelated criminal conduct by that other per-

son. The application of the Heyward rationale necessarily

requires a balancing of society’s interest in ferretimg out

criminal conduct and the individual’s fundamental right to

be free from compulsory self-incrimination. Heyward,

supra, at 37. Where, as here, however, the conduct is so

closely related in both time and nature, how can it be said

that petitioner would be able to make disclosures with

respect to One incident without subjecting herself to at

10

least the potential of incriminating herself with respect to

the other incidents? See United States v. Brunton, 24M.J.

566, 571 (N.M.C.M.R. 1987). The Court of Military

Review recognized this necessary balancing when it disap-

proved the findings of guilt regarding the allegation of

dereliction for failure to report individuals using mari-

juana while petitioner apparently used cocaine. The ques-

tion is “where shall the line be drawn?” Petitioner respect-

fully submits that, while there is no “bright line” answer to

that question, where, as here, there exists a real and ap-

preciable risk that the required disclosure will result in

self-incrimination, the line should fall on the side of pro-

tecting the individual’s fundamental rights.

CONCLUSION

The petitioner’s case is worthy of Supreme Court

review. In particular, this case offers a unique Opportunity

to address the military’s authority to suppress a service

member’s constitutional right to be free from compulsory

self-incrimination. Petitioner respectfully requests that

this Honorable Court grant her Petition for a Writ of Cer-

tiorarl.

Respectfully submitted,

MicHALi D. BURI

Captain, Aur borce Legal

Services Agency

United States Aur Force

AFLSA/JAID

Bldg 5683

Bolling ALB, DC 20332-6128

(202) 767-1562

Counsel of Record

JibeREY R. OWENS

Colonel, Aur Force Legal

Services Agency

United States Aur Force

December 199] Counsel for Petitioner

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APPENDIX A

UNITED STATES AIR FORCE

COURT OF MILITARY REVIEW

ACM 28012

UNITED STATES

V.

SERGEANT ROSEMARY M. MEDLEY, FR 230-94-5489

UNITED STATES AIR FORCE

Sentenced adjudged 6 July 1989 by GCM convened at

Langley Air Force Base, Virginia. Military Judge: Michael

C. Callinan.

Approved sentence: Bad conduct discharge, confinement

for two (2) years, forfeiture of six hundred dollars

($600.00) pay per month for two (2) years and reduction to

airman basic.

Appellate Counsel for the Appellant: Mr. Ronald

Douglas, Washington, D.C.; Colonel Richard F. O’Hair

and Captain Michael D. Burt. Appellate Counsel for the

United States: Colonel Joe R. Lamport, Colonel Robert

E. Giovagnoni, Major Terry M. Petrie and Captain David

G. Nix.

Betore

BLOMMERS, KASTE and MURDOCK

Appellate Military Judges

(la)

DECISION

KASIL, Senior Judge:

Sergeant Rosemary Medley was found guilty of derelic-

tion of duty and wrongful use of cocaine, violations of Ar-

ticles 92 and 112a, UCMJ, stemming from events occur-

ring from July 1987 to January 1988. The Government

alleged that the appellant: (a) used cocaine at various times

with other military members; and (b) observed these

fellow service personnel using drugs on other occasions

but failed to report it.!

Sergeant Medley asserts in her brief and in oral argu-

ment before us that United States v. Heyward, 22 M.J. 35

(C.M.A 1986), bars her conviction tor all the dereliction

of duty offenses. We disagree.

4d Duty to Report Offenses and the “Heyward Exception”

A

Personnel are required by regulation to report to proper

authority the use of drugs by other service members.

Despite this, the Hleyward case provides one narrow excep-

tion based on self-incrimination grounds:

[W]e hold that where, at the time the duty to report

arises, the witness to drug abuse is already an ac-

cessory or principal to the illegal activity that he fails

to report, the privilege against compelled selt-

incrimination may excuse his non-compliance.

Heyward, 22 M.J. at 35.

' At trial, the parties stipulated that the duty to report the illegal use

ot drugs by military subordinates was imposed by Air Force Regula

tions 30-1, 30-2, and 39-2, as well as by a custom of the service.

3a

The “Heyward exception” is of no benefit to this ap-

pellant. She was convicted of failing to report only as to

those occasions on which she herself did not use drugs. In

short, the Heyward exception is inoperative on the facts.

B

The appellant, however, seeks to cobble together

another type of Heyward defense. In essence, her theory is

this: “For purposes of this appeal, you can postulate that |

am involved in occasional drug use with these friends.

Sometimes I do drugs with them, other times I socialize

with them but don’t participate. Practically speaking it

would be professional suicide for me to reveal any of their

drug use—they will get even and tell about the times I did

do drugs with them.”

In our judgment, the appellant’s argument is Overcome

by the Heyward rationale. In that case, Technical Sergeant

Heyward used marijuana three times during a four-month

period; he also failed to report use by his companions on

other occasions. Heyward, 22 M.J. at 38. Anything which

Sergeant Medley says in her behalf today could also be

said for Technical Sergeant Heyward. Yet the Court of

Military Appeals did not grant him relief on this basis. We

find Heyward outcome-determinative. See also United

States v. Reed, 24M.J. 80(C.M.A. 1987); United States v.

Thompson, 22 M.J. 40 (C.M.A. 1986).

Neither can the appellant take comfort from United

States v. DuPree, 24 M.J. 319 (C.M.A. 1987). That case

involved a one time frolic by a guard; his prisoners’ mari-

juana use was inextricably intertwined with appellant’s

misconduct in taking the prisoners off base, consuming

alcohol with them, and failing to return them to jail on

time. It was for this reason that his dereliction of duty con-

viction could not stand. DuPree, 24 M.J. at 321.

da

Perhaps the case offering the most hope to the appellant

is United States v. Brunton, 24 M.J. 566, 571

(N.M.C.M.R. 1987). We find the case distinguishable on

its facts; it involves co-conspirators Operating in a narrow

timeframe.

C

Other Heyward-type questions exist in this case. The ap-

pellant was convicted in Charge II, specification 2 of

dereliction of duty for failing to report the marijuana

smoking of her subordinates. On these same occasions, as

we read the record, she was herself using cocaine. We

believe it draws the line too finely to deny an accused the

“Heyward defense” when he or she is using Drug A and

subordinates are using Drug B. In our judgment, the

Heyward defense is available to the appellant at this junc-

ture.? Accordingly, the findings of guilty as to Charge II,

specification 2 cannot stand.

One more matter should be mentioned in this regard:

The Government won an additional and unexpected boon

when findings were announced in this case. Additional

Charge I, specification 2 and Additional Charge II are of-

fenses charged in the alternative —it was the Government’s

theory that either the appellant had used cocaine or been

derelict in not reporting use by her subordinates. The first

of these twinned specifications was charged as occurring

on “divers occasion.” At trial, the appellant was found

guilty, but only after the words “divers Occasions” were

2 “(While | should not dream of asking where the line can be

drawn, since the great body of the faw consists in drawing such lines,

yet When you realize that you are dealing with a matter of degree you

must realize that reasonable men may differ widely as to the place

Where the line should fall.” Justice Oliver Wendell Holmes in Sch/les

inger v. Wisconsin, 270 U.S. 230, 241, 46 S.Ct. 260, 70 Ld. $57

(1926).

Ja

excepted by the voting members. In effect, this resulted in

a finding of guilty on one occasion. A one-time cocaine

use (Additional Charge I, specification 2) no longer stands

as an alternative pleading, we believe, to divers failures to

report (Additional Charge III). As a consequence, we

believe that both findings may be sustained on the facts.

Other Matters

The case against the appellant was proved by the

testimony of four witnesses. We are convinced that their

evidence was more than sufficient for the members to find

the appellant guilty of these matters. We, too, are con-

vinced of her guilt.

The other assignments of error are resolved against the

appellant. United States v. Tyler, 17 M.J. 381, 387

(C.M.A. 1984); United States v. Everstone, 26 M.J. 795

(A.F.C.M.R.) pet. denied, 27 M.J. 434 (C.M.A. 1988);

United States v. Rehberg, 15 M.J. 691 (A.F.C.M.R.), pet.

denied, 16 M.J. 185 (C.M.A. 1983).

The findings of guilty of Charge II, specification 2 are

set aside. We shall reassess because of this matter and

under our overall warrant to approve only so much of the

findings and sentence as we find correct in fact and law.?

Considering the record as a whole, we approve only so

much of the sentence as extends to a bad conduct

discharge, continement tor 14 months, forfeitures of

$600.00 per month tor 14 months, and reduction to air-

man basic.

* The approved sentence, We note, reduced the length of contine

ment trom the adjudged tour years to two years, as well as reducing

forfeitures to a similar two-year period.

6a

The findings of guilty and the sentence, both as

modified, are correct in law and-fact and, on the basis of

the entire record, are

AFFIRMED.

Senior Judge BLOMMERS and Judge MURDOCK concur.

OFFICIAL:

/s/ Mary V. Fillman |

Mary V. Fili MAN

Captain, USAF

Chief Commissioner

Ta

APPENDIX B

UNITED STATES COURT OF MILITARY APPEALS

No. 64,801

ACM 28012

UNITED STATES, APPELLEE

Vv.

ROSEMARY M. MEDLEY, SERGEANT

U.S. AiR FORCE, APPELLANT

Argued January 10, 1991

Decided September 4, 1991

Military Judge: Michael C. Callinan

Counsel

For Appellant: Captain Michael D. Burt (argued); Lieute-

nant Colonel Jeffrey R. Owens (on brief); Colonel

Richard F. O’Hair.

tor Appellee: Captain Ann M. Mittermeyer (argued);

Lieutenant Colonel Brenda J. Hollis and Captain David

G. Nix (on brief); Colonel Robert E. Giovagnoni.

Sa

Opinion of the Court

Cox, Judge:

Appellant stands convicted, contrary to her pleas, of

three specifications of wrongfully using cocaine and one

specification of being derelict in her duty to report cocaine

use by other servicemembers, in violation of Articles 112a

and 92, Uniform Code of Military Justice, 10 USC

§§ 912a and 892, respectively. !

The Government’s evidence showed that appellant was

present at a number of parties and social outings where il-

legal drugs were consumed. The military judge instructed

the general court-martial members that appellant could

not be convicted of failing to report her fellow service-

members for any occasion on which she herself par-

ticipated in the drug usage. See United States v. Heyward,

22 MJ 35 (CMA), cert. denied, 479 U.S. 1011 (1986);

' Appellant also was convicted on dereliction of duty by her failure

lo report marijuana use at one of the times and places she was con-

victed of cocaine use. Relying on our opinion in United States v.

Heyward, 22 MJ 35 (CMA), cert) demed, 479 U.S. 1011 (1986), the

Court of Military Review set aside that specification ruling that

it draws the line too finely to deny an accused that the “/ley ward

detense” when he or she ts using Drug A and subordinates are

using Drug B. In our judgment, the Flevward detense ts

available to the appellant at this juncture.

JO NII 879, BRI (1990), citing Schlesinever vo Wisconsin, 270 US. 230,

241 (1926) (Holmes, J.).

Ihe court-martial sentenced appellant to a bad-conduct discharge,

continement tor 4 years, forfeiture of $600 pay per month tor 4 years,

and reduction to Airman Basic. The convenmge authority reduced the

confinement and torteimtures to 2 years each, but otherwise approved

the sentence. The Court of Military Review, reassessing the sentence

atter dismissing one specification (see above), reduced the contine

ment and tortemures to 14 months cach, but atfirmed the discharee

and the reduction

9a

United States v. Thompson, 22 MJ 40 (CMA 1986). Con-

cerning One of these drug events, the court-martial was

convinced that she joined in using cocaine, so it acquitted

her of the corresponding dereliction offense. Regarding

another incident, the court-martial was satisfied that she

was present, was aware of drug usage by the others but

was not then using drugs herself, and failed to report the

matter to proper authorities. Air Force Regulations 30-1,

30-2, and 39-6, as well as a custom of the service, require

noncommissioned officers, among others, to report drug

use that comes to their attention. United States v. Medley,

30 MJ 879, 880 n.1 (AFCMR 1990).

In Heyward and Thompson, we made it clear that a

servicemember cannot be convicted of both using drugs

and failing to apprehend or report others joining him in

the same drug usage. We held this dual penalty would

violate a servicemember’s rights against compulsory self-

incrimination. Art. 31, UCMJ, 10 USC § 831; and U:S.

Const. amend. V. We recognized, however:

Due to contingencies of proof, it may be warranted

in some cases to Charge an accused both with dereiic-

tion of duty for failure to report an offense and with

the offense that he failed to report. Nevertheless, we

see no need to allow an accused to be convicted of

both.

2 MJ at 37 (emphasis added).

Heyward, unlike appellant, was convicted of using illicit

drugs and of failure to report others’ use at the same time

and place. We held:

The Government proved that on three occasions

appellant was a principal to marijuana use by the

same Air Force members that he failed to report. The

Government also introduced evidence that appellant

was present on two other occasions when marijuana

10a

was used but he did not partake himself. Thus ap-

pellant could properly be convicted of both use of

marijuana on three occasions and dereliction of duty

for failure to report drug use by others on the two oc-

casions when he was not involved as a principal.

22 MJ at 38 (emphasis added).

In effect, appellant now asks us to modify the Heyward

rule and extend it to the instant facts. As she did before the

Court of Military Review, she contends that the derelic-

tion charge should be dismissed due to the social relation-

ship among her co-actors. Her contention, essentially, is

that the on-going drug activities of her social circle were so

interrelated that it would have been impossible for her to

report one incident without potentially incriminating

herself with respect to the other incidents. See United

States v. Brunton, 24 MJ 566 (NMCMR 1987).

From a practical standpoint, her argument has some

logic. An acknowledgment, without more, of a friendly

association with drug users might suggest to the Govern-

ment a link between her and drugs.’ Furthermore, de-

nouncing the others’ use of drugs could, under some cir-

cumstances, establish her ability to recognize cocaine,

prejudicing a claim of innocent ingestion. See United

States v. Mance, 26 MJ 244 (CMA) (knowledge of illicit

pature of substance is element of offense), cert. denied,

38 U.S. 942 (1988).> Primarily, however, the logic of the

rgument is that appellant might expect retaliation from

her “friends” if she betrayed them. Thus, given her ob-

vious vulnerability, appellant had little real incentive to in-

form on her friends.

> It might equally suggest that she was a person who was willing to

place duty above triendship.

’ However, since appellant’s use convictions were based on

testimony that she “snorted” a “white, powdery substance,” the

innocent-ingestion defense, in 1987 A.D., ts quite academic

lla

However, the possibility of touching off a chain reac-

tion that might come back to bite her is not the litmus test

for self-incrimination. Where a reporting requirement

calls for “a compelled disclosure that has an incriminating

potential,” resolution of the issue depends on “str[ength of

the] policies in favor of a disclosure called for by [the]

statutes.” California v. Byers, 402 U.S. 424, 427, 428

(1971) (plurality opinion). See United States v. Heyward,

supra at 37 (fact that “the information disclosed may focus

attention on the reporting servicemember and may even-

tually lead to criminal charges being brought against him

. . . alone does not invalidate the reporting requirement”);

cf. United States v. Sievers, 29 MJ 72 (CMA 1989).4

We must be careful in these cases not to overlook the

military purpose of the duty to report drug offenses (or

any offenses or negligent conduct, for that matter).

Military leaders have a fundamental obligation to in-

tervene and prevent criminal or negligent conduct. See

RCM 302(b)(2), Manual tor Courts-Martial, United

* Admittedly, the specifications as drafted were no models of clari-

ty, spanning as they did lengthy and overlapping time frames. See

United States v. Reed, 24 MJ 80, 83 (CMA 1987). The record of trial,

however, reveals that each of the specifications of which appellant was

convicted represented a different drug event, each at a different loca-

tion. The defense was fully aware of which specification referenced

which event, and there was no defense request for clarification. The

court members were clearly apprised of both the nature of the allega-

tions and the fact that appellant could not be convicted of failing to

report drug offenses if she were a principal to that use. Thus, this case

differs from Reed in two ways. First, unlike the military judge’s pro-

vidence inquiry in Reed, which convinced then-Judge Sullivan that the

Heyward doctrine was “not satisfactorily resolve[d]”, 24 MJ at 83, this

case was litigated on the merits, and the members were properly in-

structed.

Second, the Air Force Regulation, unlike the Navy Regulation in

Reea, is not unduly broad. United States v. Reed, supra at 83-86

(Everett, C.J., concurring). See United States v. Heyward, supra.

la

States, 1984. While we have expressed our reluctance to

permit the criminal prosecution of servicemembers who

fail to carry out the physical arrest or apprehension of

other servicemembers, our concerns were based primarily

on the lack of training, experience in law enforcement and

definitive “notice” of what to do when, rather than on the

proposition that there is no duty to act at all. United States

v. Thompson, supra at 41; see also United States v.

Heyward, supra, at 38, 39 (Everett, C.J., concurring).

We have never intimated that it is lawful or excusable

for a person in a position of military leadership to con-

sciously ignore the blatant criminal conduct of subor-

dinates. This classic duty not to tolerate malfeasance cuts

to the very core of military leadership and responsibility.

li is a duty with respect to others that clearly exceeds the

duty of ordinary citizens. Cf. R. Perkins and R. Boyce,

Criminal Law 742 (3d ed. 1982).

Thus, under the tramework of California v. Byers,

supra, We have no hesitation in validating appellant’s duty

to report her subordinates’ criminal conduct, notwith-

standing the fact that she was tound to have joined them

in crime On other Occasions.*> The policy basis for report-

ing misconduct in the military is more than powerful; it ts

axiomatic. On these facts, and in view of the adroit handl-

ing of the instructions by the military judge, we agree with

the Court of Military Review, when it said:

The “#leyvward exception” is of no benefit to this

appellant. She was convicted of failing to report only

’ We have not had occasion to decide whether, in the event the

Government elects to prosecute a servicemember for offenses

discovered subsequent to his obligatory report on others, “the Govern-

ment’s burden [would be} heavy in showing that the evidence later pro-

vided” against the accused was “not the product of” his report on

others. See Onited States v. Bovd, 27 MJ 82, 86 (CMA 1988) (Everett,

C .J., concurring). In the instant case, of course, appellant did not

report on the others, so we are not contronted with this question.

13a

as to those occasions on which she herself did not use

drugs. In short, the Heyward exception is inoperative

on the facts.

30 MJ at 880.

The decision of the United States Air Force Court of

Military Review is affirmed.

Chief Judge SULLIVAN concurs.

Eevertit, Senior Judge (concurring):

The regulatory requirement of the various military

departments that purports to place on all personnel the

duty to report to higher authority any and all incidents of

druy use by fellow servicemembers is troubling to me. For

this reason, | wrote separately in United States Heyward,

22 MJ 35, 38 (CMA), cert. denied, 479 U.S. 1011 (19%6),

and later in United States v. Reed, 24 MJ 80, 63 (CMA

1987), in order to make clear my analysis of this alleged

duty. | do so again here.

Air Force Regulation (AFR) 30-1, Personnel, Air Force

Standards (4 May 1983), claims to impose a blanket drug-

use reporting duty on all Air Force personnel. Paragraph

10b charges every airman, “You are responsible for (1)

reporting all known or suspected incidents of drug abuse

by others and (2) encouraging persons known to you to

have an existing or potential drug abuse problem to seek

assistance through the Air Force Rehabilitation Program.”

See para. 3-17, AFR 30-2 (18 April 1986). In regard to

what offenses must be reported, this provision ts more

focused than the language of Article 1139 of U.S. Navy

Regulations (1973) that was at issue in Reed. Thus,

arguably it provides the constitutionally mandated notice

that was missing there. See 24 MJ at 84 (Everett, CJ.,

concurring). Nonetheless, to me, it remains suspect in

l4a

terms of notice because —as I discussed both in Heyward

and in Reed—to the extent the reporting requirement

would apply to even the lowest ranking member of the Air

Force, it deviates greatly from the expectations of citizens

generally at common law and in virtually all state jurisdic-

tions.

Furthermore, again to the extent that this blanket

regulatory provision purports to burden even the lowest

ranking member of the service, I conclude that the “‘police

state’” connotations of such an obligation render the pro-

vision too broad even considering “the interests of military

necessity.” See United States v. Reed, supra at 85.

Appellant, however, is not “the lowest ranking member

of the” Air Force; she is a sergeant —a noncommissioned

officer. As I implied in Heyward and in Reed, | believe

that the military can expect its leadership, both commis-

sioned and noncommissioned officers, to meet a higher

level of responsibility than can logically or legally be im-

posed on the military’s citizenry at large.

Moreover, at her court-martial, appellant stipulated to

the following:

As a noncommissioned officer, the accused had a cer-

tain prescribed duty, that is, to report to proper

military authorities the wrongful use of illegal drugs

by persons subordinate in rank to the accused, and

known to her to be members of the United States Air

Force.

Thus, not only did “the Government .. . prove that the

Air Force intended that appellant, as a noncommissioned

officer, have a duty to report drug use by others,” but it

also proved “that appellant knew .. . that [s]he was sub-

ject to this duty.” See United States v. Heyward, supra at

38 (Everett, C.J., concurring).

lSa

Accordingly, because appellant was part of the Air

Force’s leadership corps and because she knew that, as

part of that corps, she had a duty to report to higher

authority any drug use by others, I join the majority’s

opinion here.

J,OVEHMMMENT PHINIING Gr bt ice 1391 “906