Appendix — Newak v. United States
Supreme Court brief1990
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IN THE
Supreme Court Of The United States
October Term, 1989
JOANNE C. NEWAK,
Petitioner,
VS.
UNITED STATES,
Respondent.
APPENDIX TO
PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF MILITARY APPEALS
FAITH A. SEIDENBERG
Seidenberg, Strunk and
Goldenberg
246 East Water Street
Syracuse, New York 13202
(315) 422-0144
Counsel of Record
November 7, 1989
Appellate Productions, Inc.
Syracuse, New York
10.
11.
TABLE OF CONTENTS
Charge sheet,
23 October 1981
Investigating Officer Report,
O06 November 1981
Amended charge sheet,
31 December 1981
Additional charge sheet,
31 December 1981
Investigating Officer Report,
08 January 1982
Advice and Recommendations on Court-Martial
charges,
04 February 1982
Special Order AB-9,
O06 February 1982
Request for trial by court,
10 March 1982
Report of Result of Trial,
11 March 1982
Substitution Convening Authority,
12 April 1982
Certificate of Correction,
20 April 1982
1-6
7-22
23-28
29-31
32-47
48-65
66-67
68-69
70-72
73
os
12.
13.
14.
15.
16.
17.
18.
19.
21.
Staff Judge Advocate’s Review,
O06 May 1982
General Court Martial
Order No. 9,
10 June 1982
Opinion of Court of Military Review,
14 December 1982
JAG Review,
23 March 1983
Opinion of Court of Military Appeals,
13 July 1987
Order of Court of Military Appeals,
19 August 1987
Opinion of Court of Military Review,
16 October 1987
General Court Martial
Order No. 100,
01 December 1987
General Court Martial
Order No. 150,
14 January 1988
General Court Martial
Order No. 23,
15 January 1988
75-103
104-108
109-115
116
117-132
133-134
135-141
142
143
144
24.
25.
Special Order, AB-33,
27 January 1988
General Court Martial
Order No. 87,
28 July 1988
Opinion of Court of Military Review,
O06 January 1989
Opinion of Court of Military Appeals,
06 September 1989
145
146-148
149-155
156-157
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App. 1
CHARGE SHEET
Place:
Hancock Field, New York 13225
Date:
23 October 1981
Accused: (Last name, First name, Middle
initial)
Joann C. Newak
Social Security account number
167-38-0452
Grade or rank
Second Lieutenant
Pay Grade
_ Q-1
Organization and armed service:
21st Air Division
United States Air Force
Date of Birth
24 October 1957
Contribution to Family
N/A
Pay per month
basic $1099.80
SEA
None
Total
$1099.80
RECORD OF SERVICE
Initial date of current service
29 November 1979
Term of current service
4 years
Prior service:
00 years 03 months 00 days
29 August 1979 - 29 November 1979 USAF
App. 2
- DATA AS TO WITNESSES
Name of witness
Amn Donna L. Ryan
Miss Julie Michalzuk
Miss Joann Forbes
Address
4789 ABG,
Hancock Fid, NY
Watertown, NY
Liverpool, NY
Witness for Prosecution/Accused
x
x
DOCUMENTS AND OBJECTS
List and describe (If not attaached to charges, note where
# 81-CID 131-05540-C.
Remains of one pill purported to be an amphetamine.
Marijuana “roaches.”
Above mentioned items can be found at OS! Det 110,
Hancock Field, New York.
DATA AS TO RESTRAINT
Nature of any restraint of the accused:
NONE
CHARGE |: Violation Of the Uniform Code of Military Justice,
Article 80.
an
App. 3
Specification 1: in that SECOND LIEUTENANT JOANN
C. NEWAK, United States Air Force, 2ist Air Division, did, at
North Syracuse, New York, on or about 6 July 1981, attempt
to violate a lawful general regulation, to wit: paragraph 3-4,
Air Force Regulation 30-2, dated 22 June 1981, by wrongfully
transferring a substance she believed to be amphetamines.
Specification 2: in that SECOND LIEUTENANT JOANN
C. NEWAK, United States Air Force, 2ist Air Division, did, at
North Syracuse, New York, on or about 6 July 1981, attempt
to violate a lawful general regulation, to wit: paragraph 3-4,
Air Force Regulation 30-2, dated 22 June 1981, by wrongfully
using a substance she believed to be amphetamines.
Specification 3: in that SECOND LIEUTENANT JOANN
C.NEWAK, United States Air Force, 2ist Air Division, did, at
—Clay, New York, on or about 10 July 1981, attempt to violate
lawful general regulation, to wit: paragraph 3-4, Air Force
Regulation 30-2, dated 22 June 1981, by wrongfully
transferring a substance she believed to be amphetamines.
CHARGE Il: Violation of the Uniform Code of Military Justice,
Article 92.
Specification: In that SECOND LIEUTENANT JOANN
C. NEWAK, United States Air Force, 21st Air Division, did, at
Clay, New York, on numerous occasions, from on or about
15 December 1980, to on or about 1 September 1981,
violate a lawful general regulation, to wit: paragraph 3-4, Air
Force Regulation 30-2, dated 22 June 1981, and/or
paragraph 4-4, Air Force Regulation 30-2, dated 8 November
1976, by wrongfully having in her possession some
amphetamines.
CHARGE Ill: Violation of the Uniform Code of Military Justice,
Article 134.
App. 4
Specification 1: in that SECOND LIEUTENANT JOANN
C. NEWAK, United States Air Force, 2ist Air Division, did, at
Clay, New York, on numerous occasions, from on or about
15 December, 1980, to on or about 1 September 1981,
wrongfully use marijuana.
Specification 2: in that SECOND LIEUTENANT JOANN
C. NEWAK, United States Air Force, 2ist Air Division, did, at
Clay, New York, on numerous occasions, from on or about
15 December 1980, to on or about 1 September 1981,
wrongfully have in her possession some amount of
marijuana.
Specification 3: in that SECOND LIEUTENANT JOANN
C. NEWAK, United States Air Force 2ist Air Division, did, at
Clay, New York, on numerous occasions, from on or about
15 December 1980, to on or about 1 September 1981,
wrongfully transfer marijuana.
JURISDICTIONAL BASIS: The Jurisdictional Basis for
the prosecution of Charges |, li and lil and all Specifications
thereunder is that they were committed in the presence of
enlisted personne! and/or civilians that were aware of the
military status of the accused as an Officer; that such
conduct represented a threat to the military community and
a flouting of military authority; thus, under the circumstances,
the military has an overriding interest in the prosecution of
these offenses.
CHARGE IV: Violation of the Uniform Code of Military Justice,
Article 133.
Specification 1: In that SECOND LIEUTENANT JOANN
C. NEWAK, United States Air Force 2ist Air Division, did, at
Hancock Field, North Syracuse, New York, on or about 17
June 1981, engage in conduct unbecoming an officer and a
gentieman, to wit, wrongfully suggest to an enlisted female
mc hile
—
App. 5
person of the Air Force, that such person was bisexual and
proceeded without authority to kiss the enlisted person on
her cheek and say “I love you."
Specification 2: in that SECOND LIEUTENANT JOANN
C NEWAK, United States Air Force, 21st Air Division, did, at
Hancock Field, North Syracuse, New York, on or about 25
June 1981, engage in conduct unbecoming an officer and a
gentieman, to wit: wrongfully admit to an enlisted female
person of the United States Air Force, that she, Second
Lieutenant Newak, was having a homosexual relationship
with another enlisted female person of the United States Air
Force.
JURISDICTIONAL BASIS: The Jurisdictional Basis for the
prosecution of Specifications 1 and 2 of Charge IV is that
they occurred on Hancock Field, New York, a United States
Air Force installation within the territorial limits of the United
States and that such conduct represents a flouting of military
authority and a threat to the military authority; thus, under
the circumstances, the military has an overriding interest in
the prosecution of these offenses.
Specification 3: in that SECOND LIEUTENANT JOANN
C. NEWAK, United States Air Force, 2ist Air Division, did, at
Clay, New York, on or about 1 June 1981, engage in
conduct unbecoming an officer and a gentleman, to wit:
wrongfully admit to a civilian that she, Second Lieutenant
Newak, was having a homosexual relationship with another
female.
Specification 4: In that SECOND LIEUTENANT JOANN
C. NEWAK, United States Air Force, 2ist Air Division, did, at
Clay, New York, on or about 15 July 1981, engage in
conduct unbecoming an officer and a gentleman, to wit:
wrongfully kissing, hugging and holding hands with an
enlisted female person of the United States Air Force.
App. 6
JURISDICTIONAL BASIS: The Jurisdictional Basis for
the prosecution of Specifications 3 and 4 of Charge IV is that
these offenses are not commonly prosecuted in civil Courts;
the acts alleged impaired the accused’s ability to function
effectively as an officer at Hancock Field; the accused’s
conduct disgraced the image of the United States Officer
Corps; all of the preceding represents a threat to the military
community and a flouting of military authority; thus, under
the circumstances, the military has an overriding interest in
the prosecution of these offenses.
App. 7
INVESTIGATING OFFICER’S REPORT
(Of charges under the provisions of Article 32, Uniform
Code of Military Justice and paragraphs 34, MCM, U.S., 1969
(Rev.))
2d INDORSEMENT
FROM: (Grade, name and organization of investigating
Officer)
Major Maurice A. Deaver, Jr., 4787ABG/JA, Duluth IAP,
MN 55814
DATE OF REPORT 6 Nov. 81
TO: (Title and Organization of officer who directed report
to be made)
4789 ABG/CC, Hancock Field, NY
Grade and name of accused:
2Lt Joann C. Newak
SSAN
167-38-0452FV
ORGANIZATION
HQ 2ist Air Division
DATE OF CHARGES
23 Oct 81
1. IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE
32, UNIFORM CODE OF MILITARY JUSTICE, AND
PARAGRAPH 34 MCM, 1969 (REV.), | HAVE INVESTIGATED
THE CHARGES (Exhibit 1) APPENDED HERETO. (If, and as
soon as, it is determined the accused elects not to be
represented by counsel! or by qualified counsel during the
investigation, the investigating officer will complete in ink,
items 1 through 4, except 4f, and will ask the accused to
sign item 4c.)
YES
2. AT THE OUTSET OF THE INVESTIGATION, | READ TO
THE ACCUSED THE PROVISIONS OF ARTICLE 31,
UNIFORM CODE OF MILITARY JUSTICE, AND ALSO
ADVISED HIM: .
App. 8
a. OF THE NATURE OF THE OFFENSE(S) CHARGED
AGAINST HIM.
YES
b. OF THE NAME OF THE ACCUSER.
YES
c. OF THE NAMES OF THE WITNESSES AGAINST
HIM SO FAR AS KNOWN BY ME.
YES
d. THAT THE CHARGES WERE ABOUT TO BE
INVESTIGATED BY ME.
YES
e. THAT HE HAS A RIGHT TO CONSULT WITH AND
TO OBTAIN, AND TO HAVE PRESENT DURING THIS
INVESTIGATION A LAWYER, EITHER
(1) A CIVILIAN LAWYER RETAINED AT HIS OWN
EXPENSE, OR
(2) MILITARY COUNSEL OF HIS OWN SELECTION,
IF SUCH COUNSEL IS REASONABLY AVAILABLE, OR
(3) A MILITARY LAWYER, CERTIFIED UNDER
ARTICLE 27(b), PROVIDED WITHOUT COST BY THE
OFFICER EXERCISING GENERAL COURT-MARTIAL
JURISDICTION. PARAGRAPH 34c, MCM.
YES
f. OF HIS RIGHT TO CROSS-EXAMINE ALL
AVAILABLE WITNESSES AGAINST HIM
YES
g. OF HIS RIGHT TO PRESENT ANYTHING HE
MIGHT DESIRE IN HIS OWN BEHALF, EITHER IN DEFENSE
OR MITIGATION
YES
h. OF HIS RIGHT TO HAVE THE INVESTIGATING
OFFICER EXAMINE AVAILABLE WITNESSES REQUESTED
BY HIM
YES |
i. OF HIS RIGHT TO MAKE A STATEMENT IN ANY
FORM
YES
Oo Neat eerie tee shy
lo lll
App. 9
j. OF HIS RIGHT TO REMAIN SILENT OR TO REFUSE
TO MAKE ANY STATEMENT REGARDING ANY OFFENSE
OF WHICH HE WAS ACCUSED OR CONCERNING WHICH
HE IS BEING INVESTIGATED.
YES
k. THAT ANY STATEMENT MADE BY HIM MIGHT BE
USED AS EVIDENCE AGAINST HIM IN A TRIAL BY COURT-
MARTIAL.
YES
3.a. THE ACCUSED REQUESTED MILITARY COUNSEL BY
NAME
NO
b. NAME AND GRADE OF SUCH COUNSEL
ORGANIZATION
c. MILITARY COUNSEL REQUESTED BY NAME WAS
QUALIFIED WITHIN THE MEANING OF ARTICLE 27(b)
UNIFORM CODE OF MILITARY JUSTICE
N/A
d. IF ANSWER TO PRECEDING ITEM WAS "NO",
ACCUSED WAS INFORMED THAT SUCH UNQUALIFIED
COUNSEL MAY NOT REPRESENT HIM AT ANY GENERAL
COURT-MARTIAL.
N/A
e. MILITARY COUNSEL REQUESTED BY NAME WAS
REASONADLY AVAILABLE.
(If not available, explain In Ite.n 18, having reference to
paragraph 34c, MCM, 1969 (Rev)).
N/A
f. THE ACCUSED STATED HE WOULD BE REPRESENTED
BY CIVILIAN COUNSEL
YES
g. NAME AND ADDRESS OF SUCH COUNSEL
Ms Faith A. Seidenberg
415 University Bidg.
Syracuse, NY 13202
Member of the Bar of:
App. 10
The State of New York
h. (This item to be used by accused civilian counsel only)
(Place and date)
| hereby enter my appearance for the above-named accused
and represent that | am a member of the bar of:
(signature of Counsel)
/s/Faith Seidenberg
State of New York
4.a. THE ACCUSED REQUESTED THAT COUNSEL BE
PROVIDED BY THE GENERAL COURT-MARTIALAUTHORITY
TO REPRESENT HIM
YES
b. NAME AND GRADE OF SUCH COUNSEL
Captain David F. Eaton
ORGANIZATION
USAF Judiciary,
Plattsburgh AFB, NY
c. COUNSEL (as in b above) WAS QUALIFIED WITHIN
THE MEANING OF ARTICLE 27(6) UNIFORM CODE OF
MILITARY JUSTICE
YES
d. IF ANSWER TO PRECEDING ITEM (4c) IS "NO",
ACCUSED SPECIFICALLY WAIVED COUNSEL WITH SUCH
QUALIFICATIONS
N/A.
e. (To be signed by accused. If answer to 3a and 4a, or 4c
was "NO". If accused fails to sign, investigating officer will
explain the circumstances in detail in item 18)
(Date)
i have been informed of my right to representation by
counsel qualified under Article 27 (b), Uniform Code of
Military Justice. | hereby waive my right to (such qualified
counsel) (counsel)
(Signature of accused)
f. COUNSEL FOR THE ACCUSED WAS PRESENT
THROUGHOUT THE INVESTIGATION. (If the accused waives
Stak 0 Re AN ie LPI, PIN nok) A we
App. 11
the right to hove counsel present throughout all or a part of
the investigation after having requested counsel, state the
circumstances and the particular proceedings conducted in
the absence of such counsel)
YES
5.a. IN THE PRESENCE OF THE ACCUSED | HAVE
INTERROGATED ALL AVAILABLE WITNESSES UNDER
OATH OR AFFIRMATION AND HAVE EXAMINED ALL
DOCUMENTARY EVIDENCE ON BOTH SIDES.
YES
b. | HAVE REDUCED THE MATERIAL TESTIMONY GIVEN
BY EACH SUCH WITNESS UNDER DIRECT AND CROSS-
EXAMINATION TO A SWORN OR AFFIRMED WRITTEN
STATEMENT EMBODYING THE SUBSTANCE OF THE
TESTIMONY TAKEN ON BOTH SIDES.
YES
c. THE SWORN OR AFFIRMED WRITTEN STATEMENTS
OF SUCH WITNESSES ARE APPENDED HERETO AS
INDICATED:
NAME AND GRADE OF WITNESSES
WHO WERE PRESENT
A1C Donna L. Ryan
SA John J. Houlihan,Jr.
SRA Teresa L Gainey
ORGANIZATION OR ADDRESS
4789 ABG/SPS,
Hancock Field, NY 13225
AFOSI Det 0110,
Hancock Field, NY 13225
21st ADS,
Hancock Field, NY 13225
App. 12
EXHIBIT NUMBER
11
12
13
6.a. THE SUBSTANCE OF THE EXPECTED TESTIMONY OF
EACH OF THE FOLLOWING ABSENT WITNESSES WHOSE
PRESENCE WAS NOT REQUESTED BY THE ACCUSED, OR
WHO, HAVING BEEN REQUESTED, WERE NOT AVAILABLE,
OR FOR WHOM THE REQUEST WAS WITHDRAWN, WAS
OBTAINED FROM SUCH WITNESSES IN THE FORM OF A
SWORN OR AFFIRMED WRITTEN STATEMENT, OR WAS
STIPULATED TO BY THE ACCUSED IN WRITING. SUCH
STATEMENTS OR STIPULATIONS ARE APPENDED HERETO
AS INDICATED:
NAME AND GRADE OF ABSENT WITNESSES
Julie Michalzuk, Civilian
Julie Michalzuk, Civilian
SRA Lynn E. Peeiman
ORGANIZATION OR ADDRESS
Watertown, NY
Watertown,NY
21st ADS,
Hancock Field, NY 13225
EXHIBIT NUMBER
7
8
9
b. A COPY OF EACH SUCH WRITTEN STATEMENT HAS
BEEN SHOWN TO THE ACCUSED.
YES
c. IF AN ABSENT WITNESS IS REQUESTED BY THE
ACCUSED BUT IS NOT AVAILABLE, ENTER A PROPER
EXPLANATION
App. 13
7.a. THE FOLLOWING DOCUMENTS HAVE BEEN
EXAMINED, SHOWN TO THE ACCUSED, AND ARE
APPENDED AS INDICATED (describe documents)
Stmt of AiC Donna L. Ryan, dtd 7 July 1981
Stmt of A1C Donna L. Ryan, dtd 11 July 1981
Stmt of AiC Donna L. Ryan, dtd 22 June 1981
b. IF ANY DOCUMENTS MADE AVAILABLE TO THE
INVESTIGATING OFFICER WERE NOT EXAMINED OR WERE
EXAMINED BUT NOT SHOWN TO THE ACCUSED, OR
WERE EXAMINED BUT ARE NOT APPENDED, STATE THE
REASONS:
8.a. THE FOLLOWING DESCRIBED REAL EVIDENCE WAS
EXAMINED, SHOWN TO THE ACCUSED, AND IS NOW
PRESERVED FOR SAFEKEEPING AS INDICATED:
AFOSI Det 0110, Hancock Field, NY
Remains of three alleged marijuana cigarette butts
Remains of one tablet
YES
b. IF CERTAIN REAL EVIDENCE WHICH WAS EXAMINED
WAS NOT SHOWN TO THE ACCUSED, STATE THE
REASONS.
N/A
9. THE ACCUSED AFTER HAVING BEEN INFORMED OF
HIS RIGHT TO MAKE A STATEMENT OR REMAIN SILENT:
a. HE DID HOT DESIRE TO MAKE A STATEMENT.
YES .
b. MADE A STATEMENT APPENDED HERETO (Exhibit )
NO
c. THE CIRCUMSTANCES OF THE TAKING OF ANY
CONFESSION OR ADMISSION OF ACCUSED WERE
INQUIRED INTO BY ME AND SUCH CONFESSION OR
ADMISSION APPEARS TO HAVE BEEN OBTAINED IN
ACCORDANCE WITH ARTICLE 31, UNIFORM CODE OF
MILITARY JUSTICE AND/ORTHE 5TH AMENDMENT. (Where
appropriate, attach statement of person taking confession or
App. 14
admission showing circumstances of taking).
YES
d. THE ACCUSED, AFTER BEING ADVISED THAT HE DID
NOT HAVE TO MAKE ANY STATEMENT WITH RESPECT TO
IT, WAS SHOWN THE CONFESSION OR ADMISSION AND
DID NOT CONTEST IT AS BEING NOT IN COMPLIANCE
WITH ARTICLE 31 UNIFORM CODE OF MILITARY JUSTICE.
(If the confession or admission was contested, attach
accused’s explanation of the circumstances.)
YES
10.a. THERE WERE REASONABLE GROUNDS FOR
INQUIRING INTO THE MENTAL RESPONSIBILITY OF THE
ACCUSED AT THE TIME OF THE ALLEGED OFFENSE
(MCM, 120b)
NO
b. THERE WERE REASONABLE GROUNDS FOR
INQUIRING INTO THE MENTAL CAPACITY OF THE
ACCUSED AT THE TIME OF THE INVESTIGATION (MCM
120c)
NO
c. IF GROUNDS FOR INQUIRY AS TO THE ACCUSED’S
MENTAL CONDITION EXISTS, STATE REASONS THEREFOR
AND ACTION TAKEN
N/A
d. A REPORT OF A (BOARD OF MEDICAL OFFICERS)
(PSYCHIATRIST) IS APPENDED (Exhibit )
NO
11. ALL ESSENTIAL WITNESSES WILL BE AVAILABLE IN
THE EVENT OF TRIAL. (If any essential witness(s) will not
be so available, list name, address, reason for unavailability,
and recommendation, if any, whether a deposition should be
taken. List estimated date of separation and/or transfer, if
pertinent and available)
Julie Michalzuk and Joann Forbes will not
appear unless subpoenaed.
|
App. 15
Airman John Liles and SRA Lynn E. Peelman
are unavailable by reason of privilege.
NO
; 12. EXPLANATORY OR EXTENUATING CIRCUMSTANCES
ARE SUBMITTED HEREWITH.
NO
13.a. | HAVE INVESTIGATED AND FIND Q PREVIOUS
CONVICTIONS OF OFFENSES COMMITTED WITHIN THE
SIX YEARS NEXT PRECEDING THE COMMISSION OF AN
| OFFENSE WITH WHICH THE ACCUSED IS NOW CHARGED
(MCM, 1969, (Rev.) par 75 b (2)
b. AN EXTRACT COPY OF THE ACCUSED’S MILITARY
RECORDS OF PREVIOUS CONVICTIONS IS APPENDED
(Exhibit )
NO
14. IN ARRIVING AT MY CONCLUSIONS | HAVE
CONSIDERED NOT ONLY THE NATURE OF THE
OFFENSE(S) AND THE EVIDENCE IN THE CASE, BUT |
HAVE LIKEWISE CONSIDERED THE AGE OF THE
ACCUSED, HIS MILITARY SERVICE, AND THE
ESTABLISHED POLICY THAT TRIAL BY GENERAL COURT-
MARTIAL WILL BE RESORTED TO ONLY WHEN THE
CHARGES CAN BE DISPOSED OF IN NO OTHER MANNER
CONSISTENT WITH MILITARY DISCIPLINE.
YES
15. THE CHARGES AND SPECIFICATIONS ARE IN PROPER
FORM AND THE MATTERS CONTAINED THEREIN ARE
TRUE, TO THE BEST OF MY KNOWLEDGE AND BELIEF. (if
the answer is "NO" explain and indicate recommended action
on additional sheet).
NO
App. 16
16. ANY INCLOSURES RECEIVED BY ME WITH THE
CHARGES AND NOT LISTED ABOVE AS AN EXHIBIT ARE
SECURELY FASTENED TOGETHER AND APPENDED
HERETO AS ONE EXHIBIT (exhibit If mo such inclosures
were received check "NO".)
NO
17. (Check appropriate box ONLY ff trial is recommended)
TRIAL BY GENERAL SPECIAL SUMMARY
COURT-MARTIAL IS RECOMMENDED.
NO
18. REMARKS (if more space is required, attach additional
sheets. Check X YES NO If additional sheets
are attached.
7a. (cont.)
Extract from AFOS! Report 1.0. Ex. 5
Laboratory Report 1.0. Ex. 6
15. The elements of the offenses charged are at |. O. Exhibit
14,
The accused's civilian counsel, Ms Faith
Seidenberg, entered her appearance and represented that
she is a member of the Bar of the State of New York.
The proof of the charges and specifications is
set out below.
Charge |, Specifications 1, 2 and 3: The only
evidence to support the transfer or use by the accused of
any substance on or about 6 July 1981 and 10 July 19871 is
the testimony of A1iC Ryan. The third person allegedly
present and involved, Airman Liles, was unavailable on
account of privilege, having been advised by Captain
App. 17
Catania, Area Defense Counsel, Pease AFB, not to testify.
A1C Ryan stated that the accused called the tablets “speed”
and “speckled eggs." Aside from the common knowledge
that “speed” is generally a term associated with
amphetamines, there was no evidence as to whether the
accused actually believed that any tablets transferred or
used were amphetamines or some uncontrolled substance.
Charge Il, Specification 1: The only evidence
available to support this specification and charge is |.O.
Exhibit 8, the sworn statement of Julie Michalzuk, a civilian
housemate of the accused. Ms. Michaizuk was invited to
attend this investigation and declined. See |. O. Exhibit 12.
Her sworn statement is devoid of detail. She asserts that
potential witnesses was |. O. Exhibit 8, the sworn statement
of Ms Michalzuk alluded to earlier. 1.0. Exhibit 8 speaks in
general terms of possession and use of marijuana by the
at the apartment. However, the statement is so
general that it cannot be said to relate specifically to the
same incident about which Ryan testified. |. O. Exhibit 8
App. 18
stands alone as to the proof of the numerous other uses,
possessions, and transfers of marijuana alieged between 15
December 1980 and 1 Septernber 1981. Again, the statement
shows no basis for Ms. Michalzuk’s conclusion that what she
observed the accused use and possess was, in fact,
marijuana.
Charge IV, Specification 1: The evidence to
support this specification is the testimony of A1C Ryan. Ryan
testified that the accused kissed her on the neck, not the
cheek, as alleged.
Charge IV, Specification 2: The testimony of
A1C Ryan is the only evidence on this specification. A1C
Ryan was the enlisted person to whom the statements were
allegedly made. SRA Peeiman was the enlisted person with
whom the accused allegedly was having the homosexual
relationship. Ryan testified that the conversation took place
on or about 9 July 1981, not 25 June 1981, as alleged.
- continued--
19. | HAVE NO PREVIOUS CONNECTION WITH THIS CASE
OR ANY CLOSELY RELATED CASE. (If any connection is
indicated, attach a full explanation.) | AM NOT AWARE OF
ANY REASONS WHICH WOULD DISQUALIFY ME FROM
ACTING AS INVESTIGATING OFFICER. (if any reasons
appear to exist, attach a statement giving full details.)
Typed name, grade and organization of investigating
officer
MAURICE A. DEAVER, Jr.
Major, USAF
4787 ABG/JA
Duluth IAP, —
Mn 55814
PB ALON 8 Pe he
App. 19
15. (cont).
Charge IV, Specification 3: |. O. Exhibit 7, the sworn
statement of Ms. Michalzuk, is the only evidence to support
this specification. Her statement indicates the accused’s
statement to the effect that she was having a sexual relation
with another female (Peelman), was made “around the first
part of June 1981."
Charge IV, Specification 4: The only evidence adduced
which could support this specification is |. O. Exhibit 7, the
Michalzuk statement. The statement does not specify any
date. While it states that the accused was kissing Peelman,
it does not make mention the accused hugging or holding
hands with Peelman as alleged.
SRA Peelman was represented by counsel, Captain
Smith, Area Defense Counsel, Griffiss AFB, NY. Capt Smith
informed me that he had advised her not to testify. She was,
therefore, unavailable by season of assertion of her Article 31
rights. In |. O. Exhibit 9, she denies having had any
homosexual relations with the accused. In |. O. Exhibit 10 is
a statement of the accused generally denying any
homosexual activity with SRA Peelman.
Matters Raised By Defense:
The Defense objected to witness Ryan’s reading of
1.0. Exhibits 2, 3, and 4 prior to adopting them on the stand.
The Defense objected to the use of any hearsay being used
as evidence, particularly the testimony summarized in
paragraphs 5 and 6 of |. O. Exhibit 11.
The Defense objected to the testimony of SA Houlihan
regarding his discussion with Julie Michalzuk as to whether
she would appear at this investigation by invitation as
hearsay.
—— a
App. 20
The Defense objected to the use of |. O. Exhibit 5,
para. 9.
The Defense objected to the consideration of |. O.
Exhibit 10 on the basis that it was hearsay and contained no
admissions which would make it subject to any exception to
the hearsay rule.
The Defense moved to dismiss Charges | and Il and
their specifications, there being no evidence that any
amphetamines were ever used, transferred, or possessed.
The Defense made a general objection to the use of
any written statements and any hearsay testimony.
The Defense requested the Investigating Officer to
examine an unspecified AFOSI regulation to determine
whether once an individual is considered a suspect whether
the appropriate procedure is to “establish a controlled
situation," citing the delays between Ryan’s alleged
acquisition of evidence from the accused and its disposition
with the OSI. | made no such examination.
Comments:
In each of the specifications of Charge |, persons
other than A1iC Ryan and the accused were present.
Among these persons were Airman Liles, Ms. Michalzuk, Ms.
Forbes, and SRA Peelman. The evidence actually adduced
in the hearing pales in comparison to that which was
unavailable.
15.(cont.)
The specification of Charge Il is not supported by ~
credible evidence.
:
ee ee Lee ee ee
Lf Maen ned be ai
Cs eR eran ee ON ae ee Rt ot ear eel
App. 21
The specifications of Charge Ill are supported only as
to one date, July 10th, and even then the available evidence
is once again dwarfed by that which is unavailable.
Charge IV, Specification 1 is supported by the
evidence, with the exception that the word "neck" should be
substituted for “cheek.” The specification should also be
amended to include the words, “or words to that effect" after
the words “I love you." Although the specification alleges a
series of actions by the accused, the actions constitute a
course of conduct, and are properly alleged as one
specification. MCM Para 28b, U.S. v Yeast, 36 C.M.R. 890
(ACM, 1966). In my opinion, the specification states an
offense under Article 133.
Charge IV, Specification 4 is not supported as to the
date alleged and not supported as to allegations of hugging
_ and holding hands by the accused.
Charge IV, Specifications 2 and 3: Both these
specifications allege that the mere utterance by the accused
of words which indicated she was having a homosexual
relationship with an enlisted female was a criminal act,
regardiess of whether there was any truth to those words.
| have some doubt as to whether the mere utterance of
these words, in the words of Parker v. Levy, 417 U.S. 733,
753, 94 S.Ct. 2547, 2560, 41 L.Ed 2d 439 (1974), “offend/s/
so seriously against law, justice, morality, or decorum as to
expose to disgrace, socially or as a man, the offender, and
at the same time /is/of such a nature or committed under
such circumstances as to bring dishonor or disrepute upon
the military profession which he represents.”
Assuming these specifications state offenses, the
question is raised as to whether the statements alleged
should be pleaded, as neariy as possible, in exact words
(MCM, Par 28c) and whether they ought to name the person
App. 22
to whom the statements were made for purposes of
specificity.
_ One question which has arisen and was recognized
by me only after the investigation was closed, is whether and
to what extent any utterances alleged to have been made by
the accused in Charge IV, Specification 2 were solicited by
AiC Ryan, who was then an OSI informant. If such
utterances were made as a result of the inquiry of A1C Ryan,
then the crime could well have been one instigated by the
government, as opposed to the accused.
17. Recommendations:
| recommend that action be taken to depose Ms. Julie
Michalzuk and Ms Joann Forbes or to obtain more detailed
sworn statements regarding the offenses alleged. | also
recommend that action be taken to make available as
witnesses SRA Lynn E. Peelman and Amn John Liles. |
would then recommend that this Article 32 Investigation be
reopened.
<=
App. 23
CHARGE SHEET
Place:
Hancock Field, New York 13225
Date:
23 October 1981
31 December 1981
) Accused: (Last name, First name, Middle
| initial)
Joann C. Newak
Social Security account number
167-38-0452
Grade or rank
Second Lieutenant
Pay Grade
0-1
Organization and armed service
21st Air Division
United States Air Force
Date of Birth:
24 October 1957
Contribution to Family
N/A
Pay per month .
basic $1099.80
SEA
None
Total
$1099.80
RECORD OF SERVICE
Initial date of current service
29 November 1979
Term of current service
4 years
Prior service:
00 years 03 months 00 days
App. 24
29 August 1979 - 29 November 1979 USAF
DATA AS TO WITNESSES
Name of witness
Amn Donna L. Ryan
Julie Michalzuk
Joann Forbes
Address
4789 ABG,
Hancock Fid, NY
Watertown, NY
Liverpool, NY
Witness for Prosecution/Accused
X
X
X
DOCUMENTS AND OBJECTS
List and describe (If not attached to charges, note where
they may be found)
US Army Criminal Investigations
Laboratory Report
# 81-CID 131-05540-C.
Remains of one pill purported to be an amphetamine.
Marijuana “roaches.”
Above mentioned items can be found at OSI Det 110,
Hancock Field, New York.
DATA AS TO RESTRAINT
Nature of any restraint of the accused:
NONE
Meith Bod sh
App. 25
CHARGE |: Violation Of the Uniform Code of Military Justice,
Article 80.
Specification 1: In that SECOND LIEUTENANT JOANN
C. NEWAK, United States Air Force, 2ist Air Division, did, at
North Syracuse, New York, on or about 6 July 1981, attempt
to violate a lawful general regulation, to wit: paragraph 3-4,
Air Force Regulation 30-2, dated 22 June 1981, by wrongfully
transferring a substance she believed to be amphetamines.
Specification 2: In that SECOND LIEUTENANT JOANN
C. NEWAK, United States Air Force, 2lst Air Division, did, at
Norin Syracuse, New York, on or about 6 July 1981, attempt
to violate a lawful general regulation, to wit: paragraph 3-4,
Air Force Regulation 30-2, dated 22 June 1981, by wrongfully
using a substance she believed to be amphetamines.
Specification 3: In that SECOND LIEUTENANT JOANN
C.NEWAK, United States Air Force, 2ist Air Division, did, at
Clay, New York, on or about 10 July 1981, attempt to violate
lawful general regulation, to wit: paragraph 3-4, Air Force
Regulation 30-2, dated 22 June 1981, by wrongfully
transferring a substance she believed to be amphetamines.
CHARGE II: Violation of the Uniform Code of Military Justice,
Article 92.
Specification: In that SECOND LIEUTENANT JOANN
C. NEWAK, United States Air Force, 21st Air Division, did, at
Clay, New York, cn-numerous_occasions” ftom on or about
15 December 1980, to on or about 1 September 1981,
violate a lawful general regulation, to wit: paragraph 3-4, Air
Force Regulation 30-2, dated 22 June 1981, and/or
paragraph 4-4, Air Force Regulation 30-2, dated 8 November
1976, by wrongfully having in her possession some
amphetamines.
App. 26
CHARGE Ill: Violation of the Uniform Code of Military Justice,
Article 134.
Specification 1: In that SECOND LIEUTENANT JOANN
C. NEWAK, United States Air Force, 2ist Air Division, did, at
Clay, New York, On numerous occasions, from on or about
15 December, 1980, to on or about 1 September 1981,
wrongfully use marijuana.
Specification 2: In that SECOND LIEUTENANT JOANN
C. NEWAK, United States Air Force, 2ist Air Division, did, at
Clay, New York, on numerous occasions, from on or about
15 December 1980, to on or about 1 September 1981,
wrongfully have in her possession some amount of
marijuana.
Specification 3: In that SECOND LIEUTENANT JOANN
C. NEWAK, United States Air Force 2ist Air Division, did, at
Clay, New York, on numerous occasions, from on or about
15 December 1980, to on or about 1 September 1981,
wrongfully transfer marijuana.
JURISDICTIONAL BASIS: The Jurisdictional Basis for
the prosecution of Charges |, li and Ill and all Specifications
thereunder is that they were committed in the presence of
enlisted personnel and/or civilians that were aware of the
military status of the accused as an Officer; that such
conduct represented a threat to the military community and
a flouting of military authority; thus, under the circumstances,
the military has an overriding interest in the prosecution of
these offenses.
CHARGE IV: Violation of the Uniform Code of Military Justice,
Article 133.
des
Specification 4: In that SECOND LIEUTENANT JOANN
C. NEWAK, United States Air Force 2ist Air Division, did, at
App. 27
Hancock Field, North Syracuse, New York, on or about 17
June 198i, engage in conduct unbecoming an officer and a
gentieman, to wit, wrongfully suggest to an enlisted female
person of the Air Force, that such person was bisexual and
proceeded without authority to kiss the enlisted person on
her cheek “@"Srid say "I love you."
ry Nocification alia SITS AMT IOs
C NEWAK, United States A Air > free, 21st Air Division;did, at
Hancock Field, North Syracuse, New York_ert or about 25
June 1981, engage in conduct unbecerfing an officer and a
gentieman, to wit: wrongfully-damit to an enlisted female
person of the oe States Air Force, that she, Second
Lieutenant Newak, was having a homosexual relationship
with apethé enlisted female person of the United States Air
ofce. DBS
JURISDICTIONAL BASIS: 0 be Jurisdictional Basis for the
prosecution of Specification of Charge IV is that
they occurred on Hancock Field, New York, a United States
Air Force installation within the territorial limits of the United
States and that such conduct represents a flouting of military
authority and a threat to the military authority; thus, under
the circumstances, the military has an overriding interest in
the prosecution of these offenses.
dS Dea cit 3 - : = . Sua _
C. NEWAK, United States / Air Force, 2st Air Division, df
Clay, New York, on or about 1 June 1981,-6ngage in
conduct unbecoming an officer and a-géntleman, to wit:
wrongfully admit to a civilian that-she, Second Lieutenant
Newak, was having a homosexual relationship with another
female.
Specification 4: In that SECOND LIEUTENANT JOANN
NEWAK, United States Air Force, 2ist Air Division, did, at
lay, New York, on or about 15 July 1981, engage in
App. 28
conduct unbecoming an Officer and a gentieman, to
afid 4 of Charge IV is that
prosecuted in civil courts;
: 8 accused’s ability to function
fieér at Hancock Fieid; the accused’s
aced the image of the United States Officer
He preceding represents a threat to the military
and a flouting of military authority; thus, under
irc rpreanager be w= has ood overriding interest in
tin. i
App. 29
ADDITIONAL CHARGE SHEET
Place:
Hancock Field, New York 13225
Date:
31 December, 1981
Accused: (Last name, First name, Middle
initial)
Joann C. Newak ~
Social Security account number
167-38-0452
Grade or rank
Second tieutenant <4
Pay Grade
0-1
Organization and armed service
21st Air Division
United States Air Force
Date of Birth
24 October 1957
Contribution to Family
N/A
Pay per month
basic $1099.80
SEA
None
Total
$1099.80
RECORD OF SERVICE
Initial date of current service:
29 November 1979
Term of current service
4 years
Prior service:
00 years 03 months 00 days
29 August 1979 - 29 November 1979 USAF
App. 30
DATA AS TO WITNESSES
Name of witness
Amn Donna L. Ryan
Miss Julie Michalzuk
Miss Joann Forbes
Address
4789 ABG,
Hancock Fid., NY
Watertown, NY
Liverpool, NY
Witness for Prosecution/Accused
&
X
X
DOCUMENTS AND OBJECTS
List and describe (If not attached to charges, note where it
may be found)
US Army Criminal Investigations Laboratory Report
# 81-CID 131-05540-C.
Remains of one pill purported to be an amphetamine.
Marijuana "roaches."
Above mentioned items can be found at OSI Det 110,
Hancock Field, New York.
DATA AS TO RESTRAINT
Nature of any restraint of the accused:
None
ADDITIONAL CHARGE: Violation Of the Uniform Code of
Military Justice, Article 125.
App. 31
Specification 1: in that SECOND LIEUTENANT JOANN
C. NEWAK, United States Air Force, 2ist Air Division, did, at
Clay, New York, on numerous occasions from or about 27
May 1981, to on or about 1 September 1981, commit
sodomy with Senior Airman Lynne E. Peelman
Specification 2: in that SECOND LIEUTENANT JOANN
C. NEWAK, United States Air Force, 2ist Air Division, did, at
Vandling, Pennsylvania, on or about 4 July 1981, commit
sodomy with Senior Airman Lynne E. Peeiman.
Specification 3: In that SECOND LIEUTENANT JOANN
C.NEWAK, United States Air Force, 2ist Air Division, did, at
Lexington, Virginia, on or about August 1, 1981, commit
sodomy with Senior Airman Lynne E. Peelman.
JURISDICTIONAL BASIS: The Jurisdictional Basis for
the prosecution of the Additional Charge and ail
Specifications thereunder is that they were committed in the
presence and with an enlisted person of the United States
Air Force; that such conduct represented a threat to the
military Community and a flouting of military authority; the
acts alleged impaired the accused’s ability to function
effectively as an officer at Hancock Field,; the accused’s
conduct disgraced the image of the United States Officer
Corp; thus, under the circumstances, the military has an
overriding interest in the prosecution of these offenses.
App. 32
INVESTIGATING OFFICER’S REPORT
(Of charges under the provisions of Article 32, Uniform
Code of Military Justice and paragraphs 34, MCM, U.S., 1969
(Rev.))
4th INDORSEMENT
FROM: (Grade, name and organization of investigating
Officer)
Lt Col Lawrence H. Ging2id,
4787ABG/JA,
Hancock Field, NY 13225
DATE OF REPORT 8 Jan 1982
TO: (Grade, name and organization of investigating officer)
4789 ABG/CC, Hancock Field, NY
Grade and name of accused
2Lt Joann C. Newak
SSAN
167-38-0452FV
ORGANIZATION
HQ.21st Air Division
DATE OF CHARGES 23 Oct 81
31 Dec 1981
1. IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE
32, UNIFORM CODE OF MILITARY JUSTICE, AND
PARAGRAPH 34 MCM, 1969 (REV.), | HAVE INVESTIGATED
THE CHARGES (Exhibit 1) APPENDED HERETO. (if, and as
soon as, it is determined the accused elects not to be
represented by counsel or by qualified counsel during the
investigation, the investigating officer will complete in ink,
items 1 through 4, except 4f, and will ask the accused to
sign item 4c.)
YES
2. AT THE OUTSET OF THE INVESTIGATION, | READ TO
THE ACCUSED THE PROVISIONS OF ARTICLE 31,
UNIFORM CODE OF MILITARY JUSTICE, AND ALSO
ADVISED HIM:
App. 33
a. OF THE NATURE OF THE OFFENSE(S) CHARGED
AGAINST HIM.
YES
b. OF THE NAME OF THE ACCUSER.
YES
c. OF THE NAMES OF THE WITNESSES AGAINST
HIM SO FAR AS KNOWN BY ME.
YES
d. THAT THE CHARGES WERE ABOUT TO BE
INVESTIGATED BY ME.
YES
e. THAT HE HAS A RIGHT TO CONSULT WITH AND
TO OBTAIN, AND TO HAVE PRESENT DURING THIS
INVESTIGATION A LAWYER, EITHER
(1) A CIVILIAN LAWYER RETAINED AT HIS OWN
EXPENSE, OR
(2) MILITARY COUNSEL OF HIS OWN SELECTION,
IF SUCH COUNSEL IS REASONABLY AVAILABLE, OR
(3) A MILITARY LAWYER, CERTIFIED UNDER
ARTICLE 27(b), PROVIDED WITHOUT COST BY THE
OFFICER EXERCISING GENERAL COURT-MARTIAL
JURISDICTION. PARAGRAPH 34c, MCM.
YES
f. OF HIS RIGHT TO CROSS-EXAMINE ALL
AVAILABLE WITNESSES AGAINST HIM
YES
g. OF HIS RIGHT TO PRESENT ANYTHING HE
MIGHT DESIRE IN HIS OWN BEHALF, EITHER IN DEFENSE
OR MITIGATION
YES
h. OF HIS RIGHT TO HAVE THE INVESTIGATING
OFFICER EXAMINE AVAILABLE WITNESSES REQUESTED
BY HIM
YES
i. OF HIS RIGHT TO MAKE A STATEMENT IN ANY
FORM
YES
App. 34
j. OF HIS RIGHT TO REMAIN SILENT OR TO REFUSE
TO MAKE ANY STATEMENT REGARDING ANY OFFENSE
OF WHICH HE WAS ACCUSED OR CONCERNING WHICH
HE IS BEING INVESTIGATED.
YES
k. THAT ANY STATEMENT MADE BY HIM MIGHT BE
USED AS EVIDENCE AGAINST HIM IN A TRIAL BY COURT-
MARTIAL.
YES
3.a. THE ACCUSED REQUESTED MILITARY COUNSEL BY
NAME ‘i
NO
b. NAME AND GRADE OF SUCH COUNSEL
ORGANIZATION
c. MILITARY COUNSEL REQUESTED BY NAME WAS
QUALIFIED WITHIN THE MEANING OF ARTICLE 27(b)
UNIFORM CODE OF MILITARY JUSTICE
N/A
d. IF ANSWER TO PRECEDING ITEM WAS “NO,
ACCUSED WAS INFORMED THAT SUCH UNQUALIFIED
COUNSEL MAY NOT REPRESENT HIM AT ANY GENERAL
COURT-MARTIAL.
N/A
e. MILITARY COUNSEL REQUESTED BY NAME WAS
REASONADLY AVAILABLE.
(If not available, explain in item 18, having reference to
paragraph 34c, MCM, 1969 (Rev)).
N/A
f. THE ACCUSED STATED HE WOULD BE REPRESENTED
BY CIVILIAN COUNSEL
YES
g. NAME AND ADDRESS OF SUCH COUNSEL
Ms Faith A. Seidenberg
415 University Bidg.
Syracuse, NY 13202
Member of the Bar of:
The State of New York
|
en NE DO AA OEE Db bt ros
App. 35
h. (This item to be used by accused civilian counsel only)
(Place and date)
| hereby enter my appearance for the above-named
accused and represent that | am a member of the bar of:
(signature of Counsel)
/s/Faith Seidenberg
State of New York
4.a. THE ACCUSED REQUESTED THAT COUNSEL BE
PROVIDED BY THE GENERAL COURT-MARTIALAUTHORITY
TO REPRESENT HIM
: YES
b. NAME AND GRADE OF SUCH COUNSEL
Captain David F. Eaton
ORGANIZATION
ODIN, HO, USAF
Trial Judiciary,
Area Defense Counsel
Plattsburgh AFB, NY
c. COUNSEL (as in b above) WAS QUALIFIED WITHIN
THE MEANING OF ARTICLE 27(b) UNIFORM CODE OF
MILITARY JUSTICE
YES
d. IF ANSWER TO PRECEDING ITEM (4c) IS "NO",
ACCUSED SPECIFICALLY WAIVED COUNSEL WITH SUCH
QUALIFICATIONS
N/A.
6. (To be signed by accused. If answer to 3a and 4a, or 4c
was "NO". If accused fails to sign, investigating officer will
explain the circumstances in detail in item 18)
(Date)
| have been informed of my right to representation by
counsel qualified under Article 27 (b), Uniform Code of
Military Justice. | hereby waive my right to (such qualified
counsel) (counsel)
(signature of accused)
App. 36
f. COUNSEL FOR THE ACCUSED WAS PRESENT
THROUGHOUT THE INVESTIGATION. (If the accused waives
the right to hove counsel present throughout all or a part of
the investigation after having requested counsel, state the
circumstances and the particular proceedings conducted in
the absence of such counsel)
YES
5.a. IN THE PRESENCE OF THE ACCUSED | HAVE
INTERROGATED ALL AVAILABLE WITNESSES UNDER
OATH OR AFFIRMATION AND HAVE EXAMINED ALL
DOCUMENTARY EVIDENCE ON BOTH SIDES.
YES
b. | HAVE REDUCED THE MATERIAL TESTIMONY GIVEN
BY EACH SUCH WITNESS UNDER DIRECT AND CROSS-
EXAMINATION TO A SWORN OR AFFIRMED WRITTEN
STATEMENT EMBODYING THE SUBSTANCE OF THE
TESTIMONY TAKEN ON BOTH SIDES.
YES
c. THE SWORN OR AFFIRMED WRITTEN STATEMENTS
OF SUCH WITNESSES ARE APPENDED HERETO AS
INDICATED:
NAME AND GRADE OF WITNESSES
WHO WERE PRESENT
A1C Donna L. Ryan
SA John J. Houlihan,Jr.
SRA Teresa L Gainey
SrA John A. Liles
- SRA Lynne E. Peelman
Capt Raymond D. Smith
ORGANIZATION OR ADDRESS
4789 ABG/SPS,
Hancock Fid, NY 13225
AFOSI Det 0110,
Hancock Fid, NY 13225
<= lt
App. 37
21 ADS,
Hancock Fid, NY 13225
4789 ABG/SPS,
Hancock Fid, NY 13225
21 ADS,
Hancock Fid, NY 13225
Area Defense Counsel
Griffiss AFB, NY
EXHIBIT NUMBER
i
12*
13*
26
27
28
6.a. THE SUBSTANCE OF THE EXPECTED TESTIMONY OF
EACH OF THE FOLLOWING ABSENT WITNESSES WHOSE
PRESENCE WAS NOT REQUESTED BY THE ACCUSED, OR
WHO, HAVING BEEN REQUESTED, WERE NOT AVAILABLE,
OR FOR WHOM THE REQUEST WAS WITHDRAWN, WAS
OBTAINED FROM SUCH WITNESSES IN THE FORM OF A
SWORN OR -AFFIRMED WRITTEN STATEMENT, OR WAS
STIPULATED TO BY THE ACCUSED IN WRITING. SUCH
STATEMENTS OR STIPULATIONS ARE APPENDED HERETO
AS INDICATED:
NAME AND GRADE OF ABSENT WITNESSES
Julie Michalzuk, Civilian
Julie Michalzuk, Civilian
ORGANIZATION OR ADDRESS
Watertown,NY
Watertown,NY
App. 38
EXHIBIT NUMBER
7*
8*
b. A COPY OF EACH SUCH WRITTEN STATEMENT HAS
BEEN SHOWN TO THE ACCUSED.
YES
c. IF AN ABSENT WITNESS IS REQUESTED BY THE
ACCUSED BUT IS NOT AVAILABLE, ENTER A PROPER
EXPLANATION
7.a. THE FOLLOWING DOCUMENTS HAVE BEEN
EXAMINED, SHOWN TO THE ACCUSED, AND ARE
APPENDED AS INDICATED (describe documents)
Stmt of AiC Donna L. Ryan, dtd 7 July 1981
Stmt of A1C Donna L. Ryan, dtd 11 July 1981
Stmt of A1C Donna L. Ryan, dtd 22 June 1981
EXHIBIT NUMBER
hel
3*
4*
b. IF ANY DOCUMENTS MADE AVAILABLE TO THE
INVESTIGATING OFFICER WERE NOT EXAMINED OR
WERE EXAMINED BUT NOT SHOWN TO THE ACCUSED,
OR WERE EXAMINED BUT ARE NOT APPENDED, STATE
THE REASONS:
8.a. THE FOLLOWING DESCRIBED REAL EVIDENCE WAS
EXAMINED, SHOWN TO THE ACCUSED, AND IS NOW
PRESERVED FOR SAFEKEEPING AS INDICATED:
AFOSI Det 0110, Hancock Field, NY
Remains of three alleged marijuana cigarette butts
Remains of one tablet
*
b. IF CERTAIN REAL EVIDENCE WHICH WAS EXAMINED
WAS NOT SHOWN TO THE ACCUSED, STATE THE
REASONS.
App. 39
N/A
9. THE ACCUSED AFTER HAVING BEEN INFORMED OF
HIS RIGHT TO MAKE A STATEMENT OR REMAIN SILENT:
a. HE DID HOT DESIRE TO MAKE A STATEMENT.
YES
b. MADE A STATEMENT APPENDED HERETO (Exhibit ).
N/A
c. THE CIRCUMSTANCES OF THE TAKING OF ANY
CONFESSION OR ADMISSION OF ACCUSED WERE
INQUIRED INTO BY ME AND SUCH CONFESSION OR
ADMISSION APPEARS TO HAVE BEEN OBTAINED IN
ACCORDANCE WITH ARTICLE 31, UNIFORM CODE OF
MILITARY JUSTICE AND/ORTHE 5TH AMENDMENT. (Where
appropriate, attach statement of person taking confession or
admission showing circumstances of taking).
* see exhibit 10, exhibit 11, (page
3)
d. THE ACCUSED, AFTER BEING ADVISED THAT HE DID
NOT HAVE TO MAKE ANY STATEMENT WITH RESPECT TO
IT, WAS SHOWN THE CONFESSION OR ADMISSION AND
DID NOT CONTEST IT AS BEING NOT IN COMPLIANCE
WITH ARTICLE 31 UNIFORM CODE OF MILITARY JUSTICE.
(If the confession or admission was contested, attach
accused’s explanation of the circumstances.)
*
10.a. THERE WERE REASONABLE GROUNDS FOR
INQUIRING INTO THE MENTAL RESPONSIBILITY OF THE
ACCUSED AT THE TIME OF THE ALLEGED OFFENSE
(MCM, 120b)
NO
b. THERE WERE REASONABLE GROUNDS FOR
INQUIRING INTO THE MENTAL CAPACITY OF THE
ACCUSED AT THE TIME OF THE INVESTIGATION (MCM
120c) |
NO
App. 40
c. IF GROUNDS FOR INQUIRY AS TO THE ACCUSED’S
MENTAL CONDITION EXISTS, STATE REASONS THEREFOR
AND ACTION TAKEN
N/A
d. A REPORT OF A (BOARD OF MEDICAL OFFICERS)
(PSYCHIATRIST) IS APPENDED (Exhibit )
NO
11. ALL ESSENTIAL WITNESSES WILL BE AVAILABLE IN
THE EVENT OF TRIAL. (if any essential witness(s) will not
be so available, list name, address, reason for unavailability,
and recommendation, if any, whether a deposition should be
taken. List estimated date of separation and/or transfer, if
pertinent and available)
Miss Julie Michalzuk, Watertown, New York
and Joann Forbes, Liverpool, NY told SA Houlihan they
would not voluntarily appear for this investigation, but would
testify at trial if they were subpoenaed.
SrA Lynne E. Peelman has apparent PCS to
Germany in June 1982.
12. EXPLANATORY OR EXTENUATING CIRCUMSTANCES
ARE SUBMITTED HEREWITH.
NO .
13.a. | HAVE INVESTIGATED AND FIND O PREVIOUS
CONVICTIONS OF OFFENSES COMMITTED WITHIN THE
SIX YEARS NEXT PRECEDING THE COMMISSION OF AN
OFFENSE WITH WHICH THE ACCUSED IS NOW CHARGED
(MCM, 1969, (Rev.) par 75 b (2))
b. AN EXTRACT COPY OF THE ACCUSED’S MILITARY
RECORDS OF PREVIOUS CONVICTIONS IS APPENDED
(Exhibit )
NO
14. IN ARRIVING AT MY CONCLUSIONS | HAVE
CONSIDERED NOT ONLY THE NATURE OF THE
App. 41
OFFENSE(S) AND THE EVIDENCE IN THE CASE, BUT |
HAVE LIKEWISE CONSIDERED THE AGE OF THE
ACCUSED, HIS MILITARY SERVICE, AND THE
ESTABLISHED POLICY THAT TRIAL BY GENERAL COURT-
MARTIAL WILL BE RESORTED TO ONLY WHEN THE
CHARGES CAN BE DISPOSED OF IN NO OTHER MANNER
CONSISTENT WITH MILITARY DISCIPLINE.
YES
15. THE CHARGES AND SPECIFICATIONS ARE IN PROPER
FORM AND THE MATTERS CONTAINED THEREIN ARE
TRUE, TO THE BEST OF MY KNOWLEDGE AND BELIEF. (if
the answer is "NO" explain and indicate recommended action
on additional sheet).
NO
16. ANY INCLOSURES RECEIVED BY ME WITH THE
CHARGES AND NOT LISTED ABOVE AS AN EXHIBIT ARE
SECURELY FASTENED TOGETHER AND APPENDED
HERETO AS ONE EXHIBIT (exhibit If no such inclosures
were received check “NO").
NO
17. (Check appropriate box ONLY if trial is recommended)
TRIAL BY XX GENERAL SPECIAL
SUMMARY COURT-MARTIAL IS RECOMMENDED.
18. Remarks (if more space is required, attach additional
sheets
Check X Yes No _ If additional sheets
are attached.)
7A (cont.)
Extract from AFOSI Report
1O Exhibit 5*
Laboratory Report
1O Exhibit 6*
App. 42
Stmt of SrA Lynne E. Peeiman,
dtd 4 Sep 81
lO Exhibit 9*
Stmt of Joann C. Newak,
dtd 4 Sep 81
lO Exhibit 1O*
Special Order G-6, HQ 4789ABG,
dtd 29 Oct 81
lO Exhibit 15
Special Order G-7, HQ 47BSABG,
dtd 1 Dec 81
10 Exhibit 16
Reserve Order JA-20567, HQ ARPC,
dtd 22 Dec 81
lO Exhibit 17
Direction to Investigating
Officer
dtd 31 Dec 81
lO Exhibit 18
Grant of Immunity to SrA John
A. Liles,
dtd 17 Nov 81
lO Exhibit 19
Affidavit cf John A. Liles,
dtd 5 Jan 82
lO Exhibit 20
_ Affidavit of Capt John J. Powers,
dtd 30 Dec 81
lO Exhibit 21
Grant of Immunity to SrA Lynn E. Peelman,
dtd 17 Nov 81
1O Exhibit 22
Affidavit of Lynne E. Peelman,
dtd 31 Dec 81
lO Exhibit 23
Written stmt of SrA Lynne E. Peelman,
dtd 2 Dec 81
App. 43
lO Exhibit 24
AF Form 1175 & 3 pages
handwritten notes
lO Exhibit 25
* It should be noted this investigation includes the
investigating officer’s report of Major Maurice A. Deaver, Jr.,
dated 6 Nov 81, and the 14 exhibits therein contained. This
investigating officer heard the testimony on 6 Jan 81 of
Senior Airman John A. Liles and Senior Airman Lynne E.
Peelman, government witnesses, and Captain Raymond D.
Smith, Jr., called by the accused. Exhibits 15 to 30 inclusive
are the direct product of this investigating officer’s inquiry.
Exhibits 1 to 15 inclusive and the real evidence referred to in
item 8a. are the products of Major Deaver’s activities and are
enumerated herein for completeness.
Exhibit 29 is a verbatim statement made by accused’s
civilian Counsel claiming the charges should be dismissed
because of a conflict of interest by Capt Raymond D. Smith,
Jr., Area Defense Counsel at Griffiss AFB, who at one time,
represented the accused, SrA Lynne E. Peelman, and SrA
John A. Liles. Subsequent to his withdrawal as counsel for
the accused, Capt Smith apparently continued to represent
the other parties, both of whom were granted immunity
(Exhibits 19 and 22) and appeared as witnesses for the
government in this matter. This investigating officer makes
no recommendation on this matter which does not directly
relate to the form of the charges and specifications and the
truth thereof, but merely brings this to the attention of the
convening authority as it will obviously be raised upon any
trial and possible subsequent proceedings. Exhibits 21 and
25 were presented by accused oni this subject.
The elements of the additional offenses charged are
set forth at 1O Exhibit 30.
15. The investigating officer has checked “no” on tem 15
because of certain concern over the Charges and
Specifications.
Charge |, Specifications 1, 2 and 3: These are all based on
the testimony of AiC Ryan and supported by SrA Liles.
Since there is no proof the items transferred were
amphetamines, and it is alleged the accused said they were
“speed,” a synonym for amphetamines, these offenses have
been charged as attempts. An attempt requires a specific
intent to commit an offense which means a court-martial
must find the accuse believed the items to be speed. The
witnesses apparently took the accused seriously, and the
court could well find, considering the other transactions
involved, that the accused thought the items in these
specifications were amphetamines.
Charge Il: This was initially based on the expected testimony
of Julie Michalzuk, a civilian who declined to testify for the
prior investigating officer and whose statement to the OSI
(Exhibit 8) is not specific. However, for the period the
accused an SrA Peelman had their relationship (June to
August 81), SrA Peelman indicates the accused frequently
had amphetamines (Exhibit 23, page 2). There is no
certainty Miss Michaizuk will be found for the trial or how she
will testify.
(continued)
19: | HAVE NO PREVIOUS CONFLICT WITH THIS CASE OR
ANY CLOSELY RELATED CASE. (If any connection is
indicated, attach a full explanation). | AM NOT AWARE OF
ANY REASONS WHICH WOULD DISQUALIFY ME FROM
ACTING AS INVESTIGATING OFFICER. (If any reasons
appear to exist, attach a statement giving full details.)
Name
LAWRENCE H. GINGOLD
Grade
Lt. Col, USAFR
Organization
App. 45
4789 ABG/JA
Hancock Fid, NY 13225
Charge Ill, Specifications 1, 2 and 3: The proof for the period
15 December 80 to about May 26, is dependent on the
testimony of Miss Michaizuk, Exhibit 8 states, “She has
friends over to smoke" but does not state she gave her
friends the marijuana or anything to indicate transfer.
According to the testimony of SrA Peelman, there were at
least 30 transfers of marijuana from the accused to her in the
2 1/2months of their relationship (Exhibit 23, page 2). Also,
A1C Ryan and SrA Liles substantiate one incident on 10 July
1981.
Charge IV, Specification |: The testimony of A1iC Ryan
indicates the accused kissed her on the neck and not her
cheek as alleged. (Exhibit 4)
Charge IV, Specification 2: The testimony of A1C Ryan is that
this conversation took place on or about 9 July 1981 instead
of 25 June 1981. (Exhibit Il, page 1).
Charge IV, Specification 3: This specification,-too, is based
on the expected testimony of Miss Michalzuk, (Exhibit 7)
which for the present, cannot be assumed to occur or be
sufficient.
Charge IV, Specification 4: This specification was originally
based on the expected testimony of Miss Michalzuk (Exhibit
7), but did not state hugging and holding hands. It is
probable that if true, this happened with SrA Peeiman but
her testimony does not specifically refer to July 15, 1981.
Additional Charge, Specifications 1, 2 and 3: These are
based on the testimony of SrA Peelman. Specifications 2
and 3 appear the natural consequences of Specification 1
and I0 questions whether they should be separate offenses
App. 46
for sentencing purposes. While the sodomy offenses did not
occur on a military installation, it is my understanding such
jurisdiction has been upheld by an Air Force Court of Military
Review in US v. Coronado, 11 MJ 522, which case has been
argued before the Court of Military Appeals, but has not yet
been decided.
17. Recommendations as to Charges and Specifications:
A. Specification 3 and 4 of Charges IV should be
dismissed.
B. All other Charges and Specifications should be
referred to trial but the following changes should be made:
1. Charge Il, Specification - 15 December
1980 be deleted and 1 June 1981 be inserted instead.
2. Charge Ill, Specification 1 - 15 December
1980 be deleted and 27 May 1981 be inserted instead.
3. Charge Ill, Specification 2 15 December
1980 be deleted and 27 May 1981 be inserted instead.
oa Charge Ill, Specification 3 - 15 December
1980 be deleted and 27 May 1981 be inserted instead.
5. Charge IV, Specification 1 - the word,
"cheek" be deleted and the word, “neck” be inserted instead.
6. Charge IV, Specification 2 - 25 June 1981
be deleted and 9 July 1981 be inserted instead.
Other Comments:
_ SrA Peelman, SrA Liles and A1C Ryan will be
subject to extensive cross-examination upon any trial
because prior inconsistent statements, voluntary participation,
immunity, alcoho! abuse, etc. This 10 did not hear A1C
Ryan’s testimony, but SrA Peelman and Liles were
satisfactory witnesses for the government at the Article 32
Investigation. Nevertheless, they and all other witnesses
should be thoroughly prepared as to their total involvement
in this case. Accused’s civilian counsel is very experienced
in both federal and state criminal matters. On one occasion
during her cross-examination of SrA Peelman, she caused
App. 47
the witness to become confused about the date of her
statement to the OS! (Exhibit 9) and admit to something
being incorrect when in fact, the witness was correct. This
was not a material matter and while not specified in the
summary of SrA Peelman’s testimony, it is cited to show the
need for the thorough preparation of all trial witnesses.
App. 48
DEPARTMENT OF THE AIR FORCE
HEADQUARTERS NINTH AIR FORCE (TAC)
SHAW AIR FORCE BASE, SOUTH CAROLINA
29152
Y TO
OF: JA 4 FEB 1982
ECT: Advice and recommendations on Court-Martial Charges
Against Second Lieutenant Joann C. Newak, 167-38-0425FV,
Headquarters, 21st Air Division, Hancock Field, New York
TO: 9AF/CC
|. Preliminary Matters
| have read the attached charges against Second
Lieutenant Joann C. Newak, Headquarters Squadron 2ist Air
Division, Hancock Field, New York, pursuant to Article 34a,
Uniform Code of Military Justice. On 23 October 1981,
Lieutenant Colonel Herbert Fotheringham, 2ist Air Division,
Hancock Field, New York, preferred four charges alleging
variously that the accused attempted to violate a lawful
general regulation (Article 80, UCMJ); violated a lawtul
general regulation (Article 92, UCMJ); used, possessed and
transferred marijuana (Article 134, UCMJ); and conduct
unbecoming an officer (Article 133, UCMJ). On 31 December
1981, Lieutenant Colonel Fotheringham preferred one
Additional Charge alleging sodomy in violation of Article 125,
UCMJ. Major Maurice A. Deaver, Jr., 4787 Air Base Group,
Duluth International Airport, Minnesota investigated Charges
| through IV. He recommended steps be taken to make
several key witnesses available and thereafter that the
investigation be reopened. On 6 January 1982, Lieutenant
Colonel Lawrence H. Gingold, 4789 Air Base Group,
Hancock Field, New York, investigated Charges | through IV
again, and also the additional charge preferred on 31
App. 49
December 1981. He recommends trial by court-martial of all
charges and_ specifications with the exception of
specifications 3 and 4 of Charge IV. He recommends those
be dismissed. Colonel John A. Chambers, Commander,
4789th Air Base Group, Hancock Field, New York, concurs
with the recommendation of the investigating officer.
2. The Charges and Specifications
a. Charge | alleges three violations of Article 80,
UCMJ as follows:
(t) Specification 1 alleges the accused did at
North Syracuse, New York, on 6 July 1981, attempt to violate
a lawful general reguiation by wrongfully transferring a
substance which she believed to be amphetamines.
(2) Specification 2 alleges that the accused
did at North Syracuse, on 6 July 1981, atternpt to violate a
lawful general regulation by wrongfully transferring a
substance she believed to be amphetamines.
(3) Specification 3 alleges the accused did at
Clay, New York, on 10 July 1981 attempt to violate a lawful
general regulation by wrongfully transferring a substance
which she believed to be amphetamines.
b. Charge Il alleges one violation of Article 92,
UCMJ.
The specification alleges the accused did, at Clay,
New York, between the dates alleged, violate a lawful general
regulation by wrongfully having in her possession some
amphetamines.
c. Charge Ill alleges three violations of Article 134,
UCMJ as follows:
App. 50
(1) Specifications 1 alleges the accused did at
Clay, New York, between the dates alleged, wrongfully use
Marijuana.
(2) Specification 2 alleges the accused did at
Clay, New York, between the dates alleged, wrongfully
possess marijuana.
(3) Specification 3 alleges the accused at Clay,
New York, between the dates alleged, wrongfully transfer
marijuana.
d. Charge IV alleges four violations of Article 133,
UCMJ as follows:
(1) Specification 1 alleges the accused did at
Hancock Field, North Syracuse, New York, on 17 June 1981
engage in conduct unbecoming an officer and a gentleman
by wrongfully suggesting to an enlisted female person, that
such person was bisexual, kissing her on the check and
saying “I love you."
(2) Specification 2 alleges the accused did at
Hancock Field, North Syracuse, New York on 25 June 1981,
engage in conduct unbecoming an officer and a gentleman
by wrongfully admitting to an enlisted female person that she
(the accused) was having a homosexual relationship with
another enlisted female.
(3) Specification 3 alleges the accused did at
Clay, New York on 1 June 1981, engage in conduct
unbecoming an officer and a gentleman by wrongfully
admitting to a civilian that she (the accused) was having a
homosexual relationship with another female.
(4) Specification 4 alleges the accused did at
Clay, New York, on 15 July 1981 engage in conduct
eC PES OE. ER SP (1 6 ee F
—VnNV—V—V—_—VO_ EE ea ET
App. 51
unbecoming an officer and a gentleman by wrongfully
kissing, hugging and holding hands with an enlisted female
person.
e. The Additional Charge alleges three violations of
Article 125, UCM4J, as follows:
(1) Specification 1 alleges that the accused did
at Clay, New York, on the dates alleged, commit sodomy
with Senior Airman Lynne Peelman.
(2) Specification 2 alleges that the accused did
at Lexington, Tennessee, on the date alleged, commit
sodomy with Senior Airman Lynne Peelman.
(3) Specification 3 alleges that the accused did
at Lexington, Tennessee, on the date alleged, commit
sodomy with Senior Airman Lynne Peelman.
3. The Evidence
, Miss Julie Michalzuk has shared an apartment with the
accused in Clay, New York since December 1980. She has
seen the accused bring marijuana into the residence in a
small sandwich bag. The accused has also had friends over
to smoke marijuana. Sometimes the accused smoked
marijuana alone. Miss Michalzuk observed her smoke
marijuana at least once a week. In addition she also saw the
accused in possession of amphetamines. She overheard the
accused say that she took the solid black capsules. Around
the first of June 1981 the accused told Miss Michalzuk that
she was having a sexual relationship with another girl. The
girl (apparently Lynne Peelman) would stay with the accused
about five nights a week.
On 27 May 1981 after a softball game at Hancock
Field, New York, Senior Airman Peelman and the accused
decided to get some beer and drive around. The drive
App. 52
subsequently ended at the accused apartment in Clay, New
York. Peelman and the accused went to the basement of the
apartment and had another drink. The accused produced
some marijuana. Both she and Peelman smoked the
marijuana. Peelman had the expected reaction from smoking
the substance. During the course of the evening the accused
told Peelman, “I have these feelings for you, and would like
to give you a kiss." Peelman replied "Would you really?", at
which point the accused kissed her. They then caressed and
kissed some more. The evening ended when the accused
realized that she had to go to work.
The following day Peelman again went to the
accused’s apartment. The accused said she wouid like to
have a sexual relationship with Airman Peelman. They agreed
to see each other.
During the succeeding months they carried on a
homosexual relationship. Peelman estimates these acts
occurred on approximately 50 separate occasions, from the
end of May 1981 until August 1981. The acts that occurred
at the accused residence entailed the accused putting her
fingers and her mouth into Peelman’s vagina. Peelman
reciprocated. There was also kissing, caressing and sexual
stimulation during the homosexual acts.
On 4 July 1981 the accused and Peelman visited the
accused mother’s home in Vandling, Pennsylvania. In the
accused little sister’s room, they engaged in a homosexual
act while at the residence. They caressed, kissed and had
Orai-genital sex. The accused felt the area of Peelman’s
vagina with her hands and mouth. The accused put her
fingers and mouth into Peeiman’s vagina. Peelman did the
same to the accused. -
In early August 1981 the accused accompanied
Peelman to her home in Lexington, Tennessee. They stayed
there about 10 days to 2 weeks. While there they engaged
in homosexual acts. During the acts the accused would put
her fingers and mouth in Peelman’s vagina. Peelman would
perform the same acts on the accused.
App. 53
During their relationship the accused also furnished
marijuana to Peelman. Peelman estimates since the spring of
1981, she had visited the accused’s apartment several times
a week until late summer. Peelman and the accused used
marijuana some 30 times during this period, at the Clay, New
York apartment. In addition to the marijuana gave Peelman
a “black beauty", (slang term for amphetamines). The
accused also told Peelman she bought “speed” from an
Airman Pat Whelhan. Peelman has also been present at the
apartment during a party where both marijuana and “speed”
(amphetamines) were present.
On 17 June 1981 while at a softball field at Hancock
Field, New York, the accused approached Airman First Class
Donna L. Ryan. She told Ryan she knew why Ryan had
recently gotten a driving-under-the-influence violation. The
accused indicated that it was because Ryan was "bi" (slang
term indicating a person who engages in sexual relationships
with both sexes). Ryan pretended not to understand. Later,
the accused approached Ryan, kissed her on the neck and
said "I love you."
On 6 July 1981 while at a softbail field at Hancock
Field, New York, the accused invited Airman First Class Ryan
to a local bar. At the invitation of Ryan, an Airman First Class
John Liles also came alone. Just prior to going into a local
bar the accused took four pills out of a compartment of her
car. The accused said, “Here is some speed." She gave one
to Ryan, one to Liles and she took one. The accused split
the fourth pill with Liles. John Liles also recalls the accused
asking, “If they wanted some speed", just prior to going into
the nightclub. He remembers the accused took one and a
half tablets. He took one and believes Ryan only took half a
tablet. Airman Ryan turned over her pill to the OSI. The tablet
was subsequently chemically analyzed and revealed the
presence of no controlled substance.
On 9 July 1981 while at the ball park at Hancock
Field, the accused engaged in a conversation with Ryan
concerning the accused’s relationship with Peelman. The
a
App. 54
accused explained their first encounter when she had kissed
Airman Peeiman. Later than evening Ryan and the accused
took a drive around base. During the drive the accused
admitted to Ryan, that she and Peelman were having a
sexual relationship. Ryan inquired what went on. The
accused replied that it was something like a "girl and a guy
with less parts." "She (referring to Peelman) has versatile
erect fingers."
On 10 July 1981 Ryan went to the accused’s
apartment for dinner. The accused and Ryan picked up
Airman John Liles. They returned to the accused’s
apartment. That evening Liles and the accused smoked
marijuana. Marijuana was offered to Ryan and passed back
and forth between the people that were present. Ryan
obtained a sample of the substance, which subsequently
proved to be marijuana by chemical analysis. Also present
that evening was Peelman, the accused's two Civilian
roommates and Airman Whelhan. The accused produced a
bag of marijuana and passed it around. He remembers the
accused smoked the substance along with the others
present. During the evening the accused took Liles and Ryan
upstairs to her bedroom and said, “Here is something to
keep you awake." The accused then gave both he and Ryan
two tablets each.
4. Legal Analysis
a. Jurisdiction
The investigation was conducted in substantial
compliance with Article 32, UCMJ. The offenses which are
recommended be tried by general court-martial occurred in
the accused’s current term of service. All of the offenses with
the exception of Specifications 1 and 2 of Charge IV and
Specifications 2 and 3 of the Additional Charges were
committed near Hancock Field, New York, a United States
military installation. Specification 1 and 2 of the Additional
Charge were committed in Pennsyivania and Tennessee
App. 55
respectively. All of the offenses were committed in the
presence of active duly enlisted members or civilians that
were aware of the accused’s military status as an officer.
Charge IV and the Specification thereunder are offenses not
commonly prosecuted in civilian courts. All of the offenses
impair the accused’s ability to function effectively as an
Officer at Hancock Field, New York. The conduct represents
a threat to the military Community, a flouting of military
authority and a disgrace to the image of a United States
officer corps. Thus, under the circumstances the military has
an overriding interest in the prosecution of these offenses
which cannot be adequately vindicated in a civilian court.
Exercise of court-martial jurisdiction is appropriate.
O'Callahan_v,. Parker, 395 US 258 (1969); Redford v.
Commandant, 401 US 355 (1971); United States v. Alef, 3
M.J. 414 (CMA 1977); United States v. Trottier, 9 M.J. 337
(CMA 1980), United States v. Brown, 8 M.J. 501 (AFCMR
1979) and United States v. Coronado, 11 J.J. 522 (AFCMR
1981).
b. The Elements
(1) As to Specification 1, 2 and 3 of Charge | -
Attempt
That at the time and place alleged the
accused attempted to violate a lawful general regulation. _
The elements of the attempted offense
are:
(a) That there was in effect a certain
lawful general regulation; and
(b) That the accused had a duty to obey
such a regulation; and
(c) That at the time and place alleged the
accused violated such general regulation.
(2) As_to the Specification of Charge Il -
Violation of a Lawful G | Reguiati
App. 56
(a) That there was in effect a certain
lawful general regulation; and
(b) That the accused had a duty to obey
such a regulation; and
(c) That at the time and place alleged the
accused violated such general regulation.
(3) As to Specification 1 of Charge Ill - Use of
Mari
(a) That at the time and place alleged the
accused used marijuana;
(b) That such use was wrongful; and
(c) That under the circumstances the
conduct of the accused was to the prejudice of good order
and discipline in the armed forces or was of a nature to
bring discredit upon the armed forces.
(4) As to Specification 2 of Charge ili _-
p , :
(a) That at the time and place alleged the
accused possessed marijuana;
(b) That such possession was wrongful;
and
(c) That under the circumstances the
conduct of the accused was to the prejudice of good order
and discipline in the armed forces or was of a nature to
bring discredit upon the armed forces.
(5) As to Specification 3 of Charge Ill - Transfer
of Marijuana
(a) That at the time and place alleged the
accused transferred marijuana;
(b) That such transfer was wrongful; and
(c) That under the circumstances the
conduct of the accused was to the prejudice of good order
and discipline in the armed forces or was of a nature to
bring discredit upon the armed forces.
tsb That ot Ge tne ond place eleged the
accused did the acts alleged;
(b) That under the circumstances these
acts constitute conduct unbecoming an officer and a
gentieman.
(7) As to Specifications 1 through 3 of the
Additional C} - Sod
(a) That at the time and place alleged the
accused engaged in unnatural carnal copulation with the
person alleged.
c. The Proof
(1) As to Specifications 1 through 3 of
Charge | - Attempt
An act, done with the specific intent to commit an
offense, amount to more than mere preparation and tending,
even though failing, to effect it’s commission, is an attempt
to commit an offense. An accused may be guilty of an
attempt even though the commission of the intended offense
was impossible, because of the unexpected intervening
circumstances or even though the consummation of the
intended offense was prevented by mistake on the part of
the accused. An accused may be guilty of an attempt to
commit an offense, when she engages in conduct that would
constitute a crime, if the intended facts were as she believed
them to be. Paragraph 159, Manual for Courts-Martial 1969
(Rev). It is not essential that the offense be proved,only that
the accused intended to commit it, and took steps beyond
mere preparation. AFM 111-2, paragraph 3-2a.
The evidence establishes that the accused attempted
to violate a lawful general regulation, Air Force Regulation 30-
2, paragraph 3-4, when she used, possessed and transferred
Julie Michalzuk, and Airman Peelman. Mrs. Michalzuk’s sworn
statement dated 4 September 1981, states "| have also seen
in her possession a few amphetamines. They were solid
black capsules. | know she had taken them because |
overheard her telling someone that | knew." The accused told
Peelman that she bought “speed” from Pat Whelhan.
Peelman acknowledges receiving “speed” from the accused.
Peelman also testified that the accused said “She had
purchased some black beauties in Pennsylvania." She
showed these to Airman Peelman. Peelman indicated the
term “Black Beauty" is a slang word for amphetamines. They
both took these on occasion at the accused's residence in
Clay, New York.
The Specification requires the government to show
that Air Force Regulation 30-2 was a lawful general regulation
in effect and the accused has a duty to obey such
regulation. Simple introduction of the regulation into evidence
will establish these elements. The third element requires the
government to show that at the time and place alleged the
accused vvidlated the regulation by possessing
amphetamines. None of the witnesses indicated a date when
they saw the accused in possession of the alleged
amphetamines. However, Mrs. Michalzuk and Peelman only
had contact with the accused during the period alleged in
the Specification (15 December 1980 - 1 September 1981).
Therefore, it can be assumed that they observed the
EE eee
each element of the offense. However, at a minimum there
Ko
torces. Use, possession end erator of marquena ray be
acts directly prejudicial to good order and discipline and not
the acts which are prejudicial only in a remote or indirect
sense. The element contemplates cases in which the
prejudice is reasonably direct and palpable. Para 213b,
App. 60
Manual for Courts-Martial 1969 (Rev). Discredit means ‘to
injure the reputation of. Discrecitable conduct is conduct
which has a tendency to bring the service into disrepute or
which tends to lower it in the public esteem.
In my opinion the use, possession and transfer of
marijuana by the accused was wrongful; to the prejudice of
good order and discipline; and discrediting to the armed
forces. This is especially true as it was with or in the
presence of enlisted personnel.
Turning to the individual acts, the evidence to support
the Specification comes from the testimony of Senior Airman
Donna L. Ryan, Julie Michalzuk, Airman First Class John Liles
and Airman First Class Lynne Peelman. Without recounting
the specific testimony of each witness, suffice to say that
each can say they saw the accused use, possess and
transfer marijuana during 15 December 1980 to 1 September
1981 at Clay, New York on numerous occasions. Several of
the witnesses actually used the substance with the accused
and their testimony will suffice to establish t as marijuana.
On one occasion Senior Airman Ryan obtained a sarnple of
the substances which subsequently proved to marijuana after
chemical analysis.
Specification 3 of Charge Ill warrants comment.
Specification 3 alleges the transfer of marijuana. Transfer
means simply any kind of disposition resulting in a change
of possession. Simply passing a marijuana cigarette to
another will satisfy this definition. In the instant case there is
sufficient evidence to show the accused on numerous
occasions, passes marijuana to others.
“Conduct violative of this article is ...action or behavior
in an unofficial or private capacity which is dishonoring or
disgracing the individual personally, seriously compromised
his standing as an officer. This article contemplates conduct
App. 61
by a commissioned officer ..which, taking all the
Circumstances into consideration, is thus compromising."
Paragraph 212, MCM 1969 (Rev.). *...(T)he act which forms
the basis of the charge must have a double significance in
effect. Though it need not amount to a crime, it must offend
SO seriously against the law, justice, morality or decorum as
to expose to disgrace, socially or as a man, the offender and
at the same time must be of such a nature or committed
under such circumstances as to bring the dishonor or
disrepute upon the military profession which he represents."
Parker v. Levy, 417 US 753, 94 S.Ct. 2547, 2560, 41 LEd
2nd 439 (1974); United States v Coronado, 11 M.J. 522
(AFCMR 1981).
Specification 1 alleges the accused wrongfully
suggested to an enlisted female person that the person was
bisexual. Additionally, the accused without authority kissed
the enlisted female on the check and said, “I love you".
According to Airman First Class Ryan this act occurred at
Hancock Field, New York on 17 June 1981.
Initially, | note Airman Ryan's statement indicates that
the accused kissed her on the neck and not the check. |
recommend the Specification be amended to so reflect.
Ryan's testimony will establish each factual element of this
offense. Additionally, considering the purpose and intent of
Article 133, UCMJ, it is my opinion that the acts were
conduct unbecoming an officer. The kiss occurred in a
public place. The victim was an enlisted person of the same
service. The suggestion and nature of the conversation was
not proper between an officer and a subordinate.
Article 133, UCMJ, is not set out in the table of
maximum punishments. Paragraph 127, MCM 1969 (Rev.).
Punishment for violation of Article 133, UCMJ is determined
by equating conduct to another Article that adequately
describes the accused's acts. It is my opinion the totality of
the accused's acts constitute indecent, insulting or obscene
language communicated to a female of age 16 years or
older. This offense carries a penalty of dismissal, one year
_ App. 62
confinement at hard labor, forfeiture of all pay and
allowances.
The investigating officer recommended Specifications
3 and 4 not be referred to the court, because of the
nonavailability of a witness and the lack of evidence. | concur
in this recommendation. Additionally, | recommend that
Specification 2 not be referred to court. Although admissions
made by the accused concerning the alleged homosexual
relationship with Peelman will be admissible to support the
sodomy charge, it is not totally clear these admissions
violated Article 133, UCMJ. Additionally, it is not necessary
for the accused to be charged with every violation of the
UCM4J, rather that the charges should fairly and accurately
set out the pattern of major misconduct.
(5) Additional c! | Specifications 1. 2 and 3 -
Sodomy
Sodomy is the engaging in unnatural carnal
copulation, either with another person of the same or
opposite sex. It is unnatural carnal copulation for a person
to take into his or her mouth the sexual organ of another
person; or to place his or her sexual organ in the mouth of
another. Testimony of Senior Airman Peelman supports each
Specification in all particulars. In my opinion her testimony
will establish the date, time, place and specific acts by the
accused. Further these acts constitute sodomy in violation of
Article 125, UCMJ.
Single
c. Date of current service:
29 November 1979
App. 63
d. Prior Service:
29 August 1979 - November 1979
e. Education:
16 years
f. AFSC:
7524, Chief Operations and Tanng
g. Character of Service:
Good
h. Efficiency of service:
Good
i. Awards and Decorations:
None
6. Pretrial Restraint
The accused has not now and has not been confined
as a result of the charges.
The accused has not previously been convicted by
court-martial or punished under Article 15, UCMJ.
8. Selection of Court Members
lf you refer this case to trial, as convening authority,
it is incumbent upon you to select and appoint the
participants and members of the court-marital. The Uniform
Code of Military Justice requires that you select such
individuals as, in your opinion, are best qualified for the duty
by reason of age, education, training, experience, length of
service, and judicial temperament. When it can be avoided,
no member you select should be junior in rank or grade to
the accused. You may not detail any person who has been
the accuser, a witness for the prosecution, investigating
App. 64
Officer or counsel in this case. Subject to these limitations
you should endeavor to obtain, to the extent possible, an
average cross-section of the command population. In this
regard you may not exclude any person or group of persons
on the basis of race, color, national origin, religion or sex or
solely on the basis of rank or age.
9. Maximum Punishment
The maximum punishment for the recommended
Charges and Specifications is to be dismissed from the Air
Force, to be confined at hard labor for 39 years and to
forfeit all pay and allowances.
Specifications 2, 3 4 of ge
trial. | recommend that the remaining Charges and
Specifications be referred to trial. | recommend that
Specification 1 of Charge IV be amended by deleting the
word check and substituting the word neck. Additionally the
investigating officer recommended Charge Ii and the
Specification be amended by deleting 15 December 1980
and substituting 1 June 1981; Charge Ill and Specifications
1, 2 and 3 be amended by deleting 15 December 1980 and
substituting 27 May 1981. | do not concur in these
amendments. There is some evidence in the investigation
that wrongful acts occurred prior to the amended period
recommended by the investigating officer. Therefore, at this
point | recommend these amendments not be approved.
Should the evidence not conform to the dates alleged in
these Specifications the trial counsel should be permitted to
make the appropriate amendments. In my opinion the
evidence will establish the accused committed the offenses
alleged in the Charges and Specifications recommended for
trial_by general court-marital. The Specifications properly
App. 65
allege offenses under the Uniform Code of Military Justice
and are properly drafted, as amended. The Charges are
serious and can properly be resolved only by general court-
martial. In so concluding, | have considered the accused's
military record. Thus, | recommend the Charges and
Specifications as amended be referred to trial by general
court-martial.
/s/RONNIE D. COMPTON, Captain, USAF
Assistant Staff Judge Advocate
| have read the charge sheet, the Article 32 investigation, the
allied papers, and the foregoing advice. | concur with the
advice and the opinions and recommendations made therein.
lf you determine that trial by general court-marital is
appropriate, | will Cause special orders to be published
convening the court-martial, complete and authenticate for
you the indorsement on the third page of the charge sheet
in the prescribed manner, and transmit the charge sheet, the
Article 32 investigation, the allied papers, and this advice to
the trial counsel of the court.
ROBERT L. BRIDGE, Lt Colonel, USAF
Acting Staff Judge Advocate
APPROVED.
LARRY O WELCH
Lieutenant General, USAF
Commander
App. 66
DEPARTMENT OF THE AIR FORCE
HEADQUARTERS NINTH AIR FORCE (TAC)
SHAW AIR FORCE BASE,
SOUTH CAROLINA 29152
SPECIAL ORDER
AB-9
6 February 1982
A General Court-Marital is hereby convened. It may proceed
at Hancock Field, New York, to try such persons as may be
properly be brought before it. The court will be constituted
as follows:
MILITARY JUDGE
LT COL ROBERT H. LEONARD, 384-42-5365, HQ USAF Trial
Judiciary, First Circuit, Bolling AFB DC, certified, designated
and assigned in accordance with Art 26(b) and (c) (JAGO 1,
1 Jan 82), and previously sworn in accordance with Art
42(a), a Military Judge designated for detail by TJAG.
MEMBERS
[Names of members omitted]
COUNSEL
MAJ WILLIAM C. HENRY, 052-38-6789, HQ USAF Judiciary,
First Circuit, Bolling AFB DC, TRIAL COUNSEL, certified in
accordance with Art 27(b) (JAGO 1, 1 Jan 82), and
previously sworn in accordance with article 42(a), and
designated for detail by TJAG.
CAPT WILLIAM A. LYELL, JR., 461-82-6679, HQ 4789 ABG
(TAC), Hancock Field, NY, ASST TRIAL COUNSEL,
App. 67
designated Judge Advocate (JAGO 1, 1 Jan 82), not certified
in accordance with Art 27 (b).
CAPT DAVID F. EATON, 506-78-6540, HQ USAF Judiciary
Area Defense Counsel, Plattsburgh AFB NY, DEFENSE
COUNSEL, certified in accordance with Art 27(b) (JAGO 1,
1 Jan 82) and previously sworn in accordance with Art 42
(a), and designated for detail by TJAG.
LARRY D. WELCH,
Lt General, USAF
Commander ~
/s/EDWARD N. PASLICK
Major, USAF
Asst Chief of Administration
App. 68
REQUEST FOR TRIAL
BEFORE MILITARY JUDGE ALONE
(ART. 16, UCMJ)
UNITED STATE OF AMERICA
V.
Second Lieutenant Joann C. Newak
| have been informed that Lt Colonel Robert H. Leonard is
the military judge detailed to the court-martial to which the
charges and specifications pending against me have been
referred for trial. After consulting with my defense counsel, |
hereby request that the court be composed of the military
judge alone. | make this request will full knowledge of my
right to be tried by a court-martial composed of
(commissioned) ' officers
OOOOXX)?,
(Dated)
10 March 1982
(Signature of Accused)
/s/Joann C. Newak
(Typed Name and Grade)
Joann C. Newak
2Lt, USAF
Prior to the signing of the foregoing request, | advised the
above accused fully of his right to trial before a court-martial
composed of (commissioned) ' officers. OOOXXXX)?.
(Dated)
10 March 1982
(Signature of Defense Counsel)
~<a tel
/s/Faith A Seidenberg
(Typed name and Rank)
Faith A. Seidenberg
Civilian Defense Counsel
Argument is (not) requested.
(Dated)
10 March 1982
(Signature of Trial Counsel)
/s/William C. Henry
(Type name and Rank)
William C. Henry
Major, USAF
The foregoing request for trial before me alone is hereby:
X Approved
Disapproved
(Dated)
10 March 1982
(Signature of Military Judge)
/s/Robert H. Leonard
(Typed Name and Rank)
Robert H. Leonard
Lt Colonel, USAF
’ Delete when the accused is a warrant officer or enlisted
member.
2 Delete when the accused is a commissioned officer or
warrant officer.
a
App. 70
REPORT OF RESULT OF TRIAL
Date 11 Mar 82
To: (Address to record commander of accused)
21 ADS
NOTIFICATION UNDER MCM 1969 (REV.), PARA **e, IS
HEREBY GIVEN IN THE CASE OF:
Last Name - first name - middle initial
NEWAK, JOANN C.
Grade
0-1
SSSN
167-38-0452
Organization
21st Air Defense Squadron
TYPE OF COURT
x General
xX Judge alone
SUMMARY OF CHARGES, SPECIFICATIONS, PLEAS AND
FINDINGS
UMC Article 80
Gist of offense Attempt to violate a lawful general regula.
Pleas Not guilty
Findings Guilty
UMC\ Article 92
Gist of offense Did violate a lawful general regulation
Pleas Not guilty
Findings Guilty
UMCJ Article 134
Gist of offense Use, possess, transfer marijuana
Pleas Not Guilty
Findings Guilty
UMC Article 133
App. 71
Gist of offense Conduct unbecoming an officer
Pleas Not Guilty
Findings Guilty
UMC Article 125
Gist of offense Commit Sodomy
Pleas Not Guilty
Findings Guilty
Sentence
To a dismissal
Forfeiture of all pay and allowances
Confinement at hard labor for seven years
Date sentence adjudged
11 March 1982
Distribution (Prescribed by convening authority)
4789/CC
4789/DP
4789/ACF
SAF/JA
4789/JA
416CSG/SP
CHECK ONE
x trial counsel
summary court officer
Appointed by:
SO AB-9
Dated
6 Feb 82
Headquarters
SAF
sn nneeile
App. 72
Typed name and grade
WILLIAM A. LYELL, Jr. Capt, USAF
Assistant Trial Counsel
/s/Willaim A. Lyell, Jr.
App. 73
DEPARTMENT OF THE AIR FORCE
HEADQUARTERS NINTH AIR FORCE (TAC)
SHAW AIR FORCE BASE, S$ C 29152
JA
12 APR 1982
Substitution of General Court-Martial Convening Authority -
U.S. v Newak
12AF/JA
Headquarters Tactical Air Command has designated your
headquarters as the General Courts-Martial Convening
Authority in subject case. On 17 November 1981, the
Commander, Ninth Air Force, granted immunity to Senior
Airman Lynn E. Peeiman and Airman John A. Liles in order
to secure their testimony against Second Lieutenant Newak.
The immunity grant was requested by the 4789 ABG/JA,
Hancock Field, New York, with the concurrence of the
SPCMCA. Lieutenant Newak was subsequently tried by
General Court-Martial; Airman Peelman and Airman Liles
testified for the government. The case resulted in a
conviction of the accused. Under the circumstances, SAF /CC
is disqualified from taking action in subject case.
FOR THE COMMANDER
/s/DONALD B. STRICKLAND,
Colonel, USAF
Staff Judge Advocate
|
App. 74
20 April 1982
CERTIFICATE OF CORRECTION
UNITED STATES
v
NEWAK, JOANN C.
167-38-04522
The record of trial in the above case, which was tried
by the General court-martial convened by Special Order AB-
9, HQ SAF, dated 6 February 1982, as amended by Special
Order AB-23, HQ SAF, dated 4 March 1982, at Hancock
Field, New York on 10 and 11 March 1982, is corrected by:
1. Inserting the First Specification of Charge Ill, on
page 7, as follows:
Specification 1: In that SECOND LIEUTENANT JOANN C.
NEWAK, United States Air Force, 2ist Air Division, did, at
Clay, New York, on numerous occasions, from on or about
15 December 1980, ae aa ee 1981,
wrongfully use marijuana.
This specification was omitted by error during typing of the
record.
2. Changing what is now designated as Specification
1 of Charge Ill, on page 7, to the designation of Specification
2. No change to the text of Specification 2 is required.
This correction is made due to an administrative oversight
during preparation of the record.
/s/ROBERT H. LEONARD, Lt. Colonel, USAF
Military Judge
Bolling AFB, DC 20332
a
App. 75
STAFF JUDGE ADVOCATE'’S REVIEW
O F TRIAL BY COURT -
MARTIAL
x General
MJ Alone
1. Date of Review
06 May 1982
2. Date of Trial:
10 & 11 March 1982
3. To:
12 AF/CC
4. Place of Trial:
Hancock Field, New York
The attached record of trial by court-martial has been
referred to me in accordance with the provisions of the
UCMJ and MCM »~ox 1969 (Revised). | have examined the
record and submit herewith my review with opinions,
recommendations and reasons therefore.
ACCUSED
5. United States v.
Newak, Joann C.
6. S SAN
167-38-0452
7. Grade
2LT 0-1
8. AFSC
07524
9. Character of service (Prior to charges)
SATISFACTORY
10. Age at time of earliest offense
-23-
11. Married
Never
12.
13.
24.
25.
27.
App. 76
AFQT
N/A
AQE
N/A
. Organization
21st Air Division
. No. School years completed
16
. Airman on court
No
. Civilian Counsel
Yes
. No. Previous convictions
-0-
. No. of article 15 punishments
-0-
. Psychiatric report
No
PRETRIAL PAY DATA
$1,099.80
. SEA or Foreign duty
-
Total
$1,099.80
Class Q
7%
No. of dependents
None
RECORD OF SERVICE
. Initial date of current service
29 November 1979
Total creditable active service to date of sentence
30 months
. Term of current service
Four years
App. 77
DATA AS TO PRETRIAL RESTRAINT
. Nature and date of any restraint imposed
None
. Location
N/A
. Total days
N/A
PLEAS, FINDINGS AND SENTENCE
32. Sentence adjudged
Dismissal, CHLx7 Yrs, TF
33. Date Adjudged
11 Mar 1982
34. Sentence approved by C/A (special)
N/A
. Maximum sentence for offenses sustained upon review
Dismissal, CHLx7 yrs, TF
. Sentence recommended
Dismissal, CHLx6 yrs, TF
37. Place of confinement
USDB, Fort Leavenworth, Kansas
&
&
38. SYNOPSIS OF CHGS AND SPECS
CH I: Viol of UCMJ, Art 80
Spec 1: At N.Syracuse,NY, o/a
6 Jul 81, attempt to violate para
3-4, AFR 30-2, dated 22 Jun 81, by
transferring what she believed to
be amphetamines.
Spec 2: At N.Syracuse, NY, o/a
6 Jul 81, attempt to violate
para 3-4, AFR 30-2, dated 22 Jun 81,
by using what she believed to be
amphetamines.
Spec 3: At Clay, NY, 0/a10 Jun 81,
attempt to violate para 3-4, AFR
App. 78
30-2, dated 22 Jun 81, by trans-
ferring what she believed to be
amphetamines.
CH Il: Viol of UCMJ, Art 92
Spec: At Clay, NY, from o/a
15 Dec 80 to o/a1 Sep 81
violate para 3-4, AFR 30-2,
dated 22 Jun 81, and/or
para 4-4, AFR 30-2, dated
8 Nov 76 by possessing
amphetamines.
CH Ill: Viol of UCMJ, Art 134
Spec 1: At Clay, NY, on numerous
occasions from o/a15 Dec 80 to
1 Sep 81, wrongfully use
marijuana.
Spec 2: At Clay, NY, on numerous
occasions from o/a15 Dec 80 to
o/a1 Sep 81, wrongfully possess
marijuana.
Spec 3: At Clay, NY, on numerous
occasions from 0o/a15 Dec 80 to
1 Sep 81, wrongfully transfer
marijuana.
CH IV: Viol of UCMJ, Art 133
Spec: At Hancock Fid, NY, o/a
17 Jun 81 wrongfully suggest
to an enlisted female that
she was bisexual and without
authority kiss the enlisted
female on the neck and say,
"I love you.”
ADD CH: Viol of UCM4J, Art 125
App. 79
Spec 1: At Clay, NY, on numerous
occasions from 0/a27 May 81
to o/a1 Sep 81, commit sodomy
with SrA Lynne E. Peelman.
Spec 2: At Vandling, PA, o/a
6 Jul 81 commit sodomy
with SrA Lynne E. Peelman.
Spec 3: At Lexington, TN,
during Aug 81, commit sodomy
with SrA Lynne E. Peelman.
39. PLEAS .
CH I: NG
Spec 1: NG
Spec 2: NG
Spec 3: NG
CH Il: NG
Spec: NG
CH Ill: NG
Spec 1: NG
Spec 2: NG
Spec 3: NG
CH IV: NG
Spec: NG
ADD CH: NG
Spec 1: NG
Spec 2: NG
Spec 3: NG
40. FINDINGS
CH I:
Spec 1:
Spec 2:
Spec 3:
CH I11:G
Spec 1:
Spec 2:
Spec 3:
CH IV:
Spec:
ADD CH:
Spec 1:
Spec 2:
Spec 3:
OO QMAAAD
OOOO AD AAD
41. APPROVAL RECOMMENDED
Yes
No
No
Yes
G of LIO of Article 80
G of LIO of attempted
Yes
Yes
Yes
poseession of amphetamine
App. 81
Spec 3: Yes
CH IV: Yes
Spec: Yes
ADD CH: Yes
Spec 1: Yes
Spec 2: Yes
Spec 3: Yes
42. PRELIMINARY MATTERS
The accused was tried by general court-martial at
Hancock Field, New York, on 10 and 11 March 1982 upon
the charges and specifications reflected above. The court
was convened by the Commander, Ninth Air Force. Airman
John A. Liles and Senior Airman Lynne E. Peelman,
witnesses at the accused’s trial, testified under grants of
immunity issued by the general court-martial convening
authority. The testimony of witnesses testifying pursuant to
grants of immunity disqualifies the general court-martial
convening authority who issued the grants of immunity from
taking post-trial action in this case. United States v. White,
10 USCMA 63, 27 CMR 137 (1958). Pursuant to the
provisions of AFM 111-1, Paragraph 7-22, Headquarters
Tactical Air Command has designated you as the General
Court-Martial Convening Authority to take post-trial action in
this case.
43. EVIDENCE BEFORE FINDINGS
A For the prosecution
Airman First Class Donna L. Ryan started
working in May or June 1981 as an AFOSI undercover
source of information (R.7I, 104, Def Ex A). On 17 June
1981, at a softball game on Hancock Field, New York, the
App. 82
accused placed her arm around Airman Ryan and stated
Airman Ryan received a driving while intoxicated citation
because Airman Ryan was a bisexual. Shortly thereafter,
while trying to convince Airman Ryan to go to a “queer bar,"
the accused put her arm around Airman Ryan, kissed Airman
Ryan on the neck, and said she loved her (R.72-3,75). At
this time the accused and Airman Ryan were casual
acquaintances and not friends. Airman Ryan considered the
accused’s actions and remarks offensive (R.90).
On 6 July 1981, Airman Ryan accompanied the
accused and Airman John Liles, from Hancock Field, New
York, to various bars in North Syracuse, New York. One of
the bars they visited was the Rock Odyssey which is also
known as the Video Two and Video Eleven (R.73,90). Prior
to entering this bar, the accused produced some pills which
she represented to be “speed” or “speckled eggs" from her
auto console. The accused gave one pill to Airman Ryan,
one to Airman Liles, broke another in two, gave half to
Airman Liles and then swallowed a fourth tablet and haif of
the broken tablet (R.74). Airman Ryan placed the tablet she
was given in her pocket and later provided it to AFOSI
(R.74,104). Speed is a street name for amphetamines (R.90).
On 10 July 1981, Airman Ryan went to the
accused’s oOffbase quarters in Clay, New York, at the
accused’s invitation for dinner (R.76,93). After dinner the
accused produced a bag of marijuana from under the
dresser in her bedroom and pills similar to those she had
provided on 6 July 1981. The accused transferred two of
the pills to Ryan and two to Liles. Airman Ryan put the pills
given to her in her pocket and later provided them to AFOSI
(R.77-9,104). The accused then prepared four or five “joints”
from the marijuana which were smoked by the accused,
Liles, Senior Airman Lynne Peelman, the accused's civilian
roommates, and others present at the house (R.77,/33).
Airman Ryan picked up three of the “roach" butts which she
later released to AFOSI (R.78,/04).
App. 83
During the period December 1980 through
October 1981, Julie Michalzuk shared rental of a house in
Clay, New York, with the accused. During this period she
observed the accused in possession of and using marijuana
in the house on a number of instances (R.92-3). She also
observed the accused in possession of two or three black
pills (R.94). During the period between May and September
1981, Airman Peelman saw the accused in possession of
black pills which the accused identified as “black beauties"
or “speed.” She received some of these from the accused
and after taking one experienced a “supersonic" effect (R. 13!-
2). The accused and Airman Peeiman believed both the
speckled pills and the black pills to be amphetamines (R.|30).
The pills received by Airman Ryan on 6 and 10
July 1981 after being released to AFOSI/ were analyzed and
found to contain no controlled substance (R.I05, Pros Ex 1).
The cigarette butts released to AFOSI by Airman Ryan
following 10 July 1981 were found to contain marijuana
(R.105, Pros Ex 1).
In May 1981, Airman Peelman met the accused
who she knew to be an officer assigned to Hancock Field,
New York. They are assigned to the same unit (R.126). At
the accused's invitation, Airman Peelman accompanied the
accused to her quarters in Clay, New York, where they drank
beer, smoked marijuana, and engaged in petting and
caressing one another (R.127-8). Following this incident,
Airman Peelman drove the accused to work at Hancock Field
(R.I29). From this incident in mid-May 1981 until midsummer
1981, the accused and Airman Peelman smoked marijuana
supplied by the accused on numerous instances at the
accused’s quarters (R.I29-I30). During this period a
homosexual relationship developed between the accused
and Airman Peelman. On numerous occasions Airman
Peelman spent the night at the accused’s quarters in Clay,
New York. On the Fourth of July weekend in 1981, the
accused and Airman Peelman visited the accused’s home in
Vandling, Pennsylvania. In August 1981, the accused and
App. 84
Airman Peeiman visited Airman Peeiman’s home in Lexington,
Tennessee. On numerous instances at the accused's
quarters in Clay, New York, and while at Vandling,
Pennsylvania, and Lexington, Tennessee, the accused and
Airman Peelman engaged in homosexual activity which
included mutual oral-genital contact and stimulation (R.I33-
6). The accused orally acknowledged this homosexual
relationship with Airman Peelman to Airman Ryan (R.76).
B. For the Defense
Airman Ryan has suffered from a problem of
excessive use of alcohol and prior to meeting the accused
had entered herself into the Social Actions Alcohol
Rehabilitation Program (R.87). On the night of 6 July 1981
when she went “bar hopping” with the accused and Airman
Liles, Airman Ryan consumed seven to nine drinks (R.84).
Airman Ryan smoked marijuana while in high school, before
coming into the Air Force but has not smoked since being
in the Air Force (R.89).
44. ANALYSIS OF FINDINGS
(a) Thatat North Syracuse, New York,
on or about 6 July 1981, the accused did a certain overt act;
that is, wrongfully transferred a substance that she believed
to be amphetamines;
(6) That the act was done with the
specific intent to commit the offense of violation of paragraph
3-4, AFR 30-2, dated 22 June 1981, by transferring
amphetamines;
(c) That the act amounted to more
than mere preparations; that is, it was a direct movement
App. 85
towards the commission of the intended offense; and
(d) That the act apparently tended to
effect the commission of the intended offense; that is, the act
apparently would have resulted in the actual commission of
the intended offense except for circumstances unknown to
the accused which would have prevented the completion of
that intended offense.
With regard to the requirement that an
overt act be done with the specific intent of the accused to
commit the offense alleged, it need not be proved that the
accused actually committed that offense. However, it must
be proved beyond a reasonable doubt that the accused’s
intent embraced each and every element of that offense.
These elements are: That there was in effect a certain lawful
regulation in the following terms: paragraph 3-4, AFR 30-2,
dated 22 June 1981, prohibiting the transfer of a controlled
substance to include amphetamines; (2) that the accused
had a duty to obey such regulation; and (3) that at the time
and place alleged, the accused failed to obey this lawful
general regulation by transferring amphetamines.
(2) Charge |, Specification 2
(a) That at North Syracuse, New York,
on or about 6 July 1981, the accused did a certain overt act;
that is, used a substance she believed to be amphetamines;
(6) That the act was done with the
specific intent to commit the offense of violation of paragraph
3-4, AFR 30-2, dated 22 June 1981, using amphetamines;
(c) That the act amounted to more
than mere preparation; that is, it was a direct movement
toward the commission of the intended offenses; and
(d) That the act apparently tended to
effect the commission of the intended offense; that is, the act
would have resulted in the actual commission of the intended
offense except for a circumstance unknown to the accused
which prevented the completion of the intended offense.
App. 86
The elements of the completed offense
are: (1) that there was in effect a certain lawful general
regulation, to wit: paragraph 3-4, AFR 30-3, dated 22 June
1981, prohibiting the lawful use of controlled substances to
include amphetamines; (2) that the accused had a duty to
obey such regulation; and (3) that at the time and place
alleged, the accused violated this lawful general regulation by
(3) Charge |, Specification 3
(a) That at Clay, New York, on or
about 10 July 1981, the accused did a certain overt act; that
is, transferred a substance she believed to be
amphetamines;
(6) The act was done with the specific
intent to commit the offense of violation of paragraph 3-4,
AFR 30-2, dated 22 June 1981, by transferring
amphetamines;
(c) That the act amounted to more
than mere preparation; that is, it was a direct movement
towards the commission of the intended offense; and
(d) That the act apparently tended to
effect the commission of the intended offense; that is, the act
would have resulted in the actual commission of the intended
offense except for circumstances unknown to the accused
which prevented the completion of that intended offense.
The elements of the completed offense
are: (1) that there was in effect a certain lawful general
regulation in the following terms: paragraph 3-4, AFR 30-2,
dated 22 June 1981, prohibiting the transfer of controlled
substances to include amphetamines; (2) that the accused
had a duty to obey such regulations; and (3) that at the time
regulation by transferring amphetamines.
App. 87
(4) Charge Il, Specification
(a) That from on or about 15
December 1980 to on or about 21 June 1981, there was in
effect a certain lawful general regulation in the following
terms, paragraph 4-4, AFR 30-2, dated 8 November 1976,
which provided Air Force members will not possess any
dangerous drugs specified in paragraph 4-2b. Paragraph
4-2b includes amphetamines; from on or about 22 June 1981
to on or about 1 September 1981, that there was in effect a
certain lawful general regulation in the following terms:
paragraph 3-4, AFR 30-2, dated 22 June 1981, providing that
military members must not possess any dangerous drugs as
specified in paragraph 3-3c(3). Paragraph 3-3c(3) of such
regulation defines dangerous drugs to _ include
amphetamines.
(6) That the accused had the duty to
obey such regulation/regulations; and
(c) That at Clay, New York, from on
or about 15 December 1980 to on or about 1 September
1981, ee oe
offense of attempt to violate the regulations in issue are:
(a) That at North Syracuse, New York,
on or about 15 December 1980 to on or about 1 September
1981, the accused did a certain overt act; that is, possessed
a substance she believed to be amphetamines;
(6) That the act was done with the
specific intent to commit the offense of violation of paragraph
3-4, AFR 30-2, dated 22 June 1981, and/or paragraph 4-4,
AFR 30-2, dated 8 November 1976, possessing
amphetamines;
(c) That the act amounted to more
than mere preparation; that is, it was a direct movement
toward the commission of the intended offenses; and
(d) That the act apparently tended to
App. 88
effect the commission of the intended offense; that is, the act
would have resulted in the actual commission of the intended
offense except for a circumstance unknown to the accused
which prevented the completion of the intended offense.
(5) Charge Ill
(a) That at Clay, New York, on
numerous occasions from on or about 15 December 1980 to
on or about 1 September 1981, the accused used
(Specification 1), possessed (Specification 2), and transferred
conduct of the accused was to the prejudice of good order
and discipline in the Armed Forces or was of a nature to
bring discredit upon the Armed Forces.
(6) Charge IV
(a) That at Hancock Field, North
Syracuse, New York, on or about 17 June 1981, the accused
made a statement to Airman Donna L. Ryan, a female
member of the United States Air Force, that Airman Ryan
was bisexual and proceeded without authority to kiss Airman
Ryan on her neck and make the statement, “I love you;" and
(6) That under the circumstances the
accused's conduct was unbecoming an officer and a lady.
(7) Additional Charge
(a) That at Clay, New York, from on
or about 27 May 1981 to on or about 1 September 1981
(Specification 1), at Vandling, Pennsylvania, on or about 4
July 1981 (Specification 2), at Lexington, Kentucky, during
August 1981 (Specification 3), the accused engaged in
—
_
App. 89
unnatural carnal copulation with Senior Airman Lynne E.
Peeiman. it is unnatural carnal copulation for a person to
take into her mouth the sexual organ of another or to place
her sexual organ in the mouth of another.
B. Proof
The testimony of Airman Ryan establishes that
on 6 July 1981 at North Syracuse, New York, the accused
transferred and used what she represented to be
amphetamines. Her testimony further establishes that on 10
July 1981 at Clay, New York, the accused again transferred
amphetamines. The testimony of Airman Peelman establishes
that both she and the accused believed these pills, which
were established by chemicai analysis to be caffeine, to have
been amphetamines. The testimony of Airman Peelman
establishes that during the period 15 December 1980 to 1
September 1981 at Clay, New York, the accused possessed
some black capsules which she referred to as “black
beauties" and believed to amphetamines. Airman Peelman
took one of these pills and experienced a substantially
greater reaction from it, than from the pill found by laboratory
analysis to be caffeine. She describes her reaction to this
pill as being a “supersonic effect." Miss Julie Michalzuk
confirms the accused’s possession of this black capsule.
The testimony of Airman Ryan, Airman Peelman, and Miss
Michaizuk establishes that on numerous instances during the
period from on or about 15 December 1980 to 1 September
1981, the accused possessed, used, and transferred
marijuana at her off-base quarters in Clay, New York.
The testimony of Airman Ryan establishes that
on 17 June 1981 at Hancock Field, North Syracuse, New
York, the accused stated to Airman Ryan that Airman Ryan
was bisexual and that she, the accused, “loved” Airman
Ryan. This testimony also establishes that at this time the
accused without authority kissed Airman Ryan on the neck.
That such actions are wrongful and conduct unbecoming an
App. 90
Officer is established by the casual nature of the relationship
between the accused, a female officer and Airman Ryan, a
female enlisted woman, by the offense Airman Ryan took the
the accused’s conduct and by the circumstances of the
incident.
The accused’s commission of sodomy at Ciay,
New York, during the period 27 May 1981 to 1 September
1981, at Vandling, Pennsylvania, on or about 6 July 1981,
and at Lexington, Tennessee, during August 1981 is
established by the testimony of Airman Peelman. The
accomplice testimony of Airman Peelman is corroborated by
the accused’s admissions of her homosexual relationship
with Airman Peeiman made to Airman Ryan on 9 July 1987.
45. LEGAL ISSUES
A. ion ic} Testimony of Airm
Liles
In rebuttal to defense impeachment of the testimony
of Airman Ryan on grounds that she had questionable
recollection of the events of 6 July 1981 based upon
indulgence in alcohol, the government sought to introduce
the Article 32 testimony of Airman Liles who the government
contended was unavailable under the Military Rules of
Evidence (MRE), Rule 804a. The evidence as developed at
trial establishes that Airman Liles had been allowed to depart
upon emergency leave a few days prior to trial because of
his mother suffering a heart attack. The squadror:
commander elected to not attempt to recall Airman Liles
(R.11). The Article 32 testimony was only prepared the day
prior to trial and notice of the government's intent to attempt
to present. the Article 32 testimony at trial was provided
defense the afternoon prior to trial. In reaching his
determination of unavailability of the witness, the military
judge appears to have based his determination upon MRE,
Rule 804 (a) (4) and/or (5). | conclude the determination
App. 91
that the witness is unavailable is erroneous under either
provision. Subparagraph 5 clearly does not apply as the trial
counsel acknowledged the unit commander made a decision
not to attempt to recall the witness. Subparagraph 4,
despite argument by trial counsel to the contrary, has
traditionally been limited to unavailability based upon death
or illness of the declarant. Saltzburg, Federal Rules of
Evidence Manual, p.606 (1977). As an alternative basis for
admissibility of the prior testimony the military judge relies
upon MRE, Rule 803(24). | find this rule equally inapplicable
as a basis for admission, as | conciude the Article 32
testimony is no-more probative than the testimony of the
witness would be and there is no showing that the testimony
of the witness could not be obtained through reasonable
efforts. Conciuding that the introduction of the Article 32
testimony of Airman Liles was error, we must now evaluate
the appropriate remedy for the error. While | consider it
arguable that the introduction of this testimony was harmless
in view of the testimony of Airman Ryan which | consider to
be sufficient by itself to support a finding of guilty beyond
a reasonable doubt as to the 6 July 1981 offenses, in view
of the concern expressed by the government in seeking to
offer this evidence to counter what they see as impeachment
of Airman Ryan concerning the 6 July 1981 incident, |
recommend you disapprove the findings of guilty of the two
§ July 1981 offenses.
B. Possession of Amphetamines
In the specification of Charge II the accused is
charged with the possession of amphetamines at Clay, New
York, during the period 15 December 1980 to 1 September
1981 in violation of paragraph 3-4, AFR 30-2, dated 22 June
1981, and/or Paragraph 4-4, AFR 30-2, dated 8 November
1976. To approve the finding of guilty of this charge you
must be convinced beyond reasonable doubt that the
capsules referred to at trial as "Black Beauties" and clearly
App. 92
believed by the accused and Airman Peelman to be
amphetamines were in fact amphetamines. | conciude the
only evidence available to support this conclusion is the
testimony of Airman Peelman that when she took this
substance she experienced a “supersonic effect." In the
absence of any testimony establishing that Airman Peelman
qualifies as an expert concerning the results of amphetamine
use, | conclude reasonable doubt exists as to what this
substance in fact was. | therefore recommend you approve
only so much of the finding of Charge Il as includes the
lesser included offense of attempted violation of the same
regulations, in violation of Article 80, UCMJ, by wrongfully
possessing what she believed to be amphetamines.
C. There were no other errors or irregularities
which materially prejudiced the substantial rights of the
accused, and | conclude the evidence discussed above,
properly supports the remaining findings of the military
judge, of the accused’s guilt, beyond a reasonable doubt.
The following matters do, however, deserve comment.
(1) Motion to Dismiss Based Upon Denial of
Right to Counsel
At the commencement of the AFOSI
investigation in this case, Captain Powers, then ADC at
Griffiss AFB, New York, was appointed and served as
defense counsel for both the accused and Airman Peelman.
While a potential conflict of interest was recognized none
then existed (R.I7-22). At a later time Captain Smith took over
Captain Powers’ ADC duties upon the PCS reassignment of
Captain Powers. These duties included representation of
both the accused and Airman Peelman. In October 1981,
the government initiated and obtained immunity for Airman
Peelman. The defense did not initiate or request this
immunity (R.35). When the immunity was granted an actual
conflict of interest existed between the accused and Airman
App. 93
Peelman so Captain Smith’s supervisor, Lieutenant Colonel
Sweeney, relieved Captain Smith of duties representing the
accused and assigned the accused another defense counsel.
Captain Smith continued to represent Airman Peelman
(R.32). The defense contends this chain of events warrants
dismissal of charges based upon violation of the 6th
Amendment and denial of effective assistance of counsel to
the accused. The defense cites no authority for their position.
| conclude the record establishes no impropriety concerning
the accused’s right to counsel and that the military judge
properly denied the motion (see People v. Davis, 26 Cal.
Rpts. 903 [Cal. Dist. Ct. of Appeals, 3rd Dist., 1962] )
(2) Jurisdiction
As Charge IV is alleged to have taken
place on a military installation, military jurisdiction exists.
United States v. Paxino, 18 USCMA 608, 40 CMR 320 (1969).
Charge |, Il, and Ill allege off-base drug offenses by the
accused, an Officer in the United States Air Force, involving
or in the presence of enlisted personnel of the United States
Air Force. The circumstances of these drug offenses
establish the existence of service connection over them.
United States v. Trottier, 9 MJ 337 (CMA 1980). It has been
held that the Air Force has jurisdiction over off-base sodomy
charges between members of the military where the
continuing course of homosexual .conduct between the
accused and the co-actor was inextricably bound up with
their duty performance. United States v. Brown, 8 M.J. 501
(AFCMR 1979); pet. denied 8 M.J. 234 (1980). See also
United States v. Coronado, 11 M.J. 522 (AFCMR 1981).
46. EVIDENCE BEFORE SENTENCE
A. r ion
The accused was entitled to wear the training
ribbon for OTS.
B. For the Defense
Colonel Richard |. Lay, Jr., testified he nas
known the accused for several years, since her arrival on-
base, in his capacity as the assistant deputy for operation,
the section in which the accused is assigned. He states she
has a good work record and has performed all duties
assigned to her. He is familiar with the accused’s job and
considers it a position of responsibility. He does not believe
a person convicted of the offenses the accused was found
guilty of has the attributes an officer in the Air Force should
possess.
Lieutenant Colonel Duaine E. Alderman, the 2lst
Air Division, Director of Operations and Training, testified that _
he knew the accused from working with her on the battle
staff where she was the Aircraft Control Warning Officer.
They worked together for about two years. He has
observed her to be a good worker. He is currently her
reporting official and has given her one OER which he
considers to be a good one. He finds her conscientious and
a cooperative worker. He has never seen her come in drunk
or had to write her up.
Chief Master Sergeant Andrew Watson testified
he had known the accused slightly over two years as a
friend and coworker. He has found her to have a capable
mind. He has never seen her come to work under the
influence of drugs or alcohol. He had the impression that
_ she was able to perform her duties at all times she was at
work.
The defense introduced the accused’s OERs for
the period 24 April 1981 through 21 October 1981 and 24
October 1980 through 23 April 1981 with evaluations of
potential of "1" and the accused’s OERs for the period 24
April 1980 through 23 October 1980 and 29 November 1979
through 23 April 1980 with evaluations of potential of "2" and
App. 95
four certificates of training.
The testimony of Commander Strachi was
received by stipulation. He testified he knows the accused
at work where he was Plans Officer. He had known her for
two years and found her a proficient officer and a loyal
member of the Air Force. He found her reliable and an
asset to the battle staff.
47. ANALYSIS OF SENTENCE
The accused was sentenced to dismissal,
confinement at hard labor for seven years, and total
forfeitures. The sentence is within the maximum punishment
established by the President for the offenses to which the
accused was convicted. While | consider the sentence to be
reasonable considering the multiple incidents of sodomy and
drug abuse by an officer with, and in the presence of,
enlisted personnel, of which the accused was convicted, |
believe, in light of my conclusions recommending disapproval
of the findings of Specifications | and 2 of Charge |, and
approval of the lesser included offense of attempted
possession of amphetamines under Charge Il that re-
evaluation of the sentence is appropriate. Specifications 1
and 2 of Charge | were treated as multiplicious by the
military judge for sentencing purposes so they are one
offense for purposes of this re-evaluation.
| consider the disapproval of the 6 July 1981 offenses
and conversion of the possession finding in Charge II to an
attempt to have minimal impact upon the overall weight of
the misconduct of the accused available for consideration
upon sentence. However, weighing all the facts concerning
an appropriate sentence | recommend only so much of the
sentence be approved as includes dismissal, confinement
at hard labor for six years, and total forfeitures. |
recommend that the accused be confined at the United
States Disciplinary Barracks, Fort Leavenworth, Kansas.
App. 96
48. OPINION
With particular reference to MCM, 1969 (Rev.),
paragraph 86b, it is my opinion that:
A. The court was legally constituted throughout the
trial and had jurisdiction over the offenses charged and the
person tried.
B. There is nothing in the record of trial or allied
papers to indicate that the accused did not possess the
requisite mental capacity at the time of trial or the requisite
mental responsibility at the time of the commission of the
offenses.
C. The competent evidence of record is legally
sufficient to support the findings and establishes beyond a
reasonable doubt each and every element of the offenses
recommended for approval, except as discussed above
concerning Charge Il where the evidence is legally sufficient
to support the finding of guilty as to the lesser included
offense, recommended for approval.
D. The sentence was within the power of the court
to adjudge and within the prescribed limitations on
punishment.
. There were no errors or irregularities other than
those discussed above which materially prejudiced the
substantial rights of the accused within the meaning of Article
59, UCMJ.
49. CLEMENCY
Upon being advised of her rights to a formal
clemency interview the accused elected to not request such
interview. No clemency matters have to date been received
from the defense or accused.
50. RECOMMENDATIONS
A. Consistent with the previous discussion, |
App. 97
recommend the findings of guilty of Specifications 1 and 2
of Charge | be disapproved, and only so much of the finding
concerning Charge Il be approved as includes the lesser
included offense of attempt to violate paragraph 3-4, AFR 30-
2, dated 22 June 1981, and/or paragraph 4-4, AFR 30-2,
dated 8 November 1976, by possessing what the accused
believed to be amphetamines. | recommend the remaining
findings be approved.
B. | recommend only so much of the sentence be
approved as includes dismissal, confinement at hard labor
for six years, and total forfeitures.
C. | recommend the record of trial be forwarded
to the Judge Advocate General of the United States Air
Force for submission to the Air Force Court of Military
Review.
51. SUMMARY
A. The foregoing review constitutes this reviewer’s
summary of the evidence, opinion as to the adequacy and
weight of the evidence, effect of any error or irregularity
respecting the proceedings, and recommendations as to the
action to be taken with regard to the findings and the
sentence. As the convening authority in this case, you are
empowered to weigh the evidence, judge the credibility of
the witnesses and determine controverted questions of fact,
recognizing that the trial court saw and heard the witnesses.
Before approving a finding of guilty, you must determine: (1)
that the court was legally constituted throughout the trial, (2)
that the court had jurisdiction over the offenses and the
accused, and (3) that there were no errors which materially
prejudiced the accused’s substantial rights. You must also
be satisfied that competent evidence of record establishes
beyond a reasonable doubt: (1) the existence of each
element of the offenses which you approve, (2) that the
accused had the requisite mental responsibility at the time of
the commission of the offenses, and (3) that the accused
App. 98
had the requisite mental capacity at the time of trial. In
acting on the findings and sentence, you are empowered to
approve only such findings of guilty and sentence, or such
part or amount of the sentence, including a sentence which
is changed from, but is lesser than, that adjudged by the trial
court, as you find correct in law and fact and as you in your
discretion determine should be approved.
B. A form of action appropriate to my
recommendation is attached.
/s/JAMESM. CHURCHILL
Lieutenant Colonel, USAF
Assistant Staff Judge Advocate
2 Atch
1. Clemency Report
2. Record of Trial
| have read the record of trial and the foregoing review. |
concur with the review and the opinions § and
recommendations made therein. | adopt it as my own.
/s/JOSEPHL. FULLER
Colonel, USAF
Staff Judge Advocate
On 10 May 1972 a copy of the Staff Judge Advocate’s
review was served upon Ms. Faith Seidenberg, Individual
Defense Counsel. On that day Ms. Seidenberg requested
delay in furnishing comments pursuant to United States v.
Goode until 31 May 1982. This request for delay was
approved. On 4 June 1982 we were furnished a
Memorandum of Law provided by the defense to the
assistant trial counsel. We choose to treat this as the
defense Goode response. On 7 June 1982, the original,
which had been sent to the 9 AF/CC, was received.
in this memorandum Ms. Seidenberg attacks the
Government case and the review in three areas. She first
App. 99
restates the defense position made at trial that the accused
was denied effective assistance of counsel under the Sixth
Amendment to the Constitution when she was assigned a
defense counsel who worked against her interests. This
issue is discussed in paragraph 45c(l) above. In support of
the position that a defendant has a right to counsel free from
conflicting interests, the defense cites Glosser v. United
States, 315 U.S. 60; 62 Sup Ct Rep. 457 (1942). This case
held in a case where a conflict existed and the defendant
requested to be represented by a separate counsel from the
counsel representing a co-accused, it was error to deny this
request. This case presents no value of precedent to our
facts as upon fruition of the potential conflict the present
accused was appointed a counsel with no conflicting
interests.
The defense goes to extensive lengths to establish the
accused disciosed confidences to both Captain Powers and
Captain Smith; however, there is no showing that the matters
disclosed in confidence were ever employed in a manner
adverse to the interests of the accused. The defense
contends that my review at page 9 admits that there was a
conflict of interest in Captain Smith’s “recommendation” of
both the defendant and Airman Peelman. They contend this
recognition implies impropriety. | disagree. The recognition
of an actual conflict of interest required action on the part of
the Government to eliminate the conflict. The record
discloses appropriate action was taken by Colonel Sweeney
in obtaining new counsel, unincumbered by the conflict when
actual conflict arose with the grant of immunity to Airman
Peelmari.
| conclude the defendant was in no way denied
effective assistance of counsel and that there is no evidence
that either Captain Powers or Captain Smith at any time
worked against her interests. The defense contends the
appointed defense attorney urged one of his clients to testify
against the other. | disagree. The evidence reflects Captain
Smith advised Airman Peelman that when she was given
App. 100
immunity she had few options but to testify (R.4/). While the
defense repeatedly alleges that Captain Smith acted contrary
to the defendant's interest the evidence does not support
these allegations. The military judge therefore properly
denied the defense motion to dismiss.
The defense next contends the defendant is entitied
to a new trial because of prosecutorial misconduct. This
motion was not discussed in the review because | concluded
that after discussion between the military judge and the
resolved to the satisfaction of the defense (R.57-66).
It has been held that suppression by the prosecution
of evidence requested by the defense may constitute a
violation of due process where the evidence was material to
guilt or punishment, irrespective of the good faith or bad
faith of the prosecution. Phillips v. Smith, 632 F2d 1019
(1980). The defense finds a series of occurrences of
misconduct present in this case giving rise to due process
violations. | disagree. The defense contends that it was
prosecutorial misconduct for the Government to not provide
the defense with verbatim transcripts of the testimony of
witnesses at the two Article 32 investigations. AFM 111-1,
paragraph 3-20 provides verbatim testimony of Article 32
witnesses may be prepared only with the advance approval
of the Staff Judge Advocate of the special court-martial
convening authority. The record contains no evidence such
approval was requested or obtained so no entitlement
existed to this matter.
Next, the defense alleges that the defendant was
called to the SJA’s office on several occasions when the
defense was not notified or allowed to be present. While it
would appear that professional courtesy would be better
served by providing notice when administrative actions such
as service of charges require the presence of the accused,
the failure to do so is Clearly not prosecutorial misconduct.
There is no showing any evidence was obtained at these
instances or that a situation took place at which the
App. 101
defendant was entitled to counsel.
Next, the defense alleges the offering of the Article 32
testimony of Airman Liles, instead of calling him in person to
testify at trial, constitutes prosecutorial misconduct. While |
concluded in paragraph 45A above that introduction of this
evidence was erroneous, | see no basis for concluding that
in offering this evidence the prosecution acted with evil
motive. | conclude the relief recommended in paragraph 45A
is appropriate and sufficient to cure this error and that the
defense is not entitied, as they request, to a new trial.
Next, the defense alleges the prosecution acted
complain the defense was denied one witness and that a
second who was approved, was only notified by the defense
of the trial date. The defense remedy to a Government
denial of a requested defense witness is to renew the
request at trial before the military judge. MCM 1969 (Rev),
para 115. This was not done by the defense in this case,
and the defense did not establish that they had been denied
the presence of an essential witness. The record does not
establish prosecutorial misconduct in this area.
Next, the defense contends they were not furnished
Statements of witnesses Peelman, Liles and Moreno
requested as discovery materials under Brady v. Maryland,
373 U.S. 83 (1963). The record contains no reference to a
statement by a “Moreno” and no one by that name is listed
on the Charge Sheets or referenced in the Article 32
investigation as a witness. At trial it was established the
defense was furnished copies of all statements by Peeiman
and Liles in the possession of the prosecution (R.39-61).
en eae aa ea eae ee
failed to make inquiry into the facts of the alleged
prosecutorial misconduct under the requirements established
in United States v. Oaks, 508 F.2d 1403 (1974). In that case
it was held that upon a proper offer of proof the defendant
was entitled to present evidence, if any, concerning the
alleged misconduct. This hearing requirement only arises
App. 102
where the judge finds that the offer of proof raises matters
which if established warrant relief. | believe the military judge
concluded the defense offer of proof did not state facts
which if established would warrant relief. | reached a similar
conclusion in deciding discussion of the defense motion to
warrant discussion in this review. | now conclude the denial
of the defense motion to dismiss based upon prosecutorial
misconduct made by the military judge (R.66) was proper.
As a last issue the defense contends the sentence
was excessive in view of all the facts. The defense contends
that smoking marijuana and consensual sodomy are not
crimes in New York State and that in any event the accused
wouid receive no greater sentence than probation in a state
or federal court. The short answer to this allegation is that
the accused was not tried in a New York State court but
rather in a military court where the offenses alleged are
criminal acts. See United States vy. Thomas, 12 USCMA 278,
32 CMR 278 (1962); and United States v. Giles, 42 CMR 970
(AFCMR, 1970). In view of the nature of the accused
Officer's actions in both distributing contraband drugs to
enlisted personnel and engaging in homosexual relations
with an enlisted woman from her organization, | consider the
sentence recommended for approval to be reasonable. The
remarks provided by counsel for the accused are attached
in full for your consideration. | adhere to the review,
including opinions and recommendations made therein. If
yOu concur, an action designed to effect those
recommendations is attached for your signature.
/s/JAMESM. CHURCHILL
Lieutenant Colonel, USAF
Assistant Staff Judge Advocate
App. 103
| concur.
/s/JOSEPHL.FULLER
Colonel, USAF
Senior Judge Advocate
App. 104
DEPARTMENT OF AIR FORCE
HEADQUARTERS TWELFTH AIR FORCE (TAC)
Bergstrom Air Force Base, Texas 78743
General Court-Martial Order
No. 9
10 June 1982
Before a general court-martial which convened at Hancock
Field, New York, pursuant to Special Order AB-9,
Headquarters Ninth Air Force, dated 6 Feb 1982, as
amended by Special Order AB-23, Headquarters Ninth Air
Force, dated 4 March 1982, was arraigned and tried:
SECOND LIEUTENANT JOANN C. NEWAK, 167-38-0452FV,
United States Air Force, 2ist Air Division.
CHARGE |: Violation Of the Uniform Code of Military Justice,
Article 80.
Specification 1: in that SECOND LIEUTENANT JOANN
C. NEWAK, United States Air Force, 2ist Air Division, did, at
North Syracuse, New York, on or about 5 6 July 1981,
attempt to violate a lawful general regulation, to wit:
paragraph 3-4, Air Force Reguiation 30-2, dated 22 June
1981, by wrongfully transferring a substance she believed to
be amphetamines.
Specification 2: In that SECOND LIEUTENANT JOANN
C. NEWAK, United States Air Force, 2ist Air Division, did, at
North Syracuse, New York, on or about 6 July 1981, attempt
to violate a lawful general regulation, to wit: paragraph 3-4,
Air Force Regulation 30-2, dated 22 June 1981, by wrongfully
using a substance she believed to be amphetamines.
Specification 3: In that SECOND LIEUTENANT JOANN
C.NEWAK, United States Air Force, 2lst Air Division, did, at
App. 105
Clay, New York, on or about 10 July 1981, attempt to violate
lawful general regulation, to wit: paragraph 3-4, Air Force
Regulation 30-2, dated 22 June 1981, by wrongfully
transferring a substance she believed to be amphetamines.
CHARGE II: Violation of the Uniform Code of Military Justice,
Article 92.
Specification: In that SECOND LIEUTENANT JOANN
C. NEWAK, United States Air Force, 21st Air Division, did, at
Clay, New York, on numerous occasions, from on or about
15 December 1980, to on or about 1 September 1981,
violate a lawful general regulation, to wit: paragraph 3-4, Air
Force Regulation 30-2, dated 22 June 1981, and/or
paragraph 4-4, Air Force Regulation 30-2, dated 8 November
1976, by wrongfully having in her possession some
amphetamines.
CHARGE Ill: Violation of the Uniform Code of Military Justice,
Article 134.
Specification 1: In that SECOND LIEUTENANT JOANN
C. NEWAK, United States Air Force, 2ist Air Division, did, at
Clay, New. York, on numerous occasions, from on or about
15 December, 1980, to on or about 1 September 1981,
wrongfully use marijuana. |
Specification 2: In that SECOND LIEUTENANT JOANN
C. NEWAK, United States Air Force, 2ist Air Division, did, at
Clay, New York, on numerous occasions, from on or about
15 December 1980, to on or about 1 September 1981,
wrongfully have in her possession some amount of
marijuana. °
Specification 3: In that SECOND LIEUTENANT JOANN
C. NEWAK, United States Air Force 2ist Air Division, did, at
Clay, New York, on numerous occasions, from on or about
App. 106
15 December 1980, to on or about + September 1981,
wrongfully transfer marijuana.
CHARGE IV: Violation of the Uniform Code of Military Justice,
Article 133.
Specification 1: In that SECOND LIEUTENANT JOANN
C. NEWAK, United States Air Force 2ist Air Division, did, at
Hancock Field, North Syracuse, New York, on or about 17
June 198i, engage in conduct unbecoming an officer and a
gentleman, to wit, wrongfully suggest to an enlisted female
verson of the Air Force, that such person was bisexual and
proceeded without authority to kiss the enlisted person on
her neck and say "I love you."
Additional Charge: Violation Of the Uniform Code of Military
Justice, Article 125.
Specification 1: In that SECOND LIEUTENANT JOANN
C. NEWAK, United States Air Force, 2lst Air Division, did, at
Clay, New York, on numerous occasions from or about 27
May 1981, to on or about 1 September 1981, commit
sodomy with Senior Airman Lynne E. Peeiman.
Specification 2: In that SECOND LIEUTENANT JOANN
C. NEWAK, United States Air Force, 2ist Air Division, did, at
Vandling, Pennsylvania, on or about 6 July 1981, commit
sodomy with Senior Airman Lynne E. Peelman.
Specification 3: In that SECOND LIEUTENANT JOANN
C. NEWAK, United States Air Force, 2lst Air Division, did, at
Lexington, Tennessee, during August, 1981, commit sodomy
with Senior Airman Lynne E. Peelman.
PLEAS: To all specifications and Charges: Not Guilty.
App. 107
FINDINGS: Of specifications 1, 2 and 3 of Charge | and
Charge |:
Guilty.
Of the specification of Charge II: Guilty, except the
words, "...0n numerous occasions." Of the excepted words,
not guilty. Of Charge Il: Guilty.
Of Specifications 1, 2 and 3 of Charge Ill and
Charge Ill: Guilty.
Of the Specifications of Charge IV and of
Charge IV: Guilty.
Of Specification 1 and 2 of the Additional
Charge: Guilty.
Of Specification 3 of the Additional Charge:
Guilty.
Of the Additional Charge: Guilty.
SENTENCE: To be dismissed from the service, to be
confined at hard labor for seven (7) years, and to forfiet all
pay and allowances.
DATE ADJUDGED: The sentence was adjudged on 11 March
1982.
ACTION OF THE CONVENING AUTHORITY:
DEPARTMENT OF THE AIR FORCE, HEADQUARTERS
TWELFTH AiR FORCE (TAC)
Bergstrom Air Force Base, Texas 78743
10 June 1982
App. 108
In the foregoing case of 2ND LIEUTENANT JOANN C.
NEWAK, 167-38-0425FV, United States Air Force, 2lst Air
Division, the findings of guilty of Specifications 1 and 2 of
Charge | are disapproved and only so much of the finding
concerning Charge Il is approved as includes the lesser
included offense of attempt to violate paragraph 3-4, AFR 30-
2, dated 22 June 1981, and/or paragraph 4-4, AFR 30-2,
dated 8 November 1976, by possessing what the accused
believed to be amphetamines, at the times and places
alleged, in violation of Article 80. Only so much of the
sentence as provides for dismissal, confinement at hard
labor for six years and total forfeitures is approved. The
service of the sentence to confinement at hard labor for
seven years was deferred on 15 March 1982 and the
deferment is rescinded effective the date of this action. The
forfeiture shall apply to pay and allowances becoming due
on and afier the date of this action. The record of trial is
forwarded to the Judge Advocate General of the United
States Air Force for review by a Court of Military Review.
Pending completion of appellate review, the accused will be
confined in the United States Disciplinary Barracks, Fort
Leavenworth, Kansas or elsewhere as competent authority
may direct.
/s/WILLIAM R. NELSON
Lieutenant General, USAF
Commander
FOR THE COMMANDER
/s/JAMESM CHURCHILL
Lieutenant Colonel, USAF
Assistant Staff Judge Advocate
App. 109
UNITED STATES AIR FORCE
COURT OF MILITARY REVIEW
UNITED STATES
Vv
Second Lieutenant JOANN C. NEWAK,
167-38-0452 FV
UNITED STATES AIR FORCE
ACM 23544 ~
Argued: 15 October 1982
Decided: 14 December 1982
Sentence adjudged 11 March 1982 by GCM
convened atHancock Field, New York.
Military Judge: Robert H. Leonard (sitting alone).
Approved sentence: Dismissal,
confinement at hard labor for six (6)
years and forfeiture of all pay and
allowances.
Appellate Counsel for the Accused: Ms. Faith A.
Seidenberg, Syracuse, New York.
Appellate Counsel for the United
States: Colonel Kenneth R. Regert
and Captain Brenda J. Hollis.
Before
HODGSON, HEMMINGWAY and MILLER
Appellate Military Judges x
App. 110
DECISION
HODGSON, Chief Judge:
Tried by general court-martial with the military judge
sitting alone, the accused was convicted, despite her pleas,
of wrongfully using, possessing and transferring marijuana,
attempting to wrongfully possess and transfer a substance
she believed to be amphetamines; sodomy, and conduct
unbecoming an officer, in violation of Articles 80, 125, 133
and 134, Uniform Code of Military Justice. The approved
sentence extends to a dismissal, forfeiture of all pay and
allowances, and confinement at hard labor for six years.
At the outset, we are faced with the assertion that the
accused was deprived of effective assistance of counsel
under the Sixth Amendment because her assigned military
defense counsel, Captain S, worked against her interests.
The record disclosed that the Area Defense Counsel (ADC)
assigned to Griffiss Air Force Base, New York, also provides
defense services ’ to Hancock Filed, New York, where the
accused is assigned and where her trial took piace. In the
summer of 1981, Captain P was the ADC at Griffis AFB and
was appointed to represent the accused and Senior Airman
Peelman, who were being investigated for alleged
homosexual activities. During this time period Captain P was
notified of his reassignment that fall, and told that Captain S,
who was assigned to the Griffiss AFB legal office, was to be
his replacement.
To insure an orderly changeover, Captain P took
Captain S to Hancock Field and introduced him to the
accused and later, in a separate interview, to Peelman.
Captain P indicated to both individuals that he was leaving
and that Captain S would be the new ADC. Captain P then
discussed various aspects of each case with the parties
App. 111
concerned, with Captain S present; these interviews occurred
in early September and were conducted at the Hancock
Field legal office. At this time Captain S was still assigned to
Griffiss AFB.
On approximately 20 October, Captain S became
aware that his representation of both the accused and
Peelman might result in a conflict of interest as the result of
the government giving Peelman a grant of immunity.2 The
subject was broached to him by the Staff Judge Advocate,
Hancock Field. Upon learning of the grant, Captains P and
S called the Chief Circuit Defense Counsel whose
responsibility is the professional supervision of all Area
Defense Counsel with the circuit. See United States v Cahill,
3 M.J. 1030 (N.C.M.R. 1977). The situation was outlined to
him and he concluded that Captain S could not represent
the accused; accordingly, a different ADC was appointed as
her counsel. This attorney assisted in her defense at both
the pretrial investigation and the trial itself; the accused also
retained a civilian attorney as lead counsel. Captain S
continued as counsel for Peelman. Subsequently, he also
represented Airman Liles. Both Liles and Peelman testified
against the accused under grants of immunity. Captain S
admitted telling Liles and Peelman “to stay away from Newak
because she’s going down the tubes."
The rule that an attorney cannot represent conflicting
interests is one that courts strictly enforce. United States v
Melton, 30 C.M.R. 796 (A.F.B.R. 1960). Here, however, we
note that the conflicting interests were identified early in the
proceedings and a new attorney was appointed for the
accused before charges were preferred. See People v Davis,
26 Cal. Rpt. 903, 1962). We find it significant that Captain S
did not represent the accused at either the pretrial
investigation or at the trial itself. Cf United States v Davis, 3
M.J. 480 (C.M.A. 1977) (defense counsel cross-examined a
former client at trial).
Prior representation by defense counsel of a
government witness against the accused does not itself
App. 112
justify a conclusion that the accused does not by itself justify
a conclusion that the accused was denied effective
representation, particularly when that defense counsel does
not represent the accused at trial. United States v Lovett, 7
U.S.C.M.A. 704, 23 C.M.R. 168 (1957); United States v
Peebles, 2 M.J. 404 (A.C.M.R. 1975). It must also be shown
that the accused was harmed by the relationship. United
States v Thornton, 8 U.S.C.M.A. 57, 23 C.M.R. (1957).
The accused seeks to establish this harm by showing
that Captain S was assigned to the Griffiss legal office at the
time he entered into an attorney-client relationship with her.
This, in her view, is sufficient to prove prejudice as it
suggests that her assigned counsel had divided loyalties. We
do not attach the same importance to this as does appellate
defense counsel. The Griffiss legai office and the Hancock
legal office are separate organizations in different chains of
command.’ _ Griffiss legal office has absolutely no control
over trials convened at Hancock Field. Thus, that Captain S
was ostensibly still assigned to the Griffiss office when he
spoke to the accused couid not have influenced a trial at
Hancock Field in any way.
Next, anoellate counsel argues that the subsequent
representation by Captain S of Peelman and Liles, who
testified against tne accused, shows that S had abandoned
her while still her counsel. Finally, appellate counsel finds
fault in the facts that both Captains S and P used the
Hancock Field ‘egal office to interview potential witnesses.
This, she contends, is an unjustified causal approach to the
confidentiality of the attorney-client relationship and
indicative of the quality of the representation the accused
received prior to charges being preferred. Both military
counsel stated that this was done as a matter of
convenience since Hancock Field had no ADC office.
These circumstances, in our opinion do not amount to
ineffective representation. The accused was given different
counsel when it became apparent that she, Peelman and
Liles could not all be presented by Captain S. Again we note
App. 113
that this was accomplished early in the proceedings prior to
the charges being preferred. We admit that Captain S was
less than discreet when he later suggested that Peelman and
Liles avoid the company of the accused “as she was going
down the tubes," but it is not contended that he induced
them to testify falsely or divulged to them information given
him in confidence by the accused. In short, we find that the
accused has suffered no prejudice. We conclude that
Captain S adequately protected the confidences given him
by accused, and she was not denied effective assistance of
counsel. Accord United States v Barrois, 47 C.M.R. 169
(A.C.M.R. 1973), see also United States v Brooks, 2 M.J. 102
(C.M.A. 1977).
The accused next contends that her conviction of
attempting to wrongfully possess and transfer amphetamines
cannot stand as the substance was in fact “over the counter"
diet pills. (Specification 3 of Charge | and Specification of
Charge Il). Therefore, according to her, the crime charged
is legally impossible. We disagree. To constitute an attempt
to commit a crime there must be an intent to commit the
crime, an overt act toward its commission, and its
consummation must be apparently possible. Manual for
Courts-Martial, United States, 1969 (Rev.), para. 159. The
question of whether the accused attempted to possess or
transfer an illicit drug does not depend upon the true nature
of the substances involved. United States v Dominguez, 7
U.S.C.M.A. 485, 22 C.M.R. 275 (1957). Here the record
established that the accused thought the substances was
amphetamine and therefore that the commission of the
offense was apparently possible. United States v Foster, 14
M.J. 246 (C.M.A. 1982). See generally, United States v Bruce,
14 M.J. 254 (C.M.A. 1982).
App. 114
Finally, appellate counsel urges that the sentence was
excessive and that confinement of any duration would be
inappropriate. We cannot ignore that the accused, an officer,
encouraged the use of marijuana and other illicit drugs
among Air Force personnel, and committed numerous acts
of sodomy with ca female enlisted person. Upon
consideration of the total record, we find the sentence
entirely appropriate.
We have considered the remaining assigned error and
have resolved it adversely to the accused. Accordingly, the
findings of guilty and the sentence are
AFFIRMED.
HEMMINGWAY, Senior Judge (concurring):
During oral argument, counsel for the accused urged
a reduction in the sentence because the accused crimes
were committed off duty, off base and would not have been
punished as severely in a civilian Community. This argument
fails to recognize “that the military is, by necessity, a
specialized society separate from civilian society.” Parker v.
Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed. 2d 439 (1974).
This difference is due to the mission of the military to
maintain the ability to fight when our national leadership
determines it necessary to preserve our security. This
mission requires discipline and obedience. Commissioned
officers have a special responsibility to conduct themselves
in a manner that promotes discipline, obedience and respect.
That responsibility cannot be checked at the gate on the way
home at the end of the duty day. Officers who fail to meet
that responsibility by engaging in criminal conduct in the
presence of subordinates violates their oath of office and
strike at the heart of the military code of behavior. As a
result, | view the accused's sentence as appropriate.
App. 115
MILLER, Judge (concurring)
[Opinion omitted]
FOOTNOTES:
' A full description of his duties is contained in Air Force
Manual 111-1, Military Justice Guide, para. 13-2, 2 July 1973,
Change 4 (13 May 1980).
2 On 17 November 1981, Peelman was given a grant of
immunity by the Commander, Sth Air Force.
3. Griffiss Air Force Base is assigned to 8th Air Force,
Strategic Air command, while Hancock Field is assigned to
9th Air Force, Tactical Air Command.
App. 116
DEPARTMENT OF THE AIR FORCE
OFFICE OF THE JUDGE ADVOCATE GENERAL
WASHINGTON, D.C.
AF/JA
23 Mar 1983
UNITED STATES
Vv
ACM 23544
Second Lieutenant
JOANNE C. NEWAK
167-38-0452FV
ACTION OF THE
THE JUDGE ADVOCATE GENERAL
in the above case, upon careful examination, |
conclude that the term of confinement should be modified.
In consequence, pursuant to Article 74(a) of the Uniform
Code of Military Justice, as implemented by paragraph 12-
2d, AFM 111-1, | take the following action:
So much of the sentence as provides for
confinement at hard labor in excess of three
years is remitted.
/s/THOMAS B. BRUTON
Major General, USAF
The Judge Advocate General
App. 117
UNITED STATES, Appellee,
Vv.
Joann C. NEWAK, Second Lieutenant,
U.S. Air Force, Appellant.
No. 46098.
ACM 23544.
U.S. Court of Military Appeals.
July 13, 1987.
Accused, a second lieutenant, United States Air Force,
was convicted by general court-martial, Robert H. Leonard,
J., Of wrongfully using, possessing and transferring
marijuana, attempting to wrongfully possess and transfer
substance believed to be amphetamines, sodomy and
conduct unbecoming an officer, and she appealed. The
United States Air Force Court of Military Review, 15 M.J. 541,
affirmed, and review was granted. The United States Court
of Military Appeals, Everett, C.J., held that accused was
denied effective assistance of counsel due to joint
representation.
Reversed and remanded.
Cox, J., concurred in result and filed opinion.
For sonst Faith A. Seidenberg, Esq. (erqued);
James R. Klimaski, Esq. (argued); Charles T Bumer,
Esq and Carol L. Delton, Esq. (on brief) - For Military Law
Task Force of the National Lawyers Guild.
David W Webber, Esq. (on brief); Abby R.Rubenfeld,
Esq. - For Lambda Legal Defense and Education Fund, Inc.
App. 118
OPINION
EVERETT, Chief Judge:
Second Lieutenant Newak was tried by a military
judge sitting alone as a general court-martial on charges that
she used, possessed, and transferred marijuana; possessed
amphetamines; attempted to transfer amphetamines by
transferring a substance which she erroneously believed was
amphetamine (2 specifications); attempted to use
amphetamines by using a substance which she erroneously
believed was amphetamine; committed sodomy with an
enlisted woman (3 specifications); and engaged in conduct
unbecoming an officer with a woman enlistee, in violation of
Articles 134, 92, 80, 125, and 133, Uniform Code of Military
Justice, 10 U.S.C. Sections 934, 892, 880, 925, and 933,
respectively. Despite her pleas, appellant was convicted as
charged and sentenced to dismissal from the service,
confinement for 7 years, and total forfeitures.
In his review, the convening authority disapproved the
guilty findings as to one of the attempted transfers and the
attempted use of amphetamine, and he modified the finding
of possession of amphetamines to a finding of attempted
possession. In all other respects, he approved the trial
results, except for reducing the period of confinement to 6
years. :
The Court of Military Review affirmed the approved
findings and sentence. 15 M.J. 541 (1982). Thereafter, the
Judge Advocate General remitted all confinement in excess
of 3 years.
In her petition to this Court, Newak complains that she
was denied the effective assistance of counsel and due
process of law by certain actions against her interest taken
by her defense counsel. According to appellant, a conflict of
interest arose because the same counsei represented both
Newak and the enlisted woman, Airman Lynne Peelman, with
App. 119
whom she allegedly had sexual relations. 18 M.J. 112. We
agree.
Sometime in the summer of 1981, an informant
implicated appellant and Peelman in various homosexual and
drug activities at Hancock Field, New York. Both were called
in by an agent of the Office of Special Investigations (OSI)
and advised of their rights, whereupon each denied the
accusations.
When they were notified later of impending charges
against them, both appellant and Peelman were informally
assigned to Captain John Powers, then the area defense
counsel stationed at Griffiss Air Force Base, New York, and
responsible for Hancock Field. Powers saw the women
separately and formed an attorney-client relationship with
each.
In “late August or early September," Powers was
notified that he was to transfer duty stations and that Captain
Raymond Smith would assume his role as area defense
counsel. Although Smith was not formally assigned to
Powers’ job until November 1, 1981, Powers sought earlier
to acquaint Smith with local procedures and personnel, as
well as with the cases he would be leaving behind -
including appeliant’s and Peelman’s. At some point, probably
early in October, Powers introduced Smith to appellant and
to Peelman. He included Smith as counsel in meetings with
these two clients, discussed the cases with Smith "on several
occasions,” and turned over his investigative case files to
him. Smith later consulted alone with appellant and with
Peelman and entered into an attorney-client relationship with
each.
When he was asked at appellant’s trial why he had
undertaken to represent both appellant and Peelman,
Captain Powers responded:
App. 120
Well, at the time, there were not charges yet preferred
in the beginning stages. They were both under
investigation, and they were both in the same position,
So to speak, and there was no -at this time, no offer
of immunity or anything like that, and at that time, |
didn’t see the need to split it up and | didn’t split it
up.
Powers subsequently did acknowledge, however:
Well, honestly, | saw a potential problem if immunity
was Offered to one or the other, and | remember
discussing with each of them that it could be a
problem that sometime, down the road, the
government may offer immunity to the other, but at
that time, that was just speculation and there had
been no mention by the legal office or anybody
representing the Government.
As the investigation proceeded through the middle of
October, attention focused on appellant. To effectuate the
planned prosecution of Newak, the base staff judge
advocate, Major Carlos Torres, met with Smith on or about
October 20 and informally discussed with him possible
testimonial immunity for Peeiman. Torres informed Smith that
he intended to recommend to the convening authority that
Peelman be granted this immunity, and he advised Smith to
counsel Peelman to cooperate.
The record is not entirely clear how active was Smith’s
role in the discussion of immunity with Torres. The Court of
Military Review concluded, and the Government argues
before us, that the decision to grant Peelman testimonial
immunity was unilaterally made by the Government and
simply announced to Smith. However, Smith’s own
testimony tends to support appellant’s contention in this
Court that it was not quite that cut-and-dried:
Q: Did you bring up the subject of immunity?
A: With whom?
App. 121
Q: With the Base Staff Judge Advocate?
A:. Not directly, no. They brought it up to me.
Q: And was there any bargaining on your part,
between acting for Airman Peeiman vis-a-vis the Base
Staff Judge Advocate at Hancock?
A: | don’t quite understand.
Q: In other words, did you say - did you go in and
say, “If you'll give us immunity, no prosecution of
Airman Peelman, Airman Peelman will roll on
Lieutenant Newak," or anything like that?
A: No, not directly. It was back and forth. They
were trying to figure out who to work out immunity
with. | was dealing with my client Airman Peelman! as
work
Out for her.
(Emphasis added.)
Smith later told Powers of his October 20 conversation
with Torres, and together they contacted Lieutenant Colonel
Sweeney, the chief circuit defense counsel, to discuss a
possible conflict of interest. Smith continued to represent
Peelman; but, on October 23 - prior to the formal grant of
immunity to Peelman on November 17 - he withdrew as
counsel for appellant at Sweeney’s direction, and new
counsel was assigned to her. :
Sometime while he still represented both women, or
shortly thereafter - the record is in conflict - Smith met with
Peelman and urged her to cooperate under the expected
grant of testimonial immunity. Smith probably told Peelman
that appellant was "going down the tubes" and that she
should limit her own problems by staying away from
appellant and coopera
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