# Appendix — Newak v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0589%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1990 - **Citation:** 493 U.S. 1070 ## Text 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 D ‘ ae s 5 ¢ 7 : ead eS ee 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. 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 USCMA Dkt. No. 46098 /AF V. CMR okt. No. 23544 Joann C. QRDER NEWAK (167-38-04S2), Appellant On consideration of appellant’s motion to specify retention of jurisdiction, it is, by the Court this 19th day of August, 1987, ORDERED: That said motion is hereby granted; and That the decretal paragraph of this Court’s opinion (24 M.J. 238) is amended by adding after the last word of said paragraph on page 244 the following sentence: Thereafter, and upon completion of any further review required by Article 66, Uniform Code of Military Justice, 10 U.S.C. Section 866, the record will be App. 134 returned to this Court for final disposition. For the Court, /s/John A. Cutts, Ill Deputy Clerk of the Court cc: The Judge Advocate General of the Air Force Appellate Defense Counsel (SEIDENBERG, Esq.) Appellate Government Counsel (GIOVAGNONI) App. 135 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 (f rev) 16 OCT 1987 Sentence adjudged 11 March 1982 by GCM convened at Hancock 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 Appellant: Faith A. Seidenberg, Esq., Syracuse, New York; Louis P. Font, Cambridge, Massachusetts; Colonel Leo L. Sergi and Major Alexander S. Nicholas. Appellate Counsel! for the United States: Colonel Joe R. Lamport, Lieutenant Colonel Robert E. Giovagnoni. App. 136 Before HODGSON, FORAY and KOLTE Appellate Military Judges DECISION UPON FURTHER REVIEW HODGSON, Chief Judge: In our initial review of this record of trial we affirmed Second Lieutenant Newak’s conviction for various drug offenses, sodomy with an enlisted woman and conduct unbecoming an officer with yet another enliste¢d woman. United States v. Newak, 15 M.J. 541 (A.F.C.M.R. 1982). She appealed our affirmance of her conviction arguing that she was denied effective assistance of counsel and due process of law when her appointed military counsel represented both her and an enlisted woman, Airman Lynne Peelman, with whom she allegedly had sexual relations and who subsequently pleaded guilty and became the chief prosecution witness against her on a number of charges. The Court of Military Appeals found merit in this argument and concluded that the joint represention of both her and Peelman by the same counsel was improper. The Court held, therefore, that the testimony of Peelman together with any evidence or information derived therefrom was tainted and should not have been admitted in evidence at the trial. Accordingly, it set aside those allegations in which Peelman’s testimony was the only evidence of the appellant’s guilt or such strong evidence that the prejudicial effect was apparent.’ United States v. Newak, 24 M.J. 238 (C.M.A. 1987). App. 137 Although the affected charges were set aside, the Government was given permission to pursue them again if alternative untainted evidence were available. Our review of the record and the pretrial investigation convinces us that no such evidence exists. We are aware that Judge Cox, who concurred in the result, suggested that Peelman could still testify if the trial judge at the second hearing was satisfied that no communication from the appellant was transmitted through appointed counsel to Peelman. This is not, in our view, a viable course of action, particularly in light of the requirement that Peelman must testify without a grant of immunity. The passage of time and judicial economy both dictate that the alleged sodomy offenses [Specifications of the Additional Chargej, and the alleged drug offenses [Specification of Charge Il and Specification of Charge Ill] be dismissed, which we so do. While the remaining offenses, i.e., use and possession of marijuana and the attempted possession of amphetamine and conduct unbecoming an officer, were not set aside by the Court of Military Appeals, it expressed a concern that some “spillover” might have taken place from the tainted offenses to the remaining guilty findings. They suggested that on remand, we might wish to consider this possibility and if we find that such "spillover" exists, formulate the appropriate remedy. The issue presented to us appears to be one of first impression as we are unaware of any military decision touching upon “tainted evidence” derived from an improper joint representation of two parties involved in the same offense. However, there does appear to be an analogy between the situation at bar and the Government's ability to establish that it made no improper use of an accused’s immunized testimony. See United States v. Lucas, 25 M.J. 9 (C.M.A. 1987). The burden in this regard lies with the Government App. 138 to show that it "had an independent, legitimate source for the disputed evidence." United States v. Gardner, 18 M.J. 612 (A.F.C.M.R 1984); aff'd 22 M.J. 28 (C.M.A. 1986). This, of course, is a factual determination to be gleaned from the record of trial and the allied papers. United States v. Gardner, 22 M.J. 28 (C.M.A. 1986). If this can be done there is no bar to the Government using the evidence. The evidence as to the remaining offenses is based on the testimony of Senior Airman Donna Ryan who began assisting the Office of Special Investigations (OSI) as an informant in June 1981. Ryan testified that during a softball game on 17 June 1981, the appellant suggested that she (Ryan) was “bisexual” and that the two of them might wish to go to a homosexual bar that the appellant knew. Later, the appellant put her arms around Ryan’s neck, kissed her and said she loved her. Shortly thereafter Ryan reported the incident to the OSI and gave them a statement regarding it. Ryan also stated at trial that on 10 July 1981, she saw the appellant in possession of marijuana and what the appellant said was amphetamine. She also saw her use marijuana. The marijuana cigarette and supposed amphetamine tablets the appellant gave her were released to the OSI who forwarded the items to the Army testing laboratory at Ft. Gordon, Georgia for analysis. The laboratory report which was returned on 17 August indicated the cigarette contained marijuana, but the tablets did not contain a controlled substance. The trial transcript and the investigatory file clearly establish that the Government had an “independent, legitimate source" i.e., Ryan, for the evidence used to convict the appellant of the remaining offenses. The evidence was developed and known to the Government long before either Captain Powers or Captain Smith, the attorneys whose joint representation of the appellant and Peeiman denied the appellant the effective assistance of counsel, became App. 139 involved in the case. The investigatory file in the allied papers indicate that the appeliant’s criminal activities came to light as the result of Ryan’s connection with the OSI and not the other way around. The exact date of Powers’ appointment as counsel to both the appellant and Peeiman is not known, but he stated it was “In the summer of 1981." Captain Smith, however, identifies 8 September as the first time he met.the appellant and Peelman and entered into an attorney-client relationship with them. On the facts just reviewed we see no basis to find that the evidence relating to the dismissed guilty findings “directly tainted" the remaining charges. The Government was aware of the appellant’s misconduct as to the remaining offenses before either Powers or Smith entered the case. We find no evidence of a “spillover” of tainted evidence from the dismissed allegations to those remaining. Accord United States v. Lucas, supra. We now address the sufficiency of the evidence on the remaining offenses. Ryan stated that the appellant implied that she (Ryan) was sexually oriented toward both sexes and suggested that both of them go to a homosexual bar. Later, the appellant kissed her and said “she loved (her)." Approximately three weeks after the incident described above, Ryan saw the appellant use and possess marijuana and attempt to possess amphetamine. Ryan’s testimony, if believed by the military judge who was sitting as the fact finder, supports a conviction for conduct unbecoming an officer. Because of the special status afforded officers, they are held to a higher standard of conduct. United States v. Tedder, 24 M.J. 176 (C.M.A. 1987). Clearly, the appeliant’s conduct compromised her Status as an officer and mortally wounded the confidence and respect that others have for authority of the officer App. 140 corps. See United States v. Van Steenwyk, 21 M.J. 795 (N.M.C.M.R. 1985). Additionally, Ryan stated she was familiar with the odor and appearance of marijuana and the substance she saw the appellant possess and use was marijuana. Her testimony was bolstered by the physical evidence, i.e., marijuana cigarette and the two supposed amphetamine tablets. This evidence, if believed, is sufficient to establish the gravamen of the offense. In summary, the appeliant’s conviction of the remaining offense turns on the credibility of the witnesses. In reviewing the sufficiency of the evidence to sustain a conviction we are not free to overturn a lower court’s finding of guilty if there is “some legal and competent evidence from which a court-martial may find or infer beyond a reasonable doubt those facts required by law for conviction." United States v. Odegard, Dkt. No. 54177, MJ. (CMA Sept 30, 1987) and cases cited therein; Article 66(c), U.C.M.J. We have examined the record of trial and like the trial court, we are convinced beyond a reasonable doubt that the appellant is guilty of the offenses alleged. Except for those offenses we earlier dismissed, those remaining are affirmed. The sentence is set aside. A rehearing on sentence may be ordered. Senior Judge FORAY and Judge HOLTE concur. App. 141 OFFICIAL: PAMELA HOWARD Captain, USAF Chief Commissicner FOOTNOTE: ’ Peelman’s testimony was the basis of the sodomy allegations [Specifications of the Additional Charge] and the drug offenses involving marijuana and amphetamine [Specification 3 of Charge Ill and the Specification of Charge lI]. App. 142 DEPARTMENT OF THE AIR FORCE HEADQUARTERS LOWRY TECHNICAL TRAINING CENTER (ATC) LOWRY AIR FORCE BASE, COLORADO 80230-5000 General Court-Martial Order No. 100 1 December 1987 In the general court-martial case of SECOND LIEUTENANT JOANN C. NEWAK, 167-38-0452FV, United States Air Force, 21st Air Division, ee SO ene the Specification of Charge _ 1 promulgated in General Court-Martial Order No. 9Q, Headquarters Twelfth Air Force (TAC), dated 10 June 1982, were set aside. A rehearing on the findings-and seritence is ordered before another court-martial to be hereafter designated. The sentence was adjudged on 11 March 1982. (ACM 23544 (f rev)). FOR THE COMMANDER /s/JANE S. LOVE, Capt, USAF Assistant Staff Judge Advocate App. 143 DEPARTMENT OF THE AIR FORCE HEADQUARTERS LOWRY TECHNICAL TRAINING CENTER (ATC) LOWRY AIR FORCE BASE, COLORADO 80230-5000 _ General Court-Martial Order No. 150 14 January 1988 Generali Court-Martial Order No. 100, this Headquarters, dated 1 December 1987, is revoked. FOR THE COMMANDER /s/JANE S. LOVE, Capt, USAF Assistant Staff Judge Advocate App. 144 DEPARTMENT OF AIR FORCE HEADQUARTERS TWELFTH AiR FORCE (TAC) Bergstrom Air Force Base, Texas 78743-5002 General Court-Martial Order No. 23 15 Jan 1988 In the general court-martial case of SECOND LIEUTENANT JOANN C. NEWAK, 167-38-0452FV, United States Air Force, 2ist Air Division, the findings of guilty as to Charge Il and its specification, Specification 3 of Charge Ill, and the Additional Charge and its specifications as promulgated in General Court-Martial Order 9, Headquarters Twelfth Air Force (TAC), dated 10 June 1982, were set aside and dismissed. The remaining findings of guilty were affirmed. The sentence was set aside. A rehearing on sentence only is ordered before another court-martial to be hereafter designated. The sentence was adjudged on 11 March 1982. (ACM 23544 (f rev)). FOR THE COMMANDER DONALD A.NOLTE, Lt Colonel, USAF Assistant Staff Judge Advocate App. 145 DEPARTMENT OF AiR FORCE HEADQUARTERS TWELFTH AIR FORCE (TAC) Bergstrom Air Force Base, Texas 78743-5002 Special Order AB-33 27 Jan 1988 A general court-martial is hereby convened. The case of United States v. Joann C. Newak is referred to this court- martial for a rehearing on sentence only. It shall meet at Berstrom Air Force Base, Texas, unless otherwise directed. The court shall be constituted as follows: MEMBERS [Names of members omitted] /s/MERRILL A. MCPEAK Lieutenant General, USAF Commander App. 146 DEPARTMENT OF AIR FORCE HEADQUARTERS TWELFTH AIR FORCE (TAC) Bergstrom Air Force Base, Texas 78743 General Court-Martial Order No. 87 28 July 1988 Before a general court-martial which convened at Bergstrom Air Force Base, Texas, pursuant to Special Order AB-33, this headquarters, dated 27 January 1988, a rehearing on sentence only was held on SECOND LIEUTENANT JOANN C. NEWAK, 167-38-0452FV, United States Air Force, 67th Combat Support Group, formerly assigned to 2ist Air Division, Hancock Field, New York, the former proceedings having been published in General Court-Martial Order No. 9, this headquarters, dated 10 June 1982. The United States Court of Military Appeals set aside and dismissed the findings of guilty as to Charge Il and its specification, specification 3 of Charge !l, and the Additional Charge and its specification and the sentence. The case was remanded to the Air Force Court of Military Review for review of the remaining charges and specifications. The remaining findings of guilty were affirmed and the sentence was set aside and a rehearing on the sentence authorized by the Air Force Court of Military Review (ACM 23544 (f rev)). A rehearing on the sentence was ordered as promulgated by General Court- Martial Order No. 23, this headquarters, dated 15 January 1988. The affirmed findings of the former proceedings are as follows: - CHARGE |: ARTICLE 81 Plea: NG Finding: G Specification 3 (renumbered as Specification): Attempt to wrongfully transfer a substance she believed to be App. 147 amphetamines on 10 July 1981. Plea: NG Finding: G CHARGE Ili (renumbered as CHARGE Il): ARTICLE 134 Plea: NG Finding: G Specification 1: Wrongfully use marijuana from 15 December 1980 to 1 September 1981. Plea NG ‘ Finding: G Specification 2: Wrongfully possess marijuana from 15 December 1980 to 1 September 1981. Plea: NG Finding: G CHARGE IV (renumbered as CHARGE Iil): ARTICLE 133 Plea: NG Finding:G Specification: Engage in behavior unbecoming an officer on 17 June 1981. Plea: NG Finding: G SENTENCE Sentence adjudged, upon a rehearing, on 3 May 1988: Dismissal, confinement for 14 months and forfeiture of all pay and allowances. App. 148 ACTION In the case of SECOND LIEUTENANT JOANN C. NEWAK, 167-38-0452FV, United States Air Force, 67th Combat Support Group, the sentence is approved and, except for the part of the sentence extending to dismissal, will be executed. The term of confinement having been served, no place of confinement is designated. /s/Peter T. Kempf Lieutenant General, USAF Commander FOR THE COMMANDER /s/DONALD A.NOLTE Lt Col, USAF Assistant Staff Judge Advocate App. 149 UNITED STATES AIR FORCE COURT OF MILITARY REVIEW UNITED STATES V. Second Lieutenant JOANN C. NEWAK, 167-38-0452 FV UNITED STATES AIR FORCE ACM 23544 (reh) 06 JAN 1989 Sentence adjudged 3 May 1988 by GCM convened at Bergstrom Air Force Rase, Texas. Military Judge: Charles W. Fowler (sitting alone). Approved Sentence: Dismissal, confinement for fourteen (14) months and forfeiture of ail pay and allowances. Appellate Counsel for the Appellant: Faith A. Seidenberg, Syracuse, New York 13202; Colonel Richard F. O’Hair and Major Lynne H. Wetzell. Appellate Counsel for the United States: Colonel Joe R. Lamport, Lieutenant Colonel Robert E. Giovagnoni and App. 150 Captain Morris D. Davis. Before HODGSON, FORAY and HOLTE Appellate Military Judges DECISION UPON REHEARING PER CURIAM: This record of trial is before us for the third time. In our initial review we affirmed the appellant’s conviction of drug abuse, sodomy with an enlisted woman and conduct unbecoming an officer with a second enlisted woman. United States v. Newak, 15 M.J. 541 (A.F.C.M.R. 1982). On 13 July 1987, the Court of Military Appeals concluded the appellant was denied effective assistance of counsel and due process of law when her appointed military counsel represented both her and an enlisted woman, Airman Lynne Peelman, with whom she allegedly had sexual relations and who later became the chief prosecution witness against her on a number of charges. The court held that Peelman’s testimony and any evidence or information derived from it was tainted and should not have been admitted at trial. Therefore, it set aside those allegations in which Peelman’s testimony was the only evidence of the appellant’s guilt or such strong evidence that the prejudicial effect was apparent. Her testimony was the basis of the sodomy allegations and the drug offenses involving marijuana and amphetamine. On remand the record of trial was returned to us for consideration of whether the allegations not based on Peeiman’s testimony were tainted by the actions of defense counsel. United States v. Newak, 24 M.J. 238 (C.M.A. 1987). Although the Court of Military Appeals set aside the affected charges, the government was given leave to pursue them again if alternative untainted evidence was available. App. 151 We concluded that such was not the case, and dismissed the sodomy and drug allegations that were based on Peelman’s testimony. At the Court of Military Appeals’ direction we also considered the pcssibility that some “spillover” might have occurred from the tainted offenses involving Peelman on to those where she was not implicated. In our decision of 16 October 1987, we discussed, in some detail, the rationale for our conclusion why there was no “spillover.” Accordingly, we affirmed the remaining offenses and ordered a rehearing on the sentence. United States v. Newak, 25 M.J. 564 (A.F.C.M.R. 1987). This was accomplished on 3 May 1988, with the appellant sentenced to a dismissal, total forfeitures, and confinement for 14 months. In her current brief the appellant assigns the following errors: ISSUE | WHERE THE DEFENSE COUNSEL’S CONFLICT OF INTEREST RESULTED IN INEFFECTIVE ASSISTANCE OF COUNSEL, THE ENTIRE ADVERSARIAL PROCESS WAS FUNDAMENTALLY UNFAIR AND ALL CHARGES OF THE COURT-MARTIAL SHOULD BE DISMISSED. ISSUE Il THIS COURT WAS OBLIGATED TO HOLD AN EVIDENTIARY HEARING TO DETERMINE WHETHER THERE WAS ANY TAINT OR "SPILLOVER" ON THE OTHER CHARGES. ISSUE Ill THE PROPER STANDARD OF REVIEW WAS NOT FOLLOWED BY THE COURT IN ITS REVIEW OF APPELLANT'S CASE. App. 152 ISSUE IV THE GOVERNMENT DID NOT MEET ITS BURDEN OF PROOF. While none of the above assertions justify setting aside the appellant’s conviction, a discussion of each is warranted. The appellant's initial claim is that the Court of Military Appeals’ holding that she was denied effective assistance of counsel during the investigatory stages of the proceedings mandates that all charges be dismissed, including those which did not involve Peelman’s testimony, and that the “remedy ordered by [that court] was not sufficient to correct the prejudice suffered by [her]." The thrust of the appellant’s present argument was generally incorporated in a brief submitted to the Court of Military Appeals in August 1983. The remand of the appellant’s record by that court to us to consider if there was a “spillover” from the allegations involving Peelman and the remaining specifications is an express rejection by them of that claim of error. Had the Court of Military Appeals concluded that all charges were tainted they would have dismissed them rather than direct a lower court to test the proceedings for prejudice. In our opinion the Court of Military Appeals has already considered the assigned issue and resolved it against the appellant. We see no need to address it further. lI Next the appellant argues that the remand of her case to this court “for consideration of the issue of whether the remaining findings of guilt were tainted by the actions of the defense counsel" required us to hoid an evidentiary hearing to determine if there was any "spillover" from the tainted charges to those remaining. App. 153 The military practice of holding post-trial evidentiary hearings has its genesis in United States v. DuBay, 17 U.S.C.M.A. 147, 37 C.M.R. 411 (1967), in which the Court of Military Appeals remanded the case for a limited hearing on the issue of unlawful command influence. The procedure is broad enough to include inquiries in virtually every aspect of a trial. Typically, a hearing is ordered to fully develop a factual basis for an issue raised on appeal. See R.C.M. 1102. The issue before us could properly be the subject of a evidentiary hearing, however, it is within the discretion of an appellate court to decide if such a hearing is required. United States v. Hedrington, 47 C.M.R. 984 (A.F.C.M.R. 1973); see also United States v. Murphy, 621 Fed. Sup. 560 (D.C. N.Y. 1985). We conclude that the Court of Military Appeals wished us to exercise that discretion in resolving the remanded issue, otherwise they would have directed an evidentiary hearing themselves as they have done in dozens of cases since the DuBay holding. See generally United States v. Reece, 25 M.J. 73 (C.M.A. 1986). If the contested factual issue can be resolved from the record itself, an evidentiary hearing is not required. Bryan v. United States, 721 F.2d 572 (6th Cir. 1983). Appellate counsel argue that our “cursory examination of the record" does not address the issue adequately, and “[Ojnly an actual hearing, with examination of Captains Smith, Powers and Torres, including a review of their files and notes, together with a full examination of Amn Ryan and her contacts with O.S.l., and examination of Amn Peelman and Liles will reveal whether the remaining charges are supported by legitimate, independent evidence which is untainted, and whether any use was made of the improper evidence to secure the evidence used against [the appellant] on the other charges." To place this assertion of error in the proper perspective it should be remembered that the attorney who represents the appellant on this appeal also represented her at trial. The record discloses that Captain Smith, Torres and App. 154 Powers ail testified either as a defense or prosecution witness on the appellant’s trial motion to dismiss because of inadequate pretrial representation. Airmen Peelman and Ryan both testified on the merits, and individual defense counsel had the opportunity to cross-examine them, which she did. Likewise, she had the opportunity to question Airman Liles at the pretrial investigation. The ‘full examination” of witnesses the appellant now claims is her due was afforded her almost seven years ago at the trial when the memories of the parties were fresh and their notes and files easily obtainable. In our view, the appellant’s trial record provides an adequate basis for us to conclude that the evidence relating to the remaining charges was not tainted by the dismissed specifications. Accordingly, an evidentiary hearing was not required in this case. 7 Finally, the appellant argues that the government did not discharge its “heavy burden" to establish that the evidence supporting the charges not involving Peelman came ‘from a legitimate source wholly independent" from the tainted evidence, and thus we did not apply the proper standard of review in her case. Appellate counsel acknowledge that Peelman gave no evidence on the remanded charges, but suggest that Captain Smith’s (appellant’s appointed military counsel) access to confidential information obtained from both Peelman and the appellant might have influenced his decisions during the pretrial investigations on both sets of allegations. The appellant again urges her earlier position that where ineffective assistance of counsel has been established, all the charges should be considered tainted, and the remanded charges be dismissed. As the Court of Military Appeals pointed out in its 13 July 1987 decision, Captain Smith played an important role App. 155 in producing the testimony of Peelman, and it was for that reason that he compromised his position as an advocate for the appellant. Smith had no such relationship with Airman Ryan, whose testimony was the basis for the conviction of the remanded charges. As we indicated in our 16 October 1987 decision, Ryan began helping law enforcement officers in June 1981, approximately three months before Smith entered into an attorney-client relationship with both Peelman and the appellant. Smith’s relationship with both parties had no nexus with the offenses about which Ryan testified. We affirm our earlier position that no “spillover” occurred from the tainted offenses to those submitted to us on remand. The findings of guilty and the sentence are again AFFIRMED. OFFICAL: /s/MARYV. FILLMAN Captain, USAF Chief Commissioner App. 156 UNITED STATES COURT OF MILITARY APPEALS UNITED STATES, Appellee USCMA ODkt. No. 46098 /AF Vv. CMR Dkt. No. 23544 Joann C. ORDER NEWAK (167-38-0452), Appellant On further consideration of the petition for grant of review of the decision of the United States Air Force Court of Military Review, it is by the Court this 8th day of September, 1989 ORDERED: That said petition is hereby granted on the issues raised by appellate defense counsel; and That the decision of the United States Air Force Court of Military Review is affirmed. For the Court, /s/JohnA. Cutts, Il Deputy Clerk of the Court Se App. 157 cc: The Judge Advocate General of the Air Force Appellate Defense Counsel Appellate Government Counsel (GIOVAGNONI) (SEIDENBERG, Esa.) --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0589%3A2. Public record. Not legal advice.