Opposition Brief — Brosius v. Warden

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Supreme Court, U.S.

| FILED

al JUN 27 2002

No. 01-1588

Jn the Supreme Court of the nited Stifes

MICHAEL TODD BROSIUS, PETITIONER

WARDEN, UNITED STATES PENITENTIARY,

LEWISBURG, PENNSYLVANIA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

THEODORE B. OLSON

Solicitor General

Counsel of Record

MICHAEL CHERTOFF

Assistant Attorney General

JOHN F. DE PUE

Attorney

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTIONS PRESENTED

1. Whether petitioner, who was convicted after

court-martial proceedings, is entitled to de novo review

of his challenges to his convictions in federal habeas

corpus proceedings.

2. Whether petitioner was subjected to interroga-

tion in violation of his rights under Miranda v. Arizona,

384 U.S. 436 (1966), and Article 31(b) of the Uniform

Code of Military Justice, 10 U.S.C. 831(b).

(I)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Allen v. VanCantfort, 436 F.2d 625 (1st Cir.),

cert. denied, 402 U.S. 1008 (1971) oo... cece cccecereeeeees 12

Burns v. Wilson, 346 U.S. 137 (1953) .............. 7,10, 11, 12,13

Calley v. Callaway, 519 F.2d 184 (5th Cir. 1975),

Cant. Game, 4B UB. GET (1GTG) cncccanscccancsesccsscnenccececcasceseess 7,11

DeChamplain v. Lovelace, 516 F.2d 419 (8th Cir.

EP UUEET dkiddccaghaiennavicttneneittiines peneniecssddnictaspenshanbbenesgensennenmatenssannassees 13

Edwards v. Arizona, 451 U.S. 477 (1981) oo... 9,16

Hatheway v. Secretary of the Army, 641 F.2d 1376

(9th Cir.), cert. denied, 454 U.S. 864 (1981) 0... 12

Kauffmam v. Secretary of the Air Force, 415 F.2d

991 (D.C. Cir. 1969), cert. denied, 396 U.S. 1013

2 Ee ne ce 13

Lips v. Commandant, 997 F.2d 808 (10th Cir. 1993),

cert. denied, 510 U.S. 1091 (1994) woo. ccceeeeceesees 11

McNeil v. Wisconsin, 501 U.S. 171 (1991) oo... eee 16

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

Oregon v. Elstad, 470 U.S. 298 (1985) ........cccccscccsssscesseseeee 1

Sisson v. United States, 814 F.2d 634 (Fed. Cir.

1987), cert. denied, 484 U.S. 846 (1987) 0... 12

Weiss v. United States, 510 U.S. 163 (1994) .0..0..0..0....0.... 13

Statutes:

Antiterrorism and Effective Death Penalty Act of

1996, Pub. L. No. 104-132, Tit. I, § 104, 110 Stat. 1218 ... 9

(IIT)

Statutes—Continued:

Uniform Code of Military Justice, 10 U.S.C. 801 et seg.:

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Jn the Supreme Court of the Gnited States

No. 01-1588

MICHAEL TODD BROSIUS, PETITIONER

Vv.

WARDEN, UNITED STATES PENITENTIARY,

LEWISBURG, PENNSYLVANIA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-17a)

is reported at 278 F.3d 239. The opinion of the district

court (Pet. App. 18a-45a) is reported at 125 F. Supp. 2d

681. The order of the Court of Military Appeals, now

the Court of Appeals for the Armed Forces (Pet. App.

65a), is reported at 39 M.J. 378. The opinion of the

Army Court of Military Review, now the Army Court

of Criminal Appeals (Pet. App. 46a-64a), is reported at

37 M.J. 652.

JURISDICTION

The judgment of the court of appeals was entered on

January 23, 2002. The petition for a writ of certiorari

was filed on April 23, 2002. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

(1)

STATEMENT

Following trial by a general court-martial, petitioner

was convicted of unpremeditated murder, in violation of

10 U.S.C. 918 (Art. 118 of the Uniform Code of Military

Justice (UCMJ)). In addition, pursuant to his plea of

guilty, petitioner was convicted of communicating a

threat to kill a commissioned officer, in violation of 10

U.S.C. 934 (Art. 134, UCMJ). As approved by the con-

vening authority, his sentence included confinement for

75 years, a dishonorable discharge, forfeiture of all pay

and allowances, and reduction to the lowest enlisted

grade. The Army Court of Military Review and the

Court of Military Appeals affirmed. Pet. App. 64a, 65a.

Petitioner then filed a petition for a writ of habeas

corpus in the United States District Court for the

Middle District of Pennsylvania. That court denied the

motion, id. at 45a, and the Third Circuit affirmed, id. at

17a.

1. a. On the early morning of June 2, 1990, two

sergeants walking near the parking lot adjacent to an

enlisted barracks on Giebelstadt Kaserne, in Germany,

found Private First Class (PFC) Tammy Ivon, who was

seriously injured as the result of numerous knife

wounds. Her legs were protruding from beneath a

pickup truck. One of the sergeants asked PFC Sherad,

who was passing by, to assist them in rendering aid to

PFC Ivon. When Sherad crawled under the vehicle, he

noticed that Ivon had been bleeding extensively. As he

arose, he observed an individual, whom he subse-

quently identified as petitioner, staring at him from an

adjacent road. Ivon died of her wounds a short time

later. An autopsy revealed that she had been stabbed

four times in the chest, five times in the abdomen, and

one time near each eye. Army Criminal Investigation

Division (CID) investigators located her automobile

near where she was found. The back seat of her car

was covered with blood and a portion of her underpants

was on the floorboards. Pet. App. 2a, 47a-50a.

Evidence presented during a pretrial suppression

hearing showed that, as the investigation developed on

the day of the murder, June 2, 1990, CID investigators

initially focused their attention on two suspects, PFC

David Sparks, Ivon’s boyfriend, and Specialist Randy

Hestekin, Sparks’s roommate. Hestekin had returned

to the base early that morning with blood on his shirt

and had instructed another soldier who observed him

not to reveal what he had seen. Investigator Douglas

M. Allen took Sparks to the hospital for a sexual assault

determination. Pet. App. 20a.

During the late morning of June 2, petitioner awak-

ened his roommate by screaming that Sparks had killed

Ivon. Petitioner then repeated this accusation to his

company First Sergeant, but he acknowledged that he

had been with PFC Ivon on the night of the murder.

The First Sergeant subsequently asked Agent Allen

whether the investigators wished to speak with peti-

tioner. Allen replied, “Yes, if he’s in the area you can

send him down.” After the First Sergeant summoned

petitioner to meet with Allen, petitioner informed Allen

and another agent that PFC Ivon had driven him and

another soldier, whom he did not wish to identify,

back to the base from a local club the previous night.

According to Agent Allen, petitioner then requested

the presence of a lawyer, his First Sergeant, or some

other third party to witness his statements. Allen

responded that lawyers were available at CID

Headquarters, known as “the River Building,” and that

petitioner should go there if he wanted to speak with a

lawyer or someone else. Petitioner’s section sergeant

then drove him to the River Building. Pet. App. 3a,

20a-21a, 50a.

At the River Building, Agent Mark Nash questioned

petitioner without advising him of his rights under

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

Article 31(b) of the Uniform Code of Military Justice, 10

U.S.C. 831(b).’ Before beginning the interview, Agent

Nash informed petitioner that Sparks was the main

suspect and that, if petitioner was concerned about his

rights or began to say anything potentially incriminat-

ing, the agents would stop questioning him and advise

him of his rights. Nash added that Captain Harper

Ewing, a military attorney who was the prosecutor

assigned to the case, would be available to witness the

interview. “When Captain Ewing arrived, [petitioner]

recognized him as [the] attorney who had represented

him in an earlier civil matter.” Ewing made some

preliminary inquiries to ascertain whether that repre-

sentation would prevent him from prosecuting the case.

Although Ewing told petitioner that he now was

“working with the cops,” petitioner voiced no objection

to Ewing’s presence and did not ask Ewing questions or

seek his legal advice. Pet. App. 3a-4a.

Following his interviews, at approximately 10 p.m. on

June 2, petitioner signed a statement acknowledging

that PFC Ivon had given him and another male soldier

a ride back to the base from a club and that he last saw

her at approximately 2:55 a.m. that morning. He also

1 The obligation to provide Miranda warnings applies to

custodial interrogations. Article 31(b) applies in broader circum-

stances, requiring that any person suspected of an offense and

subject to the UCMJ be advised that he need not make a state-

ment and that any statement may be used against him in a trial by

court-martial. See 10 U.S.C. 831(b).

eT TS Te TN ae

Fes ee

stated that Ivon had a troubled relationship with

Sparks. Following the interview, petitioner returned to

his unit. Before he left, the investigators took peti-

tioner’s clothing because it was the same clothing he

had worn to the club the previous evening. Pet. App.

4a, 24a, 50a-5la.

According to Agent Nash, petitioner became a sus-

pect the next morning, June 3, when CID investigators

met about the case and realized that, although

petitioner had stated that there were three persons in

Ivon’s car when it returned to the base in the early

morning of June 2, the gate guard logs reflected that

only two persons were in the vehicle. Nash testified in

the suppression hearing that he knew of the

discrepancy when he interviewed petitioner on June 2

but assumed that the gate guard had made a mistake.

Since then, other evidence had come to light that

implicated petitioner, and Hestekin’s alibis had been

verified. Pet. App. 24a-25a.

Petitioner returned for further questioning on June 4

and 5. On both days, he was advised of his rights under

Miranda and Article 31, UCMJ, 10 U.S.C. 831, but

waived his rights and agreed to answer questions. On

June 4, petitioner reiterated his earlier version of

events. On the following day, however, he admitted

that he had killed PFC Ivon and retracted his earlier

statement that there was a third person in her car when

they returned to the base. Petitioner stated that he

had sexual intercourse with Ivon in the back seat of her

car upon returning to the base but attempted to stop

because she was “like a sister” to him. He further

stated that, when Ivon failed to terminate their en-

counter, he stabbed her approximately nine times in the

chest and stomach and also stabbed her across the eyes

so she would stop looking at him. Pet. App. 4a-5a, 51a-

52a.

b. Before trial, petitioner moved to suppress his

statements to the investigators. He argued that the

statements made on June 2 were inadmissible because

they were not preceded by warnings under Miranda

and Article 31, UCMJ, and were taken after he had re-

quested the presence of counsel, and that the state-

ments made on June 4 and 5 were tainted by the denial

of his rights on June 2.

The military judge denied the motion. The judge

found that petitioner was not entitled to warnings

under Article 31, UCMJ, because the interviewing

agents neither believed nor reasonably should have

believed that petitioner was a suspect when he was

interviewed on June 2. The judge also determined that

petitioner’s request for a lawyer was not for the pur-

pose of obtaining legal representation or advice but was

a request for an impartial observer. The judge made a

factual finding that petitioner understood that Captain

Ewing was not his lawyer, rejecting petitioner’s con-

tention that he was led to believe that Captain Ewing

was his attorney. Pet. App. 27a-29a.

2. a. The Army Court of Military Review, which is

authorized to make findings of fact as well as rulings of

law, see 10 U.S.C. 866(c), affirmed petitioner’s convic-

tions. Pet. App. 46a-64a. The court rejected peti-

tioner’s argument that his statements on June 2 were

taken in violation of his rights, finding that he “was

neither in custody nor reasonably suspected of killing

PFC Ivon by the CID agents with whom he spoke on

that date.” Jd. at 59a. The court determined that peti-

tioner had voluntarily made the statements in order to

assist the investigation, and that his nervous demeanor

was understandable because he was a friend of the

victim and thus would have raised no suspicions in a

reasonable investigator. Jd. at 59a-60a. The court

added that, even if petitioner had been in custody, his

request for counsel was not unequivocal. Jd. at 60.

b. The Court of Military Appeals affirmed without

issuing an opinion. Pet. App. 65a.

3. Petitioner subsequently filed a petition for habeas

relief under 28 U.S.C. 2241. Addressing the standard of

review, the district court observed that, under Burns v.

Wilson, 346 U.S. 137 (1953), “a civilian court may only

review decisions of military courts to determine if the

latter gave the petitioner’s claims full and fair con-

sideration.” Pet. App. 3la. Noting that the test had

been “channeled somewhat” by a four-factor analysis

adopted in Calley v. Callaway, 519 F.2d 184 (5th Cir.

1975) (en bance), cert. denied, 425 U.S. 911 (1976), the

district court stated that it would “not disturb the

military courts’ underlying findings of narrative or

historical facts” but would “review certain mixed

questions of law and fact, such as whether petitioner

was in custody.” Pet. App. 33a.

The court first rejected petitioner’s claim that he was

a suspect when questioned on June 2 and therefore was

entitled to warnings under Article 31, UCMJ. The

court explained that Agent Allen was not yet aware of

the discrepancy between petitioner’s statement and the

gate guard’s logs on whether a third person accompa-

nied petitioner and PFC Ivon back to the base, and that

Agent Nash believed the gate guard had made a mis-

take. Also, the court observed, two valid suspects were

already in custody, and Allen met petitioner while

interviewing a number of soldiers. At that time, Allen

anticipated that petitioner would supply incriminating

evidence against Sparks. As for petitioner’s reliance on

the seizure of his clothing at the end of the interview,

the court determined that the argument had been given

full and fair consideration by the Court of Military

Appeals and did not alone constitute a basis for disturb-

ing the conviction. Pet. App. 36a-37a.

The district court also rejected petitioner’s con-

tention that he was “in custody” for Miranda purposes

when questioned on June 2. The court noted that peti-

tioner was cooperative with the investigators at all

times and never asked to leave. Moreover, the court

observed, the Army Court of Military Review had

made a factual finding that petitioner appeared before

the agents voluntarily as a friend of PFC Ivon to assist

in apprehending her killer. Pet. App. 40a-41a.

Finally, the court rejected petitioner’s claim that he

was denied his right to counsel in violation of Miranda.

The court found that petitioner’s initial request for

counsel was ambiguous, and explained that petitioner

was not entitled to Miranda warnings in any event

because he was not in custody when he requested

counsel. Pet. App. 42a-48a.

4. The court of appeals affirmed. Pet. App. la-17a.

The court observed that, in Burns, this Court “applied

a deferential standard of review to the claims that, on

the undisputed facts, the habeas petitioners’ consti-

tutional rights were violated.” Jd. at 8a. Without

attempting a complete elucidation of Burns, the court

concluded that, “at least absent a challenge to the

constitutionality of the statute under which the de-

fendant was convicted, * * * our inquiry in a military

habeas case may not go further than our inquiry in a

state habeas case.” Jd. at 9a. Thus, the court assumed,

“but solely for the sake of argument,” that it could

“review determinations made by the military courts in

this case as if they were determinations made by state

courts.” Ibid. (emphasis omitted). Applying that

assumption, the court looked to the habeas standards

set forth in 28 U.S.C. 2254(d), which, pursuant to the

Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), Pub. L. No. 104-132, Tit. I, § 104, 110 Stat.

1218-1219, condition habeas relief on a showing that the

prior adjudication of the claim “resulted in a decision

that was contrary to, or involved an unreasonable appli-

cation of, clearly established Federal law, as deter-

mined by the Supreme Court,” or “resulted in a decision

that was based on an unreasonable determination of the

facts in light of the evidence presented.”

The court first addressed petitioner’s claim that he

should have been given Miranda warnings when

interviewed on June 2. After reviewing petitioner’s

_testimony and the testimony of the agents in the

suppression hearing, the court found “no basis for over-

turning the Army Court of Military Review’s deter-

mination that [petitioner] appeared before the CID

agents voluntarily.” Pet. App. lla. As a result, the

court determined, petitioner was not in custody when

he gave his statements on June 2.

The court next addressed petitioner’s claim that he

was a suspect on June 2 and so was entitled to warnings

under Article 31, UCMJ. The court found it unneces-

sary to determine whether petitioner was a suspect,

concluding that any failure to suppress petitioner’s

statements on June 2 was harmless error because those

statements added nothing to the statements he sub-

sequently gave on June 4 and 5. Under Oregon v.

Elstad, 470 U.S. 298 (1985), the court explained, the

subsequent confessions were admissible because they

were preceded by Miranda warnings, which “suffice[d]

to remove the conditions that precluded admission of

the earlier statement.” Pet. App. 16a (quoting Elstad,

470 U.S. at 314).

Finally, the court rejected petitioner’s contention

that, under Edwards v. Arizona, 451 U.S. 477 (1981),

the investigators should have suspended their question-

ing when petitioner requested counsel. The court ex-

plained that petitioner could not rely on Edwards

because he was not in custody when he requested

counsel. Pet. App. 17a.

ARGUMENT

Petitioner contends (Pet. 10-19) that the courts of

appeals disagree on the standard of review that

governs habeas claims arising out of court-martial pro-

ceedings. According to petitioner, the court below

should have followed other courts of appeals by ap-

plying a de novo standard of review to his claims. That

contention lacks merit and does not warrant review.

1. In Burns v. Wilson, 346 U.S. 1387 (1953), this

Court addressed the scope of federal habeas review of

military court-martial proceedings. Four Justices

stated in a plurality opinion that,

“(ijn military habeas corpus cases, even more than

in state habeas corpus cases, it would be in dis-

regard of the statutory scheme if the federal civil

courts failed to take account of the prior proceedings

—of the fair determinations of the military tribunals

after all military remedies have been exhausted.”

Id. at 142. Accordingly, the plurality explained, “when

a military decision has dealt fully and fairly with an

allegation raised in [an] application [for habeas corpus],

it is not open to a federal civil court to grant the writ

simply to re-evaluate the evidence.” Jbid. Instead, it

“Is the limited function of the civil courts to determine

whether the military have given fair consideration to

each of these claims.” Jd. at 144. The petitioners

therefore could not attempt “to prove de novo * * *

precisely the case which they failed to prove in the

military courts.” Jd. at 146. Justice Minton concurred

in the judgment because, in his view, the proper role of

a federal habeas court in reviewing a court-martial

conviction was limited to determining whether the

court-martial possessed jurisdiction. /d. at 147.

While Burns has not produced a completely clear

standard, see Pet. App. 7a-8a, there is no conflict over

the application of Burns that warrants this Court’s

review in this case. As the court of appeals observed

(id. at 7a), habeas review of court-martial convictions is

most often conducted by the Tenth Circuit because the

United States Disciplinary Barracks is located in Fort

Leavenworth, Kansas. That court reads Burns to

permit habeas review of a military conviction only if,

inter alia, the claim involves a substantial consti-

tutional question and raises an issue of law rather than

fact, and the “military courts failed to give adequate

consideration to the issues involved or failed to apply

proper legal standards.” Lips v. Commandant, 997

F.2d 808, 811 (10th Cir. 1993), cert. denied, 510 U.S.

1091 (1994); see Calley v. Callaway, 519 F.2d 184, 199-

203 (5th Cir. 1975) (en banc) (adopting same stan-

dards), cert. denied, 425 U.S. 911 (1976). Petitioner

could not prevail under that approach, because he does

not argue that the military courts “failed to apply

proper legal standards” or “failed to give adequate

consideration” to his claims. Instead, he seeks de novo

review of the military courts’ application of settled legal

standards to the facts of this case. Pet. 17-18. Accord-

ingly, the district court properly determined that peti-

tioner was not entitled to relief under the Tenth

Circuit’s approach. Pet. App. 32a-33a.

Petitioner asserts (Pet. 11-12) that three courts of

appeals have adopted a de novo standard when ad-

dressing habeas challenges to court-martial convictions.

The decisions of two of the three courts of appeals did

not involve a habeas petition, however, but instead

arose in the context of civil proceedings seeking back

pay, reinstatement, and other comparable relief from

sentences imposed by courts-martial. See Hatheway v.

Secretary of the Army, 641 F.2d 1376 (9th Cir.) (federal

question and mandamus claim seeking back pay,

honorable discharge, and lost benefits), cert. denied, 454

U.S. 864 (1981); Sisson v. United States, 814 F.2d 634

(Fed. Cir.) (Tucker Act claim seeking repayment of

forfeited compensation), cert. denied, 484 U.S. 846

(1987). Neither decision purports to adopt or has been

construed by those courts as establishing a de novo

standard for habeas actions.”

The third decision relied on by petitioner, Allen v.

VanCantfort, 436 F.2d 625 (1st Cir.), cert. denied, 402

U.S. 1008 (1971), held that, “[wJith respect to consti-

tutional issues, the scope of review in habeas corpus

challenges to military convictions is more limited than

in comparable civilian cases.” Jd. at 629. The court’s

subsequent observation that it would “review briefly

petitioner’s claims on the merits,” id. at 630, does not

establish precedent for a de novo standard, and should

not be so interpreted in light of Burns’ rejection of such

a standard for review of claims, similar to those here,

that confessions had been coerced. 346 U.S. at 145-146

2 In Hatheway, the court could not assess whether the

“constitutional arguments received full and fair consideration” in

the military courts “because none of the military courts articulated

its analysis of them.” 641 F.2d at 1380 n.4.

——_

(plurality opinion); id. at 147 (Minton, J., concurring).