Petition for Writ of Certiorari — Collins v. United States

e254 % eg

9420383 JUN 13 1995;

No. ——ogsice DE THE CLERK

IN THE

Supreme Court of the United Staten

OCTOBER TERM, 1994

JoYceE R. CoLLins,

* Petitioner

UNITED STATES OF AMERICA,

Respondent

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Armed Forces

PETITION FOR WRIT OF CERTIORARI

JAY LINDSEY COHEN

Colonel, United States Air Force

Chief Appellate Defense Division

Counsel of Record

ROBERT E. WATSON

Captain, United States Air Force

Appellate Defense Counsel

Counsel for the Petitioner

Air Force Legal Services Agency

Appellate Defense Division

172 Luke Avenue, Suite 208

Bolling AFB, DC 20332-5113

June 1995 (202) 767-1562

PROT STE ete:

A a

QUESTION PRESENTED

Whether the United States Court of Appeals for the

Armed Forces erred when, in the face of a silent record,

it disposed of the petitioner’s double jeopardy concerns

on the basis of waiver.

(i)

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES iv

OPINIONS BELOW é 1

JURISDICTION 2

CONSTITUTIONAL PROVISIONS INVOLVED ......... 2

STATEMENT OF THE CASE a 2

REASONS FOR GRANTING THE WRIT ................... 4

CONCLUSION : = 9

RPP Ait ge at la

APPENDIX B .. Fy Suara 10a

(iii)

iv

TABLE OF AUTHORITIES

SUPREME COURT CASES: Page

Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40

L.Ed.2d 628 (1974) ............... hii 5

Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8

L.Ed.2d 70 (1968). ............-............-.....jpepeeees 6

Boykin v, Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23

L.EG.2 274 41900) 2.03 chae a ee eas 6

Oregon v. Kennedy, 456 U.S. 667, 102 S. Ct. 2083,

72 L.ENd.2d 416 (1962) i... cae 4

Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019

(1938) ........ SESE Sebi bed ale dha Rae 8

Menna v. New York, [423 U.S. 61, 96 S.Ct. 241, 46

Li Bd.24 106 (AGTE)Y oon cn. ccocccce gee 5

United States v. Broce, 488 U.S. 568, 109 S.Ct. 757,

102 L.Ed.2d 927 (1989) -.............. 4

Ricketts v. Adamson, 483 U.S. 1, 107 S. Ct. 2680,

97 1, WbS4 1 C1967) ..0 kee 7

MILITARY CASES:

United States v. Clark, 26 M.J. 589 (A.C.MLR.

1988), aff’d 28 M.J. 401 (C.M.A. 1989) -.............. 8

United States v. Rodgers, 8 U.S.C.M.A. 226, 24

C.AMLR.. 96 (1967) 3c 8

United States v. Salter, 20 M.J.116 (C.M.A. 1985).. 8

United States v. Shinault, 28 M.J. 666 (N.M.C.M.R.

SOD) nccienicheccennnieacacansnbiieecttionaniardioesetaaasn-eaancaiiauaies 8

STATUTES:

28 U.S.C.A. § 1259(3) (Supp. 1992) ......................---- 2

10 U.S.C.A. § 867(a) (Supp. 1992) ...................-....-- 2

In THE

Supreme Court of the United States

OCTOBER TERM, 1994

No.

Joyce R. COLLIns,

* Petitioner

UNITED STATES OF AMERICA,

Respondent

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Armed Forces

PETITION FOR WRIT OF CERTIORARI

aii

The petitioner, Joyce R. Collins, respectfully prays that

a writ of certiorari issue to review the order and judgment

of the United States Court of Appeals for the Armed

Forces entered in her case on March 22, 1995. —

OPINIONS BELOW

The order and judgment of the United States Court of

Appeals for the Armed Forces’, 41 M.J. 428 (1995)

is located at Appendix A. The unpublished opinion of

the United States Air Force Court of Military Review °

is located at Appendix B.

1 The court was previously named the United States Court of

Military Appeals.

2 The court has been subsequently renatned the Air Force Court

of Criminal Appeals.

2

JURISDICTION

The final order of the United States Court of Appeals

for the Armed Forces was entered on March 22, 1995.

The jurisdiction of this Court is invoked under 28 U.S.C.A.

§ 1259(3) (Supp. 1992) and 10 U.S.C.A. § 867(a)

(Supp. 1992).

CONSTITUTIONAL PROVISIONS INVOLVED

The Fifth Amendment of the Constitution of the United

States provides in relevant part:

No person shall . . . be subject for the same offence

to be twice put in jeopardy of life or limb... .

STATEMENT OF THE CASE

The petitioner was charged, inter alia, with violations

of Articles 80, 107, and 121, of the Uniform Code of

Military Justice (U.C.M.J.).* These charges were with-

drawn prior to the entry of pleas. The petitioner pled

not guilty to the sole remaining charge, and the four

specifications thereunder, which alleged violations of Ar-

ticle 132, U.C.M.J., 10 U.S.C. § 932. The trial was ter-

minated when the military judge granted a defense motion

for mistrial. The basis of the mistrial was prosecutorial

misconduct, particularly on the part of a Captain George

May. In granting the motion, the military judge stated:

Well, gentlemen, I’m very concerned at the way that

this case has progressed. I’m not pleased’ with the

way that it has been conducted. Although there is

no one specific fact that I could point to that would

be the deciding factor, there are so many facts, with

regard to the production of evidence, and with re-

gard to the conduct of the prosecution team; spe-

cifically, Captain George May, that I find that an

atmosphere exists and that circumstances have arisen

during the course of this proceeding which I find do

' $10 U.S.C. §§ 880, 907 and 921, respectively.

3

cast substantial doubt upon the fairness of the pro-

ceedings as they have been conducted to this point.

I cannot, in good conscience, allow these proceedings

to proceed from this point forward.

Therefore, the defense’s motion for mistrial, as it has

been incorporated in Appellate Exhibit XIV, is

granted.

Page 401 of the original record of trial.

On October 8, 1991, the sole remaining charge and

specifications were referred to another general court-

martial. Upon a prosecution motion, specifications 1 and

2 were withdrawn, and guilty pleas were entered as to

specifications 3 and 4. The petitioner was sentenced to a

bad conduct discharge, confinement for eight months, for-

feiture of all pay and allowances, and reduction to pay

grade E-1. During this second proceeding there was no

discussion of the previously declared mistrial. On No-

vember 25, 1991, the convening authority, pursuant to a

pretrial agreement, reduced the period of confinement to

60 days. In all other respects the sentence was approved.

The United States Air Force Court of Military Review,

in an unpublished per curiam opinion, affirmed on May

27, 1992. On October 15, 1992, the United States Court

of Military Appeals denied the petitioner’s initial Petition

for Grant of Review. However, on December 15, 1992,

that Court granted petitioner’s motion to suspend the rules

and granted the petition for reconsideration, set aside the

decision of the Air Force Court of Military Review and

remanded for further review. On August 31, 1993, the

Air Force Court of Military Review again affirmed in an

unpublished decision (Appendix B). On February 1,

1994, the United States Court of Military Appeals granted

the appellant’s petition for review.

The petitioner’s position on appeal was that the actions

of the prosecution team were designed to “goad” a mis-

trial, and that her pleas of guilty at the second trial were

4

improvident since the military judge failed to address the

issue of double jeopardy and obtain a knowing and vol-

untary waiver of this important constitutional right. The

Air Force Court of Military Review, in affirming the con-

victions, held that the appellant had waived the double

jeopardy issue by failing to raise it at her second trial.

They also relied on this Honorable Court’s decision in

Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72

L.Ed.2d 416 (1982) for the proposition that, even if

waiver did not apply, “there was no governmental miscon-

duct to ‘goad’ appellant into moving for a mistrial.” Col-

lins, unpub. op. at 2 (Appendix B).

The United States Court of Appeals for the Armed

Forces, with the exception of Judge Cox’s separate con-

currence, did not reach the question of whether petition-

er’s case fell within the stricture of Oregon v. Kennedy.

Instead, if relied upon the lower court’s interpretation of

United States v. Broce, 488 U.S. 563, 109 S.Ct. 757,

102 L.Ed.2d 927 (1989) in finding that the petitioner’s

subsequent plea of guilty waived or forfeited the double

jeopardy issue.

REASONS FOR GRANTING THE WRIT

The reliance by the Air Force Court of Military Review

and the United States Court of Appeals for the Armed

Forces on Broce was misplaced. This Court in Broce

considered a collateral attack on two indictments to which

the respondents had pled guilty to in a single proceeding.

The indictments alleged two separate incidents wherein

the respondents sought to rig construction bids. After the

respondents trial, action was taken against another con-

struction firm on similar charges. Unlike the respondents,

the accused in the second trial entered not guilty pleas

and were ultimately acquitted. When additional charges

were subsequently filed against the second firm, that firm

filed a motion to dismiss based on double jeopardy, which

was granted by the trial court. The trial court found that

5

there was but one continuing conspiracy covering a twenty-

five year period in the Kansas highway construction

industry.

The respondents in Broce, watching the proceedings of

the other accused “with awe, if not envy,” filed a motion

to dismiss. 488 U.S. at 567. The respondents relied on the

results in the other firm’s proceeding in arguing that there

was only one conspiracy and, thus, it violated the double

jeopardy clause to convict them of two separate con-

spiracies. The Tenth Circuit Court of Appeals agreed.

This Court reversed the decision of the Court of Ap-

peals on the basis that the respondents were unable to

“prove their claim by relying on those indictments and

the existing record.” 488 U.S. at 576. In short, this Court

held that defendants cannot rely on facts outside the rec-

ord to collaterally attack “indictments that on their face

described separate conspiracies.” 488 U.S. at 576.

This Honorable Court observed that “[a]n exception to

the rule barring collateral attack on a guilty plea was

established by our decisions in Blackledge v. Perry, 417

U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974) and

Menna v. New York, [423 U.S. 61, 96 S.Ct. 241, 46

L.Ed.2d 195 (1975)}.” 488 U.S. at 574. In discussing

Menna, this Court stated: _

The petitioner in Menna had refused, after a grant

of immunity, to obey a court order to testify before

a grand jury. He was adjudicated in contempt of

court and sentenced to a term in civil jail. After he

was released, he was indicted for the same refusal

_to-answer the questions. He pleaded guilty and was

sentenced, but then appealed on double jeopardy

grounds. The New York Court of Appeals concluded

that Menna had waived his double jeopardy claim

by pleading guilty. We reversed, citing Blackledge

for the proposition that “[wJhere the State is pre-

cluded from haling a defendant into court on a

charge, federal law requires that a conviction on that

6

charge be set aside even if the conviction was en-

tered pursuant to a counseled plea of guilty.” 423

U.S. at 62, 96 S.Ct. at 242. We added, however, an

important qualification:

“We do not hold that a double jeopardy claim

may never be waived. We simply hold that a

plea of guilty to a charge does not waive a

claim that—judged on its face—the charge is

one which the State may not constitutionally

prosecute.” /d., at 63, n.2, 96 S.Ct. at 242, n.2

(emphasis added).

In neither Blackledge nor Menna did the defend-

ants seek further proceedings at which to expand

the record with new evidence. In those cases, the

determination that the second indictment could not

go forward should have been made by the presiding

judge at the time the plea was entered in the basis

of the existing record. Both Blackledge and Menna

could be (and ultimately were) resolved without

any need to venture beyond that record.

488 U.S. at 575.

In the case sub judice, the appellant is not claiming

that the double jeopardy issue arose from comparing the

charges in her case with the results in some other ac-

cused’s trial, nor is she seeking to expand the record. It

is the petitioner's record, consisting of the transcripts of

both proceedings, which forms the basis for petitioner’s

argument that the government was precluded from twice

haling her into court.

The petitioner’s record is completely silent regarding

any knowledge on her part of the rights she supposedly

“waived.” As this Court noted in Boykin v. Alabama,

395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969),

finding waiver under such circumstances is improper:

The requirement that the prosecution spread on

the record the prerequisites of a valid waiver is no

constitutional innovation. In Carnley v. Cochran,

369 U.S. 506, 516, 82 S.Ct. 884, 890. 8 L.Ed.2d

7

70, we dealt with a problem of waiver of the right

to counsel, a Sixth Amendment right. We held:

“Presuming waiver from a silent record is impermis-

sible. The record must show, or there must be an

allegation and evidence which show, that an accused

was offered counsel but intelligently and understand-

ingly rejected the offer. Anything less is not waiver.”

We think that the same standard must be applied

to determining whether a guilty plea is voluntarily

made. For, as we have said, a plea of guilty is more

than an admission of conduct; it is a conviction.

Ignorance, incomprehension, coercion, terror, induce-

ments, subtle or blatant threats might be a perfect

cover-up of unconstitutionality. The question of an

effective waiver of a federal constitutional right in

a proceeding is of course governed by federal stand-

ard.

395 U.S. at 242-243. This Honorable Court has applied

Boykin to double jeopardy issues. See Ricketts v. Adam-

son, 483 U.S. 1, 107 S.Ct. 2680, 97 L.Ed.2d 1 (1987).

Notwithstanding the admonition in Boykin, the United

States Court of Appeals for the Armed Forces relied on

the “silent record” to find waiver in this case. That court

stated: “Like Broce, the double-jeopardy claim here can-

not be resolved on the “existing record.” 41 M.J. at 430.

This statement ignores both the existence of a record from

the first proceeding in the petitioner’s case, as well as the

fact that it is the very silence on the issue during the

second proceeding which calls into question the provi-

dency of the appellant’s pleas. Had she known of her

right to challenge the second proceeding on double jeop-

ardy grounds, she would have sought to establish the

prosecutorial “goading” necessary to prevail under Oregon

v. Kennedy, supra.

It has long been observed by the military appellate

courts that “defenses based on the statute of limitations

or former jeopardy” are “in the nature of confession and

8

avoidance or estoppel.” United States v. Clark, 26 M.J.

589, 596 (A.C.M.R. 1988), aff'd 28 M.J. 401 (C.M.A.

1989). This recognition of the similarities between stat-

ute of limitations and double jeopardy is illuminating.

Whenever a statute of limitations issue appears, the mili-

tary judge is required to bring the matter to the atten-

tion of the accused. See e.g., United States v. Shinault,

28 M.J. 666, 667 (N.M.C.M.R. 1989) (“because there

was not a knowing waiver of the statute of limitations

during the providency inquiry, the plea is improvident” ) ;

United States v. Salter, 20 M.J. 116, 117 (C.M.A.

1985) (“Almost 28 years ago, we held that it was well

established in military jurisprudence that whenever it ap-

pears that the statute of limitations has run against an

offense, that fact will be brought to the attention of the

accused by the court.”), citing United States v. Rodgers,

8 U.S.C.M.A. 226, 24 C.M.R. 36 (1957).

A similar requirement should be required when poten-

tial double jeopardy issues arise. This is certainly true

when the military judge is aware that a prior proceeding

was conducted regarding the same alleged offenses. At a

minimum, he should have inquired whether the appellant

was waiving such a potential defense to prosecution. “A

waiver is ordinarily an intentional relinquishment or aban-

donment of a known right or privilege.” Johnson v.

Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023 (1938).

As Judge Cox noted in his concurrence, “if an accused

wants to waive a statutory or constitutional right, we

should be able to see from the record that the accused

knowingly gave up that right.” 41 M.J. at 431.

9

CONCLUSION

By resorting to a waiver/forfeiture analysis, the United

States Court of Appeals for the Armed Forces never ad-

dressed the petitioner’s important constitutional concerns.

That court never determined whether, based on the entire

existing record, the petitioner had been subjected to double

jeopardy. Nor did they consider whether, if the record

was insufficient to find double jeopardy, the petitioner

knowingly waived the right to develop the record prior

to entering guilty pleas. The United States Court of Mili-

tary Appeals should be directed to consider these issues.

The petitioner respectfully requests that this Honorable

Court grant the petition for writ of certiorari and remand

to the United States Court of Appeals for the Armed

Forces for further consideration.

Respectfully submitted,

JAY LINDSEY COHEN

Colonel, United States Air Force

Chief Appellate Defense Division

Counsel of Record

ROBERT E. WATSON

Captain, United States Air Force

Appellate Defense Counsel

Counsel for the Petitioner

Air Force Legal Services Agency

Appellate Defense Division

172 Luke Avenue, Suite 208

Bolling AFB, DC 20332-5113

June 1995 (202) 767-1562

APPENDICES

Ee ee ee ee ee ee ee

OPAL I IEE TY Ty

la

APPENDIX A

U.S. COURT OF APPEALS

FOR THE ARMED FORCES

No. 68,381

CMR No. 29663

UNITED STATES,

Appellee,

v.

Joyce R. CoL.ins, Sergeant U.S. Air Force,

Appellant.

Argued Dec. 15, 1994

Decided March 22, 1995

OPINION OF THE COURT

CRAWFORD, Judge:

1. Pursuant to her pleas, appellant was convicted of

presenting false claims (2 specifications), in violation of

Asticle 132, Uniform Code of Military Justice, 10 USC

3 932. She was sentenced to a bad-conduct discharge, 8

months’ confinement, total forfeitures, and reduction to

the lowest enlisted grade. Pursuant to a pretrial agree-

ment, the convening authority reduced the term of con-

finement to 60 days but otherwise approved the sentence.

The Court of Military Review, now the Court of Crim-

inal Appeals, affirmed the findings and sentence. We

granted review on the following issues, 39 MJ 385:

2a

I

WHETHER THE AIR FORCE COURT OF MILI-

TARY REVIEW ERRED WHEN:

A

THEY [SIC] MISCONSTRUED THE DECISION

OF THE UNITED STATES SUPREME COURT

IN UNITED STATES V. BROCE, 488 U.S. 563,

109 S.Ct. 757, 102 L.Ed.2d 927 (1989) IN FIND-

ING THAT APPELLANT WAIVED THE ISSUE

OF DOUBLE JEOPARDY, and

B

WHETHER THEY [SIC] INCORRECTLY

FOUND, EVEN IF WAIVER DID NOT APPLY,

THAT THE PROSECUTORIAL MISCONDUCT

WAS DESIGNED MERELY TO PERFECT THE

SGOVERNMENT’S CASE RATHER THAN TO

PROVOKE A MISTRIAL.

Il

WHETHER APPELLANT’S PLEAS WERE IM-

PROVIDENT WHEN THE MILITARY JUDGE

FAILED TO ADDRESS THE ISSUE OF DOUBLE

JEOPARDY AND OBTAIN A KNOWING

WAIVER OF THIS IMPORTANT CONSTITU-

TIONAL RIGHT PRIOR TO ACCEPTING HER

PLEAS OF GUILTY.

2. We hold that the Court of Military Review did not

misconstrue the Broce decision and that there was a

legitimate waiver by a failure to raise the double-jeopardy

provisions as set forth in the Constitution, Uniform

Code, and the Manual for Courts-Martial.

ee NT

3a

FACTS

3. On August 13, 1991, appellant’s case was origi-

nally referred to trial for violations of Articles 80, 107,

121, and 132, UCMJ, 10 USC 8§ 880, 907, 921, and

932, respectively. These charges grew out of a do-it-

yourself move by appellant from Nellis Air Force Base,

Nevada, to Columbia, South Carolina. During the pre-

trial stages, it became known that the base military

justice officer, Captain M, was engaged in an additional

investigation of certain potential defense witnesses and

several witnesses, albeit unwilling, for the Government.

When the court opened on August 23, 1991, the defense

moved for a mistrial or a “lengthy continuance” to in-

vestigate the additional evidence. The thrust of the mo-

tion was that the Government was not complying fairly

with appellant’s request for discovery and was intimidat-

ing witnesses. After a hearing into Captain M’s conduct,

a mistrial was granted over the prosecution’s objection.

The judge made no specific findings of prosecutorial

misconduct, but he found “that an atmosphere exists and

that circumstances have arisen during the course of this

proceeding which I find do cast substantial doubt upon

the fairness of the proceedings as they have been con-

ducted to this point.”

4. As the Court below found: “The ill-advised trial

preparation [by the prosecution] was fully explored and

we are convinced the intent of the activity was to per-

fect the government’s case, rather than provoke a mis-

trial.” Unpub. op. at 2. We will not disturb such find-

ings unless they are clearly erroneous. Cf. United States

v. Burris, 21 MJ 140, 144 48 (CMA 1985).

5. A new general court-martial was convened on

October 8, 1991. At that time appellant entered un-

conditional pleas to the charge and the two specifications

of presenting false claims. There was neither a discussion

of the earlier proceeding nor a motion to dismiss the

charge and specifications because of double jeopardy.

4a

DISCUSSION

6. The Constitution, the Code, and the Manual for

Courts-Martial offer protection against being tried twice

for the same offense. The Fifth Amendment to the

United States Constitution provides, “[NJor shall any

person be subject for the same offence to be twice put in

jeopardy of life or limb.” Article 44(a) of the Code, 10

USC § 844(a), provides: “No person may, without his

consent, he tried a second time for the same offense.”

RCM 907(b)(2)(C), Manual for Courts-Martial, United

States, 1984, provides: “A charge or specification shall

be dismissed upon motion made by the accused before

the final adjournment of the court-martial in that case

if . . . [t]he accused has previously been tried by court-

martial . . . for the same offense. . . .” However, these

rights may be waived, since RCM 907(b)(2) is desig-

nated as “Waivable grounds.”

7. The Court of Military Review held that the double-

jeopardy issue was waived by appellant’s guilty pleas.

The Court cited United States v. Broce, 488 U.S. 563,

109 S.Ct. 757, 102 L.Ed.2d 927 (1989), and RCM

907(b)(2)(C) as controlling. The defense would dis-

tinguish the Manual provision and Broce and argue, pur-

suant to Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct.

2083, 72 L.Ed.2d 416 (1982), that they were goaded

into a mistrial.

8. In Oregon v. Kennedy, 456 U.S. at 676, 102 S.Ct.

at 2089-90 417, the Court held: “Only where the gov-

ernmental conduct in question is intended to ‘goad’ the

defendant into moving for a mistrial may a defendant

raise the bar of double jeopardy to a second trial after

having succeeded in aborting the first on his own mo-

tion.” As this Court stated in United States v. DiAngelo,

31 MJ 135, 137 4¢ 6 (CMA 1990): “Mere overreaching

by a prosecutor is not enough; the record must show

that the prosecutor or judge sought ‘to “goad” the de-

fendant into moving for a mistrial.’” Quoting Oregon

ee

A

Sa

v. Kennedy, 456 U.S. at 676, °102 S.Ct. at 2089. The

defense would also rely on Menna v. New York, 423

U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975), where

the Court held that the defendant’s previously asserted

claim that his indictment should be dismissed on double-

jeopardy grounds was not waived by a plea of guilty.

The Court in Broce held that the guilty plea resulted in

a “forfeiture” as distinguished from knowing waiver. 488

U.S. at 573, 109 S.Ct. at 764 44 19 and 18. The Broce

Court distinguished Menna by indicating that Menna

could be resolved on the “existing record” because of a

motion to dismiss prior to the guilty plea and, thus,

came under an exception to the general rule of for-

feiture. Jd. at 575, 109 S.Ct. at 765-66 4423 and 24.

Unlike the situation in Menna, here appellant made no

such motion to dismiss prior to her guilty plea.

9. As we stated in United States v. Cause, 37 MJ

308, 311 ¢ 12 (CMA 1993):

The waiver rule places responsibility upon defense

counsel to object... . This rule is designed . . . to

prevent defense counsel from remaining silent, mak-

ing no objection, and then raising the issue on ap-

peal for the first time, long after any possibility of

curing the problem has vanished. It is important

“to encourage all trial participants to seek a fair

and accurate trial the first time around.”

10. In United States v. Jones, 37 MJ 321, 323 € 15

(CMA 1993), we asserted:

The rationale behind [waiver-] forfeiture is ju-

dicial economy. If an individual is permitted not to

object and then can raise the issue on appeal, both

the parties and the public are put to the expense of

retrial. It is important for the objection to be made

at the trial level so it can be resolved there to avoid

the expense of an appeal... .

11. Like Broce, the double-jeopardy claim here can-

not be resolved on the “existing record” because no mo-

6a

tion was made prior to the plea. The military judge at

the first trial made no finding of fact that the prosecution

was trying to goad the defense into a mistrial, and the

judge at the second court-martial did not hold any hear-

ing or make any findings as to the reason for the mis-

trial. In fact, the record reveals that at the first trial the |

prosecution objected to a mistrial and a lengthy delay. |

To this date, the defense has offered no evidence that

this resistance was a sham. Thus, we hold that the Court

of Military Review did not misconstrue the Broce deci-

sion, so appellant’s pleas of guilty were provident.

The decision of the United States Air Force Court of

Military Review on further review is affirmed.

Chief Judge SULLIVAN and Judges GIERKE and

WISS concur.

COX, Judge (concurring in part):

12. In this case I part company, narrowly, on the

question of waiver. See United States v. Huffman, 40

MJ 225 (CMA 1994). In my mind, waiver is the “in-

tentional or voluntary relinquishment of a known right.”

See Black’s Law Dictionary 1580 (6th ed. 1990). There-

fore, before I tax a service-member with the mantle of

waiver of a constitutional or statutory right, I want to be

certain that the member knows that he or she enjoys

that right. See United States v. Johnson, 21 MJ 211,

216-17 ¢ 25 (CMA 1986) (Cox, J., concurring in the

result), where I stated:

One important reason to insist that military judges

build a complete record is to insure that our military

justice system continues to operate with the highest

standards and is a model of justice in the field of

criminal law. It is far more difficult for an ac-

cused to complain of unfair or unjust treatment

when the record of trial clearly indicates that

.

Ta

he understood each and every allegation against

him; that he understood each and every right he

had at each stage; that he knowingly and consciously

waived any of those rights; and that, when appro-

priate, he acknowledged his own belief in his guilt.

Without a complete record to perpetuate these mat-

ters, the military justice system is vulnerable to the

allegation that it is a system of “drumhead justice.”

13. I acknowledge that the Supreme Court of the

United States may not require intentional waiver to sat-

isfy constitutional norms of due process to the same de-

gree that I believe that perhaps military due process

should. After all, that is why we have lawyers in the

courtroom, isn’t it? Lawyers advise clients of their rights.

That is certainly true. Nevertheless, in my judgment the

benefits from obtaining waivers on the record of trial

far outweigh the minor inconvenience to judges and trial

attorneys which comes from doing it right. Therefore, I

believe that we should require waiver of constitutional

and statutory rights to be an affirmative, knowing waiver.

14. That same rationale does not apply to trial tactics

and errors. According to Mil.R.Evid. 103(a), Manual

for Courts-Martial, United States, 1984: “Error may not

be predicated upon a ruling which admits or excludes

evidence unless the ruling materially prejudices a substan-

tial right of a party.” See also Art. 59(a), Uniform Code

of Military Justice, 10 USC § 859(a), which states: “A

finding or sentence of a court-martial may not be held

incorrect on the ground of an error of law unless the

error materially prejudices the substantial rights of the

accused.” See also United States v. Fisher, 21 MJ 327

(1986).

15. Judge Crawford made a good argument for the

validity of these “raise or waive” rules in her separate

opinion in United States v. Huffman, supra at 229 415.

I do not disagree with her views to the extent we are

8a

talking about events which transpire in the course of the

litigation, whether before, during, or after trial.

16. It would be folly to try to list all the various

types of issues and objections which arise during litigation,

including pretrial and post-trial litigation, which are sub-

ject to the “raise or waive” rules. See RCM 907, Manual,

supra. Suffice it to say here, if an accused wants to waive

a statutory or constitutional right, we should be able to

see from the record of trial that the accused knowingly

gave up that right.

17. Nevertheless, even with this principle in mind, I

approach a case-such as this one (and Huffman) with a

different perspective from that of the then-Air Force Court

of Military Review and my colleague, Judge Crawford.

First, I ask, “What is the error being alleged?” Second.

“Is it error?” Third, “Was the error waived by failure of

counsel to object or otherwise raise it at trial?” See

Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17

L.Ed.2d 705 (1967); United States v. Fisher, supra, and

other harmless-error cases. I recognize that I may be ar-

guing semantics, but it seems to me that this approach

is mandated by Article 59(a) and Mil.R.Evid. 103. How

else can an appellate judge determine if the error ma-

terially prejudiced an accused if the judge never consid-

ers the error?

18. The error alleged here is that appellant’s court-

martial was barred by the Double Jeopardy Clause of

Amendment V of the Constitution or by Article 44(a),

UCMJ. 10 USC § 844(a). The Court of Military Re-

view disposed of the case “on waiver grounds,” unpub.

op. at 2, citing United States v. Broce, 488 U.S. 563,

109 S.Ct. 757, 102 L.Ed.2d 927 (1989), and RCM 907

(b)(2)(c). Like the majority here, however, they con-

tinued with the following utterance:

Although we dispose of this case on waiver

grounds, it is clear we would find no basis for relief

9a

here if the double jeopardy objection had been made

by appellant at the second trial [relying on Oregon v.

Kennedy, 456 U.S. 667, 675-76, 102 S.Ct. 2083,

2089-90, 72 L.Ed.2d 416 (1982)].

Unpub. op. at 2.

19. I would approach this case from the opposite di-

rection and hold that the accused was not tried twice

for the same offense. Oregon v. Kennedy, 456 USS. at

675-76, 102 S.Ct. at 2089-90 417; United States v.

DiAngelo, 31 MJ 135 (CMA 1990). Appellant has

not met her burden to show that the prosecutor goaded

her into her mistrial motion.

20. Because there was no error, there is nothing to

waive. Because there is no error, we do not have to test

the error for harmlessness. Because there is no error,

we do not have ot consider whether the accused had ef-

fective assistance of counsel at her courtmartial rather

than consider whether a competent attorney would have

raised the double-jeopardy question. Lastly, because there

is no error, we do not have to consider whether United

States v. Broce, supra, applies to a military accused un-

der Article 44 or whether Article 45, UCMJ, 10 USC

§ 845, requires us to provide the military member an

expanded right that must be protected under due process

considerations. See Menna v. New York, 423 USS. 61,

96 S.Ct. 241, 46 L.Ed.2d 195 (1975), and Blackledge

y. Perry, 417 U.S. 21, 94 S.Ct. 2089, 40 L.Ed.2d 628

(1974).

Except for these observations, I concur. There was

no double-jeopardy violation in appellant’s case.

10a

APPENDIX B

UNITED STATES AIR FORCE

COURT OF MILITARY REVIEW

ACM 29663 (f rev)

UNITED STATES

Vv.

Staff Sergeant Joyce _R. COLLINS, FR247-41-3323

UNITED STATES AIR FORCE

31 August 1993

Sentence adjudged 8 October 1991 by GCM

convened at Nellis Air Force Base, Nevada.

Military Judge: H. Martin Jayne.

Approved sentence: Bad-conduct discharge, con-

finement for 60 days, forfeiture of all pay and

allowances, and reduction to E-1.

Before

DIXON, GRUNICK, and HEIMBURG

Appellate Military Judges

lla

UPON FURTHER REVIEW

PER CURIAM:

We are reviewing this case for the second time. Our

first review resulted in affirmance of appellant’s conviction

originally submitted to us on its merits. Appellant’s pe-

tition for grant of review was denied by the Court of Mili-

tary Appeals on 15 October 1992. Following denial of

review, appellant requested reconsideration and submitted

documents to the Court of Military Appeals. They

granted appellant’s request, set aside our prior affirmance

and remanded this case to us for further review.

During appellant’s first trial the military judge granted

a defense motion for a mistrial. At her second trial and

pursuant to her unconditional pleas of guilty, appellant

was convicted of two specifications of making a false

claim, in violation of Article 132, UCMJ. The approved

sentence includes a bad-conduct discharge, 60 days con-

finement, total forfeitures, and reduction to E-1. Among

the six errors submitted to us, appellant asserts her second

trial was barred by double jeopardy and a Dubay hearing

should be ordered to determine whether prosecutorial mis-

conduct necessitated a mistrial. Deciding all issues ad-

versely to appellant, we affirm the findings and sentence.

At the first trial the military judge granted a defense

motion for a mistrial, finding the late production of evi-

dence and the conduct of a judge advocate in providing

out-of-court assistance to the trial counsel cast substan-

tial doubt on the fairness of the proceedings. Before

granting the motion, the military judge extensively ques-

tioned all trial participants and heard testimony from the

offending judge advocate. A continuance was considered

as an alternative to the mistrial but was discounted by

the military judge as an inappropriate option.

Appellant failed to raise a double jeopardy objection

during her second court-martial. We hold former jeop-

ardy is waived if not raised before final adjournment of

the court. United States v. Broce, 488 U.S. 563 (1989);

R.C.M. 907(b)(2)(C).

12a

Although we dispose of this case on waiver grounds,

it is clear we would find no basis for relief here even if

the double jeopardy objection had been made by appel-

lant at the second trial. A second trial is barred when

defense requests a mistrial prior to findings only when

appellant can establish the government’s conduct at the

first trial was of a nature designed to intentionally bring

about the mistrial. R.C.M. 915(c)(2). After carefully

reviewing the record of trial, we are convinced there was

no governmental misconduct intending to “goad” appel-

lant into moving for a mistrial. Oregon v. Kennedy, 456

U.S. 667, 675-676 (1982). The mistrial motion was fully

litigated at appellant’s first trial. The ill-advised trial

preparation was fully explored and we are convinced the

intent of the activity was to perfect the government’s case

rather than provoke a mistrial. Article 66(c), UCMJ.

We have examined the four remaining issues submitted

pursuant to United States v. Grostefon, 12 M.J. 431

(C.M.A. 1982), and find appellant’s pleas of guilt were

provident, the court-martial had jurisdiction to try her, the

issues concerning improperly issued subpoenas and the ad-

missibility of her statements to investigators were waived

by her guilty pleas. United States v. Care, 18 U.S.C.M.A.

535, 40 C.M.R. 247 (1969); Article 2(a)(1), UCMJ

905(b)(3) and 905(e); Mil. R. Evid. 103(a)(1).

The findings and sentence are correct in law and fact,

the sentence is appropriate, and no error prejudicial to

the substantial rights of the appellant was committed.

Accordingly, the findings of guilty and the sentence are

AFFIRMED.

OFFICIAL

“ORIGINAL SIGNED By”

LAURA L. GREEN

Clerk of Court

Air Force Court of Military Review

Wl oU. S. GOVERNMENT PRINTING orrice; 1998 395321 24019