# Petition for Writ of Certiorari — Collins v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1903%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1995 - **Citation:** 516 U.S. 818 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1903%3A1. Public record. Not legal advice.