Petition for Writ of Certiorari — Washington v. United States

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Bas Sipreme Cosrt, US.

= FILED

wo, 9% 861 NOV 24 1997

OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

GARY A. WASHINGTON, PETITIONER

UNITED STATES OF AMERICA, RESPONDENT

On Petition For a Writ of Certiorari to the United States

Court of Appeals for the Armed Forces

PETITION FOR WRIT OF CERTIORARI

Carol L. Hubbard

Major, United States Air Force

Appellate Defense Counsel

Counsel of Record

Douglas H. Kohrt

Colonel, United States Air Force

Chief, Appellate Defense Division

Counsel for Petitioner

Air Force Legal Services Agency

Appellate Defense Division

112 Luke Avenue, Suite 343

Bolling AFB, DC 20332-8000

(202) 767-1562

November 1997 \(

QUESTION PRESENTED

Whether the United States Court of Appeals for the

Armed Forces erred when it upheld the military judge’s denial

of the petitioner’s request for investigative support even

though the unique nature of conducting depositions of foreign

nationals in the United Arab Emirates gave justification for

the United States to use a deposition officer who initially

investigated the allegations against the petitioner.

3D Niceatagey

TABLE OF CONTENTS

APPENDIX A

(Opinion of the United States Court of Appeals

or Sue ures Femoes)........: tk k k:

APPENDIX B

(Opinion of the United States Air Force

Court of Criminal Appeals)..................

APPENDIX C

(Relevant Extract of the Testimony of

en Ne ys,

TABLE OF AUTHORITIES

Page

Federal Cases:

Ake v. Oklahoma, 470 U.S. 68 (1985) ............. 15

Edwards v. Arizona, 451 U.S. 477 (1981) ........... 4

Moore v. Kemp, 809 F.2d 702, cert denied,

REE UI SCL 650 beh beeches bees ets 15

Weiss v. United States, 510 U.S. 163 (1994) ........ 25

Military Cases:

United States v. Garries, 22 M.J. 288

(C.M.A. 1986), cert denied, 479 U.S. 985

CFs ose res Re a a 14, 15

United States v. Gonzalez, 39 M.J. 459

(C.M.A. 1994), cert denied, 513 U.S. 965 (1994) ....15

Half-Acre v. Chambers, 5 M.J. 1099

Gees BPE aah bra heeds o 5 be bc ee ee eke 15

United States v. Mustafu, 22 M.J. 165

(C.M.A. 1986), cert denied, 479 U.S. 953 (1986) ... .14

United States v. Robinson, 39 M.J. 88

(C.M.A. 1994) ...... See ee Hime pirate at NE ets 15

United States v. Tornowski, 29 M.J. 578

(AFCMR 1989), rev. denied, 30 M.J. 214

Eas PE os os a ee ae oe 19

Manual for Courts-Martial, United States, 1984 (1995 ed.)

Rules for Courts-Martial (R.C.M.) 702(f) ....... 20, 21

Rules for Courts-Martial (R.C.M.) 703(d) .......... 15

Article 49c, Uniform Code of Military Justice

CA se ek is yc a A ee er ke ee 20

Federal Statutes:

Oe ee, OS oo ob ho oe oko en oe ie

ee ee a ie ke Per ees 15

Be Aa as Oe ie ha 8 oo eh oe Ph a ee |

Miscellaneous:

PU es EE a i kc oS os he wh

PM SOP o'r vo 64 6606 die eco Ea ee

The petitioner, Staff Sergeant Gary A. Washington,

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 his case on 26 August 1997,

OPINIONS BELOW

The order and judgment of the United States Court of

Appeals for the Armed Forces, reported at United States v.

Washington, 46 M.J. 477 (1997), is located at Appendix A.

The opinion of the United States Air Force Court of Criminal

Appeals, reported at United States v. Washington, 42 M.J. 547

(AF Ct. Crim App 1995) is located at Appendix B.

JURISDICTION

The judgment of the United States Court of Appeals for

the Armed Forces was entered on 26 August 1997. The

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

§ 1259(3) (West Supp. 1996) and 10 U.S.C. 867(a)(3) (West

Supp. 1996).

CONSTITUTIONAL PROVISION INVOLVED

The Due Process Clause of the Fifth Amendment to the

Constitution of the United States provides, in relevant part:

“No person shall . . . be deprived of life, liberty, or

property, without due process law...”

STATEMENT OF THE CASE

Petitioner was tried on 13—17, 20-24, & 26-28 July 1992

at Shaw AFB, South Carolina by a General Court-Martial. He

was sentenced to a bad conduct discharge, reduction to airman

basic (E—1), 10 years confinement, forfeitures of $250 pay per

month for 10 years, and a $70,000.00 fine. In its 21 April

1995 decision of the case, the Air Force Court of Criminal

Appeals determined that petitioner had been subjected to

illegal pretrial punishment and ordered that he be given a total

of 266 days of pretrial punishment credit.

On 13 March 1996, the United States Court of Appeals

for the Armed Forces granted review of the decision of the Air

Force Court of Criminal Appeals pursuant to 10 U.S.C.

867(a)(3). The Court granted review of an additional issue on

8 May 1996. On 26 August 1997, the Court of Appeals for

the Armed Forces affirmed the lower court’s decision. The

court held that no reversible error occurred in this case,

concluding that the military judge’s decision to deny

government-funded investigative assistance to the defense

was not an abuse of discretion. The court further ruled that

the petitioner’s pre-trial statements were given voluntarily and

that any legal error in appointing the deposition officer was

harmless. United States v. Washington, 46 M.J. 477 (1997).

In August of 1990, various support elements of the 363d

Fighter Wing (FW) at Shaw AFB, S.C. deployed to the United

Arab Emirates (U.A.E.) in support of Operation Desert Storm.

See Record 342. Among those deploying were Major Robert

Russell, Office of Special Investigations (OSI) Special Agent

(SA) John Pecko, petitioner, and Colonel Steven Rust. While

serving as the 363d FW Deputy Staff Judge Advocate at Shaw

AFB, upon his deployment, Major Russell assumed the

position of Staff Judge Advocate for the 363d provisional, i.e.

“deployed,” wing. Record 340-41. Petitioner, a member of

the 363d Contracting Squadron, deployed as a contingency

contracting officer. Record 25. To assist him in the

performance of his duties, he was assigned a local U.A.E.

resident, Mr. Omar Hassan, to serve as his driver and

interpreter. Record 1367. In late December 1990, authorities

received word that petitioner was allegedly involved in the

practice of receiving unlawful “kickbacks” from local area

vendors. See Record 494, 1368. Some two months later, on 6

March 1991, at around 1800 hours, petitioner was

apprehended by Special Agent Pecko outside Lina

Electronics, the business of a UAE merchant. During the

apprehension, petitioner was physically grabbed and then

frisked. Record 29. He was then escorted to a four-wheel

drive vehicle, forced inside it, and told to stay put. Record 29.

There were four agents involved in petitioner’s apprehension,

and they made it clear that petitioner was not free to leave.

Record 92, 585-86. Upon arriving at the offices of the

AFOSI, petitioner was read his Article 31 rights. Record 32.

Petitioner repeatedly denied any wrongdoing, even after being

shown a tape which purportedly showed him receiving the

marked money from Nabih Taraby. Record 436, 587.

Subsequent to the showing of the tape, petitioner’s

commander, Colonel Rust, who had also seen the tape, angrily

confronted petitioner, telling him that he was nothing but a

“little black jew” and that he wanted to spit in the petitioner’s

face. Record 36, 441, 510, 2015, 2018.' After rendering these

comments, Colonel Rust gave petitioner a written order barring

him from contacting any individuals in the cities of Abu Dhabi

and Dubai with whom he’d had any dealings or contact with in

his capacity as a contracting agent; furthermore, the order

prohibited petitioner from discussing any of the allegations

against him with “any other active duty personnel who were or

are your co-workers within the Contracting or Accounting

office.” Attach 4 to App. Ex. XIV. At the time Colonel Rust

gave this order to petitioner, he had his legal advisor, Major

‘Colonel Rust testified at trial that he did not call the petitioner a black

jew, but rather informed him that he was known by the merchants down-

town as a “black jew” [and, according to the OSI he was also referred to

as a “little monkey”, Record 1410]. The Colonel did admit, however that

upon first confronting the petitioner after the apprehension that he told

him: “Gary, if I could, I'd spit in your eye.” Record 559.

Russell, present. Record 566. The following morning,

petitioner was returned to OSI’s interview room, where their

interrogation of him resumed at roughly 0900 hours and

continued on for the next six hours. Record 42-4, 459.

Instead of terminating the interview immediately, as

required by Edwards v. Arizona, 451 U.S. 477 (1981), SA

Pecko told petitioner that if he wanted to, he could talk to

Colonel Rust. Record 46. As SA Pecko described his

situation, “. . . at that point I had tried to interview him and

get his admissions to receiving money and it was apparently

not going anywhere, he was not going to admit to anything

else and say anything else...” Record 511. Feeling that he

was without recourse to talk with anyone else (Record 47)

petitioner agreed to talk to Colonel Rust. Record 46, 47. The

visit was coordinated with Major Russell, the Staff Judge

Advocate, see Record 511.

On 22 March 1991, when petitioner did return to Shaw

AFB, he was advised that he’d been transferred from the

contracting office to the squadron orderly room. Record 56.

Too, to parallel the order petitioner had been given by

Colonel Rust not to speak with any of his contracting

colleagues about the allegations against him, personnel

working in the Shaw AFB contracting office were ordered

not to talk to or contact petitioner. Record 290, 300-301. On

10 July 1991 petitioner was issued a letter advising him of

his reassignment to the Correctional Custody facility and

giving him a “legal order” “not to enter the Base Contracting

facility or make contact in any way (written or verbal), with

personnel assigned to that office.” App. Ex. II, Attach 3. By

then, Colonel Rust, Major Russell and SA Pecko had, like

petitioner, all returned to Shaw AFB. Record 424, 554, App.

Ex. XXX. Major Russell and SA Pecko resumed their prior

duties as the 363d FW Deputy SJA and OSI detachment

commander, respectively.

When reviewing petitioner’s correctional custody duties,

the Air Force Court below found that they constituted illegal

pretrial punishment in that they required petitioner to

personally perform *. . . menial “weeds and seeds” tasks, such

as landscaping, planting, and weeding. He also hauled trash,

painted, and cleaned duck droppings from rocks at the base

duck pond.” 42 M.J. at 555. Unable to ascertain any

legitimate nonpunitive purpose for petitioner’s assignment to

the correctional custody facility, the Air Force Court held

petitioner to have suffered 266 days of illegal pretrial

punish rent (from his assignment there on 10 July 1991 until

1 April 1992). United States v. Washington, 42 M.J. 547, 563

(AF Ct. Crim App 1995).

On 25 May 1992 charges were preferred against

petitioner; the Article 32 hearing was scheduled for 27 March

1992. In conjunction with a request for a delay of the

proceedings and appointment of a defense interpreter, App.

Ex. II, Attach 9, defense counsel submitted, on 23 March

1992, a request that the convening authority appoint an OSI

investigator to assist the defense. App. Ex. III, Attach 17.

Counsel went on to note that:

The barriers in this case include vastly different

cultures and languages. Also the fact that the

Government’s investigation included agencies other

than AFOSI, such as the UAE State Police. The

Defense feels it is imperative to have an investigator

trained in uncovering witnesses, interviewing

witnesses about prior statements (sic). An

investigator with contracting knowledge and with

experience with Arabic cultures would be

invaluable to the Defense. . . . The situs of these

charges, the UAE, is somewhat remote and has not

(sic) other ADA/ADC support. There is, in fact,

very little military support of any kind available to

the Defense. Because of the amount of travel

necessary, coupled with current case load, the

detailed Defense Counsel is unable to conduct a

proper investigation without this support. Very few

cases would be as needy for this type of support as

is this case. The conspiracies and schemes alleged

by the government are complex and difficult to

understand without some expertise. The witnesses

are mostly foreign nationals and under no obligation

to cooperate .. .

App Ex III, Atch 17.

On | April 1992, the convening authority responded with

a letter rescinding the no-contact orders issued to petitioner

the previous year (on 6 March 1991 and 10 July 1991). App.

Ex. III, Attach 6. He advised defense counsel that he’d

instructed the Investigating Officer to delay submission of his

Article 32 report until 3 April 1992 in order that the defense

might have additional time for submission of matters. Jd.”

Additionally (in this same letter), the convening authority

denied the defense request for an interpreter on the grounds

that all relevant statements were in English, and the

individuals who made the statements were able to speak

English. /d. Yet, this was untrue as the actual statements from

the witnesses were written in Arabic. Record 381. SA Pecko

indicated that because the witnesses did not know how to

write in the English language, he would, after having

completed his interview of them, write up a statement for

On his own, the Investigating Officer apprised the defense that he would

delay submission of his report until 11 April 1992 to give them a little

more time than that provided by the convening authority. The defense

made no submissions during this “extension,” later explaining that one

week’s additional time was simply incapable of making up for eighteen

months’ denial of the Accused’s access to witnesses and evidence. Record

634.

them based upon their prior dialogue. Record 602. He then

sent the English statement to a translator and had it translated

into Arabic. Jd. The witness was then asked to review the

resulting Arabic statement, swear to and sign it. /d.° Yet, the

government investigators had great difficulty communicating

with the local nationals in the U.A.E. A non-exhaustive

selection of such difficulties are to be found at Record 1691,

1696, 1702, 1704, 1707, 1716-17, 1720 (Shaheen); Record

1775, 1777-78, 1783, 1790, 1794, 1796, 1807, 1818, 1820,

1828-29 (Nehnaha); Record 1952, 1959, 1971-72, 1984,

1936, 1992, 1995, 1999, 2005 (Hassan).

Lt Colonel Winborn, a fifteen-year veteran of the Judge

Advocate General’s division, Record 356, testified on cross-

examination as to the basis for his recommendation to the

convening authority that the defense request for investigative

assistance be denied. See Appendix C. With regard to the

Government and the generation of its case, the prosecution

pointed out (in arguing against a speedy trial motion) that they

had numerous witnesses and that the case required extensive

investigation to perfect the evidence. Record 729. Over the

course of their eighteen-month investigation, the Government

utilized a minimum of ten OSI investigators and four other

expert assistants: (1) SA Pecko, Record 423; (2) SA Bland,

Record 576; (3) SA Lukens, Record 539; (4) SA Barry,

Record 1112; (5) SA MacLear, Record 1116, 1137; (6) SA

Krueser, Record 810; (7) SA Messick; (8) SA Shannon; (9)

SA Meduna; (10) SA Price; (11) handwriting analyst Sperry,

Record 1848; (12) an unidentified fingerprint analyst, Record

1846; (13) U.A.E. security force officer Capt Solomon as an

interpreter, App. Ex. XXVIII, I.0.Ex. 34 at 4; (14) and

embassy translator George Wilson, id. at 1.0. Ex. 26.

>There was one exception: “Mahmond” wrote his statement in Arabic,

and this was then translated into English. Record 601-02.

At trial, the defense not only moved to suppress

petitioner’s statement above, App. Ex. VII, but also argued

that petitioner’s due process rights had been violated by virtue

of the convening authority’s denial of an interpreter and

investigative assistant. App. Ex. II and III. Implicitly

referring to the passage of time and international

complexities, counsel opined that with the loss of witnesses

and potential evidence, the only appropriate recourse was to

dismiss the charges. The military judge denied both motions,

Record 792-93, finding a lack of any unlawful inducement,

coercion, or unlawful influence exerted upon petitioner with

regard to his confession, App. Ex. LVIII, and holding, with

regard to the request for investigative assistance that—

“The key to a successful demonstration of necessity

for an investigator is a plausible showing that the

investigator could obtain information that the

defense and its staff would not be able to obtain on

its own. I find that the defense has failed to make

such a showing. The government made all its

witnesses available to the defense when the parties

were in the UAE for the videotape depositions. Any

background checks which needed to be done could

have been done by the defense team when they

were in the UAE. Any documents which are

pertinent to the case were supplied by the

government. Finally, the defense appears to be on a

“fishing expedition” as to defense witnesses who

“may exist who can refute the charge” or “may be

helpful.” In this respect the defense has failed to

show any more than a mere possibility of

assistance.”

App. Ex. LIX, Subsection C.

In April 1992, Major Robert Russell, Deputy Staff Judge

Advocate for the 363d Fighter Wing, learned that his boss, Lt

Colonel Winborn, intended to recommend that he (Major

Russell) serve as the deposition officer for the deposition

hearing scheduled to commence with regard to petitioner’s

case on 17 May 1992 in the U.A.E. (United Arab Emirates).

App. Ex. XXX. On 24 April 1992, the defense, having also

learned of this, sent a letter to Lt Colonel Winborn objecting

to the proposed appointment of Major Russell as the

deposition officer. Atch 1 to App. Ex. III. The defense

lodged its objection against Major Russell because of his prior

service as the Staff Judge Advocate for the deployed

provisional wing and his advice and consultation while in that

capacity with SA Pecko, the lead investigator on petitioner’s

case. Id. The defense noted that, “Since these depositions are

to be conducted overseas, now seemed the more appropriate

time to raise this issue. I trust that you will forward this

_ objection to the appropriate authority when the appointment is

made. ” Jd. On 12 May 1992, Lt Colonel Winborn sent to the

military judge a request for authorization of the depositions.

Record 398. That same day Major Russell executed an

affidavit verifying his prior involvement in petitioner’s case.

See page 10 of the 18 May 1992 deposition session, Vol I of

the three deposition sessions. It was Major Russell’s

understanding that this affidavit was forwarded, along with Lt

Colonel Winborn’s nomination of him as the deposition

officer, to the Convening Authority. /d. at 12. (Whether the

defense objection of 24 April was also forwarded is unknown

from the record.) The following day, on 13 May 1992, the

military judge authorized Lt Col Winborn’s request for

depositions, Record 399, and that same day (13 May 1992),

the Convening Authority appointed Major Russell as the

deposition officer. App. Ex. XXIII.

At the start of the deposition hearing, the defense

renewed their objection to Major Russell serving as the

deposition officer. Page 10 of the 18 May 1992 deposition

session, Vol I of the three deposition volumes. Stating that

“your affidavit indicates that you obviously had a very active

part in the—the pre-prosecution of this case,” defense counsel

asked that Major Russell be sworn so that defense counsel

could ask him questions and develop a record of his prior

involvement in the case: “I’m very concerned—I don’t think

the judge is going to be able to rule on our objection to you

sitting unless I can get this as a matter of record, and I would

respectfully ask that you be sworn as a witness at this time

and me be allowed to ask you questions.” /d. at 11.

Replying, inter alia, that he would be “available at any time

in the future [for the trial itself], Major Russell determined

that “as far as me testifying at this time, I do not think that

appropriate and will not do so.” Jd.

Petitioner’s trial commenced at Shaw AFB on 13 July of

1992. Before the military judge, the defense once again

objected to Major Russell having served as the deposition

officer. App. Ex. III at page 7. Just several weeks prior to the

Start of petitioner’s trial, Major Russell left Shaw AFB (at the

end of June—Record 340) and did not personally submit to

questions at petitioner’s trial; instead, his “testimony” was

presented via a stipulation of expected testimony. App. Ex.

XXX.

Pursuant to the testimony of Lt Colonel Winborn, the

military judge ultimately premised her ruling upon the

following facts as found by her:

“The OSI in the U.A.E. kept Maj Russell advised of

their progress in the Washington case but most of

their legal advice came from the main base office at

Shaw. After his return to Shaw AFB, Major Russell

was the Deputy Staff Judge Advocate but

functioned mainly in a civil law capacity. Captain

Joseph was the Chief of Adverse Actions and Major

Russell had little to do with the Washington case.”

App. Ex. LX. Lt Colonel Winborn indicated that during the

period of Major Russell’s deployment, he (Lt Colonel

Winborn) and Major Russell had weekly consultations,

Record 341-42, and Major Russell decided what from those

consultations should be “passed on” to the OSI. Record 410.

Additionally, Major Russell’s stipulation of expected

testimony provided other facts not referenced by the military

judge: While serving as the Staff Judge Advocate for the

deployed wing, Major Russell reviewed written witness

statements, as well as OSI videotapes, and audiotapes

pertaining to petitioner’s case. App. Ex. XXX, para 1. He

“advised SA Pecko and Colonel Rust as to the legal aspects of

the investigation, and the potential charges that could be

levied against the accused.” App. Ex. XXX, para 1. (In his

own trial testimony, Colonel Rust referred to Major Russell as

“my legal advisor, ” Record 566—7, and testified that he had

his legal advisor (Major Russell) present with him when he

issued petitioner the no-contact order following petitioner’s

apprehension. Record 566. Indeed, it was upon Major

Russell’s recommendation that he’d given petitioner the order.

Record 568.) Upon returning to Shaw AFB and there

resuming his position of Deputy Staff Judge Advocate for Lt

Colonel Winborn, Major Russell “reviewed the charges for

administrative correctness and attended the January 1992

meeting with defense attorneys.” App. Ex. XXX, para 1.

The purpose of this latter meeting was for the Government to

present its case to the defense in an effort to persuade the

defense of its strength, apparently in the interest of fostering

pre-trial plea negotiations. See Record 531-32.

At one point, the military judge was moved to ask trial

counsel, “Don’t you think that the appearance [of appointing

Major Russell as the deposition officer] is kind of bad

though?” Record 732. To this trial counsel replied—

“In an ideal world, yes, your Honor, it would have

been perhaps better not to have appointed the

individual that had been serving as the staff judge

advocate at the deployed site, however, those—or

that deployed position gave him some of the unique

qualifications that were felt necessary to facilitate

the obtaining of assistance in a foreign country for

the purpose of conducting a fair and orderly

deposition of the witnesses.”

R, 732.

Earlier, Lt Colonel Winborn testified that he nominated

Major Russell as the deposition officer because (1) Major

Russell was a major, and in the Middle East -aajors were

considered to be very important persons, and (2) given Major

Russell’s prior deployment to the U.A.E., he had “experience”

there. Record 412. Lt Colonel Winborn “wanted to make

sure that we had a deposing officer who—who knew the

country and had the rank where he could go forward to either

the Embassy or the host country and try to get cooperation if

we had problems with witnesses.” Record 412.

“At the depositions, some of the witnesses had trouble

understanding the English language; however, the DO [Major

Russell] did not feel as though a translator was necessary.”

App. Ex. XXX at para 10. Before any of the witnesses had

been deposed, the defense objected to the deposition hearings

because the Convening Authority had earlier denied their

request for appointment of a defense interpreter. Page 5 of 18

May 1992 deposition session, Vol I of the three deposition

volumes. The defense noted that the Convening Authority had

denied the defense request because he’d been told that all the

witnesses spoke English, and their written statements had

been provided in (translated to) English. Id. This information

had come from Lt Col Winborn, who in turn had received it

from Major Russell (and SA Pecko). Record 379.

Defense counsel further noted that —

“Upon arrival over here, it has become obvious that

an interpreter would be of a great assistance. It’s

now my understanding that the government is

wanting to use an interpreter during the depositions

and, in fact, most of the witnesses insist or have

themselves requested an interpreter being here for

their — for their examination.”

Page 5, 18 May 1992 deposition session, Vol I of three

deposition volumes. As Mr. Mahmoud Nehnaha later

answered a query while being deposed:

A: This is not my language—this is not my main

language, please.

Q: Do you understand? Okay, let me see...

A: If it is my main language, I can understand.

R. 1838. Counsel’s subsequent effort to rephrase his

query to Mr. Nehnaha’s level of understanding proved

unsuccessful as Mr. Nehnaha relayed that his mind was

“closed” to the question. R. 1839. For a major breach in

communicative understanding see the testimony, or rather the

attempt to elicit it, from Mr. Shaheen at Record 1708-1715

(reproduced at the Appendix). Other witness difficulties are to

be found at Record 1691, 1696, 1702, 1704, 1707, 1716-17,

1720 (Shaheen); Record 1775, 1777-78, 1783, 1790, 1794,

1796, 1807, 1818, 1820, 1828-29 (Nehnaha); Record 1952,

1959, 1971-72, 1984, 1936, 1992, 1995, 1999, 2005 (Hassan).

When defense counsel interrupted the deposition

proceedings to request a translator due to difficulties one of

the witnesses was experiencing in understanding his

questions, Major Russell closed discussion of the matter by

stating that, “I am not going to bring in a translator at this

time. I may later.” Page 27, 20 May 92 deposition of Mr.

Shaheen, Vol II of the three deposition volumes. After noting

that defense counsel’s objection to proceeding without a

translator was a continuing one, Major Russell did not, at any

time during the depositions, bring one in.

In arguing against the defense challenge to Major

Russell’s appointment as the deposition officer, trial counsel

argued that Major Russell had not been in a position to

influence the proceeding itself; that his duties were ministerial

and consisted primarily of administering the deponents an

oath. Record 733. Consistent with the arguments of trial

counsel, the military judge found that:

“e

. the only Manual [for Courts-Martial]

requirements to be a deposition officer are that the

person be an officer who is authorized to administer

oaths. There is no requirement that a deposition

officer act in a judicial capacity in the same sense as

a military judge or Article 32 Investigating Officer.

There is no requirement the deposition officer have

no prior involvement in the case. However, it

would be preferable if the deposition officer were

impartial and unbiased.”

App. Ex. LX. Based upon this view of the law and the factual

basis previously referenced, the military judge held that under

the circumstances of the case and given the administrative

nature of a deposition officer’s duties, Major Russell’s

appointment was appropriate and he was not subject to

disqualification.

REASON FOR GRANTING THE PETITION

As a matter of military due process, servicemembers are

entitled to investigative or other expert assistance when

necessary in order to prepare an adequate defense. United

States v. Mustafa, 22 M.J. 165 (C.M.A. 1986), cert denied,

479 U.S. 953 (1986); United States v. Garries, 22 M.J. 288,

290 (C.M.A. 1986), cert denied, 479 U.S. 985 (1986). Cf.

Ake v. Oklahoma, 470 U.S. 68 (1985)(Accused must make a

threshold demonstration of necessity when seeking

employment of an expert). Upon an appropriate showing, a

military accused has the resources of the Government at his

disposal. See Art. 46, U.C.M.J., 10 U.S.C. 846; R.C.M.

703(d), Manual for Courts-Martial, United States 1984. The

showing which an accused is required to make is one of

“necessity,” Garries, 22 M.J. at 288: “a reasonable

probability both that an expert would be of assistance to the

defense and that denial of expert assistance would-result in a

fundamentally unfair trial.” United States v. Robinson, 39

M.J. 88 (C.M.A. 1994), quoting Moore v. Kemp, 809 F.2d

702, 712, cert denied, 481 U.S. 1054 (1987).

Where an accused and his counsel are unable to meet the

“necessity” threshold due to practical difficulties in

developing the defense theory of the case, the defense should

be provided the tools with which to overcome those

difficulties, enabling it to at least potentially gather evidence

for laying a foundation for the necessity of independent

investigative assistance. See United States v. Gonzalez, 39

M.s. 459 (C.M.A. 1994), cert denied, 513 U.S. 965

(1994)(defense provided with interpreter who could have

been used in the production of evidence for establishing the

need for further investigative support); Half-Acre v.

Chambers, 5 M.J. 1099 (C.M.A. 1976)(government ordered

to provide accused and defense counsel transportation to and

from Karachi, Pakistan to conduct investigation).

In the instant case the defense established “necessity’s”

first prong (reasonable probability that an expert would be of

assistance to the defense) by explaining “why an investigator

was needed, what the investigator would do, and why

petitioner’s [counsel] could not perform any additional

investigative work needed.” Garries at 291. The defense

explained that an investigator was needed due to the

complex nature of the alleged offenses, the situs of the

offenses being overseas, the majority of Government

witnesses being overseas, and cultural and language barriers.

Evidence of the cultural and linguistic barriers loom

everywhere in petitioner’s case. Even petitioner’s initial

contact with Omar Hassan was through the Government’s

assignment of Omar as petitioner’s paid driver and

interpreter. It seems somehow ironic that when it came to

conducting business on behalf of the Government, the

Government thought petitioner required a driver and

interpreter to find his way around the U.A.E. and intelligently

converse with those same vendors the Government later said

petitioner did not require any assistance in dealing with when

attempting to defend himself against the Government. With

regard to what the requested expert was required for, defense

counsel clearly set forth several tasks, to include interviewing

government witnesses and conducting background checks on

these selfsame witnesses, locating and interviewing potential

defense witnesses, and tracing documents relating to contracts

originating in the U.A.E. Before the military judge, petitioner

expressly identified witnesses that he’d tried, but failed to

locate; he also stated their relevance to his case. Those who

could have testified against Omar Hassan’s credibility* were

4One major discrepancy between Omar’s testimony and that of the other

vendors was how Mr. Nehnaha came to pay off an alleged promissory note

of sorts to petitioner. Omar testified that he’d leaned Mr. Nehnaha the

funds necessary to pay off the indebtedness, and that Mr. Nehnaha himself

directly transferred these funds to petitioner. Record 1965. Mr. Nehnaha,

on the other hand, testified that Omar told him he’d paid off his debt for

him—that Omar had transferred payment to petitioner and that he, Mr.

Nehnaha, later reimbursed Omar for that payment. Pursuant to Mr.

Nehnaha’s version, it certainly could be that Omar never paid petitioner

anything, but merely represented that he had and then later pocketed the

“reimbursement” from Mr. Nehnaha. Of course, Omar’s version of events

does not allow for this.

of particular importance. While both petitioner and Omar had

conceded the taking of “kickbacks” from local vendors, they

each pointed the finger at the other as being the one who

ultimately received them. Credibility was everything, and it

was important not only to locate and interview those with

knowledge about Omar and his credibility, but also to conduct

background checks on the other vendors who testified against

petitioner. Equally important, especially in light of the

Government’s incomplete, illegible, and untranslated

documentary evidence against petitioner, was an opportunity

for the defense to track down and review any and all paper

trails relating to petitioner’s case. In this regard, the finding

of the military judge illustrates her gross misappreciation for

the issue she was being asked to address. For her finding that

“{a]ny documents which are pertinent to the case were

supplied by the government,” ignores completely the

possibility of a defense theory of the case differing from that

of the Government and dependent upon evidence other than

that obtained by the Government. Given the testimony of SA

Pecko that no effort was made to obtain the completed

originals of contracting documentation in issue, this finding

was erroneous in fact as well as perspective.

Truly, petitioner’s case was not an ordinary case; its

unique circumstances made it such a case that, in accordance

with the second prong of “necessity,” a denial of investigative

assistance rendered his trial a fundamentally unfair one.

Petitioner was denied the services of even a single

investigator for the brief period of just thirty days; the

Government, on the other hand, over a period of eighteen

months, employed a minimum of ten investigative agents

along with an interpreter, translator, handwriting and

fingerprint analysts to develop the Prosecution’s case against

him. At every phase of the proceedings, the prosecution had

the benefit of their Government investigator. While half-a-

dozen investigative agents on behalf of the Government

circumnavigated the globe in an effort to “enhance” the

Prosecution’s case, petitioner was denied even a single

investigator to build his defense. Hence, of the thirty-two

volumes comprising the record of trial in the instant case, the

defense case-in-chief comprises a mere twenty-some pages

and eight exhibits. See Record 2008-2029; Def. Ex. C-J.

To compound this serious error, the petitioner, Gary

Washington suffered personally by this denial of investigative

assistance since his trial defense counsel team were engaging

in an adulterous relationship while representing their client.

As found by the military judge during a post-trial Article 39a°

session, Mr. Hammond Beale and Captain C. D. Horn

engaged in an adulterous relationship during the period they

were representing the petitioner.© Not only did the petitioner

have to contend with the government using 10 investigative

agents over an 18-month period to perfect their case while

denying him the same access to investigative support to build

his own defense, the petitioner was further harmed by his own

defense counsel failing to devote their full attention to

vigorously investigate his own case. Who could the petitioner

turn to now? The government denied his request for

investigative support, the military judge upheld that denial,

and his own defense advocates were secretly engaging in an

adulterous affair behind the petitioner’s own back.

Petitioner contends that he fully and completely

complied with the conditions pre-requisite set forth in Garries

for investigative assistance, that his request for the assistance

of an investigator over a mere thirty-day period was more

>Article 39a, UCMJ. 10 U.S.C. 839.

®As a result of this adulterous relationship, Captain Horn received a Letter

of Reprimand from her commander, then Colonel Hawley. Captain Horn

shortly thereafter separated from the United States Air Force.

, |

than reasonable under the extraordinary circumstances of his

case, and that he made a proper showing of need. United

States v. Tornowski, 29 M.J. 578 (AFCMR 1989), rev. denied,

30 M.J. 214 (C.M.A. 1990). It is patently clear that under the

circumstances, petitioner was materially prejudiced by this

erroneous denial which left him without adequate means to

prepare for his Article 32 hearing, fully and completely cross-

examine the witnesses in or locate witnesses for the

deposition hearings, or develop a defense for his trial. Hence,

the military judge abused her discretion and committed

prejudicial error in concluding that “there is no reasonable

probability that the requested services will be of assistance or

that denial of the request will result in a fundamentally unfair

trial.” App. Ex. LIX. Such an abuse of discretion is further

highlighted by the reasoning underpinning the decision of the

court below in affirming the judge’s ruling.

The reasoning of the court below in finding no abuse of

discretion by the military judge displays a disturbing double

standard in analyzing the unique problems generated by

allegations of criminal misconduct arising in the Middle East.

The court below ruled that the petitioner failed to demonstrate

that an independent investigator was necessary to prepare a

defense. Yet, the court, in finding that the Government was

allowed to use Major Russell as the deposition officer despite

his prior service as the Staff Judge Advocate during

investigation of the underlying allegations, stressed the

depositions were taken in the U.A.E. during Operation Desert

Storm and involved foreign nationals. Further, the court

opined that Major Russell was detailed to his deposition

duties because of his particular experience and familiarity

with the U.A.E., obviously a foreign country.

Though not initially bound together during the trial

proceedings, the ruling of the court below as to the neutrality

of the deposition officer must be reviewed in light of its

decision regarding the denial of the defense-requested

independent investigator. The court below held that the

statutory language of Article 49c, Uniform Code of Military

Justice, that “[dJepositions may be taken before and

authenticated by any military or civil officer authorized by the

laws of the United States or by the laws of the place where the

deposition is taken to administer oaths”, was sufficiently

broad to incorporate the impartiality provisions of

Fed.R.Crim.P. 15(d) and Fed.R.Civ.P. 28(c). The court went

on to conclude generally that these minimum standards of

fairness apply to deposition officers in the military justice

system and that the military judge erred in not applying them

in the case sub judice. However, the court then refused to

invalidate the petitioner’s court-martial despite the judge’s

error, reasoning that although Major Russell had been

involved in an investigative capacity early on in the case, his

active participation had ceased prior to the depositions. In

support of its reasoning, the court noted the depositions took

place in the U.A.E. during Operation Desert Storm and

involved foreign nationals. The court opined that since Major

Russell was detailed to his duties because of his experience

and familiarity with this foreign country, the requirement for

personal disinterest may not have been controlling in

petitioner’s case. As a final justification for refusing to

provide relief, the court concluded that Major Russell’s duties

were primarily ministerial in nature and that petitioner was

“hard-pressed” to identify any particular conduct by Major

Russell which substantially impacted on the depositions or his

-—eourt-martial.

Though the United States Court of Appeals for the

Armed Forces correctly held the military judge erred in

failing to apply the impartiality provisions of the

Fed.R.Crim.P. 15(d) and Fed.R.Civ.P. 28(c), the court erred in

concluding the error was harmless. In addition to

administering oaths, Rules for Courts-Martial (R.C.M.) 702(f)

lists nine separate duties to be performed by a deposition

officer, including that he maintain order during the

depositions and protect the witnesses from annoyance,

embarrassment, or oppression; and that he report to the

convening authority any substantial irregularity in the

proceedings. R.C.M. 702(f)(3), and (9), respectively. The

military judge and the court below both missed the mark

when they focused upon the quantitative aspects of Major

Russell’s prior involvement in petitioner’s case. The more

important aspect was the qualitative one, i.e. the role which

Major Russell played. That role was as Government counsel

prosecuting petitioner. It was as counsel for the Government

that Major Russell advised both the OSI and Colonel Rust on

the legal aspects of the investigation against petitioner; he

advised them as to the charges that could be levied against

petitioner. As an attorney for the Government, he stood by

Colonel Rust’s side as his (Colonel Rust’s) legal advisor when

Colonel Rust, following Major Russell’s advice, issued

petitioner the no-contact order. As Government counsel, Major

Russell reviewed the actual charges against petitioner; and as a

Government attorney, he stood before petitioner and

petitioner’s counsel at the Jan ‘92 meeting designed to persuade

them that they should “cave in” to the Government’s case.

The United States Court of Appeals for the Armed

Forces held in its decision below that the minimum standards

of fairness contained within Fed.R.Civ.P. 28(c) apply to

deposition officers in the military justice system, and that the

military judge erred in applying them in this case. United

States v. Washington, 47 M.J. 477, 483 (1997). However,

contrary to the Court’s finding that the deposition officer’s

duties were primarily ministerial, petitioner believes the

duties of a deposition officer are more than ministerial. In

particular, the duties to protect witnesses from annoyance and

to report to the convening authority substantial irregularities

demand the exercise of neutral and detached discretion: when

has a witness reached the point of annoyance?; what

protective measures, if any, should be adopted to prevent such

annoyance?; what is an “irregularity,”; and when is it

“substantial?” Major Russell, still Government counsel at the

time of the depositions, had discretion over matters which, as

Government counsel, he should not have had. Indeed, if the

duties of the deposition officer were truly ministerial in

nature, why was the appointment of this one officer, Major

Russell, specifically demanded by the Government to conduct

the depositions against the petitioner.

The harm to the petitioner abounds throughout this case

and the judge’s error in countenancing Major Russell’s

appointment as the deposition officer must not be tolerated.

Major Russell’s first known act with regard to petitioner’s

case was to formulate and have executed the no-contact order

isolating petitioner and undermining his ability to prepare a

defense. Major Russell stood idly by as Colonel Rust angrily

told petitioner he’d like to spit in his face and called him a

Black Jew. The Major was also acting as the legal advisor to

the OSI when it continued its interrogation of the petitioner

despite his request for counsel (according to the petitioner’s

testimony at trial).’ Major Russell rendered advice on the

substantive content of the charges petitioner might face, and

ultimately was tasked with ensuring the perfection of such

charges. He actively engaged in efforts to trigger a defense

“surrender” and played a part in the Government’s failure to

ensure petitioner’s timely arrival for the depositions. In light

of these actions by which Major Russell oversaw not only the

impediment and discouragement of the defense, but also the

hurling of face-to-face insults and debilitating orders levied

personally against petitioner, it is simply incomprehensible

’The court below agreed with the trial court that the OSI investigators did

not improperly continue the interrogation as the trial court found the peti-

tioner had not expressly requested counsel.

that Major Russell’s impartiality was not reasonably subject to

question and did not harm the petitioner. From petitioner’s

perspective, the selection of Major Russell as the deposition

officer was a covert means of continuing the Government’s

efforts at an intolerable suppression of the defense. His

experience was important to his selection — his experience as

Government counsel seeking conviction on the charges he’d

himself perfected.

Petitioner further submits that more than just having

attached an appearance of impropriety to his case, Major

Russell’s service as the deposition officer substantially and

materially prejudiced him. Major Russell’s steadfast refusal

to provide defense counsel and the witnesses an interpreter

through which to conduct the proceedings severely disabled

the defense and violated petitioner’s due process rights by

rendering petitioner’s counsel unable to effectively cross-

examine the Government’s witnesses. Supposedly, Major

Russell had been selected as the deposition officer due to the

ability which his rank and prior experience would give him in

dealing with the witnesses and the oddities of a foreign land.

Yet, when it came time to put those special abilities to use by

obtaining an appropriate interpreter, he simply wouldn’t do it.

As such, his failure to do so undercut the defense’s ability to

attack the credibility of key prosecution witnesses.

Additionally, the military judge erred in determining

that, as a matter of law, the duties of a deposition officer are

entirely ministerial. Further, as the Court below found, the

military judge erred in implicitly holding, again as a matter of

law, that a deposition officer may in fact be partial or

biased—it’s merely “preferable” that they’re not. Applying

an erroneous understanding of the law to unsupported

conclusions of fact, the judge arrived at a prejudicially

erroneous decision in finding that Major Russell’s

appointment as the D.O. had not been inappropriate, nor was

he disqualified from serving as such. Truly in the instant case,

petitioner did his part to prevent this miscarriage of justice

from occurring. Defense counsel lodged their first objection

against Major Russell weeks before he’d even been appointed

as the D.O. They renewed their objection at the start of the

deposition hearings, before the taking of any substantive

testimony. Finally, they timely raised their objection at

petitioner’s trial, before the deponents’ testimony was ever

introduced against him. Yet, the court below found no harm

even though they reasoned that the government needed a

deposition officer who was experienced and familiar with the

U.A.E. all the while holding that the petitioner did not require

an independent investigator to help prepare his defense.

Surely, due process in today’s military demands a more even-

handed administration of justice for those who serve to defend

our liberties. As ably demonstrated by petitioner’s repeated

appeals for assistance, the need for an independent

investigator was fully justified by the unique circumstances of

this case. For the United States Court of Appeals to support

its ruling upholding the appointment of Major Russell because

of unique circumstances present in the U.A.E. and then to

refuse to disturb the denial of petitionér’s request for

assistance presents an intolerable affront to military due

process.

CONCLUSION

The United States Court of Appeals for the Armed

Forces erred in upholding the military judge’s denial of the

petitioner’s request for investigative support even though the

unique nature of conducting depositions of foreign nationals

in the United Arab Emirates gave justification for the United

States to use a deposition officer who initially investigated the

allegations against the petitioner. Fundamental notions of due

process require fair treatment for those who serve in this

nation’s armed forces. Granting the petition for a writ of

certiorari in the instant case would again demonstrate that

“men and women in the Armed Forces do not leave

constitutional safeguards and judicial protection behind when

they enter military service”. Weiss v. United States, 510 U.S.

163, 194 (1994) (Ginsburg, J., concurring).

The petition for a writ of certiorari should be granted.

Respectfully submitted,

CAROL L. HUBBARD

Major, United States Air Force

Appellate Defense Counsel

Counsel of Record

DOUGLAS H. KOHRT

Colonel, United States Air Force

Chief, Appellate Defense Division

Counsel for Petitioner

Appellate Defense Division

112 Luke Avenue, Suite 343

Bolling AFB, DC 20332-8000

(202) 767-1562

November 1997

APPENDICES

APPENDIX A

UNITED STATES, Appellee

¥,

Gary A. WASHINGTON, Staff Sergeant

U.S. Air Force, Appellant.

No, 95-0721.

Crim.App. No. 30804.

U.S. Court of Appeals for

the Armed Forces.

Argued Oct. 1, 1996.

Decided Aug. 26,1997.

Accused was convicted by general court-martial,

Mildred L. Raichle, J., of conspiracy to commit larceny,

‘violating Air Force Regulations, larceny, extortion,

impersonating an agent of superior authority, bribery, and

graft. The United States Air Force Court of Criminal Appeals

affirmed findings of guilty and sentence, except for

confinement exceeding nine years and 99 days, 42 M.J. 547.

Review was granted. The United States Court of Appeals for

the Armed Forces, Sullivan, J., held that: (1) accused was not

entitled to expert investigative assistance at government’s

expense; (2) accused’s statement was voluntary; and (3) any

error in appointment of deposition officer was harmless.

Affirmed.

1 Military Justice O- 1210.1

Defense could not establish its inability to gather

evidence in foreign country, as basis for granting expert

assistance at government’s expense, simply by noting that

prosecution employed expert assistance to prepare its case, or

that case involved large number of complicated charges,

where government arranged for defense access to

prosecution’s witnesses and documentary evidence, and there

was no showing that this access was inadequate.

2. Military Justice Ow 1113

Agents’ testimony accused never requested counsel and

that check by request for counsel on rights form was clerical

error supported determination that accused did not invoke his

right to counsel during interrogation by agents of the Air

Force Office of Special Investigations.

3. Military Justice Owe 1107, 1109, 1114

Accused’s statements to agents of the Air Force Office of

Special Investigations were voluntary, where accused was

fully advised of his rights and affirmatively waived them

several tones, any improprieties were relatively insignificant,

and accused appeared to want to engage in verbal fencing

with investigators.

4. Military Justice O-» 920

Deposition officer should be impartial and appear

impartial. UCMJ, Art 46(c), 10 U.S.C.A. § 846(c).

5. Military Justice Ou» 1424

Any legal error in appointment of deposition officer who

was previously involved in investigative capacity early on in

case, but whose active participation ceased prior to time of

challenged depositions, was harmless, considering also that

his actions were primarily ministerial, that depositions were

being taken in foreign country during military action and

involved foreign nationals, and that deposition officer had

particular experience and familiarity with foreign country.

UCMSJ, Art. 46(c), 59(a), 10 U.S.C.A. §§ 846(c), 859(a)

For Appellant: Captain Todi S. Carnes (argued); Colonel

Jay L. Cohen (on brief); Major Ormond R. Fodrea and

Captain Eric N. Eklund (on briefs).

For Appellee: Captain Libby A. Brown (argued); Colonel

Jeffery T. Infelise and Lieutenant Colonel Michael J. Breslin

(on brief); Colonel Theodore J. Fink.

Opinion of the Court

SULLIVAN, Judge:

In the summer of 1992, appellant was tried by a general

court-martial at Shaw Air Force Base, South Carolina.

Contrary to his pleas, he was found guilty of conspiracy to

commit larceny (2 specifications), violating Air Force

Regulations (2 specifications), larceny (4 specifications),

extortion (2 specifications), impersonating an agent of superior

authority, and bribery (4 specifications) and graft (2

specifications) totaling more than $70,000.00, in violation of

Articles 81, 92, 121, 127, and 134, Uniform Code of Military

Justice, 10 USC §§ 881, 892, 921, 927, and 934, respectively.

On July 28, 1992, the members of his court-martial sentenced

him to a bad-conduct discharge, confinement and forfeiture of

$250.00 pay per month for 10 years, a fine of $70,000.00, and

reduction to E-1. On August 11, 1993, the convening authority

approved this sentence. The Court of Criminal Appeals

affirmed the findings of guilty and the sentence, except for

confinement exceeding 9 years and 99 days. 42 MJ 547, 563.

On March 13, 1996, this Court granted the following

issues for review:

WHETHER THE MILITARY JUDGE ERRED TO

THE SUBSTANTIAL PREJUDICE OF THE

APPELLANT WHEN SHE DENIED THE

DEFENSE REQUEST FOR INVESTIGATIVE

SUPPORT MADE UNDER THE AUTHORITY OF

UNITED STATES v GARRIES, 22 MJ 288 (CMA

1986).

WHETHER THE MILITARY JUDGE ERRED TO

THE SUBSTANTIAL PREJUDICE OF

APPELLANT IN DENYING THE DEFENSE

MOTION TO SUPPRESS APPELLANT’S

CONFESSION.

On May 8, 1996, we granted the following additional

issue for review:

Ill

WHETHER THE MILITARY JUDGE ERRED TO

THE SUBSTANTIAL PREJUDICE OF

APPELLANT WHEN SHE DENIED THE

DEFENSE MOTION TO DISMISS THE

CHARGES AND SPECIFICATIONS ON THE

BASIS THAT THE CONVENING AUTHORITY’S

FAILURE TO APPOINT AN IMPARTIAL

DEPOSITION OFFICER IN APPELLANTS CASE

AMOUNTED TO A DENIAL OF DUE PROCESS.

We hold that no reversible error occurred in this case.

The Court of Criminal Appeals summarized the basic

facts of this case as follows:

All the alleged offenses arose out of the

appellant’s service as a contingency contracting

officer at Al Dhafra Air Base in the United Arab

Emirates (U.A.E.) from September 1990 through

March 1991, during Operations Desert Shield and

Desert Storm. According to the prosecution’s

evidence, the appellant, with the assistance of his

driver, one Omar Hassan, solicited and accepted

bribes and kickbacks from several U.A.E.

businessmen as “commissions” for awarding (or

influencing the award of) Air Force contracts, and

threatened contractors with cancellation of their

contracts unless they continued to pay him what he

asked. The larceny and conspiracy convictions were

based on evidence of collusion between the

appellant and contractors to inflate prices, thereby

increasing the contractors’ profits and the

appellant's “commissions.”

42 MJ at 555-51.

[1] The first granted issue asks if the military judge erred

in denying appellant’s motion to dismiss the charges because

the convening authority denied his pretrial request for

investigative assistance. Appellate defense counsel

summarizes the defense position as follows:

Appellant contends that he fully and

completely complied with the conditions

prerequisite set forth in Garries for investigative

assistance, that his request for the assistance of an

investigator over a mere thirty-day period was more

than reasonable under the extraordinary

circumstances of his case, and that he made a proper

showing of need. United States v. Tornowski , 29

MJ 578 (AFCMR 1989), [per.] denied, 30 MJ 214

(CMA 1990). It is clear that under the

circumstances, Appellant was materially prejudiced

by this erroneous denial which left him without

adequate means to prepare for his Article 32

hearing, fully and completely cross examine the

witnesses in or locate witnesses for the deposition

hearings, or develop a defense for his trial.

We disagree. United States v. Ndanyi 45 MJ 315 (1996);

United States v. Garries, supra.

In trial defense counsel’s written pretrial motion, the

following reasons were advanced for his earlier request for

expert assistance:

To justify why an investigator was needed, the

Defense delineated several factors: The large

number of specifications; the complex nature of the

alleged offenses; the situs of the offenses being

overseas; the majority of Government witnesses

being overseas, cultural and language barriers. . . .

As to what an investigator would be asked to do that

would assist the Defense, several tasks were

enumerated; interviewing Government witnesses,

and conduct background checks on Government

witnesses; locate and interview potential Defense

witnesses, trace documents relating to contracts

originating in the UAE; trace receipts for meals

relating to travel voucher fraud. . . . The third prong

is the reason why the Defense Counsel and Staff

could not perform the tasks themselves. In response

to this element, the Defense points out the

overwhelming amount of work that was required to

investigate this case. That does not include the

volume of work necessary to prepare the case for

trial. The Government's Counsel was not required to

investigaie their case and prepare it for trial. The

Government, in fact, had unlimited resources

available to it. The Defense requested only one

investigator; the Government had at least six

AFOSI investigators working on this case at one

time or another. The majority of work to be done

by an investigator was to be done in the UAE.

There have not been any military defense counsel in

the UAE since mid-1991.

(Emphasis added.)

The military judge denied appellant’s motion to dismiss,

making the following findings of fact and conclusions of law

C. Denial of An OSI Investigator

In his request for investigative assistance, the

accused cites the following as why an investigator is

needed: the large number of specifications in the

case, the complex nature of the offenses, the situs of

the offenses in the United Arab Emirates (UAE), the

location of the witnesses in the UAE, and the

language and cultural barriers to be encountered in

the UAE. The tasks enumerated as to what the

investigator will do are to locate and interview

witnesses for the government and for the defense,

perform background checks on witnesses, and to

trace contractual documents. The request indicates

that the defense team is unable to perform these

tasks because of the amount of travel necessary

coupled with the defense counsels current case load.

The key to a successful demonstration of necessity

for an investigator is a plausible showing that the

investigator could obtain information that the

defense and its staff would not be able to obtain on

its own. | find that the defense has failed to make

such a showing. The government made all its

witnesses available to the defense when the parties

were in the UAE for the videotape depositions. Any

background checks which needed to be done could

have been done by the defense team when they

were in the UAE. Any documents which are

pertinent to the case were supplied by the

government. Finally, the defense appears to be on a

“fishing expedition” as to defense witnesses who

“may exist who can refute the charges” or “may be

helpful.” In this respect the defense has failed to

show any more than a mere possibility of

assistance.

Accordingly, I find that there is no reasonable

probability that the requested services will be of

assistance or that denial of the request will result in

a fundamentally unfair trial.

(Emphasis added.)

In United States v. Gonzalez, 39 MJ 459 (1994), this

Court viewed favorably the three-step test articulated by the

lower court for determining whether government-funded

expert assistance was necessary. The lower court had said:

There are three aspects to showing necessity. First,

why the expert assistance is needed. Second, what

would the expert assistance accomplish for the

accused. Third, why is the defense counsel unable

to gather and present the evidence that the expert

assistant would be able to develop.

Id. 39 MJ at 461. Later, in Ndanyi 45 MJ at 316, we held that

the defense cannot reject expert military assistance supply

because the prosecution employs expert civilian assistance.

We reaffirm those decisions today and hold that the defense

cannot establish its inability to gather evidence, even in a

foreign country, simply by noting that the prosecution

employed expert assistance to prepare its case.

Here, the Government arranged for defense access to the

prosecution’s witnesses and documentary evidence, and there

was no showing that this access was inadequate. In addition,

the defense failed to justify its request for expert assistance,

other than to generally say the case involved a large number

of complicated charges arising overseas in a foreign country.

Accordingly, we conclude that the military judge’s decision to

deny government-funded investigative assistance was not an

abuse of discretion. See Gonzalez, 39 MJ at 461 (no error

where government-provided interpreter was not used by

defense to justify request for investigator in foreign country);

Garries, 29 MJ at 291 (abuse-of-discretion standard).

[2] The second granted issue questions the military

judge’s decision admitting evidence of appellant’s pretrial

statements to agents of the Air Force Office of Special

Investigations (AFOSI). Appellant objected to admission of

this evidence on two grounds. First, he claimed that these

statements were made by him after he requested and the

agents refused to provide him with an attorney. Second, he

asserted that the statements were unlawfully coerced by a

combination of restraint, intimidation, threats, and promises

by the AFOSI and Colonel Rust, his commander.! 42 MJ at

557-59.

The Court of Criminal Appeals noted that “[t}he military

judge found the appellant had not requested a lawyer at any

time during his AFOSI interrogation.” Jd. 42 MJ at 560. It

noted the conflict of evidence on this question, stating:

Agents Pecko and Bland resumed the

interrogation the following morning, 7 March 1991,

at about 0800. Again, Agent Pecko advised the

appellant of his Article 31/Fifth Amendment rights

and, again, the appellant waived them. At this point,

'See 42 MJ at 554 n. 14.

10a

the accounts of the appellant and his AFOSI

interrogators diverge. Appellant claims that,

sometime during the morning of 7 March, he asked

for a lawyer. According to the appellant, Agent

Pecko refused to honor the request or stop the

interrogation. Appellant testified Agent Pecko told

him that they did not have time for a lawyer, and

offered to let him meet with Colonel Rust instead.

Not surprisingly, Agent Pecko’s version of these

events is quite different. He testified that the

appellant never requested a lawyer, but asked to see

Colonel Rust on his own initiative. Agent Bland

corroborates Agent Pecko’s account. In any event,

Agents Pecko and Bland then took the appellant to

see Colonel Rust.

* * * * * * K

When the appellant had completed his

handwritten statement, the agents used it to

computer-print a double-spaced draft. Appellant

reviewed the draft, and made corrections and

revisions. The revised draft was then printed

verbation on a standard AFOSI statement form. This

form has preprinted Article 31/Fifth Amendment

rights advice, and places where a suspect checks off

his choices as to assertion of rights or waiver. Agent

Pecko went through these rights again with the

appellant, who then checked off his choices. At this

point, the testimony conflicts one more time. All

agree the appellant checked off the “I want a

lawyer’ block, but then scratched it out and checked

“I do not want a lawyer.” However, the appellant

said he checked “I want a lawyer” because he

wanted one, and only scratched it out because Agent

Pecko told him he could not have one. Agent Pecko

lla

testified the appellant checked “I want a lawyer” as

a Clerical mistake, orally reiterated that he did not

want a lawyer, and scratched the mark out for that

reason. Once again, Mr. Lukens supports Agent

Pecko’s version. In any case, the appellant went on

to review his printed statement, sign it, and take an

oath to its truth. This completed the interrogation.

Id. 42 MJ at 558-59.

Appellate defense counsel before this Court still contend

that “[a]ppellant did request counsel, and the military judge

abused her discretion in finding otherwise.” Final Brief at 44.

However, this argument inappropriately invites this Court to

make the factual findings necessary to support appellant’s

argument for suppression under Edwards v. Arizona, 451 U.S.

477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). See Art. 67(c),

UCMJ, 10 USC § 867(c)(1994). In addition, we note that the

military judge, who did have power to decide the factual

issues, conducted an evidentiary hearing and resolved them

against appellant.

Ample evidence exists in the record to support the

military judge’s findings, so we are not persuaded that they are

clearly erroneous. See United States v. Melvin, 91 F.3d 1218,

1222 (9th Cir.1996); cf Davis v. United States, 512 U.S. 452,

458 60, 114 S.Ct. 2350, 2355, 129 L.Ed.2d 362 (1994).

Finally, the Court of Criminal Appeals also concluded that the

judge’s decision was not clearly erroneous, and no argument

has been presented that that court erred in declining to exercise

its own factfinding power in this matter. See United States v.

Cole, 31 MJ 270, 272 (CMA 1990); United States v. Grostefon,

12 MJ 431, 436 n. 8 (CMA 1982); see also United States v.

Burris, 21 MJ 140, 143 n. 7 (CMA 1985).

[3] Appellant also argues that his motion to suppress his

pretrial statements should have been granted because “under

the totality of the circumstances . . . the Government failed to

12a

prove by a preponderance of the evidence that [a]ppellant’s

confession was not the product of Government coercion and

unlawful inducement.” Final Brief at 43. He cites “a cold,

Sterile listing” of the facts surrounding appellant’s confession

as follows)

a: Being roughly treated upon apprehension;

b: Being denied the opportunity to speak with his

supervisor as requested;

c: Being subjected to an interrogation of two days’

duration;

d: Being told by his commander that he (the

commander) wanted to spit in his face;

e: Being verbally abused by this selfsame

commander who called him a “black jew”;

f: Being promised “de facto” immunity by Colonel

Rust if only he would execute a statement;

g: Being repeatedly denied the opportunity to

consult with counsel as requested;

h: Being given a patently illegal order by Colonel

Rust which cut him off from his friends and

coworkers for the next year.

Final Brief at 38. He then concludes by stating, “Taking a

holistic view of the human interaction occurring over the two

days of interrogation, particularly that between appellant and

Col Rust, it becomes self-evident that [a]ppellant’s

incriminating statements to the OSI on 7 March were the

product of coercion and unlawful inducement.” /d. at 39.

The military judge and the Court of Criminal Appeals

both rejected appellant’s argument that his statements were

not voluntary. We review this question of law de novo and

agree. See United States v. Martinez, 38 MJ 82, 86 (CMA

1993), citing Arizona v. Fulminante, 499 U.S. 279, 287, 111

13a

S.Ct. 1246, 1252-53, 113 L.Ed.2d 302 (1991), quoting Miller

v. Fenton 474 U.S. 104, 110, 106 S.Ct. 445. 449-50, 88

L.Ed2d 405 (1985). In our view, the court below more

persuasively assessed the facts in this case as follows:

Appellant had been fully advised of his rights,

and affirmatively waived them, four times before he

began his incriminating statements. In addition, he

had been “reminded” of his rights another time.

Before he signed and swore to his formal written

statement, he was fully acvice and waived his rights

again. In comparison to such constant reinforcement

of the appellant’s rights, the length of the

questioning and actions of Colonel Rust were

insignificant. Moreover, the record portrays the

appellant as a “cagey” operator (or at least someone

who perceived himself to be so) who decided he

would try to talk his way out of trouble. He

willingly gave up his rights to “fence” with the

AFOSI. Over the hours of questioning, the agents

confronted the appellant with the evidence against

him, piece by piece, to include playing the 6 March

surveillance videotape. Appellant still chose to

continue the duel, despite every opportunity to stop

the interrogation. Eventually, the appellant decided

he would acknowledge taking money from UAE

vendors, but without admitting he was taking it for

himself. As the appellant now undoubtedly realizes,

these were all unwise choices. Nonetheless, they

were his free and unconstrained choices.

42 MJ at 561.

The third granted issue asks whether it was error for the

convening authority to appoint Major Russell as the

- deposition officer for purposes of deposing various witnesses

l4a

in the UAE. See Art. 49(c), UCMJ, 10 USC 849c). The

defense objected to this appointment, prior to the depositions

and at appellant’s trial, on the basis of Major Russell’s earlier

prosecutorial involvement in appellant’s case. He construed

Article 49(c) in accordance with Fed.R.Crim.P. 15(d) and

Fed.R.Civ.P. 28(c) to strictly preclude depositions “taken

before a person who is a relative or employee or attorney or

counsel of any of the parties, or is a relative or employee of

such attorney or counsel. . . .” (Emphasis added.)

The military judge denied appellant’s motion to dismiss

on the basis of a violation of his military due process rights.

She made the following findings of fact and conclusions of

law:

2) Impartial Deposition Officer

RCM 702(f) sets out the duties of a deposition

officer, one of which is to administer oaths to

witnesses and the recorder. RCM 702(d) indicates

that the deposition officer will be an officer. Thus,

the only Manual requirements to be a deposition

officer are that the person be an officer who is

authorized to administer oaths. There is no

requirement that a deposition officer act in a judicial

capacity in the same sense as a military judge or

Article 32 Investigating Officer. There is no

requirement that the deposition officer have no prior

involvement in the case. However, it would be

preferable if the deposition officer were impartial

and unbiased. In this case, Major Russell, the

deposition officer, had been in the UAE acting as

Staff Judge Advocate while the investigation was

ongoing. The OSI in the UAE kept Major Russell

advised of their progress in the Washington case,

but most of their legal advice came from the main

base office at Shaw. After his return to Shaw AFB,

lSa

Major Russell was the Deputy Staff Judge Advocate

but functioned mainly in a civil law capacity.

Captain Joseph was the Chief of Adverse Actions

and Major Russell had little to do with the

Washington case. Major Russell was selected as the

deposition officer because of his prior experience in

the UAE and his rank of major. Under these

circumstances and in light of the predominantly

administrative nature of the duties of a deposition

officer, I find that the appointment of Major Russell

as the deposition officer was appropriate and he was

not disqualified.

Major Russell was properly appointed and his

approval as deposition officer was made known

orally to all parties, followed up by written

confirmation. There is no evidence that any of the

provisions of RCM 702 were violated.

(Emphasis added.)

[4] The Uniform Code of Military Justice does not

expressly provide that a deposition will be taken before an

officer who is impartial and appears impartial. Neither the

Rules for Courts-Martial nor the Military Rules of Evidence

provide an impartiality requirement. Nevertheless, Article

46(c) does provide the following.

authenticated by any military or civil officer

authorized by the laws of the United States or by the

laws of the place where the deposition is taken to

administer oaths.

(Emphasis added.)

This statutory language is broad enough to incorporate

the impartiality provisions of Fed.R.Crim.P. 15(d) and

Fed.R.Civ.P. 28(c). In addition, we have generally recognized

l6a

the requirement of personal disinterest with respect to

ministerial actors in the military justice system. United States

v. Donati, 14 USCMA 235, 239, 34 CMR 15, 19 (1963) (as

matter of basic fairness, court reporters and interpreters must

have no personal interest in case). Accordingly, we conclude

that these minimum standards of fairness apply to deposition

officers in the military justice system, and that the military

judge erred in not applying them in this case. See generally 3

Wigmore, Evidence §§ 802-03 at 266-67 (Chadbourn

rev.1970) (deposition officer must not be “open to plain

suspicion of bias or interest for one or the other of the

parties”).

[5] Nevertheless, we are not persuaded that appellant’s

court-martial should be invalidated simply because the

military judge misconstrued the legal requirement that a

deposition officer be impartial and appear impartial. See Art.

59(a), UCMJ, 10 USC § 859(a). Although Major Russell had

been involved in an investigative capacity early on in this

case, his active participation in this role, and hence his

disqualification, ceased prior to the time of the challenged

depositions. Cf. United States v. Gaines, 20 USCMA 557,

561, 43 CMR 397, 401 (1971). Moreover, these depositions

took place in the UAE during Operation Desert Storm and

involved foreign nationals. Since Major Russell was detailed

to these duties because of his particular experience and

familiarity with this foreign country, the requirement of

personal disinterest may not have been controlling in

appellant’s case. See United States v. Valli, 7 USCMA 60, 64,

21 CMR 186, 190 (1956); see generally United States v.

Hessler, 7 MJ 9, 10 (CMA 1979) (application of constitutional

rights on front line of defense in foreign country). Finally,

Major Russell’s duties in taking these depositions were

primarily ministerial (see RCM 702(f), Manual for Courts-

17a

Martial, United States, 1984)? and appellant is hard-pressed to

identify any particular conduct by this officer which

substantially impacted on the depositions or his court-martial.

2(f) Duties of the deposition officer. In accordance with this rule, and

subject to any instructions under subsection (d)(3) of this rule, the

deposition officer shall:

(1) Arrange a time and place for taking the deposition

and, in the case of an oral deposition, notify the party who

requested the deposition accordingly:

(2) Arrange for the presence of any witness whose

deposition is to be taken in accordance with the procedures for

production of witnesses and evidence under RCM 703(e);

(3) Maintain order during the deposition and protect the

parties and witnesses from annoyance, embarrassment, or

oppression:

(4) Administer the oath to each witness, the reporter, and

interpreter, if any;

(5) In the case of a written deposition, ask the questions

submitted by counsel to the witness;

(6) Cause the proceedings to be recorded so that a

verbatim record is made or may be prepared;

(7) Record, but not rule upon, objections or motions and

the testimony to which they relate;

(8) Authenticate the record of the deposition and

forward it to the authority who ordered the deposition; and

(9) Report to the convening authority any substantial

irregularity in the proceeding.

Discussion

When any unusual problem, such as improper conduct by counsel or

a witness, prevents an orderly and fair proceeding, the deposition officer

should adjourn the proceedings and inform the convening authority.

The authority who ordered the deposition should forward copies to

the parties.

18a

See United States v. Yarbrough, 22 MJ 138 (CMA 1986). In

this context, we conclude that any legal error in the

appointment of Major Russell as deposition officer in this

case was harmless. Art. $9(a).

The decision of the United States Air Force Court of

Criminal Appeals is affirmed.

Chief Judge COX and Judges CRAWFORD, GIERKE,

and EFFRON concur.

3Appellant’s major complaint was that Major Russell failed to have an

interpreter present at the taking of the deposition testimony as requested

by defense Reply to Answer at 5, 8. He notes portions of the deposition

where the foreign deponents had difficulties in communication. The

Government responded that these difficulties were temporary and resolved

by rephrasing the questions. We agree and see no prejudice in this context.

19a

APPENDIX B

UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

UNITED STATES

Staff Sergeant GARY A. WASHINGTON, FRO93-60-—2294

United States Air Force

ACM 30804

21 April 1996

sil elle ‘ate

Sentence adjudged 28 July 1992 by GCM convened at Shaw

Air Force Base, South Carolina. Military Judge: Mildred L.

Raichle.

Approved sentence: Bad-conduct discharge, $70,000 fine,

confinement for 10 years, forfeiture of $250 pay per month

for 10 years, and reduction to E-1.

Appellate Counsel for Appellant: Mr. Vaughan E. Taylor, Esq.

(argued), Colonel Jay L. Cohen, Captain Eric N. Eklund, and

Captain Richard D. Desmond.

Appellate Counsel for the United States: Captain Timothy G.

Buxton (argued), Colonel Jeffery T. Infelise, Colonel Thomas

E. Schlegel, and Major John H. Kongable.

Before

HEIMBURG, PEARSON, and BECKER

Appellate Military Judges

20a

OPINION OF THE COURT

BECKER, Judge:

Members convicted the appellant, contrary to his pleas,

of six specifications of accepting or soliciting bribes or graft

totaling over $70,000 (in violation of Article 134, UCMSJ'),

one specification of impersonating an agent of superior

authority (also a violation of Article 134), two specifications

of extortion (in violation of Article 127, UCMJ?), four

specifications of larceny of currency, property of the United

States, totaling over $20,000 (in violation of Article 121,

UCMS?), two specifications of violating Air Force Regulation

30-30 by soliciting or accepting gifts from contractors (in

violation of Article 92, UCMJ*), and two specifications of

conspiracy to commit larceny (in violation of Article 81,

UCMS>). Appellant was sentenced to a bad-conduct discharge,

confinement for 10 years, forfeiture of $250 per month for 10

years, reduction to E—1, and a fine of $70,000. All the alleged

offenses arose out of the appellant’s service as a contingency

contracting officer at Al Dhafra Air Base in the United Arab

Emirates (U.A.E.) from September 1990 through March 1991,

during Operations Desert Shield and Desert Storm. According

to the prosecution’s evidence, the appellant, with the

assistance of his driver, one Omar Hassan, solicited and

accepted bribes and kickbacks from several U.A.E.

businessmen as “commissions” for awarding (or influencing

'10 U.S.C. § 934 (1988).

210 U.S.C. § 927 (1988). Appellant was acquitted of one other

specification of extortion.

310 U.S.C. § 921 (1988).

410 U.S.C. § 892 (1988). Appellant was acquitted of two specifications

alleging AFR 30—30 violations.

510 U.S.C. § 881 (1988).

2la

the award of) Air Force contracts, and threatened contractors

with cancellation of their contracts unless they continued to

pay him what he asked. The larceny and conspiracy

convictions were based on evidence of collusion between the

appellant and contractors to inflate prices, thereby increasing

’ “

the contractors’ profits and the appellant’s “commissions.”

Appellant asserts twelve assignments of error. Most

prominent among them are that his trial defense counsel were

ineffective, the court-martial was tainted by unlawful

command influence, the military judge erred in denying his

motion to suppress his incriminating statements to the Air

Force Office of Special Investigations (AFOSI), and he was

subjected to unlawful pretrial punishment in violation of

Article 13, UCMJ.° We find no error affecting the lawfulness

of the convictions, and affirm all findings of guilty. However,

we agree with the appellant’s Article 13 argument, and modify

his sentence accordingly.

I. INEFFECTIVE ASSISTANCE OF COUNSEL

A. Background

This assignment of error calls upon us to consider the

relationship, if any, between the Sixth Amendment and sexual

activity between members of the defense team. Appellant’s

trial defense counsel were Mr. HAB, a civilian attorney

practicing in Columbia, South Carolina, and Captain CDH,

then Area Defense Counsel at Charleston Air Force Base,

South Carolina. Captain H has since separated from the Air

Force. Together, Mr. B and Captain H represented the

appellant from the Article 32, UCMJ,’ investigation in March

1992, through the nearly three-week trial at Shaw Air Force

10 U.S.C. § 813 (1988).

710 U.S.C. § 832 (1988).

22a

Base, South Carolina, in July 1992. This period included a

three-week trip by Mr. B and Captain H to the U.A.E. to

conduct depositions and other pretrial investigation. Due to

problems obtaining a visa, the appellant did not at first

accompany his counsel to the U.A.E., but arrived some days

later.

Somewhere along the line—the appellant claims it was

while his lawyers were alone in the U.A.E.—Mr. B (who was

married) and Captain H (who was not) became romantically

involved. Appellant stumbled onto this relationship after the

trial, when Mr. B sent him a bundle of case materials.

Obviously unbeknownst to Mr. B. there were cards and notes

from Captain H to Mr. B tucked away in these files. These

epistles, although not sexually explicit, certainly revealed an

intimate, personal relationship.

Appellant seized upon this as proving that his lawyers

did not adequately investigate and prepare his case while in

the U.A.E., choosing instead to take advantage of the trysting

opportunities presented by the trip. In the appellant’s words,

his lawyers “could not have had a better time on the ‘Love

Boat,”’ and put his case “on the back burner if they

considered it at all.” He contends this is the reason his

attorneys put on virtually no evidence on his behalf, during

either the findings or the sentencing phase of the trial.®

’In findings, the defense called only one witness, Colonel Rust. He was an

adverse witness, whom the defense contended was responsible, in part, for

coercing the appellant’s statements to the AFOSI. Although the military

judge had earlier denied the defense motion to suppress these statements,

the defense called Colonel Rust as part of its attack on the weight the

members should give the statements. In addition, the defense introduced

several documentary exhibits during extensive cross-examinations of

prosecution witnesses. Appellant did not testify in findings. In sentencing,

the defense called no witnesses, but introduced several written statements

from character witnesses and many other documents as mitigation

evidence. Appellant made an unsworn statement in sentencing.

23a

Specifically, the appellant argues his lawyers should have

introduced testimony from other U.A.E. contractors who were

willing to describe the appellant as an honorable person who

did not solicit or accept bribes or kickbacks. He also contends

that Mr. B and Captain H improperly struck a deal with the

trial counsel to excise portions of certain videotaped

depositions,’ which he claims implicated his counsel in

attempts to bribe witnesses during the trip to the U.A.E.

After the appellant found the love notes, his new civilian

lawyers filed a motion for a post-trial Article 39(a), UCMJ,!°

session to consider the appellant’s claim of ineffective

assistance of counsel.!! The prosecution opposed the motion.

Before ruling, the military judge permitted discovery and

submission of affidavits from all counsel. In their affidavits,

Mr. B and now-Ms. H avoided any discussion of their

personal relationship, and reviewed in detail their case

preparation and reasons for tactical decisions. They described

their efforts on behalf of the appellant as, in a word,

monumental. In particular, they told of difficulties in

preventing their client from bribing and threatening U.A.E.

witnesses with deportation.'’2 According to Mr. B and Ms. H.

they decided—with the appellant’s consent—to present very

little evidence in either findings or sentencing, to prevent the

*With only one exception, the U.A.E. witnesses refused the trial counsel’s

invitations to attend the court-martial at Shaw. See Article 46, UCMJ (10

U.S.C. § 846 (1988)); R.C.M. 703(e)(2)(A) (Discussion), (E)(i), (ii). Over

defense objections, the military judge admitted the videotaped depositions

of the unavailable witnesses as exceptions to the rule against hearsay. See

Mill R. Evid. 804(b){1). Appellant has not assigned these rulings as error.

1010 U.S.C. § 839(a) (1988)

See R.C.M. 1102(b)(2).

'2Although living and working in the U.A.E., the contractors involved in

this case were citizens of either Saudi Arabia, Lebanon, or Germany, and

were potentially subject to visa revocation and deportation for misconduct.

24a

prosecution from introducing the appellant’s threats and

bribery attempts in rebuttal. The affidavits of the two defense

counsel and the two trial counsel all say the editing of the

depositions resulted from agreement that the bribery

references were uncharged misconduct, which was not

admissible against the appellant in the prosecution’s case-in-

chief. See Mil.R.Evid. 404(b), 403.

Based on the affidavits and other documents, the military

judge found Captain H and Mr. B “did carry on an adulterous

relationship during the period they were representing the

accused.” However, she denied the motion for a post-trial

Article 39(a) session, ruling the appellant had not made out a

claim of ineffective assistance of counsel.

B. General Rules and Standards of Review

We presume the competence of trial defense counsel

unless an appellant points out errors which are unreasonable

under prevailing professional norms. United States v. Cronic,

466 U.S. 648, 666 (1984); United States v. Harris, 34 M.J.

297, 299 (C.M.A. 1992). The appellant must show (1) his

counsel’s performance was so deficient that they were, in

effect, not functioning as the “counsel” guaranteed by the

Sixth Amendment, and (2) his counsel’s errors were so serious

as to deprive him of a fair trial, that is, a trial whose result is

reliable. Strickland v. Washington, 466 U.S. 668, 687 (1984);

United States v. Scott, 24 M.J. 186, 188 (C.M.A. 1987). A

defense counsel’s failure to investigate potential defenses may

be ineffective assistance. See, e.g., Scott. However, we will

not second-guess tactical decisions. United States v. Morgan,

37 M.J. 407, 410 (C.M.A. 1993); United States v. Dale, 39

M.J. 503, 506 (A.F.C.M.R. 1993).

An accused is entitled to defense counsel who are free

from conflicts of interest. Holloway v. Arkansas, 435 U.S. 475

25a

(1978); United States v. Caritativo, 37 M.J. 175, 178 (C.M.A.

1993); United States v. Newak, 24 M.J. 238 (C.M.A. 1987);

United States v. Breese, 11 M.J. 17 (C.M.A. 1981). However,

before an alleged conflict of interest may be the basis for a

finding of ineffective assistance, an accused must demonstrate

an actual conflict which affected his lawyers’ performance.

Cuyler y. Sullivan, 446 U.S. 335, 348 (1980).

C. Sex and the Sixth Amendment

Sexual conduct by defense counsel has, at times, created

conflicts of interest implicating an accused’s Sixth

Amendment right to effective assistance of counsel. See

Barentine v. United States, 728 F. Supp. 1241 (W.D.N.C.

1989), aff’d, 908 F.2d 968 (4th Cir. 1990) (defendant suffered

no prejudice from potential conflict of interest created by

defense counsel’s affair with defendant’s fiancee); People v.

Blalock, 197 Colo. 320, 592 P.2d 406 (1979) (defendant

denied effective assistance of counsel where defense counsel

had prior sexual relationship with alleged sexual assault

victim). Our research has disclosed no case involving a sexual

relationship between defense counsel. However, in United

States v. Babbit, 26 M.J. 157 (C.M.A. 1988), the Court of

Military Appeals addressed the sexual relationship between a

defense counsel and his client. We find that opinion

instructive.

In Babbit, the accused (who was single) and her civilian

defense counsel (who was married) become emotionally

involved during the case, culminating in sexual intercourse on

the night before the last day of the trial. On appeal, Captain

Babbit argued this created a conflict of interest which denied

her effective assistance of counsel. In affirming Babbit’s

conviction, the Court of Military Appeals rejected her

argument that sexual relations between defense counsel and

client per se create a conflict of interest which undermines

26a

the Sixth Amendment guarantee of effective assistance.

Instead, the court examined the record of trial, which revealed

a thoroughly competent effort by the defense counsel, and

agreed with the Army Court of Military Review that counsel’s

representation “‘was, if anything, spurred on by his

relationship with appellant.’ [citation omitted].” 26 M.J. at

159.

We find the Babbit reasoning applicable here. We

decline to adopt a rule that sexual relations between defense

counsel during their representation of an accused per se

create a conflict of interest which violates an accused’s right

to effective assistance of counsel. Such conduct (at least

without the knowledge of the client), at a minimum, shows

poor judgement and, as in this case, may be unlawful.

Nonetheless, we must acknowledge that, similar to Babbit,

certain aspects of a romantic relationship between counsel can

work to a client’s benefit. Certainly, it cannot be said the

appellant’s lawyers were not talking to each other. Compare

United States v. Mansfield, 24 M.J. 611 (A.F.C.M.R. 1987)

(counsel were ineffective because, among other reasons, they

did not communicate regarding insanity defense

preparations). Instead of invoking a per se rule, we will

examine the record of trial and relevant post-trial exhibits, and

apply the two-prong Strickland /Scott test.

D. Decision

The documented performance of the trial defense team

belies any serious argument that they indulged in romance at

the expense of case preparation. Their decision to keep a low

evidence profile to avoid potentially devastating rebuttal is

quite reasonable, and we will not play “Monday morning

quarterback” with their professional judgement. The defense

team’s level of preparation in this complicated and difficult

case was very high. Indeed, seldom has this Court seen a case

EE Ee

27a

so energetically defended at the pretrial motions stage, where

every significant piece of prosecution evidence was the

subject of a motion to suppress or a motion in limine. During

the prosecution case-in-chief, defense counsel rarely allowed

a doubtful question from trial counsel to pass without

objection. The defense also made aggressive, well-prepared

attacks on the credibility of prosecution witnesses. This was

especially the case for the deposition testimony videotaped in

the U.A.E. at a time when, according to the appellant, his

lawyers had put his case on the “back burner” to cruise on the

“Love Boat.”

The record also fails to show a conflict of interest created

by either defense counsel’s supposed connection with any

bribery attempts by the appellant. The only reference we can

find to such a connection is in the deposition of Omar Hassan,

the appellant’s driver. Hassan testified that he had kept the

appellant’s “commission” money in a box in his apartment

until the appellant took the box. Also according to Hassan, the

appellant owed him some of this money. During his

deposition, Hassan described an encounter with the appellant

and one of his lawyers (apparently, Mr. B), during which the

appellant asked Hassan to “help me.” Hassan replied:

And in front of his lawyer I said, “I’m—if you want

help, give me this box money back—give me what I

tell you back.” He said, “What?” I said, “Give me

this box what I said back.” And his lawyer, he said,

“What box?” And Gary, he start to tell me what and

his lawyer said, “Wait.” He said, “What box.” I said

[to the lawyer] “Gary, he [referring to Gary] know

what box... .”

This exchange raises no inference of involvement by Mr. B

with any attempt to bribe Omar Hassan. To the contrary, it is

apparent Mr. B was ignorant of the money box until this

conversation, and sought to stop any further “negotiation” until

28a

he could find out what was happening. We conclude that

defense counsel were furthering only their client’s interests

when they and trial counsel agreed to edit this portion out of the

Hassan video deposition before it was played to the members.

In sum, we find the appellant has failed to carry his

burden of demonstrating the first prong of the Strickland/Scott

test. There was no conflict of interest raised by either the

relationship between the defense counsel, or by Mr. B’s

presence when the appellant and Hassan discussed the “box

money.” The record of trial reflects performances by both

defense counsel which are well above the minimum required

by the Sixth Amendment. Therefore, we resolve this

assignment of error against the appellant without reaching the

second prong of the Strickland/Scott test.

Il. UNLAWFUL COMMAND INFLUENCE

A. Background

Appellant is highly critical of the attitudes and actions of

three officers—Colonel Rust in the U.A.E., and Majors

Blanchette and Biankini back at Shaw. He rolls all of his

complaints into an allegation that his trial was tainted by

unlawful command influence, in violation of Article 37(a),

UCMJ.'> At trial, he moved to dismiss all charges and

specifications on this ground, but the military judge denied the

motion.

Colonel Rust was in charge of logistics at Al Dhafra Air

Base, which included the base contracting activities.'* As

1310 U.S.C. § 837(a) (1988)

'4At various points in the record, Colonel Rust’s position is described as

the appellant’s “commander,” the “deputy commander for logistics,” or

like titles. Colonel Rust’s precise title is not material. It is clear his

authority included supervision of the contracting function at Al Dhafra.

29a

such, he was a high-level supervisor of the appellant. After the

appellant’s apprehension in the U.A.E. on 6 March 1991,

AFOSI agents interrogated him the rest of that afternoon and

evening and, after an overnight break, on the morning of 7

March. On 6 March, Colonel Rust came into the interview

room and spoke to the appellant. According to the appellant,

Colonel Rust was insulting, told the appellant that he would

like to spit on him, and called him a “black Jew.” Appellant

and Colonel Rust also met the next morning, although how

this came about is in dispute.'> Appellant claims Colonel Rust

implied during this meeting that he would take care of the

appellant’s legal problems in return for his cooperation with

the AFOSI. In his testimony, Colonel Rust admits he entered

the AFOSI interview on 6 March, that he was upset, and that

he told the appellant he would like to spit in his eye. Colonel

Rust agreed that he met with the appellant the following

morning, but said he made no promises other than for fair

treatment and to contact the appellant’s family. Colonel Rust

denied personally calling the appellant a “black Jew,” but

admitted telling him during their 7 March conversation that

local merchants referred to him by that epithet. On 6 March,

Colonel Rust also gave the appellant a written order not to

contact anyone in Contracting at Al Dhafra, or anyone in Abu

Dhabi or Dubai. After completing his statement to AFOSI on

7 March, the appellant was taken to Riyadh, Saudi Arabia.

Several days later, he flew back to Shaw, arriving on 22

March 1991.

After his return to Shaw, the appellant’s commander

(Major Biankini) assigned him to work in the squadron

orderly room. He was not allowed in the Contracting Office to

'SThis dispute becomes important in considering the voluntariness of the

appellant’s statements to the AFOSI. This issue is addressed in section III

of this opinion.

30a

pick up his personal effects. These were collected for him,

and picked up by his wife.

On 10 July 1991, Major Biankini reassigned the

appellant to work for the Noncommissioned Officer in Charge

of the base Correctional Custody and Transition Flight

programs, and gave him a written order not to make contact

“in any way” with personnel assigned to the Contracting

Office. The literal wording of this order was broad enough to

prohibit even social contact between the appellant and his

former co-workers. Appellant testified that he interpreted the

order literally and, in one instance, he did not attend the

annual Contracting Office family Easter Egg hunt because of

the order.

Concerning his reassignment, the appellant was not

actually placed in either the Correctional Custody or the

Transition Flight program,'® but he was required to sign in and

out of the area. Appellant’s duties included menial “weeds and

seeds” tasks, such as landscaping, planting, and weeding. He

also hauled trash, painted, and cleaned duck droppings from

rocks at the base duck pond. Appellant performed these

chores personally, and did not supervise lower-ranking

airmen. Appellant claims Major Biankini reassigned him in

retaliation for revealing unflattering information about her to

his lawyers. According to other witnesses, Major Biankini

issued the “no contact” order and reassigned the appellant

after complaints that he was a disruptive influence in the

'©Correctional Custody is a type of punishment which commanders may

impose under their nonjudicial punishment authority. See Article

15(b)(2)(B), (b)(2) (Hii), UCMJ (10 U.S.C. § 815(b)(2)(B), (b)(2)( H(i)

(1994)); MCM Part. V 4 5(b)(2)(A)(ii), (b)(2)(B)Gii) (1984). “Transition

Flight” is strictly a local-option program where commanders may assign

airmen pending administrative discharge for cause.

3la

orderly room and in Contracting, where he had been visiting

his former co-workers."

Major Blanchette was the chief of the Contracting Office

at Shaw. Appellant alleges Major Blanchette’s negative

attitude toward him, in combination with Major Biankini’s

“no contact” order, hindered preparation of his defense. As an

example, it was Major Blanchette who instructed office

members that the appellant was not invited to the Easter Egg

hunt. The Shaw wing commander rescinded all “no contact”

orders on | April 1992, at the request of the appellant’s

defense counsel. At no time had Major Biankini’s or Colonel

Rust’s orders affected the ability of appellant’s attorneys to

contact witnesses. Notwithstanding, the appellant claims

Major Blanchette’s continuing hostility resulted in reluctance

among his former coworkers to come forward as favorable

witnesses. Appellant introduced evidence of two specific

instances in support of this contention. He and a former co-

worker testified that, on one occasion, the appellant

approached the worker in the office (apparently after the |

April 1992 rescission of the “no contact” order), only to be

rebuked by Major Blanchette for not letting him know in

advance. In addition, the defense paralegal specialist assigned

to the Shaw Area Defense Counsel office testified the

squadron first sergeant had upbraided her for scheduling an

appointment with a prospective witness which had disrupted

the witness’ lunch hour, and instructed her to go through him

for future appointments. Further, two Contracting

noncommissioned officers (NCOs) testified they had, at one

time, feared repercussions from Major Blanchette if they

helped the appellant. However, these NCOs admitted that

neither Major Blanchette nor anyone else had directly said or

'7 Appellant also points to these actions in support of his claim of unlawful

pretrial punishment, in violation of Article 13, UCMJ. We address this

issue in section [V of this opinion.

32a

done anything to cause such a fear. Other Contracting NCOs

testified the appellant had met with Contracting personnel

without hindrance (again, apparently after the wing

commander had rescinded the “no contact” order), and they

had no fear of retaliation from helping the appellant. On

cross-examination, the appellant admitted he had talked to

everyone in Contracting, except two civilian employees who

had not served in the U.A.E. Appellant did not say what

evidence he expected from these two civilians.

B. General Rules and Standards of Review

Unlawful command influence is the mortal enemy of

military justice. United States v. Thomas, 22 M.J. 388, 393

(C.M.A. 1986), cert. denied, 497 U.S. 1085 (1987).

Interference with an accused’s access to witnesses is a form of

unlawful command influence, when done under the mantle of

command authority. /d. at 394; see also United States v.

Dykes, 38 M.J. 270 (1993); cf. United States v. Stombaugh, 40

M.J. 208, 212-213 (C.M.A. 1994), cert. denied, __U.S. —,

115 S.Ct. 1113 (1995) (witness harassment by members of the

unofficial “Junior Officers Protection Association” was not

under mantle of command authority).

The burden of producing evidence of unlawful command

influence is on the appellant. Stombaugh, 40 M.J. at 213.

“(T]he threshold triggering further inquiry should be low, but

it must be more than a bare allegation or mere speculation.”

United States v. Johnston, 39 M.J. 242, 244 (C.M.A. 1994).

“[1}here must be something more than an appearance of evil

to justify action by an appellate court in a particular case.

‘Proof of [command influence] in the air, so to speak, will not

do.””’ United States v. Allen, 33 M.J. 209, 212 (1991), cert.

denied, — U.S. —, 112 S.Ct. 1473, 117 L.Ed.2d 617 (1992).

To carry this burden of production,

33a

. .. an appellant must (1) “allege [ | sufficient facts

which, if true, constitute unlawful command

influence”; (2) show that the proceedings were

unfair; and (3) show that the unlawful command

influence was the proximate cause of that

unfairness.... The same three-pronged analysis

would apply to an allegation of unlawful

interference with access to witnesses.

Stombaugh, 40 M.J. at 213 (quoting United States v. Levite,

25 M.J. 334, 341 (C.M.A. 1987) (Cox, J., concurring)).

Once an appellant satisfies his burden of production, the

burden of proof is on the government to disprove the

allegation. Stombaugh, 40 M.J. at 213-214. We must then be

“persuaded beyond a reasonable doubt that the findings and

sentence have not been affected by the command influence.”

Thomas, 22 M.J. at 394; accord Stombaugh, 40 M.J. at 214.

If a command influence issue has been addressed at trial,

we will defer to the military judge’s findings of fact, unless

they are clearly erroneous. See United States v. Wallace, 39

M.J. 284, 286 (C.M.A. 1994). However, whether “unlawful

command influence” flows from those facts is a question of

law, which we review de novo. Id.

C. Decision

The appellant has carried his burden of production as to

the first prong of the Levite-Stombaugh test. He introduced the

orders from Colonel Rust and Major Biankini, and testified

the orders prevented him from personally contacting potential

witnesses. He also produced testimony from two Contracting

NCOs to the effect that the atmosphere in the office was

poisoned against the appellant, and they feared adverse career

consequences if they helped him. Finally, the Shaw defense

paralegal’s clash with the first sergeant over appointment

34a

procedures might be argued as command interference with

access to witnesses. In denying the appellant’s motion to

dismiss, the military judge found “no evidence of command

influence, either actual or perceived.” We do not agree with

this conclusion. Viewed in the light most favorable to the

appellant, the evidence is sufficient to cross the low threshold

for satisfying the first prong of the Levite-Stombaugh

production test—if the appellant’s factual allegations were

true, they would constitute unlawful command influence.

However, the appellant has failed to carry his burden of

producing evidence as to the second Levite-Stombaugh

prong, that is, to show that the proceedings were unfair. The

record shows quite the contrary. Clearly, neither Colonel

Rust’s actions nor his “no contact” order had any effect at all

on the appellant’s access to witnesses. The evidence shows

the appellant was whisked away from the U.A.E. to Riyadh,

Saudi Arabia, soon after his AFOSI interrogation had been

completed. After several days stay in Riyadh, the appellant

returned to Shaw. Appellant offered no evidence about what

he could have or would have accomplished in the U.A.E. had

Colonel Rust not issued his “no contact” order. Moreover, the

appellant had unrestricted access to the Air Force Area

Defense Counsel in Riyadh, and did meet with him. Colonel

Rust’s order, of course, had no effect on the ability of any

defense attorney to contact potential witnesses. Turning to the

Biankini “no contact” order at Shaw, this order also did not

purport to limit access by the appellant's defense lawyers to

anyone in the Contracting Office. The record is clear that

counsel had such access, despite the defense paralegal’s tiff

with the first sergeant over a single witness’ appointment. On

1 April 1992, the Shaw wing commander rescinded both the

Rust and Biankini orders. At this time, the appellant could

personally contact his former co-workers, apparently subject

only to Major Blanchette’s requirement of that he check in

35a

first with either him or another supervisor. By the appellant's

own admission, he personally contacted everyone at the Shaw

Contracting Office he wanted, except for two civilian

employees who had no firsthand knowledge of any events in

the Gulf. Regarding the allegedly poisoned atmosphere in

Contracting, all witnesses agreed that neither Major

Blanchette nor any other supervisor had said or done anything

to send the message that someone helping the appellant would

suffer harm. The two NCOs who testified they had such a

concern obviously were not deterred from testifying in

support of the appellant’s motion to dismiss. According to the

appellant’s trial defense counsel, the decision to keep a low

evidence profile was motivated by fear of prosecution

rebuttal, and not because character witnesses were

unavailable. As a matter of strategy, the appellant and his

counsel chose to litigate this trial primarily by pretrial

motions intended to exclude as much incriminating evidence

as possible, and then to impeach the weight of that which

went before the members. Appellant executed this strategy

fully and fairly.

Because the appellant has failed to carry his burden of

production as to the second Levite-Stombaugh prong, we need

not reach the third part of that test—whether he produced

evidence that the unlawful command influence was the

proximate cause of the unfairness. Accordingly, we find

beyond a reasonable doubt that, even assuming the appellant’s

factual allegations are true, neither the findings nor the

sentence of his court-martial were tainted by unlawful

command influence.

iil. APPELLANT’S STATEMENTS TO THE AFOSI

Appellant contends the military judge should have

suppressed his statements to AFOSI agents on two grounds.

First, he claims the agents violated his right to counsel by

36a

continuing interrogation in spite of his request for a lawyer.

Second, he asserts his statements were unlawfully coerced by

a combination of restraint, intimidation, threats, and promises

by AFOSI and Colonel Rust.

A. Background

Appellant was apprehended by Special Agent Pecko and

other AFOSI agents on the afternoon of 6 March 1991, after a

“sting” operation. This operation was designed to record the

appellant on videotape accepting a gold bracelet and money—

both of which having been distinctively marked by AFOSI—

from a U.A.E. vendor, and apprehend the appellant with the

bracelet and money in his possession. The “sting” was not an

unqualified success. The videotape (with sound) shows the

appellant examining a bracelet, asking what the marks (made

by the AFOSI) mean, and trying it on. However, the appellant

ends up giving it back to the vendor. The videotape then

shows the vendor handing something to the appellant, which

he puts in his pocket, but it is impossible to tell what the item

is. However, a search of the appellant incident to his

apprehension just outside the vendor’s shop recovered the

marked money from his pocket. After the apprehension, the

AFOSI drove the appellant to Al Dhafra Air Base. Although

the appellant was not free to go, he was not in handcuffs or

similar physical restraints.

Back at Al Dhafra, Agent Pecko interrogated the

appellant, with the assistance of Special Agent Bland, the rest

of the afternoon and evening of 6 March 1991. Before

beginning the interview, Agent Pecko advised the appellant of

his rights under Article 31, UCMJ,'® and the Fifth

Amendment, including his right to consult with and have an

attorney present during questioning. Appellant waived his

1810 U.S.C. 831 (1988).

37a

rights and agreed to answer questions. Throughout the

remainder of the 6 March questioning, the appellant denied

any wrongdoing and resisted providing any meaningful

information. It was during this stage of the interrogation that

Colonel Rust entered the room and made the remarks

described above. Before speaking to the appellant, however,

Colonel Rust advised him of his Article 31/Fifth Amendment

rights, which the appellant again waived. After Colonel Rust

finished his remarks and left the room, Agents Pecko and

Bland continued the questioning. Agent Pecko broke off the

interrogation at about 2200 hours. Appellant was escorted to a

private room in visiting officers’ quarters, where he spent the

night with a Security Policeman posted outside his door.

Agents Pecko and Bland resumed the interrogation the

following morning, 7 March 1991, at about 0800. Again,

Agent Pecko advised the appellant of his Article 31/Fifth

Amendment rights and, again, the appellant waived them. At

this point, the accounts of the appellant and his AFOSI

interrogators diverge. Appellant claims that, sometime during

the morning of 7 March, he asked for a lawyer. According to

the appellant, Agent Pecko refused to honor the request or

stop the interrogation. Appellant testified Agent Pecko told

him that they did not have time for a lawyer, and offered to let

him meet with Colonel Rust instead. Not surprisingly, Agent

Pecko’s version of these events is quite different. He testified

that the appellant never requested a lawyer, but asked to see

Colonel Rust on his own initiative. Agent Bland corroborates

Agent Pecko’s account. In any event, Agents Pecko and Bland

then took the appellant to see Colonel Rust.

At Colonel Rust’s office, the colonel again advised the

appellant of his Article, 31/Fifth Amendment rights, which the

appellant again waived. Appellant asked to talk to Colonel

Rust someplace else, and the colonel suggested they take a

ride in his vehicle. Here again the accounts differ. According

38a

to the appellant, Colonel Rust implied during their ride that he

would make everything go away if the appellant cooperated

with the AFOSI. Colonel Rust testified that the appellant

became emotional and was worried about his family. The

colonel conceded that he urged the appellant to cooperate with

the AFOSI. However, he denied promising anything in

exchange for the appellant’s cooperation, except fair treatment

and to contact the appellant’s father. After this conversation,

Colonel Rust returned the appellant to the custody of Agents

Pecko and Bland. Agent Pecko reminded the appellant of his

rights, and resumed the questioning. Shortly after this, Special

Agent Lukens replaced Agent Bland as Agent Pecko’s

assistant.

At this point, the appellant began offering specific

information, including admissions that he had taken money

from U.A.E. vendors. However, the appellant maintained he

had not personally accepted bribes and kickbacks. Instead, he

claimed the money was for Omar Hassan. Appellant then

made a handwritten statement. Appellant alleges he merely

wrote down what the AFOSI agents told him to write.

According to Agent Pecko, he reminded the appellant to write

on certain topics he had discussed orally, but he insisted the

handwritten statement had been in the appellant’s own words.

Mr. Lukens (now retired from the Air Force) corroborated

Agent Pecko’s testimony.

When the appellant had completed his handwritten

statement, the agents used it to computer-print a double-

spaced draft. Appellant reviewed the draft, and made

corrections and revisions. The revised draft was then printed

verbatim on a standard AFOSI statement form. This form has

preprinted Article 31/Fifth Amendment rights advice, and

places where a suspect checks off his choices as to assertion

of rights or waiver. Agent Pecko went through these rights

again with the appellant, who then checked off his choices. At

————— ae

39a

this point, the testimony conflicts one more time. All agree the

appellant checked off the “I want a lawyer” block, but then

scratched it out and checked “I do not want a lawyer.”

However, the appellant said he checked “I want a lawyer”

because he wanted one, and only scratched it out because

Agent Pecko told him he could not have one. Agent Pecko

testified the appellant checked “I want a lawyer” as a clerical

mistake, orally reiterated that he did not want a lawyer, and

scratched the mark out for that reason. Once again, Mr.

Lukens supports Agent Pecko’s version. In any case, the

appellant went on to review his printed statement, sign it, and

take an oath to its truth. This completed the interrogation.

At trial, the military judge denied the defense motion to

Suppress the appellant’s oral and written statements,

concluding that the appellant had voluntarily waived his right

to counsel, and there was no evidence of “unlawful

inducement, coercion, or unlawful influence.” Adopting the

factual averments in the prosecution’s brief, she found that the

appellant had not requested a lawyer on 7 March, but had

asked to see Colonel Rust, and that the appellant’s mark at the

“I want a lawyer” block on his written statement had been a

clerical error. In addition, the military judge found that

Colonel Rust had, on 6 March 1991, been “very upset and

told the accused that he was very disappointed in him and

could spit in his face . . . [and] also advised the accused that

he was known downtown as a ‘black Jew.’ Further, on 7

March 1991, [Colonel Rust] advised the accused that if the

accused cooperated with the OSI, he would call the accused’s

father and explain the situation and make sure that the

accused was treated fairly.” The military judge found that the

“spit in your face” remark was not a threat, and did not make

the accused’s later statements involuntary. She also adopted

the prosecution’s factual averments concerning the conditions

of the interrogation into her findings and, based on the totality

40a

of the circumstances, concluded the appellant’s statements

were voluntary.

B. General Rules and Standards of Review.

An involuntary statement may not be admitted in

evidence against an accused. Mil.R.Evid. 304(a). A statement

is “involuntary” if it is obtained in violation of the Fifth

Amendment or Article 31, UCMJ, or by coercion, unlawful

influence, or unlawful inducement. Mil.R.Evid. 304(c)(3).

When a suspect asks for a lawyer, the Fifth Amendment

requires that the questioning immediately cease. Edwards v.

Arizona, 451 U.S. 477 (1981); Mil.R.Evid. 305(f). Promises

from superiors or law enforcement personnel are unlawful

inducement, if the promises are such that the suspect’s

ensuing decision to speak is not a “free and unconstrained

choice.” United States v. Lonetree, 35 M.J. 396, 401 (C.M.A.

~ 1992), cert. denied, — U.S. —, 113 S. Ct. 1813 (1993);

United States v. Churnovic, 22 M.J. 401, 409 (C.M.A. 1986)

(Cox, J., concurring). See also United States v. Dalrymple, 14

U.S.C.M.A. 307, 34 C.M.R. 87, 90 (1963). Whether an

accused made such a free and unconstrained choice is

determined by considering the totality of the circumstances.

Arizona v. Fulminante, 499 U.S. 279 (1991); Lonetree, 35

M.J. at 400.

When an accused claims an interrogation violated his

rights to counsel, we review the military judge’s ruling

applying an abuse of discretion standard. United States v.

McLaren, 38 M.J. 112, 115 (C.M.A. 1993), cert. denied, —

U.S. —, 114 S.Ct. 1056 (1994). However, if an accused

contends his statement was the product of coercive police

activity, we will review that issue de novo. Fulminante, 499

U.S. at 286-287; United States v. Moore, 38 M.J. 644, 647

(A.F.C.M.R. 1993). In applying either standard, we will defer

to the military judge’s findings of fact unless they are clearly

4la

erroneous. United States v. French, 38 M.J. 420, 424-425

(C.M.A. 1993), cert. denied, __ U. S. __, 114 S.Ct. 1056

(1994).

C. Decision

The military judge found the appellant had not requested

a lawyer at any time during his AFOSI interrogation. These

findings are not clearly erroneous. We find the military judge

did not abuse her discretion in denying the motion to suppress

on that ground.

The military judge’s factual findings concerning the

alleged coercion are also not clearly erroneous, and we accept

them. At first blush, these facts are a little troubling. In

particular, we are concerned about the length of the

interrogation and the role of Colonel Rust.

The length of an interrogation is an important factor in

whether a statement is voluntary. See United States vy.

Houston, 15 U.S.C.M.A. 239, 35 C.M.R. 211, 217 (1965):

United States v. Rogers, 14 U.S.C.M.A. 570, 34 C.M.R. 350,

374 (1964) (Ferguson, J., concurring in part and dissenting in

part); United States v. Tanner, 14 U.S.C.M.A 447, 34 C.MLR.

227, 230 (1964). However, lengthy questioning does not per

se undermine the voluntariness of a statement, if the

conditions of the interview otherwise show the statement was

the product of free and unconstrained choice. See United

States v. Robinson, 21 M.J. 937, 944-945 (A.F.C.M.R. 1986),

aff'd, 26 M.J. 361, 366-367 (C.M.A. 1988), cert. denied, 488

U.S. 1005 (1989). In this regard, the record and the military

-jJudge’s findings reflect a businesslike setting, periodic breaks

for necessities and a meal, and an overnight break where the

appellant had an opportunity for a full night’s sleep in a

comfortable room.

42a

We are not impressed with Colonel Rust’s contributions

to the appellant’s interrogation on 6 March 1991. The record

is unclear how and why Colonel Rust ended up inside the

interview room. If this was AFOSI’s idea of an interrogation

technique, it was a bad one. If it was Colonel Rust’s notion,

Agent Pecko should have put a stop to it.'!? We defer to the

military judge’s findings that Colonel Rust’s “spit in your

face” and “black Jew” comments were not threats.

Nonetheless, they unquestionably were in poor judgement

and, coming from a senior officer, no doubt intimidating. We

note, however, that Colonel Rust did advise the appellant of

his Article 31/Fifth Amendment rights before his speech, and

the appellant waived those rights. Also, Colonel Rust’s

involvement on 6 March was brief, and the appellant’s

eventual decision to provide information to AFOSI was

separated by many hours, including an overnight break.

We view Colonel Rust’s actions on 7 March 1991 in a

more sympathetic light. As found by the military judge, it was

the appellant who wanted to see Colonel Rust and suggested

they go someplace else to talk. Colonel Rust advised the

appellant of his rights before their conversation and, once

again, the appellant waived his rights. As found by the

military judge, the only promises Colonel Rust made to the

appellant were for fair treatment and to call the appellant’s

father. These were innocuous promises and, by themselves,

did not affect the voluntariness of the appellant’s subsequent

statements. See, e.g., Rogers, 34 C.M.R. at 363-364 (promise’

to check out other leads); United States v. Askew, 14

'°This incident illustrates why we have an independent Air Force Office of

Special Investigations, staffed with full-time, trained criminal

investigators. When AFOSI agents discard this autonomy and allow local

commanders (or other senior officers like Colonel Rust) to inject

themselves into their investigations, issues such as those presented here

are inevitable.

43a

U.S.C.M.A. 257, 34 C.M.R. 37, 42 (1963) (dictum) (promise

to check out ordinary lead); United States v. St. Clair, 19 M.J.

833 (N.M.C.M.R. 1984) (promise to contact ship’s legal

officer and ask if accused would be restricted). Compare

Lonetree (promise of confidentiality was unlawful

inducement); Churnovic (promise of no disciplinary action

was unlawful inducement); United States v. Handsome, 21

U.S.C.M.A. 330, 45 C.M.R. 104 (1972) (implied promise of

leniency was unlawful inducement); Dalrymple (promise of

immunity was unlawful inducement); Askew (promise not to

question wife raised issue of voluntariness).

Considering the totality of the circumstances, we agree

with the military judge that the appellant’s statements to the

AFOSI were voluntary. Appellant had been fully advised of

his rights, and affirmatively waived them, four times before

he began his incriminating statements. In addition, he had

been “reminded” of his rights another time. Before he signed

and swore to his formal written “tatement, he was fully

advised and waived his rights again. In comparison to such

constant reinforcement of the appellant’s rights, the length of

the questioning and actions of Colonel Rust were

insignificant. Moreover, the record portrays the appellant as a

“cagey” operator (or at least someone who perceived himself

to be so) who decided he would try to talk his way out of

trouble. He willingly gave up his rights to “fence” with the

AFOSI.Over the hours of questioning, the agents confronted

the appellant with the evidence against him, piece by piece, to

include playing the 6 March surveillance videotape. Appellant

still chose to continue the duel, despite every opportunity to

stop the interrogation. Eventually, the appellant decided he

would acknowledge taking money from U.A.E. vendors, but

without admitting he was taking it for himself. As the

appellant now undoubtedly realizes, these were all unwise

choices. Nonetheless, they were his free and unconstrained

44a

choices. The military judge did not err in denying the motion

to suppress.

IV. UNLAWFUL PRETRIAL PUNISHMENT

A. Background

Many of the facts supporting the appellant’s pretrial

punishment claim are in our discussion of the command

influence issue. See section II.A., infra. Appellant argues

these actions were intended to punish him for the offenses he

allegedly had committed and, in the case of Major Biankini’s

reassignment of him to the Correctional Custody and

Transition Flight (CC&T-Flight) program, also as retaliation

for revealing unfavorable information about the major to his

attorneys.

The prosecution countered with testimony that neither

Colonel Rust nor Major Biankini took action with punitive

intent, but for legitimate command purposes. Concerning

Colonel Rust’s U.A.E. “no contact” order, the stated purposes

of that order were to preserve the integrity of the pending

investigation and prevent an international incident in the

sensitive period following the Gulf War. Regarding Major

Biankini’s “no contact” order, Major Blanchette testified that,

considering the nature of the investigation, it was

inappropriate for the appellant to continue his contracting

duties, and that the appellant’s contact with Contracting

Office personnel was having a deleterious effect. Concerning

the appellant’s reassignment to CC&T-Flight, the Shaw staff

judge advocate (Lt Colonel Winborn) testified he advised

Major Biankini to reassign the appellant after she informed

him that the appellant had been disruptive in the orderly

room. However, Lt Colonel Winborn provided no details how

the appellant had been disruptive, or why CC&T-Flight had

been selected as the appellant’s new duty section. Major

45a

Biankini testified by way of stipulation, and did not appear in

person. Her stipulated testimony addressed primarily the

chronology of events. It did not directly rebut the appellant’s

retaliation claim, but includes the statement that “At that time

lof the appellant’s reassignment from the orderly room], I did

not have enough work to keep SSgt Washington busy.”

The record contains no indication that, before the Article

32 investigation in March 1992, the appellant had ever

formally complained about the conditions of his duties or any

other aspect of Colonel Rust’s or Major Biankini’s orders.

During oral argument of the command influence issue before

this Court, the appellant’s counsel conceded his client had

made no such complaints.

The defense raised the issue of unlawful pretrial

punishment at trial in a motion to dismiss. The military judge

denied the motion, finding that:

. . . [the] housekeeping tasks around the base . . .,

while not glamorous, certainly did not rise to the

level of demeaning or degrading. Nor can I fault the

accused’s commanders for taking him out of his

work section, considering the nature of the alleged

misconduct. The orders were in furtherance of the

valid military purpose of maintaining good order

and discipline in the unit and to prevent obstruction

of justice.

B. General Rules and Standards of Review

In United States v. Palmiter, 20 M.J. 90 (C.M.A. 1985),

the Court of Military Appeals set out the process for

evaluating alleged Article 13 violations:

[T}he question of whether particular conditions

amount to punishment before trial is a matter of

intent, which is determined by examining the

46a

purposes served by the restriction or condition, and

whether such purposes are “reasonably related to a

legitimate governmental objective.” [Citation

omitted].

“[I}]n the absence of a showing of intent to punish, a

court must look to see if a particular restriction or

condition, which may on its face appear to be

punishment, is instead but an incident of a

legitimate nonpunitive governmental objective.”

20 M.J. at 95 (quoting Bell v. Wolfish, 441 U.S. 520, 539

(1979)). Therefore, we will apply a two-part test to the facts

of this case:

1. Did Colonel Rust or Major Biankini intend to punish

the appellant by either “no contact” order, or by the

reassignment to CC&T-Flight?

2. If there was no punitive intent, did these orders and

the reassignment further a legitimate nonpunitive

governmental objective?

In addressing the second prong, we are also mindful that “the

reasonableness of the conduct designed to secure the

nonpunitive government objective must also be considered.”

United States v. Cruz, 25 M.J. 326, 331 n.4 (C.M.A. 1987).

See also Palmiter, 20 M.J. at 99-100 (Everett, C. J.,

concurring).

The parties have spent much effort arguing the legality of

Colonel Rust’s and Major Biankini’s “no contact” orders. It

should be clear from the Palmiter rule that the abstract legality

of these orders is not a threshold issue. If orders or other

actions independently violate law or regulation, that may be a

reason to infer a punitive intent or reject an asserted

nonpunitive objective. See United States v. Villamil-Perez, 32

M.J. 341, 343 (C.M.A. 1991) (posting of incident report on

bulletin board violated Army regulation). However, an

Part ea ar een ee ee

47a

otherwise lawful action still violates Article 13, if it is

intended as punishment or does not reasonably relate to a

legitimate nonpunitive governmental objective.

Issues of pretrial punishment are not waived, either

expressly before trial or by failure to raise them at trial. See

Cruz, 25 M.J. at 330-331 (failure to raise); Palmiter, 20 M.J.

at 96 (express pretrial “waiver”’). However, a

servicemember’s failure to complain of conditions before trial

is “strong evidence” that the member has not been illegally

punished. Palmiter, 20 M.J. at 97. See also United States v.

Huffman, 40 M.J. 225, 227 (C.M.A. 1994); United States v.

James, 28 M.J. 214, 216 n.4 (C.M.A. 1989).

Neither the Court of Appeals for the Armed Forces nor

this Court has formally stated the standard of review for trial

rulings on Article 13 issues. The government suggests our

standard of review should be de novo. We agree. In our view,

the non-waivable nature of Article 13 violations is more

consistent with a de novo review than with an abuse of

discretion standard. But see United States v. Phillips, 38 M.J.

641, 642 (A.C.M.R. 1993) (abuse of discretion standard

applied to Article 13 ruling). As with other types of trial

rulings, we will defer to the findings of fact by the military

judge unless they are clearly erroneous. United States v.

Burris, 21 M.J. 140, 144 (C.M.A. 1985). However, as with

unlawful command influence issues, whether unlawful pretrial

punishment flows from those facts is a question of law for this

Court.

C. Decision

We can dispose of Colonel Rust’s U.A.E. “no contact”

order quickly. There is no evidence of any punitive intent. The

intended purposes of the order—to avoid compromise of an

ongoing investigation and a potential international incident in

the aftermath of the Gulf War—were obviously legitimate

48a

nonpunitive governmental objectives. Colonel Rust’s order

reasonably related to those objectives. Therefore, we find the

appellant was not subjected to unlawful pretrial punishment

while in the U.A.E. or Saudi Arabia.

Major Biankini’s “no contact” order and the

reassignment to CC&T-Flight at Shaw are another matter.

There is no satisfactory explanation in the record for the order

extending beyond official contact to social activity. There are

no specific examples of “disruptive” acts by the appellant, or

an explanation why they required his reassignment instead of

appropriate discipline. The prosecution presented no evidence

explaining how CC&T-Flight was selected as the appellant’s

new duty section, instead of another place not generally

identified with punishment or where the appellant could

exercise responsibilities more in line with his grade. We are

especially concerned with the prosecution’s failure to rebut

the appellant’s testimony that Major Biankini had reassigned

him after learning he had passed on embarrassing information

about her to his defense counsel.

From these facts, we infer that Major Biankini’s actions

were at least partially motivated by a desire to punish the

appellant. We agree with the military judge that the

appellant’s “weeds and seeds” duties were not per se

demeaning or degrading, but that is not the test. Under

Palmiter, if duties are intended as punishment, then an Article

13 violation follows, even if the work is not inherently

distasteful.

Even if we could get past the intent prong of the

Palmiter test, we do not see the CC&T-Flight assignment as

reasonably serving a legitimate nonpunitive purpose, at least

without an explanation of why other duties were not available.

Moreover, the record reveals no legitimate nonpunitive

purpose for an order preventing all association between the

appellant and his former co-workers, even in social settings.

49a

We are mindful that, before his Article 32 investigation,

the appellant never formally complained about his working

conditions and the breadth of the “no contact” order. We

acknowledge this is normally strong evidence against a

finding of unlawful pretrial punishment. However, we will not

resolve this issue against an appellant, based solely on his

failure to complain when there is a clear inference of punitive

intent, or when the evidence discloses no legitimate

nonpunitive purpose that is reasonably served by the pretrial

conditions.

We find the appellant was subjected to pretrial

punishment in violation of Article 13, UCMJ, from 10 July

1991 to 1 April 1992 (the date the Shaw wing commander

rescinded the “no contact” orders). Appellant was still

assigned to CC&T-Flight on 1 April 1992. However, the

record shows that, by this date, the appellant’s commanders

had allowed him the flexibility to work more or less full time

with his attorneys in preparing his defense. We conclude,

therefore, that the appellant’s unlawful pretrial punishment

ended on | April 1992.

At trial, the appellant moved for dismissal based on this

Article 13 violation. This was not the correct remedy, as

unlawful pretrial punishment only affects an accused’s

sentence, if he is convicted. See Cruz, 25 M.J. at 331.

Appellant now asks for sentence relief, first in the form of

setting aside the sentence and ordering a rehearing, and in the

alternative for a two-year credit to the appellant’s

confinement. We do not believe a rehearing is warranted, and

will address the appropriate remedy ourselves. See United

States v. Smith, 17 M.J. 1089, 1091 (A.F.C.M.R. 1983). In our

decretal paragraph, we will reduce the appellant’s

confinement one day for every one of the 266 days of

unlawful pretrial punishment.

50a

V. REMAINING ISSUES AND DECISION

Appellant’s remaining assignments of error are without

merit. We affirm all findings of guilty. Because of the Article

13 violation, we affirm only so much of the approved

sentence that extends to a bad-conduct discharge, confinement

for 9 years and 99 days, forfeiture of $250 per month for 10

years, reduction to E-1, and a fine of $70,000.

The findings and sentence, as modified, are correct in

law and fact. Accordingly, they are

AFFIRMED.

Senior Judge HEIMBURG and Judge PEARSON concur.

OFFICIAL

LAURA L. GREEN

Clerk of Court

S5la

APPENDIX C

Relevant Extract of the Testimony of Lt Colonel Winborn

as Contained at Record 369-370, 371, 373-377

Q: So colonel, what was the advice you gave the convening

authority? |

A: ... Based on the experience I’ve had in the—in the

middle east, I was stationed in Saudia [sic] Arabia for two and

a half years, and I’m familiar with—over there they called it

Bak Shish or kickbacks. The—it really is a very simple case

when it comes down to it.

It’s unlike cases we’ve had in the past where OSI

investigators have been appointed to — help the defense. This

is a very simple case. It’s a question of fact with one person’s

word against another. There’ll be no documentary evidence.

There won’t be an audit trail in any way. It will be simply one

witness’ word against another.

oe Oe

A: ... in the letter requesting that an OSI investigator be

appointed, the defense cited that there was a need for

introductions. I didn’t feel that that was sufficient reason for

an OSI investigator because the people in the middle east,

many of them speak English. It’s not an alien culture. An

American can—can fit in very well in the middle east and...

a Se

Q: Did you think it was important that the defense be able to

do background checks on the witnesses that the government

proposed to use?

ee ee

A: It’s a—it is very important to understand the background

of your witness, but the background check that the defense

52a

requested, they never outlined what background check they

wanted to perform.

* * * *

Q: Colonel, you asked for a more detailed explanation and on

6 April 1992, Captain Horn gave you that detailed

explanation, and you said, if | understand correctly now, the

first thing is you didn’t understand what she meant by the fact

of background checks?

A: I—I did not know how you defined as a background

check.

Q: Well then how could you intelligently decide whether that

was a good reason if you didn’t know what she meant?

A: Mister Beale, I think you should move beyond

background check and. .

Q: No sir, ’'m not through with the background check yet,

colonel. Now, I want to keep talking about that, if you don’t

mind.

A: Could you intelligently decide . . .

TC: Objection to the characterization, making a decision is

that individual’s decision.

MJ: I'll overrule the objection.

CDC: Thank you, your Honor.

Q: Colonel, if you did not understand the necessity of an OSI

investigator, the basis for the request, how could you

intelligently inform the convening authority to deny that

request?

A: I did understand the basis for your request.

Q: Okay. Well, then background check. You just testified a

minute ago, you’re under oath, that you didn’t understand

what background check meant.

53a

A: I did not understand what you meant by background

check.

Q: Okay, did you bother to ask the defense what you all mean

by this?

A: No.

* * * *

Q: In the request, colonel, it was specifically put in there

that—quote—the investigator will be utilized to research the

paper trail of each contract and to track funds paid to each

contractor—end quote. Did you understand that language?

A: Yes I did.

Q: And did you think that that was not essential to a case like

this?

A: It—it’s essential to understand the contracting process and

the audit trail . . .

Q: Well, what about.

A: ... but that is something that the defense counsel, the—A-

D-A [Area Defense Administrator, i.e. defense paralegal]

resources available to the defense can do that. In addition . . .

Q: What resources are available to the A-D-A?

A: In addition, the defense counsel has the resources of OSI

available to them.

Q: What—what is that. I’m sorry. Would you tell me what

that is? What access does A-D-A have that he can go and

order an OSI agent to come and work on the case?

A: The A-D-A cannot order an OSI. . .

Q: Well how—how does the A-D-A get one? Has to go

through you and the convening authority. Isn’t that true?

Isn’t that what the Manual provides?

A: Mister Beale, I think you’re misleading the court. If you

want to go over and look at contractual documents, you can

54a

do that at any time. If you want Mister Pecko to review

contractual documents for you, he can review those

contractual documents at any time. The...

Q: Have you ever been a trial lawyer?

__ ee Tee *

TC: Objection, relevance.

* * * *

MJ: What is the relevance?

Se eee,

CDC: The relevance is that he’s telling us that he wants us to

use the government investigator as our investigator, and if

he’s a trial lawyer, and he knows anything about trials, you

don’t use the other side to investigate your case.

MJ: Ill sustain the objection.

Q: Is it your suggestion that the defense should have used

Agent Pecko as their investigator?

A: That’s not my suggestion that you use Agent Pecko.

Q: Well, what are you saying?

A: My experience in cases like this in the past through my

experience in Saudia [sic] Arabia and through extensive

discussions with both O-S-I and C-I-D on similar cases in the

middle east is that there’s no paper trail, no audit trail, there

would absolutely be no documentary evidence within a

company showing payment of a kickback. It will be simply

one person’s word against another.

Q: In this particular case, Sergeant Washington is alleged to

have been involved in numerous contracting activities while

in the U.A. E., wasn’t he?

55a

A: Yes.

Q: And that contracting activity would have generated

paperwork over there in the U.A. E., would it not?

A: Yes.

Q: Do you know, of your own personal knowledge, what

paperwork the contractors, the ones we—that they did

business with, do you know what paperwork they have?

A: No.

Q: And if they had paperwork dealing—pertaining to their

dealings with Sergeant Washington, that could be important to

Sergeant Washington’s defense, could it not? Could.

A: It could.

Record 369-370, 371, 373-377.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.