# Petition for Writ of Certiorari — Washington v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1998
- **Citation:** 522 U.S. 1051

## Text

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
v.

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,

ee

iV

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

10

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.”

1]

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—

12

“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.

13

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

14

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,

15

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

16

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.

17

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-

18

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.

, |

19

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

20

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)

21

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

22

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.

23

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

24

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

25

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

la

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

2a

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

3a

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:

4a

I

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).

ll

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

Sa

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

6a

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

7a

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

8a

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

Ya

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).

II

[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.

ee

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.
Il

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.

(c) Depositions 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.

(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
v.

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.

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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

I

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1780%3A1. Public record. Not legal advice.