Petition for Writ of Certiorari — Swift v. United States
Supreme Court brief2001
Ask Donna
What actually matters in this document.
Text
Supreme Court, UG
(/) FILED
001015 De 222008
IN THE
Supreme Court of the United States
StaFF SERGEANT JOHN B. SwIFT,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Armed Forces
PETITION FOR A WRIT OF CERTIORARI
KYLE R. JACOBSON
CAPTAIN, UNITED STATES AIR FORCE
APPELLATE DEFENSE COUNSEL
Counsel of Record
STEPHEN P. KELLY
MaJsor, UNITED STATES AIR FORCE
Appellate Defense Counsel
Counsel for Petitioner
AIR Force LEGAL SERVICES AGENCY
APPELLATE DEFENSE DIVISION
112 LUKE AVENUE, SUITE 343
BOLLING AFB,
DISTRICT OF COLUMBIA 20332
(202) 767-1562
—
QUESTIONS PRESENTED
I.
Whether petitioner’s act of producing an incriminating
document in response to a direct order by a military superior
had a compelled testimonial aspect to which his Fifth
Amendment privilege against self-incrimination applied
where the act of production itself served as the basis for his
false statement conviction, proof of which required an intent
to deceive.
Il.
Whether the “required records” exception to the Fifth
Amendment extends to records not specifically required by
regulation to be produced nor required by regulation to be
maintained.
IIT.
Whether the United States Court of Appeals for the Armed
Forces exceeded its authority under Article 67(c), U.C.MJ.,
10 U.S.C. § 867(c), by assessing the appropriateness of
petitioner’s sentence after setting aside his conviction in part.
TABLE OF CONTENTS
TABLE OF AUTHORITIES
OPINIONS BELOW
JURISDICTION
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
APPENDIX A
(Opinion of the United States Court of Appeals
for the Armed Forces)
APPENDIX B
(Order of the United States Court of Appeals
for the Armed Forces denying petitioner’s
Petition for Reconsideration)
APPENDIX C
{Opinion of the United States Air Force Court
of Criminal Appeals)
iv
TABLE OF AUTHORITIES
Constitutional Provisions:
yp OF PE OTTT Por TT re eee 1,10
Supreme Court Cases:
Baltimore City Department of Social Services v.
Bouknight, 493 U.S. 549 (1990) ............ 15, 16
Doe v. United States, 487 U.S. 201 (1988) ........ 12
Fisher v. United States, 425 U.S. 391 (1976) ... 10,11
United States v. Hubbell, 530 U.S. 27, 120
hs Ss SE sia ot een can 10, 11, 12-44
United States v. Shapiro, 335 U.S. 1 (1948) ...... 13
Federal Circuit Cases:
In re Dr. John Doe, 711 F.2d 1187
CREE DD. cs ovcckudes@ulte ete Menaben 13, 14
United States v. Pimienta-Redondo, 874 F.2d
9 (1st Cir.), cert. denied, 493 U.S. 890 (1989) ... 17
Military Cases:
United States v. Christopher, 32
CREE Be CHU vnc acdewscdenoccdbacsat 16, 17
United States v. Dukes, 5 M.J. 71
Rs TUE ex ed dccmeaaadeebanedennwiien 17
United States v. Swift, 53 M.J. 439 (2000) .... passim
Federal Statutes:
Article 31, U.C.M.J., 10 U.S.C. § 831 ....... passim
Article 32, U.C.MJ., 10 U.S.C. § 832 ........... 9
Article 38, U.C.M.J., 10 U.S.C. § 838 ........... 10
Article 66, U.C.M.J., 10 U.S.C. § 866 ........... 17
Article 67, U.C.M.J., 10 U.S.C. § 867.......... 1, 16
Article 91, U.C.M.J., 10 U.S.C. § 891 ........... 11
Article 107, U.C.M.J., 10 U.S.C. § 907......... 2, 12
Article 134, U.C.M.J., 10 U.S.C. § 984 .......... 2
SB CW IRAG. FEE. 90k 6 bn a Feceesdndessadeeess 14
Vv
Federal Statutes:—Continued
28 U.S.C. § 1259(3)
Federal Regulations:
IRS Income Tax Records Rule,
26 C.F.R. 1.6001-1 (1982)
Section 14, Maximum Price Regulation 426,
8 Fed. Reg. 9546 (1943)
Air Force Instruction (AFI) 36-3001, Issuing
and Controlling Identification (ID) Cards,
01 Jan 96
The petitioner, Staff Sergeant John B. Swift,
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 August 31, 2000,
rendered final by that court’s denial of his petition for
reconsideration on September 28, 2000.
OPINIONS BELOW
The order and judgment of the United States Court of
Appeals for the Armed Forces, reported at United States v.
Swift, 53 M.J. 439 (2000), is located at Appendix A. The order
of the United States Court of Appeals for the Armed Force
denying petitioner's petition for reconsideration is located at
Appendix B. The unpublished opinion of the United States
Air Force Court of Criminal Appeals (No. ACM 32447,
December 4, 1997) is located at Appendix C.
JURISDICTION
The judgment of the United States Court of Appeals for
the Armed Forces was entered on August 31, 2000, and
petitioner’s petition for reconsideration was denied on
September 28, 2000. The jurisdiction of this Court is invoked
under 28 U.S.C. § 1259(8) and 10 U.S.C. § 867(a)(3).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The Fifth Amendment to the Constitution of the United
States provides, in relevant part, “[nJo person . . . shall be
compelled in any criminal case to be a witness against himself —
Article 67(c), U.C.M.J., 10 U.S.C. § 867(c), provides that
“(t]he Court of Appeals for the Armed Forces shall take
action only with respect to matters of law.”
:
'
2
STATEMENT OF THE CASE
Procedural History:
On September 17 and 18, 1996, the petitioner was tried
by a general court-martial consisting of officer members
convened at Shaw Air Force Base, South Carolina. Contrary
to his pleas, the petitioner was found guilty of two
specifications of making false official statements
(Specifications 1 and 2 of Charge I) in violation of Article 107,
Uniform Code of Military Justice [hereinafter cited as
U.C.M.J.], 10 U.S.C. § 907, as well as two specifications of
uttering worthless checks by dishonorably failing to maintain
sufficient funds, one specification of bigamy, and one
specification of obstruction of justice, all in violation of
Article 134, U.C.M.J., 10 U.S.C. § 934. Consistent with his
plea, he was also found guilty of an additional specification of
making a false official statement (Specification 3 of Charge I),
in violation of Article 107, U.C.M.J., 10 U.S.C. § 907. He was
sentenced to be discharged with a bad conduct discharge and
to be reduced to the pay grade of E-1 (airman basic).
The convening authority approved the sentence as
adjudged on November 20, 1996. On December 4, 1997, the
Air Force Court of Criminal Appeals affirmed both the
findings and sentence and thereby denied relief sought by the
petitioner. (Appendix C).
On September 30, 1998, the United States Court of
Appeals for the Armed Forces granted review on the
following issue:
WHETHER THE MILITARY JUDGE ERRED IN
FAILING TO SUPPRESS STATEMENTS THE
APPELLANT MADE TO HIS FIRST SERGEANT
AFTER HAVING BEEN SUBJECTED TO
REPEATED AND PERSISTENT QUESTIONING
BY HIS FIRST SERGEANT WITHOUT HAVING
BEEN FIRST ADVISED OF HIS RIGHTS
UNDER ARTICLE 31, UCMJ.
This issue was argued before the United States Court of
Appeals for the Armed Forces on March 9, 1999. The court
3
issued its decision on August 31, 2000, reversing the decision
of the Air Force Court of Criminal Appeals as to
Specification 1 of Charge I but affirming the decision as to
Specification 2 of Charge I, thus denying relief to petitioner
as to his conviction under Specification 2. United States v.
Swift, 53 M.J. 489 (2000). The United States Court of
Appeals for the Armed Forces affirmed the sentence without
remanding the case for further proceedings. The first two
questions presented in this petition are based on the issue
granted by the United States Court of Appeals for the
Armed Forces. The last question presented springs from the
action of the United States Court of Appeals for the Armed
Forces in assessing the appropriateness of the sentence in
the case.
Statement of Facts:
- At the time of the offenses, Staff Sergeant (SSgt) John
B. Swift was a jet engine mechanic assigned to the 20th
Component Repair Squadron at Shaw Air Force Base (AFB),
South Carolina. (Prosecution Ex. 16). His first sergeant,
Master Sergeant (MSgt) George Vernoski, had served on
active duty for twenty-two years and had been a first
sergeant (a senior enlisted command representative) for the
last seven of those years (R. at 28).
On Friday, March 8, 1996, MSgt Vernoski learned that a
Jacqueline Swift had called the squadron relating that earlier
that morning a woman who identified herself as “Suzanne
Swift” called her. (R. at 10). The gist of the conversation was
that “Suzanne” told Jacqueline she was married to SSgt
Swift and that Jacqueline was not. (R. at 10, 121). Jacqueline
Swift related that Suzanne told her that she (Jacqueline) had
been divorced since 1993 and that Suzanne had.
documentation to that effect from Pike County, Kentucky.
Appellate Ex. II.
To the best of her knowledge Jacqueline Swift believed
she was still married to SSgt Swift and had not been
divorced. (R. at 10). Among other things, MSgt Vernoski
learned that Jacqueline Swift had called the Pike County
courthouse, learning that there was no record of a divorce on
+
file, (R. at 19, 22), and that Jacqueline Swift wanted to press
charges for bigamy if SSgt Swift had in fact married a second
wife. (R. at 18).
MSgt Vernoski retrieved SSgt Swift’s unit mobility
folder and examined his emergency data card, on which
Jacqueline Swift was listed as his wife. (R. at 10). MSgt
Vernoski also went to the Military Personnel Flight (MPF) to
examine SSgt Swift’s personnel records to see whom he
claimed as his wife on his Defense Enrollment Eligibility
Reporting System (DEERS)' enrollment form. (R. at 10, 19).
He learned that a “Suzanne” Swift was listed as his wife in
DEERS and that Jacqueline Swift had been disenrolled. (R.
at 10-11). The MPF clerk told them that a military member
could change this information by presenting a copy of a
divorce decree. (R. at 11). Air Force Instruction (AFI) 36-
3001, Issuing and Controlling Identification (ID) Cards, 01
Jan 96 (Petition for Reconsideration, Appendix), in force at
the time of SSgt Swift’s offenses, required an Air Force
member (or “sponsor”) to provide “the documentation
necessary to terminate DEERS for dependents no longer
eligible for benefits and privileges.” Jd. at para. 2.4.4.
However, at trial, a Staff Sergeant (SSgt) Issac, testified that
the documentation a “technician that works in the DEERS
system would have to see, with no exceptions” to disenroll a
former spouse would be a copy of the divorce decree. (R. at
137). Under AFI 36-3001, the only specific documentation
required to be produced (but not maintained) to enroll a new
spouse was a marriage certificate. AFI 36-3001, Table A5.1,
Rule 12. a
MSgt Vernoski also spoke with Major Davis, a judge
advocate assigned to the Shaw AFB legal office. (R. at 19-
21). Major Davis was the chief of military justice and the
deputy staff judge advocate; he was the primary attorney for
military justice matters. (R. at 21); Appellate Ex. I. MSgt
'‘DEERS is the computer system that the Department of Defense uses to
track persons who are eligible for military benefits. See AFI 36-3001,
Attachment 1 (Glossary), at 36.
5
Vernoski’s duties as first sergeant necessarily involved
speaking with Major Davis. The purpose of these discussions
was to keep Major Davis abreast of potential crimes in the
squadron. (R. at 20). MSgt Vernoski explained SSgt Swift’s
situation to Major Davis. (R. at 20). He told Major Davis
what he had discovered on SSgt Swift’s DEERS enrollment
(i.e., that Jacqueline Swift, the woman claiming to still be his
wife, had been disenrolled and a “Suzanne” Swift. substituted
in her place). (R. at 21). MSgt Vernoski spoke to Major
Davis about the matter “because it was unusual.” (R. at 32).
He had “never seen or come across a bigamy case.” (R. at 32)
(emphasis added); see also (R. at 36). Major Davis, in
referring to the events of Friday, March 8, 1996, wrote: “Capt
Beth Myatt and MSgt Vernoski had previously mentioned
the troop and his potential bigamy to me.” Appellate Ex. I
(emphasis added).
Based on the information available to MSgt Vernoski
and Capt Myatt, the squadron’s section commander, these
two command representatives made a decision to confront
SSgt Swift. (R. at 11). They decided to wait until Monday.
(R. at 11). MSgt Vernoski had previously counseled SSgt
Swift in fall of 1995 for failing to support his wife, Jacqueline.
(R. at 27) At that time MSgt Vernoski was under the
impression that SSgt Swift and Jacqueline were still married.
(R. at 27-28, 124). Until Jacqueline Swift’s phone call on
Friday, March 8, 1996, he had not received any other
information that would change his belief that they remained
married. (R. at 28).
On Monday morning, March 11, 1996, Jacqueline Swift .
called the squadron and spoke with MSgt Vernoski directly.
(R. at 11, 22). She told him about calling the Pike County
courthouse (where “Suzanne” had claimed the divorce order
originated) and about speaking to a clerk by the name of
Montrina who was unable to locate a divorce filed on behalf of
SSgt Swift. (R. at 23, 33). She gave MSgt Vernoski the
clerk’s telephone number in the event he wanted to speak to
the clerk himself. (R. at 23). After concluding his
conversation with Jacqueline Swift, MSgt Vernoski called
6
SSgt Swift into his office. (R. at 18). He wanted to “hear his
side of the story.” (R. at 34, 124). He did not advise SSgt
Swift of his rights under Article 31’; however, before
speaking with him, MSgt Vernoski researched the applicable
Manual for Courts-Martial provisions concerning the offense
of bigamy. (R. at 31). He considered bigamy a serious
offense. (R. at 44).
SSet Swift was told of the “allegations” J acqueline Swift
was making (R. at 12, 31). SSgt Swift denied them. (R. at
12). He stated that he divorced Jacqueline in September
1994, (R. at 31), but this conflicted with what MSgt Vernoski
recalled from having counseled SSgt Swift for not supporting
his wife as recently as fall 1995. (R. at 124). SSgt Swift
offered by way of explanation that Jacqueline Swift “may be
trying to get him in trouble.” (R. at 12).
Upon hearing SSgt Swift mention the word “trouble,” it
occurred to MSgt Vernoski to inform SSgt Swift of the
maximum punishment for the offense of bigamy. (R. at 12). He
did this by reading from the Manual for Courts-Martial, which
he “just happened”-to have out. (R. at 12, 24). MSgt Vernoski
“had the book out” because he was “curious;” he “never had a
case like this before.” (R. at 12) (emphasis added). At no time
did he advise SSgt Swift of his Article 31 rights. Id.
According to MSgt Vernoski, the conversation about the
maximum punishment for bigamy came about after SSgt
2Article 31, U.C.MJ., 10 U.S.C. § 831. As noted in Swift:
The primary source of the rights’ warning requirements in military
law is a statutory enactment, not constitutional adjudication. Con-
gress has provided members of the armed forces with a rights’
warning requirement that is broader than the warnings required in a
civilian setting as a matter of constitutional law under Miranda. Arti-
cle 31(b) mandates rights’ warnings for anyone “suspected of an
offense,” whereas Miranda warnings are required only in circum-
stances amounting to “custodial interrogation.”
53 M.J. at 445. In 1967, the United States Court of Military Appeals held
that the warnings required by Miranda v. Arizona, 384 U.S. 436 (1966),
apply to custodial interrogations in the armed forces. United States v. Tem-
pia, 16 U.S.C.M.A. 629, 37 C.M.R. 249 (1967).
7
Swift told him that Jacqueline may be trying to get him into
trouble, “big trouble.” (R. at 39). MSgt Vernoski responded,
“Yeah, well she can get you in trouble, she can get you...[two
years in jail].” (R. at 39). On cross-examination, the
following exchange took place between trial defense counsel
and MSgt Vernoski:
Q: Okay. You go back to your office and before you
talked to Sergeant Swift, before you called him into
your office, you pull out a copy of the Manual for
Courts-Martial, correct?
A: Yes, sir.
Q: And you look up bigamy?
A: I did.
Q: Why did you look up bigamy if you didn’t consider
him a suspect?
A: Because I’ve never had an incident like this in the
years I’ve been a first sergeant, and J was just
curious on what the elements were and—
(R. at 24) (emphasis added).
The conversation continued without SSgt Swift being
advised of his Article 31 rights. MSgt Vernoski reminded
SSgt Swift about a conversation they had in October 1995 at
which time SSgt Swift stated he was still married. (R. at 12).
SSgt Swift said he didn’t remember making that statement.
(R. at 12). MSgt Vernoski requested that SSgt Swift provide
him a copy of the divorce decree. (R. at 12). He responded
that on the advice of his attorney he did not want Jacqueline
to have a copy of the divorce paperwork because it would
give her an advantage in a child custody matter. (R. at 12,
124-5). SSgt Swift told MSgt Vernoski he’d provide a copy of
the divorce decree first thing the next morning. (R. at 12).
MSgt Vernoski directed SSgt Swift to meet with him “first
thing in the morning.” (R. at 12-13).
After this conversation, MSgt Vernoski again went to
the Shaw AFB legal office. (R. at 24). His purpose was to
keep the legal office informed about the case: “I told Major
8
Davis about this case because I normally keep him in the loop
regarding ‘potential crimes’ in the squadron.” Appellate Ex.
III. He told Major Davis about the conversation he had just
had with SSgt Swift. (R. at 24).
The next morning, Tuesday, March 12, SSgt Swift did
not appear at 0730 hours as directed, and MSgt Vernoski
called SSgt Swift’s duty section to inquire into his
whereabouts. (R. at 13). Around 0800 hours, SSgt Swift
arrived at MSgt Vernoski’s office without the paperwork he
had told MSgt Vernoski he would bring. (R. at 13). Again,
MSgt Vernoski did not advise SSgt Swift of his Article 31
rights. SSgt Swift told MSgt Vernoski that his attorney
would probably fax his divorce decree to the squadron by
0900 hours, but definitely no later than lunchtime. (R. at 13).
Later Tuesday afternoon, SSgt Swift again met with
MSgt Vernoski. (R. at 13). Once again, MSgt Vernoski did
not advise SSgt Swift of his Article 31 rights. SSgt Swift
presented MSgt Vernoski with documents that appeared to
MSgt Vernoski to be child custody paperwork. Jd. He told
SSgt Swift, “[t]his is not a divorce decree,” and told SSgt
Swift that he needed to see a divorce decree. Id. SSgt Swift
said he should have a copy by first thing in the morning. /d.
SSgt Swift was supposed to return to MSgt Vernoski’s office
at 0730 hours the next morning. /d.
__ The next morning, Wednesday, March 13th, SSgt Swift
again failed to report at 0730 hours. (K. at 13). Around 0830
hours, MSgt Vernoski called SSgt Swift and told him to come
to his office. Jd. SSgt Swift was not advised of his Article 31
rights. Once again, he arrived without the paperwork he
promised he’d bring. Jd. He told MSgt Vernoski his attorney
didn’t start work until 0900 and he couldn’t reach him until
then. Jd. MSgt Vernoski then told SSgt Swift he “was tired
ef him not coming at the designated time” and that he was
tired of “having. . . to go get him all the tire.” (R. at 14). He
told SSgt Swift he “wanted hourly updates. . . whether he
knew something or not, just so he could be in contact. . . and
keep his appointments.” Jd. (emphasis added).
9
Later that morning, MSgt Vernoski again met with SSgt
Swift, and again, he did not advise SSgt Swift of his Article
31 rights. (R. at 14). SSgt Swift told him he had tried to
contact his attorney, but he was in court and could not be
reached. MSgt Vernoski asked SSgt Swift why he couldn’t go
to his attorney’s office. SSgt Swift told him that the
paralegal there could not release the document without his
attorney’s consent. (R. at 14). The colloquy between MSgt
Vernoski and trial counsel reveals what happened next:
Q: So what did the two of you agree on at that point?
A: Okay, at that point, he was going to go down to the
attorney’s office, whether or not he heard back from
the attorney, whether or not he had answered his
page, and see about getting a copy.
: Okay, so what happened next?
: Okay, around ten o’clock, I believe it was, he said he
had contacted the attorney, the attorney had
answered the page and had authorized the clerk to
give him a copy of the divorce paperwork. And I told
him at that time, “Well, great, but don’t hurry
because I’m going to be out of the office for a while.
Just drop the paperwork off around a quarter to two
or so, right before our two o’clock staff meeting.”
Q: And did you see him later that afternoon?
A: Yes, he showed up at a quarter to two with a divorce
decree.
(R. at 14-15) (emphasis added).
SSgt Swift produced paperwork that he told MSgt
Vernoski was his divorce decree. (R. at 16). At trial the
“decree” was admitted against SSgt Swift. Prosecution Ex.
3. At no time during the seven-day period beginning Friday,
March 8, 1996, and ending Thursday, March 14, 1996, did
MSgt Vernoski ever advise SSgt Swift of his rights under
Article 31. At the investigatory hearing held pursuant to
Article 32, U.C.M.J., 10 U.S.C. § 832, and again at trial, MSgt
Vernoski maintained that he never suspected SSgt Swift of
10
an offense. (R. at 17). In his seven years as a first sergeant,
he estimated he’s read members their rights hundreds of
times. (R. at 28).
At trial, SSgt Swift’s defense counsel moved to suppress
all statements made to MSgt Vernoski, and all evidence
derived therefrom, including Prosecution Exhibit 3, on the
grounds that the statements were taken in violation of SSgt
Swift’s rights under Article 31, U.C.MJ. (R. at 8); Appellate
Ex. I. The military judge denied the motion. (R. at 52-54).
Trial defense counsel again raised this issue to the convening
authority in a brief filed under Article 38(c), U.C.M.J., 10
U.S.C. § 838(c).
REASON FOR GRANTING THE PETITION
I.
__ The Fifth Amendment to the Constitution protects a
person from being “compelled in any criminal case to be a
witness against himself.” U.S. Const. Amend. V. This Court
has held that this protection is limited to “compelled
incriminating communications . . . that are testimonial in
nature.” United States v. Hubbell, 580 U.S. 27, __, 120 S.Ct.
2037, 2042 (2000). However, this Court in Hubbell did not
reach the issue of whether this limitation was correctly
decided in Fisher v. United States, 425 U.S. 391 (1976). See
Hubbell, 120 S.Ct. at 2053-54 (Thomas, J., concurring) (noting
that Fisher departed from the historical and constitutional
context surrounding the Fifth Ameridment). Justice Thomas
in his concurrence noted that this limitation to
communications that are testimonial in nature requires “a
difficult parsing of the act of responding to a subpoena duces
tecum.” Id., 120 S.Ct. at 2054.
Likewise, this limitation also requires “a difficult
parsing of the act of responding” to an order of a military
superior. For SSgt Swift, he was faced with a dilemma:
provide the fake divorce decree and thereby make a false
official statement (his ultimate path) or not provide the
divorce decree and thereby fail to obey the order of a
1]
superior noncommissioned officer, an offense punishable by
confinement for one year. Article 91(2), U.C.M.J., 10 U.S.C.
§ 891(2); see also Swift, 53 M.J. at 445. Moreover, he was not
in the more enviable position of a person responding to a
subpoena duces tecum because he could not ask a court to
quash MSgt Vernoski’s order.
In its opinion in this case, the United States Court of
Appeals for the Armed Forces held that because MSgt
Vernoski was acting in a disciplinary capacity, he was
required to advise SSgt Swift of his rights under Article 31,
U.C.M.J., 10 U.S.C. § 831, and the Court also held that there
is no exception to the requirements of Article 31 for false
statement prosecutions under Article 107, U.C.M.J., 10
U.S.C. § 907. Swift, 53 M.J. 439 (2000). However, the court
declined to apply this privilege to the production of the
divorce decree, reasoning that the “appellant could not have
objected to producing the divorce decree solely on the basis
that the fraudulent contents were incriminating because
MSgt Vernoski’s request was based on facts indicating the
document, the divorce decree, had been created prior to the
order to produce it,” citing Fisher v. United States, 425 U.S.
391 (1976), as authority. Jd. at 453. This holding appears to
based on an earlier discussion of the law in the opinion, when
the court noted that
The contents of documents voluntarily prepared
before the compelled production are not protected
by the Fifth Amendment or Article 31(a) because
the documents “could not be ‘said to contain
compelled testimonial evidence.”
53 M.J. at 453 (citations omitted). In other words, because
the contents of the divorce decree were voluntarily produced
earlier, the court concluded that the subsequent, compelled
act of production by SSgt Swift had no testimonial aspect.
However, this Court’s opinion in Hubbell makes it clear
that the analysis does not end there; an act of production of
previously prepared documents may still be testimonial in
nature. 120 S.Ct. at 2047. This is particularly true in a case
such as this where the act of production was used as the basis
12
for a conviction. Using the analysis in Fisher would be
appropriate in analyzing the effect of the decree on the
bigamy prosecution because any testimonial significance
would relate to a crime that had already occurred. Here the
crime was in progress or really had yet to occur, and the act
of production itself was the only incriminating evidence.
Because Article 107, U.C.M.J., 10 U.S.C. § 907, requires that
a statement be made with the intent to deceive, id., it then
requires a testimonial aspect because one can only deceive
via an act of production by making some sort of false factual
assertion along with the act of production.
Because SSgt Swift’s act of production carried with it an
intent to deceive, then that act of production would
communicate a factual assertion (i.e., this false divorce decree
is a legitimate divorce decree), and as a result it would be -
privileged under the Fifth Amendment and under Article 31.
Hubbell, 120 S.Ct. at 2043-44; see also Doe v. United States,
487 U.S. 201, 210 (1988) (for a communication to be testimonial,
it “must itself, explicitly or implicitly, relate a factual assertion
or disclose information.”). Finally, should this Honorable
Court not agree that his act of production is testimonial under
Fisher and Hubbell, SSgt Swift asks that this Honorable
Court overrule Fisher to the extent that it holds that the Fifth
Amendment does not protect him from being compelled to
produce private papers in his personal possession.
Il.
In making its decision, should this Honorable Court now
conclude SSgt Swift’s act of production was indeed
testimonial in nature, SSgt Swift respectfully contends that
United States Court of Appeals for the Armed Forces has
misapprehended the scope of the required records exception
to the Fifth Amendment and has expanded it beyond its
traditional bounds. In its opinion, the court below decided
that SSgt Swift’s production fell within the required-records
exception to the Fifth Amendment and to Article 31(a). Swift,
53 M.J. at 454.e The court explained the test for the ee
records exception as follows: -
13
To constitute “required records,” the documents
must satisfy the following test: (1) the requirement
that they be kept “must be essentially regulatory”;
(2) the records must be the “kind which the
regulated party has customarily kept”; and (3) the
records themselves must be either public
documents or “have assumed ‘public aspects’ which
render them at least analogous to public
documents.”
Id. at 453 (citing Grosso v. United States, 390 U.S. 62, 67-68
(1968) and In re Dr John Doe, 711 F. 2d 1187 (2d Cir. 1983)).
In addition to Grosso and In re Dr. John Doe, the opinion
also cited United States v. Shapiro, 335 U.S. 1 (1948), in
examining whether SSgt Swift’s act of production fell within
the required records exception. Shapiro dealt with the
production of records that were required to be maintained by
Section 14 of Maximum Price Regulation 426, 8 Fed.Reg. 9546
(1943), which required that “[e]very person subject to this
regulation shall . . . preserve for examination” their records.
Shapiro, 335 U.S. at 5 n.8. Contrast that regulatory scheme
where records must be preserved for examination with the
regulatory scheme that did not require SSgt Swift to maintain
a personal copy of a-divorce decree. He had no requirement
to maintain any document once it was presented to personnel
officials to change his spousal enrollment in DEERS; he could
have thrown the divorce decree away had he wanted. AF 36-
3001 required a sponsor to provide “the documentation
necessary to terminate DEERS for dependents no longer
eligible for benefits and privileges.” Jd. at para. 2.4.4. At trial,
Staff Sergeant (SSgt) Issac testified that the documentation a
“technician that works in the DEERS system would have to
see, with no exceptions” to disenroll a former spouse would
be a copy of the divorce decree. (R. at 137). The only specific
documentation required to be produced (not maintained) to
enroll a new spouse was a marriage certificate. AFI 36-3001,
Table A5.1, Rule 12.
The language of AFI 36-3001 makes it clear that the
divorce decree was never required to be specifically produced
“a
14
~ nor was any documentation whatsoever required to be
maintained. The regulation only requires the production of
“documentation” in a generic sense. Any production of the
divorce decree to a DEERS technician was merely the result
of a usual or local practice that was not specifically mandated
in the regulation. There was no regulatory requirement that
SSgt Swift keep or even produce the divorce decree. This is
not an instance where the “incriminating evidence [is] the
byproduct of obedience to a regulatory requirement, such as
... maintaining required records” causing it to be devoid
of any testimonial privilege. Hubbell, 120 S.Ct. at 2043 (citing
Shapiro v. United States, 335 U.S. 1 (1948)) (emphasis added).
Counsel for petitioner is unaware of any other federal
courts which have squarely addressed the question of
whether the required-records exception applies not only to
records required to be maintained but also to those required
to have been produced in the past. Jn re Dr. John Doe, 711
F.2d 1187 (2d Cir. 1983), is a case where the facts hint at the
presence of the issue but contains no discussion of it.
However, the documents at issue in In re Dr. John Doe were
tax records, specifically W-2 forms. Even if the United
States Court of Appeals for the Second Circuit did not
specifitally note so in its opinion, tax records are more
thoroughly regulated and were indeed required to be kept in
that case. See 26 U.S.C. § 6001 and IRS Income Tax Records
Rule, 26 C.F.R. 1.6001-1 (1982). Moreover, In re Dr. John Doe
involved a regulatory requirement for a specific kind of
documentation, the W-2 form, 711 F.2d at 1191, specificity
that is lacking in this case.
Even if In re Dr. John Doe does stand for the
proposition that the required-records exception applies to
records required to be produced at any moment of time, even
a moment of time in the past, then the Jn re Dr. John Doe and
Swift courts stand alone in this unwarranted expansion of the
required-records exception, and those courts have decided an
important federal question in a way that conflicts with
decisions of this Honorable Court. This Honorable Court
discussed the nature of the required-records exception at
15
length in Baltimore City Dept. of Social Services v.
Bouknight, 493 U.S. 549 (1990):
In Shapiro v. United States, the Court considered an
application of the Emergency Price Control Act and a
regulation issued thereunder which required licensed
businesses to maintain records and make them
available for inspection by administrators.
The Court indicated that no Fifth Amendment
protection attached to production of the “required
records,” which the “ ‘defendant was required to keep,
not for his private uses, but for the benefit of the public,
and for public inspection.”” The Court’s discussion of
the constitutional implications of the scheme focused
upon the relation between the Government’s regulatory
objectives and the Government’s interest in gaining
access to the records in Shapiro’s possession:
It may be assumed at the outset that there are
limits which the Government cannot
constitutionally exceed in requiring the
keeping of records which may be inspected by
an administrative agency and may be used in
prosecuting statutory violations committed by
the recordkeeper himself.
But no serious misgiving that those bounds
have been overstepped would appear to be
evoked when there is a sufficient relation
between the activity sought to be regulated
and the public concern so that the Government
can constitutionally regulate or forbid the
basic activity concerned, and can
constitutionally require the keeping of
particular records, subject to inspection by
the Administrator.”
In Wilson v. United States, the Court surveyed a range
of cases involving the custody of public documents and
records required by law to be kept because they related
16
to “the appropriate subjects of governmental regulation
and the enforcement of restrictions validly established.”
Id.. at 556-558 (citations omitted) (emphases added). Thus,
it is clear that when this Honorable Court has applied the
required-records exception, it has only been in the context
of a regulatory requirement to maintain records.
Moreover, SSgt Swift’s situation is unlike the situation
in Bouknight where Bouknight “ha[d] accepted the incident
obligation to permit inspection” of her son and his condition
when she agreed to extensive conditions of a court-
approved protective supervision order allowing her to
continue custody of her previously-abused son. /d. at 559.
The extent of the Air Force’s regulatory scheme was to
require SSgt Swift to produce at a given instant in time (in
this case in the past) necessary, yet unspecified,
documentation. It did not require the keeping of the record
or the production for inspection of the record that would
permit the application of the required-records exception.
A divorce decree then was not a record required by
regulation or statute to be maintained or “kept” by SSgt
Swift, and the required-records exception to the Fifth
Amendment and to Article 31(a), U.C.M.J., thus does not
apply to his act of producing it.
III.
Article 67(c), UCMJ, 10 U.S.C. § 867(c), limits the
ability of the United States Court of Appeals for the
‘Armed Forces to “take action only with respect to matters
of law.” Id. The Court of Appeals for the Armed Forces
sub silentio assessed the appropriateness of the sentence in
this case after setting aside the conviction in part: “In light
of the remaining offenses and the evidence in this case, we
are convinced beyond a reasonable doubt that the error
with respect to the dismissed offense was not prejudicial as
to sentence.” Swift, 58 M.J. at 455. However, just such a
practice was condemned in United States v. Christopher, 32
C.M.R. 231 (1962):
17
We hasten to emphasize that we should not be
considered as arrogating to ourselves, under the
guise of a legal label, the power to determine or
pass on factual questions of sentence
appropriateness. Such is not our intention. Quite
clearly, and not inadvisedly, Congress denied this
Court such authority under the Uniform Code of
Military Justice.
Id. at 236; see also, e.g., United States v. Dukes, 5 MJ.
71, 72-73 (C.M.A. 1978). Such a determination is a fact-
based decision that must remain vested in the discretion of
a trial court or of a court of appeals with fact-finding
powers such as those provided to the service courts of
criminal appeals under Article 66, U.C.M.J., 10 U.S.C.
§ 866. Cf. United States v. Pimienta-Redondo, 874 F.2d 9,
14 (1st Cir.) (en banc) (“After an appellate court unwraps
the package and removes one or more charges from its
confines, the sentencing judge, herself, is in the best
position to assess the effect of the withdrawal and to
redefine the package’s size and shape (if, indeed,
redefinition seems appropriate)”), cert. denied, 493 U.S. 890
(1989). Petitioner, therefore, asks this Honorable Court to
exercise its supervisory authority to correct this act which
exceeded the authority of the Court of Appeals for the
Armed Forces.
CONCLUSION
The decision of the United States Court of Appeals for
the Armed Forces represents a significant departure from
this Honorable Court’s Fifth Amendment jurisprudence.
Moreover, the United States Court of Appeals for the
Armed Forces has so far departed from the accepted and -
usual course of judicial proceedings by assessing
petitioner’s sentence as to call for an exercise of this
Honorable Court’s supervisory power. Therefore, the
petitioner respectfully requests that this Honorable Court
grant certiorari to the United States Court of Appeals for
the Armed Forces.
18
The petition for a writ of certiorari should be granted.
December 2000
Respectfully submitted,
KYLE R. JACOBSON
Captain, United States Air Force
Appellate Defense Counsel
Counsel of Record
STEPHEN P. KELLY
Major, United States Air Force
Appellate Defense Counsel
Counsel of Record
Air Force Legal Services Agency
Appellate Defense Division
112 Luke Avenue, Suite 343
Bolling AFB, DC 20332-8000
(202) 767-1562 ~-
la
APPENDIX A
UNITED STATES, Appellee,
v.
John B. SWIFT, Staff Sergeant,
U.S. Air Force, Appellant
No. 98-5012
Crim. App. No. 32447
United States Court of Appeals for
the Armed Forces
Argued March 9, 1999.*
Decided August 31, 2000.
EFFRON, J., delivered the opinion of the Court, in which
CRAWFORD, C. J., GIERKE, J., and COX, S.J., joined.
SULLIVAN, J., filed an opinion CORSETSINg in part and
dissenting in part.
_ For Appellant: Captain Michael J. Apol (argued); Colonel
Douglas H. Kohrt (on brief); Liewtenant Colonel Kim L.
Sheffield.
For Appellee: Captain Steven D. Dubriske (argued);
Colonel Anthony P. Dattilo and Major Ronald A. Rodgers (on
brief); Lieutenant Colonel Michael J. Breslin. ss
Judge EFFRON delivered the opinion of the Court.
A general court-martial composed of officer members
convicted appellant, pursuant to mixed pleas, of making a false
official statement (3 specifications), writing bad checks (2
specifications), bigamy, and impeding an investigation, in
violation of Articles 107 and 134, Uniform Code of Military
Justice, 10 USC §§ 907 and 934, respectively. Appellant was
sentenced to a bad-conduct discharge and reduction to the
grade of E-1. The convening authority approved the sentence
*This case was argued at the United States Air Force Academy, Colorado
Springs, Colorado, as part of Project Outreach. See United States v. Martinez,
52 MJ 22, 23 n. * (1999).
2a
as adjudged. In an unpublished opinion, the Court of Criminal
Appeals affirmed the findings and sentence but ordered that
appellant receive administrative relief from the improper
execution of the adjudged reduction in grade.
On appellant’s cross-petition, we granted review of the
following issue: :
WHETHER THE MILITARY JUDGE ERRED IN
FAILING TO SUPPRESS STATEMENTS
APPELLANT MADE TO HIS FIRST SERGEANT
AFTER HAVING BEEN SUBJECTED TO
REPEATED AND PERSISTENT QUESTIONING
BY HIS FIRST SERGEANT WITHOUT HAVING
BEEN FIRST ADVISED OF HIS RIGHTS
UNDER ARTICLE 31, UCMJ.’
We hold that the military judge erred in admitting the verbal
statements at issue in the absence of rights’ warnings under
Article 31(b), UCMJ, 10 USC § 831(b), but did not err in
admitting the divorce decree into evidence. The error was
prejudicial as to one specification on findings, but harmless as
to the sentence. See Art. 59(a), UCMJ, 10 USC § 859(a).
I. FACTS
A. Questions Concerning Appellant’s Marital Status
On Friday, March 8, 1996, appellant’s commander, Captain
' (Capt) Myatt, received a telephone call from a woman who
identified herself as appellant’s wife, JS (hereafter referred to
as “the first Mrs. Swift”). The first Mrs. Swift stated that she
had received a telephone call that morning from a woman who
had identified herself as SS (hereafter referred to as “the
second Mrs. Swift”). According to the first Mrs. Swift, the
second Mrs. Swift had made the following points during their
telephone conversation: (1) the second Mrs. Swift currently
was married to appellant; (2) the first Mrs. Swift no longer was
'The initial filing in our Court, which concerned an unrelated issue certified
by the Judge Advocate General under Article 67(a)(2), UCMJ, 10 USC
§ 867(a)(2)(1989), was disposed of by order on September 30, 1998. 50 MJ 351.
3a
married to appellant; (3) appellant had divorced the first Mrs.
Swift in 1994; (4) the divorce took place in Pike County,
Kentucky; and (5) the divorce papers were in the possession of
the second Mrs. Swift.
The first Mrs. Swift told Capt Myatt that she had no
previous knowledge of either the second Mrs. Swift or a
divorce. The first Mrs. Swift added that to the best of her
knowledge, she was still married to appellant and had not been
divorced. She told Capt Myatt that after her telephone
conversation with the second Mrs. Swift, she contacted the
Pike County courthouse, and a clerk had told her there was no
record of such a divorce on file in that county.
The first Mrs. Swift and appellant had been living apart
for some time. She told Capt Myatt that she did not believe she
was divorced since she had not received any notice that
appellant was seeking a divorce and had not signed any
paperwork. She asked Capt Myatt for assistance in
determining whether there had been a divorce and whether
she remained eligible for military medical care. The first Mrs.
Swift concluded her conversation with Capt Myatt by telling
her that, if appellant had married the second Mrs. Swift
without first obtaining a divorce, she wanted to press charges
for the offense of bigamy.
Capt Myatt related this information to appellant’s first
sergeant, Master Sergeant (MSgt) Vernoski. MSgt Vernoski
was familiar with appellant’s marriage to the first Mrs. Swift
because, in the fall of 1995, MSgt Vernoski had counseled
appellant for failing to support his wife, the first Mrs. Swift. At
that time, MSgt Vernoski assisted appellant in setting up an
allotment for the first Mrs. Swift. Until learning of the phone
call to Capt Myatt, MSgt Vernoski was under the impression
that the first Mrs. Swift and appellant remained married.
Capt Myatt and MSgt Vernoski reviewed appellant’s
emergency data card in the unit mobility folder, which still listed
the first Mrs. Swift as appellant’s wife. Capt Myatt and MSgt
Vernoski then went to the personnel office to check appellant’s
records. Appellant’s file included several copies of DD Form 1172,
the form used to enroll or disenroll military members and
oo nai nn a Spa aad
4a
dependents from the Defense Eligibility Enrollment Reporting
System (DEERS) for purposes of health care eligibility.
According to these records, appellant had disenrolled the first
Mrs. Swift and had enrolled the second Mrs. Swift as his spouse.
The form indicated that the first Mrs. Swift became ineligible for
benefits on September 14, 1994. An official at the personnel office
advised Myatt and Vernoski that a spouse could be disenrolled
only if the servicemember provided a copy of a divorce decree.
The personnel official noted that appellant’s emergency data card
in the personnel office still listed the first Mrs. Swift as
appellant’s spouse, but she also recalled that appellant was in the
process of revising that card.
Shortly thereafter, Capt Myatt and MSgt Vernoski visited
the base legal office, where they discussed several military
justice matters with the chief of military justice. During this visit,
MSgt Vernoski described the phone call from the first Mrs. Swift
and related what they had learned at the personnel office. MSgt
Vernoski later testified that he had brought this matter to the
attention of the chief of military justice “because it was unusual”
and he had “never seen or come across a bigamy case.” The chief
of military justice recalled that MSgt Vernoski and Capt Myatt
mentioned, during this meeting, “the troop and his potential
bigamy to me.” Later in the day, Capt Myatt and MSgt Vernoski
decided that they would confront appellant Monday morning.
On Monday, March 11, before they confronted appellant,
MSgt Vernoski received a call from the first Mrs. Swift. She
reiterated what she previously had told Capt Myatt and gave
MSgt Vernoski the name and telephone number of the clerk in
the Pike County courthouse with whom she had spoken.
According to the first Mrs. Swift, she told MSgt Vernoski that
she did not “think there was a divorce” and added that she “didn’t
think it was legal.” MSgt Vernoski testified that he had never
heard of anyone being divorced without that person’s knowledge,
but thought that it could be possible. After the phone call from
the first Mrs. Swift and prior to meeting with appellant, MSgt
Vernoski opened the Manual for Courts-Martial and reviewed the
Manual’s provisions concerning the offense of bigamy, including
the elements and the maximum punishment. According to MSgt
5a
Vernoski, he looked at the Manual because he was “curious,” as
he had never had a “case like this before.”
MSgt Vernoski, who subsequently testified that he had
called appellant into his office to “hear his side of the story,” did
_not advise appellant of the right to remain silent or the other
self-incrimination rights under Article 31(b). He told appellant
of the “accusations” made by the first Mrs. Swift. Appellant
responded that he had divorced the first Mrs. Swift in
September 1994. Immediately upon hearing appellant state
that he had been divorced in 1994, MSgt Vernoski reminde2
appellant that in the fall of 1995, just a few months earlier,
appellant had stated that he still was married to the first Mrs.
Swift. Appellant responded by claiming that he had not made
such a statement.
Appellant then provided MSgt Vernoski with the name of an
attorney who, according to appellant, had represented him in the
divorce proceeding. Appellant also suggested that the first Mrs.
Swift might be trying to get him into trouble. MSgt Vernoski
responded by telling appellant that “she can get you in trouble”
and showed him the maximum punishment for bigamy from the
Manual for Courts-Martial.
At the conclusion of the conversation, MSgt Vernoski
directed appellant to provide him with a copy of his divorce
decree. Appellant said that he would bring a copy the next
morning. Later that day, MSgt Vernoski visited the chief of
military justice at the base legal office and told him about his ;
conversation with appellant. He later noted that he had visited
the chief of military justice on this matter “because I normally
keep him in the loop regarding ‘potential crimes’ in the
squadron.”
PRE a a ee - ees, i Saas RM Pre ee eT ek ees
Sapte Satan sit Trccrer gaa aa : “ " : cviighe :
B. Production of the Divorce Decree
When appellant failed to appear with the divorce decree
on Tuesday morning, MSgt Vernoski summoned him. Appellant
arrived without the paperwork, explaining that his attorney,
who was in court that morning, would fax a copy of the decree
to the squadron later in the day.
6a
On Tuesday afternoon, appellant delivered certain
documents to MSgt Vernoski, who determined that the
documents were not responsive because they pertained to child
custody rather than divorce. He told appellant that he needed
to see a divorce decree to verify his divorce, and appellant
promised to deliver the divorce decree at 0730 hours the
following morning.
The next day, appellant again failed to report to MSgt
Vernoski’s office. When summoned, appellant arrived without
the paperwork, explaining that his attorney did not open his
office until 9:00 a.m. MSgt Vernoski directed appellant to
report to him every hour until he produced the divorce papers.
Just before 2:00 p.m., Wednesday, March 13, 1996, appellant
delivered a document to MSgt Vernoski that he described as
his divorce decree. A cover letter and a page of the document
were missing from the document, and appellant promised to
deliver the missing items the next morning. After this meeting,
MSgt Vernoski did not discuss the matter again with appellant.
Appellant never produced the missing papers.
The document appeared to be unusual to MSgt Vernoski,
so he took it to the chief of military justice because “[he] wasn’t
sure if it was legal” and wanted “to have it checked out.”
Together, MSgt Vernoski and the chief of military justice
examined the document. The first thing that struck them as
unusual was that the first Mrs. Swift had not signed the
document. After further review, they also noticed several
misspellings and typographical errors. The document was
purportedly signed by a Circuit Court Judge in Pike County
and filed at the Pike County Courthouse. The document
indicated that it had been filed on September 14, 1994, the same
date listed on the DEERS form. With MSgt Vernoski in the
office, the chief of military justice called the civilian attorney
identified by appellant as his attorney in the divorce
proceedings. The attorney responded that, although he had
represented appellant in a child-custody case, he had not
represented him in a divorce action.
The following morning, the chief of military justice called
the Pike County Courthouse to verify whether the divorce
Ta
decree had been filed at the court. The Deputy Clerk of the
Court informed him that the document had not been filed with
that court or signed by anyone sitting as a Circuit Court Judge |
in Pike County. That same day, the second Mrs. Swift brought
MSgt Vernoski a copy of what she believed was appellant's
divorce decree from the first Mrs. Swift. The document was
identical to what appellant had provided him the previous day.
Soon thereafter, appellant was charged with a number of
offenses, including: (1) that he made false official statements
between March 11 and 13, 1996, when he said that he was
divorced and that the named civilian attorney represented him
in that action; (2) that he made a false official statement when
he presented a false divorce decree to MSgt Vernoski on
Wednesday, March 13, 1996; (3) that he committed obstruction
of justice by impeding MSgt Vernoski’s investigation by
presenting a false divorce decree to MSgt Vernoski; and (4)
that he committed bigamy.
C. The Motion to Suppress
At trial, appellant moved to suppress all statements he
had made to MSgt Vernoski and all evidence derived
therefrom, including the purported divorce papers that
appellant had given to MSgt Vernoski. The motion alleged a
failure to give warnings under Article 31(b). Defense counsel
indicated that the motion, if granted, would require dismissal of
the two false official statement specifications and the bigamy
charge. The defense did not tie the motion to the obstruction of
justice charge and has not done so on appeal.
The military judge denied the motion to suppress. He
concluded that “there were insufficient circumstances that
caused or reasonably should have caused Sergeant Vernoski to
suspect the accused of the criminal offense of bigamy.” With
respect to the false official statement charges, he also concluded
that “there was no evidence made known to Sergeant Vernoski
that reasonably should have caused him to suspect that the
accused was possibly going to commit other offenses under the
UCM in the course of producing the divorce decree.”
8a
D. The Charge of Impeding MSgt Vernoski’s Investigation
The Government charged appellant with obstruction of
justice for wrongfully endeavoring to impede an investigation
into his marital status by giving MSgt Vernoski a document
purporting to be a divorce decree from the first Mrs. Swift,
which he knew to be false. At trial, the Government’s theory
was that appellant’s “submi[ssion of] this phony divorce decree
[was] just part and parcel of the impeding an investigation
charge. ... He provided it in the hopes that Vernoski would be
satisfied with it, and nothing further would happen to him.”
Trial counsel maintained that “[appellant] did all these series of
lies in hopes of misleading Vernoski, in misdirecting him so that
it would take the pressure off of him, so that he wouldn’t get in
any trouble.” Trial counsel further argued that appellant’s
conduct was “prejudicial to good order and discipline” because
of the “way the military justice system works, and the way our
disciplinary system works in the military, and the role and duty
of the first sergeant. When he lies to his first sergeant, that has
a direct impact on good order and discipline in a unit.”
With regard to the obstruction of justice charge, the
military judge instructed the members that they must find that
appellant presented a false document to MSgt Vernoski, in a
case against himself, against whom he had reason to believe
that there were or would be criminal proceedings pending,
with the intent to impede the due administration of justice. The
military judge also informed the members that the charged
misconduct must be prejudicial to good order and discipline in
the armed forces.
II. DISCUSSION
A. General Principles Concerning the Rights’ Warning
Requirement
Article 31(a) of the Uniform Code of Military Justice
provides that a person subject to the Code may not “compel
any person to incriminate himself or to answer any question
the answer to which may tend to incriminate him.” Article
9a
31(b) implements the privilege against self-incrimination
through a rights’ warning requirement, providing that no
person subject to the Code may
interrogate, or request any statement from an
accused or a person suspected of an offense without
first informing him of the nature of the accusation
and advising him that he does not have to make any
statement regarding the offense of which he is
accused or suspected and that any statement made
by him may be used as evidence against him in a trial
by court-martial. -
Congress established this statutory warning requirement in
the aftermath of World War II, long before the Supreme
Court’s decision in Miranda v. Arizona, 384 U.S. 436 (1966),
mandated rights’ warnings in civilian society. Miranda
specifically cited Article 31 as a precedent for requiring
warning persons of the privilege against self-incrimination. Jd.
at 489, 86 S.Ct. 1602.
The rights’ warning requirements under Miranda
represent judicially created, constitutionally based guidelines :
designed to protect the privilege against self-incrimination. See
Dickerson v. United States, ___ U.S. __, ___, 120 S.Ct. 2326,
2334 (2000). As the product of constitutional adjudication, these
guidelines are not “immutable,” but are subject to such
modifications and exceptions as the judiciary may deem
necessary or appropriate in the course of litigation. See id. at
2335.
The primary source of the rights’ warning requirements in
military law is a statutory enactment, not constitutional
adjudication. Congress has provided members of the armed
forces with a rights’ warning requirement that is broader than
the warnings required in a civilian setting as a matter of
constitutional law under Miranda. Article 31(b) mandates
rights’ warnings for anyone “suspected of an offense,” whereas
Miranda warnings are required only in circumstances
amounting to “custodial interrogation.” Compare 10 USC
§ 831(b) with 384 U.S. at 498. In addition, Congress has
expressly provided in Article 31(d) that “[n]o statement
10a
obtained from any person in violation of this article ... may be
received in evidence against him in a trial by court-martial.”
See Part IID, infra. The broad application of the warning
requirement under Article 31 to all suspects, not just those
who are in custody, and the statutory restriction on
admissibility of unwarned statements reflect a decision by the
post-World War II Congress—which included many veterans
familiar with the military justice system and its relationship to
military missions and operational requirements—that the
unique circumstances of military service required specific
statutory protections for members of the armed forces. See
Pub. L. No. 81-506, Ch. 169, § 1 (Art. 31), 64 Stat. 118 (1950); ef.
Hearings on H.R. 2498 Before a Subcomm. of the House Armed
Services Comm., 81st Cong., Ist Sess. 984 (1949).
In the armed forces, a person learns from the outset of
recruit training to respond promptly to the direct orders and
the indirect expectations of superiors and others, such as
military police, who are authorized to obtain official
information. Failure to respond to direct orders can result in
criminal offenses unknown in civilian life, see, e.g., Arts. 90 and
91, UCMJ, 10 USC §§ 890 and 891, respectively. Failure to
respond to the expectations of military life can lead to charges
of dereliction of duty, see, e.g., Art. 92, UCMJ, 10 USC § 892, as
well as serious administrative consequences, seé, @.g.,
Department of Defense (DoD) Directive 1332.14 Enlisted
Administrative Separations (1993).
In such an environment, a question from‘a superior or an
investigator is likely to trigger a direct response without any
consideration of the privilege against self-incrimination. The
Article 31(b) warning requirement provides members of the
armed forces with statutory assurance that the standard
military requirement for a full and complete response to a
superior’s inquiry does not apply in a situation when the
privilege against self-incrimination may be invoked. See
United States v. Gibson, 3 USCMA 746, 752, 14 CMR 164, 170
(1954).
Another special feature of military life is the blending of
both administrative and law enforcement roles in the
lla
performance of official duties. Officers, and non-commissioned
officers (NCOs) in particular, have broad responsibility not
only for the accomplishment of specific missions, but also for
the health, welfare, morale, good order, and discipline of their
subordinates. As a result, a servicemember may perceive that
a question from an officer or NCO is being asked for
administrative purposes, although the purpose actually may be
to acquire information for use in disciplinary proceedings. As
one commentator has noted:
[Mlilitary suspects may know in a general sense that
they have a right to remain silent, and they may
know the consequences of waiving that right, but
they may not be aware that they face
adversarial situations where they may want to
exercise that right. For example, a suspect may
believe that a platoon sergeant is inquiring about
personal finances to help the suspect balance a
bank account. The suspect does not realize that the
sergeant is asking the questions in a law enforcement
capacity, to get evidence against the soldier for later
use at a court-martial.
Supervielle, Article 31(b): Who Should Be Required to Give
Warnings?, 123 Mil. L. Rev. 151, 187 (1989).
Our case law has interpreted Article 31 in a manner that
recognizes the difference between questioning focused on the
accomplishment of a military mission, including an
administrative function, and questioning to elicit information
for use in disciplinary proceedings. See, e.g., United States v.
Brown, 40 MJ 152, 154 (CMA 1994); United States v. Shepard,
38 MJ 408 (CMA 1993). In some circumstances, there is likely
to be a mixed purpose, and the matter must be resolved on a
case-by-case basis. .
In general, we have held that Article 31(b) requires rights’
warnings if: (1) the person being interrogated is a suspect at
the time of the questioning, and (2) the person conducting the
questioning is participating in an official law enforcement or
disciplinary investigation or inquiry. See United States v.
Moses, 45 MJ 132, 134 (1996). Whether a person is a suspect is
12a
an objective question that “is answered by considering all the
facts and circumstances at the time of the interview to
determine whether the military questioner believed or
reasonably should have believed that the servicemember
committed an offense.” United States v. Good, 32 MJ 105, 108
(CMA 1991). Whether the questioning was part of a law
enforcement or disciplinary investigation “is determined by
assessing all the facts and circumstances at the time of the
interview to determine whether the military questioner was
acting or could reasonably be considered to be acting in an
official law-enforcement or disciplinary capacity.” Id.; accord
United States v. Davis, 36 MJ 337, 340 (CMA 1993), aff’d on
other grounds, 512 U.S. 452, 114 S.Ct. 2350 (1994). Questioning
by a military superior in the immediate chain of command “will
normally be presumed to be for disciplinary purposes.” Good,
32 MJ at 108; see also United States v. Loukas, 29 MJ 385, 389
n.* (CMA 1990). The presumption is not conclusive. See United
States v. Pittman, 36 MJ 404, 407 n.7 (CMA 1993). When there
is a motion to suppress a statement on the ground that rights’
warnings were not given, we review the military judge’s
findings of fact on a clearly-erroneous standard, and we review
conclusions of law de novo. United States v. Ayala, 43 MJ 296,
298 (1995); Moses, supra at 135.
B. Appellant’s Status As A Suspect
Military pay and benefits are closely tied to marital status
and the status of dependents. See, e.g., 10 USC §§ 1076, 1077,
and 1079; 37 USC §§ 401, 403, 406, and 407. officers and NCOs
have a legitimate administrative need to ensure that such
benefits are provided to those who are entitled to them and
that they are not provided to those whose eligibility status may
have changed. The role of a first sergeant is multifaceted, and
as such, MSgt Vernoski’s duties included addressing questions
about dependent entitlements. See para. 1.2, Air Force
Instruction 36-2113, The First Sergeant (1 August 1996).
Given the plethora of diverse benefit programs
administered by a host of different DoD organizations,
members of the armed forces are well aware of the significant
13a
potential for errors in the collection, processing, and storage of
personnel information. in this context, information coming to
the attention of 2 military official that raises questions about
the eligibility status of a servicemember’s spouse or
dependents does not, in itself, establish a basis for designating
that member as a suspect for purposes of Article 31, even if the
official has a “hunch” that further inquiries may disclose a
crime. Cf. United States v. Meeks, 41 MJ 150, 161 (CMA 1994)
In the present case, however, the command had much
more than a hunch that appellant had committed an offense.
MSgt Vernoski brought appellant’s situation to the attention of
the chief of military justice on Friday afternoon because he
regarded it as “unusual” and he had “never seen or come across
a bigamy case.” The chief of military justice described the
conversation as addressing a “potential bigamy case in their
unit.” These circumstances underscore that this was more than
simply visiting the legal office to discuss an administrative
matter. MSgt Vernoski and Capt Myatt had good reason to
suspect appellant of bigamy at that time, based upon the
following information: (1) the first Mrs. Swift had been called
by the second Mrs. Swift, a person claiming to be appellant's
wife, and the second Mrs. Swift had asserted there was a
divorce in Pike County, Kentucky; (2) the first Mrs. Swift had
never signed a divorce decree and had not been provided any
notice that her husband was seeking a divorce; (3) to the best of
the first Mrs. Swift’s knowledge, she was still married to
appellant; (4) the first Mrs. Swift had determined there was no
record of such a divorce in Pike County; (5) if there had been no
divorce, the first Mrs. Swift wanted appellant prosecuted for
bigamy; (6) as recently as the fall of the previous year, MSgt
Vernoski had counseled appellant about matters related to
appellant’s marriage to the first Mrs. Swift, during which
appellant told him that he was still married to her, yet the
second Mrs. Swift asserted that a divorce had taken place more
than 2 years ago—a divorce which, according to the first Mrs.
Swift, was not recorded in the county referred to by the second
Mrs. Swift; (7) several current military records still listed the
first Mrs. Swift as appellant’s wife; and (8) the first M:s. Swift
14a
had been disenrolled as a beneficiary under DEERS, and the
second Mrs. Swift had been enrolled as appellant’s spouse
under DEERS.
On Monday morning, prior to confronting appellant, MSgt
Vernoski’s concerns about the case led him to review the
provisions of the Manual for Courts-Martial concerning the
offense of bigamy. His review of the Manual was not simply
preparation for a worst case scenario. The grounds for suspecting
appellant of bigamy were reinforced by a call he received from
the first Mrs. Swift prior to his meeting with appellant, in which
she reiterated that she did not think the divorce “was legal” and
provided him with the name and phone number of the clerk with
whom she had spoken at the Pike County Courthouse. When
appellant reported, as ordered, MSgt Vernoski began the
interrogation by setting forth the “accusations” made by the first
Mrs. Swift and asking appellant to respond.
Under the objective test, we conclude as a matter of law
that these circumstances demonstrate that MSgt Vernoski
“reasonably should have believed” that appellant was a suspect
with respect to the offense of bigamy prior to this interrogation.
See Good, supra at 108. The fact that MSgt Vernoski was hopeful
that appellant would be able to clarify his marital status, just as
he had been able to clarify prior problems with his wife’s
allotment, does not lead to a different result. In light of the
relatively low quantum of evidence required to treat an
individual as a suspect, MSgt Vernoski’s hope that events would
exonerate appellant was not incompatible with his responsibility
to treat appellant as a suspect based upon the amount of
information about the possibility of bigamy that he had acquired
before confronting appellant. It is not unusual for a superior to be
hopeful that circumstances will vindicate a subordinate,
particularly when that subordinate has proved trustworthy in
the past. Such a feeling, no matter how well motivated, does not
deprive a member of the armed forces of the right to be warned
under Article 31(b) when the objective facts point to the
subordinate as a suspect. Under the circumstances of this case,
we find that a reasonable person would have considered appellant
a suspect, requiring a rights’ warning advisement. See United
15a
States v. Muirhead, 51 MJ 94 (1999)(military judge erred when he
relied upon the subjective opinions of the agents as to whether
Article 31(b) warnings were required where facts supported
finding that reasonable person would have suspected accused of
an offense.)
C. Questioning By A Military Superior: Application of the
Disciplinary Presumption
Under our case law, we also consider whether MSgt
Vernoski was acting in a law enforcement or disciplinary
capacity in light of the “strong presumption” that questioning
by a military superior in the “chain of command” is part of a
“disciplinary” investigation. Good, supra at 108. As discussed
in Part IIB, supra, although MSgt Vernoski had appropriate
administrative concerns about appellant’s marital status, the
circumstances of this case led to significant disciplinary
considerations in the conduct of the investigation.
From the initial telephone call from the first Mrs. Swift to
the first confrontation with appellant, the nature of the actions
taken by MSgt Vernoski and Capt Myatt underscore the
priority they placed on military justice implications—including
their joint visit to the personnel office and the base legal office,
their consultation with the chief of military justice concerning a
“potential bigamy case,” MSgt Vernoski’s study of the bigamy
provisions in the Manual for Courts-Martial, and MSgt
Vernocki’s ordering of appellant to report to his office to
respond to the “accusations” made by the first Mrs. Swift.
Based on the foregoing considerations, in the context of
the information provided by the first Mrs. Swift and the
information developed through their own inquiries, we
conclude as a matter of law that the Government failed to rebut
the strong presumption that MSgt Vernoski’s interrogation
was part of an investigation that included disciplinary
purposes. Under the circumstances, he should have provided
appellant with the statutorily required rights’ warnings,
including the warning that he did not have to “make any
statement regarding the offense” of which he was suspected.
16a
Art. 31(b). Accordingly, we hold that the military judge erred
when he determined that rights’ warnings were not required
under Article 31(b).
D. Admissibility of Unwarned Statements
We next examine whether the verbal statements,
although unwarned, were nonetheless admissible. Congress, in
Article 31(d), provided a strict enforcement mechanism to
implement the rights’ warning requirements in Article 31(b):
No statement obtained from any person in violation of
this article, or through the use of coercion, unlawful
influence, or unlawful inducement may be received in
evidence against him in a trial by court-martial.
This provision, like Article 31(b), was established by
Congress in the aftermath of World War II. Since then,
Congress has not exempted any of the substantive offenses
under the UCMJ from the coverage of Article 31(d), no matter
how serious. Article 31(d) applies to all substantive crimes,
including offenses that have a critical impact on good order,
discipline, and national security, such as murder, rape, robbery,
aiding the enemy, mutiny, espionage, spying, and making false
official statements. See United States v. Price, 7 USCMA 590,
23 CMR 54 (1957) (invalidating, as inconsistent with Article 31,
a provision of the Manual for Courts-Martial that permitted
use of a statement obtained in violation of Article 31(b) to
prove a charge of making a false official statement).
More than 40 years have passed since we observed in Price
that the express language of Article 31 did not permit a false
official statement prosecution to be based upon an unwarned
statement. Congress has amended the UCMJ numerous times
since Price was decided in 1957, but none of the amendments has
modified the clear limitations in Article 31(d).’
‘During the same period, by contrast, Congress endeavored to circumscribe
the exclusionary rule under Miranda, see 18 USC §3501. The Supreme Court
recently determined that the legislation was unconstitutional, relying in part on
the doctrine of stare decisis. Dickerson v. United States, ___. U.S. __, __, 120
S.Ct. 2326, 2336, 147 L.Ed.2d 405 (2000).
17a
After Price, the Army issued the following guidance with
respect to the impact of that case on the Manual for Courts-
Martial:
Notwithstanding provisions of par. 140a, MCM,
to the contrary, a prosecution for making a false
official statement is not exempt from restrictions
of Art. 31 regarding pretrial statements of an
accused or suspected person. Accordingly, when a
statement is obtained from an accused who has not
been warned of his right against self-incrimination
and the circumstances are such that the warning is
required by Art. 31, the statement is inadmissible
even though the case in which it is offered is a
prosecution for making a false official statement.
U.S. Army, 1959 Cumulative Pocket Part to the Manual for
Courts-Martial, United States, 1951, at 71 (emphasis in
original). The President, in a subsequent revision of the
Manual, expressly provided that “in a case in which a
_ statement of the accused so obtained [in violation of applicable
warning requirements] is charged as being false, it cannot be
received in evidence to show that he made it.” Para. 140a(6),
Manual for Courts-Martial, United States, 1969 (Revised
edition); see Analysis of Contents, Manual for Courts-Martial,
United States, 1969, Revised Edition at 27-11 (Dep’t of the
Army Pamphlet 27-2 (1970)) (citing. Price).
The 1951 Manual, in a separate provision regarding
impeachment of witnesses, provided that an accused who
testified as a witness could not be cross-examined on the basis
of a statement obtained in violation of applicable rights’
warning requirements, para. 1536(2)(c), and this provision was
retained with minor modifications in the 1969 Manual.
Subsequently, in United States v. Jordan, 20 USCMA 614, 44
CMR 44 (1971); we considered the impact of the Manual’s rule
in a situation where the member received rights’ warnings
under Article 31 but did not receive the right-to-counsel
warnings required by United States v. Tempia, 16 USCMA 629,
37 CMR 249 (1967) (holding that the warnings required by
Miranda v. Arizona, 384 U.S. 486 (1966), apply to custodial
18a
interrogations in the armed forces). Although we concluded in
Jordan that the statement could not be used for impeachment
based on the Manual’s restrictions, we noted that the President
was not precluded from amending the Manual to permit
impeachment of a testifying accused through use of a
statement obtained without provision of such warnings. Jordan
was based on the premise that the “shield” provided by the
rights’ warning requirements “cannot be perverted [by a
testifying defendant] into a license to use perjury by way of a
defense, free from the risk of confrontation with prior
utterances.” 20 USCMA at 617, 44 CMR at 47 (quoting Harris
v. New York, 401 U.S. 222, 226 (1971)).
Despite the invitation for change set forth in Jordan, the
two significant revisions of the Manual for Courts-Martial
adopted in the 1970s did not address the impeachment issue.
See Exec. Order No. 11835, 40 Fed. Reg. 4247 (1975); Exec.
Order No. 12018, 42 Fed. Reg. 57943 (1977). The Manual
continued to preclude impeachment by an unwarned statement
until the evidentiary material in the Manual, which included
extensive guidance and examples, was replaced entirely by the
Military Rules of Evidence in 1980. Chapter XXVII, Manual
For Courts-Martial, United States, 1969 (Revised edition); see
Exec. Order No. 12198, 45 Fed. Reg. 169382 (effective Sept. 1,
1980).
Reflecting the fact that Jordan involved a situation in
which there had been compliance with the rights’ warning
requirement under Article 31 but noncompliance with the
constitutionally-based, Miranda-Tempia counsel warning
requirements, the 1980 amendments permitted impeachment of
a testifying accused by an unwarned statement, but limited the
provision to statements obtained in violation of the Miranda-
Tempia, counsel warning requirements. Under the new rule,
Mil.R.Evid. 304(b), a statement obtained after failure to
provide the Miranda-Tempia warning concerning the right to
consult with counsel could be used “to impeach by contradiction
the in-court testimony of the accused or the use of such
statement in a later prosecution against the accused for
perjury, false swearing, or the making of a false official
19a
statement.” The Drafters’ Analysis noted that this provision
“adopts Harris v. New York, 401 U.S. 222 (1971) insofar as it
would allow use for impeachment or at a later trial for perjury,
false swearing, or the making of a false official statement, or
statements taken in violation of the counsel warnings required
under Rule 305(d)-(e).” The Analysis emphasized the limited
scope of the new rule by adding: “A statement obtained in
violation of Article 31(b), however, remains inadmissible for all
purposes... .” 1969 Manual, supra at A18-19.
In 1990, the Rule was amended further to permit limited
use of a statement obtained in violation of the warning
requirements of Article 31(b) and the related Military Rules of
Evidence “to impeach by contradiction the in-court testimony
of the accused or the use of such statement in a later
prosecution against the accused for perjury, false swearing, or
the making of a false official statement.” The Drafters’
Analysis cited Harris and our decision in United States v.
Williams, 23 MJ 362 (1987). Furthermore, the Analysis,
reflecting Harris, stated that “[a]n accused cannot pervert the
procedural safeguards of Article 31(b) into a license to testify
perjuriously in reliance on the Government’s disability to
challenge credibility utilizing the traditional truth-testing
devices of the adversary process.” The Analysis also noted that
when there is a violation of the rules requiring cessation of
questioning, “the deterrent effect of excluding the unlawfully
obtained evidence is fully vindicated by preventing its use in
the Government’s case-in-chief, but permitting its collateral
use to impeach an accused who testifies inconsistently or
perjuriously.” Manual for Courts-Martial, United States (1998
ed.) at A22-10.
The underlying theory of the 1990 change was that the
accused is the gatekeeper as to admission of the unwarned
statement and that only an inconsistent or perjurious
statement by an accused who testifies at trial opens the gate.
The accused, in deciding whether to testify, must consider
whether he or she will thereby risk impeachment by
contradiction or a “later prosecution.” Mil. R. Evid. 304(b).
The rule is based on the premise that Article 31(d) provides a
20a
shield when the prosecution seeks to use an unwarned
statement as a sword against the accused, but does not shield
an accused from cross-examination or a later prosecution
when it is the accused, not the Government, who opens the
door to questioning the veracity of his or her testimony at
trial.* Cf. Williams, supra at 367-68 (precluding use of an
unwarned statement to rebut evidence presented on behalf of
an accused who has not opened the door through his or her in-
court testimony).
Although in-court testimony is not at issue in the present
case, we note that when an accused has opened the door to
consideration of an unwarned statement through such
testimony, reliance on Mil.R.Evid. 304(b) in a “later
prosecution” may be viewed as consistent with our
precedents regarding impact of actions by an accused in a
judicial setting that affect the member’s statutory rights. See,
e.g., United States v. Gammons, 51 MJ 169, 183 (1999)
(although the accused is the gatekeeper as to admissibility of
records of prior non-judicial punishment for the same
offenses, the Government may rely on such evidence if the
accused has opened the door); cf. United States v. Dowty, 48
MJ 102, 110 (1998) (if the accused invokes a judicial
proceeding under the Right to Financial Privacy Act, which
has the effect of delaying military justice proceedings, the
Government can rely on the provisions of that Act tolling
“any applicable statute of limitations”).
Because appellant did not testify in the present case, the
unwarned statements were not used for purposes of
impeachment or otherwise to prove that he testified falsely at
*Cf. United States v. Lewis, 12 MJ 205, 208 (CMA 1982) (noting in dicta that
a person who chooses to testify falsely rather than asserting the privilege
against self-incrimination can be prosecuted for perjury regardless of
whether the statement would be admissible with respect to another offense).
The dicta in Lewis was confined to the example of an accused whe opened the
door by testifying. The actual holding in Lewis, which involved a charge of dis-
respect to a superior commissioned officer, is limited to permitting use of an
unwarned statement to show the disrespect. The Court emphasized that the
use with respect to that offense was “not in any way related to the truth, fal-
sity, or reliability of its meaning.” Id. at 208.
2la
trial. The Government, however, asks us to apply Mil.R.Evid.
304(b) in a manner that would permit unwarned statements
made during an investigation and obtained in violation of
Article 31(b) to be introduced by the prosecution to prove
essential elements of false official statements in its case-in-
chief.
We decline to interpret the Rule as applying to
circumstances in which the accused has not opened the door
to consideration of the unwarned statement by his or her in-
court testimony. Applying the rule to a non-testifying
accused, as urged by the Government, would place the Rule in
direct conflict with Article 31(d). See United States-v. Price,
supra. In any such conflict, the Manual provision must yield
to the statute. Article 36(a), UCMJ, 10 USC § 836(a) (the
rules of evidence in the Manual for Courts-Martial may not be
“contrary to or inconsistent with” the Code); United States v.
Lopez, 35 MJ 35, 39 (CMA 1992) (under the “hierarchical
sources of rights” applicable to the military justice system,
federal statutes prevail over provisions of the Manual for
Courts-Martial unless the Manual provision provides the
servicemember with greater rights than the statute).
These considerations are particularly important in the
absence of congressional action to overturn a precedent of
this Court that is based upon the plain meaning of a statute
and that is consistent with the context in which the statute
was enacted. See Connecticut National Bank v. Germain, 503
U.S. 249, 253-54, 112 S.Ct. 1146, 1149, 117 L.Ed.2d 391,393
(1992)(“[I]n interpreting a statute a court should always turn
first to one, cardinal canon before all others. We have stated
time and again that courts must presume that a legislature
says in a statute what it means and means in a statute what it
says there.”)
We are well aware of the corrosive impact of false
statements on military effectiveness, and we have
forthrightly rejected precedents from the civilian sector that
would diminish the effectiveness of Article 107. See United
States v. Solis, 46 MJ 31 (1997) (rejecting the so-called
“exculpatory no” defense to false-statement prosecutions
i
i
£
:
|
t
{
;
;
22a
under Article 107).‘ In declining to apply civilian analogies to
Article 107, Solis reflected our deference to the paramount
role of Congress in shaping the military justice system. We
emphasized that Congress, which created the military’s false
official statement statute embodied in Article 107, did not
include an “exculpatory no” defense in Article 107 and that
the responsibility for evaluating the desirability of including
such a provision was within the province of the Legislative
Branch, not this Court. Jd. at 36.
The same considerations apply to the present case. The
requirement to provide specific rights’ warnings in Article
31(b) and the restriction on use of statements obtained in
violation of those rights in Article 31(d) represent decisions
made by Congress, not this Court. In the more than 40 years
since Price was decided — including many years in which the
Manual for Courts-Martial expressly prohibited use of
unwarned statements in false statement prosecutions —
Congress took no action to create an exception to Article 31(d)
for false statement cases arising under Article 107.
Congressional inaction, in such circumstances, must be given
great weight “because the primary responsibility for
overruling decisions on statutory construction is with
Congress.” United States v. Gibson, 43 MJ 343, 346 (1995). The
decision as to whether it is necessary to reexamine the
relationship between Article 31(d) and Article 107 to determine
whether unwarned statements should be admissible in the
case-in-chief against a non-testifying servicemember for
making a false official statement rests with Congress, not this
Court. Cf. 18 USC § 6002 (proscribing use of certain immunized
testimony “in any criminal case, except a prosecution for
perjury, giving a false statement, or otherwise failing to comply
with the order” to provide immunized testimony).
‘We reached this decision notwithstanding the fact that a majority of the
federal appellate courts that had addressed the issue at the time of our deci-
sion had endorsed the exculpatory-no doctrine with respect to a similar
civilian offense). See 46 MJ at 34 & n.9. Subsequently, the Supreme Court dis-
approved use of the excuplatory-no defense in federal, civilian criminal trials.
Brogan v. United States, 522 U.S. 398, 118 S.Ct. 805, 139 L.Ed.2 830 (1998).
23a
The dissent suggests that we should rely on analogies
__from civilian life to exempt Article 107 offenses from the
coverage of Article 31(d). In some instances, consideration of
criminal law developments in the civilian sector may be helpful
when addressing aspects of the military justice system.
However, when this Court assesses legislation created by
Congress under its constitutional authority to “raise and
support” the armed forces and “make Rules for the
Government and Regulation” of those forces, we must be
guided by the highest degree of deference to congressional
action. U.S. Const., art. I, § 8, cl. 12-14; Rostker v. Goldberg, 453
U.S. 57 (1981). So long as Congress does not act in disregard of
the Constitution, we are obligated to respect congressional
judgments as to the rights and obligations of members of the
armed forces. Id. at 67. Judicial deference to the balance drawn
by Congress applies not only when Congress has provided
servicemembers with rights less protective than those
available to their civilian counterparts, but also when Congress
has provided greater rights.
The dissent is based primarily upon cases from the civilian
sector, none of which involve the factual predicate we have in
this case—the prosecution for a false statement, made in the
absence of required self-incrimination warnings, and admitted
during the prosecution’s case-in-chief. Instead, many of the
cases cited in the dissent involve circumstances in which a
person held a grant of immunity, testified, and then was
prosecuted on the grounds that the testimony was false. Those
cases are based on the premise that a person who knows that
he or she has the protection against self-incrimination
embodied in a grant of immunity cannot choose to abuse the
privilege through false testimony. This is in stark contrast to
the present case, which involves a non-testifying person who
was not provided with a statutorily required warning about
self-incrimination protections. Most of the remaining cases
cited in the dissent involve situations in which rights’ warnings
were not required as a matter of law, which mooted the
question whether an illegally obtained statement could be used
against the individual.
24a
The dissent agrees that rights’ warnings were required
under Article 31(b), but declines to apply the statutorily
mandated procedure for enforcing that requirement under
Article 31(d), based on civilian precedent. Although we should
give appropriate consideration to criminal law precedents,
when we interpret the statutory provisions embodied in the
Uniform Code of Military Justice, we must be particularly
cautious in applying analogies from the civilian sector that
involve judicial modifications of judicially-crafted doctrines, see
Dickerson, 120 S.Ct. at 2335, or that involve interpretation of
statutes that do not reflect the unique circumstances of
military service. It is not our province to use such analogies to
vitiate otherwise constitutional judgments by Congress about
the rights and obligations of members of the armed forces.
E. The Production Of The Divorce Decree
The production of the divorce decree, however, raises a
separate issue—whether appellant had a Fifth Amendment or
Art. 31(a) privilege as to the production of the divorce
decree—which is distinct from the requirement to give the
rights’ advisement under Article 31(b). It is well “settled .. .
that a person may be required to produce specific documents
even though they contain incriminating assertions of fact or
belief because the creation of those documents was not
‘compelled’ within the meaning of the privilege.” United States
v. Hubbell, __ U.S. ___, ___, 120 S.Ct. 2037, 2043 (2000). That
proposition rests upon the legal distinction between the
contents of the document and the testimonial significance of
producing the documents. Jd. The contents of documents
voluntarily prepared before the compelled production are not
protected by the Fifth Amendment or Article 31(a) because
the documents “could not be ‘said to contain compelled
testimonial evidence.” Id. at 2043 (quoting Fisher v. United
States, 425 U.S. 391, 409-10 (1976)).
In this case, the record indicates that appellant
voluntarily created a purported divorce decree before MSgt
Vernoski requested its production. Appellant’s personnel
records reflected the fact that he had produced a divorce
25a
decree for purposes of changing spousal enroliment under
DEERS well before MSgt Vernoski initiated his investigation.
The DEERS form stated that appellant was divorced on
September 14, 1994, the same date as listed on the purported
divorce decree later provided to MSgt Vernoski. Additionally,
the second Mrs. Swift told the first Mrs. Swift that she had the
divorce decree in her possession during their first phone
conversation, the day before MSgt Vernoski initiated his
investigation. He also knew that the second Mrs. Swift told the
first Mrs. Swift that the divorce decree indicated that she and
appellant were divorced in September of 1994 and that the
decree was filed in Pike County.’ It is apparent that MSgt
Vernoski’s request for a divorce decree was made in the
context of his understanding that appellant had provided a
document purporting to be a divorce decree to the personnel
office a month earlier.
In short, MSgt Veroski did not simply ask appellant to
provide information about his marital status, but instead
requested appellant to provide a document which appellant
previously had produced at the personnel office to change
appellant’s DEERS form. Under these circumstances, appellant
could not have objected to producing the divorce decree solely on
the basis that the fraudulent contents were incriminating
because MSgt Vernoski’s request was based on facts indicating
that the document, a divorce decree, had been created prior to
the order to produce it. See Fisher v. United States, supra.
The Supreme Court also has stated “that the act of
producing documents in response to a subpoena may have a
compelled testimonial aspect” if “‘the act of production’ . . .
implicitly communicate{s] ‘statements of fact.”” Hubbell, ___U'S.
at __, 120 S.Ct. at 2043; see also United States v. Oxfort, 44 MJ
337, 338 (1995) (citations omitted). Even if appellant’s act of
‘*Although not necessary to our decision on this issue, we note that this was
the same date and location indicated in the divorce decree later provided by
“appellant to MSgt Vernoski. The record also indicates that the second Mrs. Swift
provided a copy of what she believed was appellant's divorce decree to MSgt
Vernoski the day after appellant gave the document in question. Upon compari-
son of the two documents, MSgt Vernoski concluded that they were identical.
26a
producing the divorce decree had testimonial aspects which
arguably were incriminating, the production would fall within the
“required records” exception to the Fifth Amendment and
Article 31(a). See United States v. Shapiro, 335 U.S. 1 (1948); see
also Grosso v. United States, 390 U.S. 62, (1968); Oafort, 44 MJ at
339 (1996). If the Government requires documents to be kept for
a legitimate administrative purpose, neither the content nor the
act of production of these documents are protected by the Fifth
Amendment. See Shapiro, 335 U.S. 1; see also United States v.
Sullivan, 274 U.S. 259 (1927) (rejecting Fifth Amendment
objection to requirement to file income tax return).
To constitute “required records,” the documents must
satisfy the following test: (1) the requirement that they be kept
“must be essentially regulatory”; (2) the records must be the
“kind which the regulated party has customarily kept”; and (3)
the records themselves must be either public documents or
“have assumed ‘public aspects’ which render them at least
analogous to public documents.” 390 U.S. at 67-68; see also In
re Dr John Doe, 711 F. 2d 1187 (2d Cir. 1983).
The requirement-to produce a divorce decree in order to
establish and update military records supporting spousal
eligibility for government benefits is regulatory; the divorce
decree is the type of record customarily kept by a party; and it
is a public record. The personnel office’s requirement for the
servicemember to produce a copy of his divorce decree served
a legitimate administrative purpose—to determine spousal
eligibility for government benefits. Under these circumstances,
the divorce decree was a “required record,” the production of
which falls within the exception to the Fifth Amendment and
Article 31(a). See United States v. Oxfort, supra. Under the
facts and circumstances of this case, even if MSgt Vernoski had
provided the required Article 31(b) warnings, appellant could
not have objected to an order to produce the divorce decree
that he had previously provided to the personnel office.
Because appellant had no Fifth Amendment or Article 31(a)
privilege in either the content or the act of production of the
divorce decree, we conclude that the military judge did not err
in admitting the divorce decree into evidence.
27a
F. Impact Of The Inadmissible Evidence
The question remaining is whether the error in admitting
the verbal statements obtained in violation of Article 31 had a
prejudicial impact. Three aspects of the case potentially were
affected by the illegally obtained statements: the bigamy
conviction, two of the false official statement convictions, and
the sentence.
1. The Bigamy Conviction
In support of the bigamy specification, the prosecution
produced evidence of two marriage certificates— one to the
first Mrs. Swift dated August 28, 1990, and the other to the
second Mrs. Swift dated January 1, 1996—and the fraudulent
divorce decree. Additionally, the prosecution offered the
testimony of the first Mrs. Swift, who testified that she knew of
no divorce action by appellant.
The first Mrs. Swift also testified that she and appellant
specifically decided not to obtain a divorce at the time of their
separation because she would lose her military medical benefits
and dependent identification card. She testified further that
appellant, during a telephone conversation, had told her that he
had a serious interest in another woman, and she asked him
whether he wanted a divorce. She testified that he had
responded that they would just maintain the status quo and not
obtain a divorce. This conversation took place in January 1996
—after, unbeknownst to her, he already had married the second
Mrs. Swift. In light of the significant evidence that was not
derived from the unwarned statements, we are satisfied
beyond a reasonable doubt that appellant was not prejudiced as
to the bigamy conviction.
2. The False Statement Convictions
In the first false statement specification, appellant was
charged with making a false official statement when, in
response to a question from MSgt Vernoski, he said that he was
divorced from the first Mrs. Swift and that a named civilian
28a
attorney had represented him in the divorce proceeding. This
specification was based upon appellant’s verbal response to an
unwarned inquiry. Without that evidence, there is no proof of
an offense, and the specification must be dismissed.
In the second specification at issue, appellant was charged
with making a false official statement when he presented to MSgt
Vernoski “an official statement, to wit: a purported divorce
decree, which document was totally false . ig
Unlike the first specification, the second false official statement
specification was based upon evidence properly admitted against
appellant. In addition to the document itself, the Government
offered evidence that the divorce decree had never been filed at
the Pike County Courthouse nor signed by an active Circuit
Court Judge, as it purported. In light of the Government's
evidence on this specification, we are satisfied that there was
sufficient evidence to find appellant guilty of this specification
without reliance upon any of appellant’s unwarned statements.
3. The Sentence
Even without the first false official statement offense,
appellant remains convicted of making two separate false
official statements; two specifications of writing bad checks;
bigamy; and impeding an investigation. Appellant’s sentence
included a bad-conduct discharge and reduction to the lowest
enlisted grade, but did not include either confinement or
forfeitures. In light of the remaining offenses and the evidence
in this case, we are convinced beyond a reasonable doubt that
the error with respect to the dismissed offense was not
prejudicial as to the sentence.
III. DECISION
The decision of the United States Air Force Court of
Criminal Appeals is reversed as to specification 1 of Charge I.
The finding of guilty as to that specification is set aside, and
that specification is dismissed. In all other respects, the
decision below is affirmed.
29a
SULLIVAN, Judge (concurring in part and dissenting in
part):
Appellant was a soldier with two wives, one of whom was
bombarding his command with complaints about his
suspected bigamy. His first sergeant (Ist Sgt) had good reason
to suspect these complaints were true when he called
appellant into his office to hear “his side of the story.”
Unfortunately, he did not advise appellant of his rights under
Article 31 with respect to this suspected criminal offense.
This failure to warn was wrong as both the majority and I
agree. See generally United States v. Good, 32 MJ 105, 108
(CMA_1991) (and case cited therein).'
Nevertheless, the IST Sgt (in pursuing his duties to clear
up the inconsistencies in appellant’s administrative records
and in response to the complaints of appellant’s first wife)
proceeded to get appellant to explain his true marital status.
The Army had a right to know since housing, medical, and
other administrative benefits are dependent on the correct
marital status of a servicemember. The record shows that
appellant (in response to requests from the IST Sgt) told the
IST Sgt that he was divorced from his first wife and gave the
IST Sgt a false divorce decree. There was no evidence that
appellant was coerced to lie to his IST Sgt or to give a false
divorce decree to him. These acts form the basis for the two
charges of giving false official statements.
Today, the majority sets aside appellant’s conviction on
one of these charges. In the process, it effectively provides
military suspects an unparalleled right to lie in their official
statements to their military superiors or other government
authorities. In my view, such a holding directly contradicts
existing precedent from our Court, an applicable Manual
provision, and analogous Supreme Court, Court of Appeals and
state court decisions. I dissent and would affirm appellant’s
‘The lead opinion in United States v. Good, 32 MJ 105, 108 (CMA 1991), has
been repeatedly recognized as the law of this Court. See United States v.
Muirhead, 51 MJ 94, 96 (1999); United States v. Meeks, 41 MJ 150, 161 (1994);
United States v. Davis, 36 MJ 337, 340 (1993), aff'd, 512 U.S. 452, 114 S.Ct.
2350, 129 L.Ed.2d 362 (1994).
: 23. Res
gate BSE cal ot Us ae pie giee 4 Goce Sends
30a
convictions for making false official statements in violation of _
Article 107, Uniform Code of Military Justice, 10 USC § 907.
When one looks at this case from a distance, one could say
that there is agreement by all the members of this Court on the
requirement for warnings against self-incrimination. The
different outcomes of the majority and my dissent are caused
by the two different approaches to application of the
exclusionary rule to the facts of this case. The majority takes a
broad view of the exclusionary rule which allows appellant to
escape any prosecution for the two false-official-statement
charges. But cf. United States v. Wong, 431 U.S. 174 (1977)
(conviction for perjurious testimony sustained on basis of
evidentiary use of unadvised but false statements); United
States v. Knox, 396 U.S. 77 (1969) (conviction for making false
official statement sustained regardless of validity of
Government’s request for information). My dissent applies a
narrow, more conservative view of the exclusionary rule which
would affirm his convictions for the two false-official-statement
~charges. See Glickstein v. United States, 222 U.S. 139 (1911)
(holding that similarly worded exclusionary-rule statute should
not be interpreted to permit the giving of false testimony with
impunity).
In my view, appellant had the right to be warned not to
incriminate himself, but he had no right to lie in an official
statement or to give a false divorce decree to his superiors in
the U.S. Army. See generally 8 Wigmore, Evidence
§§ 2270(2)(b) n.7 and 2282(1)(c) (McNaughton rev. 1961).
Neither the Constitution nor the Code gives him such a right to
lie or deceive. See Brogan v. United States, 522 U.S. 398, 404
(1998). (“neither the text nor the spirit of the Fifth Amendment
confers a privilege to lie”); United States v. Lewis, 12 MJ 205,
208 (CMA 1982) (following United States v. Madujano, 425
U.S. 564 (1976), and Glickstein v. United States, supra, in
applying Article 31(d)). Moreover, I will not judicially create
such a right of immunity.
The thrust of the majority’s opinion is that the broad
wording of Article 31(d) expresses the careful judgment of
Congress that the servicemember should have an exclusionary
3la
rule affording greater protection than that afforded his civilian
counterpart. 53 MJ at 445. The legislative history of this
provision does not support such speculation by the majority.
Cf. United States v. Apfelbawm, 445 U.S. 115, 121-123 (1980)
(no speculation as to Congress’ intent where it is inescapably
supported by language and legislative history). Moreover, the
majority’s construction of Article 31(d) flouts “constitutional
hornbook” law, well-settled by 1950, that prosecutions for
perjury are permissible even if no perjury exception is
provided in an immunity statute. United States v. Housand,
550 F.2d 818, 822 (2d Cir. 1977) citing United States v. Bryan,
339 U.S. 323(1950); and Heike v. United States, 227 US. 131,
141 (1913) (Holmes, J., noting statutory proviso for perjury
prosecution “added only from superfluous caution”).
—Instead, I adhere to the past decisions of this Court
recognizing that Congress intended our exclusionary-rule
remedy to be commensurate with the Fifth Amendment
exclusionary rule, as traditionally delineated by the Supreme
Court, unless expanded by the President in the Manual for
Courts-Martial. See United States v. Williams, 23 MJ 362, 368
(CMA 1987); United States v. Jordan, 20 USCMA 614, 617, 44
CMR 44, 47 (1971); United States v. Caiola, 18 USCMA 336,
340-41, 40 CMR 48 (1969) (Darden, J., lead meat ane This
Court’s decision in United States v. Lewis, supra, recognized
this point and expressly permitted admission of evidence of
unadvised statements to prove a subsequent disrespect
offense. Moreover, the Supreme Court in Harris v. New York,
401 U.S. 222 (1971), did not suggest that unwarned statements
of a suspect could not be used in the prosecution’s case-in-chief
for any subsequent crimes. See United States v. Wong, supra (a
post-Harris case refusing to apply Fifth Amendment
exclusionary rule to case-in-chief evidence showing perjury
before grand jury).
*In United States v. Lewis, 12 MJ 205, 208 (CMA 1982), a unanimous Court
stated: “Under these circumstances, we hold that failure to give an Article 31
advisement does not bar admission into evidence of the accused’s statement
which, by its substance and context, constitutes a separate and distinct viola-
tion of the Uniform Code.”
> utt ee hg Maes eS Ps
32a
In my view, Harris v. New York, supra, does not support
the broad “case-in-chief”’ exclusionary rule espoused by the
majority in this case. In Harris, the precise question was
whether an accused’s pretrial statement, inadmissible under
Miranda v. Arizona, 384 U.S. 436 (1966), in the prosecution's
case-in-chief to prove the sale of heroin, could nonetheless be
used in rebuttal to impeach an accused’s trial testimony as to
that drug offense. The Supreme Court approved an
impeachment exception to the federal exclusionary rule as a
part of the Miranda decision. 401 U.S. at 224-25. However, it
did not purport to limit exceptions to the Miranda
exclusionary rule to the impeachment situation. In fact, it cited
as authority, United States v. Knox, 396 U.S. 77 (1969), a case
which recognized the traditional false-official-statement
exception to the Fifth Amendment exclusionary rule.
Furthermore, in United States v. Madujano, 425 U.S. 564
(1976), the Supreme Court subsequently approved the
admission of similarly unwarned statements in the
prosecution’s case-in-chief for the offense of making a false
statement to a grand jury. There, it approved its earlier
decision in Bryson v. United States, 396 U.S. 64, 72 (1969)
(prosecution for providing a false affidavit) and stated
“similarly our cases have consistently—indeed without
exception—allowed sanctions for false statements or perjury;
they have done so even in instances where the perjurer
complained that Government exceeded its constitutional
powers in making the inquiry.” 425 U.S. at 577 (emphasis
added); see also United States v, Knox, supra. Federal practice
in this regard seems clear to me. See United States v. Raftery,
534 F.2d 854, 857 (9th Cir. 1976), cited with approval in United
States v. Lopez-Martinez, 725 F.2d 471, 476 (9th Cir. 1984).
The majority broadly dismisses as inapplicable these
Supreme Court cases (Brogan, Wong, Knox, Bryson,
Mandujano, and Glickstein) as well as a decision of one of our
fellow U.S. Courts of Appeals, United States v. Veal, 153 F.3d
1233, 1241 (11th Cir. 1998) (holds that Supreme Court has not
excluded from criminal liability false statements made to
government agents or agencies in violation of the Fifth
33a
Amendment, whether made under oath), cert. denied, 119 S.Ct.
2024 (1999).) In my view, however, although there may be some
differences in terms of the nature of the Fifth Amendment
violation in these cases, that does not alter applicability of their
truthfulness rationale to our particular Article 81(d) question.
The bottom line is that stated long ago in Glickstein v. United
States, 222 U.S. at 142: “[I]mmunity afforded by the
constitutional guaranty relates to the past and does not endow
the person who testifies with a license to commit perjury.”
(Emphasis added.) | |
In my view, Congress was aware of this bedrock judicial
principle of self-incrimination law when it enacted Article 31(d)
and intended it to apply to servicemembers as well. See
generally Brogan v. United States, supra at 406-07 (citing
cases where “background interpretive principles of general
application” considered in construing criminal statute); see
Hearings on H.R, 2498 Before a Subcomm. of the House
Armed Services Comm., 81st Cong., 1st Sess. 984 (1949)
(Article 31 structured to generally conform with “the privilege
against self-incrimination”), and United States v. Aronson, 8
USCMA 525, 529-30, 25 CMR 29, 33-34 (1957).
The majority further suggests that Mil. R. Evid. 304(b)(1)
has been improperly urged by the Government in this case to
permit use of the unadvised statements in a prosecution for
making a false official statement. It notes language in the 1980
Drafters’ Analysis suggesting that “a statement obtained in
violation of article 31(b), however, remains inadmissible for all
purpoves” as supporting its view, I disagree.
Mil. R. Evid. 304(b)(1) (1990) states the contrary. It says:
(b) Baceptions. !
(1) Where the statement is involuntary only in
terms of noncompliance with the requirements of Mil.
R. Evid. 305(c) or 305(f), or the requirements
concerning counsel under Mil. R. Evid 305(d), 305(e),
and 305(g), this rule does not prohibit use of the
statement to impeach by contradiction the in-court
testimony of the accused or the use of such statement
34a
in a later prosecution against the accused for
perjury, false swearing, or the making of a false
official statement.
(Emphasis added.)
This language responded to this Court’s previous decision
in United States v. Jordan, supra at 617, 44 CMR at 47, which
noted that the Manual exclusionary rule was broader than
federal practice. The amended rule permits use of unadvised
statements in the Government’s case-in-chief in a false-official-
statement prosecution as consistent with federal-exclusionary-
rule practice. See United States v. Wong and United States v.
Knox, both supra. Coincidentally, the Drafters’ Analysis for
this new rule no longer contains the Article 31(b) language
touted by the majority.
In sum, there is a basic difference between the majority's
view and my view of this case. It centers on one of the core
aspects of the Federal Exclusionary Rule. I believe Article 31
(like the Fifth Amendment) only applies to past crimes, 1.¢.,
those committed before the interrogation where there were no
self-incrimination warnings. The majority wants to ignore our
Court’s and federal civilian courts’ case law to say that, if there
were no warnings of self-incrimination, any soldier can then lie
under oath in an interrogation (i.e., commit a present crime). I
don’t think that the post-World War II Congress was ignorant
of this distinction between “past” and “present” crimes when
they passed Article 31. In my view, the majority is clearly
wrong in believing that Congress gives immunity for any crime
committed in an unwarned interrogation.
The majority apparently* returns to the out-dated,
absolutist view of Article 31(d) espoused by this Court prior to
"The majority attempts to have it both ways. On the one hand, it asserts
that there are no express exceptions to Article 31(d);in the Uniform Code of
Military Justice, which permit use of this evidence in a false-official-statement
prosecution. On the other hand, it asserts that evidence of unadvised state-
ments may be used as impeachment evidence or to prosecute for perjury if an
accused subsequently testifies falsely at a court-martial. Clearly, the major-
ity’s “gatekeeper” creation is not contained in the language of Article 31(d).
35a
the decision of the Supreme Court in Harris v. New York,
supra. See United States v. Price, 7 USCMA 590, 598, 23 CMR
54, 57 (1957). In doing so, it overrules, sub silentio, our
subsequent decisions which have recognized. Harris v. New
York, supra, and earlier Supreme Court Fifth Amendment
exclusionary-rule cases as the guiding force for our Article
31(d) case law. United States v, Lewis and United States v.
Jordan, both supra. It also breaks ranks with mainstream
jurisprudence in state and lower federal courts. See United
States v. Veal, supra (federal cases cited therein); People v.
Thomasello, 234 N.E. 2d 190 (N.Y. 1967); Butterfield v. State,
992 S.W, 2d 448 (Tex. Crim. App. 1999); McGee v. State, 782
P.2d 1829, 1331-33 (Nev. 1989).
Finally, in my view, the majority essentially holds that
Mil. R. Evid, 304(b)(1) is legally invalid because of Article
31(d). “Applying the rule to a non-testifying accused, as urged
by the Government, would place the Rule in direct conflict with
Article 31(d). In any such conflict the Manual provision must
yield to the statute.” 53 MJ at 451 (citation omitted). Supreme
Court review of the propriety of such a holding would be most
appropriate. See United States v. Scheffer, 523 U.S. 303 (1998)
(Supreme Court overturns decision of this Court that Mil. R.
Evid..707 prohibiting admission of polygraph evidence was
unconstitutional).
36a
APPENDIX B
UNITED STATES, Appellee,
v.
John B. SWIFT, (806-78-6763), Appellant
USCA Misc. Dkt. No. 98-5012/AF
Crim. App. Dkt. No. 32447
ORDER
On further consideration of appellant’s petition for
reconsideration of this Court’s decision, 58 MJ 439 (2000), it is,
by the Court, this, 28th day of September, 2000,
ORDERED:
That said petition for reconsideration is hereby denied.
For the Court,
/s/ Thomas F. Granahan
Clerk of the Court
cc: The Judge Advocate General of the Air Force
Counsel for Appellant (JACOBSON)
Counsel for Appellee (WHEELER)
37a
APPENDIX C
UNITED STATES
v.
Staff Sergeant John B. SWIFT, FR3806-78-6763
United States Air Force
ACM 82447
4 December 1997
Sentence adjudged 18 September 1996 by GCM
convened at Shaw Air Force Base, South Carolina.
Military Judge: Keith L. Roberts.
Approved sentence: Bad-conduct discharge and
reduction to E-1.
Appellate Counsel for habphtnass Lieutenant Colonel
Kim L. Sheffield.
Appellate Counsel for the United States: Colonel
Brenda J. Hollis, Lieutenant Colonel Michael J.
Breslin, and Captain Steven D. Dubriske.
Before
PEARSON, MORGAN, and SPISAK
Appellate Military Judges
OPINION OF THE COURT
MORGAN, Judge:
Appellant was convicted consistent with his pleas of
presenting a false official statement. Contrary to his pleas,
officer court members found him guilty of bigamy, impeding an
investigation, two false official statements, and writing bad
_¢checks. The members sentenced him to a bad-conduct
discharge and reduction to E-1. Appellant contends that the
military judge erred by failing to suppress certain statements
he made to his first sergeant without rights warnings, that
using the same act as the basis for one of the false statement
specifications and the impeding an investigation charge
38a
constituted an unreasonable multiplication of charges, and that
Article 57(a), UCMJ, violates the Ex Post Facto Clause of the
Constitution with respect to his case. Although we find merit
in the ex post facto claim, we affirm the findings and sentence.
Factual Background
Appellant’s wife, JS, contacted his section commander,
Captain Myatt, on Friday, March 8, 1996. JS told Captain Myatt
that a woman named SS had called to tell her that appellant had
divorced JS and was now married to SS. JS told Captain Myatt
that she wanted to know if she was still married to appellant and
entitled to dependent benefits. JS and appellant had been
separated for several years. JS was living in Michigan with their
child while appellant was living at Shaw Air Force Base, South
Carolina. JS told Captain Myatt that she thought it was possible
they were divorced since they had been discussing it for some
time, but she wasn’t aware of any divorce action and wanted to
be sure. She also said she wanted to get a copy of the divorce
decree if one existed, and that she wanted to press bigamy
charges against appellant if he hadn’t actually divorced her.
Captain Myatt told the first sergeant, Master Sergeant (MSgt)
Vernoski, about the call and asked him to look into the matter.
MSgt Vernoski first checked the unit’s emergency data
cards and found that JS was still listed as appellant’s wife. He
then went to the Military Personnel Flight (MPF) to check
appellant’s records. He discovered that appellant had recently
changed the information in the Defense Eligibility Enrollment
Reporting System (DEERS) to reflect SS as his wife. MPF
personnel informed MSgt Vernoski that, to make this change,
appellant would have been required to produce a copy of the
divorce decree. MSgt Vernoski also learned that appellant had
not yet changed his emergency data card at the MPF to reflect
SS as his wife, but that appellant was in the process of doing so.
Following his visit to the MPF, MSgt Vernoski went by the legal
office to discuss some other pending disciplinary actions with
Major Davis, the Chief of Military Justice. While there, he briefly
mentioned appellant’s possible bigamy case to Major Davis.
—_—_—
39a
MSgt Vernoski arranged to have appellant come to his office
the following Monday morning. Before appellant arrived, JS
called the squadron again and spoke to MSgt Vernoski directly.
She repeated what she had told Captain Myatt. She also told him
that she had called the courthouse in Pike County, Kentucky, and
that the clerk was unable to locate a record of appellant’s clairned
divorcee. She provided MSgt Vernoski with the clerk’s name and
phone number. Out of “curiosity,” MSgt Vernoski used his office
copy of the Manual for Courts-Martial (MCM) to review the
elements of the offense of bigamy. When appellant arrived, MSgt
Vernoski told him about the call from JS and asked if he was
divorced. Appellant told him that he had been divorced from JS
since September 14, 1994, and that she was probably just trying
to cause him trouble. MSgt Vernoski mentioned to appellant that
she could cause him trouble if he was not divorced and pointed
out that the maximum punishment for bigamy in the MCM
included two years confinement.
Appellant agreed to bring MSgt Vernoski a copy of the
divorce decree the next morning. However, appellant said he
didn’t want a copy of the divorce decree provided to JS, because
his attorney had told him that, if she got a copy of the decree, it
thought this was an odd comment. MSgt Vernoski remembered
_ counselling appellant in late 1995 about a complaint from JS that
she was not receiving proper support from appellant. He
reminded appellant that, at that time, appellant told him he was
still married to JS. Appellant told MSgt Vernoski that he didn’t
recall saying that. During that earlier counselling session,
appellant told MSgt Vernoski that he had arranged through
finance for a support allotment to go to JS. When MSgt Vernoski
checked this out, he discovered that appellant was telling the
truth, but that finance had mishandled the paperwork.
Over the next two days, appellant told MSgt Vernoski
several times that he could not produce a copy of the divorce
decree because his attorney was unavailable to provide it to
him. At one point appellant did produce some legal papers that
dealt with child custody, but MSgt Vernoski told him he needed
to see the actual divorce decree. On Wednesday afternoon,
40a
appellant finally provided a document entitled “Petition for
Divorce” to MSgt Vernoski. MSgt Vernoski thought the
document looked suspicious because it wasn’t signed by JS, had
numerous misspellings, and lacked legal terminology. He took
it to the legal office for Major Davis to review. He had been
keeping Major Davis informed of the progress of his inquiry
into appellant’s marital status. After turning the paperwork
over to the legal office, MSgt Vernoski had no further
involvement in the investigation. Major Davis discovered that -
the attorney appellant said represented him in the divorce had
only represented him in a child custody matter. He also
learned from the Circuit Court in Pike County, Kentucky, that
there was no record of appellant’s divorce and that the person
shown-asthe judge on the purported divorce decree was not a
judge on that court. The Air Force Office of Special
Investigations then took over the case.
MSgt Vernoski did not warn appellant of his Article 31,
UCM, rights at any time during their various discussions
about his marital status. MSgt Vernoski testified that he was
trying to help JS clarify her dependent status, and he never
actually suspected appellant was not divorced and might be
lying to him until appellant produced the questionable divorce
decree. At that point, he turned the matter over to the legal
office and never questioned appellant further. Appellant's oral
statement that he was divorced was the basis for one of the
false official statement specifications. The act of providing the
fake divorce decree to MSgt Vernoski was the basis for another
false official statement specification and the impeding an
investigation specification. The false official statement charge
to which appellant pled guilty dealt with bank errors related to
the bad checks he had written.
Failure to Suppress Appellant’s Statements
We review the military judge’s ruling on a motion to
suppress to determine if he abused his discretion. While we
review the judge’s findings of fact under a clearly erroneous
standard, we review his conclusions of law de novo. United
States v. Ayala, 43 M.J. 296, 298 (1995). A servicemember is
ea ne Le eh, Oe ng Pe eT ee De ad, Ee ae DORE ARE Ue Pca Wy cS Oa eeeah ae. eNO eh ee gt te eee ee td
c . DNs, iad DEA Cae 2 i.
4la
entitled to rights advisement under Article 31(b), UCMJ, “only
if he is a suspect at the time of the questioning and the
questioning itself is part of an official law-enforcement
investigation or disciplinary inquiry.” United States v. Good, 32
M.J. 105, 108 (C.M.A. 1991). “The test to determine if a person
is a suspect is whether, considering all facts and circumstances
at the time of the interview, the government interrogater—
believed or reasonably should have believed that the one
interrogated committed an offense.” United States v. Kendig,
36 M.J. 291, 294 (C.M.A. 1998). :
The military judge found that, under the circumstances of
appellant’s case, MSgt Vernoski was not acting in either a law
enforcement or disciplinary capacity. The judge found that
MSgt Vernoski was trying to help JS clarify her dependent
status and that he did not suspect appellant of the offense of
bigamy. He further found “that there were insufficient
circumstances that caused or reasonably should have caused
Sergeant Vernoski to suspect the accused of the criminal
offense of bigamy.” These findings are supported by the record
and the judge’s explanation of his findings. See United States v. alt
Pownall, 42 M.J. 682, 687 (Army Ct. Crim. App. 1995), pet.
denied, 43 M.J. 229 (1995).
JS was not sure of her current marital status when she
contacted the unit. She admitted that she might be divorced,
but she wanted to know for sure. She based her concerns on a
call from appellant’s purported new wife. MSgt Vernoski was
aware that appellant and JS had been living apart for some
time. Even though he thought he remembered appellant
telling him in the fall of 1995 that he was still married to JS,
appellant had been truthful with him during the counselling
about dependent support only a few months earlier.
Appellant’s initial representation that he was divorced was
supported by the DEERS records showing SS as appellant’s
current wife and by the fact that MPF personnel told MSgt
Vernoski that appellant would have needed a divorce decree to
make that change. Appellant’s excuses to MSgt Vernoski that
his attorney was in court and unavailable to provide a copy of
the divorce decree were not suspicious on their face or unusual
pecan ENO COED CORLL AO COLD ~
42a
from the standpoint of MSgt Vernoski’s experience. Although
it may be a close call, we, like the military judge, are convinced
that MSgt Vernoski neither believed appellant was a suspect
nor reasonably should have believed him to be a suspect at any
of the times he questioned him. As soon as he saw the fake
divorce papers and became suspicious, he immediately turned
them and any further inquiry over to the legal office. The
military judge’s factual findings were not clearly erroneous and
his conclusions of law were correct. The judge did not err by
failing to suppress appellant’s statements to MS * Vernoski.
We note that, even if MSgt Vernoski had been required to
provide appellant with Article 31(b) rights warnings as to the
offense of bigamy, appellant made no incriminating statements
to him concerning bigamy. See United States v. Schake, 30 MJ.
314, 320 (C.M.A. 1990); Pownall, 42 M.J. at 688. Further,
appellant’s false oral and written statements to MSgt Vernoski
that he was divorced could permissibly be used as the basis for
false official statement charges. R.C.M. 304(b)(1). His written
statement (the fake divorce decree) could also be used as the
basis for the offense of impeding an investigation, a crime
totally separate and distinct from bigamy. See United States v.
Lewis, 43 M.J. 886, 888 (A.F. Ct. Crim. App. 1995), aff'd, 46 MJ.
19 (1997).
Unreasonable Multiplication of Charges
Appellant moved at trial to have the false official
statement and impeding an investigation specifications, which
were both based on appellant’s act of providing a fake divorce
decree to MSgt Vernoski, found multiplicious for findings and
sentencing. The judge denied the motion. The government
contends, citing our. decision in United States v. Erby, 46 MJ.
649 (A.F. Ct. Crim. App. 1997), that appellant has waived the
issue of unreasonable multiplication of charges by failing to
raise it at trial. See also United States v. Earle, 46 MJ. 823,
825 (A.F. Ct. Crim. App. 1997). They contend that the military
judge could not have erred in reviewing the command’s
exercise of charging discretion since he was never asked to
review it.
43a
At the time of trial, our decisions in Erby and Earle had
not been rendered. Although the defense did not specifically
use the terminology “unreasonable multiplication of charges”
or refer to either R.C.M. 307(c)(4) (Discussion) or R.C.M.
1003(¢)(1)(C) (Discussion), trial defense counsel did argue that
the two offenses arose out of the exact same act, and, in
fairness, they should not be separately punished. The ‘military
judge did have available the guidance from our superior court
that “military judges must still exercise sound judgement to
ensure that imaginative prosecutors do not needlessly ‘pile on’
charges against a military accused.” See United States v.
Morrison, 41 M.J. 482, 484 n. 3 (1995); United States v. Foster,
40 M.J. 140, 144 n. 4 (C.M.A. 1994). Under these
circumstances, appellant adequately raised the issue at trial.
However, the judge was specifically relying on our
guidance that “the concept of multiplicity for sentencing does
not exist any more under our current law” and that “[ilf
offenses are separate for finding purposes, they are also
separate for sentencing purposes.” United States v. Lloyd, 48
MJ. 886, 888 (A.F. Ct. Crim. App. 1995), aff'd, 46 M.J. 19 (1997).
We reiterated this position a month after the completion of
appellant’s trial when we stated “if offenses are separate for
findings, they are separate for sentencing. The converse is also
true; if offenses merge for sentencing, they also merge for
findings.” We were telling trial judges that granting only
sentencing multiplicity relief was no longer a correct path to
follow when the defense raised a constitutional multiplicity
issue. United States v. Dolbow, 44 M.J. 814, 815 (A.F. Ct. Crim.
App. 1996), pet. denied, 46 M.J, 424 (1997). It was not until six
months after appellant’s trial that we first encouraged military
judges to exercise their equitable power to adjust the
maximum sentence in cases where they found there had been
an unreasonable multiplication of charges or “piling on” during
the charging process but no multiplicity in the constitutional
_ sense. Erby, 46 M.J. 652. Since the military judge in
appellant’s case was following the legal guidance available to
him, we would not have expected him to grant appellant any
relief, and. he did not abuse his discretion by failing to do so.
i
|
|
|
44a
Further, we are convinced that, even if the military judge
had adjusted appellant’s maximum sentence downward using
his equitable power or based on the old multiplicity for
sentencing approach, it would not have affected the members’
sentence. Treating the two offenses in question as one for
sentencing would have reduced the maximum confinement
period from 28 to 23 years. Appellant received no confinement
from the members, and, based on his offenses, we are
convinced he would still have received a bad-conduct discharge .
and reduction to E-1. We are also convinced appellant’s
sentence was appropriate for his offenses. Article 66(c),
UCM.
Ex Post Facto Nature of Article 57(a)
Finally, appellant contends that the amendment to Article
57(a), UCMJ, which became effective on April 1, 1996, violates
the Ex Post Facto Clause of the United States Constitution with
respect to his case. For appellant, these amendments made his
reduction in rank effective 14 days after the sentence was
adjudged rather than at the later time of the convening
authority’s action in his case. Appellant’s ex post facto arguments
were resolved by the United States Court of Appeals for the
Armed Forces in United States v. Gorski, ___ MJ. _____ No. 97-
0034 (Nov. 18, 1997). Accordingly, “[cJollection of any y forfeitures,
and execution of the reduction in grade prior to the date of the
convening authority’s action are hereby declared to be illegal.
Any [such illegal] forfeitures already collected from appellant and
any pay and allowances withheld because of [an] illegal reduction
in grade will be restored. . The record of trial is returned to The
Judge Advocate General . . . for appropriate action.” Id., slip op.
at 11. This case need not be returned to this Court following
administrative correction unless further appellate review is
required.
Other Issues
Although not raised by appellant, we noted one other
issue in this case which merits brief discussion. During his
45a
instructions to the members on the Article 123a, UCMJ, bad
check offense, the military judge curiously stated several times
that this offense is “commonly referred to as larceny by check.”
We would not find that to be a correct characterization since
larceny by the use of a check can be, and frequently is, charged
as larceny under Article 121, UCMJ. In fact, Article 123a does
not necessarily require a permanent intent to deprive the
owner of the funds, a temporary deprivation will do, while
Article 121 larceny clearly does require a permanent intent to
deprive. We point this out only for technical accuracy and not.
because this mischaracterization of the offense was an error
requiring corrective action. However, when instructing the
members on the lesser included offense of the Article 123a
offense, the military judge misstated the elements. Concerning
the lesser included offense of dishonorably failing to maintain
sufficient funds, in violation of Article 134, UCMJ, he
incorrectly informed them that the second element required
“the check was made and uttered with the intent to defraud.”
(Emphasis added.) While intent to defraud was required for
the Article 123a offense, it is not part of the elements for the
Article 134 offense. Since the members, nonetheless, found
appellant guilty of only the lesser included Article 134 offense
with its lesser maximum punishment, we find no prejudice to
appellant from this instructional error. ~~
The approved findings of guilty and the sentence are
correct in law and fact and, on the basis of.the entire record,
are
AFFIRMED.
Senior Judge PEARSON and Judge SPISAK concur. =~
OFFICIAL
LAURA L. GREEN
Clerk of Court
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.