2005
United
States v. Reeves, 61 M.J. 108 (the administration of justice is not
criminally obstructed by a witness exercising that witness’s
constitutional
privilege against self-incrimination and the right to counsel).
(without more, a person’s advice to another to invoke certain rights,
where the
advice given is honest and uncorrupt, should not as a matter of law
sustain a
conviction to obstruction of justice; however, that does not mean, as a
matter
of law, that reference to advice as constitutional, precludes
consideration as
to whether that advice was indeed constitutional in nature, uncorrupt,
and thus
protected conduct for the purposes of obstruction under Article
134).
(whether an accused’s conduct was wrongful and thus constituted
obstruction of
justice will turn on contextual factors presenting questions of fact
for the
members, including, among other things, the actor’s tone and manner of
delivery; in those instances where the advice given is honest,
uncorrupt, and
disinterested, we agree that giving such advice is not wrongful; but
one who
advises, with a corrupt motive, that a witness exercise a
constitutional right
or privilege may obstruct the administration of justice; the lawful
behavior of
the person invoking the right cannot be used to protect the criminal
behavior
of the inducer; and this is the analytic approach taken by a majority
of the
federal circuits).
(as a matter of law, and under the circumstances of this case, an
accused may
be convicted of obstruction of justice by telling another not to speak
to
investigators and to seek counsel; the facts indicate that appellant
was not a
disinterested party; she was aware of the investigation into her
conduct and
that the person she advised to exercise her rights was a potential
witness in
that investigation; the nature and manner of her advice took her
statements to
the potential witness outside the zone of constitutional protection).
(a wrongful act is one done without legal justification or with some
sinister
purpose; advising a witness to exercise certain constitutional rights
and
privileges may be wrongful if accompanied by a corrupt motive to
influence,
impede, or otherwise obstruct the due administration of justice).
(where
the
record indicates that shortly after being apprised she was under
investigation
for her conduct with another servicemember, appellant began frequently
calling
that servicemember at her workplace and home to advise her not to talk
to a defense
counsel or to law enforcement personnel, a rational trier of fact might
have
found beyond a reasonable doubt that appellant’s statements were
wrongful and
indicative of an intent to dissuade the servicemember from cooperating
with the
recently initiated investigation; even if one accepts for the sake of
argument
that telling a witness not to speak to investigators is tantamount to
advising
a witness of that witness’s right to silence, the tone, frequency, and
background of appellant’s calls raised legitimate questions of fact for
the
members regarding the wrongfulness and intent of the calls).
2002