UNITED STATES, Appellee
Jorge L. RODRIGUEZ, Yeoman Third Class
BAKER, J., delivered the opinion of the Court, in which CRAWFORD, C.J., GIERKE, and ERDMANN, JJ., joined. EFFRON, J., filed a separate dissenting opinion.
For Appellant: Lieutenant Elysia G. Ng, JAGC, USNR (argued).
For Appellee: Captain Glen R. Hines, JAGC, USMC (argued); Commander Robert P. Taishoff, JAGC, USN (on brief).
Amici curiae: Daniel M. Kummer, Esq. (argued); Eugene R. Fidell, Esq. (on brief) – for the National Broadcasting Corp., Inc. Jennifer Jaskel (law student)(argued); Patricio Asfura-Heim and Ryan Tierney (law students), and Kevin J. Barry, Esq. (supervising attorney)(on brief) – for the Catholic University of America, Columbus School of Law, Military and National Security Law Student Association.
Military Judge: W. F. Grant
this opinion is subject to editorial correction before final publication.
Judge BAKER delivered the opinion of the Court.
In February 1994, Appellant was
tried by a general court-martial composed of officer and enlisted
members. Contrary to his pleas, he was
attempted transfer of firearms, conspiracy, desertion, failure to obey
general regulation, unlawfully engaging in the business of dealing in
unlawful transfer of firearms and the unlawful possession of firearms,
violation of Articles 80, 81, 85, 92 and 134, Uniform Code of Military
[hereinafter UCMJ], 10 U.S.C. §§ 880, 881, 885, 992 and 934 (2000),
respectively. The adjudged and approved
sentence included a bad-conduct discharge, confinement for ten years,
forfeiture of $200 pay per month for sixty months, and reduction to E-1. The Court of Criminal Appeals affirmed.
WHETHER THE MILITARY JUDGE ERRED IN DENYING APPELLANT’S MOTION TO ORDER THE PRODUCTION OF NBC’S RECORDINGS RELATING TO APPELLANT’S TRAFFIC STOP AND SUBSEQUENT DETAINMENT, SEARCH AND INTERROGATION.
We specified the following issues:
WHETHER THERE WAS AN ILLEGAL SEIZURE OF APPELLANT IN CONJUNCTION WITH THE STOP OF APPELLANT’S CAR AND, IF THERE WAS AN ILLEGAL SEIZURE, WHETHER APPELLANT'S ORAL AND WRITTEN ADMISSION AND ANY SUBSEQUENTLY SEIZED PHYSICAL EVIDENCE SHOULD HAVE BEEN EXCLUDED.
WHETHER SPECIAL AGENT GRABMAN OF THE BUREAU OF ALCOHOL, TOBACCO, AND FIREARMS WAS REQUIRED UNDER THE CIRCUMSTANCES TO ADVISE APPELLANT OF HIS RIGHTS UNDER ARTICLE 31, UNIFORM CODE OF MILITARY JUSTICE.
WHETHER THE ESTABLISHED ATTORNEY-CLIENT RELATIONSHIP BETWEEN APPELLANT AND HIS ORIGINAL DUBAY DEFENSE COUNSEL WAS IMPROPERLY SEVERED IN THE MIDST OF THE DUBAY PROCEEDINGS, IN TERMS OF WHETHER APPELLANT KNOWINGLY CONSENTED TO THE CHANGE OR THERE WAS OTHERWISE AN APPROPRIATE REASON FOR SEVERANCE ABSENT APPELLANT'S CONSENT.
WHETHER APPELLANT WAS PROVIDED A TIMELY APPELLATE REVIEW UNDER THE UNIFORM CODE OF MILITARY JUSTICE AND THE UNITED STATES CONSTITUTION.
For the reasons that follow we affirm.2
spring of 1991 Special Agent [SA] Grabman
Bureau of Alcohol, Tobacco, and Firearms [ATF] received reports that
had purchased more than one firearm in a 5-day period at gun stores in
Appellant's wife and
Although SA Grabman
believed he had enough evidence of illegal activity to stop and arrest
appellant at that time, he wanted to continue the investigation to try
identify the other members of what he believed to be an interstate
transportation network. ATF and
Shortly after the
SA Grabman took appellant aside and, using
a card he
carried in his wallet, advised him of his Miranda rights. After appellant acknowledged his rights, SA Grabman questioned him about his purchases of
the preceding few months. Appellant
initially denied any wrongdoing. SA Grabman then reviewed the details of his case
appellant and the extent of the Government's recent surveillance
activities. After hearing these
specifics, appellant stated, "You got me." SA
Grabman then sought
out two other agents to witness appellant signing a form acknowledging
rights at 2021 and several incriminating admissions which followed. SA Grabman then
took appellant into custody. Finding no
contraband in the car, the Federal agents permitted the other members
appellant's party to continue on their way to
At about 2140, after
cake and juice with appellant at a
Other facts relevant to the issues in this case are contained in the record. SA Galupo was the supervisor present at the scene when the Maryland State Trooper stopped the ATF vehicle for speeding. She testified that she had her agent solicit the assistance of Trooper Pearce to stop Appellant for speeding “because he was a danger to . . . himself,” and because she was “concerned for the agents.” The special agent conveyed to the trooper that besides speeding, Appellant had been observed during the surveillance “following too closely,” “switching lanes,” and “driving on the shoulder.” SA Grabman had also observed Appellant driving at speeds in “excess of 85 miles an hour.” SA Galupo insisted that the purpose for soliciting the trooper’s assistance was not to obtain a consent search. Specifically, her testimony was, “I’m not going to tell a trooper to stop a car unless he sees a violation.” SA Galupo further testified that although the agents did not have probable cause to arrest Appellant on the interstate, they believed they had reasonable suspicion that he was transporting firearms in his vehicle. Last, prior to asking Appellant for his consent to search, Trooper Pearce advised him that the objective was to search for “controlled dangerous substances, firearms or contraband of any kind.”
the defense sought the assistance of the Government to obtain NBC video
recordings of the traffic stop. NBC had
shown images of the event during one of its news segments.
The Government served a subpoena on NBC dated
Appellant entered a period of unauthorized absence from
At a session pursuant to Article 39(a), UCMJ, 10 U.S.C. § 839(a) (2000), the defense moved to compel enforcement of the subpoena and to suppress Appellant’s statements made at the traffic stop and at the police barracks. After making findings of fact and conclusions of law on both issues, the military judge denied the motions.
In his pre-trial motion, Appellant sought to compel production of NBC video recordings “involving the purchase, sale or transport of firearms which may relate to Petty Officer Rodriguez.” According to the defense the videotape footage from the May 3 traffic stop “was the only objective evidence of the actions of the government” that would enable the defense to challenge the voluntariness of Appellant’s statements. At the time of the Article 39(a) session, the parties were in possession of the broadcast version of the NBC tape recording. At the outset of the hearing, the military judge attempted to ascertain whether the requested outtakes existed. The parties agreed to stipulate to certain facts, but at the end of the discussion the question whether the tapes existed was still left unanswered. At that point the following colloquy took place between the assistant trial counsel (ATC), the military judge (MJ), and the defense counsel (IMC1):
ATC: . . . I don’t mind stipulating to these facts, Your Honor, but it still does not clarify that there is any tape in existence. I guess that’s the point.
MJ: I agree, it does not.
IMC1: Your, Honor, no evidence has been offered that there is no tape not in existence.
MJ: Agreed. We don’t have any evidence on that point at all.
The Government argued on the motion that the defense had failed to show that the requested tapes existed. Trial counsel asserted that the defense could have availed itself of a number of means to ascertain the existence of the tapes such as calling NBC officials. According to trial counsel, not having availed itself of such means, the defense had also failed to demonstrate that the requested matter was relevant and necessary. In response, the defense reiterated that the requested material was relevant and necessary and that it was the Government’s obligation to provide such evidence. Defense counsel’s argument did not touch on what measures, if any, the defense had taken to ascertain the existence of the tapes. Later, the military judge made the following relevant findings:
Three, under [Rule for Courts-Martial] R.C.M. 703 (f)(1) and (2), each party is entitled to the production of evidence which is relevant and necessary, but is not entitled to the production of evidence which is destroyed, lost, or not otherwise subject to compulsory process. The position of NBC is that this evidence is not subject to compulsory process because it is constitutionally protected. They do not assert that it does not exist.
Four, the authority of the military judge to assist with production of the unavailable evidence is spelled out in R.C.M. 703(f)(2). This presupposes a finding that the evidence is of such central importance to an issue that it is essential to a fair trial and there is no adequate substitute for the evidence.
the defense argues that the
entire video tape, not just the portion already viewed here in court,
relevant evidence on the question of the voluntariness
of statements made to Agent Grabman. Certainly, the necessity of properly
resolving the issue of the voluntariness
admissions is essential to a fair trial, however, the video tape is not
central importance to that issue. Rather it is of little or no
that question. The testimony before the court on the motion to suppress
admissions, which I choose to migrate over to the motion to compel
establishes that the video crew was focused on the conduct of the
Testimony also establishes that discussions between Agent Grabman
and Petty Officer Rodriguez, and between other ATF agents and Petty
Rodriguez, took place some distance away from where the search was
place. The testimony does not establish that matters relating to the voluntariness issue were even video taped at
particularly the actual discussions between Petty Officer Rodriguez and
Six, the evidentiary value of that
portion of the video that NBC did provide, now before the court as an
exhibit, is negligible in deciding the motion to suppress.
there is adequate testimony
of witnesses at the scene, and I include here the objective
Ms. Soto [aunt of the appellant’s daughter], that can serve as a
the video even if it were central to the issue of voluntariness
of the admissions.
Eight, I conclude that the entire video tape is unnecessary to fairly resolve the issues before the court in connection with the suppression motion.
In contrast to the trial judge, the DuBay hearing judge had the benefit of testimony from representatives of NBC as well as an affidavit from the news correspondent who had filed the story. The DuBay judge found “most persuasive” the sworn affidavit of the NBC correspondent stating that his videographer had not obtained any footage of communications between Appellant and any law enforcement officials. The judge made two significant findings relevant to this issue. First, he found that at the time of the DuBay hearing, “any videotape that was the object of the subpoenas in this case, and that was not heretofore provided, no longer exists.” Secondly, he found that “no videotape of an interrogation of the appellant was made.”
The Court of Criminal Appeals adopted the findings of the DuBay judge and reaffirmed its earlier decision upholding the denial of Appellant’s motion to compel production because the “videotape outtakes were neither necessary nor clearly of central importance and essential to a fair trial on the issue of voluntariness.” Rodriguez, 57 M.J. at 772.
Appellant now argues that he was unable to demonstrate the relevance and necessity of the tapes because “he had no access to the videotaped footage that would show the circumstances of [his] seizure.” The Government argues the outtakes, if they existed, were cumulative and unnecessary given the fact witnesses to the events testified at the original Article 39(a) session.
We review a military judge’s ruling on a request for production of evidence for an abuse of discretion. United States v. Breeding, 44 M.J. 345, 349 (C.A.A.F. 1996)(denial of a request for additional witnesses).
Parties to a court-martial are entitled to an “equal opportunity to obtain witnesses and other evidence[.]” Article 46, UCMJ, 10 U.S.C. § 846 (2000). The UCMJ and the Rules for Courts-Martial [hereinafter R.C.M.] also include the right to compulsory process. Id.; R.C.M. 703(a). “Each party is entitled to the production of evidence which is relevant and necessary.” R.C.M. 703(f)(1). Military Rule of Evidence 401 [hereinafter M.R.E.] defines relevant evidence as that which has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Relevant evidence is “necessary when it is not cumulative and when it would contribute to a party’s presentation of the case in some positive way on a matter in issue.” R.C.M. 703(f)(1) discussion. The burden of persuasion on a motion for appropriate relief is on the moving party. R.C.M. 905(c)(2)(A), 906(b)(7).
At trial Appellant insisted that the requested outtakes were relevant and necessary because they were the “best evidence available” as to whether the Appellant’s rights were violated. The Government is obligated to produce by compulsory process evidence requested by the defense that is “relevant and necessary.” R.C.M. 703(c)(1). However, it was the defense, as the moving party, who was required as a threshold matter to show that the requested material existed. Appellant failed to meet this burden. Defense counsel’s response that “no evidence has been offered that there is no tape not in existence” attempted to invert this burden. The record does not reflect that Appellant attempted to gain access on his own. Nor is there indication that representatives of NBC would have been uncooperative had his counsel attempted to contact them regarding the existence of the outtakes. Although NBC had indicated an intent to assert a First Amendment privilege, it responded to the Government’s requests. It seems in retrospect that the parties might have obviated this issue had they done what the DuBay judge did, that is, procured testimony or affidavits to resolve whether any footage existed relevant to Appellant’s specific claim. Instead, Appellant’s position at trial appeared to assume the existence of the outtakes and to further assume their evidentiary value.
Based on the foregoing we conclude that Appellant did not carry his burden as the moving party to demonstrate that the outtakes he requested existed. Consequently, he did not show that they were relevant and necessary and should have been produced through compulsory process. We hold that the military judge did not abuse his discretion in denying Appellant’s motion to compel production.
We next address whether an unlawful seizure of Appellant’s person occurred before or during the roadside stop. Appellant seeks to suppress his roadside admissions to the ATF on the grounds that they were the product of an unlawful seizure. Appellant further argues that his confession at the Maryland State Police barracks and any subsequently obtained physical evidence were derivative of his unlawful roadside seizure and should have been suppressed at trial.
We review a military judge's ruling on a motion to suppress for abuse of discretion. United States v. Monroe, 52 M.J. 326, 330 (C.A.A.F. 2000). "[W]e review factfinding under the clearly-erroneous standard and conclusions of law under the de novo standard." United States v. Ayala, 43 M.J. 296, 298 (C.A.A.F. 1995). On mixed questions of law and fact, such as the instant issue, “a military judge abuses his discretion if his findings of fact are clearly erroneous or his conclusions of law are incorrect.” Id. “In reviewing a ruling on a motion to suppress, we consider the evidence 'in the light most favorable to the' prevailing party." United States v. Reister, 44 M.J. 409, 413 (C.A.A.F. 1996)(citations omitted).
Our analysis necessarily travels through a continuum of time and shifting Fourth Amendment context as Appellant argues in the alternative that if he was not unlawfully seized on the highway he was subsequently unlawfully seized at different times while on the roadside. On appeal the parties also present disparate perceptions regarding the critical events. Our focus, of course, remains on the facts established in the record and the military judge’s findings of fact. In this context, we will address the facts and Appellant’s arguments in chronological order. We begin with a brief review of the legal framework applicable to Appellant’s arguments.
Seizures Under the Fourth Amendment
generally fall into one of three categories: arrest, investigatory
consensual encounter. United States
v. Williams, 365 F.3d 399,
403 (5th Cir.
States v. Ringold, 335 F.3d 1168, 1171
2003); United States v. Weaver, 282 F.3d 302, 309 (4th Cir.
The Fourth Amendment protects “[t]he right of
the people to be secure in their persons . . . against unreasonable
and seizures.” Arrests and investigatory
stops are considered seizures within the meaning of the Fourth
require a predicate degree of suspicion.
An arrest must be supported by probable cause and can be effected by physical force or submission to a
authority. California v. Hodari, 499 U.S. 621, 626 (1991); Wong
Sun v. United
States, 371 U.S. 471 (1963); see
Brown v. Illinois, 422
U.S. 590 (1975). An investigatory stop
or detention, also known as a “Terry stop,” must be supported by
suspicion that “criminal activity may be afoot.” Terry v. Ohio, 392 U.S. 1, 30
(1968). But “[s]o long as a
reasonable person would
feel free ‘to disregard the police and go about his business,’ the
consensual and no reasonable suspicion is required.”
Florida v. Bostick,
501 U.S. 429, 434 (1991)(citation omitted). See United States v. Phillips,
30 M.J. 1 (C.M.A. 1990)(reviewing Supreme
precedent over time). Supreme Court case
law provides illustrative examples of circumstances indicative of
as the threatening presence of several officers, the display of weapons
officers, physical touching of the person or the use of language or
indicating that compliance with the officers’ requests might be
Mendenhall, 446 U.S. 544, 554 (1980). “[A]
seizure does not occur simply because a
police officer approaches an individual and asks a few questions.” Bostick,
U.S. at 434. “Even when officers have no
basis for suspecting a particular individual, they may generally ask
of that individual, ask to examine the individual’s identification, and
consent to search his or her luggage, -- as long as the police do not
message that compliance with their requests is required.”
Id. at 434-35
(citations omitted). The critical
question remains “whether a reasonable person would feel free to
officer’s requests or otherwise terminate the encounter.”
Id. at 436.
A. The Moving Surveillance
Appellant first asserts that he was seized in violation of the Fourth Amendment when the agents’ vehicles “boxed him in” while traveling on the interstate. Appellant characterizes the tactic employed by the agents as a “moving roadblock” amounting to a seizure.
Appellant testified that he drove up behind the car in front of him because it was driving slowly. Using the tactic that some drivers use of “flash[ing] their high beams so they can see that somebody is coming up at a fast rate,” Appellant sought to induce the vehicle in front of his to change lanes.
The record reflects
that Appellant was not aware of the police
around his vehicle until he was pulled over by Trooper Pearce of the
Based on an objective review of the totality of these circumstances the military judge’s conclusion was correct. Appellant was not seized by the ATF and Maryland State Police as part of a moving roadblock. Not only was Appellant free to leave, by slowing down or changing lanes, he was not aware that he was engaged in a police encounter. A reasonable person in Appellant’s situation would have felt the same. Thus, Appellant has not carried his burden of demonstrating that the military judge’s findings are clearly erroneous.
Appellant was subsequently pulled over by Trooper Pearce and issued a warning citation for following too closely. Appellant contends that he should have been permitted to leave following issuance of the citation without further questioning. According to Appellant, Trooper Pearce’s request for consent to search his vehicle initiated a subsequent detention. In essence, he contends he was seized without reasonable suspicion.
Here the testimony of Trooper Pearce and Appellant indicates the interaction between the two was conversational rather than confrontational in nature. Appellant’s testimony does not suggest that the trooper’s tone or demeanor was intimidating or threatening. Trooper Pearce described Appellant as “polite and cooperative.” The parties agree that following the issuance of the citation, Appellant was asked to consent in writing to a search of his car. The form indicated that he could refuse consent to search. Appellant signed the form. The record does not reflect that Appellant asked to leave or attempted to leave following his citation. Based on these facts, the military judge found Appellant’s consent to search voluntary.
Considering all the circumstances surrounding the encounter with Trooper Pearce contained in the current record, we conclude that Appellant has not met his burden of demonstrating that he did not reasonably “feel free to decline the officer’s requests or otherwise terminate the encounter.” Military Rule of Evidence 311(e)(1) provides that “[w]hen an appropriate motion [to suppress] . . . has been made by the defense . . . the prosecution has the burden of proving . . . that the evidence was not obtained as a result of an unlawful search or seizure[.]” However, section (e)(3) of that rule states that “the burden on the prosecution extends only to the grounds upon which the defense moved to suppress or object to the evidence.” At trial, defense counsel’s position was that Trooper Pearce’s traffic stop was without probable cause or reasonable suspicion because it was nothing more than a pretext for allowing the ATF to conduct the search of Appellant’s car. According to counsel, that was the point at which Appellant’s illegal seizure occurred. Counsel did not assert that an additional or further illegal detention had occurred because Trooper Pearce had asked Appellant for his consent to search following conclusion of the traffic stop. Had the particular grounds for suppression now asserted by Appellant been litigated at trial, a more expansive record might have resulted. As it stands, Appellant is left to make this newer claim on the present state of the record.
expectations, when he sees a policeman’s lights flashing behind him,
he will be obliged to spend a short period of time answering questions
waiting while the officer checks his license and registration, that he
be given a citation, but that in the end he most likely will be allowed
continue on his way.” Berkemer
v. McCarty, 468
After Appellant responded affirmatively to Trooper Pearce’s request to search his vehicle, “ten or so” ATF agents arrived almost immediately and began to search Appellant’s car. The military judge found that that there was “[e]ncouragement to cooperate from various ATF agents.” The appellate question is whether this change in circumstance transformed Appellant’s consensual encounter with Trooper Pearce into an unlawful Fourth Amendment seizure.
(1) Testimony at the Article 39(a) session.
At the suppression hearing SA Grabman testified that shortly after he arrived at the scene, he asked Appellant to step away from his friends so that he could talk with him. According to SA Grabman, the first thing he did was read Appellant his Miranda rights before engaging in a discussion with him about gun purchases. Appellant denied any wrongdoing. SA Grabman then asked Appellant to sit with him in an ATF vehicle so that he could reveal to Appellant the results of surveillance efforts that had been conducted into his activities. After becoming aware of the ATF surveillance into his activities, Appellant uttered the admission, “All right, you got me.” At this point SA Grabman again advised Appellant of his Miranda rights and had him sign a form acknowledging his rights and agreeing to waive them. Appellant then confessed to purchasing handguns with the intent to sell them unlawfully to another individual. As the search of the vehicle was concluding, SA Grabman allowed Appellant to see his friends off. Appellant and the agents then proceeded to a nearby state police barracks where Appellant signed another rights advisement form and authored a written confession. SA Grabman also testified that Appellant never asked to leave or terminate the encounter and that he never made any threatening remarks to Appellant.
Appellant’s testimony conveyed a different version of the events. He stated that he was not given his rights until he was at the state police barracks. Moreover, according to Appellant, he did not make any incriminating statements until he was at the barracks, at which point he had already been arrested without probable cause. He also stated that during the roadside encounter with ATF agents he repeatedly told the agents that he wanted to leave. He further stated that SA Grabman threatened that he would never see his daughters again unless he cooperated. Appellant testified that his interaction with Grabman took place outside the ATF car, while the search of his car was underway. According to him, he was placed in the ATF car only at the end of the search after his friends had driven away.
In order to rule on Appellant’s suppression motion the military judge was necessarily required to weigh the contested facts relating to the circumstances of the encounter between SA Grabman and Appellant. The military judge found that Appellant had been given his rights by SA Grabman prior to making any incriminating statement to him. The judge concluded that no threats, promises, or inducements were used to elicit Appellant’s statement. Implicit in this finding is a judgment by the military judge that Appellant did not repeatedly ask to terminate the encounter as he asserted. The military judge also found that the consent search of Appellant’s car by Trooper Pearce began at 1952 and that at approximately 2010 Appellant made his first admission establishing probable cause for his arrest. The judge concluded that during this period Appellant was not under arrest and that essentially, the encounter continued to be consensual in nature, given the fact Appellant had consented to the search by Trooper Pearce. The military judge also made the following findings on the issue of reasonable suspicion:
10. [Petty Officer (
11. PO Moore had purchased several handguns from
12. Agent Grabman observed two of the transfers of firearms from PO Moore to PO Rodriguez; these transfers were accomplished by PO Moore purchasing the firearms and then placing them in PO Rodriguez’[s] vehicle.
13. Having visually observed these transfers from PO Moore to PO Rodriguez, there was a reasonable basis for ATF to conclude that the purchases by PO Moore were “straw purchases” made, in fact, by PO Rodriguez.
14. The supervisory ATF agent on scene on
Based on theses findings, the
military judge concluded that even if the traffic stop were to be
viewed as a
Fourth Amendment seizure the agents
reasonable suspicion that at least some of the handguns purchased by
and Appellant would be in the vehicle as it traveled toward
Whether the reasonable limits of an
investigatory stop have been exceeded thus transforming a seizure into
arrest is not based upon clear black letter distinctions.
The question of law for this court is whether or not Appellant’s roadside encounter with ATF was consensual, and if not, whether the encounter constituted an arrest supported by probable cause, or an investigatory stop supported by reasonable suspicion. These questions are particularly relevant because SA Grabman conceded in his testimony that ATF did not possess probable cause to stop and arrest Appellant at the time for transporting firearms in his vehicle. However, the Government argues, the agents did have reasonable suspicion.
Looking at the totality of the circumstances, two significant facts bear upon this question. First, Appellant testified that very shortly after Trooper Pearce began his search, between agents arrived on the scene. The Court of Criminal Appeals found that Trooper Pearce was assisted by “ten or so” ATF agents. Second, the military judge found that “[e]ncouragement to cooperate from various ATF agents then present did not vitiate that voluntariness . . . .” Although Appellant challenges the legal conclusion regarding voluntariness, the factual finding as to the agents is consistent with Appellant’s testimony that at one point he was surrounded by four to five agents who were “telling [him] that [he] should cooperate.”
In our view, these circumstances amounted to a seizure as opposed to a consensual encounter. Although the military judge found “no unlawful inducements, promises, or threats were made to or against [Appellant],” the transition from the Maryland State Police encounter to the ATF search nonetheless involved a substantial display of authority. Added to this display of authority is the fact that Trooper Pearce obtained Appellant’s consent to search partly based on his statement that it would be a “routine search.” Notwithstanding the fact that the consent form indicated that Trooper Pearce could obtain assistance from other officers, we are not persuaded that a reasonable person would have anticipated that a force of 10 to 12 officers would descend upon the scene to conduct an intense search of his vehicle and begin questioning him. Under these circumstances a reasonable person would not have felt free to decline the agents’ requests and terminate the encounter. Therefore, we hold that Appellant’s initial consensual encounter with Trooper Pearce evolved into a Fourth Amendment seizure between the time SA Grabman and the other agents arrived and when Appellant made his first admission.
Although close, we further conclude based on this totality of circumstances that Appellant’s seizure was an investigatory detention rather than an arrest. On the one hand, the ATF’s arrival on the scene was heralded with a significant display of authority. Appellant found himself answering questions while surrounded by several agents. On the other hand, there is no evidence that the ATF agents brandished their weapons or handcuffed Appellant. He was not precluded from speaking to his passengers, although there is no indication that he tried to
communicate with them. Although Appellant was surely surprised, there was no force used, and the military judge did not find that Appellant was overwhelmed by the circumstances on the highway. Most importantly, the period between the stop and his first admission lasted no more than twenty minutes. As a result, the predicate for Appellant’s detention was reasonable suspicion on the part of the agents.
The military judge found that the
agents possessed reasonable suspicion that Appellant was transporting
more handguns for unlawful resale as he traveled north on Interstate 95. The fact that the agents did not act until
after Appellant had given Trooper Pearce his consent to search, did not
invalidate this reasonable suspicion. We
review issues involving reasonable suspicion de novo.
Next, Appellant argues that because
SA Grabman turned him over to the
Article 31(b) provides that:
No person subject to this chapter 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.
Under Military Rule of Evidence 305(b)(1), a person subject to the code “includes a person acting as a knowing agent of a military unit or of a person subject to the code.” In the past, this Court has set forth at least two instances when civilian investigators working in conjunction with military officials must comply with Article 31: “(1) When the scope and character of the cooperative efforts demonstrate ‘that the two investigations merged into an indivisible entity,’ and (2) when the civilian investigator acts ‘in furtherance of any military investigation, or in any sense as an instrument of the military.’” United States v. Penn, 18 C.M.A. 194, 199, 39 C.M.R. 194, 199 (1969)(citations omitted). See also United States v. Lonetree, 35 M.J. 396 (C.M.A. 1992); United States v. Quillen, 27 M.J. 312, 314 (C.M.A. 1988).
Penn, the question arose in the context
of a Secret Service investigation into the forgery of
trial, the admissibility of the
exemplars was in issue. The question
turned on the independent nature of the concurrent civilian and
investigations. Among other factors,
this Court noted that the chain of investigative events began with the
Service and that the agents had explained to Penn the nature of the
that constituted the subject matter of the Secret Service
This Court concluded that the Secret Service
agent was conducting a Secret Service investigation according to its
rather than a continuation of the military investigation and held the
investigations to be separate and independent for the purposes of
parties do not dispute that SA Grabman suspected Appellant of weapons
questioned him about those activities during the vehicle search without
advising him of his Article 31(b) rights.
The question is whether because of the degree of coordination between
begin by noting that SA Grabman testified that he initiated the
sometime during February or March and later contacted
reject Appellant’s contention that
DuBay hearing ordered by this Court
conducted in four sessions between November 1998 and January
Appellant's detailed defense counsel, Lieutenant (LT) Velez, attended
two sessions on
MJ: . . . But, I guess what I just want to make sure is that you're not being sort of blinded by the need to get the seven days extra credit at Levinworth [sic], such that you're not being thoughtful when you waive your presence. From what you've said to me, you've thought it through, you've discussed it with Lieutenant Velez, you and I have discussed it as well. And it's just something is [sic] your best interest and is something that is not going to do any harm to you for the limited purposes of answering these questions. Is that alright?
ACC: Yes, sir.
At some point between
the second and the third sessions, LT Velez was reassigned, and for the
two DuBay sessions,
When Appellant’s case was again before the Court of Criminal Appeals, Appellant assigned an issue for review specifically related to the DuBay hearing.4 LT Velez and LT Hoole (now Mr. Hoole) submitted affidavits to the lower court. Now Lieutenant Commander (LCDR) Velez states that she does not recall Appellant releasing her from representation, or more generally, “how I was released from the case.” “What I recall,” LCDR Velez states, “is that the appellant did not sign any documents releasing me from representing him at the hearing.” Mr. Hoole’s affidavit indicates that he recalls receiving a detailing letter to the case and that the letter contained a mis-reference to Hospitalman Hector Rodriquez rather than YN3 Jorge L. Rodriquez, the subject of his representation and this appeal. Mr. Hoole’s affidavit also states that
Upon being detailed I attempted to make contact with YN3 Rodriquez to discuss matters in the case, most importantly LT Velez’s proposed release as defense counsel. To the best of my recollection, we made attempts to contact YN3 Rodriguez both on the phone and in writing at his home of record to no avail. We also attempted to discover his then-current address by searching through phone listings, internet searches, and searches on various LEXIS databases. These efforts were likewise unfruitful.
Appellant has not challenged the veracity of this affidavit, nor argued that counsel’s efforts fell short as a matter of diligence. Rather, Appellant argues that having failed to establish an attorney-client relationship with LT Hoole, he was, in effect, unrepresented at the DuBay hearing.
The record also contains
an appellate rights statement executed by Appellant on
I understand that in order for my trial defense counsel or any successor counsel to represent me properly, I must keep counsel informed of my current mailing address.
The lower court disposed of the issue in short form finding it “to be without merit of further discussion.” 57 M.J. at 774.
In this Court, Appellant contends he was prejudiced at the DuBay hearing when then LT Velez improperly severed the attorney-client relationship with him and when then LT Hoole proceeded as substitute counsel without establishing an attorney-client relationship with him. Based on the state of the appellate record, we assume that these errors occurred. But, we hold Appellant has not demonstrated that he was prejudiced during the hearing.
This Court has
previously articulated principles for resolving issues related to
counsel that arise post-trial.
In testing for
prejudice, we are cognizant of the qualitative differences between the
post-trial period before the convening authority’s action and a
hearing ordered later by an appellate court.
Among other things, DuBay counsel
the opportunity to play a more active adversarial role, engaging inter alia in oral advocacy, witness identification,
examination as well as written advocacy.
Thus, while it is appropriate to test for prejudice, each case
present different circumstances regarding the relationship between
client and in the nature of the DuBay
presented. As a result, each case must
be tested for prejudice on its own merits.
In this case, the DuBay
indicates that the substitute counsel, then LT Hoole,
was in fact present and represented Appellant’s cause zealously. He argued articulately against the
applicability of a newsgathering privilege in the military. He also competently discussed applicable
Supreme Court precedent relevant to the issue.
Appellant’s specific claim of prejudice is simply a restatement
facts raising the issue. His claim is
that since LT Hoole never spoke to him, he
formed the requisite relationship, and thus, should never have
at the hearing. Moreover, the record
reflects that counsel made efforts to contact Appellant, who did not
fulfill his duty to advise counsel of his whereabouts.
Appellate review is an integral part of the military justice system, and the Due Process Clause guarantees that such review be conducted in a timely manner. Diaz v. Judge Advocate General of the Navy, 59 M.J. 34 (C.A.A.F. 2003). We test unreasonable post-trial delays for material prejudice. United States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002); United States v. Williams, 55 M.J. 302, 305 (C.A.A.F. 2001)(citing United States v. Banks, 7 M.J. 92, 94 (C.M.A. 1979)).
Appellant asserts that an eight-year, nine-month period between sentencing and final action by the Court of Criminal Appeals was unreasonable. He further argues that he was prejudiced by this delay because his defense counsel was unable to continue representing him due to counsel’s military reassignment. And because Appellant has been released from confinement he is unable to benefit from favorable decisions.
This case is not marked by appellate speed. Over a year transpired between the convening authority’s action and the docketing of Appellant’s case at the Court of Criminal Appeals. Appellant’s initial Article 66(c), UCMJ, 10 U.S.C. § 866(c) (2000), review was completed within two and one-half years after the convening authority’s action.5 Once docketed, the time taken by the lower court to conduct its review was not uncommon or unreasonable for a case involving multiple complex issues of law and fact.
Discretionary review for good cause shown was subsequently granted by this court and a DuBay hearing ordered. This Court had the case for 489 days before ordering a DuBay hearing on the question of the NBC videotapes. The DuBay process itself took over 600 days. It was over two and one-half years after the DuBay hearing was ordered that the Court of Criminal Appeals issued a second decision in this case.
Appellant has made his
case that there was a lengthy process of appellate review, and perhaps
delay. However, Appellant has not made
his case regarding prejudice. First, while
a military member has a right to counsel, neither the Sixth Amendment
Article 38(b), UCMJ, 10 U.S.C. § 838(b) (2000), confers a right to
representation by a particular lawyer. Wheat
v. United States, 486
The decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.
2 We heard oral
argument in this case
at the Catholic University of America, Columbus School of Law,
D.C., as part of the Court’s “Project Outreach.” See
VI. YN3 RODRIGUEZ’S EVIDENTIARY (DUBAY) HEARING FAILED TO COMPLY WITH THE CONSTITUTION OF THE UNITED STATES, UNIFORM CODE OF MILITARY JUSTICE, OR RULES FOR COURT-MARTIAL, TO THE SUBSTANTIAL PREJUDICE OF YN3 RODRIGUEZ.
EFFRON, Judge (dissenting):
Six years ago, our Court concluded
in the present case that “a factfinding
pursuant to United States v. DuBay,
147, 37 CMR 411 (1967), is necessary (1) to fully develop the record on
issue of the news media’s refusal to comply with the federal subpoena
videotape requested by the defense in this case, (2) to establish the
availability of the videotape for production and inspection, and (3) to
the applicability, if any, of a news-gathering privilege.”
The initial DuBay
hearing was held on
Although defense counsel did not ask the military judge to address the adverse impact of attending the hearing on Appellant’s confinement status, the military judge noted that there were possible avenues of redress, including a submission to our Court. The defense, however, did not seek relief from our Court, and there is nothing in the record indicating that the defense otherwise sought to ensure that Appellant did not suffer a loss of potential good time credit by attending the court-ordered hearings.
The military judge, who expressed significant concern about conducting the hearing in Appellant’s absence, obtained an assurance from detailed defense counsel that she would “stay in communication” with Appellant and keep Appellant informed “of everything that’s being done in his case.” Before accepting Appellant’s waiver, the military judge told Appellant that he was “confident that I’ll be alert and [detailed defense counsel] will be even more alert if anything comes up that requires information from you or a consultation with you that will be done.”
During the initial session, defense counsel informed the military judge that the defense was considering a stipulation “to the fact that there’s no tape, NBC no longer has a tape” and speculated as to whether that development would moot the need for a DuBay proceeding. The military judge and the parties then discussed the possibility of submitting a motion to our Court advising us of that development with a view towards determining whether we would modify our order.
The non-broadcast videotape, including outtakes, relating to
2. NBC’s practice regarding non-broadcast outtakes is to recycle those videotapes, unless otherwise instructed to maintain. To the best of the NBC Law Department’s knowledge, no such instruction was given.
thereafter, we summarily denied the defense motion,
thereby clearing the way for the DuBay
At the second DuBay
Although our Court had rejected defense counsel’s motion to modify the scope of our order, defense counsel nonetheless suggested to the military judge that the stipulation as to the non-existence of the videotape mooted the first prong of our order - the requirement to “fully develop the record on the issue of the News media’s refusal to comply with a federal subpoena for the video tape [sic] requested by the defense in this case.” The military judge discouraged the defense from disregarding the importance of the first prong of the order, commenting: “Well, I don’t know, if the tape no longer exists and [NBC] wrongfully did not produce them [sic] and there’s prejudice presumed or shown, then the accused has a beef.” The military judge also declined to accept defense counsel’s suggestion that witness testimony was not necessary on the issue, indicating that he would give further consideration to the matter after reviewing any written submissions.
A third DuBay
session was held on
The record contains no reference to the fact the defense counsel was new to the proceedings; nor does the record contain any statement as to the new defense counsel’s qualifications and certification under Article 27(b), Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. § 827(b)(2000). The record simply sets forth routine statements by the military judge and counsel identifying themselves in terms of their names and the names of their clients.
The military judge did not inquire
on the record as to whether the new defense counsel had been detailed
to represent Appellant, nor did the military judge ascertain on the
whether the new counsel had established an attorney-client relationship
Appellant. The final DuBay
session, held on
When these deficiencies in the
record were identified during appellate review of the DuBay
proceedings, the Government submitted three documents.
The first is a memorandum, dated
The primary defect in the memorandum is that it directed the Commanding Officer at Bethesda to contact the wrong person -- “HN Hector Rodriguez.” There is nothing in the record indicating that anyone at Bethesda contacted Appellant - YN3 Jorge L. Rodriguez. In fact, there is no indication in the record that Appellant had any relationship to Bethesda, or that the command at Bethesda had any responsibility for the provision of legal services to Appellant. It is not apparent why the task of contacting Appellant was not assigned to an officer having authority over Appellant, such as the Commanding Officer at Fort Leavenworth or the commander of the naval organization to which Appellant was assigned.
The second document submitted by the Government is an affidavit executed by the first detailed defense counsel, the contents of which underscore the inattention of Appellant’s counsel to the significance of the DuBay proceeding. After misidentifying the proceeding as a “hearing ordered by the Navy-Marine Corps Court of Criminal Appeals,” the first defense counsel characterized her participation as involving “only administrative matters” - apparently overlooking her role in the waiver of Appellant’s right to be present, her persistent efforts to convince the military judge that the substantive issues raised by our Court’s order had been rendered moot, and her decision to address those issues without obtaining the live testimony of witnesses with first-hand knowledge of the creation and disposition of the videotape.
The affidavit also sheds little light on the circumstances surrounding her replacement by a second detailed defense counsel and the termination of her responsibilities to her client. The first counsel noted that she was scheduled to detach from the defense counsel office in November 1999, and that a new defense counsel “was detailed to the hearing about four months prior to my scheduled detachment . . . . To my understanding, this was done in order to release me of all defense related duties so that I could concentrate on managing the Legal Assistance office at the Naval Hospital in Bethesda, MD.” She also stated that upon the assignment of new counsel, “I was told by the Department Head to turn my file of the case over to [the new counsel] and brief him on the case.”
With respect to her termination of the attorney-client relationship with Appellant, she noted:
[A]t the present time I have not been able to locate my paperwork on this case.
I do not recall how I was released from the case. What I recall is that the appellant did not sign any documents releasing me from representing him at the hearing.
There is no indication in the affidavit or otherwise in the record that she had any contact with Appellant regarding severance of the attorney-client relationship. See Dep’t of the Navy, Judge Advocate General Instruction 5803.1B [hereinafter JAGINST 5803.1B], Professional Conduct of Attorneys Practicing under the Cognizance and Supervision of the Judge Advocate General (2000), Rule 1.3 (Diligence)(“A covered attorney . . . shall consult with a client as soon as practicable and as often as necessary upon being assigned to the case or issue.”); id. at Rule 1.4. (Communication)(“A covered attorney shall keep a client reasonably informed about the status of a matter[.]).” Despite the strong admonitions by the military judge that she maintain contact with her client when he waived his right to be present at the hearing, and her assurances that she would do so, there is no indication in the record that she had any contact with Appellant after December 1998. There is no indication in the record that she made any attempt to ascertain the expected date of his release from confinement or that she made any arrangements to maintain contact with him while he was on appellate leave.
The third document submitted by the Government is an affidavit from the second detailed defense counsel. After noting that his “recollection of the details” of his being detailed to represent Appellant was “limited” - emphasizing the confusion as to name of the client in the detailing letter - he offered the following description of his attempts to contact Appellant:
Upon being detailed I attempted to make contact with [Appellant] to discuss matters in the case, most importantly [first detailed defense counsel’s] proposed release as defense counsel. To the best of my recollection, we made attempts to contact [Appellant] both on the phone and in writing at his home of record to no avail. We also attempted to discover his then-current address by searching through phone listings, internet searches and searches of various LEXIS databases. These efforts were likewise unfruitful.
Appellant was then, as he is now, a member of the Navy. At all pertinent times, he was either in confinement or on appellate leave. As such, he was subject to the authority of the Disciplinary Barracks at Fort Leavenworth and the commanding officer of the naval unit to which he was assigned. The vague recollections by both the first and second detailed defense counsel do not establish that either counsel contacted the responsible officers at Fort Leavenworth or within the Navy for information about Appellant. There is no indication in this record of a written request to any official from either counsel. Likewise, there is no indication in this record that either counsel sought assistance from naval investigative authorities in tracking down Appellant.
None of this was brought to the attention of the military judge. Given the serious concerns that the military judge had expressed about proceeding without Appellant’s presence at the session, his personal commitment to Appellant that he would be kept informed, and the assurance of counsel that she would maintain contact with Appellant, the failure to notify the military judge was both inexplicable and inexcusable. The failure to notify the military judge that an attorney-client relationship had been severed - and that the new counsel had not established such a relationship - not only affected the rights of Appellant, but also deprived the military judge of the opportunity to assess the impact of these developments on the proceedings in his courtroom. There are a number of steps he could have taken, such as ordering trial counsel to obtain the assistance of naval authorities in locating Appellant, providing for a limited postponement of the hearing, or, at a minimum, ensuring that all pertinent facts concerning the attorney-client relationships and Appellant’s absence were set forth on the record.
Under the Sixth Amendment to the Constitution, the accused in a criminal proceeding has the right to establish an attorney-client relationship and obtain committed and zealous representation by that attorney. U.S. Const. amend VI; see, e.g., Argersinger v. Hamlin, 407 U.S. 25, 31 (1972); Gideon v. Wainwright, 372 U.S. 335, 344 (1963). Protection of that right is so central to the military justice system that Congress has guaranteed the accused the right to representation by qualified counsel at Government expense, regardless of financial need, in all general courts-martial and virtually all special courts-martial. Article 27, UCMJ. The right to representation by qualified counsel applies in court-martial hearings convened under United States v. DuBay, as reflected in the detailing of counsel in the present case.
Once an attorney-client relationship has been formed with a detailed defense counsel, a detailing authority may excuse or change the initially detailed counsel only when: (1) the client has obtained representation by individually requested military counsel under R.C.M. 506(b)(3); (2) detailed counsel is excused with the express consent of the client; or (3) the military judge permits detailed counsel to withdraw for good cause shown on the record. R.C.M. 505(d)(2)(B). See United States v. Gray, 39 M.J. 351 (C.M.A. 1993)(mem.); JAGINST 5803.1B, Rule 1.16 and cmt (Declining or Terminating Representation). None of these circumstances appears in this record.
In summary, the first detailed defense counsel erred by not obtaining the consent of Appellant or approval of the military judge to sever of the attorney-client relationship. The second detailed defense counsel erred by not informing the military judge that he was appearing as Appellant’s counsel without having established an attorney-client relationship with Appellant. The military judge erred by not conducting an inquiry on the record regarding the circumstances surrounding the replacement of counsel that silently occurred in front of him.
The majority relies upon a preprinted form signed by Appellant in 1994, which stated: “I understand that in order for my trial defense counsel or any successor counsel to represent me properly, I must keep counsel informed of my current mailing address.” ____ M.J. (37). I respectfully disagree with the suggestion that this standard form, signed in the immediate aftermath of trial -- more than four and one-half years prior to the DuBay hearing -- relieved either counsel or the military judge at the DuBay hearing of the specific responsibility, acknowledged by each on the record, to ensure appropriate contact with Appellant so that he would be provided with timely information about the DuBay proceedings.
The majority opinion also places the burden on Appellant to demonstrate the specific prejudice flowing from the error by making a colorable showing of possible prejudice, and concludes that Appellant has failed to meet that burden. ____ M.J. (42). The opinion relies on the standard we have used in cases involving post-trial submissions to the convening authority. I respectfully disagree.
Although post-trial submissions to a convening authority are an important aspect of the military justice system, the convening authority’s action is not a court-martial proceeding. The accused has the right to make submissions to the convening authority in writing. There is no right to a hearing before the convening authority. There is no subpoena power, no opportunity to present testimony, and no cross-examination of witnesses. The convening authority is not required to make findings of fact or reach conclusions of law. It is primarily an opportunity to seek clemency, a matter that is within the sole discretion of the convening authority. See Article 60, UCMJ, 10 U.S.C. § 860 (2000); R.C.M. 1105-1107.
Although detailed counsel frequently represents an accused in making submissions to the convening authority, substitute counsel may be appointed at that stage if detailed counsel has been relieved or is not reasonably available. R.C.M. 1106(f)(2). The cases cited in the draft opinion deal with failure of a properly appointed substitute counsel to establish an attorney-client relationship and do not involve the severance of an attorney-client relationship, continuity of counsel, or the role of the military judge in ensuring the fairness of an adversarial proceeding.
A DuBay proceeding, by contrast, involves hearings employing the powers of a court-martial, including discovery, compulsory process, application of the rules of evidence, and the right to call and cross-examine witnesses. The military judge makes findings of facts and enters conclusions of law on matters referred to the proceeding. In such a setting, the establishment of an attorney-client relationship, continuity of counsel, and the role of the military judge in any change of counsel are critical to ensuring the reliability of the proceeding.
In the present case, Appellant faced the possibility of longer confinement as a result of attending a DuBay hearing ordered by our Court. Counsel did not seek redress from the military judge or from our Court, but instead facilitated Appellant’s waiver of the right to attend the hearing, while assuring Appellant and the military judge that there would be continuity of communication. Counsel subsequently terminated the attorney-client relationship without informing the client or the court. A new counsel purported to represent Appellant without establishing an attorney-client relationship and without informing the court of that defect. The military judge observed the change of counsel without establishing any of the pertinent facts on the record. The affidavits submitted by both counsel underscore the absence of attentive and timely efforts to communicate with Appellant.
The only information in the record regarding the existence, content, and disposition of the videotape comes from the news media entity that sought to withhold the information from Appellant at trial and during appellate proceedings. The defense did not seek to subpoena, examine, or cross-examine any individuals with potential first-hand knowledge of these matters. It may well be that this is a simple case of a videotape that did not capture any matter pertinent to Appellant’s trial, that the videotape was destroyed as a matter of routine, good-faith disposition, and that the burden of proving otherwise cannot be met by the defense. Such conclusions, however, should not be drawn from a DuBay proceeding marred by failure to follow the basic requirements for establishment and termination of the attorney-client relationship. In that context, the record does not provide an acceptable response to the questions referred by this Court for consideration in the DuBay proceeding.