UNITED STATES, Appellee
v.
Andrea L. REEVES, Staff Sergeant
No. 04-0145
Crim. App. No. 34730
Argued
Decided
BAKER, J., delivered the opinion
of the
Court, in which GIERKE, C.J., and CRAWFORD, EFFRON, and ERDMANN, JJ.,
joined. EFFRON, J., filed a separate
concurring
opinion.
Counsel
For Appellant:
Frank J. Spinner, Esq. (argued); Major
Terry L. McElyea, Major Andrew S. Williams, and Captain
Antony B.
Kolenc (on brief).
For Appellee:
Major Michelle M. Lindo (argued); Colonel LeEllen
Coacher,
Lieutenant Colonel Robert V. Combs, and Major James K. Floyd
(on
brief); Lieutenant Colonel Gary F. Spencer.
Military
Judge: Steven. A. Hatfield
THIS OPINION IS
SUBJECT TO
EDITORIAL CORRECTION BEFORE FINAL PUBLICATION
Judge
BAKER delivered the opinion of the Court.
Appellant
was tried before a general court-martial composed of officer and
enlisted
members. In accordance with her pleas,
she was convicted of disobeying a general regulation (three
specifications) in
violation of Article 92, Uniform Code of Military Justice (UCMJ), 10
U.S.C. §
892 (2000). Appellant contested the
remaining allegations but was ultimately convicted of two additional
orders violations
and obstruction of justice in violation of Articles 92 and 134, UCMJ,
10 U.S.C.
§§ 892, 934 (2000), respectively. The
adjudged sentence included a dishonorable discharge, confinement for
six years,
forfeiture of all pay and allowances, and reduction to grade E-1. The convening authority approved the sentence
as adjudged except for the term of confinement, which was reduced to
three
years.
The specified issue before
the Court requires us to resolve whether 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 granted issue questions
whether, in any event, the evidence is legally sufficient to sustain a
conviction
for obstruction of justice.1
We answer the specified question in the affirmative
and further hold that on this record, the evidence is legally
sufficient.
FACTS
Appellant was a
technical
school instructor at Lackland Air Force Base (AFB).2
In June and July of 2000, she engaged in consensual sexual
activity with
four trainees in violation of applicable lawful general regulations. One of these trainees was Airman Basic (AB)
F. AB F completed technical school
training in July 2000 and then reported to her first duty station at
Minot
AFB. On
During
one of these conversations, AB F mentioned that she was experiencing
financial
difficulty. Shortly thereafter, the
Appellant deposited $200 in AB F’s bank account. Although
AB F considered this deposit a gift,
a few weeks later Appellant asked that AB F return the money. After initially saying that she would do so,
AB F finally informed Appellant that she would not make repayment and
directed
Appellant not to contact her further.
OBSTRUCTION
AS A MATTER OF LAW
We begin with consideration of the
specified question, whether as a matter of law, Appellant may be
convicted of obstruction
of justice under the circumstances of this case. The
elements of obstruction of justice are:
(1)
That the accused wrongfully did a certain act;
(2)
That the accused did so in the case of a certain person against whom
the
accused had reason to believe there were or would be criminal
proceedings
pending;
(3)
That the act was done with the intent to influence, impede, or
otherwise
obstruct the due administration of justice; and
(4)
That, under the circumstances, the conduct of the accused was to the
prejudice
of good order and discipline in the armed forces or was of a nature to
bring
discredit upon the armed forces.
Manual
for Courts-Martial,
The crux of Appellant’s argument
is that an
accused who advises a witness to invoke her constitutional privilege
against
self-incrimination or to exercise her right to seek counsel by
definition is
not engaged in a wrongful act, therefore failing to satisfy the first
element
of the offense, and thus cannot be convicted of obstruction.
The constitutional privilege
against
self-incrimination and the right to counsel are rights bestowed every
witness. United States v. Cole,
329 F.2d 437, 439-40 (9th Cir.), cert. denied, 377 U.S. 954
(1964). Thus, we generally agree with
Appellant’s
assertion that the administration of justice is not criminally
obstructed by a
witness exercising these rights. It is
Appellant’s conduct as an advisor and not that of a putative witness
that is at
issue in this case, however. 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. 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 will
turn on contextual factors presenting questions of fact for the
members,
including, among other things, the actor’s tone and manner of delivery.
As the court in Cole stated, “[i]t
is
the witness’ privilege which our inspired Constitution protects and
which any
person in our courts may invoke . . . not someone else’s privilege to
capture
by force or threat or bribe.”
In doing so, however, we need not define the
limits of this constitutional framework, nor do we need to consider the
relationship between this Court’s decisions and that of the service
court in United
States v. Asfeld, 30 M.J. 917 (A. Ct. Crim. App. 1990) (finding
that
accused’s request that the victim of his indecent language offense not
report
him was not wrongful because victim has no duty to report such an
offense). The facts of this case indicate
that
Appellant was not, among other things, a disinterested party. She was aware of the investigation into her
conduct and that AB F was a potential witness in that investigation. Moreover, for the reasons stated below, the
nature and manner of her “advice” takes Appellant’s statements to AB F
outside
the zone of constitutional protection.
LEGAL SUFFICIENCY
Appellant contends that the evidence is legally
insufficient to sustain her conviction for obstruction under Article
134. This claim requires us to determine
“whether,
considering the evidence in the light most favorable to the
prosecution, a
reasonable factfinder could have found all the essential elements [of
the crime]
beyond a reasonable doubt.”
Appellant challenges the
sufficiency of the
evidence as it pertains to the wrongfulness of her acts and her intent. Specifically, she maintains that “[i]t should
not be ‘wrongful,’ as a matter of law, for an accused to ask a witness
to do
what the witness can lawfully do anyway.”
And, according to Appellant, “[t]he evidence was legally
insufficient to
infer that [Appellant] had a ‘sinister purpose’ or subjective intent to
impede
the due administration of justice.”
We have addressed Appellant’s
first contention
in our discussion above. A wrongful act
is one done without legal justification or with some sinister purpose.
With respect to Appellant’s second
contention,
the record indicates that shortly after being apprised that she was
under investigation
for her conduct with AB F, Appellant began calling AB F at her
workplace and at
her home. According to AB F, Appellant’s
statements during these calls were to the effect that, “[AB F] needed
to go see
the area defense [counsel], and not to talk to OSI, not to tell them
anything.” Furthermore, AB F
characterized these calls as frequent.
Appellant argues that her conduct
in this
respect “was no different than the advice a first sergeant, supervisor
or
friend would give to a military member under investigation.” The court-martial members could rationally
have concluded otherwise, however. 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 his or her 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. In contrast to
Appellant’s
hypothetical first sergeant, who provides advice to a servicemember
under
investigation, Appellant was not a disinterested party.
Appellant was free to argue to the members that
she was advancing the welfare of a subordinate. We
conclude, however, that a rational trier of
fact might also have found beyond a reasonable doubt that Appellant’s
statements under the circumstances of this case were wrongful and
indicative of
an intent to dissuade AB F from
cooperating with
the recently initiated investigation.
The decision of the United States
Air Force
Court of Criminal Appeals is affirmed.
1 SPECIFIED ISSUE
WHETHER,
AS A MATTER OF LAW, APPELLANT MAY BE FOUND GUILTY OF OBSTRUCTION OF
JUSTICE
WHERE: (1) APPELLANT HAD BEEN ENGAGED IN
AN IMPROPER RELATIONSHIP WITH A JUNIOR ENLISTED MEMBER; (2) APPELLANT
ADVISED
THE JUNIOR ENLISTED MEMBER NOT TO SPEAK WITH LAW ENFORCEMENT PERSONNEL;
(3)
ALTHOUGH NOT ALLEGED IN THE SPECIFICATION, APPELLANT ALSO ADVISED THE
JUNIOR
ENLISTED MEMBER TO CONSULT WITH MILITARY DEFENSE COUNSEL; AND (4)
ALTHOUGH NOT
ALLEGED IN THE SPECIFICATION, APPELLANT SENT THE JUNIOR ENLISTED MEMBER
$200 TO
ASSIST HER WITH FINANCIAL DIFFICULTIES?
GRANTED ISSUE
WHETHER
THE EVIDENCE WAS LEGALLY SUFFICIENT TO SUPPORT A CONVICTION FOR
OBSTRUCTION OF
JUSTICE WHERE: (1) APPELLANT HAD BEEN
ENGAGED IN AN IMPROPER RELATIONSHIP WITH A JUNIOR ENLISTED MEMBER; (2)
APPELLANT ADVISED THE JUNIOR ENLISTED MEMBER NOT TO SPEAK WITH LAW
ENFORCEMENT
PERSONNEL; (3) ALTHOUGH NOT ALLEGED IN THE SPECIFICATION, APPELLANT
ALSO
ADVISED THE JUNIOR ENLISTED MEMBER TO CONSULT WITH MILITARY DEFENSE
COUNSEL;
AND (4) ALTHOUGH NOT ALLEGED IN THE SPECIFICATION, APPELLANT SENT THE
JUNIOR
ENLISTED MEMBER $200 TO ASSIST HER WITH FINANCIAL DIFFICULTIES?
2
Between the time of the offenses and trial, the Appellant changed her
last name
from Dunn to Reeves.
EFFRON,
Judge (concurring):
I
write separately to address several matters implicit in the majority
opinion.
A
conviction for obstruction of justice under Article 134, Uniform Code
of
Military Justice, 10 U.S.C. § 934 (2000), requires a showing that an
accused
wrongfully did a certain act. Whether or
not an act was wrongful is not dependent solely on the accused’s
interest in
the pending investigation or criminal proceeding. Article
134 does not permit the conviction of
an interested party who has given honest and uncorrupt advice;
likewise,
Article 134 does not require proof that a person who gave dishonest and
corrupt
advice also was an interested party with respect to an investigation or
litigation. Whether a person’s advice
was wrongful is dependent on contextual factors, including, but not
limited to,
the nature of the person’s interest in the subject of the inquiry or
proceeding, the circumstances of the conversation, and the person’s
tone and
manner of delivery, which are all questions of fact for the members to
decide.
Appellant,
who claims that the evidence was insufficient as a matter of law,
likens her admonitions
to the advice a “first sergeant, supervisor, or friend would give to a
military
member under investigation.” This
comparison
is unpersuasive. In contrast to the
hypothetical circumstances suggested by Appellant, a rational trier of
fact
could find that the circumstances of the present case demonstrate that
the advice
provided by Appellant was dishonest and corrupt. Appellant
was an accomplice who was aware of
the progress of the investigation into her own conduct.
She had no personal relationship with Airman
Basic (AB) F beyond a one-time sexual encounter, and did not contact AB
F from
the time of the sexual encounter until after the investigation
commenced. At that point, she began
calling frequently
to give unsolicited advice. She knew
that AB F was a potential witness to the investigation, and she
deposited $200
into AB F’s bank account. In light of
these combined circumstances, a rational trier of fact could find
beyond a
reasonable doubt that Appellant’s statements were wrongful.