UNITED STATES, Appellee
v.
Jorge L. RODRIGUEZ, Yeoman Third
Class
No.
97-0299
Argued
Decided
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
convicted of
attempted transfer of firearms, conspiracy, desertion, failure to obey
a
general regulation, unlawfully engaging in the business of dealing in
firearms,
unlawful transfer of firearms and the unlawful possession of firearms,
in
violation of Articles 80, 81, 85, 92 and 134, Uniform Code of Military
Justice
[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.
I
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:
II
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.
III
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.
IV
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.
V
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
In the
spring of 1991 Special Agent [SA] Grabman
of the
Bureau of Alcohol, Tobacco, and Firearms [ATF] received reports that
appellant
had purchased more than one firearm in a 5-day period at gun stores in
Beginning on
Appellant's wife and
children
lived in
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
to
identify the other members of what he believed to be an interstate
weapons
transportation network. ATF and
A
Shortly after the
search commenced,
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
handguns over
the preceding few months. Appellant
initially denied any wrongdoing. SA Grabman then reviewed the details of his case
file with
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
his Miranda
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
of
appellant's party to continue on their way to
At about 2140, after
sharing in
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.”
PROCEDURAL
BACKGROUND
Prior
to trial,
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
Because
the
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.
DISCUSSION
I
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.
Five,
the defense argues that the
entire video tape, not just the portion already viewed here in court,
is
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
of those
admissions is essential to a fair trial, however, the video tape is not
of
central importance to that issue. Rather it is of little or no
importance to
that question. The testimony before the court on the motion to suppress
the
admissions, which I choose to migrate over to the motion to compel
discovery,
establishes that the video crew was focused on the conduct of the
search.
Testimony also establishes that discussions between Agent Grabman
and Petty Officer Rodriguez, and between other ATF agents and Petty
Officer
Rodriguez, took place some distance away from where the search was
taking
place. The testimony does not establish that matters relating to the voluntariness issue were even video taped at
all,
particularly the actual discussions between Petty Officer Rodriguez and
the ATF
agents.
Six, the evidentiary value of that
portion of the video that NBC did provide, now before the court as an
appellate
exhibit, is negligible in deciding the motion to suppress.
Seven,
there is adequate testimony
of witnesses at the scene, and I include here the objective
testimony of
Ms. Soto [aunt of the appellant’s daughter], that can serve as a
substitute for
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.
II
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
Police encounters
generally fall into one of three categories: arrest, investigatory
stop, or
consensual encounter. United States
v. Williams, 365 F.3d 399,
403 (5th Cir.
2004); United
States v. Ringold, 335 F.3d 1168, 1171
(10th Cir.
2003); United States v. Weaver, 282 F.3d 302, 309 (4th Cir.
2002).
The Fourth Amendment protects “[t]he right of
the people to be secure in their persons . . . against unreasonable
searches
and seizures.” Arrests and investigatory
stops are considered seizures within the meaning of the Fourth
Amendment and
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
show of
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
reasonable
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
encounter is
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
Court
precedent over time). Supreme Court case
law provides illustrative examples of circumstances indicative of
seizure, such
as the threatening presence of several officers, the display of weapons
by
officers, physical touching of the person or the use of language or
tone
indicating that compliance with the officers’ requests might be
compelled. United
States v.
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,
501
U.S. at 434. “Even when officers have no
basis for suspecting a particular individual, they may generally ask
questions
of that individual, ask to examine the individual’s identification, and
request
consent to search his or her luggage, -- as long as the police do not
convey a
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
decline the
officer’s requests or otherwise terminate the encounter.”
Id. at 436.
See
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
presence
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.
“A
motorist’s
expectations, when he sees a policeman’s lights flashing behind him,
are that
he will be obliged to spend a short period of time answering questions
and
waiting while the officer checks his license and registration, that he
may then
be given a citation, but that in the end he most likely will be allowed
to
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
various
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
possessed
reasonable suspicion that at least some of the handguns purchased by
YN1 Moore
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
an
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
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
one or
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.
III
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).
In
Penn, the question arose in the context
of a Secret Service investigation into the forgery of
At
trial, the admissibility of the
exemplars was in issue. The question
turned on the independent nature of the concurrent civilian and
military
investigations. Among other factors,
this Court noted that the chain of investigative events began with the
Secret
Service and that the agents had explained to Penn the nature of the
offenses
that constituted the subject matter of the Secret Service
investigation.
This Court concluded that the Secret Service
agent was conducting a Secret Service investigation according to its
procedures
rather than a continuation of the military investigation and held the
two
investigations to be separate and independent for the purposes of
Article 31.
The
parties do not dispute that SA Grabman suspected Appellant of weapons
trafficking and
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
ATF and
We
begin by noting that SA Grabman testified that he initiated the
investigation
sometime during February or March and later contacted
We
reject Appellant’s contention that
the
IV
The
DuBay hearing ordered by this Court
was
conducted in four sessions between November 1998 and January
2000.
Appellant's detailed defense counsel, Lieutenant (LT) Velez, attended
the first
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
final
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
substitute
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
fact-finding
hearing ordered later by an appellate court.
Among other things, DuBay counsel
are afforded
the opportunity to play a more active adversarial role, engaging inter alia in oral advocacy, witness identification,
and
examination as well as written advocacy.
Thus, while it is appropriate to test for prejudice, each case
will
present different circumstances regarding the relationship between
counsel and
client and in the nature of the DuBay
questions
presented. As a result, each case must
be tested for prejudice on its own merits.
In this case, the DuBay
hearing record
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
of the
facts raising the issue. His claim is
that since LT Hoole never spoke to him, he
never
formed the requisite relationship, and thus, should never have
represented him
at the hearing. Moreover, the record
reflects that counsel made efforts to contact Appellant, who did not
himself
fulfill his duty to advise counsel of his whereabouts.
V
Appellate
delay
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
undue
delay. However, Appellant has not made
his case regarding prejudice. First, while
a military member has a right to counsel, neither the Sixth Amendment
nor
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
DECISION
The decision of the
United States Navy-Marine Corps Court of Criminal Appeals is affirmed.
1
2 We heard oral
argument in this case
at the Catholic University of America, Columbus School of Law,
Washington,
D.C., as part of the Court’s “Project Outreach.” See
3 In 1992, the
name of this agency
was formally changed to the Naval Criminal Investigative Service.
4 This issue was
framed more
generally than the issue framed for this Court:
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.
5 This case is
factually
distinguishable from the situation presented in Toohey
v. United States, 60 M.J. 100 (C.A.A.F. 2004).
EFFRON, Judge
(dissenting):
Six years ago, our Court concluded
in the present case that “a factfinding
hearing
pursuant to United States v. DuBay,
17 USCMA
147, 37 CMR 411 (1967), is necessary (1) to fully develop the record on
the
issue of the news media’s refusal to comply with the federal subpoena
for the
videotape requested by the defense in this case, (2) to establish the
availability of the videotape for production and inspection, and (3) to
address
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.
On
1.
The non-broadcast videotape, including outtakes, relating to
the
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.
Shortly
thereafter, we summarily denied the defense motion,
thereby clearing the way for the DuBay
hearing
to proceed.
At the second DuBay
session, on
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
properly
to represent Appellant, nor did the military judge ascertain on the
record
whether the new counsel had established an attorney-client relationship
with
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.