United States v. Castillo ( 2015 )

UNITED STATES, Appellee
v.
Nancy L. CASTILLO, Machinist’s Mate Fireman
U.S. Navy, Appellant
No. 14-0724
Crim. App. No. 201300280
United States Court of Appeals for the Armed Forces
Argued February 11, 2015
Decided May 18, 2015
BAKER, C.J., delivered the opinion of the Court, in which
ERDMANN, STUCKY, RYAN, and OHLSON, JJ., joined.
Counsel
For Appellant: Lieutenant Carrie E. Theis, JAGC, USN (argued);
Lieutenant David W. Warning, JAGC, USN.
For Appellee: Captain Matthew M. Harris, USMC (argued); Brian K.
Keller, Esq. (on brief); Lieutenant Commander Keith Lofland,
JAGC, USN.
Military Judges: Lewis T. Booker Jr. and Andrew H. Henderson
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Castillo, No. 14-0724/NA
Chief Judge BAKER delivered the opinion of the Court.
Contrary to her pleas, a special court-martial composed of
officer and enlisted members convicted Appellant of offenses
including violating a lawful general order by failing to report
her arrest for drunk driving, in violation of Article 92,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 892 (2012).
The convening authority approved a sentence including a bad-
conduct discharge, a $5,000 fine, and reduction to the lowest
enlisted grade. The United States Navy-Marine Corps Court of
Criminal Appeals (CCA) affirmed. United States v. Castillo, No.
NMCCA 201300280, slip op. at 16 (N-M. Ct. Crim. App. May 27,
2014). On Appellant’s petition, we granted review of the
following issue:
WHETHER THE LOWER COURT IMPROPERLY DETERMINED THAT
[THE] DUTY TO SELF-REPORT ONE’S OWN CRIMINAL ARRESTS
FOUND IN OFFICE OF THE CHIEF OF NAVAL OPERATIONS
INSTRUCTION 3120.32C WAS VALID DESPITE THE
INSTRUCTION’S OBVIOUS CONFLICT WITH SUPERIOR AUTHORITY
AND THE FIFTH AMENDMENT.
This appeal involves Appellant’s challenge to the Chief of
Naval Operations’s regulatory requirement that servicemembers
report to their immediate commander the fact that they were
arrested for an offense by civilian authorities. Appellant’s
attack on the service instruction, Dep’t of the Navy, Chief of
Naval Operations Instr. 3120.32C, General Guidance and
Regulations para. 510.6 (July 30, 2001) [hereinafter OPNAVINST
2
United States v. Castillo, No. 14-0724/NA
3120.32C], is twofold: that it conflicts with superior
regulatory authority; and that it facially compels self-
incrimination in violation of the Fifth Amendment to the
Constitution.
We conclude that the Navy clearly amended its self-
reporting regulations in direct response to this Court’s prior
decision in United States v. Serianne, 69 M.J. 8 (C.A.A.F.
2010), and find Appellant’s first regulatory argument
unpersuasive. We further conclude that -- while Appellant
advances hypothetical applications of the Navy’s self-reporting
requirement that may raise constitutional questions -- she does
not contend that her case presents an unconstitutional
application of the regulation, and cannot meet her burden for
successfully advancing a facial challenge, which requires the
challenger to establish that “no set of circumstances exists
under which the [regulation] would be valid.” United States v.
Wright, 53 M.J. 476, 481 (C.A.A.F. 2000) (quoting United States
v. Salerno, 481 U.S. 739, 745 (1987)). 1
BACKGROUND
In May 2010, this Court found that a service instruction
requiring that sailors report their own arrests by civilian
1
The standard for sustaining a facial challenge to
constitutional validity remains the same, whether the challenge
addresses a statute or a regulation. See Reno v. Flores, 507
U.S. 292, 301 (1993).
3
United States v. Castillo, No. 14-0724/NA
authorities conflicted with superior regulatory authority.
Serianne, 69 M.J. at 11. The service instruction at issue in
Serianne provided that:
Members arrested for an alcohol-related offense under civil
authority, which if punished under the UCMJ would result in
a punishment of confinement for 1 year or more, or a
punitive discharge or dismissal from the Service (e.g.,
DUI/DWI), shall promptly notify their CO. Failure to do so
may constitute an offense punishable under Article 92,
UCMJ.
The appellant in Serianne argued that this self-reporting
requirement violated his Fifth Amendment privilege against self-
incrimination. 69 M.J. at 9. We declined to address his
constitutional challenge, however, because we resolved the issue
in his favor on nonconstitutional grounds. Id. at 11 (citing
Ashwander v. TVA, 298 U.S. 288, 346–48 (1936) (Brandeis, J.,
concurring)). Specifically, we looked to U.S. Naval Regs.,
Article 1137 (1990), which addressed servicemembers’ obligation
to report UCMJ offenses, but specifically exempted offenses in
which the servicemember was criminally involved. U.S. Naval
Regs., Article 1137, provided:
Persons in the naval service shall report as soon as
possible to superior authority all offenses under the
Uniform Code of Military Justice which come under
their observation, except when such persons are
themselves already criminally involved at the time
such offenses first come under their observation.
4
United States v. Castillo, No. 14-0724/NA
We concluded that the service instruction at issue in
Serianne did not provide the protection against self-reporting
established by U.S. Naval Regs., Article 1137. Thus, the
service instruction promulgated by the Chief of Naval Operations
was contrary to superior regulatory authority promulgated by the
Secretary of the Navy, and did not provide a legal basis with
which to charge Serianne with dereliction of duty under the
UCMJ. Serianne, 69 M.J. at 11.
The Navy responded by amending its regulations. 2 In July
2010, the Secretary of the Navy released Dep’t of the Navy,
Secretary of the Navy, ALNAV 049/10 (July 21, 2010) [hereinafter
ALNAV 049/10], an administrative message disseminated throughout
the Navy with the subject line “Change to U.S. Navy Regulations
in light of U.S. v. Serianne.” The message stated that the
change was “effective immediately,” and in pertinent part, added
new language to U.S. Naval Regs., Article 1137, authorizing
self-reporting regulations:
The Secretary of the Navy, Chief of Naval Operations,
and Commandant of the Marine Corps may promulgate
regulations or instructions that require
servicemembers to report civilian arrests or filing of
criminal charges if those regulations or instructions
serve a regulatory or administrative purpose.
2
The self-reporting requirement at issue in this case is a
separate service instruction, not an amended version of the
instruction at issue in Serianne. Our decision today is limited
to the service instruction at issue, and does not address the
constitutionality of other existing or conceivable self-
reporting regulations.
5
United States v. Castillo, No. 14-0724/NA
ALNAV 049/10.
In December 2011, the Chief of Naval Operations released
Dep’t of the Navy, Chief Naval Officer, NAVADMIN 373/11 (Dec. 8,
2011) [hereinafter NAVADMIN 373/11], which amended OPNAVINST
3120.32C, the service instruction at issue in the case now
before the Court. The instruction as amended requires self-
reporting of arrests by civilian authorities, and prohibits
commanders from taking disciplinary action regarding the
underlying offense for which the servicemember was arrested,
unless that disciplinary action is based on independent
evidence:
Any person arrested or criminally charged by civil
authorities shall immediately advise their immediate
commander of the fact that they were arrested or charged .
. . . No person is under a duty to disclose any of the
underlying facts concerning the basis for their arrest or
criminal charges. Disclosure is required to monitor and
maintain the personnel readiness, welfare, safety, and
deployability of the force. Disclosure of arrest/criminal
charges is not an admission of guilt and may not be used as
such, nor is it intended to elicit an admission from the
person self-reporting. No person subject to the Uniform
Code of Military Justice (UCMJ) may question a person self-
reporting an arrest/criminal charges regarding any aspect
of the self-report, unless they first advise the person of
their rights under UCMJ Article 31(b).
. . . .
Commanders shall not impose disciplinary action for failure
to self-report an arrest or criminal charges prior to
issuance of this NAVADMIN. In addition, commanders shall
not impose disciplinary action for the underlying offense
unless such action is based solely on evidence derived
independently of the self-report.
6
United States v. Castillo, No. 14-0724/NA
. . . .
Per this NAVADMIN, commanders may impose disciplinary
action for failure to self-report an arrest or criminal
charges. However, when a servicemember does self-report
pursuant to a valid self-reporting requirement, commanders
will not impose disciplinary action for the underlying
offense unless such disciplinary action is based solely on
evidence derived independently of the self-report.
Commanders should consult a judge advocate prior to
imposing disciplinary action.
. . . Commanders shall ensure their instructions do not
include additional self-reporting requirements.
. . . .
In February 2012, Appellant was arrested in Kitsap County,
Washington for driving under the influence. 3 She did not report
the arrest to her command. Her command learned of the arrest
during an unrelated visit to the local courthouse, during which
one of her supervisors noticed her name on the court’s docket.
She was subsequently charged with violating a lawful order, to
wit, wrongfully failing to report the arrest, in violation of
Article 92, UCMJ.
Appellant unsuccessfully challenged the Navy’s self-
reporting requirement at trial, arguing that it conflicted with
3
The new version of the Chief of Naval Operations’s self-
reporting requirement was published as OPNAVINST 3120.32D in
July 2012. Dep’t of the Navy, Chief of Naval Operations Instr.
3120.32D, General Guidance and Regulations para. 5.1.6 (July 16,
2012). NAVADMIN 373/11 makes clear, however, that the self-
reporting requirement was amended in December 2011. In other
contexts, this Court has noted that NAVADMIN messages have
substantive force. See, e.g., United States v. Davis, 60 M.J.
469, 471 n.2 (C.A.A.F. 2005); United States v. Davis, 52 M.J.
201, 204 n.3 (C.A.A.F. 1999).
7
United States v. Castillo, No. 14-0724/NA
U.S. Naval Regs., Article 1137, and the Fifth Amendment. She
now pursues that argument on appeal from her conviction. In
Appellant’s view, “[the] self-reporting requirement is clearly
aimed at extracting information on criminal activity.” Thus,
Appellant argues that the service instruction exceeds what U.S.
Naval Regs., Article 1137, permits, and unconstitutionally
compels self-incrimination by requiring the disclosure of a
civilian arrest. Because the regulation is directed toward
criminal activity, under this view, it is not saved by any
purported regulatory purpose. See California v. Byers, 402 U.S.
424, 430 (1971) (plurality opinion) (finding no Fifth Amendment
violation with a reporting requirement that is “essentially
regulatory, not criminal”); United States v. Oxfort, 44 M.J.
337, 341 (C.A.A.F. 1996) (applying a three-part test to
determine whether the regulatory exception applies). The fact
that commanders are prohibited from imposing discipline on the
underlying arrested offense does not render the self-reporting
requirement constitutional, according to Appellant, because the
grant of immunity does not comply with Rule for Courts-Martial
(R.C.M.) 704, and fails to provide immunity coextensive with the
Fifth Amendment’s protection against self-incrimination. See
United States v. Kastigar, 406 U.S. 441, 445–47 (1972).
The Government counters that, because the self-reporting
requirement is regulatory in nature, it is authorized by U.S.
8
United States v. Castillo, No. 14-0724/NA
Naval Regs., Article 1137. As a threshold matter, the
Government advances the argument that an arrest is a matter of
public record, and requiring that a servicemember disclose the
mere fact of an arrest does not compel a communication that is
testimonial and incriminating. See Hiibel v. Sixth Judicial
Dist. Court, 542 U.S. 177, 189 (2004) (“To qualify for the Fifth
Amendment privilege, a communication must be testimonial,
incriminating, and compelled.”). But even if the self-reporting
requirement would otherwise be subject to Fifth Amendment
analysis, in the Government’s view, the requirement satisfies
the regulatory exception criteria discussed in Oxfort.
The CCA agreed with the Government’s position. In the
CCA’s analysis, “the use restriction in NAVADMIN 373/11 . . .
removed any real and appreciable danger of legal detriment for a
self-reported arrest or criminal charge.” Castillo, No. NMCCA
201300280, slip op. at 10. The CCA found that this conclusion
removed the need to address whether the self-reporting
requirement qualifies under the regulatory exception to the
Fifth Amendment. Nonetheless, the CCA proceeded to address
whether the requirement was regulatory in nature to determine
whether it was authorized by U.S. Naval Regs., Article 1137.
Id. Applying the seven-factor test from Kennedy v. Mendoza-
Martinez, 372 U.S. 144, 168–70 (1963), the CCA concluded that
the self-reporting requirement was regulatory rather than
9
United States v. Castillo, No. 14-0724/NA
punitive. Castillo, No. NMCCA 201300280, slip op. at 11. Thus,
the CCA held that the self-reporting requirement is authorized
by superior regulatory authority and not prohibited by the Fifth
Amendment.
DISCUSSION
SUPERIOR REGULATORY AUTHORITY
Interpretation of a service instruction is a question of
law, which we review de novo. Serianne, 69 M.J. at 10. The
United States Navy Regulations serve as “the principal
regulatory document of the Department of the Navy,” and other
regulations “shall not conflict with, alter or amend any
provision of Navy Regulations.” Id. at 11 (quoting U.S. Naval
Regs., Article 0103). Thus, U.S. Naval Regs., Article 1137, as
amended by the Secretary of the Navy through ALNAV 049/10, is
superior regulatory authority in relation to the self-reporting
requirement found in OPNAVINST 3120.32C. 4 If the self-reporting
requirement conflicts with U.S. Naval Regs., Article 1137, then
failure to adhere to the requirement cannot serve as the basis
for a prosecution under Article 92, UCMJ. Serianne, 69 M.J. at
11.
4
This conclusion is bolstered by the fact that, except as
otherwise provided by law, the Chief of Naval Operations acts
“under the authority, direction, and control of the Secretary of
the Navy and is directly responsible to the Secretary.” 10
U.S.C. § 5033(c) (2012).
10
United States v. Castillo, No. 14-0724/NA
Our analysis begins with the plain text of U.S. Naval
Regs., Article 1137. As amended by ALNAV 049/10, the article
authorizes the Chief of Naval Operations to promulgate
“instructions that require servicemembers to report civilian
arrests or filing of criminal charges if those regulations or
instructions serve a regulatory or administrative purpose.” The
article also retains its prior language stating that
servicemembers are required to report “offenses under the
Uniform Code of Military Justice which come under their
observation, except when such persons are themselves already
criminally involved in such offenses at the time such offenses
first come under their observation.”
Appellant contends that U.S. Naval Regs., Article 1137, is
therefore internally inconsistent, because the long-standing
provision that servicemembers need not report offenses in which
they are criminally involved conflicts with the recent amendment
specifically authorizing administrative regulations requiring
the self-reporting of civilian arrests. The problem for
Appellant is that she would have us read one provision of a
regulation to “make[] nonsense of” a second provision in the
same regulation. United Sav. Ass’n of Texas v. Timbers of
Inwood Forest Associates, Ltd., 484 U.S. 365, 374 (1988). We
decline to do so, particularly when the drafters’ intent to
amend U.S. Naval Regs., Article 1137, “in light of United States
11
United States v. Castillo, No. 14-0724/NA
v. Serianne” is obvious on its face. See Timbers, 484 U.S. at
375 (petitioner’s proposed interpretation of one section would
render a second section “a practical nullity and a[n] . . .
absurdity”).
Rather than read these two provisions to conflict with one
another, we read them as a whole, and conclude that they do not
conflict. See generally United States v. Harrison, 19 C.M.A.
179, 182, 41 C.M.R. 179, 182 (1970) (command directive is “read
as a whole”). U.S. Naval Regs., Article 1137, directs that
servicemembers need not report UCMJ offenses in which they
themselves are “criminally involved,” and that protection --
addressed to substantive reports of offenses, not factual
reports of arrests -- survives the amendment at issue in this
case. The amendment specifically authorizes regulations that
require the self-reporting of arrests, and that requirement does
not conflict with or alter the substantive protection against
the required self-reporting of offenses.
We therefore conclude that the provision of U.S. Naval
Regs., Article 1137, excepting from compulsory reporting
offenses in which servicemembers are “themselves already
criminally involved” does not conflict with the July 2010
amendment by ALNAV 049/10, which specifically authorizes
regulations or instructions requiring the self-reporting of
civilian arrests. This latter authorization, however, is
12
United States v. Castillo, No. 14-0724/NA
contingent upon the regulation serving “a regulatory or
administrative purpose.” The question of whether the self-
reporting requirement serves such a purpose is also related to
the question of whether the requirement conflicts with the Fifth
Amendment, Oxfort, 44 M.J. at 341, and it is to that question we
turn.
FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION
We review questions of constitutional law de novo,
including the question of whether the self-reporting requirement
conflicts with the Fifth Amendment privilege against self-
incrimination. Serianne, 69 M.J. at 10. In pertinent part, the
Fifth Amendment provides that no person “shall be compelled in
any criminal case to be a witness against himself.” U.S. Const.
amend. V. This protection addresses “real and appreciable, and
not merely imaginary and unsubstantial, hazards of self-
incrimination.” Marchetti v. United States, 390 U.S. 39, 48
(1968) (citations omitted) (internal quotation marks omitted).
“To qualify for the Fifth Amendment privilege, a communication
must be testimonial, incriminating, and compelled.” Hiibel, 542
U.S. at 189.
This appeal necessarily arises in the context of a facial
challenge to the self-reporting requirement, because Appellant
did not incriminate herself, but rather contends that the
service instruction unconstitutionally compels her to do so.
13
United States v. Castillo, No. 14-0724/NA
“Facial challenges . . . run contrary to the fundamental
principle of judicial restraint that courts should neither
anticipate a question of constitutional law in advance of the
necessity of deciding it nor formulate a rule of constitutional
law broader than is required by the precise facts to which it is
to be applied.” Washington State Grange v. Washington State
Republican Party, 552 U.S. 442, 450 (2008) (citations omitted)
(internal quotation marks omitted). Thus, a regulation will
only be held to be facially unconstitutional when the challenger
convinces the Court that “no set of circumstances exists under
which the [regulation] would be valid.” Wright, 53 M.J. at 481.
The questions before the Court are whether the self-
reporting regulation can be applied in a manner that upholds the
Constitution, and whether it was so applied to Appellant. We
are not called to resolve “hypothetical situations designed to
test the limits of” the regulation, such situations are properly
the subject of future litigation with the benefit of a developed
factual record. Holder v. Humanitarian Law Project, 561 U.S. 1,
22 (2010). Put another way, “[w]hat is not ready for decision
ought not to be decided.” Quill v. Vacco, 80 F.3d 716, 732 (2d
Cir. 1996) (Calabresi, J., concurring in the result).
In asking whether the government may apply the self-
reporting requirement in a manner that is constitutional, we
look first to the nature of the compelled disclosure. As
14
United States v. Castillo, No. 14-0724/NA
implemented by NAVADMIN 373/11, the service instruction requires
that a servicemember disclose “the fact that they were arrested
or charged.” The instruction proceeds further: “No person is
under a duty to disclose any of the underlying facts concerning
the basis for their arrest or criminal charges.” And no person
subject to the UCMJ may use this report to initiate disciplinary
action absent an independent investigation, or to question the
reporting servicemember absent an Article 31(b), UCMJ, 10 U.S.C.
§ 831 (2012), warning against self-incrimination.
The question then becomes whether the factual report of an
arrest, accompanied by the safeguards against further
questioning or prosecution contained in the service instruction,
presents a “real and appreciable” hazard of self-incrimination,
where the regulation is in fact followed as drafted. Marchetti,
390 U.S. at 48 (citations omitted) (internal quotation marks
omitted). We conclude that it does not. In the first instance,
we note that the mere fact of an arrest is a matter of public
record. See Paul v. Davis, 424 U.S. 693, 713 (1976); Ficker v.
Curran, 119 F.3d 1150, 1154 (4th Cir. 1997); Cline v. Rogers, 87
F.3d 176, 179 (6th Cir. 1996). It communicates only that a
police officer believed that probable cause existed to arrest an
individual on suspicion of committing an offense. See Terry v.
Ohio, 392 U.S. 1, 20 (1968) (arrest must be accompanied by
warrant or probable cause).
15
United States v. Castillo, No. 14-0724/NA
Most importantly, although a reasonable argument exists
that the compelled disclosure of an arrest by civilian
authorities is testimonial and incriminating, the reporting
requirement prohibits commanders from imposing disciplinary
action on the basis of the underlying arrested offense, 5 “unless
such disciplinary action is based solely on evidence derived
independently of the self-report.” See Kastigar, 406 U.S. at
453 (“[I]mmunity from use and derivative use is coextensive with
the scope of the privilege against self-incrimination, and
therefore is sufficient to compel testimony over a claim of the
privilege.”). Thus, even if the self-report would otherwise be
incriminating because it (1) communicates a fact or information;
and (2) that information may be used as the basis for military
prosecution, or as a substantial link leading to additional
incriminating evidence, Hiibel, 542 U.S. at 189–90, the
functional immunity provided by the instruction allows the
government to compel the disclosure.
Appellant argues that the restrictions on how the Navy may
use the compelled report are not sufficient, because they do not
5
Appellant correctly notes that the service instruction itself
does not define the “underlying offense,” and leaves open the
hypothetical possibility that the government will prosecute the
arrested offense under a distinct charging theory, or will use
the self-report to discover and charge some aspect of the
interaction with civilian police other than the underlying
offense. In these hypothetical cases, the accused remains free
to argue that the prosecution violates his Fifth Amendment
privilege against self-incrimination.
16
United States v. Castillo, No. 14-0724/NA
comply with R.C.M. 704, which governs grants of transactional
and testimonial immunity. Further, Appellant contends that the
service instruction does not bind commanders and cannot be
enforced at court-martial. These arguments are not persuasive
in the context of a facial challenge. First, the service
instruction is a directive that “commanders shall not impose
disciplinary action” on the basis of the self-report. Such a
directive is not a grant of immunity governed by the Rules for
Courts-Martial, although it functions to immunize the compelled
disclosure against prosecution. Thus, while the service
instruction may not bind commanders in a manner directly
enforceable by a hypothetical accused, the accused remains free
to argue that by disregarding the use restrictions in a
particular case, the government violated his Fifth Amendment
privilege against self-incrimination.
Appellant also contends that the regulation is aimed at
compelling disclosures of criminal activity rather than
achieving a regulatory purpose, and therefore violates the Fifth
Amendment and exceeds the grant of authority in U.S. Naval
Regs., Article 1137. 6 To evaluate this contention, we must look
6
As we have concluded that the use restrictions provide
functional immunity and allow the Government to compel the
disclosure, we need not address this issue as a Fifth Amendment
matter. We must determine whether the instruction serves a
regulatory or administrative purpose, however, to determine
17
United States v. Castillo, No. 14-0724/NA
to the essential intent of the regulation. Oxfort, 44 M.J. at
341. In determining whether the drafters’ intention is
essentially regulatory or punitive, we find the seven factors
identified in Mendoza-Martinez, 372 U.S. at 168–70, to be
instructive, but decline to hold that they necessarily prescribe
the required analysis in evaluating the essential intent of
service regulations. 7
The core inquiry of Mendoza-Martinez, Byers, and Oxfort is
not the formulaic application of multifactor tests, but rather
consideration of whether the challenged provision is grounded in
a valid regulatory, as opposed to punitive, governmental
purpose. In Mendoza-Martinez, the government sought to punish
individuals who fled abroad in avoidance of conscription by
revoking their citizenship through a statutory scheme without
due process of law. 372 U.S. at 186. In Byers, by way of
contrast, California’s legitimate, nonpunitive state interests
permitted a statute requiring motorists to stop and identify
whether it is authorized by U.S. Naval Regs., Article 1137. See
Castillo, No. NMCCA 201300280, slip op. at 10.
7
They are: (1) whether the sanction involves an affirmative
disability or restraint; (2) whether it has historically been
regarded as a punishment; (3) whether it operates only upon a
finding of scienter; (4) whether it will serve the traditional
aims of punishment, i.e., retribution and deterrence; (5)
whether it applies to behavior that is already a crime; (6)
whether it serves an alternative (i.e., noncriminal) purpose;
and (7) whether it is excessive in relation to that purpose.
Mendoza-Martinez, 372 U.S. at 168–69.
18
United States v. Castillo, No. 14-0724/NA
themselves when involved in a vehicular accident. 402 U.S. at
433–34. Similarly, in Oxfort, the government’s nonpunitive
interest in the return of national security information
justified a statutory provision requiring unauthorized
possessors of such information to deliver it to the government.
44 M.J. at 342.
Applying this core inquiry under OPNAVINST 3120.32C, we
conclude that while the instruction does provide for sanctions
for noncompliance, the instruction is drawn for a regulatory or
administrative purpose. On its face, the service instruction
states that “[d]isclosure is required to monitor and maintain
the personnel readiness, welfare, safety, and deployability of
the force.” It does not target any highly selective group
inherently suspect of criminal activities, Oxfort, 44 M.J. at
341, but rather applies to all members of the Navy. 8 Further, as
8
The inquiry of whether a regulation targets a highly selective
group inherently suspect of criminal activities derives from an
era in which the federal government targeted administrative
actions against the Communist Party of the United States.
Albertson v. Subversive Activities Control Bd., 382 U.S. 70, 71–
73 (1965). A reasonable argument exists that individuals
detained by the police should be viewed as such a class.
Hiibel, 542 U.S. at 191–93 (Stevens, J., dissenting). However,
our view is that Byers provides the correct analogy, and that
the regulation in this case applies to all members of the Navy,
just as the statute in Byers applied to all California
motorists, not merely those actually involved in vehicular
accidents. See Byers, 402 U.S. at 430 (the statute applies to
“all persons who drive automobiles in California”); see also
United States v. Heyward, 22 M.J. 35, 37 (C.M.A. 1986) (Air
19
United States v. Castillo, No. 14-0724/NA
discussed above, the service instruction provides safeguards
against further questioning or military prosecution. 9
We have no doubt that, for the reasons stated in the
service instruction, the Navy has a legitimate administrative or
regulatory interest in knowing whether sailors have been
arrested by civilian authorities. We are further convinced,
given the protections included in the service instruction, that
the regulation is not drawn for a punitive purpose. As a
result, the service instruction is facially constitutional and
authorized by U.S. Naval Regs., Article 1137.
In this case, Appellant has ably advanced questions of
constitutional law, and has directed our attention to issues
that may arise in future cases. None of those issues are
properly presented in this case, because Appellant was
Force requirement to report drug abuse by others analogous to
Byers).
9
The fact that the regulation contemplates further questioning
necessitating an Article 31(b), UCMJ, warning, in Appellant’s
view, demonstrates its punitive purpose. We disagree. In the
first instance, this provision merely restates the law, which is
that a military questioner operating in an official law
enforcement or disciplinary capacity must warn the suspect
against self-incrimination. United States v. Gilbreath, 74 M.J.
11, 12 (C.A.A.F. 2014). Read as a whole, the clear purpose of
the regulation is to require self-reporting of an arrest while
providing procedural safeguards against military prosecution for
the underlying offense. In the hypothetical case where the
government pursues additional questioning and brings a
prosecution based on that questioning, the parties remain free
to argue whether that questioning infringed on the Fifth
Amendment privilege against self-incrimination in view of the
required disclosure.
20
United States v. Castillo, No. 14-0724/NA
constitutionally prosecuted for the failure to report her
civilian arrest under Article 92, UCMJ. OPNAVINST 3120.32C as
amended by NAVADMIN 373/11 is constitutional on its face, and
any unconstitutional government action taken under color of the
self-reporting requirement must be addressed in subsequent
litigation.
CONCLUSION
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is affirmed.
21