United States v. Toy , 2008 CAAF LEXIS 52 ( 2008 )

UNITED STATES, Appellee
v.
Dennis R. TOY, Sonar Technician (Submarines) First Class
U.S. Navy, Appellant
No. 07-0316
Crim. App. No. 200001418
United States Court of Appeals for the Armed Forces
Argued October 16, 2007
Decided January 16, 2008
BAKER, J., delivered the opinion of the Court, in which EFFRON,
C.J., and ERDMANN, STUCKY, and RYAN, JJ., joined.
Counsel
For Appellant: Lieutenant Anthony Yim, JAGC, USN (argued).
For Appellee: Major Brian K. Keller, USMC (argued); Commander
Paul C. LeBlanc, JAGC, USN, and Major Wilbur Lee, USMC.
Military Judge: Robert W. Redcliff
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Toy, No. 07-0316/NA
Judge BAKER delivered the opinion of the Court.
Contrary to his pleas, Appellant was convicted by officer
and enlisted members of forcible sodomy with a child between the
ages of twelve and sixteen years, sodomy with a child between
the ages of twelve and sixteen, three specifications of indecent
acts with a child under the age of sixteen and two
specifications of indecent acts with another in violation of
Articles 125 and 134, Uniform Code of Military Justice (UCMJ),
10 U.S.C §§ 925, 934 (2000). All of the offenses were committed
against Appellant’s stepdaughter. The adjudged sentence
included a dishonorable discharge, confinement for twenty years,
forfeiture of all pay and allowances and reduction to E-1. The
convening authority approved the sentence as adjudged but
suspended the adjudged forfeitures and waived any automatic
forfeitures.
In its first review, the United States Navy-Marine Corps
Court of Criminal Appeals set aside the forcible sodomy charge
and one specification of indecent acts with a child. United
States v. Toy (Toy I), 60 M.J. 598, 607 (N-M. Ct. Crim. App.
2004). It affirmed the remaining findings and ordered a
rehearing on sentence. Id. Upon rehearing, a military judge
re-sentenced Appellant to a dishonorable discharge, confinement
for fifteen years, forfeiture of all pay and allowances and
reduction to E-1. This time, pursuant to a pretrial agreement,
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the convening authority approved the adjudged sentence but
suspended all confinement in excess of ten years. The United
States Navy-Marine Corps Court of Criminal Appeals affirmed this
approved sentence and reaffirmed the findings. United States v.
Toy (Toy II), No. NMCCA 200001418, 2006 CCA LEXIS 343, at *13,
2006 WL 4579022, at *4 (N-M. Ct. Crim. App. Dec. 21, 2006)
(unpublished). The issue now before the Court is:
WHETHER MIL. R. EVID. 317(a) INCORPORATES STATE
STATUTES WHEN DETERMINING AN UNLAWFUL INTERCEPTION OF
AN ORAL OR WIRE COMMUNICATION.
FACTS
The facts as necessary and relevant to resolution of the
issue were set out by the court below:
The appellant married a woman who had two daughters by a
previous marriage. One of the daughters, M, was 10 years
old when the appellant began dating her mother, and she
developed a crush on the appellant. The appellant married
M’s mother in 1995 when M was 13 years old, and the family
transferred to Hawaii shortly thereafter. In 1997, when M
was 15 years old, the appellant performed oral sex on her
and had her perform oral sex on him. When M was 16 years
old, the appellant engaged in sexual intercourse with her
on two occasions. The appellant’s wife found him in bed
with M and gave him an ultimatum: the appellant’s wife
would report him to the police unless he agreed to be
secured to the headboard of the marital bed when there were
no other adults in the house to protect the step-daughters
from the appellant.
The appellant grew tired of being handcuffed to the bed and
eventually verbal disagreements arose between the appellant
and his wife. The appellant’s wife secretly audio taped
one of those arguments in which the appellant admitted, in
part, what he had done with his step-daughter, M. The
appellant’s wife also placed a video camera at the foot of
their marital bed, with the appellant’s knowledge, and
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recorded a conversation between the appellant and herself
and then left the room while the camera videotaped the
appellant handcuffed to their bed.
Toy II, 2006 CCA LEXIS 343, at *4-*5, 2006 WL 4579022, at *1.
PROCEDURAL BACKGROUND
At trial, Appellant moved to suppress the audio and video
tapes under Military Rule of Evidence (M.R.E.) 317(a). Under
the rule:
[W]ire or oral communications constitute evidence obtained
as a result of an unlawful search or seizure within the
meaning of Mil. R. Evid. 311 when such evidence must be
excluded under the Fourth Amendment to the Constitution of
the United States as applied to members of the armed forces
or if such evidence must be excluded under a statute
applicable to members of the armed forces.
Emphasis added. During the hearing on the motion, defense
counsel asserted that the “statute applicable to members of the
armed forces” in Appellant’s case was 18 U.S.C. § 2515 (2000).
This section states:
Whenever any wire or oral communication has been
intercepted, no part of the contents of such communication
and no evidence derived therefrom may be received in
evidence in any trial, hearing, or other proceeding in or
before any court, grand jury, department, officer, agency,
regulatory body, legislative committee, or other authority
of the United States, a State, or a political subdivision
thereof if the disclosure of that information would be in
violation of this chapter.
Emphasis added. Defense counsel recognized an exception to this
provision in 18 U.S.C. § 2511(2)(d) (2000), which states:
It shall not be unlawful under this chapter [18 U.S.C. §§
2510 et seq.] for a person not acting under color of law to
intercept a wire, oral, or electronic communication where
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United States v. Toy, No. 07-0316/NA
such person is a party to the communication or where one of
the parties to the communication has given prior consent to
such interception unless such communication is intercepted
for the purpose of committing any criminal or tortious act
in violation of the Constitution or laws of the United
States or of any State.
Emphasis added. Counsel continued, arguing that Mrs. Toy’s
conduct fell into the “exception to the exception” above because
she had conducted the video and audio taping of Appellant for
the purpose of committing a criminal or tortious act in that she
had violated the Hawaii intercept statute. At the time, that
state statute provided:
(a) Except as otherwise specifically provided in this part
any person who:
(1) Intentionally intercepts, endeavors to intercept,
or procures any other person to intercept or endeavor
to intercept, any wire, oral, or electronic
communication;
(2) Intentionally uses, endeavors to use, or procures
any other person to use or endeavor to use any
electronic, mechanical, or other device to intercept
any wire, oral, or electronic communication;
. . . .
shall be guilty of a class C felony.
. . . .
[(b)] (3) It shall not be unlawful under this part for a
person not acting under color of law to intercept a wire,
oral, or electronic communication where such person is a
party to the communication or where one of the parties to
the communication has given prior consent to such
interception unless such communication is intercepted for
the purpose of committing any criminal or tortious act in
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violation of the Constitution or laws of the United States
or of this State; provided that installation in any private
place, without consent of the person or persons entitled to
privacy therein, of any device for recording, amplifying,
or broadcasting sounds or events in that place, . . . is
prohibited.
Haw. Rev. Stat. § 803-42 (1998) (amended 2006) (emphasis added).
The parties provided the military judge an audio tape of an
interview with Mrs. Toy at which both trial counsel and defense
counsel had been present.
[audio tape]
MRS. TOY: I just had it sitting on top of the shelf -- the
bookshelf.
DC: Okay. Did you ever ask Dennis if you could tape him?
MRS. TOY: I was scared. I wasn’t taping it with his
permission. I was taping it so that if he hurt me, the
girls would be able to go to the authorities and say this
is what happened.
DC: Did you ever go and talk to the Family Advocacy
Program?
MRS. TOY: After Dennis was turned in.
DC: Can you explain again why it is that you wanted this
taped?
MRS. TOY: Because I was scared that he was going to hurt
me.
DC: Okay. And how was it that you had planned on using
this tape if –-
MRS. TOY: If he hurt me, then there would have been the
tape to show just what had really happened.
DC: This tape was inside of your home?
MRS. TOY: Uh-huh. [Indiscernible.]
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DC: And he never knew about the tapes?
MRS. TOY: Not that I’m aware of.
DC: You never told him, ‘Hey, I’m taping you, you had
better calm down’?
MRS. TOY: She -- yeah. I’m afraid that he’s going to kill
me or hurt me when I tell him I’m taping it, so that if
something happened to me, the girls would be able to go to
the authorities; no, I didn’t tell him.
DC: What about the videotape, did you ask him if you could
videotape him?
MRS. TOY: He knew that he was being videotaped. That was
the day he was being loud and obnoxious and banging and
hollering, that at that point some of the boys had been
coming over because they were scared for us and they were
staying there to make sure we were okay. And I went back
in and right at the beginning of the tape I told him if he
was going to be -— being a jerk, he might as well do it on
tape for everybody to see, and I set the tape up.
DC: Was he locked up at the time?
MRS. TOY: Yes, he was.
DC: How long did you tape him for then?
MRS. TOY: Whatever the length of the tape is and then it
ran out.
The military judge found as follows:
The court does not find that the defense has met its
burden to demonstrate that Mrs. Toy acted in a -- with the
purpose of at least committing a crime when the videotape
and when the audio tapes were made.
The court also finds that defense has not met its
burden to demonstrate that Mrs. Toy acted with a criminal
or tortious purpose in preparing the videotape . . . .
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Finally, the military judge concluded that “such evidence is not
required to be excluded under Military Rule of Evidence 317,
which incorporates Title 18, United States Code Section 2515,
and Title 18, Section 2511.”
Appellant pursued this same argument during his first
review before the Court of Criminal Appeals. However, like the
military judge at trial, the lower court concluded that
Appellant failed to carry his burden to demonstrate that Mrs.
Toy made the tapes with a criminal or tortious purpose. Toy I,
at 605.
During his second review before the Court of Criminal
Appeals following his rehearing, Appellant renewed his claim
that the tapes should have been suppressed, albeit under a
different theory. This time, Appellant argued that Mrs. Toy’s
violation of the Hawaii statute provided an independent basis
for exclusion under M.R.E. 317(a) regardless of whether the
recording violated the corresponding federal statute. Toy II,
2006 CCA LEXIS 343, at *8, 2006 WL 4579022, at *3. The lower
court reiterated the rationale it had relied on in part during
the first review of the issue, namely that “federal law governs
the admissibility of evidence in a federal criminal trial,” and
that “state law cannot make inadmissible at court-martial that
which federal law says is admissible.” Toy II, at *9, 2006 WL
4579022, at *3. Consequently, the court concluded that it had
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already considered and rejected Appellant’s claim of error. Id.
at *9, 2006 WL 4579022, at *3.
CURRENT POSTURE OF THE CASE
Appellant presents this modified argument in his appeal
before this Court. He “fully concedes the well recognized
principle that a violation of state law could not render the
recordings inadmissible in a federal civilian criminal trial.
But that is because the federal rules of evidence do not
incorporate state statutes.” According to Appellant, the
Military Rules of Evidence do incorporate state statutes. Also,
notwithstanding his argument before the military judge and the
court below during its first review of his case, Appellant now
asserts that 18 U.S.C. § 2511(2)(d) is “a statute that is
inapplicable to the granted issue.” Appellant now contends that
the “statute applicable to members of the armed forces”
referenced in M.R.E. 317(a) is the Hawaii intercept statute.
Appellant reasons that because Hawaii’s laws are “applicable to
members of the armed forces” who reside in Hawaii, “[t]he
President established that the right of privacy granted under
Hawaiian law is incorporated into the UCMJ for the limited
purpose of intercepting oral and wire communications.” As
authority for this argument, Appellant cites the Hawaii
Constitution and the Hawaii Revised Statutes.
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STANDARD OF REVIEW
As a threshold matter, the Government argues that Appellant
has waived review of this issue under the theory he now posits
because this was not his theory of inadmissibility at trial.
M.R.E. 103(a)(1) requires a party to make “a timely objection
. . . stating the specific ground of objection, if the specific
ground was not apparent from the context.” The rule does not
require a party to advance every literal argument in support of
his objection. United States v. Datz, 61 M.J. 37, 42 (C.A.A.F.
2005). However, “[a] party is required to provide sufficient
argument to make known to the military judge the basis of his
objection and, where necessary to support an informed ruling,
the theory behind the objection.” Id. (emphasis added); (citing
United States v. Banker, 60 M.J. 216 (C.A.A.F. 2004); United
States v. Brandell, 35 M.J. 369, 372 (C.M.A. 1992) (holding that
“[a] defense counsel has the duty to identify the ‘specific
grounds’ upon which an objection to evidence is based,” but that
this duty is met when “all parties at trial fully appreciate the
substance of the defense objection and the military judge has
full opportunity to consider it”)).
At trial Appellant’s theory was that the statute
“applicable to members of the armed forces” under M.R.E. 317(a)
was 18 U.S.C. § 2511(2)(d) and that Mrs. Toy made the recordings
for the purpose of committing a criminal or tortious act in
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United States v. Toy, No. 07-0316/NA
violation of the Hawaii intercept statute. Furthermore, he
litigated this specific theory before the military judge who
entered findings relevant to that theory. Appellant
acknowledges that he has abandoned that theory and now claims
the federal statute he relied upon at trial is not applicable.
Instead, he asserts that the Hawaii statute applies directly to
him pursuant to M.R.E. 317(a). Arguably, this is a theory that
might have called for the military judge to make different
findings and conclusions had it been presented at trial.
However, one can also fairly argue that having raised an
issue under M.R.E. 317(a) that involved the inherent
relationship between federal law and state law, the evidentiary
issue was “apparent from the context.”
In any event, whether we use the preserved error standard
or the plain error standard, the threshold question is the same,
namely, whether there is error. Under the theory advanced at
trial or the one advanced here on appeal, the military judge did
not err, plain or otherwise. Thus, we find it unnecessary to
resolve the issue of waiver in this case.
DISCUSSION
We return to our point of departure, the text of M.R.E.
317(a):
Wire or oral communications constitute evidence obtained as
a result of an unlawful search or seizure within the
meaning of Mil. R. Evid. 311 when such evidence must be
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United States v. Toy, No. 07-0316/NA
excluded under the Fourth Amendment to the Constitution of
the United States as applied to members of the armed forces
or if such evidence must be excluded under a statute
applicable to members of the armed forces.
Emphasis added. Appellant argues that the rule “incorporates”1
state law, because the clause “a statute applicable to members
of the armed forces” is not modified by the word “federal” and
therefore, by implication, reaches state statutes applicable to
members of the service in a particular locale.
Appellant’s argument fails for several reasons. First,
federal law rather than state law governs the admissibility of
evidence in federal courts. The exclusive application of
federal law is expressly and implicitly provided for within the
structure of the Uniform Code of Military Justice. Likewise,
the corresponding Military Rules of Evidence are intended to
provide a uniform standard of justice to members of the armed
forces, regardless of where they are stationed or in which armed
force they serve.
Article 36(a), UCMJ, 10 U.S.C. § 836 (2000), for example,
delegating to the President authority to promulgate rules of
evidence, states:
(a) Pretrial, trial and post-trial procedures, including
modes of proof, for cases . . . triable in courts-martial .
. . may be prescribed by the President by regulations which
1
We use the term incorporation as Appellant does in his
arguments before this Court, without regard to any distinctions
between “incorporation” and “assimilation” that might arise in
other contexts.
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shall, so far as he considers practicable, apply the
principles of law and the rules of evidence generally
recognized in the trial of criminal cases in the United
States district courts, but which may not . . . be contrary
to or inconsistent with [the UCMJ].
Emphasis added.
Article 36(b), UCMJ, in turn provides that “[a]ll rules and
regulations made under this article shall be uniform insofar as
practicable.” Similarly, M.R.E. 101, which describes the scope
of the rules of evidence, provides that unless otherwise
prescribed in the Manual for Courts-Martial, courts-martial
first apply “the rules of evidence generally recognized in the
trial of criminal cases in the United States district courts,”
and secondly, “the rules of evidence at common law.” M.R.E. 101
(b)(1)-(2). As a result, Appellant’s reading of M.R.E. 317(a),
in theory and perhaps in practice, would subject the court-
martial system to variants in state statutory regimes. Such a
result is inconsistent with Congress’s and the President’s
intent in establishing a uniform system of military justice as
reflected in Article 36, UCMJ, and M.R.E. 101.2
Second, in the area of electronic surveillance, Congress
has legislated not only with respect to federal law, but with
2
“The Rules represent a compromise between specificity, intended
to ensure stability and uniformity with the armed forces, and
generality, intended usually to allow change via case law.”
Manual for Courts-Martial, United States, Analysis of the
Military Rules of Evidence app. 22 at A22-5 (2005 ed.)
[hereinafter Drafters’ Analysis].
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respect to the relationship between federal and state law. The
statutory cascade follows. Sections 2510-2522 of title 18 of
the U.S.C. address electronic surveillance in general, including
surveillance conducted under color of law for criminal law
enforcement purposes and surveillance not conducted under color
of law, as was the case with Mrs. Toy. Section 2515 provides:
Whenever any wire or oral communication has been
intercepted, no part of the contents of such communication
and no evidence derived therefrom may be received in
evidence in any trial, hearing, or other proceeding in or
before any court, grand jury, department, officer, agency,
regulatory body, legislative committee, or other authority
of the United States, a State, or a political subdivision
thereof if the disclosure of that information would be in
violation of this chapter . . . .
Section 2511(2)(d) in turn provides:
It shall not be unlawful under this chapter for a person
not acting under the color of law to intercept a wire,
oral, or electronic communication where such person is a
party to the communication or where one of the parties to
the communication has given prior consent to such
interception unless such communication is intercepted for
the purpose of committing any criminal or tortuous act in
violation of the Constitution or laws of the United States
or of any State.
With enactment of 18 U.S.C. §§ 2510-2522, and through
operation of the Supremacy Clause and the preemption doctrine,
Congress has defined the relationship between federal and state
law in the area of oral and wire intercepts. See On Lee v.
United States, 343 U.S. 747, 754-55 (1952) (evidence obtained in
violation of state law not rendered inadmissible in federal
courts); see also United States v. Procter, 526 F. Supp. 1198,
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United States v. Toy, No. 07-0316/NA
1202 (D. Haw. 1981) (finding that 18 U.S.C. § 2511(2)(c)
permitted the use in federal court of wiretaps without a warrant
when one party consented, even though they violated Hawaiian
state law).3
Finally, section (a) of M.R.E. 317 must be read in the
context of the entire rule. See United Savings Assoc. v.
Timbers of Inwood Forest Associates, Ltd., 484 U.S. 365, 371
(1988) (stating that “[s]tatutory construction is a holistic
endeavor”). For instance, M.R.E. 317(b) authorizes Department
of Defense personnel to proceed in accordance with 18 U.S.C. §
2516(1) when seeking an application from a federal judge to
issue an order that conforms with 18 U.S.C. § 2518. In
addition, members of the armed forces or their agents may not
intercept wire or oral communications for law enforcement
purposes unless such interception is “authorized under
regulations issued by the Secretary of Defense” and
“is not unlawful under 18 U.S.C. § 2511.” M.R.E. 317(c)(2)-(3).
Thus, M.R.E. 317, as a whole, is clearly intended to operate
within the congressional scheme set forth under 18 U.S.C. §§
2510-2522.
3
Although persuasive rather binding authority, the Drafters’
Analysis to M.R.E. 317 supports this position as well: “[a]t
present, the area is governed by the Fourth Amendment,
applicable federal statute, DOD directive, and regulations
prescribed by the Service Secretaries.” Drafters’ Analysis at
A22-30.
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As a result, we conclude that Appellant is incorrect.
M.R.E. 317(a) does not directly incorporate state law. It is
through operation of federal law that M.R.E. 317 may implicate
state law, because § 2511(2)(d) may, in context, implicate state
law.
Appellant, having failed to prevail on this theory in the
court below, concedes here that the recordings in question are
admissible under federal law, including § 2511(2)(d). However,
in light of the novel nature of the question presented regarding
the relationship between federal and state law, we briefly
summarize our reasons for concluding that Appellant’s concession
is well-founded.
M.R.E. 317 applies to evidence that “must” be excluded by
“a statute applicable to members of the armed forces.” M.R.E.
317(a). Section 2511 is a federal statute of general
application without military exception. As a result, to the
extent it is generally applicable, it applies as well to members
of the armed forces. Under this section, it is not unlawful for
a person not acting under color of law to intercept a
communication if they are a party to the conversation or where
one of the parties to the conversation has given consent.
Nonetheless, in such circumstances it is unlawful, if the
communication is intercepted with the purpose of committing a
criminal or tortious act in violation of a state law.
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Appellant’s argument at trial rested on the distinction
between Hawaii’s law, which requires all parties to consent
where an intercept device is installed in “any private place”
and the one-party consent rule in federal law. According to
Appellant, since the recording had taken place in a private home
and Mrs. Toy had not obtained Appellant’s consent, she had
violated Hawaiian law. Since the statute provided a criminal
sanction, and Mrs. Toy’s actions were willful, she made the
recordings “with the purpose” of committing a criminal act.
However, the text of § 2511(2)(d) conclusively demonstrates that
Congress sought to limit unlawful conduct to situations where
the individual had the specific intent or purpose to violate
state law when they acted. Otherwise the language addressing
purpose would be superfluous. If Congress had wanted to except
criminal conduct in the absence of specific intent it could and
would have done so without the additional “purpose” language:
“unless such communication is intercepted . . . in violation of
the Constitution or laws of the United States or of any State.”
Thus, as the Court of Criminal Appeals concluded, the military
judge did not err in his application of federal law.
DECISION
The decision of United States Navy-Marine Corps Court of
Criminal Appeals is affirmed.
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