United States v. Collins , 1995 CAAF LEXIS 24 ( 1995 )

Opinion of the Court

CRAWFORD, Judge:

1. Pursuant to her pleas, appellant was convicted of presenting false claims (2 specifications), in violation of Article 132, Uniform Code of Military Justice, 10 USC § 932. She was sentenced to a bad-conduct discharge, 8 months’ confinement, total forfeitures, and reduction to the lowest enlisted grade. Pursuant to a pretrial agreement, the convening authority reduced the term of confinement to 60 days but otherwise approved the sentence. The Court of Military Review ^* affirmed the findings and sentence after our remand. See 37 MJ 81 (1992). We then granted review on the following issues:

I

WHETHER THE AIR FORCE COURT OF MILITARY REVIEW ERRED WHEN:

A

THEY [SIC] MISCONSTRUED THE DECISION OF THE UNITED STATES SUPREME COURT IN UNITED STATES V. BROCE, 488 U.S. 563, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989) IN FINDING THAT APPELLANT WAIVED THE ISSUE OF DOUBLE JEOPARDY, and

B

WHETHER THEY [SIC] INCORRECTLY FOUND, EVEN IF WAIVER DID NOT APPLY, THAT THE PROSECUTORIAL MISCONDUCT WAS DESIGNED MERELY TO PERFECT THE GOVERNMENT’S CASE RATHER THAN TO PROVOKE A MISTRIAL.

II

WHETHER APPELLANT’S PLEAS WERE IMPROVIDENT WHEN THE MILITARY JUDGE FAILED TO ADDRESS THE ISSUE OF DOUBLE JEOPARDY AND OBTAIN A KNOWING WAIVER OF THIS IMPORTANT CONSTITUTIONAL RIGHT PRIOR TO ACCEPTING HER PLEAS OF GUILTY.

2. We hold that the Court of Military Review did not misconstrue the Broce decision and that there was a legitimate waiver by a failure to raise the double-jeopardy provisions as set forth in the Constitution, Uniform Code, and the Manual for Courts-Martial.

FACTS

3. On August 13, 1991, appellant’s case was originally referred to trial for violations of Articles 80, 107, 121, and 132, UCMJ, 10 USC §§ 880, 907, 921, and 932, respectively. These charges grew out of a do-it-yourself move by appellant from Nellis Air Force Base, Nevada, to Columbia, South Carolina. During the pretrial stages, it became known that the base military justice officer, Captain M, was engaged in an additional investigation of certain potential defense witnesses and several witnesses, albeit unwilling, for the Government. When the court opened on August 23,1991, the defense moved for a mistrial or a “lengthy continuance” to investigate the additional evidence. The thrust of the motion was that the Government was not complying fairly with appellant’s request for discovery and was intimidating witnesses. After a hearing into Captain M’s conduct, a mistrial was granted over the prosecution’s objection. The judge made no specific findings of prosecutorial misconduct, but he found “that an atmosphere exists and that circumstances have arisen during the course of this proceeding which I find do east substantial doubt upon the fairness of the proceedings as they have been conducted to this point.”

4. As the Court below found: “The ill-advised trial preparation [by the prosecution] was fully explored and we are convinced the intent of the activity was to perfect the government’s ease, rather than provoke a mistrial.” Unpub. op. at 2. We will not disturb such findings unless they are clearly erroneous. Cf: United States v. Burris, 21 MJ 140, 144 ¶ 8 (CMA 1985).

5. A new general court-martial was convened on October 8, 1991. At that time appellant entered unconditional pleas to the charge and the two specifications of presenting false claims. There was neither a discussion of the earlier proceeding nor a motion to dismiss the charge and specifications because of double jeopardy.

DISCUSSION

6. The Constitution, the Code, and the Manual for Courts-Martial offer protection against being tried twice for the same offense. The Fifth Amendment to the United States Constitution provides, “[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” Article 44(a) of the Code, 10 USC § 844(a), provides: “No person may, without his consent, be tried a second time for the same offense.” RCM 907(b)(2)(C), Manual for Courts-Martial, United States, 1984, provides: “A charge or specification shall be dismissed upon motion made by the accused before the final adjournment of the court-martial in that ease if ... [t]he accused has previously been tried by court-martial ... for the same offense____” However, these rights may be waived, since RCM 907(b)(2) is designated as ‘Waivable grounds.”

7. The Court of Military Review held that the double-jeopardy issue was waived by appellant’s guilty pleas. The Court cited United States v. Broce, 488 U.S. 563, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989), and RCM 907(b)(2)(C) as controlling. The defense would distinguish the Manual provision and Broce and argue, pursuant to Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982), that they were goaded into a mistrial.

8. In Oregon v. Kennedy, 456 U.S. at 676, 102 S.Ct. at 2089-90 ¶17, the Court held: “Only where the governmental conduct in question is intended to ‘goad’ the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion.” As this Court stated in United States v. DiAngelo, 31 MJ 135, 137 ¶ 6 (CMA 1990): “Mere overreaching by a prosecutor is not enough; the record must show that the prosecutor or judge sought ‘to “goad” the defendant into moving for a mistrial.’ ” Quoting Oregon v. Kennedy, 456 U.S. at 676, 102 S.Ct. at 2089. The defense would also rely on Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975), where the Court held that the defendant’s previously asserted claim that his indictment should be dismissed on double-jeopardy grounds was not waived by a plea of guilty. The Court in Broce held that the guilty plea resulted in a “forfeiture” as distinguished from knowing waiver. 488 U.S. at 573, 109 S.Ct. at 764 ¶ ¶ 19 and 18. The Broce Court distinguished Menna by indicating that Menna could be resolved on the “existing record” because of a motion to dismiss prior to the guilty plea and, thus, came under an exception to the general rule of forfeiture. Id. at 575, 109 S.Ct. at 765-66 ¶ ¶ 23 and 24. Unlike the situation in Menna, here appellant made no such motion to dismiss prior to her guilty plea.

9. As we stated in United States v. Causey, 37 MJ 308, 311¶ 12 (CMA 1993):

The waiver rule places responsibility upon defense counsel to object____ This rule is designed ... to prevent defense counsel from remaining silent, making no objection, and then raising the issue on appeal for the first time, long after any possibility of curing the problem has vanished. It is important “to encourage all trial participants to seek a fair and accurate trial the first time around.”

10. In United States v. Jones, 37 MJ 321, 323 ¶ 15 (CMA 1993), we asserted:

The rationale behind [waiver-] forfeiture is judicial economy. If an individual is permitted not to object and then can raise the issue on appeal, both the parties and the public are put to the expense of retrial. It is important for the objection to be made at the trial level so it can be resolved there to avoid the expense of an appeal____

11. Like Broce, the double-jeopardy claim here cannot be resolved on the “existing record” because no motion was made prior to the plea. The military judge at the first trial made no finding of fact that the prosecution was trying to goad the defense into a mistrial, and the judge at the second court-martial did not hold any hearing or make any findings as to the reason for the mistrial. In fact, the record reveals that at the first trial the prosecution objected to a mistrial and a lengthy delay. To this date, the defense has offered no evidence that this resistance was a sham. Thus, we hold that the Court of Military Review did not misconstrue the Broce decision, so appellant’s pleas of guilty were provident.

The decision of the United States Air Force Court of Military Review on further review is affirmed.

Chief Judge SULLIVAN and Judges GIERKE and WISS concur.

* See 41 MJ 213, 229 n. * (1994).