United States v. Rodriguez

UNITED STATES, Appellee
v.
Jorge L. RODRIGUEZ, Yeoman Third Class
U.S. Navy, Appellant
No. 97-0299
Crim. App. No. 9500776
United States Court of Appeals for the Armed Forces
Argued November 19, 2003
Decided August 25, 2004
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.
Counsel
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.
United States v. Rodriguez, No. 97-0299/NA
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. United States v. Rodriguez, 44 M.J. 766 (N-M.
Ct. Crim. App. 1996). This Court set aside that decision and
remanded for a DuBay1 hearing to develop facts related to a
defense requested videotape of the events surrounding
Appellant’s arrest by federal agents. United States v.
Rodriguez, 50 M.J. 38 (C.A.A.F. 1998)(summary disposition).
After the findings and sentence were again affirmed by the lower
court, United States v. Rodriguez, 57 M.J. 765 (N-M. Ct. Crim.
App. 2002), we granted review of the following issue:
I
1
United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967).
2
United States v. Rodriguez, No. 97-0299/NA
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.
3
United States v. Rodriguez, No. 97-0299/NA
For the reasons that follow we affirm.2
FACTS
The Court of Criminal Appeals summarized the facts in its
first opinion in this case as follows:
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
Northern Virginia. Although there is no legal limit
on the number of firearms one may purchase in
Virginia, appellant's pattern of purchases caused SA
Grabman to open an investigation. Further inquiry
revealed that appellant had purchased some 24
inexpensive handguns, commonly called "Saturday Night
Specials," during February and March of 1991, and that
he had no license to sell firearms. ATF determined
that appellant was on active duty in the Navy, and
notified the Naval Investigative Service [NIS] to
obtain their cooperation in the case.[3]
Beginning on Monday, 29 April 1991, ATF and NIS
worked together in a surveillance of appellant at his
home in Northern Virginia and at his place of work,
the Bureau of Naval Personnel in Arlington. The close
surveillance revealed that appellant and YN1 Moore
were making multiple purchases of handguns from local
gun dealers. It appeared to the agents that Moore had
made "straw purchases" for appellant so that
appellant's name would not appear on the gun purchase
applications. Over the next several days the agents
observed appellant and Moore buy 19 such handguns.
Appellant's wife and children lived in New York
City. He would often drive from Virginia to New York
to visit them. On Friday, 3 May 1991, an informant
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 United States v. Mahoney,
58 M.J. 346, 347 n.1 (C.A.A.F. 2003).
3
In 1992, the name of this agency was formally changed to the
Naval Criminal Investigative Service.
4
United States v. Rodriguez, No. 97-0299/NA
advised the ATF and NIS that appellant planned to
drive to New York City that weekend. The informant
made no mention that appellant was going to transport
any weapons. Later that afternoon the investigators
followed appellant as he left work at 1530 and drove
home. There he retrieved a large duffle bag which he
transported back to the Navy Annex. Leaving the
duffle bag there, he drove to Fort Myer where he
picked up two passengers. Appellant then drove to an
apartment where his daughter's aunt, Mrs. Barbara
Soto, lived. He carried a rather heavy brown paper
bag into the residence but left without the bag.
Returning to the car with Mrs. Soto, the group of four
drove north on I-95.
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 NIS agents continued
their surveillance of appellant's car in unmarked law-
enforcement vehicles. Riding in an ATF vehicle was an
NBC camera crew that ATF had contacted to film what
the agents and crew believed would be a newsworthy
event. Also present were some senior ATF officials
and an ATF public affairs officer.
A Maryland State trooper stopped one of the
unmarked ATF cars for speeding. After advising the
Maryland police authorities that they were surveilling
a suspect as part of a Federal investigation, senior
ATF personnel decided to enlist their cooperation in
pulling appellant over. After seeing appellant's car
pass his position, Trooper Pearce followed him for
about a minute, noticed him tailgating a car in the
fast lane, and pulled him over to the central median
for "following too closely," a common traffic
infraction. After examining appellant's license and
registration and running a computer check, Trooper
Pearce issued appellant a warning citation at 1946. He
then requested that appellant consent to a "routine
search" of his car for contraband. Appellant did so
consent, in writing, at 1950. Over the next 1-1/2
hours or so, Trooper Pearce, assisted by ten or so ATF
agents, conducted a thorough search of appellant's car
5
United States v. Rodriguez, No. 97-0299/NA
in the expectation of finding one or more handguns.
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 New
York.
At about 2140, after sharing in cake and juice
with appellant at a Maryland State police barracks, SA
Grabman and SA Spigener of the NIS sat down to
interview appellant and try to obtain further
information. They advised appellant of his rights
under Article 31, UCMJ, and Miranda-Tempia. Appellant
acknowledged his understanding of those rights in
writing and executed a written statement which
contained incriminating admissions. He also consented
to various searches which uncovered handguns at
several locations. Appellant admitted to having
ground off the serial numbers from most of these guns.
44 M.J. at 769.
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
6
United States v. Rodriguez, No. 97-0299/NA
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
February 24, 1992 for: “NBC videotape of a traffic stop of Jorge
Rodriguez by agents of the Bureau of Alcohol Tobacco & Firearms
shot on May 3, 1991 along I-95 in Maryland. Video was seen on
7
United States v. Rodriguez, No. 97-0299/NA
NBC Nightly News. Jim Polk was the reporter.” It served a
second subpoena dated February 28, 1992, for: “All NBC
recordings, video, audio or written produce [sic] between 17 Feb
91 and 8 May 91 involving the purchase, sale or transport of
firearms which may relate to YN1 Jorge Rodriguez.” NBC
responded by honoring the request for the materials broadcast
during its televised news segment, but it asserted a First
Amendment news-gathering privilege regarding production of
videotape outtakes and reporter notes.
Because the Appellant entered a period of unauthorized
absence from March 19, 1992 to August 24, 1993, no further
proceedings took place and the Government chose to withdraw the
charges without prejudice. When Appellant was once again under
control of military authorities, the charges were referred anew
to a second court-martial. The defense renewed its request to
compel discovery of any remaining NBC videotapes. In response
to this motion, the Government served a third subpoena on NBC
requesting the same material as the subpoena dated February 28,
1992. NBC responded as it had to the February 28 subpoena
asserting a First Amendment privilege regarding any outtakes and
reporter notes.
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
8
United States v. Rodriguez, No. 97-0299/NA
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
The Motion to Compel Production
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
9
United States v. Rodriguez, No. 97-0299/NA
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.
10
United States v. Rodriguez, No. 97-0299/NA
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.
11
United States v. Rodriguez, No. 97-0299/NA
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
12
United States v. Rodriguez, No. 97-0299/NA
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).
13
United States v. Rodriguez, No. 97-0299/NA
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.
14
United States v. Rodriguez, No. 97-0299/NA
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
15
United States v. Rodriguez, No. 97-0299/NA
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
16
United States v. Rodriguez, No. 97-0299/NA
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
17
United States v. Rodriguez, No. 97-0299/NA
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 Michigan v. Chesternut, 486 U.S.
567, 569 (1988).
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 Maryland State Police. The record does
not reflect that Appellant was prevented from slowing to a speed
18
United States v. Rodriguez, No. 97-0299/NA
that would have kept him a safe distance from the vehicle in
front of him. Nor does the record reflect that Trooper Pearce
was a conscious participant in a gambit to box Appellant in.
The military judge found that the ATF vehicle in front of
Appellant’s vehicle “did not swerve into the passing lane in an
effort to entrap [Appellant’s] vehicle[.]” It “was simply
proceeding . . . albeit a little slower speed than normal[.]”
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.
B. The Request for Consent to Search the Vehicle
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
19
United States v. Rodriguez, No. 97-0299/NA
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
20
United States v. Rodriguez, No. 97-0299/NA
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 U.S.
420, 437 (1984). There came a time during Appellant’s stop when
he was issued a traffic citation. And there came a point when
Appellant signed a written consent to a search of his vehicle.
21
United States v. Rodriguez, No. 97-0299/NA
Appellant has not shown that after receiving the citation
Trooper Pearce prevented him from leaving, for example, by
physically blocking his vehicle, engaging in questioning, or
otherwise signaling to Appellant that he was not free to leave.
Accordingly, considering the record in the light most favorable
to the prevailing party we conclude that after the brief
detention for the traffic stop concluded, the encounter between
Appellant and Trooper Pearce was consensual in nature and not a
seizure subject to Fourth Amendment scrutiny.
C. Was Appellant Subsequently Seized by ATF?
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
22
United States v. Rodriguez, No. 97-0299/NA
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
23
United States v. Rodriguez, No. 97-0299/NA
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
24
United States v. Rodriguez, No. 97-0299/NA
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 (PO)]PO Rodriguez had himself
purchased several handguns from various Virginia gun
shops in the weeks before 3 May 91.
11. PO Moore had purchased several handguns from
various Virginia gun shops in the several days before
3 May 91 and had transferred the handguns he purchased
to PO Rodriguez in the days before 3 May 91.
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 3 May 91,
Agent Galupo, was aware of those matters set forth in
Findings # 10, 11, 12, and 13; additionally agent
Galupo believed that PO Rodriguez was born in New York
City and had family ties there and believed PO
Rodriguez was planning a trip there on 3 or 4 May 91.
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 New York.
25
United States v. Rodriguez, No. 97-0299/NA
(2) Law Applied
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. United States v.
Sharpe, 470 U.S. 675, 685 (1985). Rather, like so much else in
Fourth Amendment analysis, courts look to a totality of the
circumstances and contextual factors to determine if “a
reasonable person in the suspect’s position would have
understood the situation to constitute a restraint on freedom of
movement of the degree which the law associates with formal
arrest.” United States v. Ienco, 182 F.3d 517, 523 (7th Cir.
1999)(quoting United States v. Corral-Franco, 848 F.2d 536 (5th
Cir. 1988)). See also State v. Cojoe, 828 So.2d 1101, 1104 (La.
2002); People v. Cervantes-Arredondo, 17 P.3d 141, 146 (Colo.
2001); 3 Wayne R. Lafave, Search and Seizure: A Treatise on the
Fourth Amendment § 5.1(a), at 2 (3d ed. 1996). In
distinguishing between an investigatory stop and arrest, courts
look to among other factors: the mode of restraint, including
whether handcuffs are used; whether guns are used in effecting
restraint; the nature of the crime in question, the location of
the stop and the location of restraint, including whether the
individual is placed within a law enforcement vehicle or the
stop occurs in public view; the subject’s reaction; the scope of
authority used to effect the stop; and, the duration of the
26
United States v. Rodriguez, No. 97-0299/NA
detention. 4 LaFave at § 9.2(d) at 33-46. If police conduct
amounts to an arrest, then such conduct must rest upon probable
cause.
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 10 to 12 agents arrived on the scene. The Court
of Criminal Appeals found that Trooper Pearce was assisted by
“ten or so” ATF agents. Second, the military judge found that
“[e]ncouragement to cooperate from various ATF agents then
present did not vitiate that voluntariness . . . .” Although
Appellant challenges the legal conclusion regarding
voluntariness, the factual finding as to the agents is
consistent with Appellant’s testimony that at one point he was
27
United States v. Rodriguez, No. 97-0299/NA
surrounded by four to five agents who were “telling [him] that
[he] should cooperate.”
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
28
United States v. Rodriguez, No. 97-0299/NA
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. United States v.
Robinson, 58 M.J. 429, 432 (C.A.A.F. 2003). Among other things,
the military judge found that the stop was based on law
enforcement surveillance indicating a pattern of apparent “straw
29
United States v. Rodriguez, No. 97-0299/NA
purchases” by Appellant and YN1 Moore during the few days
leading up to the events of May 3. The surveillance also
indicated that Appellant had not sold the guns in question.
Further, ATF had received a tip from a confidential informant
that Appellant would be traveling to New York, suggesting to the
agents the possibility of the interstate transport and sale of
the guns in question. On the day of Appellant’s trip to New
York, the agents observed Appellant carrying bags to and from
his vehicle, which could plausibly have contained the guns in
question. These findings of fact by the military judge are not
clearly erroneous. And we conclude as a matter of law that
Appellant was the subject of a lawful investigatory stop
supported by reasonable suspicion and that his subsequent
statements were admissible.
III
Article 31(b) Rights
Next, Appellant argues that because SA Grabman turned him
over to the NIS agents after the interview at the police
barracks, SA Grabman was acting as an instrumentality of the
military. Alternatively, the cooperation between the two was
such that the two investigations merged into one. As a result,
Appellant argues, SA Grabman was obligated to advise Appellant
under Article 31(b) of the code before interrogating him along
I-95.
30
United States v. Rodriguez, No. 97-0299/NA
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 United States treasury
checks. The Secret Service Agents asked the Air Force Office of
Special Investigations (OSI) for its assistance in apprehending
31
United States v. Rodriguez, No. 97-0299/NA
an individual who had driven a car during an incident at one of
the banks. After being provided the license plate number, OSI
agents learned that the vehicle was registered to a service
member named Pinkney. Pinkney informed the OSI agents that his
superior and Penn were the only ones who had used his car on the
day in question. Penn was called to the OSI office and admitted
he had used the car and admitted to trying to cash a forged
check at the bank. The OSI agents then searched Pinkney’s car
and found several government checks including the one Penn had
attempted to cash. This in turn led to a search of Penn’s wall
locker where more incriminating evidence was discovered. Penn
was subsequently placed in confinement. The following morning,
the OSI agents informed the Secret Service that Penn was in
custody. The OSI agents turned over the evidence they had
obtained the previous day to the Secret Service. Penn was taken
from the confinement facility by Secret Service agents and later
interrogated. During the interrogation, Penn provided two
handwriting exemplars. Although the Secret Service agents
advised Penn of his right to remain silent and his right to
counsel, they did not inform him of his Article 31 rights before
questioning him.
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
32
United States v. Rodriguez, No. 97-0299/NA
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. Id. at 202, 39 C.M.R. at 202.
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 NIS the two
investigations remained separate and independent or whether they
merged into an “indivisible entity” requiring SA Grabman to
comply with Article 31(b). Appellant urges that we answer the
question in the affirmative because ATF and NIS conducted joint
surveillance and ATF released Appellant to NIS control after the
vehicle search.
We begin by noting that SA Grabman testified that he
initiated the investigation sometime during February or March
and later contacted NIS upon learning of Appellant’s status in
the Navy. Appellant was under surveillance for five days,
33
United States v. Rodriguez, No. 97-0299/NA
between April 29 and May 3, 1991. During this period ATF and
NIS conducted joint surveillance of Appellant’s home and work,
and NIS conducted some independent surveillance at the Navy
Annex. But the decision to act on the informant’s tip and
pursue Appellant along I-95 on May 3 lay solely with ATF. So,
too, did related operational decisions, including coordination
with the Maryland State Police, and the initial questioning of
Appellant. Although NIS agents participated in the
surveillance, they arrived upon the traffic stop after ATF had
begun the search and questioning. There is no indication in the
record that NIS participated in the subsequent search or
controlled any operational decisions. Finally, it was only
after the ATF determined that Appellant was not in possession of
firearms that it surrendered him to NIS control.
We reject Appellant’s contention that the NIS surveillance
role during the five-day period amounted to a military
investigation that merged indivisibly with the ATF efforts.
Nor, does the record reflect that SA Grabman became an
instrument of the military during the course of these events.
Rather, ATF was running its investigation with NIS in tow,
providing surveillance support. Therefore, we conclude that SA
Grabman was conducting a separate and independent ATF
investigation when he questioned Appellant at the roadside and
34
United States v. Rodriguez, No. 97-0299/NA
was not required to inform Appellant of his Article 31(b)
rights.
IV
Attorney-Client Relationship During DuBay Hearing
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 November 6, 1998, and May 5,
1999. At the first session, Appellant waived his presence at
subsequent sessions in order to benefit from "extra good time"
credit that he could earn only while confined. The military
judge discussed Appellant's decision with him on the record:
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,
October 5, 1999, and January 10, 2000, LT Hoole appeared on the
35
United States v. Rodriguez, No. 97-0299/NA
record and represented Appellant. There is no indication that
Appellant released LT Velez as his appointed counsel prior to LT
Hoole's appearance. Nor, is there any indication that she was
excused by competent authority for “good cause shown.” R.C.M.
505(d)(2)(B)(iii).
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
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.
36
United States v. Rodriguez, No. 97-0299/NA
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 February 17, 1994, which includes the
following pre-printed acknowledgment in paragraph e:
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.
37
United States v. Rodriguez, No. 97-0299/NA
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. United States v. Howard, 47 M.J. 104 (C.A.A.F. 1997);
United States v. Miller, 45 M.J. 149 (C.A.A.F. 1996); United
States v. Hickok, 45 M.J. 142 (C.A.A.F. 1996). These cases
dealt with the period between sentencing and the convening
authority’s action when defense counsel is required to prepare
clemency matters and review the staff judge advocates
recommendation. We identified this post-trial period as an
“important stage.” Hickok, 45 M.J. at 145. The principles
enunciated in Hickok, Miller and Howard also apply to fact-
finding hearings. The absence of counsel at such a proceeding
will effectively result in denial of the right to counsel. Id.
Denial of the right to counsel at an important stage “is legally
presumed to result in prejudice.” Id. However, “if counsel who
has the legal responsibility to protect the accused’s post-trial
interests is present, it cannot be said that the accused has
been deprived of his right to counsel.” Id. In Miller we held
that the error by substitute counsel of serving without first
having entered into an attorney-client relationship could be
tested for prejudice. 45 M.J. at 151. And the appropriate
38
United States v. Rodriguez, No. 97-0299/NA
“test for prejudice” is that prescribed in Article 59(a), UCMJ,
10 U.S.C. § 859(a) (2000). Howard, 47 M.J. at 106.
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
39
United States v. Rodriguez, No. 97-0299/NA
efforts to contact Appellant, who did not himself fulfill his
duty to advise counsel of his whereabouts. United States v.
Cornett, 47 M.J. 128, 134 (C.A.A.F. 1997). Finally, the
questions assigned for DuBay consideration did not relate
directly to matters within Appellant’s personal knowledge.
Rather, the questions addressed matters of law relating to a
First Amendment news gathering privilege, and matters of fact,
involving whether or not NBC possessed videotape requested by
the defense. Therefore, while not condoning what occurred, we
conclude that based on these facts, in the DuBay context
presented, Appellant has not demonstrated that he was prejudiced
in the sense of Article 59(a) when substitute counsel
represented him at the hearing without first establishing an
attorney-client relationship.
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)).
40
United States v. Rodriguez, No. 97-0299/NA
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
5
This case is factually distinguishable from the situation
presented in Toohey v. United States, 60 M.J. 100 (C.A.A.F.
2004).
41
United States v. Rodriguez, No. 97-0299/NA
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 U.S. 153, 158-59 (1988);
see also United States v. Wiest, 59 M.J. 276, 281-82 (C.A.A.F.
2004)(Erdmann, J., dissenting). Appellant is not the first
military member who has proceeded from court-martial to action
or through various stages of an appeal with different military
counsel as a result of rotation and the necessary duration of
trial or appellate proceedings. Second, the fact remains that
Appellant has not prevailed at this Court or the court below on
the important questions of law presented and is not entitled to
relief. Therefore, he has not been prejudiced for want of a
meaningful opportunity for relief.
DECISION
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is affirmed.
42
United States v. Rodriguez, No. 97-0299/NA
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.” United
States v. Rodriguez, 50 M.J. 38 (C.A.A.F. 1998)(mem.).
The initial DuBay hearing was held on November 6, 1998.
Appellant was then serving a sentence that included 10 years’
confinement at hard labor. At the outset, Appellant offered to
waive his right to be present at future proceedings because he
feared that he would lose extra good time credit during periods
that he was not physically present at the Fort Leavenworth
military confinement facility. At that time, Appellant had not
yet discussed the substantive matters at issue in the
proceedings with his detailed military defense counsel.
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
United States v. Rodriguez, No. 97-0299/NA
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.
2
United States v. Rodriguez, No. 97-0299/NA
On January 25, 1999, defense counsel filed a “motion for
clarification” with our Court, suggesting that the order for a
DuBay hearing was moot in light of a stipulation of fact that
had been agreed to by the parties. The stipulation stated that:
1. The non-broadcast videotape, including
outtakes, relating to the 3 May 1991 highway
stop of YN3 Rodriquez by ATF agents does not
exist within NBC’s custody or control.
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.
United States v. Rodriguez, 51 M.J. 361 (C.A.A.F. 1999).
At the second DuBay session, on May 12, 1999, Appellant was
represented by the same detailed defense counsel. Pursuant to
the waiver executed at the prior hearing, Appellant did not
attend the second session or any subsequent session.
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
3
United States v. Rodriguez, No. 97-0299/NA
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 October 5, 1999.
Appellant was not present, nor was the detailed defense counsel
who had represented him at the prior proceedings. The record of
the third session contains no explanation of detailed defense
counsel’s absence, the circumstances surrounding it, or the fact
that a different person announced his presence as defense
counsel.
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.
4
United States v. Rodriguez, No. 97-0299/NA
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 January 7, 2000, likewise is devoid of any consideration
of the new counsel’s qualifications or relationship to
Appellant.
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
June 10, 1999, from the “Commanding Officer, Naval Legal Service
Office, North Central, Washington, DC” to the “Commanding
Officer, National Naval Medical Center, Bethesda.” The
memorandum asks the Commanding Officer at Bethesda to notify “HN
Hector Rodriguez, USN,” that a named lieutenant - the new
defense counsel who appeared at the third session - had been
detailed as his defense counsel, and that “the accused” should
immediately contact that defense counsel.
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
5
United States v. Rodriguez, No. 97-0299/NA
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
6
United States v. Rodriguez, No. 97-0299/NA
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 . . .
7
United States v. Rodriguez, No. 97-0299/NA
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
8
United States v. Rodriguez, No. 97-0299/NA
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
9
United States v. Rodriguez, No. 97-0299/NA
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
10
United States v. Rodriguez, No. 97-0299/NA
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.
11
United States v. Rodriguez, No. 97-0299/NA
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
12
United States v. Rodriguez, No. 97-0299/NA
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
13
United States v. Rodriguez, No. 97-0299/NA
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
14
United States v. Rodriguez, No. 97-0299/NA
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.
15