United States v. Finch

UNITED STATES, Appellee
v.
James H. FINCH, Staff Sergeant
U.S. Marine Corps, Appellant
No. 05-0453
Crim. App. No. 200000056
United States Court of Appeals for the Armed Forces
Argued March 21, 2006
Decided September 29, 2006
CRAWFORD, J., delivered the opinion of the Court, in which
EFFRON and BAKER, JJ., joined. GIERKE, C.J., filed a separate
opinion concurring in part and dissenting in part. ERDMANN, J.,
filed a separate opinion concurring in part and dissenting in
part.
Counsel
For Appellant: Lieutenant Brian L. Mizer, JAGC, USNR (argued).
For Appellee: Lieutenant Craig A. Poulson (argued); Commander
Charles N. Purnell, JAGC, USN (on brief); Lieutenant Kathleen A.
Helmann, JAGC, USNR.
For Amicus Curiae: Candice Cleere (law student) (argued);
Michael F. Noone Jr., Esq. (supervising attorney) and Lieutenant
Rachel Mangas, JAGC, USN (law student) (on brief) – The Catholic
University of America, Columbus School of Law, Military and
National Security Law Students Association.
Military Judge: S. F. Day
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Finch, No. 05-0435/MC
Judge CRAWFORD delivered the opinion of the Court.
Contrary to his pleas, Appellant was convicted by a
military judge sitting as a general court-martial of conspiracy
to violate a general order, failure to obey a lawful general
order, failure to obey a lawful order, making a false official
statement, and being drunk on duty, in violation of Articles 81,
92, 107, and 112, Uniform Code of Military Justice (UCMJ), 10
U.S.C. §§ 881, 892, 907, 912 (2000). Appellant was found not
guilty of involuntary manslaughter arising from the same
circumstances. Appellant was sentenced to confinement for five
months, reduction to pay grade E-1, and a bad-conduct discharge.
The convening authority approved the sentence as adjudged and,
except for the bad-conduct discharge, ordered it executed. The
United States Navy-Marine Corps Court of Criminal Appeals
affirmed the findings and sentence.
STATEMENT OF THE ISSUES
On November 14, 2005, this Court granted review of the
following issues:
I. WHETHER APPELLANT WAS DENIED THE OPPORTUNITY TO
DEFEND HIMSELF AGAINST CHARGE I WHERE THE
MILITARY JUDGE’S FINDINGS OF GUILTY BY EXCEPTIONS
AND SUBSTITUTIONS RESULTED IN A MATERIAL
VARIANCE.
II. WHETHER THE MILITARY JUDGE ERRED TO THE
SUBSTANTIAL PREJUDICE OF APPELLANT WHEN HE FAILED
TO SUPPRESS APPELLANT’S STATEMENT IN ACCORDANCE
WITH THIS COURT’S RULING IN UNITED STATES V.
2
United States v. Finch, No. 05-0435/MC
McOMBER, 1 M.J. 380 (C.M.A. 1976), AND THE FIFTH
AMENDMENT TO THE UNITED STATES CONSTITUTION.
III. WHETHER APPELLANT HAS BEEN DENIED HIS DUE PROCESS
RIGHT TO TIMELY REVIEW OF HIS APPEAL.1
STATEMENT OF FACTS
At the time of the offenses, both Appellant and Staff
Sergeant (SSgt) Charles D. Teffeau, Jr. were recruiters in the
United States Marine Corps assigned to the recruiting substation
in Wichita, Kansas. JT and JK were recruits awaiting entry
through the delayed entry program. Appellant originally tried
to recruit JK when she was in high school. After failing the
Armed Services Vocational Aptitude Test, JK enrolled in
Coffeyville Community College, which was outside Appellant’s
recruiting district. JK was eventually able to pass the
aptitude test and enrolled in the Marine Corps through SSgt
Raymond Sutton, the local recruiter in Coffeyville. Although JK
had not enlisted in his recruiting district, Appellant
maintained communications with her. SSgt Sutton complained
about the communication between Appellant and JK and Appellant
was ordered to have no further contact with her.
The incidents in this case occurred on January 3, 1997.
Appellant and SSgt Teffeau had worked part of the day
1
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
United States v. Finch, No. 05-0435/MC
interviewing potential recruits in Arkansas City. The two
recruiters had a government vehicle and were planning to meet JT
and JK at JT’s residence to celebrate JK’s acceptance to boot
camp. JK was scheduled to ship to boot camp on January 6, 1997.
Before meeting the two recruits, Appellant and SSgt Teffeau
stopped at a gas station and purchased a case of beer, which
they put into the trunk of the government vehicle. They then
proceeded to JT’s residence.
While at JT’s residence, Appellant and SSgt Teffeau
consumed an unspecified quantity of bourbon and Coke.2 JK
consumed an unspecified amount of schnapps. JT did not consume
alcohol because she had to work later that day. After
approximately three hours, JT had to go to work and asked her
companions to leave. Appellant, SSgt Teffeau, and JK decided to
go to Winfield Lake. As her friends left, JT overheard
Appellant tell SSgt Teffeau, “Grab the beer and let’s go. . .”
Appellant and JK rode in JK’s Ford Mustang to the lake, while
SSgt Teffeau followed in the government vehicle.
When they arrived at Winfield Lake, Appellant and JK each
consumed at least one of the beers. They did not stay long at
2
JT testified that Appellant and SSgt Teffeau consumed bourbon
mixed with Coke and JK consumed schnapps at JT’s residence.
SSgt Teffeau testified that he did not consume any alcohol at
JT’s residence. The court below held that Appellant and SSgt
Teffeau did consume the bourbon.
4
United States v. Finch, No. 05-0435/MC
Winfield Lake (five minutes according to SSgt Teffeau).
Appellant and JK left in her Mustang while SSgt Teffeau drove
the government vehicle. As they departed the lake area, JK’s
car slid off the road, struck a tree, and went into Winfield
Lake. JK was killed in the accident and Appellant suffered
cracked ribs, a concussion, lacerations, and abrasions. JK’s
blood-alcohol content (BAC) was .07 grams of alcohol per 100
milliliters of blood. Appellant’s BAC was .15 grams per 100
milliliters of blood.
Issue I
Facts Specific to Issue I
Appellant was arraigned under the following charge:
Charge I, violation of the UCMJ, Article 81 and the single
specification: In that Staff Sergeant James H. Finch on
active duty did at or near Winfield, Kansas on or about 3
January 1997 conspire with Staff Sergeant Charles E.
Teffeau, Jr., U.S. Marine Corps, to commit an offense under
the Uniform Code of Military Justice to wit: Providing
alcohol for consumption to a person enrolled into the
delayed-entry program in violation of a general order to
wit: Marine Corps Recruit Depot, San Diego order
1100.4(alpha), paragraph 6(d) dated 21 May 1992; and in
order to effect the object of the conspiracy Staff Sergeant
Finch planned with Staff Sergeant Teffeau to meet and
consume alcohol with [JK] and [JT], persons enrolled in the
delayed-entry program. And Staff Sergeant Finch and Staff
Sergeant Teffeau purchased Bud Light beer at the Phillips
66 service station in Winfield, Kansas, and transported
that beer to the [T] residence.
When announcing his findings, the military judge excepted the
words, “Staff Sergeant Finch planned with Staff Sergeant Teffeau
to meet and consume alcohol with [JK] and [JT], persons enrolled
5
United States v. Finch, No. 05-0435/MC
in the delayed-entry program” and “Staff Sergeant Finch and
Staff Sergeant Teffeau purchased Bud Light Beer at the Phillips
66 Service Station in Winfield, Kansas, and transported that
beer to the [T] residence.” He substituted these words:
Staff Sergeant Finch and Staff Sergeant Teffeau
agreed to accompany [JK], a person enrolled in the
delayed-entry program, to the Winfield City Lake for
the purpose of talking and consuming Bud Light Beer
that Staff Sergeant Finch had recently purchased at
the Phillips 66 service station in Winfield, Kansas,
and Staff Sergeant Finch, Staff Sergeant Teffeau, and
[JK] did thereafter drive in two separate vehicles to
the Winfield City Lake where Staff Sergeant Finch and
[JK] did consume some of the aforesaid Bud Light Beer.
Discussion
Appellant’s trial defense counsel did not object to the
exceptions and substitutions at trial. Failure to object at
trial constitutes waiver of that issue.3 When an objection is
waived at trial, it can only be reviewed by establishing plain
error. In United States v. Powell, 49 M.J. 460, 463-64
(C.A.A.F. 1998), this Court set forth the three elements for the
plain error test: (1) that there was an error; (2) that the
error was plain, that is, clear or, equivalently, obvious; and
(3) the plain error affected substantial rights. 49 M.J. at
463. In this case, we hold that there was no clear error on the
3
R.C.M. 905(e).
6
United States v. Finch, No. 05-0435/MC
part of the military judge. In doing so, we utilize this
Court’s material variance test in our plain error analysis.4
“To prevail on a fatal-variance claim, appellant must show
that the variance was material and that it substantially
prejudiced him.” United States v. Hunt, 37 M.J. 344, 347
(C.M.A. 1993). A variance that is “material” is one that, for
instance, substantially changes the nature of the offense,
increases the seriousness of the offense, or increases the
punishment of the offense. See United States v. Teffeau,
58 M.J. 62, 66 (C.A.A.F. 2003); Rules for Courts-Martial
(R.C.M.) 918(a)(1). When applying this two-part test, this
Court has placed an increased emphasis on the prejudice prong,
noting that “Even where there is a variance in fact, the
critical question is one of prejudice.” United States v. Lee,
1 M.J. 15, 16 (C.M.A. 1975) (citing United States v. Craig,
8 C.M.A. 218, 24 C.M.R. 28 (1957); United States v. Hopf,
1 C.M.A. 584, 5 C.M.R. 12 (1952)). In Lee, this Court goes
further and broke down the prejudice prong into a two-part
analysis: “(1) has the accused been misled to the extent that
he has been unable adequately to prepare for trial; and (2) is
4
Although I apply this Court’s plain error analysis in this
case, I would employ the Supreme Court’s plain error analysis
from Johnson v. United States, 520 U.S. 461 (1997). See United
States v. Cary, 62 M.J. 277, 279 (C.A.A.F. 2006) (Crawford, J.,
concurring in result); United States v. Kho, 54 M.J. 63, 65
(C.A.A.F. 2000) (Crawford, C.J., concurring in result).
7
United States v. Finch, No. 05-0435/MC
the accused fully protected against another prosecution for the
same offense.” Id.In the present case, the variance is not material. The
charged offense here is violating Article 81, UCMJ, on January
3, 1997, by conspiring to violate a general order by providing
alcohol for consumption to a person enrolled in the delayed
entry program. The military judge’s exceptions and
substitutions did not substantially change the nature of the
offense. The primary difference between the charged offense and
the offense of which the military judge found Appellant guilty
went to the acts taken in furtherance of that conspiracy -–
specifically, in the location of the consumption of the alcohol
that was provided and the exact manner by which it was provided.
This Court has held that “minor variances, such as the location
of the offense or the date upon which an offense is allegedly
committed, do not necessarily change the nature of the offense
and in turn are not necessarily fatal.” Teffeau, 58 M.J. at 66.
Compare United States v. Wray, 17 M.J. 375, 376 (C.M.A. 1984)
(holding that changing the date and amount of the larceny under
the circumstances of that case changed the identity of the
offense).
In light of the ongoing socializing on the fatal day, any
of a host of acts might have been cited as an act in furtherance
of the agreement between Appellant and SSGT Teffeau to provide
8
United States v. Finch, No. 05-0435/MC
alcohol to these young women for their consumption. Although an
overt act is an element of the offense of conspiracy, see
Article 81, UCMJ; Manual for Courts-Martial, United States
pt. IV, para. 5.b. (2005 ed.) (MCM), it is not the core of the
offense. Rather, its purpose as an element is to demonstrate
that the agreement to commit a crime –- which is the inherent
nature of the offense of conspiracy -- is alive and in motion.
See United States v. Collier, 14 M.J. 377, 380 (C.M.A. 1983).
Under the circumstances of this case, a variance between the
pleadings and findings as to any or all of those acts did not
substantially change the nature or seriousness of the offense or
increase the punishment to which Appellant was subject.
Location usually is not a substantial part of the offense
of conspiracy. To be found guilty of conspiracy, only two
things need to be found: (1) the accused entered into an
agreement with another to commit an offense, and (2) the accused
acts to effect the object of the conspiracy. Article 81, UCMJ.
In the present case, the object of the conspiracy was agreed to
provide alcohol to a person admitted to the delayed entry
program in violation of a general order. To find a material
variance, the elements proven must be substantially different
from those charged. See R.C.M. 918(a)(1).
Unlike Appellant’s assertion, there were not two criminal
conspiracies in this case. Conspiracy is a continuing offense.
9
United States v. Finch, No. 05-0435/MC
MCM pt. IV, para. 5.c. Specifying JT’s house as the location of
the alcohol consumption was not an essential part of the
conspiracy. Substituting the lake as the location of the
alcohol consumption likewise was unnecessary. All that needed
to be charged was the fact that Appellant and SSgt Teffeau
agreed to provide alcohol to a person enrolled in the delayed
entry program in violation of a general order. Without the
details of the specific location, Appellant is still guilty of
the offense charged. The quantity and location of the alcohol
consumption was at issue throughout this case, indicating that
Appellant was on notice that both issues would be litigated.
Therefore the variance between the offense charged and the
offense of which the military judge found Appellant guilty was
not material.
Under the circumstances of this case, the change in the
description of the alleged acts taken in furtherance of that
conspiracy did not prejudice Appellant -- that is, it neither
misled Appellant in preparing or presenting his defense, nor
failed to protect him against a subsequent prosecution for the
same misconduct. First, Appellant has not shown that he was
unable to prepare adequately for trial. Significantly,
Appellant did not object to the military judge’s findings at the
time they were announced. In addition, the defense did not ask
the military judge to make special findings as to the conspiracy
10
United States v. Finch, No. 05-0435/MC
offense.5 See R.C.M. 918(b).6 The conduct of the four
participants that day was fully revealed by evidence presented
by the Government and the defense and was subject to cross-
examination and further amplification by the opposing party.
The central nature of the offense was whether Appellant
conspired with another to provide alcohol to delayed entry
trainees. The location where Appellant was to accomplish the
intended offense is not essential to the existence of a
conspiracy. Indeed, there is no requirement that the offense,
which is the object of the conspiracy, be committed. The
offense was complete when Appellant or his coconspirator
performed some overt act to bring about the object of the
conspiracy.
Second, the facts were presented at trial on the conspiracy
offense. The judge found Appellant guilty of conspiracy based
on those facts. Thus, Appellant cannot be tried again for the
same offense. See R.C.M. 907(b)(2)(C). Appellant has not
explained on appeal how, if at all, this preparation or
presentation of his defense was affected. In addition,
5
Appellant also did not raise a variance issue regarding the
judge’s findings in his post-trial submission to the convening
authority.
6
R.C.M. 918(b) provides that any party may request special
findings as “to matters of fact reasonably in issue as to an
offense and need be made only as to offenses of which the
accused was found guilty.”
11
United States v. Finch, No. 05-0435/MC
Appellant has not established any prejudice by demonstrating
that he was misled as to (1) what he had to defend against at
trial, or (2) whether he could be tried again for the same
offense or a similar one. The variance was not material. Even
assuming there was an error, Appellant has failed to show
prejudice stemming from that error. Therefore, we hold that
there is no plain error in this case based on a claim of
material variance.
Issue II
Facts specific to Issue II
When Appellant was interviewed by the military
investigator, he unquestionably was represented by civilian
counsel for the incident that forms the basis of the charges in
this case. Appellant’s civilian counsel had been in contact
with the civilian investigators regarding Appellant’s case and
instructed them that any contact with Appellant should be
coordinated through him. On March 12, 1997, Appellant was
interviewed by a military investigator, Captain (CPT)
Montgomery.7 Detective Shaw, a civilian investigator, told CPT
Montgomery that Appellant had retained a “hot shot lawyer.” CPT
Montgomery was on notice that Appellant had counsel. During the
7
This was the second of three meetings between Appellant and
military investigators. The first meeting occurred on March, 5
1997 with Major Bettendorf. The final meeting, also with CPT
Montgomery, occurred on March 24, 1997. The final meeting was
terminated once Appellant unequivocally requested counsel.
12
United States v. Finch, No. 05-0435/MC
interview with CPT Montgomery, Appellant signed a waiver of his
Article 31, UCMJ, 10 U.S.C. § 831 (2000), rights and
subsequently made a number of statements that became the subject
of a defense motion to suppress. The military judge denied the
motion and admitted Appellant’s statements to CPT Montgomery at
trial. Appellant now claims this was a violation of his rights
to have counsel notified and given an opportunity to be present
during the interview. This requirement was derived from United
States v. McOmber, 1 M.J. 380 (C.M.A. 1976).
Discussion
The legal question raised by Appellant in this case is
whether the notice to counsel requirement under the McOmber rule
is still valid. In McOmber, this Court ruled:
If the right to counsel is to retain any vitality, the
focus in testing for prejudice must be readjusted
where an investigator questions an accused known to be
represented by counsel. We therefore hold that once
an investigator is on notice that an attorney has
undertaken to represent an individual in a military
criminal investigation, further questioning of the
accused without affording counsel reasonable
opportunity to be present renders any statement
obtained involuntary under Article 31(d) of the
Uniform Code.
1 M.J. at 383.
McOmber sought to fulfill the statutory purpose of Article
27, UCMJ, regarding the right to counsel in a manner consistent
with parallel developments in the Supreme Court’s constitutional
13
United States v. Finch, No. 05-0435/MC
analysis of the right to counsel (e.g., the constitutional
“overtones” discussed in the McOmber opinion regarding the right
to counsel in the context of interrogations). The McOmber rule,
which was codified in the Military Rules of Evidence and titled
“Notice to Counsel,” read:
When a person subject to the code who is required to
give warnings under subdivision (c) intends to
question an accused or person suspected of an offense
and knows or reasonably should know that counsel
either has been appointed for or retained by the
accused or suspect with respect to that offense, the
counsel must be notified of the intended interrogation
and given a reasonable time in which to attend before
the interrogation may proceed.
Military Rule of Evidence (M.R.E.) 305(e) (1994). The analysis
of the rules states explicitly, “Rule 305(e) is taken from
United States v. McOmber.” Manual for Courts-Martial, United
States, Analysis of the Military Rules of Evidence app. 22 at
A22-15 (1994 ed.). Essentially, the McOmber rule and the old
M.R.E. 305(e) required an investigator to notify an accused’s
attorney that the accused is about to be interrogated and then
to give the attorney a reasonable opportunity to be present at
the interrogation.
In United States v. LeMasters, 39 M.J. 490, 492 (C.M.A.
1994) this Court ruled that the notification requirement could
be waived if the suspect or accused initiates the discussion
with authorities and is made aware of his right to have his
counsel notified and present.
14
United States v. Finch, No. 05-0435/MC
Shortly after the decision in LeMasters, the Military Rules
of Evidence were amended. The new (and current) version of
M.R.E. 305(e)8 was renamed “Presence of Counsel” and provides for
two situations where counsel must be present, absent waiver:
(1) custodial interrogations and (2) post-preferral
interrogation. These changes were instituted to conform the
Military Rules of Evidence to the Supreme Court’s decisions in
Minnick v. Mississippi, 498 U.S. 146 (1990),9 and McNeil v.
Wisconsin, 501 U.S. 171 (1991).10 Manual for Courts-Martial,
United States, Analysis of the Military Rules of Evidence app.
8
M.R.E. 305(e) states:
Presence of counsel. (1) Custodial interrogation. Absent
a valid waiver of counsel under subdivision (g)(2)(B), when
an accused or person suspected of an offense is subjected
to custodial interrogation under circumstances described
under subdivision (d)(1)(A) of this rule, and the accused
or suspect requests counsel, counsel must be present before
any subsequent custodial interrogation may proceed.
(2) Post-preferral interrogation. Absent a valid waiver of
counsel under subdivision (g)(2)(C), when an accused or
person suspected of an offense is subjected to
interrogation under circumstances described in subdivision
(d)(1)(B) of this rule, and the accused or suspect either
requests counsel or has an appointed or retained counsel,
counsel must be present before any subsequent interrogation
concerning that offense may proceed.
9
The Court in Minnick held that once a suspect has requested
counsel, interrogators may not reinitiate questioning unless the
attorney is present, regardless of whether or not there has been
an outside consultation. 498 U.S. at 153.
10
The Court in McNeil states that the Sixth Amendment right to
counsel applies “at the first formal proceeding against an
accused.” 501 U.S. at 181.
15
United States v. Finch, No. 05-0435/MC
22 at A22-15 through A22-16 (2005 ed.). Absent in the revised
rule is the notice requirement originally created in McOmber:
Subdivision (e)(2) supersedes the prior notice to
counsel rule. The prior rule, based on United States
v. McOmber . . . is not consistent with Minnick and
McNeil. . . . Minnick and McNeil reexamine the Fifth
and Sixth Amendment decisions central to the McOmber
decision; the amendments to subdivision (e) are the
result of that reexamination.
Id. at 16. We cannot rely solely on the President’s change to
M.R.E. 305(e) to overrule McOmber. McOmber was a statutorily
based decision and the underlying statute has not changed. A
change in a rule cannot supplant a statute, including a
statutorily based judicial decision. See United States v.
Kossman, 38 M.J. 258, 260-61 (C.M.A. 1993) (stating that the
President cannot overrule or diminish an act of Congress or the
Court of Appeals for the Armed Forces’ interpretation of the
statute). However, McOmber represented an attempt to ensure
that the statutory right to counsel under Article 27, UCMJ, was
administered in a manner consistent with then-current Supreme
Court constitutional precedent regarding the right to counsel.
Minnick and McNeil subsequently modified that precedent. In the
absence of a distinct military rationale justifying its
continued application in light of these changes, McOmber is
overruled. M.R.E. 305(e) remains controlling authority.
Applying M.R.E. 305(e) to the facts of this case, the
military judge did not err in admitting Appellant’s pretrial
16
United States v. Finch, No. 05-0435/MC
statement to CPT Montgomery. Appellant was advised of his
Article 31(b), UCMJ, rights and signed a valid, written waiver
of his rights in accordance with M.R.E. 301(g). One of the
rights Appellant acknowledged and waived, as indicated by his
initials, reads, “I expressly do not desire to consult with
either a civilian lawyer retained by me or a military lawyer
appointed as my counsel without cost to me prior to
questioning.”
Appellant also acknowledged waiver of these rights when
questioned by the military judge at trial regarding the written
waiver.11 Furthermore, Appellant acknowledged that his civilian
attorney told him not to go into questioning without him and
Appellant intentionally ignored that advice. Based on
Appellant’s own testimony and actions in reviewing and signing
the Article 31, UCMJ, rights form at the time of the
11
MJ: And it says here you don’t desire to talk to
the civilian lawyer, and you had a civilian
lawyer, Mr. Moses, right?
App: Yes, sir.
MJ: Or a military lawyer?
App: Yes, sir.
. . . .
MJ: As you were going over this form with him in that
room that he described, did you say, “Get me a
military lawyer”?
App: No, sir, I didn’t.
17
United States v. Finch, No. 05-0435/MC
interrogation, Appellant waived any right he may have had to
have his counsel notified of and be present at the
interrogation. See LeMasters, 39 M.J. at 493 (holding that
notice to counsel may be waived).
The current version of M.R.E. 305(e) does not require an
investigator to notify an accused’s or suspect’s counsel prior
to initiating an interview, regardless of whether the
investigator knows or reasonably should know that the accused or
suspect is represented by counsel on the offenses about which
the investigator intends to question him. The McOmber
notification rule and the subsequent codification of the rule in
the Military Rules of Evidence were not constitutionally
required under the Fifth or Sixth Amendments of the Constitution
and are not consistent with the law set forth in Minnick and
McNeil.12 Thus, there is no constitutional requirement to
provide an accused with more rights than those set out in the
rules. Accordingly, we hold that the military judge did not err
in admitting Appellant’s statement to CPT Montgomery.
ISSUE III
Facts specific to Issue III
The court-martial was decided on July 21, 1998. The
convening authority acted on August 6, 1999. The record was
12
The new M.R.E. 305(e) does not address the ethical
implications of dealing with accuseds or suspects who are
represented by counsel. See generally M.R.E. 305(e).
18
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sent to the Navy-Marine Corps Court of Criminal Appeals (NMCCA)
on January 28, 2000, and docketed on March 1, 2000. The defense
filed twenty motions for enlargement between July 5, 2000, and
May 31, 2002, when their brief was filed. The Government filed
eight motions for enlargement; the last one was filed on March
26, 2003. The defense did not oppose any of the Government
enlargements until April 2, 2003. The Government brief was
filed with the court below on May 19, 2003. On November 18,
2004, the defense filed a motion for expedited review. Finally,
on March 10, 2005, the NMCCA delivered its opinion.
Discussion
We review claims of post-trial and appellate delay using
the four-factor analysis from Barker v. Wingo, 407 U.S. 514, 530
(1972). United States v. Moreno, 63 M.J. 129, 135 (C.A.A.F.
2006).13 If there has been a denial of due process, an appellant
is entitled to relief unless the Court is convinced that the
error was harmless beyond a reasonable doubt. United States v.
Toohey, 63 M.J. 353, 363 (C.A.A.F. 2006). Where we can
determine that any violation of the due process right to speedy
post-trial review and appeal is harmless beyond a reasonable
doubt, we need not undertake the four-factor Barker analysis
13
I apply the analysis from the majority opinion in Moreno, but
see Moreno, 63 M.J. at 144-52 (C.A.A.F. 2006) (Crawford, J.,
concurring in part and dissenting in part).
19
United States v. Finch, No. 05-0435/MC
prior to disposing of that post-trial or appellate delay issue.
See United States v. Allison, 63 M.J. 365, 370-71 (C.A.A.F.
2006). In this case, we conclude that even if Appellant was
denied his due process right to speedy review and appeal, that
error was harmless beyond a reasonable doubt and no relief is
warranted.
CONCLUSION
For the reasons stated above, we affirm the decision of the
United States Navy-Marine Corps Court of Criminal Appeals.
20
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GIERKE, Chief Judge (concurring in part and dissenting in
part):
I dissent from my colleagues’ treatment of Issues I and II;
however I join Judge Erdmann’s separate opinion concurring in
the result on Issue III.
ISSUE I
No principle of procedural due process is more clearly
established than that notice of the specific charge,
and a chance to be heard in a trial of the issues
raised by that charge, if desired, are among the
constitutional rights of every accused in a criminal
proceeding in all courts, state or federal.1
I respectfully dissent from the majority opinion because
changing the overt act by exceptions and substitutions resulted
in a material variance, which altered the very nature of the
offense, such that Appellant was denied this fundamental
principle of due process.
The Manual for Courts-Martial describes the two distinct
elements of conspiracy:
(1) That the accused entered into an agreement with one or
more persons to commit an offense under the code; and
(2) That, while the agreement continued to exist, and
while the accused remained a party to the agreement,
the accused or at least one of the co-conspirators
performed an overt act for the purpose of bringing
about the object of the conspiracy.2
1
Cole v. Arkansas, 333 U.S. 196, 201 (1948).
2
Manual for Courts-Martial, United States pt. IV, para. 5.b.
(2005 ed.) (MCM).
United States v. Finch, No. 05-0453/MC
Thus, the overt act is an essential element of the offense,
which must be alleged and proven beyond a reasonable doubt. In
this case, the military judge, without any notice to the
accused, announced findings by exceptions and substitutions to
overt acts that were not alleged in, or implied by, the
specification charged. The alteration of the charge by the
military judge constituted a fatal variance in the pleadings and
materially prejudiced Appellant’s ability to defend against the
charge of conspiracy.
Appellant was originally charged with conspiracy to provide
alcohol to persons involved in the delayed entry program. Two
specific overt acts were alleged in the specification:
(1) purchasing beer at a service station, and (2) transporting
that beer to the [T] residence.
After hearing all the evidence, the military judge found
Appellant not guilty of the overt acts alleged. The military
judge then proceeded, by exceptions and substitutions, to find
Appellant guilty of two new, distinct overt acts, namely that:
(1) Appellant, Staff Sergeant Teffeau, and [JK] agreed to drive
to the Winfield City Lake to drink beer at the lake, and (2)
they then drove to the lake in two separate cars and drank beer.
The specification as amended by the military judge’s announced
findings focused on two allegations of fact: an agreement to
drive to the lake and drinking beer at the lake. The charge
2
United States v. Finch, No. 05-0453/MC
originally alleged made absolutely no mention of either of these
allegations.
The majority quotes United States v. Hunt, which states,
“To prevail on a fatal-variance claim, appellant must show that
the variance was material and that it substantially prejudiced
him.”3 An accused can show prejudice from a material variance in
several ways. One way includes a showing of a due process
violation “where he was ‘misled to the extent that he has been
unable adequately to prepare for trial . . . or where the
variance at issue changes the nature or identity of the offense
and he has been denied the opportunity to defend against the
charge.’”4
Appellant and his counsel prepared a defense and presented
evidence to refute the overt acts alleged by the Government.
This defense was directed at demonstrating that the overt acts
alleged occurred before any criminal agreement took place.
Specifically, Appellant presented evidence at trial that the
purpose of purchasing beer at a service station was for
consumption during that weekend’s football playoff games. The
military judge’s verdict indicates that Appellant and his
counsel were successful in their defense to the offense as
alleged.
3
37 M.J. 344, 347 (C.M.A. 1993).
4
United States v. Teffeau, 58 M.J. 62, 67 (C.A.A.F. 2003)
(quoting United States v. Lee, 1 M.J. 16 (C.M.A. 1975)).
3
United States v. Finch, No. 05-0453/MC
In United States v. Collier, this Court held “[a] variance
between a single overt act averred in an indictment and the act
proved at trial may constitute harmless error beyond a
reasonable doubt.”5 “‘Substantial similarity between the facts
alleged in the overt act and those proved is all that is
required.’”6 In Collier, this Court concluded the proven overt
act of leaving the squad bay was substantially similar to the
alleged overt act of leaving the barracks in furtherance of the
agreement to rob junior Marines at the back gate of Camp Geiger.7
The terms “squad bay” and “barracks” are sometimes used
synonymously. A person standing in the squad bay of a squad-bay
type of barracks has to leave the squad bay before he or she can
exit the barracks. Thus, the act of leaving the squad bay was
included in and implied by the act alleged, leaving the
barracks.
This case is distinguishable from Collier. Here, the
alleged overt acts of buying beer and traveling to a private
residence, which Appellant successfully defended against, are
not substantially similar to, included in, or implied by the
substituted acts of driving to a lake and drinking a beer at the
lake. The changing of the overt act element of the conspiracy
5
United States v. Collier, 14 M.J. 377, 380 (C.M.A. 1983).
6
Id. (quoting Strauss v. United States, 311 F.2d 926, 932 (5th
Cir. 1963)).
7
See id.4
United States v. Finch, No. 05-0453/MC
charge did not constitute harmless error. On the contrary, it
altered the language of the alleged overt act element in a
manner which produces a material variance. Appellant was
substantially prejudiced by this material variance because he
was denied the opportunity to defend against the charge.
Appellant was successful in preparing and presenting a defense
to the crime charged by the Government. He should have had an
opportunity to prepare a defense to the substantially different
charge created by the military judge when he announced his
findings of guilt.
The majority’s decision on Issue I is particularly
troublesome because it focuses on the fact that Appellant did
not object to the announcement of the verdict. The majority
therefore concludes that the military judge’s error in altering
the nature of the charge is waived by the failure to object
unless the error is deemed to be plain or “clear” error.
I have not been able to find any criminal case from any
jurisdiction which places a requirement on the defendant to
object to the verdict in order to preserve a legal issue for
appeal. Indeed, the entry of a plea of not guilty should
provide ample notice that a defendant would oppose and object to
any findings of guilt. I therefore disagree with any notion
that an accused is expected to object to findings of guilt after
they are announced. Appellant did not waive this issue by a
5
United States v. Finch, No. 05-0453/MC
failure to object to the announcement of findings and the error
warrants reversal.
Accordingly, I respectfully dissent.
ISSUE II
I also dissent from the majority decision to overrule
United States v. McOmber,8 because doing so will “utterly defeat
the congressional purpose of assuring military defendants
effective legal representation without expense.”9 McOmber held
that “once an investigator is on notice that an attorney has
undertaken to represent an individual in a military criminal
investigation, further questioning of the accused without
affording counsel reasonable opportunity to be present renders
any statement obtained involuntary under Article 31(d) of the
Uniform Code.”10 This also includes “questioning with regard to
the accused’s future desires with respect to counsel as well as
his right to remain silent, for a lawyer’s counseling on these
two matters in many instances may be the most important advice
ever given his client.”11 The McOmber rule was codified in the
Military Rules of Evidence and titled “Notice of Counsel.” It
read:
8
United States v. McOmber, 1 M.J. 380 (C.M.A. 1976).
9
Id. at 383. (citing Article 27, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. § 827 (2000)).
10
Id.11
Id.6
United States v. Finch, No. 05-0453/MC
When a person subject to the code who is required to give
warnings under subdivision (c) intends to question an
accused or person suspected of an offense and knows or
reasonably should know that counsel either has been
appointed for or retained by the accused or suspect with
respect to that offense, the counsel must be notified of
the intended interrogation and given a reasonable time in
which to attend before the interrogation may proceed.12
In 1994, the President amended M.R.E. 305(e) to remove the
McOmber notice requirement.13 McOmber was a statutorily based
decision, and the underlying statute, Article 27, UCMJ, has not
changed. “The President. . . cannot overrule or diminish an
Act of Congress via the promulgation of rules of procedure.
Likewise, the President cannot overrule or diminish our
interpretation of a statute.”14 Thus, Article 27, UCMJ, and our
decisions interpreting and applying it “reign[ ] preeminent over
anything propounded by the President.”15
The majority bases its conclusion that the President can
overrule McOmber on the idea that McOmber was not an application
and interpretation of Article 27, UCMJ, but rather an attempt to
ensure that Article 27, UCMJ, was administered in a manner
consistent with parallel developments in civilian constitutional
law. The majority apparently draws this conclusion from the
reference to constitutional “overtones” in the McOmber opinion.16
12
Military Rule of Evidence (M.R.E.) 305(e) (1994).
13
M.R.E. 305(e) (2005).
14
United States v. Kossman, 38 M.J. 258, 260-61 (C.M.A. 1993).
15
Id.16
McOmber, 1 M.J. at 382.
7
United States v. Finch, No. 05-0453/MC
It is important to put that phrase in context to understand that
the decision was directly based on Article 27, UCMJ. What this
Court said was, “Although the question presented has certain
constitutional overtones, our disposition of the matter on
statutory grounds makes it unnecessary to resolve the Sixth
Amendment claim.”17 Judge Cook’s concurring opinion is even more
explicit in rejecting any notion that civilian constitutional
precedent was being followed. Judge Cook cites two federal
cases which have allowed questioning without counsel’s presence
and then states, “As the principal opinion observes, however,
our cases have leaned squarely in the opposite direction. It
may, indeed, be time to prescribe the strong medicine of
explicit disapproval.”18 Accordingly, the majority opinion’s
conclusion that McOmber was crafted to follow developments in
constitutional law is contradicted by the very language of the
McOmber decision.
In many instances servicemembers are afforded more rights
in the criminal justice system than their civilian
counterparts.19 For example, the rights advisement required by
17
Id. (emphasis added).
18
Id. at 383 (Cook, J., concurring) (emphasis added and
quotation marks omitted).
19
See United States v. Warner, 62 M.J. 114, 121 n.31 (C.A.A.F.
2005), which states:
In defining the rights of military personnel, Congress was
not limited to the minimum requirements established by the
8
United States v. Finch, No. 05-0453/MC
Article 31, UCMJ,20 predates Miranda v. Arizona21 by sixteen
years, and the protections afforded servicemembers by Article
31, UCMJ, are, in some respects, even more expansive than those
required by Miranda.22 Similarly, this Court, focusing on the
differences between a court-martial and a civilian jury trial,
has held that a military defendant is entitled to “a reasonable,
racially neutral explanation” for a prosecutor’s challenge of a
minority member of a court-martial, while a civilian defendant
is not.23
The majority opinion fails to recognize that McOmber was
based on the interpretation of a statute crafted by Congress to
address special military circumstances. As Congress recognized
in drafting Article 31, UCMJ, it is appropriate that more
protection be afforded to servicemembers in the interrogation
setting than to their civilian counterparts because of the
Constitution, and in many instances, it has provided
safeguards unparalleled in the civilian sector. United
States v. Mapes, 59 M.J. 60, 65 (C.A.A.F. 2003) (quoting
United States v. McGraner, 13 M.J. 408, 414 (C.M.A. 1982)
(quotation marks omitted)); see, e.g., Francis A. Gilligan,
The Bill of Rights and Service Members, 1987 Army Law. 3,
10 (Dec. 1987) (servicemembers’ rights broader than
constitutionally required).
20
10 U.S.C. § 831 (2000).
21
Miranda v. Arizona, 384 U.S. 436 (1966).
22
H. F. “Sparky” Gierke, The Use of Article III Case Law in
Military Jurisprudence, Army Law., Aug. 2005, at 25, 36.
23
United States v. Tulloch, 47 M.J. 283, 287 (C.A.A.F. 1997)
(declining to follow the Supreme Court’s holding in Purkett v.
Elem, 514 U.S. 765, 769 (1995), that the explanation for the
challenge need not “make[ ] sense”).
9
United States v. Finch, No. 05-0453/MC
characteristically coercive nature of the military. The
prophylactic rule announced in McOmber was intended to ensure
the right to effective assistance of counsel set forth in
Article 27, UCMJ, and to extend that right to servicemembers
facing an interrogation into allegations of misconduct.
The recognition that the military environment is inherently
coercive is substantiated by the very facts of this case. It
cannot be ignored that Appellant, with the assistance of
counsel, was able to successfully invoke his rights in several
attempted interrogations by civilian police, but eventually
agreed to waive his rights when confronted by a military
superior for the second time. The military setting, the
influence of rank, and the absence of the assistance of counsel
almost certainly created an environment in which Appellant’s
ability to invoke the rights previously asserted was
compromised.
The rights afforded by Article 27, UCMJ, and McOmber are
separate and distinct from the constitutional rights addressed
in Minnick v. Mississippi24 and McNeil v. Wisconsin.25 The change
24
Minnick v. Mississippi, 498 U.S. 146 (1990) (holding that
once a suspect has requested counsel, interrogators may not
reinitiate questioning unless the attorney is present,
regardless of whether or not there has been an outside
consultation).
25
McNeil v. Wisconsin, 501 U.S. 171 (1991) (finding that the
assertion of the Sixth Amendment right to counsel did not imply
an assertion of the Miranda right to counsel).
10
United States v. Finch, No. 05-0453/MC
to M.R.E. 305(e), removing the McOmber protections prior to
preferral of charges, was enacted to apply Minnick and McNeil.26
But, in the military environment, counsel rights extending
beyond those in civilian society are particularly important.
Our country has soldiers, sailors, airmen, and marines deployed
in every corner of the globe for extensive periods of time. In
these remote areas, they may find themselves facing
investigations into allegations of criminal conduct for months,
even years, before a charge can be preferred.27 These young men
and women deserve unique protections to ensure that they receive
the effective assistance of counsel in the unique circumstances
they face as a result of their military service. McOmber is
based on military-specific statutory provisions designed to
protect this important right to counsel rather than the
constitutional provisions involved in Minnick and McNeil. Since
a change in a rule cannot supplant a statute, including a
statutorily based judicial decision,28 the attempt to overrule
McOmber by amending the Military Rules of Evidence should fail.
Accordingly, I dissent from the majority’s decision to overrule
26
Manual for Courts-Martial, United States, Analysis of the
Military Rules of Evidence app. 22 at A22-15 through A22-16
(2005 ed).
27
See United States v. Wattenbarger, 21 M.J. 41, 42-45 (C.M.A.
1985) (finding a pre-preferral right to counsel in a situation
where a sailor stationed overseas was facing allegations of
criminal behavior for four months prior to preferral of any
charges).
28
Kossman, 38 M.J. at 260-61.
11
United States v. Finch, No. 05-0453/MC
McOmber, based on the holdings of Minnick and McNeil, and the
changes to M.R.E. 305(e). I would also overrule those portions
of M.R.E. 305(e) which are inconsistent with McOmber.
In addition to overruling McOmber, the majority
alternatively concludes that Appellant waived any McOmber
protections that he was afforded. In reaching this conclusion,
the majority relies on United States v. LeMasters, which found a
proper waiver of McOmber rights.29 Because I concurred in
LeMasters, I think it is important to note the significant
factual distinctions between that case and this one.
The appellant in LeMasters contacted the Office of Special
Investigations (OSI) office on his own accord on four separate
occasions without requesting counsel, and he made statements
each time.30 In LeMasters, prior to taking the appellant’s
statement, a special agent in the OSI office instructed the
appellant to contact his attorney, and the agent provided the
appellant with an office, a phone, and the phone number of the
area defense counsel’s office.31 The interrogation proceeded
only after LeMasters returned to the agent and indicated that he
had spoken with counsel and desired to continue without counsel
present.32
29
39 M.J. 490, 493 (C.A.A.F. 1994).
30
Id. at 491.
31
Id.32
Id.12
United States v. Finch, No. 05-0453/MC
In stark contrast to LeMasters, who initiated four separate
discussions with law enforcement, Appellant here never initiated
an interrogation session and, through counsel, declined to speak
with the Winfield City Police Department. In furtherance of law
enforcement’s continuing effort to successfully interrogate
Appellant, Detective Shaw, the civilian police officer, worked
with Captain (CPT) Montgomery, the military officer
investigating Appellant. Detective Shaw told CPT Montgomery
that Appellant was represented by a “hot shot lawyer.”
Detective Shaw, who had been unable to question Appellant
because of his invocation of rights, provided CPT Montgomery
with a list of questions to ask. On March 12, 1997, CPT
Montgomery, without making any effort to contact Appellant’s
lawyer or to give Appellant the opportunity to do so, gave
Appellant the standard rights acknowledgment warning and
obtained a waiver of Appellant’s Miranda rights and Article 31,
UCMJ, rights.33
The Court in LeMasters ruled that the Appellant had waived
his rights because “there is no evidence of police overreaching
or badgering or attempting to surreptitiously deprive appellant
33
The standard “Miranda waiver” should not equate to a waiver of
McOmber rights because, as we pointed out in McOmber, the
notification to counsel was required prior to “questioning with
regard to the accused’s future desires with respect to counsel
as well as his right to remain silent, for a lawyer’s counseling
on these two matters in many instances may be the most important
advice ever given his client.” 1 M.J. at 383.
13
United States v. Finch, No. 05-0453/MC
of the right to counsel. Rather, this is a case in which
appellant intended to give a statement . . . to the OSI agents.
This discourse was initiated by appellant and not by the
agents.”34
The facts of this case indicate that Appellant had no
desire to be interrogated and would not have done so absent the
repeated law enforcement efforts to subvert his invocation of
rights. In LeMasters, law enforcement recognized and protected
the accused’s McOmber rights. In the instant case, law
enforcement ignored and attempted to maneuver around the
undisputed fact that Appellant was represented by counsel.
These facts support the rationale for McOmber, not the
majority’s decision to overrule that important military case. I
therefore respectfully dissent.
34
39 M.J. at 492 (quotation marks omitted).
14
United States v. Finch, No. 05-0453/MC
ERDMANN, Judge (concurring in part and dissenting in part):
I concur with the majority on Issue II. I join the Chief
Judge’s dissent with respect to Issue I.
Finally, I concur in the result on Issue III. I conclude
that even though Finch should have prevailed on a meritorious
substantive issue, he did not suffer any prejudice under the
fourth prong of the appellate delay analysis. See United States
v. Toohey, 60 M.J. 100, 102 (C.A.A.F. 2004) (adopting the speedy
trial factors from Barker v. Wingo, 407 U.S. 514, 530 (1972),
for post-trial and appellate delays). Although I would have
authorized a rehearing on the specification of Charge I and the
sentence, any delay in processing this appeal did not result in
oppressive incarceration. See United States v. Moreno, 63 M.J.
129, 139 (C.A.A.F. 2006). Finch would have been released after
serving the adjudged five months of confinement well before a
timely appeal could have been completed. Further, although the
delay in this case may have impaired Finch’s ability to present
a defense at a rehearing, he has “not . . . identi[fied] any
specific harm that he would encounter at a rehearing.” Id. at
141. For those reasons, I would conclude that Finch was not
prejudiced under the fourth Barker factor.
I would, however, find a violation of Finch’s due process
right to speedy post-trial and appellate review. The 2,424 days
(six years, seven months and twenty days) from sentencing to
United States v. Finch, No. 05-0453/MC
completion of Finch’s appeal of right is excessive and is “so
egregious that tolerating it would adversely affect the public’s
perception of the fairness and integrity of the military justice
system.” United States v. Toohey, 63 M.J. 353, 362 (C.A.A.F.
2006). However, I share the majority’s conclusion that this due
process violation was harmless beyond a reasonable doubt. See
id. at 363.
2