United States v. Brown

13 M.J. 253, 1982 CMA LEXIS 17284

Opinions

Opinion

EVERETT, Chief Judge:

On September 11, 1979, December 4 and 19, 1979, and January 8-11, 1980, appellant was tried at Edwards Air Force Base, California, by a military judge sitting as a general court-martial and was convicted of several drug offenses. The judge sentenced him to a bad-conduct discharge, confinement at hard labor for 16 months, and total forfeitures. A substitute convening authority approved the findings and the sentence except confinement in excess of 12 months. Then the Air Force Court of Military Review eliminated the forfeitures entirely and, by divided vote, affirmed the remainder of the sentence as approved. 10 M.J. 800 (1981). Subsequently, we granted appellant’s petition for review by this Court. 11 M.J. 405, 12 M.J. 22.

I

Prior to entering his pleas of not guilty, appellant moved “for dismissal of all charges and specifications because the Government has made an immunity — immunity type agreement which they have not kept.” In support of this motion, the defense offered a stipulation of fact (Defense Exhibit B), which stated:

During the latter part of September 1979, Captain Lionel J. Mitchell, Defense Counsel, and Colonel Norman L. Paul, the Staff Judge Advocate, discussed granting AB David N. Brown an AFM 39-12, Section F discharge if Brown cooperated with the OSI by giving good drug activity information and participating in controlled drug activities. Colonel Paul discussed this possibility with the Convening Authority, General Philip J. Conley. General Conley told Colonel Paul to pursue the agreement.

Approximately the last week of September Colonel Paul and Captain Mitchell agreed that if the accused gave good drug activity information and participated with the OSI in controlled drug activities the Convening Authority would grant the Section F request or give sentence-clemency relief.

Colonel Paul promised that any information given by the accused would not be used against him in the court-martial. The accused agreed to these conditions.

A few days before the Government pay day at the end of September, Captain Mitchell, the accused, and two OSI agents met at the Headquarters Building at Edwards Air Forcé Base. The accused gave information regarding the activities of 5 drug dealers at Edwards AFB. The accused further offered to engage in a controlled drug transaction the next weekend which included a military pay date. The OSI did not wish to initiate such an activity. During the next two weeks the OSI did not organize any controlled transactions.

Captain Mitchell communicated by phone with Colonel Paul, .asking why such activities were not being pursued. Colonel Paul indicated that the OSI was reluctant to work with the accused but finally agreed to do so by order of the Convening Authority. Colonel Paul perceived that the OSI was not really interested in working with the accused but recognized that the accused was eager to cooperate.

Sometime during mid-October Captain Mitchell and Colonel Paul again discussed the OSI’s apparent inaction. Colonel Paul indicated that the OSI was of the opinion that AB Brown was not cooperating with them. Captain Mitchell suggested to Colonel Paul that the agreement be terminated because of the OSI’s apparent inaction. Colonel Paul responded that the Convening Authority wanted to continue the arrangement.

Colonel Paul then told Captain Mitchell that if the accused gave good information and continued his cooperation, as Staff Judge Advocate, he would arrange for the Convening Authority to approve the Section F. He assured Captain Mitchell that the OSI were not as influential with the Convening Authority as he was. Captain Mitchell and the accused agreed to continue the agreement. Before Colonel Paul could evaluate the information given by the accused and consider his participation, Colonel Paul was hospitalized and remains on the seriously ill list at this time. Colonel Paul never recommended to the Convening Authority approval or disapproval of the Section F request. Colonel Paul did not divulge the nature of the agreement with Major Stuart, the Deputy Staff Judge Advocate, nor did he discuss with Major Stuart the OSI’s apparent unresponsiveness.

A Section F request for discharge was submitted but was disapproved by the Convening Authority without any communication by the Convening Authority with Colonel Paul.

Also, the defense called as a witness Special Agent Clifford Jones of the Air Force Office of Special Investigations (OSI), whom defense counsel stated “to ... be an adversary witness under the circumstances.” Mr. Jones testified that in late September or early October 1979, he had met with appellant and his defense counsel “pertaining to information that Amn Brown wanted to provide to OSI concerning drug abuse activity on Edwards.”¹ Appellant had given to Jones a letter listing the names of certain individuals at Edwards Air Force Base whom he alleged to be using drugs. Mr. Jones recalled telling appellant’s defense counsel something to the effect that the information provided was good. At that first meeting appellant also had volunteered to become engaged in drug buys under the direction and control of the OSI. Mr. Jones claimed to be unaware of any attempts by appellant “to set up controlled deals for the OSI” and stated “that most of the information” which “Brown gave” the OSI “was ambiguous” and “did not meet the requirements we levied on him to eventually engage in successful narcotics operations.” However, he also expressed the “opinion that had we been ... allowed to continue with our activities with Amn Brown that quite possibly as pertains to one individual on this base, ... we could have had valuable information and most likely have engaged in a successful narcotics operation.”

In support of his motion, defense counsel also offered in evidence “the results of a polygraph examination for the specific purpose of impeaching the testimony of the adversary witness, Mr. Jones.” The polygraph test — which apparently had been made of appellant at the request of his counsel — indicated that appellant had been truthful when he told the examiner that he had been given $75 by Special Agent Jones for controlled purchases and then had attempted at least three times to “set up” another airman for the OSI. Upon Government objection, the results of the polygraph examination were excluded.

Thereafter, the defense argued that Brown had relied to his detriment on the promise by Colonel Paul, the staff judge advocate, to intervene in his behalf. Moreover, “the Defense’s position” was

that the OSI strung Amn Brown along. They didn’t like him. They didn’t want to work with him. At this point the Government should not be allowed to reap the fruit of such behavior. Instead, the Government should be required to keep their part of the bargain.

To these contentions the trial counsel replied succinctly:

TC: Your Honor, we believe that quite simply the question before this court is moot in that the agreement apparently entered into provides for alternatively Section F approval or sentence clemency relief, and that of course will not be possible unless there is in fact a conviction and sentence imposed. We feel the question is moot.

Without stating his reasons, the military judge then proceeded to deny the motion to dismiss.

The record of trial was reviewed by a substitute convening authority, the Commander of Headquarters Armament Division (AFSC) at Eglin Air Force Base, Florida. His staff judge advocate made these comments concerning appellant’s motion to dismiss:

The gist of the agreement is found in Paragraph 3 of the Stipulation of Fact, to wit: that Colonel Paul, the Staff Judge Advocate at the time at Edwards Air Force Base, promised that if the accused gave good information on drug activity to the OSI and participated with the OSI in controlled drug activities, that he (Col Paul) would recommend that the convening authority grant his request for discharge in lieu of court-martial or, in the alternative, that he would recommend that the convening authority grant clemency relief after trial. It is clear from the Stipulation that immunity, within the legal meaning of that term, was not offered to or accepted by the accused. Consequently, the military judge properly denied this motion (R 237). However, with respect to this motion it is incumbent upon you, as the reviewing authority, to keep in mind that such an agreement between the Staff Judge Advocate at Edwards AFB and the accused did exist and that, in fact, the accused did provide some measure of information and cooperation to the OSI, with this agreement in mind (R 232 — 235, testimony of SA Jones). In determining your action in this case, and in reviewing the clemency information available to you in this case, you should fully consider these factors.

In his Goode response,² the defense counsel referred to

those facts which strongly support the defense’s position. Colonel Paul, the Staff Judge Advocate, was told by defense counsel that the accused would not cooperate with the OSI because of inaction on their part. Col Paul then stated that the convening authority desired to continue the operation, and Colonel Paul then made a guarantee to insure the accused’s continued participation. He stated that if AB Brown continued in good faith to cooperate, that as SJA he would insure that the convening authority approved the Section F. The defense believes that as SJA for the General Court-Martial convening authority, Colonel Paul made this assurance as an agent of that authority. The OSI acted dishonest and unethical in working with AB Brown, and the accused’s information and participation exceeded that indicated by SA Jones’ testimony. The military judge erred in denying the introduction of Defense Exhibit C for identification which was the result of a polygraph examination verifying AB Brown’s good faith and dangerous participation with the OSI. The review erroneously does not address this error. The results were introduced for the limited purpose of rebutting the testimony of an adverse witness in support of a motion for dismissal. The results were not introduced as evidence for the merits of the case.

In turn, the staff judge advocate replied: It should be first noted that there is no immunity agreement and there has been no immunity agreement between the accused and the Government. The terms of the agreement, as asserted by counsel at trial, are found at Defense Exhibit B. Basically, the matter referred to by defense counsel is discussion or agreement between Colonel Paul, the then-Staff Judge Advocate at Eld wards Air Force Base, and defense counsel, the terms of which were that if the accused gave information to and cooperated with the OSI in controlled drug activities, that Colonel Paul would recommend to the convening authority that a Section F discharge be granted (discharge in lieu of court-martial) or that Colonel Paul would recommend that the convening authority grant clemency relief subsequent to trial of the accused. This agreement by its very terms, is clearly not an agreement for any type of immunity. The motion was properly denied by the military judge. However, as you were advised in the earlier SJA Review, you should consider this agreement and consider that the accused did for some period of time provide some information and assistance to the OSI prior to his trial. These actions by the accused should be favorably considered by you in assessing your clemency action.

The Court of Military Review, after condemning “agreements such as the one involved in this case,” concluded that nonetheless “the ends of justice require us to recognize this agreement and to effect realistically, any reasonable expectancy of the parties.” The court below then reasoned that the charges should not be dismissed— as had been urged by appellant both at trial and on appeal — because “[b]oth conviction and discharge were clearly foreseeable under the agreement.” However, since the Court of Military Review did not consider that “approval of a lengthy period of con--* finement was” expected “under the agreement” and since “the confinement portion of the approved sentence has been effectively satisfied” appellant was given relief by disapproval of the adjudged forfeitures. Dissenting in part, Judge Miles concluded that because of the failure to comply with the reasonable expectation of the parties that any confinement served by appellant would be short, “[i]n the interest of justice and complete fairness and in the face of the government’s promise of ‘sentence clemency relief’ and the staff judge advocate promises,” a bad-conduct discharge should not be approved. 10 M.J. at 802.

II

According to the stipulation of fact, Colonel Paul, the staff judge advocate, had discussed granting appellant a Section F discharge if he cooperated with the OSI. Since such a discharge is administrative and cannot be adjudged by a court-martial, the stipulation can be interpreted to mean that Colonel Paul was extending to appellant the inducement that prosecution would be abandoned if he gave sufficient assistance in OSI drug detection activities. Moreover, the inducement was offered with the full concurrence of the convening authority, General Conley. Thereafter, an agreement apparently was reached whereunder appellant might receive either a Section F discharge or “sentence-clemency relief.” The language of the stipulation is somewhat ambiguous, since it seems consistent with any of at least three diverse alternatives: (a) appellant would receive an administrative discharge and no court-martial; (b) appellant might receive a court-martial, but in that event, as a matter of clemency, he would be allowed to remain in the Air Force even if a punitive discharge were adjudged; or (c) appellant might be courtmartialed in which event he would receive clemency that would not necessarily include disapproval of any bad-conduct discharge adjudged by the court-martial.

In mid-October, when defense counsel “suggested to . . . [the staff judge advocate] that the agreement be terminated . . . Colonel Paul responded that the Convening Authority wanted to continue the arrangement.” From the wording of the stipulation of fact, it would appear that at this stage “the arrangement” was being viewed by the parties as directed to a Section F discharge, rather than to some form of clemency.

An agreement to approve a Section F discharge is not an explicit agreement for immunity from prosecution, for apparently an application for such a discharge can be approved after trial while the applicant is serving any sentence adjudged by a court-martial. If, however, an administrative discharge were issued before trial for an offense, it would have the same effect as a grant of immunity from trial by court-martial, since receipt of the discharge would terminate the military status which is essential for prosecution. United States ex rel. Toth v. Quarles, 350 U.S. 11, 76 S.Ct. 1, 100 L.Ed. 8 (1955).³ Whatever the proper characterization of “the arrangement” made in this case, it certainly fell within the authority of General Conley, who was an officer exercising general court-martial jurisdiction, see para. 68h, Manual for Courts-Martial, United States, 1969 (Revised edition), and who also could approve a Section F discharge.

During his last discussion with the defense counsel, Colonel Paul apparently committed himself as to the recommendation he would make if he concluded that appellant’s assistance to the OSI was of substantial value. Since the staff judge advocate had been entrusted by General Conley with the responsibility of negotiating an agreement with appellant, Colonel Paul was entitled to represent to the defense counsel what he would recommend and what he believed the effect of the recommendation would be. Innumerable cases have been settled on the basis of discussions in which an attorney induced a settlement offer by representing what recommendation he would make to his clients concerning acceptance of the offer and what he believed his client’s reaction would be to the recommendation. Indeed, among attorneys it is readily recognized that a lawyer’s recommendation to his client often will determine what that client will do.

In military law administration, it is foreseeable that a commander will rely on the advice of his staff judge advocate; indeed, in some instances, he is required to give reasons if he does not do so. See para. 85c, Manual, supra. Moreover, Colonel Paul, the staff judge advocate, had expressly represented to appellant’s defense counsel that he was “influential with the Convening Authority.” Obviously this representation was made so that appellant would anticipate acceptance by the convening authority of any recommendation by his staff judge advocate that Brown receive a Section F discharge.

In view of the various offers made to him by Colonel Paul, appellant and his counsel could reasonably have concluded that if Brown’s services were of sufficient merit as evaluated by the staff judge advocate, at the very least, that officer would recommend to General Conley that appellant’s request for an administrative discharge be approved. Reasonably relying on these assurances, Brown rendered services as an informant — perhaps with some resulting personal risk. While the testimony of Special Agent Jones leaves in doubt how much value the OSI attached to the information which Brown provided, appellant was entitled to an evaluation by the staff judge advocate and not merely by the OSI. Of course, Colonel Paul could give such weight as he chose to the OSI’s appraisal of appellant’s contribution. Likewise, Colonel Paul would be free to consider the polygraph test results, which indicated that appellant had made significant efforts to assist the OSI. Cf. United States v. Massey, 5 U.S.C.M.A. 514, 18 C.M.R. 138 (1955).

The serious illness of the staff judge advocate frustrated performance of the promises which had been made to appellant, since Colonel Paul was physically unable to make the bargained for evaluation of appellant’s services. We find in the record no adequate replacement for the evaluation promised by Colonel Paul. Indeed, since the record of trial was reviewed by a substitute convening authority located some 2,000 miles away from Edwards Air Force Base, appellant did not even receive the benefit of a personal evaluation of his services by General Conley, who had initially authorized Colonel Paul to proceed with an agreement.

Furthermore, we cannot infer that it was unlikely Colonel Paul would have recommended approval of a Section F discharge or that the convening authority would have accepted such a recommendation. The staff judge advocate who reviewed the case for the substitute convening authority seems to have recognized that services of value were rendered by appellant. The Court of Military Review apparently reached a similar conclusion. Thus, it appears probable that Colonel Paul would have made a recommendation favorable to appellant and that, at worst, Brown would have received an administrative discharge under Section F and served little, if any, confinement.

Under these circumstances we subscribe fully to the view of Judge Miles in the Court of Military Review that, having served 12 months of confinement, appellant was entitled to relief which went beyong setting aside the forfeitures. Indeed, under the circumstances of this case, it is necessary to go even further than Judge Miles and to set aside the findings and sentence in their entirety, since it seems quite likely that if Colonel Paul had not become seriously ill, appellant would never even have been tried by court-martial.

We realize that, as observed by the Court of Military Review, such informal “agreements” create many problems. However, in dealing with certain offenses — such as those involving drugs — reliance often must be placed on persons who give information and make controlled purchases in return for promised leniency as to the punishment for their own misdeeds. As recognized in Service programs designed to protect the safety of informants, cf. United States v. Killebrew, 9 M.J. 154 (C.M.A.1980), the cooperation furnished may entail considerable hazard for an informant. Sometimes an understanding which is reached will be informal; typically it will be entered without the safeguards employed in a providence inquiry when a guilty plea has been offered.⁴ If, however, the Government seeks to give a narrow construction to such understandings, in the long run it will not obtain the requisite cooperation. This is especially true where, as here, continuing services are to be furnished by the informer in ferreting out ongoing criminal enterprises. Thus, not only fair play but also legitimate law enforcement interests require ungrudging enforcement of “agreements” like that in the case at bar. See Cooke v. Orser, 12 M.J. 335, 358 (C.M.A.1982) (Everett, C. J., concurring).

Unfortunately, the obligations to which the Government was subject were not fulfilled. While there was no intentional breach of the agreement, the consequences of the frustration of performance because of the staff judge advocate’s serious illness should be visited here on the Government, rather than on this accused.⁵

Accordingly, the decision of the United States Air Force Court of Military Review is reversed. The findings and sentence are set aside. The charges are dismissed.

1 . This meeting, which had been directed by the commander of the OSI detachment to which Jones was assigned, took place long after the charges were referred on June 1, 1979, and after an Article 39(a), Uniform Code of Military Justice, 10 U.S.C. § 839(a), session in appellant’s trial had taken place on September 11, 1979.

2 . United States v. Goode, 1 M.J. 3 (C.M.A.1975).

3 . Of course, receipt of an administrative discharge would not terminate amenability to prosecution in a federal or state court that might have concurrent jurisdiction over the offense. Likewise, it is unclear whether a grant of immunity under paragraph 68h of the Manual for Courts-Martial, United States, 1969 (Revised edition), would preclude prosecution in a civil court.

4 . The circumstances generally do not permit a military judge to inquire in open court about the terms of such agreements when they are being negotiated and the informant may not be represented by an attorney.

5 . Since my concurring opinion in Cooke v. Orser, 12 M.J. 335, 353 (C.M.A.1982), already answers most of the points made in the dissent here — which correspond to the arguments made in Judge Cook’s dissenting opinion there — I shall not now reiterate the discussion, but rather I simply incorporate it by reference here.