United States v. Francis

25 M.J. 614, 1987 CMR LEXIS 716
CourtU S Coast Guard Court of Military Review
DecidedOctober 22, 1987
DocketCGCM 9990; Docket No. 884
StatusPublished
Cited by5 cases

This text of 25 M.J. 614 (United States v. Francis) is published on Counsel Stack Legal Research, covering U S Coast Guard Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Francis, 25 M.J. 614, 1987 CMR LEXIS 716 (cgcomilrev 1987).

Opinions

DECISION

BAUM, Chief Judge:

At a general court-martial composed of commissioned officer members, appellant, contrary to his pleas, was convicted of seventeen specifications in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934. Thirteen of the offenses involved either possession, distribution or use of marijuana. Subdivided, those offenses separate into one specification of possession, four specifications of distribution and eight specifications of use, all in the presence of, or involving young people, some of whom were members of the base teen club, for which the accused acted as an advisor. Three of the convictions were for obstruction of justice by the accused trying to influence the testimony of potential witnesses against him at the preliminary investigation. The remaining offense was for wrongfully providing an alcoholic beverage to a 16 year old girl, a military dependent, and for having sexual intercourse with her in the presence of another 16 year old girl. The Court members sentenced the accused to a dishonorable discharge, total forfeitures, reduction to pay grade E-l and confinement for 3 years. The convening authority reduced the confinement to 2V2 years but otherwise approved the sentence.

Appellant has assigned eleven errors before this Court. In one of the assignments, appellant asserts that he was denied a fair pre-trial investigation by the investigating officer’s failure to conform to Article 32, Uniform Code of Military Justice standards of neutrality, detachment and independence. Citing, United States v. Payne, 3 M.J. 354 (C.M.A.1977) and United States v. Brunson, 15 M.J. 898 (C.G.C.M.R.1982) aff’d. 17 M.J. 181 (C.M.A.1983), appellant contends that violation of these standards raises a presumption of prejudice which the government can only overcome with clear and convincing evidence, which he says cannot be adequately satisfied by affidavits. For that reason, he contends that a DuBay1 type evidentiary hearing should be ordered to develop the content and effects of an ex-parte meeting involving the investigating officer or that corrective action be taken through the ordering of another Article 32, Uniform Code of Military Justice investigation with a new investigating officer. In the alternative, he says the findings and sentence should be set aside and the specifications and charges dismissed.

Appellant does not contend that the investigation itself was conducted in such a manner that standards of neutrality, detachment and independence were violated. His contention, instead, is that error occurred before the investigation commenced, when the investigating officer met with the accused’s commanding officer, the trial counsel and the accuser outside the presence and knowledge of the accused. The issue was not litigated at trial because, according to the brief, appellant learned of the meeting only after appellate defense counsel was assigned. Government counsel counters with the assertion that the doctrine of waiver applies to an error of this nature even though the accused may not have had knowledge of the circumstances at trial. In any event, he says the trial defense counsel at the time had been informed of the intended meeting, pointing to an affidavit from the investigating officer to support this contention.

We reject both of these positions with respect to waiver. First, we do not believe counsel and accused can waive an error of which they are unaware, through no fault of their own. It was their very exclusion from the meeting and lack of [616]*616knowledge of it that forms the basis for the assignment, as distinguished from the facts in United States v. Tatum, 17 M.J. 757 (C.G.C.M.R.1984), where waiver was applied after the defense failed to object at trial to ex-parte discussions between the Article 32 investigating officer and government representatives, of which the defense was fully aware. Secondly, in an affidavit from the defense counsel who was purportedly informed, he states that he cannot remember whether or not he was aware that the Article 32 Investigating Officer met prior to the investigation with the commanding officer for anything other than a courtesy call, to which counsel would not have objected. He does state with certainty, however, that he was not aware of any meeting between the investigating officer, trial counsel, accuser and commanding officer that involved discussion of the adequacy of the specifications. Furthermore, as of a date prior to the challenged meeting, counsel says his representation of the accused was considered terminated, with replacement to come from another military counsel and civilian counsel. Moreover, there is no indication that any information concerning such a meeting was passed on to counsel who ultimately represented appellant at trial. Accordingly, the doctrine of waiver will not be applied to this issue.

Despite our rejection of the Government’s waiver contentions and our consideration of the assignment on its merits, we find no prejudicial error with respect to the asserted meeting. See United States v. Reynolds, 24 M.J. 261 (C.M.A.1987) where the Court, while stating that “the appointed Article 32 officer must be impartial and, as a quasi-judicial officer, is held to similar standards set for a military judge,” went on to say that “[t]here is no absolute bar to all contact between an Article 32 officer and all members of a staff judge advocate’s office.” Id. at 263. Here, we believe that the pretrial investigating officer’s report and the affidavits submitted by appellate counsel adequately establish that the Article 32 officer did not violate the requisite standards. Accordingly, no violation of standards having been shown, the presumption of prejudice proclaimed in United States v. Payne, supra, has not been generated.

The investigating officer in the instant case has stated in her affidavit that the purpose of the meeting with the Commanding Officer, trial counsel and accuser was to correct errors in the charges and specifications in fulfillment of her duty to ensure that they alleged offenses under the proper Uniform Code of Military Justice article and to report any defects in the charges and specifications to the officer who convened the investigation. She states that she was well aware of the rules prohibiting an investigating officer from receiving advice on anything but trivial matters from anyone in a prosecutorial capacity or getting advice on a substantive matter from anyone without the defense counsel present, or at least aware of the advice. She says she did not violate these rules at anytime, that the trial counsel accompanied her in order to introduce her to the convening authority, whom she had not yet met, and that she received no advice from the trial counsel at the meeting. In any event, the meeting resulted in deletion of specifications from the charge sheet, not the addition of any offenses. Appellant did not assert at trial nor, as indicated previously, does he contend before this Court that the investigating officer was other than neutral, detached and independent in conducting the investigation. Moreover, we do not detect any unfair treatment or denial of rights at the investigative stage of this case. In short, we do not see how the investigating officer’s ex-parte meeting with the commanding officer, trial counsel and accuser infected the investigation or subsequent trial to the accused’s detriment. Accordingly, we find no merit in this asserted error.

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Related

United States v. Littlewood
53 M.J. 349 (Court of Appeals for the Armed Forces, 2000)
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37 M.J. 670 (U S Coast Guard Court of Military Review, 1993)
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Bluebook (online)
25 M.J. 614, 1987 CMR LEXIS 716, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-francis-cgcomilrev-1987.