United States v. Hatchell

33 M.J. 839, 1991 CMR LEXIS 1332, 1991 WL 225329

• Court: U.S. Army Court of Military Review
• Decided: October 25, 1991
• Docket: ACMR 9002714
• Status: Published

Opinions

OPINION OF THE COURT

De GIULIO, Senior Judge:

Appellant was tried by a military judge sitting as a general court-martial. Consistent with his pleas he was found guilty of use of marijuana and two specifications of distribution of marijuana in violation of Article 112a, Uniform Code of Military Justice, 10 U.S.C. § 912a (1982 & Supp. V 1987) [hereinafter UCMJ]. He was sentenced to a bad-conduct discharge, confinement at hard labor for thirty months, forfeiture of $580.00 pay per month for thirty months, and reduction to Private El. Pursuant to a pretrial agreement, the convening authority reduced the confinement to twelve months and one day but otherwise approved the sentence.

Before this Court, appellant alleges that the convening authority erred by approving forfeitures in excess of two-thirds pay per month for the period appellant is not confined. We agree and will take corrective action. See United States v. Warner, 25 M.J. 64 (C.M.A.1987); United States v. Hicks, 26 M.J. 935 (A.C.M.R.1988).¹

This court specified the following issues:

I.

WHETHER APPELLANT IS ENTITLED TO SENTENCE CREDIT FOR UNLAWFUL PRETRIAL PUNISHMENT RESULTING FROM THE MANNER OF HIS APPREHENSION? UNITED STATES V. CRUZ, 25 M.J. 326 (C.M.A.1987).

II.

WHETHER THE MILITARY JUDGE ERRED DURING THE PRE-SEN-TENCING PORTION OF APPELLANT’S TRIAL IN INQUIRING INTO APPELLANT’S POTENTIAL FOR FURTHER MILITARY SERVICE? SEE UNITED STATES V. OHRT, 28 M.J. 301 (C.M.A.1989).

We find error concerning each of the specified issues but find no prejudice to appellant.

I.

Appellant was identified by a soldier working for the Criminal Investigation Command (CID) as a user and distributor of hashish. After obtaining hashish in Frankfurt, Federal Republic of Germany, appellant returned to his barracks. In his barracks room on 1 August 1990, appellant sold three grams of hashish to a CID undercover agent. Appellant also smoked a hashish cigarette in the presence of the CID agent and handed the cigarette to his roommate who also smoked it.

Agent Esther Harwell, special agent in charge of the local CID office, decided to conduct a mass apprehension of several suspected drug users and distributors, many of whom were suspected of being involved in related cases. At the 0600 physical training formation on 6 August 1990, appellant and two other soldiers were told to fall out to the rear of the formation where CID agents and a military policeman were waiting to apprehend the soldiers. Appellant was taken to the side of the battery where he was frisked and placed in handirons. A stipulation of fact indicates appellant’s apprehension was in view of the soldiers who were in formation. Appellant was placed in a police car, taken to the police station and subsequently released. Appellant testified at trial that the apprehension subjected him to considerable ridicule among other soldiers of his unit. Appellant stated, “I was — had like a stigma put on me ... in my unit. Certain people who had spoken to me before would no longer speak to me and I was treated as though I was already a criminal____”

At trial, Special Agent Harwell testified that the mass apprehension was her idea. She stated that the CID had information that appellant and other soldiers were going to Amsterdam prior to 6 August to bring back controlled substances. She stated that it was necessary to apprehend them all as soon as possible and at the same time so the drugs would not be distributed, so they would not know the CID was involved, and so they would not cease their activities. She stated, however, that a substantial number of soldiers who were to be apprehended were absent because their unit was in Crete. She testified that it was common practice to make all apprehensions at the same time and that there was compliance with the standard operating procedure.²

In United States v. Cruz, 25 M.J. 326 (C.M.A.1987), a mass apprehension ³ before a unit formation was held to constitute public denunciation and military degradation prohibited by Article 13, 10 U.S.C. § 813. Several facts were present in Cruz which are not present in this case. In Cruz, the commander failed to return the soldiers’ salute when they reported to him in front of the formation. In addition, he called them “criminals and bastards.” The soldiers’ unit crests were removed from their uniforms. Like the case before us, the soldiers were taken to an adjacent site, searched and handcuffed, in view of the soldiers remaining in the formation.

An apprehension of soldiers from a formation need not involve the extraordinary aggravating circumstances which were present in Cruz in order to violate Article 13, UCMJ. A posting of a serious incident report of drug offenses at a soldier’s place of duty has been held to be a form of public denunciation and military degradation prohibited by Article 13. United States v. Villamil-Perez, 32 M.J. 341 (C.M.A.1991). Even when a nonpunitive governmental purpose is present, Article 13 may be violated. See Cruz, 25 M.J. at 331 n. 4.

Government counsel, citing United States v. James, 28 M.J. 214, 216 (C.M.A.1989), contends the complained-of conditions were rationally related to reasonable operating procedures and were not so excessive to rise to the level of punishment. We must examine the reasonableness of the conduct and the intent behind its use. See Cruz, 25 M.J. at 331 n. 4; United States v. James, 28 M.J. 214, 216 (C.M.A.1989), citing Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979).

In appellant’s case, the investigative purpose for the mass apprehension was not documented.⁴ Our concurring brother referred to Agent Harwell’s testimony on the need to stop the distribution of drugs some soldiers obtained from Amsterdam. The record contains no evidence of appellant’s involvement in such a distribution scheme, except for the agent’s statement. Indeed, appellant was never charged with any offense concerning such a scheme. The facts here do not demonstrate a legitimate purpose behind the public apprehension of appellant from the formation.

In addition, the testimony of Agent Harwell is inconsistent. On the one hand, she testified that the need was to apprehend suspected drug distributors at the same time. On the other hand, she testified that all the suspects could not be apprehended at the same time because their unit was in Crete. Further, our review of court-martial cases leads us to the conclusion that mass apprehensions from unit formations are not common practice, contrary to her testimony. These inconsistencies cause us to give less credence to her stated purpose for the necessity of the mass apprehension from the formation.

We find as a matter of fact from the evidence before us that at least part of the underlying purpose was public denunciation. See UCMJ art. 66(c), 10 U.S.C. § 866(c). Our view of the matter was best expressed by General Crosbie E. Saint, then Commanding General, 1st Armored Division, when he stated, “The use of mass apprehensions as a deterrent to others or to humiliate, ridicule or otherwise act contrary to the inherent dignity of the American soldier is forbidden.” Cruz, 25 M.J. at 331 n. 3. Simply put, we don’t treat soldiers that way. Under these circumstances, we find a violation of Article 13, UCMJ.

Not all violations of Article 13, UCMJ, require a drastic remedy. Villamil-Perez, 32 M.J. at 344. In accordance with a pretrial agreement, the convening authority substantially reduced the period of confinement. Consequently, considering the circumstances of this case, we conclude that appellant suffered no substantial prejudice as a result of his illegal pretrial punishment.

II.

During the pre-sentencing portion of this trial by military judge alone, a sergeant who worked with appellant on a daily basis testified that, “I think with proper help [appellant] can be rehabilitated.” The military judge asked the witness several questions, to include the following: “Do you think that he could be rehabilitated in the sense that he could make a useful, continuing contribution in the service?” The witness answered, “No sir.” Counsel objected to the question based upon United States v. Ohrt, 28 M.J. 301 (C.M.A.1989). The military judge asked to see the Ohrt case. Later in an Article 39(a), UCMJ, session he stated:

Counsel, I have read Ohrt. I understand the point that you’re making. I will not take the statement of the sergeant as indicating a comment that he should be discharged. I will only treat his comment as indicating that he doesn’t believe that he has any rehabilitative potential for further military service, whatever that may mean, because that’s the context in which I understood him to take it. Quite honestly, the way the questioning developed, a large part of it was developed by the defense by going into the question of rehabilitation. My specific question was to determine what he meant by rehabilitation. Okay? So, within the bounds of what you’re asking, I’m going to sustain your objection in the sense that I’m not going to treat that as a demand and I will not consider that the sergeant is indicating that in his opinion he should be discharged. But I’m taking it as an indication he has serious doubts as to whether or not he can be rehabilitated for further military service, whatever that means within the context of this case. Do you understand? I understand the point that you’re making. It is a fine distinction and I’m not sure how workable that is. I would note that there is a fairly significant decent [sic] in that case also. So that’s going to be my ruling. I think I’m capable of factoring in all the proper considerations that have to be applied here. Okay?”

In United States v. Horner, 22 M.J. 294, 296 (C.M.A.1986), the Court of Military Appeals adopted an expansive definition of rehabilitation potential consistent with a return to a particular status and a return to society in general. This view was adopted “because the sentencing function encompasses more than the question of whether an accused should be restored to duty.” Id. at 296. The Court of Military Appeals has strongly condemned euphemisms such as “no potential for continued service,” because they are designed to tell the court to sentence an accused to a punitive discharge. United States v. Ohrt, 28 M.J. 301 (C.M.A.1989). Thus, this Court has suggested:

Assuming a proper foundation has been established for the witness to give a “rationally based” opinion on the accused’s rehabilitative potential, the proper question to elicit that opinion is: “In your opinion, does the accused have rehabilitative potential?”; the proper response, dictated of course by the witness’ opinion is “yes” or “no.” Any reference by the witness to a discharge, separation from the service, or lack of potential for continued service should be scrupulously avoided. See Ohrt, 28 M.J. at 304-07.”

United States v. Stimpson, 29 M.J. 768, 770 n. 2 (A.C.M.R.1989).

In the case before us, although trial defense counsel attempted to follow Stimpson, the military judge solicited an improper answer by his question, “Do you think he could be rehabilitated in the sense that he could make a useful, continuing contribution in the service?” We see little difference between getting a “no” answer to this question and the euphemisms condemned in Ohrt. It was error for the military judge to ask the question.

This case was tried by a military judge alone. In sentencing an accused, a military judge is presumed to know what he can consider absent a showing to the contrary. United States v. Razor, 41 C.M.R. 708 (A.C.M.R.1970). Although the military judge’s comments may be a showing to the contrary, his later statement, after reading Ohrt, leads us to conclude that he did not consider the question and the response in arriving at the sentence. We find no prejudice to appellant. See Horner, 22 M.J. at 296; Stimpson, 29 M.J. at 770.

The findings of guilty are affirmed. Only so much of the sentence is affirmed as provides for a bad-conduct discharge, confinement for twelve months and one day, forfeitures for $480.00 pay per month for twelve months, and reduction to Private El.

Judge HAESSIG, concurs.

1 . We also note that the military judge sentenced appellant to, and the convening authority approved, "confinement at hard . labor.” The words "at hard labor” should be omitted in a sentence to confinement. Manual for Courts-Martial, United States, 1984, Rule for Courts-Martial 1003(b)(8) discussion.

2 . Criminal Investigation Command Regulation 195-1, Criminal Investigation: CID Operations, para. 3-2c (1 November 1986), provides:

Mass Apprehensions. Mass apprehensions have the potential for abuse and should be utilized only when a valid and legitimate investigative purpose can be documented (e.g. danger to informants, potential for collusion among subjects, probability of flight). If used, CID agents will not utilize techniques intended to subject those apprehended to public ridicule, and will encourage commanders to refrain from similar techniques. Specific techniques to be avoided include removal of unit insignia, public statements to the effect that those apprehended are criminals (as opposed to suspects/subjects), or use of force in excess of that needed to effect the apprehension. Prior coordination with the CID supervisor, the commander and trial counsel is strongly encouraged.

3 . The term "mass apprehension” is a misnomer. The conduct found offensive in Cruz was the apprehension of soldiers in formation and their public humiliation. The same analysis may apply even if only one soldier is apprehended or punished in that manner.

4 . Such documentation was required by the applicable CID regulation. See supra note 2. Because of the possibility of violations of Article 13 even when a government purpose is present, we suggest that the CID regulation be changed to require staff judge advocate coordination pri- or to mass apprehensions. Investigators, commanders, and staff judge advocates should be aware that this Court closely scrutinizes mass apprehensions for violations of Article 13.