United States v. Hines

1 M.J. 623, 1975 CMR LEXIS 730
CourtU.S. Army Court of Military Review
DecidedSeptember 15, 1975
DocketCM 432630
StatusPublished
Cited by1 cases

This text of 1 M.J. 623 (United States v. Hines) is published on Counsel Stack Legal Research, covering U.S. Army 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. Hines, 1 M.J. 623, 1975 CMR LEXIS 730 (usarmymilrev 1975).

Opinion

OPINION OF THE COURT

FELDER, Judge:

Tried by general court-martial convened by the Commanding General, U. S. Army Training Center Engineer and Fort Leonard Wood, Fort Leonard Wood, Missouri, the accused was convicted of selling heroin in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934, and sentenced to a dishonorable discharge, forfeiture of all pay and allowances, confinement at hard labor for thirty months, and reduction to the grade of Private E-l. The convening authority approved the findings of guilty and the sentence.

[625]*625During the trial, one of the witnesses against the accused was Private Timothy D. Jennings, who purchased heroin from the accused. Private Jennings testified that while he (Jennings) was pending trial by special court-martial for possession of marijuana, his company commander suggested he contact Special Agent William G. Conway of the US Army Criminal Investigation Command, who could probably help him; that Agent Conway agreed to testify favorably for Private Jennings and help him get a reduced sentence in exchange for his cooperation in making controlled purchases of drugs on post. Private Jennings further testified that because he was an informant he probably would not have to serve confinement. The record is silent, however, as to any person with whom he had an arrangement other than Agent Conway.

After Private Jennings made several purchases, including one from the accused, his defense counsel attempted to convince the special court-martial convening authority to dismiss the charges against him. He refused to do so and, according to Private Jennings, threatened to give him the maximum punishment if he did not continue working as an informant. Subsequently, Private Jennings was tried and convicted. Although his sentence is .not reflected in the case sub judice, he did not serve any time in confinement.

Thus, we are confronted with the issue of whether the staff judge advocate is qualified to review, and the convening authority to act upon a court-martial in which a witness testified he was assured of clemency in return for his cooperation with a criminal investigator and was threatened with the maximum punishment, if he refused to do so.

A convening authority may not involve himself in granting clemency to a government witness and thereafter review or act upon the case. United States v. Sierra-Albino, 23 U.S.C.M.A. 63, 48 C.M.R. 534 (1974); United States v. Williams, 21 U.S.C.M.A. 292, 45 C.M.R. 66 (1972); United States v. Maxfield, 20 U.S.C.M.A. 496, 43 C.M.R. 336 (1971); United States v. White, 10 U.S.C.M.A. 63, 27 C.M.R. 137 (1958). The reason for the disqualification is that such action by a convening authority renders his impartiality suspect with reference to weighing the testimony of the witness to whom he granted clemency. United States v. White, supra. This principle was extended to cases in which the convening authority knew that his subordinate commander had taken such action, believing the relationship between the two commanders was such as likewise to preclude the sort of impartial review that the Code requires. United States v. Dickerson, 22 U.S.C.M.A. 489, 47 C.M.R. 790 (1973). Similarly, a staff judge advocate is disqualified from preparing a review, when he was involved in recommending to the convening authority clemency for a witness who testified against an accused. United States v. Diaz, 22 U.S.C.M.A. 52, 46 C.M.R. 52 (1972).

In all of the cases cited above, it may be assumed that the convening authority and staff judge advocate were disqualified because they were directly or indirectly involved in the granting of clemency to a government witness. There is absolutely no evidence in this case to connect either of them with a pretrial arrangement with Private Jennings. The assertion on appeal that Private Jennings was guaranteed a lenient sentence by either the convening authority or one of his subordinates is speculative and not supported by the evidence. The fact that the special court-martial convening authority threatened Private Jennings with the maximum punishment if he did not cooperate with the criminal investigator, negates the notion that he was inclined to extend clemency to him. Because we do not know the sentence adjudged in Private Jennings’ case, we cannot conclude that confinement was either disapproved or suspended.

Another distinguishing feature in this case is that the agreement with Private Jennings was limited to his making controlled purchases of drugs. It did not compel him to testify at criminal proceedings. A staff judge advocate and convening authority are disqualified from participation [626]*626in the initial review of a court-martial when they or their subordinates have placed their imprimatur on the credibility of an essential witness. United States v. Sierra-Albino, supra, at 536. In this case the staff judge advocate advised the convening authority in the post-trial review that “Private Jennings had strong motives for lying.” This clearly indicates that little weight and value was ascribed to the reliability of his testimony.

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Related

United States v. Christopher
9 M.J. 911 (U.S. Army Court of Military Review, 1980)

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Bluebook (online)
1 M.J. 623, 1975 CMR LEXIS 730, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-hines-usarmymilrev-1975.