United States v. Lee

25 M.J. 457, 1988 CMA LEXIS 1, 1988 WL 15161

• Court: United States Court of Military Appeals
• Decided: March 2, 1988
• Docket: No. 54,945; CM 445061
• Status: Published

Opinions

Opinion of the Court

SULLIVAN, Judge:

In August and September 1983, appellant was tried by a general court-martial composed of a military judge alone at Seoul, Korea. Contrary to his pleas, he was found guilty of violating paragraph 17a(l), United States Forces Korea (USFK) Regulation 27-5 (July 9, 1982), by transferring duty free goods to unauthorized persons,¹ and paragraph 176 by failing to show continued possession or lawful disposition of duty free goods or controlled items.² Art. 92, Uniform Code of Military Justice, 10 U.S.C § 892. He was sentenced to a bad-conduct discharge, confinement for 1 year, total forfeitures, and reduction to the lowest enlisted grade. The convening authority approved the sentence. The Court of Military Review affirmed the findings and all of the sentence except for the forfeitures.

This Court granted review of the following issue:

WHETHER PARAGRAPH 176 (2) AND (3) OF USFK REGULATION 27-5 WHICH REQUIRES AN ACCOUNTING OF CONTROLLED ITEMS UPON REQUEST, AND FOR VIOLATIONS OF WHICH APPELLANT WAS CONVICTED, ARE PROMULGATED CONTRARY TO CONGRESSIONAL INTENT EXPRESSED IN 10 U.S.C. § 831(a) AND ARE UNCONSTITUTIONAL PER SE IN VIOLATION OF THE FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION.

We hold that appellant’s conviction for failing to show his continued possession or lawful disposition of these goods or items cannot lawfully stand. See United States v. Lavine, 13 M.J. 150 (C.M.A. 1982); United States v. Seay, 1 M.J. 201, 203 (C.M.A. 1975) (lead opinion by Fletcher, C. J.). See generally W. Winthrop, Military Law and Precedents 575-76 (2d ed. 1920 Reprint).

At this court-martial Sergeant First Class James Hogans testified that he was a member of the Army Military Police Detachment-Korea and was the NCOIC of the Ration Control Enforcement Branch at the Provost Marshal’s Office, Eighth Army. He stated that he received “a computer printout ... on a monthly basis” of “anyone that has made ... four or more high dollar value purchases.” He then reviews the purchases made by that individual “for repetitive prices.” On the basis of this information and personnel data in the person’s records, he makes an initial determination whether “the purchases appear excessive for family or personal needs.” He then sends out a letter to that person’s commanding officer asking him to determine whether there has been an abuse of privileges. He conceded that such a “letter is not sent out unless” his office felt “that the person has possibly violated the regulations by over purchasing above the amount that is reasonably necessary for their own personal needs ...”

Captain Gregory Helbert testified that he had been the commander of appellant’s Military Police Company. He stated that on April 1,1983, he received a letter “from the ration control people” which alleged that appellant had purchased a rather large amount of items and an accompanying list of these items. He testified that he did not “suspect” appellant “of any crime at” that point because of the “lack of credibility in the ration control” branch and his high estimation of appellant. Moreover, he said that he did not see any need to advise appellant of his rights under Article 31, UCMJ, 10 U.S.C. § 831. Nevertheless, he summoned appellant, read him this letter, directed appellant to read this letter, and informed him that he should “show Lieutenant Krause the presence or whereabouts of these items. ” Captain Helbert indicated that he ordered this action because the Provost Marshal’s Office “felt that there was some abuse, and they asked” him to determine whether such abuse occurred. (Emphasis added.) He further conceded that he directed two military police investigators, Murdock and Black, to accompany Lieutenant Krause to observe and assist the inspection of appellant’s purchased goods.

Lieutenant David Krause testified that the company commander, Captain Helbert, gave him a list and told him to conduct “an administrative inspection.” He testified that he did not suspect appellant of violating service regulations. The record indicates that he gave no warning under Article 31. He also stated that the two military police investigators accompanied him on this inspection at appellant's house. Finally, he testified that appellant failed to account for half the items on the list.

Finally, Sergeant First Class Frank Bujakowski was called by the military judge to testify as a witness for the court. He was the Noncommissioned Officer in Charge of the Customs Enforcement Section of the Provost Marshal’s Office. He indicated that if a Military Police Investigator “conduces] a show and tell, the first thing we do is read the man his rights ...” He also testified that his office would have conducted an investigation if appellant’s company commander didn’t, and, accordingly, advised appellant of his rights. He first stated that if his office conducts the show and tell, it is an investigation but if it only assists the commander, it is not an investigation. He also testified that under the regulation, the commander can order an individual at any time to comply without any advisement of rights.

An initial question we must decide is whether appellant should be permitted to raise the granted issue for the first time on appeal. He did not particularly attack the lawfulness of this regulation at trial. See para. 171a, Manual for Courts-Martial, United States, 1969 (Revised edition). However, he did move that the charge of violating this regulation be dismissed because of a violation of his Article 31 rights. Moreover, he also moved that all his statements made at this so-called “show and tell” inspection be suppressed because he was a suspect and not properly advised of his Article 31 rights. Finally, the military judge expressly ruled at trial that appellant “was not a suspect” at the time of this inquiry. In this context, we hold that appellant did not waive his right to challenge the lawfulness of this regulation.

A second question we must decide is whether it is necessary to answer the granted issue in order to resolve appellant’s case. Appellate defense counsel broadly asserts that paragraph 176, USFK 27-5, on its face violates Article 31 and the Fifth Amendment. See generally United States v. Kauffman, 14 U.S.C.M.A. 283, 297-98, 34 C.M.R. 63, 77-78 (1963); United States v. Smith, 9 U.S.C.M.A. 240, 26 C.M.R. 20 (1958). The Government, relying on California v. Byers, 402 U.S. 424, 91 S.Ct. 1535, 29 L.Ed.2d 9 (1971), argues that this regulatory program can be lawfully sustained. Although this broad question is most interesting, this case can be resolved on the more narrow ground that this regulatory program as applied to appellant was unconstitutional. See Brockett v. Spokane Arcades, 472 U.S. 491, 105 S.Ct. 2794, 86 L.Ed.2d 394 (1985); Yick Wo v. Hopkins, 118 U.S. 356, 373-74, 6 S.Ct. 1064, 1072-73, 30 L.Ed. 220 (1886). Cf. Selective Service Systems v. Minnesota Public Interest Research Group, 468 U.S. 841, 104 S.Ct. 3348, 82 L.Ed.2d 632 (1984). See generally Sutherland Statutory Construction § 2.06 (Sands 4th ed. 1985 revision).

Our starting point in reaching this conclusion is the challenged regulation. Paragraph 176(2) and (3), USFK 27-5, states:

b. Personnel will:

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(2) Upon request of the unit commander, military law enforcement personnel, or responsible officer, present valid and bona fide information or documentation showing the continued possession or lawful disposition (by serial number if manufactured with one) of any controlled item as listed in USFK Reg 60-1, regardless of where or how acquired, brought into Korea duty-free.

(3) Upon request of the unit commander, military law enforcement personnel, or responsible officer, present valid and bona fide information or documentation showing the continued possession or lawful disposition of any item acquired in or brought into Korea duty-free that is not a controlled item and that costs more than $35.00.

Paragraph 1 of this same regulation provides: “Violations of this regulation may be prosecuted under Art. 92, Uniform Code of Military Justice (UCMJ) or other appropriate articles of the UCMJ and/or appropriate administrative action may be taken...” See also para. 35 and p, USFK 60-1 (1982); para. 36 and q, USFK 60-1 (1981). No mention is made in this regulation of Article 31 or the Fifth Amendment or of its application to persons who are already suspected by military authorities of committing a controlled or duty-free-item offense.

Paragraph 1 of USFK 27-5 subjects “all members of the United States Armed Forces on active duty with land, sea, or air armed service of the United States of America who are physically present within” ROK to the “show and tell” inspections of paragraph 176 (2) and (3). See para. 12 d. However, it does not require that all these persons actually undergo this procedure and instead imparts discretion to certain government officials to select those personnel who actually do. No criteria are delineated to guide these officials in their discretionary decision. We also note that the challenged regulation imparts this regulatory authority to “the unit commander, military law enforcement personnel, or responsible officer.”

In assessing the lawfulness of such a regulation, as applied to appellant, we note that such a regulation cannot be applied to appellant in derogation of his constitutional and statutory rights. See United States v. Seay, 1 M.J. at 203. See generally United States v. Hutchins, 4 M.J. 190, 192 (C.M.A.1978); United States v. Johnson, 1 M.J. 101, 105 (C.M.A.1975). More particularly, it is well established that if appellant was a suspect at the time of this inquiry, Article 31 precludes this regulation or orders purportedly based thereon from being used to compel him to incriminate himself. United States v. Dupree, 24 M.J. 319, 321 (C.M.A.1987); United States v. Reed, 24 M.J. 80 (C.M.A.1987); United States v. Lavine, 13 M.J. 150, 151 (C.M.A.1982); United States v. Seay, supra. Also, law enforcement personnel cannot use this regulatory program as a pretext for obtaining evidence of crimes in violation of appellant’s Fifth Amendment rights. See New York v. Burger, — U.S. —, 107 S.Ct. 2636, 2651 n. 27, 96 L.Ed.2d 601 (1987); Maine v. Moulton, 474 U.S. 159, 174-76, 106 S.Ct. 477, 486-87, 88 L.Ed.2d 481 (1985).

The record in this case makes it clear that authorized law enforcement personnel asked appellant’s commander to request appellant to account for certain items he purchased in Korea. The mere fact that police officers initiated or conducted these inquiries did not make appellant a suspect or the inquiry a search for criminal evidence. See New York v. Burger, supra 107 S.Ct. at 2651. However, here the military police focused on appellant because a computer printout showed he purchased four high-price items, after they pulled his purchase records and found repetitive purchases, and after they examined his personnel record and concluded a possible abuse of privileges had occurred. Moreover, their investigation showed that 87 items, including eight telephones, had been purchased which were valued at more than $12,000. Finally, their letter to appellant’s commander expressly stated that the purchase records would be held as evidence.

Clearly, appellant was a suspect for the military police at the time of this request, regardless of the euphemisms employed at trial to mollify this reality. See United States v. Duga, 10 M.J. 206, 210 (C.M.A.1981). Cf. United States v. Jones, 24 M.J. 367 (C.M.A.1987), H. Moyer, Justice and the Military § 2-248 (1972). Moreover, a second military police officer testified that if his office conducted the “show and tell” inquiry based on this letter, they would as a matter of practice advise such a person of his rights under Article 31. He also testified that he believed a commander could use this regulation to order appellant to respond without advising him of his rights. The military police’s employment of the commander to indirectly subvert appellant’s right against self-incrimination was unlawful. Maine v. Moulton, supra. See Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960).

The military judge found that appellant’s company commander did not consider appellant a suspect at that time and that he was simply conducting an inspection required by regulations. He also ruled that a reasonable man would not consider appellant a suspect simply on the basis of the letter from the Provost Marshal’s Office. In view of the language of the letter, the listing of the items, and the amount of money involved, such á conclusion is highly questionable. (See Appendices A and B.)³ In any event, it was plain error for the judge to fail to consider whether the military police exploited this commander to evade the requirements of Article 31 and the Fifth Amendment. Plainly they did.

The inquiry in the present case was truly grounded in compulsion. As noted above, appellant was required by this regulation to account, or face a court-martial and punishment extending to two years' confinement. He was in fact found guilty and punished for this offense. Cf. Selective Ser. Sys. v. Minn. Pub. Int. Research Group, 468 U.S. at 856-58, 104 S.Ct. at 3357-58. Furthermore, as a suspect of ration-control-regulation abuse, he faced a real and appreciable hazard of incrimination. Cf. United States v. Saussy, 802 F.2d 849, 855 (6th Cir.1986), cert. denied, — U.S. —, 107 S.Ct. 1352, 94 L.Ed.2d 522 (1987); United States v. Flores, 753 F.2d 1499, 1502 (9th Cir.1985); United States v. Dichne, 612 F.2d 632, 640 (2d Cir.1979), cert. denied, 445 U.S. 928, 100 S.Ct. 1314, 63 L.Ed.2d 760 (1980). In this regard, we note the Government has not responded to the defense’s assertion that appellant’s simple acknowledgment of purchasing items on this list was an offense. Para. 17a (8), (9), (11), (12), (14), USFK 27-5; see para. 35h, USFK 60-1 (1982) and para. 36h and i, USFK 60-1 (1981). Moreover, an admission of dispositions of these items to unauthorized persons would and did expose him to criminal liability as well. Para. 17a (1), USFK 27-5.

In summary, a legitimate administrative inquiry may not lawfully be exploited to subvert the constitutional or statutory rights of a person suspected of a crime. Maine v. Moulton, 474 U.S. at 176 n. 12, 106 S.Ct. at 487 n. 12. See Mil.R.Evid. 313(b), Manual, supra. We presume that the authorities who promulgated this unique regulation did not intend that it be employed as a means to force a suspect to incriminate himself. See United States v. Seay, supra. The fact remains, however, that the law enforcement personnel who administered this program knowingly applied it to such a person for this purpose. Cf. Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976); Couch v. United States, 409 U.S. 322, 93 S.Ct. 611, 34 L.Ed.2d 548 (1973). Such government action was unlawful. See generally Alley, The Overseas Commander’s Power to Regulate The Private Life, 37 Mil.L.Rev. 57, 61, 93 (1967), and cases cited therein.

The decision of the United States Army Court of Military Review is reversed. The findings of guilty and the sentence are set aside. The record of trial is returned to the Judge Advocate General of the Army. A rehearing may be ordered.⁴

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1 . Paragraph 17a (1) states:

17. RATION CONTROL AND PURCHASE PRIVILEGES, a. Personnel will not:

(1) Sell, transfer, donate, pledge, pawn, loan, bail, rent, or otherwise dispose of any duty-free goods to any person not authorized duty-free import privileges under the US-ROK SOFA or other US-ROK agreements. In a prosecution under this subparagraph, it is an affirmative defense that the defendant transferred the item in conformance with USFK Reg 643-1 and 643-2.

USFK Reg. 27-5 (July 9, 1982). See also para. 17a (1), USFK Reg. 27-5 (March 1, 1980), which is virtually identical.

2 . Paragraph 176 states:

b. Personnel will:

(1) Upon request of the unit commander, military law enforcement personnel, responsible officer, or store security personnel, present and/or surrender their or their dependents’ ration control plate, letter of authorization purchase record, or documents used in selling.

(2) Upon request of the unit commander, military law enforcement personnel, or responsible officer, present valid and bona fide information or documentation showing the continued possession or lawful disposition (by serial number if manufactured with one) of any controlled item as listed in USFK Reg 60-1, regardless of where or how acquired, brought into Korea duty-free.

(3) Upon request of the unit commander, military law enforcement personnel, or responsible officer, present valid and bona fide information or documentation showing the continued possession or lawful disposition of any item acquired in or brought into Korea duty-free that is not a controlled item and that costs more than $35.00.

(4) Give the anvilled [sic] purchase record to the cashier, military police, or other authorized person before exiting the USFK facility in which the purchase was made.

USFK Reg. 27-5 (1982). Paragraph 176, USFK Reg. 27-5 (March 1, 1980), is virtually identical, except for an additional phrase at the end of (3).

3 . Military judges must insure that all exhibits in the record are easily readable.

4 . The findings of guilty to the other charge were in part based on appellant’s disclosures without proper advice as to his rights under Article 31, Uniform Code of Military Justice, 10 U.S.C. § 831.