United States v. Leiffer

10 M.J. 639, 1980 CMR LEXIS 553
CourtU.S. Navy-Marine Corps Court of Military Review
DecidedJune 30, 1980
DocketNCM 79 0407
StatusPublished
Cited by3 cases

This text of 10 M.J. 639 (United States v. Leiffer) is published on Counsel Stack Legal Research, covering U.S. Navy-Marine Corps 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. Leiffer, 10 M.J. 639, 1980 CMR LEXIS 553 (usnmcmilrev 1980).

Opinion

DONOVAN, Judge:

Appellant was tried on a rehearing by a general court-martial consisting of officer members on 30 June, 5 through 7 and 10 through 14 July 1978. Contrary to pleas, appellant was found guilty of one specification of attempted robbery, two specifications of robbery, one specification of sodomy, two specifications of assault, and one specification of wrongful appropriation in violation of Articles 80, 122, 125 and 121, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 880, 922, 925, 921. The sentence awarded was a bad-conduct discharge, confinement at hard labor for 12 months, and forfeiture of all pay and allowances. On 18 July 1978, the sentence to confinement at hard labor was deferred but the deferment was rescinded pursuant to appellant’s request on 28 November 1978. On 26 February 1979, the officer exercising general court-martial jurisdiction approved the sentence as adjudged and later ordered that forfeitures in excess of two-thirds pay per month would not be applied during the remainder of the period for which forfeitures were adjudged.

Appellant has assigned the following as error:

THE MILITARY JUDGE IMPROPERLY FAILED TO SUPPRESS THE TESTIMONY OF [CO-ACTOR L] AS FRUIT OF THE POISONOUS TREE DESPITE HIS FACTUAL DETERMINATION THAT L’s IDENTITY WAS DISCOVERED AS A RESULT OF INFORMATION ILLEGALLY OBTAINED BY THE GOVERNMENT.

Inasmuch as we find this assignment meritorious, we omit discussion of the four remaining assigned errors.

Appellant robbed Seaman Recruit G on board Naval Training Center (NTC), San Diego, California, near midnight on 16 August 1977. In this, and all other offenses of which he was found guilty, he was accompanied by another sailor, his co-actor, L. Victim G, angry and dismayed, followed his assailants and asked why they robbed him. Without comment, appellant stepped over to him and broke his jaw with a single punch.

Within the hour, appellant attempted to rob Seaman Recruit F, who managed to run away. Some half-hour later, appellant disarmed Seaman Recruit B, a roving patrol, of his duty nightstick by threatening possession of a gun, seized B and while holding him in fear, entered an NTC barracks and robbed Seaman Recruit E. Appellant and L fled unapprehended.

One week later, again at NTC, appellant and L departed the enlisted club at closing time having drunk beer and heard a band perform. They seized from Seaman Recruit [641]*641W, who had sat at their table and departed with them, most of his clothing and his wallet, all of which were deposited some distance away; he was told where he could find them. A conviction of wrongful appropriation, vice larceny, was properly charged and found. While undressed, victim W was forced by stranglehold to perform fellatio on appellant and, at appellant’s command, on L. Again they escaped unapprehended.

The victims reported the offenses and the Naval Investigative Service (NIS) composed a wanted notice depicting appellant, described at trial as the leader of the two, via “Identakit” as a bearded, stocky, pot-bellied, 5'9" male who had worn a yellow T-shirt with a logo entitled “Led Zeppelin Concert”; the T-shirt was similar to one described by one 17 August victim as worn by the suspect. NIS agents “field-interrogated” various young men in the NTC vicinity the night of 23 August and, up until the night of 30 August, one NIS agent had interviewed 9 out of a total of 16 bearded males initially spotted as possible suspects. Among those “field-interrogated” on 23 August were appellant and L, who gave their names and the name of their ship to the NIS agent who recorded the information as he had during the course of similar inquiries of other sailors found at a bus stop after the assault on victim W.

Four NIS agents were maintaining surveillance for suspects in these offenses,1 as the enlisted club was closing at 2300 on 30 August. Appellant was spotted and remarked upon as bearded; one NIS agent commented to his partner, however, that appellant looked too tall. For lack of any other suspects as the club crowd dispersed, appellant was approached. Since appellant was then found to be wearing a yellow T-shirt with the “Led Zeppelin Concert” logo embossed on it, the main, or action, NIS agent for these offenses was called over to join the agents who had accosted appellant; that agent testified as follows:

[A]nd I looked at it and it read, “Led Zeppelin in Concert.” At that point, I asked Mr. Leiffer if he would accompany me back to the office, which I told him was only a couple of blocks away, so I could conduct a further interview. I didn’t have any paper with me and I didn’t really want to conduct an interview in the street with everyone else there, so we____
Q. How did he respond to that?
A. He was reluctant to go back with me at first....

(R.139). The NIS agent testified that he did not, on the street, consider appellant a suspect because his hair was parted differently and he was taller than the suspect whom the victims described; that no conversation occurred during the ride to the NIS office; and, that appellant provided his full identification, date and place of birth and his duty station to the NIS in their interview room. Appellant was asked when he was last on board NTC; he replied that it was the last time that the band “Mad Dog” had played at the club, adding that the band was his favorite and, knowing some members, he always sat near the band. The agent further testified that he only then became suspicious, remembering that victim W had met his assailants next to the bandstand and that “Mad Dog” last played at NTC on 23 August, the date W was assaulted. The agent testified that he exited the interview room to obtain an “acknowledgement and waiver of rights form, and to come back in and give Mr. Leiffer his Article 31 Rights.” (R.141). While out of the room, he encountered another agent to whom he stated who and what he was on to, whereupon this second agent connected Leiffer’s name as one of two men he himself had “field-interviewed” at a bus stop the night W was victimized. Finding his old note, this agent provided the questioning agent with Leiffer’s name, L’s name and their common ship.

[642]*642A search of appellant’s shipboard belongings was thereafter authorized by the commanding officer’s representative and items, similar to those described by victims, were seized. Appellant, having earlier denied any culpability, was escorted to the ship and was present during the search. L was eventually found and questioned by NIS; he initially denied any guilt. Later that morning, however, under further questioning, L made full inculpatory statements which also incriminated appellant. Appellant continued to deny guilt and asked to see L. After L told appellant he had confessed, appellant also confessed.

The action NIS agent assigned to night surveillance duty with an official automobile (in which appellant was placed for the trip to the NIS office) testified he had no “paper”. We believe him, as he was under oath, but in evaluating his testimony, the benefit given to his credibility prompts criticism of the procedures which were used.

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Related

United States v. Tallon
28 M.J. 635 (U S Air Force Court of Military Review, 1989)
United States v. Leiffer
13 M.J. 337 (United States Court of Military Appeals, 1982)
United States v. Summers
11 M.J. 585 (U.S. Navy-Marine Corps Court of Military Review, 1981)

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Bluebook (online)
10 M.J. 639, 1980 CMR LEXIS 553, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-leiffer-usnmcmilrev-1980.