United States v. Reeves

61 M.J. 108, 2005 CAAF LEXIS 558, 2005 WL 1175285
CourtCourt of Appeals for the Armed Forces
DecidedMay 17, 2005
Docket04-0145/AF
StatusPublished
Cited by7 cases

This text of 61 M.J. 108 (United States v. Reeves) is published on Counsel Stack Legal Research, covering Court of Appeals for the Armed Forces primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Reeves, 61 M.J. 108, 2005 CAAF LEXIS 558, 2005 WL 1175285 (Ark. 2005).

Opinions

[109]*109Judge BAKER

delivered the opinion of the Court.

Appellant was tried before a general court-martial composed of officer and enlisted members. In accordance with her pleas, she was convicted of disobeying a general regulation (three specifications) in violation of Article 92, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 892 (2000). Appellant contested the remaining allegations but was ultimately convicted of two additional orders violations and obstruction of justice in violation of Articles 92 and 134, UCMJ, 10 U.S.C. §§ 892, 934 (2000), respectively. The adjudged sentence included a dishonorable discharge, confinement for six years, forfeiture of all pay and allowances, and reduction to grade E-l. The convening authority approved the sentence as adjudged except for the term of confinement, which was reduced to three years.

The specified issue before the Court requires us to resolve whether as a matter of law, and under the circumstances of this case, an accused may be convicted of obstruction of justice by telling another not to speak to investigators and to seek counsel. The granted issue questions whether, in any event, the evidence is legally sufficient to sustain a conviction for obstruction of justice.1 We answer the specified question in the affirmative and further hold that on this record, the evidence is legally sufficient.

FACTS

Appellant was a technical school instructor at Lackland Air Force Base (AFB).2 In June and July of 2000, she engaged in consensual sexual activity with four trainees in violation of applicable lawful general regulations. One of these trainees was Airman Basic (AB) F. AB F completed technical school training in July 2000 and then reported to her first duty station at Minot AFB. On August 15, 2000, Appellant was notified that the Office of Special Investigations (OSI) had identified her as a target of an investigation into unprofessional relationships at the Lackland technical school. Also on August 15, 2000, OSI investigators conducted their first interview with AB F. Appellant subsequently contacted AB F by telephone inquiring whether AB F had talked to OSI and telling her “not to talk to OSI, not to tell them anything.” Appellant also told AB F that she needed to contact the area defense counsel. AB F replied that she had spoken with OSI, but that she “hadn’t told them anything.” Thereafter, AB F testified that Appellant called her “[pjretty frequently” at home and “a few times at work.” According to AB F, the substance of these phone calls was similar to the first August call, again advising AB F not to talk to OSI and inquiring whether she had gone to see the area defense counsel.

During one of these conversations, AB F mentioned that she was experiencing finan[110]*110cial difficulty. Shortly thereafter, the Appellant deposited $200 in AB F’s bank account. Although AB F considered this deposit a gift, a few weeks later Appellant asked that AB F return the money. After initially saying that she would do so, AB F finally informed Appellant that she would not make repayment and directed Appellant not to contact her further.

OBSTRUCTION AS A MATTER OF LAW

We begin with consideration of the specified question, whether as a matter of law, Appellant may be convicted of obstruction of justice under the circumstances of this case. The elements of obstruction of justice are:

(1) That the accused wrongfully did a certain act;
(2) That the accused did so in the case of a certain person against whom the accused had reason to believe there were or would be criminal proceedings pending;
(3) That the act was done with the intent to influence, impede, or otherwise obstruct the due administration of justice; and
(4) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.

Manual for Courts-Martial, United States (2002 ed.), pt. IV, para. 96.b.

The crux of Appellant’s argument is that an accused who advises a witness to invoke her constitutional privilege against self-incrimination or to exercise her right to seek counsel by definition is not engaged in a wrongful act, therefore failing to satisfy the first element of the offense, and thus cannot be convicted of obstruction.

The constitutional privilege against self-incrimination and the right to counsel are rights bestowed every witness. Cole v. United States, 329 F.2d 437, 439-40 (9th Cir.1964), cert. denied, 377 U.S. 954, 84 S.Ct. 1630, 12 L.Ed.2d 497 (1964). Thus, we generally agree with Appellant’s assertion that the administration of justice is not criminally obstructed by a witness exercising these rights. It is Appellant’s conduct as an advis- or and not that of a putative witness that is at issue in this case, however. Without more, a person’s advice to another to invoke certain rights, where the advice given is honest and uncorrupt, should not as a matter of law sustain a conviction. However, that does not mean, as a matter of law, that reference to advice as “constitutional,” precludes consideration as to whether that advice was indeed constitutional in nature, uncorrupt, and thus protected conduct for the purposes of obstruction under Article 134.

Whether an accused’s conduct was wrongful will turn on contextual factors presenting questions of fact for the members, including, among other things, the actor’s tone and manner of delivery. As the court in Cole stated, “[i]t is the witness’ privilege which our inspired Constitution protects and which any person in our courts may invoke ... not someone else’s privilege to capture by force or threat or bribe.” Id. at 440. In those instances where the advice given is honest, uncorrupt, and disinterested, we agree that giving such advice is not wrongful. Id. But one who advises, with a corrupt motive, that a witness exercise a constitutional right or privilege may obstruct the administration of justice. Id. at 443. “The lawful behavior of the person invoking the [right] cannot be used to protect the criminal behavior of the inducer.” United States v. Cioffi, 493 F.2d 1111, 1119 (2d Cir.1974). This is the analytic approach taken by a majority of the federal circuits. See, e.g., United States v. Peterson, 385 F.3d 127, 142 (2d Cir.2004); United States v. Cintolo, 818 F.2d 980, 992-93 (1st Cir.1987); United States v. McComb, 744 F.2d 555, 563 (7th Cir.1984); United States v. Baker, 611 F.2d 964, 967-68 (4th Cir.1979). But see United States v. Farrell,

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Cite This Page — Counsel Stack

Bluebook (online)
61 M.J. 108, 2005 CAAF LEXIS 558, 2005 WL 1175285, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-reeves-armfor-2005.