United States v. Rivers

49 M.J. 434, 1998 CAAF LEXIS 1785, 1998 WL 985865
CourtCourt of Appeals for the Armed Forces
DecidedOctober 1, 1998
DocketNo. 97-0583; Crim.App. No. 9401059
StatusPublished
Cited by52 cases

This text of 49 M.J. 434 (United States v. Rivers) 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. Rivers, 49 M.J. 434, 1998 CAAF LEXIS 1785, 1998 WL 985865 (Ark. 1998).

Opinion

Opinion of the Court

GIERKE, Judge:

A military judge sitting as a general court-martial 1 convicted appellant, contrary to his pleas, of two specifications of distributing [436]*436cocaine, in violation of Article 112a, Uniform Code of Military Justice, 10 USC § 912a. The adjudged and approved sentence provides for a bad-conduct discharge, confinement for 18 months, forfeiture of $300.00 pay per month for 6 months,- and reduction to the lowest enlisted grade. The Court of Criminal Appeals affirmed the findings and sentence. 44 MJ 839 (1996).

This Court granted review of the following issues:

I
WHETHER APPELLANT WAS DENIED ADEQUATE APPELLATE REVIEW BECAUSE THE MILITARY JUDGE ORDERED PART OF THE RECORD OF TRIAL SEALED AND THE ARMY COURT OF CRIMINAL APPEALS REFUSED TO ALLOW APPELLATE COUNSEL ACCESS TO THE SEALED PORTION OF THE RECORD.
II
WHETHER APPELLANT WAS DENIED HIS FUNDAMENTAL RIGHT OF MILITARY DUE PROCESS WHERE APPELLATE COUNSEL WAS PREVENTED FROM REVIEWING THE ENTIRE RECORD OF TRIAL, SPECIFICALLY, APPELLATE DEFENSE COUNSEL WAS NOT ALLOWED TO REVIEW PROSECUTION EXHIBIT 1 WHICH WAS RULED INADMISSIBLE BY THE MILITARY JUDGE.
III
WHETHER THE ATMOSPHERE OF UNLAWFUL COMMAND INFLUENCE AT THE DIVISION AND BATTERY LEVELS POLLUTED THE PROCEEDINGS AND WAS TO THE SUBSTANTIAL PREJUDICE OF APPELLANT.
IV
WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION TO THE SUBSTANTIAL PREJUDICE OF APPELLANT BY NOT RECUSING HIMSELF OR GRANTING A MISTRIAL WHERE HE HAD PRESIDED OVER THE TRIAL OF THE CO-ACCUSED AND WHERE THE PROSECUTOR INFORMED THE MILITARY JUDGE, PRIOR TO FINDINGS, THAT APPELLANT HAD PREVIOUSLY SUBMITTED AN OFFER TO PLEAD GUILTY.
V
WHETHER THE MILITARY JUDGE SHOULD NOT HAVE DENIED THE ■DEFENSE MOTION FOR EMPLOYMENT OF AN EXPERT WITNESS ON THE SUBJECT OF IDENTIFICATION.

We affirm, for the reasons set out below.

ISSUES I & II: ACCESS TO SEALED DOCUMENTS

Facts

A key government witness, EW, was an informant for the Criminal Investigation Command (CID). At trial the defense requested access to three sworn statements by EW and three entries on the investigating agent’s “activity summary.” The Government asserted that the requested information was irrelevant and asserted a privilege under Mil.R.Evid. 506, Manual for Courts-Martial, United States, 1984, arguing that disclosure of the information would endanger EW, the informant. Defense counsel argued that the evidence should be disclosed because it might reveal prior inconsistent statements, “things that bear very definitely on [EW’s] credibility” in other drug transactions, and a possible entrapment defense based on EW’s modus operandi in other cases.

After examining the evidence in camera and hearing the arguments of both sides, the military judge denied the defense request for disclosure. He ruled that EW’s three sworn statements and the CID’s investigative notes were not relevant. He found that the evidence described EWs “informant activities involving matters totally unconnected to the pending trial.” He further found that the evidence did not contradict any information already disclosed to the defense or provide [437]*437any impeachment evidence that was not already available.

Defense counsel then requested permission to question EW under oath in open court, arguing that EW had been evasive and untruthful at the Article 32, UCMJ, 10 USC § 832, investigation and in pretrial interviews. Defense counsel already knew about EWs involvement in drug transactions with persons named Jones, McKenzie, Hopkins, Marshall, and “CJ,” but wanted to ask him about other transactions and his relationship with an automobile glass tinting business.

The military judge called EW as a witness for the court. During this testimony, EW revealed a name contained in the sealed documents that the military judge earlier had ruled to be protected under MiLR.Evid. 506. The military judge lifted his protective order with respect to that name, but still opined that the information was irrelevant. The military judge ordered the Government to disclose two of EWs three sworn statements (one statement with two names redacted), and to disclose one entry on the CID agent activity reports.

The Court of Criminal Appeals examined the sealed documents in camera and held that they “revealed nothing relevant or material to the defense.” 44 MJ at 841. The court also rejected appellant’s claim that refusal to disclose the sealed documents to appellate defense counsel deprived appellant of “adequate appellate review.” Id. at 840, 841.

Discussion

Before this Court, appellant contends that the lower court’s refusal to unseal the documents prevents appellant from obtaining meaningful review of the military judge’s decision to seal the documents. See United States v. Branoff, 38 MJ 98 (CMA 1993). The Government asserts that the military judge and the Court of Criminal Appeals followed the correct procedure by examining the documents in camera and that the court below correctly concluded that the sealed documents were irrelevant to appellant’s case.

Mil.R.Evid. 506(a) provides a privilege from disclosure of government information “if disclosure would be detrimental to the public interest.” Mil.R.Evid. 506(i) provides for an in camera proceeding to determine if information should be disclosed when the Government asserts a privilege under this rule. RCM 701(g)(2), Manual, supra, authorizes a military judge to examine evidence in camera, issue protective orders if necessary, and order evidence “sealed and . attached to the record ... as an appellate exhibit,” to be reviewed by appellate authorities “in closed proceedings.” RCM 701(g)(2) is based on Fed.R.Crim.P. 16(d)(1). Drafters’ Analysis of RCM 701(g)(2), Manual, supra at A21-33. In United States v. Romano, 46 MJ 269, 275 (1997), this Court directed the Court of Criminal Appeals to examine documents in camera to determine if they were privileged from disclosure to appellate defense counsel.

A military judge’s ruling denying disclosure of documents to the defense on grounds of privilege is reviewed for abuse of discretion. See Romano, 46 MJ at 274; Branoff, 38 MJ at 104; United States v. Garcia, 625 F.2d 162, 166 (7th Cir.1980); see also 2 W. LaFave & J. Israel, Criminal Procedure § 19.3(i) at 501 (1984) (trial judge has “broad discretion”).

This Court recognizes that independent appellate review is not the equivalent of the assistance of counsel. See United States v. Ortiz, 24 MJ 323, 325 (CMA 1987). Likewise, the Supreme Court has recognized that “the eye of an advocate may be helpful to a defendant in ferreting out information.” Pennsylvania v. Ritchie, 480 U.S. 39, 59, 107 S.Ct.

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Cite This Page — Counsel Stack

Bluebook (online)
49 M.J. 434, 1998 CAAF LEXIS 1785, 1998 WL 985865, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-rivers-armfor-1998.