United States v. Williams

9 M.J. 831, 1980 CMR LEXIS 562
CourtU.S. Army Court of Military Review
DecidedJune 30, 1980
DocketSPCM 14357
StatusPublished
Cited by1 cases

This text of 9 M.J. 831 (United States v. Williams) 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. Williams, 9 M.J. 831, 1980 CMR LEXIS 562 (usarmymilrev 1980).

Opinion

OPINION OF THE COURT

O’DONNELL, Judge:

The appellant stands convicted of perjury and a one-week unauthorized absence in violation of Articles 131 and 86, Uniform Code of Military Justice, 10 U.S.C. §§ 931 and 886. His sentence to bad-conduct discharge, confinement at hard labor for five months, and forfeiture of $279.00 pay per month for five months was approved by the convening authority.1

The appellant was acting as a confidential informant for the military criminal investigators in Augsburg, Federal Republic of Germany. In this capacity, he purchased heroin on three occasions from Specialist Five Gary Johnson, a fellow soldier. On 4 May 1979, he was scheduled to testify at an Article 32 investigation which was convened to investigate charges against a soldier named Silas. At that time, the appellant informed Captain John P. Ley, Judge Advocate General’s Corps, the government representative at the investigation, that he was reluctant to testify. Captain Ley discussed the matter with the appellant who agreed to testify and in fact did testify at the Silas investigation.

On 11 May 1979, the appellant was scheduled to testify at the Johnson Article 32 investigation. When Captain Ley, again the government representative, met with the appellant before the investigation convened, the appellant informed him that he would not testify. Captain Ley discussed the matter with the appellant for approximately 45 minutes, informing him that he would have to testify and testify truthfully. The appellant again indicated that he would not testify. The criminal investigator in charge of the case, Special Agent Savage, and another informant then talked to the appellant concerning his testimony. After-wards, Captain Ley again talked to him and told him that it was up to him whether he would testify. At that time Captain Ley did not know if the appellant would testify.

Thereafter, the formal investigation was convened, and the appellant was called as a witness. After being sworn, he was questioned by the investigating officer concerning the incidents in question. The appellant did not refuse to testify. Rather, he answered most questions by stating that he could not remember. Captain Ley also questioned the appellant. This consisted essentially of referring to two pretrial statements the appellant had made to the criminal investigators wherein he related his activities as a government operative in connection with the purchase of heroin from Johnson. The appellant testified that he did not recall making these statements. Special Agent Savage testified how the appellant, acting as an undercover operative, had purchased heroin from Johnson. He identified the two statements that the appellant had made outlining the purchases.

The appellant’s testimony at the Article 32 investigation that he could not remember certain material facts formed the basis [833]*833for the perjury charge of which he stands convicted. The appellant before us, for the first time, contends that he was prejudiced by being questioned at the Article 32 investigation after he had indicated his intent to refuse to testify. Neither Captain Ley nor the investigating officer advised the appellant of his rights under the Fifth Amendment or Article 31 of the Uniform Code of Military Justice, 10 U.S.C. § 831.2

The appellant’s position is that he should have been warned of his rights under Article 31(b) by Captain Ley and Special Agent Savage when he informed them of his intent to refuse to testify. He contends also that he should have been so warned after he began to testify because it was apparent that he was lying. We disagree as to each contention.

As to the first point, the appellant was not an accused or a suspect when he talked to Captain Ley and Special Agent Savage before the investigation. Therefore, he did not come within the provisions of Article 31(b). True, he had stated his intent to refuse to testify, but this related to possible future activity and did not make him a suspect within the meaning of Article 31.

Included in the appellant’s second contention is the question whether a witness before an Article 32 investigation has to be advised of his rights under Article 31. The Supreme Court has split on whether Miranda3 or Fifth Amendment advice need be given to a witness before a grand jury. See United States v. Mandujano, 425 U.S. 564, 96 S.Ct. 1768, 48 L.Ed.2d 212 (1976); United States v. Wong, 431 U.S. 174, 97 S.Ct. 1823, 52 L.Ed.2d 231 (1977).4 The Court is in agreement, however, that whether or not required in general, the failure to give the warnings to a grand jury witness will not protect him from a perjury prosecution for lying at the grand jury proceedings. United States v. Mandujano; United States v. Wong, both supra. The rationale for these cases is that while the Fifth Amendment “grants a privilege to remain silent without risking contempt, . it does not ‘endow the person who testifies with a license to commit perjury.’ Glickstein v. United States, 222 U.S. 139, 142, 32 S.Ct. 71, 56 L.Ed.2d 128 (1911).”5

These principles, while certainly relevant, are not necessarily dispositive as we must determine whether Article 31 compels a different result. The Court of Military Appeals has stated on many occasions that Article 31 is broader in application than the Fifth Amendment. For example, even though handwriting exemplars are outside the protection of the Fifth Amendment (Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967)), the Court of Military Appeals has held that they are within the broader reach of Article 31 (United States v. White, 17 U.S.C.M.A. 211, 38 C.M.R. 9 (1967)).

The Air Force Court of Military Review considered the question of advising a witness before an Article 32 investigation in United States v. Pruitt, 48 C.M.R. 495 (A.F.C.M.R.1974). In that case, the accused was [834]*834charged with having committed perjury during an Article 32 investigation. Although he was only a witness, he was suspected by the investigating officer of being involved in the criminal activities under investigation. The investigating officer did not warn him in accordance with Article 31. The Court held that Article 31(b) applies to witnesses at Article 32 investigations “under circumstances otherwise requiring that warnings be given.” Id., at 497. The Court concluded that as Pruitt was a suspect he should have been warned of his Article 31(b) rights before being questioned and reversed the conviction because it was based on his inadmissible testimony.

We agree that because of the scope of Article 31, a witness before an Article 32 investigation who is suspected of an offense must be advised by the investigating officer of his Article 31 rights even though there may be no constitutional requirement to do so.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Poole
15 M.J. 883 (U.S. Army Court of Military Review, 1983)

Cite This Page — Counsel Stack

Bluebook (online)
9 M.J. 831, 1980 CMR LEXIS 562, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-williams-usarmymilrev-1980.