                        UNITED STATES, Appellant

                                         v.

      David W. SERIANNE, Chief Aviation Electrician’s Mate
                       U.S. Navy, Appellee

                                  No. 10-5001
                        Crim. App. No. 200900330

       United States Court of Appeals for the Armed Forces

                           Argued March 2, 2010

                            Decided May 4, 2010

EFFRON, C.J., delivered the opinion of the Court, in which
BAKER, ERDMANN, STUCKY, and RYAN, JJ., joined.



                                     Counsel



For Appellant:   Captain Robert E. Eckert Jr., USMC (argued).


For Appellee:    Lieutenant Michael Maffei, JAGC, USN (argued).



Military Judges:    Bruce W. Mackenzie and Paul M. Gamble




            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Serianne, No. 10-5001/NA


    Chief Judge EFFRON delivered the opinion of the Court.

    This case arises out of an interlocutory Government appeal

under Article 62, Uniform Code of Military Justice (UCMJ), 10

U.S.C. § 862 (2006), in a pending special court-martial.    At

this stage in the proceedings, the pending charges include one

specification of dereliction of duty in violation of Article 92,

UCMJ, 10 U.S.C. § 892 (2006), and two specifications of drunken

operation of a vehicle in violation of Article 111, UCMJ, 10

U.S.C. § 911 (2006).    The parties have not made opening

statements, and no evidence has been offered on the merits.



                           I.   BACKGROUND

                   A.   COURT-MARTIAL PROCEEDINGS

    The charge at issue on appeal, dereliction of duty, alleged

that Appellee “was derelict in the performance of [his] duties

in that he willfully failed to report his 3 February 2009 arrest

for driving under the influence of alcohol, as it was his duty

to do.”   In a pretrial proceeding, the Government relied on a

service Instruction, Dep’t of Navy, OPNAVINST 5350.4C, Drug and

Alcohol Abuse Prevention and Control (Dec. 8, 2005), as the

source of the self-reporting duty at issue.   At the time of the

charged offense, paragraph 8.n. of the Instruction stated:

     Members arrested for an alcohol-related offense
     under civil authority, which if punished under the
     UCMJ would result in a punishment of confinement for


                                  2
United States v. Serianne, No. 10-5001/NA


     1 year or more, or a punitive discharge or dismissal
     from the Service (e.g., DUI/DWI), shall promptly
     notify their CO. Failure to do so may constitute an
     offense punishable under Article 92, UCMJ.

Appellee moved to dismiss the charge on the grounds that the

self-reporting requirement violated his self-incrimination

rights under the Fifth Amendment to the Constitution and

Military Rule of Evidence (M.R.E.) 301(a).   The military judge

granted the defense motion and dismissed the dereliction charge

on the grounds that the self-reporting requirement violated

Appellee’s self-incrimination rights.   In his written ruling on

the motion, the military judge also noted the conflict between

the self-reporting requirement in the Instruction and the

service-specific self-incrimination protections in Article 1137

of the United States Navy Regulations (1990).   Article 1137

provides:

     Persons in the naval service shall report as soon as
     possible to superior authority all offenses under
     the Uniform Code of Military Justice which come
     under their observation, except when such persons
     are themselves already criminally involved in such
     offenses at the time such offenses first come under
     their observation.

            B.   CONSIDERATION BY THE NAVY-MARINE CORPS
                      COURT OF CRIMINAL APPEALS

    The Government filed an interlocutory appeal with the United

States Navy-Marine Corps Court of Criminal Appeals under Article

62, UCMJ, asking the court to overturn the military judge’s

ruling.   The Court of Criminal Appeals considered the appeal en


                                 3
United States v. Serianne, No. 10-5001/NA


banc and affirmed the decision by the military judge to dismiss

the charge.   United States v. Serianne, 68 M.J. 580 (N-M. Ct.

Crim. App. 2009).   The court discussed the self-incrimination

implications of self-reporting in considerable detail, focusing

on the “regulatory exception” to the privilege against self-

incrimination.   The court stated that the regulatory exception

applies:

     when the constitutional interests of the individual
     must be balanced with the public need and instructs
     that “[t]he Fifth Amendment is not violated when the
     Government is allowed ‘to gain access to items or
     information vested with . . . [a] public
     character.’” [United States v.] Oxfort, 44 M.J.
     [337,] 340-41 [(C.A.A.F. 1996)] (quoting Baltimore
     City Department of Social Services v. Bouknight, 493
     U.S. 549, 557 (1990)); see also California v. Byers,
     402 U.S. 424, 427-28 (1971).

Id. at 584 (ellipsis and first two bracketed interpolations in

original).    The court added that the regulatory exception

reflects the principle that “‘[i]f the Government requires

documents to be kept for a legitimate administrative purpose,

neither the content nor the act of production of these documents

are protected by the Fifth Amendment.’”    Id. (alteration in

original) (quoting United States v. Swift, 53 M.J. 439, 453

(C.A.A.F. 2000)).   The court concluded that the Instruction was

punitive rather than regulatory in nature, compelling an

incriminatory testimonial communication.    Id.   As such, the




                                  4
United States v. Serianne, No. 10-5001/NA


court concluded that the Instruction could not be sustained as a

regulatory exception.   Id.

     In addition to addressing the constitutional issue, the

court also addressed the issue raised by the military judge

concerning the relationship between the Instruction and Article

1137 of the United States Navy Regulations:

     We also note that the disclosure requirement of
     OPNAVINST 5350.4C, ¶ 8n, is inconsistent with
     superior competent authority. . . . This court has
     previously held that the reporting requirement of
     Article 1137 [of the United States Navy Regulations]
     is “valid and permissible,” basing that conclusion
     on the fact that it “eliminates a reporting
     requirement in instances where a person is already
     criminally involved in offenses he would otherwise
     be required to report.” United States v. Bland, 39
     M.J. 921, 923 (N.M.C.M.R. 1994).

Id. at 584-85.

     Two judges concurred in the result with separate opinions.

Chief Judge Geiser concluded that the reporting requirement was

void for vagueness to the extent that it required a

servicemember to report arrests that “would result” in

punishment under the UCMJ for more than one year.   Id. at 585

(stating that it was unreasonable to require servicemembers “to

divine what ‘would result’ if the case were punished at court-

martial”).   Chief Judge Geiser did not concur in the majority’s

holding on the self-incrimination privilege.   Id. at 585-86.    He

viewed the privilege as applying only to “actual evidence of

misconduct or information which would directly reveal evidence


                                 5
United States v. Serianne, No. 10-5001/NA


that was not otherwise known,” and, in his view, the arrest

record should be viewed as an accusation and not as evidence

covered by the privilege.     Id. at 586.

      Judge Beal, who also wrote separately, agreed with Chief

Judge Geiser’s view that the Instruction was unconstitutionally

vague.   Id.     He disagreed, however, with both the majority and

Chief Judge Geiser regarding the self-incrimination aspects of

the reporting requirement.     He took the position that a properly

drafted self-reporting requirement could serve a “legitimate

administrative purpose.”     Id.   In that context, he concluded

that a person could be prosecuted for dereliction of duty under

Article 92 for failing to self-report a drunk driving offense.

Id.   In his view, the self-incrimination problem applied not to

the Article 92 offense (dereliction of duty in failing to report

the offense), but instead applied to any prosecution for the

underlying drunk driving offense under Article 111.     Id.   From

his perspective, if the servicemember self-reported a drunk

driving arrest and the self-reported information provided the

sole evidence on the drunk driving charge under Article 111, the

self-incrimination privilege would preclude prosecution for that

offense.   Id.     During oral argument the Government called our

attention to the fact that the issuing authority, subsequent to

Appellee’s trial, modified the self-reporting requirement in the

Instruction.     In the Government’s view, the modification


                                    6
United States v. Serianne, No. 10-5001/NA


resolves the vagueness issue with respect to future cases,

recognizing that the modification does not moot the issue in the

present case.



                     II.   THE CERTIFIED ISSUES

     The Judge Advocate General of the Navy certified the

following issues for our review under Article 67(a)(2), UCMJ, 10

U.S.C. § 867(a)(2) (2006):

     I.    WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL
           APPEALS ERRONEOUSLY HELD THAT THE DUTY IMPOSED ON
           SAILORS BY CHIEF OF NAVAL OPERATIONS INSTRUCTION
           5350.4C TO NOTIFY THEIR COMMANDING OFFICER OF AN
           ARREST BY CIVIL AUTHORITY FOR AN ALCOHOL-RELATED
           OFFENSE COMPELLED A TESTIMONIAL COMMUNICATION
           THAT WAS INCRIMINATING.

     II.   WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL
           APPEALS ERRONEOUSLY HELD THAT NO EXCEPTION TO THE
           FIFTH AMENDMENT SELF-INCRIMINATION CLAUSE,
           INCLUDING THE REGULATORY EXCEPTION DEVELOPED IN
           CALIFORNIA v. BYERS, APPLIES TO THE REPORTING
           REQUIREMENT IN CHIEF OF NAVAL OPERATIONS
           INSTRUCTION 5350.4C.

     For the reasons set forth below, we conclude that the

military judge did not err in dismissing the dereliction of duty

charge under the circumstances of this case.



                           III.   DISCUSSION

     The majority and separate opinions at the Court of Criminal

Appeals addressed both the constitutionality and interpretation

of the Instruction, issues of law that we consider under a de


                                   7
United States v. Serianne, No. 10-5001/NA


novo standard of review.    See United States v. Wright, 53 M.J.

476, 478 (C.A.A.F. 2000).   In determining whether to decide the

present case on constitutional or nonconstitutional grounds, we

may take into account the nonconstitutional regulatory matter

discussed by the court below -- the relationship between the

self-reporting requirement in the Instruction and the exclusion

from self-reporting provided in Article 1137 of the United

States Navy Regulations.    Serianne, 68 M.J. at 584-85; see

United States v. Simmons, 38 M.J. 376, 380 (C.M.A. 1993) (citing

Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346-48)

(Brandeis, J., concurring) (noting that a court need not resolve

a constitutional question, even if properly presented, “if there

is also present some other ground upon which the case may be

disposed of”).

     The court below in the present case observed that it had

addressed the validity of Article 1137 of the United States Navy

Regulations in United States v. Bland, 39 M.J. 921, 923

(N.M.C.M.R. 1994) (sustaining Article 1137 on the grounds that

the regulation had eliminated a self-reporting requirement for a

person involved in offenses the person would otherwise be

required to report).   Serianne, 68 M.J. at 585.   The court

described Article 1137 as “superior competent authority” over

the Instruction, and further described the reporting requirement

in the Instruction as “inconsistent” with the exclusion provided


                                  8
United States v. Serianne, No. 10-5001/NA


in higher authority, the United States Navy Regulations.    Id. at

584.

       We agree with the interpretation of the applicable rules

set forth in Bland and restated by the court below in the

present case.   We note that Bland has not been overruled, and

Article 1137 has not been changed in pertinent regard.   The

lower court’s description of Article 1137 as “superior competent

authority” is consistent with Article 0103 of the United States

Navy Regulations, which states that the United States Navy

Regulations serve as “the principal regulatory document of the

Department of the Navy,” and specifically states that “[o]ther

directives issued within the Department of the Navy shall not

conflict with, alter or amend any provision of Navy

Regulations.”   The self-reporting requirement in the Instruction

did not provide Appellee with the rights afforded by a superior

competent authority, Article 1137.    As such, the Instruction did

not provide a legal basis for finding Appellee derelict in the

performance of a required duty, and the military judge did not

err in dismissing the charge.   We base that decision on the

nonconstitutional, regulatory ground discussed by the military

judge and the court below, without reaching the constitutional

questions otherwise noted in this appeal.




                                  9
United States v. Serianne, No. 10-5001/NA

                          IV.   DECISION

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.     We remand the record of trial

to the Judge Advocate General of the Navy for return to the

military judge for further proceedings consistent with this

opinion.




                                10
