

   
   
   
   U.S. v. Bradley



IN THE CASE OF
UNITED STATES, Appellee
v.
David S. BRADLEY, Staff Sergeant
U.S. Air Force, Appellant
 
No. 98-1113
Crim. App. No. 32387
 
United States Court of Appeals for the Armed
Forces
Argued June 1, 1999
Decided September 17, 1999
 

SULLIVAN, J., delivered the opinion of
the Court, in which COX, C.J., and CRAWFORD, GIERKE, and EFFRON, JJ., joined.

Counsel
For Appellant: William
M. Ferris (argued);
Colonel Douglas H. Kohrt and Captain Stephen P. Kelly
(on brief).
For Appellee: Major Kenneth A. Arnold
(argued); Colonel Anthony P. Dattilo, Major Ronald A.
Rodgers, and Captain Martin J. Hindel (on brief).
Military Judge: Howard R. Altschwager
 

THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE PUBLICATION.
 
 

Judge SULLIVAN delivered the opinion of the Court.
During October and November of 1995, appellant
was tried by a general court-martial composed of officer and enlisted members
at Fort George G. Meade, Maryland. Contrary to his pleas, he was found
guilty of one specification of rape, and two specifications of indecent
assault, under Articles 120 and 134, Uniform Code of Military Justice,
10 USC §§ 920 and 934, respectively. The members sentenced him
to a dishonorable discharge, 3 years confinement, total forfeitures, and
reduction to E-1. The convening authority approved the sentence as adjudged
on August 26, 1996. On appeal, the Court of Criminal Appeals ordered a
DuBay1 hearing
on the issue of unlawful command influence. 47 MJ 715 (1997). After that
hearing was conducted in March 1998, the lower court affirmed the findings
and sentence on June 30, 1998. 48 MJ 777.
On February 22, 1999, this Court granted review
on the following issues:




I
WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION
AND/OR WAS CLEARLY ERRONEOUS IN DENYING APPELLANTS PRE-TRIAL MOTION TO
SUPPRESS AN ALLEGED ADMISSION OBTAINED IN VIOLATION OF ARTICLE 31 OF THE
UNIFORM CODE OF MILITARY JUSTICE (UCMJ) [2].

II
WHETHER APPELLANTS CONVICTION AND/OR SENTENCE
IN THIS CASE WAS THE RESULT OF THE IMPROPER EXERCISE OF COMMAND INFLUENCE
AND/OR IMPROPER ACTIONS BY THE SPECIAL COURT-MARTIAL CONVENING AUTHORITYS
STAFF JUDGE ADVOCATE.



We resolve these issues in the Governments favor.

I
On Issue I, the record before us shows that
appellant was a "cryptologic linguist specialist" with a high-level top
secret security clearance. On August 5, 1994, he was accused of raping
and indecently assaulting a female member of his unit. The Government produced
evidence that appellants acting commander, Major Scafidi, received a phone
call informing him of the alleged rape. He then attempted to contact appellant
by telephone. Once contact was made, Major Scafidi informed appellant that
he needed to speak with him after appellant spoke with police.
The next day, appellant called Major Scafidi
as instructed. Major Scafidi testified to the telephone conversation as
follows:



Q. [TC]: Okay. When he called you back, as
best you can remember, after you answered the phone, what did the accused
say to you or what did you say to him?
A. I asked him what happened at the police
station.
Q. Word for word as best you can recall, what
exactly did you say?
A. I said--
Q. First of all, did you ask him where he was?
A. I asked, "Where are you at?"
Q. And what did he say?
A. He said, "Im at home," and I said, "What
happened?"
Q. And when you asked what happened, what were
you asking?
A. I needed to know what happened at the
police station.
Q. Is it fair to say that just because he's
home something might have happened at the police station?
A. Yes.
Q. He might have been booked and released,
for example?
A. Thats correct.
Q. And you needed to know that?
A. Thats correct.
Q. When you said, "What happened?", what did
the accused say?
A. He said, "I admitted to touching her
without her consent."
Q. And your understanding is that he was relating
to you what he had just said at the police station that afternoon.
A. Yes.



(Emphasis added.)
Major Scafidi testified that the purpose of
his call was to inquire whether appellant had been arrested, charged, or
accused of criminal conduct in order to determine whether appellants security
clearance required termination. He did not ask any other questions.
Appellant testified somewhat differently. He
testified that he spoke with Major Scafidi twice after his arrest by civilian
authorities. The record states:



Q[DC]. What was you conversation with Major
Scafidi?
A. He asked me, "Whats going on?" He said
that -- he asked me if I had spoke with the authorities yet, and I said
no, that I was going to soon. He then told me he couldnt tell me any
more; he couldnt talk to me about what was going on; that as soon as I
was done speaking with the authorities to call him back. Detective Wright
came to my house.
Q. Before you go on, did he ask you any questions
 he Major Scafidi  did he ask you questions regarding when was your next
scheduled duty time?
A. At that time, no, he did not.
Q. Did he ask you what your status was or had
you been charged with an offense?
A. At that time I told him that I had not talked
to the authorities yet and that I had not been contacted or charged or
seen by anybody of the authorities.
Q. Did he express to you at that time any conversations
regarding, "If you are charged or if anything happens, please call me because
it pertains to your security clearance"? Did he make any statements regarding
that?
A. Not relating to the security clearance.
His concern was simply had I spoke with the authorities, had I been
charged. No reference to the security clearance at that time.
Q. That was your first conversation with the
major?
A. Yes, sir, it was.
Q. Did you later call him back?
A. Yes, sir. After Detective Wright left my
home, I returned Major Scafidis call. He asked me what was going on,
and I said that I hadnt been charged and related to him what Detective
Wright said to me which was, "Assuming you touched her without permission,
this is aggravated assault, but Im not charging you with that now," and
I related that information quoting Detective Wright to Major Scafidi.
Q. Did you tell Major Scafidi this is what
the detective told you or did you say, "Sir, this is what happened; this
is what I did; or this is what I heard"?
A. I said, "This is what Detective Wright indicated
to me what is going on with my status -- with my current status."
Q. Did the major then ask you if you had gone
down to the police station for any questioning or to be arrested and formally
charged?
A. No, he did not.
Q. Did he ask when your next duty day was?
A. Yes, he did. He asked me, "When do you have
to work again?" I replied, "Early Monday morning; I have a mission scheduled
for probably 2:00 or 3 oclock show time early Monday morning." He said,
"Okay. Do not go to the mission; report to the commander at 7:30."
Q. Did he give you any instructions as far
as finding a replacement or someone to fly in your place?
A. He said he would take care of that. He said
that he would find out who the NCOIC in charge of the mission that morning
was and take care of having a replacement for me, that my concern was to
be in blues Monday morning at 7:30 to see Colonel Mitzel.
Q. Was there anything else in that conversation
with the major?
A. No, sir, just he asked me, "Have you
been charged? Have you been detained?" "No." And "Dont go to the mission
on Monday morning."
Q. At any point during any of your conversations,
either your first phone call to the major or the later one, did he ever
read you your Article 31 rights?
A. No, sir, he did not.
Q. Did he ever tell you, if not formally your
Article 31 rights, did he ever say anything about, "Theres some serious
charges or theres been an allegation"?
A. No, he did not.
Q. Did he ever say, "Dont make any statements
to me about what happened. Im just trying to determine what your duty
status is as relating to your clearance"?
A. No, sir, he did not. He did the opposite.
He told me he could not speak to me but never advised me to not tell him
the information.

* * *
Q[TC]: --when you called him back, he asked
you what happened? He was asking you what had just happened that afternoon
wasnt he?
A. He asked me my status. The "what happened"
he was asking me the status of the nature of [sic] with the authorities
being there I understood him asking me, "Have you been charged? Are you
going to be detained? Whats your situation? I understood that to be the
question.



(Emphasis added.)
At trial, appellant moved to suppress evidence
of the unwarned statement made to Major Scafidi because he was conducting
a disciplinary inquiry and failed to read him his Article 31 rights. The
military judge denied the motion and made factual findings stating that
there was "no question that both the questioner and the person questioned
understood the purpose and intent of the question, What happened? An
incriminating response was not requested, and in the mind of the accused,
an incriminating response was neither sought nor given."
The Court of Criminal Appeals affirmed appellants
conviction because it held that the "military judge did not abuse his discretion"
by admitting appellants pretrial statement to his acting commander. The
lower appellate court found, as the military judge found, that Major Scafidi
"was not conducting a criminal investigation." 47 MJ at 717.

___ ___ ___
Appellant asserts that the military judge erred
in denying his motion to suppress evidence of his purported pretrial admissions
to his acting commander, Major Scafidi. He first contends that the judge
erred in finding his commander was not acting in a disciplinary capacity
when that commander telephoned him and asked, "what happened." He next
argues that the service appellate court erred when it held that no Article
31 violation occurred simply because he took the witness stand and disputed
the accuracy of the responses which Major Scafidi testified he made to
these questions. We disagree with both arguments.
Turning first to appellants "troubling paradox"
argument, Final Brief at 29, we conclude that he has misread the opinion
of the service court below. Neither the military judge nor the Court of
Criminal Appeals held that appellants testimony disputing Major Scafidis
testimony on appellants responses to the challenged questioning waived
or forfeited his suppression motion. They did conclude that appellants
testimony that he provided non-incriminating answers to those questions
and he perceived these questions as non-incriminating was some evidence
that this was not interrogation barred by Article 31. This was not legal
error. United States v. White, 48 MJ 251, 257-58 (1998) (considering
appellants perception of events to determine whether interrogation occurred);
see United States v. Meeks, 41 MJ 150, 162 (CMA 1994).
Turning to appellants first argument, this
Courts precedents hold that warnings under Article 31 are required when
a suspect or an accused is questioned by a military superior during an
official law enforcement investigation or disciplinary inquiry. See
United States v. McLaren, 38 MJ 112 (CMA 1993), cert. denied,
510 U.S. 1112 (1994); United States v. Loukas, 29 MJ 385 (CMA 1990);
see also United States v. Moore, 32 MJ 56, 60 (CMA
1991). Indeed, this Court will presume "that a superior in the immediate
chain of command" is acting in an investigatory or disciplinary role unless
circumstances show otherwise. Loukas, supra at 389 n.*; United
States v. Good, 32 MJ 105, 108 (CMA 1991); United States v. Pittman,
36 MJ 404, 407 n.7 (CMA 1993). Here, the military judge found that appellants
commander was not acting in a law enforcement or disciplinary role when
he questioned appellant.
This Court previously considered the type of
circumstances surrounding a commanders official questioning of an accused
which did not necessitate Article 31 rights warnings. In Loukas,
the accused indicated that he "was experiencing a hallucination" aboard
an aircraft in mid flight. In response to his irrational behavior and without
administering Article 31 warnings, the crew chief asked the accused, his
subordinate, "if he had taken any drugs." We held that admission of the
accuseds response (he had taken some cocaine the night before) did not
violate Article 31 because the challenged questions were pertinent to the
crew chiefs "operational responsibilities" for the safety of the plane
and its crew. We further noted "there was no evidence" that the superiors
questions "were designed to evade the accuseds constitutional or codal
rights." 29 MJ at 386, 389; Good, supra at 109.
Appellant does not generally contend that a
security clearance question is not within the ambit of the administrative
and operational exception to Article 31, as recognized by our case law.
His particular complaint is that his commander used his security responsibilities
as a pretext to ask appellant questions which would be both incriminating
and admissible in court. Both the military judge and the Court of Criminal
Appeals factually rejected appellants view of the evidence on this point.
We conclude that their findings of fact were not clearly erroneous and
were amply supported by the evidence of record in this case. See
generally United States v. Campos, 42 MJ 253, 261 (1995).
In this regard, we note, Major Scafidi testified
that the purpose of his questions was to determine whether charges were
filed because that action would necessitate suspension of appellants high
level security clearance. He also testified that he did not seek or ask
for incriminating information about the alleged rape. See also
United States v. Hessler, 7 MJ 9 (CMA 1979). Furthermore, there
was no other evidence in this case which shows that Major Scafidi was pursuing
a criminal investigation or held any other law enforcement role in appellants
case. On the contrary, evidence was admitted that immediately after asking
appellant "what happened?", he pulled appellants TS/SCI clearance and
told him not to report to duty, thus corroborating his testimony. See
Loukas, supra at 389. Appellant also presented no evidence
that Major Scafidi asked the question as a ruse for an investigation or
attempted to evade appellants Article 31 rights. Id. at 388. Finally,
as noted by the court below, "it is clear from the record that both Major
Scafidi and appellant understood that, although Major Scafidi was acting
in an official capacity, he was seeking information needed for the proper
review of appellants security clearance status and was not conducting
a criminal investigation." 47 MJ at 717. Accordingly, we conclude
that the military judge did not err in admitting appellants pretrial statements
to Major Scafidi. See United States v. Campos, supra.

II
In the second granted issue, appellant alleges
that Lieutenant Colonel (Lt Col) Dent, the special court-martial convening
authoritys staff judge advocate (SJA) improperly influenced his general
court-martial in four specific ways. First, he contends that the SJA improperly
pressured a defense witness, Master Sergeant (MSgt) Lisa Becker, not to
testify. Second, he asserts that this SJA engaged in improper ex parte
communications with the president of the panel. Third, he alleges that
this same officer published an article in the base newspaper which prejudiced
appellants chances for clemency from the general court-martial convening
authority. Finally, he avers that the SJA (Lt Col Dent) after trial dissuaded
a court member from providing a letter for appellants clemency package.

(1) Pressure on defense witness
Appellants first contention, as noted above,
is that MSgt Becker was unlawfully influenced by Lt Col Dent, the staff
judge advocate to the special court-martial convening authority at Fort
Meade, Maryland. He asserts that the SJA spoke with MSgt Becker on the
telephone and dissuaded her from testifying for the defense in this case.
He contends that the SJAs comments were "blatantly improper" and caused
this witness testimony to be "less enthusiastic and less forthcoming"
for the defense. Final Brief at 34-35.
Our initial concern is whether the SJAs telephone
conversation amounted to unlawful command influence. See Art. 37(a),
UCMJ, 10 USC § 837(a). Certainly, an SJA may not engage in conduct
which dissuades defense witnesses from testifying truthfully at courts-martial.
See United States v. Gleason, 43 MJ 69, 73 (1995). Here,
however, the Court of Criminal Appeals found the same facts as those found
by the judge at the DuBay hearing and concluded that they "neither
indicated bias towards appellant nor amounted to unlawful command influence."
48 MJ at 779. We need not decide this question because we agree with the
appellate court below that no prejudice in this case occurred as a result
of the SJAs conduct.
That court stated:



Although MSgt Beckers testimony conflicted
in part with Lt Col Dents, she admitted that although she did think about
not testifying after their conversation, she nonetheless decided to testify
for the appellant both on the merits and during sentencing. We note from
the record that, in addition to testifying about the victims demeanor
at the hospital, she also provided strong character and truthfulness testimony
on behalf of appellant. However, at the post-trial hearing she had apparently
forgotten giving this latter testimony and claimed to have withheld it
because of her conversation with Lt Col Dent.



48 MJ 777, 779-80 (1998). Appellant has proffered
no legal authority that a loss of enthusiasm constitutes legal prejudice
requiring reversal and he has not indicated what, if any, testimony was
withheld by this witness. In these circumstances appellate relief is not
warranted. See generally United States v. Rivers,
49 MJ 434, 443 (1998) (this Court "satisfied that appellant was not deprived
of any witnesses").

(2) Ex parte communication
Appellant next contends that Lt Col Dent engaged
in improper ex parte communications with the president of appellants court-martial
panel. He asserts that the service appellate court erroneously found only
one such conversation occurred, when in fact another occurred as well,
and two such conversations are enough for reversal. We disagree.
It is not the number of ex parte conversations
which is critical, but their content. See United States v. Hamilton,
41 MJ 22, 27 (CMA 1994), cert. denied, 513 U.S. 1084 (1995). Here,
despite evidence that a second conversation may have occurred, the military
judge found that only one occurred and that it did not concern appellants
trial. See generally United States v. Campos, supra.
Furthermore, the defense did not protest the presidents further participation
in this court-martial once this matter came to light at trial. See
48 MJ at 780-81. We are satisfied that there was no unlawful command influence
as a matter of fact or law in these circumstances. United States v.
Hamilton, supra.

(3) Newspaper article
Appellants third complaint of unlawful command
influence concerns an article appearing in a base newspaper written by
the special court-martial convening authoritys SJA after appellants general
court-martial. He contends that Lt Col Dents article constituted unlawful
command influence on the general court-martial authority and his SJA who
were then reviewing this case in Texas. He relies on the decision of this
Court in United States v. Wansley, 46 MJ 335 (1997), for the proposition
that such conduct constitutes unlawful command influence.
The appellate court below noted the findings
of the military judge on this matter, as follows:



We also agree with the military judge that
the article concerning appellants conviction in "The Eagle," a 694th
Intelligence Group publication, was in no way improper command influence.
It merely informed the local community of the results of appellants trial.
The reference to the Navys Tailhook incident in that article was apparently
to emphasize that all military members should be on notice about the possible
consequences of sexual misconduct, not to directly liken appellants crimes
to Tailhook. In any case, it was written by Lt Col Dent, the special court-martial
convening authoritys SJA, who was stationed in Maryland. We found no evidence
to indicate it could have possibly affected the general court-martial (GCM)
convening authority or his SJA, both in Texas, even if the article had
been improper. This is notwithstanding the fact that Lt Col Dent sent a
copy of this article to the GCM SJA for informational purposes as a routine
part of tracking the preventive law program.



48 MJ at 780.
We agree with the military judge that unlawful
command influence did not occur on the basis of this newspaper article
and its routine delivery to the general court-martial convening authority.
This article was unsigned and basically reported the results of trial to
the military community at Fort Meade. The quotes ascribed to a junior legal
officer at a subordinate command were consistent with his law enforcement
duties and were not directed to the clemency process. We see no violation
of Article 37 in this context and we do not read United States v. Wansley,
supra (a post-trial review-disqualification case) as holding otherwise.

(4) Stifling clemency recommendation
Appellants final complaint of unlawful command
influence concerns a matter raised for the first time at the DuBay
hearing which the Court of Criminal Appeals noted was "not addressed in
our order for a post-trial hearing." 48 MJ at 780. A member of appellants
court-martial, Captain (Capt) Applegate, testified that he approached Lt
Col Dent for legal advice on what a member of a court-martial was legally
permitted to say after trial on behalf of a convicted accused in a letter
of clemency. See RCM 1105(b)(4), Manual for Courts-Martial, United
States (1995 edition)3
(clemency recommendation by court-martial member). He further stated that
Lt Col Dent refused to answer his question and attempted to dissuade him
from submitting such a statement by saying, "You dont really want to do
that, do you?"
The Government opposed this claim at the DuBay
hearing on the basis of the testimony of Lt Col Dent who remembered advising
Capt Applegate on this matter. He denied making the above noted statement
or advising Capt Applegate in any way that he should not submit a clemency
letter. The Government also submitted the testimony of Colonel Behrens,
who overheard much of their conversation concerning such a statement and
confirmed Lt Col Dents version of this incident. 48 MJ at 780. The military
judge at the DuBay hearing, however, made no particular findings
of fact or conclusions of law on this matter. Instead he generally concluded
that appellants unlawful-command-influence complaints were without merit
and that he chose to believe Lt Col Dents version of events rather than
Capt Applegates in another matter.
We are not a court with factfinding powers
and the judges incomplete findings of fact preclude us from resolving
this case on the basis of his lawful exercise of these powers. Cf.
United States v. Campos, supra. Nevertheless, a factfinding
hearing is not required where an accused fails to aver sufficient facts
necessary to constitute a legal claim. See United States v. Ginns,
47 MJ 236, 246-47 (1997). Here, appellant avers that he was denied a members
clemency letter whose content is unknown except that it may contain inadmissible
post-trial statements of a member concerning his prior deliberations in
this case. See Mil. R. Evid. 606(b), Manual, supra.4
In our view, there was no reasonable possibility that the general court-martial
convening authority would have changed his action in this case on this
basis. See United States v. Thomas, 22 MJ 388, 394 (CMA 1986)
(harmless-beyond-a-reasonable-doubt test),
cert. denied, 479 U.S. 1085 (1987).
The decision of the United States Air Force
Court of Criminal Appeals upon further review is affirmed.
FOOTNOTES:
1 United States v. DuBay,
17 USCMA 147, 37 CMR 411 (1967).
2 10 USC §
831.
3 This provision
appears as RCM 1105(b)(2)(D) in the 1998 Manual and is textually unchanged.
4 This provision
is unchanged in the 1998 edition of the Manual.

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