

   
   
   
   U.S. v. Guzman



IN THE CASE OF
UNITED STATES, Appellee
v.
Carlos L. GUZMAN, Aviation Machinists Mate
Third Class
U.S. Navy, Appellant
 
No. 99-0069
Crim. App. No. 97-0293
 
United States Court of Appeals for the Armed
Forces
Argued October 27, 1999
Decided March 13, 2000

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

Counsel
For Appellant: Lieutenant Commander Frank
J. Bustamante, JAGC, USN (argued); Major Stephen D. Chace, USMC
(on brief); Major Michael R. Osborn, USMC.
For Appellee: Lieutenant Kevin S. Rosenberg,
JAGC, USNR (argued); Colonel Kevin M. Sandkuhler, USMC, and Commander
Eugene E. Irvin, JAGC, USN (on brief).
Military Judges: Kevin R. Vienna and Roger
A. Smith
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.

 

Judge EFFRON delivered the opinion of the Court.
A general court-martial composed of a military
judge sitting alone convicted appellant, contrary to his pleas, of conspiracy
to make and possess a military identification card, failure to go, making
a false official statement, carrying a concealed weapon, and wrongfully
making a military identification card, in violation of Articles 81, 86,
107, and 134, Uniform Code of Military Justice, 10 USC §§ 881,
886, 907, and 934, respectively. He was sentenced to confinement for 54
months, forfeiture of $400.00 pay per month for 54 months, reduction to
pay grade E-1, and a dishonorable discharge. The convening authority approved
the sentence as adjudged. The Court of Criminal Appeals affirmed in an
unpublished opinion.
On appellant's petition, we granted review
of the following issue:

WHETHER THE LOWER COURT ERRED WHEN IT HELD
THAT THE MILITARY JUDGE PROPERLY DENIED APPELLANTS MOTION TO SUPPRESS
WIRETAP EVIDENCE THAT WAS OBTAINED IN VIOLATION OF MIL.R.EVID. 317.

For the reasons set forth below, we hold that
the denial of appellants motion to suppress evidence obtained by a wiretap
was proper under Mil.R.Evid. 317, Manual for Courts-Martial, United States
(1998 ed.).

I. Background
A.
During an investigation into the making of
a false military identification card, agents of the Naval Criminal Investigation
Service (NCIS) developed information which led them to target appellant.
The agents then asked Yeoman Third Class (YN3) Moreno, an acquaintance
of appellant, if he would consent to electronic monitoring of his telephone
conversations with appellant.
After obtaining Morenos consent, the NCIS
agents submitted a "Request for Consensual Interception Authority" to the
General Counsel of the Navy. The matter was referred to the Deputy General
Counsel of the Navy, who authorized the wiretap. The agents intercepted
and taped seven telephone conversations between appellant and YN3 Moreno,
which produced evidence used to charge appellant with offenses related
to falsification of a military identification card.
At trial, appellant moved unsuccessfully to
suppress the wiretap evidence. The prosecution introduced the tapes during
its case-in-chief as evidence that appellant had committed the charged
offenses.

B. The Legal Setting
"Neither the Constitution nor any Act of Congress
requires that official approval be secured before conversations are overheard
or recorded by Government agents with the consent of one of the conversants."
United
States v. Caceres, 440 U.S. 741, 744 (1979) (citing United States
v. White, 401 U.S. 745, 752 (1971) (plurality opinion)); see
United States v. Samora, 6 MJ 360 (CMA 1979); 18 USC § 2511(2)(c).
In the military justice system, the admissibility
of evidence obtained from wiretaps is governed by Mil.R.Evid. 317. Two
provisions of the rule are relevant to the present case. Subsection (a)
provides that a wiretap constitutes

an unlawful search or seizure within the
meaning of Mil.R.Evid. 311 when such evidence must be excluded under the
Fourth Amendment to the Constitution of the United States as applied to
members of the armed forces or if such evidence must be excluded under
a statute applicable to members of the armed forces.

Subsection (c), entitled "Regulations," provides
in pertinent part:

Notwithstanding any other provision of these
rules, members of the armed forces or their agents may not intercept wire
or oral communications for law enforcement purposes unless such interception:
. . . .

(3) is authorized under regulations issued
by the Secretary of Defense or the Secretary concerned and is not unlawful
under 18 USC § 2511.



The wiretap at issue in this case was approved
under a regulation that has since been cancelled, Department of Defense
(DoD) Directive 5200.24 (April 3, 1978) ("Interception of Wire and Oral
Communications for Law Enforcement Purposes.") The Directive listed the
DoD entities authorized to conduct wiretaps, enumerated the permissible
circumstances for non-consensual and consensual wiretaps, described the
required content of requests for nonconsensual and consensual wiretaps,
established the responsibilities of DoD officials regarding the review
and authorization of wiretaps, and set forth internal reporting procedures.
The basic procedure for conducting a consensual
wiretap under the Directive involved three steps: (1) securing the consent
of one of the parties to the conversation; (2) forwarding a request containing
the information specified in the DoD Directive; and (3) obtaining approval
from the Secretary of a Military Department, the Secretary's designee,
the DoD General Counsel, or the DoD General Counsel's designee.
Section F.4.a. of the Directive contained the
following limitation on the power of the Secretaries of the Military Departments
to delegate approval authority:

This approval authority shall not be delegated
to an official below the level of Assistant Secretary or Assistant to the
Secretary of the Military Department.

The Navy implemented DoD Directive 5200.24 in
SECNAV Instruction 5520.2A (Sept. 1, 1978). The Instruction authorized
the General Counsel of the Navy to approve or deny requests for consensual
wiretaps, review requests for nonconsensual wiretaps, and review questions
about the propriety of the use of particular intercept devices. The Instruction
also authorized the Under Secretary of the Navy to perform these functions
in the absence of the General Counsel.
In a June 23, 1994, memorandum entitled "Delegation
of Authority with Respect to the Interception of Wire and Oral Communications
for Law Enforcement Purposes," the Secretary of the Navy designated the
Deputy General Counsel of the Navy to be "an Assistant to the Secretary
of the Navy with respect to consensual interceptions of wire and oral communications."
The Secretarys memorandum also stated that the Deputy General Counsel
was authorized to approve or deny in writing requests to conduct consensual
interceptions. Appellant contends that the wiretaps in this case, which
were approved by the Deputy General Counsel, should have been suppressed,
on the theory that the Secretary of the Navy lacked the power, under DoD
Directive 5200.24, to delegate consensual wiretap approval authority to
the Deputy General Counsel.*

II. Discussion
A.
The exclusionary rule in Mil.R.Evid. 317(a)
applies only to interceptions of wire and oral communications that violate
the Fourth Amendment or a statute applicable to servicemembers. As noted
in Part I.B., supra, an accused does not have a Fourth Amendment
right to suppress recorded conversations with a consenting person, and
there is no statutory prohibition against the interception or monitoring
of such a conversation. In light of these circumstances, the exclusionary
sanction in Mil.R.Evid. 317(a) is not applicable to the present case.

B.
Appellant relies on Mil.R.Evid. 317(c), which
provides that members of the armed forces or their agents may not intercept
wire on oral communications for law enforcement purposes unless the interception
is "authorized under regulations issued by the Secretary of Defense." Appellant
contends that the Secretary of the Navy was not authorized under DoD Directive
5200.24 to delegate wiretap approval authority to the Deputy General Counsel.
According to appellant, approval of the wiretap by an unauthorized official
violated a regulation, the DoD Directive, contrary to the mandate of Mil.
R. Evid. 317(c). Appellant urges application of the exclusionary rule as
a remedy for the violation.
Subsection (c) of Mil. R. Evid. 317, in contrast
to subsection (a), does not contain an express exclusionary rule. In that
context, excluding evidence from a court-martial to remedy a regulatory
violation may be appropriate if the alleged violation implicated constitutional
or statutory rights. See Caceres, 440 U.S. at 749; United
States v. Sloan, 35 MJ 4, 9 (CMA 1992); United States v. McGraner,
13 MJ 408 (CMA 1982).

C.
The threshold question is whether the delegation
by the Secretary of the Navy violated the DoD Directive. Although the term
"Assistant Secretary of the Navy" refers to a limited number of statutory
positions subject to Presidential appointment and Senate confirmation,
see
10 USC § 5016, there is no statutory provision limiting who may be
designated as an "Assistant to the Secretary of the Navy." There is, however,
general statutory authority for the Secretary of the Navy to establish
"offices and officials" within the Secretary's office. 10 USC § 5014(b)(7).
Appellant points to no authority specifically precluding the Secretary
of the Navy from designating the Deputy General Counsel as an "Assistant
to the Secretary of the Navy."

D.
Even if the DoD Directive were interpreted
to preclude the designation at issue in the present case, the narrow question
of which upper level management officials in the Department of the Navy
may approve consensual intercept requests is not the type of issue that
requires this Court to create an exclusionary rule when none is provided
either in the Constitution or by a statute or regulation. In that regard,
we note that the Department of Defense has cancelled Directive 5200.24,
and that the successor regulation removes any restrictions on the delegation
authority of the Secretary of the Navy regarding consensual interceptions.
See
DoD Directive 5505.9 (April 20, 1995). Although subsequent legislative
or regulatory history should be viewed with caution for purposes of interpretation,
the fact that the Department of Defense eliminated the regulatory provision
at issue confirms the marginal importance of the provision in terms of
whether a violation should require vindication through an exclusionary
rule.

E.
The present case is similar to United States
v. Caceres, supra, where the Supreme Court refused to exclude
relevant evidence even though an agency, the Internal Revenue Service (IRS),
had not followed its own regulations for authorizing consensual wiretaps.
Although agency regulations required approval for the wiretaps at issue
from the Attorney General, the agents erroneously obtained approval from
superior officials within the IRS. The Court noted that the Due Process
Clause was not implicated because the defendant did not rely on regulations
established for his benefit, and did not suffer substantially by any breach
of the regulations. 440 U.S. at 752-53.
As in Caceres, appellant did not conduct
his activities in reliance upon any limits on delegation of the Navy's
wiretap approval authority, nor was he harmed by the fact that the interception
was approved by the Deputy General Counsel rather than his immediate superior.
Nothing in the record indicates that the request would have been denied
by an official at a different level, that any other procedural requirement
was violated, or that the limitation on delegation was directly tied to
protection of individual rights. Because no due process right was violated
by the Deputy General Counsels approval of the intercept request, appellant
is not entitled to relief in the form of exclusion of the tapes under Mil.R.Evid.
317(c).

III. Conclusion
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is affirmed.
FOOTNOTE:
* On April 20, 1995,
the Department of Defense issued DoD Directive 5505.9 ("Interception of
Wire, Electronic, and Oral Communications for Law Enforcement"), which
canceled and replaced the Directive at issue in appellants case. DoD Directive
5505.9 is similar to its predecessor, but it removed any limitation on
the Secretary of the Navys power to delegate review or approval authority
for consensual intercepts. Although the new Directive was issued the same
day the wiretap request for investigation of appellant was approved, both
parties agree that the old Directive, 5200.24, and its implementing Instruction,
apply to this case.

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