                         UNITED STATES, Appellee

                                         v.

    Dennis R. TOY, Sonar Technician (Submarines) First Class
                      U.S. Navy, Appellant

                                  No. 07-0316

                        Crim. App. No. 200001418

       United States Court of Appeals for the Armed Forces

                         Argued October 16, 2007

                        Decided January 16, 2008

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

                                     Counsel

For Appellant:    Lieutenant Anthony Yim, JAGC, USN (argued).

For Appellee: Major Brian K. Keller, USMC (argued); Commander
Paul C. LeBlanc, JAGC, USN, and Major Wilbur Lee, USMC.



Military Judge:    Robert W. Redcliff




            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Toy, No. 07-0316/NA


    Judge BAKER delivered the opinion of the Court.

    Contrary to his pleas, Appellant was convicted by officer

and enlisted members of forcible sodomy with a child between the

ages of twelve and sixteen years, sodomy with a child between

the ages of twelve and sixteen, three specifications of indecent

acts with a child under the age of sixteen and two

specifications of indecent acts with another in violation of

Articles 125 and 134, Uniform Code of Military Justice (UCMJ),

10 U.S.C §§ 925, 934 (2000).   All of the offenses were committed

against Appellant’s stepdaughter.     The adjudged sentence

included a dishonorable discharge, confinement for twenty years,

forfeiture of all pay and allowances and reduction to E-1.    The

convening authority approved the sentence as adjudged but

suspended the adjudged forfeitures and waived any automatic

forfeitures.

     In its first review, the United States Navy-Marine Corps

Court of Criminal Appeals set aside the forcible sodomy charge

and one specification of indecent acts with a child.    United

States v. Toy (Toy I), 60 M.J. 598, 607 (N-M. Ct. Crim. App.

2004).   It affirmed the remaining findings and ordered a

rehearing on sentence.   Id.   Upon rehearing, a military judge

re-sentenced Appellant to a dishonorable discharge, confinement

for fifteen years, forfeiture of all pay and allowances and

reduction to E-1.   This time, pursuant to a pretrial agreement,


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United States v. Toy, No. 07-0316/NA


the convening authority approved the adjudged sentence but

suspended all confinement in excess of ten years.     The United

States Navy-Marine Corps Court of Criminal Appeals affirmed this

approved sentence and reaffirmed the findings.   United States v.

Toy (Toy II), No. NMCCA 200001418, 2006 CCA LEXIS 343, at *13,

2006 WL 4579022, at *4 (N-M. Ct. Crim. App. Dec. 21, 2006)

(unpublished).   The issue now before the Court is:

     WHETHER MIL. R. EVID. 317(a) INCORPORATES STATE
     STATUTES WHEN DETERMINING AN UNLAWFUL INTERCEPTION OF
     AN ORAL OR WIRE COMMUNICATION.

                               FACTS

     The facts as necessary and relevant to resolution of the

issue were set out by the court below:

     The appellant married a woman who had two daughters by a
     previous marriage. One of the daughters, M, was 10 years
     old when the appellant began dating her mother, and she
     developed a crush on the appellant. The appellant married
     M’s mother in 1995 when M was 13 years old, and the family
     transferred to Hawaii shortly thereafter. In 1997, when M
     was 15 years old, the appellant performed oral sex on her
     and had her perform oral sex on him. When M was 16 years
     old, the appellant engaged in sexual intercourse with her
     on two occasions. The appellant’s wife found him in bed
     with M and gave him an ultimatum: the appellant’s wife
     would report him to the police unless he agreed to be
     secured to the headboard of the marital bed when there were
     no other adults in the house to protect the step-daughters
     from the appellant.

     The appellant grew tired of being handcuffed to the bed and
     eventually verbal disagreements arose between the appellant
     and his wife. The appellant’s wife secretly audio taped
     one of those arguments in which the appellant admitted, in
     part, what he had done with his step-daughter, M. The
     appellant’s wife also placed a video camera at the foot of
     their marital bed, with the appellant’s knowledge, and


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United States v. Toy, No. 07-0316/NA


     recorded a conversation between the appellant and herself
     and then left the room while the camera videotaped the
     appellant handcuffed to their bed.

Toy II, 2006 CCA LEXIS 343, at *4-*5, 2006 WL 4579022, at *1.

                       PROCEDURAL BACKGROUND

     At trial, Appellant moved to suppress the audio and video

tapes under Military Rule of Evidence (M.R.E.) 317(a).   Under

the rule:

     [W]ire or oral communications constitute evidence obtained
     as a result of 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.

Emphasis added.   During the hearing on the motion, defense

counsel asserted that the “statute applicable to members of the

armed forces” in Appellant’s case was 18 U.S.C. § 2515 (2000).

This section states:

     Whenever any wire or oral communication has been
     intercepted, no part of the contents of such communication
     and no evidence derived therefrom may be received in
     evidence in any trial, hearing, or other proceeding in or
     before any court, grand jury, department, officer, agency,
     regulatory body, legislative committee, or other authority
     of the United States, a State, or a political subdivision
     thereof if the disclosure of that information would be in
     violation of this chapter.

Emphasis added.   Defense counsel recognized an exception to this

provision in 18 U.S.C. § 2511(2)(d) (2000), which states:

     It shall not be unlawful under this chapter [18 U.S.C. §§
     2510 et seq.] for a person not acting under color of law to
     intercept a wire, oral, or electronic communication where


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United States v. Toy, No. 07-0316/NA


     such person is a party to the communication or where one of
     the parties to the communication has given prior consent to
     such interception unless such communication is intercepted
     for the purpose of committing any criminal or tortious act
     in violation of the Constitution or laws of the United
     States or of any State.

Emphasis added.   Counsel continued, arguing that Mrs. Toy’s

conduct fell into the “exception to the exception” above because

she had conducted the video and audio taping of Appellant for

the purpose of committing a criminal or tortious act in that she

had violated the Hawaii intercept statute.   At the time, that

state statute provided:

     (a) Except as otherwise specifically provided in this part
     any person who:

          (1) Intentionally intercepts, endeavors to intercept,
          or procures any other person to intercept or endeavor
          to intercept, any wire, oral, or electronic
          communication;

          (2) Intentionally uses, endeavors to use, or procures
          any other person to use or endeavor to use any
          electronic, mechanical, or other device to intercept
          any wire, oral, or electronic communication;

          . . . .

     shall be guilty of a class C felony.

          . . . .

     [(b)] (3) It shall not be unlawful under this part for a
     person not acting under color of law to intercept a wire,
     oral, or electronic communication where such person is a
     party to the communication or where one of the parties to
     the communication has given prior consent to such
     interception unless such communication is intercepted for
     the purpose of committing any criminal or tortious act in



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United States v. Toy, No. 07-0316/NA


     violation of the Constitution or laws of the United States
     or of this State; provided that installation in any private
     place, without consent of the person or persons entitled to
     privacy therein, of any device for recording, amplifying,
     or broadcasting sounds or events in that place, . . . is
     prohibited.

Haw. Rev. Stat. § 803-42 (1998) (amended 2006) (emphasis added).

The parties provided the military judge an audio tape of an

interview with Mrs. Toy at which both trial counsel and defense

counsel had been present.

                              [audio tape]

     MRS. TOY: I just had it sitting on top of the shelf -- the
     bookshelf.

     DC:   Okay.   Did you ever ask Dennis if you could tape him?

     MRS. TOY: I was scared. I wasn’t taping it with his
     permission. I was taping it so that if he hurt me, the
     girls would be able to go to the authorities and say this
     is what happened.

     DC: Did you ever go and talk to the Family Advocacy
     Program?

     MRS. TOY:     After Dennis was turned in.

     DC: Can you explain again why it is that you wanted this
     taped?

     MRS. TOY:     Because I was scared that he was going to hurt
     me.

     DC: Okay. And how was it that you had planned on using
     this tape if –-

     MRS. TOY: If he hurt me, then there would have been the
     tape to show just what had really happened.

     DC:   This tape was inside of your home?

     MRS. TOY:     Uh-huh.   [Indiscernible.]


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United States v. Toy, No. 07-0316/NA



     DC:   And he never knew about the tapes?

     MRS. TOY:   Not that I’m aware of.

     DC: You never told him, ‘Hey, I’m taping you, you had
     better calm down’?

     MRS. TOY: She -- yeah. I’m afraid that he’s going to kill
     me or hurt me when I tell him I’m taping it, so that if
     something happened to me, the girls would be able to go to
     the authorities; no, I didn’t tell him.

     DC: What about the videotape, did you ask him if you could
     videotape him?

     MRS. TOY: He knew that he was being videotaped. That was
     the day he was being loud and obnoxious and banging and
     hollering, that at that point some of the boys had been
     coming over because they were scared for us and they were
     staying there to make sure we were okay. And I went back
     in and right at the beginning of the tape I told him if he
     was going to be -— being a jerk, he might as well do it on
     tape for everybody to see, and I set the tape up.

     DC:   Was he locked up at the time?

     MRS. TOY:   Yes, he was.

     DC:   How long did you tape him for then?

     MRS. TOY:   Whatever the length of the tape is and then it
     ran out.

The military judge found as follows:

          The court does not find that the defense has met its
     burden to demonstrate that Mrs. Toy acted in a -- with the
     purpose of at least committing a crime when the videotape
     and when the audio tapes were made.

          The court also finds that defense has not met its
     burden to demonstrate that Mrs. Toy acted with a criminal
     or tortious purpose in preparing the videotape . . . .




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United States v. Toy, No. 07-0316/NA


Finally, the military judge concluded that “such evidence is not

required to be excluded under Military Rule of Evidence 317,

which incorporates Title 18, United States Code Section 2515,

and Title 18, Section 2511.”

     Appellant pursued this same argument during his first

review before the Court of Criminal Appeals.   However, like the

military judge at trial, the lower court concluded that

Appellant failed to carry his burden to demonstrate that Mrs.

Toy made the tapes with a criminal or tortious purpose.   Toy I,

at 605.

     During his second review before the Court of Criminal

Appeals following his rehearing, Appellant renewed his claim

that the tapes should have been suppressed, albeit under a

different theory.   This time, Appellant argued that Mrs. Toy’s

violation of the Hawaii statute provided an independent basis

for exclusion under M.R.E. 317(a) regardless of whether the

recording violated the corresponding federal statute.   Toy II,

2006 CCA LEXIS 343, at *8, 2006 WL 4579022, at *3.   The lower

court reiterated the rationale it had relied on in part during

the first review of the issue, namely that “federal law governs

the admissibility of evidence in a federal criminal trial,” and

that “state law cannot make inadmissible at court-martial that

which federal law says is admissible.”   Toy II, at *9, 2006 WL

4579022, at *3.   Consequently, the court concluded that it had


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United States v. Toy, No. 07-0316/NA


already considered and rejected Appellant’s claim of error.     Id.

at *9, 2006 WL 4579022, at *3.

                     CURRENT POSTURE OF THE CASE

     Appellant presents this modified argument in his appeal

before this Court.   He “fully concedes the well recognized

principle that a violation of state law could not render the

recordings inadmissible in a federal civilian criminal trial.

But that is because the federal rules of evidence do not

incorporate state statutes.”   According to Appellant, the

Military Rules of Evidence do incorporate state statutes.      Also,

notwithstanding his argument before the military judge and the

court below during its first review of his case, Appellant now

asserts that 18 U.S.C. § 2511(2)(d) is “a statute that is

inapplicable to the granted issue.”    Appellant now contends that

the “statute applicable to members of the armed forces”

referenced in M.R.E. 317(a) is the Hawaii intercept statute.

Appellant reasons that because Hawaii’s laws are “applicable to

members of the armed forces” who reside in Hawaii, “[t]he

President established that the right of privacy granted under

Hawaiian law is incorporated into the UCMJ for the limited

purpose of intercepting oral and wire communications.”    As

authority for this argument, Appellant cites the Hawaii

Constitution and the Hawaii Revised Statutes.




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United States v. Toy, No. 07-0316/NA


                        STANDARD OF REVIEW

     As a threshold matter, the Government argues that Appellant

has waived review of this issue under the theory he now posits

because this was not his theory of inadmissibility at trial.

M.R.E. 103(a)(1) requires a party to make “a timely objection

. . . stating the specific ground of objection, if the specific

ground was not apparent from the context.”    The rule does not

require a party to advance every literal argument in support of

his objection.   United States v. Datz, 61 M.J. 37, 42 (C.A.A.F.

2005).   However, “[a] party is required to provide sufficient

argument to make known to the military judge the basis of his

objection and, where necessary to support an informed ruling,

the theory behind the objection.”     Id. (emphasis added); (citing

United States v. Banker, 60 M.J. 216 (C.A.A.F. 2004); United

States v. Brandell, 35 M.J. 369, 372 (C.M.A. 1992) (holding that

“[a] defense counsel has the duty to identify the ‘specific

grounds’ upon which an objection to evidence is based,” but that

this duty is met when “all parties at trial fully appreciate the

substance of the defense objection and the military judge has

full opportunity to consider it”)).

     At trial Appellant’s theory was that the statute

“applicable to members of the armed forces” under M.R.E. 317(a)

was 18 U.S.C. § 2511(2)(d) and that Mrs. Toy made the recordings

for the purpose of committing a criminal or tortious act in


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United States v. Toy, No. 07-0316/NA

violation of the Hawaii intercept statute.   Furthermore, he

litigated this specific theory before the military judge who

entered findings relevant to that theory.    Appellant

acknowledges that he has abandoned that theory and now claims

the federal statute he relied upon at trial is not applicable.

Instead, he asserts that the Hawaii statute applies directly to

him pursuant to M.R.E. 317(a).    Arguably, this is a theory that

might have called for the military judge to make different

findings and conclusions had it been presented at trial.

     However, one can also fairly argue that having raised an

issue under M.R.E. 317(a) that involved the inherent

relationship between federal law and state law, the evidentiary

issue was “apparent from the context.”

     In any event, whether we use the preserved error standard

or the plain error standard, the threshold question is the same,

namely, whether there is error.    Under the theory advanced at

trial or the one advanced here on appeal, the military judge did

not err, plain or otherwise.   Thus, we find it unnecessary to

resolve the issue of waiver in this case.

                           DISCUSSION

     We return to our point of departure, the text of M.R.E.

317(a):

     Wire or oral communications constitute evidence obtained as
     a result of an unlawful search or seizure within the
     meaning of Mil. R. Evid. 311 when such evidence must be


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United States v. Toy, No. 07-0316/NA


     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.

Emphasis added.   Appellant argues that the rule “incorporates”1

state law, because the clause “a statute applicable to members

of the armed forces” is not modified by the word “federal” and

therefore, by implication, reaches state statutes applicable to

members of the service in a particular locale.

     Appellant’s argument fails for several reasons.   First,

federal law rather than state law governs the admissibility of

evidence in federal courts.   The exclusive application of

federal law is expressly and implicitly provided for within the

structure of the Uniform Code of Military Justice.   Likewise,

the corresponding Military Rules of Evidence are intended to

provide a uniform standard of justice to members of the armed

forces, regardless of where they are stationed or in which armed

force they serve.

     Article 36(a), UCMJ, 10 U.S.C. § 836 (2000), for example,

delegating to the President authority to promulgate rules of

evidence, states:

     (a) Pretrial, trial and post-trial procedures, including
     modes of proof, for cases . . . triable in courts-martial .
     . . may be prescribed by the President by regulations which

1
  We use the term incorporation as Appellant does in his
arguments before this Court, without regard to any distinctions
between “incorporation” and “assimilation” that might arise in
other contexts.

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United States v. Toy, No. 07-0316/NA

     shall, so far as he considers practicable, apply the
     principles of law and the rules of evidence generally
     recognized in the trial of criminal cases in the United
     States district courts, but which may not . . . be contrary
     to or inconsistent with [the UCMJ].

Emphasis added.

     Article 36(b), UCMJ, in turn provides that “[a]ll rules and

regulations made under this article shall be uniform insofar as

practicable.”   Similarly, M.R.E. 101, which describes the scope

of the rules of evidence, provides that unless otherwise

prescribed in the Manual for Courts-Martial, courts-martial

first apply “the rules of evidence generally recognized in the

trial of criminal cases in the United States district courts,”

and secondly, “the rules of evidence at common law.”   M.R.E. 101

(b)(1)-(2).   As a result, Appellant’s reading of M.R.E. 317(a),

in theory and perhaps in practice, would subject the court-

martial system to variants in state statutory regimes.   Such a

result is inconsistent with Congress’s and the President’s

intent in establishing a uniform system of military justice as

reflected in Article 36, UCMJ, and M.R.E. 101.2

     Second, in the area of electronic surveillance, Congress

has legislated not only with respect to federal law, but with


2
  “The Rules represent a compromise between specificity, intended
to ensure stability and uniformity with the armed forces, and
generality, intended usually to allow change via case law.”
Manual for Courts-Martial, United States, Analysis of the
Military Rules of Evidence app. 22 at A22-5 (2005 ed.)
[hereinafter Drafters’ Analysis].

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United States v. Toy, No. 07-0316/NA

respect to the relationship between federal and state law.     The

statutory cascade follows.   Sections 2510-2522 of title 18 of

the U.S.C. address electronic surveillance in general, including

surveillance conducted under color of law for criminal law

enforcement purposes and surveillance not conducted under color

of law, as was the case with Mrs. Toy.   Section 2515 provides:

     Whenever any wire or oral communication has been
     intercepted, no part of the contents of such communication
     and no evidence derived therefrom may be received in
     evidence in any trial, hearing, or other proceeding in or
     before any court, grand jury, department, officer, agency,
     regulatory body, legislative committee, or other authority
     of the United States, a State, or a political subdivision
     thereof if the disclosure of that information would be in
     violation of this chapter . . . .

Section 2511(2)(d) in turn provides:

     It shall not be unlawful under this chapter for a person
     not acting under the color of law to intercept a wire,
     oral, or electronic communication where such person is a
     party to the communication or where one of the parties to
     the communication has given prior consent to such
     interception unless such communication is intercepted for
     the purpose of committing any criminal or tortuous act in
     violation of the Constitution or laws of the United States
     or of any State.

     With enactment of 18 U.S.C. §§ 2510-2522, and through

operation of the Supremacy Clause and the preemption doctrine,

Congress has defined the relationship between federal and state

law in the area of oral and wire intercepts.   See On Lee v.

United States, 343 U.S. 747, 754-55 (1952) (evidence obtained in

violation of state law not rendered inadmissible in federal

courts); see also United States v. Procter, 526 F. Supp. 1198,


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United States v. Toy, No. 07-0316/NA

1202 (D. Haw. 1981) (finding that 18 U.S.C. § 2511(2)(c)

permitted the use in federal court of wiretaps without a warrant

when one party consented, even though they violated Hawaiian

state law).3

     Finally, section (a) of M.R.E. 317 must be read in the

context of the entire rule.   See United Savings Assoc. v.

Timbers of Inwood Forest Associates, Ltd., 484 U.S. 365, 371

(1988) (stating that “[s]tatutory construction is a holistic

endeavor”).    For instance, M.R.E. 317(b) authorizes Department

of Defense personnel to proceed in accordance with 18 U.S.C. §

2516(1) when seeking an application from a federal judge to

issue an order that conforms with 18 U.S.C. § 2518.   In

addition, members of the armed forces or their agents may not

intercept wire or oral communications for law enforcement

purposes unless such interception is “authorized under

regulations issued by the Secretary of Defense” and

“is not unlawful under 18 U.S.C. § 2511.”   M.R.E. 317(c)(2)-(3).

Thus, M.R.E. 317, as a whole, is clearly intended to operate

within the congressional scheme set forth under 18 U.S.C. §§

2510-2522.


3
  Although persuasive rather binding authority, the Drafters’
Analysis to M.R.E. 317 supports this position as well: “[a]t
present, the area is governed by the Fourth Amendment,
applicable federal statute, DOD directive, and regulations
prescribed by the Service Secretaries.” Drafters’ Analysis at
A22-30.

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United States v. Toy, No. 07-0316/NA

       As a result, we conclude that Appellant is incorrect.

M.R.E. 317(a) does not directly incorporate state law.   It is

through operation of federal law that M.R.E. 317 may implicate

state law, because § 2511(2)(d) may, in context, implicate state

law.

       Appellant, having failed to prevail on this theory in the

court below, concedes here that the recordings in question are

admissible under federal law, including § 2511(2)(d).    However,

in light of the novel nature of the question presented regarding

the relationship between federal and state law, we briefly

summarize our reasons for concluding that Appellant’s concession

is well-founded.

       M.R.E. 317 applies to evidence that “must” be excluded by

“a statute applicable to members of the armed forces.”   M.R.E.

317(a).   Section 2511 is a federal statute of general

application without military exception.   As a result, to the

extent it is generally applicable, it applies as well to members

of the armed forces.   Under this section, it is not unlawful for

a person not acting under color of law to intercept a

communication if they are a party to the conversation or where

one of the parties to the conversation has given consent.

Nonetheless, in such circumstances it is unlawful, if the

communication is intercepted with the purpose of committing a

criminal or tortious act in violation of a state law.


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United States v. Toy, No. 07-0316/NA

     Appellant’s argument at trial rested on the distinction

between Hawaii’s law, which requires all parties to consent

where an intercept device is installed in “any private place”

and the one-party consent rule in federal law.   According to

Appellant, since the recording had taken place in a private home

and Mrs. Toy had not obtained Appellant’s consent, she had

violated Hawaiian law.   Since the statute provided a criminal

sanction, and Mrs. Toy’s actions were willful, she made the

recordings “with the purpose” of committing a criminal act.

However, the text of § 2511(2)(d) conclusively demonstrates that

Congress sought to limit unlawful conduct to situations where

the individual had the specific intent or purpose to violate

state law when they acted.   Otherwise the language addressing

purpose would be superfluous.   If Congress had wanted to except

criminal conduct in the absence of specific intent it could and

would have done so without the additional “purpose” language:

“unless such communication is intercepted . . . in violation of

the Constitution or laws of the United States or of any State.”

Thus, as the Court of Criminal Appeals concluded, the military

judge did not err in his application of federal law.

                             DECISION

     The decision of United States Navy-Marine Corps Court of

Criminal Appeals is affirmed.




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