

   
   
   
   U.S. v. Wright



United States, Appellee
v.
Bryan R. WRIGHT, Lance Corporal
U.S. Marine Corps, Appellant
 
No. 98-0873
Crim. App. No. 97-0662
 
United States Court of Appeals for the Armed
Forces
Argued May 11, 1999
Decided September 30, 1999
CRAWFORD, J., delivered the opinion of the
Court, in which COX, C.J., and SULLIVAN, GIERKE, and EFFRON, JJ., joined.

Counsel
For Appellant: Lieutenant John D. Holden,
JAGC, USNR (argued).
For Appellee: Lieutenant James E. Grimes,
JAGC, USNR (argued);
Colonel Kevin M. Sandkuhler, USMC,
and Commander Eugene E. Irvin, JAGC, USN (on brief); Commander
D.H. Myers JAGC, USN.
Military Judges: R.G. Sokoloski and P.J. McLain
 

THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.

Judge CRAWFORD delivered the opinion of the
Court.
Contrary to his pleas, appellant was convicted
by officer and enlisted members of violating a lawful general order, larceny,
and forgery (3 specifications), in violation of Articles 92, 121, and 123,
Uniform Code of Military Justice, 10 USC §§ 892, 921, and 923,
respectively. The convening authority approved the sentence of a bad-conduct
discharge, 30 days confinement, partial forfeitures, and reduction to
the lowest enlisted grade. The Court of Criminal Appeals affirmed the findings
and sentence in an unpublished opinion. We granted review of the following
issues:



I
WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION
BY NOT RECUSING HIMSELF WHERE HE HAD PREVIOUSLY DEVELOPED A CLOSE WORKING
RELATIONSHIP WITH A KEY GOVERNMENT WITNESS AND ALREADY FORMED AN OPINION
AS TO THAT WITNESS HONESTY AND TRUTHFULNESS.

II
WHETHER THE MILITARY JUDGE ERRED IN DENYING
APPELLANTS MOTION TO SUPPRESS EVIDENCE SEIZED DURING AN IMPROPER SEARCH
OF APPELLANTS ROOM.

III
WHETHER THE MILITARY JUDGE ERRED IN DENYING
APPELLANTS MOTION TO SUPPRESS HIS STATEMENT TO NCIS UNDER THE "FRUIT OF
THE POISONOUS TREE" DOCTRINE, WHERE THE STATEMENT WAS THE DIRECT RESULT
OF AN IMPROPER SEARCH OF APPELLANTS ROOM.


For the reasons set forth below, we affirm the
decision of the Court of Criminal Appeals.

FACTS
The military judge announced for the record
that he had been "closely associated" with Naval Criminal Investigative
Service (NCIS) Agent G. Gregory Munroe, whom the military judge conceded
was "an important witness" on the motion to suppress. Before litigating
the motion, the military judge detailed his relationship with Agent Munroe,
as follows:


[I] know Special Agent Munroe because I was
stationed at the Naval Legal Service Office, Northwest Pacific, in Yokosuka,
Y-O-K-O-S-U-K-A, Japan. From the summer of 1993 to the spring of 1996,
Special Agent Munroe served out of a satellite office, the main office
being Yokosuka, Japan. His satellite office being in Yokohama, Japan. I
was the senior trial counsel at the Naval Legal Service Office Northwest
Pacific.
I worked a number of cases with him including
a major child sexual molestation case [in] which we did a lot of work together.
I think those are the relevant facts. As far as opinions of Special Agent
Munroe, having worked with him over those three years, I came to the opinion
that he was an honest and trustworthy person, and he was a very competent
NCIS agent.


Upon questioning by defense counsel, the military
judge stated that he had a "high opinion" of Agent Munroes "honesty" and
"trustworthiness." Asked if that opinion would affect his potential rulings,
the military judge responded at some length in these words:


Ill give you this answer and see if this
helps. Anybody who serves in the United States Marine Corps as well as
anybody who serves in the Naval Criminal Investigative Service who comes
to testify here today will immediately, by me, be given a certain amount
of credence because I believe both organizations by the nature of the way
that they go about selecting the people that serve with them, whether it
be the Marine Corps or whether it be the Naval Criminal Investigative Service,
tend to weed out dishonest and untrustworthy people. I guess by virtue
of a person serving in the Marine Corps or by virtue of a person serving
in the Naval Criminal Investigative Service, I would tend to believe what
they had to say until what they had to say was controverted by evidence
or otherwise.
Now, if what Special Agent Munroe has to say
contradicts with [sic] someone else, I'm going to compare the way they
give their testimony, the credibility of what they have to say, their demeanor
in court, and all of that. So, I dont think, as far as who youre telling
me is going to testify here today, anybody has any leg up with me on credibility
because as I understand it, the people coming here to testify today, including
the accused, either belong in the Marine Corps or the Naval Criminal Investigative
Service.
I will also tell you that I suppose there are
certain people by virtue of their occupation that may cause me to be skeptical
about their trustworthiness before they even speak, but I cant think of
any occupation off the top of my head. I would tend to believe that people
want to be trustworthy and want to take the oath of this court seriously.
So, in general, in hearing witnesses, my standard
as a judge is that the person is being trustworthy until they demonstrate
otherwise by their own testimony or the evidence that either counsel brings
up tends to show that they are not being trustworthy. So, I guess Special
Agent Munroe, even if I didnt know him, if he were to [sic] walk into
this court-martial with -- like all witnesses, with me believing that they
are going to be truthful with all of their answers.
I just mention the fact that I have had this
contact with him because I think I need to. But I dont think it gives
him a leg up with me as far as whether or not Im going to believe him
anymore than the other NIS [sic] agent or with the accused since I understand
those are going to be our three witnesses.

* * *
[Knowledge of Agent Munroes performance would
not serve as a "backdrop to the way [I] evaluate his testimony."] Because
that would be contrary to my duty as a military judge. Just as when --
to give you an example, when I hear a urinalysis case, by and large I leave
out of the courtroom my exposure to the mechanics of the urinalysis process
and rely upon the information given to me by the counsel in making the
decision, be it a motion or be it the merits of a charge. The same way
with a person who comes into this courtroom. Im going to base my decision
on what I hear in the courtroom and what you all as counsel present to
me, and I am going to do what Ive been instructed to do as a judge and
that is to leave such experiences outside the courtroom.

* * *
[I] believe this particular [sexual molestation]
case was the one in which he was the agent who came aboard the aircraft
carrier USS Independence and took the first statement from the accused,
and that was a pretty important statement to cracking the case. I believe
then we would see each other on a case about once every two months. In
other words, out of every two months may be one case, if I was prosecuting,
he would be involved in it. So, thats about as frequently as I would see
him, though, I would probably see him sometimes when he was working a case
that was being handled by a prosecutor working for me since I was the head
prosecutor.


In response to a final question from defense counsel,
the military judge agreed that when he worked with Agent Munroe, the military
judge "had to depend upon [Agent Munroes] credibility and his skill as
an agent in prosecuting cases."
Defense counsel asked that the judge excuse
himself in light of his relationship with Agent Munroe. Defense counsel
noted that "an outside person looking in could reasonably infer or question
[the military judges] partiality." The military judge denied this challenge,
and again he went to some lengths in explaining his reasoning:


[I] will state for the record that I think
the military justice system anticipates, as a small community as we are,
that were going to know witnesses and members within our community. And
I think that most of the courts that we prosecute, we have had some sort
of outside contact with witnesses and members.
I think the key thing is whether or not Im
able to put aside my professional relationship with Special Agent Munroe,
and I can, and make a decision on this motion. I will not hesitate to make
a finding that will question the veracity of his testimony if I find that
the facts fall out. I will not consider anything that I know of him professionally
as a prosecutor in making a decision. Furthermore, I will add that since
it did not come out in our discussion that I have had no social relationship
with Special Agent Munroe and I -- the only thing I know about him are
those times when weve had contact with each other where his business has
crossed paths with mine.


This issue must be viewed in light of the judge's
action in ruling on appellant's motion to suppress the evidence obtained
as a result of a consent search. Appellant claims his consent was involuntary
in that it was coerced by threats to obtain a search authorization and
search the room anyway. In light of the Governments enhanced burden on
the issue of consent, appellant asserts that his consent was not shown
to be voluntary by clear and convincing evidence. Mil.R.Evid. 314(e)(5),
Manual for Courts-Martial, United States (1998 edition).1
To meet its burden, the Government first presented
the testimony of two NCIS agents, G. Gregory Munroe and David L. Sanders.
Both responded to appellants barracks building to
investigate a report that stolen checks were
being written out for the pizza delivery man. The delivery man, himself
a Marine, identified two individuals as suspects, appellant and Lance Corporal
Francisco. During an interview, Francisco said he ordered the pizza and
paid for it with a check given to him by appellant. At 0220 hours, appellant
was read his rights and waived them. Agent Munroe followed his standard
practice, which is to read the suspect each right and ask him for a verbal
response if he understands it. If he says he does, Agent Munroe has the
suspect initial it on the rights' warnings form. After admitting that he
understood all his rights and initialing the form, appellant did not want
a lawyer and was willing to talk to Agent Munroe. Approximately 20 minutes
later appellant executed a consent to search his barracks room. Before
executing the consent to search, Agent Munroe had appellant read the form
to himself and then verbally reaffirmed appellants rights. When he was
finished reading the consent-to-search form, Munroe asked appellant if
he understood it and if he still consented to the search. He told appellant
what the form was; what he would be looking for; that appellant did "not
have to consent to a search"; that it was appellants "prerogative" to
grant or deny consent; and that appellant had the "right to refuse" to
consent. The form which appellant read states, "I have been informed of
my constitutional right to refuse to permit this search in the absence
of a search warrant. In full understanding of this right, I have nevertheless
decided to permit this search to be made." Appellant signed the consent-to-search
form.
Additionally, appellant agreed that Agent Munroe
may "remove and retain any property or papers found during the search...."
Appellant also agreed that his decision to authorize the search was made
"freely and voluntarily and it is made with no threats having been made
or promises extended to me." Agent Munroe testified that he did not tell
appellant what would happen if he refused to consent, and he does not remember
appellant asking about that. However, if appellant had asked, "we tell
them if he refuses a search, we do have a right to apply for a search warrant.
It doesnt mean were going to get one or not, but we can apply for one."
According to Agent Munroe, if any questions are asked or problems arise,
they are documented and reported. There was no documentation or report
in this case.
Appellant testified "for the limited purpose
of this motion." Appellant testified that Agent Munroe asked for consent
to search and that Agent Munroe said if appellant did not consent, "he
would come back with a search warrant." Appellant claimed to have signed
the consent form because "[t]he search was going to happen either way....
[Agent Munroe] said it would be better on [him] to go the easy way and
just sign it." Appellant testified that he did not "believe" he read the
consent-to-search form because he knew what it was. He acknowledged being
told he "could refuse to let him search the room."
The military judge denied the motion to suppress
the fruits of the search of appellants room. After finding that appellant
had "voluntarily waived" his Article 31, UCMJ, 10 USC § 831, rights,
the military judge made the following findings:


[T]he accused was asked to give a voluntary
consent to search of his living spaces there at the barracks. The accused
was permitted to read the consent form and did so. The evidence is very
equivocal about whether or not the subject of what the agents would do
if the accused refused to give consent [came up], but the most consistent
and logical evidence received by this court and what this court makes a
finding of is that if the subject came up or that [sic] the accused was
informed is that if the accused did not give consent that the agents would
thereby seek to get a warrant to search his quarters and that such an effort
would depend upon an authority who had control over the barracks. The court
found no coercion or threats in obtaining this voluntary waiver of his
Article 31(b) rights or his voluntary waiver to the consent search form.
Therefore, looking at those circumstances,
the court concludes that the special agents got free and unconstrained
consent from the accused to search his living spaces.


DISCUSSION
a. Disqualification of Judge
An accused has a constitutional right to an
impartial judge. Ward v. Village of Monroeville, 409 U.S. 57 (1972);
Tumey v. Ohio, 273 U.S. 510 (1927). RCM 902(a), Manual, supra,
states that "a military judge shall disqualify himself or herself in any
proceeding in which that military judges impartiality might reasonably
be questioned." The military judge is cautioned to "broadly construe" the
possible grounds for challenge, but he or she should not leave a given
case "unnecessarily." RCM 902(d)(1), Discussion.
Likewise, Canon 3E(1) of the ABA Model Code
of Judicial Conduct (1990) provides: "A judge shall disqualify himself
or herself in a proceeding in which the judges impartiality might reasonably
be questioned...." RCM 902(a) also has language virtually identical to
that found in 28 USC § 455(a), which calls for Federal judges, magistrates,
and justices to disqualify themselves "in any proceeding in which [their]
impartiality might reasonably be questioned." The exhortation of the statute
is designed to foster the appearance of justice within the judicial system.
See Parker v. Connors Steel Co., 855 F.2d 1510, 1523 (11th
Cir. 1988), cert. denied, 490 U.S. 1066 (1989).
RCM 902(b) lists five specific grounds requiring
disqualification, including "personal bias or prejudice" (b)(1); or when
the judge is related "within the third degree" to "a party to the proceeding"
(b)(5)(A) or an individual who is "likely to be a material witness" (5)(C).
The Manual rule, the Canon, and the Federal statute are viewed objectively
where no actual bias or prejudice is shown. Edelstein v. Wilentz,
812 F.2d 128, 131 (3d Cir. 1987); see Gray v. University of Arkansas
at Fayetteville, 883 F.2d 1394, 1397 (8th Cir. 1989). RCM
902(a) is assessed not in the mind of the military judge himself, but "rather
in the mind of a reasonable man . . . who has knowledge of 'all the facts.'"
United States v. Sherrod, 22 MJ 917, 920 (ACMR 1986), quoting United
States v. Martinez, 19 MJ 652, 654 (ACMR 1984), pet. denied,
21 MJ 27 (1985), Sherrod revd on other grounds,
26 MJ 30 (CMA 1988). Nevertheless, despite an objective standard, the judges
statements concerning his intentions and the matters upon which he will
rely are not irrelevant to the inquiry. See United States v.
Campos, 42 MJ 253 (1995); Jackson v. Fort Stanton Hospital and Training
School, 757 F.Supp. 1231 (D.N.M. 1990), rev'd in part on other grounds,
964 F.2d 980 (10th Cir. 1992).
A military judges decision on disqualification
is reviewed for abuse of discretion. United States v. Elzy, 25 MJ
416, 417 (CMA 1988); United States v. Davis, 27 MJ 543, 545 (ACMR
1988), pet. denied, 28 MJ 155 (1989). There is no peremptory challenge
against a military judge. Art. 41(b)(1), UCMJ, 10 USC § 841(b)(1).
The motion to disqualify a military judge may
be made by a party or by the judge sua sponte. RCM 902(d)(1).
Once made, it is the judge who decides this issue of law. RCM 801(a)(4)
and (e)(1)(A).
To determine if there is a "possible ground
for disqualification," each party is "permitted to question" the judge.
RCM 902(d)(2). "When not flowing from an extrajudicial source, bias or
prejudice will not necessitate disqualification unless it is so egregious
as to destroy all semblance of fairness." J. Shaman, S. Lubet, & J.
Alfini, Judicial Conduct and Ethics §4.05 at 102 (2d ed. 1995).
Where association with a witness is concerned, a social relationship creates
special concerns which a professional relationship does not.
Judges have broad experiences and a wide array
of backgrounds that are likely to develop ties with other attorneys, law
firms, and agencies. These relationships may be professional or social.
Where such concerns arise regarding court members, a former professional
relationship is not per se disqualifying. United States
v. Ai, 49 MJ 1, 5 (1998)("prior work relationship" not disqualifying
when there is "no evidence that the challenged member would 'naturally'
favor or believe" a particular witness testimony); United States v.
Napoleon, 46 MJ 279, 283 (professional relationship "not per
se disqualifying"), cert. denied, 522 U.S. 953 (1997); United
States v. Hamilton, 41 MJ 22, 25 (CMA 1994)(no abuse of discretion
to deny challenge against three members who had received legal assistance
from assistant trial counsel), cert. denied, 513 U.S. 1084 (1995).

b. Validity of Consent
In determining whether a consent to search
is voluntary, we look at "the totality of all the circumstances." Schneckloth
v. Bustamonte, 412 U.S. 218, 227 (1973). In Bumper v. North Carolina,
391 U.S. 543, 548 (1968), the Supreme Court held that the consent was not
voluntary where the police claimed to already have a search warrant. However,
in United States v. James, 40 F.3d 850, 876 (1994), the Seventh
Circuit upheld the consent by co-defendant Ferguson where the officer threatened
to "request" a warrant but had "a sufficient basis for seeking a warrant."
In fact, the majority of courts hold consent to be voluntary where the
police tell the suspect that if he does not consent, they will "obtain"
or "seek" a search warrant, provided probable cause for a warrant actually
exists. See, e.g., United States v. White, 979 F.2d
539, 542 (7th Cir. 1992); United States v. Talkington,
843 F.2d 1041, 1049 (7th Cir. 1988); United States v. Calvente,
722 F.2d 1019, 1023 (2d Cir. 1983), cert. denied,
471 U.S. 1021 (1985). The statement, "seek a warrant," is not coercion
in and of itself: it is not a dispositive circumstance in the inquiry.
Thus, a valid consent may be obtained even after such a statement. Telling
defendant's grandmother in Bumper that they had a warrant was thought
to be ripe with coercion, but there is a significant difference between
falsely claiming that one has a warrant and responding to a suspect that
one would seek a warrant. Such latter statement would not foreclose a finding
of voluntary consent. In fact, such a statement by the police would be
an accurate response to the suspects question.

c. Conclusions
Even assuming Agent Munroe told appellant that
if he refused to consent, he would get a search warrant, under the facts
of this case, that would not undermine appellants consent. Appellant had
been fully advised that he had the right to refuse to give consent and
he waived that right.
Appellants motion did not pit the testimony
of appellant against that of Agent Munroe. Further, while the judge initially
indicated that Agent Munroe was "an honest and trustworthy person," he
tempered this remark later when responding to questions. He said that he
gives all Marine Corps members "a certain amount of credence ... until
what they had to say was controverted by evidence or otherwise." He didn't
think Agent Munroe "has any leg up" on the other witnesses. He indicated
that he would base his decision on credibility "on what I hear in the courtroom."
Although the military judge could have expressed
himself more lucidly, he correctly applied an objective standard in his
ruling on the motion to recuse. The military judge stated that "the military
justice system anticipates, as a small community as we are, that we are
going to know witnesses and members within our community." This statement
reflects the military judge's concern for the perception of the military
community, and, as such, indicates he applied an objective standard.
The military judge's statement that he could
put aside his professional relationship with the witness indicates he also
made a subjective analysis, but his subjective analysis is a relevant factor
in the application of an objective standard. The military judge's full
disclosure, sensitivity to public perceptions, and sound analysis objectively
supported his decision not to recuse himself, and these factors contribute
to a perception of fairness. Under these circumstances, taking into account
the judge's past relationship with the witnesses and his responses during
the voir dire, we are satisfied that the judge's impartiality
could not reasonably be questioned.
Additionally, the rights' advisement was very
extensive in this case, with appellant initialing each right as he was
advised. Appellant signed the consent-to-search form after he read it.
This form clearly set forth his right to refuse to permit a search of his
belongings absent a search warrant, and Agent Munroe verbally reinforced
this. These factors indicate that regardless of whose testimony is found
to be more credible, there was voluntary consent. Agent Munroes testimony
is supported by Agent Sanders testimony concerning the voluntariness of
consent and standard procedures for obtaining it. If there was a difference
between the testimony of the two agents, that could have been brought out
by counsel at trial. It was not, thus supporting the judges findings on
the motion to suppress.
Therefore, the military judge was not required
to remove himself from this case, and the judge did not err in denying
the motion to suppress the results of the search.2
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is affirmed.
FOOTNOTES:
1 The 1998 version
of this provision is the same as the version applicable at trial, unless
the contrary appears.
2
This moots Issue III.

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