                          UNITED STATES, Appellee

                                          v.

                    Andrea L. REEVES, Staff Sergeant
                        U.S. Air Force, Appellant

                                   No. 04-0145

                             Crim. App. No. 34730

       United States Court of Appeals for the Armed Forces

                          Argued October 20, 2004

                             Decided May 17, 2005


BAKER, J., delivered the opinion of the Court, in which GIERKE,
C.J., and CRAWFORD, EFFRON, and ERDMANN, JJ., joined. EFFRON,
J., filed a separate concurring opinion.

                                      Counsel


For Appellant: Frank J. Spinner, Esq. (argued); Major Terry L.
   McElyea, Major Andrew S. Williams, and Captain Antony B.
   Kolenc (on brief).

For Appellee: Major Michelle M. Lindo (argued); Colonel LeEllen
   Coacher, Lieutenant Colonel Robert V. Combs, and Major James
   K. Floyd (on brief); Lieutenant Colonel Gary F. Spencer.



Military Judge:     Steven. A. Hatfield


        THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION
United States v. Reeves, No. 04-0145/AF


     Judge BAKER delivered the opinion of the Court.

     Appellant was tried before a general court-martial composed

of officer and enlisted members.       In accordance with her pleas,

she was convicted of disobeying a general regulation (three

specifications) in violation of Article 92, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. § 892 (2000).      Appellant

contested the remaining allegations but was ultimately convicted

of two additional orders violations and obstruction of justice

in violation of Articles 92 and 134, UCMJ, 10 U.S.C. §§ 892, 934

(2000), respectively.   The adjudged sentence included a

dishonorable discharge, confinement for six years, forfeiture of

all pay and allowances, and reduction to grade E-1.      The

convening authority approved the sentence as adjudged except for

the term of confinement, which was reduced to three years.

     The specified issue before the Court requires us to resolve

whether as a matter of law, and under the circumstances of this

case, an accused may be convicted of obstruction of justice by

telling another not to speak to investigators and to seek

counsel.   The granted issue questions whether, in any event, the

evidence is legally sufficient to sustain a conviction for




                                   2
United States v. Reeves, No. 04-0145/AF


obstruction of justice.1         We answer the specified question in the

affirmative and further hold that on this record, the evidence

is legally sufficient.

                                       FACTS

         Appellant was a technical school instructor at Lackland Air

Force Base (AFB).2        In June and July of 2000, she engaged in

consensual sexual activity with four trainees in violation of

applicable lawful general regulations.            One of these trainees

was Airman Basic (AB) F.          AB F completed technical school

training in July 2000 and then reported to her first duty

station at Minot AFB.         On August 15, 2000, Appellant was

notified that the Office of Special Investigations (OSI) had



1
    SPECIFIED ISSUE

         WHETHER, AS A MATTER OF LAW, APPELLANT MAY BE FOUND GUILTY OF
         OBSTRUCTION OF JUSTICE WHERE: (1) APPELLANT HAD BEEN ENGAGED IN
         AN IMPROPER RELATIONSHIP WITH A JUNIOR ENLISTED MEMBER; (2)
         APPELLANT ADVISED THE JUNIOR ENLISTED MEMBER NOT TO SPEAK WITH
         LAW ENFORCEMENT PERSONNEL; (3) ALTHOUGH NOT ALLEGED IN THE
         SPECIFICATION, APPELLANT ALSO ADVISED THE JUNIOR ENLISTED MEMBER
         TO CONSULT WITH MILITARY DEFENSE COUNSEL; AND (4) ALTHOUGH NOT
         ALLEGED IN THE SPECIFICATION, APPELLANT SENT THE JUNIOR ENLISTED
         MEMBER $200 TO ASSIST HER WITH FINANCIAL DIFFICULTIES?

GRANTED ISSUE

         WHETHER THE EVIDENCE WAS LEGALLY SUFFICIENT TO SUPPORT A
         CONVICTION FOR OBSTRUCTION OF JUSTICE WHERE: (1) APPELLANT HAD
         BEEN ENGAGED IN AN IMPROPER RELATIONSHIP WITH A JUNIOR ENLISTED
         MEMBER; (2) APPELLANT ADVISED THE JUNIOR ENLISTED MEMBER NOT TO
         SPEAK WITH LAW ENFORCEMENT PERSONNEL; (3) ALTHOUGH NOT ALLEGED IN
         THE SPECIFICATION, APPELLANT ALSO ADVISED THE JUNIOR ENLISTED
         MEMBER TO CONSULT WITH MILITARY DEFENSE COUNSEL; AND (4) ALTHOUGH
         NOT ALLEGED IN THE SPECIFICATION, APPELLANT SENT THE JUNIOR
         ENLISTED MEMBER $200 TO ASSIST HER WITH FINANCIAL DIFFICULTIES?
2
  Between the time of the offenses and trial, the Appellant changed her last
name from Dunn to Reeves.


                                         3
United States v. Reeves, No. 04-0145/AF


identified her as a target of an investigation into

unprofessional relationships at the Lackland technical school.

Also on August 15, 2000, OSI investigators conducted their first

interview with AB F.   Appellant subsequently contacted AB F by

telephone inquiring whether AB F had talked to OSI and telling

her “not to talk to OSI, not to tell them anything.”     Appellant

also told AB F that she needed to contact the area defense

counsel.   AB F replied that she had spoken with OSI, but that

she “hadn’t told them anything.”       Thereafter, AB F testified

that Appellant called her “[p]retty frequently” at home and “a

few times at work.”    According to AB F, the substance of these

phone calls was similar to the first August call, again advising

AB F not to talk to OSI and inquiring whether she had gone to

see the area defense counsel.

     During one of these conversations, AB F mentioned that she

was experiencing financial difficulty.     Shortly thereafter, the

Appellant deposited $200 in AB F’s bank account.     Although AB F

considered this deposit a gift, a few weeks later Appellant

asked that AB F return the money.      After initially saying that

she would do so, AB F finally informed Appellant that she would

not make repayment and directed Appellant not to contact her

further.




                                   4
United States v. Reeves, No. 04-0145/AF


                    OBSTRUCTION AS A MATTER OF LAW

     We begin with consideration of the specified question,

whether as a matter of law, Appellant may be convicted of

obstruction of justice under the circumstances of this case.

The elements of obstruction of justice are:

     (1) That the accused wrongfully did a certain act;

     (2) That the accused did so in the case of a certain
     person against whom the accused had reason to believe
     there were or would be criminal proceedings pending;

     (3) That the act was done with the intent to
     influence, impede, or otherwise obstruct the due
     administration of justice; and

     (4) That, under the circumstances, the conduct of the
     accused was to the prejudice of good order and
     discipline in the armed forces or was of a nature to
     bring discredit upon the armed forces.

Manual for Courts-Martial, United States (2002 ed.), pt. IV,

para. 96.b.

     The crux of Appellant’s argument is that an accused who

advises a witness to invoke her constitutional privilege against

self-incrimination or to exercise her right to seek counsel by

definition is not engaged in a wrongful act, therefore failing

to satisfy the first element of the offense, and thus cannot be

convicted of obstruction.

     The constitutional privilege against self-incrimination and

the right to counsel are rights bestowed every witness.   United

States v. Cole, 329 F.2d 437, 439-40 (9th Cir.), cert. denied,



                                5
United States v. Reeves, No. 04-0145/AF


377 U.S. 954 (1964).   Thus, we generally agree with Appellant’s

assertion that the administration of justice is not criminally

obstructed by a witness exercising these rights.   It is

Appellant’s conduct as an advisor and not that of a putative

witness that is at issue in this case, however.    Without more, a

person’s advice to another to invoke certain rights, where the

advice given is honest and uncorrupt, should not as a matter of

law sustain a conviction.   However, that does not mean, as a

matter of law, that reference to advice as “constitutional,”

precludes consideration as to whether that advice was indeed

constitutional in nature, uncorrupt, and thus protected conduct

for the purposes of obstruction under Article 134.

     Whether an accused’s conduct was wrongful will turn on

contextual factors presenting questions of fact for the members,

including, among other things, the actor’s tone and manner of

delivery.   As the court in Cole stated, “[i]t is the witness’

privilege which our inspired Constitution protects and which any

person in our courts may invoke . . . not someone else’s

privilege to capture by force or threat or bribe.”   Id. at 440.

In those instances where the advice given is honest, uncorrupt,

and disinterested, we agree that giving such advice is not

wrongful.   Id.   But one who advises, with a corrupt motive, that

a witness exercise a constitutional right or privilege may

obstruct the administration of justice.   Id. at 443.   “The


                                  6
United States v. Reeves, No. 04-0145/AF


lawful behavior of the person invoking the [right] cannot be

used to protect the criminal behavior of the inducer.”   United

States v. Cioffi, 493 F.2d 1111, 1119 (2d Cir. 1974).    This is

the analytic approach taken by a majority of the federal

circuits.   See, e.g., United States v. Peterson, 385 F.3d 127,

142 (2d Cir. 2004); United States v. Cintolo, 818 F.2d 980, 992-

93 (1st Cir. 1987); United States v. McComb, 744 F.2d 555, 563

(7th Cir. 1984); United States v. Baker, 611 F.2d 964, 967-68

(4th Cir. 1979).   But see United States v. Farrell, 126 F.3d

484, 487-89 (3d Cir. 1997) (reversing obstruction conviction

where appellant had, without coercion, attempted to persuade

coconspirator to refrain from volunteering information to

investigators).    We agree with the reasoning of the majority of

the federal circuits and adopt it for the purposes of reviewing

the application of Article 134 to the facts of Appellant’s case.

Therefore, we answer the specified question in the affirmative.

     In doing so, however, we need not define the limits of this

constitutional framework, nor do we need to consider the

relationship between this Court’s decisions and that of the

service court in United States v. Asfeld, 30 M.J. 917 (A. Ct.

Crim. App. 1990) (finding that accused’s request that the victim

of his indecent language offense not report him was not wrongful

because victim has no duty to report such an offense).   The

facts of this case indicate that Appellant was not, among other


                                  7
United States v. Reeves, No. 04-0145/AF


things, a disinterested party.   She was aware of the

investigation into her conduct and that AB F was a potential

witness in that investigation.   Moreover, for the reasons stated

below, the nature and manner of her “advice” takes Appellant’s

statements to AB F outside the zone of constitutional

protection.

                         LEGAL SUFFICIENCY

     Appellant contends that the evidence is legally

insufficient to sustain her conviction for obstruction under

Article 134.   This claim requires us to determine “whether,

considering the evidence in the light most favorable to the

prosecution, a reasonable factfinder could have found all the

essential elements [of the crime] beyond a reasonable doubt.”

United States v. Turner, 25 M.J. 324, 324 (C.M.A. 1987).   We are

bound to draw every reasonable inference from the evidence of

record in favor of the prosecution in resolving questions of

legal sufficiency.   United States v. Rogers, 54 M.J. 244, 246

(C.A.A.F. 2000); United States v. Blocker, 32 M.J. 281, 284

(C.M.A. 1991).

     Appellant challenges the sufficiency of the evidence as it

pertains to the wrongfulness of her acts and her intent.

Specifically, she maintains that “[i]t should not be ‘wrongful,’

as a matter of law, for an accused to ask a witness to do what

the witness can lawfully do anyway.”   And, according to


                                 8
United States v. Reeves, No. 04-0145/AF


Appellant, “[t]he evidence was legally insufficient to infer

that [Appellant] had a ‘sinister purpose’ or subjective intent

to impede the due administration of justice.”

     We have addressed Appellant’s first contention in our

discussion above.   A wrongful act is one done without legal

justification or with some sinister purpose.    United States v.

Barner, 56 M.J. 131, 136 (C.A.A.F. 2001).    Advising a witness to

exercise certain constitutional rights and privileges may be

wrongful if accompanied by a corrupt motive to influence,

impede, or otherwise obstruct the due administration of justice.

     With respect to Appellant’s second contention, the record

indicates that shortly after being apprised that she was under

investigation for her conduct with AB F, Appellant began calling

AB F at her workplace and at her home.    According to AB F,

Appellant’s statements during these calls were to the effect

that, “[AB F] needed to go see the area defense [counsel], and

not to talk to OSI, not to tell them anything.”   Furthermore, AB

F characterized these calls as frequent.

     Appellant argues that her conduct in this respect “was no

different than the advice a first sergeant, supervisor or friend

would give to a military member under investigation.”   The

court-martial members could rationally have concluded otherwise,

however.   Even if one accepts for the sake of argument that

telling a witness not to speak to investigators is tantamount to


                                 9
United States v. Reeves, No. 04-0145/AF


advising a witness of his or her right to silence, the tone,

frequency, and background of Appellant’s calls raised legitimate

questions of fact for the members regarding the wrongfulness and

intent of the calls.   In contrast to Appellant’s hypothetical

first sergeant, who provides advice to a servicemember under

investigation, Appellant was not a disinterested party.

Appellant was free to argue to the members that she was

advancing the welfare of a subordinate.   We conclude, however,

that a rational trier of fact might also have found beyond a

reasonable doubt that Appellant’s statements under the

circumstances of this case were wrongful and indicative of an

intent to dissuade AB F from cooperating with the recently

initiated investigation.

     The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




                                10
United States v. Reeves, No. 04-0145/AF



     EFFRON, Judge (concurring):

     I write separately to address several matters implicit in

the majority opinion.

     A conviction for obstruction of justice under Article 134,

Uniform Code of Military Justice, 10 U.S.C. § 934 (2000),

requires a showing that an accused wrongfully did a certain act.

Whether or not an act was wrongful is not dependent solely on

the accused’s interest in the pending investigation or criminal

proceeding.   Article 134 does not permit the conviction of an

interested party who has given honest and uncorrupt advice;

likewise, Article 134 does not require proof that a person who

gave dishonest and corrupt advice also was an interested party

with respect to an investigation or litigation.   Whether a

person’s advice was wrongful is dependent on contextual factors,

including, but not limited to, the nature of the person’s

interest in the subject of the inquiry or proceeding, the

circumstances of the conversation, and the person’s tone and

manner of delivery, which are all questions of fact for the

members to decide.

     Appellant, who claims that the evidence was insufficient as

a matter of law, likens her admonitions to the advice a “first

sergeant, supervisor, or friend would give to a military member

under investigation.”   This comparison is unpersuasive.   In
United States v. Reeves, No. 04-0145/AF


contrast to the hypothetical circumstances suggested by

Appellant, a rational trier of fact could find that the

circumstances of the present case demonstrate that the advice

provided by Appellant was dishonest and corrupt.   Appellant was

an accomplice who was aware of the progress of the investigation

into her own conduct.   She had no personal relationship with

Airman Basic (AB) F beyond a one-time sexual encounter, and did

not contact AB F from the time of the sexual encounter until

after the investigation commenced.   At that point, she began

calling frequently to give unsolicited advice.   She knew that AB

F was a potential witness to the investigation, and she

deposited $200 into AB F’s bank account.   In light of these

combined circumstances, a rational trier of fact could find

beyond a reasonable doubt that Appellant’s statements were

wrongful.




                                 2
