                          UNITED STATES, Appellee

                                        v.

                  Robert W. PINSON III, Senior Airman
                       U.S. Air Force, Appellant

                                  No. 01-0466

                            Crim. App. No. 32963

       United States Court of Appeals for the Armed Forces

                       Argued October 25, 2001

                       Decided June 19, 2002

     CRAWFORD, C.J., delivered the opinion of the Court, in
which GIERKE, EFFRON, and BAKER, JJ., joined. SULLIVAN, S.J.,
filed an opinion concurring in the result.

                                    Counsel

For Appellant: Lieutenant Colonel Timothy W. Murphy (argued);
Lieutenant Colonel Beverly B. Knott (on brief); Colonel James
R. Wise.

For Appellee: Captain Adam Oler (argued); Colonel
Anthony P. Dattilo and Major Lance B. Sigmon (on brief).

Military Judge:     J. Jeremiah Mahoney



     THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Pinson, No. 01-0466/AF


     Chief Judge CRAWFORD delivered the opinion of the Court.

     Contrary to his pleas, appellant was convicted at a general

court-martial by military judge alone of disobeying a no-contact

order (one specification), assault (two specifications),

subordination of perjury at a prior trial (one specification),

and communicating threats (three specifications), in violation

of Articles 92, 128, and 134, Uniform Code of Military Justice

(UCMJ), 10 USC §§ 892, 928, and 934.   He was also found guilty,

pursuant to his pleas, of adultery, in violation of Article 134.

The convening authority approved the sentence of a bad-conduct

discharge, three years’ confinement, and reduction to the lowest

enlisted grade.   The Court of Criminal Appeals affirmed the

findings and sentence.   54 MJ 692 (2001).

     Appellant raises two issues on appeal before this Court:

                                I.

          WHETHER THE MILITARY JUDGE ERRED IN DENYING A
          DEFENSE MOTION FOR APPROPRIATE RELIEF AFTER THE
          GOVERNMENT SEIZED AND REVIEWED ATTORNEY/CLIENT
          PRIVILEGED MATERIAL AND THAT MATERIAL WAS
          SUBSEQUENTLY USED IN THE INVESTIGATION OF
          APPELLANT.

                                II.

          WHETHER THE MILITARY JUDGE ERRED IN FAILING TO
          SUPPRESS APPELLANT’S PRETRIAL STATEMENTS TO
          ICELANDIC AUTHORITIES TAKEN DURING A JOINT
          INVESTIGATION, IN VIOLATION OF HIS FOURTH
          AMENDMENT AND ARTICLE 31, UCMJ, RIGHTS, AND
          BECAUSE THE STATEMENTS WERE INVOLUNTARY.




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United States v. Pinson, No. 01-0466/AF


For the reasons set forth herein, we resolve both issues

against appellant and affirm.

                       FACTS – ISSUE I

     At appellant’s first trial in February 1996, Helga Kristen

Helgadottir, the victim, perjured herself by testifying that her

earlier accusations concerning appellant’s assault and property

damage were false, and that the property in question belonged to

appellant, not herself.   On April 1, 1996, the victim told the

civilian police that appellant had procured her perjured

testimony by beating and threatening her.    To support her

allegation, she provided several letters from appellant that

included the alleged threats.

     Based on this complaint, both the Icelandic police (IP) and

the Naval Criminal Investigative Service (NCIS) opened separate

investigations.   NCIS agents Lockart and Green, and Master

Sergeant DeRoy from the Provost Marshal’s Office, obtained an

authorization to search appellant’s quarters.    “An Icelandic

investigator [Superintendant Björn Bjarnasson] was present when

the NCIS searched the appellant’s quarters, but only as an

observer.”   54 MJ at 697.   This search resulted in the seizure

of several notebooks containing appellant’s writings and

comments about the victim.    It is a portion of these seized

materials that is alleged to be the attorney-client privileged

material.


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United States v. Pinson, No. 01-0466/AF


     As found by the military judge and affirmed by the Court of

Criminal Appeals, “[n]o privileged document was used as direct

evidence in the appellant’s court-martial.”   Id. at 696.    In

particular, the military judge found that the documents and

appellant’s writings were properly seized by NCIS agents, who were

investigating appellant for subornation of perjury at his first

court-martial.   The documents were temporarily given to the

Icelandic police for their use in pursuing separate charges

involving threats and assaults by appellant on Ms. Helgadottir.

None of the investigators recognized any of the documents or

writings as potentially privileged instruments.

     Prior to their discovery by a trial counsel, Captain Floyd,

on April 26, 1997, over a year after their seizure, none of the

documents had ever been positively identified as privileged

communications by anyone.   Although both American and Icelandic

investigators looked at the seized material, only one, IP

Superintendent Bjarnasson, read the papers for content.     Mr.

Bjarnasson did not find any information to be helpful in his

investigation.   Accordingly, except as noted below, none of the

documents were in any way used to advance either the Air Force’s

or IP’s investigation against appellant.

     The judge examined all of the exhibits, and they were

subsequently marked either “P” for privileged or “NP” for non-

privileged.   Appellant puts in issue six exemplars, identified


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United States v. Pinson, No. 01-0466/AF


as “six sides of four [spiral notebook] pages, identified as

NP67, NP68, NP70, NP74, P27 and P28,” that were seized and

submitted for comparison as known handwriting exemplars.             The

exhibits NP67, NP68, NP70, and NP74 were found to be part of

appellant’s clemency package after his first trial.            Thus, there

was no privilege.     Counsel also stipulated that these documents

were not privileged.      Therefore, this case revolves around two

documents, P27 and P28.       The defense contends that the mere

comparison of P27 and P28 to other exemplars resulted in the

disclosure of privileged information, violating appellant’s

Sixth Amendment rights.       Citing Weatherford v. Bursey, 429 U.S.

545, 554 (1977), appellant continues that when there is an

intentional government intrusion, the evidence obtained may not

be used directly or indirectly.        See also Mil.R.Evid. 502(b)(4),

Manual for Courts-Martial, United States (2000 ed.).1

      There is no finding by either the military judge or the Court

of Criminal Appeals that the questioned documents were examined

for any purpose other than to identify appellant’s handwriting.

More importantly, the military judge found

            that to the extent P27 and P28 might at one time
            [have] been protected by M.R.E. 502, their contents
            have been fully disclosed in communications to
            others, including those communications in
            [Appellate Exhibit (App Ex)] XXV [Memorandum for
            Convening Authority (8 AF/CC) dated Mar. 18, 1996],
            App Ex XXVII [Congressional Complaint dated Nov.
            16, 1996], and App Ex XXVIII [Memorandum for 85th

1
  All Manual provisions are identical to the ones in effect at the time of
appellant’s court-martial.
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United States v. Pinson, No. 01-0466/AF


           Group Inspector General dated July 5, 1996].
           Moreover, none of the material contained in P27 and
           P28 was susceptible to being used directly or
           indirectly against the accused on the charges in
           this case. Moreover, the questioned documents
           examiner testified that those items were not
           necessary for his conclusion, and disregarding them
           would not affect the certitude of his opinion.
           Finally, the court rules as a matter of law that
           mere comparison of the physical appearance of the
           accused’s lawfully seized handwriting is not -- in
           this case -- within the protection of the attorney
           client privilege.

However, to ensure that there was no taint, Major Thompson,

Special Trial Counsel, represented the Government on the

issue of the privileged information.    Appellant concedes that

there was no privileged evidence used directly against him at

trial.   Appellant contends, however, that documents P27 and

P28 were privileged and that these documents were indirectly

produced at trial.   The claim of indirect production is based

upon appellant’s suggestion that these documents may have

been discussed between two IP officers, and that these

documents were used in a handwriting analysis.    In that

context, according to appellant, the military judge’s finding

that there was “no use of the material” is clearly erroneous.

Appellant also argues that since Captain Altschuler, a trial

counsel at his first court-martial, examined some of the

privileged documents in June 1996, the military judge’s

findings were also clearly erroneous.




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United States v. Pinson, No. 01-0466/AF


     The court below and the military judge found that the

seizure of any privileged documents by the Government was

pursuant to a lawful search and seizure, there was no

intentional seizure of privileged communications, and the

information was not used to the detriment of appellant.

                      DISCUSSION - ISSUE I

               This is not a case of dual roles being
          performed by defense counsel or outrageous
          conduct by the Government. Both Congress ...
          and this Court have gone to great pains to
          ensure to servicemembers the right to counsel.
          This right to a lawyer appointed free of charge
          ... applies at the pretrial stage, see, e.g.,
          Mil.R.Evid. 305(d)(1)(A), 305(e), 321(b)(2);
          trial stage, see, e.g., Art. 27 [,UCMJ, 10 USC
          § 827]; post-trial stage and even the appellate
          stage, see, e.g., United States v. Palenius, 2
          MJ 86 (CMA 1977). A concomitant right is the
          right to confidential communications between the
          attorney and client. Mil.R.Evid. 502. Any
          exception to this rule must ensure that there is
          no chilling effect on defendants freely speaking
          with their military lawyers. See Grady v.
          Darley, 44 MJ 48 (Summary disposition 1996).

United States v. Godshalk, 44 MJ 487, 490 (1996); cf. United

States v. Smith, 35 MJ 138, 140-41 (CMA 1992)(defense counsel

may be called as prosecution witness when the accused gave

counsel a fabricated document for use at trial).

     The Supreme Court has addressed interference with the

attorney-client privilege on numerous occasions.   In Weatherford

v. Bursey, supra, the Court refused to adopt a per se rule that

any interference with the attorney-client privilege required the

drastic remedy of reversal.   The Supreme Court reversed the

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United States v. Pinson, No. 01-0466/AF


Court of Appeals, which held that “whenever the prosecution

knowingly arranges or permits intrusion into the attorney-client

relationship the right to counsel is sufficiently endangered to

require reversal and a new trial.”    528 F.2d 483, 486 (4th Cir.

1975).

     Bursey and Weatherford, an undercover agent, were arrested

in 1970 for breaking into a Selective Service Office on two

occasions.   While Weatherford was still maintaining his

undercover status, he was invited to meet with Bursey and his

attorney twice.   On neither of the occasions did he seek

information from Bursey or his attorney.    The purpose of the

meetings was to obtain information, ideas, or suggestions as to

Bursey’s defense for breaking into the Selective Service Office.

Weatherford did not discuss with his superiors or the

prosecuting attorney “any details or information regarding

[Bursey’s] trial plans, strategy, or anything having to do with

the criminal action pending against [Bursey].”     429 U.S. at 548.

     Based on the facts in Weatherford, the Supreme Court said

an undercover agent meeting with a criminal defendant and his

lawyer does not require reversal.    Id. at 551.

          [I]f an undercover agent meets with a criminal
          defendant who is awaiting trial and with his
          attorney and if the forthcoming trial is discussed
          without the agent’s revealing his identity, a
          violation of the defendant’s constitutional rights
          has occurred, whatever was the purpose of the agent
          in attending the meeting, whether or not he
          reported on the meeting to his superiors, and

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United States v. Pinson, No. 01-0466/AF


            whether or not any specific prejudice to the
            defendant’s preparation for or conduct of the trial
            is demonstrated or otherwise threatened.

Id. at 550.    Nonetheless, the Weatherford Court stated that its

prior cases “individually or together” did not require or

suggest a per se rule of reversal in such a situation.     Id. at

551.

       The Supreme Court noted that “Bursey would have [had] a

much stronger case” if either (1) “Weatherford [had] testified

at Bursey’s trial as to the conversation between Bursey and [his

attorney]”; (2) the “State’s evidence [had] originated in these

conversations”; (3) the “overheard conversations [had] been used

in any other way to the substantial detriment of Bursey”; or (4)

“the prosecution [had] learned from Weatherford ... the details

of the ... conversations about trial preparations.”    Id. at 554.

But the Court found “[n]one of these elements ... present here.”

Id. at 555.    Thus, the Court held that there was no violation of

the Sixth Amendment.    However, the invasion that took place in

Weatherford had significant investigative justification.

       Likewise, in Hoffa v. United States, 385 U.S. 293 (1966),

when an undercover agent was present during the attorney-client

conversation, the Court held that there was no violation of the

defendant’s rights because the substance of the lawyer-client

conversations was not communicated or used at trial.    Even so,

we must always ask whether the invasion impacted on the


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United States v. Pinson, No. 01-0466/AF


attorney’s performance or resulted in the disclosure of

privileged information at the time of trial.

     While Weatherford had to maintain his undercover identity,

the Supreme Court addressed an unjustified invasion into the

attorney-client relationship in United States v. Morrison, 449

U.S. 361 (1981).   DEA agents, who knew that the defendant was

represented by an attorney, met with Morrison without defense

counsel’s knowledge or permission.   The Court of Appeals held

that the defendant’s right to counsel had been violated,

irrespective of the lack of proof of prejudice to her case.    The

Supreme Court said that assuming there was prejudice, any action

taken had to be “tailored to the injury suffered.”   Id. at 364.

Since “respondent has demonstrated no prejudice of any kind,

either transitory or permanent, to the ability of her counsel to

provide adequate representation in these criminal proceedings,”

there was “no justification”for such “drastic relief” as a

dismissal with prejudice.   Id. at 366-67.

          [A]bsent demonstrable prejudice, or substantial
          threat thereof, dismissal of the indictment is
          plainly inappropriate, even though the violation
          may have been deliberate.... The remedy in the
          criminal proceeding is limited to denying the
          prosecution the fruits of its transgression.

Id. at 365-66 (footnotes omitted).

     Here, appellant has not carried his burden to show

intentional or outrageous government misconduct, such as having

no basis for a search, or that he was prejudiced by the

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United States v. Pinson, No. 01-0466/AF


disclosure of information.       This case is more like Weatherford

than Morrison because there was a legitimate search of

appellant’s quarters to obtain evidence of his alleged

subornation of perjury at the first trial.           There was no direct

interference with the attorney-client relationship.            See, e.g.,

Geders v. United States, 425 U.S. 80 (1976).           Appellant concedes

that no direct evidence was used at trial.           While he argues that

the two privileged documents were used to analyze his

handwriting, an individual has no expectation of privacy in his

handwriting.    United States v. Fagan, 28 MJ 64, 66 (CMA 1989).

      Finally, a review of the record shows that the Government’s

case was based on independent evidence.2          Accordingly, we hold

that the military judge’s decision was not an abuse of

discretion.

                             FACTS - ISSUE II

      After receiving the report from Ms. Helgadottir, the

Icelandic police attempted to locate appellant.            Before the

interrogation began, the Icelandic authorities gave appellant’s

name to the NCIS and asked that he be made available.             When he

arrived at the Naval Security Building, appellant was arrested

by Mr. Bjarnasson and advised of his right to an attorney and

his right to remain silent.       He invoked his right to an


2
  Having found that P27 and P28 were not used directly or indirectly against
appellant, we need not determine the legal significance, if any, of the
military judge’s finding that these documents were subsequently disclosed
after trial in communications with others.
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United States v. Pinson, No. 01-0466/AF


attorney, and the interrogation ceased until an attorney was

furnished for him.     In the meantime, Mr. Bjarnasson informed

appellant that under the treaty agreement between Iceland and

the United States, each side is required to cooperate with the

other.   Appellant’s Icelandic attorney advised him that a

negative inference can be drawn if an accused asserts his right

to remain silent.     Before being transported to the Icelandic

facility, appellant said that he knew the Icelandic police

wanted to talk to him because of Ms. Helgadottir; specifically,

that she wanted her clothes and watch back.          Subsequently, he

decided to cooperate, and the interrogation continued there at

various times over a two-month period.3

     Mr. Bjarnasson testified that the Icelandic police did not

talk to any of the NCIS agents prior to initiating their

interrogation of appellant.       No NCIS agent asked that the

Icelandic police get certain information or that appellant be

asked certain questions.      The interrogation was “purely for the

benefit of the Icelandic” authorities.         In fact, there was no

conversation involved at all with the Naval authorities as to

the details of the interrogation.

     Inspector Björn Sveinsson, one of the two IP interviewers,

testified during cross-examination that he did not tell anyone

that he was asking questions on behalf of the NCIS.           His only

3
   There were two interrogations that took place on the 23d of April, and
other interviews took place throughout April and May. Appellant’s appointed

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United States v. Pinson, No. 01-0466/AF


request to NCIS was for its agents to locate Eddie Barnes, a

military friend of appellant who had been with appellant, the

victim, and their mutual friends on several occasions.

      The military judge found that two separate investigations

had taken place: NCIS and the IP Department.           In particular, the

military judge found that

            Icelandic Authorities ... were acting at their own
            behest and not as instrumentalities of US Authorities.
            The accused’s statements to the Icelandic Authorities
            were taken in conformity with Icelandic Law for
            potential use in the prosecution in Icelandic Courts.
            They were not taken as a subterfuge to circumvent the
            accused’s refusal to talk to NCIS Agents without an
            attorney. Nothing in the manner of substance of
            taking of these statements offends the accused’s right
            to due process in this court.


                          DISCUSSION - ISSUE II

      Article 31(b), UCMJ, 10 USC § 831(b), states that

            [n]o person subject to this chapter may
            interrogate, or request any statement from
            an accused or a person suspected of an
            offense without first informing him of the
            nature of the accusation and advising him
            that he does not have to make any statement
            regarding the offense of which he is accused
            or suspected and that any statement made by
            him may be used as evidence against him in a
            trial by court-martial.

Article 31(b) would apply only if it is shown that the IP

Department was acting as an agent of the military during its

interrogations of appellant.




Icelandic attorney was present at most of these sessions.
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United States v. Pinson, No. 01-0466/AF


     In United States v. Payne, 47 MJ 37, 43 (1997), we left

open the question of whether a military judge’s conclusion as to

whether a civilian investigation was “conducted, instigated, or

participated in,” Mil.R.Evid. 305(h)(2), by military authorities

should be reviewed de novo or under a “clearly erroneous”

standard.   In Payne, we observed:

            There may be a question whether these earlier
            decisions treating the agency question as one of
            fact remain viable in light of subsequent
            amendments to the UCMJ, adoption of the Military
            Rules of Evidence, and recent Supreme Court cases
            announcing a de novo standard of appellate review
            for constitutional issues. See, e.g., Ornelas v.
            United States, 517 U.S. 690, 116 S.Ct. 1657, 134
            L.Ed.2d 911 (1996)(de novo review of probable-
            cause and reasonable-suspicion determinations);
            Thompson v. Keohane, 516 U.S. 99, 102, 116 S.Ct.
            457, 460, 133 L.Ed.2d 383 (1995)(de novo review
            of question whether a suspect was “in custody” at
            time of interrogation). We need not decide,
            however, whether a de novo standard of review or
            a more deferential “clearly-erroneous” standard
            applies in this case, because we would uphold the
            military judge’s ruling under either standard.

47 MJ at 42-43 (emphasis added).

     Despite our recognition in Payne that changes in the legal

landscape may necessitate a change in our standard of review, we

need not decide at this time whether to apply a de novo standard

of review or clearly erroneous standard because under either, we

hold the military judge’s ruling was correct.

     Appellant did not meet his burden of establishing that the

Icelandic investigators were acting under the control or at the

direction of the Naval investigators.   Icelandic police

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United States v. Pinson, No. 01-0466/AF


interrogated appellant in various stages over an extended period

of time.   At no time did the Icelandic police ask the NCIS

agents for information or leads to assist the Icelandic police

in conducting the investigation.     The limited assistance that

NCIS agents provided to the Icelandic police in this case --

such as locating appellant and American witnesses -- was

undertaken pursuant to the defense agreement between the two

countries, and did not constitute “participation” within the

meaning of the Mil.R.Evid. 305(h)(2).     Accordingly, we hold that

the military judge’s ruling was not in error as to Issue II.

     The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




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United States v. Pinson, No. 01-0466/AF

    SULLIVAN, Senior Judge (concurring in the result):


    I would affirm.



    On Issue I, there was no showing of prejudice resulting to

appellant from the use of the attorney-client material.    See

United States v. Tanksley, 54 MJ 169, 172 (2000).



    On Issue II, the facts in this case are weaker than those in

United States v. French, 38 MJ 420, 428-31 (CMA 1993) (Sullivan,

C.J., dissenting).    In the instant case, neither appellant’s

First Sergeant nor any other American military personnel played a

role in the actual interrogation of appellant.    Cf. id. at 434.

Moreover, the level of coordination between foreign police and

military authorities was minimal compared to that in French.     Id.

at 429-30.   Accordingly, there was no merger of the civilian and

military investigations.
