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sentence or the requirement of a rehearing on the sentence.26

For example, if a punitive discharge is authorized only because there are two previous convictions but the date of the offense cannot be determined as to one of the convictions and there is a possibility that it occurred more than three years before the instant offense or during a previous enlistment, then there must be either a rehearing on the sentence or a reassessment of the sentence and elimination of the discharge.27 Without its predicate of two admissible previous convictions the bad conduct discharge is not authorized and cannot be approved. Where the inadmissible record of previous conviction is not necessary for sustaining the punitive discharge, it may still cause the sentence to be reduced on reassessment. Its actual effect depends upon a number of factors including the seriousness of the offense shown by the inadmissible exhibit, its similarity to the current offense, the seriousness of the current offense or offenses and the number and types of previous offenses. The issue presented is what, if any, effect the inadmissible exhibit may have had on the court in its determination of the appropriate sentence. 4. COURT MEMBER BECOMING WITNESS FOR THE

PROSECUTION This situation usually results from the introduction of a document signed by the member.” Ordinarily this will be a record of previous conviction which trial counsel plans to introduce. Such an event may require a rehearing on the findings or sentence thus lengthening the review time as well as adding considerably to the time and work required at the trial level.

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one of two previous convictions needed to authorize a bad conduct discharge, then a rehearing on the sentence will be required or the discharge must be disapproved.22

2. INTRODUCTION OF NOT GUILTY FINDINGS A service record book record of previous convictions may show that the accused was previously tried at one trial for a number of offenses. On one or more of these offenses the court may have found the accused not guilty or a guilty finding may have been set aside at some stage of the review. Care should be taken to mask out all portions of the record bearing on those offenses for which there has been no final approval of a guilty finding. Whether the introduction of such offenses upon which accused has not been finally convicted will require a reassessment of the sentence or will be nonprejudicial will depend principally upon the seriousness of the offense improperly considered. 3. PREVIOUS CONVICTIONS-OFFENSE(S) UNDATED

This is perhaps the most common discrepancy found. To be admissible in the presentencing proceedings the offense (s) shown on the record of previous conviction must have occurred, with minor exceptions, during the current enlistment and within three years of an offense of which the accused was convicted at the instant trial.23 Periods of unauthorized absence are not counted toward the total three years. Service regulations 24 detail the proper execution of pages 13 and 6 in the marine's and sailor's service record books and, if followed, will result in admissible records of previous convictions. Despite the provisions of the last four sentences in MCM, 1951, para. 75b (2), the Court of Military Appeals does not apply anything in the nature of a presumption of regularity or correctness in the absence of objection to the exhibit, at least in the case of uncertified counsel. The Court, rather, looks to the entire record for evidence that the previous offense was on the current enlistment and within three years of the current offense.25 Certainly, if the first page of the charge sheet shows that accused is serving on his first enlistment which began less than three years before the current offense, the requirement is met. Other cases will depend upon their particular facts. Introduction of undated previous offenses may result in a reduction of the

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5. IMPROVIDENT PLEA The improvidence issue can arise in a number of ways, including statements made after trial,» but will ordinarily arise because of an unsworn statement made by accused during the presentencing proceedings. Such a statement may raise an issue of intoxication regarding an offense requiring a specific intent, knowledge, or willfulness 31

or may indicate that accused 26. United States v. Marshall, supra note 25. 27. Ibid. 28. United States v. Mansell, 8 USCMA 153, 23 CMR 377 (1957);

United States v. Moore, 4 USCMA 675, 16 CMR 249 (1954);

United States v. McBride, 6 USCMA 430, 20 CMR 146 (1955). 29. United States v. Richardson, 15 USCMA 400, 35 CMR 372 (1965). 30. United States v. Epperson, 10 USCMA 582, 28 CMR 148 (1959);

United States v. Schneiderman, 12 USCMA 494, 31 CMR 80 (1961): United States v. Stanaway, 12 USCMA 552, 31 CMR 138 (1961); United States v. Dosal-Maldonado, 12 USCMA 442, 31

CMR 28 (1961). 31. United States . Simmons, 1 USCMA 691, 5 CMR 119 (1952);

United States v. Sasser, supra note 15.

22. United States v. Geter, supra note 12.
23. MCM 1951, par. 75b (2).
24. Marine Corps Personnel Manual, par. 15117.2b(1) and BUPERS

Manual, article B-2316.
25. United States v. Tuten, 15 USCMA 387, 35 CMR 359 (1965);

United States v. Marshall, 15 USCMA 475, 35 CMR 447 (1965).

32

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merely borrowed an item in a wrongful appro reconsideration of the question whether a priation case or that accused was not aware of guilty plea ought to be entered. the insufficiency of his bank balance on a charge

6. VACATION PROCEEDINGS of worthless checks. 33 Where any such issue of

During the presentencing proceedings, as part improvidence or inconsistency appears the

of the process of showing previous convictions, president should take the action indicated by

it cannot be brought to the court's attention that MCM, 1951, para. 70b. The president should

the suspension of a previous sentence has been not cross-examine the accused upon an unsworn

vacated.34 Such an exhibit showing vacation statement but should certainly point out in what

proceedings will indicate to the court that the respect the statement appears inconsistent with

accused has apparently committed other misthe guilty plea. After such explanation the

conduct. Bringing such an action to the court's president should allow the defense an oppor

attention will probably necessitate a rehearing tunity to explain further the apparent inconsist

as to the sentence.35 ency, withdraw the inconsistent statement, or

SUMMARY change the plea to one of not guilty. If the accused does not withdraw the inconsistent Many of the above discrepancies can be elimstatement or explain it in such a manner as to

inated by trial counsel through a relatively eliminate the question of inconsistency, then the short examination of the court appointing president will himself accomplish the substitu orders and service record book entries showing tion of pleas. Although the principal duty of previous convictions. Such an examination inquiry is upon the president, all members of the will disclose whether the qualifications of each court and counsel should be alert to such incon counsel have been stated and stated correctly. sistencies and bring them to the president's If they are not, then trial counsel should seek an attention. Any doubts as to providence of the amendment of the appointing order or, rather plea should be resolved in favor of the accused than add papers to the record, make a note to at the trial level for they certainly will be at the clarify counsel's qualifications at trial. The appellate level. The resolution of doubt in the names of the court members should be compared accused's favor at the trial level simply means with those shown on records of previous convicthat where any issue of inconsistency or im tion and any other documents to be introduced providence remains a not guilty plea should be in order to ascertain whether the introduction substituted and the case should be fully tried. of such an exhibit will make a court member a Justice for the accused demands such an action witness for the prosecution. If this is found to and the interests of the government are better

be so then it would seem that the better practice served by trial of the case when the evidence would be to have the member relieved from atis fresh rather than months later when the case tendance at the particular trial. has been returned on review.

A few minutes' examination of the records of The defense counsel has a particular interest previous conviction can eliminate the possibility in this matter and in preventing its occurrence,

of at least four types of errors in regard to such since an issue of defense counsel's competence convictions. The first consideration is whether is inherent in most assertions of improvident the convictions can be introduced at all, as plea. Even where there is to be a guilty plea having been finally reviewed. Secondly, deterentered the defense counsel ought preliminarily mine whether there is any individual charge to study the elements of the offense (s) charged, on which there has not been a finally approved examine the available, admissible evidence to finding of guilty. If there is one, then consider determine whether it is sufficient to establish

whether to mask it or secure a stipulated stateeach element, and confer with the accused as to ment from defense counsel and the accused the content of any statement or other matter which will put the previous conviction before the to be introduced at trial. Such a study may re

court without mentioning the allegation as to veal that the government may be unable to prove

which there is no approved conviction. Next, one or more elements of the offense. When de examine whether each record of previous confense counsel knows the elements of the offense, viction shows the date of commission of each his examination of the accused's statement offense shown thereon. If an offense is unshould indicate whether anything in the state

dated then the record book page is not completed ment conflicts with an element of the offense. in accordance with regulations, and the responIf there is such a conflict, then there should be

sible administrative officer will appreciate 32. United States v. Caid, 13 USCMA 348, 32 CMR 348 (1962).

34. United States v. Kiger, 13 USCMA 522, 33 CMR 54 (1963). 33. United States v. Harrell, 14 USCMA 517, 34 CMR 297 (1964).

35. United States v. Beach, 15 USCMA 119, 35 CMR 91 (1964).

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interested parties. Unless the facts reported

are completely deficient or the opinions drawn having this brought to his attention for correction. If the proper date or dates cannot be de

From his background knowledge of the case termined from local records because the case

and study of the investigations which have been

fenfu was tried at a former command and a copy of

made, trial counsel should be able to make a the record cannot be obtained from that com

determination whether any two or more of the

sappi mand, then the required information, or an

charges are multiplicious for sentencing pur

poses. authenticated copy of the record, can usually be

2 per If they are, he can be prepared to insure

pating obtained from the Personnel Records Center.36

that the president so instructs if that stage of the Trial counsel should also note during his exami

trial is reached. Trial counsel's examination of

nyth

the case and the report of investigation or other nation of the service record book whether there

storal

papers involved will, in many cases, give him are any pages showing vacation proceedings and make certain that no such document is

advance warning of the existence of some indicaintroduced.

tion of intoxication which might affect the state During his preliminary preparation of the

of mind required as an element of any particular case, trial counsel can do much to assist the

offense. Counsel will then be prepared to inpresident in his instructional task. Admittedly,

sure a proper instruction in the event the issue instructions are the responsibility of the presi

is raised. dent, but they are certainly of interest to the

None of the above will resolve larger questions trial counsel who will want to preserve a proper

that may arise in an individual case, such as record of the trial. Trial counsel would do well

sufficiency of the evidence, legality of search and to have readily available instructions as to the

seizure, admissibility of confessions, and other maximum punishment for each offense with matters of such gravity; however, observance which accused is charged, including any lesser

of the above comments can go a long way toward included offenses, so that he will be prepared to

accomplishing the goals of a more nearly errorsupply the president with the necessary advice to free record and the approval of sentences withaccused, or bring to the president's attention any out appellate reduction or the need for repeated misadvice, if the president has occasion to ad

hearings. vise the accused regarding the entry of a guilty plea.

36. General Services Administration, Military Personnel Records

Center, 9700 Page Boulevard, St. Lonis, Missouri 63132. FALSE STATEMENTS

charges under Article 107 in any case wherein (Continued from page 130)

an alleged offender was not under a clear and unClaypool 84 and United States v. Whitaker 85 to a questionable duty to speak. lesser extent. Nevertheless, the fact remains The author does not dispute the wisdom of the that the Court has never placed any specific limi decisions holding that statements made by a sustations upon its holdings in Aronson and subse pected offender during criminal interrogations quent opinions except the peculiar decision in are not within the purview of Article 107 unless United States v. Reams.86

the suspect is under a duty to speak. However, On the contrary, the Court did extend the there are many instances in which investigaAronson rule beyond the criminal investigative tions are required under federal law or service situation in United States v. Davis,87 although

regulations based on federal statutes, which there may have been some reluctance to do so, have little or nothing to do with criminality or and there was certainly no hesitation on the part criminal investigation as such, and which are of a Board of Review to so act in United States v.

not conducted by professionally trained investiColby,88 solely on the basis of Aronson. Fur gators. Commissioned officers are regularly thermore, Judge Ferguson has clearly expressed

appointed, as a collateral duty, to act as investihimself to be in favor of extending the Aronson

gating officers in administrative matters. In rule to instances not involving criminal investi

fulfilling these assignments those officers usualy gations in his dissenting opinions in Reams and

have little time in which to conduct the type of Daggett. In view of the present status of judi

inquiry normally carried out in criminal investicial opinion in this area, it is little wonder that

gation and they are usually handicapped by limmilitary authorities may be hesitant to prefer

ited experience and investigative resources. As 84. Supra note 38.

a result they must often make their determina85. Supra note 51.

tions on little more than the statements of the 86. Supra note 32. 87. Supra note 47. 88. Supra note 57.

Cer

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3ct 23 22 due to misconduct, which can only be rebutted by ficers as Therefore, there is never any prescribed duty from the facts are questionable, the findings of statements can never be considered to be fact and opinions of the investigating officer will “official”. often form the basis for administrative rulings A similar situation exists with regard to stateby appropriate reviewing authorities which can ments concerning indebtedness. Every military affect the terms of service and compensation of installation is plagued by complaints of indebtthe personnel involved, as well as possibly obli edness pertaining to command personnel. gating the Government to pay various disability Under service regulations such complaints are or survivorship benefits for an undetermined made matters of official concern and commandlength of time. As a result, any determination ers are required to answer such inquiries. If favorable to an individual serviceman which is the individual serviceman refuses to resolve his based upon false information can cause the Gov problems satisfactorily, the commanding officer ernment to suffer unjustifiable loss.

must take appropriate administrative or disciIn addition to line of duty aspects of a given plinary action. Naturally, the volume of this inquiry, the services have been given the respon correspondence makes it mandatory that the insibility for asserting and collecting claims for dividual commander delegate this responsibility medical treatment afforded military personnel and, normally, it is assigned to either the station and their dependents injured as the result of the legal, personnel, or administrative offices. An negligence of third parties under the Medical untold number of hours are spent on a given Care Recovery Act.89 In the event a serviceman station interviewing personnel who are the subprovides false information to protect himself or jects of complaints, determining the alleged to shield others from responsibility, he may debtor's position regarding the obligation, and cause the Government to erroneously assert a writing the creditors to explain the service's claim or to fail to assert a proper one. In either position in such matters. The same is true in case the Government will suffer financially and the case of complaints of nonsupport. Where this may be aggravated by adverse publicity in false information is given, the difficulties are the event of an erroneous claim. The same is compounded and often result in a substantial true in cases involving injuries to civilians re waste of time and effort on the part of military sulting from the negligence of military person

authorities. Here again, however, the Bureau nel where the Government is required to honor of Naval Personnel Manual clearly provides that just claims.

the individual can only be requested to make a Certainly, there can be no question concerning

statement concerning his indebtedness and failthe potentially perversive effect of false state

ure to comply with any such request cannot be ments upon necessary governmental functions in made the grounds for disciplinary action.98 the foregoing situations. However, under the Consequently, there is no duty on the individual Manual of the Judge Advocate General of the

to make a statement in this instance. Navy," any military person whose conduct is Furthermore, the Court of Military Appeals subject to inquiry in an investigation must not

has, perhaps reluctantly, reversed a conviction Jelts only be advised of his rights under Article 31,

for a false official statement under these exact : EF UCMJ, but also, if the inquiry involves personal

circumstances in United States v. Davis," and a injury or disease, he must be warned of his right

Navy Board of Review did so without any quesnot to make any statement relating to the origin,

tion in United States v. Colby.95 The basis for tute, F. incurrence, or aggravation of that injury or dis

these two holdings was purely and simply the ease. Additionally, the JAG Manual provides

fact that there was no duty on the part of the that, in any line of duty investigation, there is a

individual to make such a statement. Neverstrong presumption that the injury or disease in

theless, in all the foregoing situations, only very question was incurred in the line of duty and not

remotely is there ever any aspect of criminality

or criminal investigation involved. The interclear and convincing evidence to the contrary.o2

ested parties are afforded rights which include

and often exceed those in Article 31, UCMJ. at the upon a party to make a statement in such pro

The potential direct financial loss to the Governceedings. Accordingly, if a literal construction

ment, coupled with wasted time and effort and of the present Court of Military Appeals deci

indirect expenses, in the event of actual or atsions regarding Article 107 is applied to false

tempted deception cannot be refuted. In view statements under those circumstances, such

of the foregoing, it is considered that, while the 89. 42 U.S.C. 2651-2653.

Aronson doctrine has possible merit as to state90. JAGINST, P5800.7,

93. BuPers Manual, art. C-11104A.
94. Supra note 47.
95. Supra note 57.

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ments given in criminal investigations, any fur-
ther extension of that rule by the Court of Mili-
tary Appeals and/or the Boards of Review into
the area of purely administrative inquiry would
be unrealistic and not in accord with the prevail-
ing view of most federal courts concerning the
scope of 18 U.S.C. 1001, the announced equiva-
lent of Article 107. To the extent that the doc-
trine has been applied to false statements re-
garding indebtedness complaints, it is believed
that there was insufficient consideration of the
consequences and no consideration of the later
federal decisions interpreting 18 U.S.C. 1001.

The Court should reassess the rationale of
United States v. Aronson 96 and the subsequent
decisions based thereon at the earliest possible
opportunity. The fact that the Court's deci-
sions since 1957 concerning Article 107 are the
product of its reliance upon a federal decision
which has been almost unanimously rejected
throughout the federal judicial system prac-
tically demands such action. Additionally, the
obvious confusion regarding the applicability
of that Article currently existing among the
Boards of Review and the military services in
general is also persuasive for immediate recon-
sideration. In this regard, it is suggested that
the decision in United States v. Citron or pro-
vides an extremely intelligent and reasonable in-
terpretation of 18 U.S.C. 1001 and is admirably
suited for use by the Court of Military Appeals
in construing Article 107. In Citron the defend-
ant was charged with violating 18 U.S.C. 1001 as
the result of a false representation to a Treasury
Agent about the payment of certain taxes. The
Court denied a motion to dismiss the indictment
based on a contention that the statute was not
meant to cover false exculpatory answers made
to federal investigators. In its decision the
Court admitted that several cases, including
United States v. Davey 98 and United States v.
Stark, so had adopted this view. However, the
Court stated :

* The Court of Appeals of this Circuit has sug.
gested that such a rule upon appropriate facts might
have application, albeit a narrow one, in excluding
from Section 1001 (t) he case of the citizen, who re-
plies to the policeman with an exculpatory ‘no'* * *."
United States v. McCue, 301 F. 2d 452, 455 (2d Cir.,

1962), citing Davey and Stark, supra.100
The Court observed that this potential exception
to 18 U.S.C. 1001 was based upon the history of

the statute as one seeking to prevent the adminis

Einsta tration of governmental programs from being subverted or frustrated by false representations of those involved. It continued by saying: zvicer * Although the line between "administration"

Godtio and “investigation" cannot always be sharply drawn, it is arguable that the statute was not intended to

utions require, in every conceivable situation of its kind, a Esmere citizen to answer truthfully questions put to him in

at the the course of police or other criminal investigation. a nat Otherwise, the statute would give powerful impetus to inquisition as a method of criminal investigation.

s consi The exact scope of this possible "investigative excep

bateri tion” to Section 1001 has not been established to my

It is knowledge; more important, its potential application would turn in any event upon the peculiar facts of a

Hal cor given case. The Court concluded that the defendant's contention was theoretical and its resolution had to be deferred until the full development of all the relevant facts.

It is considered that this interpretation of 18 U.S.C. 1001 places the statute in proper focus

arde and perspective, recognizing all the basic rights and interests which may be involved in a particular case. The same would hold true in the case of Article 107. By distinguishing between actions in the nature of criminal investigation and those pertaining to purely administrative matters, a far more realistic approach can be had toward establishing the limits of Article 107 than that currently in effect.

The concept that the "officiality" of a particular statement must be assessed from the standpoint of all individuals involved in a proceeding as well as that of the Government is artificial, strained and fraught with problems. So, too, is the requirement that the individual must be under a duty or obligation to give information before a statement may be considered to be "official”. The first sentence of the Manual discussion regarding Article 107 provides that (O)fficial documents and official statements include all documents and statements made in the line of duty." 102 It is submitted that the Court of Military Appeals has construed the term "in the line of duty" as meaning "under duty" and has then taken this construction as the standard by which "officiality” is to be tested. This is considered to be unrealistic. The line of duty concept is not always synonymous with having a duty. It is, in fact, often far broader. Injuries occur to service personnel in or out of the line of duty regardless of whether the individual serviceman is actually on duty or off. A finding of "in line of duty” may be made even 101. lbid. 102. MCM 1951, par. 186.

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