United States v. Andreozzi

BARTO, Judge,

concurring in part and dissenting in part.

I concur with my colleagues that the evidentiary and instructional errors made by the military judge in this matter are harmless beyond a reasonable doubt. However, I respectfully dissent with that portion of the majority opinion concerning appellant’s forum choice because the second order issued by this court directing the collection of evidence on this issue was unnecessary and exceeded the bounds of permissible fact finding.1

It is beyond cavil that a Court of Criminal Appeals may “determine controverted questions of fact” when “considering the record.” UCMJ art. 66(c). Post-trial fact-finding sessions ordered by military appellate courts are not a new phenomenon. See United States v. DuBay, 17 U.S.C.M.A. 147, 37 C.M.R. 411, 1967 WL 4276 (1967). The use of these sessions, however, has usually been limited to those circumstances in which the relevant facts are not “apparent on the face of the record.” Id. at 413. Such circumstances generally involve allegations of un*744lawful command influence, see id., or ineffective assistance of counsel. See United States v. Ginn, 47 M.J. 236, 238 (C.A.A.F.1997).

Appellate courts have also ordered post-trial sessions of this sort to find facts concerning the forum choice of an accused. See, e.g., United States v. Morgan, 57 M.J. 119, 120-21 (C.A.A.F.2002); United States v. Townes, 52 M.J. 275, 276 (C.A.A.F.2000). This practice is of relatively recent vintage and has not been without criticism. For example, Judge Effron asserted in his dissenting opinion in Morgan, “A jurisdictional deficiency cannot be corrected through a post-trial reconstruction of events in a Du-Bay hearing. A post-trial attempt to reconstruct conversations between counsel and client is no substitute for the statutory requirement of a request on the record.” 57 M.J. at 125 (citation omitted).

The reason that facts obtained from a Du-Bay hearing cannot cure a jurisdictional deficiency like that in appellant’s case is two-fold. First, in “choice-of-forum” eases such as this one, there is typically a clear record of whether appellant or his counsel has made a request for a particular forum—Article 25, UCMJ, requires as much. These facts, however, are not present in appellant’s record. Second, investigatory fact finding in search of evidence establishing jurisdiction is properly the province of the government and its representatives, not a criminal appellate court. As our superior court noted long ago, the actions of service courts are “always taken on behalf of an accused and in his interest.” United States v. Zimmerman, 2 U.S.C.M.A. 12, 20, 6 C.M.R. 12, 20, 1952 WL 2267 (1952).

The instant order was therefore unnecessary because there was already a sufficient record upon which to base our ruling, to wit: the original record of trial and the record of the first DuBay hearing ordered by this court.2 The fact that the trial counsel detailed to the first DuBay hearing failed to establish that appellant had elected trial by a panel containing enlisted members is not and, quite frankly, should not be a concern of this court. Our order was also inappropriate in that it dictated to the government in painstaking detail where it should have looked prior to the first DuBay hearing for evidence establishing panel election. For example, the order directed the examination of the computer hard drives and electronic mail servers of counsel and paralegals associated with the case, and went so far as to suggest search terms, e.g., “enlisted,” “forum,” to be used by the examiners. Notwithstanding the broad mandate of Article 66, UCMJ, the proper function of this court is adjudication, not investigation.3

In the absence of the evidence obtained at the second DuBay hearing, the record fails to establish substantial compliance at trial with Article 25, UCMJ. As such, I regretfully cannot join in the opinion of the court in this matter. I would set aside the findings of guilty and the sentence, and authorize a rehearing by the same or a different convening authority.

APPENDIX

ORDER

WHEREAS:

Appellant filed a Brief on Behalf of Appellant on 14 December 1999;

Appellee filed a Brief on Behalf of Appellee on 11 December 2000;

*745Appellant filed a Reply Brief on Behalf of Appellant on 21 February 2001;

Appellant filed a Supplemental Brief on Behalf of Appellant on 19 November 2001;

Appellee filed a Supplemental Brief on Behalf of Appellee on 19 December 2001;

I. Trial by a court-martial panel consisting of at least orie-third enlisted members.

WHEREAS:

Appellant has alleged in his appellate brief, reply brief, and supplemental brief that the record of trial does not indicate his request to be tried by a court-martial panel consisting of at least one-third enlisted members;

Appellant has asserted that because he did not personally request, orally or in writing on the record, a panel that included enlisted members, in accordance with Article 25, Uniform Code of Military Justice, 10 U.S.C. § 825, and cases decided thereunder, his court-martial lacked jurisdiction to try him;

In response to appellant’s assertions, appellee has conceded that the military judge erred “in not obtaining on the record appellant’s request for a trial by enlisted members.” Appellee has asserted substantial compliance with Article 25, UCMJ, and has not moved to attach any affidavits from trial defense counsel, nor provided any evidence that appellant requested trial by enlisted members. See United States v. Morgan, 57 M.J. 119 (2002);

This Court ordered a hearing under United States v. DuBay, 17 U.S.C.M.A. 147, 37 C.M.R. 411, 1967 WL 4276 (1967), on 28 February 2001;

Three witnesses testified at the DuBay hearing held on 14-15 May 2001, at Fort Leavenworth, Kansas: Mr. Michael Duncan, appellant’s civilian trial defense counsel, Mr. Sean Rommel, appellant’s detailed military trial defense counsel, and appellant;

Mr. Duncan and Mr. Rommel testified that they did not remember appellant communicating to them his particular trial forum request, and they did not remember ever asking the trial counsel to provide any particular trial forum for appellant’s trial;

Mr. Rommel testified that he was certain he advised appellant as to appellant’s forum options, and if appellant had made a choice, Mr. Rommel would have honored appellant’s forum choice;

Mr. Rommel testified that it is his normal practice, after an accused defers forum choice, to provide the trial counsel and the military judge prior to trial a written pleading providing notice of forum choice;

Appellant denied ever requesting any particular trial forum;

It would be ineffective assistance of counsel for trial defense counsel not to ask appellant for his forum decision, to fail to convey that decision to the government for implementation after receiving it, or to fail to object to a court-martial including enlisted members, if such forum was in contravention to appellant’s wishes. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984);

Athough Mr. Duncan and Mr. Rommel testified at the DuBay hearing, no one asked them whether they checked their records (hard copy or computer files) for documentation regarding a request for trial forum;

There was no averment by either counsel at the DuBay hearing as to the information or lack of information regarding the issue of trial forum in possession of the trial judge (Lieutenant Colonel Richard Hough), trial counsel (Captain Richard Travis), or other personnel who might have been responsible for processing any trial forum request;

Questions pertaining to whether appellant requested a trial forum of at least one-third enlisted members are not answered by the record of trial and allied papers;

This Court is unable to resolve these issues, in this ease, without: (1) affidavits from Lieutenant Colonel Hough, Mr. Duncan, Mr. Rommel, Captain Travis, and those persons occupying the positions at Fort Carson at the time of appellant’s trial, of Chief of Military Justice, Criminal Law NCOIC, and Pretrial NCOIC; (2) the results of an examination of the computer hard drives, if still available, of *746Mr. Rommel, Captain Travis, and the Fort Carson Chief of Military Justice, Criminal Law NCOIC, and Pretrial NCOIC; and, (3) the results of an examination of the electronic mail server used by Mr. Rommel, Captain Travis, the Fort Carson Chief of Military Justice, Criminal Law NCOIC, and Pretrial NCOIC;

II. Freedom of Information Act (FOIA), 5 U.S.C § 552, and Army Regulation 25-55, Information Management: Records Management: The Department of the Army Freedom of Information Act Program (1 Nov. 1997) [hereinafter AR 25-55], request for documents and request for abeyance.

WHEREAS:

On 14 August 2002, appellate defense counsel filed a motion prepared by appellant “to stay judgment or order” in his case until compliance with his request for documents. This motion also seeks a variety of medical records, as well as documents pertaining to nominations of court members citing the FOIA, and AR 25-55;

On 6 September 2002, appellate defense counsel filed a motion to attach additional documents in support of appellant’s “additional Grostefon matters,” which documents indicate that appellant is also seeking a variety of disciplinary records and documents pertaining to victim services; and,

The letter dated 22 January 2001, from the Director of Information Management, 7th Infantry Division and Fort Carson, incorrectly indicates that the Initial Denial Authority (IDA) for documents pertaining to nominations of court members and victim services is the Commander, U.S. Army Criminal Investigation Command, when the correct IDA for court-martial and victim services records is The Judge Advocate General, Attention: Criminal Law Division, 1777 North Kent Street, Rosslyn, VA 22209. See AR 25-55, para. 5-200d(14).

NOW, THEREFORE, IT IS HEREBY ORDERED:

III. Trial by a court-martial panel consisting of at least one-third enlisted members.

1. That the Clerk of Court shall provide copies of this Order to counsel for appellant and appellee;

2. That the record of trial shall be returned to The Judge Advocate General for such action as is required to conduct a limited DuBay hearing, if such hearing is necessary;

3. That such DuBay hearing, if necessary, will be conducted within ninety days of the date of this Order;

4. That Mr. Duncan and Mr. Rommel will answer, within forty-five days of the service of this Order upon the government, by written affidavit, the following:

(a) Does any documentation exist in your files (computer/electronic or paper) that was created or received between 1 April 1998 and 10 June 1998 pertaining to a request for trial forum by appellant; and,
(b) If there is any such documentation in your files, attach such documents to your affidavit;

5. That Lieutenant Colonel Hough, Captain Travis, and the Fort Carson Chief of Military Justice, Criminal Law NCOIC, and Pretrial NCOIC will answer, within forty-five days of the service of this Order upon the government, by written affidavit, the following:

(a) Did anyone on the defense team request any particular trial forum in appellant’s case? If so, what forum was requested? Describe the circumstances of any such request for trial forum;
(b) Is there any documentation in your files (computer/electronic or paper) that was created or received between 1 April 1998 and 10 June 1998 pertaining to a request for trial forum by appellant or appellant’s counsel; and,
(c) If there is any such documentation in your files, attach such documents to your affidavit;

6. That the computer hard drives of Captain Travis, the Fort Carson Chief of Military Justice, Criminal Law NCOIC, and Pre*747trial NCOIC, within forty-five days of the service of this Order upon the government, will be examined for electronic documentation pertaining to any request for trial forum related to appellant’s court-martial. Suggested examination time parameter should include from 1 April 1998 to 10 June 1998. Suggested examination terms are “andreozzi” and “enlisted,” or “andreozzi” and “forum;”

7. That the computer hard drive used by Mr. Rommel, at the Tidal Defense Service during the period 1 April 1998 to 10 June 1998, within forty-five days of the service of this Order upon the government, will be examined for electronic documentation pertaining to any request for trial forum related to appellant’s court-martial. Suggested examination time parameter should include from 1 April 1998 to 10 June 1998. Suggested examination terms are “andreozzi” and “enlisted,” or “andreozzi” and “forum;”

8. That the electronic mail server(s) used by Mr. Rommel, Captain Travis, the Fort Carson Chief of Military Justice, Criminal Law NCOIC, and Pretrial NCOIC, within forty-five days of the service of this Order upon the government, will be examined for electronic documentation pertaining to any request for trial forum related to appellant’s court-martial. Suggested examination time parameter should include from 1 April 1998 to 10 June 1998. Suggested examination terms are “andreozzi” and “enlisted,” or “andreozzi” and “forum;”

9. That all Fort Carson allied papers and appellate exhibits in records of trial tried between 1 April 1998 and 1 July 1998 will be examined for documentation pertaining to any request for trial forum in appellant’s case. The current Fort Carson Chief of Criminal Law, within forty-five days of the service of this Order upon the government, will provide an affidavit indicating that the examination has been completed and that the product of the examination, if any, has been provided to Government Appellate Division;

10. That the DuBay trial judge will supervise and provide appropriate orders to secure, at a minimum, the information sought in paragraphs 4-9 of this Order;

11. That the DuBay trial judge will examine any documents obtained from the examinations of Mr. Rommel’s server and Mr. Rommel’s hard drive, in camera, for relevancy as to the issue of trial forum in appellant’s case. Documents that are not relevant will be destroyed. Portions of documents that are not relevant will be redacted. See generally United States v. Humpherys, 57 M.J. 83, 89 (2002);

12. That if the documents collected pursuant to this Order conflict with the testimony in the DuBay hearing of 14-15 May 2001, or conflict with each other, the DuBay trial judge will conduct an additional limited Du-Bay hearing;

13. That if such limited hearing is conducted, the DuBay trial judge will permit the presentation of witnesses and evidence, make rulings as appropriate, and enter findings of fact and conclusions of law concerning appellant’s trial by a panel of officer and enlisted members, and appellant’s request, if any, for such a forum;

14. That at the conclusion of such proceedings, the record, with an authenticated verbatim transcript of the hearing, will be returned to this Court for further review;

15. That the DuBay trial judge will provide government appellate counsel, subject to paragraph 11, with all documents obtained pursuant to this Order; *

16. That government appellate division will serve copies of all documents and affidavits obtained pursuant to this Order on appellate defense counsel, and will file all such documents and the original affidavits with this Court as appellate exhibits within sixty days of the service of this Order;

17. That after receipt of such documents and affidavits, counsel for appellant and appellee may file such other affidavits, documents, and/or pleadings as are deemed helpful to the resolution of the issue of selection *748of trial forum with this Court within thirty-days after the original documents and affidavits are filed with this Court;

IV. FOIA and AR 25-55 request for documents and request for abeyance.

18. That appellate defense counsel’s motion for discovery is DENIED. See United States v. Campbell, 57 M.J. 134, 138 (2002); and,

19. That appellate defense counsel’s motion for abeyance until discovery is provided is DENIED.

. I do not "regret[] joining" the second order by this court in this matter. I articulated my concerns to my colleagues prior to the issuance of the order in question, but did not publish a dissent because dissent to an order that enjoyed the support of the majority of judges on the panel would have had no meaningful substantive or procedural effect at that time.

. Our second, highly-detailed order is attached as an Appendix.

. I respectfully submit that footnote five of the majority opinion addresses a complaint not made in this dissent. I do not dissent because the military judges who presided over the two DuBay hearings somehow exceeded their responsibilities. Instead, I dissent because I believe that we exceeded our responsibilities with our second order in this matter. In the first place, it is generally not appropriate for this court to grant the government a "do-over” when it fails to make any effort to meet its advocacy burden during a DuBay hearing. In such a circumstance, this court should then proceed to decide the question at issue on the basis of the record before us. Even if the circumstances of a case are such that it is appropriate for us to clarify our original order and direct a second post-trial hearing, we should nevertheless refrain from prescribing in our order specific investigative techniques that are likely to aid one party or the other in meeting its advocacy burden.

No DuBay hearing would be necessary, for instance, if there is no conflict between the affidavits, or between the affidavits and the testimony at the previously conducted DuBay hearing. See, e.g., United States v. Williams, 53 M.J. 316, 317-18 (2000).