UNITED STATES, Appellant
v.
David W. SERIANNE, Chief Aviation Electrician’s Mate
U.S. Navy, Appellee
No. 10-5001
Crim. App. No. 200900330
United States Court of Appeals for the Armed Forces
Argued March 2, 2010
Decided May 4, 2010
EFFRON, C.J., delivered the opinion of the Court, in which
BAKER, ERDMANN, STUCKY, and RYAN, JJ., joined.
Counsel
For Appellant: Captain Robert E. Eckert Jr., USMC (argued).
For Appellee: Lieutenant Michael Maffei, JAGC, USN (argued).
Military Judges: Bruce W. Mackenzie and Paul M. Gamble
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Serianne, No. 10-5001/NA
Chief Judge EFFRON delivered the opinion of the Court.
This case arises out of an interlocutory Government appeal
under Article 62, Uniform Code of Military Justice (UCMJ), 10
U.S.C. § 862 (2006), in a pending special court-martial. At
this stage in the proceedings, the pending charges include one
specification of dereliction of duty in violation of Article 92,
UCMJ, 10 U.S.C. § 892 (2006), and two specifications of drunken
operation of a vehicle in violation of Article 111, UCMJ, 10
U.S.C. § 911 (2006). The parties have not made opening
statements, and no evidence has been offered on the merits.
I. BACKGROUND
A. COURT-MARTIAL PROCEEDINGS
The charge at issue on appeal, dereliction of duty, alleged
that Appellee “was derelict in the performance of [his] duties
in that he willfully failed to report his 3 February 2009 arrest
for driving under the influence of alcohol, as it was his duty
to do.” In a pretrial proceeding, the Government relied on a
service Instruction, Dep’t of Navy, OPNAVINST 5350.4C, Drug and
Alcohol Abuse Prevention and Control (Dec. 8, 2005), as the
source of the self-reporting duty at issue. At the time of the
charged offense, paragraph 8.n. of the Instruction stated:
Members arrested for an alcohol-related offense
under civil authority, which if punished under the
UCMJ would result in a punishment of confinement for
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1 year or more, or a punitive discharge or dismissal
from the Service (e.g., DUI/DWI), shall promptly
notify their CO. Failure to do so may constitute an
offense punishable under Article 92, UCMJ.
Appellee moved to dismiss the charge on the grounds that the
self-reporting requirement violated his self-incrimination
rights under the Fifth Amendment to the Constitution and
Military Rule of Evidence (M.R.E.) 301(a). The military judge
granted the defense motion and dismissed the dereliction charge
on the grounds that the self-reporting requirement violated
Appellee’s self-incrimination rights. In his written ruling on
the motion, the military judge also noted the conflict between
the self-reporting requirement in the Instruction and the
service-specific self-incrimination protections in Article 1137
of the United States Navy Regulations (1990). Article 1137
provides:
Persons in the naval service shall report as soon as
possible to superior authority all offenses under
the Uniform Code of Military Justice which come
under their observation, except when such persons
are themselves already criminally involved in such
offenses at the time such offenses first come under
their observation.
B. CONSIDERATION BY THE NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
The Government filed an interlocutory appeal with the United
States Navy-Marine Corps Court of Criminal Appeals under Article
62, UCMJ, asking the court to overturn the military judge’s
ruling. The Court of Criminal Appeals considered the appeal en
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banc and affirmed the decision by the military judge to dismiss
the charge. United States v. Serianne, 68 M.J. 580 (N-M. Ct.
Crim. App. 2009). The court discussed the self-incrimination
implications of self-reporting in considerable detail, focusing
on the “regulatory exception” to the privilege against self-
incrimination. The court stated that the regulatory exception
applies:
when the constitutional interests of the individual
must be balanced with the public need and instructs
that “[t]he Fifth Amendment is not violated when the
Government is allowed ‘to gain access to items or
information vested with . . . [a] public
character.’” [United States v.] Oxfort, 44 M.J.
[337,] 340-41 [(C.A.A.F. 1996)] (quoting Baltimore
City Department of Social Services v. Bouknight, 493
U.S. 549, 557 (1990)); see also California v. Byers,
402 U.S. 424, 427-28 (1971).
Id. at 584 (ellipsis and first two bracketed interpolations in
original). The court added that the regulatory exception
reflects the principle that “‘[i]f the Government requires
documents to be kept for a legitimate administrative purpose,
neither the content nor the act of production of these documents
are protected by the Fifth Amendment.’” Id. (alteration in
original) (quoting United States v. Swift, 53 M.J. 439, 453
(C.A.A.F. 2000)). The court concluded that the Instruction was
punitive rather than regulatory in nature, compelling an
incriminatory testimonial communication. Id. As such, the
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court concluded that the Instruction could not be sustained as a
regulatory exception. Id.
In addition to addressing the constitutional issue, the
court also addressed the issue raised by the military judge
concerning the relationship between the Instruction and Article
1137 of the United States Navy Regulations:
We also note that the disclosure requirement of
OPNAVINST 5350.4C, ¶ 8n, is inconsistent with
superior competent authority. . . . This court has
previously held that the reporting requirement of
Article 1137 [of the United States Navy Regulations]
is “valid and permissible,” basing that conclusion
on the fact that it “eliminates a reporting
requirement in instances where a person is already
criminally involved in offenses he would otherwise
be required to report.” United States v. Bland, 39
M.J. 921, 923 (N.M.C.M.R. 1994).
Id. at 584-85.
Two judges concurred in the result with separate opinions.
Chief Judge Geiser concluded that the reporting requirement was
void for vagueness to the extent that it required a
servicemember to report arrests that “would result” in
punishment under the UCMJ for more than one year. Id. at 585
(stating that it was unreasonable to require servicemembers “to
divine what ‘would result’ if the case were punished at court-
martial”). Chief Judge Geiser did not concur in the majority’s
holding on the self-incrimination privilege. Id. at 585-86. He
viewed the privilege as applying only to “actual evidence of
misconduct or information which would directly reveal evidence
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that was not otherwise known,” and, in his view, the arrest
record should be viewed as an accusation and not as evidence
covered by the privilege. Id. at 586.
Judge Beal, who also wrote separately, agreed with Chief
Judge Geiser’s view that the Instruction was unconstitutionally
vague. Id. He disagreed, however, with both the majority and
Chief Judge Geiser regarding the self-incrimination aspects of
the reporting requirement. He took the position that a properly
drafted self-reporting requirement could serve a “legitimate
administrative purpose.” Id. In that context, he concluded
that a person could be prosecuted for dereliction of duty under
Article 92 for failing to self-report a drunk driving offense.
Id. In his view, the self-incrimination problem applied not to
the Article 92 offense (dereliction of duty in failing to report
the offense), but instead applied to any prosecution for the
underlying drunk driving offense under Article 111. Id. From
his perspective, if the servicemember self-reported a drunk
driving arrest and the self-reported information provided the
sole evidence on the drunk driving charge under Article 111, the
self-incrimination privilege would preclude prosecution for that
offense. Id. During oral argument the Government called our
attention to the fact that the issuing authority, subsequent to
Appellee’s trial, modified the self-reporting requirement in the
Instruction. In the Government’s view, the modification
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resolves the vagueness issue with respect to future cases,
recognizing that the modification does not moot the issue in the
present case.
II. THE CERTIFIED ISSUES
The Judge Advocate General of the Navy certified the
following issues for our review under Article 67(a)(2), UCMJ, 10
U.S.C. § 867(a)(2) (2006):
I. WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL
APPEALS ERRONEOUSLY HELD THAT THE DUTY IMPOSED ON
SAILORS BY CHIEF OF NAVAL OPERATIONS INSTRUCTION
5350.4C TO NOTIFY THEIR COMMANDING OFFICER OF AN
ARREST BY CIVIL AUTHORITY FOR AN ALCOHOL-RELATED
OFFENSE COMPELLED A TESTIMONIAL COMMUNICATION
THAT WAS INCRIMINATING.
II. WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL
APPEALS ERRONEOUSLY HELD THAT NO EXCEPTION TO THE
FIFTH AMENDMENT SELF-INCRIMINATION CLAUSE,
INCLUDING THE REGULATORY EXCEPTION DEVELOPED IN
CALIFORNIA v. BYERS, APPLIES TO THE REPORTING
REQUIREMENT IN CHIEF OF NAVAL OPERATIONS
INSTRUCTION 5350.4C.
For the reasons set forth below, we conclude that the
military judge did not err in dismissing the dereliction of duty
charge under the circumstances of this case.
III. DISCUSSION
The majority and separate opinions at the Court of Criminal
Appeals addressed both the constitutionality and interpretation
of the Instruction, issues of law that we consider under a de
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novo standard of review. See United States v. Wright, 53 M.J.
476, 478 (C.A.A.F. 2000). In determining whether to decide the
present case on constitutional or nonconstitutional grounds, we
may take into account the nonconstitutional regulatory matter
discussed by the court below -- the relationship between the
self-reporting requirement in the Instruction and the exclusion
from self-reporting provided in Article 1137 of the United
States Navy Regulations. Serianne, 68 M.J. at 584-85; see
United States v. Simmons, 38 M.J. 376, 380 (C.M.A. 1993) (citing
Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346-48)
(Brandeis, J., concurring) (noting that a court need not resolve
a constitutional question, even if properly presented, “if there
is also present some other ground upon which the case may be
disposed of”).
The court below in the present case observed that it had
addressed the validity of Article 1137 of the United States Navy
Regulations in United States v. Bland, 39 M.J. 921, 923
(N.M.C.M.R. 1994) (sustaining Article 1137 on the grounds that
the regulation had eliminated a self-reporting requirement for a
person involved in offenses the person would otherwise be
required to report). Serianne, 68 M.J. at 585. The court
described Article 1137 as “superior competent authority” over
the Instruction, and further described the reporting requirement
in the Instruction as “inconsistent” with the exclusion provided
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in higher authority, the United States Navy Regulations. Id. at
584.
We agree with the interpretation of the applicable rules
set forth in Bland and restated by the court below in the
present case. We note that Bland has not been overruled, and
Article 1137 has not been changed in pertinent regard. The
lower court’s description of Article 1137 as “superior competent
authority” is consistent with Article 0103 of the United States
Navy Regulations, which states that the United States Navy
Regulations serve as “the principal regulatory document of the
Department of the Navy,” and specifically states that “[o]ther
directives issued within the Department of the Navy shall not
conflict with, alter or amend any provision of Navy
Regulations.” The self-reporting requirement in the Instruction
did not provide Appellee with the rights afforded by a superior
competent authority, Article 1137. As such, the Instruction did
not provide a legal basis for finding Appellee derelict in the
performance of a required duty, and the military judge did not
err in dismissing the charge. We base that decision on the
nonconstitutional, regulatory ground discussed by the military
judge and the court below, without reaching the constitutional
questions otherwise noted in this appeal.
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IV. DECISION
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is affirmed. We remand the record of trial
to the Judge Advocate General of the Navy for return to the
military judge for further proceedings consistent with this
opinion.
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