United States v. Murphy

EVERETT, Chief Judge, with whom FLETCHER, Judge,

joins (concurring in the result):

I

When an American servicemember is court-martialed, the effect of any pretrial confinement may be significant. For example, it can give rise to a right to dismissal of charges for lack of speedy trial, United States v. Burton, 21 U.S.C.M.A. 112, 44 C.M.R. 166 (1971); and to entitlement to administrative credit on any sentence to confinement that may be adjudged by the court-martial, United States v. Allen, 17 M.J. 126 (C.M.A. 1984); United States v. Suzuki, 14 M.J. 491 (C.M.A. 1983). If the confinement is illegal, certain other consequences may flow as well; for instance, the illegality may taint the admissibility of statements the accused made during the period of confinement. Cf. Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957).

Even if an accused’s confinement before his trial by court-martial is occasioned by charges pending in a foreign court, the illegality of his confinement may be relevant to the court-martial proceedings. For example, whether Murphy was being confined illegally by American military authorities is a factor to be considered in determining whether the court-martial charges should be dismissed for denial of speedy trial, and whether his pretrial statement was inadmissible. Therefore, contrary to the Government’s contention, I conclude that this Court must deal with the question of the legality of appellant’s confinement based on the charges pending against him in a Japanese court.

I identify several stages at which an American servicemember might be confined by military authorities because of alleged offenses against the host country: (a) before formal charges have been filed; (b) after charges have been preferred but before trial in the foreign court; (c) after trial, but while an appeal is pending; and (d) after trial, conviction, and imposition of a sentence to confinement. Each situation requires separate analysis.

As the principal opinion observes, an agreement between the United States and Japan provides that “[t]he custody of an accused member of the United States armed forces or the civilian component over whom Japan is to exercise jurisdiction shall, if he is in the hands of the United States, remain with the United States until he is charged by Japan.”1 Under this provision the United States has the primary right to “custody” of the accused service-member until foreign charges are preferred.

By negative implication, this same provision of the agreement with Japan grants to that country the primary right to custody after charges are preferred against the servicemember in a Japanese court. Since international agreements should be viewed as subject to obligations of good faith, the right of the Japanese to custody after charges are preferred imposes on the United States a commensurate duty to take no action that would interfere with that right. This duty is especially clear since, under accepted rules of international law2 and *236absent any agreement to the contrary, the host country would have the primary right to custody of a servicemember of a visiting force if he was suspected of violating the criminal laws of the host country. Moreover, the duty to respect the right of the host country continues until its criminal proceedings have been completed and have resulted finally in conviction or acquittal.

In view of Japan’s rights under international law and under its agreement with the United States, military authorities may not transfer a servicemember out of the country without the consent of its government, if to do so would injure Japan’s primary right to custody of the servicemember at some later time when charges are filed. Furthermore, if military authorities have reason to believe that a servicemember suspected of crimes against the host country may take flight unless they impose some restraint on him — e.g., restriction to specified limits, arrest in quarters, or confinement — 3 then they may impose that restraint in order to assure performance of the duty owed by the United States.

My conclusion in this regard does not depend on the Uniform Code of Military Justice and the Manual for Courts-Martial, which are silent with respect to confinement of servicemembers who are facing charges in foreign courts. Instead, I find ample authority for such action in the international agreements which the United States has entered into with Japan and other countries. As the principal opinion points out, such agreements have been judicially treated as self-executing and so have been held to provide an adequate basis for ordering a servicemember to travel from the United States to a foreign country in order to stand trial there.4 Under the same rationale, those agreements furnish an adequate basis for action, such as the imposition of restraint, which a servicemember’s commander may consider reasonably necessary in order to assure that he will be available for trial in the courts of the host country.

Either party to a status-of-forces agreement may waive its primary jurisdiction to try an offense which violates the laws of both countries. Wilson v. Girard, 354 U.S. 524, 77 S.Ct. 1409, 1 L.Ed.2d 1544 (1957). The same principle would seem to apply to waivers of a primary right to custody pending trial. The United States has consistently followed the policy of requesting waivers of a host country’s primary jurisdiction to try offenses. Indeed, this policy is rooted in the Senate’s Reservation to the original North Atlantic Treaty Organization Status of Forces Agreement. See Senate Resolution of July 15, 1953, 99 Cong. Rec. 8780, reprinted at 4 U.S.T. 1828-29. A practice of requesting waivers of a host country’s primary right of custody prior to trial would seem to be the logical corollary to seeking waivers of that country’s primary jurisdiction to punish the crime. Appellant’s record of trial makes clear that this practice is widespread.

Apparently, Japan frequently waives its primary right of custody, just as it did with respect to Murphy. Presumably, this waiver is in reliance on a reasonable expectation that American military authorities will make the accused servicemember available for trial. This reliance by the host country provides an additional ground for imposing on American military authorities the duty of assuring by all reasonable means that the accused is present later for court proceedings in the host country. Indeed, unless this duty is performed, future waivers are unlikely. As noted earlier, the means available to the commander to assure the accused’s presence include the imposition of appropriate restraint — restriction, arrest, or confinement — until the case is closed in the foreign courts.

*237After conviction, the host country may authorize an appeal from the judgment of its trial court; and under the law of the host country, an accused may be allowed to delay serving a sentence to confinement until his appeal has been completed.5 If, during this period, the accused servicemember is allowed by the foreign country to remain out of jail pending completion of appellate review, American military authorities will have an obligation to keep the servicemember under whatever restraint might be necessary to assure his presence for further proceedings in the courts of the host country.

At some point after conviction, the accused servicemember — unless successful on appeal — must begin serving any sentence to confinement adjudged by the foreign court. Even in this situation, if the host country is willing to allow the sentence to be served in an American confinement facility, I conclude that an adequate basis exists for American military authorities to hold the convicted servicemember in confinement for the period of the sentence adjudged by the foreign court. My conclusion is based on the policy manifested in American status-of-forces agreements as to criminal jurisdiction over American servicemembers — namely, the policy that our nation’s servicemembers be dealt with by American military authorities to the greatest extent that our treaty partners will allow. An additional- basis for my conclusion is found in the policy reflected in treaties entered into by the United States which provide for reciprocal transfers of prisoners with other nations. See, e.g., Treaty with Mexico on the Execution of Penal Sentences, Nov. 25, 1976, 28 U.S.T. 7399, T.I.A.S. No. 8718.

Although I find a legal basis for American military authorities to arrange with foreign officials for a servicemember convicted in a foreign court to serve his sentence in a military confinement facility, I reserve judgment as to whether, under those circumstances, the servicemember would be entitled to insist that he be incarcerated in a foreign penal facility, rather than in an American military confinement facility.

Because authority for confinement based on pending foreign charges is not found in the Uniform Code and the servicemember is not confined by reason of any suspected violation of the Code, no reason exists to include this time in computing pretrial confinement for purposes of United States v. Burton, supra. Moreover, the time in confinement on foreign charges affords no basis for credit on the sentence to confinement adjudged subsequently by a court-martial. See United States v. Allen, supra. However, the existence of such confinement is a permissible factor for a court-martial to consider in determining an appropriate sentence, ascertaining the prejudice to an accused because of delays in commencing his trial by court-martial, or deciding the voluntariness of a statement made while the accused is in such confinement.

The principal opinion suggests that it would be desirable for some type of periodic review to take place as to persons held in pretrial confinement. I would go further. Just as a hearing before a neutral and impartial officer must be provided an accused person who awaits trial by court-martial, cf. United States v. Heard, 3 M.J. 14 (C.M.A. 1977); Courtney v. Williams, 1 M.J. 267 (C.M.A. 1976), so, too, an accused must be afforded an opportunity for a hearing if he is being held in confinement because of charges pending in a foreign court. Indeed, the Army already provides such a hearing.

The scope of inquiry by the hearing officer is limited, however. Just as a court considering an extradition warrant from another state may not go behind the demanding state’s judicial determination that probable cause exists, cf. Michigan v. Doran, 439 U.S. 282, 99 S.Ct. 530, 58 L.Ed.2d *238521 (1978), a hearing officer may not examine the legal grounds for the charges filed against a servicemember in the courts of the host country. However, the hearing officer should determine whether confinement is necessary to assure the servicemember’s presence for the foreign court proceedings.6 Of course, in so doing, he must give great weight to the determination by the accused’s commander that confinement is necessary, because the commander is the agent responsible for meeting the United States’ treaty obligation. If the accused is ordered released from confinement, the commander may appropriately give timely notice of that order to the host country, so that it can take custody of the accused if it believes such action to be necessary in order to protect its rights to exercise jurisdiction.

Undoubtedly, in most instances a hearing officer will not disturb a commander’s decision to keep a servicemember in confinement in connection with pending charges in a foreign court; but I am convinced that sometimes the hearing may benefit an accused. In this connection, I note that in the case at bar Lieutenant Colonel Robert W. Gehring, a Marine judge advocate familiar with the administration of the Status of Forces Agreement with Japan, testified:

Q. Can you recall any Japanese request to confine an individual that was not followed by the Marines here on Iwakuni?
A. I can recall, I believe two cases, in which they requested restriction and we placed the people in confinement. I can recall one other ease in which the man was in confinement, the procurator indicated he had no objection to a work-release program, but the command did, and the man was not placed on a work-release program, and another case in which the man was on a work-release program, the procurator had no objections, but because of the man’s conduct on the work-release program it was terminated.

From this testimony, it would appear that occasionally American military authorities may have imposed more severe restraint than was requested by the Japanese. Certainly in such cases the hearing officer might wish to consider directing that the restraint imposed be mitigated.

Although in my view military authorities should be required to provide some opportunity for a hearing for the servicemember who is confined because of foreign charges, I would apply this requirement prospectively in other cases — just as we have done in similar situations. See United States v. Lynch, 13 M.J. 394, 397 (C.M.A. 1982). In the instant case, I am convinced that appellant was not prejudiced in any way by the absence of such a hearing.

Accordingly, with respect to the issues concerning pretrial confinement on which we granted review in this case, I give these responses:

A. International obligations assumed by the United States under agreements with Japan authorized American military authorities to confine appellant.
B. Confinement under such circumstance may be imposed by a military commander on the basis of a request from the host country or, even without a request, on the basis of the commander’s determination that confinement of the accused is necessary to assure his presence for foreign criminal proceedings, pursuant to the obligations of the United States to the host country.
C. Continued existence of the need for confinement by reason of pending foreign charges should be examined by a neutral and impartial official at the request of the accused.
D. In such an examination, no inquiry can be undertaken as to the grounds for the foreign charges but, instead, only as to their nature and pendency; however, the hearing officer should determine whether continued confinement is reasonably required in order to assure the *239accused’s presence for the foreign court proceedings.
E. The time spent in pretrial confinement with respect to foreign charges should not be considered in determining the running of a period of government accountability to bring an accused to trial on a military charge that may also be preferred. See United States v. Burton, supra.
F. No credit on appellant’s sentence to confinement is available with respect to the time spent in confinement because of the Japanese charges. Cf. United States v. Allen, supra.

II

Appellant made a statement to Japanese police authorities which, over vigorous objection, was received in evidence at his trial. Prior to making that statement, appellant had been informed by various persons — both American and Japanese — that things would go better for him in the Japanese courts if he cooperated with the police and made a statement. Also, the Marine officer who advised him about the Japanese proceedings led Murphy to believe that if he were prosecuted by the Japanese, he would not be prosecuted by American military authorities.

To some extent, this advice received by appellant was quite correct, since, under the agreement with Japan, he could not be court-martialed subsequently for the same offense for which he had already been tried in a Japanese court. See, e.g., United States v. Stokes, 12 M.J. 229 (C.M.A. 1982). Thus, there would be no occasion for use in an American court-martial of any statement he made to the Japanese, because the American trial would be barred by the agreement between the United States and Japan.

However, this advice to Murphy failed to mention the scenario that later followed in his case: He was convicted in the Japanese court for one drug offense, but then was tried by an American court-martial for another drug offense which was related, but was not the same as the first and so did not come within the treaty prohibition. Cf. United States v. Green, 14 M.J. 461 (C.M.A. 1983). In the trial by court-martial, appellant’s statement to Japanese was used against him.

Even though the advice Murphy received proved to be incomplete, there is no indication that an intent existed to deceive him, and the Marine officer who provided the advice did not purport to be acting as his attorney in the Japanese proceedings. Moreover, appellant was never expressly promised that a statement made to the Japanese could not be used against him in a trial by court-martial. Under these circumstances, I agree with the principal opinion that the admissibility of the statement was not destroyed by the omissions in the advice furnished to appellant.

Several remarks were made to Murphy that he would benefit in the Japanese courts if he made a confession. I can hardly criticize Japanese judges who reward cooperation by defendants, since a similar practice is common in American courts. Plea bargaining — a familiar practice, which has not only been accepted, cf. Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970); Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); but even acclaimed, Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971)—involves a reward for a defendant who cooperates with the prosecution by pleading guilty and thereby waiving important rights, such as self-incrimination, jury trial, and confrontation. Indeed, in Roberts v. United States, 445 U.S. 552, 100 S.Ct. 1358, 63 L.Ed.2d 622 (1980), the Supreme Court went even further in ruling that a heavier sentence could be imposed because a defendant had not cooperated with the authorities by identifying other persons involved in drug activity.

If the Japanese courts reward with lighter sentences accused persons who confess their guilt, certainly no fault can be found in informing Murphy that this is their policy. However, I am concerned about the effect of this information on the admissibility of his statement. Cases like Garrity v. *240New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967), make clear that, even though a police officer or other public servant may be compelled either to provide self-incriminating information or be dismissed from his job, any information extracted under this threat cannot be used later in a criminal prosecution- of the person who furnished it. Similarly, Kastigar v. United, States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), upheld grants of testimonial immunity on the premise that, although someone may be compelled to give self-incriminating testimony, that testimony cannot be used against him in a criminal trial. See also Murphy v. Waterfront Commission, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964).

These cases involved compulsion to testify exerted on a witness by state or federal authorities. On the other hand, the pressure on Murphy to confess emanated from foreign officials. Often the evidence obtained by foreign investigators is not subject to the same limitations on admissibility that would apply if American investigators had been involved. United States v. Jones, 6 M.J. 226 (C.M.A. 1979) (interrogation); United States v. Morrison, 12 M.J. 272 (C.M.A. 1982) (search and seizure). Indeed, in some respects, the treatment of such evidence is like that accorded to evidence seized by a private individual. Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921).

In dealing with the voluntariness of a confession, it is unclear whether any distinction can be made because the investigator is an official of a foreign government. In Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897), the Supreme Court ruled that an admission by the defendant in response to questioning by a Canadian detective had been involuntary, so, under the fifth amendment, it should not have been received in evidence; and the Court in no way indicated that different rules would apply to the admissibility of the statement obtained by this individual because he was not an American official. However, the defendant apparently was being held for the Consul General of the United States as a suspect in a murder aboard an American ship bound from Boston to South America; so, on agency principles, the foreign detective might have been deemed an agent of the United States in his interrogation.

In Bram, the Supreme Court discussed a number of English and American precedents, some of which involved exclusion of confessions because of inducements seemingly much less than those extended to Murphy in the case at bar. Moreover, Bram’s discussion of voluntariness is in these rather sweeping terms from 3 Russell on Crimes 478:

“But a confession, in order to be admissible, must be free and voluntary: that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence____ A confession can never be received in evidence where the prisoner has been influenced by any threat or promise; for the law cannot measure the force of the influence used, or decide upon its effect upon the mind of the prisoner, and therefore excludes the declaration if any degree of influence has been exerted.”

168 U.S. at 542-43, 18 S.Ct. at 187 (emphasis supplied).

In Brady v. United States, supra, which involved the voluntariness of a guilty plea, Bram was distinguished in this way:

Bram is not inconsistent with our holding that Brady’s plea was not compelled even though the law promised him a lesser maximum penalty if he did not go to trial. Bram dealt with a confession given by a defendant in custody, alone and unrepresented by counsel. In such circumstances, even a mild promise of leniency was deemed sufficient to bar the confession, not because the promise was an illegal act as such, but because defendants at such times are too sensitive to inducement and the possible impact on them too great to ignore and too difficult to assess. But Bram and its progeny *241did not . hold that the possibly coercive impact on a promise of leniency could not be dissipated by the presence and advice of counsel, any more than Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966), held that the possibly coercive atmosphere of the police station could not be counteracted by the presence of counsel or other safeguards.

397 U.S. at 754, 90 S.Ct. at 1472 (footnote omitted). Of course, this distinction does not aid the Government here, since Murphy was alone, unrepresented by counsel, and undergoing interrogation by representatives of a foreign power.

However, as a Court of Appeals has observed, the language of Bram “has never been applied with the wooden literalness urged upon us by appellant.” United States v. Ferrara, 377 F.2d 16, 17 (2d Cir. 1967); see also United States v. Ballard, 586 F.2d 1060 (5th Cir. 1978); United States v. Barfield, 507 F.2d 53 (5th Cir. 1975), cert. denied, 421 U.S. 950, 95 S.Ct. 1684, 44 L.Ed.2d 105 (1975). Thus, it seems appropriate to examine further whether, without ignoring Bram, the reception in evidence of Murphy’s statement is supportable.

At common law, the inadmissibility of involuntary confessions probably was predicated initially on their perceived untrustworthiness. As appears from the cases discussed in Bram v. United States, supra, some courts later expanded this rationale and also justified exclusion by distaste for unjust methods of interrogation and the exercise of arbitrary power by those in authority. See also Brown v. Walker, 161 U.S. 591, 596, 16 S.Ct. 644, 646, 40 L.Ed. 819, 821 (1896).

The Supreme Court has emphasized that exclusion of an involuntary confession under the due process clause of the fourteenth amendment must take place regardless of the confession’s trustworthiness. Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961). As the Court explained in Jackson v. Denno, 378 U.S. 368, 385-6, 84 S.Ct. 1774, 1785, 12 L.Ed.2d 908 (1964):

It is now inescapably clear that the Fourteenth Amendment forbids the use of involuntary confessions not only because of the probable unreliability of confessions that are obtained in a manner deemed coercive, but also because of the “strongly felt attitude of our society that important human values are sacrificed where an agency of the government, in the course of securing a conviction, wrings a confession out of an accused against his will,” Blackburn v. Alabama, 361 U.S. 199, 206-207, 80 S.Ct. 274 [280] 4 L.Ed.2d 242, 248, and because of “the deep-rooted feeling that the police must obey the law while enforcing the law; that in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves.” Spano v. New York, 360 U.S. 315, 320-321, 79 S.Ct. 1202, 1205-1206, 3 L.Ed.2d 1265, 1270.

(Emphasis supplied.)

The references in Jackson to “an agency of the government” and “the ... feeling that the police must obey the law while enforcing the law” suggest that, insofar as the exclusion of involuntary statements is concerned with protecting values other than assuring trustworthiness of evidence, those values relate to official misconduct. However, if a private individual has obtained a confession from a defendant, it would seem that exclusion of the statement can be justified only if it was untrustworthy. Certainly, exclusion of such confession will not improve official conduct in the future or have any impact on police behavior — the dangers addressed in Jackson v. Denno, supra.

The same reasoning would seem to apply to exclusion of statements obtained from an American servicemember by foreign interrogators. Exclusion of the evidence in an American court-martial will have no effect on the future conduct of the foreign officials. It will not alter the behavior of foreign interrogators. Perhaps exclusion *242can be justified on symbolic grounds if the foreign methods of interrogation are uncivilized — such as torture. However, it appears to me that, where statements are made to foreign officials by American servicemembers, the criterion for admissibility must be the trustworthiness of the statement which is being attacked as involuntary.

Accordingly, I must determine whether Murphy’s statement was made under circumstances that require its rejection because it was not voluntary enough to be trustworthy. I recognize that he might have said anything, true or false, in order to obtain a lighter sentence in the Japanese courts — especially since he did not anticipate prosecution by court-martial. Moreover, he had not been provided an attorney and, apparently, was not entitled to one under Japanese law at the time of his statement. Nonetheless, when I consider all the evidence that was offered as to voluntariness and look at the “totality of the circumstances,” I cannot conclude that, as a matter of law, the confession was so involuntary as to be untrustworthy. Therefore, albeit with some misgivings, I concur in the principal opinion’s conclusion that appellant’s confession to the Japanese was admissible at his subsequent court-martial.

. Art. XVII, para. 5(c) — Agreement under Article VI of the Treaty of Mutual Cooperation and Security Between the United States of America and Japan, Regarding Facilities and Areas and the Status of United States Armed Forces in Japan, Jan. 19, 1960, Senate Executive E, 86th Cong., 2d Sess. 81 (1960); see also 11 U.S.T. 1652, 1665, T.I.A.S. No. 4510.

. “A sovereign nation has exclusive jurisdiction to punish offenses against its laws committed within its borders, unless it expressly or impliedly consents to surrender its jurisdiction. The Schooner Exchange v. M’Faddon, 7 Cranch 116, 136, 3 L.Ed. 287.” Wilson v. Girard, 354 U.S. 524, 529, 77 S.Ct. 1409, 1412, 1 L.Ed.2d 1544, 1548 (1957).

. Obviously, this confinement must be under conditions akin to those for confining a servicemember prior to trial by court-martial.

. See, e.g., Williams v. Rogers, 449 F.2d 513 (8th Cir. 1971), cert. denied, 405 U.S. 926, 92 S.Ct. 976, 30 L.Ed.2d 799 (1972); United States ex rel. Stone v. Robinson, 309 F.Supp. 1261 (W.D. Pa.), aff’d., 431 F.2d 548 (3d Cir. 1970); Holmes v. Laird, 459 F.2d 1211 (D.C. Cir.), cert. denied, 409 U.S. 869, 93 S.Ct. 197, 34 L.Ed.2d 120 (1972).

. In United States v. Miller, 16 M.J. 169 (C.M.A. 1983), appellant had appealed his conviction by a Korean trial court; but apparently he was allowed to remain in the custody of American military authorities while this appeal took place.

. Also, the hearing officer should determine whether the conditions of confinement are appropriate for a person who has not yet been tried. See n. 3, supra.