A En Banc Navy-Marine Corps Court of Criminal Appeals has held that the requirement in OPNAVINST 5350.4C that a sailor “promptly notify their CO” of certain civilian alcohiol related offenses is unconstitutional.   See United States v. Serianne, No. 200900330, __ M.J. __ (N-M Ct. Crim. App. Nov. 25, 2009).  Update:  Here is the offical NMCCA link. 

OPNAVINST 5350.4C’s relevant provision states

All personnel are responsible for their personal decisions relating to drug and alcohol use and are fully accountable for any substandard performance or illegal acts resulting from such use.  Members arrested for an alcohol-related offense under civil authority, which if punished under the UCMJ would result in a punishment of confinement for 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.

The lead opinion, authored by Judge Perlak,  affirms the ruling of the military judge, concluding 

In requiring the disclosure of a servicemember’s arrest for driving under the influence, we hold that OPNAVINST 5350.4C compels an incriminatory testimonial communication for which no exception exists.

Judges Vincent, Mitchell, Booker, Price, Maksym, and Carberry concurred in the lead opinion.  Chief Judge Geiser, concurred in the result in a separate opinion based on vagueness grounds,  writing

I specifically find the requirement that servicemembers report “an alcohol-related offense under civil authority, which if punished under the Uniform Code of Military Justice would result in a punishment of confinement for 1 year or more, or a punitive discharge or dismissal from the service…” to require knowledge of future events that servicemembers cannot possibly possess.  While servicemembers could be expected to know or determine without difficulty the maximum possible punishment for a particular offense, it is unreasonable to require them to divine what “would result” if the case were punished at court-martial.

Judge Beal concurred in the result based on Judge Geiser’s rationale and seems to concur that a prosecution based on a self report would pose constitutional questions, which he suggests are not raised by this case where the member sailor failed to self-report, stating

While I believe the mandates of Chief of Naval Operations Instruction (OPNAVINST) 5350.4C might present a constitutional dilemma if a convening authority chooses to criminally prosecute a servicemember who complies with the instruction, I also believe the instruction serves a legitimate administrative purpose to ensure that information regarding drug or alcohol related offenses is properly brought to the attention of commanders who have a responsibility to ensure appropriate administrative action is taken, e.g. report or reassess the member’s qualifications for promotion or to hold a security clearance.  In other words, it is appropriate to require servicemembers to put themselves on report for administrative purposes.

 In cases where a convening authority might choose to refer charges against an accused that stem from the conduct self-reported in compliance with the order, I believe the proper remedy in certain cases would be to dismiss the charge or charges stemming from the self-reported conduct.  Had the accused self-reported his civilian arrest in compliance with OPNAVINST 5350.4C, and if his self-reporting was the sole basis for the accuser’s preferral of charges, then I believe the Fifth Amendment right against self-incrimination would have barred his prosecution for the underlying misconduct, i.e., in this case the proper remedy would be to dismiss the Article 111 charge, not the Article 92 charge.

Update later when we get through all the opinions in some detail.  H/t to Row.

15 Responses to “NMCCA Finds DUI Arrest Self-Reporting Requirement Unconstitutional”

  1. huh says:

    Admittedly I haven’t read the “opinion,” but why is the fact that I was arrested by a police officer an incriminatory statement at all? As to Geiser’s point about reading the future, looks like the regulation meant to say “punishable by” rather than “would result in a punishment.”

  2. Southern Defense Counsel says:

    I’ve wondered about this requirement since first being shown it. As to what the regulation “meant to say,” I doubt regulations mean to say anything. They say what they say, and if they are unconstitutionally vague there is no exception to the rule forbidding them just because the reg “meant” not to be.

    I think that Geiser and Beal took the more judicious route and avoided reaching a decision they didn’t have to reach, thus I find their opinions more persuasive.

  3. Steve says:

    Looks like serious overreach by the Navy (first in drafting the instruction, then by charging it).

  4. Anonymous says:

    I’m confused by Geiser’s concurrence. How was the vagueness issue even before the court? If that’s not the basis for the m.j.’s decision below, than it’s not part of the government’s appeal and not before CCA.

  5. Justin says:

    Here’s the lynchpin sentence of the entire decision:

    “While a matter of public record like an arrest report has, by some courts, been held to be non-incriminating, such reports plainly contain adverse matter and not only furnish a link in the chain of an investigation but very often trigger an investigation that would lead to incriminating evidence.”

    For this central proposition, that mere arrest “reports,” though they are public records, “very often … would lead to incriminating evidence,” the court cites: nothing.

    I can’t say I’m shocked, but I am … bemused?

    And “Steve,” before you speculate about “overreach by the Navy” — as if Admiral Roughead were sending draft charges to the squadron CO — maybe you should familiarize yourself with the facts of the case. Can you think of a context in which a sailor’s failure to report his DUI arrest might be so flagrant as to constitute a violation of this instruction?

  6. Southern Defense Counsel says:

    Justin,

    Do you have some insight into this? The opinion is very short on facts (and admittedly on citation too), and it appears that this is but one charge in a litany. Any further info would be greatly appreciated.

  7. Justin says:

    Trying not to speak out of turn, or create any misperceptions (or even accurate perceptions) about the government’s case, I will say that the original charge sheet had this 92 spec, the underlying 111 spec, and another, separate, 111 spec from 2008.

    In context, the 92 charge was totally appropriate and essential to the government’s theory, especially after the MJ dismissed the 2008 111 spec as having been the subject of a previous NJP. That ruling wasn’t appealed, though I think it’s raised interesting question about which previously-NJP’d offenses can be brought again at court-martial.

    Here’s another question: can the instruction create a duty to report, the failure of which is indicia of guilt, even if it is not a criminal violation to fail to report? Probably not, now, under this ruling.

    I just think the court’s handling of precedent in this opinion is baffling. Why does the court invite us to “compare” Oxfort with Hubbell? Why not just analyze Oxfort to see if CAAF has provided any guidance on what constitutes an “incriminating” statement? With regard to the regulatory exception, why did California v. Byers get no treatment at all, mentioned only once in a string cite? It’s only the modern touchstone case.

    And how do we know that OPNAVINST 5350.4C is “decidedly punitive”? According to the court, because the instruction has a phrase regarding punitive consequences for alcohol-related misconduct.

    Respectfully, the instruction is 350 pages long! There’d better be something in there about punitive consequences. But the CNO’s alcohol and substance abuse policies are no more “decidedly punitive” than the Secretary of Defense’s security classificiation policies or the Commandant of the Coast Guard’s travel regulations, or, and this is the big one, the tax code of the United States.

  8. No Man says:

    Justin: Nice post and thanks for the info. Just one question though, isn’t the reporting provision puntiive because it says in the excerpted portion that it is punitive?

  9. Justin says:

    “[I]sn’t the reporting provision punitive because it says in the excerpted portion that it is punitive?”

    Good question. I don’t think so.

    First, having some punitive consequence renders this policy no different from any other regulatory regime that requires reporting (again, e.g., security information, travel information, tax information). Anytime you’re required to communicate with the government about an event in your life, that report is potentially going to “lead to incriminating evidence.”

    In 5350.4C, the excerpted langauge re “punitive” consequences comes from the introductory language and applies to the active alcohol-related misconduct. The self-reporting language comes from the substantive text of the policy, in a completely different section, though the court’s opinion made it read as if the self-reporting requirement immediately preceded the “punitive” language.

    It seems the court grafted the analysis used to determine whether an instruction is “punitive” and therefore subject to Art 92 charges, onto the analysis of whether a given policy is “essentially regulatory.”

    To underscore this already-belabored point, there are hundreds, even thousands, of servicemembers and civilians in the Navy with jobs in the Substance Abuse and Rehabilitation Programs (products of OPNAVINST 5350.4C) who are now proverbially scratching their heads, wondering when they became part of a “decidedly punitive” disciplinary regime.

  10. Mike "No Man" Navarre says:

    Justin: I don’t read it that way, as the excerpted paragraph includes the self-reporting requirement and is in the standard “Action” section of the instruction. But, I think it is a minor point compared to the rationale articulated by the majority and Judge Geiser. I have to say, however, that I admired Judge Beal’s rulings as a trial judge and find his appellate writings persuasive as well.

  11. Justin says:

    Agreed. Of three three opinions, his made the most logical sense.

    Final query: under the Serianne test (whatever it is), when does an Article 92 charge for failure to report [X] — even as dereliction — ever withstand a 5th Amendment challenge?

    My take on the court’s reasoning in its holding is, where it is “reasonable” to believe that the reporting “would lead to further disclosure of incriminating evidence” and “probably cause the initiation of a criminal investigation by the Navy into his conduct,” a Sailor cannot be compelled to report … anything.

    What does this mean for, say, mis-filled tagout sheets? Duty logs? Any financial information? Or, my favorite, tax returns?

  12. Justin says:

    Thinking about it further, if the case had come back to NMCCA, could the defense for LtCol Chessani have relied on US v. Serianne? Wouldn’t it have been “reasonable” for him to believe that any report he provided “would lead to further disclosure of incriminating evidence” and “probably cuase the initiation of a criminal investigation by the Navy into his conduct”?

  13. Justin says:

    I meant “cause,” and of course “Navy” stands for any departmental entity.

  14. Frank says:

    Allow me to draw a strange parallel here for personal reasons.

    We recently received a discharge via chap7. We lost everything after we bought a new home in 2007 but were unable to sell the old house! Anyway, I have clearance & am supposed to “disclose” the chap7 to my security officer.

    The good news is it looks like a short-sale will finally go thru (after 3 years on the market). Carrying TWO mortgages is what wiped us out (tried renting but hey left the place damaged…in the middle of the night).

    I HATE the idea of someone Monday-morning quarterbacking our last 3 years of unbelievable stress, sleepless nights & living like starving college kids…

    I used a gov’t sanctioned utility to do what was right for my family…really don’t see why anyone-else but me & my creditors need to know about it. My debts are gone thus any supposed “risk” associated w/ high debt holders holding a “need to know” has been mitigated.

    It occurs to me my employer (defense contractor) has an obligation to the gov’t to background-check it’s employees…well, I did a chap7 so the “gov’t” already knows…

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