CAAF’s third and final oral argument on Monday is in the “unusually interesting” Article 62 case of United States v. Hathorne, No. 12-6002/AF.

The case presents two issues. The first involves a grant of immunity from the convening authority, which the trial counsel strategically withheld from the appellant during an interview in which the appellant waived his right to remain silent and made numerous incriminating statements. The trial military judge found this to be “technically … correct under the Constitution and Article 31,” [but] inconsistent with “the law and fundamental notions of fairness,” ruled that the immunity was effective when issued, and dismissed the charge with prejudice. The government appealed, and the Air Force CCA reversed the trial military judge and reinstated the charge, finding that the trial counsel’s actions were within his authority and consistent with the convening authority’s intent, and that because the appellant waived his right to remain silent, there was nothing for the grant of immunity to overcome. The appellant then petitioned CAAF for review of the following issue:

Whether government counsel’s strategic withholding of the convening authority’s grant of immunity makes appellant’s statement to government counsel non-immunized.

However, neither the trial military judge nor CAAF agreed to stay the trial proceedings while considering the appellant’s petition, and the trial proceeded on November 1-2, 2011, resulting in a conviction of one specification of cocaine use, and a sub-jurisdictional sentence of confinement for 7 days, hard labor without confinement for 30 days, restriction for 30 days, and reduction to E-1. The case was reviewed by a Judge Advocate under Article 64(a) on  December 6, and the appellant was administratively discharged (with a general characterization) effective December 27. On January 4, 2012, CAAF granted review of the first issue, and specified the second issue:

Whether, in light of United States v. Lopez de Victoria, 66 M.J. 67 (CAAF, 2008), this court has jurisdiction over an Article 62, UCMJ, appeal when the court-martial has adjudged a sentence that did not include a punitive discharge or confinement for one year?

The case began when the appellant’s roommate tested positive for cocaine, and the appellant was interviewed as a potential witness. Another potential witness implicated the appellant in use of cocaine, and the trial counsel – concerned that the appellant would refuse to testify during his roommate’s court-martial – obtained a grant of testimonial immunity from the general court-martial convening authority (GCMCA) on February 3. The next day, the appellant presented himself for another interview and was advised of his Article 31, UCMJ, rights and told that he was suspected of using cocaine. The appellant then waived his rights and admitted to the wrongful use. The government considered this to be a non-immunized admission, and proceeded to investigate and charge the appellant for the wrongful use without observing any of the limitations applicable in a case involving immunized statements (i.e., without adhering to the principles of Kastigar v. United States, 406 U.S. 441 (1972)) .

At CAAF, the appellant argues that he was protected by the grant of immunity beginning when it was signed by the GCMCA, and that the trial counsel’s withholding of the grant is meaningless. The appellant notes that the GCMCA did not place any conditions on the grant, despite a request from the “legal office” that it not be effective until delivered. Appellant’s Supplement at 8. The appellant also argues that the AFCCA substituted its own judgement for the discretion of the trial judge, and that the CCA’s decision “provides a bad precedent” that will “encourage trial counsel in future cases to engage in just the sort of stratagems that government counsel employed here,” undermining the authority to grant immunity. Supplement at 9.

On the jurisdictional question, the appellant argues that CAAF has continuing jurisdiction based on the government’s initial appeal under Article 62, and that subsequent action by a lower court or the convening authority cannot subvert that jurisdiction. The appellant notes that the appellate courts retain jurisdiction even after an administrative discharge or a remand. Appellant’s br. at 4-5.

In its answer to the appellant’s petition, the government initially argues that the appellant has not shown good cause why the court should grant post-trial interlocutory relief, rather than require the appellant to pursue the ordinary course of review under Article 64. On the granted issue, the government argues that this case presents two 5th amendment issues: “The first issue is whether statements by an accused can be considered immunized when the accused is unaware of the grant of immunity and has not invoked his right against self-incrimination. The second issue is whether the accused’s unawareness of the grant of immunity renders his confession involuntary.” Gov’t answer at 10-11. Because the Fifth Amendment protects against compelled statements, the government argues that the appellant must have relied upon the grant of immunity, or at least have known of it, in order to be protected by it. Additionally, the government argues that the appellant intelligently and voluntarily waived his right to remain silent, and that his ignorance of the immunity grant is immaterial to the question of the voluntariness of his confession

In its brief on the jurisdictional issue, the government argues that the “Appellant’s case is now final under Article 76, UCMJ, and R.C.M. 1209(a)(2), further review under Article 67 is not authorized, and accordingly, review in this case was improvidently granted.” Gov’t br. at 7. Noting that CAAF declined to stay the trial proceedings, the government “respectfully asserts that Article 62 and R.C.M. 908 do not envision or provide this Court of limited and specified jurisdiction with the authority to conduct what would be in this case a post-trial and post-appellate review of an interlocutory appeal.” Gov’t br. at 9. The government also argues that the appellant’s claim of jurisdiction is based on principles of equity (i.e., “fairness”) and not law.

One thing not noted in the pleadings is the extent to which this issue was litigated, if at all, during the Article 64 review of the court-martial. I’ve previously commented on the paucity of issues raised during Article 64 reviews (and the review in this case did involve the use of a rubber stamp, apparent in Appendix A of the government’s brief). I continue to believe that Article 64 is a significant and underutilized avenue for relief. However, at least the defense in this case didn’t ask for a punitive discharge so as to ensure review by a CCA.

Also of interest from the CAAFlog archives is this 2009 post from Marcus Fulton discussing jurisdictional issues in the wake of United States v. Denedo, 556 U.S. 904 (2009), and this reply from Dwight Sullivan. However, Denedo is also not noted in the Hathorne pleadings.

Case Links:
AFCCA’s opinion
Blog post: AFCCA grants another Article 62
Blog post: CAAF grant
Appellant’s supplement to petition for grant of review
Government’s answer
Appellant’s brief
Appellee’s (government) brief
Blog Post: Argument preview

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