In a recently issued opinion in the case of United States v. Castillo, No. 201300280 (N-M.C.C.A. 27 May 2014) (slip op.), the NMCCA appears to reverse course on the self-reporting requirement it rejected in United States v. Serianne, 68 M.J. 580 (N-M.C.C.A. 2009). Serianne and its aftermath previously received extensive coverage on CAAFlog.
As a refresher, in Serianne a Navy Chief was charged with dereliction of duty for failing to report his civilian DUI arrest, in violation of the Navy’s then drug and alcohol abuse prevention order. After arraignment, the defense filed a motion to dismiss this charge and specification on the basis that it violated the accused’s Fifth Amendment right against self-incrimination. The military judge agreed and dismissed the charge. The government appealed the military judge’s dismissal pursuant to Article 62, UCMJ.
On appeal, the NMCCA affirmed the military judge’s dismissal of the charge because the order violated the accused’s Fifth Amendment rights by compelling an incriminatory testimonial communication. Additionally, the NMCCA noted that the order was inconsistent with superior authority, specifically Article 1137 of the Navy Regulations, which explicitly excepted Naval personnel from reporting their own involvement in criminal offenses. This single paragraph in the NMCCA opinion loomed large when the Government appealed to CAAF. In United States v. Serianne, 69 M.J. 8 (C.A.A.F. 2010), the CAAF declined to reach the constitutional issues and affirmed the NMCCA decision based on the conflict between the order and the Navy Regulations.
In response to Serianne, the Secretary of the Navy amended Article 1137 requiring all Naval personnel to report any criminal convictions and authorizing the CNO to develop regulations that required reporting of civilian arrests if the purpose for that regulation was a regulatory or administrative one. In light of these changes, the CNO issued guidance pertaining to the amended Article 1137, which provided that Naval personnel only report:
THE DATE OF ARREST/CRIMINAL CHARGES, THE ARRESTING/CHARGING AUTHORITY, AND THE OFFENSE FOR WHICH THEY WERE ARRESTED/CHARGED. NO PERSON IS UNDER A DUTY TO DISCLOSE ANY OF THE UNDERLYING FACTS CONCERNING THE BASIS FOR THEIR ARREST OR CRIMINAL CHARGES. DISCLOSURE IS REQUIRED TO MONITOR AND MAINTAIN THE PERSONNEL READINESS, WELFARE, SAFETY, AND DEPLOYABILITY OF THE FORCE. DISCLOSURE OF ARREST/CRIMINAL CHARGES IS NOT AN ADMISSION OF GUILT AND MAY NOT BE USED AS SUCH, NOR IS IT INTENDED TO ELICIT AN ADMISSION FROM THE PERSON SELF-REPORTING. NO PERSON SUBJECT TO THE UNIFORM CODE OF MILITARY JUSTICE (UCMJ) MAY QUESTION A PERSON SELF-REPORTING AN ARREST/CRIMINAL CHARGES REGARDING ANY ASPECT OF THE SELF-REPORT, UNLESS THEY FIRST ADVISE THE PERSON OF THEIR RIGHTS UNDER UCMJ ARTICLE 31(B).
It also addressed how commanders should handle disciplinary action:
PER THIS NAVADMIN, COMMANDERS MAY IMPOSE DISCIPLINARY ACTION FOR FAILURE TO SELF-REPORT AN ARREST OR CRIMINAL CHARGES. HOWEVER, WHEN A SERVICE MEMBER DOES SELF-REPORT PURSUANT TO A VALID SELF-REPORTING REQUIREMENT, COMMANDERS WILL NOT IMPOSE DISCIPLINARY ACTION FOR THE UNDERLYING OFFENSE UNLESS SUCH DISCIPLINARY ACTION IS BASED SOLELY ON EVIDENCE DERIVED INDEPENDENTLY OF THE SELF-REPORT. COMMANDERS SHOULD CONSULT A JUDGE ADVOCATE PRIOR TO IMPOSING DISCIPLINARY ACTION.
Finally, the CNO’s message also amended several existing orders including OPNAVINST 3120.32C, Standard Organization and Regulations of the Navy. This provision is what is at issue in Castillo, and the amended language reads as follows:
ANY PERSON ARRESTED OR CRIMINALLY CHARGED BY CIVIL AUTHORITIES SHALL IMMEDIATELY ADVISE THEIR IMMEDIATE COMMANDER OF THE FACT THAT THEY WERE ARRESTED OR CHARGED. THE TERM ARREST INCLUDES AN ARREST OR DETENTION, AND THE TERM CHARGED INCLUDES THE FILING OF CRIMINAL CHARGES. PERSONS ARE ONLY REQUIRED TO DISCLOSE THE DATE OF ARREST/CRIMINAL CHARGES, THE ARRESTING/CHARGING AUTHORITY, AND THE OFFENSE FOR WHICH THEY WERE ARRESTED/CHARGED. NO PERSON IS UNDER A DUTY TO DISCLOSE ANY OF THE UNDERLYING FACTS CONCERNING THE BASIS FOR THEIR ARREST OR CRIMINAL CHARGES. DISCLOSURE IS REQUIRED TO MONITOR AND MAINTAIN THE PERSONNEL READINESS, WELFARE, SAFETY, AND DEPLOYABILITY OF THE FORCE. DISCLOSURE OF ARREST/CRIMINAL CHARGES IS NOT AN ADMISSION OF GUILT AND MAY NOT BE USED AS SUCH, NOR IS IT INTENDED TO ELICIT AN ADMISSION FROM THE PERSON SELF-REPORTING. NO PERSON SUBJECT TO THE UNIFORM CODE OF MILITARY JUSTICE (UCMJ) MAY QUESTION A PERSON SELF-REPORTING AN ARREST/CRIMINAL CHARGES REGARDING ANY ASPECT OF THE SELF-REPORT, UNLESS THEY FIRST ADVISE THE PERSON OF THEIR RIGHTS UNDER UCMJ ARTICLE 31(B).
The appellant in Castillo was charged with and convicted of, among other things, disobeying a lawful general order in violation of Article 92, UCMJ. The appellant was arrested for DUI by civilian law enforcement in Feburary of 2012. In August of 2012, one of her supervisors was in court for another Sailor’s court appearance and noticed the appellant’s name on the court docket. The supervisor reported her arrest and pending case to the chain of command.
At trial, the defense challenged the constitutionality of the self-reporting order on the basis that, despite the revisions of Article 1137 and OPNAVINST 3120.32C, the self-reporting requirement still compelled a testimonial and incriminating statement, in violation of the Fifth Amendment. The defense also argued that the regulatory exception to the Fifth Amendment from California v. Byers, 402 U.S. 424 (1971) did not apply. The military judge rejected this challenge, finding that:
[P]aragraph 6 of NAVADMIN 373/11 imposes clear regulatory restrictions on commanders, removing the real danger of legal detriment. As such, the compelled, testimonial act of providing the required information pertaining to the civilian arrest/charge is not incriminating…These clear restrictions on the use of the arrest/charge information distinguish the facts at bar from Serianne and further serve to evince the order’s legitimate administrative purpose by segregating the required information from the criminal justice arena.
Slip op. at 7.
The NMCCA’s analysis starts off similarly to their analysis in Serianne, with the NMCCA finding that the statements are compelled and testimonial. Slip op. at 8. However, they find that the changes to OPNAVINST 3120.32C prohibiting prosecution on the basis of the disclosure “removed any real and appreciable danger of legal detriment for a self-reported arrest or criminal charge.” Slip op. at 10. Therefore, they conclude that the self-reporting requirement is not incriminating and thus constitutional. Id.
While this result seems logical enough given the revisions to the applicable regulations, there seems to be the potential for more litigation as the courts tease out the limits of the “use restriction.” In light of this decision, if a member self-reports a civilian DUI, can his command then seek out evidence of this crime from civilian authorities and prosecute him? Or, is any further investigation initiated by the command after the self-report covered under the use restriction? Is self-reporting now a “poison pill” with which a member can immunize himself from military prosecution for DUI?
The NMCCA does not explicitly define the limits of the “use restriction,” preferring to leave it as somewhat of an open question:
We find nothing ambiguous in the CNO’s directive prohibiting commanders from imposing discipline for the underlying offense of a self-reported civilian arrest or criminal charge, unless the disciplinary action is based solely on evidence derived independently of the self-report. While the imposition of discipline in such a circumstance may routinely raise the question of whether the evidence was obtained independent of the self-report, this is not a unique legal concept. Similar determinations must be made when the Government grants “testimonial” or “use” immunity and then later moves to prosecute the immunized witness. See Kastigar v. United States, 406 U.S. 441 (1972); United State v. Vela, 71 M.J. 283 (C.A.A.F. 2012); United State v. Allen, 59 M.J. 478 (C.A.A.F. 2004); United State v. Mapes, 59 M.J. 60, (C.A.A.F. 2003); United State v. Youngman, 48 M.J. 123, (C.A.A.F. 1998); United State v. McGeeney, 44 M.J. 418 (C.A.A.F. 1996).
Slip Op. at 9. However, the NMCCA does seem to hint that they would construe the “use restriction” somewhat broadly against the Government, covering evidence directly and indirectly obtained as a result of the self-report:
Such a circumstance does not run afoul of the Fifth Amendment’s Self Incrimination Clause because the Self Incrimination Clause’s “sole concern is to afford protection against being ‘forced to give testimony leading to the infliction of ‘penalties affixed to … criminal acts.’ Immunity from the use of compelled testimony, as well as evidence derived directly and indirectly therefrom affords this protection.” Kastigar, 406 U.S. at 453 (internal citations omitted).
Slip Op. at 9-10.
This position would be consistent with the one articulated by the NMCCA in Serianne when rejecting the Government’s contention that the public nature of an arrest record takes it out of the realm of an incriminatory statement:
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. Similarly unpersuasive is the Government’s apparent contention that the independent discovery of the appellee’s arrest by his command militates against a finding that the arrest was incriminatory. Id. at 7-8. “The judgment as to whether a disclosure would be ‘incriminatory’ has never been made dependent on an assessment of the information possessed by the Government at the time of interrogation ….”
Serianne, 68 M.J. at 583. Reading Serianne and Castillo together, it seems likely that the NMCCA would find any command investigation initiated after a self-report barred from use in prosecution by the “use restriction.” If that is the case, then Castillo may create a reasonable middle ground where military members can self-report important information related to military readiness, while reducing the unreasonable practice of prosecuting members in military courts for civilian DUIs.