CAAF will hear oral argument in the Navy case of United States v. Castillo, No. 14-0724/NA (CAAFlog case page), on Wednesday, February 11, 2015. It will be the first oral argument of a Navy case at CAAF since May 2013. The court will consider the Navy’s current requirement that members self-report any arrests by civil authorities, with the following issue:
Whether the lower court improperly determined that duty to self-report one’s own criminal arrests found in Office of the Chief of Naval Operations Instruction 3120.32c was valid despite the instruction’s obvious conflict with superior authority and the Fifth Amendment.
The Navy has long required that its members report offenses punishable under the UCMJ that are known to them. See, Article 1137, U. S. Navy Regulations; United States v. Tyson, 2 M.J. 583 (N.C.M.R. 1976) (discussing predecessor Article 1139); United States v. Bland, 39 M.J. 921 (N.M.C.M.R. 1994) (discussing both). The Navy has also enforced various requirements that members report matters related to their own potential misconduct. But the Navy-Marine Corps Court of Criminal Appeals invalidated one such requirement in United States v. Serianne, finding that an order for Navy personnel to self-report alcohol-related arrests by civil authorities compelled an incriminatory testimonial communication in violation of the Fifth Amendment and contrary to the then-existing language of Article 1137, U.S. Navy Regulations, and CAAF affirmed on the basis of Article 1137 without reaching the constitutional issue. 68 M.J. 580 (N-M. Ct. Crim. App. 2009), aff’d, 69 M.J. 8 (C.A.A.F. 2010).
After Serianne, the Navy revised Article 1137 to explicitly authorize regulations that “require servicemembers to report civilian arrests or filing of criminal charges if those regulations or instructions serve a regulatory or administrative purpose.” ¶ 2.3, ALNAV 049/10 (Jul. 21, 2010). Other regulations followed, including a change to the Navy’s Standard Organization and Regulations Manual to include the following self-reporting requirement:
Any person arrested or criminally charged by civil authorities shall immediately advise their immediate commander of the fact that they were arrested or charged.
¶ 4.c, NAVADMIN 373/11 (Dec. 8, 2011) (amending ¶ 510.6, OPNAVINST 3120.32C (2005), superseded by ¶ 5.1.6, 3120.32D (Jul. 16, 2012)) (available here).
Appellant is a junior enlisted Sailor who was arrested by civil authorities in Kitsap County, WA, and charged with driving under the influence. She did not report her arrest to military authorities. Nevertheless, Appellant’s arrest was discovered when one of her supervisors observed her name on the court docket and reported this fact to her chain of command. Appellant was then prosecuted for numerous offenses, including a violation of the self-reporting requirement of OPNAVINST 3120.32C. She was convicted contrary to her pleas of not guilty by a special court-martial composed of members with enlisted representation.
Appellant challenged the constitutionality of the self-reporting requirement at trial. The military judge rejected the challenge, concluding that the requirement served a legitimate administrative purpose, and further finding that the requirement was non-incriminatory because of the following use-limitation contained in the NAVADMIN:
[C]ommanders shall not impose disciplinary action for the underlying offense unless such action is based solely on evidence derived independently of the self-report.
¶ 6.a, NAVADMIN 373/11. The NMCCA affirmed, avoiding a strict Fifth Amendment analysis by agreeing that the requirement is non-incriminatory, and concluding that the requirement “was promulgated for a regulatory or administrative purpose and thus complies with U.S. Navy Regulations Article 1137 as amended by ALNAV 049/10.” United States v. Castillo, No. 201300280, slip op. at 13 (N-M. Ct. Crim. App. May 27, 2014).
Five months later, CAAF granted review.
Appellant’s brief makes three main points. First, Appellant argues that the self-reporting requirement is not regulatory or administrative in nature, but rather “is clearly aimed at extracting information on criminal activity.” App. Br. at 7. Second, Appellant argues that the use-limitation on a self-report (that any disciplinary action must be based on independently-derived evidence) is inadequate, because “the clause does not comply with R.C.M. 704 [the rule for grants of immunity -zds] and is in fact a legal nullity.” App. Br. at 17. Finally, Appellant asserts that the revised U.S. Navy Regulations Article 1137 only authorizes a requirement to self-report charges, not arrests, because “the newly revised Article 1137 does not include the word arrest.” App. Br. at 10.
Of these three arguments, I suspect that CAAF will likely focus exclusively on the first. This is because I see the second argument is somewhat immaterial, and the third as plainly wrong. Working in reverse, Appellant’s third argument is plainly wrong because the new Article 1137 does authorize a requirement to report arrests, stating in paragraph 3 that:
The Secretary of the Navy, Chief of Naval Operations, and Commandant of the Marine Corps may promulgate regulations or instructions that require servicemembers to report civilian arrests or filing of criminal charges if those regulations or instructions serve a regulatory or administrative purpose.
¶ 2.3, ALNAV 049/10 (Jul. 21, 2010) (emphasis added) (available here).
I see the second argument as somewhat immaterial because an individual’s Fifth Amendment right against self-incrimination is protected when the individual receives “immunity from the use of compelled testimony, as well as evidence derived directly and indirectly therefrom.” Kastigar v. United States, 406 U.S. 441, 453 (1972). Whether that immunity flows from strict compliance with R.C.M. 704, or whether it is the product of other Government action, does not make it any less effective in protecting an individual’s right against self-incrimination.
However, one part of Appellant’s argument that the use-limitation does not adequately protect against self-incrimination is particularly interesting. Appellant’s brief asserts:
[T]he immunity offered in the instruction is not sufficiently specific to inform a service member as to the matters that the immunity extends. The instruction states: “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 the evidence independent of the self-report.” (J.A. at 138.) Although the instruction is “written,” the purpose of R.C.M. 704(d)’s requirement for written immunity is not fulfilled.
This is because a service member does not know whether he or she has immunity before he or she reports since only “valid self-reports” are spared disciplinary action. At the time of the report, the service member will not know if the report is “valid” because the service member will not know if the command is aware of the arrest yet or not. A service member who does not pre-empt the command is not afforded any protection. By informing the command in that scenario, the member would confirm their guilt by an additional admission of involvement in the incident that led to arrest or conviction.
App. Br. at 17-18. I don’t think it’s an accurate reading of the instruction to say that a the use-limitation applies only to “valid self-reports” or to self-reports that preempt independent discovery of the reported matter by the service member’s command. The instruction addresses “a valid self-reporting requirement,” and it requires only “immediately” advising the command. However, the instruction also states:
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.
¶ 4.c, NAVADMIN 373/11. If a service member provides additional details in the initial report, prior to any questioning by Government agents, it is unclear if the use-limitation will apply to any excess disclosure. However, this issue is not raised by the facts of this case, because Appellant made no report and was prosecuted for that failure.
Appellant’s primary argument is that the self-reporting requirement “is clearly aimed at extracting information on criminal activity.” App. Br. at 7. This argument is ultimately a critique of the rationale for the requirement:
There is no indication that anything about FN Castillo’s arrest impacted her ability to perform the mission for the seven months the command was unaware of her arrest. This is despite being attached to a ship. FN Castillo’s very real exemplar disputes the broad, generalized statement that self-reporting is required for mission readiness.
App. Br. at 13. The Government’s response asserts that “Appellant trivializes the United States’ interest in learning of Sailors’ arrests.” Gov’t Br. at 15. Whether or not this is true, CAAF is unlikely to decide this case by contradicting the opinion of the Chief of Naval Operations on what is required for mission readiness.
The Navy took significant steps to resurrect a self-reporting requirement after Serianne by carefully crafting a regulatory scheme designed to pass Constitutional muster. If Appellant is successful in toppling this scheme, it’s debatable whether any self-reporting requirement could survive review.
• NMCCA opinion
• Blog post: The Return of Self-Reporting? NMCCA Reverses Course on Serianne
• Appellant’s brief
• Appellee’s (Government) brief
• Appellant’s reply brief
• Blog post: Argument preview