CAAF decided the Navy case of United States v. Castillo, 74 M.J. 160, No. 14-0724/NA (CAAFlog case page) (link to slip op.), on Monday, May 18, 2015. The court rejects Appellant’s two-fold challenge the Navy’s current requirement that its members self-report to military authority any arrest or initiation of criminal charges by civilian authorities. Finding that the Navy created the requirement in direct response to CAAF’s decision in United States v. Serianne, 69 M.J. 8 (C.A.A.F. 2010), and rejecting Appellant’s hypothetical applications as insufficient to sustain a facial challenge to the regulation, CAAF confirms the validity of the requirement, affirming the decision of the Navy-Marine Corps CCA.

Chief Judge Baker writes for a unanimous court.

CAAF granted review of a single issue:

Whether the lower court improperly determined that [the] 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. 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 ran afoul of this new requirement:

In February 2012, Appellant was arrested in Kitsap County, Washington for driving under the influence.3 She did not report the arrest to her command. Her command learned of the arrest during an unrelated visit to the local courthouse, during which one of her supervisors noticed her name on the court’s docket. She was subsequently charged with violating a lawful order, to wit, wrongfully failing to report the arrest, in violation of Article 92, UCMJ.

Slip op. at 7. Appellant challenged the legality of the requirement at trial and again on appeal at the NMCCA, asserting that the arrested-or-charged reporting requirement conflicts with Article 1137, U.S. Navy Regulations (superior regulatory authority), and that it violates the Fifth Amendment. Both arguments failed at trial and at the NMCCA, and now they fail at CAAF.

Chief Judge Baker’s opinion for the unanimous court addresses each of Appellant’s arguments in turn. Considering the argument that the reporting requirement conflicts with Article 1137, Chief Judge Baker acknowledges that:

If the self-reporting requirement conflicts with U.S. Naval Regs., Article 1137, then failure to adhere to the requirement cannot serve as the basis for a prosecution under Article 92, UCMJ. Serianne, 69 M.J. at 11.

Slip op. at 10. But CAAF rejects Appellant’s argument that Article 1137 is internally inconsistent, explaining that:

U.S. Naval Regs., Article 1137, directs that servicemembers need not report UCMJ offenses in which they themselves are “criminally involved,” and that protection — addressed to substantive reports of offenses, not factual reports of arrests — survives the amendment at issue in this case. The amendment specifically authorizes regulations that require the self-reporting of arrests, and that requirement does not conflict with or alter the substantive protection against the required self-reporting of offenses.

Slip op. at 12. Considering that Article 1137 also requires that any self-reporting requirement must also serve “a regulatory or administrative purpose,” slip op. at 12 (quoting ALNAV 049/10), Chief Judge Baker finds such a purpose:

We have no doubt that, for the reasons stated in the service instruction, the Navy has a legitimate administrative or regulatory interest in knowing whether sailors have been arrested by civilian authorities. We are further convinced, given the protections included in the service instruction, that the regulation is not drawn for a punitive purpose.

Slip op. at 20.

This constitutional analysis begins with a crucial fact of this case:

This appeal necessarily arises in the context of a facial challenge to the self-reporting requirement, because Appellant did not incriminate herself, but rather contends that the service instruction unconstitutionally compels her to do so.

Slip op. at 13 (emphasis added). Facial challenges to the constitutionality of a statute or regulation – as opposed to as-applied challenges – are the most difficult to make because they require a showing that “no set of circumstances exists under which the regulation would be valid.” Slip op. at 3 (quoting United States v. Wright, 53 M.J. 476, 481 (C.A.A.F. 2000) (quoting United States v. Salerno, 481 U.S. 739, 745 (1987)) (marks omitted). Because Appellant did not self-report and was prosecuted for that failure to obey the requirement, the challenge to the requirement must consider the universe of hypothetical applications where a service member actually obeys the requirement. Put differently:

The questions before the Court are whether the self-reporting regulation can be applied in a manner that upholds the Constitution, and whether it was so applied to Appellant.

Slip op. at 14 (emphasis added). CAAF finds that the requirement can be applied constitutionally because it does not present a real and appreciable hazard of self-incrimination for an obedient service member:

In asking whether the government may apply the self-reporting requirement in a manner that is constitutional, we look first to the nature of the compelled disclosure. As implemented by NAVADMIN 373/11, the service instruction requires that a servicemember disclose “the fact that they were arrested or charged.” The instruction proceeds further: “No person is under a duty to disclose any of the underlying facts concerning the basis for their arrest or criminal charges.” And no person subject to the UCMJ may use this report to initiate disciplinary action absent an independent investigation, or to question the reporting servicemember absent an Article 31(b), UCMJ, 10 U.S.C. § 831 (2012), warning against self-incrimination.

The question then becomes whether the factual report of an arrest, accompanied by the safeguards against further questioning or prosecution contained in the service instruction, presents a “real and appreciable” hazard of self-incrimination, where the regulation is in fact followed as drafted. Marchetti, 390 U.S. at 48 (citations omitted) (internal quotation marks omitted). We conclude that it does not.

Slip op. at 14-15.

And so the court affirms Appellant’s conviction.

Yet at the end of the opinion there are three sentences that offer a glimmer of hope for a future challenger:

In this case, Appellant has ably advanced questions of constitutional law, and has directed our attention to issues that may arise in future cases. None of those issues are properly presented in this case, because Appellant was constitutionally prosecuted for the failure to report her civilian arrest under Article 92, UCMJ. OPNAVINST 3120.32C as amended by NAVADMIN 373/11 is constitutional on its face, and any unconstitutional government action taken under color of the self-reporting requirement must be addressed in subsequent litigation.

Slip op. at 20-21. While the Navy’s self-reporting requirement survives the challenge in this case, CAAF’s invitation to future litigants practically guarantees that this case isn’t the last time the Navy will be forced to defend its self-reporting requirement in court.

Case Links:
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
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

3 Responses to “CAAF finds the Navy’s self-reporting requirement facially valid, but invites further challenges, in United States v. Castillo, No. 14-0724/NA”

  1. JOJA says:

    Zack – Thank you for useful summary of case and issue.  Useful to me though unlikely to create comment storm.  I recently reminded my CO of SORM requirement, as some individuals only remembered that reporting requirement was removed from alcohol instruction… 

  2. Zachary D Spilman says:

    Thanks for reading JOJA, and I’m thrilled that this was useful. 

  3. Justin Henderson says:

    The problem with as-applied challenges to this law? A sentence that leads to an Art. 66 appeal.