CAAFlog » September 2011 Term » United States v. Hathorne

CAAF’s order dismissing the Article 62 case of United States v. Hathorne, No. 12-6002/AF, __ M.J. __ (C.A.A.F. Apr. 26, 2012) (CAAFlog case page) (link to order), on ripeness grounds, seems like an ignominious end to an unusually interesting case, but the reason for the dismissal betrays that this case isn’t over, and that it shouldn’t be overlooked.

For those who haven’t been watching this case, Judge Matthews The Greatest provided a good background in this post:

Airman First Class (A1C) Hathorne was identified as a potential witness in the court-martial of another airman, A1C JF, scheduled to be tried on drug charges at Holloman AFB, New Mexico.  During the course of preparing for trial, base officials learned that A1C Hathorne himself apparently used illegal drugs, and — fearing he would not cooperate in A1C JF’s prosecution — decided to ask the convening authority to grant him immunity.  On 3 Feb 2011, the convening authority sent the base legal office a memorandum containing a grant of immunity for A1C Hathorne and an order to answer questions from counsel.

The next day, trial counsel interviewed A1C Hathorne without informing him of the convening authority’s correspondence.  A1C Hathorne was advised of his rights, waived them, and confessed to a single use of cocaine in 2010.  A1C Hathorne did not learn of the grant of immunity until four days later, when A1C JF’s counsel provided him a copy during their interview with him.  A1C JF pled guilty pursuant to a PTA, and a month later, the government preferred a single charge and specification of wrongful use of cocaine against A1C Hathorne.

The trial judge dismissed the charge based on the trial counsel’s withholding of the immunity, the government appealed, the CCA reversed, and everyone denied a stay pending the accused’s petition to CAAF. Trial proceeded, resulting in a conviction, a “subjurisdictional” sentence, and a “rubber stamp” Article 64 review. CAAF then granted review of the immunity issue, and of an issue asking if the court had jurisdiction to hear an Article 62 (interlocutory) appeal once trial is concluded.

Two things happened at oral argument that cause me to believe that this case is much more important than it appears. The first was discussed a bit in Col Sullivan’s post, A question of etymology:

Appellant’s counsel, my colleague Maj Spencer Kerr, stated, “Appellant has already been discharged and, as far as the post-trial review goes, he has received a subjurisdictional sentence.” (12:42) Senior Judge Effron asked, “Where does this word ‘subjurisdictional’ come from?  Does it come from our case law?  Do you agree that there’s such a word?”  Maj Kerr responded, “It’s been used frequently, Your Honor.”  Following some laughter, the following exchange occurred:

Judge Effron:  Did you find it in any of our case law?
Maj Kerr:  No, Your Honor.
Judge Effron:  Did you find it in any dictionary?
Maj Kerr:  No, Your Honor.

There was more to the exchange, which began at 10:40 of the argument audio and continued for about three minutes (I’ve uploaded an excerpt of just this section in MP3 format). Senior Judge Effron was discussing whether this appeal was ripe, due to the fact that the Judge Advocate General has the authority, under Article 69(d)(1), to refer the case to the CCA for review under Article 66. The Senior Judge wasn’t questioning the origin of the term “subjurisdictional,” he was questioning the legitimacy.

The avenues of review for an approved special court-martial sentence are either review by a CCA under Article 66 (punitive discharge or confinement for 1 year), or review by a judge advocate under Article 64 (all other cases). When the review is under Article 64, the Judge Advocate General can take further corrective action, under Article 69, on petition of the accused or sua sponte. That action can include referral to a CCA for review under Article 66. Graphically it looks like this:

Of course, there are few guarantees in this appellate process, and referrals from a JAG to a CCA are rare, just as are reviews by the Supreme Court (or even by CAAF, relatively speaking). But there is still the opportunity for an impressive six levels of appellate review of a special court-martial (compared to only two levels of a typical federal criminal conviction).

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It will surprise no one who has listened to the Hathorne oral argument that CAAF today dismissed the appeal on ripeness grounds in this order United States v. Hathorne, __ M.J. __, No. 12-6002/AF (C.A.A.F. Apr. 26, 2012).

As a result of that summary disposition, it now appears that CAAF will issue 33 opinions of the court this term.

[Edit:  The original post said CAAF would issue 34 opinions of the court this term. An alert reader noted that in light of the Cooper summary affirmance, the actual number will likely be 33.]

Today’s oral argument in United States v. Hathorne (audio available here), gives rise to some word sleuthing.

Appellant’s counsel, my colleague Maj Spencer Kerr, stated, “Appellant has already been discharged and, as far as the post-trial review goes, he has received a subjurisdictional sentence.” (12:42) Senior Judge Effron asked, “Where does this word ‘subjurisdictional’ come from?  Does it come from our case law?  Do you agree that there’s such a word?”  Maj Kerr responded, “It’s been used frequently, Your Honor.”  Following some laughter, the following exchange occurred:

Judge Effron:  Did you find it in any of our case law?

Maj Kerr:  No, Your Honor.

Judge Effron:  Did you find it in any dictionary?

Maj Kerr:  No, Your Honor.

We now know where the word comes from: Yale Law School professor Eugene R. Fidell.  The earliest use I found was in Gene’s Guide to the Rules of Practice and Procedure of the United States Court of Military Appeals as published by the Military Law Review in 1991.  131 Mil. L. Rev. 169, 185, 187, 191, 192, 259.  It’s likely that Professor Fidell used the word “subjurisdictional” in earlier versions of his CMA Rules Guide as well.  The earliest version of that Guide of which I’m aware is the 1978 version published by PLEI.  Further sleuthing is in order.

Gene spelled the word “subjurisdictional.”  Since it’s his word, I’ll treat that as the official spelling.  In its brief on the specified issue in Hathorne, the Government inserted a “[sic]” after quoting the word “subjurisdictional” from the Appellant’s brief, preferring “sub-jurisdictional” instead.  Government Brief at 3 n.1.

Personally, I’m a fan of the word, regardless of when it was originally coined.  It’s unwieldy to refer to “cases in which the accused receives neither a punitive discharge nor a year or more of confinement.”  “Subjurisdictional” conveys the same meaning far more succinctly.

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 not 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)) .

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CAAF today granted review in an Article 62 case.  Both the assigned issue — which conerns “hip pocket immunity” — and the specified issue — which concerns CAAF’s own jurisdiction — are unusually interesting.

The assigned issue:  “Whether the Government counsel’s stategic withholding of the convening authority’s grant of immunity makes Appellant’s statement to Government counsel non-immunized.”  United States v. Hathorne, __ M.J. __, No. 12-6002/AF (C.A.A.F. Jan. 4, 2012) (order granting review).

The specified issue:  “Whether, in light of United States v. Lopez de Victoria, 66 M.J. 67 (C.A.A.F. 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?”  Id.

AFCCA’s unpublished decision in the case is available hereUnited States v. Hathorne, Misc. Dkt. No. 2011-02 (A.F. Ct. Crim. App. Oct. 4, 2011).

The defense had filed a motion with CAAF to stay the trial proceedings while it considered the petition for review.  But CAAF denied that motion on 1 November 2011.  (That denial doesn’t seem to appear in the daily journal.)  The case went to trial the following day.  Airman First Class Hathorne was convicted of one specification of cocaine use.  He received a sentence of confinement for 7 days, 30 days of hard labor without confinement, restriction for 30 days, and reduction to E-1.

If a tree falls in the forest, but the trial counsel doesn’t inform the accused, does it make a sound?

In United States v. Hathorne, Misc. Dkt No. 2001-02 (AFCCA 4 Oct 2011) , the Air Force Court of Criminal Appeals granted yet another government appeal, holding that a convening authority’s order to speak subject to a grant of immunity does not mandate suppression of the immunee’s otherwise-admissible confession, if the confession was given without knowledge of the grant and order.

Airman First Class (A1C) Hathorne was identified as a potential witness in the court-martial of another airman, A1C JF, scheduled to be tried on drug charges at Holloman AFB, New Mexico.  During the course of preparing for trial, base officials learned that A1C Hathorne himself apparently used illegal drugs, and — fearing he would not cooperate in A1C JF’s prosecution — decided to ask the convening authority to grant him immunity.  On 3 Feb 2011, the convening authority sent the base legal office a memorandum containing a grant of immunity for A1C Hathorne and an order to answer questions from counsel.

The next day, trial counsel interviewed A1C Hathorne without informing him of the convening authority’s correspondence.  A1C Hathorne was advised of his rights, waived them, and confessed to a single use of cocaine in 2010.  A1C Hathorne did not learn of the grant of immunity until four days later, when A1C JF’s counsel provided him a copy during their interview with him.  A1C JF pled guilty pursuant to a PTA, and a month later, the government preferred a single charge and specification of wrongful use of cocaine against A1C Hathorne.

At trial, the military judge found that the trial counsel’s actions, while “technically … correct under the Constitution and Article 31,” were inconsistent with “the law and fundamental notions of fairness.”  The grant of immunity was effective by its plain language when it was issued, the military judge ruled, and the government had not met its burden under Kastigar v. United States,  406 U.S. 441 (1972), of showing that its evidence against the accused was derived from a source wholly independent of the immunized statement.   Accordingly, the judge ordered dismissal of the charge and its specification with prejudice.

The service court framed the trial judge’s order thusly:

The military judge found that from the moment the GCMCA signed the grant of testimonial immunity on 3 February 2011, the appellee’s statements were cloaked with immunity despite the fact that the appellee was unaware of the immunity and order, did not rely upon it, and after being read his Article 31 rights, waived his right against self-incrimination and confessed his use of cocaine to the trial counsel.

Against that backdrop, the CCA’s decision reversing the trial judge is not surprising.  Because the accused had never asserted his right against self-incrimination prior to questioning by the trial counsel, the CCA held, there was no refusal for the grant and order to overcome, and because the accused did not rely on the grant and was unaware of the order, his confession was voluntary.  The service court also concluded that the trial counsel’s decision to pocket the grant and order and to use them only if the accused refused to speak was within the trial counsel’s authority and not inconsistent with the convening authority’s intent — i.e., to overcome refusal and compel answers from the accused.