CAAFlog » September 2014 Term » United States v. Castillo (NA)

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.

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Audio of today’s oral arguments at CAAF is available at the following links:

United States v. Castillo, No. 14-0724/NA (CAAFlog case page): Oral argument audio

United States v. Carter, No. 14-0792/AR (CAAFlog case page): Oral argument audio

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.

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On Tuesday CAAF granted review of a rather strongly-worded issue in the Navy case of United States v. Castillo, No. 14-0724/NA:

No. 14-0724/NA. U.S. v. Nancy L. CASTILLO. CCA 201300280. Review granted on 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.

Briefs will be filed under Rule 25

The case involves a conviction for violating a general order in that the appellant failed to report her arrest on drunk driving charges as required by ¶ 510.6 of OPNAVINST 3120.32c (as amended by NAVADMIN 373/11 (Dec. 8, 2011)), superseded by ¶ 5.1.6 of OPNAVINST 3120.32D (Jul. 16, 2012). The appellant’s DUI arrest was discovered when one of her supervisors saw her name on a courthouse docket.

The NMCCA’s decision affirming the conviction is available here. Sam analyzed that decision in a July post titled: The Return of Self-Reporting? NMCCA Reverses Course on Serianne.

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.

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