Sasen v. Spencer

• Decision Date: 09 January 2018
• Docket Number: No. 17-1394,17-1394
• Citation: 879 F.3d 354
• Parties: Jered SASEN, Petitioner, Appellant, v. Richard V. SPENCER, Secretary of the Navy, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

879 F.3d 354

Jered SASEN, Petitioner, Appellant,

v.Richard V. SPENCER,^* Secretary of the Navy, Respondent, Appellee.

No. 17-1394

United States Court of Appeals, First Circuit.

January 9, 2018

Matthew T. Bohenek, with whom Sabin Willett, Boston, MA, and Eugene R. Fidell, Washington, DC, were on brief, for appellant.

Annapurna Balakrishna, Assistant United States Attorney, with whom William D. Weinreb, Acting United States Attorney, was on brief, for appellee.

Before Lynch and Selya, Circuit Judges, and Levy,^** District Judge.

SELYA, Circuit Judge.

This case, which pits a retired petty officer against the United States Navy, is awash with novel legal questions concerning the application and operation of Article 31 of the Uniform Code of Military Justice (UCMJ). These questions center on Article 31(b), which requires that a sailor suspected of an offense be warned both that he need not make any statement regarding that offense and that any statement he makes may be used as evidence against him in a subsequent trial by court-martial. See 10 U.S.C. § 831(b).

Specifically, petitioner-appellant Jered Sasen asserts that he was entitled to a "cleansing warning,"¹ but failed to receive it. He further asserts that his waiver of Article 31 rights was involuntary, that he unfairly received a negative performance evaluation, and that his promotion recommendation was improperly rescinded. The Board for Correction of Naval Records (the Board) found these assertions unavailing and upheld the petitioner's non-judicial punishment, the Navy's rescission of his recommendation for promotion, and his adverse employment evaluation.

The petitioner sought judicial review. The district court rejected the petitioner's asseverations and refused to set aside the Board's decision. See Sasen v. Mabus, No. 16-cv-10416, 2017 WL 1147443, at *13 (D. Mass. Mar. 27, 2017). We hold that the exclusionary remedy limned in Article 31(d) applies to evidence offered in a trial by court-martial but not in a non-judicial punishment proceeding; that both the Board's determination of voluntariness and its approval of the adverse employment consequences are in accordance with law; and that, in all events, any error is not prejudicial. Consequently, we affirm the district court's denial of the underlying petition for judicial review.

I. BACKGROUND

We start by rehearsing the largely undisputed facts and then proceed, step by step, through the labyrinthine travel of the case.

A. The Facts.

The petitioner joined the Navy in 2006 and, until early 2014, compiled an impressive record. During that period, he received positive performance evaluations and numerous awards. By 2014, he was working as a Damage Controlman aboard the USS Constitution, berthed at the Charlestown Navy Yard in Massachusetts. By then, he was "frocking" as a Chief Petty Officer.² At the time, he also had garnered a recommendation for a promotion to that rank (which was pending).

The denouement came on January 11, 2014. While on duty that night, the petitioner learned that Elizabeth Abril, a sailor under his command, had hurt herself by punching a bulkhead out of frustration over a romantic entanglement gone sour. After Abril told the petitioner what had happened, he asked her whether she wanted to disclose the true story to their superior officer or whether she wanted to fudge the truth and say that she had slipped and fallen. Before Abril could respond, the superior happened to call, and the petitioner prevaricated about the cause of Abril's injury.

A different sailor took Abril to a shoreside medical facility, where she received care. In the morning, the petitioner reiterated the lie (that Abril had injured her hand by slipping and falling) to the incoming duty officer, Lieutenant Julien R. Geiser.

B. The Disciplinary Review Board.

In the days that followed, the petitioner learned the hard way that "[n]othing is so painful to the human mind as a great and sudden change." Mary Shelley, Frankenstein 209 (Transatlantic Press Books 2012) (1818). This observation has special bite when damage to one's professional reputation is in prospect.

On the morning of January 13, the Navy convened an Enlisted Disciplinary Review Board (DRB) to question the petitioner about the events of January 11 and 12. The DRB was a vehicle designed to "screen disciplinary cases of enlisted personnel and mak[e] recommendations ... regarding dispositions." U.S. Dep't of Navy, Navy Personnel Command Instruction 5811.1 (2007). Among other things, a DRB may interview the accused sailor, scrutinize his service record, and hear from material witnesses. See id.

At the commencement of a DRB hearing, accused individuals are advised of their rights under Article 31(b) of the UCMJ, which provides:

No person subject to this chapter may interrogate, or request any statement from, an accused or a person suspected of an offense without first informing him of the nature of the accusation and advising him that he does not have to make any statement regarding the offense of which he is accused or suspected and that any statement made by him may be used as evidence against him in a trial by court-martial.

10 U.S.C. § 831(b). The petitioner claims—and the Navy does not meaningfully dispute—that he did not receive such a warning when his DRB convened.

During the DRB hearing, the petitioner confessed that he had falsely told Lieutenant Geiser (on the morning of January 12) that Abril had injured her hand by slipping and falling, notwithstanding his knowledge of the true cause of her injury. A day after the DRB adjourned the hearing, it referred the petitioner to a non-judicial punishment proceeding known as a Captain's Mast. At the same time, the DRB recommended that the petitioner's promotion recommendation be rescinded.

C. Post-DRB Statements.

Within a matter of hours after the DRB hearing ended, Lieutenant Geiser informed the petitioner that, based on the events of January 11-12, the petitioner was suspected of having committed two offenses under the UCMJ: dereliction of duty (by willfully failing to report the true circumstances of Abril's injuries to the chain of command), see id. § 892, and making a false official statement (by furnishing Lieutenant Geiser, with intent to deceive, an official statement that Abril's injury was caused by "slipping on ice"), see id. § 907. Lieutenant Geiser advised the petitioner in writing of his rights under Article 31(b), but the written advice did not include a cleansing warning that informed the petitioner that his earlier unwarned statements could not be used against him in a later proceeding. The petitioner signed a waiver acknowledging that he had been advised of his Article 31(b) rights. He then made a written statement admitting that he had falsely told his superior officer that Abril had fallen on the evening of January 11 and that he had repeated the lie the next morning to Lieutenant Geiser. The petitioner expressed regret for his actions and wrote that he had not seen "the big picture."

The petitioner was not the only person to submit a statement. On January 13, Abril wrote that, on January 11, she had told the petitioner the circumstances surrounding her injury. She described how, in her presence, the petitioner had lied to a superior officer. Although she initially planned to go along with the lie, she changed her mind: when she was asked directly by a superior officer what had happened, she told the truth.

On January 15, the petitioner was notified that the Commanding Officer was considering non-judicial punishment as recommended by the DRB. See id. § 815. The petitioner was offered the opportunity to avoid non-judicial punishment by opting instead for a court-martial. In addition, he was told that he could seek legal advice before making this choice. The petitioner, however, elected to waive his right to counsel and face non-judicial punishment (in the form of a Captain's Mast).

D. The Captain's Mast.

The Captain's Mast was held on January 15. The presiding officer, Captain Sean D. Kearns, had received a report of the incident from Lieutenant Geiser.³ He also had access to the written statement that the petitioner had given to Lieutenant Geiser, Abril's written statement, and a written statement obtained from the sailor who had transported Abril to receive medical care. During the proceeding, the petitioner admitted that he had made a false report to Lieutenant Geiser on the morning of January 12.

Captain Kearns found that the petitioner had committed both of the charged offenses. For these offenses, the petitioner was subject to the following types of punishment: verbal reprimand, written reprimand,restriction, extra duties, forfeiture of pay, and reduction in rank. Captain Kearns chose to issue a written reprimand. Separate from this non-judicial punishment, Captain Kearns placed an adverse performance evaluation in the petitioner's file and rescinded the earlier recommendation for promotion.

E. Further Proceedings.

The petitioner appealed the non-judicial punishment and protested both the rescission of the promotion recommendation and the adverse performance evaluation. He maintained that the punishment was not only disproportionate but also invalid because he did not receive an Article 31(b) warning prior to the DRB hearing. On February 14, 2014, the Director of Navy Staff (the Director) denied the petitioner's intra-agency appeal, declaring that his non-judicial punishment—a written reprimand—was "neither unjust nor disproportionate" to his offenses. In the course of this determination, the Director found that the petitioner had "knowingly, intelligently, and voluntarily" waived his right to counsel.

The petitioner then appealed to the Board alleging—in addition to his earlier plaints—that he had failed to receive a cleansing warning before providing further incriminating statements both to Lieutenant Geiser and at the Captain's Mast. He asked the Board to "correct" his record by removing the nonjudicial...