U.S. v. Newell

• Court: U.S. Court of Appeals — Ninth Circuit
• Writing for the Court: Before BARNES and KENNEDY; BARTELS
• Citation: U.S. v. Newell, 578 F.2d 827 (9th Cir. 1978)
• Decision Date: 19 July 1978
• Docket Number: No. 77-3685,77-3685
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Stephen Ray NEWELL, Defendant-Appellant.

Page 827

578 F.2d 827

UNITED STATES of America, Plaintiff-Appellee, v. Stephen Ray NEWELL, Defendant-Appellant.

No. 77-3685.

United States Court of Appeals Ninth Circuit.

July 19, 1978.

Frank M. Murphy, III (argued), San Diego, Cal., for defendant-appellant.

Stephen V. Petrix, Asst. U.S. Atty., on the brief, Michael H. Walsh, U.S. Atty., Stephen V. Petix, Asst. U. S. Atty. (argued), San Diego, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California.

Before BARNES and KENNEDY, Circuit Judges, and BARTELS, ^* District Judge.

BARTELS, District Judge:

Stephen Ray Newell was tried without a jury before Judge Gordon Thompson, Jr. in the Southern District of California and convicted of arson and destruction of government property in violation of 18 U.S.C. §§ 81 and 1361. The trial took place upon stipulated facts after the court denied Newell's motion to suppress certain statements obtained from him by military investigators. United States v. Newell, 442 F.Supp. 668 (S.D.Cal.1977). On November 7, 1977, Newell was sentenced pursuant to 18 U.S.C. § 4205(b) to the maximum term allowed by law, from which he now appeals. We affirm.

I

On September 20, 1974, Newell enlisted in the United States Navy and was ultimately assigned to serve aboard the U.S.S. Kitty Hawk, an aircraft carrier home-ported at San Diego, California. One and one-half years later, on March 6, 1976, Newell became an unauthorized absentee, and on March 9, 1976, he was arrested by the San Diego police on unrelated charges. Newell escaped from prison while serving a sentence on one of these charges, but was rearrested on June 23, 1976, and was eventually returned to military custody and placed in military confinement on December 24, 1976, 293 days after his original unauthorized absence. He was released from military confinement on December 27, 1976.

At approximately two o'clock in the early morning hours of January 1, 1977, a fire broke out in a breezeway area of Building 57 on the United States Naval Station, portions of which were being used at the time to house naval personnel. The building was evacuated and the blaze extinguished by the fire department after causing damage to the building and its contents in excess of $30,000. Newell had been seen in the Master-at-Arms office of Building 57 about ten minutes prior to discovery of the fire, when he joined in a game of cards with other naval personnel. On January 3, 1977, agents of the Naval Investigative Service (NIS) interviewed the inhabitants of Building 57, including Newell, whom they identified as a potential witness in their investigation of the fire.

The following day, Lt. Richard Bloxom was appointed to represent Newell before a special court martial relative to his unauthorized absence from March 3, 1976 to December 25, 1976. Lt. Bloxom saw Newell for the first time on January 13, 1977, and again on January 20, 1977. On January 14, 1977, the day after Lt. Bloxom first met with Newell, NIS agent Dempsey reinterviewed Newell. During this interview, agent Dempsey began to view Newell as a suspect in the arson, and thereupon gave Newell the warnings mandated by United States v. Tempia, 16 C.M.A. 629, 37 C.M.R. 249 (1967), the military equivalent of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Newell executed a written waiver of rights form and answered in the negative to agent Dempsey's specific question whether he wanted an attorney. Newell did not mention his representation by Lt. Bloxom on the unauthorized absence charges, and no notice of the interrogation was given to Lt. Bloxom. The interview continued for about an hour and was terminated when Newell stated that he would like to speak with a Salvation Army chaplain before continuing further. After purportedly making a call to the chaplain, Newell left the NIS office.

Sometime later, agent Dempsey sought out Newell at his barracks and was informed by Newell that he had not seen the chaplain but that he wanted to speak with the agent anyway. Agent Dempsey readvised Newell of his rights and obtained a written waiver from him, who again stated that he did not want a lawyer. Newell thereupon made a statement which was transcribed and sworn to, implicating a third person in the arson. Newell made no mention of this interview when he met with Lt. Bloxom on January 20, 1977, one week later.

On January 30, 1977, Newell once again became an unauthorized absentee, but on February 17, 1977, he was rearrested by agent Dempsey and placed in confinement. He then spontaneously requested a polygraph test with respect to the Building 57 fire, but one could not be arranged until February 22, 1977. On that day Newell was not only given the standard advice of rights pursuant to Miranda-Tempia but was also advised of his rights with respect to polygraph examinations. He executed written acknowledgments and waivers with respect to both sets of rights, and gave a negative answer to the question whether he felt he wanted or needed a lawyer. He made an oral statement to the polygraph operator, agent Naylor, that he had accidentally started the fire, and signed a written statement to the same effect for agent Dempsey, who readvised him of his rights and obtained a waiver from him before obtaining the statement. Newell again denied that he wished a lawyer.

There is no evidence that agent Naylor actually knew of the appointment of counsel to represent Newell on the unauthorized absence charge, but the district court found that agent Dempsey was aware of sufficient circumstances to have had constructive knowledge of the appointment of Lt. Bloxom by February 22, 1977. Nonetheless, no prior notice of the interrogation was given to counsel. It was not until March 3, 1977, when another NIS agent who desired to question Newell with respect to a different arson asked if Newell was in fact represented by counsel that Newell stated he was.

In March 1977, Newell was tried before a general court-martial on two counts of unauthorized absence, one count of arson and one count of destruction of government property. These charges were dismissed by the military court for lack of jurisdiction over the person because of misconduct by the Navy recruiter who enlisted Newell. Thereafter, on June 27, 1977, the arson case was turned over to federal civilian authorities for trial in the Southern District of California, and the above conviction resulted.

II

This appeal raises the question whether military statutory and case law relative to the suppression of evidence in court-martial proceedings applies to the facts of this case and, if so, whether such military law requires suppression of evidence in federal criminal proceedings. Newell contends that his statements concerning the arson should have been suppressed by the district court because they were taken by the NIS agents in violation of Articles 27 and 31(d) of the Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 827, 831(d), ¹ as construed by the Court of Military Appeals in United States v. McOmber, 24 C.M.A. 207, 51 C.M.R. 452, 1 M.J. 380 (1976), and United States v. Lowry, 25 C.M.A. 85, 54 C.M.R. 85, 2 M.J. 55 (1976), as well as in violation of paragraphs 6a and 44h of the Manual for Courts-Martial, United States, 1969 (rev.). ²

McOmber and Lowry, supra, upon which Newell places principal reliance, hold that all statements taken from an accused by military investigative agents in the absence of counsel must be excluded from court-martial proceedings where the agent is on notice that the accused is represented by counsel, even if counsel was only appointed in a related case, and not the case under investigation. In McOmber, the accused was suspected of the theft of a tape deck. Upon being warned of his rights, he requested counsel, and the interview was terminated. Two months after counsel for the accused had contacted the agent, the agent again interviewed the accused about nine related larcenies, including the tape deck theft. Before the interview the agent rewarned the accused of his Miranda-Tempia rights, which were waived. However, the agent did not contact the accused's counsel prior to the interview and counsel was not present.

The court in McOmber recognized the constitutional overtones of the case, but disposed of the motion to suppress on statutory grounds, avoiding any resolution of the Sixth Amendment claims presented. On the basis of UCMJ Arts. 27 and 31(d), it held that

once an investigator is on notice that an attorney has undertaken to represent an individual in a military criminal investigation, further questioning of the accused without affording counsel reasonable opportunity to be present renders any statement obtained involuntary under Article 31(d) of the Uniform Code.

24 C.M.A. at 209, 51 C.M.R. at 454, 1 N.J. at 383.

McOmber was followed shortly after by Lowry, supra, where the accused, prior to interrogation on April 1, 1974, was warned that he was a suspect in the arson of barracks 238 and advised of his rights under Miranda-Tempia. The suspect requested counsel and the interview was terminated. On April 19, 1974, the military investigators again interviewed Lowry, warning him this time that he was suspected of the arson of barracks 230, and of the use of marijuana. The agents advised Lowry of his Miranda-Tempia rights and also informed him that they were aware that he had military counsel in connection with the barracks 238 arson but that they wished to interrogate him concerning only the barracks 230 arson and his use of marijuana. Lowry did not request the assistance of counsel and his previously appointed counsel was never informed of this interview.

The Court of Military Appeals held that the failure of the agents to inform appellant's previously appointed counsel of the April 19 interview rendered Lowry's pretrial statement involuntary as to the arson of barracks 230. The court stated...