Jiles.caaf.Writapp

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IN THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES In re, Tarrell D. Jiles Staff Sergeant (E-6) U. S. Marine Corps, Petitioner

v. Commanding Officer H&S Battalion. MCB, Quantico, VA, LtCol Michael F. Cardoza, USMCR, In his official capacity as Art. 32, UCMJ, Inv. Officer, and the UNITED STATES, Respondents WR

WRIT APPEAL PETITION FOR REVIEW OF NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS DECISION ON APPLICATION FOR EXTRAORDINARY RELIEF USCA Misc. Dkt. No. 12-8018/MC

TO THE HONORABLE, THE JUDGES OF THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

Preamble

Petitioner asks this court to compel live testimony, and if necessary deposition, of witnesses for a pending Article 32, UCMJ, hearing.

I

History of the Case

1. On 13 January 2012, charges were preferred against Petitioner alleging multiple violations of Articles 92, and 120, UCMJ. DD Form 458, Charge Sheet. 2. An Article 32, UCMJ, hearing is scheduled to begin on 27 February 2012 and take three days. Prior to that hearing the Investigating Officer has determined that a significant number of complaining witnesses are unavailable within the meaning of R.C.M. 405(g).

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3. Petitioner submitted a Petition for Extraordinary Relief to the Navy-Marine Corps Court of Criminal Appeals (NMCCA) seeking production and deposition of all the complaining witnesses in person at the Article 32, UCMJ, hearing. On 13 February 2012, the NMCCA denied relief. Jiles v. Commanding Officer, et. al., NMCCA No. 201200062 (N-M Ct. Crim. App. 13 February 2012). A copy of that courts denial is attached.

II

Relief Sought That the court order the Article 32, UCMJ, proceedings held in abeyance pending resolution of this petition, or, That the court order the Article 32, UCMJ, proceedings be held open to receive additional testimony and evidence pending resolution of this petition, and That the court order the live testimony of the complaining witnesses and a deposition of four civilian complaining witnesses.

III

Issues Presented

I. Whether, after charges have been preferred against an accused and an Article 32, UCMJ, hearing is scheduled, the accused may be denied the live appearance of the specific complaining witnesses to allegations of sexual assault, on the mere assertion that the witness is located outside 100 miles range of the Article 32, UCMJ, hearing, and the significance of the testimony is outweighed by the difficulty, expense, delay, and effect on military operations of obtaining live appearance of the witness.

II. Whether a deposition should be ordered for the live testimony of a complaining witness of sexual assault, who declines to attend an Article 32, UCMJ, hearing because he is a civilian.

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IV

Statement of Facts 1. On 5 December 2011, a request for legal services (RLS) was provided the Staff Judge Advocate, MCB Quantico. The request for legal services is checked “X” for SPCM, although there was no convening order and the charges aren’t referred. The RLS indicates that Col JCB, USMC, would be the SPCMCA. Block 13, “Remarks” states, “Request Special Court-Martial. Recommending Charges for Article 120 (indecent assault).” There is no indication of who or how the potential forum changed from special court-martial to Article 32, UCMJ, hearing. 2. On 13 January 2012, SSgt J.L.O., USMC, preferred charges against Petitioner alleging multiple violations of Articles 92, and 120, UCMJ. 3. On 17 January 2012, Captain CB was detailed as military defense counsel (MDC); and a copy was provided the staff judge advocate and military justice officer. It appears that Captain ACS, USMC, has been appointed a government representative (GR) in accordance with R.C.M. 405(d)(3)(A).1 4. On 22 January 2012, civilian counsel (CDC) was retained. 5. On 24 January 2012, an Article 32, UCMJ, investigating officer (IO), Respondent Lieutenant Colonel Michael F. Cardoza, was appointed, by respondent Colonel JCB, USMC, Commanding Officer, Headquarters & Support Battalion, MCB Quantico, VA. 6. On 24 January 2012, Captain CB learned the case was to be presented at an Article 32, UCMJ, hearing. 7. On 24 January 2012, the GR provided military counsel:

Per your request, attached is a phone roster for the witnesses. I can provide a more formal format in the “Page 56” matters, should it come to that stage [meaning trial].2

1 The defense anticipates Captain AS will be detailed as trial counsel (TC) in the event charges are referred to trial. 2 This is the extent of information identified to the IO on which witnesses might be called to testify at the Article 32, name and rank, and a contact phone only. “Page 56” matters is intended to refer to items listed on page

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8. The prosecution “contact list” has 19 names, including each of the 16 complaining witnesses. 9. On 25 January 2012, the defense submitted an extensive R.C.M. 405(f) Production Request to the IO. On 3 February 2012, the Government Representative provided a written response to Production in which the Government Representative stated:

In response to ongoing request for discovery (sic), . . . the government has provided all requested pieces of evidence, including documents, up until this point.

10. Beginning 25 January 2012, discussions became ongoing between counsel and the IO about scheduling. In that process the defense indicated that it desired at least all of the 16 complaining witnesses be available live and in person at the hearing. On 26 January 2012, it was agreed that the Article 32, UCMJ, hearing would commence on 27 February 2012, to accommodate logistics and schedules and the long list of witnesses. 11. On 30 January 2012, the Government Representative emailed the IO:

The defense has requested the live presence of the following [17] individuals at the upcoming Art 32:

All but three of the witnesses are military personnel subject to orders. The prosecution then requested that:

you rule that the following [10] individuals are not reasonably available at the Art 32: According to RCM 405(g)(1)(A), "[a] witness is reasonably available when the witness is located within 100 miles of the situs of the investigation and the significance of the testimony and personal appearance of the witness outweighs the difficulty, expense, delay, and effect on military operations of obtaining the witness' appearance." The aforementioned witnesses are located in New Orleans, LA, Albany, GA, Camp Pendleton, CA, Camp Smith, HI, St. Louis, MO, Oak Park, MI, and Fort Worth, TX. These places are farther than 100 miles from MCB Quantico.

56 of the Navy-Marine Corps Trial Guide, used at trial (although the current trial guide does not have such a list on page 56). http://www.marines.mil/unit/mcblejeune/ejc/Documents/OTHER%20DOCS/NMCTJ_Trial_Guide_2005_(Sep_05).pdf

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RCM 405(g)(4)(B) provides that when an investigating officer determines that a witness is not reasonably available, statements may be taken by "telephone, radio, or similar means providing each party the opportunity to question the witness under circumstances by which the investigating officer may reasonably conclude that the witness' identity is as claimed." The government has every intention of making the aforementioned witnesses available telephonically on the day of the hearing. However, because the significance of having the witnesses here live does not outweigh the difficulty, expense, delay, and effect on military operations of obtaining the witness's appearance, we ask that you rule that the aforementioned witnesses are not reasonably available for this Art 32.

12. The prosecution did not present, and has not presented, any evidence to establish support for their broad talismanic incantation that the difficulty, expense, delay, and effect on military operations of obtaining the witness mandates an unavailability finding. Petitioner advised the IO that:

The defense objects to not calling all complaining witnesses in person at the hearing. 1. They are the primary/the complaining witnesses for each charge with their name listed. 2. While the RCM talks of 100 miles. There is significant case law that holds otherwise: a. Despite language of MCM, R.C.M. 405(g)(1)(A), there is no per se rule making witnesses located beyond 100 miles from the site of the investigation unavailable. United States v. Marrie, 43 M.J. 35 (C.M.A. 1995). IO erroneous belief that witnesses located more than 100 miles from situs of investigation were unavailable. United States v. Burfitt, 43 M.J. 815 (A. F. Ct. Crim. App. 1996). In United States v. Davis, 19 U.S.C.M.A. 217, 41 C.M.R. 217 (1970), we rejected the notion that a serviceman's availability to testify at trial could be measured solely in terms of miles from the situs of trial.

b. See the following cases: Failure to produce reasonably available defense requested witnesses is a denial of a substantial pretrial right of the accused. United States v. Chestnut, 2 M.J. 84 (C.M.A. 1976). MJ erred in failing to grant accused's motion to reopen investigation and order live appear of key government witness despite substantial transportation expenses in returning such witness to Thailand from Florida absence of showing of military exigencies or other extraordinary circumstances. United States v Ledbetter, 2 M.J. 37 (C.M.A. 1976).

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13. Without receiving additional evidence or information than that provided by the Government Representative, the IO determined the witnesses are not reasonably available:

After balancing the significance of the witness' live testimony against the relative difficulty and expense of obtaining their presence at the hearing, I find that the below listed witnesses are not reasonably available within the meaning of RCM 405 and that the proposed alternative to testimony under subsection (g)(4)(A) of same will be sufficient. In light of the Defense objection, I shall include these reasons for this determination in my report of investigation.

14. As of now the prosecution asserts the following are not reasonably available – due to cost and effort. Despite Petitioner’s filing with the NMCCA, the prosecution has failed to produce additional information justifying their claim of unavailability beyond the talismanic too far and too much money. Cpl DSA, USMC Cpl JEE, USMC Cpl SBC, USMC Sgt JTF, USMC Sgt KDW, USMC Sgt CWR, USMC Sgt BPL, USMC

Sgt TH, USMC Sgt JWC, USMC Mr. SM, former corporal, USMC Mr. AJS, former sergeant, USMC Mr. AJJ, former sergeant, USMC Mr. KU, former sergeant, USMC

15. The defense has not requested the live appearance of any other witnesses besides the specific complaining witnesses (alleged victims) as to each of the charges and specifications. And the defense would not have objected to telephone testimony of peripheral witnesses. 16. On 13 February 2012, the defense requested that the investigating officer “recommend to the AA that he order the four [civilian] witnesses to be deposed.” That request of the IO is still pending. 17. Petitioner is neither confined nor is his liberty in any way restrained, and there is no current Article 13, UCMJ, concern.

Reasons for Granting the Writ Charges have not been referred to trial. There is no military judge available to hear Petitioner’s complaint. Petitioner’s Article 32, UCMJ, hearing is scheduled to commence 27 February 2012, for approximately three days. The IO

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will have a reasonable period to prepare his report. A delay is expected for preparation of advice in accordance with Article 34, UCMJ, and a disposition decision is made. The court below disregards the nature of the Article 32, UCMJ proceeding as a discovery tool and as a bulwark against unwarranted charges; as well as the necessity to enforce a substantial right at the earliest possible opportunity to avoid prejudice or a later need to demonstrate prejudice. In United States v. Davis, this court clearly argues why an immediate assertion and enforcement of a substantial right is proper through an extraordinary writ.

When an accused makes an objection at that [trial] stage, the impact of an Article 32 violation on the trial is likely to be speculative at best. The time for correction of such an error is when the military judge can fashion an appropriate remedy under R.C.M. 906(b)(3) before it infects the trial, not after the members, witnesses, and parties have borne the burden of trial proceedings. In the event that an accused disagrees with the military judge's ruling, the accused may file a petition for extraordinary relief to address immediately the Article 32 error.

United States v. Davis, 64 M.J. 445, 449 (C.A.A.F. 2007). 1. Military witnesses. The only evidence presented to the Investigating Officer about unavailability is a conclusory prosecution statement that the witnesses are more than 100 mile from Quantico, VA, based on their city and state of residence, and a telephone number apparently belonging to them. Petitioner agrees that if accurate the witnesses are more than 100 miles from Quantico, VA. But all the prosecution has done is assert the witnesses live a long way away and it would be too expensive to travel them to Quantico, VA. Thus this is clearly a decision based on cost alone. A statement that the “significance” of the testimony is impliedly de minimus is less than tenable when they are the prime witnesses in a sexual assault prosecution. Where Were (duh) the requested witnesses peripheral or collateral to the case then Petitioner agrees that their live presence need not be compelled if alternate means of testimony were used. An Article 32, UCMJ, hearing is a substantial pretrial right, requiring a thorough and impartial investigation, as a bulwark against baseless charges. One of the ways an

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investigating officer can determine the validity and credibility of a witness and the underlying charges is to watch the person as they testify. See United States v. Samuels, 10 U.S.C.M.A. 206, 27 C.M.R. 280 (1959), United States v. Chuculate, 5 M.J. 143 (C.M.A. 1978). See also, United States v. Ledbetter, 2 M.J. 37 (C.M.A. 1976), United States v. Chestnut, 2 M.J. 84 (C.M.A. 1976), as to witness production. In the military criminal justice system there is no trial judge holding the preliminary hearing or immediately available. Thus a petition for an extraordinary relief to the appropriate appellate court is the time for correction of an error before it has the chance to be prejudicial. Some issues may be capable of later determination in the course of appellate review. But, there are some rights that require and deserve immediate enforcement as a prophylaxis against prejudice and tainted proceedings. In Davis, the court also observed that, “if the accused disagrees with the military judge’s ruling, the accused may file a petition for extraordinary relief to address immediately the Article 32 error.” Id. There is, or should be, no different approach to the problem if the objection is to an Article 32, UCMJ, investigating officer’s “ruling” compared to that of a military judge. The question becomes what judicial forum. Petitioner asserts the court below was the forum. Rather than protect and assert the Petitioner’s substantial right the effect of the NMCCA order is to defer the enforcement of the right until it is arguably too late and the prejudice has occurred. Whether or not an Article 32, UCMJ, investigating officer (IO) gives full and fair consideration to the evidence depends on the quality of the evidence he’s asked to consider. IO’s routinely comment on and assess a witnesses hearing testimony. They, rightly, believe it is a relevant and necessary consideration for a convening authority. There are circumstances where an IO may find reasonable cause to believe an offense happened and the accused committed it. But the IO may also comment that there is a significant credibility issue with the witnesses at trial and therefore recommend non-referral of a charge or alternate disposition to a court-martial. This is a Fifth Amendment, due process right, not a Sixth Amendment confrontation issue. McCray v. Illinois, 386 U.S. 300, 312-13 (1967); Cooper v. California, 386 U.S. 58, 62 n. 2 (1967), United States v. McDonald, 55 M.J. 173 (C.A.A.F. 2001). A counsel cannot allow the right to be impinged without timely objection. See United States v. Webber, 42 M.J. 675, 678 (A.F. Ct. Crim. App. 1995).

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2. A deposition of the civilian witnesses. There is no power to subpoena persons to an Article 32, UCMJ, hearing. However, the appointing authority is authorized to expend travel funds for a civilian witness willing to appear at an Article 32, UCMJ, hearing. It is unclear whether the civilian witnesses are unwilling to appear at the hearing. Once charges have been preferred a civilian (or military) witness may be ordered to appear for deposition. See Article 49(a), UCMJ. In R.C.M. 702(b)(2) the rules states that a deposition may not be denied except for good cause. In this case there is no good cause to deny a deposition of the critical complaining witness to a sexual assault. The only difference between the military and the civilian witness is the need to issue military travel orders for one and a deposition notice and travel documents for the other. Petitioner notes that to the extent R.C.M. 702 and its Discussion limit the use of a deposition, that limitation is contrary to Article 49, UCMJ. A regulation may not limit a statute. A regulation may enlarge the scope of a statute to benefit an accused, but not limit the statute. Cf. United States v. Guess, 48 M.J. 69 (C.A.A.F. 1988), United States v. Contreras, 69 M.J. 120 (C.A.A.F. 2010). The Discussion to R.C.M. 702 limits when a deposition may be ordered to situations where a witness is unlikely to be available for trial. The limitation is an artificial and unlawful restriction to circumstances where a “witness would be available for trial.” See, Discussion to R.C.M. 702(b), MCM p. II-60. Petitioner does note that the courts have taken the position that the Discussion is not always binding. See e.g., United States v. Miller, 67 M.J. 87, 89 (C.A.A.F. 2008). In order to timely assert the right to the presence of a witness at an Article 32, UCMJ, investigation, Petitioner must request a deposition. See United States v. Chuculate, 5 M.J. at 145, and see generally, Maj. John R. Maloney, ARTICLE: Litigating Article 32 Errors After United States v. Davis, 2011 ARMY LAW. 4, Maj. Larry A. Gaydos, A Comprehensive Guide to the Military Pretrial Investigation, 111 MIL. L. REV. 49 (1986). Petitioner has requested the IO to advise the appointing authority to depose the civilian witnesses. Action on that request is still pending. But Petitioner has not otherwise requested a deposition for the following reasons: a. The prosecution’s position on the production of

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military witnesses is likely to be the same position for a deposition, as they have taken on the military witnesses – too far away and too expensive, and that there’s no showing they won’t be available for trial. b. In the past counsel has sought the assistance of investigating officers who have routinely declined to ask and recommend a deposition to the appointing authority; and has had similar denials from appointing authorities. c. A direct request to the Appointing Authority will likely meet with a negative response. d. Normally a Petitioner or accused would be required to exhaust available remedies, such as a deposition request. However, when that “remedy” is an empty remedy, the Petitioner should not be required to resort to the empty remedy before seeking judicial relief. Cf. Noyd v. Bond, 395 U.S. 683, 645, n.11 (1969), United States v. Draughton, 42 C.M.R. 447, 1970 CMR LEXIS 840 (A.C.M.R. 1970). Petitioner’s case is different to those alleging pre or post-trial punishment under either Article 13, UCMJ, or the Eighth Amendment, U. S. Constitution. See e.g. United States v. Avila, 53 M.J. 99 (C.A.A.F. 2000)(Crawford, C.J., concurring in the result). There is no grievance system immediately available to Petitioner. An accused may neither file a complaint of wrongs in accordance with Article 138, UCMJ, nor may he file a complaint in accordance with Article 1150, U. S. Naval Regulations. See Sec. 0304.a.6(b), Chap. III., JAG INSTRUCTION 5800.7E, Manual of the Judge Advocate General (2007).

Jurisdiction Jurisdiction is predicated on the All Writs Act, 28 U. S. Code §1651(a). Dettinger v. United States, 7 M.J. 216 (C.M.A. 1979). Petitioner is not requesting appointment of appellate defense counsel. Respectfully submitted,

PHILIP D. CAVE 1318 Princess St. Alexandria, VA 22314 703-298-9562

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[email protected] Counsel for Petitioner

CERTIFICATE OF FILING AND SERVICE

I certify that the foregoing was electronically delivered to the Court of Appeals for the Armed Forces on 22 February 2012 by email at [email protected], and that counsel has caused copies to be served [.]

PHILIP D. CAVE

Attachments: Charge Sheet Art. 32, UCMJ, IO appointment NMCCA Order

Jiles.caaf.Writapp

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