United States v. Hatchell

¶1(concurring in the result):

¶2I concur in the result. However, I do not agree with the majority’s finding of error with respect to the alleged violation of Article 13, Uniform Code of Military Justice, 10 U.S.C. § 813 (1982) [hereinafter UCMJ]. I believe there was no error.

¶3At an Article 39(a) session, appellant moved for appropriate relief, seeking a thirty-day credit for any confinement that may be adjudged as a result of his court-martial. He claimed that his apprehension with two other soldiers from his unit was a “mass apprehension” tantamount to punishment before trial in violation of Article 13, UCMJ. After an evidentiary hearing on the motion the military judge concluded that the apprehension was proper and it did not violate the appellant’s rights under Article 13, UCMJ.

¶4The facts surrounding the apprehension are not in dispute. At a regularly scheduled 0600 physical training formation consisting of from 20 to 50 soldiers, appellant and two other soldiers were directed by Sergeant First Class Moss, who was standing to the front and center of the formation, to fall out to the rear of the formation. Appellant proceeded to a point thirty feet to the rear and side of the formation and was apprehended, frisked, placed in irons, and then taken away from the area. While the apprehension was taking place, the soldiers in the formation were facing away from appellant and participating in physical training. The apprehension lasted about three minutes.

¶5Appellant testified that some soldiers in the formation observed the apprehension. Later in the day, after his release from custody, his fellow soldiers asked him about the apprehension. Appellant indicated that he felt he was already found guilty, was embarrassed, and was being punished before trial because some soldiers refused to speak to him and treated him as a criminal. However, he indicated that he was not placed on restriction or treated differently from any other soldier by his chain of command.

¶6Special Agent Esther Harwell planned what was called a “mass apprehension.” She indicated that on the morning of 6 August 1990 two soldiers were apprehended with the appellant. At about the same time three or four soldiers from another battalion located on the same líaseme were also apprehended. Her rationale for the apprehension was:

... [0]ne of my drug suppression team members had had conversations with Specialist Hatched. We had information that he and other soldiers were going to Amsterdam that weekend prior to the 6th. We knew they weren’t returning until the early morning hours of the 5th or 6th. We had reason to believe they were going to bring back controlled substances from Amsterdam. We coordinated with all the company commanders involved and told them that we wanted to conduct the apprehensions as soon as possible upon their return. The earliest time would have been that morning formation____ [It was important to do it *845then] because if they had brought back controlled substances, we wanted to get those before they were distributed.1

¶7Agent Harwell conceded that she could have conducted the apprehension differently but contended that it was common practice for her to make apprehensions in related cases at the same time.2

¶8Judge Ecker, after hearing Agent Harwell’s testimony and evaluating her demeanor, concluded that, while there were other alternatives, the apprehension did serve a “legitimate government or law enforcement purpose.” He found that no aspect of the apprehension aggravated the embarrassment that would accompany any apprehension observed by others and that the appellant was not singled out for “increased treatment or mistreatment” (in connection with the placement of the hand-irons). Also, he found there was no intent to punish the appellant before trial. Accordingly, the military judge denied the defense motion.

¶9The facts in this case are only remotely similar to those in United States v. Cruz, 25 M.J. 326 (C.M.A.1987). In that case there was a carefully conceived plan to hold a formation of all the units on the installation for the sole purpose of apprehending forty suspected drug offenders.3 In all there were thirteen company-sized units consisting of about 1200 soldiers. While the installation commander addressed the formation on the evils of drug use, police surrounded the formation and the names of the suspected drug abusers were announced. These soldiers were then escorted to the front of the formation where they were publicly humiliated and transported from the area by the military police in a manner reminiscent of an old western movie. After their release from custody they were segregated from other members of their unit and continued to be treated in a publicly humiliating manner until the cases reached their conclusion.

¶10The Court of Military Appeals in United States v. Palmiter, 20 MJ. 90 (C.M.A.1985) took cognizance of the Supreme Court’s decision in Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). They noted:

[T]hat the question of whether particular conditions amount to punishment before trial is a matter of intent, which is determined by examining the purposes served by the ... conditions, and whether such purposes are ‘reasonably related to a legitimate governmental objective____ [I]n the absence of a showing of intent to punish, a court must look to see if a particular restriction or condition, which may on its face appear to be punishment, is instead but an incident of a legitimate nonpunitive governmental objective.

¶11Id.,20 MJ. at 95.

¶12Here, appellant was only subjected to the incidental rather than planned humiliation that is associated with nearly every public apprehension, be it in the barracks, on the street, or in an office. Manual for Courts-Martial, United States, 1984, Rule for Courts-Martial 302 generally does not restrict where an apprehension may be made. This case is far different from the premeditated action of the commander in Cruz. This case is also different than United States v. Villamil-Perez, 32 M.J. 341 (C.M.A.1991), where a supervisor posted a Serious Incident Report on a unit bulletin board in a formal manner highlighting an accused’s involvement in a drug offense prior to trial, subjecting him to denunciation and military degradation in violation of Article 13, UCMJ. Agent Harwell’s actions *846were reasonable and were related to a legitimate governmental objective, i.e., the apprehension of drug suspects in related cases. See United States v. James, 28 M.J. 214, 216 (C.M.A.1989), citing Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979).

¶13I also endorse the comments of General Saint quoted by the majority but point out that both CID Regulation 195-1 (note 2 of the majority opinion) and General Saint’s policy letter recognize that mass apprehensions serve a legitimate law enforcement purpose. Cruz, 25 M.J. at 331 n. 3.

¶14The majority concluded that Agent Harwell’s testimony was inconsistent on whether there was a need to apprehend all the suspects at the same time because the apprehension took place while some of the suspects were in Crete on a military exercise. I disagree. She justified the need to apprehend those who just returned from Amsterdam. That need, it would seem, logically outweighed her preference to wait for the other suspects to return from Crete. I do not believe it follows that her failure to wait shows part of the underlying purpose of the apprehension was public denunciation. Further, I cannot conclude from the evidence at trial, that Agent Harwell intended to punish appellant prior to trial. Rather I find that her action was “an incident of a legitimate nonpunitive governmental objective.” Bell v. Wolfish, 441 U.S. at 539, 99 S.Ct. at 1874.

¶15Accordingly, I conclude that the military judge properly declined to find a violation of Article 13, UCMJ.