U.S. v. Rodriguez, 60 M.J. 239

Military Justice Personnel: Defense Function: Right to Counsel

1. regarding the right to counsel, the principles enunciated by the Court in other post-trial settings also apply to DuBay fact-finding hearings
2. the absence of counsel at a DuBay hearing will effectively result in denial of the right to counsel; however, if substitute counsel who has the legal responsibility to protect the accused’s post-trial interests is present, it cannot be said that the accused has been deprived of his right to counsel
3. error by substitute counsel of serving without first having entered into an attorney-client relationship could be tested for prejudice, and the appropriate test for prejudice is that prescribed in Article 59(a)
4. although accused’s detailed defense counsel improperly severed the attorney-client relationship with accused between second and third sessions of DuBay hearing, and substitute counsel proceeded to represent accused during the final two sessions of hearing without establishing an attorney-client relationship, accused was not prejudiced, considering that substitute counsel represented accused’s cause zealously and that questions assigned for DuBay consideration did not relate directly to matters within accused's personal knowledge

Core Criminal Law Subjects: Evidence: Confessions and Admissions › Article 31

1. there are at least two circumstances when civilian investigators working in conjunction with military officials must comply with Article 31 warning requirement: (1) when the scope and character of the cooperative efforts demonstrate that the two investigations merged into an indivisible entity; and (2) when the civilian investigator acts in furtherance of any military investigation, or in any sense as an instrument of the military
2. ATF agent was not acting as an instrumentality of the military when agent began questioning appellant during investigatory stop and search of his vehicle, and thus agent was not required to advise him of his Article 31 rights; ATF agent was conducting a separate and independent ATF investigation; surveillance support that NIS provided prior to the stop did not amount to a military investigation that merged indivisibly with the ATF efforts

Core Criminal Law Subjects: Evidence: Search and Seizure › Generally

1. where appellant was not aware of police presence, his claim that police formed a moving roadblock while surveilling him on highway did not rise to a Fourth Amendment seizure

Core Criminal Law Subjects: Evidence: Search and Seizure › Consent

1. after accused’s brief detention for traffic stop concluded, encounter between accused and state trooper was consensual in nature and not a seizure subject to Fourth Amendment scrutiny, notwithstanding accused’s contention that trooper’s request for consent to search his vehicle initiated a subsequent detention; accused did not show that after issuing a citation, trooper prevented him from leaving, by physically blocking his vehicle, engaging in questioning, or otherwise signaling to accused that he was not free to leave
2. accused’s initial consensual encounter with state trooper during traffic stop evolved into a Fourth Amendment seizure, where shortly after accused gave his consent to trooper for a routine search of his vehicle, and trooper began his search, between 10 to 12 ATF agents arrived on the scene to conduct an intensive search of vehicle, and began questioning him; under the circumstances a reasonable person would not have felt free to decline the agents’ requests and terminate the encounter

Core Criminal Law Subjects: Evidence: Search and Seizure › Investigatory stop

1. Fourth Amendment seizure was an investigatory detention rather than an arrest, where there was no evidence that the ATF agents brandished their weapons or handcuffed accused, or that accused was prevented from speaking to his passengers
2. investigatory detention was supported by reasonable suspicion that accused was transporting one or more handguns for unlawful resale where surveillance indicated a pattern of apparent straw purchases of handguns by accused and co-actor during days preceding the stop, and ATF had received a tip from a confidential informant that accused would be traveling to New York, suggesting to agents the possibility of interstate transport and sale of the guns

Trial Stages: Pretrial: Discovery

1. military judge did not abuse his discretion in denying accused’s motion to compel production of television network’s videotape outtakes taken at scene of traffic stop of accused, where accused did not carry his burden as the moving party to demonstrate that the outtakes he requested existed; consequently, he did not show that they were relevant and necessary and should have been produced through compulsory process

Trial Stages: Post-Trial Hearings: DuBay / Factfinding Hearings

1. regarding the right to counsel, the principles enunciated by the Court in other post-trial settings also apply to DuBay fact-finding hearings
2. the absence of counsel at a DuBay hearing will effectively result in denial of the right to counsel; however, if substitute counsel who has the legal responsibility to protect the accused’s post-trial interests is present, it cannot be said that the accused has been deprived of his right to counsel
3. error by substitute counsel of serving without first having entered into an attorney-client relationship could be tested for prejudice, and the appropriate test for prejudice is that prescribed in Article 59(a)
4. although accused’s detailed defense counsel improperly severed the attorney-client relationship with accused between second and third sessions of DuBay hearing, and substitute counsel proceeded to represent accused during the final two sessions of hearing without establishing an attorney-client relationship, accused was not prejudiced, considering that substitute counsel represented accused’s cause zealously and that questions assigned for DuBay consideration did not relate directly to matters within accused's personal knowledge

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. a military judge’s ruling on a request for production of evidence is reviewed for an abuse of discretion

Miscellaneous Matters: Speedy Trial: Post-Trial

1. although eight-year, nine-month period between sentencing and final action by the Court of Criminal Appeals might have constituted undue delay, accused did not establish that he was prejudiced by the delay because his defense counsel was unable to continue representing him at DuBay hearing due to counsel’s military reassignment