Captain THOMAS R. NEUMANN v. Colonel MICHAEL J. HARGIS

UNITED STATES ARM Y COURT OF CRIM INAL APPEALS

Befo re CA M PA NELLA , SA LUSSOLIA , an d FLEM ING A p p ellat e M ilit ary Ju d g es

AG, by and through Captain THOM AS R. NEUM ANN , Spe cial Victim Couns e l, Pe titione r v. Colone l M ICHAEL J. HARGIS, U.S. Army, M ilitary Judge , Re s ponde nt

ARMY MISC 20170417

For Petitioner : Captain Thomas R. Neumann, JA (on brief). *2 HARGIS–ARMY MISC 20170417

After the militar y magistrate signed a search and seizure authorizatio n to seize AG’s cellphone, a CID agent went to AG’s workplace to execute the search and seizure authorizatio n. AG did not immed iate ly provide her cellphone to the CID agent upon request, but instead attempted to depart a small office with the cellphone. AG asserts she was injured and her cellphone damaged when the CID agent blocked her egress from the small office in an attempt to control the whereabouts of the cellphone. AG asserts her SVC requested, but was not provided with, the search and seizure authorization prior to her unwilling surrender of the cellphone because of alleged CID threats to arrest her for obstruction of justice and to seek an order from her commander directing her immed iate relinquis hme nt of the cellphone.

AG’s SVC received a copy of the search and seizure authorizatio n after the seizure of AG’s phone. The SVC then made a discovery request to the militar y magistrate requesting the affidavit and any other documents used by the militar y magistrate in issuing the search and seizure authoriza tio n.

After consulting with his supervising militar y judge, the milita r y magistrate denied the SVC’s discovery request. The SVC then requested the militar y judge issue a ruling reversing the militar y magistrate’s discovery decision and to compel production of the requested documents. The militar y judge did not issue a discovery or production ruling. Instead, the milita ry judge emailed the Staff Judge Advocate (SJA) for Fort Irwin stating that he was not taking any action on the SVC’s request and asking the SJA to notify the SVC of his decision.

LAW AND DISCUSSION

As an initia l matter, we must determine whether we have jurisdictio n to address this petition. Steel Co. v . Citizens for a Better Env ’t, 523 U.S. 83, 94- 95 (1998) (holding jurisdictio n must be established as a threshold matter). While petitioner focuses on alleged violatio ns of AG’s constitutio na l and statutory rights in the issuance and execution of the search and seizure authorization, 2 the issue is whether AG is entitled to discovery and the production of documents when no court- martial exists. See United States v . Adams, 66 M.J. 255, 258 (C.A.A.F. 2008); (holding jurisdictio n for a court- martia l is established when charges are properly referred and composed of qualified members chosen by a proper convening authority) ; see also United States v . Harmon, 63 M.J. 98 (C.A.A.F. 2006).

2 The SVC asserts that the search and seizure authorizatio n was facially invalid ; that the milita ry magistrate and/or CID agents violated AG’s constitutio na l and statutory rights in the issuance and/or the execution of the search and seizure authorizatio n; and that the militar y magistrate and/or the supervisory milita r y judge violated AG’s constitutio na l and statutory rights by failing to produce the requested documents to the SVC.

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This court is a court of limited jurisdictio n, established by The Judge Advocate General. Uniform Code of Militar y Justice art. 66(a), 10 U.S.C. § 66a (2012) [hereinafter UCMJ] (“Each Judge Advocate General shall establish a Court of Crimina l Appeals. . . .”). The mandate to establish this court was made pursuant to the authority of Congress to pass laws regulating the Armed Forces. See U.S. Const. art. I § 8, cl. 14. While this court has jurisdictio n to issue writs under the All Writs Act, 28 U.S.C. § 1651, we exercise this authority “in strict compliance with [the] authorizing statutes.” Ctr. For Constitutional Rights (CC R) v . United States, 72 M.J. 126, 128 (C.A.A.F. 2013). Our jurisdictio n to issue the requested writ is limited to our subject- matter jurisdictio n over the case or controversy. See United States v . Denedo, 556 U.S. 904, 911 (2009); UCMJ art. 66. “To esta blish subject- matter jurisdictio n, the harm alleged must have had ‘the potential to directly affect the findings and sentence.’” LRM v . Kastenberg, 72 M.J. 364, 368 (C.A.A.F. 2013) (quoting CCR, 72 M.J. at 129). In general, while the jurisdictio n of this court over the findings and sentence of a case referred to it is broad , 3 the authority of this court to review pre- referral matters is limited and lacks a firm statutory basis. See UCMJ art. 66(c).

The relief petitioner apparently seeks is for this court to order discovery and compel the production of documents to an alleged victim where there is not yet—and may never be—a court- martia l. This is an overly broad view of this court’s jurisdictio n.

In ABC, Inc. v . Powell, 47 M.J. 363 (C.A.A.F. 1997), the Court of Appeals for the Armed Forces (CAAF) granted a writ when a special court- martial convening authority directed the entire Article 32, UCMJ, hearing be closed. Our superior court granted the writ, ordered that the hearing be open to the public, and directed that the hearing may be ordered closed only as necessary on a case - by- case basis. Id. at 365- 66. However, since that time, the CAAF has questioned the continued validity of Powell. In denying a writ seeking media access to court- martial filings, the CAAF in CCR rejected Powell as controlling precedent, noting that “(1) Powell was decided before [Clinton v .] Goldsmith [526 U.S. 529 (1999)] clarified our understanding of the limits of our authority under the All Writs Act, and (2) we assumed jurisdictio n in that case without considering the question.” CCR, 72 M.J. at 129.

In Goldsmith, the United States Supreme Court clearly stated a Court of Crimina l Appeals’ jurisdictio n extends to reviewing the findings and sentence of courts- martia l. 526 U.S. at 535. Under the All Writs Act, this court can consider issues “in aid” of that jurisdictio n. Thus, for example, the CAAF had jurisdiction to order the removal of a “biased” militar y judge as it “had the potential to directly

3United States v . Clax ton, 32 M.J. 159, 162 (C.M.A. 1991) (“A clearer carte blanche to do justice would be diffic ult to express”)

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affect the findings and sentence” and was therefore in aid of the court’s jurisdictio n. CCR, 72 M.J. at 129 (citing Hasan v . Gross, 71 M.J. 416 (C.A.A.F. 2012)).

Here, petitioner fails to establish that a de facto ruling denying discovery or compelling production of documents to an alleged victim at the pre- referral stage has the potential to affect the findings and sentence. The militar y judge lacked jurisdictio n; so does this court. Viewing Powell in light of Goldsmith, we reject petitioner’s invitatio n to extend the jurisdictio n of this court under the All Writs Act to the pre- referral matter raised in this writ. 4

Even if this court were to have jurisdiction over such a case, petitioner has established no right to relief. To prevail on a writ of mandamus, petitioner must show that: 1) there is no other adequate means to attain relief; 2) the right to issuance of the writ is clear and indisputab le; and 3) the issuance of the writ is appropriate under the circumsta nces. Cheney v . United States Dist. Court for D.C ., 542 U.S. 367, 380 (2004). Petitioner fails on all three prongs.

Petitioner asserts two grounds upon which she is entitled to discovery and the production of documents. The first is 18 U.S.C. § 3771(d)(8), which establishes a crime victim’s “right to be treated with fairness and with respect for the victim’s dignity and privacy.” (See also 10 U.S.C. § 806b(a)(8)) (establishing the rights of victims under Article 6b, UCMJ). However, a right to be treated with fairness, dignity, and privacy does not give a victim a right to receipt of discovery and documents without an analysis of the case status and pending legal issue.

Petitioner’s second basis is the Standard Operating Procedure [hereinafter SOP] for Militar y Magistrates, Section IV, dated 10 September 2013 , gives her a right to discovery and production. Specifically, the SOP provides “[a]t the request of counsel . . . militar y magistrates will provide a copy of the affidavit, authorizatio n, notes and any other documents prepared as part of the militar y magistrate’s duties at issue.” See SOP, Section IV, 1.b. Assuming “counsel” is meant to include SVCs and a mere SOP establishes an alleged victim’s right to the receipt of militar y magistrate ’s documents, an alleged victim’s discovery and production request is not ripe for decision by a milita r y judge in a non- referred case. Even an accused has no right to discovery and production of an affidavit or other documents used by a milita r y magistrate in issuing a search and seizure authorizatio n until the referral stage pursuant to Rules for Courts- Martial 701 and 703. Here, the petition is easily distinguis hed from the facts in Kastenberg, where a

4Although petitioner did not request a writ of mandamus under 10 U.S.C. § 806b(e)(1), this court also finds jurisdictio n d oes not exist at this juncture under this authority.

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properly convened court- martia l existed and Militar y Rules of Evidence 412 and 513 expressly gave the victim “the right to be heard.” Kastenberg, 72 M.J. at 370.

Accordingly, we find petitioner’s writ fails to establish that jurisdictio n exists for a trial judge or this court to order pre- referral discovery or document production. Further, even if charges had been properly referred to a court- martia l, petitioner fails to establish an alleged victim’s per se right to discovery or the production of documents related to a militar y magistrate’s search authorization.

CONCLUSION

The petition is DISMISSED for lack of jurisdictio n.

Senior Judge CAMPANELLA and Judge SALUSSOLIA concur.

FOR FOR THE THE COURT: COURT:

MALCOLM Clerk H. SQUIRES, JR. of Court Clerk of Court

Footnotes

[16] August 2017 -------------- --- -- --- --- -- --- --- -- --- --- -- --- --- -- --- --- -- --- --- -- --- OPINION OF THE COURT A ND A CTION ON PETITION FOR EXTRA ORDINA R Y RELIEF IN THE NA TURE OF A W RIT OF M A NDA M US -------------- --- -- --- --- -- --- --- -- --- --- -- --- --- -- --- --- -- --- --- -- --- FLEMING, Judge: In this case, we hold petitioner, an alleged sexual assault victim, fails to establish that a referred court- martia l, or even preferred charges, existed at the time of the milita r y judge’s decision to take no action on a special victim counsel’s [hereinafter SVC] discovery and production request. 1 We further hold the militar y judge did not err by advising the militar y magistrate to deny the SVC’s discovery request or by not acting on the SVC request, which created a de facto ruling denying the SVC’s discovery and production request. We, therefore, dismiss the petition for lack of jurisdictio n. BACKGROUND AG reported to Crimina l Investiga tio n Command [hereinafter CID] at Fort Irwin that she was sexually assaulted by another service member. During CID’s investiga tio n, a militar y magistrate signed a search authoriza tio n for AG’s cell phone, which is the subject of AG’s petition to this court for extraordinary relief in the nature of a writ of mandamus. 1 While petitioner’s brief does not discuss or meet the burden to establish the status of AG’s case at the time of the militar y judge’s decision, the petitioner appears to concede that a court- martial was not “convened.” This court interprets that language to mean, at a minimum, that a referred court- martia l was not in existence.