United States v. Grosso

Opinion of the Court ROBERT E. Quinn, Chief Judge: A general court-martial convicted the accused of two offenses, in violation of the Uniform Code of Military Justice, and imposed a sentence which includes a bad-conduct discharge. The convening authority dismissed one of the charges. He approved the sentence, but [569] suspended execution of the discharge. A unanimous hoard of review affirmed. We granted review. The specification of which the accused stands convicted is charged as a violation of Article 134, Uniform Code of Military Justice, 10 USC § 934. It alleges that the accused violated Section 249 of the Penal Code of the State of California by “wrongfully, wilfully, maliciously, and without justifiable cause, writing and forwarding through the U. S. Mails to the San Francisco Field Office of the Federal Bureau of Investigation, a defamatory statement” concerning a Navy lieutenant. The defamatory statement is set out, in pertinent part, in the specification. At the trial it was shown that an anonymous letter of the tenor alleged in the specification was received on March 23, 1955, by the Federal Bureau of Investigation. It was turned over to Special Agent Tardiff of the Office of Naval Intelligence. Earlier, he had been informed that the subject officer had reported the theft of his wallet. On subsequent investigation, he ascertained that the theft had taken place at the Oakland Young Men’s Christian Association. On later dates there were other reported thefts. The lieutenant’s wallet was found at the scene of one of these, and his identification card was discovered at another. Agent Tardiff also learned that a “Frank Gross” had registered on the day of each incident. Further investigation disclosed that “Frank Gross” was the accused, and that he had sold a watch which had been taken in one of the reported burglaries. With two Oakland policemen, Agent Tardiff questioned the accused on May 11, 1955, at the Alameda Naval Air Station. He advised the accused of his right not to make any statement, and that anything he said could be used against him; additionally, he told the accused that he was to be questioned about the burglaries at the YMCA. The accused denied complicity in these crimes. He also denied that he knew the lieutenant. The next day, Agent Tardiff interrogated the accused by himself. Preliminary to the questioning, he showed the accused his credentials and again informed him of his rights. He told the accused that he was to be questioned about the burglaries and as to his “knowledge of, and association with” the named naval officer. The agent produced several photographs of the lieutenant, and on seeing these, the accused remarked: “Oh, that queer. I have seen him a lot of times at the Oakland Y.M.C.A.” At the conclusion of the questioning, the accused reduced his oral statements to writing. He first recited the agent’s identification of himself and the purposes of the interrogation. Then, he denied any knowledge of the purported burglaries; but, he gave a detailed account of an alleged indecent act by the officer upon his person in a room at the YMCA. He also admitted that he wrote an anonymous letter “three days later” to the Federal Bureau of Investigation. Moreover, in a subsequent conversation with Agent Tardiff, the accused admitted that he had not been in the officer’s room, but still he was “going to stick to” the statement he made earlier. On cross-examination, Agent Tardiff admitted that he did not specifically tell the accused that he was being investigated on a charge of violating the California law of libel. He maintained that he had “no way of determining what the . . . offense was at that time”; he was only trying to ascertain the truth or falsity of the statements made in the letter to the Federal Bureau of Investigation. Objection was interposed to the admission of the pretrial statement on the ground that the accused had not been informed of the nature of the accusation against him. The objection was overruled, and the statement was admitted in evidence. In my opinion, the ruling was justified by the evidence. Agent Tardiff testified that he desired to determine the truth or falsity of the accused’s charge. He told the accused that he was to be questioned about his “knowledge of, and association with” the lieutenant. What meaning did this statement have for the ae570 cused ? Certainly, he knew he had written an anonymous letter to the Federal Bureau of Investigation in which he made a serious charge against a Navy officer. A few months later, he specifically denied that he knew the lieutenant. The very next day after his denial he was again questioned. On this occasion he was not merely asked again whether he was acquainted with the lieutenant, hut he was told the whole range of his “knowledge of, and association with” the officer was to be delved into. On these facts, the law officer could reasonably conclude that the accused expected the interrogation would extend to his authorship of the letter, and to possible punishment, if its charge was determined to be untrue. The accused’s second claim of error is divided into two parts. First, he maintains that his conviction is illegal because it is based upon a privileged communication to the Federal Bureau of Investigation. The board of review disposed of this contention by referring simply to the Manual for Courts-Martial provision that “the privilege that extends to communications made by informants to public officers engaged in the discovery of crime may be waived by appropriate governmental authorities.” Paragraph 1516. This disposition misses the mark. We must distinguish between the disclosure of the communication as an evidentiary question and the substantive problem of whether this kind of communication can be the basis for an independent proceeding against the informant. Privileged communications in the field of libel are generally classified as either absolute or qualified. 33 Am Jur, Libel and Slan- der, §§ 124, 125, 317. The former is not actionable, but the latter may be. A report to law enforcement agents by a private person that another has committed a crime enjoys a qualified privilege. This limited privilege, however, does not immunize the informer against prosecution for a crime committed by him in the making of the report. The duty of a citizen to report the commission of a crime is no license to communicate calumnies. The Supreme Court of the State of Kansas considered this question in State v Wilcox, 90 Kan 80, 132 Pac 982. It was there said (page 987): “The good faith of a communication is not to be determined solely by the motives which actuate the informer. He may have malicious motives for bringing the accused to j'us-tice, may be influenced by malevolent hatred in causing the accusation to be made, provided he have reasonable grounds for the belief that a crime has in fact been committed. But when, knowing that in fact no crime has been committed, he makes the communication in order that a prosecution shall be commenced against an innocent person, for the purpose of wreaking private vengeance, or to levy blackmail, or for any other unlawful purpose, he commits an offense against the law, and cannot claim the protection which public policy has thrown around communications made in good faith for the purpose of having an honest inquiry concerning a suspected crime.” The other aspect of the accused’s second assignment of error is that the court-martial erred in that it “assumed that it was necessary to prove the truth of the charge against . . . [the officer] contained in the anonymous letter.” Although appellate defense counsel’s brief does not make the point clear, we discern a substantial issue. Under the common law, truth was not a defense in a prosecution for a criminal libel. By statute, many jurisdictions provide that truth is a good defense. 33 Am Jur, Libel and Slander, § 320. In another group, which apparently includes California, truth and good motive constitute the defense. However, aside from truth alone as a defense, in the case of a privileged communication, there is still the question of the good faith of the declarant. State v Fish, 91 NJL 228, 102 Atl 378; State v Wilcox, supra; State v Lambert, 188 La 968, 178 So 508. We are thus brought to the law officer’s instructions. In substance these instructions informed the court members only of the California law on criminal libel. The law officer read the statutory definition [571] of libel contained in § 248 of the Penal Code, the punishment therefor as provided in § 249, the requirements for a defense of truth and good motive, and the right of the jury to determine the law and the facts. He further instructed the court members on the provisions of § 256, which reads as follows: “A communication made to a person interested in the communication, by one who was also interested or who stood in such relation to the former as to afford a reasonable ground for supposing his motive innocent is not presumed to be malicious, and is a privileged communication.” At another place, however, he advised the court-martial that “the occasion and the good faith of the person making the communication rebut the presumption of malice.” (Emphasis supplied.) Nowhere did the law officer advise the court members of the relationship between a violation’ of the California Penal Code and a violation of the Uniform Code of Military Justice. The Government attempts to minimize the omission by relying upon our holding in United States v Marker, 1 USCMA 393, 3 CMR 127, to the effect that a specification laid under the general Article does not need to allege that the misconduct is of a discrediting nature. In my opinion, this argument overlooks the substantial difference between the sufficiency of allegation for the purpose of pleading and the sufficiency of an instruction as an adequate framework for the court members’ deliberations upon the accused’s guilt or innocence. The vast difference between the two is demonstrated by the obvious fact that state law is not military law. See United States v Bryson, 3 USCMA 329, 335, 12 CMR 85. A violation of a state statute does not by itself constitute a violation of Article 134, Uniform Code of Military Justice, 10 USC § 934. The violation must, in fact, and in law, amount to conduct to the discredit of the Armed Forces. Not every violation of a state statute is discrediting conduct. Undoubtedly, if we were to examine the statutes of the several states, we would find hundreds of acts which are made locally punishable but which would not be violations of military law. Members of a court-martial are not presumed to know the law. United States v Keith, 1 USCMA 442, 447, 4 CMR 34. It is apparent, therefore, that an instruction is entirely inadequate when it limits them to a consideration of whether the accused violated a state law, without regard to whether the violation is contrary to military law. The second outstanding characteristic of the instructions is their confusion. At one point, the court members were advised that a communication to one interested in it is “not presumed to be malicious, and is a privileged communication.” At another, they were informed that, although the communication may be found to be defamatory, the occasion and the good faith of the communicant “rebut the presumption of malice.” These statements are inconsistent. The second requires the accused to prove not only that the occasion was privileged, but that he acted in good faith in making the statement. That burden is not on him. When a privileged relationship is shown, the prosecution has the burden of proving that the statement was not honestly believed to be true. State v Lambert, 188 La 968, 178 So 508; Strode v Clement, 90 Va 553, 19 SE 177; State v Wilcox, supra. Defense counsel neither objected to the instructions nor requested any further instructions. How ever, mere failure to object does not constitute a waiver of a misleading instruction, United States v Noe, 7 USCMA 408, 22 CMR 198, or of an incorrect instruction on a material issue. United States v Rhoden, 1 USCMA 193, 200, 2 CMR 99. The decision of the board of review is reversed. The findings of guilty and the sentence are set aside and the record of trial is returned to The Judge Advocate General of the United States Navy. A rehearing may be ordered. Judge FeRguson concurs in the result.