United States v. Nivens

Opinion of the Court Duncan, Judge: This case is before us on the following two questions certified by the Acting Judge Advocate General of the Navy: 1. Was the United States Navy Court of Military Review correct in its determination that the trial judge does not have the power to determine the situs of the trial to facilitate the preparation of the defense and for the convenience of the parties concerned? 2. Was the United States Navy Court of Military Review correct in its determination that there was no unlawful intrusion by the convening authority into the trial in the instant case? Appellant faced a general court-martial on a charge of assault with a dangerous weapon, in violation of Article 128, Uniform Code of Military Justice, 10 USC § 928. The alleged offense occurred at the Acey-Deucy Club, Naval Air Station, Point Mugu, California. The first pretrial confinement of the appellant was at neighboring Port Hueneme. To accommodate the appointed military defense counsel, the appellant was later transferred for pretrial confinement to San Diego. The convening order specified the place of trial as the Naval Station, San Diego, more than 150 miles from the Point Mugu-Port Hueneme area. At an Article 39(a) session in San Diego on December 4, 1970, appellant’s retained civilian counsel asked for the appointment of an additional military counsel at Port Hueneme. He also moved that the appellant be released from pretrial confinement or transferred to the brig at Port Hueneme to facilitate his participation in interviewing witnesses and in accompanying counsel to the scene of the offense. In addition, counsel moved for a change in the place of trial from San Diego to the Point Mugu-Port Hueneme area because the offense occurred in that area, the witnesses were there, and the retained civilian counsel also lived there. The defense counsel contended that these considerations would facilitate the location of witnesses and the preparation of a defense. Terming his action “not a change in venue but properly a change in the location or the site of the trial,” the military judge, citing United States v Cox, 23 CMR 535 (ABR 1957), decided that the trial should be returned to the Point Mugu area. The judge recognized that he was not empowered to transfer the accused to the Point Mugu area, as requested, but “suggest [ed]” that the convening authority should have him transferred at the earliest possible time. On December 10, trial counsel requested the military judge to reconsider his earlier decision but the judge, after hearing extensive argument from trial counsel, reaffirmed his ruling. When the Article 39(a) session reconvened on December 15, trial counsel presented correspondence from the convening authority indicating that the convening authority had overruled the military judge’s decision to change [422] the site of the trial. The military judge then announced that he would accede to the directions of the convening authority and he continued the trial in San Diego. Immediately prior to taking such action, the military judge made the following pertinent comment: “. . . [F]or Appellate purposes and for this record, I will state at this time that in a previous case within the last two months tried by this Military Judge in this same courtroom that the Government counsel, who is the direct representative of the convening authority, made such a motion for a removal of a trial not only from San Diego to some place within the State of California still within the jurisdiction of this convening authority, as far as his geographical limit, but for a removal of a case to the country of Japan. The basis was for the convenience of the Government because many of the witnesses were located on a ship and the ship would, essentially, be put out of commission if the witnesses were brought here for trial. The Military Judge, at that time, over the strenuous objections in that case by the defense, balanced the risk and within his discretion granted the motion. At that time, since it was favorable to the Government, the convening authority followed up the Military Judge’s action, cut orders, and made necessary travel arrangements for the court to proceed to Yokosuka, Japan, to try the case. This is why the Military Judge is at a complete loss in this case to understand the action of the convening authority at this time in calling a like motion one that is improper and exceeding the authority of the Military Judge. “That as it may be, it is not the intent of the Military Judge to get into a conflict with the convening authority, since this court is a creature and only comes into being when appointed and convened and detailed by the convening authority; therefore, the Military Judge will accede to the directions of the convening authority and will continue the trial at this point in San Diego. “The motion by the defense at this time is overruled. The trial will proceed.” The defense has argued throughout that a motion for a change of venue based on -convenience of the parties and in the interest of justice is a proper motion for appropriate relief under paragraph 69, Manual for Courts-Martial, United States, 1969 (Revised edition). The Government replies, and the Court of Military Review held, that the only motion for a change of venue that is permitted is one under paragraph 69e, Manual, supra, which must be based on a general atmosphere of prejudice at the proposed site of trial. The question need not detain us. The motion before the military judge, whether it be denominated a motion for a change of venue or change in the situs of the trial, is an interlocutory matter. Article 51(b), Code, supra, 10 USC § 851, specifically provides that a ruling upon any interlocutory question “is final and constitutes the ruling of the court.” Paragraphs 57 and 67f, Manual, supra; cf. United States v Knudson, 4 USCMA 587, 16 CMR 161 (1954). In the words of the Manual, paragraph 5a(6): “An officer who has power to convene a general court-martial may determine the cases to be referred to it for trial and may dissolve it, but he cannot control the exercise by the court of the powers vested in it by law.” See also United States v Knudson, supra, at page 592. With regard to the Government’s contention that paragraph 69e of the Manual only provides for a change of venue based on a general atmosphere of prejudice at the situs of the trial (cf. Rule 21(a), Federal Rules of Criminal Procedure), we call attention to the fact that paragraph 69 is entitled, “MOTIONS TO GRANT APPROPRIATE RELIEF,” and that a [423] motion for a change of venue is “[a.]unong the objections which may be raised by such a motion.” (Emphasis supplied.) The listing in paragraph 69 was obviously not intended to be exclusive; there is room for more. In United States v Gravitt, 5 USCMA 249, 256, 17 CMR 249 (1954), at a time when a motion for a change of venue was not mentioned at all in the Manual for Courts-Martial, United States, 1951, and it was contended that the motion was “ ‘unknown as such in military law,’ ” we held that: “. . . [I]f he [accused] can demonstrate that the court would be adversely influenced by a general atmosphere of hostility or partiality against him, existing at the place of trial, he would be entitled to be tried in some other place. Substance, not form, determines the nature of the relief sought. Consequently, regardless of technical description, the law officer is bound to consider the accused’s motion as one for appropriate relief.” See also United States v Vigneault, 3 USCMA 247, 12 CMR 3 (1953); United States v Hagelberger, 3 USCMA 259, 12 CMR 15 (1953). When the new Manual was published, the above-noted provisions of paragraph 69 e apparently were incorporated therein because of the holding in United States v Gravitt, supra. See Analysis of Contents, Manual for Courts-Martial, United States, 1969. This Court has repeatedly held that Federal practice applies to courts-martial if not incompatible with military law or with the special requirements of the military establishment. United States v Fisher, 4 USCMA 152, 15 CMR 152 (1954); United States v Knudson, supra. The motion for relief in this case accords with Rule 21(b), Federal Rules of Criminal Procedure: “. . . For the convenience of parties and witnesses, and in the interest of justice, the court upon motion of the defendant may transfer the proceeding as to him or any one or more of the counts thereof to another district.” In the case at bar, the record reflects that the military judge was not unaware of the requirement that on a motion for a change in the situs of the trial based on the convenience of the parties and witnesses and in the interest of justice, he must also consider the inconvenience to the Government. See generally, Rule 21, Federal Rules of Criminal Procedure, 1972 Pocket Part, 23.- — Balance of inconvenience. Following trial counsel’s lengthy argument thereon during the hearing on reconsideration, the military judge acknowledged such awareness before adhering to his prior ruling. We hold, therefore, that the trial judge does have the power to determine the situs of the trial to facilitate the preparation of the defense and for the convenience of the parties concerned. Paragraph 69, Manual, supra; Rule 21(b), Federal Rules of Criminal Procedure. The first certified question is answered in the negative. We also hold that the convening authority unlawfully intruded into the trial of this case (Article 51(b), Code, supra; cf. Petty v Moriarty, 20 USCMA 438, 43 CMR 278 (1971)), and that the military judge erred in acceding to that intrusion. The second certified question is answered in the negative. We are left with determining whether the error in this case was prejudicial to the substantial rights of the appellant. No claim is made and it does not appear from the record that the defense was unduly hampered in preparation for trial or that it was unable to obtain the presence of any witnesses, as a result of the distance of the place of trial from the situs of the offense. Cf. United States v Cox, supra. Under the circumstances of this case, substantial prejudice is not demonstrated. By failing to find prejudice to this appellant, we do not intend to imply [424] condonation of the command control portrayed in this case. Our concern in this area has been frequently stated. See cases cited in Tedrow, Digest, Annotated and Digested Opinions, U. S. Court of Military Appeals, Command Control, pages 90-101, and 1971 Pocket Part, pages 25-27. Trial counsel apparently believed it was present as evidenced by his unsuccessful challenge for cause of the military judge because of the interference by the convening authority in the trial of the case. The convening authority’s action in this case, albeit honest and sincere, is in a very real sense a subversion of military justice. The Congress of the United States placed upon the shoulders of the military judge the duty to conduct a fair and impartial trial. His judicial temperament and legal expertise are the bedrock of criminal justice in the military. His detachment from command pressures was intended to be complete. Article 26, Code, supra, 10 USC § 826. The system simply cannot function if the convening authority is permitted to usurp the powers of the military judge. The appellant’s conviction is affirmed. Judge Quinn concurs.