Failure to Report: The Right Against Self-Incrimination and the Navy's Treatment of Civilian Arrests After United States v. Serianne

• Author: Randall Leonard - Joseph Toth
• Position: Judge Advocate, U.S. Navy - Judge Advocate, U.S. Naval Reserve
• Pages: 1-28

MILITARY LAW REVIEW

Volume 213 Fall 2012

FAILURE TO REPORT: THE RIGHT AGAINST SELF-

INCRIMINATION AND THE NAVY’S TREATMENT OF

CIVILIAN ARRESTS AFTER UNITED STATES v. SERIANNE

L

IEUTENANT RANDALL LEONARD*

&

LIEUTENANT JOSEPH TOTH†

“Its general principles would have little value and be converted by

precedent into impotent and lifeless formulas. Rights declared in words

might be lost in reality. And this has been recognized. . . .”

—Chief Justice Earl Warren in Miranda v. Arizona1

* Judge Advocate, U.S. Navy. Presently assigned as Assistant Professor of Military Law,

Leadership, Education, and Development Division, U.S. Naval Academy. J.D., 2007,

University of Florida; B.A., 2004 Yale University. Previous assignments include Rule of

Law Field Support Officer, Rule of Law Field Force–Afghanistan (ROLFF–A),

Arghandab River Valley, Afghanistan; Defense Counsel and Physical Evaluation Board

Representative, Naval Legal Service Office North Central (NLSO NC), Washington,

D.C.; Member of the Bar of the State of Florida. Lieutenant (LT) Leonard thanks the

following contributors: Commander (CDR) Julia Crisfield, for her steady direction and

example; Ms. Hadley Berryhill, Esq., for her measured—if not biased—confidence; Mr.

Nicholas DeArmas, for always having the right answer in the right question; and

Legalmen Second Class Victor Rolling, a Lexis maestro, for his research assistance.

† Judge Advocate, U.S. Naval Reserve. Presently on inactive reserve and serving as a

judicial clerk in federal court in Charlotte, North Carolina. J.D., 2007, Ave Maria Law

School; Managing Editor, Ave Maria Law Review; B.A, 1996, The University of

Chicago. Previous assignments include Rule of Law Field Support Officer, Rule of Law

Field Force–Afghanistan (ROLFF–A), Zhari District, Afghanistan; Defense Counsel and

Legal Assistance Attorney, Naval Legal Service Office Pacific, Pearl Harbor, HI;

Associate, Drinker, Biddle & Reath, LLP, Florham Park, NJ. Lieutenant (LT) Toth

thanks those who have offered guidance along the way, most notably Commander (CDR)

David Norkin, Lieutenant Colonel (LTC) Michael “Dan” Mori, CDR Kerry Abramson,

LCDR Colleen Harris, LT Gavan Montague, Capt. Michael Toth, Judge Robert J.

Conrad, Jr., Mr. Thomas Campion, Mrs. Susan Sharko, and Mr. Edward Lyons.

This article is dedicated to the man who inspired it, LT Jentso James Hwang, Judge

Advocate General’s Corps, U.S. Navy. Lieutenant Hwang was the trial defense attorney

2 MILITARY LAW REVIEW [Vol. 213

I. The Catch-92

Navy enlisted Sailor Chief Edwin Nately takes weekend leave to

attend his best friend’s bachelor party in Las Vegas. Chief Nately parties

all weekend, casino-hopping and imbibing free drinks. He avoids the

seedier elements of Vegas, but not the free drinks.

En route to the airport on Monday morning, Chief Nately is pulled

over by a Las Vegas trooper, who, suspecting intoxication, asks Chief

Nately to step out of his vehicle. Chief Nately is tired, but he does not

feel drunk. He agrees to a roadside sobriety test and performs well, but

recalling advice from an old lawyer-friend, he refuses a roadside

breathalyzer test. Based in large part on this refusal, the trooper arrests

Chief Nately on suspicion of Driving Under the Influence (DUI).2

Back at the station, his blood-alcohol content (BAC) is tested. He

blows a .05, below the per se unlawful level in Nevada.3 Nevertheless,

Chief Nately is booked for DUI, and later released to his friends on bond.

Chief Nately returns to his homeport scared. He knows the case

against him is weak, but he also knows that his exoneration will not

come cheaply. He will likely have to fly back to Nevada to face trial, and

he will have to hire an attorney to represent him at that trial. Moreover,

Chief Nately fears the impact his arrest will have on his career. Although

he is not versed in the legion of Navy regulations, he is familiar with

Article 92 of the Uniform Code of Military Justice (UCMJ)—Failure to

Obey Order or Regulation.4 He also knows that under Article 92 he has a

duty to report his Vegas arrest to his chain of command.5

for the article’s title character, Chief David Serianne. Lieutenant Hwang’s vision and

advocacy saved Chief Serianne’s career and—as this article hopes to display—reshaped

Fifth Amendment jurisprudence in the Navy. Lieutenant Hwang died unexpectedly in

July 2011. In his career, LT Hwang provided legal representation to hundreds of Sailors

and Marines, served bravely in Operation Iraqi Freedom, and mentored one of this

article’s authors. It is inadequate—to say the least—that LT Hwang’s name appears in

this article as a mere footnote; to the authors, his legacy is anything but.

1 384 U.S. 436, 443 (1966) (quoting Weems v. United States, 217 U.S. 349, 373 (1910)).

2 NEV. REV. STAT. §§ 484C.010–484C.150 (2011).

3 Id. Like other states, Nevada deems a Blood Alcohol Content (BAC) of .08 or above

unlawful. A BAC below that level, however, may still be unlawful if other circumstances

indicate to the arresting officer that the suspect is intoxicated.

4 UCMJ art. 92 (2012).

5 Article 92, Uniform Code of Military Justice imposes a general duty to obey lawful

orders, not a duty to report arrests. This specific duty was ordered, formerly, in