UNITED STATES, Appellee 

v. 

Jorge L. RODRIGUEZ, Yeoman Third Class 

U.S. Navy, Appellant 

No. 97-0299 

Crim. App. No. 9500776 

 

United States Court of Appeals for the Armed Forces 

Argued November 19, 2003 

Decided August 25, 2004 

BAKER, J., delivered the opinion of the Court, in which 

CRAWFORD, C.J., GIERKE, and ERDMANN, JJ., joined. EFFRON, J., 

filed a separate dissenting opinion. 

Counsel

For Appellant: Lieutenant Elysia G. Ng, JAGC, USNR (argued). 

For Appellee: Captain Glen R. Hines, JAGC, USMC (argued); 

Commander Robert P. Taishoff, JAGC, USN (on brief). 

Amici curiae: Daniel M. Kummer, Esq. (argued); Eugene R. Fidell, 

Esq. (on brief) – for the National Broadcasting Corp., Inc. 

Jennifer Jaskel (law student)(argued); Patricio Asfura-Heim

and Ryan Tierney (law students), and Kevin J. Barry, Esq.

(supervising attorney)(on brief) – for the Catholic 

University of America, Columbus School of Law, Military and 

National Security Law Student Association. 

Military Judge: W. F. Grant 

THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION. 
United States v. Rodriguez, No. 97-0299/NA 

2

Judge BAKER delivered the opinion of the Court. 

In February 1994, Appellant was tried by a general courtmartial composed of officer and enlisted members. Contrary to 

his pleas, he was convicted of attempted transfer of firearms, 

conspiracy, desertion, failure to obey a general regulation, 

unlawfully engaging in the business of dealing in firearms, 

unlawful transfer of firearms and the unlawful possession of 

firearms, in violation of Articles 80, 81, 85, 92 and 134, 

Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. 

§§ 880, 881, 885, 992 and 934 (2000), respectively. The 

adjudged and approved sentence included a bad-conduct discharge, 

confinement for ten years, forfeiture of $200 pay per month for 

sixty months, and reduction to E-1. The Court of Criminal 

Appeals affirmed. United States v. Rodriguez, 44 M.J. 766 (N-M. 

Ct. Crim. App. 1996). This Court set aside that decision and 

remanded for a DuBay1

 hearing to develop facts related to a 

defense requested videotape of the events surrounding 

Appellant’s arrest by federal agents. United States v. 

Rodriguez, 50 M.J. 38 (C.A.A.F. 1998)(summary disposition). 

After the findings and sentence were again affirmed by the lower 

court, United States v. Rodriguez, 57 M.J. 765 (N-M. Ct. Crim. 

App. 2002), we granted review of the following issue: 

I 

 

1

 United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967). 
United States v. Rodriguez, No. 97-0299/NA 

3

WHETHER THE MILITARY JUDGE ERRED IN DENYING 

APPELLANT’S MOTION TO ORDER THE PRODUCTION 

OF NBC’S RECORDINGS RELATING TO APPELLANT’S 

TRAFFIC STOP AND SUBSEQUENT DETAINMENT, 

SEARCH AND INTERROGATION. 

We specified the following issues: 

II 

WHETHER THERE WAS AN ILLEGAL SEIZURE OF 

APPELLANT IN CONJUNCTION WITH THE STOP OF 

APPELLANT’S CAR AND, IF THERE WAS AN ILLEGAL 

SEIZURE, WHETHER APPELLANT'S ORAL AND 

WRITTEN ADMISSION AND ANY SUBSEQUENTLY 

SEIZED PHYSICAL EVIDENCE SHOULD HAVE BEEN 

EXCLUDED. 

III 

WHETHER SPECIAL AGENT GRABMAN OF THE BUREAU 

OF ALCOHOL, TOBACCO, AND FIREARMS WAS 

REQUIRED UNDER THE CIRCUMSTANCES TO ADVISE 

APPELLANT OF HIS RIGHTS UNDER ARTICLE 31, 

UNIFORM CODE OF MILITARY JUSTICE. 

IV 

WHETHER THE ESTABLISHED ATTORNEY-CLIENT 

RELATIONSHIP BETWEEN APPELLANT AND HIS 

ORIGINAL DUBAY DEFENSE COUNSEL WAS 

IMPROPERLY SEVERED IN THE MIDST OF THE DUBAY

PROCEEDINGS, IN TERMS OF WHETHER APPELLANT 

KNOWINGLY CONSENTED TO THE CHANGE OR THERE 

WAS OTHERWISE AN APPROPRIATE REASON FOR 

SEVERANCE ABSENT APPELLANT'S CONSENT. 

V 

WHETHER APPELLANT WAS PROVIDED A TIMELY 

APPELLATE REVIEW UNDER THE UNIFORM CODE OF 

MILITARY JUSTICE AND THE UNITED STATES 

CONSTITUTION. 
United States v. Rodriguez, No. 97-0299/NA 

4

For the reasons that follow we affirm.2

FACTS 

The Court of Criminal Appeals summarized the facts in its 

first opinion in this case as follows: 

In the spring of 1991 Special Agent [SA] Grabman 

of the Bureau of Alcohol, Tobacco, and Firearms [ATF] 

received reports that appellant had purchased more 

than one firearm in a 5-day period at gun stores in 

Northern Virginia. Although there is no legal limit 

on the number of firearms one may purchase in 

Virginia, appellant's pattern of purchases caused SA 

Grabman to open an investigation. Further inquiry 

revealed that appellant had purchased some 24 

inexpensive handguns, commonly called "Saturday Night 

Specials," during February and March of 1991, and that 

he had no license to sell firearms. ATF determined 

that appellant was on active duty in the Navy, and 

notified the Naval Investigative Service [NIS] to 

obtain their cooperation in the case.[3

] 

Beginning on Monday, 29 April 1991, ATF and NIS 

worked together in a surveillance of appellant at his 

home in Northern Virginia and at his place of work, 

the Bureau of Naval Personnel in Arlington. The close 

surveillance revealed that appellant and YN1 Moore 

were making multiple purchases of handguns from local 

gun dealers. It appeared to the agents that Moore had 

made "straw purchases" for appellant so that 

appellant's name would not appear on the gun purchase 

applications. Over the next several days the agents 

observed appellant and Moore buy 19 such handguns. 

Appellant's wife and children lived in New York 

City. He would often drive from Virginia to New York 

to visit them. On Friday, 3 May 1991, an informant 

 

2 We heard oral argument in this case at the Catholic University 

of America, Columbus School of Law, Washington, D.C., as part of 

the Court’s “Project Outreach.” See United States v. Mahoney, 

58 M.J. 346, 347 n.1 (C.A.A.F. 2003). 

3

 In 1992, the name of this agency was formally changed to the 

Naval Criminal Investigative Service. 
United States v. Rodriguez, No. 97-0299/NA 

5

advised the ATF and NIS that appellant planned to 

drive to New York City that weekend. The informant 

made no mention that appellant was going to transport 

any weapons. Later that afternoon the investigators 

followed appellant as he left work at 1530 and drove 

home. There he retrieved a large duffle bag which he 

transported back to the Navy Annex. Leaving the 

duffle bag there, he drove to Fort Myer where he 

picked up two passengers. Appellant then drove to an 

apartment where his daughter's aunt, Mrs. Barbara 

Soto, lived. He carried a rather heavy brown paper 

bag into the residence but left without the bag. 

Returning to the car with Mrs. Soto, the group of four 

drove north on I-95. 

Although SA Grabman believed he had enough 

evidence of illegal activity to stop and arrest 

appellant at that time, he wanted to continue the 

investigation to try to identify the other members of 

what he believed to be an interstate weapons 

transportation network. ATF and NIS agents continued 

their surveillance of appellant's car in unmarked lawenforcement vehicles. Riding in an ATF vehicle was an 

NBC camera crew that ATF had contacted to film what 

the agents and crew believed would be a newsworthy 

event. Also present were some senior ATF officials 

and an ATF public affairs officer. 

A Maryland State trooper stopped one of the 

unmarked ATF cars for speeding. After advising the 

Maryland police authorities that they were surveilling 

a suspect as part of a Federal investigation, senior 

ATF personnel decided to enlist their cooperation in 

pulling appellant over. After seeing appellant's car 

pass his position, Trooper Pearce followed him for 

about a minute, noticed him tailgating a car in the 

fast lane, and pulled him over to the central median 

for "following too closely," a common traffic 

infraction. After examining appellant's license and 

registration and running a computer check, Trooper 

Pearce issued appellant a warning citation at 1946. He 

then requested that appellant consent to a "routine 

search" of his car for contraband. Appellant did so 

consent, in writing, at 1950. Over the next 1-1/2 

hours or so, Trooper Pearce, assisted by ten or so ATF 

agents, conducted a thorough search of appellant's car 
United States v. Rodriguez, No. 97-0299/NA 

6

in the expectation of finding one or more handguns. 

Shortly after the search commenced, SA Grabman 

took appellant aside and, using a card he carried in 

his wallet, advised him of his Miranda rights. After 

appellant acknowledged his rights, SA Grabman 

questioned him about his purchases of handguns over 

the preceding few months. Appellant initially denied 

any wrongdoing. SA Grabman then reviewed the details 

of his case file with appellant and the extent of the 

Government's recent surveillance activities. After 

hearing these specifics, appellant stated, "You got 

me." SA Grabman then sought out two other agents to 

witness appellant signing a form acknowledging his 

Miranda rights at 2021 and several incriminating 

admissions which followed. SA Grabman then took 

appellant into custody. Finding no contraband in the 

car, the Federal agents permitted the other members of 

appellant's party to continue on their way to New 

York. 

At about 2140, after sharing in cake and juice 

with appellant at a Maryland State police barracks, SA 

Grabman and SA Spigener of the NIS sat down to 

interview appellant and try to obtain further 

information. They advised appellant of his rights 

under Article 31, UCMJ, and Miranda-Tempia. Appellant 

acknowledged his understanding of those rights in 

writing and executed a written statement which 

contained incriminating admissions. He also consented 

to various searches which uncovered handguns at 

several locations. Appellant admitted to having 

ground off the serial numbers from most of these guns. 

44 M.J. at 769. 

Other facts relevant to the issues in this case are 

contained in the record. SA Galupo was the supervisor present 

at the scene when the Maryland State Trooper stopped the ATF 

vehicle for speeding. She testified that she had her agent 

solicit the assistance of Trooper Pearce to stop Appellant for 

speeding “because he was a danger to . . . himself,” and because 
United States v. Rodriguez, No. 97-0299/NA 

7

she was “concerned for the agents.” The special agent conveyed 

to the trooper that besides speeding, Appellant had been 

observed during the surveillance “following too closely,” 

“switching lanes,” and “driving on the shoulder.” SA Grabman 

had also observed Appellant driving at speeds in “excess of 85 

miles an hour.” SA Galupo insisted that the purpose for 

soliciting the trooper’s assistance was not to obtain a consent 

search. Specifically, her testimony was, “I’m not going to tell 

a trooper to stop a car unless he sees a violation.” SA Galupo 

further testified that although the agents did not have probable 

cause to arrest Appellant on the interstate, they believed they 

had reasonable suspicion that he was transporting firearms in 

his vehicle. Last, prior to asking Appellant for his consent to 

search, Trooper Pearce advised him that the objective was to 

search for “controlled dangerous substances, firearms or 

contraband of any kind.” 

PROCEDURAL BACKGROUND 

Prior to trial, the defense sought the assistance of the 

Government to obtain NBC video recordings of the traffic stop. 

NBC had shown images of the event during one of its news 

segments. The Government served a subpoena on NBC dated 

February 24, 1992 for: “NBC videotape of a traffic stop of Jorge 

Rodriguez by agents of the Bureau of Alcohol Tobacco & Firearms 

shot on May 3, 1991 along I-95 in Maryland. Video was seen on 
United States v. Rodriguez, No. 97-0299/NA 

8

NBC Nightly News. Jim Polk was the reporter.” It served a 

second subpoena dated February 28, 1992, for: “All NBC 

recordings, video, audio or written produce [sic] between 17 Feb 

91 and 8 May 91 involving the purchase, sale or transport of 

firearms which may relate to YN1 Jorge Rodriguez.” NBC 

responded by honoring the request for the materials broadcast 

during its televised news segment, but it asserted a First 

Amendment news-gathering privilege regarding production of 

videotape outtakes and reporter notes. 

Because the Appellant entered a period of unauthorized 

absence from March 19, 1992 to August 24, 1993, no further 

proceedings took place and the Government chose to withdraw the 

charges without prejudice. When Appellant was once again under 

control of military authorities, the charges were referred anew 

to a second court-martial. The defense renewed its request to 

compel discovery of any remaining NBC videotapes. In response 

to this motion, the Government served a third subpoena on NBC 

requesting the same material as the subpoena dated February 28, 

1992. NBC responded as it had to the February 28 subpoena 

asserting a First Amendment privilege regarding any outtakes and 

reporter notes. 

At a session pursuant to Article 39(a), UCMJ, 10 U.S.C. § 

839(a) (2000), the defense moved to compel enforcement of the 

subpoena and to suppress Appellant’s statements made at the 
United States v. Rodriguez, No. 97-0299/NA 

9

traffic stop and at the police barracks. After making findings 

of fact and conclusions of law on both issues, the military 

judge denied the motions. 

DISCUSSION 

I 

The Motion to Compel Production

In his pre-trial motion, Appellant sought to compel 

production of NBC video recordings “involving the purchase, sale 

or transport of firearms which may relate to Petty Officer 

Rodriguez.” According to the defense the videotape footage from 

the May 3 traffic stop “was the only objective evidence of the 

actions of the government” that would enable the defense to 

challenge the voluntariness of Appellant’s statements. At the 

time of the Article 39(a) session, the parties were in 

possession of the broadcast version of the NBC tape recording. 

At the outset of the hearing, the military judge attempted to 

ascertain whether the requested outtakes existed. The parties 

agreed to stipulate to certain facts, but at the end of the 

discussion the question whether the tapes existed was still left 

unanswered. At that point the following colloquy took place 

between the assistant trial counsel (ATC), the military judge 

(MJ), and the defense counsel (IMC1): 

ATC: . . . I don’t mind stipulating to these facts, 

Your Honor, but it still does not clarify that 
United States v. Rodriguez, No. 97-0299/NA 

10

there is any tape in existence. I guess that’s 

the point. 

MJ: I agree, it does not. 

IMC1: Your, Honor, no evidence has been offered that 

there is no tape not in existence. 

MJ: Agreed. We don’t have any evidence on that point 

at all. 

The Government argued on the motion that the defense had 

failed to show that the requested tapes existed. Trial counsel 

asserted that the defense could have availed itself of a number 

of means to ascertain the existence of the tapes such as calling 

NBC officials. According to trial counsel, not having availed 

itself of such means, the defense had also failed to demonstrate 

that the requested matter was relevant and necessary. In 

response, the defense reiterated that the requested material was 

relevant and necessary and that it was the Government’s 

obligation to provide such evidence. Defense counsel’s argument 

did not touch on what measures, if any, the defense had taken to 

ascertain the existence of the tapes. Later, the military judge 

made the following relevant findings: 

Three, under [Rule for Courts-Martial] R.C.M. 703 

(f)(1) and (2), each party is entitled to the 

production of evidence which is relevant and 

necessary, but is not entitled to the production of 

evidence which is destroyed, lost, or not otherwise 

subject to compulsory process. The position of NBC is 

that this evidence is not subject to compulsory 

process because it is constitutionally protected. 

They do not assert that it does not exist. 
United States v. Rodriguez, No. 97-0299/NA 

11

Four, the authority of the military judge to 

assist with production of the unavailable evidence is 

spelled out in R.C.M. 703(f)(2). This presupposes a 

finding that the evidence is of such central 

importance to an issue that it is essential to a fair 

trial and there is no adequate substitute for the 

evidence. 

Five, the defense argues that the entire video 

tape, not just the portion already viewed here in 

court, is relevant evidence on the question of the 

voluntariness of statements made to Agent Grabman. 

Certainly, the necessity of properly resolving the 

issue of the voluntariness of those admissions is 

essential to a fair trial, however, the video tape is 

not of central importance to that issue. Rather it is 

of little or no importance to that question. The 

testimony before the court on the motion to suppress 

the admissions, which I choose to migrate over to the 

motion to compel discovery, establishes that the video 

crew was focused on the conduct of the search. 

Testimony also establishes that discussions between 

Agent Grabman and Petty Officer Rodriguez, and between 

other ATF agents and Petty Officer Rodriguez, took 

place some distance away from where the search was 

taking place. The testimony does not establish that 

matters relating to the voluntariness issue were even 

video taped at all, particularly the actual 

discussions between Petty Officer Rodriguez and the 

ATF agents. 

Six, the evidentiary value of that portion of the 

video that NBC did provide, now before the court as an 

appellate exhibit, is negligible in deciding the 

motion to suppress. 

Seven, there is adequate testimony of 

witnesses at the scene, and I include here the 

objective testimony of Ms. Soto [aunt of the 

appellant’s daughter], that can serve as a substitute 

for the video even if it were central to the issue of 

voluntariness of the admissions. 

Eight, I conclude that the entire video tape is 

unnecessary to fairly resolve the issues before the 

court in connection with the suppression motion. 
United States v. Rodriguez, No. 97-0299/NA 

12

In contrast to the trial judge, the DuBay hearing judge had 

the benefit of testimony from representatives of NBC as well as 

an affidavit from the news correspondent who had filed the 

story. The DuBay judge found “most persuasive” the sworn 

affidavit of the NBC correspondent stating that his videographer 

had not obtained any footage of communications between Appellant 

and any law enforcement officials. The judge made two 

significant findings relevant to this issue. First, he found 

that at the time of the DuBay hearing, “any videotape that was 

the object of the subpoenas in this case, and that was not 

heretofore provided, no longer exists.” Secondly, he found that 

“no videotape of an interrogation of the appellant was made.” 

The Court of Criminal Appeals adopted the findings of the 

DuBay judge and reaffirmed its earlier decision upholding the 

denial of Appellant’s motion to compel production because the 

“videotape outtakes were neither necessary nor clearly of 

central importance and essential to a fair trial on the issue of 

voluntariness.” Rodriguez, 57 M.J. at 772. 

Appellant now argues that he was unable to demonstrate the 

relevance and necessity of the tapes because “he had no access 

to the videotaped footage that would show the circumstances of 

[his] seizure.” The Government argues the outtakes, if they 

existed, were cumulative and unnecessary given the fact 
United States v. Rodriguez, No. 97-0299/NA 

13

witnesses to the events testified at the original Article 39(a) 

session. 

We review a military judge’s ruling on a request for 

production of evidence for an abuse of discretion. United 

States v. Breeding, 44 M.J. 345, 349 (C.A.A.F. 1996)(denial of a 

request for additional witnesses). 

Parties to a court-martial are entitled to an “equal 

opportunity to obtain witnesses and other evidence[.]” Article 

46, UCMJ, 10 U.S.C. § 846 (2000). The UCMJ and the Rules for 

Courts-Martial [hereinafter R.C.M.] also include the right to 

compulsory process. Id.; R.C.M. 703(a). “Each party is 

entitled to the production of evidence which is relevant and 

necessary.” R.C.M. 703(f)(1). Military Rule of Evidence 401 

[hereinafter M.R.E.] defines relevant evidence as that which has 

“any tendency to make the existence of any fact that is of 

consequence to the determination of the action more probable or 

less probable than it would be without the evidence.” Relevant 

evidence is “necessary when it is not cumulative and when it 

would contribute to a party’s presentation of the case in some 

positive way on a matter in issue.” R.C.M. 703(f)(1) 

discussion. The burden of persuasion on a motion for 

appropriate relief is on the moving party. R.C.M. 905(c)(2)(A), 

906(b)(7). 
United States v. Rodriguez, No. 97-0299/NA 

14

At trial Appellant insisted that the requested outtakes 

were relevant and necessary because they were the “best evidence 

available” as to whether the Appellant’s rights were violated. 

The Government is obligated to produce by compulsory process 

evidence requested by the defense that is “relevant and 

necessary.” R.C.M. 703(c)(1). However, it was the defense, as 

the moving party, who was required as a threshold matter to show 

that the requested material existed. Appellant failed to meet 

this burden. Defense counsel’s response that “no evidence has 

been offered that there is no tape not in existence” attempted 

to invert this burden. The record does not reflect that 

Appellant attempted to gain access on his own. Nor is there 

indication that representatives of NBC would have been 

uncooperative had his counsel attempted to contact them 

regarding the existence of the outtakes. Although NBC had 

indicated an intent to assert a First Amendment privilege, it 

responded to the Government’s requests. It seems in retrospect 

that the parties might have obviated this issue had they done 

what the DuBay judge did, that is, procured testimony or 

affidavits to resolve whether any footage existed relevant to 

Appellant’s specific claim. Instead, Appellant’s position at 

trial appeared to assume the existence of the outtakes and to 

further assume their evidentiary value. 
United States v. Rodriguez, No. 97-0299/NA 

15

Based on the foregoing we conclude that Appellant 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. We hold that the military 

judge did not abuse his discretion in denying Appellant’s motion 

to compel production. 

II 

We next address whether an unlawful seizure of Appellant’s 

person occurred before or during the roadside stop. Appellant 

seeks to suppress his roadside admissions to the ATF on the 

grounds that they were the product of an unlawful seizure. 

Appellant further argues that his confession at the Maryland 

State Police barracks and any subsequently obtained physical 

evidence were derivative of his unlawful roadside seizure and 

should have been suppressed at trial. 

We review a military judge's ruling on a motion to suppress 

for abuse of discretion. United States v. Monroe, 52 M.J. 326, 

330 (C.A.A.F. 2000). "[W]e review factfinding under the 

clearly-erroneous standard and conclusions of law under the de 

novo standard." United States v. Ayala, 43 M.J. 296, 298 

(C.A.A.F. 1995). On mixed questions of law and fact, such as 

the instant issue, “a military judge abuses his discretion if 

his findings of fact are clearly erroneous or his conclusions of 
United States v. Rodriguez, No. 97-0299/NA 

16

law are incorrect.” Id. “In reviewing a ruling on a motion to 

suppress, we consider the evidence 'in the light most favorable 

to the' prevailing party." United States v. Reister, 44 M.J. 

409, 413 (C.A.A.F. 1996)(citations omitted). 

Our analysis necessarily travels through a continuum of 

time and shifting Fourth Amendment context as Appellant argues 

in the alternative that if he was not unlawfully seized on the 

highway he was subsequently unlawfully seized at different times 

while on the roadside. On appeal the parties also present 

disparate perceptions regarding the critical events. Our focus, 

of course, remains on the facts established in the record and 

the military judge’s findings of fact. In this context, we will 

address the facts and Appellant’s arguments in chronological 

order. We begin with a brief review of the legal framework 

applicable to Appellant’s arguments. 

Seizures Under the Fourth Amendment

Police encounters generally fall into one of three 

categories: arrest, investigatory stop, or consensual encounter. 

United States v. Williams, 365 F.3d 399, 403 (5th Cir. 2004); 

United States v. Ringold, 335 F.3d 1168, 1171 (10th Cir. 2003); 

United States v. Weaver, 282 F.3d 302, 309 (4th Cir. 2002). The 

Fourth Amendment protects “[t]he right of the people to be 

secure in their persons . . . against unreasonable searches and 

seizures.” Arrests and investigatory stops are considered 
United States v. Rodriguez, No. 97-0299/NA 

17

seizures within the meaning of the Fourth Amendment and require 

a predicate degree of suspicion. An arrest must be supported by 

probable cause and can be effected by physical force or 

submission to a show of authority. California v. Hodari, 499 

U.S. 621, 626 (1991); Wong Sun v. United States, 371 U.S. 471 

(1963); see Brown v. Illinois, 422 U.S. 590 (1975). An 

investigatory stop or detention, also known as a “Terry stop,” 

must be supported by reasonable suspicion that “criminal 

activity may be afoot.” Terry v. Ohio, 392 U.S. 1, 30 (1968). 

But “[s]o long as a reasonable person would feel free ‘to 

disregard the police and go about his business,’ the encounter 

is consensual and no reasonable suspicion is required.” Florida 

v. Bostick, 501 U.S. 429, 434 (1991)(citation omitted). See

United States v. Phillips, 30 M.J. 1 (C.M.A. 1990)(reviewing 

Supreme Court precedent over time). Supreme Court case law 

provides illustrative examples of circumstances indicative of 

seizure, such as the threatening presence of several officers, 

the display of weapons by officers, physical touching of the 

person or the use of language or tone indicating that compliance 

with the officers’ requests might be compelled. United States 

v. Mendenhall, 446 U.S. 544, 554 (1980). “[A] seizure does not 

occur simply because a police officer approaches an individual 

and asks a few questions.” Bostick, 501 U.S. at 434. “Even 

when officers have no basis for suspecting a particular 
United States v. Rodriguez, No. 97-0299/NA 

18

individual, they may generally ask questions of that individual, 

ask to examine the individual’s identification, and request 

consent to search his or her luggage, -- as long as the police 

do not convey a message that compliance with their requests is 

required.” Id. at 434-35 (citations omitted). The critical 

question remains “whether a reasonable person would feel free to 

decline the officer’s requests or otherwise terminate the 

encounter.” Id. at 436. See Michigan v. Chesternut, 486 U.S. 

567, 569 (1988). 

A. The Moving Surveillance

Appellant first asserts that he was seized in violation of 

the Fourth Amendment when the agents’ vehicles “boxed him in” 

while traveling on the interstate. Appellant characterizes the 

tactic employed by the agents as a “moving roadblock” amounting 

to a seizure. 

Appellant testified that he drove up behind the car in 

front of him because it was driving slowly. Using the tactic 

that some drivers use of “flash[ing] their high beams so they 

can see that somebody is coming up at a fast rate,” Appellant 

sought to induce the vehicle in front of his to change lanes. 

 The record reflects that Appellant was not aware of the 

police presence around his vehicle until he was pulled over by 

Trooper Pearce of the Maryland State Police. The record does 

not reflect that Appellant was prevented from slowing to a speed 
United States v. Rodriguez, No. 97-0299/NA 

19

that would have kept him a safe distance from the vehicle in 

front of him. Nor does the record reflect that Trooper Pearce 

was a conscious participant in a gambit to box Appellant in. 

The military judge found that the ATF vehicle in front of 

Appellant’s vehicle “did not swerve into the passing lane in an 

effort to entrap [Appellant’s] vehicle[.]” It “was simply 

proceeding . . . albeit a little slower speed than normal[.]” 

 Based on an objective review of the totality of these 

circumstances the military judge’s conclusion was correct. 

Appellant was not seized by the ATF and Maryland State Police as 

part of a moving roadblock. Not only was Appellant free to 

leave, by slowing down or changing lanes, he was not aware that 

he was engaged in a police encounter. A reasonable person in 

Appellant’s situation would have felt the same. Thus, Appellant 

has not carried his burden of demonstrating that the military 

judge’s findings are clearly erroneous. 

B. The Request for Consent to Search the Vehicle

Appellant was subsequently pulled over by Trooper Pearce 

and issued a warning citation for following too closely. 

Appellant contends that he should have been permitted to leave 

following issuance of the citation without further questioning. 

According to Appellant, Trooper Pearce’s request for consent to 
United States v. Rodriguez, No. 97-0299/NA 

20

search his vehicle initiated a subsequent detention. In 

essence, he contends he was seized without reasonable suspicion. 

Here the testimony of Trooper Pearce and Appellant 

indicates the interaction between the two was conversational 

rather than confrontational in nature. Appellant’s testimony 

does not suggest that the trooper’s tone or demeanor was 

intimidating or threatening. Trooper Pearce described Appellant 

as “polite and cooperative.” The parties agree that following 

the issuance of the citation, Appellant was asked to consent in 

writing to a search of his car. The form indicated that he 

could refuse consent to search. Appellant signed the form. The 

record does not reflect that Appellant asked to leave or 

attempted to leave following his citation. Based on these 

facts, the military judge found Appellant’s consent to search 

voluntary. 

 Considering all the circumstances surrounding the encounter 

with Trooper Pearce contained in the current record, we conclude 

that Appellant has not met his burden of demonstrating that he 

did not reasonably “feel free to decline the officer’s requests 

or otherwise terminate the encounter.” Military Rule of 

Evidence 311(e)(1) provides that “[w]hen an appropriate motion 

[to suppress] . . . has been made by the defense . . . the 

prosecution has the burden of proving . . . that the evidence 

was not obtained as a result of an unlawful search or 
United States v. Rodriguez, No. 97-0299/NA 

21

seizure[.]” However, section (e)(3) of that rule states that 

“the burden on the prosecution extends only to the grounds upon 

which the defense moved to suppress or object to the evidence.” 

At trial, defense counsel’s position was that Trooper Pearce’s 

traffic stop was without probable cause or reasonable suspicion 

because it was nothing more than a pretext for allowing the ATF 

to conduct the search of Appellant’s car. According to counsel, 

that was the point at which Appellant’s illegal seizure 

occurred. Counsel did not assert that an additional or further 

illegal detention had occurred because Trooper Pearce had asked 

Appellant for his consent to search following conclusion of the 

traffic stop. Had the particular grounds for suppression now 

asserted by Appellant been litigated at trial, a more expansive 

record might have resulted. As it stands, Appellant is left to 

make this newer claim on the present state of the record. 

“A motorist’s expectations, when he sees a policeman’s 

lights flashing behind him, are that he will be obliged to spend 

a short period of time answering questions and waiting while the 

officer checks his license and registration, that he may then be 

given a citation, but that in the end he most likely will be 

allowed to continue on his way.” Berkemer v. McCarty, 468 U.S. 

420, 437 (1984). There came a time during Appellant’s stop when 

he was issued a traffic citation. And there came a point when 

Appellant signed a written consent to a search of his vehicle. 
United States v. Rodriguez, No. 97-0299/NA 

22

Appellant has not shown that after receiving the citation 

Trooper Pearce prevented him from leaving, for example, by 

physically blocking his vehicle, engaging in questioning, or 

otherwise signaling to Appellant that he was not free to leave. 

Accordingly, considering the record in the light most favorable 

to the prevailing party we conclude that after the brief 

detention for the traffic stop concluded, the encounter between 

Appellant and Trooper Pearce was consensual in nature and not a 

seizure subject to Fourth Amendment scrutiny. 

C. Was Appellant Subsequently Seized by ATF?

 After Appellant responded affirmatively to Trooper Pearce’s 

request to search his vehicle, “ten or so” ATF agents arrived 

almost immediately and began to search Appellant’s car. The 

military judge found that that there was “[e]ncouragement to 

cooperate from various ATF agents.” The appellate question is 

whether this change in circumstance transformed Appellant’s 

consensual encounter with Trooper Pearce into an unlawful Fourth 

Amendment seizure. 

(1) Testimony at the Article 39(a) session. 

At the suppression hearing SA Grabman testified that 

shortly after he arrived at the scene, he asked Appellant to 

step away from his friends so that he could talk with him. 

According to SA Grabman, the first thing he did was read 
United States v. Rodriguez, No. 97-0299/NA 

23

Appellant his Miranda rights before engaging in a discussion 

with him about gun purchases. Appellant denied any wrongdoing. 

SA Grabman then asked Appellant to sit with him in an ATF 

vehicle so that he could reveal to Appellant the results of 

surveillance efforts that had been conducted into his 

activities. After becoming aware of the ATF surveillance into 

his activities, Appellant uttered the admission, “All right, you 

got me.” At this point SA Grabman again advised Appellant of 

his Miranda rights and had him sign a form acknowledging his 

rights and agreeing to waive them. Appellant then confessed to 

purchasing handguns with the intent to sell them unlawfully to 

another individual. As the search of the vehicle was 

concluding, SA Grabman allowed Appellant to see his friends off. 

Appellant and the agents then proceeded to a nearby state police 

barracks where Appellant signed another rights advisement form 

and authored a written confession. SA Grabman also testified 

that Appellant never asked to leave or terminate the encounter 

and that he never made any threatening remarks to Appellant. 

Appellant’s testimony conveyed a different version of the 

events. He stated that he was not given his rights until he was 

at the state police barracks. Moreover, according to Appellant, 

he did not make any incriminating statements until he was at the 

barracks, at which point he had already been arrested without 

probable cause. He also stated that during the roadside 
United States v. Rodriguez, No. 97-0299/NA 

24

encounter with ATF agents he repeatedly told the agents that he 

wanted to leave. He further stated that SA Grabman threatened 

that he would never see his daughters again unless he 

cooperated. Appellant testified that his interaction with 

Grabman took place outside the ATF car, while the search of his 

car was underway. According to him, he was placed in the ATF 

car only at the end of the search after his friends had driven 

away. 

In order to rule on Appellant’s suppression motion the 

military judge was necessarily required to weigh the contested 

facts relating to the circumstances of the encounter between SA 

Grabman and Appellant. The military judge found that Appellant 

had been given his rights by SA Grabman prior to making any 

incriminating statement to him. The judge concluded that no 

threats, promises, or inducements were used to elicit 

Appellant’s statement. Implicit in this finding is a judgment 

by the military judge that Appellant did not repeatedly ask to 

terminate the encounter as he asserted. The military judge also 

found that the consent search of Appellant’s car by Trooper 

Pearce began at 1952 and that at approximately 2010 Appellant 

made his first admission establishing probable cause for his 

arrest. The judge concluded that during this period Appellant 

was not under arrest and that essentially, the encounter 

continued to be consensual in nature, given the fact Appellant 
United States v. Rodriguez, No. 97-0299/NA 

25

had consented to the search by Trooper Pearce. The military 

judge also made the following findings on the issue of 

reasonable suspicion: 

10. [Petty Officer (PO)]PO Rodriguez had himself 

purchased several handguns from various Virginia gun 

shops in the weeks before 3 May 91. 

11. PO Moore had purchased several handguns from 

various Virginia gun shops in the several days before 

3 May 91 and had transferred the handguns he purchased 

to PO Rodriguez in the days before 3 May 91. 

12. Agent Grabman observed two of the transfers of 

firearms from PO Moore to PO Rodriguez; these 

transfers were accomplished by PO Moore purchasing the 

firearms and then placing them in PO Rodriguez’[s] 

vehicle. 

13. Having visually observed these transfers from PO 

Moore to PO Rodriguez, there was a reasonable basis 

for ATF to conclude that the purchases by PO Moore 

were “straw purchases” made, in fact, by PO Rodriguez. 

14. The supervisory ATF agent on scene on 3 May 91, 

Agent Galupo, was aware of those matters set forth in 

Findings # 10, 11, 12, and 13; additionally agent 

Galupo believed that PO Rodriguez was born in New York 

City and had family ties there and believed PO 

Rodriguez was planning a trip there on 3 or 4 May 91. 

 

Based on theses findings, the military judge concluded that 

even if the traffic stop were to be viewed as a Fourth Amendment 

seizure the agents possessed reasonable suspicion that at least 

some of the handguns purchased by YN1 Moore and Appellant would 

be in the vehicle as it traveled toward New York. 
United States v. Rodriguez, No. 97-0299/NA 

26

(2) Law Applied 

Whether the reasonable limits of an investigatory stop have 

been exceeded thus transforming a seizure into an arrest is not 

based upon clear black letter distinctions. United States v. 

Sharpe, 470 U.S. 675, 685 (1985). Rather, like so much else in 

Fourth Amendment analysis, courts look to a totality of the 

circumstances and contextual factors to determine if “a 

reasonable person in the suspect’s position would have 

understood the situation to constitute a restraint on freedom of 

movement of the degree which the law associates with formal 

arrest.” United States v. Ienco, 182 F.3d 517, 523 (7th Cir. 

1999)(quoting United States v. Corral-Franco, 848 F.2d 536 (5th 

Cir. 1988)). See also State v. Cojoe, 828 So.2d 1101, 1104 (La. 

2002); People v. Cervantes-Arredondo, 17 P.3d 141, 146 (Colo. 

2001); 3 Wayne R. Lafave, Search and Seizure: A Treatise on the 

Fourth Amendment § 5.1(a), at 2 (3d ed. 1996). In 

distinguishing between an investigatory stop and arrest, courts 

look to among other factors: the mode of restraint, including 

whether handcuffs are used; whether guns are used in effecting 

restraint; the nature of the crime in question, the location of 

the stop and the location of restraint, including whether the 

individual is placed within a law enforcement vehicle or the 

stop occurs in public view; the subject’s reaction; the scope of 

authority used to effect the stop; and, the duration of the 
United States v. Rodriguez, No. 97-0299/NA 

27

detention. 4 LaFave at § 9.2(d) at 33-46. If police conduct 

amounts to an arrest, then such conduct must rest upon probable 

cause. 

The question of law for this court is whether or not 

Appellant’s roadside encounter with ATF was consensual, and if 

not, whether the encounter constituted an arrest supported by 

probable cause, or an investigatory stop supported by reasonable 

suspicion. These questions are particularly relevant because SA 

Grabman conceded in his testimony that ATF did not possess 

probable cause to stop and arrest Appellant at the time for 

transporting firearms in his vehicle. However, the Government 

argues, the agents did have reasonable suspicion. 

Looking at the totality of the circumstances, two 

significant facts bear upon this question. First, Appellant 

testified that very shortly after Trooper Pearce began his 

search, between 10 to 12 agents arrived on the scene. The Court 

of Criminal Appeals found that Trooper Pearce was assisted by 

“ten or so” ATF agents. Second, the military judge found that 

“[e]ncouragement to cooperate from various ATF agents then 

present did not vitiate that voluntariness . . . .” Although 

Appellant challenges the legal conclusion regarding 

voluntariness, the factual finding as to the agents is 

consistent with Appellant’s testimony that at one point he was 
United States v. Rodriguez, No. 97-0299/NA 

28

surrounded by four to five agents who were “telling [him] that 

[he] should cooperate.” 

In our view, these circumstances amounted to a seizure as 

opposed to a consensual encounter. Although the military judge 

found “no unlawful inducements, promises, or threats were made 

to or against [Appellant],” the transition from the Maryland 

State Police encounter to the ATF search nonetheless involved a 

substantial display of authority. Added to this display of 

authority is the fact that Trooper Pearce obtained Appellant’s 

consent to search partly based on his statement that it would be 

a “routine search.” Notwithstanding the fact that the consent 

form indicated that Trooper Pearce could obtain assistance from 

other officers, we are not persuaded that a reasonable person 

would have anticipated that a force of 10 to 12 officers would 

descend upon the scene to conduct an intense search of his 

vehicle and begin questioning him. Under these circumstances a 

reasonable person would not have felt free to decline the 

agents’ requests and terminate the encounter. Therefore, we 

hold that Appellant’s initial consensual encounter with Trooper 

Pearce evolved into a Fourth Amendment seizure between the time 

SA Grabman and the other agents arrived and when Appellant made 

his first admission. 

Although close, we further conclude based on this totality 

of circumstances that Appellant’s seizure was an investigatory 
United States v. Rodriguez, No. 97-0299/NA 

29

detention rather than an arrest. On the one hand, the ATF’s 

arrival on the scene was heralded with a significant display of 

authority. Appellant found himself answering questions while 

surrounded by several agents. On the other hand, there is no 

evidence that the ATF agents brandished their weapons or 

handcuffed Appellant. He was not precluded from speaking to his 

passengers, although there is no indication that he tried to 

communicate with them. Although Appellant was surely surprised, 

there was no force used, and the military judge did not find 

that Appellant was overwhelmed by the circumstances on the 

highway. Most importantly, the period between the stop and his 

first admission lasted no more than twenty minutes. As a 

result, the predicate for Appellant’s detention was reasonable 

suspicion on the part of the agents. 

The military judge found that the agents possessed 

reasonable suspicion that Appellant was transporting one or more 

handguns for unlawful resale as he traveled north on Interstate 

95. The fact that the agents did not act until after Appellant 

had given Trooper Pearce his consent to search, did not 

invalidate this reasonable suspicion. We review issues 

involving reasonable suspicion de novo. United States v. 

Robinson, 58 M.J. 429, 432 (C.A.A.F. 2003). Among other things, 

the military judge found that the stop was based on law 

enforcement surveillance indicating a pattern of apparent “straw 
United States v. Rodriguez, No. 97-0299/NA 

30

purchases” by Appellant and YN1 Moore during the few days 

leading up to the events of May 3. The surveillance also 

indicated that Appellant had not sold the guns in question. 

Further, ATF had received a tip from a confidential informant 

that Appellant would be traveling to New York, suggesting to the 

agents the possibility of the interstate transport and sale of 

the guns in question. On the day of Appellant’s trip to New 

York, the agents observed Appellant carrying bags to and from 

his vehicle, which could plausibly have contained the guns in 

question. These findings of fact by the military judge are not 

clearly erroneous. And we conclude as a matter of law that 

Appellant was the subject of a lawful investigatory stop 

supported by reasonable suspicion and that his subsequent 

statements were admissible. 

III 

Article 31(b) Rights

Next, Appellant argues that because SA Grabman turned him 

over to the NIS agents after the interview at the police 

barracks, SA Grabman was acting as an instrumentality of the 

military. Alternatively, the cooperation between the two was 

such that the two investigations merged into one. As a result, 

Appellant argues, SA Grabman was obligated to advise Appellant 

under Article 31(b) of the code before interrogating him along 

I-95. 
United States v. Rodriguez, No. 97-0299/NA 

31

Article 31(b) provides that: 

No person subject to this chapter may interrogate, or 

request any statement from an accused or a person suspected 

of an offense without first informing him of the nature of 

the accusation and advising him that he does not have to 

make any statement regarding the offense of which he is 

accused or suspected and that any statement made by him may 

be used as evidence against him in a trial by courtmartial. 

Under Military Rule of Evidence 305(b)(1), a person subject 

to the code “includes a person acting as a knowing agent of a 

military unit or of a person subject to the code.” In the past, 

this Court has set forth at least two instances when civilian 

investigators working in conjunction with military officials 

must comply with Article 31: “(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.’” United States v. Penn, 18 C.M.A. 194, 199, 39 

C.M.R. 194, 199 (1969)(citations omitted). See also United 

States v. Lonetree, 35 M.J. 396 (C.M.A. 1992); United States v. 

Quillen, 27 M.J. 312, 314 (C.M.A. 1988). 

In Penn, the question arose in the context of a Secret 

Service investigation into the forgery of United States treasury 

checks. The Secret Service Agents asked the Air Force Office of 

Special Investigations (OSI) for its assistance in apprehending 
United States v. Rodriguez, No. 97-0299/NA 

32

an individual who had driven a car during an incident at one of 

the banks. After being provided the license plate number, OSI 

agents learned that the vehicle was registered to a service 

member named Pinkney. Pinkney informed the OSI agents that his 

superior and Penn were the only ones who had used his car on the 

day in question. Penn was called to the OSI office and admitted 

he had used the car and admitted to trying to cash a forged 

check at the bank. The OSI agents then searched Pinkney’s car 

and found several government checks including the one Penn had 

attempted to cash. This in turn led to a search of Penn’s wall 

locker where more incriminating evidence was discovered. Penn 

was subsequently placed in confinement. The following morning, 

the OSI agents informed the Secret Service that Penn was in 

custody. The OSI agents turned over the evidence they had 

obtained the previous day to the Secret Service. Penn was taken 

from the confinement facility by Secret Service agents and later 

interrogated. During the interrogation, Penn provided two 

handwriting exemplars. Although the Secret Service agents 

advised Penn of his right to remain silent and his right to 

counsel, they did not inform him of his Article 31 rights before 

questioning him. 

At trial, the admissibility of the exemplars was in issue. 

The question turned on the independent nature of the concurrent 

civilian and military investigations. Among other factors, this 
United States v. Rodriguez, No. 97-0299/NA 

33

Court noted that the chain of investigative events began with 

the Secret Service and that the agents had explained to Penn the 

nature of the offenses that constituted the subject matter of 

the Secret Service investigation. This Court concluded that the 

Secret Service agent was conducting a Secret Service 

investigation according to its procedures rather than a 

continuation of the military investigation and held the two 

investigations to be separate and independent for the purposes 

of Article 31. Id. at 202, 39 C.M.R. at 202. 

The parties do not dispute that SA Grabman suspected 

Appellant of weapons trafficking and questioned him about those 

activities during the vehicle search without advising him of his 

Article 31(b) rights. The question is whether because of the 

degree of coordination between ATF and NIS the two 

investigations remained separate and independent or whether they 

merged into an “indivisible entity” requiring SA Grabman to 

comply with Article 31(b). Appellant urges that we answer the 

question in the affirmative because ATF and NIS conducted joint 

surveillance and ATF released Appellant to NIS control after the 

vehicle search. 

We begin by noting that SA Grabman testified that he 

initiated the investigation sometime during February or March 

and later contacted NIS upon learning of Appellant’s status in 

the Navy. Appellant was under surveillance for five days, 
United States v. Rodriguez, No. 97-0299/NA 

34

between April 29 and May 3, 1991. During this period ATF and 

NIS conducted joint surveillance of Appellant’s home and work, 

and NIS conducted some independent surveillance at the Navy 

Annex. But the decision to act on the informant’s tip and 

pursue Appellant along I-95 on May 3 lay solely with ATF. So, 

too, did related operational decisions, including coordination 

with the Maryland State Police, and the initial questioning of 

Appellant. Although NIS agents participated in the 

surveillance, they arrived upon the traffic stop after ATF had 

begun the search and questioning. There is no indication in the 

record that NIS participated in the subsequent search or 

controlled any operational decisions. Finally, it was only 

after the ATF determined that Appellant was not in possession of 

firearms that it surrendered him to NIS control. 

We reject Appellant’s contention that the NIS surveillance 

role during the five-day period amounted to a military 

investigation that merged indivisibly with the ATF efforts. 

Nor, does the record reflect that SA Grabman became an 

instrument of the military during the course of these events. 

Rather, ATF was running its investigation with NIS in tow, 

providing surveillance support. Therefore, we conclude that SA 

Grabman was conducting a separate and independent ATF 

investigation when he questioned Appellant at the roadside and 
United States v. Rodriguez, No. 97-0299/NA 

35

was not required to inform Appellant of his Article 31(b) 

rights. 

IV 

Attorney-Client Relationship During DuBay Hearing 

The DuBay hearing ordered by this Court was conducted in 

four sessions between November 1998 and January 2000. 

Appellant's detailed defense counsel, Lieutenant (LT) Velez, 

attended the first two sessions on November 6, 1998, and May 5, 

1999. At the first session, Appellant waived his presence at 

subsequent sessions in order to benefit from "extra good time" 

credit that he could earn only while confined. The military 

judge discussed Appellant's decision with him on the record:

MJ: . . . But, I guess what I just want to make sure 

is that you're not being sort of blinded by the need 

to get the seven days extra credit at Levinworth 

[sic], such that you're not being thoughtful when you 

waive your presence. From what you've said to me, 

you've thought it through, you've discussed it with 

Lieutenant Velez, you and I have discussed it as 

well. And it's just something is [sic] your best 

interest and is something that is not going to do any 

harm to you for the limited purposes of answering 

these questions. Is that alright?

ACC: Yes, sir. 

At some point between the second and the third sessions, LT 

Velez was reassigned, and for the final two DuBay sessions, 

October 5, 1999, and January 10, 2000, LT Hoole appeared on the 
United States v. Rodriguez, No. 97-0299/NA 

36

record and represented Appellant. There is no indication that 

Appellant released LT Velez as his appointed counsel prior to LT 

Hoole's appearance. Nor, is there any indication that she was 

excused by competent authority for “good cause shown.” R.C.M. 

505(d)(2)(B)(iii). 

When Appellant’s case was again before the Court of 

Criminal Appeals, Appellant assigned an issue for review 

specifically related to the DuBay hearing.4 LT Velez and LT 

Hoole (now Mr. Hoole) submitted affidavits to the lower court. 

Now Lieutenant Commander (LCDR) Velez states that she does not 

recall Appellant releasing her from representation, or more 

generally, “how I was released from the case.” “What I recall,” 

LCDR Velez states, “is that the appellant did not sign any 

documents releasing me from representing him at the hearing.” 

Mr. Hoole’s affidavit indicates that he recalls receiving a 

detailing letter to the case and that the letter contained a 

mis-reference to Hospitalman Hector Rodriquez rather than YN3 

Jorge L. Rodriquez, the subject of his representation and this 

appeal. Mr. Hoole’s affidavit also states that 

 

4

 This issue was framed more generally than the issue framed for 

this Court: 

VI. YN3 RODRIGUEZ’S EVIDENTIARY (DUBAY) HEARING FAILED 

TO COMPLY WITH THE CONSTITUTION OF THE UNITED STATES, 

UNIFORM CODE OF MILITARY JUSTICE, OR RULES FOR COURTMARTIAL, TO THE SUBSTANTIAL PREJUDICE OF YN3 

RODRIGUEZ. 
United States v. Rodriguez, No. 97-0299/NA 

37

Upon being detailed I attempted to make contact with YN3 

Rodriquez to discuss matters in the case, most importantly 

LT Velez’s proposed release as defense counsel. To the 

best of my recollection, we made attempts to contact YN3 

Rodriguez both on the phone and in writing at his home of 

record to no avail. We also attempted to discover his 

then-current address by searching through phone listings, 

internet searches, and searches on various LEXIS databases. 

These efforts were likewise unfruitful. 

Appellant has not challenged the veracity of this 

affidavit, nor argued that counsel’s efforts fell short as a 

matter of diligence. Rather, Appellant argues that having 

failed to establish an attorney-client relationship with LT 

Hoole, he was, in effect, unrepresented at the DuBay hearing. 

The record also contains an appellate rights statement 

executed by Appellant on February 17, 1994, which includes the 

following pre-printed acknowledgment in paragraph e: 

I understand that in order for my trial defense counsel or 

any successor counsel to represent me properly, I must keep 

counsel informed of my current mailing address. 

The lower court disposed of the issue in short form finding 

it “to be without merit of further discussion.” 57 M.J. at 774. 

In this Court, Appellant contends he was prejudiced at the 

DuBay hearing when then LT Velez improperly severed the 

attorney-client relationship with him and when then LT Hoole 

proceeded as substitute counsel without establishing an 

attorney-client relationship with him. Based on the state of 

the appellate record, we assume that these errors occurred. 
United States v. Rodriguez, No. 97-0299/NA 

38

But, we hold Appellant has not demonstrated that he was 

prejudiced during the hearing. 

This Court has previously articulated principles for 

resolving issues related to substitute counsel that arise posttrial. United States v. Howard, 47 M.J. 104 (C.A.A.F. 1997); 

United States v. Miller, 45 M.J. 149 (C.A.A.F. 1996); United 

States v. Hickok, 45 M.J. 142 (C.A.A.F. 1996). These cases 

dealt with the period between sentencing and the convening 

authority’s action when defense counsel is required to prepare 

clemency matters and review the staff judge advocates 

recommendation. We identified this post-trial period as an 

“important stage.” Hickok, 45 M.J. at 145. The principles 

enunciated in Hickok, Miller and Howard also apply to factfinding hearings. The absence of counsel at such a proceeding 

will effectively result in denial of the right to counsel. Id. 

Denial of the right to counsel at an important stage “is legally 

presumed to result in prejudice.” Id. However, “if 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.” Id. In Miller we held 

that the error by substitute counsel of serving without first 

having entered into an attorney-client relationship could be 

tested for prejudice. 45 M.J. at 151. And the appropriate 
United States v. Rodriguez, No. 97-0299/NA 

39

“test for prejudice” is that prescribed in Article 59(a), UCMJ, 

10 U.S.C. § 859(a) (2000). Howard, 47 M.J. at 106. 

In testing for prejudice, we are cognizant of the 

qualitative differences between the post-trial period before the 

convening authority’s action and a fact-finding hearing ordered 

later by an appellate court. Among other things, DuBay counsel 

are afforded the opportunity to play a more active adversarial 

role, engaging inter alia in oral advocacy, witness 

identification, and examination as well as written advocacy. 

Thus, while it is appropriate to test for prejudice, each case 

will present different circumstances regarding the relationship 

between counsel and client and in the nature of the DuBay 

questions presented. As a result, each case must be tested for 

prejudice on its own merits. In this case, the DuBay hearing 

record indicates that the substitute counsel, then LT Hoole, was 

in fact present and represented Appellant’s cause zealously. He 

argued articulately against the applicability of a newsgathering 

privilege in the military. He also competently discussed 

applicable Supreme Court precedent relevant to the issue. 

Appellant’s specific claim of prejudice is simply a restatement 

of the facts raising the issue. His claim is that since LT 

Hoole never spoke to him, he never formed the requisite 

relationship, and thus, should never have represented him at the 

hearing. Moreover, the record reflects that counsel made 
United States v. Rodriguez, No. 97-0299/NA 

40

efforts to contact Appellant, who did not himself fulfill his 

duty to advise counsel of his whereabouts. United States v. 

Cornett, 47 M.J. 128, 134 (C.A.A.F. 1997). Finally, the 

questions assigned for DuBay consideration did not relate 

directly to matters within Appellant’s personal knowledge. 

Rather, the questions addressed matters of law relating to a 

First Amendment news gathering privilege, and matters of fact, 

involving whether or not NBC possessed videotape requested by 

the defense. Therefore, while not condoning what occurred, we 

conclude that based on these facts, in the DuBay context 

presented, Appellant has not demonstrated that he was prejudiced 

in the sense of Article 59(a) when substitute counsel 

represented him at the hearing without first establishing an 

attorney-client relationship. 

V 

Appellate delay

Appellate review is an integral part of the military 

justice system, and the Due Process Clause guarantees that such 

review be conducted in a timely manner. Diaz v. Judge Advocate 

General of the Navy, 59 M.J. 34 (C.A.A.F. 2003). We test 

unreasonable post-trial delays for material prejudice. United 

States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002); United States v. 

Williams, 55 M.J. 302, 305 (C.A.A.F. 2001)(citing United States 

v. Banks, 7 M.J. 92, 94 (C.M.A. 1979)). 
United States v. Rodriguez, No. 97-0299/NA 

41

Appellant asserts that an eight-year, nine-month period 

between sentencing and final action by the Court of Criminal 

Appeals was unreasonable. He further argues that he was 

prejudiced by this delay because his defense counsel was unable 

to continue representing him due to counsel’s military 

reassignment. And because Appellant has been released from 

confinement he is unable to benefit from favorable decisions. 

This case is not marked by appellate speed. Over a year 

transpired between the convening authority’s action and the 

docketing of Appellant’s case at the Court of Criminal Appeals. 

Appellant’s initial Article 66(c), UCMJ, 10 U.S.C. § 866(c) 

(2000), review was completed within two and one-half years after 

the convening authority’s action.5

 Once docketed, the time taken 

by the lower court to conduct its review was not uncommon or 

unreasonable for a case involving multiple complex issues of law 

and fact. 

Discretionary review for good cause shown was subsequently 

granted by this court and a DuBay hearing ordered. This Court 

had the case for 489 days before ordering a DuBay hearing on the 

question of the NBC videotapes. The DuBay process itself took 

over 600 days. It was over two and one-half years after the 

 

5

 This case is factually distinguishable from the situation 

presented in Toohey v. United States, 60 M.J. 100 (C.A.A.F. 

2004). 
United States v. Rodriguez, No. 97-0299/NA 

42

DuBay hearing was ordered that the Court of Criminal Appeals 

issued a second decision in this case. 

Appellant has made his case that there was a lengthy 

process of appellate review, and perhaps undue delay. However, 

Appellant has not made his case regarding prejudice. First, 

while a military member has a right to counsel, neither the 

Sixth Amendment nor Article 38(b), UCMJ, 10 U.S.C. § 838(b) 

(2000), confers a right to representation by a particular 

lawyer. Wheat v. United States, 486 U.S. 153, 158-59 (1988); 

see also United States v. Wiest, 59 M.J. 276, 281-82 (C.A.A.F. 

2004)(Erdmann, J., dissenting). Appellant is not the first 

military member who has proceeded from court-martial to action 

or through various stages of an appeal with different military 

counsel as a result of rotation and the necessary duration of 

trial or appellate proceedings. Second, the fact remains that 

Appellant has not prevailed at this Court or the court below on 

the important questions of law presented and is not entitled to 

relief. Therefore, he has not been prejudiced for want of a 

meaningful opportunity for relief. 

DECISION 

The decision of the United States Navy-Marine Corps Court 

of Criminal Appeals is affirmed. 
United States v. Rodriguez, No. 97-0299/NA 

 EFFRON, Judge (dissenting): 

Six years ago, our Court concluded in the present case that 

“a factfinding hearing pursuant to United States v. DuBay, 17 

USCMA 147, 37 CMR 411 (1967), is necessary (1) to fully develop 

the record on the issue of the news media’s refusal to comply 

with the federal subpoena for the videotape requested by the 

defense in this case, (2) to establish the availability of the 

videotape for production and inspection, and (3) to address the 

applicability, if any, of a news-gathering privilege.” United 

States v. Rodriguez, 50 M.J. 38 (C.A.A.F. 1998)(mem.). 

The initial DuBay hearing was held on November 6, 1998. 

Appellant was then serving a sentence that included 10 years’ 

confinement at hard labor. At the outset, Appellant offered to 

waive his right to be present at future proceedings because he 

feared that he would lose extra good time credit during periods 

that he was not physically present at the Fort Leavenworth 

military confinement facility. At that time, Appellant had not 

yet discussed the substantive matters at issue in the 

proceedings with his detailed military defense counsel. 

Although defense counsel did not ask the military judge to 

address the adverse impact of attending the hearing on 

Appellant’s confinement status, the military judge noted that 

there were possible avenues of redress, including a submission 
United States v. Rodriguez, No. 97-0299/NA 

2

to our Court. The defense, however, did not seek relief from 

our Court, and there is nothing in the record indicating that 

the defense otherwise sought to ensure that Appellant did not 

suffer a loss of potential good time credit by attending the 

court-ordered hearings. 

The military judge, who expressed significant concern about 

conducting the hearing in Appellant’s absence, obtained an 

assurance from detailed defense counsel that she would “stay in 

communication” with Appellant and keep Appellant informed “of 

everything that’s being done in his case.” Before accepting 

Appellant’s waiver, the military judge told Appellant that he 

was “confident that I’ll be alert and [detailed defense counsel] 

will be even more alert if anything comes up that requires 

information from you or a consultation with you that will be 

done.” 

During the initial session, defense counsel informed the 

military judge that the defense was considering a stipulation 

“to the fact that there’s no tape, NBC no longer has a tape” and 

speculated as to whether that development would moot the need 

for a DuBay proceeding. The military judge and the parties then 

discussed the possibility of submitting a motion to our Court 

advising us of that development with a view towards determining 

whether we would modify our order. 
United States v. Rodriguez, No. 97-0299/NA 

3

On January 25, 1999, defense counsel filed a “motion for 

clarification” with our Court, suggesting that the order for a 

DuBay hearing was moot in light of a stipulation of fact that 

had been agreed to by the parties. The stipulation stated that: 

1. The non-broadcast videotape, including 

outtakes, relating to the 3 May 1991 highway 

stop of YN3 Rodriquez by ATF agents does not 

exist within NBC’s custody or control. 

2. NBC’s practice regarding non-broadcast 

outtakes is to recycle those videotapes, 

unless otherwise instructed to maintain. To 

the best of the NBC Law Department’s 

knowledge, no such instruction was given. 

Shortly thereafter, we summarily denied the defense motion, 

thereby clearing the way for the DuBay hearing to proceed. 

United States v. Rodriguez, 51 M.J. 361 (C.A.A.F. 1999). 

At the second DuBay session, on May 12, 1999, Appellant was 

represented by the same detailed defense counsel. Pursuant to 

the waiver executed at the prior hearing, Appellant did not 

attend the second session or any subsequent session. 

Although our Court had rejected defense counsel’s motion to 

modify the scope of our order, defense counsel nonetheless 

suggested to the military judge that the stipulation as to the 

non-existence of the videotape mooted the first prong of our 

order - the requirement to “fully develop[] the record on the 

issue of the News media’s refusal to comply with a federal 

subpoena for the video tape [sic] requested by the defense in 
United States v. Rodriguez, No. 97-0299/NA 

4

this case.” The military judge discouraged the defense from 

disregarding the importance of the first prong of the order, 

commenting: “Well, I don’t know, if the tape no longer exists 

and [NBC] wrongfully did not produce them [sic] and there’s 

prejudice presumed or shown, then the accused has a beef.” The 

military judge also declined to accept defense counsel’s 

suggestion that witness testimony was not necessary on the 

issue, indicating that he would give further consideration to 

the matter after reviewing any written submissions. 

A third DuBay session was held on October 5, 1999. 

Appellant was not present, nor was the detailed defense counsel 

who had represented him at the prior proceedings. The record of 

the third session contains no explanation of detailed defense 

counsel’s absence, the circumstances surrounding it, or the fact 

that a different person announced his presence as defense 

counsel. 

The record contains no reference to the fact the defense 

counsel was new to the proceedings; nor does the record contain 

any statement as to the new defense counsel’s qualifications and 

certification under Article 27(b), Uniform Code of Military 

Justice [hereinafter UCMJ], 10 U.S.C. § 827(b)(2000). The 

record simply sets forth routine statements by the military 

judge and counsel identifying themselves in terms of their names 

and the names of their clients. 
United States v. Rodriguez, No. 97-0299/NA 

5

The military judge did not inquire on the record as to 

whether the new defense counsel had been detailed properly to 

represent Appellant, nor did the military judge ascertain on the 

record whether the new counsel had established an attorneyclient relationship with Appellant. The final DuBay session, 

held on January 7, 2000, likewise is devoid of any consideration 

of the new counsel’s qualifications or relationship to 

Appellant. 

When these deficiencies in the record were identified 

during appellate review of the DuBay proceedings, the Government 

submitted three documents. The first is a memorandum, dated 

June 10, 1999, from the “Commanding Officer, Naval Legal Service 

Office, North Central, Washington, DC” to the “Commanding 

Officer, National Naval Medical Center, Bethesda.” The 

memorandum asks the Commanding Officer at Bethesda to notify “HN 

Hector Rodriguez, USN,” that a named lieutenant - the new 

defense counsel who appeared at the third session - had been 

detailed as his defense counsel, and that “the accused” should 

immediately contact that defense counsel. 

The primary defect in the memorandum is that it directed 

the Commanding Officer at Bethesda to contact the wrong person -

- “HN Hector Rodriguez.” There is nothing in the record 

indicating that anyone at Bethesda contacted Appellant - YN3 

Jorge L. Rodriguez. In fact, there is no indication in the 
United States v. Rodriguez, No. 97-0299/NA 

6

record that Appellant had any relationship to Bethesda, or that 

the command at Bethesda had any responsibility for the provision 

of legal services to Appellant. It is not apparent why the task 

of contacting Appellant was not assigned to an officer having 

authority over Appellant, such as the Commanding Officer at Fort 

Leavenworth or the commander of the naval organization to which 

Appellant was assigned. 

 The second document submitted by the Government is an 

affidavit executed by the first detailed defense counsel, the 

contents of which underscore the inattention of Appellant’s 

counsel to the significance of the DuBay proceeding. After 

misidentifying the proceeding as a “hearing ordered by the NavyMarine Corps Court of Criminal Appeals,” the first defense 

counsel characterized her participation as involving “only 

administrative matters” - apparently overlooking her role in the 

waiver of Appellant’s right to be present, her persistent 

efforts to convince the military judge that the substantive 

issues raised by our Court’s order had been rendered moot, and 

her decision to address those issues without obtaining the live 

testimony of witnesses with first-hand knowledge of the creation 

and disposition of the videotape. 

 The affidavit also sheds little light on the circumstances 

surrounding her replacement by a second detailed defense counsel 

and the termination of her responsibilities to her client. The 
United States v. Rodriguez, No. 97-0299/NA 

7

first counsel noted that she was scheduled to detach from the 

defense counsel office in November 1999, and that a new defense 

counsel “was detailed to the hearing about four months prior to 

my scheduled detachment . . . . To my understanding, this was 

done in order to release me of all defense related duties so 

that I could concentrate on managing the Legal Assistance office 

at the Naval Hospital in Bethesda, MD.” She also stated that 

upon the assignment of new counsel, “I was told by the 

Department Head to turn my file of the case over to [the new 

counsel] and brief him on the case.” 

 With respect to her termination of the attorney-client 

relationship with Appellant, she noted: 

[A]t the present time I have not been able 

to locate my paperwork on this case. 

I do not recall how I was released from the 

case. What I recall is that the appellant 

did not sign any documents releasing me from 

representing him at the hearing. 

There is no indication in the affidavit or otherwise in the 

record that she had any contact with Appellant regarding 

severance of the attorney-client relationship. See Dep’t of the 

Navy, Judge Advocate General Instruction 5803.1B [hereinafter 

JAGINST 5803.1B], Professional Conduct of Attorneys Practicing 

under the Cognizance and Supervision of the Judge Advocate 

General (2000), Rule 1.3 (Diligence)(“A covered attorney . . . 
United States v. Rodriguez, No. 97-0299/NA 

8

shall consult with a client as soon as practicable and as often 

as necessary upon being assigned to the case or issue.”); id. at 

Rule 1.4. (Communication)(“A covered attorney shall keep a 

client reasonably informed about the status of a matter[.]).” 

Despite the strong admonitions by the military judge that she 

maintain contact with her client when he waived his right to be 

present at the hearing, and her assurances that she would do so, 

there is no indication in the record that she had any contact 

with Appellant after December 1998. There is no indication in 

the record that she made any attempt to ascertain the expected 

date of his release from confinement or that she made any 

arrangements to maintain contact with him while he was on 

appellate leave. 

The third document submitted by the Government is an 

affidavit from the second detailed defense counsel. After 

noting that his “recollection of the details” of his being 

detailed to represent Appellant was “limited” - emphasizing the 

confusion as to name of the client in the detailing letter - he 

offered the following description of his attempts to contact 

Appellant: 

Upon being detailed I attempted to make 

contact with [Appellant] to discuss matters 

in the case, most importantly [first 

detailed defense counsel’s] proposed release 

as defense counsel. To the best of my 

recollection, we made attempts to contact 

[Appellant] both on the phone and in writing 
United States v. Rodriguez, No. 97-0299/NA 

9

at his home of record to no avail. We also 

attempted to discover his then-current 

address by searching through phone listings, 

internet searches and searches of various 

LEXIS databases. These efforts were 

likewise unfruitful. 

Appellant was then, as he is now, a member of the Navy. At 

all pertinent times, he was either in confinement or on 

appellate leave. As such, he was subject to the authority of 

the Disciplinary Barracks at Fort Leavenworth and the commanding 

officer of the naval unit to which he was assigned. The vague 

recollections by both the first and second detailed defense 

counsel do not establish that either counsel contacted the 

responsible officers at Fort Leavenworth or within the Navy for 

information about Appellant. There is no indication in this 

record of a written request to any official from either counsel. 

Likewise, there is no indication in this record that either 

counsel sought assistance from naval investigative authorities 

in tracking down Appellant. 

None of this was brought to the attention of the military 

judge. Given the serious concerns that the military judge had 

expressed about proceeding without Appellant’s presence at the 

session, his personal commitment to Appellant that he would be 

kept informed, and the assurance of counsel that she would 

maintain contact with Appellant, the failure to notify the 

military judge was both inexplicable and inexcusable. The 
United States v. Rodriguez, No. 97-0299/NA 

10

failure to notify the military judge that an attorney-client 

relationship had been severed - and that the new counsel had not 

established such a relationship - not only affected the rights 

of Appellant, but also deprived the military judge of the 

opportunity to assess the impact of these developments on the 

proceedings in his courtroom. There are a number of steps he 

could have taken, such as ordering trial counsel to obtain the 

assistance of naval authorities in locating Appellant, providing 

for a limited postponement of the hearing, or, at a minimum, 

ensuring that all pertinent facts concerning the attorney-client 

relationships and Appellant’s absence were set forth on the 

record. 

 Under the Sixth Amendment to the Constitution, the accused 

in a criminal proceeding has the right to establish an attorneyclient relationship and obtain committed and zealous 

representation by that attorney. U.S. Const. amend VI; see, 

e.g., Argersinger v. Hamlin, 407 U.S. 25, 31 (1972); Gideon v. 

Wainwright, 372 U.S. 335, 344 (1963). Protection of that right 

is so central to the military justice system that Congress has 

guaranteed the accused the right to representation by qualified 

counsel at Government expense, regardless of financial need, in 

all general courts-martial and virtually all special courtsmartial. Article 27, UCMJ. The right to representation by 

qualified counsel applies in court-martial hearings convened 
United States v. Rodriguez, No. 97-0299/NA 

11

under United States v. DuBay, as reflected in the detailing of 

counsel in the present case. 

 Once an attorney-client relationship has been formed with a 

detailed defense counsel, a detailing authority may excuse or 

change the initially detailed counsel only when: (1) the client 

has obtained representation by individually requested military 

counsel under R.C.M. 506(b)(3); (2) detailed counsel is excused 

with the express consent of the client; or (3) the military 

judge permits detailed counsel to withdraw for good cause shown 

on the record. R.C.M. 505(d)(2)(B). See United States v. Gray, 

39 M.J. 351 (C.M.A. 1993)(mem.); JAGINST 5803.1B, Rule 1.16 and 

cmt (Declining or Terminating Representation). None of these 

circumstances appears in this record. 

 In summary, the first detailed defense counsel erred by not 

obtaining the consent of Appellant or approval of the military 

judge to sever of the attorney-client relationship. The second 

detailed defense counsel erred by not informing the military 

judge that he was appearing as Appellant’s counsel without 

having established an attorney-client relationship with 

Appellant. The military judge erred by not conducting an 

inquiry on the record regarding the circumstances surrounding 

the replacement of counsel that silently occurred in front of 

him. 
United States v. Rodriguez, No. 97-0299/NA 

12

 The majority relies upon a preprinted form signed by 

Appellant in 1994, which stated: “I understand that in order for 

my trial defense counsel or any successor counsel to represent 

me properly, I must keep counsel informed of my current mailing 

address.” ____ M.J. (37). I respectfully disagree with the 

suggestion that this standard form, signed in the immediate 

aftermath of trial -- more than four and one-half years prior to 

the DuBay hearing -- relieved either counsel or the military 

judge at the DuBay hearing of the specific responsibility, 

acknowledged by each on the record, to ensure appropriate 

contact with Appellant so that he would be provided with timely 

information about the DuBay proceedings. 

 The majority opinion also places the burden on Appellant to 

demonstrate the specific prejudice flowing from the error by 

making a colorable showing of possible prejudice, and concludes 

that Appellant has failed to meet that burden. ____ M.J. (42). 

The opinion relies on the standard we have used in cases 

involving post-trial submissions to the convening authority. I 

respectfully disagree. 

 Although post-trial submissions to a convening authority 

are an important aspect of the military justice system, the 

convening authority’s action is not a court-martial proceeding. 

The accused has the right to make submissions to the convening 

authority in writing. There is no right to a hearing before the 
United States v. Rodriguez, No. 97-0299/NA 

13

convening authority. There is no subpoena power, no opportunity 

to present testimony, and no cross-examination of witnesses. 

The convening authority is not required to make findings of fact 

or reach conclusions of law. It is primarily an opportunity to 

seek clemency, a matter that is within the sole discretion of 

the convening authority. See Article 60, UCMJ, 10 U.S.C. § 860 

(2000); R.C.M. 1105-1107. 

Although detailed counsel frequently represents an accused 

in making submissions to the convening authority, substitute 

counsel may be appointed at that stage if detailed counsel has 

been relieved or is not reasonably available. R.C.M. 

1106(f)(2). The cases cited in the draft opinion deal with 

failure of a properly appointed substitute counsel to establish 

an attorney-client relationship and do not involve the severance 

of an attorney-client relationship, continuity of counsel, or 

the role of the military judge in ensuring the fairness of an 

adversarial proceeding. 

 A DuBay proceeding, by contrast, involves hearings 

employing the powers of a court-martial, including discovery, 

compulsory process, application of the rules of evidence, and 

the right to call and cross-examine witnesses. The military 

judge makes findings of facts and enters conclusions of law on 

matters referred to the proceeding. In such a setting, the 

establishment of an attorney-client relationship, continuity of 
United States v. Rodriguez, No. 97-0299/NA 

14

counsel, and the role of the military judge in any change of 

counsel are critical to ensuring the reliability of the 

proceeding. 

 In the present case, Appellant faced the possibility of 

longer confinement as a result of attending a DuBay hearing 

ordered by our Court. Counsel did not seek redress from the 

military judge or from our Court, but instead facilitated 

Appellant’s waiver of the right to attend the hearing, while 

assuring Appellant and the military judge that there would be 

continuity of communication. Counsel subsequently terminated 

the attorney-client relationship without informing the client or 

the court. A new counsel purported to represent Appellant 

without establishing an attorney-client relationship and without 

informing the court of that defect. The military judge observed 

the change of counsel without establishing any of the pertinent 

facts on the record. The affidavits submitted by both counsel 

underscore the absence of attentive and timely efforts to 

communicate with Appellant. 

 The only information in the record regarding the existence, 

content, and disposition of the videotape comes from the news 

media entity that sought to withhold the information from 

Appellant at trial and during appellate proceedings. The 

defense did not seek to subpoena, examine, or cross-examine any 

individuals with potential first-hand knowledge of these 
United States v. Rodriguez, No. 97-0299/NA 

15

matters. It may well be that this is a simple case of a 

videotape that did not capture any matter pertinent to 

Appellant’s trial, that the videotape was destroyed as a matter 

of routine, good-faith disposition, and that the burden of 

proving otherwise cannot be met by the defense. Such 

conclusions, however, should not be drawn from a DuBay

proceeding marred by failure to follow the basic requirements 

for establishment and termination of the attorney-client 

relationship. In that context, the record does not provide an 

acceptable response to the questions referred by this Court for 

consideration in the DuBay proceeding.