United States v. Toy

CAAF decided yesterday that MRE 317(a)'s suppression of evidence gathered in violation of laws applicable to members of the armed forces does not extend to evidence gathered in violation of state law.

The issue before CAAF was different from the issue decided by CCA. Before the lower court, Toy argued that two recordings--one made without his knowledge and one made without his consent, in violation of Hawaii state law--should have been suppressed under 18 U.S.C. § 2511, the federal wiretapping law. This law essentially provides for the admission of recorded conversations as long as at least one party consented to the recording, unless the party making the recording acts with a purpose to violate state law or to commit a tortious act. Of course, federal law controls the admissibility of evidence in a federal tribunal. But since the federal law itself seemed in this instance to incorporate state law in this respect, Toy argued to the CCA that a recording made in violation of Hawaii's two-party consent law was inadmissible under federal law as well. The trial judge and CCA rejected this argument.

At CAAF, appellant decided to retool the argument. Since M.R.E. 317 excludes evidence that must be suppressed under the Constitution and statutes applicable to members of the armed forces, Toy argued that the more restrictive Hawaii wiretap law required suppression independent of the operation of 18 U.S.C. § 2511, or any other federal law for that matter. After all, Toy argued, the Hawaii law is in fact a statute applicable to members of the armed forces, at least the ones in Hawaii.

CAAF was having none of it, and dispatched appellant's arguments for essentially the same reasons CCA dispatched the first argument. Federal law governs the admissibility of evidence in courts-martial, end of story. And just in case anyone thought that the first argument was still twitching after the court took care of the new argument, Judge Baker administers a dicta double-tap at the end of the opinion affirming NMCCA's handling of the first theory.

I should add that I was Toy's counsel at CCA and then the IMC at a sentencing rehearing. I am usually "reasonably available" for IMC to cases in Hawaii, in case anyone was wondering.