In what I believe is a case of first impression, a three judge panel of the Navy-Marine Corps Court of Criminal Appeals split 2-1 in United States v. Gilbreath, No. 201200427 (N-M.Ct.Crim.App. Nov. 12, 2013) (link to unpub. op.), to find that a member of a reserve component not on active duty is not entitled to the protection of Article 31(b), which requires military personnel to warn those suspected of an offense of the right to remain silent.

Appellant, a Marine Corporal, completed his four-year active duty obligation in January 2011, was honorably discharged, and transferred to the individual ready reserve (IRR) for the remainder of his eight-year enlistment contract. Prior to his discharge he served as an armory custodian, and after his discharge an inventory of the armory revealed that a pistol was missing.

A Sergeant who was Appellant’s supervisor before his discharge called Appellant and explained that he was looking for the pistol. Appellant’s response made the Sergeant suspicious, and the Sergeant “used what could have been classified as an ‘aggressive’ tone with the appellant and told him that ‘people’s heads are on the line’ over the missing pistol. After a pause, the appellant admitted that he had the missing M1911 pistol, and the two men developed a plan for the appellant to return the weapon.” Slip op. at 3.

The Sergeant informed the unit’s Executive Officer (XO) of the plan, but the XO disagreed and contacted Appellant himself. The XO questioned Appellant, and Appellant again admitted that he had the pistol. The Naval Criminal Investigative Service was notified, and it eventually retrieved the weapon from Appellant’s civilian attorney. Appellant was then involuntarily recalled to active duty and charged with one specification of larceny in violation of Article 121, UCMJ. He was convicted, contrary to his plea of not guilty, by a general court-martial composed of officer and enlisted members, and sentenced to reduction to E-1, total forfeitures, and a bad-conduct discharge.

At no point did the Sergeant, the XO, or NCIS advise Appellant of a right to remain silent under Article 31(b). So, at trial, Appellant moved to suppress his statements. But the military judge denied Appellant’s motion, concluding that he was not entitled to the protection of Article 31(b) because he was a member of the IRR who was not on active duty and therefore not subject to the UCMJ at the time he made his statements that were later used against him at trial by court-martial for violation of the UCMJ.

Article 31(b) states:

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 court-martial.

Military courts have long rejected a literal application of this language, finding instead that “the Article applies only to situations in which, because of military rank, duty, or other similar relationship, there might be subtle pressure on a suspect to respond to an inquiry.” United States v. Duga, 10 M.J. 206, 210 (C.M.A. 1981). In Duga, CAAF’s predecessor court determined that:

in each case it is necessary to determine whether (1) a questioner subject to the Code was acting in an official capacity in his inquiry or only had a personal motivation; and (2) whether the person questioned perceived that the inquiry involved more than a casual conversation. Unless both prerequisites are met, Article 31(b) does not apply.

Duga, 10 M.J. at 210 (citation omitted).

In the NMCCA’s consideration of Gilbreath, Chief Judge Modzelewski, joined by Senior Judge Mitchell, discusses Duga but finds:

The appellant contends that, as a member of the IRR, he should be afforded the protection of Article 31(b) when questioned about an offense for which he may later face trial by court-martial. That argument, however, is not supported by the legislative history of Article 31(b) or by case law. Instead, the circumstances here clearly demonstrate that the appellant was well outside the class of persons whom Congress sought to protect with the creation of Article 31(b).

As a member of the IRR, the appellant was far removed in time and place from the coercive military environment contemplated by Congress, in which he might respond to a question in the same way he was trained to respond to a command. . . .

If Congress created Article 31(b) as a precautionary measure, meant to counteract the implicit coercion of the military command structure, that precaution is unnecessary in these circumstances, in which the appellant was far removed from any military environment that might operate to deprive him of his free election to speak or to remain silent. In determining whether the protections of Article 31(b) extend to members of the IRR, who are themselves not subject to the UCMJ, judicial discretion indicates a necessity for denying its application to a situation not considered by its framers, and wholly unrelated to the reasons for its creation.

Slip op. at 6 (marks and citation omitted).

The third member of the panel, Judge Fischer, does not “find the appellant’s status as a member of the Individual Ready Reserve (IRR), in and of itself, dispositive on the issue of the applicability of Article 31.” Slip op. at 7. Instead, Judge Fischer applies the two-part Duga test to determine that the Sergeant was acting in a law enforcement or disciplinary capacity when he questioned Appellant, but that the conversation was “casual in the sense that, due to [the Sergeant] and the appellant’s personal relationship and the appellant’s status as being released from active duty and a member of the IRR, the conversation was devoid of any evidence of coercion based on military rank, duty, or other similar relationship.” Slip op. at 10 (marks and citation omitted). So Judge Fischer concurs in the majority’s ultimate decision affirming the trial judge’s rejection of Appellant’s motion to suppress.

Even if CAAF were to disagree with the majority’s categorical exclusion of Appellant from the protection of Article 31(b), Judge Fischer’s separate opinion seems pretty bulletproof, so I think it unlikely that this case gets more than summary consideration from CAAF. But the circumstances of the case are unusual enough that we’re not likely to see similar facts again any time soon.

19 Responses to “NMCCA finds that Article 31(b) does not apply to inactive reservists”

  1. stewie says:

    Can’t fault the ruling but still feels a little icky.  Then again, it’s pretty unlikely the military will purposefully wait for folks to get out, go into the IRR, then question them, just to get around Article 31(b).

  2. Christian Deichert says:

    I don’t buy the logic here.  The accused was questioned about a suspected offense that occurred while he was on active duty, and he was obviously still subject to involuntary recall because he was recalled.  If he had a DD 214 in hand and was not in IRR status, and the case was turned over to the AUSA, then 31(b) would be N/A, this questioning wouldn’t trigger Miranda, and all would be copacetic.  Maybe if I had more facts I could go with the Duga analysis, but pinning all of this on the IRR status, not so much.  I’ll be interested in what CAAF does, if it gets there.

  3. Cloudesley Shovell says:

    CAAF will flip this.  If subject to the UCMJ, you are subject to the entire UCMJ, not just the parts beneficial to the govt.  One of the early  US v Stevenson appellate opinions dealt with whether or not certain military rules of evidence applied to a disability retiree.  CAAF said yes.

  4. stewie says:

    Retiree v. IRR isn’t a direct one-to-one correlation but I see the linkage there.  Like I said, it does feel “icky” to have this used against him in a military process without the full military protections.

  5. ResIpsaLoquitur says:

    I’m astonished that the plain language of Article 31 doesn’t mean what it says.  I’m even more astonished that if 31 didn’t apply, then the Fifth Amendment in general didn’t apply either.

  6. Former DC says:

    It seems to me that The. Court missed something here. Yes, the Accused was IRR, true. But nearly everyone who doesn’t retire has an IRR commitment. It’s in the enlistment contract: 4 years active then usually 7 years inactive, i.e., IRR. The technical process is that a DD-214 is issued and a final pay accounting is done. The DD-214 is a discharge. The IRR is actually a new enlistment or commission (E or O, respectively), in what is statutorily a separate service. Doesn’t the analysis of discharge apply here? While I agree this situation is somewhat unusual, it isn’t THAT unusual. Commands frequently screw up and let airmen EOS before handling a problem; or like here, don’t find out until they are gone. If this analysis stands, then every one of these guys is flapping in the wind. They are being called by someone that they have been conditioned to respond to, on what is clearly a quest for evidence. It would seem to me, based on the discharge, if the government wants to avoid Art 31, then they ought to be forced into District Court too. Either the Code applies to the person, or it doesn’t. 

  7. Zachary D Spilman says:

    Former DC:

    The recall to active duty, authorized by Article 2(d), is the factor that distinguishes this case from the typical discharge case.

    Article 3(a) undercuts your “statutorily a separate service” argument:

    (a) Subject to section 843 of this title (article 43), no person who is in a status in which the person is subject to this chapter and who committed an offense against this chapter while formerly in a status in which the person was subject to this chapter is not relieved from amenability to the jurisdiction of this chapter for that offense by reason of a termination of that person’s former status.

    Judge Effron translated this into English about 15 years ago:

    This provision makes clear that a servicemember who is discharged from and then reenters the armed forces after a break in service may be tried for offenses that occurred during a prior enlistment, regardless of the intervening discharge.

    Willenbring v. Neurauter, 48 M.J. 152, 158 (C.A.A.F. 1998) (link to slip op.).

  8. Former DC says:

    Proving that some parts of Article 10 don’t match up. Try asking any reserve commander if he is in the same service as the active. It’s pretty clear from other parts of Art 10 that they aren’t. I follow you point, however. But my point remains that either he is subject to the code or he isn’t. And my point remains that this situation is far from unique. For all intents and purposes, it has the potential to catch anyone.

  9. Former DC says:

    I meant 10 USC vice Art 10. Sorry – had a Monday. 

  10. Christian Deichert says:

    RIL — I hope that’s sarcasm; the Duga test isn’t exactly new.

  11. John O'Connor says:

    And RIL, the Fifth Amendment applied, but did not require warnings because the “interrogation” was not custodial.

  12. Terri Zimmermann says:

    Another reason to talk to your lawyer before you start confessing — err, answering questions.

  13. Cloudesley Shovell says:

    The more I ponder this, the more it bothers me.  Art. 31 generally regulates the conduct of persons “subject to this chapter.”  It protects “any person” (not just persons “subject to this chapter”) from questioning without a rights warning. That’s pretty plain language.  Art.  31(c) is pretty telling–it clearly protects witnesses and other persons who are not at all subject to the UCMJ or in any way connected to the military.  Art. 31(c) protects “any person” from abuse by the military (persons “subject to this chapter”).  So does Art. 31(b).  So does Art. 31(d).  “Any person” should mean the same thing throughout Art. 31.  Its meaning should not change based merely on an appellate court’s desire to preserve the conviction of a thief.Duga appears to mark a high-water point in jurisprudence that ignores the plain language of the statute in favor of Congressional intent, however one divines that.  Given that the recent trend in statutory interpretation is back towards the plain language of the statute first, other mushy stuff to resolve ambiguities only where the statute is unclear, Duga may no longer be the best law, particularly given that the language in Art. 31 is awfully straightforward and certainly not ambiguous.  Given the lack of ambiguity, there should be no reason to stray from the plain language in order to construe Art. 31 far more narrowly that Congress wrote it.  I think that CAAF ought to reconsider Duga in its review of this case.Regards,CS

  14. Cloudesley Shovell says:

    Sorry about that run-on paragraph.  I had paragraph breaks in there.  Don’t know where they went.Regards,CS

  15. Advocaat says:

    The concurring opinion presents a faithful application of Duga and, unlike when I had many a motion stumble on tortured applications of the “casual conversation” prong, this feels like the right result to me.

  16. Kevin says:

    Article 31b states:”No person subject to this chapter may interrogate or request any statement from, an accused or a person suspected of an offense” I’m pretty sure the XO and the armorer are both subject to the code. And I’m pretty sure they suspected him of committing an offense.  Nowhere in there does it say the person being questioned must be subject to the code, just that they “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 court-martial.” Am I missing something here or are they just not reading the statute?

  17. St. Michael says:

    Careful my defense-minded friends, if you go too far with the “plain language” argument on Article 31, Congress will simply repeal the entire statute.  Then you are only left with RIL’s Fifth Amendment analysis.

  18. Brian lc says:

    Article 31 has a history of not being read literally.  Take for example, persons who are NOT subject to the code (read literally) but who may have to read Article 31 rights (e.g. PX/BX/NEX exchange loss provention officers; civ police working with military LE).  For those arguing for a literal application, that would strip accuseds of these protections.  (Read too literally, Article 31 would not apply to civillians serving as military law enforcement…that would be ungood for many accuseds*)
    Instead the courts have (tried to) apply Article 31 in a way to serve what they beleive to be its intial purpose, focusing on the inherently coersive military environment.  That is because, read literally, Article 31 would render seemingly absurd results.  (Should under cover military LE need to blow their cover and read rights – if they are subject to the code.  Does anyone think Article 31 should not apply to civillians serving as military law enforcement officers, just because they are technically not subject to the UCMJ?). 
    The non-literal reading is sometimes accused friendly, sometimes not. 
    But, this is interesting, and I’m hoping CAAF takes it.  This will probably establish the tipping point, but we just need to know what side.
    *And yes, I’m tracking that MRE 305(b)(1), which also does not take Article 31 literally, expands the meaning of “someone subject to the code”. I’m just showing the issues of a literal reading of Article 31 standing alone.

  19. Former DC says:

    CS: Hear, hear!