CAAF will hear oral argument in the Army case of United States v. Jones, No. 14-0071/AR (CAAFlog case page), on Wednesday, April 9, 2014, at the Florida International University College of Law, Miami, Florida, beginning at 12:30 p.m. The court will review a single issue:
Whether the military judge abused his discretion when he denied the defense’s motion to suppress appellant’s statement to the military police.
Regular readers might recognize the facts of this case, as Appellant was convicted of burglary and conspiracy to commit burglary for his participation in the 2011 robbery of over $380,000 from an Iraqi businessman. One of Appellant’s co-conspirators was Specialist Carrasquillo, whose invocation of his right to remain silent was considered by the Army Court in a published opinion issued last November. United States v. Carrasquillo, 72 M.J. 850 (A.Ct.Crim.App. 2013) (link to slip op.). I discussed that opinion in a December post titled: The right to remain silent when the evidence of guilt is overwhelming.
Before the robbery, one of Appellant’s co-conspirators (Carrasquillo, actually, though Appellant was there too) attempted to recruit Specialist Ellis into the conspiracy. Specialist Ellis was an augmentee military police officer who wore a military policeman’s uniform but had little formal training. Ellis thought Carrasquillo was joking, but when Ellis later heard about the robbery (and was assigned to investigate it), he suspected Appellant and questioned him without first advising him of his right to remain silent under Article 31, UCMJ.
The questioning proceeded along these lines:
Question [Ellis]: Jones, don’t fucking lie to me, what the fuck happened and why the fuck did you do it.
Answer [Appellant]: I don’t know what your talking about we didn’t do anything.
Question: Don’t fucking lie to me tell me the truth?
Answer: Alright we did it!
Question: You did what exactly?
Answer: We went over there and robbed the guy with all the money.
App. Br. at 4-5. At trial, the military judge rejected a Defense motion to suppress this exchange due to the lack of a rights advisory, finding that “SPC Ellis was acting in an unofficial capacity and was not acting as a part of a law enforcement disciplinary investigation, and that [Appellant] did not perceive the questioning as more than a casual conversation between peers.” App. Br. at 6. The judge also concluded that Ellis did not suspect Appellant of the robbery at the time of the questioning, but was merely acting on “a hunch based from [sic] the previously solicitation.” App. Br. at 7. The statements to Ellis were admitted into evidence at trial, Appellant was convicted of the burglary and conspiracy, and Appellant was sentenced to confinement for two years and a bad-conduct discharge. The Army CCA summarily affirmed.
In his brief to CAAF, Appellant’s asserts that the military judge made three errors in denying the Defense motion to suppress:
(1) Concluding that Appellant was not a suspect within the meaning of Article 31 when he was questioned by Ellis;
(2) Concluding that the questioning was just a casual conversation and not an interrogation; and
(3) Concluding that Ellis was not acting in an official capacity at the time of the questioning.
Appellant must prevail in the analysis of each of these assertions of error if he stands a chance of relief, because a military policeman need not give a rights advisement when the accused isn’t yet a suspect (see United States v. Miller, 48 MJ 49, 54 (C.A.A.F. 1998)), and because Article 31(b) does not apply where the questioner is not acting in an official capacity or the person questioned does not perceive the inquiry as more than a casual conversation (see United States v. Duga, 10 MJ 206, 210 (C.M.A. 1981)).
“An appellate court reviews the denial of a motion to suppress a confession under an abuse of discretion standard, and accepts the judge’s findings of fact unless they are clearly erroneous. United States v. Simpson, 54 M.J. 281, 283 (C.A.A.F. 2000) (citations omitted). See also, e.g., United States v. Ayala, 43 M.J. 296, 298 (C.A.A.F. 1995). “The abuse of discretion standard is a strict one, calling for more than a mere difference of opinion. The challenged action must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous.” United States v. White, 69 M.J. 236, 239 (C.A.A.F. 2010) (quoting United States v. Lloyd, 69 M.J. 95, 99 (C.A.A.F. 2010)).
The issue statement in this case makes it clear that CAAF will consider the judge’s ruling under this highly-deferential standard of review, but Appellant may yet avoid the brunt of its strictness. “In reviewing a military judge’s ruling on a motion to suppress, [CAAF] review[s] factfinding under the clearly-erroneous standard and conclusions of law under the de novo standard. Thus, on a mixed question of law and fact as in this case, a military judge abuses his discretion if his findings of fact are clearly erroneous or his conclusions of law are incorrect.” United States v. Ayala, 43 M.J. at 298.
But caselaw treats the three seemingly-factual determinations by the military judge that Appellant asserts as errors (was Appellant a suspect; did Appellant perceive questioning as more than a casual conversation; was Ellis acting in an official capacity) as questions of law, not questions of fact. See, e.g., United States v. Muirhead, 51 M.J. 94, 96 (C.A.A.F. 1999) (whether person is a subject is reviewed de novo); United States v. Young, 49 M.J. 265, 269 (C.A.A.F. 1998) (whether there has been an interrogation is a question of law reviewed de novo); United States v. Good, 32 M.J. 105, 108 (C.M.A. 1991) (the status as a suspect and whether an inquiry was law enforcement or disciplinary in nature are questions of law).
So, if it follows this precedent, CAAF will review these asserted errors de novo and give no deference to the ultimate conclusions of the trial judge. See, e.g., United States v. Roberts, 59 M.J. 323, 327 n.3 (C.A.A.F. 2004) (no deference given under de novo review).
As discussed above, Appellant must prevail on all three asserted errors to prevail at all. But the burden in this case is on the Government, not on Appellant. “The Government has the burden of establishing compliance with rights warning requirements by a preponderance of the evidence.” United States v. Pipkin, 58 M.J. 358, 361 (C.A.A.F. 2003) (quoting United States v. Simpson, 54 M.J. 281, 283 (C.A.A.F. 2000)). At the time of Appellant’s trial, this burden was codified in Military Rule of Evidence 304(e) (the 2013 revision moved it to M.R.E. 304(f)(6)).
But even if the Government fails to convince CAAF that the statements to Ellis were admissible, the error of their admission must still be tested for prejudice under the standard of harmlessness beyond a reasonable doubt. United States v. Gardinier, 67 M.J. 304, 306 (C.A.A.F. 2009). This too is a strict standard. See Chapman v. California, 386 U.S. 18, 24 (1967) (there must be no “reasonable possibility that the evidence complained of might have contributed to the conviction.”). And the burden to persuade CAAF of such harmlessness also rests on the Government, because of Appellant’s trial-stage objection. See United States v. Humphries, 71 M.J. 209 n.2 (C.A.A.F. 2012) (discussing the burden-assigning “difference between preserving an issue for appeal by objecting at trial and raising the issue for the first time on appeal.”).
Appellant’s brief doesn’t discuss these burdens in depth. Rather, early on it accurately states that:
A servicemember’s status as a suspect and the nature of the official inquiry as either law enforcement or disciplinary are ultimately legal questions.
App. Br. at 8. But the Government’s brief takes a different posture:
A military judge’s denial of a motion to suppress evidence is reviewed for an abuse of discretion. This court reviews a military judge’s findings of fact under the clearly-erroneous standard and conclusions of law under the de novo standard. The abuse of discretion standard calls for more than a mere difference of opinion. The challenged action must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous.
Gov’t Br. at 10 (marks and citations omitted). Then, throughout its argument of Appellant’s assertions of error, the Government’s brief repeatedly tries to apply the standard of review for findings of fact to the judge’s conclusions on the questions of law at issue in this case:
The military judge found in his written decision: “[T]he evidence here indicates that SPC Ellis was not acting in any official capacity.” Based on the facts, the findings by the military judge can hardly be described as arbitrary or clearly unreasonable.
Gov’t Br. at 14.
For these reasons, the military judge did not clearly err in finding that PFC Ellis was not acting in an official capacity when appellant made his inculpatory statements.
Gov’t Br. at 18.
The military judge’s factual findings are not clearly erroneous and are amply supported by the evidence. Accordingly, because appellant did not perceive PFC Ellis’s questions as interrogation by a superior or as being propounded for a law enforcement or official purpose, the military judge correctly held that appellant’s statements to PFC Ellis were admissible.
At best, appellant has shown that he has an opinion that differs from the military judge’s decision to admit his statement. However, he has failed to show that the military judge’s decision to admit his statement fell outside the range of reasonableness such that it was clearly erroneous and an abuse of discretion.
Gov’t Br. at 23.
The Government also attempts to shift the burden of proof to Appellant:
Notably, appellant did not offer any evidence that he thought PFC Ellis was acting in a law enforcement capacity when he spoke to him. Appellant also offered no evidence that he perceived the questions to be for a law enforcement purpose or that he believed he was a suspect at the time of their conversation.
Gov’t Br. at 20 n.106. This attempt at burden-shifting is particularly troublesome in light of the fact that the Government’s brief also acknowledges that the issues of “whether the questioner is acting in a law-enforcement or disciplinary capacity and the individual’s perception of the nature of the questioning are evaluated objectively in light of all the facts and circumstances.” Gov’t Br. at 13 (emphasis added). Ironically, the Government’s brief later argues this contrary fact, stating that “even if appellant had offered evidence that he believed he was being interrogated, any such belief would have been unreasonable. . .” Gov’t Br. at 21 n.109.
I predict that because of these issues, the standard of review and the burdens of proof and persuasion will be significant topics during the oral argument. Moreover, if the Government is forced to make an early concession that the issues in this case are questions of law reviewed de novo (as I believe that it will be), then I predict that its brief is going to be used against it during the rest of the argument.
And that brief includes facts both good and bad for the Government. For instance, while the Government’s brief highlights the facts that Ellis was Appellant’s “peer and neighbor” (Gov’t Br. at 14), and that Appellant asked Ellis to participate in the crime (Gov’t Br. at 17), it downplays the fact that Ellis suspected the Accused and wanted to determine whether his suspicion was correct before reporting him (Gov’t Br. at 7).
But the Government’s brief doesn’t address the legal question of Appellant’s status as a suspect, implying that it concedes this issue to Appellant.
Still, despite all of this, the Government has a pretty strong case. Its brief rightly explains that “the purpose of Article 31(b) is to provide servicepersons with protection from what was deemed as the subtle pressures that exists in military society.” Gov’t Br. at 11 (citation omitted). And it’s hard to say that Appellant was subject to pressure when Ellis, his would-be co-conspirator, who was junior in rank and a friend, asked him why he did it during a private conversation in Ellis’ room (where “Appellant also closed and locked the door to the room before their conversation.” Gov’t Br. at 22.).
The Government also has a pretty strong case for harmlessness:
Here, any error would have been harmless because the panel would have still heard PFC Ellis testify that appellant had attempted to recruit him to rob Mr. DA. They would have also heard how SPC Carrasquillo admitted to PFC Ellis that appellant had participated in the robbery. In addition, Mr. DA’s testimony also implicates appellant. DA testified through an interpreter that he had been watching television when he heard a noise and opened the door. His description of his assailants also fits appellant’s physical characteristics.
Most damning was the testimony of co-conspirator, PFC Backes, who testified that he committed the robbery alongside appellant.
Gov’t Br. at 24-25. Appellant’s brief asserts that the Government’s case was focused on the testimony of PFC Backes, and that the Defense case “was based on discrediting PFC Backes who testified under government immunity.” App. Br. at 21. Whether that’s persuasive enough to undermine the Government’s other evidence remains to be seen.
Finally, a law school amicus (who received time for oral argument) focuses on two parts of the analysis: Whether Ellis was acting in an official capacity when he questioned Appellant, and whether Appellant objectively perceived that questioning to be official and not a casual conversation. The brief notes that both of these issues are questions of law reviewed de novo. Amicus Br. at 10 and 14.
On the first question, Amicus asserts that “the test is whether the questioner had a law enforcement purpose for the questioning or did so solely for another reason,” and that any law enforcement purpose will cause the questioner to act in an official capacity. Amicus Br. at 7. The brief notes that the judge found that Ellis had both an official and a personal motivation, making his questioning official, and the brief asserts that the judge erroneously applied a primary purpose test to find the questioning not official. App. Br. at 10.
On the second question, Amicus observes that the objective test of the suspect’s perception of a conversation as official or casual was developed for cases where law enforcement was using an undercover agent or similar tool that would otherwise require a rights advisory, and that CAAF “frequently does not use this prong . . . where there is no informant issue.” Amicus Br. at 11. But the brief analyzes the circumstances of the questioning, concluding that Appellant did, and objectively could, perceive the questioning as more than a casual conversation.
Ultimately, CAAF could assume that the military judge erred in denying the motion to suppress but affirm this case on the prejudice issue. Even if the conviction is affirmed, I really hope that the court doesn’t affirm it that way. The Government’s brief reveals that there is at least some confusion over the appropriate standard of review in a case like this, and Amicus raises the interesting question of the applicability of the casual conversation exception, so a comprehensive analysis by CAAF would add a lot of clarity to a complicated area of military law.