In United States v. Jones, No. 14-0071/AR (CAAFlog case page), a potential co-conspirator named Ellis (who was an augmentee military police officer) learned about the completed crime (a robbery) and questioned Jones without complying with Article 31(b), obtaining a confession. CAAF is reviewing the case to determine if the military judge erred by denying the Defense motion to suppress that confession.
As I discussed in my argument preview, current precedent makes for a hard fight for the appellant in Jones, 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)).
But listening to last week’s project outreach oral argument, I got the feeling that CAAF’s resolution of the case just might involve a major decision about the applicability of Article 31(b). Then, on Monday (five days after hearing argument in Jones), CAAF granted review of a similar issue in the case of one of Jones’ co-conspirators, who was also questioned by Ellis:
No. 14-0261/AR. U.S. v. Elliot M. CARRASQUILLO. CCA 20110719. Review granted on the following issue:
WHETHER THE MILITARY JUDGE ERRED IN FAILING TO SUPPRESS STATEMENTS TAKEN FROM APPELLANT IN VIOLATION OF ARTICLE 31(b), UCMJ.
Briefs will be filed under Rule 25.
I discussed this case in a post last December titled “The right to remain silent when the evidence of guilt is overwhelming” (analyzing the Army CCA’s consideration of numerous references during the trial to Carrasquillo’s invocation of his right to remain silent). The CCA’s opinion did not discuss the admissibility of any statements Carrasquillo may have made to Ellis. But with what we know about Jones, the following passage from the CCA’s opinion takes on new meaning:
When SPC [Ellis] found out that Mr. DIIA had been robbed and heard a description of the assailants, he confronted appellant and SPC [Jones], who admitted that they participated in the crimes. Specialist [Ellis] informed his command of these disclosures, and appellant and the two other soldiers were quickly identified as potential suspects in the crimes. Appellant and SPC [Jones] were removed from the redeployment flight.
United States v. Carrasquillo, 72 M.J. 850, 852 (A.Ct.Crim.App. Nov. 27, 2013).