The Army CCA finds two confessions inadmissible because of promises made by a military police investigator that induced the appellant to talk
In an unpublished opinion in United States v. Chatman, No. 20120494 (A.Ct.Crim.App. Jun 11, 2014) (link to slip op.), Chief Judge Glanville (the reserve counterpart to Chief Judge Pede) writes for a unanimous three-judge panel finding that the appellant’s statements to law enforcement agents were improperly admitted because they were the product of unlawful inducement or influence, or derivative of the same. As a result, the court dismisses the three specifications each of larceny and of burglary, of which the appellant was convicted contrary to his pleas of not guilty by a general court-martial composed of a military judge alone, and for which the appellant was sentenced to confinement for 14 months, reduction to E-1, and a bad-conduct discharge.
The charges arose out of a barracks larceny in which the appellant, who remained-behind while members of his unit participated in a field exercise, used a master key to burglarize the barracks rooms of three soldiers. One of the victims saw what he believed to be his stolen property in the appellant’s off-base residence, and alerted authorities. The appellant was brought in for questioning while his residence was searched (but no stolen property was found). The appellant was questioned on two occasions over the next 36 hours: First in the late-night hours of December 10, 2011, and second on December 12, 2011. A footnote “takes judicial notice of the fact that 10-12 December 2011 was a Saturday through Monday.” Slip op. at 16 n.10.
Portions of each of these interrogations were videotaped. The appellant made numerous incriminating statements, eventually confessing to the crimes. The confessions were offered into evidence at trial by the Government, and admitted by the military judge over Defense objection.
During both interrogations a military police officer identified only as Investigator E made numerous promises to the appellant. Early in the first interview, “Investigator E told the appellant, ‘I have a real big influence with the prosecutor as far as what happens to subjects.'” Slip op. at 3. Then, “after nearly an hour, Investigator E discussed how appellant would not be charged for simply possessing stolen property.” Slip op. at 3. Investigator E later left the room and purportedly spoke with the prosecutor, returning to coax admissions out of the appellant:
After further give and take, appellant told Investigator E that Carlos gained entry into the barracks rooms using a master key and appellant was simply holding the property for Carlos at his apartment. Upon hearing this, Investigator E advised appellant, in part, “[I]f you wouldn’t have told that [sh–] you were gonna get charged. . . . But now I’ve got something to go off of. So I’m gonna stay true to my word and I’m not gonna charge you. But there’s gonna be some conditions on that . . . . [Y]ou gotta cooperate with us, from here on out. . . . I mean you’re a part of this now, on our side. So you’re not gonna get [f—ed] with; aint gonna charge you.” Investigator E added, “[R]ight now you’re on my side. You went from being the person I was trying to get; now you’re on my side.”
At the close of the interview and after advising appellant again that he was not being charged, Investigator E placed limits on what appellant could do and who appellant could speak with. Investigator E told appellant: “I told you I was gonna work with you. I aint [bullsh—ing] you because you aint getting charged. . . . Be loyal to me and help us out with this investigation and we’ll – – I mean we’ll be loyal to you.” After telling appellant he was “gonna walk tonight,” Investigator E advised appellant that “there’s gonna be conditions on who you can talk to about this [sh–]. You can’t talk to anybody about this [sh–], nothing, this is it.” Investigator Echaracterized the discussions as “protected information.” Investigator E ended the interview by referencing the garrison commander and MPI’s influence over him, stating: “we report directly to the garrison commander, so, whatever we need to do to help you out, as long as you help us out, it can get done.”
Slip op. at 4. “Thirty-six hours after the initial MPI interview, appellant was back at the MPI office.” Slip op. at 5. The appellant was questioned by a new agent, Detective B. “Unlike Investigator E, Detective B did not promise appellant anything.” Slip op. at 5. But after the appellant made more admissions,
Investigator E entered the interview room, again making promises of no prosecution. This time, Investigator E promised not to prosecute whoever was currently holding the property for appellant. Subsequently, the focus of the discussions was the immediate retrieval of the stolen property.
Slip op. at 5. Soon after this, the appellant received a phone call and then the stolen property was returned to the appellant’s residence where it was identified by the victims. The appellant was then prosecuted at a general court-martial.
At trial, the Defense moved to suppress all of the appellant’s statements to law enforcement, alleging that:
[T]he statements were involuntarily obtained in violation of Article 31, UCMJ, the Fifth Amendment to the Constitution of the United States, and Military Rule of Evidence [hereinafter “Mil. R. Evid.”] 305 as well as being obtained by “unlawful influence and unlawful inducement.” The essence of appellant’s pretrial motion was that the actions of Investigator E on 10-11 December 2011 unlawfully induced and influenced appellant into providing the first statement. Regarding the second statement to Detective B, appellant’s motion noted: “[i]t was only after the promises made by INV [E] that [appellant] provided these inculpatory statements to Mrs. [B].”
Slip op. at 6. The military judge denied the motion. However, the judge’s ruling denying the Defense motion to suppress – a ruling that would ordinarily receive significant deference from the CCA under the abuse of discretion standard of review – was only an oral ruling that “provides no conclusions of law and fails to cite what, if any, legal authority was relied upon to reach the decision.” Slip op. at 7. Moreover, the only evidence introduced at the motion hearing was the video recordings of the two interrogations, which totaled 2.25 hours. But these recording were not played in open court, and the judge took only a 1.5 hour recess to deliberate, making it unlikely that the judge actually reviewed all of the evidence. The judge’s ruling also focused on the issue of immunity, not voluntariness. Accordingly:
The military judge’s handling of the defense’s 17 May 2012 motion, albeit last minute and handled without the benefit of written response, leads the court to conclude that it should be accorded no deference.
Slip op. at 9 (emphasis added). Chief Judge Glanville then conducts what appears to be a de novo review of the videotaped interrogations.
Of the first interrogation, Chief Judge Glanville concludes that “Investigator E made promises to appellant and created, at a minimum, the appearance that Investigator E was speaking with the authority of the prosecutor and arguably the garrison commander.” Slip op. at 10. These promises “equaled or exceeded in scope those comments held by our superior court to rise to the level of unlawful inducement in United States v. Churnovic. 22 M.J. 401 (C.M.A. 1986).” Slip op. at 12. In Churnovic, then-Chief Judge Everett explained that:
On several occasions, this Court has rejected claims that prosecution was barred by an assurance given the accused that he would not be prosecuted. For example, in United States v. Thompson, 11 U.S.C.M.A. 252, 29 C.M.R. 68 (1960) , a squadron commander’s promise of immunity was held not to bind a convening authority, who neither knew of it nor authorized it. Likewise, in United States v. Werthman, 5 U.S.C.M.A. 440, 18 C.M.R. 64 (1955), the promise of a subordinate did not preclude a commander from instituting prosecution.
However, if an official authorized expressly or implicitly by the convening authority has promised a suspect that, in return for certain disclosures, he would not be prosecuted, we have not hesitated to enforce that promise. . . . Our conclusion was that the Government must abide by an agreement on which an accused has reasonably relied to his detriment.
22 M.J. at 405 (emphasis added). Churnovic involved an authorized promise and it’s not clear that Investigator E had the authority to make the promises to the appellant in Chatman. But the CMA’s decision in Churnovic turned on the absence of an Article 31 rights advisory. After all, why give a warning when promising no prosecution.
So, Chief Judge Glanville relies on United State v. Kimble, 33 M.J. 284 (C.M.A. 1991), also written by then-Senior Judge Everett. In Kimble, the appellant was promised no prosecution at court-martial if he completed a civilian therapy program. The appellant complied with the program, including making incriminating statements that were later used against him in a court-martial prosecution. Senior Judge Everett concluded:
The command promised appellant de facto immunity from court-martial solely on the condition that he successfully undertake the diversionary program. Appellant did all that was required of this condition, including being entirely open and frank with Mr. Bixler as to the scope of his misconduct. Now, it is time for the Government to comply.
Kimble, 33 M.J. at 289-290. Further, noting that this promise came from a relatively low-level commander Senior Judge Everett explained:
Fundamentally, however, what military officials at all levels must keep in mind is this: Regardless whether the promise be one formally of immunity pursuant to RCM 704, or whether it be one that induces the accused into making incriminating admissions as in Churnovic, or whether it is one that in some other way is relied upon by an accused to his detriment, due process requires that the accused get the benefit of his bargain.
33 M.J. at 293 (emphasis added). Chief Judge Glanville also briefly notes Cunnigham v. Gilevich, 36 M.J. 94 (C.M.A. 1992); an extraordinary writ petition where the petitioners were induced to participate in an investigation into a fatal training incident and then prosecuted in connection with the accident. The CMA found that the petitioners did not have de facto immunity from prosecution in connection with the accident, but:
Having decided that petitioners do not have transactional immunity does not end the inquiry. It is clear from the record and undisputed by appellate government counsel that there were repeated conversations among Col. Naylor, Lt.Col. Lee, petitioners, and their counsel regarding petitioners’ testimony. Whether those conversations are characterized as unwarranted assurances, cajoling, unsolicited advice, or outright pressure, the result was the same: it influenced the advice given by petitioners’ counsel and overcame the reluctance of petitioners to testify. Col. Naylor’s repeated assurances neutralized the Article 31(b), UCMJ, 10 USC § 831(b) , warnings given by the investigating boards. We regard Col. Naylor’s and Lt.Col. Lee’s repeated conversations with petitioners regarding their testimony before the PACOM and PACAF boards as “unlawful influence” within the meaning of Article 31(d). Cf. United States v. Churnovic, 22 MJ at 408 (promise of use immunity constitutes “‘unlawful inducement’ for purposes of Article 31(d)”).
36 M.J. at 101-102. Applying this precedent to the facts of Chatman, where Investigator E made a litany of promises to the appellant, Chief Judge Glanville arrives at the same conclusion about the statements the appellant made to Investigator E:
When considering the “totality of the surrounding circumstances,” we find Investigator E’s statements collectively constitute unlawful inducement or unlawful influence resulting in an involuntary confession under Mil. R. Evid. 304(c)(3) and one obtained in violation of Article 31(d), UCMJ. Thus, the military judge erred in denying the defense’s suppression motion and in admitting
Chatman, slip op. at 15. Chief Judge Glanville then turns to the second interrogation, conducted primarily by Detective B, noting that the record is poorly-developed because the original motion session focused on the question of immunity. Slip op. at 15-16. Nevertheless, applying the three-factor test for derivative confessions from Brown v. Illinois, 422 U.S. 590, 603–04 (1975), Chief Judge Glanville finds:
[A]ll three cut against the government. First, temporal proximity, favors appellant when considering 10-12 December 2011 was a weekend period and appellant was advised by Investigator E that he could not talk to anyone about the case. The government failed to introduce any evidence that appellant did anything except sit around and wait to be re-interviewed by law enforcement in accordance with Investigator E’s’ specific guidance. Second, intervening circumstances also favor appellant even when considering that appellant was properly advised of his Article 31, UCMJ, rights before the second interview. This advice is, however, viewed against a backdrop where appellant was not given a cleansing warning and not advised that Investigator E was acting well beyond his authority in advising appellant that he was no longer a subject, not being charged, and now a part of Investigator E’s team. Finally, the purpose and flagrancy of the official misconduct favors appellant for the reasons noted in our discussion of the first interview.
Slip op. at 16. Accordingly, “given the absence of evidence to the contrary in the record, appellant’s second videotaped interview with Detective B is derivative of his first unlawful interview and not sufficiently attenuated so as to allow its admission.” Slip op. at 17.