CAAF decided the Army case of United States v. Jones, No. 14-0071/AR, 73 M.J. 357 (CAAFlog case page) (link to slip op.), on Monday, July 21, 2014. The court abrogates the subjective prong of the two-part Duga test for whether an Article 31(b) rights warning is required, replacing it with an objective test. The court then applies that test to the facts of the case and determines that the military judge’s ruling admitting Appellant’s confession was not clearly erroneous, affirming Appellant’s conviction and the decision of the Army CCA.

Judge Ryan writes for a unanimous court.

While deployed to Iraq in 2011, Appellant (a military policeman with the rank of Specialist (E-4)) participated in a robbery of an Iraqi businessman of over $380,000 in U.S. currency. Before the robbery, Appellant and his roommate (another military policeman named Carrasquillo whose conviction is also under review by CAAF (grant discussed here)) attempted to recruit then-Private First Class (E-3) Ellis into the conspiracy. Ellis was an augmentee military policeman who wore a military policeman’s uniform but had little formal training. Ellis thought the idea a joke, but when he 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(b), UCMJ.

The questioning included the following exchange:

SPC Ellis: “Don’t play games with me . . . . Why’d you do it?”
Appellant: “What are you talking about?”
SPC Ellis: “Jones, don’t f’n play games with me.”
Appellant: “All right. We did it.”
SPC Ellis: “Who is we?”
Appellant: [No response]
SPC Ellis: “Where’s your roommate, Carrasquillo?”
Appellant: “I guess, he’s in the room.”

Slip op. at 5. Ellis reported what Appellant told him to his section leader. Appellant was eventually charged with the robbery. At trial he moved to suppress his statements to Ellis due to the fact that Ellis did not warn him about his right to remain silent in accordance with Article 31(b). “The Government responded in opposition to the motion and argued that SPC Ellis was not required to give Article 31(b), UCMJ, warnings because (1) SPC Ellis was not acting in an official capacity, and (2) SPC Ellis did not coerce Appellant.” Slip op. at 6. The military judge agreed with the Government, Ellis testified at trial, and Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of one specification each of conspiracy to commit burglary and burglary, in violation of Articles 81 and 129. Appellant was sentenced to confinement for two years and a bad-conduct discharge.

The Army CCA summarily affirmed Appellant’s convictions but CAAF granted review to determine:

Whether the military judge abused his discretion when he denied the defense’s motion to suppress appellant’s statement to the military police.

Judge Ryan answers that question in the negative, finding that “the military judge did not abuse his discretion in admitting Appellant’s statement, as [Ellis] was not acting in an official law enforcement or disciplinary capacity when he questioned Appellant.” Slip op. at 2-3.

Article 31(b) (10 U.S.C. § 831(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.

Judge Ryan explains that “Article 31(b), UCMJ, warnings are required when (1) a person subject to the UCMJ, (2) interrogates or requests any statement, (3) from an accused or person suspected of an offense, and (4) the statements regard the offense of which the person questioned is accused or suspected.” Slip op. at 9 (citing United States v. Cohen, 63 M.J. 45, 49 (C.A.A.F. 2006)). It is the second part of this test that is at issue in this case. Judge Ryan continues:

Although Article 31(b), UCMJ, seems straightforward, “were these textual predicates applied literally, Article 31(b) would potentially have a comprehensive and unintended reach into all aspects of military life and mission.” Cohen, 63 M.J. at 49 (discussing United States v. Gibson, 3 C.M.A. 746, 14 C.M.R. 164 (1954)). Because the mandatory exclusion of statements taken in violation of Article 31, UCMJ, is a severe remedy, this Court has interpreted “the second textual predicates — interrogation and the taking of ‘any’ statement — in context, and in a manner consistent with Congress’ intent that the article protect the constitutional right against self-incrimination.” Id. Under Article 31(b)’s second requirement, rights warnings are required if “the person conducting the questioning is participating in an official law enforcement or disciplinary investigation or inquiry,” [United States v. Swift, 53 M.J. 439, 446 (C.A.A.F. 2000)], as opposed to having a personal motivation for the inquiry. See United States v. Price, 44 M.J. 430, 432 (C.A.A.F. 1996). This “is determined by ‘assessing all the facts and circumstances at the time of the interview to determine whether the military questioner was acting or could reasonably be considered to be acting in an official law-enforcement or disciplinary capacity.’” Cohen, 63 M.J. at 50 (quoting Swift, 53 M.J. at 446) (internal quotation marks omitted). Whether the questioner was acting or could reasonably be considered to be acting in either capacity is a question of law, which we review de novo. See Swift, 53 M.J. at 448; United States v. Good, 32 M.J. 105, 108 (C.M.A. 1991).

Slip. op. at 10-11. Judge Ryan’s focus on the objective standard of Good, Swift, and Cohen is to the exclusion of United States v. Duga, where the court found that Article 31(b) applies “only where the person questioning was acting in an official capacity and ‘the person questioned perceived that the inquiry involved more than a casual conversation.'” Slip op. at 11 (emphasis in original) (quoting Duga, 10 M.J. 206, 210 (C.M.A. 1981)). CAAF resolves the conflicting precedent directly, by abrogating the subjective prong of the Duga test:

We now expressly reject the second, subjective, prong of that test, which has been eroded by more recent cases articulating an objective test.

Slip op. at 12. A footnote addresses the substance of Duga; how Article 31(b) applies in a situation involving an informant:

“Judicial discretion indicates a necessity for denying [Article 31(b)’s] application to a situation not considered by its framers, and wholly unrelated to the reasons for its creation.” Gibson, 3 C.M.A. at 752, 14 C.M.R. at 170. Because undercover officials and informants do not usually place the accused in a position where a reasonable person in the accused’s position would feel compelled to reply to questions, this same logic dictates that Article 31(b), UCMJ, would not apply in those situations. Id.

Slip op. at 11 n.5.

Judge Ryan then states a clear legal test:

In the context of the issue raised in this case then, whether SPC Ellis interrogated or requested any statement from Appellant triggering Article 31(b), UCMJ, is determined by assessing all the facts and circumstances at the time of the interview to determine whether the military questioner was acting or could reasonably be considered to be acting in an official law-enforcement or disciplinary capacity.

Slip op. at 12 (marks and citations omitted). Applying this test to the facts of the case, Judge Ryan explains that “it was not error to conclude that the questioning was not in an official law enforcement or disciplinary capacity,” and that “a reasonable person in Appellant’s position could not consider SPC Ellis to be acting in an official law enforcement or disciplinary capacity.” Slip op. at 14.

This conclusion reveals that CAAF’s rejection of Duga goes beyond the merely subjective nature of the test employed in that case. In Duga the court stated:

[I]n 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) (emphasis added). Under the Duga test, a statement is suppressed only if the questioner was acting in an official capacity and the suspect perceived the inquiry as more than a casual conversation. But through GoodSwift, and Cohen, the court changed this test:

Where the questioner is performing a law enforcement or disciplinary investigation, for example, and the person questioned is suspected of an offense, then Article 31 warnings are required. Whether the questioner should be considered to be performing such an investigation is determined by “‘assessing all the facts and circumstances at the time of the interview to determine whether the military questioner was acting or could reasonably be considered to be acting in an official law-enforcement or disciplinary capacity.'”

Cohen, 63 M.J. 45, 49 (quoting Swift, 53 M.J. at 446 (quoting Good, 32 M.J. at 108)) (citations omitted) (emphasis added). Under the Good, Swift, and Cohen line of cases, a statement is suppressed if the questioner was acting in an official capacity or if the suspect reasonably perceived the inquiry as more than a casual conversation. That is a significantly higher burden for the Government (which has the burden to prove compliance with rights warning requirements by a preponderance of the evidence).

Judge Ryan emphasizes the conjunctive nature of the Duga test on page 11 of her opinion for the unanimous CAAF, and she clearly embraces the higher burden for the Government under the Good, Swift, and Cohen line of cases. Judge Ryan writes that “in the context of the issue raised in this case then, whether SPC Ellis interrogated or requested any statement from Appellant triggering Article 31(b), UCMJ, is determined by ‘assessing all the facts and circumstances at the time of the interview to determine whether the military questioner was acting or could reasonably be considered to be acting in an official law-enforcement or disciplinary capacity.” Slip op. at 12 (marks and citations omitted) (emphasis added). Under the Duga test that disjunctive would be a conjunctive, because “unless both prerequisites are met, Article 31(b) does not apply.” Duga, 10 M.J. at 210. 

Additionally, Judge Ryan’s two-step analysis of the facts of this case reveals the shift to a higher burden on the Government, as she concludes that it was not error for the military judge to find both that the questioning of Appellant was not done in an official capacity and that a reasonable person in Appellant’s position would not consider Ellis to be acting in an official capacity. Under the Duga test, just one of these conclusions alone is sufficient to resolve this case.

Finally, footnote 5 (addressing the application of Article 31(b) to situations involving an informant) confirms the higher burden on the Government:

This objective standard on its face is potentially problematic in relation to the use of undercover officers or informants who clearly act in an official capacity.

Slip op. at 11 n.5. Under the Duga test the official capacity wasn’t problematic because the perception of the subject alone was sufficient to remove the questioning from the protection of Article 31(b).

CAAF rejects Article 31(b) protections for this appellant – whose incriminating statements were made to a would-be conspirator who was subordinate in rank and training to Appellant, himself a military policeman – and this particular case is rightly counted as a win for the Government. But CAAF’s firm embrace of a higher Government burden to prove compliance with Article 31(b) is ultimately an expansion of the rights and protections afforded to individual service members under the UCMJ.

Case Links:
• ACCA opinion (summary affirmation)
• Appellant’s brief
• Appelllee’s (Government) brief
• Amicus brief
• Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

10 Responses to “Opinion Analysis: United States v. Jones, No. 14-0071/AR”

  1. Matt says:

    Article 31 is one area where I think CAAF blew it from the beginning.  This Article is unambiguous.  If Congress wanted it to only apply to questioners who were acting in an official capacity, it could have specified that.  Instead, Congress granted broad protections because it understood the implicit coercions of rank and position.  CAAF should have upheld the clear meaning of this law from the beginning.  Instead, it began to carve out broad exceptions in order to save convictions.  It would have been better to apply the law, and let Congress narrow it if needed. 

  2. Charlie Gittins says:

    I concur with Matt.  But I guess I am not a reasonable person because if an MP is doing the questioning, I think a reasonable person could conclude the questioning was official. 
     

  3. RKincaid3 (RK3PO) says:

    Amen, Matt.  No sense in (or reason for) going beyond the plain, unambiguous language of Art 31(b) itself.  But the military courts have gone beyond it for no better reason than they can in order to implement commander discretion to prosecute and achieve convictions.  And because the military justice system is so isolated from substantive, outside appeallate scrutiny, unless Congress overrides the courts with an amendment to 31(b) directing the military courts to apply the plain language as drafted, 31(b) is largely an ineffective protection as their are so many exceptions (or more precisely, so many ways that numerous and diverse instances of official inquiries fit the exceptions) that there are effectively no 31(b) rights. 
     
    So, while this case does stand for the proposition that the court is starting to look more closely at language, as long as Duga and its progeny are cited with approval, the plain language of 31(b) is effectively ignored for no better reason than there is no one (besides Congress–and we know how bad things get when they get involved) that can do anything about given how the cards are stacked against ever getting SCOTUS review of issues not first cherry-picked for review by CAAF.

  4. Amicus says:

    The most interesting move in this case is found in footnote 4.  The “official law enforcement or disciplinary capacity” has always been a part of “person subject to the code” analysis.  That is where the disconnect between the statutory language and the case law was found — someone could be clearly subject to the code (like most of the questioners in this line of cases), but not “subject to the code” for Art. 31 purposes because he or she was not acting in a law enforcement or disciplinary capacity.  In footnote 4, the court quietly moves this analysis to the “interrogation” prong.  That clears away the term of art problem (Ellis was clearly subject to the code, the court tells us) but will make it difficult to rely on the analysis found in any earlier cases, even those that did not rely on the second Duga factor.
    The other interesting move is that it appears the court dropped the “solely” language from the “acted for a law enforcement/disciplinary purpose or solely for a private purpose” test.  Here, Ellis had a private purpose but he also testified that he had a law enforcement purpose.  Now, it appears that you can have both a private and a law enforcement purpose, and I suppose that the questioner’s purpose is just another fact to wrap into the totality of the circumstances analysis.

  5. Zachary D Spilman says:

    Not sure I agree with you on that one (the first part of your comment) Amicus.

    In our opinion, in addition to the limitation referred to in the legislative history of the requirement, there is a definitely restrictive element of officiality in the choice of the language “interrogate or request any statement,” wholly absent from the relatively loose phrase “person subject to this code,” for military persons not assigned to investigate offenses, do not ordinarily interrogate nor do they request statements from others accused or suspected of crime.

    United States v. Loukas, 29 M.J. 385, 388 (C.M.A. 1990) (quoting United States v. Gibson, 14 C.M.R. 14 C.M.R. 164, 170 (C.M.A. 1954)).

  6. Amicus says:

    My main point was that the genesis for this problem was the “person subject to the code” prong.  From Duga:
     
    “Of course, if this codal provision is applied literally, we would have to hold that the questioning of the appellant by Byers came within the interdiction of the Article, since it is clear that he was a “person subject to this chapter” interrogating someone whom he “suspected of an offense.” However, long ago in United States v. Gibson, 3 U.S.C.M.A. 746, 14 C.M.R. 164 (1954), this Court concluded, after a careful study of the Article’s purpose and legislative history, *209 that Congress did not intend a literal application of that provision: 
     
    Taken literally, this Article is applicable to interrogation by all persons included within the term “persons subject to the code” as defined by Article 2 of the Code, supra, 50 USC s 552, or any other who is suspected or accused of an offense. However, this phrase was used in a limited sense. In our opinion, in addition to the limitation referred to in the legislative history of the requirement, there is a definitely restrictive element of officiality in the choice of the language “interrogate, or request any statement,” wholly absent from the relatively loose phrase “person subject to this code,” for military persons not assigned to investigate offenses, do not ordinarily interrogate nor do they request statements from others accused or suspected of crime.”
    This problem has fallen under the “who has to warn” issue.  To get around the plain language of “person subject to the code,” the courts said that this person had to be acting officially.  That language from Gibson was support for that proposition.   I would contrast that to the separate issue, “was this an interrogation” (or questioning reasonably likely to elicit an incriminating response).   So up until this footnote, I would say that this has been a “who has to warn” issue.  The parties all briefed it that way. 
    Now, I would say this falls under the “was this an interrogation” issue.  I think that with this footnote, the court was signaling – as it was trying to clear up other things in this messy area – that this is how we should treat it rather than as a “who has to warn” issue.  CJ Baker started this move in Cohen and I think this completes it.
     
    If I were going to brief this issue now, I list the four factors on slip op. p. 9 and would then say, “As to factor 2, an interrogation occurs when someone acting in an official capacity questions another; a reasonable person in the accused’s position would perceive the questioning as official; and those questions are reasonably likely to elicit an incriminating response.”
     
     
     
     

  7. Poor Guy says:

    As long as the LE dudes say they’re going to interview someone casually or as a victim, in their reports, then clearly Art31 warnings would not apply. Surely if the LE agent writes it that way in the report, no one could possibly question that. 
     
    Oh, and Amicus…not all of us have trillions of dollars to purchase one of those fancy Westlaw logins. I clicked on the case links with such anticipation, only to be slapped in the face by my empty wallet. 

  8. Zachary D Spilman says:

    I think I’m tracking your point Amicus, and I seem to remember hearing the words “not subject to the code for Art. 31 purposes” somewhere along the line while on active duty. But I also seem to remember thinking at the time that those words were as nonsensical as they sound now. A person is either subject to the Code or not. Is there a case that clearly stands for the rather contradictory proposition that a person can be subject to the Code but also not subject to the Code for Article 31 purposes?

    Anyway, the issue (as far as we’re concerned now) in a particular application of Article 31(b) is whether the questioning falls within the sphere of protection created by Congress. As Judge Ryan recounts in her opinion in this case:

    “Because of the effect of superior rank or official position upon one subject to military law, the mere asking of a question under certain circumstances is the equivalent of a command.” United States v. Duga, 10 M.J. 206, 209 (C.M.A. 1981). Congress passed Article 31(b) “to provide servicepersons with a protection which, at the time of the Uniform Code’s enactment, was almost unknown in American courts, but which was deemed necessary because of subtle pressures which existed in military society.” Id. “The Article 31(b) warning requirement provides members of the armed forces with statutory assurance that the standard military requirement for a full and complete response to a superior’s inquiry does not apply in a situation when the privilege against self-incrimination may be invoked.”

    Slip op. at 8-9 (emphasis added). Now there’s plenty of room to argue that Congress spoke plainly and the courts are wrong to narrow the literal meaning of Article 31(b) (as the comment from Matt asserts). But I think the big thing about Cohen is that it’s very much the product of Good and Swift. That’s why I kept referring to “the Good, Swift, and Cohen line of cases” in my analysis. I think they’re a unified approach that includes a significant departure from Duga in terms of the burden on the Government. And that burden is significant, as the GoodSwift, and Cohen approach leads to suppression when the questioner was not actually acting in an official capacity but reasonably could be considered to to have been.

    We might scratch our heads now over what fact pattern would present that hypothetical, but it’s just a matter of time.

    As for how this case was briefed to CAAF, I just can’t agree that the parties briefed it as a subject-to-the-code issue and not an official-capacity/law-enforcement-purpose issue. Appellant’s brief used the term “subject to” only once – when broadly defining Article 31(b) on page 8. And I think the focus of the brief is squarely on the official-capacity issue (and rightly so, considering the trial stage ruling). As for the Government’s brief, largely same-same. 

    So ultimately I don’t share the view that footnote 4 is interesting (even though I’m up late arguing about it with a pseudonym). Judge Ryan wrote:

    Because it is clear that SPC Ellis was subject to the UCMJ, suspected Appellant of the crime, and the statement he elicited pertained to the offense for which Appellant was suspected, the only question remaining in this case is whether SPC Ellis interrogated or requested any statement from Appellant.

    Slip op. at 9 n.4. This just seems to be a statement of the obvious.

  9. abc123 says:

    So the only question now is: “whether the military questioner was acting or could reasonably be considered to be acting in an official law-enforcement or disciplinary capacity.”
    How does this impact Gilbreath? http://www.caaflog.com/2013/12/16/nmcca-finds-that-article-31b-does-not-apply-to-inactive-reservists/

  10. Zachary D Spilman says:

    Well, CAAF already granted review in Gilbreath (grant discussed here), of both the inactive reservist issue and the application of 31(b) under the facts. I think CAAF will resolve the first issue by further consideration of the reach of the protection created by Congress (right now I have no prediction of what the court will decide). The second issue is going to depend on the facts. On that point, Jones probably makes reversal more likely.