CAAF will hear oral argument in the Coast Guard case of United States v. Ramos, No. 17-0143/CG (CAAFlog case page), on Tuesday, April 25, 2017, at 9:30 a.m. The court will consider a single issue that questions whether military investigators were required to give an Article 31(b) warning before questioning the appellant about threats to his wife’s recreational marijuana business activities:

Whether Appellant was entitled to Article 31(b), UCMJ, warnings at any point during his interrogation by CGIS, and if so, whether he was prejudiced by the admission of any of his statements.

Boatswain’s Mate First Class (E-6) Ramos was convicted contrary to his pleas of not guilty, by a special court-martial composed of officer members, of one specification of conspiracy to manufacture and distribute marijuana, three specifications of making a false official statement, and one specification of wrongful possession of marijuana with intent to distribute. The panel sentenced Ramos to confinement for 90 days, reduction to E-3, and a bad-conduct discharge, and the convening authority approved the sentence as adjudged. The CCA disapproved two of the false official statement convictions (seemingly for factual insufficiency), but approved the sentence.

The case arose from an agreement between Ramos’ wife (a civilian) and a third-party (also a civilian) “to start a business for manufacturing marijuana under Washington State’s recreational marijuana law.” App. Br. at 2. Ramos attempted (or maybe not) to distance himself from the venture. However, while Washington State law permits (and regulates) the cultivation, sale, possession (and use) of marijuana, it is still illegal nationwide. See, for example, 21 U.S.C. § 844. It is also prohibited by the Uniform Code of Military Justice. 10 U.S.C. § 912a. Accordingly, the Ramos marijuana business (like all such businesses) was unlawful.

The business failed. This caused a dispute between Ramos’ wife and her business partner. The partner threatened Ramos’ wife and also “contacted the Coast Guard Investigative Service [(CGIS)] to report that [Ramos] was involved in the marijuana business.” App. Br. at 3-4. Ramos separately informed his command about his wife’s activities and the threats, leading to Ramos being interviewed by the CGIS. Ramos made statements during that interview that were admitted against him during his court-martial. However, despite the Government’s knowledge about Ramos’ connection to an unlawful marijuana business, the CGIS agent did not provide Ramos with an Article 31(b) warning during the interview.

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.

Interpreting this statute, CAAF held 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.

United States v. Jones, 73 M.J. 357, 361 (C.A.A.F. 2014) (CAAFlog case page). The second part of this test – whether the questioner interrogates or requests any statement – was at issue in Jones and is also at issue in Ramos. CAAF’s opinion in Jones affirmed that:

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 . . . [which] “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.

Jones, 73 M.J. at 361 (marks and citations omitted). Before Jones CAAF also (sometimes) considered whether the person questioned subjectively perceived that the inquiry involved more than a casual conversation, but that inquiry was abandoned by Jones.

Ramos’ argument is simple: the CGIS agent who questioned Ramos suspected him of an offense. Accordingly, the agent was required to give a warning.

Ramos made this argument at trial (in a motion to suppress), however the military judge rejected it on the basis that the agent “was not conducting a law enforcement or disciplinary inquiry” when he questioned Ramos. App. Br. at 9. The Coast Guard CCA affirmed, concluding that the agent’s questions “were focused on identifying and mitigating a threat.” Ramos, 75 M.J. 936, 939, No. 1418, slip op. at 4.

The Coast Guard Appellate Government Division advances the same reasoning adopted by the military judge and the CCA:

Here, Appellant’s interview with CGIS focused on the non-law-enforcement, non-disciplinary issue of force protection. That morning, Appellant approached his chain of command for help, stating that he and his wife were being threatened by a business partner, and disclosed that the nature of the business was growing marijuana, a legal enterprise under Washington state law. J.A. at 33-35. His chain of command then contacted CGIS for assistance. Id. at 43. When the CGIS agents met with Appellant, they were confronted with a situation where a command asked CGIS to assess the potential risks to a member of their command arising out of a marijuana-growing business, which is hardly a typical request for a threat assessment.

Gov’t. Div. Br. at 10-11 (emphasis added). The Division’s argument seems to hinge on the production of marijuana being legal under Washington state law; a flawed view of the law (and likely an irrelevant factor when evaluating a case under the UCMJ). For instance, the Division’s brief suggests that:

Appellant’s argument, which would essentially require CGIS agents to give an Article 31(b) advisement in all of their interactions with members of the armed forces, is unworkable and counterproductive. Particularly when dealing with threat assessments, CGIS needs members who believe they have been threatened to speak freely to CGIS about the threat in order to perform threat assessments in their force protection responsibilities. That willingness is hampered if the agents have to give rights warnings before a threatened person speaks to them. And yet, the Government also has an interest in holding those who falsely request help for a purported threat accountable. As an analogy, if a Coast Guard member falsely reported they were threatened with a gun in a parking lot on base, which then prompted a lock down of the base and an extensive search, even though the questioning was originally done without a rights advisement and without the intent of determining if the reported threat were false, it is appropriate for the Government to hold someone who made such a false threat accountable given the consequences that followed from the false report.

Gov’t Div. Br. at 14-15. Ramos, however, wasn’t merely a member who believed himself to have been threatened; he was a non-commissioned officer involved in the unlawful production of controlled substances.

Case Links:
CGCCA opinion
Appellant’s brief
Appellee’s (Coast Guard App. Gov’t Div.) brief
Blog post: Argument preview

12 Responses to “Argument Preview: The impact of the lawful (but unlawful) production of marijuana in United States v. Ramos, No. 17-0143/CG”

  1. stewie says:

    I  mean how is this not a situation that requires A31 rights advisal??
     
    You are literally talking to a SM about marijuana distro and sale and possession…how could it be anything but something that could easily incriminate him? It’s like a SM complaining about a pimp threatening him because he didn’t pay enough money for his prostitute.
     
    I mean come on.

  2. Scott says:

    Yeah…
     
    If the theory is that the activity was not illegal under state law, does that mean Article 31 rights advisals are not required for any exclusively federal/UCMJ offenses?  That’s a whole lot of offenses: Failure to Report, Absence without Leave, Disrespect, Disobedience, anything under Articles 133 or 134, etc.  Clearly that’s not a meritorious argument.
     
    If the theory is that a SM who approaches the command for assistance doesn’t require a rights advisal because the military is trying to protect them, that is equally unconvincing.  We give rights advisals for collateral misconduct to victims all the time, despite the fact that they voluntarily reported to law enforcement and there is an interest in protecting them.  Seeking protection does not negate a SM’s rights.  If anything, a SM who voluntarily approaches the command about potentially incriminating information needs a rights advisal more than anyone, because they have already started doing the very thing the advisal is intended to advise them they are not required to do.  A SM in a dangerous situation may well make the calculation that incriminating themselves is an acceptable tradeoff for the protection they hope to receive from law enforcement, but they should be properly advised of their rights so that the calculation can be made in an informed manner.

  3. jagaf says:

    As someone who (jokingly) self-IDs as a “government hack,” even I don’t see how you get around 31 here. Stewie’s and Scott’s questions are well asked. Hopefully CAAF does the right thing here.

  4. Lieber says:

    “CGIS needs members who believe they have been threatened to speak freely to CGIS about the threat in order to perform threat assessments in their force protection responsibilities. That willingness is hampered if the agents have to give rights warnings before a threatened person speaks to them.” 
    It seems to me that this is a conundrum of the government’s own making. If they’re so worried about a chilling effect they could simply exclude statements made to CGIS under that scenario from being used against the SM.  The fact that they haven’t done so indicates that they’re not so worried about this scenario which means that there was no reason not to give the Article 31 advisement.

  5. Tami a/k/a Princess Leia says:

    If you genuinely didn’t suspect appellant of committing a crime, then you don’t charge him with a crime.  No getting around Article 31 on this case.
     
    Is the military resorting to “guilt by marriage” now?  This is the kind of case that I think warrants a mistake of law defense.  Two civilians operating a legal business in the state, as long as the federal employee spouses stay out of it.  As long as the business is operated within the parameters set by the state, and he honestly and reasonably believes he’s good as long as he doesn’t “actively” participate, he could legitimately believe his wife’s actions were legal, and therefore no conspiracy to commit a crime.
     
    Feds need to make marijuana a Schedule II, at the very least.

  6. terminal velocity says:

    Old memory cells, unaided by any interest in doing my own research to refresh the same, but was not a (very loosely) analogous situation presented in the Clayton Lonetree case where he was questioned without warnings for intel purposes by a “Little John” and a “Big John” and those statements were deemed admissible since it was not a criminal investigation?  
    That being said, why they did not read 31b rights IOT save the taxpayer extensive appellate litigation, is a more important question.

  7. puddle pirate says:

    Tami–obviously very fact-specific, and compounded by the fact that most attorneys are loathe to advise marijuana businesses (the ABA Journal even had an article that basically said “DON’T DO IT!”  Assuming, of course, that the spouse and completely-above-board business partner sought competent legal advice before starting a business with potential criminal penalties and which would need to be structured in a way to shield the active-duty spouse.  Were funds comingled?  Did the member profit from the business indirectly through gifts or an increase in the household budget?  Did he participate in business decisions in a way that would make him appear to be a partner?  Did they avoid all the pitfalls that could result in constructive possession (like the spouse having a spare key to the growhouse for emergencies)? 

  8. Tami a/k/a Princess Leia says:

    Puddle pirate, they did consult w/ an attorney about incorporating the business to shield both the appellant and the business partner’s wife, who was a federal employee.  So it seems everyone was aware of the federal implications of criminality for federal employees, but if solely in-state, no criminal implications as long as you stay within the boundaries set by the state.  Apparently there was no profit at all, and the facts show that appellant’s wife was being asked to increase her financial contribution to $88,000, which seems to have caused the falling out.
     
    It doesn’t appear appellant actively participated in the marijuana business at all.  He certainly knew about his wife’s business, but so what?  His wife is not committing a crime under state law.  I’ve seen this happen before.   Certainly is not wise for a civilian spouse to engage in a business that could get the servicemember in trouble.  But should those bad choices transfer to the military spouse to make him/her a criminal?  I say no, as long as they did something like a “Chinese wall.”  This is why I call it “guilt by marriage.”

  9. Zachary D Spilman says:

    but if solely in-state, no criminal implications as long as you stay within the boundaries set by the state

    That’s cute, but wrong. 

  10. Tami a/k/a Princess Leia says:

    Zach, I understand your point:  Something legal under state law, that is also illegal under federal law, is still illegal.  But this is where the mistake of law defense comes into play.  The servicemember and business partner’s wife, a federal employee, are prohibited from participating in the marijuana business.  But the servicemember’s wife and business partner are not.  From what is revealed in the CG opinion, it appears appellant followed federal law and did not participate at all, and cannot be held liable for his wife’s actions, that were in compliance with state law, simply because he is married to her.
     
    We also have to look at how the feds have reacted to states that legalized recreational use of marijuana.  Colorado for example, has brought in $73.5 million in revenue in the first 7 months of legalization, and revenue is expected to exceed around $125 million this year.  A marijuana “drive through” recently opened somewhere in Colorado.  Obviously if the feds intended to crack down on this, wouldn’t they have swooped in by now for the crack down?  Marijuana businesses are still prohibited from claiming business expenses on federal income tax returns, can’t deposit their money in banks, can’t get their trademarks, brand names registered w/ feds, etc., but can with various states.  Congress members are pushing to do away with the disconnect between state laws and federal laws on this issue.
     
    I’m not trying to turn this into a referendum on the legalization of pot, but addressing the disconnect between federal and state law, and how reasonable people can honestly and reasonable believe as long as they are following the state’s law, then they are good to go.
     
    We also still make clear that servicemembers can’t use, possess, etc. marijuana regardless of whether it’s permitted under state law, because it’s prohibited by the UCMJ.  We also make clear that civilians cannot bring marijuana on federal installations, federal employees can’t use, etc., because federal law applies.  But no where do we say that servicemembers are liable for what their spouses do off-post, when the spouses comply with state law.  In fact, we teach the opposite, you are not guilty merely by association.  

  11. Zachary D Spilman says:

    Your point, Tami, is that “the servicemember’s wife and business partner are not [prohibited from participating in the marijuana business].” That’s wrong. The federal marijuana laws (like 21 U.S.C. § 844, mentioned in my post) apply to the wife and business partner. 

    Just because the federal government hasn’t enforced the marijuana laws doesn’t mean it can’t.

    Furthermore, Ramos was also convicted of conspiracy to manufacture and distribute marijuana. That’s more than guilt by association. 

  12. Tami a/k/a Princess Leia says:

    Zach, I agree with you on the law.  I also agree with you that just because there’s no enforcement by feds doesn’t mean it can’t.  But that is what the “mistake of law” defense is designed to address.
     
    A conviction on conspiracy doesn’t necessarily mean more than guilt by association.  It could also mean the fact-finder doesn’t really understand what a conspiracy means.  Conspiracy means an agreement to commit a crime.  If appellant didn’t think he was committing a crime because he wasn’t an active participant, and his wife didn’t think she was committing a crime based on attorney advice that the operation was legal in Washington, then you don’t have a meeting of the minds needed for a conspiracy.  But because you have husband and wife and she was “in the business” and he knew she was “in the business,” and the marijuana business is still illegal under federal law, then in some people’s minds, that’s enough for a “conspiracy.”  I have seen this happen before–people think the “knowledge” = “help” = “agreement” = conspiracy.