Argument Preview: The impact of the lawful (but unlawful) production of marijuana in United States v. Ramos, No. 17-0143/CG
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, __ M.J. __, __, 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.