Opinion Analysis: Questioning for a disciplinary purpose with no operational exigency required a rights warning in United States v. Ramos, No. 17-0143/CG
CAAF decided the Coast Guard case of United States v. Ramos, __ M.J. __, No. 17-0143/CG (CAAFlog case page) (link to slip op.), on Wednesday, July 19, 2017. The court finds that Coast Guard Investigative Service (CGIS) agents were required to give Article 31(b) rights, and that there was no immediate operational necessity justifying the failure to do so. Accordingly, the military judge erred in failing to suppress Ramos’ statement, and the Coast Guard CCA erred in affirming that ruling.
Chief Judge Erdmann writes for the court, joined by all but Judge Stucky who dissents.
CAAF granted review to determine:
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 convictions related to Ramos’ civilian wife’s efforts to start a business manufacturing marijuana under Washington State’s recreational marijuana law. Such a business, however, violates federal civil and military law. The business failed, and the wife’s business partner (named Hart) made threats. Ramos reported those threats to his chain of command and was then interviewed by CGIS. 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. Ramos then made statements that were admitted against him during his court-martial.
The military judge denied a defense motion to suppress, concluding that there was “no requirement to give Ramos his Article 31(b) rights because [the agent] was not conducting a law enforcement or disciplinary inquiry, but was instead focused on ‘force protection.'” Slip op. at 4. The Coast Guard CCA affirmed, concluding that “the agents’ questions were focused on identifying and mitigating the threat.” Id.
In today’s opinion a majority of CAAF rejects this conclusion, finding instead that this case presents “a classic ‘mixed purpose'” of both force protection and a disciplinary inquiry. Slip op. at 7. The majority then concludes that the circumstances of the questioning “reflect conduct that appears intentionally designed to evade Ramos’s codal rights in furtherance of a law enforcement investigation. ” Slip op. at 8. It also rejects the operational context exception, finding that “there was no immediate operational necessity that required the agents to forgo the Article 31(b) warnings.” Slip op. at 11. But CAAF only reverses Ramos’ conviction of making a false official statement because “Ramos has not challenged his convictions on the drug-related offenses.” Slip op. at 11.
Judge Stucky’s dissent reaches the opposite conclusion on the purpose of the interview, finding that it “was not done for a law enforcement or disciplinary purpose” and so no warning was required. Diss. op. at 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.
Interpreting this statute in 2014, CAAF explained 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 Coast Guard Appellate Government Division conceded that the first, third, and fourth factors are satisfied in Ramos. Slip op. at 5. Only the second factor is in issue. Chief Judge Erdmann explains 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.”
Slip op. at 6 (quoting Jones, 73 M.J. at 361). Sometimes, however, there are multiple reasons for questioning, and Chief Judge Erdmann notes that:
where there is a mixed purpose behind the questioning, the matter must be resolved on a case-by-case basis, looking at the totality of the circumstances, including whether the questioning was designed to evade the accused’s constitutional or codal rights.
Slip op. at 6 (quoting United States v. Cohen, 63 M.J. 45, 50 (C.A.A.F. 2006)). A footnote adds that the majority “reject[s] the notion, urged by the government and dissenting opinion, that the Cohen ‘mixed purpose’ analysis requires the ‘primary purpose’ of the questioners to be that of discipline or law enforcement.” Slip op. at 10 n.3. In other words discipline or law enforcement need only be one of the purposes of questioning.
The totality of the circumstances in this case reveal that the questioning was designed to evade Ramos’ rights for a disciplinary or law enforcement purpose. The majority finds that:
The military judge in this case declined to consider, or mention in his analysis, the critical testimony that the agents declined to advise Ramos of his Article 31(b) rights because, if they had, they “would have had to tell him what he was suspected of and then hoped he would have continued to talk.” The agents, instead, took notes of Ramos’s unwarned and incriminating statements, which later formed the basis for the false official statement charge. This testimony, when coupled with SA Stinson’s earlier testimony that the agents suspected Ramos of an UCMJ violation, reflects conduct that appears intentionally designed to evade Ramos’s codal rights in furtherance of a law enforcement investigation. Under these circumstances, absent any exceptions to Article 31(b), Ramos was entitled to be advised of his rights as soon as the agents suspected he had committed an offense under the UCMJ.
Slip op. at 8 (citation omitted).
As for the operational context exception, Chief Judge Erdmann explains that:
we have recognized that situations which involve an “operational context” may relieve law
enforcement from giving Article 31(b) rights where immediate operational issues are implicated. The facts of this case, however, fall far below the threshold of finding the type of circumstances that would warrant application of the “operational context” exception.
Slip op. at 9. Some of those facts include that Ramos waited until the day after receiving the threat to report it, that “the agents assessed that the danger was not immediate,” and that “after interviewing Ramos, the agents did not contact base security, but merely told Ramos to call 911 if there was an emergency. . .” Slip op. at 10-11.
Judge Stucky’s dissent sees the facts differently:
Under all of the facts and circumstances of this case, the CGIS agents were acting in a force-protection mode. They were trying to discover the extent of the business partnership to determine who, if anyone, represented a credible threat to Appellant, his wife, the Coast Guard installation, and its personnel. There is no evidence that the CGIS agents were using the questioning as a ruse to avoid advising Appellant of his Article 31(b) rights. In fact, they came to a point where they interrupted the interview to determine if it was then necessary to advise Appellant of his rights. I conclude that the military judge did not err in ruling that the CGIS interview with Appellant was not done for a law enforcement or disciplinary purpose and, therefore, Appellant’s false statement was admissible.
Diss. op. at 3.
CAAF remands for a sentence reassessment.
• CGCCA opinion (75 M.J. 936)
• Appellant’s brief
• Appellee’s (Coast Guard App. Gov’t Div.) brief
• Blog post: Argument preview
• Oral argument audio
• CAAF opinion
• Blog post: Opinion analysis