Back in June, SCOTUS found no problem with concurrent service of appellate military judges on both a Court of Criminal Appeals (CCAs) and the Court of Military Commission Review (CMCR), in Ortiz v. United States, 585 U.S. __, No. 16-1423 (CAAFlog case page).

There were many trailer cases, including 167 court-martial appeals combined under Abdirahman, et al. v. United States, No. 17-206. One of those 167 appeals involved Air Force Lieutenant Colonel Michael Briggs, who was convicted of rape in 2014 for an offense that allegedly occurred in 2005. We noted the conviction in this post. The Air Force CCA affirmed in 2016 (link to slip op.). CAAF summarily affirmed in May, 2017.

But then CAAF decided United States v. Mangahas, 77 M.J. 220 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page), re-interpreting the statute of limitations for the offense of rape of an adult. Briggs promptly filed a supplemental brief (noted here) with SCOTUS seeing reversal on the separate basis that the military appellate courts should review his conviction in light of Mangahas.  The Solicitor General filed a response (noted here) that did not oppose remand to CAAF for that review.

In today’s order list, SCOTUS granted that review:

17-243 ABDIRAHMAN, LIBAN H. V. UNITED STATES

The petition for rehearing is granted. The order entered June 28, 2018, denying the petition for a writ of certiorari is vacated as to petitioner Michael Briggs. The petition for a writ of certiorari as to Michael Briggs is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Armed Forces for further consideration in light of United States v. Mangahas, 77 M. J. 220 (2018).

40 Responses to “SCOTUS remands an Ortiz trailer for review in light of Mangahas”

  1. David A. says:

    Wow!
     
    Was the statute of limitations defense raised at trial? Before the CCA it does not seem that it was.
     
    The background for the “pretext” phone call was not addressed in the CCA opinion, but seems to have been crucial to this conviction. “Pretext” seems to allude to a planned effort to obtain an admission of guilt. Who was involved in this planning episode?

  2. Nathan Freeburg says:

    David A.,
     
    Pretext calls and texts are indeed planned attempts to get an admission from a suspect. They are devised by law enforcement and usually involve the alleged victim. They are used by every police department in the U.S. and by every military service. Hundreds of times every day. Nothing unusual about them. With that said, I think they are very problematic under the 5th Amendment but the courts have disagreed. 
     
    If someone calls or texts you out of the blue and wrongfully accuses you of sexual assault, do not follow your first instinct to apologize and calm them down.  Deny and end the conversation.  
     

  3. stewie says:

    How do they violate the 5th Amendment?
    Are they being done while the suspect is in custody?

  4. DCGoneGalt says:

    If the pretext call us being done by someone subject to the UCMJ (active duty CID/CIS/OSI or an active duty victim) how do they not violate the plain words of Art 31.  Just because judges read what they think it ought to say, or that it codifies what has always been done, doesn’t change the words of the statute.  

  5. kf says:

    DCCG, 
     
    Freeberg probably meant Article 31, but Stewie honed in on his reference to the 5th Amendment, which offers less protection than Article 31 in that Article 31 does not require an accused to “be in custody.”
     
    In a pretext context, it is not enough to just hang up the phone if you are falsely accused of rape by a previous lover prior to being investigated.  You must deny it, otherwise, your silence and failure to respond to the false allegation could be admitted as an “admission by silence.”  See U.S. v. Ahern, ARMY 20130822, 2016 WL 4488148, at *4 (Army Crim. App. Aug. 24, 2016), review granted in part, (App. Armed Forces Nov. 17, 2016), and aff’d, 76 M.J. 194 (App. Armed Forces 2017); M.R.E. 304(a)(2).
     
    Of course, what I have seen more of is the accused “apologizing” perhaps because of the notion that because everyone in the miltiary, including the accused, has been trained to believe the accuser.  This concept is so pervasive that military law enforcement has stated to the JPP that:
     

    2. Investigators feel discouraged from asking sexual assault victims questions that might be seen as “confrontational.”
    Many senior investigators expressed a concern that they are no longer interviewing the victim in a manner that is best suited to eliciting all the facts and circumstances necessary to discover what occurred. The Subcommittee was told that investigators are now taught not to probe too deeply into the details of a sexual assault victim’s account. In addition, they are discouraged from “confronting” a complaining witness with aspects of his or her account that do not make logical sense or that conflict with other evidence, including the victim’s own inconsistent statements. The investigators stated that, when done appropriately, such questioning is not insensitive and indeed is a crucial investigative practice. As one senior agent explained, in investigative circles “confrontation” is a term of art and does not entail the hostility connoted by the common use of the word. A confrontational, or clarifying, interview involves questions that invite a witness to explain new or inconsistent evidence and statements. While it is clear from the site visits that the Services differ in their approach to this technique, MCIO training, internal practices, or both give many agents the impression that they have to accept the complainant’s account at face value, without thoroughly exploring discrepancies or seeking more detail in the complainant’s account. One MCIO investigator described being trained to investigate the sexual assault “that did happen” and not the possibility that it did not happen. This approach was problematic, the special agent implied, because it could lead them to overlook important facts and evidence, obscuring the reality of what had occurred. 
     

    So, when a Serviceman is confronted with a false sexual assault allegation, he knows that if an allegation is made to law enforcement, then he will be going to a Court-martial because, as AFTJAG said himself, “absent a smoking gun, victims are to be believed and their case referred to a court-martial.”  So sometimes, the falsely accused will apologize hoping that will satisfy the false accusers feeling of ‘victimhood’ and the allegation will not be formally made.  
     
    Some falsely accused might even think that what they did was a crime because of the training they received.  They might not know that they had a reasonable mistake of fact, but instead look at their action through the prism of the false accuser’s feelings.  And, the false accuser might not know she is making an allegation that fails to meet the elements of a crime or take into account her actions that gave the falsely accused a reasonable mistake of fact.  Because any reference to her actions is “victim blaming” or “slut shaming,” and training that infers she might be responsible on iota for sexual intercourse she subjectively believes is nonconsensual, but objectively is not, is certainly discouraged. 
     
    Likewise, I highly doubt that Servicemen are given any realistic training on how to address being falsely accused, nor how to avoid being falsely accused, i.e. no adultery, no MMF threesomes, no sex after the bar, no sex on the first date, exercise the baseball/steps to intercourse rule touching all the bases in order while allowing her to be the base coach, let her be your cowgirl, no BDSM, no sex with #metoo proclaimers, etc.  Sounds boring?  Well, you will better avoid getting falsely accused, and as an ancillary benefit, catching an STD. 
     
    And, the JPP report referencing concerns by the MCIO in getting to the truth of allegations should shock the conscience.  Whenever an allegation under Article 120 is made, then a crime has likely occurred under Article 120 or Article 134 (false swearing).  When the accused tells law enforcement that the false accuser is lying, then they are, likewise, reporting a crime, which MCIO admittedly has been trained to avoid investigating. 
     
    I love asking counterintuitive victim behavior experts, MCIO, and civilian forensic interviewers when they refer to the complaining witness as “the victim” on the stand, “If my client is being falsely accused and Ms. so and so is lying, then who would the victim be in this case?”  I’ve had one person immediately say, “Your client.”  Everyone else fumbles around that one simple question that shows the panel all the bias I need them to see.

  6. Alfonso Decimo says:

    DCGG – NCIS agents (except for a handful of USMC agents) are not subject to the UCMJ b/c they are civilians with an entirely civilian chain-of-command. However, for the others in your list, I see your point and I don’t know we reconcile Art. 31(b) with this practice. Except for this Art. 31(b) issue, it’s clearly lawful.

  7. DCGoneGalt says:

    Mr Decimo,
     
    We don’t reconcile it, we just treat the statute as if it says something other than what it says and press merrily on. 

  8. Philip D. Cave says:

    NCIS agents are not subject to the UCMJ, but they must still give 31s.  That’s embedded in case law for civilians, like the NEX store detective cases.

  9. David A. says:

    I began this inquiry because I wanted to spark discussion. It seems to me there is something unseemly about military law enforcement employing an agent to seek admissions from “a person suspected of an offense.” Art. 31(b). If you cannot do it by the front door, you should not be able to do it by a back door approach. Moreover, as I recall,  in the Briggs case the person making the pretext call (undoubtedly with law enforcement looking over her shoulder) was a “person subject to this chapter.” Art. 31(a) and (b). See also, Art. 31(d). Perhaps there is some exception somewhere in the Code or procedural rules, but I don’t find it in Art. 31.

  10. DCGoneGalt says:

    David A:  I’ll save everyone time, there is no exception for those subject to the Code other than the one imagined by judges, law enforcement officers, prosecutors, and government appellate counsel.

  11. stewie says:

    So query then. I can buy a fair argument being made that 31b, being more expansive, is implicated by pretext phone calls where a CID agent is basically inducing incriminating statements via a third party (usually the alleged victim). It’s a fair argument to make I think.
     
    How does this change if an alleged victim, on their own, makes a phone call accusing someone of sex assault (obviously recording it or having someone else listen in)? Does it matter if they are themselves “uniformed personnel subject to the code?” What if the AV outranks the accused? What if the AV is a civilian? (Obviously 31b wouldn’t apply in this case).
     
    Or does it matter that, in the classic pretext instituted by CID case, the accused has no reason to believe they are making a statement to authorities (CID), and thus there is not the coercive element present that A31b is designed to correct?
    So yes, it looks like a backdoor after the fact, but the fact that at the time the accused only perceives it as a complaint/communication with the alleged victim renders that not dispositive because what matters is the perception of/potential coercion on the accused?
     
    Point being, I can see the argument being made here, but I’m not sure it’s so clear cut as to say “I don’t know how this gets around A 31b.”  Because one can intellectually see how “it gets around the intent of A31b” and what it boils down to is how expansively or restrictively one wants to interpret said article.

  12. Wahoowa says:

    I wonder–how clear does the advisement have to be? I mean, if we assume the victim making the call is a uniformed service member, it seems like saying “You raped me” or “That was rape” is probably sufficient to say he’s been informed of the nature of the accusation. Could the victim also say something like “Forget it. You don’t have to admit it. You’re going to get court-martialed.” and meet the rest of the Art. 31(b) requirements?

  13. kf says:

    Might I recommend that everyone reads U.S. v. Jones, 73 M.J. 357, 363 (C.A.A.F. 2014)(“On balance, a suspect in Appellant’s position could not reasonably consider SPC Ellis to be acting in an official law enforcement or disciplinary capacity when he questioned him about the burglary.In light of these facts and circumstances, the military judge did not err in concluding that SPC Ellis was not acting in an official law enforcement capacity and did not abuse his discretion in admitting Appellant’s statement.”)  If Ellis did not violate Jones’ Article 31 rights, then I highly doubt C.A.A.F. would accept cert in the pretext Article 120 victim working with CID issue.

    And, don’t forget how A.C.C.A. wrote in a knowledge requirement that the Accused knew he was being investigated to M.R.E. 304(a)(2) in US v. Ahern.  Because you know “Section III of the Military Rules of Evidence has generally been treated in an exceptional manner reflecting both its purpose and creation.” U.S. v. Ahern, ARMY 20130822, 2016 WL 4488148, at *5 (Army Crim. App. Aug. 24, 2016), review granted in part, (App. Armed Forces Nov. 17, 2016), and aff’d, 76 M.J. 194 (App. Armed Forces 2017)
     
     

  14. David A. says:

    Statutes that are plain on their face need only be applied, not construed. “No person subject to this chapter,” means just that. The “plain meaning rule,” as expressed by SCOTUS, should control. Art. 31(a) and (c) use the word “compel,” Art. 31(b) does not. Art. 31(b) states, “No person subject to this chapter may . . . request any statement from . . . a person suspected of an offense without first informing him . . ..” Prior to making the “request” the suspect must “first be informed.” Moreover, Stewie, I don’t see an exception in Art. 31(b) for subterfuge. The specific purpose of a Pretext call is to elicit an admission or admissions from the “person suspected of an offense.” As Webster defines “request,” it is the act or an instance of asking for something.” As I view Art. 31(b), it does not matter whether the “asking for” occurs in an office or over the telephone. Nor does it matter whether the pretexter is superior or subordinate to the person receiving the pretext call. The evil sought to be combated by Art. 31(b) is subterfuge. I suppose in some instances the law enforcement interrogator is subordinate to the suspect. Art. 31(b) still applies. The same notion  should govern instances where law enforcement instructs an accuser on the questions to be asked, the demeanor to exemplify, the accusations to be made, how to place the telephone call, how the call is to be recorded, how to encourage further conversation with the suspect, and how to clarify the suspects statements, and then actively assists the accuser during the call and provides instructions during the call. I don’t see how working through an agent (the accuser) eliminates the “No person subject to this chapter” requirement. 
     
    And, Wahoowa, I think the answer is no. 

  15. DCGoneGalt says:

    Every time I ever brought this issue up I was told by highly intelligent people that I greatly respect that the statutory issue was irrelevant or it was a loser of an argument.  I may not be highly intelligent but I can read.  And that’s all I need to decide this issue.

  16. David A. says:

    KF, I don’t read Jones the way you do. In Jones, SPC Ellis was not law enforcement (“not an MP soldier”) and “was not permitted to . . . question suspects.” Jones was an ad hoc decision, and emphasizes the necessity for a thorough demonstration of all of the facts pertaining to the issue. The Court’s statement that whether Art. 31(b) is triggered “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.'” In Jones, there was “a total void of certain evidence concerning SPC Ellis’ rank, duty, or other relationship that might tend to show subtle pressure on [Appellant] to respond to the inquiry.” 
     
    In this discussion of pretext phone calls, the participation of law enforcement personnel is part and parcel of the call.
     
    In Ahern, civilian defense counsel waived all objections to the admission of the pretext phone calls. 

  17. stewie says:

    Granted, it’s been a tough week/day because my pet of over a decade is about to die soon barring a miracle treatment working, so I’m maybe a little bit cranky…but David A. saying “well this is clearly obvious and I don’t know why all the Courts and whatnot don’t see it this way” has never been a particularly effective argument.
     
    Doesn’t mean the courts are right, but as kf notes, if Jones came out the way it did, then a pretext case is less coercive.
     
    Again, yes we can talk about plain reading, but we also need to understand intent and purpose. The point of Art 31b is to address the possibility of coercion felt by military members when a person of authority asks them a potentially incriminating question. It’s not intended to be an anyone in uniform cannot ever ask anyone else in uniform an incriminating question. If PVT Snuffy asks SGT Jones “hey did you bust curfew last night?” and SGT Jones says yes (and PVT Snuffy isn’t an MP) then I don’t think A31b is remotely implicated. There’s no coercive force there. It’s simply an admission.
     
    So you have the balance between the lack of apparent coercion between an alleged victim and an accused in most cases (although one can come up with exceptions easily I think: what if you are accused of sexually assaulting your supervisor/leader/commander and then they ask you questions about it?)…
     
    and the subterfuge of it really being CID instigating via backdoor what they couldn’t get via the front door. It’s not clear or black and white to me.

  18. stewie says:

    “In Jones, there was “a total void of certain evidence concerning SPC Ellis’ rank, duty, or other relationship that might tend to show subtle pressure on [Appellant] to respond to the inquiry.”    In this discussion of pretext phone calls, the participation of law enforcement personnel is part and parcel of the call.”
     
    Yes, but being “part and parcel of the call” is no way known to the accused so there is no “evidence…to show subtle pressure on [the accused] to respond to the inquiry.”

  19. David A. says:

    Since law enforcement has elected to employ an agent to surreptitiously conduct the interrogation, the “accused’s” apprehension of subtle pressure should be imputed to the law enforcement agent, and it can be elicited from the “pretexter’s” demeanor, tone, hostility, threats, disagreement, reactions, persistence, etc. In agency law, the actions of the agent are the actions of the principal, here law enforcement. 

  20. stewie says:

    I mean that’s an argument but hard to see how that’s true. What’s the difference between a CID agent pretext call and say her bff saying girl you should get him to admit it on tape in demeanor, tone, persistence, etc
     
    What you are really advocating for is that his actual apprehension doesn’t matter to the analysis here.

  21. David A. says:

    Stewie, you are a Super Lawyer. When you move to suppress your clients unwarned confession, how do you establish his (or her) apprehension?

  22. stewie says:

    It usually involves an element that he was coerced because someone in authority violated Article 31b.
    That isn’t present here…so I’d be forced to make the argument you are making, that it doesn’t matter if he felt coerced or not, because the mere presence of CID in the mix taints the whole process.
     
    And we all know that argument will work about 0.00 percent of the time, give or take a 0.

  23. Alfonso Decimo says:

    Perhaps we should give the accused some credit and assume he knows LE (NCIS/CID) is listening and recording. In this current era, I think it’s reasonable to assume, based on common knowledge of this LE tactic, that a phone call like this one is at the behest of LE and is being recorded for evidentiary purposes. In motions, perhaps defense can put him on the stand for that limited purpose. Clearly, that would make the Art. 31b argument much stronger.

  24. stewie says:

    So, the accused knew that LE is listening and recording, but he talks anyways??
    And we should just “assume” that accused just “know” this now.
    This LE tactic has been going on for decades…it works because most accused DON’T assume it’s anything other than the AV. The accused almost never responds with, yes you are right, I did sexually assault and raped you. They respond in ways to try to comfort the AV or make her feel better “I am sorry, maybe I shouldn’t have had sex with you when you were so wasted” or “I should have known that you weren’t fully into it” or comments of that nature which pretty much does not indicate they think someone else is listening in.
     
    Is it possible? Sure. But assuming it? Come on man.

  25. Alfonso Decimo says:

    Stewie – Yes, it’s not reasonable to assume it, but it should be explored with the defense client. Thanks. – Alex

  26. Vulture says:

    Stewie.  A couple of weeks ago, for Isaac’s Scholarship Saturday, you “play(ed) the Devil’s advocate” to the assertion that it was not evidence, incriminating, or trigger for the purpose of the 5th Amendment to require SM to report arrest.  But looking at your argument here I don’t think that you where being the Devil’s Advocate.  You have an agenda.
     
    The 5th amendment doesn’t say “coerced.”

  27. stewie says:

    AD, I mean you literally said we should assume it in your first sentence but ok, sure, explore it.
     
    Vulture, if I were playing DA, I would say so. I have an opinion, not an “agenda.”
     
    The fifth amendment applies to pretext phone calls how? The fifth would allow the police to straight up ask a suspect directly so long as they aren’t in custody or other things that aren’t likely happening at the investigatory stage. So why would it allow that, but not allow a pretext phone call to a person walking around free?
     
    31b is broader. It DOES care about coercion. Thus, why we are talking about it.

  28. Alfonso Decimo says:

    Stewie – Yes, I meant to say, you were right and I was wrong about the assumption. Sorry. – AD

  29. IiamRonBurgundy? says:

    The literalist fantasy that some of you seem to be proposing is curious to me–that a victim can’t ask “what did you do to me?” without giving 31(b) warnings…or that a kid buying drugs, asking the dealer “hey, do you have any LSD?” has to give 31(b)’s for it to be later admissible…
    Ignoring entirely the absurdity of the position and accepting that fantasy though–clearly if we put that view into effect, 31(b) would be eviscerated by Congress about two weeks later, yes?  And in the rewrite, do you think the requirement to notify a suspect of what they’re suspected of would survive?
    Now, certainly some would argue that’s better legislative practice, but for those of you arguing the literalist view, you do understand that’s the outcome you’re essentially advocating?

  30. Vulture says:

    Stewie.
    When you say that a pretext, i.e. deception, isn’t playing the Devil’s Advocate, you have an agenda.  The line between complicity and cooperation isn’t one dimensional nor one color.  So I am not sure that I follow your attribute of 31b being broader.  The design of the 5th and other rights was to insure that society would not suffer intolerably for the purposes of law enforcement.  Article 31 may or may not achieve that end by further delineating coercion while leaving out deception.  I don’t see how your opinion serves either purpose, at least in the case of Gibbs.

  31. Vulture says:

    Sorry, Briggs.

  32. Vulture says:

    Fantasy?!  You arent’ just whistling Dixie.  It’s fantasy all right.  Here’s how fantasy it is:
     
    We haven’t heard from Tami in ages.  I have a theory.  She’s no longer Princess Leah, but had to change her name to Princess Arwen.  That because CAAFLog isn’t a galaxy far far away any more.  There are so many trolls around here that it’s Middle Earth.

  33. DCGoneGalt says:

    Let Congress eviscerate it.  They drafted it this way, they are free to change it.
     
    But it says what it says.  

  34. stewie says:

    investigators legally use deception all of the time. In multiple ways. Upheld repeatedly as lawful.
     
    31b IS broader. Are you kidding me? The entire intent of 31b was to address the reality that while a Soldier may not be in what counts as confinement for 5th Amendment purposes, there was nevertheless coercive force in the pressure of being questioned by a superior/someone with authority over them.
     
    NEITHER the 5th Amendment nor A31b address “deception.” The cops can tell you ten people saw you do it to get you to confess, and it’s ok. They can tell you that your co-accused just ratted you out when he didn’t. Now, defense counsel can use those deceptions to make the confession less reliable to a jury, but it’s a not a violation of the Constitution to do it.

  35. Nathan Freeburg says:

    This is what I get for typing on my phone between metro stops.  yes 31(b) but also the fifth amendment due process clause and I would argue (yes it’s whistling dixie past the courts) that deception can be a form of compulsion.
     
    Anyway, you’re all so old school.  It’s not pretext calls anymore.  It’s pretext texts.  If you’re 23 and a girl you hooked up with calls you instead of texting/snap, you already know that something is wrong.

  36. stewie says:

    I mean there’s a reason you are whistling past Dixie, because telling someone “you’re co-accused is ratting you out” is not a form of compulsion that is illegal compulsion…anymore than it is illegal compulsion for a cop to say, tell us in order to spare the victim’s family.
     
    That’s also compulsory, but so long as rights warning are given where required and whatnot, that kind of compulsion (moral compulsion) is just fine. The compulsion we make illegal and impermissible is the one where someone simply does not feel that they can not answer, whether because of being in custody for civilians or because of the coercion due to ordinarily being required to answer truthfully to a superior in the military.  We solve that with Miranda warning in the former, and rights warnings in the latter.  Deception, appeals to morality, appeals to a lesser sentence…those are all “compulsion” that we allow.

  37. Vulture says:

    Does a superior in the military have an interest in knowing whether a subordinate that was arrested committed a crime?  I only ask because I sure as hell know that superior has an agenda.
     
    You may be only expressing an opinion Stewie, but don’t be surprised if others aren’t convinced that morality cozies to deception.

  38. stewie says:

    If it makes you feel better to feel morally superior knock yourself out.

  39. Vulture says:

    Or, more delicately, “I don’t share your outrage.”

  40. stewie says:

    Nah, I’m going to stick with my first verbiage.