CAAF decided the Army case of United States v. Jones, No. 14-0071/AR, __ M.J. __ (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.