In an unpublished opinion in United States v. Chatman, No. 20120494 (A.Ct.Crim.App. Jun 11, 2014) (link to slip op.), Chief Judge Glanville (the reserve counterpart to Chief Judge Pede) writes for a unanimous three-judge panel finding that the appellant’s statements to law enforcement agents were improperly admitted because they were the product of unlawful inducement or influence, or derivative of the same. As a result, the court dismisses the three specifications each of larceny and of burglary, of which the appellant was convicted contrary to his pleas of not guilty by a general court-martial composed of a military judge alone, and for which the appellant was sentenced to confinement for 14 months, reduction to E-1, and a bad-conduct discharge.
The charges arose out of a barracks larceny in which the appellant, who remained-behind while members of his unit participated in a field exercise, used a master key to burglarize the barracks rooms of three soldiers. One of the victims saw what he believed to be his stolen property in the appellant’s off-base residence, and alerted authorities. The appellant was brought in for questioning while his residence was searched (but no stolen property was found). The appellant was questioned on two occasions over the next 36 hours: First in the late-night hours of December 10, 2011, and second on December 12, 2011. A footnote “takes judicial notice of the fact that 10-12 December 2011 was a Saturday through Monday.” Slip op. at 16 n.10.
Portions of each of these interrogations were videotaped. The appellant made numerous incriminating statements, eventually confessing to the crimes. The confessions were offered into evidence at trial by the Government, and admitted by the military judge over Defense objection.
During both interrogations a military police officer identified only as Investigator E made numerous promises to the appellant. Early in the first interview, “Investigator E told the appellant, ‘I have a real big influence with the prosecutor as far as what happens to subjects.’” Slip op. at 3. Then, “after nearly an hour, Investigator E discussed how appellant would not be charged for simply possessing stolen property.” Slip op. at 3. Investigator E later left the room and purportedly spoke with the prosecutor, returning to coax admissions out of the appellant:
After further give and take, appellant told Investigator E that Carlos gained entry into the barracks rooms using a master key and appellant was simply holding the property for Carlos at his apartment. Upon hearing this, Investigator E advised appellant, in part, “[I]f you wouldn’t have told that [sh--] you were gonna get charged. . . . But now I’ve got something to go off of. So I’m gonna stay true to my word and I’m not gonna charge you. But there’s gonna be some conditions on that . . . . [Y]ou gotta cooperate with us, from here on out. . . . I mean you’re a part of this now, on our side. So you’re not gonna get [f---ed] with; aint gonna charge you.” Investigator E added, “[R]ight now you’re on my side. You went from being the person I was trying to get; now you’re on my side.”
At the close of the interview and after advising appellant again that he was not being charged, Investigator E placed limits on what appellant could do and who appellant could speak with. Investigator E told appellant: “I told you I was gonna work with you. I aint [bullsh---ing] you because you aint getting charged. . . . Be loyal to me and help us out with this investigation and we’ll – - I mean we’ll be loyal to you.” After telling appellant he was “gonna walk tonight,” Investigator E advised appellant that “there’s gonna be conditions on who you can talk to about this [sh--]. You can’t talk to anybody about this [sh--], nothing, this is it.” Investigator Echaracterized the discussions as “protected information.” Investigator E ended the interview by referencing the garrison commander and MPI’s influence over him, stating: “we report directly to the garrison commander, so, whatever we need to do to help you out, as long as you help us out, it can get done.”
Slip op. at 4. “Thirty-six hours after the initial MPI interview, appellant was back at the MPI office.” Slip op. at 5. The appellant was questioned by a new agent, Detective B. “Unlike Investigator E, Detective B did not promise appellant anything.” Slip op. at 5. But after the appellant made more admissions,
Investigator E entered the interview room, again making promises of no prosecution. This time, Investigator E promised not to prosecute whoever was currently holding the property for appellant. Subsequently, the focus of the discussions was the immediate retrieval of the stolen property.
Slip op. at 5. Soon after this, the appellant received a phone call and then the stolen property was returned to the appellant’s residence where it was identified by the victims. The appellant was then prosecuted at a general court-martial.
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