Audio of today’s oral arguments at CAAF is available at the following links:
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.
CAAF granted review in two cases yesterday. The first grant is in a case that was certified by the Judge Advocate General of the Air Force back in November (discussed here):
No. 17-0086/AF. United States, Appellant/Cross-Appellee v. Patrick Carter, Appellee/Cross-Appellant. CCA 38708. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:
I. THE AIR FORCE COURT OF CRIMINAL APPEALS DISMISSED THE CHARGE AND SPECIFICATIONS IN THIS CASE IN 2013 AND AGAIN IN 2016. BUT IT EXCEEDED THE EIGHTEEN-MONTH PRESUMPTION OF UNREASONABLE DELAY BEFORE DOING SO EACH TIME. HAS APPELLEE BEEN DENIED DUE PROCESS WHERE HE COMPLETED HIS SENTENCE TO THREE YEARS OF CONFINEMENT 158 DAYS BEFORE THIS COURT AFFIRMED THE LOWER COURT’S FIRST DISMISSAL OF THIS CASE ON AUGUST 2, 2013?
II. WHETHER APPELLEE’S PROSECUTION FOR CHILD ENDANGERMENT WAS BARRED BY THE STATUTE OF LIMITATIONS WHERE MORE THAN FIVE YEARS HAD ELAPSED AND APPELLEE WAS NOT BROUGHT TO TRIAL WITHIN 180 DAYS OF THIS COURT’S AFFIRMANCE OF THE LOWER COURT’S DISMISSAL OF THAT SPECIFICATION.
III. WHETHER UNITED STATES COURT OF MILITARY COMMISSION REVIEW JUDGE, MARTIN T. MITCHELL, WAS STATUTORILY AUTHORIZED TO SIT AS ONE OF THE AIR FORCE COURT OF CRIMINAL APPEALS JUDGES ON THE PANEL THAT DECIDED APPELLANT’S CASE.
IV. WHETHER JUDGE MARTIN T. MITCHELL’S SERVICE ON BOTH THE AIR FORCE COURT OF CRIMINAL APPEALS AND THE UNITED STATES COURT OF MILITARY COMMISSION REVIEW VIOLATED THE APPOINTMENTS CLAUSE GIVEN HIS STATUS AS A PRINCIPAL OFFICER ON THE UNITED STATES COURT OF MILITARY COMMISSION REVIEW.
V. WHETHER JUDGE MARTIN T. MITCHELL WAS IN FACT A PRINCIPAL OFFICER FOLLOWING HIS APPOINTMENT BY THE PRESIDENT TO THE UNITED STATES COURT OF MILITARY COMMISSION REVIEW IN LIGHT OF THE PROVISIONS OF 10 U.S.C. § 949b(b)(4)(C) AND (D), AUTHORIZING REASSIGNMENT OR WITHDRAWAL OF APPPELLATEMILITARY JUDGES SO APPOINTED BY THE SECRETARY OF DEFENSE OF HIS DESIGNEE.
Briefs will be filed under Rule 25 on Issues I and II only.
The second involves a specified issue in a Coast Guard case:
No. 17-0143/CG. U.S. v. Ernest M. Ramos. CCA 1418. On consideration of the petition for grant of review of the decision of the United States Coast Guard Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue specified by the Court:
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.
Briefs will be filed under Rule 25.
The Coast Guard CCA’s opinion is available here and reveals that:
On the morning of 8 April 2014, Appellant, stationed in Seattle, Washington, reported to his division officer that a civilian with whom his wife had a business had made threats against Appellant and his wife and had said he knew where Appellant worked. Appellant mentioned that the business involved recreational marijuana, but that his name was not on the paperwork of the business. Appellant’s division officer called upon his superior, the operations officer, to whom Appellant repeated his story. The operations officer called upon his superior, the executive officer, to whom Appellant repeated his story in the presence of the operations officer.
The executive officer took steps to notify security officials of the threat, including calling Coast Guard Investigative Service (CGIS). CGIS requested to talk with Appellant. Thereafter, Appellant was interviewed by CGIS agents, to whom he repeated his story with further details.
The military judge concluded, and the CCA affirmed, that the appellant’s interrogation by CGIS was not for a law enforcement or disciplinary purpose.