CAAFlog » September 2014 Term » United States v. Gilbreath

CAAF decided the Marine Corps case of United States v. Gilbreath, 74 M.J. 11, No. 14-0322/MC (CAAFlog case page) (link to slip op.), on Thursday, December 18, 2014. The court finds that the protections of Article 31(b) apply to members of the Individual Ready Reserve and that a rights warning was required under the facts of this case, reversing the decision of the Navy-Marine Corps CCA and the appellant’s conviction of larceny of a pistol.

Chief Judge Baker writes for a unanimous court.

CAAF reviewed two issues in this case (the first granted, the second specified by the court):

I. Whether Individual Ready Reservists, subject to punishment under the UCMJ, are entitled to the protections of Article 31(b) when questioned by senior service members about suspected misconduct committed on active duty.

II. Whether the military judge erred in concluding that Appellant’s statements were admissible under Article 31(b), UCMJ, and Military Rule of Evidence 305.

Appellant, a Corporal (E-4), was an inactive reservist who had completed his active duty service obligation in January 2011. However, prior to his discharge, Appellant stole a pistol from his unit’s armory where he served as a custodian. Sergeant (E-5) Muratori, who was Appellant’s former supervisor, friend, and roomate, was tasked with locating the missing pistol. The Sergeant contacted Appellant and asked about the pistol, and became suspicious that Appellant had the pistol when he heard Appellant’s answer. The Sergeant then directly asked Appellant if he had the pistol, and Appellant admitted that he did.

At no point did the Sergeant advise Appellant of his Article 31(b) right to remain silent.

Appellant was recalled to active duty for prosecution and charged with larceny of the pistol. His defense counsel moved to suppress his statements due to the lack of a rights warning. But the military judge denied the motion, finding that “Appellant was not subject to the UCMJ and thus not entitled to the added protections of Article 31(b),” and further that “Sgt Muratori was not acting in a law enforcement or disciplinary function, and therefore was not required to warn against self-incrimination.” Slip op. at 9-10 (marks omitted). Appellant was then convicted of the larceny, contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, and he was sentenced to reduction to E-1, total forfeitures, and a bad-conduct discharge.

On appeal, a three judge panel of the Navy-Marine Corps CCA unanimously affirmed. United States v. Gilbreath, No. 201200427 (N-M.Ct.Crim.App. Nov. 12, 2013) (link to unpub. op.). The court disagreed somewhat on the legal analysis, with one judge applying the Duga test (that was later abrogated by CAAF in United States v. Jones, 73 M.J. 357 (C.A.A.F. Jul. 21, 2104) (CAAFlog case page)) to find that a rights warning was not required because Appellant did not subjectively perceive the Sergeant’s questioning as involving more than a casual conversation. But the other two judges concluded that the legislative history of Article 31(b) and case law “clearly demonstrate that the appellant was well outside the class of persons whom Congress sought to protect with the creation of Article 31(b).” Gilbreath, No. 201200427, slip op. at 6. CAAF then granted review in June (about three weeks before publishing its decision in Jones).

In my argument preview in this case, I predicted that CAAF’s decision would be a significant precedent. Chief Judge Baker’s opinion for the unanimous court doesn’t disappoint.

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Audio of this week’s oral argument at Camp Lejeune in United States v. Gilbreath, No. 14-0322/MC (CAAFlog case page) is available at the following link: Oral argument audio.

CAAF will hear oral argument in the Marine Corps case of United States v. Gilbreath, No. 14-0322/MC (CAAFlog case page), on Wednesday, October 15, 2014. The argument will occur at Marine Corps Base Camp Lejeune, North Carolina, as part of CAAF’s Project Outreach. The case questions the Navy-Marine Corps CCA’s conclusion that Article 31(b) does not apply to inactive reservists, with two granted issues:

I. Whether individual ready reservists, subject to punishment under the UCMJ, are entitled to the protections of Article 31(b) when questioned by senior service members about suspected misconduct committed on active duty.

II. Whether the military judge erred in concluding that Appellant’s statements were admissible under Article 31(b), UCMJ, and Military Rule of Evidence 305.

Appellant, a Marine Corporal, completed his four-year active duty obligation in January 2011, was honorably discharged, and transferred to the individual ready reserve (IRR) for the remainder of his eight-year enlistment contract. Prior to his discharge he served as an armory custodian. After his discharge an inventory of the armory revealed that a pistol was missing.

Sergeant Muratori – who was Appellant’s pre-discharge supervisor – conducted an investigation into the missing pistol, interviewing witnesses and reviewing paperwork. App. Br. at 3. Based on the investigation and his knowledge of Appellant, the Sergeant suspected that Appellant stole the pistol. Id. So, the Sergeant:

ordered two of his Marines to call Cpl Gilbreath. He instructed them to contact him, but not to accuse him of anything or “put him on the defensive” so that Sgt Muratori he could “get as much information as he could” out of Cpl Gilbreath. After receiving multiple voice-mail messages, Cpl Gilbreath returned a call to one of Sgt Muratori’s Marines. During the phone call, Sgt Muratori took the phone and began questioning Cpl Gilbreath.

App. Br. at 3-4. Appellant made a number of incriminating admissions and eventually admitted that he had the pistol, and it was subsequently recovered. But Appellant was never advised of his Article 31(b) right to remain silent.

Appellant was then recalled to active duty and charged with larceny in violation of Article 121. He moved to suppress his statements based on the fact that he was not advised of his Article 31(b) rights, but the military judge denied the motion after concluding that Appellant was not entitled to the protections of Article 31(b) because he was a member of the IRR who was not on active duty and therefore not subject to the UCMJ at the time he made the statements, even though those statements were later used against Appellant at his trial. Appellant was then convicted of the larceny, contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, and he was sentenced to reduction to E-1, total forfeitures, and a bad-conduct discharge.

A three-judge panel of the NMCCA unanimously affirmed. United States v. Gilbreath, No. 201200427 (N-M.Ct.Crim.App. Nov. 12, 2013) (link to unpub. op.). The court disagreed somewhat on the legal analysis, with one judge applying the two-part Duga test (that was later abrogated by CAAF in United States v. Jones, 73 M.J. 357 (C.A.A.F. Jul. 21, 2104) (CAAFlog case page)) to find that “[A]ppellant did not perceive Sgt NM’s inquiry as involving more than a casual conversation.” Gilbreath, slip op. at 9 (Fischer, J. concurring). But the other two judges concluded that the legislative history of Article 31(b) and case law “clearly demonstrate that the appellant was well outside the class of persons whom Congress sought to protect with the creation of Article 31(b).” Id., slip op. at 6. CAAF then granted review in July (shortly before it issued its opinion in Jones).

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In addition to Jones (discussed here), CAAF granted review in two additional cases last week:

No. 14-0322/MC. U.S. v. Matthew A. GILBREATH. CCA 201200427. Review granted on the following issues:

I. WHETHER INDIVIDUAL READY RESERVISTS, SUBJECT TO PUNISHMENT UNDER THE UCMJ, ARE ENTITLED TO THE PROTECTIONS OF ARTICLE 31(b) WHEN QUESTIONED BY SENIOR SERVICE MEMBERS ABOUT SUSPECTED MISCONDUCT COMMITTED ON ACTIVE DUTY.

II. WHETHER THE MILITARY JUDGE ERRED IN CONCLUDING THAT APPELLANT’S STATEMENTS WERE ADMISSIBLE UNDER ARTICLE 31(b), UCMJ, AND MILITARY RULE OF EVIDENCE 305.

Briefs will be filed under Rule 25.

I analyzed the NMCCA’s decision in Gilbreath in a December, 2013, post titled: NMCCA finds that Article 31(b) does not apply to inactive reservists. I think CAAF’s grant is some evidence that United States v. Jones, No. 14-0071/AR (CAAFlog case page), is going to be a major decision about the application of Article 31(b) and the standard articulated in United States v. Duga, 10 M.J. 206, 210 (C.M.A. 1981).

No. 14-0415/AR. U.S. v. William E. NEWTON, Jr. CCA 20110499. Review granted on the following issue:

WHETHER THE SEX OFFENDER REGISTRATION AND NOTIFICATION ACT (SORNA), 18 U.S.C. SECTION 2250(a) (2006), APPLIED TO APPELLANT AS A RESULT OF EITHER THE ATTORNEY GENERAL’S 2007 INTERIM RULE OR HIS 2008 GUIDELINES. SEE, E.G., UNITED STATES v. LOTT, 750 F.3d 214 (2d Cir. 2014); UNITED STATES v. REYNOLDS, 710 F.3d 498 (3d Cir. 2013.)

Briefs will be filed under Rule 25.*

*  Judge Ohlson has recused himself from participation in this case.

I mentioned Newton back in January (in this post). The Army CCA’s opinion is available here. The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of four offenses: Rape of a child under the age of twelve years in violation of Article 120; indecent acts in violation of Article 120; wrongfully sending a picture of himself to his natural daughter, who was under eighteen years of age, focused on his genital area, showing an erection underneath his clothing in violation of Article 134; and knowingly failing to register as required by the Sex Offender Registration and Notification Act, 18 U.S.C. § 2052(a) in violation of Article 134. He was sentenced to confinement for 30 years, total forfeitures, and a dishonorable discharge. The convening authority reduced the term of confinement by one year.

The Government charged the 134 offenses in the conjunctive, alleging both prejudice to good order and discipline and conduct of a nature to bring discredit upon the armed forces. The members convicted the appellant as charged. On review the CCA noted that the Government presented no evidence that the conduct was prejudicial to good order and discipline, and found the Article 134 convictions legally and factually insufficient to sustain appellant’s convictions for conduct in violation of Clause 1 of Article 134, UCMJ.” Slip op. at 3. But it otherwise affirmed the convictions as service discrediting.

Judge Ohlson’s recusal in Newton is presumably due to his prior service with the Department of Justice.

In what I believe is a case of first impression, a three judge panel of the Navy-Marine Corps Court of Criminal Appeals split 2-1 in United States v. Gilbreath, No. 201200427 (N-M.Ct.Crim.App. Nov. 12, 2013) (link to unpub. op.), to find that a member of a reserve component not on active duty is not entitled to the protection of Article 31(b), which requires military personnel to warn those suspected of an offense of the right to remain silent.

Appellant, a Marine Corporal, completed his four-year active duty obligation in January 2011, was honorably discharged, and transferred to the individual ready reserve (IRR) for the remainder of his eight-year enlistment contract. Prior to his discharge he served as an armory custodian, and after his discharge an inventory of the armory revealed that a pistol was missing.

A Sergeant who was Appellant’s supervisor before his discharge called Appellant and explained that he was looking for the pistol. Appellant’s response made the Sergeant suspicious, and the Sergeant “used what could have been classified as an ‘aggressive’ tone with the appellant and told him that ‘people’s heads are on the line’ over the missing pistol. After a pause, the appellant admitted that he had the missing M1911 pistol, and the two men developed a plan for the appellant to return the weapon.” Slip op. at 3.

The Sergeant informed the unit’s Executive Officer (XO) of the plan, but the XO disagreed and contacted Appellant himself. The XO questioned Appellant, and Appellant again admitted that he had the pistol. The Naval Criminal Investigative Service was notified, and it eventually retrieved the weapon from Appellant’s civilian attorney. Appellant was then involuntarily recalled to active duty and charged with one specification of larceny in violation of Article 121, UCMJ. He was convicted, contrary to his plea of not guilty, by a general court-martial composed of officer and enlisted members, and sentenced to reduction to E-1, total forfeitures, and a bad-conduct discharge.

At no point did the Sergeant, the XO, or NCIS advise Appellant of a right to remain silent under Article 31(b). So, at trial, Appellant moved to suppress his statements. But the military judge denied Appellant’s motion, concluding that he was not entitled to the protection of Article 31(b) because he was a member of the IRR who was not on active duty and therefore not subject to the UCMJ at the time he made his statements that were later used against him at trial by court-martial for violation of the UCMJ.

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