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.