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.
Article 31(b) states:
No person subject to this chapter may interrogate, or request any statement from, an accused or a person suspected of an offense without first informing him of the nature of the accusation and advising him that he does not have to make any statement regarding the offense of which he is accused or suspected and that any statement made by him may be used as evidence against him in a trial by court-martial.
Military courts have long rejected a literal application of this language, finding instead that “the Article applies only to situations in which, because of military rank, duty, or other similar relationship, there might be subtle pressure on a suspect to respond to an inquiry.” United States v. Duga, 10 M.J. 206, 210 (C.M.A. 1981). In Duga, CAAF’s predecessor court determined that:
in each case it is necessary to determine whether (1) a questioner subject to the Code was acting in an official capacity in his inquiry or only had a personal motivation; and (2) whether the person questioned perceived that the inquiry involved more than a casual conversation. Unless both prerequisites are met, Article 31(b) does not apply.
Duga, 10 M.J. at 210 (citation omitted).
In the NMCCA’s consideration of Gilbreath, Chief Judge Modzelewski, joined by Senior Judge Mitchell, discusses Duga but finds:
The appellant contends that, as a member of the IRR, he should be afforded the protection of Article 31(b) when questioned about an offense for which he may later face trial by court-martial. That argument, however, is not supported by the legislative history of Article 31(b) or by case law. Instead, the circumstances here clearly demonstrate that the appellant was well outside the class of persons whom Congress sought to protect with the creation of Article 31(b).
As a member of the IRR, the appellant was far removed in time and place from the coercive military environment contemplated by Congress, in which he might respond to a question in the same way he was trained to respond to a command. . . .
If Congress created Article 31(b) as a precautionary measure, meant to counteract the implicit coercion of the military command structure, that precaution is unnecessary in these circumstances, in which the appellant was far removed from any military environment that might operate to deprive him of his free election to speak or to remain silent. In determining whether the protections of Article 31(b) extend to members of the IRR, who are themselves not subject to the UCMJ, judicial discretion indicates a necessity for denying its application to a situation not considered by its framers, and wholly unrelated to the reasons for its creation.
Slip op. at 6 (marks and citation omitted).
The third member of the panel, Judge Fischer, does not “find the appellant’s status as a member of the Individual Ready Reserve (IRR), in and of itself, dispositive on the issue of the applicability of Article 31.” Slip op. at 7. Instead, Judge Fischer applies the two-part Duga test to determine that the Sergeant was acting in a law enforcement or disciplinary capacity when he questioned Appellant, but that the conversation was “casual in the sense that, due to [the Sergeant] and the appellant’s personal relationship and the appellant’s status as being released from active duty and a member of the IRR, the conversation was devoid of any evidence of coercion based on military rank, duty, or other similar relationship.” Slip op. at 10 (marks and citation omitted). So Judge Fischer concurs in the majority’s ultimate decision affirming the trial judge’s rejection of Appellant’s motion to suppress.
Even if CAAF were to disagree with the majority’s categorical exclusion of Appellant from the protection of Article 31(b), Judge Fischer’s separate opinion seems pretty bulletproof, so I think it unlikely that this case gets more than summary consideration from CAAF. But the circumstances of the case are unusual enough that we’re not likely to see similar facts again any time soon.