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).
Appellant’s brief focuses to the jurisdiction-conferring Articles 2 and 3 of the UCMJ (10 U.S.C. § 802 and 803) to argue that “the only reason Article 31(b) warnings are required is because the suspect is in danger of being tried before a court-martial.” App. Br. at 12. Article 2 defines numerous categories of persons who are subject to the UCMJ, and Appellant was not in one of those categories at the time he was questioned. But Article 3 allows the Government to recall a member of the IRR to active duty for the purpose of trial by court-martial for offenses committed while on active duty. Tying these two provisions together, Appellant asserts:
Nowhere does the legislative history of the Article 3 amendments suggest that IRR service members be deprived of their Article 31(b) rights, or any other rights under the UCMJ. Such a conclusion is illogical and conflicts with the integrated total-force concept envisioned by Congress. It is also irrational that Congress would see a need to further amend Articles 2 or 3 to ensure that Reservists, subject to punishment under the UCMJ, would be entitled to Article 31(b) protections when being questioned about suspected misconduct committed while on active duty or inactive-duty training. The reason is simple – a plain reading of Article 31(b) does not exclude Reservists from its protections. Moreover, it is illogical to separate Articles 2 and 3, as the Government attempted to do in Willenbring [v. Neurauter, 48 M.J. 152 (C.A.A.F. 1998)]. This Court should do the same with the lower court’s current attempt.
App. Br. at 16.
Appellant’s brief also attempts to chip away at CAAF’s precedent that limits application of Article 31(b) to situations where “a reasonable person in the accused’s position would feel compelled to reply to questions.” See, e.g., Jones, 73 M.J. 357, __ n.5, slip op. at 11 n.5. The NMCCA concluded that:
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.
Gilbreath, slip op. at 6. But Appellant asserts that the court should have applied the plain language of the statute:
Articles 2, 3, and 31(b), when read together, do not ask military courts to examine whether there is a coercive military environment. Rather, they do two things. First, they impose an obligation on persons subject to the UCMJ who want to ask questions about alleged misconduct punishable under the Code. And second, they afford rights warnings to those who may be prosecuted at a court-martial. The underlying policy justification is because of the military’s unique environment where persons subject to the UCMJ could believe they are required to answer questions. Military courts cannot use the underlying trait of the “coercive military environment” as a justification to replace the plain language of the statute. The role of the judiciary is to “apply the statute as written – even if [it] thinks some other approach might accor[d] with good policy.”
App. Br. at 21.
Appellant’s brief provides some key facts to set up this argument, illustrating the many ways that either Sergeant Muratori was actually acting in an official law enforcement or disciplinary capacity or that a reasonable person in Appellant’s position would consider the Sergeant to have been acting in such a capacity (i.e., the investigation). These facts appear to easily satisfy both prongs of the disjunctive test from Jones, meaning that Article 31(b) applies unless the court finds some reason to deny its application.
But the granted issues really give CAAF two reasons to deny application of Article 31(b) in this; either by Appellant’s status in the IRR or by the application of judicial discretion. As Judge Ryan stated in CAAF’s unanimous decision in Jones:
Judicial discretion indicates a necessity for denying [Article 31(b)’s] application to a situation not considered by its framers, and wholly unrelated to the reasons for its creation.
Jones, 73 M.J. 357, __ n.5, slip op. at 11 n.5 (quoting United States v. Gibson, 14 C.M.R. 164, 170 (1954)).
However, the Government’s response doesn’t concede that Sergeant Muratori was acting or reasonably could have been considered to have been acting in an official law enforcement or disciplinary capacity. Highlighting the military judge’s factual findings that the Sergeant’s investigation “was initially considered merely a routine paperwork discrepancy,” the Government’s brief emphasizes the difference between official questions and law enforcement or disciplinary questions:
Asking questions in an official capacity does not necessarily equate to acting in a disciplinary or law enforcement capacity. In Loukas, a crew chief asked a junior crew member questions about drug use when he observed erratic behavior. Loukas, 29 M.J. at 386. The questioning did not require Article 31(b) warnings because it was not for law enforcement or disciplinary purposes, rather to meet his in flight operational responsibilities. Loukas, 29 M.J. at 387. Similarly, in Bradley, questions from a military superior about the status of a security clearance were for an administrative purpose, not a criminal investigation purpose, therefore no Article 31(b) warnings were required. Bradley, 51 M.J. at 441.
Gov’t Br. at 25-26. The Government also asserts that no reasonable person would have thought the Sergeant to be acting in a law enforcement or disciplinary capacity when he questioned Appellant:
Here, the similarly situated fully informed reasonable person brings a great deal of knowledge to bear. This reasonable person knows Sgt Muratori personally and professionally. (J.A. 153-55, 170.) This reasonable person understands the scope of Sgt Muratori’s military responsibilities. The fully informed reasonable person knows Sgt Muratori has no official law enforcement responsibilities. The fully informed reasonable person knows Sgt Muratori has no disciplinary authority in general, because he is neither a commander nor an officer in charge. Further, the reasonable person understands Sgt Muratori lacks the authority to give a member of the Individual Ready Reserve any order. The fully informed, similarly situated member of the Individual Ready Reserves would not perceive Sgt Muratori to have been acting in an official law enforcement or disciplinary capacity. As such, no Article 31(b) warnings were due here.
Gov’t Br. at 30-31.
As for the application of Article 31(b) to members of the IRR, the Government asserts that “the rationale underlying the requirement to provide Article 31(b) warnings is inapplicable where no special inherent pressure or coercion exists,” Gov’t Br. at 11-12, and it concludes that:
Here, and for any member of the Individual Ready Reserve, no pressure could result from military rank, duty, or similar relationship. The only order Appellant was subject to was an involuntary recall to active duty issued by the Secretary of the Navy. 10 U.S.C. §§ 802(d)(2)(a), 12302. Sgt Muratori was incapable of issuing the only order Appellant remained subject to. Furthermore, the United States is unaware of any action — except refusal to return to active duty — that Appellant could be punished for or receive nonjudicial punishment under Article 15.
Thus Appellant faced no coercive pressure from the rank held by his questioner who lacked any authority over him.
Gov’t Br. at 12-13.
In a lengthy reply brief Appellant disputes many of the Government’s conclusions about the facts and argues that the “the Government misunderstands the pressure required to trigger a rights advisement under Article 31(b), UMCJ.” Reply Br. at 3. Appellant also argues an interesting agency theory:
Finally, the Government’s Answer ignores the basics of agency law. The Government is correct that Cpl Gilbreath was subject to involuntary recall to active-duty. But it is wrong to claim that because Sgt Muratori could not issue that order, that no pressure existed or could exist. While only the Secretary of the Navy or an active-duty general court-martial convening authority could involuntarily recall Cpl Gilbreath, Sgt Muratori is still their agent. He addressed Cpl Gilbreath in that capacity, and he can transmit information to either of them. He questioned Cpl Gilbreath on their behalf.
The irony of the Government’s position is that agency theory is contemplated in administering rights warnings under Article 31(b), UCMJ. In Military Rule of Evidence (M.R.E.) 305, a “person subject to the Code includes a person acting as a knowing agent of a military unit or a person subject to the Code.” The Military Rules of Evidence (absent a pretext conversation where no pressure could objectively be perceived) do not allow the Government to escape from agency principles. This Court should not allow the Government to evade agency principles by claiming Cpl Gilbreath felt no pressure because his questioner was not the Secretary of the Navy or the Commanding General of the 1st Marine Division.
Reply Br. at 9-10.
CAAF’s decision in this case might address the relatively-rare situation where an inactive member of the IRR is questioned about a possible offense, or it might address the broad question of exactly what situations are deserving of the protections of Article 31(b). But regardless of the court’s focus, I think its decision in this case will be a significant precedent.
• NMCCA opinion
• Blog post: NMCCA finds that Article 31(b) does not apply to inactive reservists
• Appellant’s brief
• Appellee’s (Government) brief
• Appellant’s reply brief
• Blog post: Argument preview