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.

Case Links:
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

8 Responses to “Argument Preview: United States v. Gilbreath, No. 14-0322/MC”

  1. Sea Lawyer says:

    A significant case, indeed.  Two quick points.  First, Appellant’s policy argument regarding the “integrated total force concept envisioned by Congress” is a sound one.  We are one team, in one fight.  If Appellant is successful in placing himself in the same crowd as active duty personnel, it will be a good day for him.  
    Second, would application of the civil fiction, relation back doctrine, work in this context?  That doctrine essentially provides that anything done today will be treated as if it were done earlier.  In this case, the questioning of a member of the IRR for alleged misconduct committed while on active duty, particularly questioning prompted by his sergeant for a missing rifle, close-in-time to his separation from active duty, should relate back to the time when the suspect was on active duty.  For the government’s purposes, he already is subject to court-martial for this misconduct.  So it makes sense that the questioning here would relate back to a time when Appellant was subject to the code, thus affording him the protections of Article 31(b).
     

  2. Christian Deichert says:

    When I first read this case, I wasn’t convinced by the distinction of the IRR status, and though I’m a little more open to the concept, I’m still not entirely swayed.  If he’s subject to recall for prosecution, why would he not enjoy Article 31(b) protection against any questioning that might lead to such prosecution? 
     
    It’s also difficult to reconcile this:

    Asking questions in an official capacity does not necessarily equate to acting in a disciplinary or law enforcement capacity.

    with this:

    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.

  3. John O'Connor says:

    In some ways it pains me to say this (because I think it’s illogical), but members of the IRR have Article 31(b) rights unless someone decides that a member of the IRR does not qualify as a “person.”  That’s the way the statute is written. 

  4. RKincaid3 (RK3PO) says:

    I have said this before and will continue to say it: any case law which deviates from the plain language of the Congressional statute, when the plain language is clear on its face–is judicial legislating to cure defects in the statute that Congress should be fixing. If the statute’s plain language is too broad and prohibits the military from inquiring into allegations without a rights warning, then the courts should apply the statute as written–whatever the consequences which consequences should trigger any necessary reparative action by Congress.
     
    And, I am with mostly with J.O. for the following reasons:
     
    How on Earth is the appellant clearly

    “…well outside the class of persons whom Congress sought to protect with the creation of Article 31(b).”

    Just look at the plain language of Art 31:

    (a) No person subject to this chapter (“Sergeant Muratori”) may compel any person (“Appellant”) to incriminate himself or to answer any questions the answer to which may tend to incriminate him.
     
    (b) No person subject to this chapter (“Sergeant Muratori”) may interrogate, or request any statement from…a person suspected of an offense (“Appellant”) 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.
     
    (d) No statement obtained from any person (“Appellant”) in violation of this article….may be received in evidence against him in a trial by court-martial.

     
    Under the plain language, if the questioner is “subject to this chapter,” then no matter whom that person questions–be they military or civilian (and assuming that we as a society have in fact abandoned the ridiculous distinctions used by the Founders wherein the Constitution they drafted recognized the inane concept that “less” than a person actually exists, e.g., 3/5 of a person, etc.)–so long as the person being questioned is a real live “person,” if “they are or reasonably should” be a suspect, then that suspect cannot be compelled to answer incriminating questions.
     
    This is especially true where, as C.D. pointed out, the facts of this particular case show that the person subject to the chapter (“Sergeant Muratori”) clearly went out of his way to conceal from the Appellant that the questioning was related to his suspect status. All the discussion of the suspect’s status misses the primary point of the statute: does such maneuvering constitute pressure by a “person subject to the code” sufficient to “compel” a “person suspected of an offense” to incriminate himself in violation of Art 31?
     
    I would have preferred that, instead of going down the Jones, Duga, Loukas, Bradley, et al, roads of objectionable judicial legislating, the courts should have examined whether unlawful compulsion existed, which would be clearly contemplated by the statute’s plain language.  Such an approach would avoid the need to craft myriad tortured judicial exceptions which effectively destroy the protections afforded by the Article at issue–avoiding self-incrimination by compulsion–a core constitutional right protected by both Miranda and Art 31.  Indeed, our nation’s courts have been so creative with drawing distinctions and setting rules that in many cases now, the essential protections are non-existent so long as some subtle distinction can swallow the rule.  Instead of suspects getting “away” with crimes based upon “technicalities,” we now have government getting “away” with convictions by technicality to the detriment of the very rights in the constitution—effectively rendering the protections meaningless in practice.  Such a practice is hardly consistent with the concept of “limited government” established by the Constitution.  But that is another discussion altogether.
     
    The government correctly asserts that no lawful orders could be given by Sergeant Muratori to a civilian in the IRR, and correctly asserted that was not acting in a disciplinary capacity or as a law enforcement official while questioning Appellant.  As such, there was no legally binding military, disciplinary or law enforcement compulsion exerted over Appellant, but even if there was, he was on the phone and could have hung up at any time–thus terminating the interrogation.  Mind you, I am not confusing this with a Miranda inquiry involving law enforcement officials interrogating a civilian who is not in custody.  This is an Art 31 issue of a military member interrogating someone who is a suspect–if one sticks to the plain language of the statute–and the court’s challenge is to identify how the rule applies to the facts of the case.  It is not the court’s job to torture the rule to the facts of the case to achieve a preferable result.
     
    And make no mistake–it was an interrogation.  Sergeant Muratori was clearly seeking incriminating evidence.  And the Defense is correct that the only reason for the questions being asked, as established by the evidence, was to investigate the disappearance of military property–a weapon.  Thus, the line of questioning was certainly geared towards the person suspected of the offense of larceny of military property.
     
    Despite the mess made of Art 31 by a troublesome history of vexatious and needless judicial legislating to cure practical Congressional errors in drafting too strict a rule, a proper judicial application of the plain language of the statute requires finding that Art 31 applies to any person subject to the code (Sergeant Muratori) who is interrogating a suspect (Appellant)–whatever the suspect’s status.
     
    Applying that conclusion to this case leads one to finding that the Appellant, while clearly a suspect, regardless of his status, could have terminated the interrogating phone call at any time simply by hanging up.  Therefore, he was not compelled, as that term is used in the statute, to incriminate himself.  He voluntarily chose to do so when he didn’t have to.  And I am not arguing that there is a “custody” element to Art 31 as with Miranda–there clearly is not. 
     
    But I am advocating that the courts could have easily resolved this–and many other cases–without torturing the plain language of Art 31 in numerous prior cases.  They could have (and should) just stick with the statute’s plain language and apply it to the facts of each case.  And if in practice the rule drafted by Congress is too hard on the government in courtroom practice and key admissions/confessions are being lost, so be it.  It is simply NOT the court’s business to worry about the wisdom of legislative acts–only the legality of those legislative acts under the Constitution. 
     
    Where a statutory rule is unduly harsh in practice, the Congress can amend their statute to not be so harsh.  And it matters not–or should not matter–to the courts that Congress is generally, of late, utterly incapable of agreeing on anything long enough to amend their own statutes to fix the problems they have created when the statutes are applied to the real world.

  5. AF JAG says:

    @RKinkaid3–I agree with your assertion that rights advisement was required here (but only because there was personal jurisdiction over him within the meaning of Article 2(d), Article 3(a) and RCM 202, i.e. (1) that committed an offense while on active duty, and (2) would be in an active duty status by virtue of lawful recall to active duty from the IRR at the time of court-martial).  However, I disagree with your assertion that military members must Article 31 rights advise any person on earth, regardless of lack of military affiliation.
    Article 31 only requires a rights advisement when someone is “accused or suspected of an offense.”  I bold and highlight the word offense because “offense” is a term of art that means under an offense under the UCMJ.  THAT’s where the jurisdictional question under Article 2 and 3 come in because you can not commit an offense “Under the code” if you are not “subject to the Code.”
     
    So your “3/5 compromise” citation notwithstanding (enjoyed that one by the way, it’s not everyday that one invokes the old Article I, Section 2, paragraph 3 citation–thankfully wiped away by the 14th Amendment), every “person” is not entitled to Article 31 rights advisement.  It is only those “persons” who are capable of committing an offense under the Code.  That, in turn, does not include anyone who either did not commit an offense while in a military status, or is not subject to court-martial jurisdiction under Articles 2 or 3. 
     

  6. RKincaid3 (RK3PO) says:

    Ah, AF JAG:  Thanks very much for your thoughts!  
     
    Query:  since the government can assimilate other federal offenses “under the code” via Art 134, Clause 3, and as such, since a military questioner may in fact question just about everyone who might be a suspect under the code as amended by said assimilation, isn’t just about every person on Earth–literally–potentially subject to being “accused or suspected of committing an offense” under the UCMJ?
     
    As for your reference to Art 2(d), Article 2(a) clearly states that “[t]he following persons are subject to this chapter…” and then goes on to identify that the accused is clearly subject to “this chapter” via 2(d)(2)(A) for having committed an offense while on active duty.  But that just means that he can be recalled to active duty and court-martialed for the offense committed while on active duty.  There is nothing in that section which provides that one must be a person subject to that recall to active duty for prosecution to be entitled to the protections of Art 31.  Indeed, the plane language of Art 31 clearly states that the time one’s status under Art 2, as “a person subject to this chapter” is when they are the questioner–not the suspect.  How can that be?  Because the statute is silent on the “status” of the person being questioned is suspected of having committed an offense under the code.  
     
    As for your reference to Art 3(a), well, what a mess a legislative draftsmanship.  Art 3(a) provides, clearly that:

    a person who is in a status in which the person is subject to this chapter and who committed an offense against this chapter while formerly in a status in which the person was subject to this chapter is not relieved from amenability to the jurisdiction of this chapter for that offense by reason of a termination of that person’s former status. 

    Said in simple-speak, it states that one who was once “a person subject to this chapter” who committed an offense while they were subject to this chapter is still subject to criminal liability for their offense and may therefore be prosecuted even though their prior status as “a person subject to this chapter” has been terminated. 
     
    Read in conjunction with Art 2, it just means that they can be recalled to active due and prosecuted.  There is no language in there that requires that the recipient of Art 31’s protections must have any status whatsoever under the code.  Again, per the plain language of Art 31, only the questioner’s status as “a person under the code” matters–not the status of the person who is suspected of having committed an offense.
     
    And as for your reference to RCM 202 et seq, it simply outlines the JURISDICTION of the UCMJ over persons in appellant’s shoes to be recalled to active duty to be court-martialed.  But that was clearly already established by Articles 2 and 3.  And again, it only establishes, by the plain terms used therein, that the Appellant is “a person subject to this chapter” only for purposes of exercising jurisdiction, not as a condition precedent to benefiting from the protection of Art 31.
     
    So, I fail to see where it is written that the only people who can be “suspects” under the code are those who can actually be prosecuted.  Indeed, doesn’t the DoD “Titling” program–wherein MCIOs, via their Special Agents think, based upon “credible information,” that a civilian has committed an offense in violation of any federal or military law, even if that civilian is outside the military’s jurisdiction and cannot be court-martialed?  Yes, they do.
     
    In conclusion, I think, for whatever reason, many have confused/conflated two separate issues: whether there is UCMJ jurisdiction to prosecute and whether a suspect under Art 31 must be subject to the UCMJ to be protected by Art 31.  I simply do not see any guidance anywhere in the statute that requires the recipient of Art 31’s protections must be “a person subject to this chapter.”  And if the statute is clear and unambiguous on that point, there is no reason to consult outside sources to allow “elaboration” of the clear text of the statute.  
     
    I do believe that somewhere, somehow, someone (maybe a court) has in the past concluded that jurisdiction under the UCMJ is in fact a requirement before one can be entitled to the protections of Art 31, but it is certainly NOT in the plain language of the statute, and I therefore see it as a red herring that distracts from the important task of judicially interpreting the statute and applying it to the real world scenarios confronting military courts and service members worldwide.  And so, we have the mess that is Art 31 and the myriad, messy cases of precedent which have tortured the statute beyond it actually offering any substantive protections to a “suspect”–whatever their status under the UCMJ or their amenability to UCMJ jurisdiction.

  7. Brian lc says:

    Query: no.  Except, spying, and false enlistment and false separation.  You suspect someone of those offenses….readem 31b.
     

  8. RKincaid3 (RK3PO) says:

    So, Brian lc: you answer the query in the negative with some exceptions.  But doesn’t that “no” ignore the fact that arguably, one may be suspected of an offense even if they are not subject to UCMJ jurisdiction (if my thoughts a ove have any merit)?
     
    But then you agree that if one is suspected of the offenses you listed as exceptions to my query, that they then get the benefit of Art  31 protection, but not for other offenses?  
    Are you stating that you believe that one’s status under the code somehow drives whether they are entitled to Art 31 protections?  Why?  
     
    And doesn’t the proposition that only some offenses warrant applying Art 31 protection to persons who are suspect of certain offenses (but not others) despite not being “a peson subject to the code” confuse an already erratically interpreted and applied statute? 
     
    How does such an interpretation help an already burdened court system apply this rule to real world situations in the future?
     
    Just curious as to your thoughts and insight.