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.

Military courts have long rejected a literal application of the language of Article 31(b), 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), overruled in part by Jones, 73 M.J. at 362. In this context, Chief Judge Baker’s analysis of this case begins with some shocking language:

Our analysis “begins with the language of the statute.”

Slip op. at 11 (quoting Leocal v. Ashcroft, 543 U.S. 1, 8 (2004)). One is tempted to respond with: “For Article 31(b)? Since when!” But the Chief Judge explains:

What is immediately apparent from a plain text reading is that Article 31(b), UCMJ, is a proscription that applies to the questioner. That is why our cases are primarily concerned with “the questioner’s status and the military context in which the questioning occurs.” Cohen, 63 M.J. at 49. Thus, the appropriate analysis works forward from whether the facts and circumstances require the questioner to comply with Article 31(b), UCMJ, not from the question of whether the suspect is entitled to Article 31(b), UCMJ, rights.

Slip op. at 12. And CAAF isn’t about to abandon its longstanding rejection of a literal application of the statute:

Further, this Court has recognized that “were these textual predicates applied literally, Article 31(b) would potentially have a comprehensive and unintended reach into all aspects of military life and mission.” Id. As a result, this Court does not interpret Article 31(b), UCMJ, to reach literal but absurd results, such as imposing a rights warning requirement in an operational context where it could impede success of the military mission. United States v. Loukas, 29 M.J. 385, 389 (C.M.A. 1990). Rather, this Court has long looked to the purposes behind the article to inform its contextual application.

Slip op. at 14-15. But when it comes to such a contextual application, CAAF finds that:

Congress intended Article 31(b), UCMJ, to address the subtle and not so subtle pressures that apply to military life and might cause members of the armed forces to feel compelled to self-incriminate. . . . In this regard, the CCA concluded that IRR members are “far removed in time and place from the coercive military environment contemplated by Congress,” and thus held as a matter of law that Article 31(b), UCMJ, does not apply to active duty military members questioning members of the IRR. Gilbreath, 2013 CCA LEXIS 954, at *10, 2013 WL 5978034, at *3. We disagree. The IRR can be every bit as “coercive,” or perhaps better put, respectful of military grade and rank as active duty service. This is evident when one considers the cultural knowledge of military service and does not just assume constructive knowledge of the law.

Slip op. at 15. Chief Judge Baker then explains his reference to “the cultural knowledge of military service” with a citation to this news report about the activation of members of the Individual Ready Reserve for service in Iraq in 2007, and with a quotation from a 1959 opinion by the Court of Military Appeals (CAAF’s predecessor court):

Therefore, a member of the IRR:

has not become a full-fledged civilian and his military status is such that he is in fact part and parcel of the armed services. . . . He is part of that body of men who [are] characterized as ready reserves, and he is subject to serve on active duty almost at the scratch of the Presidential pen. . .

United States v. Wheeler, 10 C.M.A. 646, 655, 28 C.M.R. 212, 221 (1959) (Latimer, J.) (plurality).

Slip op. at 16. And so CAAF concludes that:

Article 31(b), UCMJ, governs official questioning in the military justice system, and absent any statutory command to the contrary, an IRR member who is sufficiently integrated into the military to qualify for court-martial jurisdiction is sufficiently integrated so as to be entitled to the statutory protection of the article.

Slip op. at 17.

Having concluded that Article 31(b) applies to members of the Individual Ready Reserve, Chief Judge Baker turns to the application of Article 31(b) to the facts of this case. “Our task is to determine whether Sgt Muratori was acting in an official capacity, including law enforcement or disciplinary capacity, when he questioned Appellant, as distinct from acting in a manner that is ‘informal or personally motivated.'” Slip op. at 17 (quoting United States v. Brown, 40 M.J. 152, 154 (C.M.A. 1994)). On this issue, CAAF concludes that the military judge incorrectly concluded that the Sergeant was not acting in an official capacity:

The military judge in this case concluded that no rights warning was required, because “[Sgt] Muratori was attempting to clear up the discrepancy not get [Appellant] in trouble. The evidence demonstrated that [Appellant] perceived the conversation to be informal and that [Sgt] Muratori would attempt to resolve the issue on behalf of [Appellant] without command involvement.”

We disagree, and conclude that the military judge erred in reaching this conclusion. Sgt Muratori’s own preference to avoid the military justice system is not dispositive. As discussed below, the appropriate analysis looks objectively to the facts and circumstances of the questioning, not the suspect’s subjective perceptions. Jones, 73 M.J. at 362.

Slip op. at 18. Chief Judge Baker notes that the Sergeant was “acting at the direction of his superior commissioned officer,” that “he immediately reported the progress of the investigation to” his commanding officer, and that “he used elicitation tactics to discover more information than Appellant initially volunteered.” Slip op. at 19. These factors give the court “no doubt that Sgt Muratori ‘was acting or could reasonably be considered to be acting in an official lawenforcement or disciplinary capacity’ during the questioning.” Slip op. at 19 (quoting Jones, 73 M.J. at 362).

Chief Judge Baker also returns to the issue of culture and considers the context of an inquiry about a missing pistol. His opinion highlights that the Sergeant testified that “pretty much everybody is very quick to throw their hand up and say . . . I don’t want to deal with that because it’s such a serious deal,” and that Appellant’s brief to CAAF asserted that “there is no such thing as a casual discussion about a missing or stolen weapon in the Marine Corps.” Slip op. at 20.

These factors cause CAAF to conclude that:

Sgt Muratori’s questioning therefore falls within the scope of Article 31(b), UCMJ, and demonstrates the reason why Congress legislated in this area. Once Sgt Muratori suspected Appellant of committing larceny, he was required under Article 31(b), UCMJ, to advise him of his privilege against self-incrimination before pursuing further questioning.

Slip op. at 20 (citation omitted). CAAF also concludes that the failure to suppress Appellant’s statements to the Sergeant was not harmless because “the Government’s case derived from Appellant’s initial admission to Sgt Muratori. There was no other parallel chain of evidence.” Slip op. at 21. Accordingly, CAAF reverses the conviction and authorizes a rehearing.

At the very end of the opinion, Chief Judge Baker seems to predict that this will not be the last time CAAF considers the application of Article 31(b) to a reservist:

We hold that Article 31(b), UCMJ, 10 U.S.C. § 831(b) (2012), applies to active duty military members questioning members of the IRR; as a result, depending on the facts and circumstances of a particular case, an active duty military questioner may be required to warn an individual member of the Ready Reserve against self-incrimination. We further hold, applying the analysis from the United States v. Jones, 73 M.J. 357 (C.A.A.F. 2014), and United States v. Cohen, 63 M.J. 45 (C.A.A.F. 2006), line of cases, that such a warning was required in this case.

Slip op. at 22 (emphasis added).

Between this case and Jones, 2014 was a big year for Article 31(b) jurisprudence. But the concluding section of the Chief Judge’s opinion reveals that there is still the possibility to create new law in this area.

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
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

One Response to “Opinion Analysis: United States v. Gilbreath, No. 14-0322/MC”

  1. RKincaid3 (RK3PO) says:

    Excellent opinion!!  Let’s hear it for principled judicial construction based upon application of the statute’s actual OPERATIVE language.  How the trial court judge ever thought Art 31 didn’t apply to a questioner who clearly suspected Muratori of an offence is beyond me.
    Now, to undo several other bad precedents judicially “creating” exceptions to Art 31 where none exist under the statute’s plain language and which are essentially protection-eviscerating exceptions that largely swallow the rule.