CAAF decided the Army case of United States v. Lewis, 78 M.J. 447, No.19-0109/AR (CAAFlog case page) (link to slip op.), on Thursday, May 30, 2019. In this interlocutory appeal of a military judge’s ruling that suppressed three statements made by the accused, CAAF affirms the decision of the Army CCA that reversed the military judge’s ruling as to the third (and most damaging) statement, allowing its admission into evidence at the accused’s court-martial.

Chief Judge Stucky writes for all but Judge Ryan, who concurs with the majority’s opinion in full but writes separately in order to express skepticism about CAAF’s jurisdiction to grant an accused’s petition for review of a prosecution interlocutory appeal.

CAAF granted review of one issue:

Whether the military judge abused his discretion when he suppressed SPC Lewis’s third statement as involuntary under Military Rule of Evidence 304.

Specialist (E-4) Lewis is charged with the sexual assault of a child and faces trial by general court-martial. Prior to being charged, Lewis was interrogated by Army criminal investigators on three occasions. On the first occasion the lead investigator – identified in the opinion as Investigator Lizivette Delgado, even though she “has since changed her last name,” slip op. at 3 n.3 – deliberately did not give Lewis the mandatory rights advisory because she “feared that [Lewis] might invoke his Article 31(b) rights if she brought them to his attention.” Slip op. at 3-4 (citation omitted). Lewis made some admissions during that first interrogation. One month later he was interrogated again but by a different agent who promptly gave a rights warning. Lewis waived his rights and made more admissions. Finally, one month after the second interrogation Lewis was interrogated by a third agent, warned about his rights, waived his rights, agreed to take a polygraph examination, and:

became “overwhelmingly sad and then admitted to penetrating Miss ZC’s vagina with his finger after she had told him no.” He stated he had done this in an attempt to convince Miss ZC to have sex with him.

Slip op. at 5 (quoting United States v. Lewis, 78 M.J. 602, 608 (A. Ct. Crim. App. 2018)).

Lewis moved to suppress the fruits of all three interrogations at trial and the military judge agreed, concluding that the prosecution failed to prove that any of Lewis’ statements were voluntary. The prosecution appealed that ruling under Article 62 for the second and third interrogations, and the Army CCA agreed in part. The CCA affirmed the suppression of the second interrogation but reversed the suppression of the third interrogation, concluding that the military judge made an erroneous finding of fact and applied the wrong law. Lewis then petitioned CAAF for review of that decision.

Chief Judge Stucky’s opinion conducts a necessarily fact-specific analysis of the issue to reach the same conclusions as the Army court: The military judge made a clearly-erroneous finding of fact (regarding whether Lewis suffered from adjustment disorder at the time of the third interrogation based on a diagnosis of that condition six months after the interrogation), slip op. at 10-11, and the military judge “erred by failing to distinguish between the three interrogations,” slip op. at 13. Accordingly, CAAF holds that the suppression of the fruits of the third interrogation was an abuse of discretion.

Judge Ryan’s separate opinion poses no challenge to Chief Judge Stucky’s decision in this particular case, however it lobs a firebomb into CAAF’s jurisprudence involving interlocutory appeals. She writes:

I write separately only to express my skepticism that an accused may permissibly appeal an adverse ruling of a Court of Criminal Appeals (CCA) where the case came before the CCA as an interlocutory appeal by the government under Article 62, UCMJ, 10 U.S.C. § 862. I fully recognize that this Court has long considered petitions in this posture without question, even rarely granting and deciding cases in favor of the accused. See, e.g., United States v. Mangahas, 77 M.J. 220 (C.A.A.F. 2018). Nevertheless, this practice runs contrary to the well-established principles guiding criminal appeals.

. . . We should therefore be hesitant to extend the purview of interlocutory appeals under Article 62, UCMJ, absent compelling justification.

Con. op. at 1. What follows is a truncated analysis of Article 62 (that authorizes interlocutory appeals by the prosecution only “under the strict requirements specified by Congress,” con. op. at 4) and the observation that “there is no reason Article 62, UCMJ, must or should be read to give an accused the opportunity to appeal.” Con. op. at 2.

Judge Ryan’s belief that Article 62 should be read narrowly is nothing new; she authored a dissenting opinion in United States v. Lopez de Victoria, 66 M.J. 67 (C.A.A.F. 2008), that concluded that CAAF lacked jurisdiction to review any interlocutory appeal. Her decision to question the court’s jurisdiction in this case, however, where the Gov’t Division’s brief conceded that the court has jurisdiction (and the Division was not asked about that concession during oral argument), is hard to understand in light of recent events. Specifically, just 15 months ago, in United States v. Mangahas, 77 M.J. 220 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page), CAAF not only granted review of an accused’s petition in an interlocutory case, but it decided the case in favor of the accused on an issue other than the one specified in the original grant and presented at oral argument. CAAF’s decision in Mangahas was a surprising reversal of decades of precedent, had an immediate effect on a number of relatively high-profile cases, and was the #3 Military Justice Story of 2018.

The author of that unanimous opinion? Judge Ryan.

Furthermore, Judge Ryan belittles CAAF’s decision to grant review:

This case is a perfect example of needless delay and interruption. There is no colorable claim that Appellant was entitled to relief, as the CCA clearly explained. We nonetheless interrupted the trial—at which Appellant may still yet be acquitted—for an additional period of time only to conclude that the CCA was precisely correct.

Con. op. at 4-5 (emphasis added). CAAF has discretionary jurisdiction and it rejects the vast majority of petitions for review. The court rejects so many petitions that it didn’t fill its oral argument calendar this term. Or last term. Or the term before that. Yet it granted review in this case. Judge Ryan’s castigation of this appeal as “a perfect example of needless delay and interruption,” and as presenting “no colorable claim” suggests that the court was either bamboozled into granting review, or that it granted review in this case – and maybe denied review in other cases – for the wrong reasons.

Case Links:
ACCA opinion (78 M.J. 602)
Appellant’s brief
Appelllee’s (Gov’t Div.) brief
Appellant’s reply brief
• Oral argument audio (wma)(mp3)
CAAF opinion
Blog post: Opinion analysis

One Response to “Opinion Analysis: CAAF affirms the partial reversal of a military judge’s suppression ruling, in United States v. Lewis”

  1. Vulture says:

    Judge Ryan’s better argument would be
    (c) In any case reviewed by it, the Court of Appeals for the Armed Forces may act only with respect to the findings and sentence as approved by the convening authority and as affirmed or set aside as incorrect in law by the Court of Criminal Appeals. 
    There are not findings, sentence, or act by the CA for the Court to take action on.  I am reminded of “Tombstone” when Powers Booth’s character says of Johnny Ringo, “I’d hate to see it when he takes over this gang.”