CAAF decided the Army case of United States v. Jones, No. 14-0071/AR, 73 M.J. 357 (CAAFlog case page) (link to slip op.), on Monday, July 21, 2014. The court abrogates the subjective prong of the two-part Duga test for whether an Article 31(b) rights warning is required, replacing it with an objective test. The court then applies that test to the facts of the case and determines that the military judge’s ruling admitting Appellant’s confession was not clearly erroneous, affirming Appellant’s conviction and the decision of the Army CCA.

Judge Ryan writes for a unanimous court.

While deployed to Iraq in 2011, Appellant (a military policeman with the rank of Specialist (E-4)) participated in a robbery of an Iraqi businessman of over $380,000 in U.S. currency. Before the robbery, Appellant and his roommate (another military policeman named Carrasquillo whose conviction is also under review by CAAF (grant discussed here)) attempted to recruit then-Private First Class (E-3) Ellis into the conspiracy. Ellis was an augmentee military policeman who wore a military policeman’s uniform but had little formal training. Ellis thought the idea a joke, but when he later heard about the robbery (and was assigned to investigate it), he suspected Appellant and questioned him without first advising him of his right to remain silent under Article 31(b), UCMJ.

The questioning included the following exchange:

SPC Ellis: “Don’t play games with me . . . . Why’d you do it?”
Appellant: “What are you talking about?”
SPC Ellis: “Jones, don’t f’n play games with me.”
Appellant: “All right. We did it.”
SPC Ellis: “Who is we?”
Appellant: [No response]
SPC Ellis: “Where’s your roommate, Carrasquillo?”
Appellant: “I guess, he’s in the room.”

Slip op. at 5. Ellis reported what Appellant told him to his section leader. Appellant was eventually charged with the robbery. At trial he moved to suppress his statements to Ellis due to the fact that Ellis did not warn him about his right to remain silent in accordance with Article 31(b). “The Government responded in opposition to the motion and argued that SPC Ellis was not required to give Article 31(b), UCMJ, warnings because (1) SPC Ellis was not acting in an official capacity, and (2) SPC Ellis did not coerce Appellant.” Slip op. at 6. The military judge agreed with the Government, Ellis testified at trial, and Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of one specification each of conspiracy to commit burglary and burglary, in violation of Articles 81 and 129. Appellant was sentenced to confinement for two years and a bad-conduct discharge.

The Army CCA summarily affirmed Appellant’s convictions but CAAF granted review to determine:

Whether the military judge abused his discretion when he denied the defense’s motion to suppress appellant’s statement to the military police.

Judge Ryan answers that question in the negative, finding that “the military judge did not abuse his discretion in admitting Appellant’s statement, as [Ellis] was not acting in an official law enforcement or disciplinary capacity when he questioned Appellant.” Slip op. at 2-3.

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Audio of Wednesday’s oral argument in United States v. Jones, No. 14-0071/AR (CAAFlog case page) is available here.

Update: I haven’t been able to download the audio (it looks like CAAF’s server is timing out). If anyone is able to download it, please send it to me at zack@caaflog.com and I’ll mirror it on our server.

Second update: Audio available here.

CAAF will hear oral argument in the Army case of United States v. Jones, No. 14-0071/AR (CAAFlog case page), on Wednesday, April 9, 2014, at the Florida International University College of Law, Miami, Florida, beginning at 12:30 p.m. The court will review a single issue:

Whether the military judge abused his discretion when he denied the defense’s motion to suppress appellant’s statement to the military police.

Regular readers might recognize the facts of this case, as Appellant was convicted of burglary and conspiracy to commit burglary for his participation in the 2011 robbery of over $380,000 from an Iraqi businessman. One of Appellant’s co-conspirators was Specialist Carrasquillo, whose invocation of his right to remain silent was considered by the Army Court in a published opinion issued last November. United States v. Carrasquillo, 72 M.J. 850 (A.Ct.Crim.App. 2013) (link to slip op.). I discussed that opinion in a December post titled: The right to remain silent when the evidence of guilt is overwhelming.

Before the robbery, one of Appellant’s co-conspirators (Carrasquillo, actually, though Appellant was there too) attempted to recruit Specialist Ellis into the conspiracy. Specialist Ellis was an augmentee military police officer who wore a military policeman’s uniform but had little formal training. Ellis thought Carrasquillo was joking, but when Ellis later heard about the robbery (and was assigned to investigate it), he suspected Appellant and questioned him without first advising him of his right to remain silent under Article 31, UCMJ.

The questioning proceeded along these lines:

Question [Ellis]: Jones, don’t fucking lie to me, what the fuck happened and why the fuck did you do it.
Answer [Appellant]: I don’t know what your talking about we didn’t do anything.
Question: Don’t fucking lie to me tell me the truth?
Answer: Alright we did it!
Question: You did what exactly?
Answer: We went over there and robbed the guy with all the money.

App. Br. at 4-5. At trial, the military judge rejected a Defense motion to suppress this exchange due to the lack of a rights advisory, finding that “SPC Ellis was acting in an unofficial capacity and was not acting as a part of a law enforcement disciplinary investigation, and that [Appellant] did not perceive the questioning as more than a casual conversation between peers.” App. Br. at 6. The judge also concluded that Ellis did not suspect Appellant of the robbery at the time of the questioning, but was merely acting on “a hunch based from [sic] the previously solicitation.” App. Br. at 7. The statements to Ellis were admitted into evidence at trial, Appellant was convicted of the burglary and conspiracy, and Appellant was sentenced to confinement for two years and a bad-conduct discharge. The Army CCA summarily affirmed.

In his brief to CAAF, Appellant’s asserts that the military judge made three errors in denying the Defense motion to suppress:

(1) Concluding that Appellant was not a suspect within the meaning of Article 31 when he was questioned by Ellis;
(2) Concluding that the questioning was just a casual conversation and not an interrogation; and
(3) Concluding that Ellis was not acting in an official capacity at the time of the questioning.

Appellant must prevail in the analysis of each of these assertions of error if he stands a chance of relief, because a military policeman need not give a rights advisement when the accused isn’t yet a suspect (see United States v. Miller, 48 MJ 49, 54 (C.A.A.F. 1998)), and because Article 31(b) does not apply where the questioner is not acting in an official capacity or the person questioned does not perceive the inquiry as more than a casual conversation (see United States v. Duga, 10 MJ 206, 210 (C.M.A. 1981)).

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