United States v. Pipkin , 2003 CAAF LEXIS 635 ( 2003 )

UNITED STATES, Appellee
v.
Thomas S. PIPKIN, Senior Airman
U.S. Air Force, Appellant
No. 02-0837
Crim. App. No. 34585
________________________________________________________________
United States Court of Appeals for the Armed Forces
Argued April 2, 2003
Decided June 26, 2003
BAKER, J., delivered the opinion of the Court, in which CRAWFORD,
C.J., GIERKE, EFFRON, and ERDMANN, JJ., joined.
Counsel
For Appellant: Captain Jennifer K. Martwick (argued); Colonel
Beverly B. Knott and Major Terry L. McElyea (on brief).
For Appellee: Major John D. Douglas (argued); Colonel LeEllen
Coacher, Lieutenant Colonel Lance B. Sigmon, and Captain C.
Taylor Smith (on brief).
Amicus Curiae: Larry D. White (law student)(argued); John C.
Kunich, Esq. (supervising attorney) and Jon W. Shelburne, Esq.
(supervising attorney) - For the Roger Williams University,
Ralph R. Papitto School of Law, Armed Forces Law Student
Association.
Military Judge: James L. Flanary
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION
United States v. Pipkin, No. 02-0837/AF
Judge BAKER delivered the opinion of the Court.
Pursuant to mixed pleas, Appellant was convicted by a
general court-martial, composed of officer and enlisted members,
of conspiracy to distribute ecstasy, wrongful use of ecstasy and
wrongful use of marijuana, in violation of Articles 81, and
112a, Uniform Code of Military Justice [hereinafter UCMJ], 10
U.S.C. §§ 881, 912a (2000), respectively. The adjudged and
approved sentence included a bad-conduct discharge, confinement
for 18 months and reduction in grade to E-1. The Air Force
Court of Criminal Appeals affirmed in an unpublished opinion.
United States v. Pipkin, No. ACM 34585, slip op. (A.F. Ct. Crim.
App. June 6, 2002)(per curiam). We granted review on the
following issue:1
WHETHER THE MILITARY JUDGE ERRED BY NOT GRANTING
DEFENSE COUNSEL’S MOTION TO SUPPRESS APPELLANT’S
WRITTEN AND ORAL STATEMENTS TO OSI WHEN OSI DID NOT
TELL THE APPELLANT HE WAS UNDER INVESTIGATION FOR
CONSIPIRACY.
For the reasons that follow, we hold that the military
judge did not err.
FACTS
On July 31, 2000, Air Force Office of Special
Investigations (OSI) special agents (SAs) Hartwell and Ji
interviewed Airman First Class (A1C) Skinner about
1
Argument was heard in this case at the Roger Williams University, Ralph R.
Papitto School of Law, Bristol, Rhode Island, as part of this Court's Project
Outreach. See United States v. Allen, 34 M.J. 228, 229 n.1 (C.M.A. 1992).
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suspected drug use and distribution. During the interview, A1C
Skinner indicated that he had received money to purchase his
“working stock” of ecstasy from someone named “Shane.” He also
said that “Shane” was his former roommate.
On August 7, 2000, SAs Hartwell and Ji interviewed A1C
Ponder who told them that he had seen A1C Skinner’s stock of
approximately 300 ecstasy pills and that A1C Skinner told him
that “Shane” had provided half of the money to purchase it.
Through information obtained from an informant, the SAs learned
that Appellant, Senior Airman (SrA) Thomas Shane Pipkin, was the
individual referred to as “Shane” by A1C Skinner and A1C Ponder.
As a result, on August 14, 2000, the SAs brought Appellant and
his current roommate, SrA Georgianna in for interviews. While
SAs Hartwell and Ji interviewed Georgianna in one room, SAs
Ferrell and Dejong interviewed Appellant in another.
Before SA Ferrell and SA Dejong began the interview, they
read Appellant his rights under Article 31, UCMJ, 10 U.S.C. §
831 (2000), and, according to testimony from SA Ferrell,
informed him orally that he was being investigated for “use,
possession and distribution of controlled substances,”
violations of Article 112a. SA Ferrell also testified that he
explained to Appellant that “controlled substances means illegal
drugs, and [Appellant] acknowledged that he understood that.”
Appellant subsequently declined counsel, and agreed to answer
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questions. The SAs did not inform Appellant that they suspected
him of conspiracy to distribute a controlled substance under
Article 81. According to SA Ferrell, the first thing Appellant
was asked was whether he knew why he had been brought in for an
interview. SA Ferrell testified that “[Appellant] said, yes,
that it had to do with his former roommate, Jeff Skinner, and
that it must be about drugs.” Appellant was then asked whether
he had provided money to A1C Skinner for drugs and if he ever
used ecstasy or other illegal drugs. Appellant denied using
illegal drugs and said he loaned A1C Skinner approximately $600
to help him pay some bills. Appellant then agreed to make a
written statement. At this point, Appellant was provided an Air
Force Form 1168,2 which in block III indicates that Appellant was
advised that he was suspected of “a violation of Article 112a,
UCMJ, 10 U.S.C. § 934 (2000) wrongful use and possession of a
controlled substance.” Although citing to Article 112a, the
form does not cite to Article 81, nor indicate that Appellant
was suspected of distribution of a controlled substance, or
conspiracy to distribute drugs.
While Appellant was writing his statement, the SAs took a
break to confer with SAs Hartwell and Ji, who were interviewing
SrA Georgianna. SrA Georgianna had told the SAs that Appellant
once told him that he had given approximately $2,000 to A1C
2
This form is entitled, “STATEMENT OF SUSPECT/WITNESS/COMPLAINANT.”
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Skinner for the purpose of buying ecstasy. According to SrA
Georgianna, Appellant told him the ecstasy would be sold and a
profit would be returned to Appellant. The SAs then returned to
the interview room and confronted Appellant with the information
obtained from SrA Georgianna. Once confronted, Appellant
confirmed SrA Georgianna’s version of events and admitted that
he knew that A1C Skinner was going to buy ecstasy with the money
he loaned him. He also admitted that he anticipated he would
get his money back with an undisclosed profit. However,
Appellant said he had given A1C Skinner only $1,500 and not
$2,000. Appellant eventually executed a written statement to
this effect.
Appellant was subsequently charged with use of marijuana,
use of ecstasy and conspiracy to distribute ecstasy. At trial,
defense counsel moved to suppress Appellant’s oral and written
statements regarding the conspiracy. Counsel argued that the
SAs had provided Appellant with a defective Article 31 rights
advisement when they failed to inform him that, in addition to
being suspected of Article 112a, he was also suspected of
violating Article 81. The military judge denied the motion and
found, inter alia, that Appellant was fully oriented to the
nature of the allegations against him. He also found that
Appellant knew of A1C Skinner’s prior interview and “volunteered
that he was there partially . . . as a result of his
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acquaintance with Airman First Class Skinner, and had verbally
been told that he was suspected of distributing drugs.”
Thereafter, the statement was admitted on the charge of
conspiracy.
DISCUSSION
We review the denial of a motion to suppress a confession
for an abuse of discretion, and we leave a military judge’s
findings of fact undisturbed unless they are clearly erroneous.
United States v. Simpson, 54 M.J. 281, 283 (C.A.A.F. 2000).
Article 31(b) provides:
No person subject to this chapter may interrogate, or
request any statement from an accused or a person
suspected of an offense 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.
(Emphasis added.) This is not the first time that this Court has
examined the statutory language of this provision. In United
States v. Rice, 11 C.M.A. 524, 526, 29 C.M.R. 340, 342 (1960),
we concluded that “[i]t is not necessary to spell out the
details of his connection with the matter under inquiry with
technical nicety.” Moreover,
[a]dvice as to the nature of the charge need not be
spelled out with the particularity of a legally
sufficient specification; it is enough if, from what
is said and done, the accused knows the general nature
of the charge. A partial advice, considered in light
of the surrounding circumstances and the manifest
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knowledge of the accused, can be sufficient to satisfy
this requirement of Article 31[.]
United States v. Davis, 8 C.M.A. 196, 198, 24 C.M.R. 8, 10
(1957)(citations omitted). In our most recent case on the issue
we went further and concluded that:
[i]t is not necessary that an accused or suspect be
advised of each and every possible charge under
investigation, nor that the advice include the most
serious or any lesser-included charges being
investigated. Nevertheless, the accused or suspect
must be informed of the general nature of the
allegation, to include the area of suspicion that
focuses the person toward the circumstances
surrounding the event.
Simpson, 54 M.J. at 284.
In Simpson, OSI agents learned of allegations against the
appellant that he had sexually abused his 9-year-old neighbor.
The agents obtained search warrants that described the offenses
under investigation as failure to obey an order, assault,
indecent acts or liberties with a child, sodomy and rape.
Simpson was interviewed, and during his Article 31(b) rights
advisement, he was told that the matter for which he was being
investigated was indecent acts or liberties with a child.
Having lost the motion to suppress his confession at trial,
Simpson contended on appeal that the agent’s failure to advise
him of the known offenses in addition to indecent acts with a
child rendered the rights advisement deficient. This Court
alluded to possible factors that might be considered in
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determining whether the nature-of-the-accusation requirement was
satisfied. They included: whether the conduct is part of a
continuous sequence of events; whether the conduct was within
the frame of reference supplied by the warnings; or whether the
interrogator had previous knowledge of the unwarned offenses.
Id. The factors cited are not exhaustive, but are “among the
possible factors” to be considered. “[N]ecessarily, in
questions of this type, each case must turn on its own facts.”
United States v. Nitschke, 12 C.M.A. 489, 492, 31 C.M.R. 75, 78
(1961). Other factors might also bear on the application of
Article 31(b), including, as in this case, the complexity of the
offense at issue.
In this case, the military judge found that Appellant knew
he was being interrogated, in part, because of his relationship
to A1C Skinner. He also found that initially, Appellant
characterized the money he gave A1C Skinner as a loan for debts
and only later admitted that it was for the purchase of drugs.
This particular finding suggests that Appellant was aware that
the interview was going to focus on the financial aspect of his
relationship with A1C Skinner. Finally, the military judge
found that Appellant had been verbally informed that he was
suspected of drug distribution. Therefore, the area of
suspicion on which Appellant was focused at the time of the
warnings, and before any admissions, was A1C Skinner's suspected
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drug distribution and his own suspected complicity in the
distribution. At the outset of the interview, the SAs were not
required to identify each possible theory of accomplice
liability a prosecutor might later pursue. “The precision and
expertise of an attorney in informing an accused of the nature
of the accusation under Article 31 is not required.” Simpson,
54 M.J. at 284.
That being said, we pause for a moment to consider the
discrepancy between SA Ferrell’s testimony that Appellant was
orally warned that he was suspected of use, possession, and
distribution of controlled substances, and the Air Force Form
1168, which indicates only that the Appellant was informed that
he was suspected of use and possession of a controlled
substance. Clearly, a warning on distribution will better
orient a suspect to a suspicion of conspiracy to distribute than
a warning on use and possession alone. The Government has the
burden of establishing compliance with rights warning
requirements by a preponderance of the evidence. Id. at 283.
The military judge concluded that the Government had met its
burden in this case. The discrepancy between the oral warning
and rights advisement form is not enough to find the military
judge’s findings clearly erroneous. Appellant’s response to
investigators, that the interview had to do with his former
roommate (and conspirator) and drugs, makes it clear that he was
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oriented to the nature of the accusation. Thus, we hold that
the charged conspiracy was within the frame of reference
supplied by the warnings for the purposes of Article 31.
CONCLUSION
The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
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