United States v. Gilbreath , 74 M.J. 11 ( 2014 )

UNITED STATES, Appellee
v.
Michael B. GILBREATH, Corporal
U.S. Marine Corps, Appellant
No. 14-0322
Crim. App. No. 201200427
United States Court of Appeals for the Armed Forces
Argued October 15, 2014
Decided December 18, 2014
BAKER, C.J., delivered the opinion of the Court, in which
ERDMANN, STUCKY, RYAN, and OHLSON, JJ., joined.
Counsel
For Appellant: Major John J. Stephens, USMC (argued);
Lieutenant Jared A. Hernandez, JAGC, USN.
For Appellee: Lieutenant Ian D. MacLean, JAGC, USN (argued);
Colonel Mark K. Jamison, USMC, and Brian K. Keller, Esq. (on
brief); Colonel Stephen C. Newman, USMC, and Major Tracey L.
Holtshirley, USMC.
Military Judge: Stephen F. Keane
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Gilbreath, No. 14-0322/MC
Chief Judge BAKER delivered the opinion of the Court.
Contrary to his plea, a general court-martial composed of
officer and enlisted members convicted Appellant of larceny in
violation of Article 121, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 921 (2012). He was sentenced to a bad-
conduct discharge, forfeiture of all pay and allowances, and
reduction to the lowest enlisted grade. The convening authority
approved the sentence as adjudged, and the United States Navy-
Marine Corps Court of Criminal Appeals (CCA) affirmed. United
States v. Gilbreath, No. NMCCA 201200427, 2013 CCA LEXIS 954, at
*12, 2013 WL 5978034 at *4 (N-M. Ct. Crim. App. Nov. 12, 2013).1
On Appellant’s petition, we granted review of the following
issue:
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.
We also specified for review a second issue:
WHETHER THE MILITARY JUDGE ERRED IN CONCLUDING THAT
APPELLANT’S STATEMENTS WERE ADMISSIBLE UNDER ARTICLE 31(b),
UCMJ, AND MILITARY RULE OF EVIDENCE 305.
1
We heard oral argument in this case aboard United States Marine
Corps Base Camp Lejeune, North Carolina, as part of the Court’s
“Project Outreach.” See United States v. Mahoney, 58 M.J. 346,
347 n.1 (C.A.A.F. 2003). This practice was developed as part of
a public awareness program to demonstrate the operation of a
federal court of appeals and the military justice system.
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Appellant was serving in the Individual Ready Reserve (IRR)
at the time he was questioned by Sergeant (Sgt) Nicholas
Muratori regarding a pistol missing from the unit armory.
Appellant did not receive Article 31(b), UCMJ, 10 U.S.C.
§ 831(b) (2012), warnings. The questions presented in this case
are: Does Article 31(b), UCMJ, apply in the case of an active
duty military questioner interacting with a member of the IRR?
If so, were Article 31(b), UCMJ, warnings required in the
context presented in this case? The Government contends that
Article 31(b), UCMJ, cannot apply to the questioning of IRR
members by active duty military personnel because members of the
IRR are not subject to the UCMJ, as they are not listed within
Article 2, UCMJ, 10 U.S.C. § 802 (2012). Further, the
Government argues, members of the IRR are not subject to the
sorts of military pressures of grade and rank which Article
31(b), UCMJ, was intended to address.
We hold that the plain language of Article 31(b), UCMJ, as
informed by the legislative purpose behind the article, makes
the article applicable to members of the IRR. Further, in the
context of this case, Sgt Muratori’s questioning of Appellant
required an Article 31(b), UCMJ, rights advisement because it
involved “(1) a person subject to the UCMJ, (2) interrogat[ing]
or request[ing] any statement, (3) from an accused or person
suspected of an offense, and (4) the statements regard[ed] the
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United States v. Gilbreath, No. 14-0322/MC
offense of which the person questioned [was] accused or
suspected.” United States v. Jones, 73 M.J. 357, 361 (C.A.A.F.
2014) (footnotes omitted) (citing United States v. Cohen, 63
M.J. 45, 49 (C.A.A.F. 2006)). This is also a case in which “the
military questioner was acting or could reasonably be considered
to be acting in an official law-enforcement or disciplinary
capacity.” Id. Accordingly, we reverse.
BACKGROUND
Appellant enlisted in the Marine Corps in 2006 through the
Delayed Entry Program, began active duty service in 2007, and,
from June 2009 until the conclusion of his active duty service,
served as the armory custodian for Force Reconnaissance Company,
First Reconnaissance Battalion at Camp Pendleton, California.
Sgt Muratori served as the company training chief and
headquarters platoon sergeant for Force Company. Sgt Muratori
was always senior to Appellant during his active duty service,
and described himself as Appellant’s “superior.” Among other
things, Sgt Muratori testified that “if [Appellant] would have
[proficiency and conduct markings], I would be the one to
recommend [them].” Appellant was also friends with Sgt
Muratori. The two men shared a house off base along with their
wives.
In January 2011, Appellant left active duty to fulfill the
remainder of his service obligation as a member of the IRR.
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United States v. Gilbreath, No. 14-0322/MC
Having served four years on active duty, he had an additional
obligation of four years in the IRR. He returned home to
Oklahoma. Appellant was issued Department of Defense Form 214,
which advised him that he was released from active duty service
and that “[w]hile a member of the Marine Corps Reserve, you will
keep the Commanding General, MOBCOM . . . informed of any change
of address, marital status, number of dependents, civilian
employment, or physical standards. Subject to active duty
recall and/or annual screening.”
According to Sgt Muratori’s sworn statement, in May 2011,
Captain (Capt) John Collins -- the Executive Officer for Force
Company -- “spoke to [him] about the screwed up paperwork”
regarding an M1911 pistol. Sgt Muratori testified that “we did
not have the pistol and we were trying to find paperwork to
figure out where the pistol had gone.” According to the sworn
statement, on May 5, 2011, Capt Collins “told [him] to find out
about the paperwork screw up with the 1911.”2
Sgt Muratori began to look into the matter, and discovered
that the responsible platoon “hadn’t seen [the] weapon since
January 2010.” He decided that Appellant, who had served as
armory custodian at the time, “seemed like a logical person to
2
Capt Collins had deployed to Afghanistan at the time of trial,
and did not testify to clarify his exact words to Sgt Muratori.
Trial counsel phrased the conversation as Sgt Muratori being
“tasked to try to figure out what was going on with the
paperwork.”
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United States v. Gilbreath, No. 14-0322/MC
ask” about the pistol. Sgt Muratori then directed junior
Marines in the armory to telephone Appellant and “not to accuse
him of anything, just to ask if he had any situation awareness
on where the [pistol] might be. I didn’t want him to be on the
defensive.”
The junior Marines left a message for Appellant, who
returned the phone call. Lance Corporal Thomas Olson answered,
after which Sgt Muratori “took the phone and talked to
[Appellant.]” Without identifying which pistol from the armory
he was discussing, Sgt Muratori informed Appellant that a pistol
was missing and asked if he knew about it. Appellant
immediately knew which pistol Sgt Muratori was referencing, and
claimed that it “went up to Quantico to get destroyed.” Sgt
Muratori considered this response to be a “dead give away,”
asked Appellant “to shoot straight with [him],” and “asked him
where the 1911 was.” He told Appellant that “a lot of people’s
heads [were] on the line” because of the missing weapon.
At this point, Appellant came clean and told Sgt Muratori
that he knew where the pistol was -- he had it. Sgt Muratori
informed Appellant that the pistol would need to be returned.
He then immediately reported the substance of the conversation
to Capt Collins. Sgt Muratori called Appellant again and, at
the recommendation of Capt Collins, “told him that he should
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United States v. Gilbreath, No. 14-0322/MC
turn himself in.” Appellant then offered to return the pistol,
and reached an agreement with Sgt Muratori to do so.
Sgt Muratori again reported the conversation to Capt
Collins, and advised him that Appellant had agreed to resolve
the issue by returning the pistol. In response, Capt Collins
told Sgt Muratori that “the whole thing was going to be handled
another way.” Sgt Muratori then called Appellant once more,
informing him that there was nothing for either of them to do
except to “stand by.”
The Naval Criminal Investigative Service (NCIS) then
contacted Sgt Muratori “very quickly.” Sgt Muratori gave a
sworn statement, and was asked whether he would agree to “meet
up with [Appellant] and get the pistol back.” Sgt Muratori then
drove with NCIS special agents to an intended meeting spot in
Texas, during which time NCIS recorded additional phone calls
between Sgt Muratori and Appellant. During these phone calls,
Appellant was not informed of any law enforcement involvement,
and Sgt Muratori assured him that “I might have to talk to
Captain Collins . . . . Other than that, I won’t talk to
anybody.”
NCIS eventually became aware that Appellant had retained
counsel. The special agents “made the decision, at that point,
to go overt with the operation.” NCIS contacted Appellant, and
Appellant’s attorney -- now in possession of the pistol --
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United States v. Gilbreath, No. 14-0322/MC
contacted NCIS, offering to surrender the weapon. NCIS
retrieved the pistol, and the Secretary of the Navy approved the
Marine Corps’s request to involuntarily recall Appellant from
the IRR to active duty for purpose of court-martial pursuant to
Article 2, UCMJ, and Article 3, UCMJ, 10 U.S.C. § 803 (2012).
At no time was Appellant provided with Article 31(b), UCMJ,
warnings by Sgt Muratori or NCIS.
At trial, the defense moved to suppress “any statements of
the accused elicited in violation of his Article 31(b) rights
and the incriminating evidence derived from such statements.”
The defense motion cited this Court’s decisions, including
United States v. Swift, 53 M.J. 439 (C.A.A.F. 2000), to assert
that “[t]he case law and the legislative history of Article
31(b) reveal that [Appellant] deserves [its] protections.”
Quoting Swift, 53 M.J. at 445, the defense contended that
“Article 31(b) mandates rights warnings for anyone ‘suspected of
an offense’” under the UCMJ. Moreover, the defense asserted
that “the Marine Corps [is] famed for producing highly obedient
individuals who exercise immediate obedience to orders and
immediate response to questions, factors that likely would not
be lost a mere [four] months after the end of active service.”
Thus, Appellant argued that the matter should be resolved as any
other motion based on Article 31(b), UCMJ, arising in the
military justice system.
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United States v. Gilbreath, No. 14-0322/MC
The Government opposed the motion. At the threshold, the
Government contended that “members of the IRR may not invoke the
protections of Article 31(b), UCMJ.” In support of this
position, the Government cited United States v. Christian, 6
M.J. 624 (A.C.M.R. 1978), asserting that an individual “not
subject to the Uniform Code of Military Justice [under Articles
2 and 3] . . . could not invoke Article 31 thereof.” Id. at
625. The Government argued that “members of the IRR are immune
from the positional pressure that stems from an inquiry by a
senior officer,” and therefore not entitled to the protection of
Article 31(b), UCMJ. Finally, even if Appellant was entitled to
Article 31(b), UCMJ, rights as a general matter, in the
Government’s view, no rights warning was required in this case
because Sgt Muratori “was not engaged in a disciplinary
investigation,” and “once he established that the accused was in
possession of the pistol, his single line of inquiry involved
determining how the accused was going to return the weapon.”
The military judge accepted the Government’s argument and
denied Appellant relief. On the question of applying Article
31(b), UCMJ, to an IRR member, the military judge concluded that
Appellant “was not subject to the UCMJ and thus not entitled to
the added protections of Article 31(b).” Notwithstanding that
conclusion, the military judge also held that pursuant to United
States v. Duga, 10 M.J. 206 (C.M.A. 1981), “Sgt Muratori was not
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United States v. Gilbreath, No. 14-0322/MC
acting in a law enforcement or disciplinary function,” and
therefore was not required to warn against self-incrimination.
On appeal, a majority of the NMCCA concluded that “[r]ead
literally, Article 31(b) has a broad sweep, and would apply to
the situation at hand, as Sgt [Muratori] was clearly ‘a person
subject to this chapter’ and was requesting a statement from the
appellant, whom he suspected of an offense.” Gilbreath, 2013
CCA LEXIS 954, at *7-*8, 2013 WL 5978034, at *3. However, the
CCA also noted that taking into account the purposes of the
article, members of the IRR are “far removed in time and place
from the coercive military environment contemplated by
Congress,” and have only “attenuated” ties to military
authority. Id. at *10, 2013 WL 5978034, at *3. Therefore,
while the article might literally apply, the CCA concluded:
If Congress created Article 31(b) as “a precautionary
measure,” meant to counteract the implicit coercion of the
military command structure, that precaution is unnecessary
in these circumstances, in which the appellant was far
removed from any military environment that “might operate
to deprive [him] of his free election to speak or to remain
silent.” [United States v. Gibson, 3 C.M.A. 746, 754, 14
C.M.R. 164, 172 (1954.)] In determining whether the
protections of Article 31(b) extend to members of the IRR,
who are themselves not subject to the UCMJ, “[j]udicial
discretion indicates a necessity for denying its
application to a situation not considered by its framers,
and wholly unrelated to the reasons for its creation.” Id.
at 170. We eschew a literal application of Article 31(b)
and conclude that the military judge did not err in
determining that the appellant was not entitled to the
protections of Article 31(b).
10
United States v. Gilbreath, No. 14-0322/MC
Id. at *11-*12, 2013 WL 5978034, at *4 (first and third
alterations in original). Having reached that conclusion, the
lower court declined to address the specific facts of Sgt
Muratori’s questioning.3
DISCUSSION
THE GENERAL APPLICATION OF ARTICLE 31(b), UCMJ
The question of whether Article 31(b), UCMJ, applies in the
circumstance of an active duty servicemember questioning a
member of the IRR, as a question of law, is reviewed de novo.
See United States v. Watson, 71 M.J. 54, 56 (C.A.A.F. 2012)
(citation omitted) (“[W]here the issue appealed involves pure
questions of law, we utilize a de novo review.”).
Our analysis “begins with the language of the statute.”
Leocal v. Ashcroft, 543 U.S. 1, 8 (2004). Article 31(b), UCMJ,
reads:
No person subject to this chapter may interrogate, or
request any statement from, an accused or a person
3
Judge Fischer concurred in the result, finding that Appellant’s
status in the IRR was not dispositive. Gilbreath, 2013 CCA
LEXIS 954, at *12, 2013 WL 5978034, at *4 (Fischer, J.,
concurring in the result). Rather, Judge Fischer found that Sgt
Muratori was acting in an official law enforcement or
disciplinary capacity under the totality of the circumstances,
but Appellant did not subjectively perceive that he was doing so
pursuant to the second prong of Duga, 10 M.J. at 210 (applying a
subjective analysis), overruled in part by Jones, 73 M.J. at 362
(explicitly rejecting a subjective test). Therefore, applying
our prior case law without the benefit of Jones, Judge Fischer
found Appellant’s incriminatory statement to be admissible.
Gilbreath, 2013 CCA LEXIS 954, at *19-*20, 2013 WL 5978034,
at *6.
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United States v. Gilbreath, No. 14-0322/MC
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.
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. See, e.g., United
States v. Gardinier, 65 M.J. 60, 62 (C.A.A.F. 2007) (“A military
investigator who interviews a suspect must provide that suspect
with the statutorily required rights warnings under Article
31(b), UCMJ.”).
The enactment of Article 31(b), UCMJ, “reflect[ed] a
decision by the post-World War II Congress -- which included
many veterans familiar with the military justice system and its
relationship to military missions and operational requirements -
- that the unique circumstances of military service required
specific statutory protections for members of the Armed Forces.”
Swift, 53 M.J. at 445. As illustrated by the testimony of Mr.
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United States v. Gilbreath, No. 14-0322/MC
Felix Larkin, Associate General Counsel for the Department of
Defense, the drafters of Article 31(b), UCMJ, understood that
they were writing law to govern the questioning of suspects
within the military justice system, and enacting a proscription
that applies against the questioner:
[Article 31(b), UCMJ,] covers a wider scope [than the
Articles of War] in that you can’t force a man to
incriminate himself beforehand -- not just on the trial, if
you will. And this in addition, since it prohibits any
person trying to force a person accused or one suspected,
would make it a crime for any officer or any person who
tries to force a person to do that.
Uniform Code of Military Justice: Hearings on H.R. 2498 Before a
Subcomm. of the H. Comm. on Armed Servs., 81st Cong. 914 (1949)
(statement of Felix Larkin, Ass’t General Counsel, Dep’t of
Defense), reprinted in Index and Legislative History, Uniform
Code of Military Justice (1950) (not separately paginated).
The plain text of the statute also draws a distinction
between the questioner, who is a person subject to the UCMJ, and
the individual being questioned, who is “an accused or a person
suspected of an offense.” Article 31(b), UCMJ. This latter
provision directs itself to a person who is suspected of an
offense under the UCMJ, and is not addressed to the military
status of the person questioned. It is not dissimilar from
language elsewhere in the UCMJ directed to any “person,” which
is directed toward the interaction of the military justice
system and external persons. See, e.g., Article 48(a), UCMJ, 10
U.S.C. § 848(a) (2012) (military judges’ authority to punish
13
United States v. Gilbreath, No. 14-0322/MC
“any person” for contempt of court); Article 106, UCMJ, 10
U.S.C. § 906 (2012) (“[a]ny person” acting as a spy during a
time of war may be tried by general court-martial or military
commission); Article 121(a), UCMJ, 10 U.S.C. § 921(a) (2012)
(larceny under the UCMJ is committed by a person subject to the
UCMJ and involves the property of “another person”).4
The reach of Article 31(b), UCMJ, however, is not
unlimited. The text is limited to “interrogation and the taking
of ‘any’ statement.” Cohen, 63 M.J. at 49 (discussing United
States v. Gibson, 3 C.M.A. 746, 752, 14 C.M.R. 164, 170 (1954)).
Thus, application of Article 31(b), UCMJ, involves a contextual
assessment of what is meant by “interrogation and the taking of
‘any’ statement” in the armed forces. Id.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
4
In reforming the armed forces after World War II, Congress
contemplated that individual members might serve in the Ready
Reserve. See Armed Forces Reserve Act of 1952, 66 Stat. 481,
483 (requiring that each branch of the Armed Forces establish a
Ready Reserve comprised of units or members, or both). And
individuals have done so well before Congress established the
IRR as a matter of statutory law in Pub. L. 103-337,
§ 1661(a)(1), 108 Stat. 2663, 2973 (1994). See, e.g., No. S.
Rep. 96-197, at 102 (1979), reprinted in 1979 U.S.C.C.A.N. 1818,
1821 (describing the IRR as “the primary force of trained
individuals for replacement and augmentation in emergencies”).
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United States v. Gilbreath, No. 14-0322/MC
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.
Specifically, 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. The “unique circumstances
of military service require[] specific statutory protections for
members of the armed forces” from coercive self-incrimination.
Swift, 53 M.J. at 445. 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.
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As recent experience demonstrates, IRR members stand ready
to set aside civilian life and serve their country when called
to active duty. See, e.g., John J. Kruzel, Marines to Alert
1,800 Individual Ready Reservists for Reactivation, Dep’t of
Defense News (Mar. 26, 2007),
http://www.defense.gov/news/newsarticle.aspx?id=32588.
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). In this case, Appellant had
just left active duty service and was still imbued with the
cultural norms of the Marine Corps, reflected by his immediate
response to calls from junior Marines in the Armory.
Because an IRR servicemember may well feel compelled to
respond to an official military questioner without considering
any privilege against self-incrimination, we have no reason to
depart from our case law, supported by a plain reading of the
statute, its legislative history, and the fundamental purpose of
the statutory protection as expounded in Jones, Cohen, and
Swift. Thus, we hold that the lower court erred in concluding
that as a matter of law the article does not apply in the case
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United States v. Gilbreath, No. 14-0322/MC
of an active duty military servicemember questioning a member of
the IRR. 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. See United States v. Stevenson, 53
M.J. 257, 259 (C.A.A.F. 2000) (provision of the Military Rules
of Evidence (M.R.E.) applies to all courts-martial absent
specific exclusion).
ARTICLE 31(b), UCMJ, APPLIED
Having concluded that Article 31(b), UCMJ, is applicable in
the case of active duty military personnel questioning members
of the IRR, we turn to whether it applies in this case. “‘When
there is a motion to suppress a statement on the ground that
rights’ warnings were not given, we review the military judge’s
findings of fact on a clearly-erroneous standard, and we review
conclusions of law de novo.’” Jones, 73 M.J. at 360 (quoting
Swift, 53 M.J. at 446). Under these standards, “a military
judge abuses his discretion if his findings of fact are clearly
erroneous or his conclusions of law are incorrect.” United
States v. Ayala, 43 M.J. 296, 298 (C.A.A.F. 1995).
This case involves a tasking from Capt Collins to Sgt
Muratori, the gravamen of which was to investigate a missing
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United States v. Gilbreath, No. 14-0322/MC
weapon in the Marine Corps. 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.” United States v. Brown, 40 M.J. 152,
154 (C.M.A. 1994). In considering this question, we look to all
of the facts and circumstances surrounding the questioning,
including Sgt Muratori’s “authorities and responsibilities” as
related to Appellant. Cohen, 63 M.J. at 51.
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.
The circumstances of this case demonstrate that Sgt
Muratori was acting in an official capacity when he questioned
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United States v. Gilbreath, No. 14-0322/MC
Appellant. Among other things, Sgt Muratori was acting at the
direction of his superior commissioned officer, Capt Collins.
He immediately reported the progress of the investigation to
Capt Collins. And, he used elicitation tactics to discover more
information than Appellant initially volunteered. In this
setting, we have no doubt that Sgt Muratori “was acting or could
reasonably be considered to be acting in an official law-
enforcement or disciplinary capacity” during the questioning.
Jones, 73 M.J. at 362.
The Government’s response -- that Sgt Muratori was acting
in an administrative or operational capacity -- is not
persuasive. Even if Sgt Muratori hoped to confine the matter of
a missing pistol to a wholly administrative issue to be resolved
outside the military justice system, a questioner’s
“administrative focus . . . does not ultimately answer the
critical question as to whether he was acting in an official law
enforcement or disciplinary capacity while also performing his
administrative duties.” Cohen, 63 M.J. at 51. The answer to
that question is found in reviewing the totality of the
circumstances, not in a bright-line distinction between law
enforcement or disciplinary duties and administrative duties.
Perhaps most critically, in this case, Sgt Muratori’s
questioning regarded the whereabouts of a missing weapon in the
Marine Corps. Sgt Muratori testified to the significance of
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United States v. Gilbreath, No. 14-0322/MC
this factor: “[P]retty 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.” This cultural understanding
is significant to our analysis and belies the notion that Sgt
Muratori and Appellant were merely engaged in an informal
discussion as friends. As Appellant states in his brief, “There
is no such thing as a casual discussion about a missing or
stolen weapon in the Marine Corps.”
An individual member of the Ready Reserve equipped with
this cultural knowledge might feel compelled to respond to
questions asked by a more senior NCO. That fact is particularly
evident here, where Appellant incriminated himself in response
to Sgt Muratori’s questioning and invocation of military duty.
Sgt Muratori’s questioning therefore falls within the scope of
Article 31(b), UCMJ, and demonstrates the reason why Congress
legislated in this area. See Swift, 53 M.J. at 445 (“In such an
environment, a question from a superior or an investigator is
likely to trigger a direct response without any consideration of
the privilege against self-incrimination.”). 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.
The UCMJ and the M.R.E. provide that a statement obtained
without a rights warning is akin to an involuntary statement,
20
United States v. Gilbreath, No. 14-0322/MC
and is inadmissible. Article 31(d), UCMJ; M.R.E. 305(a); M.R.E.
304(a). As we have previously noted, although the UCMJ has
undergone several revisions since 1951, Congress has kept this
“strict enforcement mechanism” intact. Swift, 53 M.J. at 448-
49. As a result, Appellant’s statement to Sgt Muratori was
inadmissible, and the military judge erred in denying the motion
to suppress.
The question of whether Appellant was prejudiced by this
ruling turns on “(1) the strength of the Government’s case, (2)
the strength of the defense case, (3) the materiality of the
evidence in question, and (4) the quality of the evidence in
question.” United States v. Kerr, 51 M.J. 401, 405 (C.A.A.F.
1999). In this case, the Government’s case derived from
Appellant’s initial admission to Sgt Muratori. There was no
other parallel chain of evidence. Moreover, “[a] confession is
like no other evidence. Indeed, the defendant’s own confession
is probably the most probative and damaging evidence that can be
admitted against him.” United States v. Ellis, 57 M.J. 375, 381
(C.A.A.F. 2002) (quoting Arizona v. Fulminante, 499 U.S. 279,
296 (1991)) (internal quotation marks omitted). There is no
question that Appellant’s confession constituted strong,
material evidence offered against him. Under these
circumstances, the military judge’s error materially prejudiced
21
United States v. Gilbreath, No. 14-0322/MC
Appellant’s substantial rights under Article 59(a), UCMJ, 10
U.S.C. § 859(a) (2012).
CONCLUSION
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.
Accordingly, the decision of the United States Navy-Marine
Corps Court of Criminal Appeals is reversed. The finding and
sentence are set aside. The record of trial is returned to the
Judge Advocate General, and a rehearing may be authorized.
22