United States v. Flanner ( 2024 )

This opinion is subject to revision before publication.
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellant
v.
Brandon K. FLANNER, Staff Sergeant
United States Marine Corps, Appellee
No. 24-0093
Crim. App. No. 202300134
Argued May 7, 2024—Decided September 30, 2024
Military Judges: Yong J. Lee (arraignment and motions)
and Andrea C. Goode (motions)
For Appellant: Colonel Joseph M. Jennings, USMC
(argued); Major Tyler W. Blair, USMC, Major Mary
Claire Finnen, USMC (on brief); Brian K. Keller,
Esq.
For Appellee: Lieutenant Commander Leah M. Fon-
tenot, JAGC, USN (argued).
Judge JOHNSON delivered the opinion of the Court,
in which Judge MAGGS and Judge HARDY joined.
Chief Judge OHLSON filed a separate dissenting
opinion. Judge SPARKS filed a separate dissenting
opinion.
_______________
United States v. Flanner, No. 24-0093/MC
Opinion of the Court
Judge JOHNSON delivered the opinion of the Court.
This case raises the issue of whether Appellee had a
right to appointed military defense counsel during a non-
custodial law enforcement interview with the Naval Crim-
inal Investigative Services (NCIS) he initiated before
charges were preferred, after having invoked his right to
have counsel present during a prior interview. The defense
filed a pretrial motion to suppress Appellee’s statement to
NCIS. The military judge granted the motion, and the Gov-
ernment appealed pursuant to Article 62, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. § 862 (2018). The
United States Navy-Marine Corps Court of Criminal Ap-
peals (NMCCA) affirmed the military judge’s ruling
and denied the Government’s motions for panel and en
banc reconsideration. The Judge Advocate General of the
Navy certified the following question to this Court:
Did the military judge abuse her discretion when
she suppressed Appellee’s non-custodial, pre-pre-
ferral, self-scheduled interview with law enforce-
ment in which Appellee waived the rights to coun-
sel and to remain silent?
For the reasons stated below, we answer the certified
question in the affirmative and reverse the decision of the
NMCCA.
I. Background
Appellee, Staff Sergeant Flanner, is charged with one
specification of larceny in violation of Article 121, UCMJ,
10 U.S.C. § 921 (2018), and one specification each of
making a false claim and using a forged signature in
violation of Article 124, UCMJ, 10 U.S.C. § 924 (2018). The
NMCCA described the circumstances of the charged
offenses as follows:
In February 2020, Appellee was one of two
contracting officers located in Kuwait who man-
aged all of the contracts for the United States Ma-
rine Corps [USMC] operating in that region. Be-
tween 14 February and 25 February 2020
Appellee submitted four purchase vouchers, two
on 18 February 2020 and two on 23 February
2
United States v. Flanner, No. 24-0093/MC
Opinion of the Court
2020. On 16 May 2020 it was discovered these four
purchase vouchers, representing more than
$30,000 in government funds, were allegedly
fraudulent. Appellee’s charges stem from this al-
leged theft of over $30,000 through the processing
of fraudulent purchase voucher claims in Bahrain.
United States v. Flanner, No. NMCCA 202300134, 2023
CCA LEXIS 428, at *2, 2023 WL 6564919, at *1 (N-M. Ct.
Crim. App. Oct. 10, 2023) (unpublished) (alteration in orig-
inal) (footnote omitted).
On May 6, 2021, NCIS Special Agent (SA) SC attempted
to interview Appellee. SA SC informed Appellee that he
was suspected of fraud, false official statements or false
swearing, and forgery in violation of the UCMJ. After being
advised of his rights, Appellee invoked his right to counsel,
writing on a rights waiver form, “I would like to have a law-
yer present during questioning.” As a result, SA SC termi-
nated the interview.
Appellee went to the Defense Services Office (DSO) on
two occasions seeking legal services related to his inter-
view. According to his trial defense counsel, in May of 2021,
Appellee spoke with an attorney, and he returned to the
DSO in June of 2021 to speak with an attorney, but he was
not appointed military counsel. In September of 2021, Ap-
pellee asked his staff noncommissioned officer-in-charge
(SNOIC) if he would receive military counsel for an inter-
view with NCIS. After conferring with the unit’s staff judge
advocate (SJA), the SNOIC advised Appellee that counsel
would be appointed to represent him only if charges were
preferred. The SNOIC relayed this advice to Appellee de-
spite the SJA’s admonition that the information was solely
for the SNOIC’s awareness and his express direction to not
share the information with Appellee as the SJA could not
act as Appellee’s counsel.
Based upon the SNOIC’s advice, Appellee—whose fam-
ily had moved away while he was on legal hold past his
term of commitment awaiting resolution of this matter—
decided to schedule an interview with NCIS. He explained:
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United States v. Flanner, No. 24-0093/MC
Opinion of the Court
After learning that I could only be appointed coun-
sel if charges were preferred, I reached out to
NCIS on 8 September 2021 to schedule an inter-
view. I reached out to NCIS because I believed
that I could not do an interview with military
counsel present. I only thought that I could do an
interview with an attorney present if I hired a ci-
vilian attorney.
SA SC documented Appellee’s request for an interview
in a note that stated in pertinent part, “Wants to come in
for an interview[.] Was given incorrect info on lawyer by
cmd[.] Explained preferral of charges = lawyer[.] No civ
lawyer[.]”
At the second interview in September of 2021, Appellee
spoke with SA SC and another special agent. SA SC con-
firmed Appellee’s desire to speak with NCIS despite his
previous invocation of his right to have counsel present
during the May 2021 interview; confirmed that Appellee
understood that military defense counsel would be detailed
only if charges were preferred; and confirmed that Appellee
understood that he could have civilian counsel present at
his own expense if he so desired. Then, SA SC re-advised
Appellee of his rights. Appellee confirmed verbally and in
writing that he understood and waived his rights to remain
silent; to consult with an attorney prior to questioning; and
to have retained or detailed counsel present during the in-
terview. He also confirmed that he understood he could ter-
minate the interview at any time for any reason. During
the interview, he denied any wrongdoing, but at one point
when he was left alone in the room, Appellee leaned back
in his chair and said to himself, “Can’t believe I messed up.”
Before trial, the defense filed a motion to suppress the
second interview. According to the “Defense Motion to Sup-
press Custodial Interrogation,” Appellee was incorrectly
advised by both his SNOIC and SA SC, and as a result, he
did not understand that he had “an enumerated right” pur-
suant to the Fifth Amendment and Military Rule of Evi-
dence (M.R.E.) 305 to have counsel present during the in-
terview upon request. Conceding that Appellee voluntarily
waived his right to have counsel present for his interview,
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United States v. Flanner, No. 24-0093/MC
Opinion of the Court
the defense argued that the waiver was not valid because
it was neither knowing nor intelligent where Appellee mis-
takenly “believed that he could only have a lawyer present
if he hired a civilian lawyer or if charges were preferred
against him.”
The Government opposed the motion in writing, argu-
ing that Appellee was accurately advised, in accordance
with Marine Corps policy, 1 that military defense counsel
would not be detailed until charges were preferred and un-
derstood that he was under no obligation to speak to NCIS
in the meantime. Moreover, the Government argued, Ap-
pellee voluntarily, knowingly, and intelligently waived his
right to counsel and spoke with NCIS in an attempt to “get
his version of events in front of NCIS before the investiga-
tion proceeded any further.” Therefore, according to the
Government, the waiver was valid and the second inter-
view should not be suppressed. 2
1 The Government cited the Legal Support and Administra-
tion Manual (LSAM), see infra Part III.C., which requires detail-
ing of defense counsel after an accused has been placed in pre-
trial confinement, served notice of preferred charges, or notified
of an administrative separation/board of inquiry package or ap-
pointment of an Article 32, UCMJ, 10 U.S.C. § 832 (2018), inves-
tigating officer. The Government also cited a memorandum from
the Chief Defense Counsel of the Marine Corps which requires
detailing of defense counsel for personnel not in confinement
only after preferral of charges or the appointment of an Article
32, UCMJ, preliminary hearing officer. See CDC Policy Memo-
randum 3.1D para. 4.d.(1)(b) (Nov. 6, 2020).
2 In his dissent, the Chief Judge asserts that trial counsel
made a “clear-cut” concession that Appellee “rated counsel.” See
Flanner, __ M.J. __, __ (3) (C.A.A.F. 2024) (Ohlson, C.J., dissent-
ing). Even if we were bound by the Government’s concession
with respect to a matter that was not litigated during the hear-
ing, which we are not, see United States v. Budka, 74 M.J. 219,
220 (C.A.A.F. 2015) (summary disposition) (“Neither the Court
of Criminal Appeals, nor this Court, is bound by government
concessions.” (citing cases)), we do not view trial counsel’s state-
ments to concede, clearly or otherwise, that Appellee was sub-
jected to a custodial interrogation. Viewed in context, trial coun-
sel’s statements merely emphasized that Appellee understood he
5
United States v. Flanner, No. 24-0093/MC
Opinion of the Court
After considering the parties’ arguments, the military
judge made the following findings of fact:
(1) “The actions of various actors in this case, to
include the DSO, left the accused with an inaccu-
rate belief that he could not be appointed a lawyer
until charges were preferred.”
(2) “[T]he accused went forward with the inter-
view without a lawyer, based on that misunder-
standing.”
(3) Appellee’s “actions showed that he truly de-
sired to have an attorney”: first, he invoked his
right to have counsel present during his first in-
terview; second, “[h]e then made two separate at-
tempts to get an attorney by visiting the Defense
Services Office, where he was turned away;” and
third, he “asked his chain of command a number
of questions about how he could get an attorney.”
did not have to submit to an interview without counsel. Trial
counsel explained:
I understand why it would have been benefi-
cial for the accused to say, well, I want to give my
story out in front of NCIS before charges are ever
preferred. And I’d like to have some attorneys
here to do that. He could have done that with a
civilian attorney or he could have just not made
any statement at all.
Trial counsel continued, “I get why he wanted it, but that
doesn’t mean he raided [sic] it or was entitled to it.”After a re-
cess, trial counsel added:
[J]ust to clarify, that obviously the [Appellee]
rated counsel, but as he demonstrated by his in-
voking it in the first interview, . . . he knowingly—
voluntarily, knowingly, and intelligently waived
that right. He knew that if he invoked right to
counsel, the interview would end because he had
already did [sic] it once before. But he decided not
to because he wanted to make a statement to
NCIS.
6
United States v. Flanner, No. 24-0093/MC
Opinion of the Court
(4) Appellee’s efforts to get counsel “left him with
the inaccurate belief, that he could not get an at-
torney until charges were preferred.”
(5) “[W]anting to do the interview in order to get
the investigation moving, as he was passed [sic]
his EAS and had already moved his family, he ac-
quiesced to an interview without having a lawyer
present.”
Based upon these findings, the military judge concluded
that although the interview was voluntary, Appellee’s
waiver of the right to have counsel present during the in-
terview was neither knowing nor intelligent. Accordingly,
she granted the motion to suppress. In making this ruling,
the military judge did not cite any authority for her belief
that Appellee had a right to have appointed military de-
fense counsel represent him at the second interview.
The NMCCA affirmed this decision, concluding that the
military judge’s findings of fact were not clearly erroneous
and she did not abuse her discretion in determining that
Appellee’s waiver was not knowing or intelligent. Flanner,
2023 CCA LEXIS 428, at *9, *13, 2023 WL 6564919, at *3,
*5. The NMCCA rejected the Government’s argument, as-
serted for the first time on appeal, that because Appellee
voluntarily appeared for the second interview, it was non-
custodial and Appellee therefore had no right to counsel.
Id. at *8-9, 2023 WL 6564919, at *3. Instead, the NMCCA
assumed without deciding that Appellee had a Fifth
Amendment right to counsel in the first interview which
“reasonably carried over, through the intervening events,
to the second interview.” Id. at *9 n.42, 2023 WL 6564919,
at *4 n.42.
Then, the NMCCA found no error in the military judge’s
finding that Appellee had a mistaken belief he would be
detailed counsel only after charges were preferred. Id. at
*11, 2023 WL 6564919, at *4. Citing the Marine Corps de-
tailing policy the Government had identified in its opposi-
tion to the motion to suppress, the NMCCA reasoned that
while military defense counsel must be detailed once
charges are preferred, military defense counsel may be
7
United States v. Flanner, No. 24-0093/MC
Opinion of the Court
detailed for a variety of reasons even before preferral;
therefore, Appellee’s belief that he could not get detailed
counsel until charges were preferred was inaccurate. Id. at
*11-12, 2023 WL 6564919, at *4.
Finally, the NMCCA held in light of the totality of the
circumstances that the military judge did not err in con-
cluding that Appellee’s waiver of his right to counsel, while
voluntary, was not knowing or intelligent. Id. at *12-13,
2023 WL 6564919, at *5. The NMCCA explained:
[T]he military judge considered the situation Ap-
pellee was faced with when making his decision to
sign the rights waiver, including his desire to
move the investigation forward since he was past
the end of his active duty service and had already
moved his family. She also properly considered
the steps Appellee took prior to agreeing to the in-
terrogation, like visiting the DSO and talking to
his chain of command in an effort to exercise his
rights. The military judge also considered the evi-
dence presented about the advice Appellee was
given regarding whether he could be detailed mil-
itary counsel and Appellee’s “inaccurate belief
that he could not get an attorney until charges
were preferred.” Given this evidence, we find that
the military judge, quite reasonably, found that
Appellee’s waiver of his right to counsel was not
made knowingly or intelligently because he did
not have “full awareness of both the nature of the
right being abandoned and the consequences of
the decision to abandon it.” Therefore, the mili-
tary judge’s decision to suppress Appellee’s state-
ments to NCIS was well within the range of
choices reasonably arising from the facts and the
law.
Id. at *12-13, 2023 WL 6564919, at *5 (footnotes omitted).
II. Standard of Review
In this Article 62, UCMJ, appeal, we directly review the
military judge’s decision and consider the evidence in the
light most favorable to the party that prevailed at trial—in
this case, Appellee. United States v. Becker, 81 M.J. 483,
488 (C.A.A.F. 2021). We review a military judge’s ruling on
8
United States v. Flanner, No. 24-0093/MC
Opinion of the Court
a motion to suppress evidence for an abuse of discretion.
United States v. Mott, 72 M.J. 319, 329 (C.A.A.F. 2013).
“ ‘An abuse of discretion occurs when the trial court’s find-
ings of fact are clearly erroneous or if the court’s decision is
influenced by an erroneous view of the law.’ ” Id. (quoting
United States v. Freeman, 65 M.J. 451, 453 (C.A.A.F.
2008)). We review de novo any legal conclusions supporting
the suppression ruling, including the question of whether
the accused was in custody for purposes of Miranda warn-
ings. United States v. Chatfield, 67 M.J. 432, 437 (C.A.A.F.
2009) (citing Miranda v. Arizona, 384 U.S. 436, 444 (1966)).
III. Discussion
The certified question asks whether the military judge
abused her discretion in suppressing Appellee’s second in-
terview. To answer this question, we must first consider
Appellee’s assertions that he had a right to appointed mil-
itary defense counsel during the second interview pursuant
to (A) the Fifth Amendment, as implemented by M.R.E.
305, (B) Article 31(b), UCMJ, 10 U.S.C. § 831(b) (2018), and
(C) Marine Corps policy. If we determine that he had such
a right, we must then determine whether he waived that
right, and if there was no waiver, whether there was a vio-
lation of Appellee’s right to counsel.
We conclude that none of these sources gives Appellee a
right to appointed military defense counsel during a non-
custodial, pre-preferral, self-scheduled interview, and
therefore, we need not determine whether Appellee waived
such a right. Accordingly, we hold that the military judge
abused her discretion in suppressing Appellee’s second in-
terview.
A. Appellee Did Not Have a Fifth Amendment
Right to Appointed Military Defense Counsel
During the Second Interview
The Fifth Amendment provides that no person “shall be
compelled in any criminal case to be a witness against him-
self.” U.S. Const. amend. V. “The Supreme Court has inter-
preted the Fifth Amendment privilege against self-incrim-
ination to encompass two distinct rights: the right to
9
United States v. Flanner, No. 24-0093/MC
Opinion of the Court
silence and the right to counsel specifically during pretrial
questioning.” United States v. Seay, 60 M.J. 73, 77
(C.A.A.F. 2004).
In Miranda, the Supreme Court held that “if a person
in custody is to be subjected to interrogation, he must first
be informed in clear and unequivocal terms that he has the
right to remain silent,” and “has the right to consult with a
lawyer and to have the lawyer with him during interroga-
tion.” 384 U.S. at 467-68; see also United States v. Tempia,
16 C.M.A. 629, 635, 37 C.M.R. 249, 255 (1967) (explaining
that the Supreme Court’s decision in Miranda applies to
the military justice system). In accordance with Miranda,
if a person in custody indicates that he wants an attorney,
“the interrogation must cease until an attorney is present.”
384 U.S. at 474.
The Fifth Amendment right to counsel applies only dur-
ing custodial interrogations. Rhode Island v. Innis, 446
U.S. 291, 300-01 (1980) (“Miranda safeguards come into
play whenever a person in custody is subjected to either ex-
press questioning or its functional equivalent.” (emphasis
added)). “To be considered in custody for purposes of Mi-
randa, a reasonable person in [the accused]’s position must
have believed he or she was restrained in a ‘formal arrest
or restraint on freedom of movement of the degree associ-
ated with a formal arrest.’ ” Chatfield, 67 M.J. at 438 (quot-
ing California v. Beheler, 463 U.S. 1121, 1125 (1983) (per
curiam)). In United States v. Mitchell, this Court explained
that to determine whether an individual was subjected to
a custodial interrogation, courts consider:
(1) whether the person appeared for questioning
voluntarily; (2) the location and atmosphere of the
place in which questioning occurred . . . [;] (3) the
length of the questioning . . . [;] [(4)] the number
of law enforcement officers present at the scene[;]
and [(5)] the degree of physical restraint placed
upon the suspect.
76 M.J. 413, 417 (C.A.A.F. 2017) (alterations in original)
(citations omitted) (internal quotation marks omitted).
10
United States v. Flanner, No. 24-0093/MC
Opinion of the Court
Appellee’s motion to suppress was entitled, “Defense
Motion to Suppress Custodial Interrogation.” Despite the
title, the defense did not argue in the motion or during the
motion hearing that the second interview was a custodial
interrogation. To the contrary, the defense acknowledged
that at the time of the second interview, Appellee “was not
in continuous custody.” The military judge orally granted
the motion to suppress without expressly ruling on
whether the second interview was a custodial
interrogation.
Whether an individual is in custody is a question of law
we review de novo. Chatfield, 67 M.J. at 437. Considering
the factors set forth in Mitchell, we conclude that Appel-
lee’s second interview was not a custodial interrogation,
and therefore, he had no Fifth Amendment right to counsel
during the second interview. 3 See United States v. Evans,
75 M.J. 302, 305 (C.A.A.F. 2016) (explaining that the
“[a]ppellant was not subjected to a custodial interrogation
and therefore suffered no violation of his Fifth Amendment
rights under Miranda”). We reach this conclusion for sev-
eral reasons. Appellee initiated the second interview to fur-
ther the investigation in the hope of reuniting with his
3 For the same reasons, we conclude that M.R.E. 305(c)(2) did
not guarantee Appellee counsel during the second interview be-
cause it was a noncustodial interview. M.R.E. 305(c)(2) imple-
ments the Fifth Amendment right to counsel, and provides:
If a person suspected of an offense and subjected
to custodial interrogation requests counsel, any
statement made in the interrogation after such
request, or evidence derived from the
interrogation after such request, is inadmissible
against the accused unless counsel was present
for the interrogation.
(Emphasis added.)
As with the Fifth Amendment right to counsel, if a person
invokes their right to counsel under M.R.E. 305(c)(2), then
“questioning must cease until counsel is present.” M.R.E.
305(c)(4).
11
United States v. Flanner, No. 24-0093/MC
Opinion of the Court
family, and he voluntarily appeared at the scheduled time.
See Chatfield, 67 M.J. at 438 (finding an interview to be
noncustodial when an individual voluntarily went to a po-
lice station for questioning not under express orders from
a superior). Although two NCIS agents conducted the in-
terview at an NCIS office and Appellee knew he was a sus-
pect, an interview does not become custodial “simply be-
cause the questioning takes place in the station house, or
because the questioned person is one whom the police sus-
pect.” Oregon v. Mathiason, 429 U.S. 492, 495 (1977); see
also Chatfield, 67 M.J. at 438 (explaining that “there is no
per se rule that whenever a suspect appears at a police sta-
tion for questioning, the suspect is therefore in custody”).
Additionally, Appellee joked and laughed with the agents
over the course of about two and a half hours. See Beckwith
v. United States, 425 U.S. 341, 342-48 (1976) (finding that
an interview in a private residence that lasted for about
three hours was not a custodial interrogation). He acknowl-
edged that he could stop the interview at any time, and
when questioning concluded and Appellee had nothing
more to say, he left.
Under these circumstances, “the atmosphere of the in-
terview would have made it transparent to a reasonable
person in [Appellee’s] position that he was not subject to
‘formal arrest or restraint on freedom of movement of the
degree associated with a formal arrest.’ ” Chatfield, 67 M.J.
at 439 (quoting Beheler, 463 U.S. at 1125). Thus, the second
interview “did not contain the ‘inherently compelling pres-
sures’ with which the Miranda Court was concerned.” Id.(quoting Miranda, 384 U.S. at 467).
Before this Court, Appellee concedes that the second in-
terview was not a custodial interrogation but argues that
the military judge properly suppressed the second inter-
view because he did not knowingly and intelligently waive
the right to counsel he had previously invoked during the
first interview. We disagree with the implication that a
Fifth Amendment right to counsel extends beyond the
12
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Opinion of the Court
bounds of a custodial interrogation. 4 In Edwards v. Ari-
zona, the Supreme Court held that the appellant did not
waive his right to have counsel present by submitting to a
second custodial interrogation one day after he had in-
voked that right at an initial custodial interrogation. 451
U.S. 477, 482 (1981). In that case, police approached the
appellant who was being held at the county jail and inter-
viewed him for the second time despite his initial invoca-
tion and his continuing insistence that he did not want to
speak with anyone. Id. at 479. The Supreme Court held
“that when an accused has invoked his right to have coun-
sel present during custodial interrogation, a valid waiver
of that right cannot be established by showing only that he
responded to further police-initiated custodial interroga-
tion even if he has been advised of his rights.” Id. at 484.
However, the Supreme Court limited its holding to cases
where the first custodial interview is followed by a second
custodial interview, stating:
Had Edwards initiated the [second] meeting . . .
nothing in the Fifth and Fourteenth Amendments
would prohibit the police from merely listening to
his voluntary, volunteered statements and using
them against him at the trial. The Fifth Amend-
ment right identified in Miranda is the right to
have counsel present at any custodial interroga-
tion. Absent such interrogation, there would have
been no infringement of the right that Edwards
invoked and there would be no occasion to deter-
mine whether there had been a valid waiver.
Id. at 485-86. 5
4 Although we review the military judge’s ruling directly in
an Article 62, UCMJ, appeal, we note that the NMCCA affirmed
the military judge’s ruling, concluding that “Appellee’s invoca-
tion of his Fifth Amendment right to counsel in the initial inter-
rogation reasonably carried over, through the intervening
events, to the second interview.” Flanner, 2023 CCA LEXIS 428,
at *9 n.42, 2023 WL 6564919, at *4 n.42. We reject this conclu-
sion as inconsistent with prior precedent. See infra pp. 13-15.
5 This Court’s predecessor reached a similar conclusion in
Tempia. In Tempia, during a custodial interrogation the
13
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Opinion of the Court
In this case, even assuming the first interview was a
custodial interrogation implicating the Fifth Amendment,
NCIS scrupulously honored the law by terminating the in-
terview as soon as Appellee indicated that he wanted coun-
sel to be present during questioning. Four months later,
Appellee contacted NCIS and scheduled the second inter-
view. Consistent with Edwards, we need not decide
whether Appellee waived his Fifth Amendment right to
counsel in the second interview because we conclude that
he had no such right in a noncustodial interview he initi-
ated months after his initial invocation. Id.; see also Innis,
446 U.S at 298 n.2 (explaining that “[s]ince we conclude
that the respondent was not ‘interrogated’ for Miranda
purposes, we do not reach the question whether the re-
spondent waived his right under Miranda to be free from
interrogation until counsel was present”). 6
appellant asserted his right to counsel, the interview ended, and
he was free to leave. 16 C.M.A. at 632, 37 C.M.R. at 252. Less
than an hour later, the appellant was ordered to an OSI office,
making the ensuing interview a custodial interrogation. Id. at
632, 636, 37 C.M.R. at 252, 256. While at the OSI office, he was
informed that he would not be appointed counsel to represent
him for an investigation and then agreed to be interviewed. Id.
at 632-33, 37 C.M.R. at 252-53. The military judge suppressed
the interview because the appellant was improperly advised of
his right to counsel under Miranda. Id. at 637, 37 C.M.R. at 257.
Although the case before this Court is similar to Tempia in that
there was an initial interview where the appellant invoked his
right to counsel, it is distinguishable because the subsequent in-
terview in Tempia was custodial whereas the subsequent inter-
view in this case was not.
6 Although not raised by Appellee, we note that neither the
Sixth Amendment right to counsel nor its implementing rule
provided Appellee with a right to counsel in the second inter-
view. “ ‘[I]t has been firmly established that a person’s Sixth . . .
Amendment right to counsel attaches only at or after the time
that adversary judicial proceedings have been initiated against
him.’ ” United States v. Gouveia, 467 U.S. 180, 187-88 (1984)
(quoting Kirby v. Illinois, 406 U.S. 682, 688 (1972)). In the mili-
tary, the Sixth Amendment right to counsel attaches upon pre-
ferral of charges. United States v. Harvey, 37 M.J. 140, 141
14
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Opinion of the Court
B. Appellee Did Not Have a Right to Appointed Military
Defense Counsel Under Article 31(b), UCMJ,
During the Second Interview
On appeal, Appellee contends that his statutory rights
under Article 31(b), UCMJ, are broader than his Miranda
rights and afford him a right to appointed counsel notwith-
standing the noncustodial setting of his second interview.
For the reasons explained below, we conclude, first, that
the protections afforded by Article 31(b), UCMJ, were ap-
plicable during Appellee’s second interview even though it
was not a custodial interrogation; but second, that Article
31(b), UCMJ, did not guarantee a right to have appointed
military defense counsel present during the interview.
“Article 31(b), UCMJ, is a statutory precursor to Mi-
randa warnings that implements the Article 31(a), UCMJ,
privilege against compulsory self-incrimination.” Evans, 75
(C.A.A.F. 1993). Because no charges had been preferred at the
time of Appellee’s second interview, he had no Sixth Amendment
right to counsel during that interview.
The Sixth Amendment right to counsel is implemented in
M.R.E. 305(c)(3), which also applies only after charges have been
preferred. M.R.E. 305(c)(3) states:
If an accused against whom charges have been pre-
ferred is interrogated on matters concerning the
preferred charges by anyone acting in a law en-
forcement capacity, or the agent of such a person,
and the accused requests counsel, or if the accused
has appointed or retained counsel, any statement
made in the interrogation, or evidence derived
from the interrogation, is inadmissible unless
counsel was present for the interrogation.
(Emphasis added.) If a person invokes their right to counsel un-
der M.R.E. 305(c)(3), then “questioning must cease until counsel
is present.” M.R.E. 305(c)(4).
15
United States v. Flanner, No. 24-0093/MC
Opinion of the Court
M.J. at 304-05 (footnote omitted). 7 Article 31(b), UCMJ,
states:
No person subject to this chapter may interrogate,
or request any statement from, an accused or a
person suspected of an offense without first in-
forming 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 ac-
cused or suspected and that any statement made
by him may be used as evidence against him in a
trial by court-martial.
This Court recently observed that “ ‘[a] servicemember’s
protection against compulsory self-incrimination is unpar-
alleled in the civilian sector’ because ‘[t]his fundamental
right is protected by both the Fifth Amendment and Article
31, UCMJ.’ ” United States v. Nelson, 82 M.J. 251, 255
(C.A.A.F. 2022) (second alteration in original) (quoting
United States v. Mapes, 59 M.J. 60, 65 (C.A.A.F. 2003) (em-
phasis added)). Thus, while the Fifth Amendment guaran-
tees that no person shall be compelled to be a witness
against himself in a criminal case, Article 31(a), UCMJ,
guarantees that no person subject to the UCMJ shall
7 Article 31(b), UCMJ, is reflected in M.R.E. 305(c)(1), which
states:
Pursuant to Article 31, a person subject to the
code may not interrogate or request any state-
ment from an accused or a person suspected of an
offense without first:
(A) informing the accused or suspect of the
nature of the accusation;
(B) advising the accused or suspect that
the accused or suspect has the right to remain
silent; and
(C) advising the accused or suspect that
any statement made may be used as evidence
against the accused or suspect in a trial by
court-martial.
Like Article 31(b), M.R.E. 305(c)(1) does not require a warning
about an accused’s or suspect’s right to counsel.
16
United States v. Flanner, No. 24-0093/MC
Opinion of the Court
“compel any person to incriminate himself or to answer any
question the answer to which may tend to incriminate
him.” 10 U.S.C. § 831(a) (2018).
The purpose of the Article 31(b), UCMJ, warning re-
quirement is to provide “members of the armed forces with
statutory assurance that the standard military require-
ment for a full and complete response to a superior’s in-
quiry does not apply in a situation when the privilege
against self-incrimination may be invoked.” United States
v. Swift, 53 M.J. 439, 445 (C.A.A.F. 2000). To this end, this
Court has held “that Article 31(b), UCMJ, rights are in cer-
tain respects more extensive than those provided under the
Fifth Amendment.” Evans, 75 M.J. at 305. Specifically, Ar-
ticle 31(b), UCMJ, warnings must be given to anyone “sus-
pected of an offense” while Miranda warnings only need to
be given to those subject to “custodial interrogation.” Swift,
53 M.J. at 445 (internal quotation marks omitted) (cita-
tions omitted).
In another respect, Article 31(b), UCMJ, warnings are
narrower than Miranda warnings. Miranda requires a
warning about the rights to consult with counsel and to
have counsel present during questioning. Article 31(b),
UCMJ, on the other hand, is silent as to a servicemember’s
rights to counsel. United States v. Rogers, 47 M.J. 135, 136
n.1 (C.A.A.F. 1997) (providing a chart of differences be-
tween Article 31(b), UCMJ, and Miranda warnings).
As a servicemember subject to questioning by NCIS,
Appellee was entitled to the protections afforded by Article
31, UCMJ. However, those protections do not include a
right to counsel. Therefore, we reject Appellee’s assertion
that he had a statutory right to counsel in the second
interview. 8
8 We note that Article 27, UCMJ, 10 U.S.C. § 827 (2018), re-
quires the detailing of counsel for an accused after charges have
been referred to a general or special court-martial; it does not
create a right to counsel before charges have been preferred. Ap-
pellee does not argue that he was entitled to appointed military
defense counsel pursuant to Article 27, UCMJ.
17
United States v. Flanner, No. 24-0093/MC
Opinion of the Court
Additionally, we are unpersuaded by Appellee’s argu-
ment that this Court’s decision in Mott establishes a statu-
tory right to counsel in a noncustodial interrogation. In
Mott, this Court was faced with the question of whether an
accused who could not, due to mental illness, understand
his rights or the consequences of waiving them could vol-
untarily, knowingly, and intelligently waive his right to
counsel in a custodial interrogation. 72 M.J. at 321. In out-
lining the contours of its waiver analysis, the Court noted
that an accused’s statement during a custodial interroga-
tion is inadmissible at trial unless the government can es-
tablish that the accused knowingly and voluntarily waived
his Miranda rights. Id. at 330. In a footnote, the Court
added:
Consistent with our precedents, we note that in
the military system the accused’s right to coun-
sel—and the requirement of knowing and volun-
tary waiver—are not limited to custodial interro-
gation. See United States v. Delarosa, 67 M.J. 318,
320 (C.A.A.F. 2009) (“Military officials and civil-
ians acting on their behalf are required to provide
rights warnings prior to interrogating a member
of the armed forces if that servicemember is a sus-
pect, irrespective of custody. Article 31(b), UCMJ,
10 U.S.C. § 831(b) (2000); Military Rule of Evi-
dence (M.R.E. 305(b)(1), 305(c).”).
Id. at 330 n.10.
This footnote is an incorrect statement of the law and
was not required for the holding in Mott. While it is true
that the Article 31(b), UCMJ, rights cited in the Mott foot-
note extend beyond custodial interrogations, as noted
above there is no right to counsel in Article 31(b), UCMJ.
Nor does Delarosa, the case relied on in Mott, support that
conclusion. In Delarosa, we held only that the military
judge did not err in denying a motion to suppress the ac-
cused’s confession where he never unambiguously invoked
his Miranda right to remain silent and his confession was
voluntarily, knowingly, and intelligently given. 67 M.J. at
326. Indeed, the Court explicitly acknowledged in Delarosa
that “[t]he present appeal involves only . . . rights warnings
18
United States v. Flanner, No. 24-0093/MC
Opinion of the Court
under Miranda for persons in custody.” Id. at 320. There-
fore, the Court in Delarosa did not consider the accused’s
statutory rights or the applicability of either statutory or
constitutional rights in a noncustodial setting.
Even if the Mott footnote was an accurate statement of
the law, its comment on a servicemember’s statutory right
to counsel was not relevant to the Miranda issue before the
Court in Mott. Because the Mott footnote was not required
for the holding in that case, it is dicta. “[D]icta involves the
consideration of ‘abstract and hypothetical situations not
before [the court].’ ” Bohannan v. Doe, 527 F. App’x 283,
300 (5th Cir. 2013) (quoting Connecticut v. Doehr, 501 U.S.
1, 30 (1991) (Rehnquist, C.J., concurring)); see also Obiter
Dictum, Black’s Law Dictionary (11th ed. 2019) (defining
“obiter dictum” as “[a] judicial comment made while
delivering a judicial opinion, but one that is unnecessary to
the decision in the case and therefore not precedential
(although it may be considered persuasive)”). The Supreme
Court has explained:
It is a maxim not to be disregarded, that gen-
eral expressions, in every opinion, are to be taken
in connection with the case in which those expres-
sions are used. If they go beyond the case, they
may be respected, but ought not to control the
judgment in a subsequent suit when the very
point is presented for decision.
Cohens v. Virginia, 19 U.S. 264, 399 (1821) (emphasis
added). Thus, “we are not bound to follow our dicta in a
prior case in which the point now at issue was not fully
debated.” Central Va. Cmty. Coll. v. Katz, 546 U.S. 356, 363
(2006); see, e.g., United States v. Griffin, No. NMCM 96
01264, 1996 CCA LEXIS 458, at *4, 1996 WL 927624, at *2
(N-M. Ct. Crim. App. Sept. 30, 1996) (unpublished)
(declining to rely on dicta to find legal error); United States
v. Dimberio, 52 M.J. 550, 559 (A.F. Ct. Crim. App. 1999)
(rejecting appellant’s reliance on a case that was factually
inapposite and itself relied on dicta); United States v.
Alexander, 29 C.M.R. 616, 617 (A.C.M.R. 1960) (rejecting
appellant’s reliance on “completely erroneous” dicta).
19
United States v. Flanner, No. 24-0093/MC
Opinion of the Court
Applying that principle in this case, we conclude that the
Mott footnote and Delarosa were not binding on the
military judge and are not binding on this Court’s
determination whether Appellee had a statutory right to
counsel because the Mott footnote is an incorrect statement
of the law and neither opinion squarely addressed the
question at issue here: whether an accused has a statutory
right to counsel in a noncustodial setting when no charges
have been preferred.
C. Appellee Did Not Have a Right to Appointed Military
Defense Counsel Under Marine Corps Policy
During the Second Interview
As explained above, Appellee did not have a right to ap-
pointed counsel for a noncustodial interview he initiated
prior to preferral of charges; however, the Chief Defense
Counsel of the Marine Corps had discretionary authority to
direct the appointment of counsel pursuant to Marine
Corps policy. Under the LSAM:
The responsible detailing authority shall de-
tail a defense counsel in writing to a particular
case as soon as practicable. Absent good cause, the
detailing authority shall detail a defense counsel
within:
A. Ten days of being notified via e-mail,
fax, or other written means by corrections per-
sonnel, command representatives, the mili-
tary justice section, or some other government
official that an accused has been placed in pre-
trial confinement or arrest under R.C.M. 305.
B. Five days of being served notice of pre-
ferred charges.
C. Five days of being served notice of the
appointment of an Article 32, UCMJ, Investi-
gating Officer.
D. Five days of being served an adminis-
trative separation/board of inquiry package.
E. As otherwise required by law or
regulation.
20
United States v. Flanner, No. 24-0093/MC
Opinion of the Court
Dep’t of the Navy, Marine Corps Order 5800.16-V3, Legal
Support and Administration Manual para. 011004 (Feb.
20, 2018).
At the time of Appellee’s second interview, Appellee was
not in pretrial confinement or arrest; no charges had been
preferred; an Article 32, UCMJ, investigating officer had
not been appointed; and no administrative separa-
tion/board of inquiry package had been served. Therefore,
the detailing authority was under no obligation to detail
defense counsel to Appellee under provisions (A) through
(D) of para. 011004.
Appellee has not identified any other law or regulation
that guaranteed him counsel under provision (E) of para.
011004. In addition to the mandatory detailing authorities
listed in the LSAM, the detailing authority has discretion-
ary authority pursuant to CDC Policy Memorandum 3.1D
to detail military defense counsel when “determined neces-
sary” in a variety of instances, to include to “servicemem-
bers pending investigation . . . by any law enforcement
agency, when the detailing authority reasonably believes
that such an investigation may result in court-martial,
non-judicial punishment, or adverse administrative ac-
tion.” CDC Policy Memorandum 3.1D para. 3.a.(4). Counsel
may also be detailed “in any other situation which, in the
judgement [sic] of the CDC, meets the spirit and intent of
[the LSAM], meets other applicable laws and regulations,
and best serves the interests of justice.” Id. para. 3.a.(8).
These policy provisions permit but do not require detail-
ing of counsel. Although Appellee could have received mil-
itary counsel pursuant to these policy provisions, the de-
tailing authority was not obligated to appoint military
defense counsel prior to preferral of charges and did not
exercise the discretionary power to do so even after Appel-
lee twice visited the DSO seeking legal services. Because
we conclude that no violation of the Marine Corps policy
occurred, we do not address the separate issue of whether
it would have been an abuse of discretion for the military
judge to suppress Appellee’s statements as a remedy for
such a policy violation.
21
United States v. Flanner, No. 24-0093/MC
Opinion of the Court
D. The Military Judge Abused Her Discretion
Having answered the preliminary questions, we now
turn to the certified question: whether the military judge
abused her discretion in suppressing Appellee’s second
interview. For the reasons given below, we conclude that
she did.
Under M.R.E. 304(a), “an involuntary statement from
the accused, or any evidence derived therefrom, is inadmis-
sible at trial except as provided in subdivision (e).” 9 “ ‘In-
voluntary statement’ means a statement obtained in viola-
tion of the self-incrimination privilege or Due Process
Clause of the Fifth Amendment to the United States Con-
stitution, Article 31, or through the use of coercion, unlaw-
ful influence, or unlawful inducement.” M.R.E. 304(a)(1)(A)
(2019 ed.).
The military judge ruled that Appellee’s second NCIS
interview should be suppressed because Appellee did not
give a valid waiver of his pretrial right to counsel. Accord-
ing to the military judge, “[t]he actions of various actors in
this case, to include the DSO, left the accused with an in-
accurate belief that he could not be appointed a lawyer un-
til charges were preferred.” Thus, according to the military
judge, “the [second] interview, although voluntary, was not
based on a knowing and intelligent understanding of the
right that he abandoned when he acquiesced to proceed
without having an attorney present.”
We conclude that the military judge’s ruling to suppress
Appellee’s second interview is an abuse of discretion be-
cause it was “influenced by an erroneous view of the law.”
Mott, 72 M.J. at 329 (internal quotation marks omitted) (ci-
tations omitted). The military judge erred in two respects.
9 The exceptions are “(1) to impeach by contradiction the in-
court testimony of the accused; or (2) in a later prosecution
against the accused for perjury, false swearing, or the making of
a false official statement.” M.R.E. 304(e)(1)-(2) (2019 ed.). Nei-
ther of these exceptions is at issue in the case before this Court.
22
United States v. Flanner, No. 24-0093/MC
Opinion of the Court
First, the military judge erred in assuming without de-
ciding that Appellee had a right to appointed military de-
fense counsel during the second interview. As discussed
above, neither the Constitution, Article 31, UCMJ, nor Ma-
rine Corps policy guaranteed Appellee appointed military
defense counsel for a noncustodial interview prior to pre-
ferral of charges. 10 And even if Appellee had a pretrial right
to appointed military defense counsel in the first interview,
it did not carry over to the second interview initiated four
months later by Appellee, where he was re-advised and
acknowledged he understood his rights to remain silent
and to have counsel present during the second interview.
Second, the military judge erred in concluding that Ap-
pellee was mistaken in believing he could not be appointed
military defense counsel until charges were preferred. Ap-
pellee had no constitutional or statutory right to appointed
counsel at the time of the second interview. Under Marine
Corps policy, he could have been appointed counsel for the
second interview, subject to the discretion of the detailing
authority. However, he had twice sought legal services
from the DSO and twice, he left without having secured ap-
pointed counsel. Under the circumstances, he was accu-
rately advised by the SNOIC and SA CS that he would not
receive detailed military defense counsel until charges
were preferred. See Article 27, UCMJ; Harvey, 37 M.J. at
141 (explaining that the Sixth Amendment right to counsel
attaches upon preferral of charges). Thus, Appellee’s belief
that he would only get appointed counsel if charges were
preferred was proper and the military judge abused her
discretion in finding otherwise.
“[S]ervicemembers [do not] enjoy due process protec-
tions above and beyond the panoply of rights provided to
them by the plain text of the Constitution, the UCMJ, and
10 To the extent the military judge relied on dicta in this
Court’s opinion in Mott to find a right to counsel in a noncusto-
dial interview, this too was an abuse of discretion, where the
dicta is itself an incorrect statement of the law unsupported by
the cited authorities. See supra pp. 18-20.
23
United States v. Flanner, No. 24-0093/MC
Opinion of the Court
the MCM.” United States v. Vazquez, 72 M.J. 13, 19
(C.A.A.F. 2013). Having concluded Appellee had no right to
appointed military defense counsel during the second in-
terview, we need not answer whether any such right was
waived. We hold that the military judge abused her discre-
tion by granting the motion to suppress.
IV. Conclusion
We answer the certified question in the affirmative. The
decision of the United States Navy-Marine Corps Court of
Criminal Appeals is reversed. The case is returned to the
Judge Advocate General of the Navy for remand to the mil-
itary judge for further proceedings consistent with this
opinion.
24
United States v. Flanner, No. 24-0093/MC
Chief Judge OHLSON, dissenting.
It is a truism, of course, that military judges abuse
their discretion when they misapprehend and misapply
the law. And as the majority opinion correctly notes, the
military judge in this case did both. Specifically, the mili-
tary judge mistakenly concluded that Appellee had a right
to appointed military counsel during noncustodial, pre-pre-
ferral questioning, and she consequently granted a defense
motion to suppress Appellee’s statement to law enforce-
ment officers. However, the military judge’s misstep is only
one facet of the entire story here. The broader reality is
that this Court bears responsibility for sowing seeds of le-
gal confusion about whether a servicemember has a right
to appointed military counsel during noncustodial ques-
tioning. Indeed, as will be explained in further detail below,
the language this Court employed in United States v. Mott,
72 M.J. 319, 330 n.10 (C.A.A.F. 2013), was so misleading
that it caused not only this military judge but also a service
court of criminal appeals in an unrelated case to reach the
wrong conclusion about what the law actually requires.
Moreover, during motions proceedings before the military
judge, it was Government counsel who repeatedly cited
Mott in his written filings and then wrongly proclaimed
during the motions hearing that Appellee had indeed been
entitled to appointed military counsel during questioning.
These peculiar circumstances raise important ques-
tions. Namely, should this Court just simply declare that
the military judge’s ruling was outside the range of reason-
able choices because she got the law wrong, and then pro-
nounce that she therefore abused her discretion? Or should
this Court instead openly acknowledge the role we have
played in muddling the law, decline to find that the mili-
tary judge abused her discretion because the law was un-
settled by the language we used in Mott, and then use this
case to unequivocally state the correct view of the law going
forward? I concede that it is a close call. Ultimately, how-
ever, I conclude that adherence to the tenets of the oft-em-
ployed “abuse of discretion” standard requires us to hold
that the military judge in this case did not abuse her dis-
cretion because of the confusion we created regarding the
applicable law. Thus, I would hold in favor of Appellee in
United States v. Flanner, No. 24-0093/MC
Chief Judge OHLSON, dissenting
this case—Staff Sergeant Flanner—and affirm the decision
of the United States Navy-Marine Corps Court of Criminal
Appeals. Because the majority holds to the contrary, I re-
spectfully dissent.
One important point must be made clear at the outset
of this opinion. Namely, under applicable laws and regula-
tions, a servicemember does not have a right to appointed
military counsel when being questioned during a pre-pre-
ferral, noncustodial interview. Full stop. 1 There is no day-
light between my position on this issue and that of the ma-
jority. But as indicated above, I believe this case is about
far more than just this basic legal principle. And it all be-
gins with a fateful footnote.
In the Mott opinion, this Court stated as follows:
Consistent with our precedents, we note that in
the military system the accused’s right to coun-
sel—and the requirement of knowing and volun-
tary waiver—are not limited to custodial interro-
gation. See United States v. Delarosa, 67 M.J. 318,
320 (C.A.A.F. 2009) (“Military officials and civil-
ians acting on their behalf are required to provide
rights warnings prior to interrogating a member
of the armed forces if that servicemember is a sus-
pect, irrespective of custody. Article 31(b), [Uni-
form Code of Military Justice (UCMJ)], 10 U.S.C.
§ 831(b) (2000); Military Rule of Evidence (M.R.E.)
305(b)(1), 305(c).”).
72 M.J. at 330 n.10. As can be seen, this passage stakes out
the position that a servicemember has a right to military
counsel even in noncustodial situations. Moreover, in mak-
ing this point, the Mott Court invoked our own
1 The Chief Defense Counsel of the Marine Corps (CDC) has
issued a policy memorandum for detailing military defense
counsel. This memorandum provides the discretionary
“authority to detail defense counsel” pre-preferral if the
“circumstances [are] determined necessary,” including if a
servicemember is “pending investigation . . . by any law
enforcement agency, when the detailing authority reasonably
believes that such an investigation may result in court-martial.”
CDC Policy Memorandum 3.1D para. 3.a.(4) (Nov. 6, 2020). But
this authority to detail military counsel does not translate into
a right to military counsel.
2
United States v. Flanner, No. 24-0093/MC
Chief Judge OHLSON, dissenting
“precedents.” And yet the only precedent that is specifically
cited—United States v. Delarosa—does not stand for the
proposition that this Court claimed. 2 Indeed, no precedent
of this Court has stated that, without more, a servicemem-
ber has a right to military counsel during a noncustodial
interrogation.
Nevertheless, the damage was done. Indeed, the fact
that in Mott this Court managed to bollix up the law is am-
ply demonstrated by the case of United States v. Davis.
There, the United States Army Court of Criminal Appeals
pointed directly to the language in Mott when determining
that “the distinction between custodial and non-custodial
interrogation in the military context appears irrelevant”
because “[the U.S. Court of Appeals for the Armed Forces
has] extend[ed] counsel rights . . . to accused who are only
subjected to mere non-custodial interrogation.” United
States v. Davis, No. ARMY 20160069, 2018 CCA LEXIS
417, at *11, 2018 WL 3996488, at *4 (A. Ct. Crim. App. Aug.
16, 2018) (unpublished). If our Mott decision caused a ser-
vice court of criminal appeals to conclude upon reflection
and consideration that we had extended counsel rights to
noncustodial interrogations, how can we now claim in good
faith that this military judge, who was operating under the
significant time pressures imposed by a trial docket, should
have known better?
This misunderstanding of the law also extended to the
Government counsel in this case. During arguments on the
defense motion to suppress Appellee’s statement, it was the
trial counsel who told the military judge: “[O]bviously the
accused rated counsel.” 3 Although the Government’s con-
cession is not binding on this Court, this clear-cut
2 Delarosa discussed the “rights warnings” of “a person in
custody” and held that the appellant waived his Miranda rights.
67 M.J. 318, 320, 325 (C.A.A.F. 2009) (emphasis added).
3 In the Marine Corps, the phrase “rated counsel” is
synonymous with the right of a servicemember to have
appointed military counsel. See Merriam Webster’s Online
Dictionary, https://www.merriam-webster.com/dictionary/rated
(last visited Sept. 16, 2024) (defining “rated” as “to have a right
to”).
3
United States v. Flanner, No. 24-0093/MC
Chief Judge OHLSON, dissenting
statement demonstrates that not only the military judge
but also the trial counsel misunderstood the applicable law.
Moreover, I note that the Government adopted this errone-
ous position after repeatedly citing to Mott in its motions
filings. Further, this was not an uninformed or inadvertent
remark by trial counsel. Instead, it occurred after a recess
in which trial counsel acknowledged that he had “had an
opportunity to talk to . . . supervisory counsel” about this
point. Thus, the military judge’s ruling that there was a
right to appointed counsel for Appellee’s pre-preferral, non-
custodial interrogation must be examined in the context of
trial counsel’s erroneous concession, and that erroneous
concession certainly appears to have been tainted by our
flawed language in Mott.
On appeal, the Government understandably questions
whether this Court can definitively know whether the mil-
itary judge relied on the Mott footnote in reaching her de-
cision in this case. Indeed, the parties at trial did not spe-
cifically cite this footnote, and the military judge did not
cite any case law in her oral ruling. However, as stated
above, the parties frequently cited to the Mott opinion in
their filings, so presumably they knew what Mott said—
including the infamous footnote. Also, as Appellee’s counsel
noted at oral argument before this Court, “the military
judge was clearly relying on Mott” when “she signaled the
test this Court established in United States v. Mott” as the
basis for determining whether there was a waiver of coun-
sel rights. Oral Argument at 31:12-31:28, United States v.
Flanner (C.A.A.F. May 7, 2024) (No. 24-0093). Therefore, it
requires no stretch of the imagination to conclude that the
Mott footnote was part of the military judge’s legal calculus
when she found Appellee, who was not in custody, held “an
inaccurate belief” that he was not entitled to appointed mil-
itary counsel “until charges were preferred.”
As the majority opinion correctly observes, it is im-
portant to acknowledge that the Mott footnote is rife with
weaknesses. To start, it is dicta because the appellant in
Mott was already in custody during his questioning. See 72
M.J. at 322. Next, the authorities cited by this Court to
support the notion that there is a noncustodial right to
4
United States v. Flanner, No. 24-0093/MC
Chief Judge OHLSON, dissenting
appointed counsel—Delarosa, 4 Article 31(b), 5 and M.R.E.
305(b)(1), (c) (2008 ed.) 6—do not, in fact, support that prop-
osition. 72 M.J. at 330 n.10. And finally, absent Mott, all of
the relevant legal authorities make it clear that there is no
right to appointed counsel during pre-preferral, noncusto-
dial interviews. See United States v. Flanner, __ M.J. __, __
(13-15, 17-22) (C.A.A.F. 2024) (citing authorities); see also
United States v. Mitchell, 76 M.J. 413, 417 (C.A.A.F. 2017);
M.R.E. 305(d), (e)(3) (2019 ed.). But despite these weak-
nesses, the Mott footnote still says what it says, and it no-
tably refers to unnamed “precedents,” suggesting that this
Court was merely summarizing well-settled military law.
One can hardly blame a military judge for accepting at face
value a legal proposition that this Court has baldly pro-
claimed in a published opinion. Even the Government at
oral argument admirably conceded that the Mott footnote
“puts judges in a difficult position.” Oral Argument at
14:17-14:22.
Because this Court’s footnote in Mott states that a
servicemember’s “right to counsel . . . [is] not limited to
custodial interrogation[s],” 72 M.J. at 330 n. 10, and
because the trial counsel in this case went along with this
misunderstanding of the law as applied to this case, I
cannot conclude in good faith that the military judge’s
ruling was “outside the range of choices reasonably arising
from the applicable facts and the law.” United States v.
Shields, 83 M.J. 226, 230 (C.A.A.F. 2023) (citation omitted)
(internal quotation marks omitted). Therefore, in light of
this Court’s muddling of the law, I do not believe it can be
said that the military judge abused her discretion. Because
the majority reaches a contrary conclusion, I respectfully
dissent.
4 As discussed above, Delarosa discussed rights warnings for
servicemembers in custody.
5 Article 31(b) concerns warnings to a suspect about the right
to remain silent. By its plain terms, this provision “does not
confer a right to assistance of counsel.” United States v. Lincoln,
42 M.J. 315, 321 (C.A.A.F. 1995).
6 These M.R.E. provisions merely implement Article 31(b).
See M.R.E. 305(c) (2008 ed.).
5
United States v. Flanner, No. 24-0093/MC
Judge SPARKS, dissenting.
I join the Chief Judge in dissenting from the majority’s
conclusion that the military judge abused her discretion by
considering United States v. Mott, 72 M.J. 319, 330 n.10
(C.A.A.F. 2013). However, beyond that, I am compelled to
express my disagreement with the majority opinion. The
majority’s focus on Appellee’s claim to have had a right to
counsel during a noncustodial law enforcement interview
misses the point of what happened in this case and, in my
view, sidesteps the real issue at stake. The central question
here is whether Appellee fully understood the scope of the
right to counsel he invoked at the first interview before de-
ciding to proceed with questioning at the second interview.
I. Background
When the Naval Criminal Investigative Service (NCIS)
first attempted to interrogate Appellee, Special Agent (SA)
SC advised him of his rights prior to the interview, includ-
ing his right to counsel. Appellee indicated on the written
rights form that he “would like to have a lawyer present
during questioning,” so SA SC properly ended the inter-
view. After the truncated interview, Appellee visited the
base Defense Service Office (DSO) twice in the hope of
speaking to an attorney. The record does not further illu-
minate who Appellee spoke to at the DSO, what he told
them, or what information he received. There is no evi-
dence in the record that Appellee ever spoke to a lawyer at
the DSO. 1
After approximately four months passed without Appel-
lee receiving any updates on the investigation, he
1 In its background section, the majority states that
“[a]ccording to his trial defense counsel, in May of 2021, Appellee
spoke with an attorney.” United States v. Flanner, __ M.J. __, __
(3) (C.A.A.F. 2024). In their written motion to suppress, trial de-
fense counsel stated that Appellee spoke to an attorney at the
DSO. However, counsel cited Appellee’s declaration, which was
provided as Enclosure 2 to the motion. In that declaration, Ap-
pellee only stated that he went to the DSO to seek legal services,
not that he ever actually spoke to an attorney. The military
judge found only that Appellee “made two separate attempts to
get an attorney by visiting the Defense Services Office, where he
was turned away.”
United States v. Flanner, No. 24-0093/MC
Judge SPARKS, dissenting
consulted his staff noncommissioned officer-in-charge
(SNOIC) about whether he would get appointed military
counsel at an NCIS interview. The SNOIC spoke with the
command staff judge advocate (SJA) and told Appellee that
he “would only receive counsel if charges were preferred.”
In a witness interview, the SNOIC recalled that the SJA
told him there was not much the Marine Corps Legal Ser-
vices Support Section could do for Appellee “because he
wasn’t legally charged for something.” When interviewed,
the SJA clarified twice that he made sure to let the SNOIC
know that the information could not be passed to Appellee
as legal advice because the SJA was not his attorney.
Again, there is no indication Appellee spoke to a lawyer
himself.
Appellee interpreted the second-hand advice he re-
ceived from the SNOIC to mean that he “could not do an
interview with military counsel present.” Wanting to move
forward with the case, Appellee then decided to contact the
NCIS case agent and requested an interview without coun-
sel present. On September 15, 2021, four months after
NCIS had initiated the first interview, Appellee went in for
an interview with SA SC. SA SC asked Appellee if he
wanted to speak with her because, when he came in previ-
ously, he had requested a lawyer. Appellee told SA SC that
his command had explained his right to counsel to him and
he now understood he could not be appointed a lawyer until
charges were preferred. SA SC then reviewed a rights ad-
visement form with Appellee and Appellee signed it.
The standard acknowledgement and cleansing waiver
of rights signed by Appellee contained two lines about the
right to counsel. It informed him that:
I have the right to consult with a lawyer prior to
any questioning. This lawyer may be a civilian
lawyer retained by me at no cost to the United
States, a military lawyer appointed to act as my
counsel at no cost to me, or both;
. . . I have the right to have my retained civil-
ian lawyer and/or appointed military lawyer pre-
sent during this interview.
2
United States v. Flanner, No. 24-0093/MC
Judge SPARKS, dissenting
However, despite these rights and despite his best efforts,
there is no indication Appellee ever consulted directly with
an attorney.
Charges were not preferred until November 18, 2022,
over eighteen months after Appellee’s initial interview
with NCIS. Appellee finally had access to an attorney when
defense counsel was detailed to him in early December
2022.
The military judge granted defense counsel’s motion to
suppress based on her determination that Appellee had
been given “an inaccurate belief that he could not be ap-
pointed a lawyer until charges were preferred.” She deter-
mined that Appellee “made two separate attempts to get
an attorney by visiting the Defense Services Office, where
he was turned away” and “asked his chain of command a
number of questions about how he could get an attorney.”
The lower court found that these findings of fact were not
clearly erroneous. United States v. Flanner, No. NMCCA
202300134, 2023 CCA LEXIS 428, at *9, 2023 WL 6564919,
at *3 (N-M. Ct. Crim. App. Oct. 10, 2023) (unpublished).
The military judge concluded that Appellee “went forward
with the interview without a lawyer present,” even though
“[h]is actions showed that he truly desired to have an at-
torney,” and that “the interview, although voluntary, was
not based on a knowing and intelligent understanding of
the right that he abandoned when he acquiesced to proceed
without having an attorney present.”
II. Analysis
“In an Article 62, UCMJ, appeal, this Court reviews the
military judge’s decision directly and reviews the evidence
in the light most favorable to the party which prevailed at
trial,” which in this case is Appellee. United States v.
Becker, 81 M.J. 483, 488 (C.A.A.F 2021) (quoting United
States v. Pugh, 77 M.J. 1, 3 (C.A.A.F. 2017)). “On matters
of fact with respect to appeals under Article 62, UCMJ, we
are bound by the military judge’s factual determinations
unless they are unsupported by the record or clearly erro-
neous.” Pugh, 77 M.J. at 3 (citing United States v. Gore, 60
M.J. 178, 185 (C.A.A.F. 2004)). We review a military
3
United States v. Flanner, No. 24-0093/MC
Judge SPARKS, dissenting
judge’s decision to suppress evidence for an abuse of discre-
tion. Becker, 81 M.J. at 488 (citing United States v. Bowen,
76 M.J. 83, 87 (C.A.A.F. 2017)). If the military judge does
not put her findings and analysis on the record, she will be
accorded less deference. United States v. Finch, 79 M.J.
389, 397 (C.A.A.F. 2020) (quoting United States v. Flesher,
73 M.J. 303, 312 (C.A.A.F. 2014)). Here, the military judge
did not make written findings and conclusions or directly
cite any relevant law, including the Fifth or Sixth Amend-
ments. However, she did articulate the factual basis and
reasoning behind her decision to suppress the interview
and she did assess whether Appellee’s waiver met the
proper legal standard of knowing and intelligent. There-
fore, I believe we owe her some deference.
The Fifth Amendment to the United States Constitu-
tion guarantees that no suspect “shall be compelled in any
criminal case to be a witness against himself.” U.S. Const.
amend. V. “[T]he right to have counsel present at the [cus-
todial] interrogation is indispensable to the protection of
the Fifth Amendment privilege.” Miranda v. Arizona, 384
U.S. 436, 469 (1966). “[A]n individual held for interrogation
must be clearly informed that he has the right to consult
with a lawyer and to have the lawyer with him during in-
terrogation under the system for protecting privilege we
delineate today. . . . [T]his warning is an absolute prereq-
uisite to interrogation.” Id. at 471.
Military Rule of Evidence (M.R.E.) 305 protects a sus-
pect’s Fifth Amendment right to counsel. M.R.E. 305(d)
states that when a person subject to custodial interrogation
requests an attorney, military counsel must be provided at
no expense to the person and must be present before the
interrogation can proceed.
Marine Corps policy grants the Chief Defense Counsel
discretionary authority to detail defense counsel as deter-
mined necessary “to servicemembers pending investigation
. . . by any law enforcement agency, when detailing author-
ity reasonably believes that such an investigation may re-
sult in court-martial, nonjudicial punishment, or adverse
administrative action.” CDC Policy Memorandum 3.1D
para. 3.a.(4) (Nov. 6, 2020). The Marine Corps Legal
4
United States v. Flanner, No. 24-0093/MC
Judge SPARKS, dissenting
Support and Administration Manual does not include a
time line for detailing defense counsel for servicemembers
pending investigation. It does note a time line for those
against whom charges have been preferred. Dep’t of the
Navy, Marine Corps Order 5800.16-V3, Legal Support and
Administration Manual para. 011004 (Feb. 20, 2018). How-
ever, the fact that there is no formal detailing procedure
prior to preferral of charges does not negate an accused’s
right to consult counsel or have counsel present before an
interrogation can proceed. Here, Appellee was advised of
and invoked his right to consult with counsel and to have
counsel present before deciding to proceed with further
questioning.
A determination of whether any waiver of counsel was
knowing and intelligent depends upon “the particular facts
and circumstances surrounding that case.” Edwards v. Ar-
izona, 451 U.S. 477, 482 (1981) (internal quotation marks
omitted) (quoting Johnson v. Zerbst, 304 U.S. 458, 464
(1938)). The accused must have “full awareness of both the
nature of the right being abandoned and the consequences
of the decision to abandon it.” Berghuis v. Thompkins, 560
U.S. 370, 382-83 (2010) (internal quotation marks omitted)
(citation omitted). “The government must show waiver by
a preponderance of the evidence.” Mott, 72 M.J. at 330 (cit-
ing Berghuis, 560 U.S. at 384). I am not convinced that,
under the circumstances of this case, the Government has
met this burden.
The Supreme Court has established that an accused
does not have a Fifth Amendment right to counsel when he
initiates communication with law enforcement. Edwards,
451 U.S. at 485. I agree with the majority that Appellee’s
second interview was self-initiated and noncustodial. How-
ever, we cannot divorce Appellee’s choice to contact NCIS
of his own accord from the multiple attempts to consult
with an attorney that preceded it. Appellee was under the
mistaken belief that he could only receive or consult with
military counsel once charges were preferred. This infor-
mation contradicts M.R.E 305(d) and its provision that mil-
itary counsel must be provided, if requested, for a custodial
interrogation. And it contradicts Appellee’s right, outlined
5
United States v. Flanner, No. 24-0093/MC
Judge SPARKS, dissenting
in the rights advisement utilized by NCIS, to consult with
an attorney prior to such an interview. Appellee did sign a
rights form prior to the second interview with law enforce-
ment that indicated he understood he was entitled to ap-
pointed counsel during an interview with law enforcement
and that he waived that right. But it is difficult to conclude
this waiver was knowing and intelligent. The record indi-
cates that neither the DSO nor the SJA communicated to
Appellee that he had the right to consult with counsel prior
to a custodial interview with NCIS. As noted earlier, there
is no evidence that Appellee ever spoke to a lawyer and the
SJA’s information communicated through the SNOIC that
the DSO could not help him was just wrong. It was simply
not true that he could not talk to a military defense attor-
ney until after charges have been preferred, even if that is
when the formal detailing procedure customarily occurs. 2
We view Appellee’s waiver of his right to counsel
against “the particular facts and circumstances surround-
ing that case,” including the misleading information he re-
ceived from his command and the DSO. Edwards, 451 U.S.
at 482 (internal quotation marks omitted) (citation omit-
ted). Even though Appellee had no right to counsel when
he initiated an interview with NCIS, a proper understand-
ing of his overall rights most likely would have influenced
his decision to go to them on his own. It is hard to argue
that he made a fully informed decision on how to proceed.
Appellee claimed that he “reached out [to law enforcement]
because [he] believed that [he] could not do an interview
with military counsel present.” He “only thought that [he]
could do an interview with an attorney present if [he] hired
2 I remain skeptical that a Marine staff sergeant presenting
himself to a judge advocate at the DSO, explaining to that law-
yer that he was under investigation for fraud against the United
States and forgery and that the NCIS had recently interviewed
him, would have simply been turned away. If Appellee was
turned away after consulting counsel, I would expect some evi-
dence to be entered into the record indicating why and by whom
such a determination was made. The Government had the bur-
den to show that Appellee consulted with counsel and they have
not done so.
6
United States v. Flanner, No. 24-0093/MC
Judge SPARKS, dissenting
a civilian attorney.” It is clear that he did not properly un-
derstand the scope of his right to counsel. Given this mis-
taken belief, Appellee did not possess the necessary “full
awareness of both the nature of the right being abandoned
and the consequences of the decision to abandon it” to
knowingly and intelligently waive the right. Berghuis, 560
U.S. 382-83 (internal quotation marks omitted) (citation
omitted).
This might be a different case if Appellee’s mistaken be-
lief had been of his own making. It also might be a different
case if the record showed that he in fact consulted counsel,
was told that the DSO was not going to provide counsel at
any subsequent meetings with investigators and that it
might not be in his best interest to meet with them without
counsel present, and, armed with this advice, he still de-
cided to initiate contact with NCIS for a second interview.
But, based on the record before us, this is not what hap-
pened. The majority’s decision to assume a critical fact not
in evidence, namely, that Appellee actually spoke with a
lawyer, is inconsistent with our mandate to review the ev-
idence “in the light most favorable to the party which pre-
vailed at trial.” Pugh, 77 M.J. at 3.
In addition, as pointed out by the Chief Judge in his dis-
sent, we must acknowledge this Court’s footnote in Mott
that, “[c]onsistent with our precedents, we note that in the
military justice system the accused’s right to counsel—and
the requirement of knowing and voluntary waiver—are not
limited to custodial interrogation.” 72 M.J. at 330 n.10.
This footnote implies that a servicemember’s right to coun-
sel extends to noncustodial interview situations such as
Appellee’s voluntary decision to speak with NCIS. The foot-
note cites United States v. Delarosa, 67 M.J. 318, 320
(C.A.A.F. 2009), and its statement that law enforcement
“are required to provide rights warnings prior to interro-
gating a member of the armed forces if that servicemember
is a suspect, irrespective of custody.” I agree with the ma-
jority opinion that this is an inaccurate statement of the
law. There is no indication that Delarosa, which involved a
suspect facing custodial interrogation, intended to confer a
right to counsel beyond the circumstances at issue in that
7
United States v. Flanner, No. 24-0093/MC
Judge SPARKS, dissenting
case and beyond what is guaranteed by the Fifth and Sixth
Amendments and M.R.E. 305. Id. at 322. The footnote in
Mott, if interpreted literally, would create a major, and I
believe, unintended expansion of our case law surrounding
the right to counsel. 3 However, even if this Court now clar-
ifies that the footnote is inaccurate and not binding, at the
time the military judge made her ruling it was part of the
existing case law. In assessing the military judge’s deci-
sion, we must take into account our own muddled version
of the law rather than simply casting it aside as something
the military judge would and should have known was inap-
plicable dicta.
The certified issue this Court has been asked to address
includes both the question of Appellee’s right to counsel at
a noncustodial interview and his right to silence at such an
interview. The majority rightly concludes that “the protec-
tions afforded by Article 31(b), UCMJ, were applicable dur-
ing Appellee’s second interview.” Flanner, __ M.J. at __
(15). It seems obvious to me that Appellee’s mistaken belief
about the scope of his right to consult with counsel and to
have counsel present influenced his decision to initiate con-
tact for the second interview and to waive his right to re-
main silent at that interview. The military judge properly
assessed the facts and circumstances surrounding Appel-
lee’s decision to waive his right to counsel. Given his
3 For instance, in United States v. Davis, the United States
Army Court of Criminal Appeals recently cited the Mott footnote
and stated that:
[T]he distinction between custodial and non-cus-
todial interrogation in the military context ap-
pears irrelevant. Our superior court extends coun-
sel rights . . . to accused who are only subject to
mere non-custodial interrogation.
. . . Even with the explicit words in Mil. R. Evid.
305(e)(3)(A) requiring ‘custodial interrogation’ . . .
we nevertheless apply CAAF’s precedent.
No. ARMY 20160069, 2018 CCA LEXIS 417, at *11, 2018 WL
3996488, at *4 (A. Ct. Crim. App. Aug. 16, 2018) (unpublished).
8
United States v. Flanner, No. 24-0093/MC
Judge SPARKS, dissenting
mistaken understanding of the scope of that right and the
Court’s inconsistency regarding the applicable law, review-
ing the evidence in the light most favorable to Appellee, the
military judge did not abuse her discretion in determining
that Appellee’s waiver was not knowing and intelligent.
For these reasons, I respectfully dissent.
9