Sasen v. Spencer ( 2018 )

United States Court of Appeals
For the First Circuit
No. 17-1394
JERED SASEN,
Petitioner, Appellant,
v.
RICHARD V. SPENCER,
Secretary of the Navy,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Allison D. Burroughs, U.S. District Judge]
Before
Lynch and Selya, Circuit Judges,
and Levy, District Judge.
Matthew T. Bohenek, with whom Sabin Willett and Eugene R.
Fidell were on brief, for appellant.
Annapurna Balakrishna, Assistant United States Attorney, with
whom William D. Weinreb, Acting United States Attorney, was on
brief, for appellee.

Pursuant to Fed. R. App. P. 43(c)(2), we have substituted
Richard V. Spencer, Secretary of the Navy, for Sean J. Stackley,
Acting Secretary of the Navy, as appellee.

Of the District of Maine, sitting by designation.
January 9, 2018
SELYA, Circuit Judge. This case, which pits a retired
petty officer against the United States Navy, is awash with novel
legal questions concerning the application and operation of
Article 31 of the Uniform Code of Military Justice (UCMJ). These
questions center on Article 31(b), which requires that a sailor
suspected of an offense be warned both that he need not make any
statement regarding that offense and that any statement he makes
may be used as evidence against him in a subsequent trial by court-
martial. See 10 U.S.C. § 831(b).
Specifically, petitioner-appellant Jered Sasen asserts
that he was entitled to a "cleansing warning,"1 but failed to
receive it. He further asserts that his waiver of Article 31
rights was involuntary, that he unfairly received a negative
performance evaluation, and that his promotion recommendation was
improperly rescinded. The Board for Correction of Naval Records
(the Board) found these assertions unavailing and upheld the
petitioner's non-judicial punishment, the Navy's rescission of his
recommendation for promotion, and his adverse employment
evaluation.
The petitioner sought judicial review. The district
court rejected the petitioner's asseverations and refused to set
1
The term "cleansing warning" refers to a warning given to
an accused service member advising him that earlier statements, if
made without an Article 31(b) warning, cannot be used against him
in a subsequent trial by court-martial.
- 3 -
aside the Board's decision. See Sasen v. Mabus, No. 16-cv-10416,
2017 WL 1147443, at *13 (D. Mass. Mar. 27, 2017). We hold that
the exclusionary remedy limned in Article 31(d) applies to evidence
offered in a trial by court-martial but not in a non-judicial
punishment proceeding; that both the Board's determination of
voluntariness and its approval of the adverse employment
consequences are in accordance with law; and that, in all events,
any error is not prejudicial. Consequently, we affirm the district
court's denial of the underlying petition for judicial review.
I. BACKGROUND
We start by rehearsing the largely undisputed facts and
then proceed, step by step, through the labyrinthine travel of the
case.
A. The Facts.
The petitioner joined the Navy in 2006 and, until early
2014, compiled an impressive record. During that period, he
received positive performance evaluations and numerous awards. By
2014, he was working as a Damage Controlman aboard the USS
Constitution, berthed at the Charlestown Navy Yard in
Massachusetts. By then, he was "frocking" as a Chief Petty
Officer.2 At the time, he also had garnered a recommendation for
a promotion to that rank (which was pending).
2
"Frocking" is the "administrative authorization to assume
the title and wear the uniform of a higher pay grade" before being
- 4 -
The denouement came on January 11, 2014. While on duty
that night, the petitioner learned that Elizabeth Abril, a sailor
under his command, had hurt herself by punching a bulkhead out of
frustration over a romantic entanglement gone sour. After Abril
told the petitioner what had happened, he asked her whether she
wanted to disclose the true story to their superior officer or
whether she wanted to fudge the truth and say that she had slipped
and fallen. Before Abril could respond, the superior happened to
call, and the petitioner prevaricated about the cause of Abril's
injury.
A different sailor took Abril to a shoreside medical
facility, where she received care. In the morning, the petitioner
reiterated the lie (that Abril had injured her hand by slipping
and falling) to the incoming duty officer, Lieutenant Julien R.
Geiser.
B. The Disciplinary Review Board.
In the days that followed, the petitioner learned the
hard way that "[n]othing is so painful to the human mind as a great
and sudden change." Mary Shelley, Frankenstein 209 (Transatlantic
formally promoted to that grade. U.S. Dep't of Navy, Military
Personnel Manual, 1420-060 (2014),
http://www.public.navy.mil/bupers-
npc/reference/milpersman/1000/1400Promotions/Documents/1420-
060%20.pdf. This authorization is meant to "provide[] early
recognition" for selected Navy members and obligates those members
to "exercise increased authority and willingly accept greater
responsibility." Id.
- 5 -
Press Books 2012) (1818). This observation has special bite when
damage to one's professional reputation is in prospect.
On the morning of January 13, the Navy convened an
Enlisted Disciplinary Review Board (DRB) to question the
petitioner about the events of January 11 and 12. The DRB was a
vehicle designed to "screen disciplinary cases of enlisted
personnel and mak[e] recommendations . . . regarding
dispositions." U.S. Dep't of Navy, Navy Personnel Command
Instruction 5811.1 (2007). Among other things, a DRB may interview
the accused sailor, scrutinize his service record, and hear from
material witnesses. See id.
At the commencement of a DRB hearing, accused
individuals are advised of their rights under Article 31(b) of the
UCMJ, which provides:
No person subject to this chapter may
interrogate, or request any statement from, an
accused or a person suspected of an offense
without first informing him of the nature of
the accusation and advising him that he does
not have to make any statement regarding the
offense of which he is accused or suspected
and that any statement made by him may be used
as evidence against him in a trial by court-
martial.
10 U.S.C. § 831(b). The petitioner claims — and the Navy does not
meaningfully dispute — that he did not receive such a warning when
his DRB convened.
- 6 -
During the DRB hearing, the petitioner confessed that he
had falsely told Lieutenant Geiser (on the morning of January 12)
that Abril had injured her hand by slipping and falling,
notwithstanding his knowledge of the true cause of her injury. A
day after the DRB adjourned the hearing, it referred the petitioner
to a non-judicial punishment proceeding known as a Captain's Mast.
At the same time, the DRB recommended that the petitioner's
promotion recommendation be rescinded.
C. Post-DRB Statements.
Within a matter of hours after the DRB hearing ended,
Lieutenant Geiser informed the petitioner that, based on the events
of January 11-12, the petitioner was suspected of having committed
two offenses under the UCMJ: dereliction of duty (by willfully
failing to report the true circumstances of Abril's injuries to
the chain of command), see id. § 892, and making a false official
statement (by furnishing Lieutenant Geiser, with intent to
deceive, an official statement that Abril's injury was caused by
"slipping on ice"), see id. § 907. Lieutenant Geiser advised the
petitioner in writing of his rights under Article 31(b), but the
written advice did not include a cleansing warning that informed
the petitioner that his earlier unwarned statements could not be
used against him in a later proceeding. The petitioner signed a
waiver acknowledging that he had been advised of his Article 31(b)
rights. He then made a written statement admitting that he had
- 7 -
falsely told his superior officer that Abril had fallen on the
evening of January 11 and that he had repeated the lie the next
morning to Lieutenant Geiser. The petitioner expressed regret for
his actions and wrote that he had not seen "the big picture."
The petitioner was not the only person to submit a
statement. On January 13, Abril wrote that, on January 11, she
had told the petitioner the circumstances surrounding her injury.
She described how, in her presence, the petitioner had lied to a
superior officer. Although she initially planned to go along with
the lie, she changed her mind: when she was asked directly by a
superior officer what had happened, she told the truth.
On January 15, the petitioner was notified that the
Commanding Officer was considering non-judicial punishment as
recommended by the DRB. See id. § 815. The petitioner was offered
the opportunity to avoid non-judicial punishment by opting instead
for a court-martial. In addition, he was told that he could seek
legal advice before making this choice. The petitioner, however,
elected to waive his right to counsel and face non-judicial
punishment (in the form of a Captain's Mast).
D. The Captain's Mast.
The Captain's Mast was held on January 15. The presiding
officer, Captain Sean D. Kearns, had received a report of the
- 8 -
incident from Lieutenant Geiser.3 He also had access to the written
statement that the petitioner had given to Lieutenant Geiser,
Abril's written statement, and a written statement obtained from
the sailor who had transported Abril to receive medical care.
During the proceeding, the petitioner admitted that he had made a
false report to Lieutenant Geiser on the morning of January 12.
Captain Kearns found that the petitioner had committed
both of the charged offenses. For these offenses, the petitioner
was subject to the following types of punishment: verbal reprimand,
written reprimand, restriction, extra duties, forfeiture of pay,
and reduction in rank. Captain Kearns chose to issue a written
reprimand. Separate from this non-judicial punishment, Captain
Kearns placed an adverse performance evaluation in the
petitioner's file and rescinded the earlier recommendation for
promotion.
E. Further Proceedings.
The petitioner appealed the non-judicial punishment and
protested both the rescission of the promotion recommendation and
the adverse performance evaluation. He maintained that the
punishment was not only disproportionate but also invalid because
he did not receive an Article 31(b) warning prior to the DRB
3At the time of the relevant events, Captain Kearns was
Lieutenant Geiser's commanding officer and, thus, was directly in
the chain of command.
- 9 -
hearing. On February 14, 2014, the Director of Navy Staff (the
Director) denied the petitioner's intra-agency appeal, declaring
that his non-judicial punishment — a written reprimand — was
"neither unjust nor disproportionate" to his offenses. In the
course of this determination, the Director found that the
petitioner had "knowingly, intelligently, and voluntarily" waived
his right to counsel.
The petitioner then appealed to the Board alleging — in
addition to his earlier plaints — that he had failed to receive a
cleansing warning before providing further incriminating
statements both to Lieutenant Geiser and at the Captain's Mast.
He asked the Board to "correct" his record by removing the non-
judicial punishment. See id. § 1552. The Office of the Judge
Advocate General provided the Board with an advisory opinion
concluding that the petitioner's non-judicial punishment was
lawfully administered. Based on this opinion and other materials
in the record, the Board refused the petitioner's entreaty,
explaining in part that he had not made a sufficient showing to
"establish the existence of [a] probable material error or
injustice."
Struggling to keep his case afloat, the petitioner
repaired to the federal district court. Naming the Secretary of
the Navy (the Secretary) as respondent, he sought judicial review
of the Board's decision under the Administrative Procedure Act
- 10 -
(APA). See 5 U.S.C. § 706. His petition beseeched the court to
annul the non-judicial punishment and order the Board to correct
his record by removing the written reprimand. He also sought to
have the Board vitiate his adverse employment evaluation and
reinstate the recommendation for his promotion.
Shortly after instituting the district court action, the
petitioner resigned from the Navy. He remained intent, though, on
removing the blot on his escutcheon, and his action continued
unabated. In due season, he moved for summary judgment,4 and the
Secretary cross-moved to affirm the Board's decision. The district
court took the matter under advisement and, in a thoughtful
rescript, ruled in the Secretary's favor. See Sasen, 2017 WL
1147443, at *13. This timely appeal followed.
II. STANDARD OF REVIEW
Under the APA, judicial review is limited: a district
court may set aside an agency decision only if that decision is
(A) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance
with law;
4A motion for summary judgment has a "special twist in the
administrative law context." Bos. Redev. Auth. v. Nat'l Park
Serv., 838 F.3d 42, 47 (1st Cir. 2016) (quoting Associated
Fisheries of Me., Inc. v. Daley, 127 F.3d 104, 109 (1st Cir.
1997)). In such circumstances, the summary judgment motion merely
serves to "tee up" the case for decision on the administrative
record. Id.; see infra Part II (setting out APA standards of
review). The traditional summary judgment framework is
inapposite. See Bos. Redev. Auth., 838 F.3d at 47.
- 11 -
(B) contrary to constitutional right, power,
privilege, or immunity;
(C) in excess of statutory jurisdiction,
authority, or limitations, or short of
statutory right;
(D) without observance of procedure required
by law;
(E) unsupported by substantial evidence in a
case subject to sections 556 and 557 of this
title or otherwise reviewed on the record of
an agency hearing provided by statute; or
(F) unwarranted by the facts to the extent
that the facts are subject to trial de novo by
the reviewing court.
5 U.S.C. § 706(2). In applying these standards, an inquiring court
must "review the whole record or those parts of it cited by a
party." Id. These ground rules bound the court below, and they
are equally binding on this court. See River St. Donuts, LLC v.
Napolitano, 558 F.3d 111, 114 (1st Cir. 2009); Royal Siam Corp. v.
Chertoff, 484 F.3d 139, 144 (1st Cir. 2007). Thus, we afford no
special deference to the district court's determinations but,
rather, review those determinations de novo. See River St. Donuts,
558 F.3d at 114.
In the case at hand, the petitioner asseverates that the
Board's decision is not "in accordance with law," gives too short
shrift to a statutory right, and was reached "without observance
of procedure required by law." 5 U.S.C. § 706(2)(A), (C), and
(D). With respect to such an asseverational array, the APA
requires us to be respectful of the agency's views. Thus, "a
reviewing court may not substitute its judgment for that of the
- 12 -
agency, even if it disagrees with the agency's conclusions." Atieh
v. Riordan, 797 F.3d 135, 138 (1st Cir. 2015) (citations and
internal quotation marks omitted).
This deference, though, is not absolute. In general,
the agency's answers to questions of law engender de novo review.
See Ruskai v. Pistole, 775 F.3d 62, 67-68 (1st Cir. 2014). If,
however, the agency's legal analysis implicates the interpretation
of a statute or regulation that it is charged with administering,
we give some weight to the agency's views. See Administración
Para El Sustento De Menores v. Dep't of Health & Human Servs., 588
F.3d 740, 745 (1st Cir. 2009); see also Mendez-Barrera v. Holder,
602 F.3d 21, 24 (1st Cir. 2010).
A further narrowing principle is sometimes in play in
administrative law cases. Congress has directed federal courts to
take "due account" of the "rule of prejudicial error" when carrying
out judicial review under the APA. 5 U.S.C. § 706. The party
challenging the agency's determination bears the burden of showing
that a particular error was prejudicial. See Shinseki v. Sanders,
556 U.S. 396, 409 (2009); Ali v. United States, 849 F.3d 510, 514-
15 (1st Cir. 2017).
III. ANALYSIS
We divide our analysis into segments that correspond to
the various components of the petitioner's asseverational array.
To begin, we explain why the exclusionary remedy sought by the
- 13 -
petitioner is not available in non-judicial punishment
proceedings. Next, we explain why the finding of voluntariness is
supportable and why, in all events, any error was harmless.
Finally, we explain why the rescission of the petitioner's
promotion recommendation and his negative performance evaluation
are unimpugnable.
We approach the Board's decision mindful that the Board
may deny relief if it concludes that "the evidence of record fails
to demonstrate the existence of probable material error or
injustice." 32 C.F.R. § 723.3(e)(2); see 10 U.S.C. § 1552(a). In
making this assessment, the Board has the authority to consider
"all pertinent evidence of record." 32 C.F.R. § 723.3(e)(1).
A. The Exclusionary Remedy.
The petitioner claims that his non-judicial punishment
was unlawfully administered because he was not given a cleansing
warning to the effect that his earlier (unwarned) statements before
the DRB could not be used against him. Due to this omission, the
petitioner says, he made incriminating statements both to
Lieutenant Geiser and at the Captain's Mast — statements that were
ultimately used against him to support the imposition of non-
judicial punishment.
We think it essential to distinguish, at the outset,
between non-judicial punishment proceedings and trials by courts-
martial. The UCMJ provides "four levels of punishment proceedings
- 14 -
— [non-judicial punishment], summary court-martial, special court-
martial, and general court-martial — gradually progressing upward
in both procedural protections and possible punishments." Turner
v. Dep't of Navy, 325 F.3d 310, 314 (D.C. Cir. 2003); see 10 U.S.C.
§§ 815-816, 818-820. A non-judicial punishment proceeding is an
"administrative method" for "dealing with the most minor
offenses." Middendorf v. Henry, 425 U.S. 25, 31-32 (1976). While
it is meant to ensure order and good behavior within the armed
forces, it is not a criminal proceeding. See United States v.
Stoltz, 720 F.3d 1127, 1129 (9th Cir. 2013); Manual for Courts-
Martial, Part V, ¶ 1.c. (2012 ed.)
https://www.loc.gov/rr/frd/Military_Law/pdf/MCM-2012.pdf
(the Manual for Courts-Martial). By contrast, trials by court-
martial are reserved for more serious offenses and can result in
relatively severe punishments. See Henry, 425 U.S. at 31-32.
The petitioner strives to convince us that he was
entitled to a cleansing warning at his non-judicial punishment
proceeding. This premise attempts to draw sustenance from passages
in a number of official documents. See, e.g., U.S. Dep't of Navy,
Commander's Quick Reference Handbook for Legal Issues 5 (2009),
http://www.dtic.mil/dtic/tr/fulltext/u2/a501264.pdf; U.S. Dep't
of Navy, Manual of the Judge Advocate General, A-1-v (2012),
http://www.jag.navy.mil/library/instructions/JAGMAN2012.pdf (the
- 15 -
Manual of the Judge Advocate General). The Secretary, though,
disputes the petitioner's right to such a warning.
It would serve no useful purpose for us to resolve this
dispute. Ultimately, the dispositive query is whether uncleansed
statements should have been excluded from the Captain's Mast
proceeding under Article 31(d). Because exclusion would not be
proper even if a cleansing warning were required but not given, we
simply assume, favorably to the petitioner, that he was entitled
to such a warning.
From the very start, the petitioner's claim that
uncleansed statements should have been excluded from the non-
judicial punishment proceeding faces a formidable barrier: the
text of Article 31(d) itself. See United States v. Charles George
Trucking Co., 823 F.2d 685, 688 (1st Cir. 1987) (explaining that
statutory interpretation must start with an examination of the
statutory text). That text appears quite plainly to rebuff the
claim that the exclusionary remedy extends to non-judicial
punishment proceedings. The statute provides: "No statement
obtained from any person in violation of this article, or through
the use of coercion, unlawful influence, or unlawful inducement
may be received in evidence against him in a trial by court-
martial." 10 U.S.C. § 831(d) (emphasis supplied).
This language strongly suggests that the exclusionary
remedy set out in Article 31(d) is available only at a court-
- 16 -
martial. See Kindred v. United States, 41 Fed. Cl. 106, 112 (Fed.
Cl. 1998). Such a suggestion is made more compelling by the
venerable canon of statutory construction inclusio unius est
exclusio alterius, which teaches that if one of a category is
expressly included within the ambit of a statute, others of that
category are implicitly excluded. See Frazier v. Fairhaven Sch.
Comm., 276 F.3d 52, 68 (1st Cir. 2002).
That suggestion is also bolstered by the broader
language of Article 31(c), the provisions of which extend to
evidence introduced "before any military tribunal." 10 U.S.C.
§ 831(c). If Congress had intended the exclusionary remedy of
Article 31(d) to apply more universally, it presumably would have
used the more expansive phrasing that it used in Article 31(c).
The conspicuous contrast between these adjacent provisions is a
telltale sign that Congress deliberately sought to limit the
applicability of Article 31(d)'s exclusionary remedy. After all,
when Congress uses broad language in one section of a statute and
trims down that language in a closely related section, it is
reasonable to conclude that Congress intended the latter section
to sweep more narrowly. See Duncan v. Walker, 533 U.S. 167, 173
(2001) ("It is well settled that where Congress includes particular
language in one section of a statute but omits it in another
section of the same Act, it is generally presumed that Congress
acts intentionally and purposely in the disparate inclusion or
- 17 -
exclusion." (internal quotation marks omitted)); Citizens
Awareness Network, Inc. v. United States, 391 F.3d 338, 346 (1st
Cir. 2004) ("The principle is clear that Congress's use of
differential language in various sections of the same statute is
presumed to be intentional and deserves interpretive weight.").
The petitioner demurs. He contends that Article 31(d)
should, at worst, be interpreted as "silent" as to whether the
exclusionary remedy applies in non-judicial punishment
proceedings. He further contends that regulations and policies
implemented by the Navy speak in ways that fill this "silence."
But this contention is unpersuasive: the petitioner does not point
to a single regulation or policy that clearly extends the
exclusionary remedy to non-judicial punishment proceedings.5
5
In an effort to prove his point, the petitioner alludes to
vague statements in the JAG manual, including appendix A-1-v. But
he wrests these statements from their context ignoring other
relevant commentary. For example, in appendix A-1-f of the JAG
manual, titled the "Nonjudicial Punishment Guide," commanding
officers are asked to note that:
If it is reasonably foreseeable that the accused's
statements during the nonjudicial punishment proceedings
may be considered for introduction in evidence in a later
court-martial, an explanation of rights and a waiver, in
the format of Appendix A-1-v of the JAGMAN, will have to
be obtained from the accused, prior to or during the
hearing, before proceeding further.
This language indicates that Article 31(d) rights attach only when
the specter of a court-martial looms.
- 18 -
The closest the petitioner comes is a vague statement
within the Manual for Courts-Martial, a set of rules for military
adjudication promulgated pursuant to the authority provided under
the UCMJ. See 10 U.S.C. § 836; Manual for Courts-Martial, Preface.
The petitioner highlights a sentence within the section on non-
judicial punishment proceedings stating that "[t]he Military Rules
of Evidence (Part III), other than with respect to privileges, do
not apply at non-judicial punishment proceedings." Attempting to
build on this foundation, the petitioner suggests that extending
the privilege against self-incrimination to non-judicial
punishment proceedings is consistent with the quoted sentence and,
thus, should dictate the mandatory exclusion of statements made
without a cleansing warning. But the petitioner reads more into
the quoted sentence than its text permits.
Rule 301 of the Military Rules of Evidence relates to
the "[p]rivilege concerning compulsory self-incrimination." It
provides, in terms, that a witness "may not assert the privilege
if the witness is not subject to criminal penalty as a result of
an answer by reason of immunity, running of the statute of
limitations, or similar reason." Manual for Courts-Martial, Part
III, Mil. R. Evid. 301(c). This condition on the exercise of the
privilege casts in bold relief the privilege's core purpose: to
protect an individual from making statements against his interest
that would subject him to criminal penalties. Using a previously
- 19 -
made self-incriminating statement in a subsequent proceeding not
designed to produce criminal penalties does not in any way
interfere with this purpose. See Stoltz, 720 F.3d at 1129
(explaining that non-judicial punishment is "not criminal in
nature"); see also Henry, 425 U.S. at 31-32 (1976) (contrasting
"[g]eneral and special courts-martial [that] resemble judicial
proceedings" with a non-judicial punishment proceeding that is
"conducted personally by the accused's commanding officer" and "is
an administrative method of dealing with the most minor offenses").
We add, moreover, that even if criminal penalties are in
play, a statement "obtained in violation of the self-incrimination
privilege or due process clause of the Fifth Amendment" is not
automatically excluded from a court-martial proceeding. Manual
for Courts-Martial, Part III, Mil. R. Evid. 304. Rather, the
Military Rules of Evidence mandate special procedural steps — a
timely motion to suppress or a timely objection — that must be
taken in order to exclude the evidence. See id. If those steps
are not taken, the issue is considered waived.6 See id. The fact
that such steps are a clear reference to the formal structure of
a court-martial is itself an indication that the drafters of the
6 We note in passing that the petitioner did not raise the
Article 31(b) issue at the Captain's Mast but, rather, raised it
for the first time eight days later.
- 20 -
Manual for Courts-Martial did not intend to extend the exclusionary
remedy to non-judicial punishment proceedings.
Analogous case law suggests the same result. Although
few courts have directly analyzed the question of whether the
exclusionary rule applies to non-judicial punishment proceedings
in the military setting, other courts have refused to extend
Article 31(d) to bar the use of unwarned statements in civilian
criminal proceedings. See United States v. Singleton, 600 F.2d
553, 555 (5th Cir. 1979); see also United States v. Newell, 578
F.2d 827, 832-33 (9th Cir. 1978). The Singleton court
straightforwardly declared that "article 31(b) by its terms is
limited to evidence used in a trial by court-martial." 600 F.2d
at 555.
There is, of course, good reason to distinguish between
the application of the privilege against self-incrimination and
that of the concomitant exclusionary remedy in the context of a
non-judicial punishment proceeding. At the time of an
interrogation, it may not yet be clear whether a given statement
will give rise to criminal liability through a court-martial. Cf.
McCarthy v. Arndstein, 266 U.S. 34, 40 (1924) (explaining that
privilege against self-incrimination applies whenever a statement
"might tend to subject to criminal responsibility him who gives
it"). Such considerations are simply not at stake in connection
with the use of a previously-made incriminating statement in a
- 21 -
subsequent non-judicial punishment proceeding as the latter cannot
— and does not — expose the accused to criminal liability.7
Analogies help to prove this point. For instance, in
the Fourth Amendment context, the exclusion of evidence "has always
been [a] last resort, not [a] first impulse." Herring v. United
States, 555 U.S. 135, 140 (2009) (quoting Hudson v. Michigan, 547
U.S. 586, 591 (2006)). The reason for this chariness is evident:
the exclusion of evidence levies a "costly toll upon truth-
seeking." Id. at 141 (quoting Pa. Bd. of Prob. & Parole v. Scott,
524 U.S. 357, 364-65 (1998)). Even while recognizing that the
deterrent value of an exclusionary rule for improperly obtained
evidence is important, the Supreme Court has taken great pains to
instruct lower courts that the exclusionary rule should not be
applied "in every circumstance in which it might provide marginal
deterrence." Id. at 141 (internal quotation mark omitted). This
is especially true where there is no suggestion of intentional
misconduct. See id. at 142-43. So, too, where statutory
violations are concerned, exclusionary rulings are generally
"disfavored as remedies for nonconstitutional violations of law."
7 We take no view as to whether the analysis would be different
if evidence existed of either egregious violations of Article 31(b)
or rampant disregard for the provisions of that article. See,
e.g., I.N.S. v. Lopez-Mendoza, 468 U.S. 1032, 1050-51 (1984)
(plurality opinion). Suffice it to say that the record before us
does not give rise to such questions.
- 22 -
United States v. Newell, 239 F.3d 917, 921 (7th Cir. 2001); see
United States v. Henry, 482 F.3d 27, 32 (1st Cir. 2007).
In the case at hand, the pertinent proceeding is non-
criminal, no allegation of deliberate misconduct is made, and the
right asserted is statutory rather than constitutional in origin.
Given this collocation of circumstances, we believe that an
exclusionary remedy should be similarly disfavored.
The short of it is that the petitioner does not point to
a single rule, regulation, or policy that operates to extend
Article 31(d) beyond the carefully circumscribed circumstances
delineated in the text of that article. When an accused sailor
elects non-judicial punishment in lieu of a court-martial, he
benefits from the relative informality of non-judicial punishment
proceedings and the lessened severity of the potential
punishments. In exchange for those benefits, he trades away
certain procedural protections. The exclusionary remedy contained
in Article 31(d) is one such traded protection. Cf. Van Harken v.
City of Chicago, 103 F.3d 1346, 1353 (7th Cir. 1997) ("The less
that is at stake . . . the less process is due.")
To say more would be to paint the lily. We hold that
the petitioner's uncleansed statements were properly relied upon
in the Captain's Mast proceeding.
- 23 -
B. The Waiver.
In the course of finding no error in the non-judicial
punishment proceeding, the Board implicitly endorsed the view of
the Office of the Judge Advocate General and the Director that the
petitioner's uncleansed statements were voluntary. Contesting
this view, the petitioner contends that even though he signed a
waiver of his Article 31 rights, his waiver was neither knowing
nor voluntary because he did not receive a cleansing warning
informing him that his earlier unwarned statements could not be
used against him.8 The voluntariness inquiry involves issues of
law and fact, but the ultimate conclusion as to whether a
confession was voluntary is a legal conclusion that is reviewed de
novo. See United States v. Jacques, 744 F.3d 804, 809 (1st Cir.
2014). Warming to task, we ask whether the petitioner's uncleansed
admissions were voluntary "considering all the facts and
circumstances of the case." United States v. Phillips, 32 M.J.
76, 80 (C.M.A. 1991) (quoting United States v. Steward, 31 M.J.
259, 265 (C.M.A. 1990)).
The fact that the petitioner did not receive a cleansing
warning does not "presumptively taint" his later statements but,
8
The petitioner's briefs are tenebrous as to whether this
argument is independent of, or inextricably intertwined with, his
argument about the applicability of the exclusionary remedy.
Because we uphold the Board's finding of voluntariness, we need
not probe this point.
- 24 -
rather, constitutes one factor in the overall analysis of whether
his statements were made voluntarily. Id. (citing Oregon v.
Elstad, 470 U.S. 298, 309-14 (1985)). In the military setting, a
myriad of factors inform the inquiry into voluntariness, including
the presence or absence of explicit coercion, the presence or
absence of difficult conditions (such as deprivation of food and
water), the age and experience of the speaker, the time between
the unwarned statements and the subsequent waiver, and the benefits
that would inure to the speaker from telling the truth. See United
States v. Freeman, 65 M.J. 451, 456 (C.A.A.F. 2008); United States
v. Norfleet, 36 M.J. 129, 131-32 (C.M.A. 1992); United States v.
Smith, No. NMCCA 20060139, 2008 WL 2252771, at *3 (N-M. Ct. Crim.
App. May 27, 2008). The decisional calculus depends on the
totality of the circumstances, not on any single factor. See
Freeman, 65 M.J. at 456 (noting that a finding of voluntariness
"rests with the particular facts of each case").
Even assuming that the burden of proving voluntariness
rests with the Secretary — a matter on which we take no view — the
Board had sufficient reason to find the petitioner's waiver
voluntary. Cooperation plainly afforded the petitioner the
likelihood of a lesser punishment and a far superior chance to
preserve his reputation. By the same token, there was no clear
countervailing benefit to remaining silent: the entire chain of
command knew that the petitioner had lied. On this record, we
- 25 -
have scant difficulty in concluding that the obvious and compelling
benefits of cooperation strongly support a finding that the
petitioner knowingly and voluntarily decided to waive his Article
31 rights. Cf. Miller v. Fenton, 796 F.2d 598, 605 (3d Cir. 1986)
("[S]o long as [the suspect's] decision [to confess] is a product
of the suspect's own balancing of competing considerations, the
confession is voluntary.").
The petitioner argues that a military disciplinary
proceeding is inherently coercive. This proposition — true to a
limited degree — is not enough to render a confession involuntary,
particularly where, as here, there is no danger of criminal
liability. Even threats or misconduct aimed to compel an accused
to waive his Article 31 rights require additional context in order
to warrant a finding of coercion. See Freeman, 65 M.J. at 456-57
(finding no coercion where defendant was questioned for nearly ten
hours, lied to by interrogating agents, and told that case would
be referred to civilian authorities if he refused to cooperate).
Here, the additional context favors a finding of voluntariness.
Last — but surely not least — the petitioner was not a
babe in the woods. He had been in the Navy for approximately eight
years and was frocking as a Chief Petty Officer. See supra note
- 26 -
2. As such, he was sufficiently sophisticated to make a reasoned
decision about waiver.9
That ends this aspect of the matter. We uphold the
Board's determination that the petitioner's waiver was made
voluntarily and, thus, the Navy's use of the ensuing statements
did not adversely affect his substantial rights.
C. The Harmless-Error Calculus.
We add, moreover, that even if error occurred — and we
discern none — any such error was harmless. We explain briefly.
In APA cases, courts are tasked to take "due account" of
what is called the "rule of prejudicial error." 5 U.S.C. § 706.
For all practical purposes, this provision incorporates harmless-
error doctrine drawn from the ordinary run of civil cases. See
Sanders, 556 U.S. at 406. That doctrine instructs us that an error
is harmless unless it affects the complaining party's substantial
rights. See Nieves-Villanueva v. Soto-Rivera, 133 F.3d 92, 102
(1st Cir. 1997).
The party challenging the agency's determination (here,
the petitioner) bears the burden of showing that a particular error
is prejudicial. See Sanders, 556 U.S. at 409; Ali, 849 F.3d at
9Attempting to parry this thrust, the petitioner suggests
that he did not have specific knowledge of his Article 31 rights
and, therefore, could not have made a "knowing" waiver. We do not
agree. The petitioner's tenure in the Navy surely informed him of
the benefits of seeking the advice of counsel who could have
edified him — but he chose to waive that right as well.
- 27 -
514-15. In this case, the record shows beyond hope of
contradiction that the Board had substantial evidence to ground
its implicit determination that the petitioner failed to carry
this burden. The petitioner demurs: he asserts that the failure
to exclude his inculpatory statements could not be harmless
because, without those statements, there was insufficient evidence
to find that he had committed the charged offenses. The record
belies this assertion.
In determining whether there had been a "probable error
or injustice," the Board had before it (among other things) the
statement made by Abril, the recommendations of Captain Kearns, an
analysis by the Director, and an advisory opinion from the Office
of the Judge Advocate General. Abril's written statement alone
established that:
 Abril had hurt her hand by punching a bulkhead and had
told the petitioner as much;
 In Abril's presence, the petitioner had dissembled by
telling a superior officer that Abril had hurt herself
by falling;
 Abril had been taken to a shoreside medical facility for
treatment of her injury; and
 Abril had been questioned about the incident the
following evening by a superior, at which point she
- 28 -
provided a true account of the events that had
transpired.
Similarly, the Board had access to the recommendations
provided by Captain Kearns to the Director at the time of the
petitioner's intra-agency appeal. There, Captain Kearns related
how, despite his standing order to be informed of emergency medical
situations, he was not made aware of Abril's injury until the
morning following her visit to the doctor — and even then, it was
the incoming duty officer, not the petitioner, who supplied the
information. Indeed, the petitioner had "misrepresented the
incident" to the incoming duty officer.
The Judge Advocate General's advisory opinion lent the
Board further support for its decision. With no equivocation, the
opinion states that "independent evidence through other witness
statements demonstrate [the petitioner's] guilt." This opinion
reiterated how the petitioner provided a false report to Lieutenant
Geiser and how he failed to properly discharge his duty to inform
his commanding officer of Abril's trip to receive medical care.
It also recounts that the petitioner reported the entire incident
"as a turnover item" to Lieutenant Geiser "who in turn made the
proper report" to Captain Kearns.
This body of evidence against the petitioner remained
largely unrebutted before the Board. Thus, even if the petitioner
had not admitted lying to Lieutenant Geiser, the other proof
- 29 -
against him supplied an adequate basis for the Board to find that
the petitioner failed to demonstrate a probable material error or
injustice.
D. The Adverse Employment Consequences.
There is one more leg to our voyage. As an ancillary
matter, the petitioner invites us to direct the Board to reinstate
his recommendation for promotion. We decline the invitation.
The Navy made pellucid, at every stage of the inquiry,
that the rescission of the promotion was not a sanction imposed
through the non-judicial punishment proceeding, and the petitioner
has not convincingly challenged this dichotomy. In the absence of
such a challenge, there is little reason to suggest that the
petitioner has shown that, but for the written reprimand, the
promotion recommendation would not have been rescinded on
independent grounds. After all, the recommendation was wholly
within the discretion of the petitioner's commanding officers, who
may reasonably have chosen to withdraw it simply because the events
of January 11-12 changed their estimate of his worthiness. On
this record, the petitioner has not shown any probable error or
injustice in the Board's refusal to rescind this separate and
independent administrative action.
Relatedly, the petitioner entreats us to annul his
adverse performance evaluation. We deny that entreaty for
- 30 -
essentially the same reasons that we refuse to reinstate the
recommendation for promotion.
IV. CONCLUSION
We need go no further. For the reasons elucidated above,
the district court's denial of the petition for judicial review is
Affirmed.
- 31 -