United States v. Private First Class CHANCE E. REDD

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
HOLDEN, HOFFMAN, and COOK
Appellate Military Judges
UNITED STATES, Appellee
v.
Private First Class CHANCE E. REDD
United States Army, Appellant
ARMY 20051123
US Army Military District of Washington
Lauren B. Leeker, Military Judge
Colonel Sarah S. Green, Staff Judge Advocate
For Appellant: Major William M. Fischbach III (argued); Colonel Christopher J.
O’Brien, JA; Lieutenant Colonel Steven C. Henricks, JA; Major Sean F. Mangan,
JA; Major William M. Fischbach III (on specified issues reply brief); Colonel
Christopher J. O’Brien, JA; Lieutenant Colonel Steven C. Henricks, JA; Major Sean
F. Mangan, JA; Major William M. Fischbach III (on specified issues brief);
Lieutenant Colonel Steven C. Henricks, JA; Major Tyesha E. Lowery, JA; Captain
Ryan M. Suerth (on brief).
For Appellee: Captain Phillip M. Staten, JA (argued); Colonel John W. Miller II,
JA; Major Elizabeth G. Marotta, JA; Major Tami L. Dillahunt, JA; Captain Phillip
M. Staten, JA (on specified issues brief); Colonel John W. Miller II, JA; Major
Elizabeth G. Marotta, JA; Captain Phillip M. Staten, JA (on brief).
26 November 2008
---------------------------------
OPINION OF THE COURT
---------------------------------
HOFFMAN, Judge:
A general court-martial composed of officer and enlisted members convicted
appellant, contrary to his pleas, of receiving child pornography on divers occasions
in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934[hereinafter UCMJ]. The panel sentenced appellant to a bad-conduct discharge and
confinement for ninety days. This case is before us for review under Article 66,
UCMJ.
REDD — ARMY 20051123
Appellant’s lone assignment of error asserts the military judge improperly
denied appellant’s motion to suppress his statements to law enforcement and the
derivative child pornography evidence. Appellant alleges his confession was
coerced because a civilian detective told appellant he would be placed in
confinement for seventy-two hours if appellant exercised his right to counsel. 1
After reviewing this assertion of error, this court specified two additional issues. 2
1
Appellant has not established his confession was coerced. While Detective Sims
was imprecise in informing appellant about his right to military counsel and when
such counsel would be available, this alone does not demonstrate that appellant’s
“will was overborne.” United States v. Freeman, 65 M.J. 451, 454 (C.A.A.F. 2008).
In this case, there were no threats of physical abuse by Detective Sims or SA Silvas.
The interrogation did not continue for a prolonged period of time and there was no
evidence of imprisonment during questioning. Under the totality of the
circumstances surrounding the 5 January 2005 statement, we conclude appellant’s
statement was not obtained “through the use of coercion, unlawful influence, or
unlawful inducement.” Id. at 453 (quoting Mil. R. Evid. 304(a)); see also United
States v. Bubonics, 45 M.J. 93, 95 (C.A.A.F. 1996)).
2
The following issues were the specified by this court:
I
WHETHER APPELLANT’S RIGHTS UNDER ARTICLE
31, UNIFORM CODE OF MILITARY JUSTICE (UCMJ),
WERE TRIGGERED WHEN APPELLANT WAS
INTERVIEWED BY DETECTIVE JOHN SIMS, A
CIVILIAN POLICE DETECTIVE, AND SPECIAL
AGENT JOHN SILVAS, A MEMBER OF THE
CRIMINAL INVESTIGATION COMMAND (CID). SEE
UNITED STATES V. BRISBANE, 63 M.J. 106 (C.A.A.F.
2006). IF ARTICLE 31, UCMJ, RIGHTS WERE
TRIGGERED, AT WHAT POINT IN QUESTIONING
WERE THEY REQUIRED?
II
ASSUMING ARGUENDO THAT APPELLANT’S
ARTICLE 31, UCMJ, RIGHTS WERE TRIGGERED, DID
THE NOTIFICATION OF RIGHTS UNDER MIRANDA V.
ARIZONA, 384 U.S. 436 (1966), SUFFICIENTLY COVER
NOTICE OF APPELLANT’S STATUTORY RIGHTS
(continued . . .)
2
REDD — ARMY 20051123
Under the facts of this case, we find appellant’s rights under Article 31,
UCMJ [hereinafter Article 31], were triggered when appellant was interviewed at the
same time and location by a special agent of the U.S. Army Criminal Investigation
Command (CID) and a civilian police detective investigating an offense that violated
both state and military law. However, we hold the notification of rights provided by
the civilian detective under Miranda v. Arizona, 384 U.S. 436 (1966), coupled with
notice of the allegation against him, satisfied the notice of appellant’s rights
required by Article 31 and Military Rule of Evidence [hereinafter Mil. R. Evid.] 305.
FACTS
Background
Appellant was convicted of a single specification of receiving child
pornography on divers occasions:
In that Private First Class Chance E. Redd, U.S. Army, did
on divers occasions between on or about 1 January 2004
and on or about 05 January 2005, at or near Walter Reed
Army Medical Center, Washington D.C., knowingly
receive material containing child pornography, as defined
in Title 18, United States Code, Section 2256, which had
been mailed, or shipped, or transported in interstate
commerce by any means, including by computer, in
violation of Title 18, United States Code, Section
2252A(a)(2)(B).
In early January 2005, Laurel City Police Detective John Sims received a
complaint alleging appellant engaged in acts of sexual misconduct with a female
under the age of sixteen within the detective’s investigative jurisdiction. The nature
of the allegation was summarized in the following specification:
In that Private First Class Chance E. Redd, U.S. Army,
did, on divers occasions, between on or about 20
December 2004 and on or about 05 January 2005, at or
near Laurel, Maryland, through the use of the internet
and/or cellular telephone . . . entice and/or induce [MG], a
(. . . continued)
UNDER ARTICLE 31, UCMJ. SEE UNITED STATES V.
GARDINIER, 65 M.J. 60 (C.A.A.F. 2007); BUT SEE
UNITED STATES V. HOFBAUER, 2 M.J. 922 (A.C.M.R.
1976), AFFIRMED, 5 M.J. 409 (C.M.A. 1978).
3
REDD — ARMY 20051123
person under the age of 16, then known to him to be under
the age of 16, to meet him for the purposes of engaging in
sexual intercourse . . . .
Because appellant was an active duty soldier, Detective Sims contacted the
nearby Fort Meade Criminal Investigation Command (CID) office to notify them of
the investigation and locate appellant for an interview. In response to Detective
Sims’ request, CID Special Agent (SA) Silvas was assigned to observe the interview.
At the interview, SA Silvas was introduced as a Fort Meade CID agent to
appellant. Detective Sims initially spent twenty to thirty minutes engaging in
conversation unrelated to the investigation to build rapport with appellant. Special
Agent Silvas participated in that discussion during which time appellant was not
asked any questions about the sexual misconduct under investigation. Detective
Sims told appellant he was not under arrest, was there of his own free will, and
could leave at any time. Following the rapport building discussion, Detective Sims
advised appellant of his Miranda rights for sexual intercourse with a minor using a
Laurel City Police Department standard form; however, appellant was not separately
advised of his rights under Article 31.
Appellant admitted to Detective Sims three instances of sexual intercourse
with a minor, prepared a written statement to that effect, and reviewed the statement
with Detective Sims. In appellant’s statement, he admitted meeting the minor [MG]
in an internet chat room. 3 In response to questions from Detective Sims, appellant
admitted he previously obtained sex from another person he met online. Detective
Sims then asked appellant for consent to search his computer to determine whether
his online conversations involved other minor children.
Appellant asked Detective Sims how a computer search would be conducted
and whether such a search might reveal more than online chat records. Detective
Sims replied he did not have specific knowledge of the examination techniques as
the tests were conducted at a forensic laboratory. At that point, appellant told
Detective Sims he might have “other things on his computer that were mistakes or
accidents.” Pressed for details, appellant slumped down and stated he “had
something bad.” Detective Sims recalled appellant then “either said he likes them
young or had images of young girls on his computer.” When asked by Detective
Sims to disclose “the youngest [age of a girl] that you would have on your computer,
that you said you’ve viewed,” appellant replied “three years of age.”
3
An internet “chat room” is an online virtual meeting place where conversants
“engage in real time dialogue . . . by typing messages to one another that appear
almost immediately on the others’ computer screens.” Reno v. ACLU, 521 U.S. 844,
851-852 (1997).
4
REDD — ARMY 20051123
According to Detective Sims’ testimony, “[i]t was at that point we started into
a whole different area of investigating [possession of child pornography].” 4
Special Agent Silvas took control of part of the ensuing questioning; his questions
and appellant’s responses are identified as such in question and answer format on
appellant’s sworn statement. In those responses, appellant admitted knowingly
downloading and possessing child pornography.
In addition to his sworn statement regarding his admissions, appellant
consented to a search of his computer and computer accessories. The subsequent
search by the Laurel City Police Department revealed appellant possessed child
pornography, including a sexual image of an actual child victim identified through
live testimony and information from the National Center for Missing and Exploited
Children.
Military Judge’s Findings of Fact/Conclusions of Law
The military judge made detailed findings of fact in which she concluded
appellant’s interview was for the purpose of carrying out a civilian criminal
investigation. She further found appellant knowingly and voluntarily waived his
rights to counsel by initialing and signing the Laurel Police Department form, made
oral and written statements admitting to three instances of sexual intercourse with a
female under the age of 16, admitted possessing child pornography, and knowingly
and voluntarily consented to a search of his computer, disks, and related items. 5
The military judge made the following conclusions of law:
(1) The Fifth Amendment and Miranda warnings – I find
that the 5 January 2005 interview by the Laurel police
department did not constitute a custodial interrogation,
and accordingly, although given by Detective Sims in
accordance with the Laurel police department policy, were
not legally required.
4
Prior to appellant’s disclosure regarding possession of child pornography, neither
Detective Sims nor SA Silvas suspected appellant of that offense. The shift in focus
of the investigation to child pornography is reflected in appellant’s handwritten
sworn statement which transitions from a narrative about his sexual relationship with
the minor to questions and answers on the same, followed by a new narrative by
appellant addressing possession of child pornography, with subsequent questions and
answers on that topic.
5
The military judge’s pertinent findings of fact are located at the Appendix to this
opinion.
5
REDD — ARMY 20051123
(2) Article 31(b) – I find that the investigation was
conducted by the Laurel police department. This
investigation was a civilian criminal investigation.
Special Agent Silvas was invited to be present at the
interview, but, Laurel police department remained the lead
and controlling agency.
I further find that Special Agent Silvas’
involvement, even in asking some questions, did not
convert the investigation into a joint investigation, or turn
Detective Sims into a[n] agent of the Criminal
Investigation Division. However, even if Article 31(b)
was triggered for Special Agent Silvas’ involvement in the
interview, the requirement was clearly met with the advice
given. Detective Sims informed the accused of the nature
of the offense, his right to remain silent, and the possible
use of any statements given.
(3) The accused’s child pornography statements . . . I find
that the initial advisement, that is that the accused was
being questioned related to sexual misconduct with an
underage female, was sufficient.
Special Agent Silvas was not required to re-advise
the accused when he made his child pornography
statements, because child pornography falls within the
penumbra of misconduct with a minor.
The accused was being investigated for misconduct
with a minor. This misconduct included the use of a
computer and the internet. The investigation would
logically include inquiries relating to misconduct
involving other minors, which is not limited to instances
identical to the incident with [the victim]. The conduct
was within the frame of reference supplied by Detective
Sims.
Further, there is no evidence that Detective Sims or
Special Agent Silvas knew of these other offenses, and
were using the interrogation as a subterfuge to inquire into
the area of child pornography.
(4) [Mil. R. Evid. 304] and the voluntariness of the
accused’s statements – The government has more than met
6
REDD — ARMY 20051123
[its] burden of proving by a preponderance of the evidence
that the accused’s statements were voluntary.
(5) The search – In accordance with [Mil. R. Evid.
314(e)], considering all the evidence, I find the
government proved by clear and convincing evidence that
the accused voluntarily consented to the search of related
computer accessories and hardware.
Accordingly, the defense motion to suppress is
denied . . . .
LAW
The Supreme Court in Miranda v. Arizona held in pertinent part:
Before a person in custody may be interrogated, he
must be informed ‘in clear and unequivocal terms that
he has the right to remain silent’; that ‘anything said can
and will be used against [him] in court’; that ‘he has the
right to consult with a lawyer and to have the lawyer with
him during interrogation’; and that ‘if he is indigent a
lawyer will be appointed to represent him.’
Hofbauer, 2 M.J. at 924 n.4 (quoting Miranda, 384 U.S. at 467-73).
Similarly, Article 31(b) provides:
No person subject to this chapter may interrogate, or
request any statement from an accused or a person
suspected of an offense without first informing him of the
nature of the accusation and advising him that he does not
have to make any statement regarding the offense of which
he is accused or suspected and that any statement made by
him may be used as evidence against him in a trial by
court-martial.
Mil. R. Evid. 305(d)(2) provides a right to counsel “without regard to the
person's indigency or lack thereof before the interrogation may proceed.” See also
United States v. Tempia, 16 C.M.A. 629, 37 C.M.R. 249 (1967) (Because Miranda is
applicable to military interrogations, servicemembers have the right to request
7
REDD — ARMY 20051123
appointment and presence of an attorney at custodial interrogations). 6
Civilian investigators working in conjunction with military officials must
comply with Article 31: “(1) When the scope and character of the cooperative
efforts demonstrate ‘that the two investigations merged into an indivisible entity,’
and (2) when the civilian investigator acts ‘in furtherance of any military
investigation, or in any sense as an instrument of the military.’” United States v.
Rodriguez, 60 M.J. 239, 251 (C.A.A.F. 2004) (quoting United States v. Penn, 18
C.M.A. 194, 199, 39 C.M.R. 194, 199 (1969)). In analyzing whether civilian and
military criminal investigations have merged into one indivisible entity, military
courts consider “whether the two police organizations proceeded independently and
for their own purposes.” United States v. Swift, 17 C.M.A. 227, 232, 38 C.M.R. 25,
30 (1967).
DISCUSSION
Joint Investigation
While we affirm a military judge’s findings of fact unless they are clearly
erroneous, we review a military judge’s conclusions of law de novo. United States
v. Rader, 65 M.J. 30, 32 (C.A.A.F. 2007) (citations omitted). Contrary to the
conclusions drawn by the military judge, we find the questioning conducted together
by the civilian and military investigators in this case constituted a joint investigation
and implicated appellant’s Article 31 rights. See Rodriguez, 60 M.J. at 252.
In United States v. Oakley, 33 M.J. 27 (C.M.A. 1991), an noncommissioned
officer (NCO) acting as a liaison with civilian law enforcement personnel
accompanied them to appellant’s quarters where they advised appellant of his
Miranda rights and questioned him about civilian offenses. Appellant was
eventually charged with those offenses at a court-martial. Although an NCO asked
the accused several questions at the end of the interview, our superior court
concluded that investigation was purely civilian in nature and no Article 31
warnings were required. Id. at 30.
This case is factually distinguishable from Oakley. The level of cooperation
and participation between Detective Sims and SA Silvas demonstrate there were two
separate investigations of sexual misconduct with the minor child, MG, that merged.
6
The right to counsel regardless of indigency in military jurisprudence is not a
statutory right pursuant to Article 31; rather, it flows from the President’s
promulgation of Mil. R. Evid. 305(d). See generally Gardinier, 65 M.J. 60.
Evidence obtained in violation of Mil. R. Evid. 305 is generally inadmissible except
as provided in Mil. R. Evid. 304(b)(2) and (3). See United States v. McClelland, 26
M.J. 504, 507 (A.C.M.R. 1988).
8
REDD — ARMY 20051123
Special Agent Silvas was physically present for appellant’s entire interview and sat
near Detective Sims and appellant. Special Agent Silvas stated unequivocally he
participated in the interview with Detective Sims and he testified, “I know that I did
a lot of talking during that time.” While SA Silvas could not recall exactly what was
said, he testified, “I just bounced off of Detective Sims [questioning] the whole
time.” In fact, SA Silvas notified appellant after Detective Sims read the Miranda
warnings that “those [rights] also apply in the military,” in apparent recognition of
the potential UCMJ implications of the questioning about to take place; however, SA
Silvas provided no further explanation in satisfaction of the Article 31 requirements.
The following facts not cited by the military judge are significant in this case.
In his Report of Investigation, Detective Sims related he “spoke [with CID] Special
Agent-in-Charge [SAC] Dallas Herpin” after the initial allegation was brought
forward. He indicated SAC Herpin told him the offense initially under
investigation, while a misdemeanor in Maryland, was a felony offense under military
law. Detective Sims noted Agent Herpin said he would like “to make this a joint
collaboration case and requested [an agent] to be present [when appellant was]
questioned. . . .” (emphasis added).
We look to the surrounding facts to determine whether an investigation is
joint or separate for purposes of applying Article 31 rights warning requirements and
are not bound by the characterization of the investigation by civilian or military law
enforcement agencies. A unilateral or mutual expression of desire for collaborative
investigative work by respective civilian and military officials is but one factor we
consider. In this case, the actions by the respective investigative agencies
demonstrate their intent to pursue the investigation together. It is clear there were
two investigations that merged before the interview began. Both the military
investigator and civilian detective asked questions at various times during the
investigation and participated fully in the interview process. The assistance and
questioning by SA Silvas in this case constituted “participation” within the meaning
of Article 31, and the military judge erred in finding those rights warnings were not
required.
Miranda v. Article 31
As we have concluded SA Silvas participated in a joint investigation with
Detective Sims, Article 31 rights warnings were required in this case. Accordingly,
we now determine whether the Miranda rights advisement given by Detective Sims,
in conjunction with the discussion Detective Sims and appellant had regarding why
appellant was at the police station, complied with the requirements of Article 31(b).
See generally United States v. Simpson, 54 M.J. 281, 284 (C.A.A.F. 2000) (“Advice
as to the nature of the charge need not be spelled out . . . .”).
9
REDD — ARMY 20051123
Appellant does not contend the Miranda warnings were inadequate and we
find appellant voluntarily, knowingly, and intelligently waived those Miranda rights
prior to talking to the military and civilian investigators. Rather, appellant asserts
because the Miranda warnings did not sufficiently address all of appellant’s Article
31 rights, appellant was not properly notified of his right to counsel and the nature
of the charges against him. Since we find the questioning was conducted as part of a
joint investigation, we will review both the civilian and military investigator’s
statements to appellant to determine whether the Article 31 warning requirements
were satisfied. See generally Gardinier, 65 M.J. at 63-64.
Our court has previously noted the subtle distinctions between the rights
warning requirements of Article 31 and Miranda. See Hofbauer, 2 M.J. at 922; see
also United States v. Rogers, 47 M.J. 135, 137 (C.A.A.F. 1997) (outlining the
differences between the rights warnings under Article 31 and Miranda). Both
Article 31 and Miranda require notice to a suspect of the right to silence and the
consequences that may flow from statements made after waiver of that right. They
differ in that Article 31 requires notice to the suspect of the nature of the offense
under investigation while Miranda does not; in addition, Miranda requires notice of
a right to appointed counsel without charge for indigent suspects. 7
Right to Counsel
In this case, Detective Sims notified appellant “[y]ou have the right to talk to
a lawyer before any questioning and to the presence of a lawyer before answering
any questions or at any time while questioned.” Additionally, appellant was notified
an attorney would be provided for him if he could not afford one. Although this
advisement did not fully inform appellant that his right to military counsel was not
contingent upon indigency, this omission alone does not demonstrate appellant’s
Article 31 and Mil. R. Evid. 305 rights warning requirement was not satisfied. See
also United States v. Schroeder, 39 M.J. 471 (C.M.A. 1994) (appellant’s statement
that he would eventually get a lawyer did not amount to an invocation of his
Miranda rights which would have required the investigator to stop the interview.).
Our courts have looked at the surrounding circumstances to determine whether
a suspect was on proper notice of his Article 31 rights. 8 Cf. California v. Prysock,
7
The latter has limited relevance in a military setting. As previously noted, the
right to appointed military counsel for soldiers exists regardless of indigency. See
Mil. R. Evid. 305(d)(2).
8
Military courts have historically viewed the Article 31 rights warning as having a
“substantial compliance” element. See Simpson, 54 M.J. at 284; United States v.
(continued . . .)
10
REDD — ARMY 20051123
453 U.S. 355 (1981) (during Miranda warnings the defendant was not explicitly told
of his right to have a lawyer appointed before further interrogation. The Supreme
Court held under the circumstances the defendant was adequately informed of his
right to counsel and a rigid verbatim recitation of Miranda warnings was not
required.). In this case, Detective Sims’ notification of right to counsel was
sufficient. Appellant was a twenty year-old high school graduate with a GT score of
113. At no time prior to or during the interview did appellant ever invoke his right
to counsel to either the CID agent or civilian investigator. Even on appeal, appellant
does not assert he waived his right to counsel based on a misunderstanding of
indigency as a threshold requirement. It is undisputed appellant waived his Miranda
rights and agreed to talk without a lawyer being present. We therefore find the
Miranda warnings—combined with notification of the substance of the original
allegation against appellant—sufficiently satisfied notification of appellant’s right to
counsel for purposes of Article 31 and Mil. R. Evid. 305.
Notice of Nature of Charges
We next address whether a new rights warning was required after appellant
revealed his possession of child pornography. The interrogation on that offense
arguably encompassed an allegation not addressed when appellant received his rights
warning. Our superior court has considered three non-exhaustive factors when
analyzing whether the nature-of-the-accusation requirement was satisfied under
Article 31. Simpson, 54 M.J. at 284. Those factors include: “whether the conduct
is part of a continuous sequence of events; whether the conduct was within the frame
of reference supplied by the warnings; and whether the interrogator had previous
knowledge of the unwarned offenses.” Id. (citations omitted).
In United States v. Huelsman, 27 M.J. 511 (A.C.M.R. 1988), appellant was
given Article 31 warnings regarding the offense of larceny by uttering worthless
checks. At a subsequent interrogation, he admitted involvement with drugs in
addition to the check offenses. This court held the statement regarding drug
involvement was improperly admitted because of the limited scope of the original
Article 31 warning. Id. at 514.
The scenario here is quite different from Huelsman. We agree with the
premise that appellant must be made aware of the general nature of the allegation
and the warning must include the area of suspicion and “sufficiently orient the
accused toward the circumstances surrounding the event.” Huelsman, 27 M.J. at 513
(citing United States v. Schultz, 19 C.M.A. 31, 41 C.M.R. 31 (1970)). In this case,
(. . . continued)
Wimberley, 16 C.M.A. 3, 36 C.M.R. 159 (1966); United States v Higgins, 6 C.M.A.
308, 20 C.M.R. 24 (1955); United States v O’Brien, 3 C.M.A. 325, 12 C.M.R. 81(1953); Hofbauer, 2 M.J. 922.
11
REDD — ARMY 20051123
however, appellant clearly was on notice of the nature of the inquiry based on the
original Miranda warning. “The precision and expertise of an attorney in informing
an accused of the nature of the accusation under Article 31 is not required.”
Simpson, 54 M.J. at 284.
Unlike Huelsman, there was no interruption between the original rights
warning, the interview during which appellant spontaneously announced he
possessed child pornography, and the continued questioning on that offense.
Additionally, the allegation of sexual misconduct involving a child occurred during
the same period of time that appellant was illegally downloading child pornography.
Therefore, the conduct being investigated, as well as the questioning process, was
“continuous in nature.” Simpson, 54 M.J. at 284.
Second, the original allegation of use of a computer to commit child sex
offenses through the use of internet chat was sufficiently related to the allegation of
possession of downloaded child pornography as to orient appellant to the nature of
the offense. See United States v. Pipkin, 58 M.J. 358 (C.A.A.F. 2003) (rights
warning regarding use, possession and distribution of controlled substances was
within frame of reference under facts to encompass conspiracy to distribute drugs);
Rogers, 47 M. J. at 135 (rights warning of “sexual assault” sufficient to orient
accused to rape and attempted rape offenses, even involving a second victim);
Schultz, 19 C.M.A. 311, 41 C.M.R. 311 (separate inquiries can constitute a single
continuous interview without the requirement for additional rights advisement);
United States v. Kelley, 48 M.J. 677 (Army Ct. Crim. App. 1998) (warning regarding
rape offense sufficient to orient accused toward unwarned burglary and false
swearing offenses where burglary was required to gain access to victim and false
statement denied any presence in room where rape occurred); United States v. Erie,
29 M.J. 1008 (A.C.M.R. 1990) (warnings that accused was being investigated for use
of hashish were sufficient to cover subsequent statements regarding controlled
substances).
Finally, Detective Sims and SA Silvas did not have knowledge of appellant’s
possession of child pornography when appellant was originally notified of the
allegations against him. See United States v. Davis, 8 C.M.A. 196, 198, 24 C.M.R.
6, 8 (1957) (citing United States v Dickenson, 6 C.M.A. 438, 20 C.M.R. 154 (1955))
(“It is obvious, however, that if the examiner is without knowledge or suspicion that
a particular offense has been committed by the person to be questioned, he cannot
provide the preliminary advice required by Article 31.”). Consequently, the other
factor mentioned in Simpson, 54 M.J. at 284, “whether the interrogator had
previous knowledge of the unwarned offenses,” weighs in favor of our finding
appellant’s Article 31 rights were satisfied.
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CONCLUSION
We review in toto the rights warnings and statements made to suspects by
civilian and military investigators in joint investigations when determining whether
Article 31 warning requirements were satisfied. Although Article 31 rights were
required in this case, the Miranda warnings provided to appellant and notification of
the offense of which he was originally suspected sufficiently satisfied appellant’s
Article 31 and Mil. R. Evid. 305 rights. 9
We have reviewed the remaining assignments of error, to include the matters
personally raised by appellant pursuant to United States v. Grostefon, 12 M.J. 431(C.M.A. 1982), and find them to be without merit. The finding of guilty and
sentence are affirmed.
Senior Judge HOLDEN and Judge COOK concur.
FOR
FORTHE
THECOURT:
COURT:
MALCOLMH.
MALCOLM H.SQUIRES,
SQUIRES,JR.
JR.
ClerkofofCourt
Clerk Court
9
Our decision that the Miranda warning satisfied Article 31 in this case is fact
specific and does not change the preferred practice of advising an accused of his
Miranda and Article 31 rights before questioning in a joint investigation.
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APPENDIX
The military judge made the following pertinent findings of fact:
(1) On 5 January 2005, the Laurel police department
received a complaint regarding acts of sexual misconduct
with [MG], a female under the age of 16. [MG] identified
the perpetrator as [appellant].
(2) Further investigation revealed that the accused is a
member of the United States military. Laurel, Maryland is
a suburb located adjacent to Fort Meade, Maryland. Given
the proximity to Fort Meade and the National Capital
Region, a significant military population resides in and
around Laurel. In recognition of the U.S. government’s
war time status, Laurel police policy dictates that the
Provost Marshal be notified when military service
members are identified as subjects of criminal
investigations.
(3) Laurel police authorities contacted the Fort Meade
Provost Marshal and Criminal Investigation Division
offices in their efforts to carry out this notification and
locate the accused. The accused was located at Walter
Reed Army Medical Center.
(4) Detective John Sims, Laurel police department,
initiated contact with the accused’s command and
arranged for the accused to appear for an interview.
Additionally, Detective Sims requested and CID provided
an investigator, Special Agent John Silvas, who was
present during the interview.
(5) The interview was for the purpose of carrying out a
civilian criminal investigation. There was no question in
either Detective Sims’ or Special Agent Silvas’ mind that
the Laurel police department was the lead agency in this
investigation.
(6) The accused presented himself at the Laurel police
department offices at approximately 1645 on 5 January
2005. The accused was accompanied by his first [line]
supervisor, Sergeant McIlwain.
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REDD — ARMY 20051123
(7) Shortly after his arrival, Detective Sims escorted the
accused to the interview room. The accused stated that he
wanted Sergeant McIlwain to accompany him as a witness.
Detective Sims informed Sergeant McIlwain that she was
not authorized to be present during the interview, but, that
the accused was not under arrest and that she was welcome
to wait for him, because he would be back once the
interview was completed. The accused overheard this
conversation.
(8) Present in the interview were Detective Sims, Special
Agent Silvas, and the accused. Detective Sims made
introductions and spent 20 to 30 minutes engaging in
small talk unrelated to this investigation, and gathering
administrative data. During this period, the accused was
informed that he was not under arrest.
(9) After this initial period, Detective Sims advised the
accused of his Miranda rights, using he standard Laurel
police department form. Detective Sims informed the
accused that they wanted to speak to him regarding
instances of sexual misconduct with an underage female.
During the rights advisement, the accused asked
what procedures was used if an individual requested a
lawyer. Detective Sims explained the standard procedure
for individuals who are under arrest, and for those who are
not. Detective Sims reminded the accused that he was not
under arrest. Detective Sims indicated that he did not
know what the military procedures were for such a
situation.
(10) The accused was read, understood, and waived his
rights, initialing and signing the Laurel police department
form, which was likewise signed by Detective Sims and
witnessed by Special Agent Silvas at 1805 on 5 January
2005.
(11) As a result of the interview the accused made oral
and written statements admitting to three instances of
sexual intercourse with [MG], a female under the age of
16, who he met in an internet chat room.
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REDD — ARMY 20051123
(12) At the time of the interview, [appellant] was a
twenty year old Private First Class with almost two years
in the Army, and a single tour overseas. He is a well
spoken soldier with a GT score of 113.
The interview was held in a room of ample size and
comfortable temperature. The accused was afforded
reasonable breaks, offered refreshments, treated
courteously, and in no way restrained. The atmosphere of
the interview was not coercive. No promises of leniency
or unlawful inducement were made. The interview was
remarkably short, lasting about two and a half hours. The
consent form being witnessed at 2019, 5 January 2005. . . .
The accused was specifically asked during the interview
how he felt he was treated, and indicated in his written
statement that he felt detectives treated him “nice.”
(13) As a result of the interview and the accused’s
[admission] regarding the chat room and child
pornography, Detective Sims requested and received
written consent to a search of the accused’s computer,
disks and other related computer items. . . . The accused
intelligently and voluntarily consented to the search of his
computer, disks and related items.
(14) The accused accompanied by Sergeant McIlwain
drove to his apartment in his POV. The POV had
previously been searched for weapons, and law
enforcement personnel followed behind in their own
vehicle. No police personnel were in the accused’s
vehicle during the drive.
...
(16) I find that both Detective Sims and Special Agent
Silvas’ testimony was credible. They both presented
professionally, were attentive and forthright in their
answers. There were minor inconsistencies, typical of the
recollection of events several months in the past, but, their
testimony was clearly supported by the documents
prepared at the time.
This was in stark contrast to the accused’s
testimony, who demonstrated a highly selective memory
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REDD — ARMY 20051123
and his voice, head, and shoulders appreciatively dropped
whenever he was asked difficult questions.
...
17