United States v. Brisbane

UNITED STATES, Appellee
v.
Mark S. Brisbane, Staff Sergeant
U.S. Air Force, Appellant
No. 05-0136
Crim. App. No. 35384
United States Court of Appeals for the Armed Forces
Argued November 2, 2005
Decided April 28, 2006
BAKER, J., delivered the opinion of the Court, in which GIERKE, C.J.,
and CRAWFORD, EFFRON, and ERDMANN, JJ., joined.
Counsel
For Appellant: Major Anniece Barber (argued); Lieutenant
Colonel Carlos L. McDade, Major Andrew S. Williams, and Major
Sandra K. Whittington (on brief); Major Terry L. McElyea.
For Appellee: Captain Jin-Hwa L. Frazier (argued); Lieutenant
Colonel Robert V. Combs and Lieutenant Colonel Gary F. Spencer
(on brief); Major Kevin P. Steins.
Military Judge: James L. Flanary
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Brisbane, No. 05-0136/AF
Judge BAKER delivered the opinion of the Court.
Appellant was tried by general court-martial before a
military judge alone. Contrary to his pleas, he was convicted
of one specification of indecent acts and one specification of
wrongful possession of visual depictions of nude minors, both
offenses in violation of Article 134, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. § 934 (2000). Appellant was sentenced
to a bad-conduct discharge, confinement for twelve months, and
reduction to E-1. The convening authority approved only nine
months of confinement and waived automatic forfeitures but
otherwise approved the sentence as adjudged. The Air Force
Court of Criminal Appeals found no error and affirmed. United
States v. Brisbane, No. ACM 35384 (A.F. Ct. Crim. App. Nov. 5,
2004).1
SUMMARY
For the reasons stated below, we conclude, based on the
facts in this case, that Ms. Lynch, the Family Advocacy
1
We granted review of the following issues:
I. WHETHER THE MILITARY JUDGE ERRED IN FAILING TO SUPPRESS
APPELLANT’S STATEMENTS TO THE FAMILY ADVOCACY PROVIDER WHERE
THOSE STATEMENTS WERE MADE IN RESPONSE TO QUESTIONS POSED
WITHOUT AN ARTICLE 31, UNIFORM CODE OF MILITARY JUSTICE, RIGHTS
ADVISEMENT.
II. IF SO, WHETHER THE MILITARY JUDGE ERRED IN FAILING TO SUPPRESS
ALL EVIDENCE DERIVED FROM APPELLANT’S STATEMENT TO THE FAMILY
ADVOCACY PROVIDER BECAUSE AFOSI DID NOT GIVE APPELLANT A
CLEANSING WARNING PRIOR TO ITS INTERROGATION OF APPELLANT.
III. DID THE PROSECUTOR PRESENT LEGALLY SUFFICIENT EVIDENCE THAT
APPELLANT’S POSSESSION OF VISUAL DEPICTIONS OF NUDE MINORS WAS
SERVICE-DISCREDITING OR PREJUDICIAL TO GOOD ORDER AND
DISCIPLINE?
2
United States v. Brisbane, No. 05-0136/AF
treatment manager who initially questioned Appellant, was acting
in furtherance of a law enforcement investigation. As a result,
Appellant was entitled to a rights advisement under Article 31,
UCMJ, 10 U.S.C. § 831 (2000). However, we find the admission of
Appellant’s statements to Ms. Lynch harmless beyond a reasonable
doubt because Appellant repeated the same information, and more,
to the Air Force Office of Special Investigations (AFOSI) six
weeks later, and these statements were admissible. These
subsequent statements were not derivative of Appellant’s earlier
statements to Ms. Lynch; they were voluntary, and Appellant has
not demonstrated that AFOSI engaged in the type of “question-
first” tactic addressed by the Supreme Court in Missouri v.
Seibert, 542 U.S. 600 (2004). With respect to Issue III, we
conclude that the evidence was legally sufficient. Based on the
circumstances of Appellant’s case, any rational factfinder could
find beyond a reasonable doubt that Appellant’s possession of
child pornography was service-discrediting or prejudicial to
good-order and discipline. We affirm.
BACKGROUND
On or about June 1, 2001, Appellant showed his eight-year-
old stepdaughter, S, pictures of naked adult women on his
computer in response to her question about what she would look
like when she was older. S meant the question in terms of what
she would wear when she graduated. Appellant misunderstood the
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United States v. Brisbane, No. 05-0136/AF
question, as he told one of his colleagues, to be how would S
develop physically. At the time, Appellant’s wife was on
vacation in Hawaii. S subsequently told a neighbor about the
pictures, and the neighbor called Family Advocacy to report the
incident.
After Family Advocacy received this “referral,” the Child
Sexual Maltreatment Response Team (CSMRT)2 convened. Ms. Lynch,
the Family Advocacy treatment manager and a civilian Department
of Defense employee, testified that the participants agreed that
she, Ms. Lynch, would conduct the initial interviews of
Appellant and S.3 At trial, Ms. Lynch stated that the CSMRT
2
The Child Sexual Maltreatment Response Team: Consists of the FAO
[Family Advocacy Officer], the AFOSI agent, the JA [Judge
Advocate], and optional representatives from other agencies that
have child protection responsibilities. This multidisciplinary
team plans investigations of suspected abuse, simultaneously
minimizing the number of interviews children undergo while
effectively gathering pertinent information. CSMRT members can
also be members of the FMCMT [Family Maltreatment Case Management
Team]. The CSMRT takes coordinated action within 72 hours of any
report of child sexual abuse without waiting for a scheduled
meeting.
Dep’t of the Air Force, Instr. 40-301, Medical Command, Family Advocacy para.
3.2.1. (July 22, 1994) [hereinafter AFI 40-301].
3
On cross-examination, trial defense counsel and Ms. Lynch had the following
exchange:
Q: Okay. So, you start out, and you get a referral, and you suspect
Staff Sergeant Brisbane of an offense?
A: Yes.
Q: You notify legal and OSI, and your three organizations meet?
A: Yes.
Q: And, all together, that committee decides that you are going to
conduct the interview with Staff Sergeant Brisbane?
A: Yes.
Q: And, it is even further [sic] based on how far this goes, that
you should stop and call OSI, or just proceed?
4
United States v. Brisbane, No. 05-0136/AF
decided that she would go first “[t]o determine if we had enough
information to proceed.” Upon examination by the court, Ms.
Lynch responded in the affirmative when the military judge
inquired whether she was “normally the one who is the first [ ]
to conduct interviews after a CSMRT meeting.”
On June 1, 2001, Ms. Lynch interviewed S and then
Appellant. According to Ms. Lynch, she explained to Appellant
that he had “limited confidentiality” during their interview.
Ms. Lynch did not give Appellant an Article 31 rights
advisement. In response to questions from the trial counsel,
Ms. Lynch stated that she had never given anyone an Article 31
rights advisement or Miranda warnings and that she had not
received any training in the matter because that was “just not
part of [her] job.” Ms. Lynch testified at trial that Appellant
was “very cooperative” during the interview and that “[h]e
seemed relaxed.” Ms. Lynch’s first question to Appellant was:
“Did you do it?” Ms. Lynch testified that Appellant told her
that his stepdaughter had been asking questions about her body.
He then stated that in response he had downloaded some pictures
from an adult site on the Internet and had shown them to her.
After Ms. Lynch completed her interviews, the information
was forwarded to the Family Maltreatment Case Management Team
A: Yes.
Q: Okay, and you made the decision just to proceed?
A: Yes.
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United States v. Brisbane, No. 05-0136/AF
(FMCMT).4 According to Special Agent Corey Allison, AFOSI
decided not to pursue the matter at that time because it “lacked
credible information to open a substantive investigation.” He
testified that the matter was reported as a “zero.” Special
Agent Allison gave the following explanation of a “zero”: “It
means informational file. It is documented and an inquiry is to
be documented for future reference, if necessary.” After
categorizing the file as a “zero,” Special Agent Allison,
according to procedure, forwarded the file to a “forensic
science consultant.”5 Later, the forensic consultants
recommended that AFOSI revisit the case.
On June 27, 2001, the FMCMT met. According to an e-mail
dated July 6, 2001, from Sharon K. Burnett, the AFOSI Detachment
Commander, additional information was provided during this
meeting “which raised some concerns.” At trial, defense counsel
sought to establish through cross-examination that it was Ms.
Lynch’s information that prompted AFOSI to open an
investigation. However, Special Agent Allison maintained that
4
“The FMCMT consists of medical, investigative, and other appropriate base
and community agency representatives as determined by the FAC [Family
Advocacy Committee].” AFI 40-301, para. 2.2.3. “The [FMCMT]: . . . .In
cases of child sexual abuse: Ensures the child undergoes as few interviews
as possible . . . . Monitors the child’s safety . . . . Prescribes a sexual
abuse treatment program for child sexual abuse offenders who are on active
duty.” Id. at para. 2.2.3.1.
5
The record does not provide any additional information with regard to these
forensic consultants, i.e., their responsibilities, duty station(s), etc.
6
United States v. Brisbane, No. 05-0136/AF
it was the recommendation by the forensic science consultant
that AFOSI revisit the case that prompted the investigation.
On July 13, 2001, Special Agents Allison and Chris Winters
interviewed Appellant in their office.6 Special Agent Allison
testified that they “read [Appellant] his rights, [and] he
agreed to speak to us without the presence of an attorney.”
Special Agent Allison characterized Appellant’s demeanor as
“calm and forthright.” Appellant reduced the content of his
interview with AFOSI to a signed statement in which he admitted
showing nude adult pictures to his stepdaughter.
After concluding the interview, Special Agent Allison and
Jim Scott, a member of the Joint Drug Enforcement Team,
accompanied Appellant back to his government quarters where he
agreed to show them the pictures he had shown his stepdaughter.
After viewing the pictures, Special Agent Allison asked for
Appellant’s consent to take possession of the computer for
analysis. However, after giving consent, but before Special
Agent Allison took possession of the computer, Appellant
produced on the screen “what looked like thumbnail pictures of
naked children.” According to Special Agent Allison,
Appellant’s demeanor at that moment “changed considerably.” “He
started to shake, visibly sweating, turned red, turned around
6
The record does not indicate the date on which AFOSI officially opened its
investigation, whether it was July 13, 2001, or some prior day.
7
United States v. Brisbane, No. 05-0136/AF
stammering,” telling the Agent that he “‘thought it was okay to
have pictures of child pornography as long as it was for
educational purposes.’” Later that day, Appellant signed a
confession relating to the child pornography found on his
computer.
At some point after initiation of the investigation but
before trial, Appellant had a conversation with his neighbor,
Staff Sergeant (SSGT) Justin Gilbert, concerning the pictures
that Appellant had downloaded and his subsequent interaction
with his stepdaughter regarding the pictures. According to SSGT
Gilbert, Appellant indicated that he had downloaded some adult
pictures in order to answer his stepdaughter’s questions about
how she would develop physically as she got older. Appellant
further explained to SSGT Gilbert that the pictures were
”tasteful” and were “kind of like you’d find of a girl on the
beach.” Appellant went on to describe how the neighbors had
heard of this and had reported him to the authorities who in
turn had confiscated his computer. Also according to SSGT
Gilbert, Appellant stated that “the worst thing that they were
going to get him on was that he only had seven pictures of kids
on his computer.” At trial SSGT Gilbert testified that he found
this conversation “kind of disturbing” to the point that he
contacted AFOSI to inquire whether any of the pictures included
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United States v. Brisbane, No. 05-0136/AF
images of his children. He learned that none of the images
included his children.
Appellant challenges his conviction before this Court on
the grounds that: (1) the military judge abused his discretion
when he failed to suppress Appellant’s statements to the Family
Advocacy provider; (2) his subsequent interrogation by
Government agents was unconstitutional in light of the Supreme
Court’s recent decision in Missouri v. Seibert, (3) the absence
of a cleansing warning by AFOSI tainted his subsequent
statements to them, even though those statements were preceded
by a rights warning; and (4) the Government did not present
sufficient evidence on the issues of prejudice to good order and
service-discrediting conduct regarding his possession of visual
depictions of nude minors.
The Government responds that Appellant was not entitled to
a rights advisement under Article 31 because the Family Advocacy
provider was not working as a law enforcement agent when she
interviewed Appellant, and therefore, she was not subject to the
UCMJ. The Government further argues that Appellant’s subsequent
confession to AFOSI was voluntary under all the circumstances
and therefore not tainted by his previous admissions to Ms.
Lynch. Finally, the Government argues that the prosecution was
not required to prove actual harm to the service’s reputation to
support Appellant’s conviction for possession of visual
9
United States v. Brisbane, No. 05-0136/AF
depictions of nude minors.
DISCUSSION
Appellant’s Statements to the Family Advocacy Provider
“When there is a motion to suppress a statement on the
ground that rights’ warnings were not given, [this Court]
review[s] the military judge’s findings of fact on a clearly-
erroneous standard, and . . . conclusions of law de novo.”
United States v. Swift, 53 M.J. 439, 446 (C.A.A.F. 2000) (citing
United States v. Ayala, 43 M.J. 296, 298 (C.A.A.F. 1995));
United States v. Moses, 45 M.J. 132, 135 (C.A.A.F. 1996)).
Article 31(b) reads:
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) (2000).
Resolution of the first issue in this case turns on whether
Ms. Lynch, the Family Advocacy treatment manager, was a “person
subject to the code” for the purposes of Article 31(b) and
Military Rule of Evidence (M.R.E.) 305(c). Under M.R.E.
305(b)(1), such a person “includes a person acting as a knowing
agent of a military unit or of a person subject to the code.”
We have identified:
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United States v. Brisbane, No. 05-0136/AF
at least two instances when 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, 252 (C.A.A.F. 2004)
(quoting United States v. Penn, 18 C.M.A. 194, 199, 39 C.M.R.
194, 199 (1969) (citations omitted)); see also United States v.
Lonetree, 35 M.J. 396 (C.M.A. 1992); United States v. Quillen,
27 M.J. 312, 314 (C.M.A. 1988).
This Court most recently considered the issue of social
workers and Article 31 in United States v. Raymond, 38 M.J. 136(C.M.A. 1993). In that case, this Court held that a psychiatric
social worker was not acting as an investigative agent of law
enforcement where the appellant arrived without any command-
referral document and the social worker had no contact with the
command before or after the appellant’s walk-in appointment.
Id. at 138.
The Court in Raymond also considered the effect of an Army
regulation dealing with child abuse: “It is not a law
enforcement program; it is a community services program. The
cooperative effort required by the regulation does not render
every member of the military community a criminal investigator
or investigative agent . . . .” Id. at 138-39. Finally, this
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United States v. Brisbane, No. 05-0136/AF
Court noted in Raymond that “there is no historical duty of
health professions engaged in treatment to warn based on the
purpose behind Article 31(b).” Id. at 140.
In United States v. Moreno, this Court considered the
admissibility of statements made to a State of Texas Department
of Human Services investigator-social worker. 36 M.J. 107, 109
(C.M.A. 1992). In that case, this Court focused on whether the
social worker’s investigation merged with the military
investigation or whether she was acting as an agent of military
investigators. Id. at 115. The Court answered both of these
questions in the negative based on three findings: (1) lack of
“communication or coordination between the two camps”; (2) the
social worker “remained in the mode of social worker”; and (3)
the social worker pursued her own “limited, state objectives”
and cooperated with military authorities “only where necessary
to effectuate her own goals.” Id. With regard to the first
finding, this Court noted, specifically, that the social worker
“did not in any way coordinate [her] meeting [with the
appellant] with military police or prosecutorial authorities or
notify them that she intended to interview appellant.” Id.We now turn to the facts in this case. The military judge
found that Ms. Lynch’s interviews were “not for any law
enforcement purpose.” Rather, in the military judge’s view, Ms.
Lynch’s “primary purpose in conducting the interview was for
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United States v. Brisbane, No. 05-0136/AF
treatment purposes.” The Air Force court concluded that the
“clinical social worker was not ‘functioning as a mere conduit
for military authorities’ nor was there evidence of any
understanding between her and military authorities ‘designed to
subvert the purposes of Article 31.’” Brisbane, No. ACM 35384,
slip op. at 1. As such, the Air Force court found that, in her
independent role, Ms. Lynch was not obligated to advise
Appellant in accordance with Article 31(b). Id. at 1-2.
AFOSI and the Family Advocacy treatment manager are
integral parts of the CSMRT. They work closely on initial
assessments of complaints. Consequently, the initial complaint
that Appellant was suspected of having acted inappropriately
with his stepdaughter was assessed at a CSMRT meeting. The
CSMRT decided to have Ms. Lynch proceed first with the
interviews of Appellant and his stepdaughter to determine
whether they “had enough information to proceed.” According to
Ms. Lynch, the CSMRT made this decision “all together.” Once
Ms. Lynch obtained Appellant’s admissions, she reported them to
the FMCMT. Although the AFOSI representatives on the FMCMT
initially decided not to pursue the matter, they were in receipt
of Ms. Lynch’s information. Finally, despite stating that her
role in questioning Appellant was to provide treatment, Ms.
Lynch also stated that she was not treating Appellant for any
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United States v. Brisbane, No. 05-0136/AF
condition.7 These facts render the military judge’s finding that
Ms. Lynch “had not been approached by anyone in the Air Force
command structure or by law enforcement personnel in an attempt
to enlist her aid in collecting information to prosecute the
case” untenable. Furthermore, while there was no direct
evidence of an understanding between Ms. Lynch and military
authorities “‘designed to subvert the purposes of Article 31,’”
this is not the test for whether the UCMJ applies. Brisbane,
No. ACM 35384, slip op. at 1 (quoting United States v. Moreno,
36 M.J. 107, 117 (C.M.A. 1992)). Nor is the test an issue of
7
On cross-examination, trial defense counsel and Ms. Lynch had the following
exchange:
Q: Ms. Lynch, have you ever provided treatment to Staff Sergeant
Brisbane?
A: Yes.
Q: You’ve provided him with treatment?
A: I’m not sure of your definition of “provided treatment,” but I’ve
provided him counseling.
Q: Okay. The question was simply whether you’ve given him treatment
within your definition?
A: Yes.
Q: Isn’t it that you just recently said that you were not there for
treatment in our earlier interviews?
A: I don’t recall that.
Q: Okay. Weren’t you there actually to kind of monitor how Staff
Sergeant Brisbane was dealing with this situation as he came closer to
court?
A: Yes.
Q: Okay. So, what kind of treatment did you provide?
A: We did more to monitor him, like you said, more of a fit for duty
assessment, monitored depression, anxiety, and how he was coping with
the stress.
Q: Okay. So, you were basically meeting with him to see how he was
doing?
A: Yes.
Q: Is there any condition for which you were treating him?
A: No.
Q: Ever?
A: No.
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the questioner’s “primary purpose.” Rather, as noted in
Rodriguez and discussed above, this Court has identified at
least two instances when civilians working in conjunction with
military officials must comply with Article 31. See Rodriguez,
60 M.J. at 252 (quoting Penn, 18 C.M.A. at 199, 39 C.M.R. at 199
(1969) (citations omitted). In this case, Ms. Lynch acted in
furtherance of a military investigation. It does not matter
that her actions in this regard were not deliberately aimed at
subverting Appellant’s rights. Nor does it matter what her
“primary purpose” might have been.8
We also distinguish this case from Raymond and Moreno.
Unlike the situation in Raymond, Appellant’s command directed
him to see Ms. Lynch. Furthermore, Ms. Lynch was in regular
contact, both before and after her interview with Appellant,
with members of the military law enforcement community. Cf.
Raymond, 38 M.J. at 139; Moreno, 36 M.J. at 115. Finally, Ms.
Lynch was fully aware of Appellant’s prior contact (or lack
8
The parties do not argue that Ms. Lynch was providing emergency medical
treatment, cf. United States v. Moore, 32 M.J. 56, 60 (C.M.A. 1991) (finding
that a psychiatric nurse who provided appellant with emergency medical
treatment at his request was acting “only in a legitimate medical capacity”
when she questioned him about his suspected sexual abuse of his
stepdaughters), nor did the need to ask incriminating questions arise during
otherwise routine medical procedures. See United States v. Fisher, 21 C.M.A.
223, 225, 44 C.M.R. 277, 279 (1972) (“A medical doctor who questions an
individual solely to obtain information upon which to predicate a diagnosis,
so that he can prescribe appropriate medical treatment or care for the
individual, is not performing an investigative or disciplinary function;
neither is he engaged in perfecting a criminal case against the individual.
His questioning of the accused is not, therefore, within the reach of Article
31.”). We agree that these cases are inapplicable to the facts of this case.
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United States v. Brisbane, No. 05-0136/AF
thereof) with AFOSI in this case. Cf. Raymond, 38 M.J. at 138;
Moreno, 36 M.J. at 109. As noted, it was a team decision, made
by the members of the CSMRT, which included a representative
from AFOSI, that Ms. Lynch would conduct the first interview.
Although we note that the “cooperative effort” required by
AFI 40-301 in this case “does not render every member of the
military community a criminal investigator or investigative
agent,” Ms. Lynch’s actions in this case were more akin to an
investigative agent than a social worker. Raymond, 38 M.J. at
138-39. On cross-examination, Ms. Lynch stated that the first
thing she asked appellant when he arrived for his interview was
“[d]id you do it?” Cf. United States v. Swift, 53 M.J. 439, 447
(C.A.A.F. 2000) (holding that the accused’s supervisor, a
military criminal investigator, should have advised Swift of his
rights when he demanded that he respond to certain
“accusations”). In addition, Ms. Lynch stated that she did not
in fact treat Appellant for any condition.
We conclude that the record does not support the military
judge’s findings that Ms. Lynch was not acting “for any law
enforcement purpose,” but rather was engaged in treating
Appellant. In our view, the record supports the contrary
conclusion that Ms. Lynch was acting as an “investigative agent
of law enforcement,” by virtue of her close coordination with
base legal and investigative personnel. Raymond, 38 M.J. at
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United States v. Brisbane, No. 05-0136/AF
136. Therefore, as a threshold matter, Ms. Lynch was a “person
subject to the code” for the purposes of Article 31(b) and
M.R.E. 305(c). The next question we must consider is whether
the other requirements of Article 31 were met such that
Appellant was entitled to a rights advisement. The military
judge did not make findings in this regard because he determined
that Ms. Lynch did not meet the threshold requirement of being a
person subject to the code.
As we noted in United States v. Cohen, 63 M.J. 45, 49
(C.A.A.F. 2006), Article 31(b) contains four textual predicates.
First, the article applies to persons subject to the UCMJ.
Second and third, the article applies to interrogation or
requests for any statements from “an accused or a person
suspected of an offense.” Fourth, the right extends to
statements regarding the offense(s) of which the person
questioned is accused or suspected.
In Cohen, we sought to provide a context for this Court’s
decisions with regard to the second and third textual
predicates. See id. at 49-50. However, unlike Cohen, this case
does not present any question as to whether Ms. Lynch was
requesting a statement from a person she suspected of an
offense. See United States v. Bradley, 51 M.J. 437, 441
(C.A.A.F. 1999). “[A]ssessing all the facts and circumstances
at the time of the interview,” it is clear to us that Ms. Lynch
17
United States v. Brisbane, No. 05-0136/AF
was acting in an official law enforcement or disciplinary
capacity. United States v. Swift, 53 M.J. at 446 (quoting
United States v. Good, 32 M.J. 105, 108 (C.A.A.F. 1991)). As
noted earlier, Ms. Lynch, in conjunction with the law
enforcement representatives on the CSMRT, decided to conduct the
first interview of Appellant. According to her testimony, the
reason for her interview was to decide if they had sufficient
evidence to proceed, ostensibly, with a case against Appellant.
In keeping with this, the first question she asked Appellant
during their meeting was whether he committed the offense.
Finally, Ms. Lynch admitted that she never provided Appellant
with any treatment. Unlike Cohen, where the inspector general
acted independently, consulting only with legal personnel on an
ad hoc basis, all of Ms. Lynch’s actions were coordinated with
AFOSI and other members of the CSMRT involved in law enforcement
activities.
With respect to Article 31(b)’s third textual predicate,
this Court applies an objective test. “Whether a person is a
suspect is an objective question that is answered by considering
all the facts and circumstances at the time of the interview to
determine whether the military questioner believed or reasonably
should have believed that the servicemember committed an
offense.” Swift, 53 M.J. at 446; Good, 32 M.J. at 108. During
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United States v. Brisbane, No. 05-0136/AF
her testimony, Ms. Lynch stated that she suspected Appellant of
an offense at their first meeting.
We conclude that the remaining requirements of Article
31(b) were met in this case. As a result, Ms. Lynch should have
informed Appellant of his Article 31 rights prior to the
interview. Even though Ms. Lynch advised Appellant that his
statements were not confidential, and he spoke to her
voluntarily, this does not otherwise negate the requirements of
Article 31(b). See M.R.E. 304(a), M.R.E. 305(a). Therefore,
Appellant’s statements to Ms. Lynch, the Family Advocacy
treatment manager, should have been suppressed by the military
judge and could not be used to support his convictions.
However, this does not resolve the question of whether
Appellant’s subsequent statements to AFOSI were admissible. Nor
does it answer the question of whether the pictures found on
Appellant’s computer should have been admitted as the basis for
the second specification of Charge I, wrongful and knowing
possession of visual depictions of nude minors.
Appellant’s Statements to AFOSI
With regard to Appellant’s second and third challenges, we
must decide whether AFOSI’s subsequent interrogation of
Appellant was unconstitutional in light of the Supreme Court’s
recent decision in Missouri v. Seibert, and whether the absence
19
United States v. Brisbane, No. 05-0136/AF
of a cleansing warning tainted Appellant’s statements, even
though those statements were preceded by a full rights warning.
The military judge did not make any findings with regard to
whether Appellant’s subsequent statements to AFOSI were
voluntary because Appellant only challenged their admission as
derivative evidence at trial. In light of its conclusion that
Ms. Lynch acted independently, the Air Force court found the
issue of whether AFOSI properly questioned Appellant moot.
Brisbane, No. ACM 35384, slip op. at 2. This Court has looked
to the Supreme Court’s decision in Oregon v. Elstad, 470 U.S.
298 (1985), which distinguished between two classes of
involuntary confessions, for guidance on evaluating the
admissibility of a confession obtained subsequent to one that is
deemed illegally obtained:
[W]here the earlier confession was “involuntary” only
because the suspect had not been properly warned of
his panoply of rights to silence and to counsel, the
voluntariness of the second confession is determined
by the totality of the circumstances. The earlier,
unwarned statement is a factor in this total picture,
but it does not presumptively taint the subsequent
confession.
United States v. Cuento, 60 M.J. 106, 109 (C.A.A.F. 2004)
(quoting United States v. Phillips, 32 M.J. 76, 79 (C.M.A.
1991)). One of the circumstances this Court takes into account
20
United States v. Brisbane, No. 05-0136/AF
is the presence of a “cleansing warning,”9 however, the absence
of such is not fatal to a finding of voluntariness. Cuento, 60
M.J. at 109.
The classic listing of the other factors used in a
voluntariness analysis is found in the Supreme Court’s decision
in Schneckloth v. Bustamonte:
In determining whether a defendant’s will was overborne in
a particular case, the Court has assessed the totality of
all the surrounding circumstances -- both the
characteristics of the accused and the details of the
interrogation. Some of the factors taken into account have
included the youth of the accused, his lack of education,
or his low intelligence, the lack of any advice to the
accused of his constitutional right, the length of
detention, the repeated and prolonged nature of the
questioning, and the use of physical punishment such as the
deprivation of food or sleep.
412 U.S. 218, 226 (1973) (citations omitted).
In his brief, Appellant also argues that the Supreme
Court’s recent decision in Seibert applies to the facts of this
case. In Seibert, police arrested the respondent following the
deaths of the respondent’s son and another teenager. 542 U.S.
at 604. At the suppression hearing, the interviewing officer
admitted that he consciously withheld Miranda warnings, “thus
resorting to an interrogation technique he had been taught:
question first, then give the warnings, and then repeat the
question ‘until I get the answer that she’s already provided
9
A cleansing warning is one in which the “accused [is] warned that a previous
statement cannot be used against him.” Cuento, 60 M.J. at 109.
21
United States v. Brisbane, No. 05-0136/AF
once.’” Id. at 605-06. In Seibert, the Court invalidated the
“police protocol” described above that called for elicitation of
an unwarned confession, followed by rights warnings, and
elicitation of the same confession. 542 U.S. at 604. Because
the officer in Seibert was very candid about the procedure, the
Court noted that “the focus is on facts apart from intent that
show the question-first tactic at work.” Id. at 616 n.6.
According to Appellant, the base legal office and AFOSI
similarly engaged in a purposeful plan to evade his
constitutional rights by arranging for Ms. Lynch to interview
him first, without a proper rights advisement. Cf. Seibert, 542
U.S. at 605-06. Then, Appellant argues, AFOSI sought to
interrogate him with the benefit of his earlier unwarned
statements to Ms. Lynch.
Although Seibert altered the inquiry under Elstad, the
facts in Appellant’s case are distinguishable. First, in
contrast to Seibert, the two interviews in Appellant’s case
occurred almost six weeks apart. Further, although there was
coordination between AFOSI and the Family Advocacy staff, the
record does not demonstrate a deliberate effort aimed at
securing an unwarned confession for later use in securing a
warned confession. Cf. United States v. Phillips, 32 M.J. 76(C.M.A. 1991) (suppressing appellant’s statements where this
Court found that the Naval Investigative Service special agent
22
United States v. Brisbane, No. 05-0136/AF
used earlier, unwarned interviews and statements as a starting
point for his interrogation). According to Special Agent
Allison, AFOSI did receive information about the incident
through the FMCMT. However, Special Agent Allison denied that
Ms. Lynch’s June 1, 2001, interview was the reason that AFOSI
pursued its investigation. Rather, AFOSI’s decision to
interview Appellant was based on a forensic consultant’s
recommendation that AFOSI pursue an investigation. Seibert does
not ban coordination among individuals. Rather, it is aimed at
a very specific, deliberate practice of successive
interrogations to secure an admissible confession. What
happened in this case does not rise to that level.
Because the evidence in this case does not support a
conclusion that Family Advocacy and AFOSI engaged in the type of
unconstitutional practice prohibited by Seibert, the test for
whether the second confession is admissible is whether it was
voluntary under all the circumstances. See Cuento, 60 M.J. at
109.
Here, there was no cleansing warning because Special Agent
Allison and his colleagues did not believe that Appellant was
entitled to a warning when he first confessed to Ms. Lynch.
Therefore, our determination of whether Appellant’s second
confession to Special Agent Allison was voluntary hinges on
other factors, including those identified in Bustamonte. First,
23
United States v. Brisbane, No. 05-0136/AF
Appellant’s interview with Special Agent Allison occurred almost
a month and a half after his initial interview with Ms. Lynch.
This was a substantial amount of time for Appellant to weigh the
pros and cons of continuing to talk with military authorities
about showing pictures of nude adult women to his stepdaughter.
Second, Appellant was a mature, experienced member of the
military. At the time of the incident, Appellant was a twenty-
eight-year-old staff sergeant with almost ten years of military
service. Third, the conditions of Appellant’s second interview
were not coercive or inhumane. Special Agent Allison testified
that Appellant was asked to come in and speak with AFOSI about
an incident involving his daughter. After Appellant waived his
rights and agreed to give a written statement, Special Agent
Allison and a colleague followed Appellant back to his house so
that Appellant could show them the pictures he had shown to his
stepdaughter. There is nothing to suggest that Appellant’s free
will was overborne.
This conclusion is supported by the fact that Appellant did
not believe that he had done anything criminal in showing
pictures to his stepdaughter. In his written confession,
Appellant admits only that his approach was “incorrect.”
According to Special Agent Allison’s testimony, it was not until
Appellant brought up pornographic pictures of children on his
computer that he became nervous. Before that, Special Agent
24
United States v. Brisbane, No. 05-0136/AF
Allison testified that Appellant was “calm.” This comports with
Ms. Lynch’s description of Appellant’s demeanor during her
initial interview with him.
Based on the foregoing, while we agree with Appellant that
he was entitled to a rights warnings prior to his interview with
Ms. Lynch, we find that his statements to AFOSI were voluntary
under the circumstances and not barred by the Supreme Court’s
decision in Seibert, notwithstanding the absence of a cleansing
warning. Thus, the military judge did not err in admitting
these statements or the evidence subsequently seized from
Appellant’s computer. In light of these later, more detailed
statements describing his conduct, we conclude that the
admission of Appellant’s initial statements to Ms. Lynch was
harmless beyond a reasonable doubt. See United States v.
Hallock, 27 M.J. 146 (C.M.A. 1988) (citing United States v.
Remai, 19 M.J. 229, 233 (C.M.A.1985)).
Appellant’s Possession of the Pictures
We turn now to the final issue in the case, whether the
evidence was legally sufficient to sustain Appellant’s
conviction for possession of child pornography under clauses one
and two of Article 134. The Air Force court found that
“[A]ppellant’s possession of . . . pictures was prejudicial to
good order and discipline or of a nature to bring discredit upon
the armed forces.” Brisbane, No. ACM 35384, slip op. at 2.
25
United States v. Brisbane, No. 05-0136/AF
Appellant now argues that there is no evidence that his
possession of pictures of nude minors was service-discrediting
or conduct prejudicial to good order and discipline. The
Government argues that Appellant’s mere possession of sexually
explicit images of minors is an act involving moral turpitude,
and as such, is inherently prejudicial to good order and
discipline and service-discrediting.
The knowing possession of images depicting sexually
explicit conduct by minors, whether actual or virtual, when
determined to be service-discrediting conduct or conduct
prejudicial to good order and discipline, is an offense under
Article 134. United States v. Mason, 60 M.J. 15, 20 (C.A.A.F.
2004). However, Ashcroft v. Free Speech Coalition, 535 U.S. 234(2002), created a “constitutional dimension” to an Article 134
charge that did not exist previously. As a result, the elements
of service discredit or prejudicial conduct must be considered
in the context of a military member’s possession of what might
be considered virtual child pornography, or pornography the
Supreme Court otherwise determined was constitutionally
protected in a civilian context. Mason, 60 M.J. at 19; United
States v. O’Connor, 58 M.J. 450, 454 (C.A.A.F. 2003). In light
of Free Speech Coalition we look to the record to determine
whether the evidence demonstrates that an accused’s conduct is
service-discrediting and/or prejudicial to good order and
26
United States v. Brisbane, No. 05-0136/AF
discipline, even if such conduct would have been protected in a
civilian context.
After taking Appellant’s statement regarding the showing of
nude adult photographs to his stepdaughter, the AFOSI
investigators accompanied Appellant to his home. Based on
Appellant’s consent, the investigators entered the home where
Appellant showed the agents images of nude adults he had shown
to his stepdaughter and sought to explain why he had done so.
In the course of this conduct, Appellant inadvertently displayed
images of child pornography to the agents.
Following this disclosure, Appellant was charged with a
violation of clauses one and two of Article 134.10 Appellant
subsequently told his neighbor, SSGT Gilbert, that he possessed
seven pictures of child pornography. This disclosure alarmed
SSGT Gilbert enough that he contacted AFOSI to determine whether
any of the pictures included images of his children. “Viewing
the evidence in the light most favorable to the prosecution,” we
conclude that “any rational trier of fact” could have found
beyond a reasonable doubt that Appellant’s possession of the
pictures in question was prejudicial to good order and
discipline or service-discrediting. Jackson v. Virginia, 443
10
The record of trial does not establish whether the photographs contained
actual or virtual child pornography. As a result, for the sake of our
analysis we will assume, without deciding, that the pictures were virtual in
nature.
27
United States v. Brisbane, No. 05-0136/AF
U.S. 307, 319 (1979); United States v. Turner, 25 M.J. 324(C.M.A. 1987).11
DECISION
The decision of the United Air Force Court of Criminal
Appeals is affirmed.
11
Because we conclude that the record contains specific evidence that
Appellant’s conduct was service-discrediting and/or prejudicial to good order
and discipline, we need not consider how, if at all, Free Speech Coalition
applies to the Government’s argument that Appellant’s conduct, as an act of
moral turpitude, was inherently prejudicial or service-discrediting.
28