United States v. First Lieutenant ASA M. EVANS ( 2015 )

                                      LIND, KRAUSS 1, and PENLAND
                                         Appellate Military Judges
                                    UNITED STATES, Appellee
                                  First Lieutenant ASA M. EVANS
                                   United States Army, Appellant
                                             ARMY 20130647
                                     Headquarters, Fort Bliss
                                Douglas K. Watkins, Military Judge
                        Colonel Edward K. Lawson IV, Staff Judge Advocate
    For Appellant: Captain Patrick A. Crocker, JA (argued); Colonel Kevin Boyle, JA;
    Major Vincent T. Shuler, JA; Captain Patrick A. Croc ker, JA (on brief).
    For Appellee: Captain Carling M. Dunham, JA (argued); Colonel John P. Carrell,
    JA; Lieutenant Colonel James L. Varle y, JA; Major Steven J. Collins, JA; Captain
    Carling M. Dunham, JA (on brief).
                                                17 July 2015
                                         MEMORANDUM OPINION
         This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.
    LIND, Senior Judge:
           A general court-martial composed of officer members convicted appellant,
    contrary to his pleas, of two specifications of false official statement and one
    specification of larceny of property of a value in excess of $500.00, in violation of
    Articles 107 and 121, Uniform Code of Military Justice [hereinafter UCMJ], 10
    U.S.C. §§ 907, 921 (2006). 2 The panel sentenced appellant to a dismissal,
        Judge Krauss took final action in this case prior to his departure from the court.
     The panel acquitted appellant of one specification of fraudulent appointment and
    one specification of wearing an unauthorized “Special Forces Combat Patch.”
    EVANS—ARMY 20130647
    confinement for one month, and forfeiture of all pay and allowances. The convening
    authority approved the sentence as adjudged.
          This case is before us for review under Article 66, UCMJ. Appellant raises
    two assignments of error. 3 One, whether the military judge abused his discretion by
    denying the defense motion to suppress because the government obtained a statement
    from appellant in violation of Article 31, UCMJ , merits discussion and relief.
           Appellant was convicted of two false official statement specifications a lleging
    he: (1) submitted a dental x-ray that falsely stated was taken at a dental clinic in
    Afghanistan, and (2) signed a memorandum for record (MFR) that falsely stated he
    had dental work conducted by an Army dentist in Afghanistan. The following
    evidence was elicited during an Article 39(a) , UCMJ, session to decide a defense
    motion to suppress the x-ray and the MFR.
           In August 2011, appellant’s battalion commander initiated an Army
    Regulation (AR) 15-6 investigation concerning, among other things, appellant’s
    wear of an unauthorized combat patch. During the investigation, appellant was read
    his Article 31(b), UCMJ, rights and he requested an attorney. On 26 September
    2011, the investigating officer finalized his report , concluding appellant had worn an
    unauthorized combat patch, and recommending adverse actions against appellant.
           At some point between 26 September 2011 and 2 3 October 2011, the Brigade
    Judge Advocate (BJA) for appellant’s unit, Major (MAJ) JH, received appellant’s
    rebuttal matters in response to the investigating officer’s conclusions and
    recommendations. Contained therein was a dental x -ray with appellant’s name, the
    last four digits of his social securit y number, his date of birth, a location of “Bagram
    Air Base Dental Clinic, Afghanistan,” and a date of 15 May 2010. The BJA brought
    appellant’s rebuttal matters into his brigade commander’s office and told him he
    “wasn’t sure whether that was a real x -ray or not”. 4 The BJA contacted appellant’s
    defense counsel, MAJ JR, to ask for a sworn statement from appellant to
    “authenticate” the x-ray and to link it to appellant. The BJA told MAJ JR:
     We have considered those 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 BJA contacted the brigade surgeon, the Chief Periodontist at Fort Bliss, MAJ
    BS, and current dentists from all three dental clinics in Bagram, Afghanistan. MAJ
    BS prepared a memorandum to the BJA which stated that there was a substantially
    similar x-ray of appellant’s teeth in the dental records system that was taken on 27
    April 2011 and that there were no records of appellant receiving dental care between
    April 2010 and June 2010.
    EVANS—ARMY 20130647
                 [I]f your client’s saying that this is his x -ray, he should
                 put that in writing and assert that, because at the time,
                 when he submitted the rebuttal, all he submitted was that
                 document, and it was really kind of hard for us to connect
                 that document back to him if we needed to. So MAJ JR
                 knew at the time that if [appellant] were to do that . . . .
                 his client would be affirmatively stating—would be
                 putting himself on the hook . . . . if he were to say
                 affirmatively that was his x-ray.
    Major JR agreed that appellant would provide a sworn statement but later advised
    the BJA that it was going to be an MFR. The BJA did not receive any docum ents
    directly from MAJ JR, however, MAJ JR told the BJA that “something was on the
    way.” The BJA also wanted to “establish an objective chain of custody” for the
    document out of “concern” that “there would be authentication issues” if there was a
           The BJA asked appellant’s senior rater, the brigade’s officer in charge of
    operations (the S3) 5 to “collect documentation” from appellant and to verify that the
    documents were the information appellant wanted to submit in rebuttal. The BJA,
    the S3, and appellant were in the field at a base camp in White Sands at the time of
    the request. The S3 was aware that appellant was being investigated for “false
    honors,” but did not think of appellant as a “suspect.” The S3 understood that his
    role in his meeting with appellant would be “administrative” to establish a “chain of
    custody” for the x-ray that was allegedly submitted by appellant in his rebuttal
    matters. The S3 met with appellant while they were both in the field, showed him
    the x-ray, and asked him if the x-ray was information he previously submitted and
    wanted to submit as part of his rebuttal matters. After appellant answered “yes,” the
    S3 showed him the MFR and asked “Does this meet your intent as far as what you
    are submitting it for?” Appellant answered “yes” and signed the MFR . 6 The S3 did
     Because both the BJA and S3 are named MAJ JH, we refer to them by their
    position rather than their initials in this opinion.
      The MFR contains two informational paragraphs. The first states “While deployed
    to the Afghanistan AOR, I had dental work c onducted by [sic] Army dentist at
    Bahgram [sic] Army Airfield. This enclosed x -ray highlights the location and date
    of my dental work. See encl 1.” The second states “In the respect to deployment
    orders or lack thereof; as told to CPT M (BN S1) my binde r of important military
    paperwork (I LOVE ME BOOK) was part of my property that was lost and not
    recovered by National Van Line moving company. This company moved both my
    family and me from North Carolina to Fort Bliss.”
    EVANS—ARMY 20130647
    not advise appellant of his Article 31, UCMJ, rights for false official statement prior
    to questioning him.
            The S3 testified he received an unsigned draft of the MFR from the BJA and
    that the BJA told him it had come from MAJ JR. The BJA, on the other hand,
    testified that he was not sure how the S3 had acquired the MFR or where it came
    from, but that he believed MAJ JR had given the unsigned MFR draft to the S3
    because MAJ JR had previously informed the BJA that a statement by appellant
    regarding the x-ray would be executed and delivered to the brigade.
           The military judge denied the defense’s motion to suppress the MFR. Among
    the military judge’s findings of fact are: (1) the S3 was appellant’s direct
    supervisor; (2) the BJA coordinated with the S3 to be the single point of contact for
    the AR 15-6 investigation to receive documents from appellant because the BJA did
    not want to become a witness; (3) the BJA was concerned about the authenticity of
    the x-ray and had multiple discussions with MAJ JR about the x-ray; (4) the BJA
    told MAJ JR that appellant needed to execute a sworn statement if he intended to
    submit the x-ray in rebuttal to the AR 15-6 investigation; (5) MAJ JR advised the
    BJA that appellant would execute a sworn state ment and deliver it to the brigade; (6)
    the BJA did not direct the S3 to question appellant about the allegations; and (7) the
    S3 subjectively believed he was confirming what matters appellant was submitting in
    rebuttal and not acting as an investigator. With respect to the meeting between the
    S3 and appellant, the military judge found as fact the S3 :
                 [T]ook appellant into a conference room so they could
                 discuss the issue in private. The S3 did not advise
                 appellant of his Article 31(b) or Miranda rights. The S3
                 showed appellant the subject x -ray and informed him that
                 the command was trying to verify if he was submitting the
                 x-ray in rebuttal. Appellant related orally he was. The S3
                 asked appellant if the subject MFR met his intent.
                 Appellant related orally it did. The S3 told appellant that
                 if the MFR met his intent, he needed to sign it , which
                 appellant did above his signature block. The S3 did not
                 question appellant as to whether the x -ray was authentic or
            When discussing the law forming the basis of his legal conclusions, the
    military judge stated “the protections under Article 31(b) are triggered when a
    Soldier is questioned for law enforcement or disciplinary inquiry by a person who is
    acting in an official capacity.” The judge recognized that whether Article 31(b)
    protections are triggered is an objective test and that when the questioner is
    appellant’s supervisor there is a rebuttable presumption that questioning was done
    for disciplinary purposes. The presumption may be overcome when there is an
    EVANS—ARMY 20130647
    administrative or operational primary purpose for the questioning. See generally
    United States v. Bradley, 
    51 M.J. 437
    , 442 (C.A.A.F. 1999).
           In his conclusions of law, the military judge held that the presumption of the
    S3/senior rater’s disciplinary capacity had been rebutted by the evidence pre sented
    at the motion hearing. He found the S3 was “not trying to elicit incriminating
    responses [from appellant] about the potential falsity of the x -ray,” but rather only
    met with appellant in a “legitimate administrative inquiry” to confirm or deny
    whether appellant had submitted the x -ray with his AR 15-6 investigation rebuttal
           The judge also held that the BJA did not use the S3 “as a proxy o r pretext to
    evade [appellant’s] rights.” The BJA spoke with appellant’s attorney about the
    issue. The BJA “had no way of knowing at the time if the AR 15-6 investigation
    would result in a court-martial.” The BJA had a responsibility to finalize the 15 -6
    investigation and ensure appellant’s rebuttal matters were reviewed by the
    appointing authority, and it was this duty that was the “primary purpose” of the
    BJA’s actions in relation to the x-ray. The judge characterized the BJA’s actions as
    “administrative and operational, rather than disciplinary.”
          Finally, the judge:
                 [F]ound it particularly noteworthy that [appellant] was
                 represented by [defense] counsel and that the c ounsel
                 represented to the BJA that a ‘statement’ by [appellant]
                 was forthcoming to explain what matters were being
                 submitted in rebuttal. Presumably, any statements by
                 [appellant] to the S3 were done on advice of counsel,
                 especially given the limited number and context of the
                 S3’s questions of [appellant].
                                  LAW AND DISCUSSION
           We evaluate a military judge’s decision regarding whether to suppress
    evidence for a violation of Article 31(b), UCMJ, for an abuse of discretion. United
    States v. Jones, 
    73 M.J. 357
    , 360 (citing United States v. Ayala, 
    43 M.J. 296
    , 298
    (C.A.A.F. 1995). A judge abuses his discretion when his findings of fact are clearly
    erroneous or when conclusions of law are incorrect. Id. (citing Ayala, 43 M.J. at
    298). In this case, Article 31(b) warnings would have been required if “(1) A person
    subject to the UCMJ (2) interrogates or requests any statement, (3) from an accused
    or person suspected of an offense, and (4) the statements regard the offense of which
    the person questioned is accused or suspected. Id. at 361 (citing United States v.
    63 M.J. 45
    , 49 (C.A.A.F. 2006). To trigger Article 31(b) protections, all
    prongs of the test must be met. The inquiries are objective and, when the supervisor
    EVANS—ARMY 20130647
    is the questioner, there is a rebuttable presumption that the questioni ng is for
    disciplinary reasons. United States v. Good, 
    32 M.J. 105
    , 108 (C.M.A. 1991); see
    also United States v. Swift, 
    53 M.J. 439
    , 446 (C.A.A.F. 2000).
           We conclude the military judge abused his discretion in failing to suppress the
    MFR. We find his findings of fact are supported by the record and he applied the
    correct law, however, his conclusion of law that the S3 was acting with a primary
    administrative purpose of confirming what matters appellant wished to submit in
    rebuttal to the AR 15-6 investigation was an unreasonable application of the law to
    the facts. 7 Appellant had already submitted his rebuttal package that included the
    x-ray. The BJA had already taken appellant’s re buttal package and discussed it—
    and his suspicions about the authenticity of the x-ray—with appellant’s Brigade
    Commander. The BJA was investigating whether the x-ray was authentic. The BJA
    wanted appellant to sign a self-incriminating statement to authenticate an x-ray the
    BJA suspected might be false. The S3 was acting as an agent of the BJA to obtain
    this incriminating statement. Notwithstanding what either the S3 or the BJA may
    have subjectively believed, the S3 was not acting with a primarily administrative
    purpose. See Swift, 53 M.J. at 448. The AR 15-6 investigation, including
    submission of rebuttal matters, was complete. The solicitation of the MFR from
    appellant was to gather evidence regarding a potential new false official statement
    offense. Thus, the BJA and S3’s solicitation of the MFR from appellant was for an
    official law enforcement purpose. The S3, who was acting at the behest of the BJA,
    was required to give appellant Article 31(b), UCMJ, warnings prior to procuring his
    signature on the incriminating MFR and eliciting any statement from appellant
    regarding the x-ray or the MFR.
           We agree with the military judge’s find ings of fact that the BJA relayed his
    suspicions to MAJ JR, who then agreed to draft a sworn statement for appellant’s
    signature stating he was submitting the x -ray as part of his rebuttal matters.
    However, the judge did not make an express finding of fac t that the MFR at issue
    was drafted by MAJ JR. The government has the burden of proving appellant’s
    statements were voluntarily made. Assuming the MFR was drafted by MAJ JR in
    consultation with appellant, the government has not provided the military judge at
    the time of trial or this court on appeal with any authority to suggest that a person
    with a duty to administer Article 31(b) warnings no longer has such a duty to warn a
    person suspected of an offense if the person with the duty to warn communicates h is
    suspicions to the suspect’s defense counsel, or that by such communication with
     Although the military judge did not make explicit findings of fact that the S3 was a
    person subject to the code; that he was interrogating or requesting a statement from
    appellant; and that the BJA suspected the x-ray submitted by appellant was false, we
    can infer such findings from his ruling. We agree with the military judge and focus
    our attention as to whether the S3 was acting in an official law enforcement or
    disciplinary capacity when questioning appellant.
    EVANS—ARMY 20130647
    defense counsel appellant somehow waives the failure to warn. Accordingly, we
    conclude the military judge abused his discretion by failing to suppress the MFR and
    statements made by appellant when he signed the MFR.
           Turning to prejudice, for an erroneous evidentiary ruling we determine
    whether there is prejudice by weighing “(1) the strength of the government’s case,
    (2) the strength of the defense case, (3) the materiality of the evidence in question,
    and (4) the quality of the evidence in question. ” United States v. Kerr, 
    51 M.J. 401
    405 (C.A.A.F. 1999).
           Appellant stands convicted of two false official statements —one being the x-
    ray itself, and the other the MFR—and larceny of unemployment funds from North
    Carolina. The evidence at issue was not introduced to prove the larceny and ,
    therefore, its erroneous admission was not prejudicial to that offense. Because the
    MFR was the primary evidence admitted by the government to prove the false
    official statement charged in Specification 1 of Charge I, we necessarily find
    prejudice with respect to that specification. 8 The MFR was also introduced to
    authenticate the x-ray that is the false official statement charged in Sp ecification 2
    of Charge I. However, we conclude that even without the MFR, the government’s
    case with respect to that specification was strong. The S3 testified that he
    recognized the x-ray (prosecution exhibit 12) as “a copy of the x -ray [appellant]
    submitted as evidence he was in Afghanistan. ” The S3 knew that appellant had
    submitted the x-ray as part of his rebuttal package before meeting with appellant to
    sign the MFR. Thus, this testimony was admissible. The deputy commander of the
    dental clinic at Fort Bliss testified about all of appellant’s dental records , that there
    was no record of appellant receiving dental treatment in Afghanistan , and that
    printed dental x-rays do not specify the location where the x -ray was taken. The
    defense case regarding the falsity of the x-ray was weak. While the defense
    presented evidence that appellant was in Afghanistan and argued that appellant’s
    dental records may not be complete, they presented no evidence that the x -ray was
    valid. The MFR was not material or of high quality with respect to Speci fication 2
    of Charge I because it was cumulative to the S3’s testimony that appellant submitted
    the x-ray as part of his rebuttal matters. We conclude the erroneous admission of
    the MFR and the S3’s testimony regarding his meeting with appellant did not result
    in prejudice as to Specification 2 of Charge I.
          The finding of guilty to Specification 1 of Charge I is set aside and that
    Specification is DISMISSED. The remaining findings of guilty are AFFIRME D.
     We reject the government’s argument that there was no prejudice to the false
    official statement charge involving the MFR because the government could have
    proved the charge using evidence not admitted at trial.
    EVANS—ARMY 20130647
           We are able to reassess the sentence on the basis of the errors noted and do so
    after conducting a thorough analysis of the record in accordance with the principles
    articulated by our superior court in United States v. Winckelmann, 
    73 M.J. 11
    , 15-16
    (C.A.A.F. 2013) and United States v. Sales, 
    22 M.J. 305
     (C.M.A. 1986). In
    evaluating the Winckelmann factors, we find no dramatic change in the gravamen of
    appellant’s misconduct. Appellant remains convicted of the serious larceny offense
    of a value over $18,000 and the remaining false official statement offense for
    submission of the x-ray. Appellant’s penalty exposure remains the same as the
    military judge merged the two false official statement offenses for sentencing. We
    have experience with appellant’s remaining convictions to allow us to reliably
    determine what sentence would have been imposed at t rial. After reassessing the
    sentence and the entire record, the sentence is AFFIRMED. All rights, privileges,
    and property, of which appellant has been deprived by virtue of that portion of the
    findings set aside by our decision, are ordered restored .
          Judge KRAUSS and Judge PENLAND concur.
                                           FOR THE COURT:
                                           MALCOLM H.  H. SQUIRES,
                                                          SQUIRES, JR.
                                           Clerk of Court
                                           Clerk of Court

Document Info

DocketNumber: ARMY 20130647

Filed Date: 7/17/2015

Precedential Status: Non-Precedential

Modified Date: 7/23/2015