United States v. Cohen , 63 M.J. 45 ( 2006 )

UNITED STATES, Appellee
v.
Alexander L. COHEN, Airman First Class
U.S. Air Force, Appellant
No. 04-0606
Crim. App. No. 34975
United States Court of Appeals for the Armed Forces
Argued October 12, 2005
Decided April 7, 2006
BAKER, J., delivered the opinion of the Court, in which GIERKE,
C.J., and CRAWFORD, EFFRON, and ERDMANN, JJ., joined.
Counsel
For Appellant: Captain David P. Bennett (argued); Colonel
Carlos L. McDade and Major Sandra J. Whittington (on brief);
Major Terry L. McElyea.
For Appellee: Major Michelle M. Lindo McCluer (argued);
Lieutenant Colonel Robert V. Combs and Lieutenant Colonel Gary
F. Spencer (on brief); Captain C. Taylor Smith.
Military Judge: Israel B. Willner
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Cohen, No. 04-0606/AF
Judge BAKER delivered the opinion of the Court.
Appellant was tried by a general court-martial composed of
officer members. In accordance with his pleas, he was convicted
of two specifications of indecent acts in violation of Article
134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934(2000). Contrary to his plea, he was convicted of indecent
assault also in violation of Article 134, UCMJ.1 The adjudged
sentence included a dishonorable discharge, confinement for four
years, forfeiture of all pay and allowances, and reduction to
grade E-1. The convening authority approved three of the four
years of confinement but otherwise approved the sentence as
adjudged. The Air Force Court of Criminal Appeals affirmed.
United States v. Cohen, No. ACM 34975, 2004 CCA LEXIS 130, 2004
WL 1238960 (A.F. Ct. Crim. App. May 18, 2004) (unpublished).
Before this Court, Appellant challenges the military judge’s
failure to suppress statements he made to the Inspector General
(IG) on the basis of the IG’s failure to advise him of his
rights pursuant to Article 31, UCMJ, 10 U.S.C. § 831 (2000).2
Although we find that the IG should have given a rights warning,
we conclude the error was harmless and affirm.
1
Appellant was acquitted of rape in violation of Article 120, UCMJ, 10 U.S.C.
§ 920 (2000), and fraudulent enlistment in violation of Article 83, UCMJ, 10
U.S.C. § 883 (2000).
2
We granted review of the following issue:
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Background
On February 5, 2000, Appellant and four other individuals -
- two females and two males -- all trainees at Goodfellow Air
Force Base (AFB), Texas, drove to a concert in Abilene, Texas.
During this trip, everyone except for Airman (Amn) W consumed
large quantities of alcohol. After the concert, Appellant and
his companions spent the night in a motel room in Abilene.
While there, Appellant photographed himself digitally
penetrating one of the female airmen, Amn M, who was passed out
on a bed. He also photographed another airman having
intercourse with Amn M while she was passed out on the bed.
Subsequent to these events, Appellant became concerned
about the length of time it was taking to process his security
clearance. Additionally, his command had denied a leave request
to visit his ill father. Consequently, between February 23,
2000, and June 14, 2000, Appellant met several times with
Lieutenant Colonel (Lt Col) Kluck, the IG for the 17th Training
Wing, to discuss how best to resolve these issues. These
meetings were initiated by Appellant and were conducted pursuant
to the IG’s authority to investigate complaints within the Air
Force. Lt Col Kluck had at least eighteen years of previous
WHETHER THE MILITARY JUDGE ERRED WHEN HE DENIED APPELLANT’S MOTION TO
SUPPRESS STATEMENTS HE MADE TO THE BASE INSPECTOR GENERAL.
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experience as an Office of Special Investigation (OSI)
investigator.
According to Lt Col Kluck “the Abilene incident was
discussed when he . . . came in and spoke with me,” on May 31,
2000. On a complaint registration form dated the same day,
Appellant indicated that he had been charged with rape, but that
the charge had been “dropped [until] further notice.” Lt Col
Kluck’s notes accompanying this form indicate that “Cohen is
being told by SJA [staff judge advocate] that he will be a
witness in a trial [or an Article 32, UCMJ § 832 (2000),
hearing] beginning 8 Jun 00. Cohen’s attorney feels he won’t be
needed.” Lt Col Kluck had a final meeting with Appellant on June
14, 2000, during which they again discussed the issues of
Appellant’s security clearance and his leave. During this
meeting, Lt Col Kluck learned from Appellant that his attorney
had indicated that Appellant “should be good to go on leave
since he [will] not be needed for trial until mid - late July
00.” During one or more of these meetings with Lt Col Kluck,
Appellant described the incident in Abilene.
On the merits at Appellant’s court-martial, Lt Col Kluck
was allowed to testify over objection that Appellant had
admitted to being present during the rape of Amn M, that he had
photographed the rape of Amn M and that he had assisted in
cleaning Amn M’s clothing after the rape. During the
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unsuccessful motion to suppress and on the merits Lt Col Kluck
testified that he had been aware of Appellant’s statement on the
intake form regarding the rape charge, but had not administered
warnings because Appellant had indicated to him that he was only
a witness to the acts against Amn M. Specifically, Lt Col Kluck
testified that while they were discussing the issue of leave, he
asked Appellant whether there were any problems he should know
about before he spoke with Appellant’s command. Appellant
responded that “he had been involved in an incident in the
Abilene area.” According to Lt Col Kluck, Appellant went on to
describe the events of that evening, including the sexual
activity between the drunk female airman, Amn M, and another
male airman. However, Appellant told Lt Col Kluck that he was
not a participant in such activity. When asked about whether
Appellant mentioned anything about taking photographs of what
occurred that night in Abilene, Lt Col Kluck responded that
Appellant did tell him about taking the photographs. Lt Col
Kluck further testified that he asked Appellant whether he was a
participant, because, if he had been, “at that point, the
interview would have changed a bit.” Appellant responded, “no,
he was simply a witness in this incident, by taking
photographs,” Lt Col Kluck testified.
On cross-examination, Appellant’s civilian defense counsel
asked Lt Col Kluck whether he “ever advise[d] [Appellant] of his
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rights?” Lt Col Kluck responded, “No, I didn’t. There was no
reason for me to.”
Defense counsel focused on the intake sheet dated May 31,
2000, and attempted to show that the IG should have been on
notice that Appellant was a suspect because of the reference to
the rape charge. That colloquy proceeded as follows:
Q. So, in fact, my client told you that he had been
charged with rape, didn’t he?
A. He said he’d been charged with rape.
Q. So, in that sense, he alerted you to the fact that he
was facing charges?
A. No. I asked him -- I looked at this [form] and I
said, “Are you being charged?” And, he said that he
had been charged, that the charges were dropped, and
he was now a witness in another case and he wasn’t
charged with anything. And that was confirmed when I
talked to the JAG’s office, that he was no longer
being charged with anything. He was simply a witness
in another case.
Satisfied with Appellant’s response that he was not facing
pending charges related to the rape of Amn M, Lt Col Kluck
testified that he proceeded to obtain information from Appellant
that he believed would aid him in resolving Appellant’s leave
problem. Defense counsel continued:
Q. Did you need that information from him about what
happened that night [in Abilene] to be able to decide
whether or not he should be given leave at that time?
A. I asked him what issues had been raised, what he’d
been involved in, was there anything -- any negative
behavior that he’d been involved with that would
preclude him from going on leave, which is what I
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United States v. Cohen, No. 04-0606/AF
would need to know if I were going to talk to the
squadron commander or the group commander to assist
him in obtaining leave.
According to Lt Col Kluck, at this point Appellant described two
unrelated incidents of sexual misconduct with high school girls
in New York and Colorado and the events that had transpired in
Abilene.3 During further testimony on the motion to suppress, Lt
Col Kluck stated that he may not have needed all the information
elicited from Appellant to resolve the issue:
Q. All you needed to know in order to perform your duties
as an IG resolving a leave complaint was whether or
not he might be a witness in a proceeding where his
presence at Goodfellow would be required that might
interfere with him taking leave? That’s all you
needed to know, isn’t it?
A. Yes. Sure.
Q. To perform your duties. You didn’t have to know all
the facts or details of whatever it was he might have
witnessed in order to perform your duties?
A. Yes, it could be looked at that way.
Q. So, you could have resolved his complaint simply by
knowing that he might be a witness in a proceeding and
his presence might be required that would interfere
with leave, right?
A. True.
In support of the motion to suppress, the defense argued
that Lt Col Kluck was aware, at least by May 31, 2000, that
Appellant had been previously charged with rape. As a result,
defense counsel asserted, Lt Col Kluck was obligated to
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administer Article 31 warnings before asking Appellant any
questions related to the rape of Amn M. Absent such warnings,
Appellant’s incriminating statements to Lt Col Kluck were
inadmissible, defense counsel argued. The military judge
disagreed, made essential findings, and concluded that the IG
had “no criminal investigator or disciplinary duties.” In
addition, the military judge found, among other things, that the
accused stated that he was only a witness, that he took
photographs of the sexual acts, and that he helped clean the
alleged victim’s clothes.
On appeal, Appellant maintains that under United States v.
Duga, 10 M.J. 206 (C.M.A. 1981), warnings were required before
Lt Col Kluck questioned Appellant because the IG was acting in
his official capacity and should have reasonably suspected
Appellant of potential UCMJ violations, primarily because
Appellant had indicated on his intake form that he had been
charged with rape.
The Government responds that Article 31 warnings were not
required because even though Lt Col Kluck was acting in his
official capacity, he was not questioning Appellant for a law
enforcement or disciplinary reason. Furthermore, the Government
contends, even assuming Article 31 warnings were required,
Appellant suffered no prejudice from the admission of his
3
The members were not present during this aspect of Lt Col Kluck’s testimony.
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statements to Lt Col Kluck.
The Court of Criminal Appeals held that Article 31 warnings
were not required because the IG was not acting in a “law
enforcement or disciplinary capacity.” Cohen, 2003 CCA LEXIS
130, at *19, 2004 WL 1238960, at *7. The court also found that
there was “no basis to conclude that the IG made promises of
confidentiality such as would render the appellant’s statements
to him involuntary.” Id. Finally, the court concluded that
even if the military judge erred by admitting Appellant’s
statements, Appellant suffered no material prejudice because the
evidence was sufficiently strong to convict him, even without
the statements. Id. at *19-*20, 2004 WL 1238960, at *7.
Discussion
“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); United
States v. Ayala, 43 M.J. 296, 298 (C.A.A.F. 1995); see United
States v. Moses, 45 M.J. 132, 135 (C.A.A.F. 1996).
Article 31(b) states:
No person subject to this chapter may interrogate, or
request any statement from, an accused or a person
suspected of an offense without first 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
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United States v. Cohen, No. 04-0606/AF
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.
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.
As this Court first noted in United States v. Gibson, were
these textual predicates applied literally, Article 31(b) would
potentially have a comprehensive and unintended reach into all
aspects of military life and mission. 3 C.M.A. 746, 752, 14
C.M.R. 164, 170 (1954). As a result, this Court has interpreted
the second textual predicates -- interrogation and the taking of
“any” statement -- in context, and in a manner consistent with
Congress’ intent that the article protect the constitutional
right against self-incrimination. Id.; see also Duga, 10 M.J.
at 208-10; Swift, 53 M.J. at 445 (discussing congressional
intent with regard to Article 31).
To deal with the problem identified in Gibson, this Court
decided numerous cases that sought to clarify what it meant to
“interrogate, or request any statement from an accused or a
person suspected of an offense.” Article 31(b), UCMJ. From
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these cases, a number of factors become important for the
analysis, including the questioner’s status and the military
context in which the questioning occurs.
Where the questioner is performing a law enforcement or
disciplinary investigation, for example, and the person
questioned is suspected of an offense, then Article 31 warnings
are required. Swift, 53 M.J. at 446-47. Whether the questioner
should be considered to be performing such an investigation is
determined by “‘assessing all the facts and circumstances at the
time of the interview to determine whether the military
questioner was acting or could reasonably be considered to be
acting in an official law-enforcement or disciplinary
capacity.’” Id. at 446. (quoting United States v. Good, 32 M.J.
105, 108 (C.A.A.F. 2000)).
Conversely, where the questioner is not acting in a law
enforcement or disciplinary capacity, rights warnings are
generally not required, because “military persons not assigned
to investigate offenses, do not ordinarily interrogate nor do
they request statements from others accused or suspected of
crime.” United States v. Loukas, 29 M.J. 385, 388 (C.M.A. 1990)
(quoting United States v. Gibson, 3 C.M.A. at 752, 14 C.M.R. at
170 (1954))(emphasis added by Loukas). Similarly, where the
questioner is acting in an unofficial capacity and the person
questioned does not perceive the questioning as more than casual
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conversation warnings are not required. Duga, 10 M.J. at 210.
Such an informal exchange would not implicate the interrogation
or statement predicate of Article 31(b) or Congress’ concern
that, in the military context, junior enlisted personnel might
feel undue pressure to make incriminating statements.
This Court has also interpreted Article 31(b) in a manner
that recognizes the difference between questioning focused
solely on the accomplishment of an operational mission and
questioning to elicit information for use in disciplinary
proceedings. Where there is a mixed purpose behind the
questioning, the matter must be resolved on a case-by-case
basis, looking at the totality of the circumstances, including
whether the questioning was “designed to evade the accused’s
constitutional or codal rights.” United States v. Bradley, 51
M.J. 437, 441 (C.A.A.F. 1999). In Bradley, for example, this
Court held that rights warnings were not required where the
commander was acting in an official capacity in “seeking
information needed for the proper review of appellant’s security
clearance status,” but was not conducting a criminal
investigation. Id. Similarly, in Loukas, warnings were not
required where an aircraft crew chief’s questioning of a junior
member of the crew was not for the purposes of a law enforcement
or disciplinary investigation, but rather to fulfill his
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legitimate operational responsibility to provide for the safety
of his aircraft in flight. 29 M.J. at 387, 389.
At the same time, this Court has repeatedly cautioned that
as a general matter, “questioning by a military superior in the
chain of command ‘will normally be presumed to be for
disciplinary purposes.’” Swift, 53 M.J. at 446 (quoting Good,
32 M.J. at 108). Thus, in Swift, this Court held that the
Government failed to rebut the strong presumption that Swift’s
interrogation by a military superior in his immediate chain of
command was anything but a disciplinary investigation. 53 M.J.
at 448. Likewise, in Good, this Court found that an
investigator in the accused’s chain of command should have given
the accused his warnings upon their second meeting concerning
missing checks. 32 M.J. at 109.
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 (quoting Good, 32
M.J. at 108).
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Analysis
We agree with the parties that Lt Col Kluck was a “person
subject” to the UCMJ. Lt Col Kluck was a commissioned officer
serving on active duty as the Wing IG at Goodfellow AFB, Texas.
In this position, Lt Col Kluck was superior in grade to
Appellant, but he was not within Appellant’s chain of command.
The parties do not agree as to whether Lt Col Kluck was
engaged in a law enforcement or disciplinary function, and
therefore do not agree as to whether his questioning of
Appellant should be viewed as interrogation or the taking of
“any statement” for the purposes of Article 31(b). Further, the
parties disagree as to whether Lt Col Kluck should have
reasonably believed Appellant was suspected of an offense
arising out of the events in Abilene.
Lt Col Kluck’s Inquiry and Authority
The military judge found that Lt Col Kluck “had no criminal
investigator or disciplinary duties.” Further, the military
judge concluded:
The circumstances of this case easily overcome any
presumption that the questioning by a superior ranking
officer was for law enforcement or disciplinary purposes.
The IG did not know or believe that the accused was a
suspect in the alleged assault. He reasonably relied on
the information provided to him by the accused, by the
accused’s unit, and by Major Ecton. His conclusion was
reasonable under the facts and circumstances.
The lower court agreed, concluding:
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United States v. Cohen, No. 04-0606/AF
The Goodfellow AFB IG, to whom the appellant made the
incriminating statements, was not acting in a law
enforcement or disciplinary capacity, and he asked
questions “limited to that required to fulfill his
operational responsibilities.”
Cohen, 2003 CCA LEXIS 130, at *19, 2004 WL 1238960, at *7
(quoting Loukas, 29 M.J. at 389). The record indicates that
Appellant initiated the exchange with Lt Col Kluck. The record
also demonstrates that Lt Col Kluck treated his investigation
into Appellant’s complaints as an administrative inquiry, and
not as a criminal or disciplinary investigation. The denial of
leave and delay in security clearance processing may have
disciplinary roots, but they are not inherently criminal in
nature. Rather, on their face, they relate to military morale
and military mission and fall within Lt Col Kluck’s mandate to
investigate servicemember complaints administratively.
Moreover, Lt Col Kluck perceived his function in this light, as
evidenced by his treatment of Appellant as “a client” as well as
his refusal to testify against Appellant until ordered to do so.
However, Lt Col Kluck’s administrative focus in this case
does not ultimately answer the critical question as to whether
he was acting in an official law enforcement or disciplinary
capacity while also performing his administrative duties. See
Duga, 10 M.J. at 210. To answer that question we must consider
Lt Col Kluck’s authorities and responsibilities as specified in
Dep’t of the Air Force Instr., 90-301, Inspector General
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Complaints (Aug. 12, 1999)[hereinafter 1999 AFI 90-301],4 the
regulation in effect at the time.
Air Force Inspectors General derive their authority from 10
U.S.C. 8014, 8020 (2000), as delegated, and applicable
Department of the Air Force regulations. 2005 AFI 90-301; 1999
AFI 90-301. Installation IGs are responsible for implementing
the IG Complaints Program and the Fraud, Waste, and Abuse (FWA)
Program.
On the one hand, the responsibilities of the installation
IG, as defined at that time, were primarily administrative and
not disciplinary in nature. “The primary charge of the IG is to
sustain a credible Air Force IG system by ensuring the existence
of responsive complaint investigations, and FWA programs
characterized by objectivity, integrity, and impartiality.”
1999 AFI 90-301 para. 1.8.1. “IG investigations are
administrative in nature and they are fact finding rather than
judicial proceedings.” Id. at para. 2.32. Moreover,
complainants were generally offered confidentiality. “A
complaint to an IG, or a complaint worked in IG channels, is
confidential in nature and is privileged information.” Id. at
para. 1.37.1.1.5
4
Note that this regulation. has been superseded by Dep’t of the Air Force,
Instr. 90-301 Inspector General Complaints Resolution, (Feb. 8, 2005)
[hereinafter 2005 AFI 90-301].
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United States v. Cohen, No. 04-0606/AF
On the other hand, the installation IG also had law
enforcement and disciplinary responsibilities. For example, the
confidentiality promised to complainants was subject to an
express criminal exception: “EXCEPTION: IGs may turn over all
IG case materials to the AFOSI [Air Force Office of Special
Investigations] or SF [security forces] for criminal
investigations if warranted, or higher level IG for
investigation, as required.” Id. at para. 1.37.5.1.2.
Moreover, the general duties of the installation IG included the
analysis of complaints to determine “[w]hat law, regulation,
procedure, or policy was violated[.]” Id. at para. 2.13.1.3.
As set out in 1999 AFI 90-301: “If a complainant alleges fraud,
espionage, sabotage, treason, subversion, disloyal statements,
disaffection, or other criminal offenses, IGs will immediately
consult with the SJA and AFOSI office to determine whether the
allegations should be referred to AFOSI channels for appropriate
action, or stay within the IG complaint system.” Id. at para.
2.4.3.
5
It was on this basis that Lt Col Kluck initially declined to testify at
Appellant’s trial; however, he was eventually ordered to do so by the
Inspector General of the Air Force. The record reflects that Lt Col Kluck
acted in good faith in his dealings with Appellant and was motivated by a
desire to protect the IG complaint mechanism. During the Article 39(a) UCMJ,
10 U.S.C. § 839(a) (2000), session on the suppression motion, Lt Col Kluck
testified as follows:
I somewhat take gross offense to the whole process –- the whole issue
of having an IG testify against a client that comes in to talk with
him, . . . . there’s a privileged issue here. And, the IG, in this
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Further, the instruction contemplates the possibility that
IG investigations could transition into law enforcement or
disciplinary investigations. Thus, among other things, the
instruction provides the following:
[Investigating officers are required to c]onsult in advance
with the SJA about the need for and substance of Article 31
rights advisement.
[MAJCOM, FOA and DRU IGs shall r]efer criminal allegations
to AFOSI [Air Force Office of Special Investigations] or
Security Forces (SF), as appropriate. If they decide not to
investigate a criminal matter, obtain a documented transfer
back to the IG and complete the appropriate category of
investigation.
Witnesses who are military members . . . may refuse to
testify only if they believe they might incriminate
themselves.
Id. at paras. 2.34.6, 1.12.3, 2.36.5.
Based on the foregoing, we conclude that the military
judge’s finding that Lt Col Kluck “had no criminal investigator
or disciplinary duties” was clearly erroneous. Although Lt Col
Kluck’s responsibilities were primarily administrative, they
were not exclusively so. Among other things, as the Wing IG, he
was responsible for investigating wrongdoing, and reporting
criminal violations to AFOSI. Significantly, the
confidentiality he could offer to complainants did not extend to
criminal conduct.
particular case, the Secretary of the Air Force IG, elected to waive
that . . . . And, it, to me, is very very detrimental to the IG system.
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United States v. Cohen, No. 04-0606/AF
The installation IG’s disciplinary responsibility is
further evidenced in the instruction’s provision regarding
rights advisement. Thus, if an IG, acting as an investigating
officer (IO) on a complaint, “discovers information leading them
[sic] to believe matters of a criminal nature have occurred and
a witness or subject becomes a suspect, the IO must stop the
interview, immediately consult with the Appointing Authority and
the legal advisor, and (if allowed to proceed), advise the
suspects of their rights.” 1999 AFI 90-301 para. 2.39.6 That Lt
Col Kluck was aware of this requirement is evidenced by his
testimony at trial that the interview “would have changed a bit”
had Appellant admitted to participating in the nonconsensual
sexual actions committed against Amn M.
In sum, not only did the military judge err when he found
that Lt Col Kluck did not have law enforcement or disciplinary
authority, but he also erred in his finding that Lt Col Kluck
did not act in a way that implicated this authority when
Appellant disclosed the events in Abilene in response to Lt
Col’s Kluck’s questions.
Having concluded that Lt Col Kluck had disciplinary
responsibility and that it was implicated in this case, we must
now consider whether he should have reasonably suspected
6
For active duty military personnel, this translates into a requirement to
“advise them of their rights as specified under Article 31, UCMJ.” 1999 AFI
90-301 para. 2.39.1.
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Appellant of an offense at the outset of his inquiry, or whether
there came a point during his inquiry when he should have
suspected Appellant of an offense. If so, we must then
determine whether, in context, a rights advisement was required.
Appellant’s Status
Appellant argues that Lt Col Kluck should have considered
him a suspect for the purposes of Article 31(b) at the outset of
their meeting on May 31, 2000, based upon Appellant’s complaint
registration form. On it, Appellant wrote, “Legal charged me
with Article 132? Rape . . . . The charge were [sic] dropped
to future notice(?)” The Government responds that Lt Col Kluck
took proper account of this statement by asking Appellant
whether he was still subject to charges, to which Appellant
responded that he was only a witness. The Government further
argues that Lt Col Kluck reasonably relied on Appellant’s
response that he was no longer a suspect, only a witness.
Whether Lt Col Kluck was required, as a matter of law, to
advise Appellant of his rights at the outset of the May 31
meeting is a close question. The following facts would support
the contention that Lt Col Kluck was not required to do so.
First, the IG’s meeting with Appellant was conducted in the
context of the IG Complaints Resolution program. See generally
1999 AFI 90-301. As a result, Lt Col Kluck’s meetings with
Appellant were not designed or intended to serve as a mechanism
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United States v. Cohen, No. 04-0606/AF
to elicit statements of criminal culpability. Second, Lt Col
Kluck interviewed Appellant about his clearance complaint in
February without mentioning the incident earlier that month in
Abilene and without the necessity of rights warnings. Thus, as
far as Lt Col Kluck was concerned, at least half of Appellant’s
problem (security clearance) predated the incident in Abilene
and could be addressed without implicating Article 31. Finally,
Appellant advised the IG that he was only a potential witness
involving the incident in Abilene. Lt Col Kluck did not have
independent basis to conclude otherwise at the outset of the May
31 meeting. For these reasons, it was arguably reasonable for
Lt Col Kluck to proceed with his inquiry into the clearance and
leave complaints without first providing Appellant with an
Article 31 rights advisement. Such inquiry would not
necessarily have implicated the allegation of rape for which
Appellant had been a suspect. Lt Col Kluck was arguably
entitled, at least at the outset, to make such inquiry as he did
of the Appellant to clarify his status as a witness and not a
suspect. On the other hand, Appellant indicated on his form
that he was charged with rape and that the charge might still be
reinstated. Furthermore, Lt Col Kluck was aware that, since the
last time they spoke, before there was any mention of Abilene,
Appellant’s request for leave had been denied. These two facts
together are arguably enough to conclude that Lt Col Kluck
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United States v. Cohen, No. 04-0606/AF
should have reasonably suspected Appellant of an offense, namely
rape, when Appellant came to see him on May 31.
However, we need not resolve whether Appellant was entitled
to a rights advisement at the outset of his May 31 meeting with
Lt Col Kluck. For the reasons stated below, Appellant was
clearly entitled to a rights warning at a later point in the
conversation. Furthermore, up until that later point, Appellant
had not made any admissions.
The complaint statement and Lt Col Kluck’s subsequent
conversations with the Deputy SJA should have placed him on
notice that his discussions with Appellant might later trigger
those sections of the IG instruction requiring rights warnings,
AFOSI reporting, and potential waiver of complaint
confidentiality. In this light, at the point during the May 31
interview between Lt Col Kluck and Appellant when the latter
described his role in taking pictures of the incident in
Abilene, rights warnings were required. At this point, Lt Col
Kluck should have reasonably suspected Appellant of the offense
of indecent acts, if not complicity in the rape itself. Under
military case law, photographing or filming sexual acts is an
offense punishable under Article 134 of the UCMJ. See, e.g.,
United States v. Lujan, 59 M.J. 23 (C.A.A.F. 2003) (noting
appellant’s guilty plea to committing an indecent act where he
participated in videotaping the performance of numerous sexual
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United States v. Cohen, No. 04-0606/AF
acts with a heavily intoxicated female soldier); United States
v. Daye, 37 M.J. 714, 717-18 (A.F.C.M.R. 1993) (upholding
appellant’s conviction under Article 134 for surreptitiously
videotaping himself engaged in consensual adulterous activity
with another female solider); see also United States v.
Izquierdo, 51 M.J. 421, 422-23 (C.A.A.F. 1999) (discussing the
use of Article 134 to punish public sexual activity); United
States v. Whitcomb, 34 M.J. 984, 987-88 (C.M.R. 1992) (upholding
appellant’s conviction under Article 134 for taking suggestive
pictures of teenage girls). It was these indecent acts with
which Appellant was ultimately charged. Further, Lt Col Kluck’s
testimony revealed that he was aware, at the time of the
interview with Appellant, that the acts committed upon Amn M
were not consensual.
In sum, although Lt Col Kluck was acting in furtherance of
his administrative duties when he interviewed Appellant, his
inquiry went beyond what was required to fulfill those duties.
Moreover, during his inquiry Lt Col Kluck came under the purview
of Article 31 by requesting statements from Appellant in a way
that implicated the criminal investigative authority bestowed
upon him by the applicable Air Force Instruction.
Conclusion
We conclude that in accordance with Article 31(b), the
applicable Air Force Instruction, and this Court’s case law, Lt
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United States v. Cohen, No. 04-0606/AF
Col Kluck had disciplinary responsibility that was implicated
when Appellant described the incident in Abilene and he should
reasonably have suspected Appellant of the offense of indecent
acts at the point in the inquiry where Appellant disclosed his
direct involvement in the incident in Abilene. Article 31
warnings were required when Appellant admitted to taking the
photographs. As a result, the military judge erred in not
suppressing any incriminating statements made after that point.7
Prejudice
The question that remains is whether the military judge’s
error in admitting any unwarned statements made to Lt Col Kluck
prejudiced Appellant in this case. See United States v. Kerr,
51 M.J. 401, 405 (C.A.A.F. 1999). We conclude that it did not.
The prosecution presented the testimony of the other
eyewitnesses to the events in the hotel room. These witnesses
placed Appellant in the hotel room in Abilene. Most
significantly, the prosecution presented the photographs taken
by Appellant during the incident in Abilene. Moreover, although
Appellant’s statement that afterwards he helped clean Amn M’s
clothing was considered by the members on the rape
specification, he was ultimately acquitted of the rape. As for
his admissions to Lt Col Kluck regarding the taking of the
7
Because we decide that Appellant was entitled to a warning under the rubric
of Article 31(b), we do not address any additional arguments for such a
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photographs, Appellant pleaded guilty to the indecent act of
photographing the other airman’s rape of Amn M. Finally, none
of what Appellant told Lt Col Kluck implicated Appellant in the
indecent act he was convicted of committing against Amn M.
DECISION
For the reasons stated above, the decision of the United
States Air Force Court of Criminal Appeals is affirmed.
warning under Article 31(d), UCMJ.
25