As he did in panel, Judge Kantor wrote the majority opinion. Judge Tucher again joined Judge Kantor, reinforced this time by Judge Lodge.
Here is the majority's description of the crucial facts of the case. Mind you, this is the description offered by the judges who didn't think that the agents were reinitiating:
At approximately 2154, Special Agents Mullinax and Head entered the small room where Appellant was being held. They were aware that Appellant had been advised of his Article 31 rights and that he had requested a lawyer. As a result, they did not direct any questions to Appellant, but the two agents engaged in idle conversation about the case. Special Agent Mullinax testified that he hoped this conversation would result in SN Bonilla reinitiating discussions about the case."Bonilla, slip op. at 5 (emphasis added).
And, gee, what do you know? It worked. "Within five minutes, Appellant asked one of the agents, 'Sir, can I ask what this is about?' The agents replied that they could not speak with Appellant unless they read him his rights and he was willing to waive his rights. Appellant agreed to do so." Id.
The majority framed the key issue as "whether Appellant initiated further communication or the actions of the special agents amounted to an unlawful interrogation, or the functional equivalent thereof, prior to Appellant asking his questions about why he was being detained." Id., slip op. at 6.
The majority characterized the CGIS agents' conduct as "borderline." Id., slip op. at 7. Nevertheless, relying on Oregon v. Bradshaw, 462 U.S. 1039 (1983) -- a case that did not feature law enforcement agents carrying out a set-piece conversation for five minutes in a tiny room in front of a handcuffed suspect who had invoked -- the majority held "that Appellant initiated communication with the special agents." Bonilla, slip op. at 6.
The majority downplayed the agents' admitted subjective intent to get Seaman Bonilla to talk despite having invoked. Quoting Rhode Island v. Innis, 446 U.S. 291, 301 (1980), the majority observed, "Determing whether words or actions are reasonably likely to elicit an incriminating response turns on 'the perceptions of the suspect, rather than the intent of the police.'" Bonilla, slip op. at 7. But knowing the speaker's intent can be helpful in figuring out the reasonably likely effect of the speaker's words. (Okay, that might conflict with my normal position on use of legislative history in construing statutes.) The CGIS agents were trying to make Seaman Bonilla speak. They engaged in a five-minute conversation about the case to try to get him to do so. Then Bonilla did, in fact, speak. Call me crazy, but that seems quite probative in determining whether their words were reasonably likely to elicit an incriminating response.
In dissent, Chief Judge McClelland reprised her position that the "agents' actions cannot be said to be likely to elicit an incriminating response, even if that was their ultimate intended (hoped-for) purpose." Id., slip op. at 10 (McClelland, C.J., concurring in part/dissenting in part). She nevertheless would suppress Seaman Bonilla's statements because when Bonilla was initially advised of his Article 31 rights, he wasn't told the offense of which he was suspected and because R.C.M. 304(e) requires that when a servicemember is placed under restraint, the servicemember "shall be informed of the nature of the offense which is the basis for such restraint." Seaman Bonilla's statements should be suppressed, Chief Judge McClelland reasoned, because his reinitiation was the result of the violation of those notice requirements.
Finally in dissent, the cavalry of Judges Felicetti and Pepper rides over the hill, presenting a compelling argument that Seaman Bonilla's statements were inadmissible because the CGIS agents impermissibly reinitiated interrogation with their five-minute one-act play. They reason:
[Appellant] remained handcuffed with a restraining belt in a small room for several hours after invoking his counsel rights. At 2159, two agents crowded into the small room with Appellant and one to three uniformed officers. The reason for this close contact was the agents' hope that Appellant would reinitiate discussions about the case. They proceeded, therefore, to talk to each other, including some idle conversation about the case, and tried to avoid looking at Appellant despite the awkwardly close quarters. Based on this record, these actions clearly appear to be part of a subtle interrogation plan.Id., slip op. at 13 (Felicetti, concurring in part/dissenting in part).
I agree except for the word "subtle."
An evenly divided en banc opinion would seem to be an outstanding candidate for JAG certification. Will the Judge Advocate General of the Coast Guard certify the Edwards issue to CAAF? If not, will CAAF grant review to decide whether to drop the curtain on the five-minute one act play as an interrogation ploy?