Here's the essence of the opinion:
[W]e find appellant's rights under Article 31, UCMJ . . . were triggered when appellant was interviewed at the same time and location by a special agent of the U.S. Army Criminal Investigation Command (CID) and a civilian police detective investigating an offense that violated both state and military law. However, we hold the notification of rights provided by the civilian detective under Miranda v. Arizona, 384 U.S. 436 (1966), coupled with notice of the allegation against him, satisfied the notice of appellant’s rights required by Article 31 and Military Rule of Evidence . . . 305.Id., slip op. at 3.
While parts of the opinion are sound, its conclusion that PFC Redd was adequately put on notice that he was suspected of possessing child pornography is legally and logically flawed.
Contrary to the military judge's conclusion, ACCA held that Article 31 warnings were required because of a merger of investigations by the Laurel, Maryland Police Department and Army CID into allegations that PFC Redd had had sex with a 16-year-old. The Laurel police detective who interrogated PFC Redd with an Army CID agent present gave Redd Miranda warnings. But while Miranda famously cited Article 31 in the course of adopting its rights warning requirement, Article 31 requires something that Miranda doesn't: Article 31(b) requires the interrogator to advise the suspect of "the accusation." The military judge found that "Detective Sims informed the accused that they wanted to speak to him regarding instances of sexual misconduct with an underage female." Id., slip op. at 15. After admitting to having sexual intercourse with a minor three times, PFC Redd unexpectedly made statements indicating he possessed child pornography. Id., slip op. at 4. The law enforcement agents proceeded to question him about child pornography possession without telling him that he was now suspected of an additional offense, with the CID agent taking "control of part of the ensuing questioning." Id., slip op. at 5.
The military judge ruled that the law enforcement agents didn't have to comply with Article 31 but that they did anyway. The military judge expressly ruled that "the initial advisement, that is that the accused was being questioned related to sexual misconduct with an underage female, was sufficient. Special Agent Silvas was not required to re-advise the accused when he made his child pornography statements, because child pornography falls within the penumbra of misconduct with a minor." Id., slip op. at 6. Anytime I read the word "penumbra" in a judicial opinion, I presume that whatever follows it has no actual basis in law or fact. This case doesn't rebut that presumption.
While ACCA disagreed with the military judge and concluded that Article 31 did apply, ACCA went along with the judge's conclusion that telling someone he is suspected of "instances of sexual misconduct with an underage female" puts him on notice that he's suspected of possessing child pornography. ACCA applied a non-exhaustive three-part test to determine whether PFC Redd had been given adequate notice regarding possession of child pornography: (1) "whether the conduct is part of a continuous sequence of events"; (2) "whether the conduct was within the frame of reference supplied by the warnings"; and (3) whether the interrogator had previous knowledge of the unwarned offenses. Id., slip op. at 11 (quoting United States v. Simpson, 54 M.J. 281, 284 (C.A.A.F. 2000)).
ACCA then proceeds to badly mangle the first of those prongs. In Simpson, immediately after setting out the "continuous sequence of events" factor, CAAF cited the Air Force Court's opinion in United States v. Willeford, 5 M.J. 634 (A.F.C.M.R. 1978). Airman Basic Willeford was charged with unlawfully entering a female Airman's room and then raping her. During the rights advisement, he was told he was suspected of rape. He wasn't separately warned that he was suspected of unlawful entry and an indecent act with the same victim that immediately preceded the rape. AFCMR ruled, correctly in my view, that the rights warning as to rape was sufficient to cover his act of unlawfully entering the victim's room to commit the rape and the immediately preceding indecent act. AFCMR reasoned: "The totality of information furnished the accused by the agents shows a continuous sequence of events that was sufficient to allow him to focus on the nature of the offenses of unlawful entry and indecent acts with another, which in this case were closely related to the offense of rape. Therefore, the requirement that he be advised of the nature of the offenses of unlawful entry and indecent acts was fully met." Id. at 636.
Now look how ACCA misuses this test. First, ACCA focuses on whether the interrogation was continuous rather than whether the suspected acts of misconduct were continuous: "there was no interruption between the original rights warning, the interview during which appellant spontaneously announced he possessed child pornography, and the continued questioning on that offense." Redd, No. ARMY 20051123, slip op. at 12. But surely that doesn't even suggest that PFC Redd was adequately oriented to possible questioning about child pornography possession when the detective told him that the law enforcement agents "wanted to speak to him regarding instances of sexual misconduct with an underage female." ACCA then added, more relevantly but no more persuasively, that "the allegation of sexual misconduct involving a child occurred during the same period of time that appellant was illegally downloading child pornography. Therefore, the conduct being investigated, as well as the questioning process, was 'continuous in nature.'" Id. So, to take a very realistic example, if a soldier is suspected of committing a murder in a bar where the servicemember was engaged in underaged drinking, this factor wouldn't be offended if CID were to warn him only that he's suspected of underaged drinking and try to get him to confess to a capital offense because the events "occurred during the same period of time"? Or, to take another realistic example, if a soldier is suspected of being AWOL for a month and is suspected of having committed a rape during that month, CID agents can tell him they want to talk to him about the AWOL and then proceed to interrogate him about the suspected rape without offending this factor because the suspected rape occurred while he was AWOL?
ACCA does no better with the next prong. ACCA simply states, without providing any supporting analysis (unless parenthetical synopses following case cites counts as analysis): "Second, the original allegation of use of a computer to commit child sex offenses through the use of internet chat was sufficiently related to the allegation of possession of downloaded child pornography as to orient appellant to the nature of the offense." Id., slip op. at 12. This would seem questionable enough even if it were true. But the "original allegation" wasn't that PFC Redd used Internet chat rooms to commit sexual offenses. According to ACCA's opinion, PFC Redd's statement "admitted meeting the minor [MG] in an internet chat room." Id., slip op. at 4. But nothing in the opinion or the military judge's findings of fact suggests he was advised that he was suspected of using a chat room to meet the victim; rather, according to ACCA itself, "Detective Sims advised appellant of his Miranda rights for sexual intercourse with a minor." Id. (emphasis added). And advising someone that he is suspected of sexual intercourse with a minor doesn't put that person on notice that he is also suspected of possessing child pornography -- which, when the interrogation began, he wasn't (hence leading to ACCA's solid conclusion that the third non-exhaustive Simpson factor "weighs in favor of our finding appellant's Article 31 rights were satisfied," id., slip op. at 12).
CAAF should certainly review this troubling opinion. And, as we've recently discussed, CAAF certainly seems to have sufficient openings on its docket to do so.