Wednesday, December 03, 2008

ACCA publishes troubling Article 31 opinion

Sometime over the past few days while I wasn't looking, ACCA loaded a published Article 31 decision onto its web site. United States v. Redd, __ M.J. ___, No. ARMY 20051123 (A. Ct. Crim. App. Nov. 26, 2008). Trying to slip this unpersuasive opinion past military justice practitioners while they're semi-comatose from tryptophan overload would have been a far better idea than publishing it.

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.


Anonymous said...

It's only "troubling" if you believe that the constitution is a suicide pact, whch it is not. See Kennedy v. Mendoza, 372 US 144. You don't assert in your post, unless I missed it, that the soldier was innocent.

Anonymous said...

I'm not sure what the heck Anon 9:34 is talking about.

This may expose some ignorance on my part, and I confess I know nothing of the case, but here goes. The post says the ACCA opinion indicates that "PFC Redd unexpectedly made statements indicating he possessed child pornography." So, it doesn't sound like they had to initially put him on notice as he spontaneously offered the information on child pornography. Thus, unless he is one of the 2 people in America who doesn't know child porn is illegal, and the reason we require the substance of the accusation is to provide notice to the accused, wasn't he really on notice that he committed a crime because he was the one who started talking about it?

Dwight Sullivan said...

Greetings from Casa CAAFlog, where I'm spending the morning of a vacation day before heading to Charm City this afternoon.

1005 Anon -- you raise a good point that I should have made clear in my initial post. PFC Redd's initial statement about child pornography is admissible because it wasn't the result of interrogation about child pornography. It's the responses to the additional questions that don't come in because he wasn't put on notice that he would be interrogated about them and, therefore, never waived his Article 31 right to remain silent as to information concerning that offense.

0934 Anon, who ARE you? Please tell me you're not a lawyer. Article 31 is a congressionally passed statute. It includes a statutory exclusionary rule. Article 31(d). In passing that statute, Congress was carrying out its constitutional authority to make rules and regulations for the land and naval forces. Whatever one thinks about Miranda specifically or judicially created interrogation exclusionary rules generally, there is no question as to Article 31's legitimacy. It's the law and the military justice system is obligated to comply with it. If you don't like its implications, then suggest to your members of Congress that they change it. But it's entirely illegitimate to suggest, "Gee, this guy was factually guilty, so we should ignore the law."

Dwight Sullivan said...

0934 Anon, I looked up your "suicide pact" quote. Here it is with its surrounding language: "The powers of Congress to require military service for the common defense are broad and far-reaching, for while the Constitution protects against invasions of individual rights, it is not a suicide pact." Kennedy v. Mendoza-Martinez, 372 U.S. 144, 157-60 (1963) (footnote omitted). So you quote an opinion emphasizing Congress's constitutional powers "To raise and support Armies" and "To provide and maintain a Navy," as provided by Article I, Section 8, Clauses 12 and 13, to justify ignoring an exercise of Congress's authority "To make Rules for the Government and Regulation of the land and naval Forces," as provided by the Constitution's very next Clause.

Anonymous said...

Here's the obvious defect in the logic:

1) if we suppress child pornography (or inculpatory statement related to it) then we may have to let pedophiles go free.

2) this is a good thing because we can all be happy that his rights were preserved.

3) If this results in further child molestations we think that is unfortunate, but for the greater good.

See why people hate defense lawyers?

Dwight Sullivan said...

1138 Anon, are you 0934 Anon?

Are you arguing that judges should disregard constitutional federal statutes where their application would lead to a result that the judge doesn't like? Are you arguing that its illegitimate to criticize a judicial opinion's application of a federal statute if the statute's correct application would lead to a result that we don't like.

Note also that your "logic" problem contains "premises" that aren't applicable here. You talk about letting pedophiles go free. The court-martial that convicted PFC Redd sentenced him to confinement for 90 days, which he probably served in 2005. PFC Redd is already free (unless he's imprisoned in Maryland for stautory rape for the 16-year-old). Even if ACCA had held some of his statements inadmissible, it would not have resulted in him going free.

You also refer to "further child molestations." Having sex with a 16-year-old girl is bad, criminal, and undesirable. I'm not defending it. But I wouldn't call it "child molestation."

I'm going to be offline most of the rest of the day. So if 0934 posts a retort, would someone please respond to it for me?

Anonymous said...

Anon 11:38, your final thought should have read: See why we hate inexperienced, untrained, and occasionally unethical criminal investigators.

Anonymous said...

My bet is that CAAF affirms, but for a different reason -- namely harmless error (I'm still thinking through this one). ACCA is doing the old "CCA rubber stamp" job. Which further emphasizes the need (in my opinion) for CAAF to become an Article III court, and the CCA's to be composed of civilian judges appointed for 15 year terms. If he admitted to child porn, and a search ensued, revealing the kiddie porn, seems to me that you are arguably talking about inevitable discovery at that point.

Anonymous said...

Anon 0934: So if the police go door to door searching homes and happen to find one guy who is collecting child pornography we should allow that evidence to come into evidence because it protects "the greater good?"

John O'Connor said...

So Dwight, I'm unclear, are you in favor of ACCA's decision, or against it?

Anonymous said...

Perhaps it is time to re-visit the appropriateness of the exclusionary rule. It is an extreme remedy for a procedural violation, and it can lead to unjust results. And it doesn't lead to innocent people being convicted; it deters (sometimes) police misconduct but there are other ways to do that.

Anonymous said...

Ooops. I meant abandoning the exclusionary rule would not lead to innocent people being convicted. It would lead to more guilty people being convicted without risk to the innocent. I mistyped my thought.

Anonymous said...

ANON 1415 -- what other silly little rules do you suggest the courts abandon?

Anonymous said...

Hey- if we are on the subject, I say we get rid of the whole Sixth Amend right to Counsel stuff and also allow coerced confessions. That will get more of those guilty folks behind bars- maybe a few innicent ones too, but hey, no system is perfect, right?

Anonymous said...

I don't read this blog often, but I do find it imformative it when I have time. (I do read the SCOTUS blog every day.) It seems to me that the debates here often devolve into some version of "you shouldn't be a lawyer if you disagree with me." This is unfortunate, given that most of the comments (with exceptions) are thoughtful.

Anonymous said...

ANON 1848 --

Thank you for the thoughtful comment.

I tend to agree the discussion tends to devolve at times . . . but that's the nature of blogging.

Anonymous said...

Its probably just as well that the a thread devolves because the end product tends to expose what are the baser thoughts and feelings that lie behind even the most sophisticated expressions.

But I do not agree that these debates always end with the "you don't deserve to be a lawyer" retort to somebody who states an unpopular position. Reasonable people can differ - and differ sharply.

The only stereotypical position that gets ridiculed on CAAFlog is the crude idea, variously propounded: "He is factually guilty, so who cares about legal technicalities." That position should be roundly ridiculed on a LEGAL blog. Stated again: A LEGAL blog. If this were talk-radio, that kind of opinion would be part of the fare. But the anonymous hecklers who keep lobbing these "guilty" grenades into a legal discussion just interrupt a good learning experience.

And Anon at 11:38 - what scientific evidence do you have that a viewer of child porn = a pedophile or that child porn = child molestation. I have an open mind on these topics; these conclusions may be true - or may not be. But you are probably basing it on anecdotes, which there are plenty. But your "logical" syllogism conceals many hidden premises. Again, not a good methodology for lawyering.

Disclaimer: I take the extreme and socially unpopular view that the social costs in lost privacy due to banning the possession of child porn outweighs the protections it supposedly affords to children. For example, I think that mass terrorism is worse than child pornography, but would not seek to ban its discussion or images of it. This would involve a lengthy debate - and I don't come to this conclusion lightly. And most importantly, I deeply respect those who weigh things differently.

Dwight Sullivan said...

1232 Anon, you make an important point. Because PFC Redd's initial statement about child pornography was admissible, the child pornography images found on the computer may fall within the inevitable discovery doctrine, particularly after CAAF's expansive interpretation of that doctrine in United States v. Wallace, 66 M.J. 5 (C.A.A.F. 2008). But even if the result doesn't change, CAAF should still grant review to examine ACCA's troubling opinion, particularly since that opinion was published. It shouldn't be allowed to influence the development of the law and a big red stop sign on LEXIS would be helpful in preventing it from doing so.

Anonymous said...


I appreciate you comment regarding the statements. Specifically that after he spontaneously blurted out “I have child porn” that it was the subsequent answers to following questions that were at issue, not the original statement. I generally agree that ACCA mangled the tests, but think they may have reached the right conclusion. You noted that since they didn’t warn him as to that specific offense, he didn’t waive the rights as to that specific offense and therefore those should have been inadmissible. Once again this may expose my ignorance, but I cannot fathom why Redd would blurt out “I have child porn” if he didn’t previously know it was criminal. That part of 31(b) is to provide the proper notice of they crimes the accused is suspected and see if he wants to waive his rights to talk about those offenses. In this case, the Govt apparently knew nothing as to the child porn, Redd knows its wrong (was apparently paying attention in boot camp and believed it when the drills sergeants told them that it is better to admit your wrongdoing then have the Govt find out about it later), and he says, in essence, I have committed a federal offense. I would have said that the rationale for that part of 31(b) is fully met on these facts and there is no need to interrupt the interrogation to “pen and ink” the 31(b) rights advisements sheet. His conduct demonstrates that he was aware of the nature of the charge and he affirmatively waived talking about it by bringing it up. IOf course I would be hesitant to create some “constructive waiver” doctrine here so it should be an opinion that is fact-dependant and case specific.

Factually my mind conjures up the scene where advising him would have made a difference:

Redd: Hey, just to come clean on everything, I have a bunch of child porn on my personal computer and I smoke weed every other day (I just added that for fun).
Cop: Well son, we must now advise you that you are suspected of the offenses of possessing child pornography and wrongful use of controlled substances and ask you whether you would like to talk to us about them.
Redd: What? I didn’t know they were crimes. I just thought you might want to know stuff that I thought reflected poorly on my moral fiber, but I didn’t think they were crimes. In that case, no, I do not want to talk about those.

Anonymous said...

With every passing day, Article 31 becomes a less and less meaningful right to a military accused. You can alsways trust the military service courts to find a reason that it was OK for the investigators/cops not to provide proper Article 31 warnings.

I tend to agree that it just about time to take the unifrms out of the appellate process in military justice. Military appellate judges are spring-loaded to the support the cops/Government point of view and, unfortunately, senior military officers assigned to the appellate courts tend to be fairly homogeneous in their conservative "rah-rah Government is always right" views. Military Justice would benefit from a real infusuion if thoughtful practitioners who have a sense of independence from the judge advocate general and who must worry if their next assignment might be ASJA of USS Rustbucket.

I never cease to be disappointed by military justice. Thankfully, military juries still can be persuaded and with a dose of reasonable doubt, we can avoid the appellate process.