                              IN THE CASE OF

                         UNITED STATES, Appellee

                                      v.

                        Chad D. BENNER, Sergeant
                          U.S. Army, Appellant

                                No. 01-0827


                         Crim. App. No. 9801777


       United States Court of Appeals for the Armed Forces

                          Argued April 4, 2002

                         Decided August 29, 2002

 COX, S.J., delivered the opinion of the Court, in which GIERKE,
    EFFRON, and BAKER, JJ., joined. CRAWFORD, C.J., filed a
                       dissenting opinion.

                                   Counsel


For Appellant: Frank J. Spinner (argued); Colonel Adele H.
    Odegard and Major Imogene M. Jamison (on brief).


For Appellee: Captain Karen J. Borgerding (argued); Colonel
    Steven T. Salata and Major Margaret B. Baines (on brief).


Military Judge:    Peter E. Brownback III


   THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Benner, 01-0827/AR


       Senior Judge COX delivered the opinion of the Court.

       Appellant was convicted, pursuant to his conditional guilty

pleas, of sodomy with a child and indecent acts, in violation of

Articles 125 and 134, Uniform Code of Military Justice (UCMJ),

10 USC §§ 925 and 934, respectively.1    The Court of Criminal

Appeals affirmed.    55 MJ 621 (2001).

       Prior to entering his pleas, appellant moved to suppress a

confession given to special agents of the U.S. Army Criminal

Investigation Command (CID).2    The issue in this appeal is

whether this confession was voluntary.3    We hold that it was not


1
  Appellant was sentenced to reduction to Private E-1, forfeiture
of all pay and allowances, six years’ confinement, and a
dishonorable discharge. The convening authority reduced the
sentence to confinement to five years, deferred the adjudged
forfeitures, and waived the automatic forfeitures for the
benefit of appellant’s stepdaughter, in accordance with Article
58b, UCMJ, 10 USC § 858b.
2
  Appellant entered his plea conditionally, as provided in RCM
910(a)(2), Manual for Courts-Martial, United States (2000 ed.).
All cited provisions of the Manual are unchanged from those in
effect at the time of trial.
3
    We granted review of the following issue:

        WHETHER THE MILITARY JUDGE COMMITTED PREJUDICIAL
        ERROR WHEN HE DENIED APPELLANT’S MOTION TO
        SUPPRESS APPELLANT’S INVOLUNTARY CONFESSION THAT
        WAS GIVEN AFTER A CHAPLAIN IN WHOM APPELLANT
        CONFIDED UNDER MIL.R.EVID. 503 TOLD APPELLANT
        THAT IF HE DID NOT CONFESS TO LAW ENFORCEMENT
        AGENTS, THE CHAPLAIN WOULD DISCLOSE APPELLANT’S
        PRIVILEGED COMMUNICATIONS TO THOSE SAME AGENTS.

Argument was heard in this case at the Carey Theater, Fort
Lewis, Washington, as part of this Court’s Project Outreach.
See United States v. Allen, 34 MJ 228, 229 n.1 (CMA 1992).

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United States v. Benner, 01-0827/AR


voluntary, and we reverse the decision of the Court of Criminal

Appeals.

                                FACTS

     The facts of this case are unique and are set forth in full

in the opinion of the Army Court of Criminal Appeals.    55 MJ at

622-23.    For purposes of this appeal, we can summarize the facts

as follows.   In May of 1998, appellant engaged in an episode of

indecent acts and sodomy upon his four-year-old stepdaughter

while his wife was in the hospital in Germany.   In June, the

child first reported the acts to her grandmother, and then to

her mother after she returned from the hospital.   Appellant’s

wife confronted appellant, and he admitted the acts to her.     No

complaint was made to the military police or through command

channels.   Rather, in August, the grandmother removed the child

from Germany to her home in the United States.   Also,

appellant’s wife left him and returned to the states.

     After the passage of some time and with the urging of his

wife and mother-in-law, appellant decided to seek counseling

from Chaplain (Captain) S.   On September 20, 1998, at their

first meeting, appellant was very emotional and confessed to the

chaplain that he had engaged in an inappropriate relationship

with his stepdaughter.   At the conclusion of the meeting, the

chaplain advised appellant that he might have to report the

child abuse to the proper authority.



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United States v. Benner, 01-0827/AR


     The following morning, the chaplain contacted the Army

Family Advocacy office and was advised that he was required to

report the child abuse.    The chaplain related this to appellant.

Appellant then confessed even more details about his conduct to

the chaplain.

     The chaplain told appellant it would be better for him to

confess to the authorities on his own accord, and offered to go

with him to the military police station.    They discussed “the

issue of forgiveness, of forgiving himself, [and] that

[confessing] may be a step in helping him deal with that.”

Initially appellant was reluctant to go to the military police

station.   Chaplain S testified that, if he had not volunteered

to go with appellant, he doubted that appellant would have made

the report himself.

     The chaplain escorted appellant to the Military Police (MP)

station and told Sergeant First Class (SFC) K, the commander of

the MP station, that appellant was at the MP station to make a

statement regarding his “improper relationship with his

stepdaughter.”    SFC K called CID, and about an hour later, two

agents arrived.    The CID agents warned appellant of his rights

under the 5th Amendment, Article 31(b), UCMJ, 10 USC § 831(b),

and Mil.R.Evid. 305(d), Manual for Courts-Martial, United States

(2000 ed.).   The agents did not give a “cleansing” warning

regarding appellant’s earlier confession to the chaplain.



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United States v. Benner, 01-0827/AR


Appellant agreed to waive his rights and eventually gave a

detailed, six-page, handwritten confession to CID.

                              THE LAW

     When reviewing a decision of the Court of Criminal Appeals

on a military judge’s ruling, “we typically have pierced through

that intermediate level,” examined the military judge’s ruling,

and then decided whether the Court of Criminal Appeals was right

or wrong in its examination of the military judge’s ruling.

United States v. Siroky, 44 MJ 394, 399 (1996).    At trial, the

prosecution has the burden of establishing by a preponderance of

the evidence that a confession was voluntary.    Mil.R.Evid.

304(e)(1), Manual, supra; United States v. Bubonics, 45 MJ 93,

95, recon. denied, 46 MJ 186 (1996).    We review de novo a

military judge’s determination that a confession is voluntary.

United States v. Ford, 51 MJ 445, 451 (1999), citing Arizona v.

Fulminante, 499 U.S. 279 (1991).

     One of the most sacred privileges at common law was the

confidentiality between a priest and penitent.    “[It] recognizes

the human need to disclose to a spiritual counselor, in total

and absolute confidence, what are believed to be flawed acts or

thoughts and to receive priestly consolation and guidance in

return.”   Trammel v. United States, 445 U.S. 40, 51 (1980).

This privilege was recognized in paragraph 151(b)(2) of the 1951

Manual for Courts-Martial, United States, which provided:



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United States v. Benner, 01-0827/AR


      Also privileged are communications between a person
      subject to military law and a chaplain, priest, or
      clergyman of any denomination made in the relationship of
      penitent and chaplain, priest, or clergyman, either as a
      formal act of religion or concerning a matter of
      conscience.

     When the Military Rules of Evidence were promulgated, Rule

503 expressly recognized a “[c]ommunications to clergy”

privilege.   It provides:

      A person has a privilege to refuse to disclose
      and to prevent another from disclosing a
      confidential communication by the person to a
      clergyman or to a clergyman’s assistant, if such
      communication is made either as a formal act of
      religion or as a matter of conscience.

Manual, supra.   Furthermore, this privilege is recognized in

paragraph 4-4 of Army Regulation 165-1, Chaplain Activities in

the United States Army (26 May 2000) (superseding 27 Feb. 1998),

and paragraph 3-8 of Army Regulation 608-18, The Family Advocacy

Program (1 September 1995).

     Article 31(b), supra, provides:

      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 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.

Additionally, a warning that the servicemember has a right to

counsel is required.   Mil.R.Evid. 305(d); United States v.




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United States v. Benner, 01-0827/AR


Tempia, 16 USCMA 629, 37 CMR 249 (1967).    Article 31(d)

provides:

            No statement obtained from any person in
            violation of this article, or through the use
            of coercion, unlawful influence, or unlawful
            inducement may be received in evidence
            against him in a trial by court-martial.

     When a chaplain questions a penitent in a confidential and

clerical capacity, the results may not be used in a court-

martial because they are privileged.    Therefore, the Article

31(b) and Tempia warnings are not required.    Conversely, if a

military officer who is also a chaplain acts on the premise that

the penitent’s disclosures are not privileged, then warnings are

required.

     A confession that follows an earlier confession obtained

due to actual coercion, duress, or unlawful inducement is

presumptively tainted.    Ford, 51 MJ at 450-51, citing United

States v. Phillips, 32 MJ 76, 79 (1991), and applying the

analysis in Oregon v. Elstad, 470 U.S. 298 (1985).    However, a

confession taken in compliance with Article 31(b) and

Mil.R.Evid. 305 that follows an earlier unwarned confession

obtained in violation of Article 31(b) and Mil.R.Evid. 305 is

not presumptively tainted.    It is admissible if the subsequent

confession is determined to be voluntary “by the totality of the

circumstances.”    Id.; see also Schneckloth v. Bustamonte, 412

U.S. 218, 226 (1973).    “The earlier, unwarned statement is a



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United States v. Benner, 01-0827/AR


factor in this total picture, but it does not presumptively

taint the subsequent confession.”   Phillips, supra.   The fact

that the subsequent confession was preceded by adequate warnings

is one of the circumstances to be considered.   Elstad, supra.

     Finally, while a cleansing warning is not a prerequisite to

admissibility, an earlier unwarned statement and the lack of a

cleansing warning before the subsequent statement are also part

of the “totality of the circumstances.”   United States v.

Lichtenhan, 40 MJ 466, 470 (CMA 1994), citing Phillips, supra.

In this situation, where actual coercion, duress, or unlawful

inducement was not involved in appellant’s disclosures to the

chaplain, our task is to review the totality of the

circumstances de novo, and to determine as a matter of law

whether appellant’s subsequent confession to CID meets the

following test:

      Is the confession the product of an essentially
      free and unconstrained choice by its maker? If
      it is, if he has willed to confess, it may be
      used against him. If it is not, if his will has
      been overborne and his capacity for self-
      determination critically impaired, the use of his
      confession offends due process.

Ford, supra at 451, quoting Culombe v. Connecticut, 367 U.S.

568, 602 (1961).

                            ANALYSIS

     We need not decide whether appellant’s confession to CID

was presumptively tainted, because we hold that it was



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United States v. Benner, 01-0827/AR


involuntary.   Appellant went to the chaplain for help.   Instead,

he was advised that Army Regulations and the Family Advocacy

Center rules mandated that the chaplain “turn him in” and reveal

his confession.   Chaplain S revealed appellant’s confidences, in

violation of the privilege protected by Mil.R.Evid. 503 and Army

Regulations, when he told SFC K that appellant was at the MP

station to make a statement regarding his “improper relationship

with his stepdaughter.”    When appellant was questioned by the

CID agents, he was informed that he was suspected of indecent

assault.   55 MJ at 623.   Appellant was aware that only the

chaplain could have been the source of this information, and

that his confidences had been betrayed.    Faced with this

Hobson’s choice of confessing to CID or having the chaplain

reveal his confession to CID, he had little or no choice but to

confess.

     There was no cleansing warning given, but we cannot fault

the CID agents for not providing appellant with a cleansing

warning and an opportunity to consider whether the “cat was out

of the bag.”   There is no indication in the record that they

were aware of Chaplain S’s threats to reveal appellant’s

confession, but they were aware of the nature of the offenses

because of Chaplain S’s disclosure to SFC K.

     These facts provide too flimsy a foundation for us to

conclude that appellant’s confession was made voluntarily, of



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United States v. Benner, 01-0827/AR


his own free will and based upon a desire to confess his crimes

to the police officials.    Stated succinctly, under these

circumstances, we conclude that appellant’s “will [was]

overborne and his capacity for self-determination [was]

critically impaired.”    Thus, “the use of his confession offends

due process.” Columbe, supra at 602.

     Appellant was seeking clerical help.    Instead of providing

confidential counseling, the chaplain informed appellant that he

was obliged to report appellant’s action and thus, unknown to

the chaplain, breach the “communications to clergy” privilege.

At this point, the chaplain was acting outside his

responsibilities as a chaplain, and he was acting solely as an

Army officer.   As such, he was required to provide an Article 31

warning before further questioning.    Although CID advised

appellant of his rights, the chaplain had made it clear that if

he invoked his rights, the chaplain would reveal his confession.

Under these facts, we hold that the Government did not carry its

burden of establishing that appellant’s confession was

voluntary.   See United States v. Bubonics, 45 MJ at 96; United

States v. Martinez, 38 MJ 82, 86-87 (CMA 1993).    Accordingly, we

must reverse.

                                CONCLUSION

     The decision of the United States Army Court of Criminal

Appeals is reversed.    The findings of guilty and sentence are



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United States v. Benner, 01-0827/AR


set aside.   The record of trial is returned to the Judge

Advocate General of the Army.   A rehearing may be ordered.




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United States v. Benner, No. 01-0827/AR


      CRAWFORD, Chief Judge (dissenting):

      Because the majority misreads the facts of this case,

rejects the military judge’s special findings of fact without

declaring them clearly erroneous, and misapplies the law

relating to the voluntariness of confessions, as well as to the

application of the exclusionary rule to evidentiary privileges,1

I respectfully dissent.

      First, the facts ineluctably lead me to but one conclusion

-- the impetus for appellant’s confessions was his wife, not

misstatements by Chaplain S.        Both appellant at trial and the

Army Court of Criminal Appeals agree with me.           United States v.

Benner, 55 MJ 621, 623-24 (Army Ct. Crim. App. 2001).

      Second, the Fifth Amendment provides that “[n]o person ...

shall be compelled in any criminal case to be a witness against

himself nor be deprived of life, liberty, or property, without

due process of law....”       U.S. Const. amend. V.      Additionally,

Article 31(d), Uniform Code of Military Justice, 10 USC §

831(d), prohibits the admission of any statement into evidence

that is “obtained ... through the use of coercion, unlawful

influence, or unlawful inducement....”          Both require the

accused’s confession to be voluntary in order to be admissible

into evidence.     Dickerson v. United States, 530 U.S. 428, 433


1
  The exclusionary rule does not apply to a violation of a general regulation.
See, e.g., United States v. Caceres, 440 U.S. 741 (1979); United States v.
Allen, 53 MJ 402 (2000).
United States v. Benner, No. 01-0827/AR


(2000); see also United States v. Raymond, 38 MJ 136 (CMA

1993)(discussing the history of Article 31).

      The issue in this case is whether appellant’s confession

was voluntary.     The waiver of one’s right against self-

incrimination set forth in Miranda v. Arizona, 384 U.S. 436

(1966), and Article 31 must be the “product of a free and

deliberate choice rather than intimidation, coercion, or

deception.”    Moran v. Burbine, 475 U.S. 412, 421 (1986); see

United States v. Harvey, 37 MJ 140 (CMA 1993); Mil.R.Evid.

304(c)(3), Manual for Courts-Martial, United States (2000 ed.).

Voluntariness is measured in a number of ways.           In the final

analysis, it is the “totality of all the surrounding

circumstances -- both the characteristics of the accused and the

details of the interrogation” -- that answers the question of

voluntariness.     Schneckloth v. Bustamonte, 412 U.S. 218, 226

(1973).

      Finally, neither state nor federal courts have applied the

exclusionary rule to evidentiary privileges, let alone to

evidence derived from evidentiary privileges.2           “Whatever [the]

origins [of the evidentiary privileges], these exceptions to the

demand for every man’s evidence are not lightly created nor


2
  United States v. Seiber, 12 USCMA 520, 523, 31 CMR 106, 109 (1961)(the
violation of a privilege has no applicability to extra-judicial occurrences);
United States v. Squillacote, 221 F.3d 542, 559-61 (4th Cir. 2000); State v.
Sandini, 395 So.2d 1178 (Fla. App. 1981); People v. Burnidge, 687 N.E.2d 813
(Ill. 1997); Chase v. State, 706 A.2d 613 (Md. App. 1998); see also United
States v. Boffa, 513 F.Supp. 517 (D.Del. 1981).

                                      2
United States v. Benner, No. 01-0827/AR


expansively construed, for they are in derogation of the search

for the truth.”   United States v. Nixon, 418 U.S. 683, 710

(1974).   Disclosure of evidence, rather than the suppression of

evidence, promotes truthfinding, and the evidentiary privileges

should be strictly confined and not expansively interpreted.

                               FACTS

     Several facts were not contested at trial:

     (1) Appellant’s date of birth is June 20, 1973, and he has

a GT score of 105.

     (2) Ms. Benner, her daughter (the victim) from a previous

relationship, and son from her marriage to appellant arrived in

Babenhausen, Germany, in March 1998.

     (3) Ms. Benner was hospitalized in May 1998.   It was during

this hospitalization that appellant committed sodomy and

committed indecent acts on the child.

     (4) Appellant admitted coming forward after discussing with

his wife what he did to his stepdaughter and realizing that he

needed help.   His wife was thinking about leaving him and

returning to the United States.   Ms. Benner and her children

subsequently left Germany.

      (5) Appellant’s wife did not report him “because she

wanted to see whether [appellant] would take responsibility for

his actions and report [the incident] himself.”




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United States v. Benner, No. 01-0827/AR


      The judge made various findings of fact, which we are

bound to accept unless clearly erroneous.    See, e.g., United

States v. Hollis, 57 MJ 74, 79 (2002).    They are:

      (1) Appellant met with Chaplain S in June 1998 concerning

assistance in getting a compassionate reassignment to the Fort

Sill area (the location to which Ms. Benner had returned).

Military Judge’s Findings, App. Ex. X, ¶ e.

      (2) The next time appellant met with Chaplain S was

Sunday, September 20, 1998.    At this session, he was sobbing and

“told Chaplain [S] that he had had an improper relationship with

his stepdaughter.”    No details of this improper relationship

were revealed.    Chaplain S informed appellant that he would

probably have to report this possible child sexual abuse to

military authorities, but would need to confirm his reporting

responsibilities the following day.    Id. at ¶ h.

     (3)    On Monday, September 21, Chaplain S called Family

Advocacy personnel, who advised him that he was required to

report child sexual abuse.    Chaplain S then informed appellant

that he would have to report him, but that he “hoped [appellant]

would take the responsibility for his actions and report

himself.”    Thereafter, appellant and Chaplain S engaged in a

detailed discussion concerning the acts appellant committed with

his stepdaughter.    Id. at ¶ i.

     (4) During this session, lasting approximately 20-30
     minutes, [appellant] told Chaplain [S] some, but not

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United States v. Benner, No. 01-0827/AR


     all, of the details concerning the acts.... [Appellant]
     made the decision to tell Chaplain [S] about the details
     of the acts, despite the fact that Chaplain [S] had told
     [appellant] that Chaplain [S] had an obligation to
     report to authorities.

Id. at ¶ j.

     (5)    Chaplain S informed appellant “that it would be best

for him as a person” to confess and that Chaplain S would

accompany him to the military police station for moral support.

Appellant

     was hesitant to go to the Military Police Station and
     confess, but after further discussion, he agreed that
     it would be better if he confessed right away. He and
     Chaplain [S] agreed that making a confession would be
     the best way for [appellant] to get the forgiveness of
     others and to help [appellant] forgive himself.
     Chaplain [S’s] prompting of [appellant] to confess was
     based upon his observation of [appellant] as a soul in
     torment.... Chaplain [S’s] actions and recommenda-
     tions were based upon his desire as a chaplain to help
     [appellant] through his emotional and spiritual
     crisis.

Id. at ¶ k.

     (6)    Appellant

     made the independent decision to go to the Military
     Police Station and make a formal confession to the
     Military Police because he thought it would be the best
     thing for him to do. One of the factors in his decision
     was that Chaplain [S] had told [him] that Chaplain [S]
     had a duty to report the improper relationship....
     [T]he primary reason for [appellant’s] decision to
     confess to the Military Police was that [appellant]
     believed it would help [him] with the torment that he
     was going through. His decision to confess to the
     Military Police was not the result of [him] submitting
     to Chaplain [S] or Chaplain [S’s] position as a captain
     in the United States Army. [Appellant] knew at the time
     that Chaplain [S] was not ordering him to confess. ...
     [T]he primary motivation for his decision to confess to

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United States v. Benner, No. 01-0827/AR


     the Military Police was not some fear that Chaplain [S]
     would report the matter.

Id. at ¶ l.

     (7) [B]y his course of conduct -- deciding that he
     should confess to the Military Police, deciding to go
     to the MP station, deciding that he wanted Chaplain
     [S] to accompany him for moral support, and
     acquiescing to Chaplain [S] telling the MP Station
     Commander why they were there -- [appellant] consented
     to Chaplain [S] divulging to the MP Station Commander
     matters which Chaplain [S] had learned of during a
     priest-penitent conversation.

Id. at ¶ n.

     (8) Chaplain [S] went out front and sat with [appellant]
     for approximately 10 minutes.... [Appellant] was left in
     the MP station alone. [There was] no evidence that there
     was any physical or moral restraint placed upon [appellant]
     to remain at the MP station.... [Appellant] was free to
     leave the MP Station at any time during this wait....
     [Appellant] waited at the MP Station for over an hour
     before the CID agents arrived.... [Appellant] voluntarily
     waited for the CID agents to arrive....

Id. at ¶ p.

     (9) [The CID agent] was not aware of any of the specifics
     of the case.... He was only told by SFC King that there
     was a soldier who wanted to discuss a sexual assault of
     some kind.... [The CID agent] did not know at the time
     that [appellant] had made prior incriminating admissions to
     anyone. [Appellant] did not tell [the CID agent] that he
     had made prior incriminating admissions to anyone.

Id. at ¶ q.

     (10) In filling out the rights advisement ..., [appellant]
     hesitated when he came to the right to counsel. He was
     obviously considering whether or not he wanted to have
     counsel.... However, [appellant] took his time, considered
     his right to counsel, and he then waived his right to
     counsel. [Appellant] was fully aware of his rights to
     counsel and against self-incrimination.... [T]he decision
     by [appellant] to waive his rights and submit to an


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United States v. Benner, No. 01-0827/AR


     interview with the CID was an informed and voluntary
     decision made of his own free will.

Id. at ¶ r.

     (11)   Appellant’s confession was “in his own handwriting”

and was made “while he was left alone in the office.”   Appellant

“was aware of what he was doing,... was not sleep-deprived” to

any extent that would have affected adversely his mental

processes, and the CID agents “in no way, shape, or form coerced

or induced the confession.”   Id. at ¶ s.

     At trial, appellant’s wife testified during sentencing that

she confronted her husband with the victim’s allegations shortly

after returning from the hospital and appellant did not deny the

child’s accusation.   Appellant’s unsworn statement at sentencing

revealed that he was 25 years old and had spent 7 years in the

United States Army.   In reading from a prepared statement,

appellant said:

          I failed as a father...[Sobbing]...and didn’t deny
     anything when confronted about what happened. I know I
     needed to get help in order to live my life correctly.
     My wife and I briefly talked about it and agreed that I
     would get help.
                              * * *

          The day after the incident occurred, I sat down
     with Maria and started crying. I explained to her that
     what I did was wrong and not to let anyone do that to
     her again.

          Since that day I’ve done all that I can do to make
     things right. I looked for help on my own. And when
     that failed, I went to the chaplain for help. He
     convinced me that the best thing to do was to turn
     myself in, and the next day I did so.

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United States v. Benner, No. 01-0827/AR



          I pled guilty here because...excuse me...I pled
     guilty here today because I was wrong. And it [sic]
     there was anything else I could do to show you how
     terrible I feel, I would do so.

                          DISCUSSION

     Voluntariness of a confession is a question of law subject

to our de novo review.   Arizona v. Fulminante, 499 U.S. 279, 287

(1991).   Any special findings of fact are the basis for

reviewing the question of voluntariness and are binding on this

Court unless those findings are clearly erroneous.    United

States v. Ford, 51 MJ 445, 451 (1999).

     In reviewing the totality of the circumstances, we do not

presume that appellant’s confession to the chaplain tainted his

later voluntary statement to the CID agents.    See United States

v. Norfleet, 36 MJ 129, 131 (CMA 1992).    The presumption of

taint arises after a confession is obtained due to “actual

coercion, duress, or inducement.”    Ford, 51 MJ at 450, quoting

United States v. Phillips, 32 MJ 76, 79 (CMA 1991).    Here, there

was no actual coercion of appellant by Chaplain S.    “There is a

vast difference between the direct consequences flowing from

coercion of a confession by physical violence or other

deliberate means calculated to break the suspect’s will and the

uncertain consequences of disclosure of a ‘guilty secret’ freely

given in response to an unwarned but non-coercive question....”




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United States v. Benner, No. 01-0827/AR


Oregon v. Elstad, 470 U.S. 298, 312 (1985); see United States v.

Murphy, 39 MJ 486, 488 (CMA 1994).

     In Elstad, the Supreme Court addressed an issue similar to

that at hand.   There, the police officers who arrested Elstad in

his home asked incriminating questions, and received

incriminating responses thereto, without advising the suspect of

his rights pursuant to Miranda.   However, at the police station,

Elstad was given a proper rights advisement, waived those

rights, and gave a full admission of his criminal activity.   The

Supreme Court held:

     We must conclude that, absent deliberately coercive or
     improper tactics in obtaining the initial statement,
     the mere fact that a suspect has made an unwarned
     admission does not warrant a presumption of
     compulsion. A subsequent administration of Miranda
     warnings to a suspect who has given a voluntary but
     unwarned statement ordinarily should suffice to remove
     the conditions that precluded admission of the earlier
     statement. In such circumstances, the finder of fact
     may reasonably conclude that the suspect made a
     rational and intelligent choice whether to waive or
     invoke his rights.

470 U.S. at 314; see United States v. Marquardt, 39 MJ 239

(CMA 1994).

     The record shows that appellant was neither inexperienced

nor immature.   He was of reasonable intelligence.   He

voluntarily sought out Chaplain S on September 20 and without

being questioned, confessed, in the hopes of reuniting his

family (a process that started three months earlier when he

asked Chaplain S for compassionate reassignment help).

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Appellant’s movement was not in any way restricted throughout

this entire process.    Specifically, if he had wanted to talk to

an attorney after being advised on September 20 that the

chaplain would have to report his sexual abuse to proper

authorities, appellant could have done so.     Instead, he returned

to see the chaplain.    His choice to bare his soul to the CID

investigators after being warned of his rights was both rational

and a voluntary exercise of appellant’s free will.       It certainly

was not coerced.

     We know that neither the Fifth Amendment nor Article 31 are

concerned with moral or psychological pressures to confess

unless, of course, such pressure is applied through actual

physical or official coercion.    See Elstad, supra; Rhode Island

v. Innis, 446 U.S. 291, 303 (1980); Oregon v. Mathiason, 429

U.S. 492, 495-96 (1977); Raymond, 38 MJ at 140; United States v.

Fisher, 21 USCMA 223, 44 CMR 277 (1972).     As the Supreme Court

said in Elstad:    “This Court has never held that the

psychological impact of voluntary disclosure of a guilty secret

qualifies as state compulsion or compromises the voluntariness

of a subsequent informed waiver.”     470 U.S. at 312.   Likewise,

the Supreme Court “has never embraced the theory that a

defendant’s ignorance of the full consequences of his decisions

vitiates their voluntariness.”    Id. at 316; see California v.

Beheler, 463 U.S. 1121, 1125-26 n.3 (1983); McMann v.


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United States v. Benner, No. 01-0827/AR


Richardson, 397 U.S. 759, 769 (1970).     The Supreme Court has

refused to find that a defendant who confesses after being

falsely told that his co-defendant had turned against him does

so involuntarily.   See Frazier v. Cupp, 394 U.S. 731 (1969).

     While appellant may have been under some stress because of

his family’s return to Oklahoma as a result of his criminal

misconduct, there is no support in the record for the

proposition that he was so distraught or otherwise emotionally

traumatized so as not to be able to exercise his free will.       The

facts, as they exist in the record of trial and as found by the

military judge, do not support the majority’s conclusion that

appellant’s will was overborne so as to produce an unreliable,

involuntary confession.   The Government has clearly established

that appellant exercised his free will when he chose to speak

with the CID agents.

     After accompanying appellant to the military police

station, Chaplain S related to SFC K that appellant was present

to make a statement about “an improper relationship with his

stepdaughter that occurred while appellant’s wife was in the

hospital and appellant had been drinking alcohol.    Chaplain S

did not provide any other details of appellant’s misconduct to

SFC K.”   55 MJ at 623.   How the interrogating officials from CID

decided to warn appellant of his Article 31 rights for “indecent

assault” is unclear, but there is no evidence that the


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United States v. Benner, No. 01-0827/AR


interrogating officials used appellant’s confession to Chaplain

S, who departed the military police station ten minutes after

escorting appellant there and fifty minutes prior to the arrival

of the CID representatives.   Accordingly, it makes no difference

whether Chaplain S was acting in his clerical capacity or as an

Army officer -- no cleansing warning was required.

     If there is an individual who was betrayed in this case, it

is the innocent four-year-old child victim of sexual abuse,

appellant’s stepdaughter.   Appellant, ostensibly the nurturing

stepfather, betrayed that role by sexually abusing his step-

daughter while his wife was hospitalized.   Now, because of the

majority’s misapplication of the facts and law, an eight-year

old will again have to relive the nightmare, as she, along with

the others to whom appellant may have confessed, will be called

back into court to testify during the rehearing which will

surely be ordered.

     For all of the above reasons, I respectfully dissent.




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