                       UNITED STATES, Appellee

                                    v.

                     Travis D. Jones, Specialist
                         U.S. Army, Appellant

                              No. 14-0071

                       Crim. App. No. 20110679

       United States Court of Appeals for the Armed Forces

                         Argued April 9, 2014

                        Decided July 21, 2014

RYAN, J., delivered the opinion of the Court, in which BAKER,
C.J., and ERDMANN, STUCKY, and OHLSON, JJ., joined.

                                 Counsel

For Appellant: Captain James S. Trieschmann Jr. (argued);
Lieutenant Colonel Jonathan F. Potter (on brief); Colonel Kevin
Boyle and Major Amy E. Nieman.

For Appellee: Captain Samuel Gabremariam (argued), Colonel John
P. Carrell, Lieutenant Colonel James L. Varley, and Major Robert
A. Rodrigues (on brief); Major Catherine L. Brantley.

Amicus Curiae for Appellant: Reynaldo Martinez (law student)
(argued); Eric R. Carpenter, Esq. (supervising attorney) -- for
Florida International University College of Law.

Military Judges:    Michael Hargis and Frank Whitney



       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Jones, No. 14-0071/AR


     Judge RYAN delivered the opinion of the Court.

     Contrary to his pleas, a general court-martial composed of

enlisted members convicted Appellant of one specification of

conspiracy to commit burglary, in violation of Article 81,

Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 881 (2012),

and one specification of burglary, in violation of Article 129,

UCMJ, 10 U.S.C. § 929 (2012).   The adjudged sentence provided

for confinement for two years and a bad-conduct discharge.   The

convening authority approved the adjudged sentence and ordered

all but the bad-conduct discharge executed. 1

     The United States Army Court of Criminal Appeals (ACCA)

summarily affirmed the findings and sentence as approved by the

convening authority.   United States v. Jones, No. ARMY 20110679,

slip op. at 1 (A. Ct. Crim. App. July 31, 2013).   We granted

Appellant’s petition to review the following issue:

     WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE
     DENIED THE DEFENSE’S MOTION TO SUPPRESS APPELLANT’S
     STATEMENT TO THE MILITARY POLICE.

     We hold that in light of all the facts and circumstances of

this case, the military judge did not abuse his discretion in

admitting Appellant’s statement, as Specialist (SPC) John Ellis


1
  We heard oral argument in this case at Florida International
University College of Law as part of the Court’s “Project
Outreach.” See United States v. Mahoney, 58 M.J. 346, 347 n.1
(C.A.A.F. 2003). This practice was developed as part of a
public awareness program to demonstrate the operation of a
federal court of appeals and the military justice system.

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United States v. Jones, No. 14-0071/AR


was not acting in an official law enforcement or disciplinary

capacity when he questioned Appellant.     As a result, Article

31(b), UCMJ, 10 U.S.C. § 831(b) (2012), warnings were not

required, and Appellant’s statement was properly admitted.     The

decision of the ACCA is affirmed.

                              I.   FACTS

     In November 2010, and during the time of the events

involved in this case, SPC 2 Ellis was an infantryman, who began

also serving as a military police (MP) augmentee, attached to

the 194th MP Company.   Augmentees attached to the 194th MP

Company went on patrol with an actual MP and served as “more or

less a back up for the MP.”   Because SPC Ellis was assigned as

an augmentee later than other augmentees, he was only given on-

the-job training and did not receive the two weeks of training

that the others received.   As an augmentee, SPC Ellis testified

that he was not allowed to perform MP duties without his MP

partner present and was instructed that when he was off-duty he

was an infantryman and was not authorized to perform any MP

functions.   Further, SPC Ellis was not allowed to wear an MP

brassard and was not authorized to fill out rights waiver forms,

take sworn statements, or question suspects.




2
  At the time of the events, SPC Ellis was a private first class
(PFC) and Appellant was a specialist.

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United States v. Jones, No. 14-0071/AR


     In March 2011, about a week and a half prior to the

burglary for which Appellant was charged, SPC Elliott

Carrasquillo sent SPC Ellis a Facebook chat message reading

“Hey, swing by my room.    I need to ask you something.”    SPC

Ellis agreed and headed to SPC Carrasquillo’s room, which he

shared with Appellant.    When SPC Ellis entered the room, SPC

Carrasquillo and Appellant were sitting on their beds and

Appellant told SPC Ellis to lock the door behind him.      SPC

Carrasquillo then asked SPC Ellis if he would “be interested in

accompanying [him] and Jones to help rob this guy of his money?”

SPC Ellis testified that he thought SPC Carrasquillo was joking

and responded by telling him, “You’re crazy.      You’re out of your

mind.”   SPC Ellis informed them that he wanted nothing to do

with the plan and left the room.       Appellant and SPC Carrasquillo

were both MPs at the time of the events.

     While on duty during the morning of April 1, 2011, SPC

Ellis and his partner responded to a call regarding an armed

robbery.   When they arrived at the scene they searched and

secured the area.   While at the scene, the noncommissioned

officer in charge of the Provost Marshal’s Office provided SPC

Ellis with a description of the suspects.      SPC Ellis testified

that upon hearing a description of the suspects he assumed that

Appellant and SPC Carrasquillo committed the crime.      After SPC

Ellis’s shift ended and he was walking to his containerized

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United States v. Jones, No. 14-0071/AR


housing unit (CHU), he saw Appellant walking in his direction

and said, “Hey, let me ask you a question.     Let’s go to my

room.”    Appellant agreed and upon entering, Appellant locked the

door, and the following exchange occurred:

     SPC Ellis:   “Don’t play games with me . . . . Why’d you do

                    it?”

     Appellant:   “What are you talking about?”

     SPC Ellis:   “Jones, don’t f’n play games with me.”

     Appellant:   “All right.    We did it.”

     SPC Ellis:   “Who is we?”

     Appellant:   [No response]

     SPC Ellis:   “Where’s your roommate, Carrasquillo?”

     Appellant:   “I guess, he’s in the room.”

     Appellant then left and SPC Ellis changed out of his

uniform and left his room.    As SPC Ellis walked, he saw SPC

Carrasquillo, who said he wanted to bring him cigars to his

room.    When SPC Carrasquillo entered SPC Ellis’s room with the

cigars, SPC Ellis spoke with a serious and stern voice, and said

“Carrasquillo, I don’t want to hear your BS.     Tell me why you

did it.”    SPC Carrasquillo eventually responded that he did it

because he did not want Appellant to go by himself.     SPC Ellis

then asked who the third participant was and SPC Carrasquillo

told him it was PFC James Backes, an MP augmentee.



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United States v. Jones, No. 14-0071/AR


     SPC Carrasquillo then said that they had about $380,000

from the burglary and explained that to get the money off base

he planned to throw the money over “a dark spot along the t-

wall” and collect it after he cleared customs.    SPC Carrasquillo

would not respond when SPC Ellis asked him about the location of

the money.    As SPC Carrasquillo left the room, he said to SPC

Ellis, “Don’t say anything to anybody.”

     About a minute after SPC Carrasquillo left, SPC Ellis went

next door to the room of Sergeant (SGT) Goodrich, his section

leader, and explained to him what he had just been told.    On

April 3, 2011, SPC Ellis made a sworn statement about the

encounters.   Investigators treated SPC Ellis as a registered

source after he independently questioned Appellant.

     On July 13, 2011, the defense counsel moved to suppress the

statement that SPC Ellis elicited from SPC Jones on April 1,

2011, as well as any fruits from the conversation, because SPC

Ellis failed to give Appellant Article 31(b), UCMJ, warnings.

The Government responded in opposition to the motion and argued

that SPC Ellis was not required to give Article 31(b), UCMJ,

warnings because (1) SPC Ellis was not acting in an official

capacity, and (2) SPC Ellis did not coerce Appellant.

     The military judge found that the evidence “indicate[d]

that SPC Ellis was not acting in any official capacity” because

he was not an MP soldier, Appellant knew him personally and

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United States v. Jones, No. 14-0071/AR


previously asked SPC Ellis to participate in the burglary, and

there was a “a total void of certain evidence concerning SPC

Ellis’s rank, duty, or other relationship that might tend to

show subtle pressure on [Appellant] to respond to an inquiry.”

Further, the military judge found that “[t]he evidence also

indicate[d] the uncoerced nature of the informal exchange

between SPC Ellis and [Appellant]” because Appellant voluntarily

went to SPC Ellis’s room, where Appellant locked the door, and

because Appellant had previously solicited SPC Ellis to

participate in the crime.   For those reasons, the military judge

denied the motion.

     At trial, after SPC Ellis testified about the events, the

defense asked the military judge to reconsider his prior order

on the motion to suppress Appellant’s statement based on “the

fact that [SPC Ellis] was present [the night of the burglary] as

a first responder.”   The military judge stated that based on

“all the facts and circumstances at the time of the interview”

it could not be determined that “the military questioner was

acting or could be reasonably considered to be acting in an

official law enforcement or disciplinary capacity.”

Consequently, the military judge denied the motion to

reconsider.




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United States v. Jones, No. 14-0071/AR


                        II.    ACCA DECISION

     The ACCA summarily affirmed the findings and sentence.

                         III.    DISCUSSION

     “We review a military judge’s ruling on a motion to

suppress . . . for an abuse of discretion.”       United States v.

Ayala, 43 M.J. 296, 298 (C.A.A.F. 1995).       “The abuse of

discretion standard is a strict one, calling for more than a

mere difference of opinion.”     United States v. McElhaney, 54

M.J. 120, 130 (C.A.A.F. 2000).    “When there is a motion to

suppress a statement on the ground that rights’ warnings were

not given, we review the military judge’s findings of fact on a

clearly-erroneous standard, and we review conclusions of law de

novo.”   United States v. Swift, 53 M.J. 439, 446 (C.A.A.F.

2000).   “[O]n a mixed question of law and fact . . . a military

judge abuses his discretion if his findings of fact are clearly

erroneous or his conclusions of law are incorrect.”       Ayala, 43

M.J. at 298.

     “Because of the effect of superior rank or official

position upon one subject to military law, the mere asking of a

question under certain circumstances is the equivalent of a

command.”   United States v. Duga, 10 M.J. 206, 209 (C.M.A.

1981).   Congress passed Article 31(b) “to provide servicepersons

with a protection which, at the time of the Uniform Code's

enactment, was almost unknown in American courts, but which was

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United States v. Jones, No. 14-0071/AR


deemed necessary because of subtle pressures which existed in

military society.”   Id.    “The Article 31(b) warning requirement

provides members of the armed forces with statutory assurance

that the standard military requirement for a full and complete

response to a superior’s inquiry does not apply in a situation

when the privilege against self-incrimination may be invoked.”

Swift, 53 M.J. at 445.     Under Article 31(b), UCMJ:

     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.

     Thus, Article 31(b), UCMJ, warnings are required when (1) a

person subject to the UCMJ, 3 (2) interrogates or requests any

statement, (3) from an accused or person suspected of an

offense, and (4) the statements regard the offense of which the

person questioned is accused or suspected.     United States v.

Cohen, 63 M.J. 45, 49 (C.A.A.F. 2006). 4


3
  This has been interpreted to include “a knowing agent,” such as
a civilian law enforcement agent working for military criminal
investigatory services. See Military Rule of Evidence (M.R.E.)
305(b)(1); see also Unites States v. Quillen, 27 M.J. 312, 314
(C.M.A. 1988).
4
  Because it is clear that SPC Ellis was subject to the UCMJ,
suspected Appellant of the crime, and the statement he elicited
pertained to the offense for which Appellant was suspected, the
only question remaining in this case is whether SPC Ellis
interrogated or requested any statement from Appellant.


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United States v. Jones, No. 14-0071/AR


     Although Article 31(b), UCMJ, seems straightforward, “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.”   Cohen, 63 M.J. at 49

(discussing United States v. Gibson, 3 C.M.A. 746, 14 C.M.R. 164

(1954)).   Because the mandatory exclusion of statements taken in

violation of Article 31, UCMJ, is a severe remedy, 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.

Under Article 31(b)’s second requirement, rights warnings are

required if “the person conducting the questioning is

participating in an official law enforcement or disciplinary

investigation or inquiry,” Swift, 53 M.J. at 446, as opposed to

having a personal motivation for the inquiry.   See United States

v. Price, 44 M.J. 430, 432 (C.A.A.F. 1996).   This “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.’”    Cohen, 63

M.J. at 50 (quoting Swift, 53 M.J. at 446) (internal quotation




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United States v. Jones, No. 14-0071/AR


marks omitted). 5    Whether the questioner was acting or could

reasonably be considered to be acting in either capacity is a

question of law, which we review de novo.        See Swift, 53 M.J. at

448; United States v. Good, 32 M.J. 105, 108 (C.M.A. 1991).

     Duga purported to set forth a two-part test, which required

Article 31, UCMJ, warnings only where the person questioning was

acting in an official capacity and “the person questioned

perceived that the inquiry involved more than a casual

conversation.”      10 M.J. at 210.    We now expressly reject the

second, subjective, prong of that test, which has been eroded by


5
  This objective standard on its face is potentially problematic
in relation to the use of undercover officers or informants who
clearly act in an official capacity. While the facts of this
case do not raise that issue, M.R.E. 305’s Drafter’s Analysis
notes that Article 31(b), UCMJ, does not affect decisions such
as United States v. French, 25 C.M.R. 851 (A.F.B.R. 1958), which
involved undercover agents. Manual for Courts-Martial, United
States, Analysis of the Military Rules of Evidence app. 22 at
A22-14 (2008 ed.); see also United States v. Ruiz, 54 M.J. 138,
140 n.2 (C.A.A.F. 2000) (noting that the actions of an
undercover agent are “not within the scope of the warning
requirement in Article 31(b)[, UCMJ]”). “Judicial discretion
indicates a necessity for denying [Article 31(b)’s] application
to a situation not considered by its framers, and wholly
unrelated to the reasons for its creation.” Gibson, 3 C.M.A. at
752, 14 C.M.R. at 170. Because undercover officials and
informants do not usually place the accused in a position where
a reasonable person in the accused’s position would feel
compelled to reply to questions, this same logic dictates that
Article 31(b), UCMJ, would not apply in those situations. Id.
This conclusion is consistent with the Supreme Court’s
undercover agent exception in the Miranda context. Illinois v.
Perkins, 496 U.S. 292, 296 (1990) (“Conversations between
suspects and undercover agents do not implicate the concerns
underlying Miranda. The essential ingredients of a ‘police-
dominated atmosphere’ and compulsion are not present . . . .”).

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United States v. Jones, No. 14-0071/AR


more recent cases articulating an objective test.    See, e.g.,

Swift, 53 M.J. at 446; Good, 32 M.J. at 108.

     Here, the military judge’s findings of fact are supported

by the record and are not clearly erroneous.    In the context of

the issue raised in this case then, whether SPC Ellis

interrogated or requested any statement from Appellant

triggering Article 31(b), UCMJ, “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.’”    Cohen, 63 M.J. at 50

(quoting Swift, 53 M.J. at 446) (internal quotation marks

omitted).    The second determination is judged by reference to

“‘a reasonable man in the suspect’s position.’”    Good, 32 M.J.

at 108 n.2.    The military judge concluded that SPC Ellis was not

acting, and could not reasonably be considered by Appellant to

be acting, in an official law enforcement or disciplinary

capacity.    The military judge applied the correct law, and, on

balance, did not abuse his discretion under the circumstances of

this case.

     Whether SPC Ellis was acting in an official law enforcement

capacity requires determining the scope of his authority as an

agent of the military.    See Cohen, 63 M.J. at 51 (considering

the questioner’s “authorities and responsibilities as

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United States v. Jones, No. 14-0071/AR


specified”); Price, 44 M.J. at 432 (agreeing with the finding

that the questioner “went beyond what he was asked to do by the

law enforcement officials”).   Appellant argues that because SPC

Ellis was involved in the investigation, his questioning was

part of his official law enforcement duties.      While it is true

that SPC Ellis searched and secured the scene of the crime, the

question is whether that is enough to compel the conclusion that

he acted in an official law enforcement capacity when he later

asked Appellant questions.    While SPC Ellis’s involvement in the

investigation and the immediate reporting of his conversations

to his chain of command are the strongest facts in Appellant’s

favor, it was not error to give greater weight to other facts,

which favor the Government.

     The military judge found that SPC Ellis had a personal

motivation for questioning Appellant that was outside the scope

of “his modest law enforcement responsibilities.”      Further, it

was apparent that Ellis, based on both his grade and billet, did

not possess or exercise a disciplinary role with respect to

Appellant.   On the one hand, SPC Ellis suspected that Appellant

committed the burglary based on their prior interaction and

wanted to investigate the crime.      However, on the other hand,

SPC Ellis served as only an MP augmentee, and was aware of the

limited law enforcement authority and responsibilities that he

possessed.   SPC Ellis received only on-the-job, and not formal,

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United States v. Jones, No. 14-0071/AR


training.   SPC Ellis was not permitted to perform MP duties

without his MP partner present or any MP functions when he was

off-duty.   SPC Ellis was not authorized to fill out rights

waiver forms, take sworn statements, or question suspects.

Additionally, the military police treated SPC Ellis as a

registered source after he independently questioned Appellant, 6

which signified that, in the view of the Government at the time,

he was not acting under the guise of his official MP augmentee

duties when he questioned Appellant.    Coupled with the facts

that the questioning occurred outside the presence of his MP

partner and while SPC Ellis was off-duty, it was not error to

conclude that the questioning was not in an official law

enforcement or disciplinary capacity.

     Further, a reasonable person in Appellant’s position could

not consider SPC Ellis to be acting in an official law

enforcement or disciplinary capacity.    Here, both Appellant and

SPC Carrasquillo were actual MPs, who, based on their work with

MP augmentees, seemingly understood the limited authorities and

responsibilities of that position.   Moreover, at the time of the

6
  CID Regulation 195-1 defines “registered source” as “[a]n
individual recruited, targeted and/or controlled by a special
agent to confidentially gather intelligence information for CID
personnel. Registered sources are always considered agents of
the government and their identity will be protected.” Dep’t of
the Army, Criminal Investigation Command, CID Reg. 195-1,
Criminal Investigation Operational Procedures § II (Mar. 20,
2010); see also United States v. Bell, 38 M.J. 358, 362 n.4
(C.M.A. 1993).

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United States v. Jones, No. 14-0071/AR


questioning, SPC Ellis (then PFC Ellis) was junior in rank to

Appellant.   Finally, Appellant had asked SPC Ellis to join them

in committing the burglary -- in effect to be their partner in

crime -- and it was Appellant, not SPC Ellis, who locked the

door during the questioning.     On balance, a suspect in

Appellant’s position could not reasonably consider SPC Ellis to

be acting in an official law enforcement or disciplinary

capacity when he questioned him about the burglary.

     In light of these facts and circumstances, the military

judge did not err in concluding that SPC Ellis was not acting in

an official law enforcement capacity and did not abuse his

discretion in admitting Appellant’s statement.

                           IV.    DECISION

     The decision of the United States Army Court of Criminal

Appeals is affirmed.




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