UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                            Before
                               BURCH, 1 GALLAGHER, and HAIGHT
                                   Appellate Military Judges

                              UNITED STATES, Appellee
                                           v.
                    Sergeant First Class WILLIAM S. HARTGROVE
                             United States Army, Appellant

                                         ARMY 20100743

                        Headquarters, United States Army Alaska
              Kwasi Hawks, Military Judge (arraignment & motions hearing)
                          Mark Bridges, Military Judge (trial)
                    Colonel Randall J. Bagwell, Staff Judge Advocate


For Appellant: Mrs. Anita Gorecki-Robbins, Esquire (argued); Captain Matthew T.
Grady, JA; Ms. Cate O’Callahan, Esquire (on brief); Captain James F. Ingram, JA.

For Appellee: Captain Campbell Warner, JA (argued); Lieutenant Colonel Amber J.
Roach, JA; Major Katherine S. Gowel, JA (on brief).


                                         13 February 2013

                                   ------------------------------------
                                     MEMORANDUM OPINION
                                   ------------------------------------

     This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

GALLAGHER, Judge:

       A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of aggravated sexual contact with a child, in violation of
Article 120, Uniform Code of Military Justice, 10 U.S.C. § 120 [hereinafter UCMJ].
The military judge sentenced appellant to a dishonorable discharge, confinement for
twelve years, and reduction to the grade of E-1. The convening authority deferred
automatic forfeitures and the adjudged reduction until action. At action, the
convening authority approved the adjudged sentence. This case is before this court
for review pursuant to Article 66, UCMJ.


1
    Chief Judge BURCH took final action in this case while on active duty.
HARTGROVE—ARMY 20100743

       We have considered the entire record of trial, the submissions of the parties,
the matters appellant personally raised pursuant to United States v. Grostefon, 12
M.J. 431 (C.M.A. 1982), and oral argument. We find appellant’s assignment of
error merits discussion but no relief.

                                       FACTS

       Agents from the Criminal Investigation Division (CID) began investigating
appellant based on an allegation that appellant sexually abused his daughter. An
agent from CID, speaking to appellant’s commander, requested that appellant be
given a twenty-four hour no-contact order and set an appointment for appellant to go
to CID the next morning. In response, First Sergeant (1SG) ML contacted appellant
and ordered him to report to the barracks instead of his on-post residence. Upon
arriving at the barracks, appellant was given an order not to contact his wife and
children for twenty-four hours by the commander. In response to appellant’s inquiry
about what was going on, 1SG ML informed appellant that he did not know, “except
there was some kind of allegation against him.” The unit chaplain was then
contacted to speak with appellant because he appeared upset. Other than the no-
contact order, appellant was not under any other form of restraint or restriction.

       On the morning of 26 March 2010, appellant reported to 1SG ML’s office to
be escorted to the CID office for questioning. At this time, through interaction
between appellant’s wife and 1SG ML’s wife, 1SG ML was aware appellant was
suspected of misconduct involving at least appellant’s daughter, however, neither
appellant nor 1SG ML were aware of the “exact charges” against appellant.
Observing that appellant was distraught, 1SG ML asked appellant “how he was
doing.” Appellant responded that he was doing okay. Appellant revealed he had
spoken to his mother and he would not make a statement to CID before consulting a
lawyer. First Sergeant ML then told appellant “that if he wanted to talk about it
‘professionally, or man to man,’ he [the 1SG] was available.” Appellant responded
by saying “thank you” and was quiet for “several minutes” during which time 1SG
ML checked email. After a “few more minutes” appellant and 1SG ML left the
office, got into 1SG ML’s truck and proceeded to CID. While en route to CID,
appellant spontaneously related that while he and his wife were “sexually
estranged,” he had “taken his daughter’s innocence.” Appellant said “he had not
penetrated his daughter but touched her in an inappropriate sexual” manner. First
Sergeant ML was shocked and exclaimed “What.” First Sergeant ML “took no other
action to explicitly question appellant” and continued driving. Upon arriving at
CID, 1SG ML reported appellant’s statement to CID.

       Appellant and 1SG ML did not have a “prior personal friendship.” First
Sergeant ML felt appellant “was an excellent duty performer.” First Sergeant ML’s
“initial inquiries towards the accused and his legal situation were motivated by a
genuine attempt to provide moral support for a soldier under his supervision.”



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HARTGROVE—ARMY 20100743

Among other things, 1SG ML “had a mild concern that if the soldier felt isolated he
would be at a higher risk for suicide, an outcome the 1SG sought to avoid personally
and professionally.”

                                         LAW

       “We review a military judge's ruling on a motion to suppress for abuse of
discretion.” United States v. Rodriguez, 60 M.J. 239, 246 (C.A.A.F. 2004) (citing
United States v. Monroe, 52 M.J. 326, 330 (C.A.A.F. 2000)). “In reviewing a
military judge’s ruling on a motion to suppress, we review fact finding under the
clearly-erroneous standard and conclusions of law under the de novo standard.”
United States v. Ayala, 43 M.J. 296, 298 (C.A.A.F. 1995). “Thus on 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.” Id. The abuse of
discretion standard calls “for more than a mere difference of opinion. The
challenged action must be ‘arbitrary, fanciful, clearly unreasonable, or clearly
erroneous.’” United States v. White, 69 M.J. 236, 239 (C.A.A.F. 2010) (quoting
United States v. Lloyd, 69 M.J. 95, 99 (C.A.A.F. 2010)).

       Article 31(b), UCMJ, provides “[n]o person subject to [the UCMJ] 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.” Statements obtained in violation of Article
31(b), UCMJ, are “involuntary” and, with certain exceptions not applicable here, are
not admissible into evidence against the accused. Mil. R. Evid. 304(a), 304(c)(3).

       “Article 31(b) contains four textual predicates. First, the article applies to
persons subject to the UCMJ. Second and third, the article applies to interrogation
or requests for any statements from ‘an accused or a person suspected of an
offense.’ 2 Fourth, the right extends to statements regarding the offense(s) of which
the person questioned is accused or suspected.” United States v. Cohen, 63 M.J. 45,
49 (C.A.A.F. 2006). Not all questions posed to suspects fall under the protection of
Article 31(b), UCMJ. “[W]here the questioner is not acting in a law enforcement or
disciplinary capacity, rights warnings are generally not required.” Id. at 59-50;
United States v. Duga, 10 M.J. 206, 210 (C.M.A. 1981). Questions “focused solely
on the accomplishment of an operational mission” are one example of this. Cohen,
63 M.J. at 49. However, if the questioner is performing official law enforcement or
disciplinary functions and he suspects the person being questioned of an offense, an
Article 31, UCMJ, warning is required. Id. When the questioning is done by a
2
 We assume without deciding that appellant was a suspect of some unspecified
offense for purposes of Article 31(b), UCMJ. Resolution of that issue is
unnecessary in light of our findings.


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HARTGROVE—ARMY 20100743

military supervisor in the suspect’s chain of command, the government must rebut a
strong presumption that such questioning was done for disciplinary purposes.
United States v. Loukas, 29 M.J 385, 389 (C.M.A. 1990). Evidence that the primary
purpose of the questioning is “administrative [or] operational” may overcome the
presumption that “a superior in the immediate chain of command is acting in an
investigatory or disciplinary role” when questioning a subordinate about misconduct.
United States v. Bradley, 51 M.J. 437, 441 (C.A.A.F. 1999). Whether the questioner
is acting in a law enforcement or disciplinary capacity and the individual’s
perception of the nature of the questioning are evaluated objectively in light of all
the facts and circumstances. United States v. Good, 32 MJ 105, 108 (C.M.A. 1991);
Cohen, 63 M.J. at 50.

       Interrogation “includes any formal or informal questioning in which an
incriminating response either is sought or is a reasonable consequence of such
questioning.” Military Rule of Evidence [hereinafter Mil. R. Evid.] 305(b)(2);
Rhode Island v. Innis, 446 U.S. 291, 301 (1980). This rule was broadly fashioned
“to thwart ‘attempts to circumvent warnings requirements through subtle
conversations.’” United States v. Ruiz, 54 M.J. 138, 141 (C.A.A.F. 2000) (quoting
S. Saltzberg et al., Military Rules of Evidence Manual 225 (4th ed. 1997)).
Furthermore, “interrogation involves more than merely putting questions to an
individual.” Id. In Innis, the Supreme Court examined the issue of what constitutes
an “interrogation.” 446 U.S. at 298. First, interrogation must “reflect a measure of
compulsion above and beyond that inherent in custody itself.” Id. at 300.
Interrogation consists only of express questioning or actions that are reasonably
likely to elicit an incriminating response. Id. at 301. “In each instance, the question
will be whether an incriminating response is sought or is the reasonable consequence
of the comment or remark.” United States v. Traum, 60 M.J. 226, 229 (C.A.A.F.
2004). This typically includes direct questions seeking incriminating information
but may also include “psychological ploys” such as minimization, attempts to
confuse or manipulate the person being questioned. Innis, 446 U.S. at 299.

                                    DISCUSSION

       The military judge’s factual findings are not clearly erroneous and are amply
supported by the evidence. Assessing all of the facts and circumstances surrounding
1SG ML's statement to appellant, we find that 1SG ML was not acting in an official
law enforcement or disciplinary capacity when he made his statement to appellant.
Additionally, we further find that 1SG ML's statement to appellant did not amount to
an interrogation or request for a statement about a suspected offense under Article
31(b), UCMJ. Rather, the statement at issue amounted to a broad offer of support to
a subordinate soldier in furtherance of 1SG ML's legitimate responsibilities of
ensuring the health, welfare, and morale of his soldiers. See Bradley, 51 M.J. at 437
(evidence that the primary purpose of the questioning is administrative or
operational may overcome the presumption that "a superior in the immediate chain



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of command is acting in an investigatory or disciplinary role”). Under the facts of
this case, the strong presumption that 1SG ML was acting in an official law
enforcement or disciplinary role because of his superior rank, has been overcome.
The military judge did not abuse his discretion in denying the defense motion to
suppress appellant’s statements to 1SG ML.

       Our superior court has interpreted Article 31(b), UCMJ, in a manner that
recognizes the difference between questioning focused on operational and
administrative matters and questioning intended to elicit information for use in
disciplinary proceedings. Cohen, 63 M.J. at 50; United States v. Swift, 53 M.J. 439,
446 (C.A.A.F. 2000). The broad responsibilities of a first sergeant include
maintaining the health, welfare, morale, and good order and discipline of
subordinate soldiers. Soldiers facing a criminal investigation or pending criminal
charges have any number of subjects to discuss with their command which do not
require a recitation or admission of offense specific facts for resolution. Subjects
such as future living arrangements, support obligations, available support resources,
and the career ramifications of an investigation are just some of such administrative
issues. Here, the evidence establishes, both subjectively and objectively, that at the
time of the 1SG's statement to appellant, he was not engaged in a law enforcement or
disciplinary role, but was acting solely to ensure the morale, safety, and welfare of a
subordinate soldier.

       First, the entirety of the exchange between 1SG ML and appellant establishes
that both knew CID was the entity conducting the criminal investigation and that
appellant was going to CID to be questioned about the allegations. First Sergeant
ML was not the investigator. Second, both statements made by 1SG ML in his office
pertain to appellant’s well-being. First Sergeant ML specifically inquired as to how
appellant was doing, after observing him visibly upset, and then he essentially
informed appellant he was available to listen if needed. Third, the brief nature of
the exchange, the lack of specificity in the offer of support, and the absence of
follow-on statements or questions demonstrate that 1SG ML was not acting in a law
enforcement or disciplinary capacity. Cf. Cohen, 36 M.J. at 48 (questioner admitted
his inquiry went farther than necessary when he asked appellant if he was involved
in negative behavior which would prevent him from going on leave); Swift, 53 M.J.
at 443 (after confronting appellant with evidence of bigamy, questioner asked
appellant to “explain his side of the story.”); Good, 32 M.J. at 107 (suspecting
appellant of committing larceny, questioner asked appellant about the location of the
missing checks). Lastly, appellant’s response to 1SG ML was an appreciative “thank
you,” which effectively ended the conversation until such time, if ever, appellant
desired to speak to 1SG ML.

      Additionally, the record is devoid of any evidence that 1SG ML's statement
was a pretext for law enforcement or disciplinary purposes. The military judge
found 1SG ML's testimony that his statement was "motivated by a genuine attempt



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HARTGROVE—ARMY 20100743

to provide moral support for a soldier under his supervision" to be credible. The
record amply supports this finding and we agree with it. First Sergeant ML’s
statement went no further than what was required to fulfill his administrative duties
and cannot reasonably be interpreted, under the totality of the circumstances, as a
means to deprive appellant of his codal or constitutional rights. See Bradley, 51
M.J. at 437; Loukas, 29 M.J at 389. Cf. Cohen, 63 M.J. at 51-52.

       We further find that neither 1SG ML's statement in the office, nor his
exclamation “what” in the truck, amount to an interrogation or a request for
information pursuant to Article 31(b), UCMJ. To constitute an interrogation, an
incriminating response must either be sought or is a reasonable consequence of such
questioning. Mil. R. Evid. 305(b)(2). The general nature of 1SG ML’s statement
did not require an immediate response or any response at all. It was a broad offer of
future support to which appellant, a senior non-commissioned officer (NCO),
responded with an appreciative and conclusory “thank you.” Appellant followed this
with silence, a silence that continued unchallenged as the office setting was left
behind. Appellant’s conduct evinces his understanding that an incriminating
response was not called for by 1SG ML’s statement and indicates the measure of
compulsion required for an interrogation did not exist in this case. We conclude that
an incriminating response was neither sought nor the reasonable consequence of 1SG
ML’s comment. See Traum, 60 M.J. at 229. Looking at the facts and circumstances
in this case, we agree with the military judge’s finding that 1SG ML's statement did
not amount to an interrogation or a request for a statement under Article 31, UCMJ.

                                   CONCLUSION

       On consideration of the entire record, the submissions of the parties, those
matters personally raised by appellant pursuant to Grostefon, 12 M.J. at 431, and
oral argument, we hold the findings of guilty and the sentence as approved by the
convening authority correct in law and fact.

      Accordingly, the findings of guilty and the sentence are AFFIRMED.

      Chief Judge BURCH and Judge HAIGHT concur.

                                       FOR
                                        FORTHE
                                            THECOURT:
                                                COURT:




                                       MALCOLM H. SQUIRES, JR.
                                        MALCOLM H. SQUIRES, JR.
                                       Clerk of Court
                                        Clerk of Court




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