UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                            Before
                                 COOK, HAIGHT, and PENLAND
                                   Appellate Military Judges

                              UNITED STATES, Appellee
                                            v.
                       Private First Class HENRY C. HOEFT, IV
                             United States Army, Appellant

                                       ARMY 20140827

                              Headquarters, Fort Bliss
                          Michael J. Hargis, Military Judge
         Lieutenant Colonel Runo C. Richardson, Acting Staff Judge Advocate


For Appellant: Major Amy E. Nieman, JA; Captain Brian D. Andes, JA (on brief);
Lieutenant Colonel Jonathan F. Potter, JA; Major Amy E. Nieman, JA Captain Brian
D. Andes, JA (on brief on specified issue).

For Appellee: Colonel John P. Carrell, JA; Major A.G. Courie, III, JA; Major John
K. Choike, JA; Captain Scott L. Goble, JA (on brief on specified issue).


                                        13 August 2015
                                   ---------------------------------
                                   MEMORANDUM OPINION
                                   ---------------------------------

    This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

COOK, Senior Judge:

       A military judge sitting as a special court-martial convicted appellant,
consistent with his pleas, of making a false statement, larceny of military property of
a value of more than $500, and wearing unauthorized insignia, in violation of
Articles 107, 121, and 134, Uniform Code of Military Justice [hereinafter UCMJ],
10 U.S.C. §§ 907, 921, 934. 1 The military judge sentenced appellant to a bad-
conduct discharge, confinement for five months, and reduction to the grade E-1. The
convening authority approved the adjudged sentence.


1
  A specification and charge alleging appellant engaged in a conspiracy to commit
larceny and a specification alleging appellant solicited another soldier to commit an
offense were dismissed at trial.
HOEFT—ARMY 20140827

      Appellant’s case is now pending review before this court pursuant to Article
66, UCMJ. Appellant originally submitted the case on its merits. However, on 30
March 2015, we specified the following issue:

             IS THERE A SUFFICIENT BASIS TO CONCLUDE THE
             STATEMENT USED TO CONVICT APPELLANT OF
             MAKING A FALSE OFFICIAL STATEMENT WAS MADE
             IN RESPONSE TO QUESTIONS POSED BY HIS COMPANY
             FIRST SERGEANT WITHOUT RECEIVING REQUIRED
             ARTICLE 31(B) WARNINGS? IF SO, DOES THIS
             CONCLUSION CREATE A SUBSTANTIAL BASIS IN LAW
             OR FACT TO QUESTION THE PROVIDENCE OF
             APPELLANT’S GUILTY PLEA TO THE ARTICLE 107,
             UCMJ, CHARGE AND SPECIFICATION? SEE UNITED
             STATES V. SWIFT, 53 M.J. 439 (2000).

We have now received briefs from both parties and find the above captioned issue
merits both discussion and relief.

                                  BACKGROUND

        Appellant and Private E2 (PV2) Evan Musgrove were assigned as arms room
guards when military property from that area went missing. Suspecting appellant
and PV2 Musgrove had a role in the property’s disappearance, First Sergeant (1SG)
RC, appellant’s and PV2 Musgrove’s first sergeant, ordered the two soldiers into his
office. Once the two soldiers arrived, 1SG RC, without informing appellant of his
rights, 2 questioned both about the whereabouts of the missing property. Both
soldiers denied knowing where the property was. This denial led to both soldiers
being charged with making a false official statement, because both had played a role
in the property’s disappearance and subsequent concealment and were, therefore,
well aware of its current location. Although 1SG RC did not read appellant his



2
  There is no evidence in the record that 1SG RC informed appellant of his right
against self-incrimination under Article 31(b), UCMJ before questioning began. In
its brief, government counsel concedes that “given the facts that are reflected in the
record, [this] court could reasonably conclude that a rights warning was not given.”
In addition, we take judicial notice that in the companion case of United States v.
Musgrove, ARMY 20140777 (Army Ct. Crim. App. 10 Aug. 2015) (summ. disp.), we
determined that 1SG RC did not inform PV2 Musgrove of his Article 31(b) rights
before questioning him. Both PV2 Musgrove and appellant were questioned at the
same time and in the same place, 1SG RC’s office. Based on the foregoing, we find
that 1SG RC did not inform appellant of his Article 31(b), rights before questioning
him concerning the missing property.


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HOEFT—ARMY 20140827

Article 31(b) rights prior to questioning him, he did offer both soldiers “amnesty” if
the missing property was returned.

       During the providence inquiry, the military judge failed to recognize that 1SG
RC violated appellant’s Article 31(b) rights and that appellant could therefore have
potentially suppressed this statement. This issue is also not mentioned in either the
stipulation of fact or the pretrial agreement. The pretrial agreement also does not
include an offer by appellant to waive any motions.

                                 LAW AND DISCUSSION

                                  1.   Article 31,UCMJ

      Article 31(a), UCMJ, prohibits persons subject to the UCMJ from compelling
any person to incriminate themselves. To guard against this scenario, Article 31(b),
implements a privilege against self-incrimination by requiring soldiers to be
informed of certain rights before they are questioned. Specifically, no person
subject to the UCMJ may:

             [I]nterrogate, 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.

UCMJ art. 31(b).

       In the case before us, it is clear: (1) when 1SG RC questioned appellant, he
was a person subject to the code; (2) at the time 1SG RC questioned appellant he
suspected appellant of an offense; and (3) 1SG RC failed to inform appellant of his
rights under Article 31(b) before questioning him. In addition, our superior court in
United States v. Swift, 53 M.J. 439, 446 (C.A.A.F. 2000), further held that the
person conducting the questioning must be participating in an official law
enforcement or disciplinary investigation or inquiry.

       In regards to this latter requirement, it is equally clear 1SG RC was
conducting a disciplinary investigation or inquiry at the time he questioned
appellant. This is not only supported by the presumption identified in Swift that
questioning by a military superior in the “chain of command” is part of a
“disciplinary” investigation, but further buttressed by 1SG RC’s offer of “amnesty”
in exchange for the property’s return. Id. As such, we find 1SG RC violated




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HOEFT—ARMY 20140827

appellant’s rights under Article 31, UCMJ, through the aforementioned
interrogation. 3

       Article 31(d), UCMJ generally proscribes the use of a statement obtained in
violation of Article 31:

             No statement obtained from any person in violation of
             this article . . . may be received in evidence against
             him in a trial by court-martial.

                                2. Waiver and Forfeiture

       Our analysis, however, does not end with finding a violation of appellant’s
rights. To the contrary, we must now examine whether waiver applies. “[W]aiver is
the ‘intentional relinquishment or abandonment of a known right.’” United States v.
Gladue, 67 M.J. 311, 313 (C.A.A.F 2009) (quoting United States v. Olano, 507 U.S.
725, 733 (1993) (citation omitted). “When . . . an appellant intentionally waives a
known right at trial, it is extinguished and may not be raised on appeal.” Id. (citation
omitted). In addition, Rule for Courts-Martial 910(j) states that “a plea of guilty
which results in a finding of guilty waives any objection . . . insofar as the objection
relates to the factual issue of guilt of the offense(s) to which the plea was made.”
Military Rule of Evidence 304(d)(5) also addresses the concept of waiver,
specifically stating “a plea of guilty waives all privileges against self-incrimination
and all motions and objections under this rule with respect to that offense . . . .”
Government counsel argues, in part, that we should apply waiver in the instant case
and affirm appellant’s conviction.

      The concept of “forfeiture,” on the other hand, refers to scenarios where an
appellant fails to timely assert a right. Gladue, 67 M.J. at 313. In those situations,
we review for plain error. Id.

       Government counsel urges us to follow our sister court’s holding in United
States v. Williams, NMCCA 200400576, 2006 CCA LEXIS 34 (N.M. Ct. Crim. App.
16 Feb. 2006) (unpublished). Although similar to appellant’s case, the issue being
challenged in that case was whether the military judge had abused his discretion in
accepting Williams’ guilty plea to making a false statement because he failed to
determine whether Williams had been advised of his Article 31, UCMJ rights prior
to being questioned. Id. at *6. In the instant case, we have definitively concluded
that appellant was not informed of his Article 31 rights before he made the statement
that formed the basis of his false official statement charge.



3
 We need not address whether the offered “amnesty” would have been valid and
binding if appellant and his cohort had come clean when provided the opportunity.


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HOEFT—ARMY 20140827

       In further evaluating the issue before us, we find Swift to be particularly
illuminating. In that case, our superior court found that “[m]ore than 40 years have
passed since we observed in Price 4 that the express language of Article 31 did not
permit a false official statement prosecution to be based upon an unwarned
statement.” 53 M.J. at 448. Although our superior court noted that unwarned
statements, pursuant to Military Rule of Evidence 304(b), can be used “for purposes
of impeachment or otherwise to prove [appellant] testified falsely at trial,” the court
ultimately refused to allow the admission of an unwarned statement to support a
false statement prosecution unless appellant had “opened the door.”

       Based on our review of the record, there is no evidence appellant received any
guidance from either his own counsel or the military judge that 1SG RC had violated
appellant’s Article 31(b) rights and he therefore had the ability to suppress his
unwarned statement to 1SG RC. In applying waiver in the companion case of
Musgrove, ARMY 20140777, of which we have taken judicial notice, the military
judge identified this issue, reviewed it with PV2 Musgrove, and then established that
PV2 Musgrove was affirmatively waiving this right in exchange for a sentence
limitation in his pretrial agreement. In appellant’s case, this issue goes unaddressed
in the stipulation of fact, the pretrial agreement, and the providence inquiry. Under
the circumstances of this case, we decline to find waiver or enforce forfeiture.

                                  3. Abuse of Discretion

       The ultimate issue therefore becomes whether the military judge abused his
discretion in accepting appellant’s guilty plea. United States v. Inabinette, 66 M.J.
320, 322 (C.A.A.F. 2008). During a guilty plea inquiry, the military judge is
charged with determining whether there is an adequate basis in law and fact to
support the plea before accepting it.” Id. at 321–22 (citing United States v. Prater,
32 M.J. 433, 436 (C.M.A. 1991)). “The providence of a plea is based not only on
the accused’s understanding and recitation of the factual history of the crime, but
also on an understanding of how the law relates to those facts.” United States v.
Medina, 66 M.J. 21, 26 (C.A.A.F. 2008). We review a military judge’s decision to
accept a plea for an abuse of discretion by determining whether the record as a
whole shows a substantial basis in law or fact for questioning the guilty plea.
Inabinette, 66 M.J. at 322.

       In finding the military judge abused his discretion in appellant’s case, we are
struck by the rather obvious nature of the issue at hand. Both the stipulation of fact
and appellant during the providence inquiry made it clear that 1SG RC was more
interested in the return of the property rather than punishing appellant, and was
therefore offering “amnesty” in exchange for the property’s return. The use of the
word “amnesty” in this context should have served as a red flag for what then


4
    United States v. Price, 7 U.S.C.M.A. 590, 23 C.M.R. 54 (1957).


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HOEFT—ARMY 20140827

actually happened: 1SG RC questioned appellant and PV2 Musgrove without reading
them their Article 31(b) rights because he had already offered them de facto
immunity from prosecution. In addition, the ability of a different military judge to
spot this very issue when presented the same scenario supports our finding that this
issue should have been identified in appellant’s case. We also note the absolute
nature of our superior court’s holding in Swift, specifically the inability of a
prosecution for false statement to be based upon an unwarned statement. 53 M.J. at
448.

      We therefore hold the military judge abused his discretion in accepting
appellant’s guilty plea to the Specification of Charge IV and Charge IV by not
reviewing with appellant his ability to suppress his unwarned statement to 1SG RC
and the resultant inability of the government to successfully prosecute him for
making a false statement.

                                   CONCLUSION

       The findings of guilty of the Specification of Charge IV and Charge IV are set
aside and that specification and charge are DISMISSED.

      The remaining findings of guilty are AFFIRMED.

      We are able to reassess the sentence on the basis of the errors noted,
and do so after conducting a thorough analysis of the totality of circumstances
presented by appellant’s case and in accordance with the principles articulated by
our superior court in United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F.
2013) and United States v. Sales, 22 M.J. 305 (C.M.A. 1986).

       In evaluating the Winckelmann factors, we find no dramatic change in the
penalty landscape or exposure which might cause us pause in reassessing appellant’s
sentence. Second, the gravamen of appellant’s misconduct remains the same. In
addition, appellant was sentenced by a military judge and based on our experience
we are familiar with the remaining offenses so that we may reliably determine what
sentence would have been imposed at trial.

       After reassessing the sentence and the entire record, the approved sentence is
AFFIRMED. We find this reassessed sentence is not only purged of any error
but is also appropriate. All rights, privileges, and property, of which
appellant has been deprived by virtue of that portion of the findings set aside
by our decision, are ordered restored.




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HOEFT—ARMY 20140827

    Judge HAIGHT and Judge PENLAND concur.

                               FORTHE
                              FOR  THECOURT:
                                       COURT:




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




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