UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                              Before
                                  BURTON, HAGLER, and FLEMING
                                     Appellate Military Judges

                              UNITED STATES, A p p e l l a n t
                                            v.
                       Private First Class NATHANIEL E. ALLEN
                               United States Army, Appellee

                                      ARMY MISC 20180285

                           Headquarters, 7th Infantry Division
                   Timothy P. Hayes, Jr., Military Judge (arraignment)
                  Lanny J. Acosta, Jr., Military Judge (motions hearing)
                    Colonel Russell N. Parson, Staff Judge Advocate


 For Appellant: C a p t a i n C a t h a r i n e M . P a r n e l l , J A (argued); Colonel Tania M.
 Martin, JA; Lieutenant Colonel Eric K. Stafford, JA; Captain Allison L. Rowley,
 JA; C a p t a i n C a t h a r i n e M . P a r n e l l , J A (on brief); Colonel Steven P. Haight, JA;
 Lieutenant Colonel Eric K. Stafford, JA; C a p t a i n C a t h a r i n e M . P a r n e l l , J A ( o n
 reply brief).

 For Appellee: C a p t a i n B e n j a m i n A . A c c i n e l l i , J A (argued); Lieutenant Colonel
 Christopher D. Carrier, JA; Captain Patrick G. Hoffman, J A ; C a p t a i n B e n j a m i n
 J . W e t h e r e l l , J A ; C a p t a i n B e n j a m i n A . A c c i n e l l i , J A (on brief).


                                             14 August 2018

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                       MEMORANDUM OPINION AND ACTION ON APPEAL
                          BY THE UNITED STATES FILED PURSUANT TO
                      ARTICLE 62, UNIFORM CODE OF MILITARY JUSTICE
                   -------------------------------------------------------------------------

   This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

BURTON, Senior Judge:

      Appellee stands accused of one specification of attempted indecent visual
recording, two specifications of false official statement, and one specification of
indecent visual recording, in violation of Articles 80, 107, and 120c, Uniform Code
of Military Justice, 10 U.S.C. §§ 880, 907, and 920c (2016) [UCMJ]. This case is
before this court pursuant to a government appeal filed under Article 62, UCMJ.
ALLEN—ARMY MISC 20180285

       In its appeal, the government challenges the military judge’s decision to
suppress certain statements of the accused and the contents of his cell phone. We
find the military judge’s ruling is ambiguous and incomplete on several predicate
issues. Therefore, we must return the matter to the military judge for clarification
and action in accordance with the decision below.

                                   BACKGROUND

      The charged offenses involve allegations the accused recorded or attempted to
record soldiers in toilet stalls at the National Training Center (NTC), Fort Irwin,
California.

       On 12 April 2018, trial defense counsel filed a motion to suppress certain
statements of the accused to law enforcement and the contents of his cell phone. On
20 April 2018, the government filed its response. The parties consented to the
military judge considering the motions and attachments in making his ruling. The
parties also stipulated to certain facts in the motions.

       At the motions hearing, three different witnesses testified and the parties
entered into a stipulation of testimony for a fourth witness. Notably, the accused
himself testified. His testimony spanned over forty pages and addressed his
interactions with law enforcement on the night in question. Among other things, the
accused testified about: (1) how he felt physically that night, (2) his state of mind
when he waived his rights and provided a statement, (3) his state of mind when he
provided consent to search his cell phone, and (4) the effect of his prior unwarned
statements and other attending circumstances.

       On 9 May 2018, the military judge granted the defense motion to suppress. In
his ruling, the military judge addressed the voluntariness of the accused’s statements
to Criminal Investigation Command (CID) and the voluntariness of his consent to
search his cell phone and provide his numeric passcode (PIN). For his annotated
findings of fact, the military judge primarily adopted portions of the written
motions. The military judge’s remaining findings of fact involve three sentences,
none of which address the accused’s testimony at the motions hearing.

       In his ruling, the military judge first determined the accused’s statements to
CID were not voluntary based on the “totality of the circumstances.” Within his
analysis, the military judge did not list any circumstances besides the lack of a
cleansing statement. The military judge next determined the accused’s consent to
search his cell phone and provide his PIN was also not voluntary. For these issues,
the military judge again discussed the lack of a cleansing statement, but then briefly
cited to “further evidence,” to include the accused falling asleep in the interrogation
room after waiting to be interviewed for several hours. Following the military
judge’s ruling, the government filed a timely appeal under Article 62, UCMJ.


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ALLEN—ARMY MISC 20180285

                             LAW AND DISCUSSION

      As our superior court has explained, the standard of review we apply in an
appeal by the United States of a military judge’s suppression ruling is necessarily
deferential:

             “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 factfinding 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)).

             When reviewing matters under Article 62(b), UCMJ, [a
             service] court may act only with respect to matters of law.
             United States v. Gore, 60 M.J. 178, 185 (C.A.A.F. 2004).
             “When a court is limited to reviewing matters of law, the
             question is not whether a reviewing court might disagree
             with the trial court’s findings, but whether those findings
             are ‘fairly supported by the record.’” Id. (quoting United
             States v. Burris, 21 M.J. 140, 144 (C.M.A. 1985)). When
             reviewing a ruling on a motion to suppress, “we consider
             the evidence in the light most favorable to the prevailing
             party.” United States v. Cowgill, 68 M.J. 388, 390
             (C.A.A.F. 2010) (quoting United States v. Reister, 44 M.J.
             409, 413 (C.A.A.F. 1996)).

United States v. Baker, 70 M.J. 283, 287-88 (C.A.A.F. 2011). See also United States
v. Henning, 75 M.J. 187, 190-91 (C.A.A.F. 2016).

     However, in conducting such a review, “[t]he appropriate remedy for
incomplete or ambiguous rulings is a remand for clarification.” United States v.


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ALLEN—ARMY MISC 20180285

Kosek, 41 M.J. 60, 64 (C.M.A. 1994)). See also United States v. Lincoln, 42 M.J.
315, 320 (C.A.A.F. 1995) (explaining the appropriate remedy for incomplete or
ambiguous findings is to remand for clarification or for additional findings).

      For several reasons, we conclude such a remand is required in this case.

       First, the military judge’s annotated findings of fact are almost exclusively
rooted in adopting the written motions of both parties. As such, the military judge’s
ruling does not adequately address the additional testimony from the motions
hearing. The absence of such findings is problematic for our review, as we “may not
make findings of fact in this case.” Lincoln, 42 M.J. at 320.

       For example, in their briefs and at argument, the parties cite to the accused’s
testimony as either undercutting or buttressing the military judge’s ruling. This
testimony, however, is not explicitly addressed in the ruling itself. In essence, the
parties are asking this court to fill in the gaps resulting from the military judge’s
limited findings and analysis of the motions hearing. In line with our superior
court’s guidance, we decline to overstep our boundaries in this context.

       Second, it is ambiguous whether the military judge meant to compartmentalize
his “totality of the circumstances” analysis for the accused’s statements to CID.
Unsurprisingly, the parties disagree on this point. The government asserts the
military judge’s analysis of the accused’s statement stands alone and is not colored
by the later analysis of the accused’s consent to search his cell phone and providing
his PIN. By contrast, the accused asserts certain circumstances addressed in the
subsequent analysis should be logically imputed back to the initial analysis. Both
sides cite contextual language in the ruling to support these diametrically opposed
positions.

       Despite the parties adopting black-and-white positions over the military
judge’s apparent intent, we find this issue contains shades of gray. Simply put, it is
unclear to us whether the military judge meant to separate or conjoin portions of his
analyses. We are equally unsure over which, if any, of the adopted findings the
military judge applied to each issue. Again, in such circumstances, “[t]he
appropriate remedy . . . is a remand for clarification.” Kosek, 41 M.J. at 64.

       Third, our difficulty is magnified by the military judge’s statements that
reveal he may have erroneously ascribed categorical weight to the lack of a
cleansing statement. For example, in his analysis of the cell phone, the military
judge stated, “[W]here the government fails to provide the accused his rights
warning and the accused provides incriminating information, his subsequent consent
to a search is unlawfully obtained when no cleansing statement is provided.” This
reads like a categorical pronouncement of law, implying that the cleansing statement
is the single criterion the military judge considered for this issue. However,


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ALLEN—ARMY MISC 20180285

following this language, the military judge briefly discussed additional evidence
before determining the government failed to meet its burden under the “totality of
the circumstances.”

       Similarly, in his ruling regarding the accused’s statements to CID, the
military judge referenced the “totality of the circumstances,” but then said the rights
waivers were “tainted by the lack of a cleaning statement and thus not knowing and
voluntary,” and called the lack of a cleaning statement a “fatal flaw” in this case.
Taken together, these statements imply the military judge may not have actually
considered the totality of the circumstances, but rather applied the “cat-out-of-the-
bag” test, in which an unwarned statement fatally taints an accused’s later statement.

        To be clear, we are not suggesting that a military judge must discuss every
fact each time he examines the totality of the circumstances. But if a military judge
appears to rely almost exclusively on one circumstance—in this case, the lack of a
cleansing statement—it is difficult to assess how much weight he gave to other
relevant circumstances. Upon remand, the military judge can clarify the exact
weight associated with the lack of a cleansing statement in his analyses of these
issues. See, e.g., United States v. Olson, 74 M.J. 132, 134-35 (C.A.A.F. 2015)
(analyzing the military judge’s application of the six nonexclusive factors used to
assist in analyzing the voluntariness of a consent to search); United States v.
Brisbane, 63 M.J. 106, 114-16 (C.A.A.F. 2006) (analyzing the voluntariness of a
confession obtained subsequent to an earlier, unwarned statement).

       For the reasons above, we therefore hold that the military judge’s ruling is
ambiguous, incomplete, and insufficient for us to perform a proper review under
Article 62, UCMJ. *

                                   CONCLUSION

        The appeal of the United States pursuant to Article 62, UCMJ, is GRANTED.
The ruling of the military judge is vacated and the record of trial will be returned to
the military judge for action not inconsistent with this opinion. We make no ruling
as to the admissibility of the evidence in question.




*
  We expressly note that our sister court has countenanced the use of supplemental
rulings by military judges in cases where the government files a timely notice of
appeal. United States v. Catano, 75 M.J. 513 (A.F. Ct. Crim. App. 2015). In
approving this practice, our sister court pointed out, “[t]he Supreme Court has noted
the wisdom of allowing trial courts ‘the opportunity to promptly correct their own
alleged errors,’ as opposed to imposing added and unnecessary burdens on appellate
courts.” Id. at 516-17 (quoting United States v. Dieter, 429 U.S. 6, 8 (1976)).

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ALLEN—ARMY MISC 20180285

       The military judge may, sua sponte or on request of a party, permit additional
evidence and argument on any matter relevant to the suppression motion, to include
the scope of consent issue that was not part of this appeal. The military judge shall
make detailed findings of fact and conclusions of law to support his ruling. The trial
may then proceed or the United States may again pursue appeal under Article 62,
UCMJ, if appropriate.

      Judge FLEMING concurs.

 HAGLER, Judge, concurring:

       Because this court’s decision will allow the military judge to clarify his
 findings of fact and the basis for his decision, I concur with the majority opinion.
 But I write separately to explain why, in my view, the military judge’s ruling is at
 best ambiguous and what he might have done to help us resolve this appeal directly.

       This case puts us in an unusual situation, since we cannot find facts in an
 Article 62 appeal. If this was not such a case, I might be inclined to overturn the
 military judge’s ruling. I find scant support in the record for some of the military
 judge’s conclusions, which make no reference to the testimony given in the motions
 hearing. I might also find he erroneously applied the law.

       I recognize that we must give deference to the military judge’s ruling, but I
 find it hard to do so when he made no findings of fact reflecting the extensive, and
 often contradictory, motions hearing testimony in this case. The accused’s
 testimony alone accounts for 42 pages of the transcript, and his testimony is highly
 probative of the voluntariness of both his confession and his consent to search.

       For example, the accused testified on direct examination that he had already
 told law enforcement “everything,” yet it is plain from his two previous statements
 that his purpose was to deny all criminal misconduct. On cross-examination, the
 accused acknowledged he did not admit to any crime in these statements. Because
 the military judge did not address this testimony in his ruling, it is difficult to see
 how the accused’s prior statements tended to overbear his will and to coerce his
 confession to criminal conduct.

       Similarly, the accused testified on cross-examination that his previous
 statements did not impact his ultimate decision to confess. Yet the military judge
 ruled, “Because the accused believed his previous statements could be used against
 him, his subsequent waivers were tainted by the lack of a cleansing statement and
 thus not knowing and voluntary.” Again, the military judge’s findings of fact are
 silent on the motions hearing testimony, so it is difficult to see how the military
 judge weighed the accused’s testimony, or whether he even considered it, as part of
 his totality of the circumstances analysis.


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ALLEN—ARMY MISC 20180285

      Finally, I wholly support the use of supplemental rulings, as endorsed by our
sister court in Catano and mentioned in a footnote of the lead opinion. Had the
military judge issued a supplemental ruling with a more complete discussion, this
court may have been able to rule on this appeal directly, rather than returning the
case for clarification. Or the government may have elected not to appeal, as
appellate counsel acknowledged during oral argument. To me, the use of
supplemental rulings might affect a significant number of Article 62, UCMJ,
appeals and thereby promote efficiency in the system.

                                      FOR  THE
                                      FOR THE   COURT:
                                              COURT:




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




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