                        UNITED STATES, Appellee

                                    v.

                   Michael B. GILBREATH, Corporal
                    U.S. Marine Corps, Appellant

                              No. 14-0322

                       Crim. App. No. 201200427

       United States Court of Appeals for the Armed Forces

                       Argued October 15, 2014

                      Decided December 18, 2014

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

                                 Counsel

For Appellant: Major John J. Stephens, USMC (argued);
Lieutenant Jared A. Hernandez, JAGC, USN.

For Appellee: Lieutenant Ian D. MacLean, JAGC, USN (argued);
Colonel Mark K. Jamison, USMC, and Brian K. Keller, Esq. (on
brief); Colonel Stephen C. Newman, USMC, and Major Tracey L.
Holtshirley, USMC.



Military Judge:   Stephen F. Keane



       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Gilbreath, No. 14-0322/MC


     Chief Judge BAKER delivered the opinion of the Court.

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

officer and enlisted members convicted Appellant of larceny in

violation of Article 121, Uniform Code of Military Justice

(UCMJ), 10 U.S.C. § 921 (2012).   He was sentenced to a bad-

conduct discharge, forfeiture of all pay and allowances, and

reduction to the lowest enlisted grade.   The convening authority

approved the sentence as adjudged, and the United States Navy-

Marine Corps Court of Criminal Appeals (CCA) affirmed.   United

States v. Gilbreath, No. NMCCA 201200427, 2013 CCA LEXIS 954, at

*12, 2013 WL 5978034 at *4 (N-M. Ct. Crim. App. Nov. 12, 2013).1

On Appellant’s petition, we granted review of the following

issue:

     WHETHER INDIVIDUAL READY RESERVISTS, SUBJECT TO PUNISHMENT
     UNDER THE UCMJ, ARE ENTITLED TO THE PROTECTIONS OF ARTICLE
     31(b) WHEN QUESTIONED BY SENIOR SERVICE MEMBERS ABOUT
     SUSPECTED MISCONDUCT COMMITTED ON ACTIVE DUTY.

     We also specified for review a second issue:

     WHETHER THE MILITARY JUDGE ERRED IN CONCLUDING THAT
     APPELLANT’S STATEMENTS WERE ADMISSIBLE UNDER ARTICLE 31(b),
     UCMJ, AND MILITARY RULE OF EVIDENCE 305.




1
  We heard oral argument in this case aboard United States Marine
Corps Base Camp Lejeune, North Carolina, 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. Gilbreath, No. 14-0322/MC


       Appellant was serving in the Individual Ready Reserve (IRR)

at the time he was questioned by Sergeant (Sgt) Nicholas

Muratori regarding a pistol missing from the unit armory.

Appellant did not receive Article 31(b), UCMJ, 10 U.S.C.

§ 831(b) (2012), warnings.   The questions presented in this case

are:   Does Article 31(b), UCMJ, apply in the case of an active

duty military questioner interacting with a member of the IRR?

If so, were Article 31(b), UCMJ, warnings required in the

context presented in this case?   The Government contends that

Article 31(b), UCMJ, cannot apply to the questioning of IRR

members by active duty military personnel because members of the

IRR are not subject to the UCMJ, as they are not listed within

Article 2, UCMJ, 10 U.S.C. § 802 (2012).   Further, the

Government argues, members of the IRR are not subject to the

sorts of military pressures of grade and rank which Article

31(b), UCMJ, was intended to address.

       We hold that the plain language of Article 31(b), UCMJ, as

informed by the legislative purpose behind the article, makes

the article applicable to members of the IRR.   Further, in the

context of this case, Sgt Muratori’s questioning of Appellant

required an Article 31(b), UCMJ, rights advisement because it

involved “(1) a person subject to the UCMJ, (2) interrogat[ing]

or request[ing] any statement, (3) from an accused or person

suspected of an offense, and (4) the statements regard[ed] the


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United States v. Gilbreath, No. 14-0322/MC


offense of which the person questioned [was] accused or

suspected.”   United States v. Jones, 73 M.J. 357, 361 (C.A.A.F.

2014) (footnotes omitted) (citing United States v. Cohen, 63

M.J. 45, 49 (C.A.A.F. 2006)).    This is also a case in which “the

military questioner was acting or could reasonably be considered

to be acting in an official law-enforcement or disciplinary

capacity.”    Id.   Accordingly, we reverse.

                              BACKGROUND

     Appellant enlisted in the Marine Corps in 2006 through the

Delayed Entry Program, began active duty service in 2007, and,

from June 2009 until the conclusion of his active duty service,

served as the armory custodian for Force Reconnaissance Company,

First Reconnaissance Battalion at Camp Pendleton, California.

Sgt Muratori served as the company training chief and

headquarters platoon sergeant for Force Company.   Sgt Muratori

was always senior to Appellant during his active duty service,

and described himself as Appellant’s “superior.”   Among other

things, Sgt Muratori testified that “if [Appellant] would have

[proficiency and conduct markings], I would be the one to

recommend [them].”    Appellant was also friends with Sgt

Muratori.    The two men shared a house off base along with their

wives.

     In January 2011, Appellant left active duty to fulfill the

remainder of his service obligation as a member of the IRR.


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United States v. Gilbreath, No. 14-0322/MC


Having served four years on active duty, he had an additional

obligation of four years in the IRR.    He returned home to

Oklahoma.   Appellant was issued Department of Defense Form 214,

which advised him that he was released from active duty service

and that “[w]hile a member of the Marine Corps Reserve, you will

keep the Commanding General, MOBCOM . . . informed of any change

of address, marital status, number of dependents, civilian

employment, or physical standards.     Subject to active duty

recall and/or annual screening.”

     According to Sgt Muratori’s sworn statement, in May 2011,

Captain (Capt) John Collins -- the Executive Officer for Force

Company -- “spoke to [him] about the screwed up paperwork”

regarding an M1911 pistol.   Sgt Muratori testified that “we did

not have the pistol and we were trying to find paperwork to

figure out where the pistol had gone.”    According to the sworn

statement, on May 5, 2011, Capt Collins “told [him] to find out

about the paperwork screw up with the 1911.”2

     Sgt Muratori began to look into the matter, and discovered

that the responsible platoon “hadn’t seen [the] weapon since

January 2010.”   He decided that Appellant, who had served as

armory custodian at the time, “seemed like a logical person to

2
  Capt Collins had deployed to Afghanistan at the time of trial,
and did not testify to clarify his exact words to Sgt Muratori.
Trial counsel phrased the conversation as Sgt Muratori being
“tasked to try to figure out what was going on with the
paperwork.”

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United States v. Gilbreath, No. 14-0322/MC


ask” about the pistol.   Sgt Muratori then directed junior

Marines in the armory to telephone Appellant and “not to accuse

him of anything, just to ask if he had any situation awareness

on where the [pistol] might be.   I didn’t want him to be on the

defensive.”

     The junior Marines left a message for Appellant, who

returned the phone call.   Lance Corporal Thomas Olson answered,

after which Sgt Muratori “took the phone and talked to

[Appellant.]”   Without identifying which pistol from the armory

he was discussing, Sgt Muratori informed Appellant that a pistol

was missing and asked if he knew about it.   Appellant

immediately knew which pistol Sgt Muratori was referencing, and

claimed that it “went up to Quantico to get destroyed.”    Sgt

Muratori considered this response to be a “dead give away,”

asked Appellant “to shoot straight with [him],” and “asked him

where the 1911 was.”   He told Appellant that “a lot of people’s

heads [were] on the line” because of the missing weapon.

     At this point, Appellant came clean and told Sgt Muratori

that he knew where the pistol was -- he had it.   Sgt Muratori

informed Appellant that the pistol would need to be returned.

He then immediately reported the substance of the conversation

to Capt Collins.   Sgt Muratori called Appellant again and, at

the recommendation of Capt Collins, “told him that he should




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United States v. Gilbreath, No. 14-0322/MC


turn himself in.”   Appellant then offered to return the pistol,

and reached an agreement with Sgt Muratori to do so.

     Sgt Muratori again reported the conversation to Capt

Collins, and advised him that Appellant had agreed to resolve

the issue by returning the pistol.      In response, Capt Collins

told Sgt Muratori that “the whole thing was going to be handled

another way.”   Sgt Muratori then called Appellant once more,

informing him that there was nothing for either of them to do

except to “stand by.”

     The Naval Criminal Investigative Service (NCIS) then

contacted Sgt Muratori “very quickly.”      Sgt Muratori gave a

sworn statement, and was asked whether he would agree to “meet

up with [Appellant] and get the pistol back.”      Sgt Muratori then

drove with NCIS special agents to an intended meeting spot in

Texas, during which time NCIS recorded additional phone calls

between Sgt Muratori and Appellant.      During these phone calls,

Appellant was not informed of any law enforcement involvement,

and Sgt Muratori assured him that “I might have to talk to

Captain Collins . . . . Other than that, I won’t talk to

anybody.”

     NCIS eventually became aware that Appellant had retained

counsel.    The special agents “made the decision, at that point,

to go overt with the operation.”       NCIS contacted Appellant, and

Appellant’s attorney -- now in possession of the pistol --


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United States v. Gilbreath, No. 14-0322/MC


contacted NCIS, offering to surrender the weapon.   NCIS

retrieved the pistol, and the Secretary of the Navy approved the

Marine Corps’s request to involuntarily recall Appellant from

the IRR to active duty for purpose of court-martial pursuant to

Article 2, UCMJ, and Article 3, UCMJ, 10 U.S.C. § 803 (2012).

At no time was Appellant provided with Article 31(b), UCMJ,

warnings by Sgt Muratori or NCIS.

     At trial, the defense moved to suppress “any statements of

the accused elicited in violation of his Article 31(b) rights

and the incriminating evidence derived from such statements.”

The defense motion cited this Court’s decisions, including

United States v. Swift, 53 M.J. 439 (C.A.A.F. 2000), to assert

that “[t]he case law and the legislative history of Article

31(b) reveal that [Appellant] deserves [its] protections.”

Quoting Swift, 53 M.J. at 445, the defense contended that

“Article 31(b) mandates rights warnings for anyone ‘suspected of

an offense’” under the UCMJ.   Moreover, the defense asserted

that “the Marine Corps [is] famed for producing highly obedient

individuals who exercise immediate obedience to orders and

immediate response to questions, factors that likely would not

be lost a mere [four] months after the end of active service.”

Thus, Appellant argued that the matter should be resolved as any

other motion based on Article 31(b), UCMJ, arising in the

military justice system.


                                 8
United States v. Gilbreath, No. 14-0322/MC


       The Government opposed the motion.   At the threshold, the

Government contended that “members of the IRR may not invoke the

protections of Article 31(b), UCMJ.”   In support of this

position, the Government cited United States v. Christian, 6

M.J. 624 (A.C.M.R. 1978), asserting that an individual “not

subject to the Uniform Code of Military Justice [under Articles

2 and 3] . . . could not invoke Article 31 thereof.”    Id. at

625.   The Government argued that “members of the IRR are immune

from the positional pressure that stems from an inquiry by a

senior officer,” and therefore not entitled to the protection of

Article 31(b), UCMJ.   Finally, even if Appellant was entitled to

Article 31(b), UCMJ, rights as a general matter, in the

Government’s view, no rights warning was required in this case

because Sgt Muratori “was not engaged in a disciplinary

investigation,” and “once he established that the accused was in

possession of the pistol, his single line of inquiry involved

determining how the accused was going to return the weapon.”

       The military judge accepted the Government’s argument and

denied Appellant relief.   On the question of applying Article

31(b), UCMJ, to an IRR member, the military judge concluded that

Appellant “was not subject to the UCMJ and thus not entitled to

the added protections of Article 31(b).”    Notwithstanding that

conclusion, the military judge also held that pursuant to United

States v. Duga, 10 M.J. 206 (C.M.A. 1981), “Sgt Muratori was not


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United States v. Gilbreath, No. 14-0322/MC

acting in a law enforcement or disciplinary function,” and

therefore was not required to warn against self-incrimination.

     On appeal, a majority of the NMCCA concluded that “[r]ead

literally, Article 31(b) has a broad sweep, and would apply to

the situation at hand, as Sgt [Muratori] was clearly ‘a person

subject to this chapter’ and was requesting a statement from the

appellant, whom he suspected of an offense.”   Gilbreath, 2013

CCA LEXIS 954, at *7-*8, 2013 WL 5978034, at *3.   However, the

CCA also noted that taking into account the purposes of the

article, members of the IRR are “far removed in time and place

from the coercive military environment contemplated by

Congress,” and have only “attenuated” ties to military

authority.   Id. at *10, 2013 WL 5978034, at *3.   Therefore,

while the article might literally apply, the CCA concluded:

     If Congress created Article 31(b) as “a precautionary
     measure,” meant to counteract the implicit coercion of the
     military command structure, that precaution is unnecessary
     in these circumstances, in which the appellant was far
     removed from any military environment that “might operate
     to deprive [him] of his free election to speak or to remain
     silent.” [United States v. Gibson, 3 C.M.A. 746, 754, 14
     C.M.R. 164, 172 (1954.)] In determining whether the
     protections of Article 31(b) extend to members of the IRR,
     who are themselves not subject to the UCMJ, “[j]udicial
     discretion indicates a necessity for denying its
     application to a situation not considered by its framers,
     and wholly unrelated to the reasons for its creation.” Id.
     at 170. We eschew a literal application of Article 31(b)
     and conclude that the military judge did not err in
     determining that the appellant was not entitled to the
     protections of Article 31(b).


                                10
United States v. Gilbreath, No. 14-0322/MC

Id. at *11-*12, 2013 WL 5978034, at *4 (first and third

alterations in original).   Having reached that conclusion, the

lower court declined to address the specific facts of Sgt

Muratori’s questioning.3

                            DISCUSSION

         THE GENERAL APPLICATION OF ARTICLE 31(b), UCMJ

     The question of whether Article 31(b), UCMJ, applies in the

circumstance of an active duty servicemember questioning a

member of the IRR, as a question of law, is reviewed de novo.

See United States v. Watson, 71 M.J. 54, 56 (C.A.A.F. 2012)

(citation omitted) (“[W]here the issue appealed involves pure

questions of law, we utilize a de novo review.”).

     Our analysis “begins with the language of the statute.”

Leocal v. Ashcroft, 543 U.S. 1, 8 (2004).    Article 31(b), UCMJ,

reads:

     No person subject to this chapter may interrogate, or
     request any statement from, an accused or a person

3
  Judge Fischer concurred in the result, finding that Appellant’s
status in the IRR was not dispositive. Gilbreath, 2013 CCA
LEXIS 954, at *12, 2013 WL 5978034, at *4 (Fischer, J.,
concurring in the result). Rather, Judge Fischer found that Sgt
Muratori was acting in an official law enforcement or
disciplinary capacity under the totality of the circumstances,
but Appellant did not subjectively perceive that he was doing so
pursuant to the second prong of Duga, 10 M.J. at 210 (applying a
subjective analysis), overruled in part by Jones, 73 M.J. at 362
(explicitly rejecting a subjective test). Therefore, applying
our prior case law without the benefit of Jones, Judge Fischer
found Appellant’s incriminatory statement to be admissible.
Gilbreath, 2013 CCA LEXIS 954, at *19-*20, 2013 WL 5978034,
at *6.

                                11
United States v. Gilbreath, No. 14-0322/MC

     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.

     What is immediately apparent from a plain text reading is

that Article 31(b), UCMJ, is a proscription that applies to the

questioner.   That is why our cases are primarily concerned with

“the questioner’s status and the military context in which the

questioning occurs.”   Cohen, 63 M.J. at 49.   Thus, the

appropriate analysis works forward from whether the facts and

circumstances require the questioner to comply with Article

31(b), UCMJ, not from the question of whether the suspect is

entitled to Article 31(b), UCMJ, rights.   See, e.g., United

States v. Gardinier, 65 M.J. 60, 62 (C.A.A.F. 2007) (“A military

investigator who interviews a suspect must provide that suspect

with the statutorily required rights warnings under Article

31(b), UCMJ.”).

     The enactment of Article 31(b), UCMJ, “reflect[ed] a

decision by the post-World War II Congress -- which included

many veterans familiar with the military justice system and its

relationship to military missions and operational requirements -

- that the unique circumstances of military service required

specific statutory protections for members of the Armed Forces.”

Swift, 53 M.J. at 445.   As illustrated by the testimony of Mr.


                                12
United States v. Gilbreath, No. 14-0322/MC

Felix Larkin, Associate General Counsel for the Department of

Defense, the drafters of Article 31(b), UCMJ, understood that

they were writing law to govern the questioning of suspects

within the military justice system, and enacting a proscription

that applies against the questioner:

     [Article 31(b), UCMJ,] covers a wider scope [than the
     Articles of War] in that you can’t force a man to
     incriminate himself beforehand -- not just on the trial, if
     you will. And this in addition, since it prohibits any
     person trying to force a person accused or one suspected,
     would make it a crime for any officer or any person who
     tries to force a person to do that.

Uniform Code of Military Justice: Hearings on H.R. 2498 Before a
Subcomm. of the H. Comm. on Armed Servs., 81st Cong. 914 (1949)
(statement of Felix Larkin, Ass’t General Counsel, Dep’t of
Defense), reprinted in Index and Legislative History, Uniform
Code of Military Justice (1950) (not separately paginated).

     The plain text of the statute also draws a distinction

between the questioner, who is a person subject to the UCMJ, and

the individual being questioned, who is “an accused or a person

suspected of an offense.”   Article 31(b), UCMJ.   This latter

provision directs itself to a person who is suspected of an

offense under the UCMJ, and is not addressed to the military

status of the person questioned.     It is not dissimilar from

language elsewhere in the UCMJ directed to any “person,” which

is directed toward the interaction of the military justice

system and external persons.   See, e.g., Article 48(a), UCMJ, 10

U.S.C. § 848(a) (2012) (military judges’ authority to punish


                                13
United States v. Gilbreath, No. 14-0322/MC

“any person” for contempt of court); Article 106, UCMJ, 10

U.S.C. § 906 (2012) (“[a]ny person” acting as a spy during a

time of war may be tried by general court-martial or military

commission); Article 121(a), UCMJ, 10 U.S.C. § 921(a) (2012)

(larceny under the UCMJ is committed by a person subject to the

UCMJ and involves the property of “another person”).4

     The reach of Article 31(b), UCMJ, however, is not

unlimited.   The text is limited to “interrogation and the taking

of ‘any’ statement.”   Cohen, 63 M.J. at 49 (discussing United

States v. Gibson, 3 C.M.A. 746, 752, 14 C.M.R. 164, 170 (1954)).

Thus, application of Article 31(b), UCMJ, involves a contextual

assessment of what is meant by “interrogation and the taking of

‘any’ statement” in the armed forces.    Id.

     Further, this Court has recognized that “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.”   Id.    As a result, this Court does


4
  In reforming the armed forces after World War II, Congress
contemplated that individual members might serve in the Ready
Reserve. See Armed Forces Reserve Act of 1952, 66 Stat. 481,
483 (requiring that each branch of the Armed Forces establish a
Ready Reserve comprised of units or members, or both). And
individuals have done so well before Congress established the
IRR as a matter of statutory law in Pub. L. 103-337,
§ 1661(a)(1), 108 Stat. 2663, 2973 (1994). See, e.g., No. S.
Rep. 96-197, at 102 (1979), reprinted in 1979 U.S.C.C.A.N. 1818,
1821 (describing the IRR as “the primary force of trained
individuals for replacement and augmentation in emergencies”).


                                14
United States v. Gilbreath, No. 14-0322/MC

not interpret Article 31(b), UCMJ, to reach literal but absurd

results, such as imposing a rights warning requirement in an

operational context where it could impede success of the

military mission.   United States v. Loukas, 29 M.J. 385, 389

(C.M.A. 1990).   Rather, this Court has long looked to the

purposes behind the article to inform its contextual

application.

     Specifically, Congress intended Article 31(b), UCMJ, to

address the subtle and not so subtle pressures that apply to

military life and might cause members of the armed forces to

feel compelled to self-incriminate.   The “unique circumstances

of military service require[] specific statutory protections for

members of the armed forces” from coercive self-incrimination.

Swift, 53 M.J. at 445.   In this regard, the CCA concluded that

IRR members are “far removed in time and place from the coercive

military environment contemplated by Congress,” and thus held as

a matter of law that Article 31(b), UCMJ, does not apply to

active duty military members questioning members of the IRR.

Gilbreath, 2013 CCA LEXIS 954, at *10, 2013 WL 5978034, at *3.

We disagree.   The IRR can be every bit as “coercive,” or perhaps

better put, respectful of military grade and rank as active duty

service.   This is evident when one considers the cultural

knowledge of military service and does not just assume

constructive knowledge of the law.


                                15
United States v. Gilbreath, No. 14-0322/MC

     As recent experience demonstrates, IRR members stand ready

to set aside civilian life and serve their country when called

to active duty.   See, e.g., John J. Kruzel, Marines to Alert

1,800 Individual Ready Reservists for Reactivation, Dep’t of

Defense News (Mar. 26, 2007),

http://www.defense.gov/news/newsarticle.aspx?id=32588.

Therefore, a member of the IRR:

     has not become a full-fledged civilian and his military
     status is such that he is in fact part and parcel of the
     armed services. . . . He is part of that body of men who
     [are] characterized as ready reserves, and he is subject to
     serve on active duty almost at the scratch of the
     Presidential pen. . . .

United States v. Wheeler, 10 C.M.A. 646, 655, 28 C.M.R. 212, 221

(1959) (Latimer, J.) (plurality).      In this case, Appellant had

just left active duty service and was still imbued with the

cultural norms of the Marine Corps, reflected by his immediate

response to calls from junior Marines in the Armory.

     Because an IRR servicemember may well feel compelled to

respond to an official military questioner without considering

any privilege against self-incrimination, we have no reason to

depart from our case law, supported by a plain reading of the

statute, its legislative history, and the fundamental purpose of

the statutory protection as expounded in Jones, Cohen, and

Swift.   Thus, we hold that the lower court erred in concluding

that as a matter of law the article does not apply in the case



                                  16
United States v. Gilbreath, No. 14-0322/MC

of an active duty military servicemember questioning a member of

the IRR.   Article 31(b), UCMJ, governs official questioning in

the military justice system, and absent any statutory command to

the contrary, an IRR member who is sufficiently integrated into

the military to qualify for court-martial jurisdiction is

sufficiently integrated so as to be entitled to the statutory

protection of the article.   See United States v. Stevenson, 53

M.J. 257, 259 (C.A.A.F. 2000) (provision of the Military Rules

of Evidence (M.R.E.) applies to all courts-martial absent

specific exclusion).

                   ARTICLE 31(b), UCMJ, APPLIED

     Having concluded that Article 31(b), UCMJ, is applicable in

the case of active duty military personnel questioning members

of the IRR, we turn to whether it applies in this case.   “‘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.’”   Jones, 73 M.J. at 360 (quoting

Swift, 53 M.J. at 446).   Under these standards, “a military

judge abuses his discretion if his findings of fact are clearly

erroneous or his conclusions of law are incorrect.”   United

States v. Ayala, 43 M.J. 296, 298 (C.A.A.F. 1995).

     This case involves a tasking from Capt Collins to Sgt

Muratori, the gravamen of which was to investigate a missing


                                17
United States v. Gilbreath, No. 14-0322/MC

weapon in the Marine Corps.   Our task is to determine whether

Sgt Muratori was acting in an official capacity, including law

enforcement or disciplinary capacity, when he questioned

Appellant, as distinct from acting in a manner that is “informal

or personally motivated.”   United States v. Brown, 40 M.J. 152,

154 (C.M.A. 1994).   In considering this question, we look to all

of the facts and circumstances surrounding the questioning,

including Sgt Muratori’s “authorities and responsibilities” as

related to Appellant.   Cohen, 63 M.J. at 51.

     The military judge in this case concluded that no rights

warning was required, because “[Sgt] Muratori was attempting to

clear up the discrepancy not get [Appellant] in trouble.      The

evidence demonstrated that [Appellant] perceived the

conversation to be informal and that [Sgt] Muratori would

attempt to resolve the issue on behalf of [Appellant] without

command involvement.”

     We disagree, and conclude that the military judge erred in

reaching this conclusion.   Sgt Muratori’s own preference to

avoid the military justice system is not dispositive.   As

discussed below, the appropriate analysis looks objectively to

the facts and circumstances of the questioning, not the

suspect’s subjective perceptions.    Jones, 73 M.J. at 362.

     The circumstances of this case demonstrate that Sgt

Muratori was acting in an official capacity when he questioned


                                18
United States v. Gilbreath, No. 14-0322/MC

Appellant.    Among other things, Sgt Muratori was acting at the

direction of his superior commissioned officer, Capt Collins.

He immediately reported the progress of the investigation to

Capt Collins.   And, he used elicitation tactics to discover more

information than Appellant initially volunteered.   In this

setting, we have no doubt that Sgt Muratori “was acting or could

reasonably be considered to be acting in an official law-

enforcement or disciplinary capacity” during the questioning.

Jones, 73 M.J. at 362.

     The Government’s response -- that Sgt Muratori was acting

in an administrative or operational capacity -- is not

persuasive.   Even if Sgt Muratori hoped to confine the matter of

a missing pistol to a wholly administrative issue to be resolved

outside the military justice system, a questioner’s

“administrative focus . . . does not ultimately answer the

critical question as to whether he was acting in an official law

enforcement or disciplinary capacity while also performing his

administrative duties.”   Cohen, 63 M.J. at 51.   The answer to

that question is found in reviewing the totality of the

circumstances, not in a bright-line distinction between law

enforcement or disciplinary duties and administrative duties.

     Perhaps most critically, in this case, Sgt Muratori’s

questioning regarded the whereabouts of a missing weapon in the

Marine Corps.   Sgt Muratori testified to the significance of


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United States v. Gilbreath, No. 14-0322/MC

this factor:   “[P]retty much everybody is very quick to throw

their hand up and say . . . I don’t want to deal with that

because it’s such a serious deal.”    This cultural understanding

is significant to our analysis and belies the notion that Sgt

Muratori and Appellant were merely engaged in an informal

discussion as friends.   As Appellant states in his brief, “There

is no such thing as a casual discussion about a missing or

stolen weapon in the Marine Corps.”

     An individual member of the Ready Reserve equipped with

this cultural knowledge might feel compelled to respond to

questions asked by a more senior NCO.   That fact is particularly

evident here, where Appellant incriminated himself in response

to Sgt Muratori’s questioning and invocation of military duty.

Sgt Muratori’s questioning therefore falls within the scope of

Article 31(b), UCMJ, and demonstrates the reason why Congress

legislated in this area.   See Swift, 53 M.J. at 445 (“In such an

environment, a question from a superior or an investigator is

likely to trigger a direct response without any consideration of

the privilege against self-incrimination.”).   Once Sgt Muratori

suspected Appellant of committing larceny, he was required under

Article 31(b), UCMJ, to advise him of his privilege against

self-incrimination before pursuing further questioning.

     The UCMJ and the M.R.E. provide that a statement obtained

without a rights warning is akin to an involuntary statement,


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and is inadmissible.   Article 31(d), UCMJ; M.R.E. 305(a); M.R.E.

304(a).   As we have previously noted, although the UCMJ has

undergone several revisions since 1951, Congress has kept this

“strict enforcement mechanism” intact.    Swift, 53 M.J. at 448-

49.   As a result, Appellant’s statement to Sgt Muratori was

inadmissible, and the military judge erred in denying the motion

to suppress.

      The question of whether Appellant was prejudiced by this

ruling turns on “(1) the strength of the Government’s case, (2)

the strength of the defense case, (3) the materiality of the

evidence in question, and (4) the quality of the evidence in

question.”   United States v. Kerr, 51 M.J. 401, 405 (C.A.A.F.

1999).    In this case, the Government’s case derived from

Appellant’s initial admission to Sgt Muratori.    There was no

other parallel chain of evidence.     Moreover, “[a] confession is

like no other evidence.   Indeed, the defendant’s own confession

is probably the most probative and damaging evidence that can be

admitted against him.”    United States v. Ellis, 57 M.J. 375, 381

(C.A.A.F. 2002) (quoting Arizona v. Fulminante, 499 U.S. 279,

296 (1991)) (internal quotation marks omitted).    There is no

question that Appellant’s confession constituted strong,

material evidence offered against him.    Under these

circumstances, the military judge’s error materially prejudiced




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Appellant’s substantial rights under Article 59(a), UCMJ, 10

U.S.C. § 859(a) (2012).

                            CONCLUSION

     We hold that Article 31(b), UCMJ, 10 U.S.C. § 831(b)

(2012), applies to active duty military members questioning

members of the IRR; as a result, depending on the facts and

circumstances of a particular case, an active duty military

questioner may be required to warn an individual member of the

Ready Reserve against self-incrimination.    We further hold,

applying the analysis from the United States v. Jones, 73 M.J.

357 (C.A.A.F. 2014), and United States v. Cohen, 63 M.J. 45

(C.A.A.F. 2006), line of cases, that such a warning was required

in this case.

     Accordingly, the decision of the United States Navy-Marine

Corps Court of Criminal Appeals is reversed.   The finding and

sentence are set aside.   The record of trial is returned to the

Judge Advocate General, and a rehearing may be authorized.




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