UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                            Before
                               JOHNSON, KRAUSS, and BURTON
                                   Appellate Military Judges

                               UNITED STATES, Appellant
                                            v.
                             Specialist TRAVIS J. GARDNER
                              United States Army, Appellee

                                    ARMY MISC 20110916

                 Headquarters, 3rd Infantry Division and Fort Stewart
                           Tiernan Dolan, Military Judge
                  Colonel Randall J. Bagwell, Staff Judge Advocate

For Appellant: Colonel Michael E. Mulligan, JA; Major Amber J. Williams, JA;
Captain Chad M. Fisher, JA; Captain John D. Riesenberg, JA (on brief & reply
brief).

For Appellee: Colonel Patricia A. Ham, JA; Lieutenant Colonel Peter Kageleiry, Jr.,
JA; Major Jacob D. Bashore, JA; Captain John L. Schriver, JA (on brief).


                                         31 January 2012

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                    MEMORANDUM OPINION AND ACTION ON APPEAL
                       BY THE UNITED STATES FILED PURSUANT TO
                   ARTICLE 62, UNIFORM CODE OF MILITARY JUSTICE
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  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

KRAUSS, Judge:

       Appellee is charged with one specification of desertion, three specifications
of aggravated sexual assault, and one specification of assault consummated by a
battery in violation of Articles 85, 120, and 128, Uniform Code of Military Justice,
10 U.S.C. §§ 885, 920, and 928 [hereinafter UCMJ]. The United States filed a
timely appeal with this court pursuant to Article 62, UCMJ, contending that the
military judge abused his discretion by suppressing a statement made by the accused
to a special agent of the Army Criminal Investigation Command (CID) on 30
September 2009. After hearing evidence and argument on the matter, the military
judge essentially found that the accused’s statement was taken in violation of Article
31(b), UCMJ, in that the CID agent failed to properly inform the accused of the
nature of the accusation and that the CID agent improperly induced the accused’s
GARDNER—ARMY MISC 20110916

waiver of his rights by deceit. In either case, therefore, the military judge
suppressed that statement. We find the military judge’s findings incomplete and
ambiguous on predicate issues relative to the nature, quality, and effect of the rights
warning; the knowledge and experience of the accused; and the consideration of
deception in the rights warnings under a totality of the circumstances analysis.
Therefore, we must return the matter to the military judge for clarification and
action in accordance with the decision below.

                                   BACKGROUND

       Suspected of sexually assaulting his sister-in-law, the accused was twice
questioned by CID on the matter. On 19 August 2009, CID Special Agent (SA) DB
advised the accused that he was suspected of rape, properly rendered rights warnings
in accordance with Article 31, UCMJ, and, after appellee waived his rights,
proceeded with interrogation. A second CID special agent, SA JZ, also participated
in the 19 August interrogation. Incident to that interrogation, the accused signed his
first written statement. On 30 September 2009, the same SA JZ sought to
interrogate the accused further on the matter of rape. He advised the accused of his
rights under Article 31 but, rather than describe the nature of the accusation as rape,
he instead advised the accused that he was suspected of false official statement and
sodomy. The accused again waived his rights and signed a second written statement.

       The defense moved to suppress the accused’s statements under Military Rules
of Evidence [hereinafter Mil. R. Evid.] 304 and 305. After hearing testimony from
SA JZ and the accused, and receiving attachments to the defense motion including
transcript of the Article 32 hearing 1, the military judge denied the motion to
suppress the 19 August statement but suppressed the 30 September statement. The
military judge found that SA JZ intentionally misled appellee about the nature of the
accusation, failed to properly advise the appellee, and improperly induced appellee
to waive his Article 31 rights. The military judge issued findings of fact and
conclusions of fact and law accordingly.

       The government, acting within its discretion under Article 62(a)(1)(B),
UCMJ, appealed the military judge’s decision complaining, in essence, that the
military judge abused his discretion by finding (1) that the accused was not oriented
to the nature of the accusation against him and (2) that the accused’s waiver was per
se invalid because SA JZ unlawfully induced the accused to waive his rights through
deception.




1
 Appellee correctly notes that only the summary of SA B’s testimony was admitted
for purposes of the motion despite the fact that the entire hearing transcript was
marked as an appellate exhibit.


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                    Military Judge’s Findings and Conclusions

      The military judge’s essential findings of fact on the subject are as follows:

                On or about 19 August 2009, SA [DB], Fort Stewart CID,
         brought the accused in for an interrogation. The accused read,
         understood, and then signed a DA Form 3881, indicating that he
         waived his Article 31(b) rights and was willing to undergo an
         interrogation about the offense of forcible rape. SA [JZ] was present
         during portions of this interrogation, and knew that the accused was
         suspected of rape.

                On or about 30 September 2010, SA [JZ] brought the Accused
         in for additional questioning. Despite suspecting the accused of
         rape, SA [JZ] advised the Accused that he suspected him of False
         Official Statement and Sodomy. The accused read, understood, and
         then signed a DA Form 3881, indicating that he waived his Article
         31(b) rights and was willing to undergo another interrogation.

The judge supplemented his findings of fact with the following:

                On or about 30 September 2010, SA [JZ] brought the Accused
         in for additional questioning. Despite suspecting the accused of
         rape, SA [JZ] advised the Accused that he suspected him of False
         Official Statement and Sodomy. SA [JZ] began the interrogation of
         30 September with the intent to question the accused about the
         offense of rape. SA [JZ’s] claim that he merely wanted to clarify
         portions of the accused’s 19 Aug 10 [sic] statement is not credible.
         SA [JZ] did not warn the accused that he was suspected of rape in
         order to mislead the accused into thinking he was no longer
         suspected of that offense.

                The accused was not provided sufficient information by SA
         [JZ] to make an informed and intelligent decision about whether to
         invoke or waive his Article 31 (b) rights.

      The judge also provided what he styled “conclusions of law and fact,” of
which the following are essential to the matter at hand:

                The accused freely and voluntarily agreed to be interrogated
         on 19 Aug 11[sic]. He indicated his consent to be interrogated by
         waiving his Article 31(b)/Miranda rights. AE IX. The interrogation,
         while conducted in an atmosphere that might inherently compel an
         individual to succumb to questioning, was conducted in a lawful



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GARDNER—ARMY MISC 20110916

        manner and only after the accused agreed to be interrogated. See,
        generally Miranda v. Arizona 394 [sic] US 436 (1966).

        ....

               SA [JZ], despite suspecting the accused of rape, and
        questioning the accused about that rape, told the accused that he
        suspected him only of making a false official statement and of
        sodomy. In so doing, he deceitfully indicated to the accused that any
        statement he might make would be about crimes of far less
        consequence than the crime of which he was actually suspected.
        Military law requires that, prior to questioning conducted by SA
        [JZ], the accused must be warned of the “general nature of the
        allegations, to include the area of suspicion that focuses the person
        toward the circumstances surrounding the event.” United States v.
        Simpson, 54 M.J. 282, 284 (CAAF 2000). Warning the accused of
        “sodomy” could have arguably focused the accused on the events at
        issue. The questioning agent need not list the crimes of which the
        accused is suspected with the precision of an attorney. United States
        v. Pipkin, 58 M.J. 358 (C.A.A.F. 2003) In this case, the court finds
        that the warning tendered by SA [JZ] was misleading. The warning
        issued by SA [JZ] misled the accused into thinking that his criminal
        culpability, if any, had been significantly reduced since his last
        encounter with the CID. Consequently, the accused did not have the
        information available to him to make an adequately informed
        decision about whether or not to invoke his rights. The court finds
        that rights warning by SA [JZ] at AE XI was inadequate, and that the
        statements made by the accused following the rights warning are
        inadmissible.

The judge also supplemented his conclusions of law and fact. His supplementary
conclusions essential to this discussion are:

              It is black letter law that trickery or deceit may not be used by
        law enforcement agents to induce a suspect to waive his rights under
        Miranda or Article 31(b). United States v. Erie, 29 MJ 1008, 1012
        (1990), citing United States v. McKay, 26 C.M.R. 307 (C.M.A.1958);
        Moran v. Burbine, 475 U.S. 412, 421 (1986); Oregon v. Elstad, 470
        U.S. 298, 307 (1985)

               The CID agent in this case used deceit to mislead the accused
        about the offense of which he was suspected. Despite understanding
        the rights as they were read to him, the accused was not provided
        sufficient information with which to make an intelligent decision



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GARDNER—ARMY MISC 20110916

         about whether to waive his rights. Consequently, the accused’s
         waiver of his rights on 30 September was not made with a “full
         awareness” of the “consequences of his decision.” United States v.
         Erie, 29 MJ at 1013, citing Moran v. Burbine, 475 U.S. at 421, 106
         S.Ct. at 1141.”

                            LAW AND DISSCUSSION

                                Standard of Review

       As the Court of Appeals for the Armed Forces recently reiterated in United
States v. Baker, 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). However, “[i]f the
findings are incomplete or ambiguous, the ‘appropriate remedy . . . is a remand for


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clarification’ or additional findings.” United States v. Lincoln, 42 M.J. 315, 320
(C.A.A.F. 1995) (quoting United States v. Kosek, 41 M.J. 60, 64 (C.M.A. 1994)).

                 Article 31, UCMJ, and the Requirement to Inform
                     a Suspect of the Nature of the Accusation

        When CID special agents want to obtain a statement from a suspect they must
first inform that suspect of the nature of the accusation the suspect is facing and
about which they want to speak. Indeed, this is an integral aspect of the rights
warning requirements in our system of military justice. UCMJ art. 31(b). This
means the CID special agent must inform the suspect “of the general nature of the
allegation, to include the area of suspicion that focuses the person toward the
circumstances surrounding the event,” United States v. Simpson, 54 M.J. 281, 284
(C.A.A.F. 2000) (citations omitted), so that the “warnings sufficiently [orient] [the
suspect] to the nature of the accusations against him.” Id. The question is not
whether the suspect is informed of any particular charge but whether the charge or
charges about which the suspect is informed sufficiently “focuses the person toward
the circumstances surrounding the event” under investigation, Id., “in light of the
surrounding circumstances and the manifest knowledge of [that suspect],” Id.
(quoting United States v. Davis, 8 U.S.C.M.A. 196, 198, 24 C.M.R. 6, 8 (C.M.A.
1957)). When a motion to suppress statements is made in this regard, then, military
judges must decide whether, under the totality of the circumstances of that particular
case, the government establishes by a preponderance of the evidence that CID
special agents, for example, complied with that rights warnings requirement under
Article 31(b). See, e.g., United States v. Pipken, 58 M.J. 358, 361 (C.A.A.F. 2003);
United States v. Nitschke, 31 C.M.R. 75, 78 (C.M.A. 1961).

      The judge’s findings and rulings in this case, however, are incomplete,
ambiguous, and unclear in this respect. He made no ruling on whether the
government met its burden nor did he make complete findings on the nature of the
charges warned or findings that evince a proper totality of circumstances analysis.
Instead, the judge apparently concluded that since one of the two charges warned,
sodomy, was misleading, the requirement to inform the appellee of the nature of the
accusation was not met.

        While it is true that the agent’s sodomy warning is relevant to the ultimate
question, it is not the only relevant fact necessary to resolve the matter. At the very
least, the judge must also make findings relative to the false official statement
warning and the accused’s “manifest knowledge” of the matter and the situation.
Namely, the judge must, at a minimum, include findings on whether the false official
statement warning related to any actual statement by the accused and, if so, which
statement. In addition, he needs to make findings on the extent to which the accused
understood that the subject of the second interrogation involved the sexual assault
situation he had previously discussed with CID, if at all.



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       Further confusing the Article 31(b) issue, the judge seemed to conclude that if
the suspect is led to believe he is suspected of offenses lesser than that for which he
is actually being interrogated, then the warnings are inadequate and the statement
must be suppressed. That is not necessarily the case and apparently led the judge to
make incomplete findings. The judge found: “[w]arning the accused of ‘sodomy’
could have arguably focused the accused on the events at issue”; and, “[t]he warning
issued by SA [JZ] misled the accused into thinking that his criminal culpability, if
any, had been significantly reduced since his last encounter with the CID.”
However, the question before the judge was not whether the accused understood the
degree of criminal culpability he might ultimately face. The question before the
judge was whether the information provided by SA JZ focused the accused on the
events at issue under the circumstances. Simpson, 54 M.J. at 284.

        Whether the sodomy warning was rendered as a result of intentional
deception, inadvertence, or incompetence is unimportant under the circumstances.
See United States v. Farley, 607 F.3d 1294, 1330 (11th Cir. 2010). The question is
whether the sodomy and false official statement warnings, rendered in the context of
the accused’s manifest knowledge of the situation, focused the accused towards the
circumstances surrounding the sexual assault under investigation at the time.
Simpson, 54 M.J. at 284; Davis, 8 U.S.C.M.A. at 198, 24 C.M.R. at 8. Because the
findings necessary to review that predicate issue are incomplete, as described above,
it is impossible for this court to properly review the matter. See Lincoln, 42 M.J. at
320; Kosek, 41 M.J. at 64.

        The judge also seems to conflate the issue of proper rights warnings with the
related but separate issue of resolving whether any waiver of rights was knowing,
intelligent, and voluntary. If the rights warnings were improper or inadequate, or if
the government fails to establish their validity, any statement subsequently taken
should be suppressed. UCMJ art. 31(d); Mil. R. Evid. 304(a), 304(c), and 305(c).
While it is correct to recognize that one consequence of such improper warnings may
be an invalid waiver, the question whether such waiver was valid requires a separate
totality of circumstances analysis. See Moran, 475 U.S. at 421; United States v.
Erie, 29 M.J. 1008, 1011 (A.C.M.R. 1990).

       Here, the military judge overstates the effect of trickery or deceit in the
process of obtaining a waiver. If trickery or deceit induces waiver by convincing the
suspect that anything he says will not be used against him, for example, or, if
trickery or deceit convinces the suspect that he must speak or otherwise suffer a
consequence that is false, then the waiver may very well be invalid. See Colorado v.
Spring, 479 U.S. 564, 575–76 (1987); United States v. McKay, 9 U.S.C.M.A. 527,
530–32, 26 C.M.R. 307, 310–12 (1958); Erie, 29 M.J. at 1012–13. In any event, the
trickery and deception constitute a circumstance to be considered under a totality of
circumstances test to resolve whether a waiver was valid in that particular case.
Erie, 29 M.J. at 1012–13; Farley, 607 F.3d at 1326–31. The ultimate question in



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this respect remains whether the suspect understood his right to remain silent – the
right to make no statement and to stop speaking whenever he wanted. See United
States v. Rogers, 47 M.J. 135, 137–38 (C.A.A.F. 1997) (citing United States v.
O’Brien, 3 U.S.C.M.A. 105, 109, 11 C.M.R. 105, 109 (1953)); United States v.
Kelley, 48 M.J. 677, 680–81 (Army Ct. Crim. App. 1998).

       Facts necessary to resolve this inquiry include, for example, whether the
accused understood that he could stop the interrogation when the subject turned to
rape and whether the accused was led to believe that anything he said in response to
questions about the rape could not be used against him in a criminal trial. While the
judge found that the accused understood his rights, and the accused testified that he
understood he could terminate the interview at any time, the judge nevertheless
concludes that the accused did not waive his rights “with a ‘full awareness’ of the
‘consequences of his decision.’” This conclusion apparently stems from the judge’s
conflation of the Article 31(b), UCMJ, question with the waiver question as
discussed above. The apparent contradiction inherent in this finding amounts to the
sort of ambiguity that requires clarification. We cannot glean from the judge’s
findings and conclusions whether he found the waiver invalid because the accused
believed he was no longer suspected of rape or whether he found the waiver invalid
because the accused believed anything he said about rape could not be used against
him in a criminal trial, for example. 2 Absent such findings we are again left with the
requirement to return the matter to the military judge for reconsideration in light of
the preceding discussion. Lincoln, 42 M.J. at 320–22.

                                   CONCLUSION

       Because the military judge made incomplete findings of fact necessary to
resolve whether the rights warnings rendered on 30 September 2009 sufficiently
oriented the accused to the factual events under investigation, and whether the
misleading nature of the rights warnings negated his understanding of his rights
under the circumstances, we are constrained in our ability to review the military
judge’s decisions on whether, under the circumstances, the accused was sufficiently
apprised of his rights under Article 31(b), UCMJ, and, if so, whether his waiver of
those rights was knowing, intelligent, and voluntary.



2
  This question, of course, ties in with the military judge’s responsibility to find
whether the accused was oriented toward the events in question rather than whether
the accused was advised of the particular charge or degree of criminal culpability he
might face. As discussed above, the extent to which the accused understood the
particular charge he may ultimately face is neither dispositive of the warnings
question nor of the waiver question. The extent to which the accused understood
that anything he said could be used against him at a criminal trial is an essential
issue on the question of waiver.


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       Accordingly, 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 statement in question. The judge may, sua
sponte or on request of a party, permit additional evidence and argument on the
question of the accused’s orientation to the nature of the accusations against him,
and on the validity of his waiver of rights under Article 31, or any other legal issues,
and make findings of fact and conclusions of law thereon. The trial may then
proceed or the United States may again pursue appeal under Article 62, UCMJ, if
appropriate.

      Senior Judge JOHNSON and Judge BURTON concur.


                                        FOR
                                         FOR THE COURT:
                                             THE COURT:




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




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