                        UNITED STATES, Appellee

                                    v.

                  James S. PIREN, Private First Class
                          U.S. Army, Appellant

                              No. 14-0453

                        Crim. App. No. 20110416

       United States Court of Appeals for the Armed Forces

                        Argued October 8, 2014

                       Decided January 15, 2015

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

                                  Counsel


For Appellant: Captain Robert H. Meek III (argued); Colonel
Kevin M. Boyle, Lieutenant Colonel Jonathan F. Potter, and Major
Amy E. Nieman (on brief).

For Appellee: Captain Daniel H. Karna (argued); Colonel John P.
Carrell, Lieutenant Colonel James L. Varley, and Major Steven J.
Collins (on brief).

Military Judge:    Wendy Daknis


       This opinion is subject to revision before final publication.
United States v. Piren, No. 14-0453/AR

     Judge ERDMANN delivered the opinion of the court.

     Private First Class James S. Piren was charged with one

specification of aggravated sexual assault and two

specifications of abusive sexual contact, in violation of

Article 120, Uniform Code of Military Justice (UCMJ), 10 U.S.C.

§ 920 (2006), and one specification of assault, in violation of

Article 128, UCMJ, 10 U.S.C. § 928.   Piren entered pleas of not

guilty to all charges and specifications.   Following

arraignment, the military judge granted a defense motion to

dismiss one specification of abusive sexual contact and the

assault charge as being multiplicious.

     A panel of officers sitting as a general court-martial

acquitted Piren of aggravated sexual assault, but found him

guilty of the remaining specification of abusive sexual contact.

The panel sentenced him to a reduction to E-1, forfeiture of all

pay and allowances, confinement for twelve months, and a bad-

conduct discharge.   The convening authority credited Piren with

fifteen days of pretrial confinement and approved the remaining

sentence as adjudged.   The United States Army Criminal Court of

Appeals (ACCA) summarily affirmed.    United States v. Piren, No.

ARMY 20110416, slip op. at 1 (A. Ct. Crim. App. Jan. 7, 2014).

     Military Rule of Evidence (M.R.E.) 611(b) provides that

“[c]ross-examination should be limited to the subject matter of

the direct examination and matters affecting the credibility of



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United States v. Piren, No. 14-0453/AR

the witness.”    We granted review to determine whether the

military judge abused her discretion when she overruled a

defense objection that the government’s cross-examination of

Piren exceeded the scope of direct examination.     We also granted

review to determine whether the military judge abused her

discretion when she denied a defense motion to suppress the

results of a DNA analysis.1    We hold that the military judge did

not abuse her discretion in either instance and therefore affirm

the ACCA.

                              Background

       While attending a Volkfest in Nuremberg, Germany, Piren

befriended SPC KW and her friends at a bar.      Later that evening,

KW and her friends found Piren passed out in the street due to

his intoxication.    They carried Piren back to KW’s hotel room

and placed him on the floor of the room.    KW, who was also

intoxicated, decided that she would go to sleep in her bed.

KW’s friends then left the hotel room with Piren passed out on

the floor and KW sleeping in the bed.

1
    We granted review of the following issues:

       I.    Whether the military judge abused her discretion
             by overruling the defense counsel’s scope
             objection during the government’s cross-
             examination of Appellant; and

       II.   Whether the military judge erred by denying the
             motion to suppress results of the DNA analysis.

United States v. Piren, 73 M.J. 355 (C.A.A.F. 2014) (order
granting review).

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United States v. Piren, No. 14-0453/AR

       At this point, Piren’s and KW’s versions of the events

diverge.    KW testified that she woke up in the hotel room with

Piren kissing her stomach inches away from her vagina.    She

screamed, “You’re not Zac,” kicked him, and told him to get out

of the room.2    Piren testified that he woke up at some point

during the night and KW invited him into her bed by holding out

her hand.    He asserts that the two began to kiss and that KW

masturbated him for about five minutes.    Piren testified that KW

then helped him remove her underwear and while he was kissing

her stomach she yelled “you’re not Zac.”    At that point, Piren

testified that he realized KW had thought he was her boyfriend

and offered to explain to KW’s boyfriend what happened, but KW

told him to leave.

       Piren testified that he then went to a nearby train station

where he went to sleep on a bench.    He was later awoken by his

roommate, Specialist Garthwait, who was being taken into custody

by the German police.    SPC Garthwait asked Piren to accompany

him to the police station.    Piren followed the German police to

the station, where officers began questioning Garthwait in

connection with the incident reported by KW.    Piren interrupted

the questioning and told police that he had been in a hotel room

with a girl, that they fooled around, and that she kicked him

out.    He also stated that she thought he was her boyfriend.    Two


2
    Zac was the name of KW’s boyfriend.

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United States v. Piren, No. 14-0453/AR

military police officers arrived at the police station and Piren

made the same statement to them.

     Piren was placed in handcuffs and the military police later

took him to the Vilseck Health Clinic, where he gave his consent

to a sexual assault examination.       He was examined by Lieutenant

Colonel Alumbaugh, a Sexual Assault Nurse Examiner.      Prior to

trial, Piren moved to suppress all the evidence derived from the

sexual assault exam, arguing that his consent to the exam had

been involuntary.   If the court found that his consent was

voluntary, Piren argued in the alternative that since he had not

received any Article 31, UCMJ, 10 U.S.C. § 831, warnings, any

statements he made to LTC Alumbaugh and all derivative evidence

from the sexual assault examination should be suppressed.

Following a hearing and arguments, the military judge held that

Piren had voluntarily consented to the sexual assault

examination.   The government had agreed that any statements

Piren made to LTC Alumbaugh during the examination should be

suppressed, but specifically reserved the right to use the

statements for impeachment purposes.      The military judge also

held that the results of the sexual assault examination did not

derive from any inadmissible statements Piren may have made to

LTC Alumbaugh.




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United States v. Piren, No. 14-0453/AR

                              Discussion

     I.   Did the military judge abuse her discretion in
          overruling defense counsel’s objection that the
          cross-examination exceeded the scope of direct
          examination?

     Piren argues that the military judge abused her discretion

by allowing the government to exceed the scope of his direct

testimony and question him as to matters that were excluded

pursuant to a pretrial motion.    As noted, the government did not

oppose Piren’s motion to suppress the statements he made to LTC

Alumbaugh, but reserved the right to use the statements for

impeachment purposes.

     Piren chose to testify at trial and, on direct examination,

his defense counsel solicited his version of the events up to

the point he left the train station with SPC Garthwait and the

German police.    During cross-examination, however, trial counsel

asked Piren about his statements to LTC Alumbaugh during the

sexual assault examination.    The defense objected to this line

of questioning as being outside the scope of direct examination

since the direct examination had not chronologically proceeded

beyond what occurred at the train station.   The military judge

overruled the objection.   Trial counsel then asked Piren

whether, during the sexual assault examination, he had told LTC

Alumbaugh that:   (1) KW kissed him, (2) KW kissed his ear, (3)

KW grabbed his penis, (4) that KW masturbated him for five




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United States v. Piren, No. 14-0453/AR

minutes.    Piren responded that he had told LTC Alumbaugh all

four of the statements.

     These statements were subsequently discussed by the parties

during an Article 39, UCMJ, 10 U.S.C. § 839, session.

Ultimately, the military judge determined that LTC Alumbaugh

could be recalled to impeach Piren’s testimony by contradiction.

However, she limited LTC Alumbaugh’s testimony to the four

statements that Piren testified on cross-examination he had told

LTC Alumbaugh.   During redirect, LTC Alumbaugh testified that

Piren had not told her any of the four statements.    Following

the presentation of evidence, the government stated that it

would be arguing impeachment by contradiction in its final

argument.

     This Court reviews a military judge’s admission of the

evidence for an abuse of discretion.    United States v. Dewrell,

55 M.J. 131, 136 (C.A.A.F. 2001).     Under that analysis, findings

of fact are reviewed for clear error and conclusions of law are

reviewed de novo.   United States v. Gallagher, 66 M.J. 250, 253

(C.A.A.F. 2008).    The abuse of discretion standard is strict,

calling for the challenged action to be “arbitrary, fanciful,

clearly unreasonable, or clearly erroneous.”    United States v.

McElhaney, 54 M.J. 120, 130 (C.A.A.F. 2000) (citations and

internal quotation marks omitted).




                                  7
United States v. Piren, No. 14-0453/AR

     Piren asserts that his direct testimony was chronologically

limited to events prior to his sexual assault evaluation and

that he had not testified about his statements to LTC Alumbaugh.

Piren also argues that because LTC Alumbaugh did not give him

any Article 31 warnings, any statements that he made were

inadmissible.   Finally, he asserts that once this cross-

examination was erroneously allowed, the government improperly

impeached his cross-examination testimony by presenting improper

rebuttal testimony.

     The government responds that Piren opened the door to his

statements to LTC Alumbaugh when he testified to his version of

events.   The government further argues that it is allowed wide

leeway in the scope of cross-examination of a defendant who

takes the stand, affording it a fair response to the defendant’s

claims and to impeach credibility.

     A military judge is given broad discretion to impose

reasonable limitations on cross-examination.      McElhaney, 54 M.J.

at 129.   However, “an accused who exercises his right to testify

takes his credibility with him to the stand, and it may be

assailed by every proper means.”       United States v. Gibson, 18

C.M.R. 323, 326 (C.M.A. 1955) (citations omitted).      This is

reflected in M.R.E. 611(b), which allows cross-examination into

“the subject matter of the direct examination and matters

affecting the credibility of the witness.”



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United States v. Piren, No. 14-0453/AR

        When the accused takes the stand, the privilege against

self-incrimination is waived.    M.R.E. 301(e).   We have held

that:

        [a]n accused is not required to testify in his defense
        and his failure to do so may not be the basis for any
        inference against him. But where he does elect to
        testify, as did this appellant, his credibility may be
        impeached like that of other witnesses. Hence, though
        he may not be cross-examined as to his general
        character, he may be so examined as to his
        credibility.

United States v. Tomchek, 4 M.J. 66, 71-72 (C.M.A. 1977).

        Piren’s arguments focus on the scope of the direct

examination and do not address the language in M.R.E. 611(b),

which authorizes cross-examination into “matters affecting the

credibility of the witness.”    When Piren elected to testify, he

placed his credibility at issue and the government’s cross-

examination as to the statements he had made to LTC Alumbaugh

was designed to explore that credibility.    The government could,

therefore, properly test Piren’s credibility on cross-

examination.

        When Piren subsequently testified on cross-examination as

to what he had told LTC Alumbaugh during the sexual assault

examination, his credibility remained at issue.    This opened his

testimony to impeachment by contradiction by having LTC

Alumbaugh testify to the contrary.     Impeachment by contradiction

is a line of attack that “involves showing the tribunal the

contrary of a witness’ asserted fact, so as to raise an


                                   9
United States v. Piren, No. 14-0453/AR

inference of a general defective trustworthiness” or that the

accused is capable of error.    United States v. Banker, 15 M.J.

207, 210-11 (C.M.A. 1983) (citations omitted).

     Although Piren’s statements were unwarned, M.R.E. 304(b)(1)

specifically provides for the use of unwarned statements for

purposes of impeachment by contradiction.3    Therefore, the

military judge did not abuse her discretion in overruling the

defense objection that the government’s cross-examination

exceeded the scope of direct examination and by subsequently

allowing impeachment by contradiction.

     II.     Did the military judge err in denying the defense
             motion to suppress the DNA evidence?

     Piren’s motion to suppress the DNA evidence is based on his

assertion that his consent to the sexual assault exam was not

voluntary.    Piren was transported to the clinic by military

police in handcuffs where he met Special Agent Harris, an Army

CID agent.    SA Harris instructed the military police to remove

Piren’s handcuffs and asked for Piren’s consent to submit to a

sexual assault examination.    Harris had started to go through

the consent form when Piren asked if he should get a lawyer.      SA

Harris told Piren that he would be advised of his legal rights

when he came to the CID office later that day.    Harris continued

3
  Due to recent changes in the Military Rules of Evidence, the
language regarding impeachment by contradiction, previously
found in M.R.E. 304(b)(1), now appears in M.R.E. 304(e)(1). See
Exec. Order No. 13,643, 3 C.F.R. 251 (2013) (implementing 2013
amendments to the Manual for Courts-Martial (2012 ed.)).

                                  10
United States v. Piren, No. 14-0453/AR

to read the consent form to Piren and told him where he should

place his initials and signature if he consented to the exam.

Piren completed the form, consenting to the sexual assault exam.

SA Harris testified that after Piren had signed the consent

form, he asked Piren if he was sure he wanted to do this and

that it was of his (Piren’s) own free will.4

     The military judge found that:   SA Harris advised Piren

that the sexual assault examination was voluntary; there was no

undue pressure; there was no unequivocal request for an

attorney, nor is one required when consenting to a search; after

the discussion with SA Harris, Piren could have stated that he

would not consent to the test until after he discussed it with a

lawyer; Piren thought he was going to be subjected to the sexual

assault examination regardless of whether he signed or not and

made a conscious choice to consent while he was at the clinic.

Balancing these factors, the military judge found that Piren had

made a conscious decision to submit to the test.


4
  Piren asserted that before he signed the form, Harris told him
that either they get the test over with or he would try to
obtain permission from command. Unbeknownst to Piren, another
CID agent had already obtained search authorization from a
military magistrate which was limited to obtaining Piren’s DNA
through a blood sample. The record shows the government
preferred to use Piren’s consent to a sexual assault examination
because it would result in more than just the collection of DNA
evidence, including the use of fluorescence to detect biological
fluids, and a collection of hair, fibers, and biological swabs.
SA Harris testified that he would have used the search
authorization for the DNA if Piren refused or revoked consent to
the sexual assault exam.

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United States v. Piren, No. 14-0453/AR

     A search may be conducted “with lawful consent.”     M.R.E.

314(e)(1). “Consent is a factual determination,” and a military

judge’s findings “will ‘not be disturbed on appeal unless

unsupported by the evidence or clearly erroneous.’”     United

States v. Vassar, 52 M.J. 9, 12 (C.A.A.F. 1999) (citation and

internal quotation marks omitted).    Courts evaluate

voluntariness with regard to consent based on the totality of

circumstances.    United States v. Wallace, 66 M.J. 5, 9 (C.A.A.F.

2008) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 226-27

(1973)).    Where the government has prevailed on a motion to

suppress, we review the evidence in the light most favorable to

the Government.    United States v. Kitts, 43 M.J. 23, 28

(C.A.A.F. 1995).   Both parties rely on the six nonexclusive

factors set forth in Wallace, 66 M.J. at 9 (the Wallace factors)

to determine whether the consent was voluntary.5

     (1)    The degree to which liberty was restricted:

     The military police transported Piren to the clinic from

the German police station in handcuffs.   He arrived at

approximately 5:00 p.m. and the clinic was closed for normal

business.   After Piren’s handcuffs were removed, Harris provided

Piren with a consent form for the sexual assault examination.

Piren did not ask if he could leave and Harris did not tell him

he was free to leave.   Under this factor Piren could have

5
  Wallace adopted the factors set forth in United States v.
Murphy, 36 M.J. 732, 734 (A.F.C.M.R. 1992). 66 M.J. at 9.

                                 12
United States v. Piren, No. 14-0453/AR

reasonably believed that his liberty was restricted to some

degree.

     (2)   The presence of coercion:

     Piren argues that the effect of spending twelve hours in

handcuffs and being interviewed by an armed CID agent was

impermissibly intimidating.   However, the record reflects that

Harris did not use any coercive tactics.   SA Harris twice

advised Piren that the sexual assault evaluation was voluntary

and he did nothing to create a pressured environment.   The

military judge found that while Piren thought that he was going

to be subjected to the sexual assault examination regardless of

whether he consented or not, Piren had made a conscious decision

to consent to the exam.

     The consent form that Piren signed is also instructive as

it expressly states:

     I have been requested by the undersigned USACIDC
     Special Agent to give my consent to a search of my
     person, premises, or property as indicated below. I
     have been advised of my right to refuse a search of my
     person, premises, or property. (If you do not give
     your consent, do not sign this form.)

Emphasis in original.

     In addition, within the signature block of the consent

form, there is an express statement that the form was signed

“freely, voluntarily and without threats or promises of any

kind.”




                                13
United States v. Piren, No. 14-0453/AR

     (3)    Suspect’s awareness of the right to refuse based on
            inferences of the suspect’s age, intelligence, and
            other factors:

     Piren was eighteen years old at the time of the incident.

There is nothing in the record as to whether this was Piren’s

first contact with law enforcement procedures, but there is no

indication that Piren was of below average intelligence.

     (4)    Suspect’s mental state at the time:

     Piren had a blood alcohol content of .00.    He may have been

lacking sleep given the timeline of events, but he did not

testify that he was impaired by a lack of sleep or for any other

reason.    There is nothing in the record which indicates that his

mental state was diminished.

     (5)    Consultation, or lack thereof, with counsel:

     Although access to counsel is relevant to the analysis,

there is no right to have an attorney before consent is granted.

United States v. Burns, 33 M.J. 316, 319-20 (C.M.A. 1991).

Piren did not unequivocally request an attorney and was told

that his rights would be explained to him later in the day.      The

military judge found that after the discussion with Harris,

Piren could have stated that he did not consent to the test

until he had discussed the test with a lawyer.    However, the

fact that his question regarding an attorney was deflected does

weigh in his favor.




                                 14
United States v. Piren, No. 14-0453/AR

     (6)    The coercive effects of any prior violations of the
            suspect’s rights:

     LTC Alumbaugh’s failure to give Piren Article 31(b) rights

before questioning him about the incident does constitute a

violation of Piren’s rights.    However, as that questioning

occurred after Piren signed the consent form, it was not a

“prior” violation and could not have had any coercive effect on

his decision to consent to the search.

                   Summary of the Wallace factors

     While Piren may have believed that his liberty was

restricted to some degree and while he did ask whether he should

get an attorney, those factors are not sufficient in this case

to invalidate his consent.   The remaining Wallace factors

support a finding that Piren’s consent was voluntary.   Once

Piren arrived at the clinic, he was told several times that his

decision to consent to the exam was voluntary and that he could

refuse.    The consent form that he reviewed and signed clearly

reiterated those rights.   Reviewing the evidence in the light

most favorable to the government, we conclude that the military

judge did not abuse her discretion in finding that Piren’s

consent was voluntary.

                               Decision

     The military judge did not abuse her discretion when she

allowed the government to cross-examine Piren about his

statements to LTC Alumbaugh during the sexual assault


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United States v. Piren, No. 14-0453/AR

examination and when she found that Piren had voluntarily

consented to the sexual assault evaluation.   The decision of the

Army Court of Criminal Appeals is therefore affirmed.




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