                         UNITED STATES, Appellee


                                       v.


                      Ina J. GUYTON-BHATT, Captain
                          U.S. Army, Appellant

                                 No. 01-0386

                          Crim. App. No. 9800418



       United States Court of Appeals for the Armed Forces

                      Argued November 28, 2001

                      Decided June 19, 2002


     CRAWFORD, C.J., delivered the opinion of the Court, in
which GIERKE, EFFRON, and BAKER, JJ., joined. SULLIVAN, S.J.,
filed an opinion concurring in the result.


                                    Counsel

For Appellant: Charles W. Gittins (argued); Colonel Adele H.
Odegard (on brief); Lieutenant Colonel David A. Mayfield, Major
Jonathan F. Potter, and Captain David S. Hurt.

For Appellee: Captain Braulio Mercader (argued); Colonel
Steven T. Salata, Lieutenant Colonel Denise R. Lind, and Major
Margaret B. Baines (on brief); Captain Jennifer A. Parker.

Military Judge:     Debra L. Boudreau


     THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Guyton-Bhatt, No. 01-0386/AR


     Chief Judge CRAWFORD delivered the opinion of the Court.

     Contrary to her pleas, appellant was convicted by officer

members at a general court-martial of conduct unbecoming an

officer by failing to pay a just debt and altering a promissory

note and lying about it, in violation of Article 133, Uniform

Code of Military Justice (UCMJ), 10 USC § 933.    Appellant was

sentenced to a dismissal, reprimand, and forfeiture of all pay

and allowances.    The convening authority approved the sentence

of a dismissal, reprimand, and forfeiture of $2,472 pay per

month for eighteen months.    The Army Court of Criminal Appeals

modified the findings on the grounds of factual insufficiency

and reassessed the sentence.    The Court of Criminal Appeals

disapproved the dismissal and further reduced the forfeitures

and modified the reprimand.    54 MJ 796, 806-08 (2001).

     We granted review on the following issue:

            WHETHER THE MILITARY JUDGE ERRED BY FAILING
            TO SUPPRESS APPELLANT’S JULY 1, 1997, ORAL
            STATEMENT TO CPT C, IN WHICH CPT C FAILED TO
            PROVIDE APPELLANT WITH ARTICLE 31, UCMJ,
            WARNINGS.

We hold that Captain (CPT) C violated Article 31, but

independent evidence supporting the conviction renders the error

harmless.




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                                FACTS

       In August 1996, after seeing a 1986 Jaguar advertised for

sale, appellant met with the owner, Sergeant First Class (SFC)

R.   They discussed the terms of buying the vehicle.     Appellant

told SFC R that she had pay problems and wanted to work out some

financial terms for buying the vehicle.      She agreed to buy the

vehicle for $8,000, paying $500 per month for eight months, and

the remainder, $4,000, when she settled on a house she hoped to

buy.    SFC R did not think there would be a financial problem

since appellant was a psychologist at Madigan Hospital, Fort

Lewis, Washington, and an officer.      The next day, at her

request, he gave appellant immediate possession of the Jaguar.

Later that week, she came to his office and gave SFC R $500 cash

as an initial payment on the Jaguar.

        In September 1996, appellant did not make any payment.

 SFC R left Fort Lewis on September 5, on emergency leave, and

after temporary deployment to Korea, returned to Fort Lewis in

mid-October.    When he returned, he called appellant about

payments, and she said she was having financial problems.      Like

September, SFC R did not receive any payments during October or

November.

       In November, SFC R again deployed to Korea.   He had the

Sergeant Major make an inquiry, and he called appellant himself.

Appellant told both that she was still having pay problems.


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When he returned from deployment in November, SFC R thought it

was time to put the contract in writing.     Appellant agreed and

signed a promissory note dated November 1, 1996.     The promissory

note, when originally executed by appellant, indicated that

appellant would not begin paying on the car until January 15,

1997.

       In December, SFC R received no payment from appellant.   He

contacted her again, and she said she was still having pay

problems.    She told SFC R that she had executed the promissory

note and set payments to begin in January, without consulting

him.    SFC R asked at that time if appellant wanted him to take

the vehicle back.    She said, “No ... you don’t want to sell me

the vehicle?”    SFC R did not press her about the promissory note

because he thought that when appellant’s pay issue was settled,

she would pay the total amount.

       In January 1997, SFC R had not received a copy of the

promissory note or any payment beyond the initial $500 one.

However, appellant said she was going to start paying on the

promissory note.    She did not.   SFC R made another inquiry in

January, and appellant said she was still trying to rectify her

pay.    He then asked for and received a copy of the promissory

note.

       Prior to giving SFC R a copy of the promissory note,

appellant changed the first payment due date from “1/15/97” to


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“4/15/97” and added the following sentence:    “Due to unexpected

expenses incurred on 1/5/97, to the tune of $550.00, to replace

starter and battery the monthly payments will have to be delayed

until 6/16/97.”   When SFC R noticed the changes to the document,

he was upset and called appellant.   She responded that there was

“nothing wrong with it [the promissory note]” and reiterated

that she would pay SFC R, but now not until June.    At trial, the

defense conceded that appellant had changed the document.

     While deployed in Canada for two months, SFC R did not

receive any payments.   He called appellant upon his return, and

she said that she still had financial problems.    SFC R did not

receive any payments in April, May, or June.    In June, SFC R

learned that the vehicle had been left on the side of the road.

He then asked appellant for all the legal documents, licensing,

and registration, so he could register the car.

     On July 1, 1997, SFC R took the promissory note to First

Lieutenant (1LT) C, a new legal assistance officer, for advice.

The document was dated November 1, 1996.   SFC R showed 1LT C the

promissory note and pointed out that appellant had changed the

starting date of the payments from January 15, 1997, to April

15, 1997.   SFC R told 1LT C that he did not agree to the change.




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      After examining the changes on the promissory note,1 1LT C

“reviewed the elements of the offense of forgery in the Manual

for Courts-Martial and determined that the accused may have

committed such an offense.”       He called appellant, but she was

unable to talk to him because she was with a client.             Later,

while talking to her, he thought the best way to help SFC R was

to pursue criminal action rather than civil action because she

had “committed a crime.”       He then contacted the trial counsel

for appellant’s unit.      Based on SFC R’s conversation with 1LT C,

SFC R followed up on the progress of the “criminal law” action.

      1LT C, now CPT C, testified that appellant admitted to

buying the car and owing the money to SFC R for nearly a year,

but was not going to pay.       According to CPT C, she told him,

“You couldn’t get blood from a stone.”          He also testified that

he reviewed the altered promissory note prior to calling

appellant.

                                 DISCUSSION

      Article 31(b), UCMJ, 10 USC § 831(b), states:

            No person subject to this chapter may
            interrogate, or request any statement from
            an accused or a person suspected of an
            offense without first informing him of the
            nature of the accusation and advising him

1
  Appellant was charged under Article 133 for, among other things, unlawfully
altering the promissory note. However, the Court of Criminal Appeals
excepted this language out of the specification for lack of factual
sufficiency, holding that appellant was not legally obligated to execute the
promissory note and was not prohibited by law from changing the terms prior
to providing SFC R with a copy. 54 MJ at 807.


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          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.

     The court below relied on United States v. Duga, 10 MJ 206

(CMA 1981), in which we applied a two-prong test to determine

whether a warning is required :

          [I]n each case it is necessary to determine
          whether (1) a questioner subject to the Code was
          acting in an official capacity in his inquiry or
          only had a personal motivation; and (2) whether
          the person questioned perceived that the inquiry
          involved more than a casual conversation.

Id. at 206.   The court noted that in applying this test,

          Article 31, UCMJ, warnings are not required to be
          given by: (1) a military doctor, psychiatric
          social worker, or nurse prior to asking questions
          of a patient for medical diagnosis or treatment;
          (2) an in-flight aircraft crew chief prior to
          questioning, for operational reasons, an
          irrational crewman about possible drug use; (3)
          military pay officials questioning a servicemember
          about a pay or allowance entitlement; or (4) a
          negotiator trying to end an armed standoff,
          provided the discussion was truly designed to end
          the standoff, rather than to obtain incriminating
          statements to be used against the suspect at
          trial. However, military appellate courts have
          also held that military defense counsel may not
          deliberately seek incriminating answers from a
          suspect unrepresented by counsel without first
          giving Article 31, UCMJ, rights warnings.

54 MJ at 802 (footnotes omitted).

     But this case is distinguishable.    CPT C, upon being shown

the promissory note, suspected forgery and felt appellant had

committed a criminal offense.     He did not even recommend SFC R


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pursue civil action because he felt criminal action through

appellant’s prosecutor was the best way to help SFC R.      CPT C,

using the authority of his position, called appellant to solicit

information on the matter.   Based on CPT C’s testimony, we

conclude he was acting as an investigator in pursuing this

criminal action.   As such, he was required to give an Article 31

warning.

     However, in the context of the court-martial, the error was

harmless beyond a reasonable doubt, as nearly all of the

information secured by CPT C in his conversation with appellant

was introduced at trial through independent sources.     See

generally Murray v. United States, 487 U.S. 533, 537 (1988).

     The victim’s testimony, documentary evidence, and

admissions by appellant establish that SFC R and appellant

agreed that she would buy his Jaguar for $8,000.   Because she

was having financial problems, she agreed to pay $500 a month

for eight months and then the remainder of $4,000 in a lump sum.

This agreement took place in August 1996, at which time

appellant took possession of the vehicle.   From August 1996

through June 1997, SFC R tried to collect from appellant, but

each time, she indicated that she was having pay problems.

Eventually, pursuant to SFC R’s request, appellant had a

promissory note notarized in November 1996.   The defense

conceded that after its notarization, appellant changed the


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United States v. Guyton-Bhatt, No. 01-0386/AR


terms of the promissory note.2        Appellant testified that she

eventually left the vehicle damaged on the side of the road.

She also never registered the vehicle in her name.            While she

was claiming to have pay problems, her financial records for

those many months were introduced and showed that she was

receiving bi-monthly pay, as well as various allowances and

loans.

      In closing, trial counsel referred to CPT C’s testimony

that appellant had stated, “You can’t get blood from a stone.”

This argument, however, was de minimis in the context of the

case.

                                  DECISION

      This decision of the United States Army Court of Criminal

Appeals is affirmed.




2
  However, the Court of Criminal Appeals was not persuaded beyond “a
reasonable doubt that SFC R did not acquiesce to the 16 June 1997 date for
resumption of payments, as reflected in the altered promissory note,” and
modified the specification accordingly. 54 MJ at 806-07.


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United States v. Guyton-Bhatt, No. 01-0386/AR


    SULLIVAN, Senior Judge (concurring in the result):



    I agree with the Court of Criminal Appeals, which applied all

this Court’s precedent to the granted issue in this case.    See

United States v. Swift, 53 MJ 439, 445-46 (2000); United States

v. Loukas, 29 MJ 385 (CMA 1990).    It said:



          The issue is not whether the questioner is
          participating in any official questioning,
          but rather whether the primary focus of
          the questioning relates to an official law
          enforcement or disciplinary investigation
          or inquiry.

United States v. Guyton-Bhatt, 54 MJ 796, 803 (Army Ct. Crim.

App. 2001).   I would affirm under United States v. Loukas, supra.



    I do not believe that United States v. Duga, 10 MJ 206 (CMA

1981), requires that every official conversation start with

Article 31 warnings.    United States v. Loukas provides a more

relevant approach to the instant case.    In Loukas, we held a crew

chief’s questioning of an accused about drug use during a plane

flight, even though he may have suspected drug use, was not a law

enforcement or disciplinary investigation and, thus, the crew

chief was not obligated to warn the soldier of his rights under

Article 31, UCMJ.    In the instant case, 1LT C was performing a

legal assistance duty to try to get appellant to pay his client

money for his car.    This conversation was official, but it was

not a law enforcement or disciplinary function.    Therefore, no
United States v. Guyton-Bhatt, No. 01-0386/AR

Article 31 rights warning was required.   See United States v.

Moses, 45 MJ 132 (1996); United States v. Raymond, 38 MJ 136 (CMA

1993); United States v. Loukas, supra; United States v. Fisher,

21 USCMA 223, 44 CMR 277 (1972).



    Finally, I would further note that the service appellate

court indicated that, at some point in the conversation with

appellant, 1LT C questioned him about forgeries.   United States

v. Guyton-Bhatt, supra.   It further stated that at this point,

the conversation may have become disciplinary, but no portions of

that conversation were admitted at trial.   Accordingly, I agree

with the Court of Criminal Appeals that this particular situation

need not be addressed.




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