UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                            Before
                                MULLIGAN, FEBBO, and WOLFE
                                   Appellate Military Judges

                              UNITED STATES, Appellee
                                            v.
                        Private First Class WILLIE J. BOSTICK
                             United States Army, Appellant

                                       ARMY 20140880

           Headquarters, United States Army Maneuver Center of Excellence
                        Charles A. Kuhfahl, Jr., Military Judge
           Lieutenant Colonel John M. McCabe, Acting Staff Judge Advocate


For Appellant: Captain Katherine L. DePaul, JA (argued), Lieutenant Colonel
Charles A. Lozano, JA; Major Andres Vazquez, Jr., JA; Captain Katherine L.
DePaul, JA (on brief and reply brief).

For Appellee: Captain Linda Chavez, JA (argued); Colonel Mark H. Sydenham, JA;
Lieutenant Colonel A.G. Courie III, JA; Captain Linda Chavez, JA (on brief).


                                         29 March 2017
                                   ---------------------------------
                                   MEMORANDUM OPINION
                                   ---------------------------------

    This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

MULLIGAN, Senior Judge:

       On appeal, appellant asks us to set aside his convictions for sexual assault and
other assorted offenses because the military judge erred by not suppressing
appellant’s statement to an investigator and by granting a government peremptory
challenge of a female panel member without eliciting a sufficient gender-neutral
reason. 1 We resolve both issues against appellant.




1
 The court heard oral argument on the issue of appellant’s statement at Boston
University School of Law in Boston, Massachusetts.
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                                  BACKGROUND

       A panel with enlisted representation, sitting as a general court-martial,
convicted appellant, contrary to his pleas, of one specification of fleeing
apprehension, two specifications of sexual assault, and one specification of assault
consummated by battery, in violation of Articles 95, 120 and 128, Uniform Code of
Military Justice, 10 U.S.C. §§ 895, 920, 928 (2012, 2012 & Supp. IV 2014)
[hereinafter UCMJ]. The convening authority approved appellant’s adjudged
sentence to a dishonorable discharge, confinement for eight years, forfeiture of all
pay and allowances, and reduction to the grade of E-1. We now review this case on
appeal pursuant to Article 66, UCMJ.

                             LAW AND DISCUSSION

                       A. Suppression of Accused’s Statement

       On 24 April 2014, Ms. SB reported appellant sexually assaulted her the
previous evening. That same day, Special Agent (SA) IM from the U.S. Army
Criminal Investigation Command (CID) interviewed appellant. After several
denials, appellant eventually admitted to vaginally penetrating Ms. SB with his
penis. At trial, appellant’s counsel moved to suppress the videotape of this
interview, claiming SA IM improperly reinitiated the interrogation after appellant
invoked his right to counsel.

      After reviewing the recorded interview and hearing appellant’s testimony,
given for the limited purpose of the motion, the military judge made the following
findings of fact:

             1) On 24 April 2014, SA [IM] conducted an interview of
             the accused.

             2) SA [IM] advised the accused of his Article 31 rights
             using a [Dep’t of the Army] DA Form 3881.

             3) The accused acknowledged verbally that he understood
             his rights and he initialed next to each right on the DA
             Form 3881.

             4) At 24 [minutes and] 51 [seconds] into the videotaped
             interview, the accused state[d], “yes” in response to
             whether or not he want[ed] a lawyer.

             5) At 24:52 . . . the SA [IM] state[d], “You do want a
             lawyer.”

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             6) At 24:54 . . . the accused again state[d], “yes.”

             7) At 24:56 . . . the accused state[d], “Can you suggest
             things for me?”

             8) At 24:59 . . . SA [IM] twice state[d], “I can’t.”

             9) Between 25:02 and 25:13 . . . SA [IM] state[d], “Like I
             said, it’s totally up to you. If you would like to speak to a
             lawyer you are more than welcome to do that. If you
             would like to sit here and discuss it, you can sit here and
             discuss it as well.”

             10) At 25:22 . . . the accused state[d], “I still would like to
             speak to you.”

             11) At 25:25 . . . SA [IM] ask[ed] the accused, “Are you
             sure.”

             12) At 25:28 . . . the accused state[d], “yes.”

             13) At 25:45 . . . the accused signe[d] the DA Form 3881
             waiving his right to a lawyer and agreeing to speak with
             SA [IM].

       Based upon these findings of fact, the military judge concluded appellant
“initiated the communication after his invocation of counsel leading to the
subsequent waiver of said counsel.”

       In rendering this conclusion, the military judge first found appellant, having
been informed of his rights under Article 31, UCMJ, “made an initial invocation of
his right to counsel,” noting that Military Rule of Evidence [hereinafter Mil. R.
Evid.] 305(c)(2) normally renders any statements in response to interrogation after
such an invocation inadmissible. However, the military judge then cited to Mil. R.
Evid. 305(e)(3)(A)(i), which provides an exception to the exclusionary rule in Mil.
R. Evid. 305(c)(2) “where an accused subsequently waives the right to counsel after
invocation and ‘the accused or suspect initiated the communication leading to the
waiver.’” He further quoted the same exception as set forth in Edwards v. Arizona,
where the Supreme Court stated “. . . an accused . . . having expressed his desire to
deal with the police only through counsel, is not subject to further interrogation by
the authorities until counsel has been made available to him, unless the accused
himself initiates further communication, exchanges, or conversations with the
police.” 451 U.S. 477, 485 (1981).


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       At trial and on appeal, appellant asserted SA IM, in repeating appellant’s
answer in requesting counsel, attempted to persuade appellant to waive his right to
counsel and noted the SA IM repeated appellant’s answer on at least ten occasions
prior to his invocation of counsel. The military judge rejected appellant’s assertion,
stating:

             [T]his court will not unilaterally apply a nefarious motive
             to [SA IM’s] action of simply verifying the accused’s
             desire for counsel where the evidence suggests a
             reasonable and probable alternative. This court
             specifically finds [SA IM] did not re-initiate the
             interrogation by confirming the accused’s answer.

       The military judge concluded appellant’s question to SA IM—whether she
could “suggest things for [him]”—be a valid re-initiation of the interview. The
military judge found these circumstances “similar, if not identical” to those in
Oregon v. Bradshaw, where the Supreme Court found the accused’s action in asking
the police officer “. . . what is going to happen to me” after earlier invoking his right
to counsel constituted a valid re-initiation of the interrogation. 462 U.S. 1039, 1042
(1983).

       Finally, the military judge found appellant: verbally stated he understood his
rights, initialed those rights on a DA Form 3881, confirmed to SA IM he was “sure”
he wanted to talk to her without counsel, and confirmed he could stop questioning at
any time. The military judge concluded appellant voluntarily, knowingly and
intelligently waived his right to counsel. Accordingly, the military judge denied
defense counsel’s motion to suppress appellant’s statements made after the
invocation of counsel and later admitted at trial by the government.

       We review a military judge’s denial of a motion to suppress an accused’s
confession for an abuse of discretion. United States v. Chatfield, 67 M.J. 432, 437
(C.A.A.F. 2009) (citing United States v. Pipkin, 58 M.J. 358-360 (C.A.A.F. 2003)).
“The abuse of discretion standard is a strict one, calling for more than a mere
difference of opinion.” United States v. McElhaney, 54 M.J. 120, 130 (C.A.A.F.
2000). We will not upset a military judge’s findings of fact supporting a denial of a
motion to suppress an accused’s statement unless those findings are clearly
erroneous or unsupported by the record. Chatfield, 67 M.J. at 437 (citing United
States v. Leedy, 65 M.J. 208, 213 (C.A.A.F. 2007)). We review the military judge’s
conclusions of law supporting the motion to suppress de novo. Chatfield, 67 M.J. at
437.

      As an initial matter, we find the military judge’s findings of fact are clear and
supported by the record and we therefore adopt them. At issue here is whether


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appellant reinitiated the interview with SA IM after invoking his right to counsel and
whether his subsequent waiver of counsel was valid.

       The Fifth Amendment privilege against self-incrimination encompasses the
right to silence and the right to counsel during a custodial interrogation. Miranda v.
Arizona, 384 U.S. 436, 471-72 (1966). Where, as here, an accused in custody who:

             expresse[s] his desire to deal with the police only through
             counsel, is not subject to further interrogation by the
             authorities until counsel has been made available to him,
             unless the accused himself initiates further
             communication, exchanges, or conversations with the
             police.

Edwards, 451 U.S. at 484-85. When an accused invokes his right to counsel during
an interrogation, “officials may not reinitiate interrogation without counsel present.”
Minnick v. Mississippi, 498 U.S. 146, 153 (1990).

       “What constitutes an interrogation defies a simple definition.” United States
v. Young, 49 M.J. 265, 267 (C.A.A.F. 1998). An interrogation includes the “express
questioning or its functional equivalent,” to include “any words or actions on the
part of the police . . . that the police should know are reasonably likely to elicit an
incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 300-
01 (1980); see also Mil. R. Evid. 305(b)(2). “The definition of ‘functional
equivalent’ ‘focuses primarily upon the perceptions of the suspect, rather than the
intent of the police.’ It includes action ‘that the police should know is reasonably
likely to evoke an incriminating response from a suspect.’” Young, 49 M.J. at 267
(C.A.A.F. 1998) (quoting Innis, 446 U.S. at 300-01)).

       The fundamental purpose of the Edwards rule is to “[p]reserv[e] the integrity
of an accused’s choice to communicate with police only through counsel.” United
States v. Hutchins, 72 M.J. 294, 297-98 (C.A.A.F. 2013) (quoting Patterson v.
Illinois, 487 U.S. 285, 291 (1988)). While Edwards was designed to prevent police
from badgering a suspect, it did not impose a “blanket prohibition against a
comment by a police officer after invocation of rights.” Young, 49 M.J. at 267.

      As explained by the Supreme Court:

             [T]here are undoubtedly situations where a bare inquiry by
             either a defendant or by a police officer should not be held
             to “initiate” any conversation or dialogue. There are some
             inquiries, such as a request for a drink of water or a
             request to use a telephone, that are so routine that they
             cannot be fairly said to represent a desire on the part of an

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             accused to open up a more generalized discussion relating
             directly or indirectly to the investigation. Such inquiries
             or statements, by either an accused or a police officer,
             relating to routine incidents of the custodial relationship,
             will not generally “initiate” a conversation in the sense in
             which that word was used in Edwards.

Oregon v. Bradshaw, 462 U.S. 1039, 1046 (1983).

       Having personally watched the videotaped interview, to include SA IM’s
demeanor and manner of asking questions, we are well-satisfied that SA IM did not
intend to reinitiate questioning and did not reinitiate questioning. We, therefore,
concur with the military judge’s conclusions of law that SA IM did not reinitiate the
interrogation of appellant by confirming his answer that he wanted counsel. Having
reviewed the video of the interrogation, we find pursuant to Article 66(c), UCMJ, as
a matter of fact, when SA IM asked appellant a second time whether he wanted an
attorney, she did not act in a manner designed to overcome appellant’s invocation of
counsel. Nothing unique at this point of the interview suggests SA IM badgered
appellant or otherwise attempted to infringe upon his election for counsel. Viewing
the interview in its entirety, it is apparent SA IM repeated many of her questions
both before and after this point of the interview.

        We likewise concur with the military judge that appellant, in asking “Can you
suggest things for me” reinitiated the discussion with SA IM. On this point, we find
little light between this case and Bradshaw, where the defendant was found to have
reinitiated the conversation with police in asking “well, what is going to happen to
me now?” 462 U.S. at 1045-46. Appellant’s question of “can you suggest things for
me” was not an inquiry unrelated to his interview or the subject of SA IM’s inquiry.
Special Agent IM reasonably interpreted this request as related to the investigation,
as became apparent when she told appellant that he could speak with a lawyer or
instead discuss the investigation with her. This later clarification by SA IM was not
a re-initiation of the interrogation by SA IM, but rather a response to appellant’s
question that opened the door for continued questioning. Further, SA IM’s response
to appellant’s inquiry by twice saying “I can’t” clearly signaled to appellant SA IM
was not going to give appellant legal advice.

       Edwards does not prevent an accused from changing his mind and choosing to
speak with the police. Young, 49 M.J. at 267 (internal citation omitted). Here,
appellant agreed to speak with SA IM after he reinitiated the interrogation. Where a
violation of the Edwards rule has not occurred and appellant waives the right to
counsel, the inquiry becomes:

             whether a valid waiver of the right to counsel and the right
             to silence had occurred, that is, whether the purported

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             waiver was knowing and intelligent and found to be so
             under the totality of the circumstances, including the
             necessary fact that the accused, not the police, reopened
             the dialogue with the authorities.

Bradshaw, 462 U.S. at 1046 (quoting Edwards, 451 U.S. at 486, n.9)). Having
reviewed the record, we agree with the military judge appellant made a knowing,
voluntary, and intelligent waiver of his right to counsel. Appellant verbally and in
writing acknowledged his right to counsel. After indicating he wanted to speak with
SA IM, appellant assured her he wanted to speak to her. In addition to signing his
waiver of counsel on the DA Form 3881, appellant wrote “I am willing to speak
now.” In short, SA IM made painstaking efforts in both advising appellant of, and
ensuring he understood, his rights.

      Accordingly, we find the military judge did not err in denying appellant’s
motion to suppress his statement to SA IM.

                              B. Peremptory Challenge

       We next address the issue of whether the military judge erred when he granted
the government’s preemptory challenge of a female panel member during voir dire.
The panel initially consisted of five officer and five enlisted members. Three of
these members, Colonel (COL) PL, Captain (CPT) ES, and Command Sergeant
Major (CSM) NE, were female. During group voir dire, six members, to include
COL PL and CSM NE, answered yes when asked by defense counsel if they were
“aware of an incident where a person made false allegations of sexual assault[.]”
All six of these members were later called back for individual voir dire. On this
question, the members each explained their responses.

       Colonel PL stated that over the course of “a variety of command positions
having UCMJ authority there had been instances where investigations have
concluded that there was not substantive evidence to say that the accusation was
true.” She further clarified she never personally received a report from a
complaining witness, but rather the allegations proved false based on the admission
of the complaining witness or based on the findings of the investigating officer.

       Lieutenant Colonel (LTC) RS, a male, explained he served as an Article 32,
UCMJ, investigating officer on a case where the alleged victim came forward to say
the allegations of sexual assault she made were false.

      Lieutenant Colonel JS, a male, had earlier in his career served as a company
commander. At that time, a female claimed she was raped by four males. However,
a videotape uncovered during the investigation proved the allegation was false.


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       Lieutenant Colonel JP, also male, while assigned to the United States Military
Academy (USMA), had a female cadet in his unit who, as she later admitted,
fabricated a rape allegation after being accused of violating the honor code.

       Command Sergeant Major NE clarified she was generally aware as a senior
leader that false rape allegations occurred but did not know of a specific case and
never had a false allegation in any case on which she advised a commander.

       Master Sergeant RB, a male, explained that he was aware of false allegations
of rape from his time as a sexual assault response coordinator.

       After voir dire, the government did not challenge any members for cause.
Defense counsel challenged MSG RB and CPT ES for cause. The military judge
granted the former challenge, but denied the later. This result left nine members,
three of whom were women.

        The government exercised its peremptory challenge against COL PL. Defense
counsel asked the military judge to have the government provide a Batson 2
justification for the challenge. The special victim prosecutor (SVP) thereafter
explained that COL PL has “tak[en] prior allegations of sexual assault and believed
them to be false” which “may not be beneficial to the government’s case.” Defense
counsel, not satisfied with this explanation, pointed out that this same justification
for exercising the peremptory challenge against COL PL also applied to the male
members of the panel who had indicated on voir dire that they were aware of an
allegation of sexual assault that proved false.

       After a recess, the military judge granted the government’s peremptory
challenge against COL PL and noted the government had provided a gender-neutral
reason for exercising that challenge. Specifically, the military judge found the
government’s reasoning “[. . .] in that [COL PL] has taken previous allegations of
sexual assault and believe[d] some of them to be false to be a legitimate, a
reasonable and not a nonsensical reason.” The military judge determined, since a
sufficiently gender-neutral reason was provided to support that challenge, the
government was not also required to provide another reason for excusing COL PL
rather than one of the male members.

       “[A] military judge's determination that the trial counsel's peremptory
challenge was race-neutral is entitled to ‘great deference’ and will not be overturned
absent ‘clear error.’” United States v. Hurn, 58 M.J. 199, 201 (C.A.A.F. 2003)
(citing United States v. Williams, 44 M.J. 482,485 (C.A.A.F. 1996)).



2
    Batson v. Kentucky, 476 U.S. 70 (1986).

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        “Gender, like race, is an impermissible basis for the exercise of peremptory
challenge by either the prosecution or the military accused.” United States v.
Witham, 47 M.J. 297, 243-44 (C.A.A.F. 1997). Upon a timely objection by defense
at trial, the trial counsel when exercising a peremptory challenge must provide a
gender-neutral explanation for the challenge. United States v. Ruiz, 49 M.J. 340,
344) (C.A.A.F. 1998) (citing United States v. Moore, 28 M.J. 366, 368 (C.M.A.
1989)). This challenge may not be based on a reason that is “unreasonable,
implausible, or that otherwise makes no sense.” United States v. Tulloch, 47 M.J.
283, 287 (C.A.A.F. 1997).

       The situation presented in this case undoubtedly happens in courts-martial on
a regular basis: counsel, with only one peremptory challenge each, have to choose
between two or more members who may be, for legitimate reasons, less than ideal.

        While we would note counsel for both sides in such situations often exercise
their peremptory challenge on the most senior member, we will not delve into
possible underlying reasons for trial counsel’s challenge of COL PL. The
justification provided by trial counsel on the record that she had previously “tak[en]
prior allegations of sexual assault and believed them to be false” was not
unreasonable, implausible, or nonsensical. Simply, in prosecuting a sexual assault
charge, a trial counsel understandably should be concerned with a member who is
aware of cases involving false allegations of sexual assault might subconsciously
harbor a generalized skepticism of such claims.

       We do not share appellant’s view this case is similar or controlled by Hurn,
where our superior court rejected the race-neutral reason proffered by trial counsel
for challenging the only non-Caucasian member of a panel. 58 M.J. at 448. Hurn
was a panel with both officer and enlisted members. The government exercised its
challenge so that the panel did not fall below a quorum with sufficient enlisted
representation. Id. The Court of Appeals for the Armed Forces (CAAF) rejected
this reason because trial counsel failed to explain why the challenge was exercised
against the non-Caucasian officer instead of any of the Caucasian officers. Id. at
449.

       Hurn is easily distinguished from this case, because the stated challenge there
had nothing to do with the relative qualifications of the officer being challenged.
That is, stripping away the quorum issue, trial counsel failed to articulate a race-
neutral reason for challenging the non-Caucasian officer. Here, trial counsel had a
legitimate basis to challenge several members based upon their past experience or
knowledge of false claims of sexual assault. Having but one challenge, trial counsel
sufficiently articulated a gender-neutral reason to excuse COL PL. Having so
concluded, we find no error.



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                               CONCLUSION

    Finding no error, the findings of guilty and sentence are AFFIRMED.

    Judge FEBBO and Judge WOLFE concur.



                                   FOR
                                   FOR THE
                                       THE COURT:
                                           COURT:




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




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