UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                                Before
                                    JOHNSON, BERG, 1 and KRAUSS
                                       Appellate Military Judges

                                  UNITED STATES, Appellant
                                                v.
                                  Sergeant ERIC W. COOPER
                                  United States Army, Appellee

                                       ARMY MISC 20110914

                   Headquarters, 3rd Infantry Division and Fort Stewart
                              Tiernan Dolan, Military Judge
               Lieutenant Colonel Michael K. Herring, Staff Judge Advocate


For Appellee: Lieutenant Colonel Peter Kageleiry, Jr., JA (argued); Lieutenant
Colonel Imogene M. Jamison, JA; Major Jacob D. Bashore, JA; Lieutenant Colonel
Peter Kageleiry, Jr., JA (on brief).

For Appellant: Captain John D. Riesenberg, JA (argued); Major Ellen Jennings, JA;
Captain Chad M. Fisher, JA; Captain John D. Riesenberg, JA (on brief).


                                           21 December 2011

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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     This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.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 attempted sodomy, aggravated sexual assault,
aggravated sexual contact, two specifications of abusive sexual contact, five
specifications of indecent conduct and five specifications of wrongful sexual contact
in violation of Articles 80 and 120, Uniform Code of Military Justice, 10 U.S.C. §§
880 and 920 [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 statements made by the accused to special agents of the

1
    Judge BERG took final action in this case while on active duty.
COOPER—ARMY MISC 20110914

Army Criminal Investigation Command (CID) on 23 September 2010. After hearing
evidence and argument on the matter, the military judge found that the accused’s
statements were taken in violation of Article 31(b) in that the CID agents failed to
“scrupulously honor” the accused’s right to remain silent and that the same
statements were involuntary and therefore suppressed. We find the military judge’s
findings of fact and conclusions of fact and law ambiguous and incomplete on
predicate issues relative to rights warnings issued subsequent to the accused’s
original invocation of the right to remain silent and the waiver of that right.
Therefore, we must return the matter to the military judge for clarification and
action in accordance with the decision below.

                                  BACKGROUND

       Suspected of sexually molesting his step-daughter, the accused was taken into
custody by military police very early on the morning of 23 September 2010 and
subsequently interviewed successively by two CID special agents over the course of
several hours. This interrogation was preceded by the accused’s invocation of his
right to remain silent but proceeded under what remains to be an ambiguous set of
circumstances relative to continuous communication between the accused and one
special agent and what may or may not have been a subsequent valid waiver of the
accused’s right to remain silent. Ultimately, the accused again invoked his right to
remain silent whereupon the second special agent who had taken over the
interrogation again proceeded to subject the accused to a brief series of questions.

        Defense properly moved to suppress the accused’s statements under Military
Rule of Evidence [hereinafter Mil. R. Evid.] 304. After hearing testimony from the
two special agents in question, a military police investigator, and the accused, and
receiving attachments to the defense motion, including a transcript of the Article 32
hearing, the military judge suppressed the accused’s statements. The military judge
found that CID agents failed to “scrupulously honor” the accused’s right to remain
silent, thus violating his rights under Article 31, UCMJ, and that the government
failed to establish by a preponderance of the evidence that the accused’s statement
was voluntary. 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 judge’s decision complaining, in essence, that the judge failed
to apply the proper law and legal analysis to the question under Article 31, and that
his separate conclusion that the accused’s statement was involuntary is clearly
unreasonable.
                    Military Judge’s Findings and Conclusions

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



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                At around 0340, [Special Agent S.] read the accused his rights
         using a DA Form 3881. During this time, the accused repeatedly
         asked what the allegations were, and what his daughter had said
         about him. [Special Agent S.] deferred answering, and correctly
         apprised him of what he was suspected using the front of the form.
         The accused read each of his rights on the back of the form,
         understood them, and unequivocally invoked his right to remain
         silent. [Special Agent S.] did not terminate the interview at that
         point, because near concurrent with his invocation of his right to
         remain silent, the accused again asked about the allegations against
         him. [Special Agent S.] responded that she could not or would not
         inform him of those allegations if the accused was unwilling to
         continue the interview. [Special Agent S.] did not leave the
         interview room or indicate unequivocally that the interview was
         terminated. In response to [Special Agent S.]’s statement, SGT
         Cooper indicated he was willing to “tell his side of the story,” and
         signified his agreement to talk to the CID by signing the DA 3881 at
         0352.

               After the waiver of rights, [Special Agent S.] interrogated the
         accused for about an hour[,] during which time the accused largely
         denied the allegations against him. . . .

         . . . She did not tell [Special Agent K.] that the accused had initially
         asserted his right to remain silent.

The judge’s essential conclusions on the matter are as follows:

                The court finds that SGT Cooper’s statement was taken in
         violation of Article 31(b) because [Special Agent S.] did not
         scrupulously honor SGT Cooper’s invocation of his right to remain
         silent. Two distinct reasons support this finding: 1) [Special Agent
         S.] did not break contact with SGT Cooper upon his invocation of his
         right to remain silent, and 2) [Special Agent S.] continued her
         interrogation of SGT Cooper upon the invocation. Each of these two
         reasons stands independently as a violation of Article 31(b).

         ....

         . . . The court finds that [Special Agent S.] should have known that
         her statement to the accused would lead, at a minimum, to SGT
         Cooper reconsidering his decision to remain silent. [Special Agent
         S.] should have known that her statement was inconsistent with her
         duty to “scrupulously honor” SGT Cooper’s invocation, in that her



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COOPER—ARMY MISC 20110914

         statement was reasonably likely to induce SGT Cooper to discuss the
         allegations against him. . . . The statement is precisely the sort of
         “subtle conversation” that Mil. R. Evid. 305(b)(2) was designed to
         thwart. United States v. Ruiz, 54 M.J. 138, 141 (C.A.A.F. 2000).

                             LAW AND DISSCUSSION

                                Standard of Review
       As the Court of Appeals for the Armed Forces recently reiterated, in United
States v. Baker, 70 M.J. 283, 287–88 (C.A.A.F. 2011) the standard of review we
apply in such a case 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, the lower
         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)).

       However, “[i]f the findings are incomplete or ambiguous, the ‘appropriate
remedy . . . is a remand for 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)).


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                     Article 31, UCMJ, and the Obligation to
                 ‘Scrupulously Honor’ the Right to Remain Silent

        The military judge properly addressed the issue surrounding the accused’s
invocation of the right to remain silent under Michigan v. Mosley, 423 U.S. 96
(1975) rather than under the right to counsel cases of Oregon v. Bradshaw, 462 U.S.
1039 (1983) and Edwards v. Arizona, 451 U.S. 477 (1981). 2 In Mosley, the Court
ruled that “the admissibility of statements obtained after the person in custody has
decided to remain silent” must be determined by looking to the totality of the
circumstances indicating whether the accused’s “‘right to cut off questioning’ was
‘scrupulously honored.’” Id. at 104. See Watkins, 34 M.J. at 345–46. One critical
factor in the analysis of this situation is the fact, nature, and efficacy of any
subsequent rights warnings and the extent to which any waiver of the right to remain
silent after such was valid under the circumstances. See Watkins, 34 M.J. at 346
(citing cases on the break in contact factor that nevertheless involved analysis of all
relevant factors including second set of rights warnings and waiver). See also
United States v. Thompson, 866 F.2d 268, 271–72 (8th Cir. 1989). Compare State v.
Hartley, 103 N.J. 252, 265–71 (N.J. 1986) (adopting a bright-line rule on fresh
warnings, analyzing Mosley, collecting cases, and offering a totality of
circumstances analysis in the alternative), and State v. Fuller, 118 N.J. 75 (N.J.
1990) (declining to extend that bright-line rule to situations where the accused
initiates dialogue with the authorities regarding the investigation), with United
States v. Thongsophaporn, 503 F.3d 51, 56–57 (1st Cir. 2007) (applying totality of
circumstances test, including second set of rights warnings as factor).

       The appellant points to the record of trial and asserts that a fresh set of rights
warnings was effectively rendered and that the accused knowingly, intelligently, and
voluntarily waived those rights. However, the judge’s findings are incomplete. He
makes reference to the accused signing a DA Form 3881 (rights warning form) and a
“waiver of rights” only. He does not make any findings as to the extent to which
Special Agent S. actually again warned the accused of his rights. We cannot find the
facts necessary to review the matter by reference to the record. See Baker, 70 M.J.
at 290; Lincoln, 42 M.J. at 320. The military judge must find whether and to what
extent the purported fresh set of warnings was rendered; and, in any event, the judge
must also conclude whether the accused’s waiver was knowing, intelligent, and
voluntary.

2
 Though it is correct to recognize that the Edwards/Bradshaw analysis relative to a
suspect’s initiation or re-initiation of communication with the police may overlap or
merge with a Mosley analysis, the ultimate question remains whether, under the
circumstances, the right to silence was “scrupulously honored.” See, e.g., United
States v. Seay, 60 M.J. 73, 77–78 (C.A.A.F. 2004); United States v. Watkins, 34 M.J.
344, 346 (C.M.A. 1992). See also, e.g., Christopher v. Florida, 824 F.2d 836 (11th
Cir. 1987).


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COOPER—ARMY MISC 20110914

       Complicating matters further, the military judge overstated the necessity of a
break in contact under the law (App. Ex. XLVII, p. 5). Though a break in contact
and time between interrogations is relevant under a totality of circumstances
analysis, it is not dispositive. See Watkins, 34 M.J. at 345–46. Under the totality of
circumstances analysis required under our law, no single factor is necessarily
dispositive but rather all are relevant for the judge to consider when deciding
whether under the particular circumstances of the case before him the accused’s
right to silence was scrupulously honored. Mosley, 423 U.S. at 104; Watkins, 34
M.J. at 345–46. See also, e.g., United States v. Hsu, 852 F.2d 407, 409–10 (9th Cir.
1988). That analysis must include findings as to the fact, nature, and quality of a
fresh set of rights warnings and whether the accused waived those rights in a
knowing, intelligent, and voluntary manner. This is especially true in a case where
the judge has already made certain credibility determinations but remained silent as
to the credibility of Special Agent S.’s testimony directly related to the purported
second set of rights warnings. 3

        Ambiguity also arises with respect to the judge’s reliance upon authority in
cases where rights warnings are not rendered at all (App. Ex. XLVII, pp. 4, 7). See
United States v. Ruiz, 54 M.J. 138 (2000). Despite findings establishing a waiver,
the judge’s conclusions are empty of any reference to the accused’s waiver of rights.
It is unclear whether the judge found a waiver of the original set of warnings only
and no fresh set of warnings at all, or whether the judge found the second set
incomplete or whether the judge found the waiver knowing, intelligent, and
voluntary. 4

       Restricted as we are by the standard of review, and similarly unable to deny
the government’s appeal on the ground that the prevailing party offered an
alternative basis to uphold the judge’s action, we return the record for action in
accordance with the preceding discussion. Lincoln, 42 M.J. at 320–22.

                                   CONCLUSION

      Because the military judge made incomplete findings of fact and conclusions
of law on the subject of a fresh set of rights warnings, and waiver of the right to

3
  The military judge found SGT Cooper’s testimony about the invocation of his right
to remain silent lacking credibility and the testimony of Special Agent S. on whether
he invoked the right initially or merely expressed no desire for a lawyer similarly
lacking credibility (App. Ex. XLVII, p. 7).
4
  It is important to note that the judge makes no reference to this waiver of rights in
the section of his ruling relative to voluntariness though recognizing that rights
warnings are a relevant factor in determining whether a statement is voluntary by
reference to Schneckloth v. Bustamonte, 412 U.S. 218 (1973).


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COOPER—ARMY MISC 20110914

remain silent in any event, we are constrained in our ability to review the judge’s
decisions on whether, under the circumstances, the accused’s right to remain silent
was scrupulously honored and whether, under the totality of the circumstances, the
accused’s statement was involuntary. The decision of the military judge is therefore
set aside. We make no ruling as to the admissibility of the statements in question
but rather return the record of trial to the military judge for reconsideration of his
ruling in light of the preceding discussion. The judge may, sua sponte or on request
of a party, permit additional evidence and argument on the question of the second
iteration of rights warnings, on the question of waiver of those rights, whether
warned once or twice, or any other legal issues, and make findings of fact and
conclusions of law thereon. The trial may then proceed or the government may
again pursue appeal under Article 62, UCMJ.

      Senior Judge JOHNSON and Judge BERG concur.


                                         FOR THE
                                        FOR  THE COURT:
                                                 COURT:




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




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