                           UNITED STATES, Appellee


                                           v.


                     Craig L. SIMPSON, Senior Airman
                        U.S. Air Force, Appellant

                                    No. 00-0126

                             Crim. App. No. 32749


      United States Court of Appeals for the Armed Forces

                            Argued October 4, 2000

                            Decided December 8, 2000

     CRAWFORD, C.J., delivered the opinion of the Court, in
which SULLIVAN, GIERKE, EFFRON, and BAKER, JJ., joined.

                                       Counsel

For Appellant: Mr. Stephen A. Bamberger (argued); Colonel
Jeanne M. Rueth and Major Thomas R. Uiselt (on brief);
Lieutenant Colonel James R. Wise, Lieutenant Colonel Timothy
W. Murphy, and Major Maria A. Fried.

For Appellee: Captain Suzanne Sumner (argued); Colonel
Anthony P. Dattilo and Lieutenant Colonel Ronald A. Rodgers
(on brief); Captain Tony R. Roberts.

Military Judge:          James J. Blommers

THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION
United States v. Simpson, 00-0126/AF



    Chief Judge CRAWFORD delivered the opinion of the

Court.

     Contrary to his pleas, appellant was convicted by a

military judge at a general court-martial of committing

sodomy with a child, committing indecent acts with a child,

and dereliction of duty, in violation of Articles 125, 134,

and 92, Uniform Code of Military Justice, 10 USC §§ 925,

934, and 892, respectively.     Appellant was sentenced to a

dishonorable discharge, 4 years’ confinement, and reduction

to the lowest enlisted grade.       The convening authority

approved the sentence but suspended confinement in excess of

2 years for 4 years.   The Court of Criminal Appeals affirmed

the findings and sentence in an unpublished opinion.

     This Court granted review of the following issue:

     WHETHER THE TRIAL JUDGE ERRED BY NOT GRANTING
     DEFENSE COUNSEL’S MOTION TO SUPPRESS APPELLANT’S
     CONFESSION.

     The Court also specified the following issue:

     WHETHER THE MILITARY JUDGE AND THE AIR FORCE COURT
     OF CRIMINAL APPEALS ERRED TO THE SUBSTANTIAL
     PREJUDICE OF APPELLANT BY VIEWING SPECIAL AGENT
     CARROLL’S "POSITIVE CONFRONTATION” AS A
     CIRCUMSTANCE WHICH REMEDIED SPECIAL AGENT CARROLL’S
     OTHERWISE DEFECTIVE ARTICLE 31(b) ADVICE AS TO THE
     NATURE OF THE OFFENSES, RATHER THAN VIEWING THE
     “POSITIVE CONFRONTATION” AS CONDUCT DESIGNED OR
     LIKELY TO PRODUCE AN INCRIMINATING RESPONSE AFTER A
     DEFECTIVE ARTICLE 31(b) ADVICE AND APPELLANT’S
     RESULTING WAIVER OF HIS RIGHTS.




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United States v. Simpson, 00-0126/AF


     For the reasons that follow, we hold that the admission

of appellant’s statement was proper.    United States v.

Rogers, 47 MJ 135 (1997).

                            FACTS

     Appellant was the neighbor of AP, the 9-year-old

daughter of another Air Force member.    On December 6, 1996,

Special Agent Ovie Lee Carroll of the local Office of

Special Investigations (OSI) detachment learned of AP’s

allegation that appellant sexually abused her.    Later that

day, Agent Carroll observed an interview conducted between

the victim and Child Protection/Family Services.    After it

was determined that appellant should be interviewed the

following day, Agent Carroll obtained two search warrants to

search appellant and his residence.    On the search warrants,

Agent Carroll described the offenses as “Violation of UCMJ

Articles: 92 Failure to Obey Order or Regulation, 128

Assault, 134 Indecent Acts or Liberties with a Child, 125

Sodomy, and 120 Rape.”

     On December 7, 1999, Agent Carroll interviewed

appellant.   Prior to the interview, Agent Carroll orally

advised appellant of his rights under Article 31(b), UCMJ,

10 USC § 831(b), advised him of his right to counsel, and

told him that the matter he was investigating was “indecent

acts or liberties with a child.”    Appellant waived his

rights and indicated he “would be willing to answer



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United States v. Simpson, 00-0126/AF


questions and make a statement about the offense – or the

allegations.”

      During the interview, Agent Carroll informed appellant

that AP said she was at his house between Halloween and

Thanksgiving when appellant led her into his room by the

wrists, forced her to masturbate him and perform oral sex on

him, pointed a weapon at her, and showed her bullets in the

weapon during the incident.       In response to this “positive

confrontation,” appellant stated that AP voluntarily agreed

to participate in the indecent acts and sodomy.

      After the interview, Agent Carroll took a written

statement from appellant that memorialized his confession.

Appellant reviewed the statement for accuracy and was re-

advised of his rights.      Agent Carroll testified that the

second rights’ advisement was given because the agents

wanted to make sure that appellant understood his rights and

the nature of the offense.       Appellant then signed the

written statement.      At no time during the interview did

appellant indicate he did not understand his rights.*

      At trial, appellant filed a motion to suppress his

confession.    Denying the motion, the military judge

found Agent Carroll’s warning

         that they were investigating indecent acts or
         liberties with a child ... sufficient ...

*
  In light of our holding, we need not decide whether Agent Carroll’s
“positive confrontation” cured any defective Article 31(b) rights
warning.


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United States v. Simpson, 00-0126/AF


        to orient him [appellant] to the matter under
        investigation and the general nature of what
        that matter was ....

The Court of Criminal Appeals affirmed the trial judge’s

decision denying appellant’s motion to suppress.

     Appellant claims his statements were obtained in

violation of Article 31(b) because he was not informed of

the nature of the accusations against him.   Appellant

further asserts he was deceived into waiving his rights

because of the deficient Article 31(b) advice.   Appellant

argues that the agents’ failure to advise him of the known

offenses in addition to indecent acts with a child rendered

the waiver invalid.   Conversely, the Government argues that

the agents’ advice was proper under Article 31(b) since

appellant was made aware of the nature of the allegations

involved so as to orient him to the general nature of the

matter under investigation.

                          DISCUSSION

     Article 31(b) provides:

        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 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.




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United States v. Simpson, 00-0126/AF


     Generally, Article 31(d) prohibits the use of a

statement obtained from a person in violation of Article 31

as evidence against that person at a trial by court-martial.

See also Mil.R.Evid. 304(c)(3) and 305(c), Manual for Courts-

Martial, United States (1995 ed.).

     The Government has the burden of establishing compliance

with rights warning requirements by a preponderance of the

evidence.    Mil.R.Evid. 304(e).   An appellate court reviews the

denial of a motion to suppress a confession under an abuse of

discretion standard, United States v. Young, 49 MJ 265, 266-67

(1998), and accepts the judge’s findings of fact unless they

are clearly erroneous.    United States v. Ford, 51 MJ 445, 451

(1999).

     In this case, no dispute exists as to the relevant

facts.    At issue is whether the military judge erred as a

matter of law in denying appellant’s motion to suppress.      In

other words, the Court must decide if the omission of the

offenses of sodomy and assault in the rights’ advisement was

inconsistent with the applicable rights warning

requirements.    See United States v. Rogers, supra.   The

court applies a de novo standard of review in deciding this

issue.    Arizona v. Fulminante, 499 U.S. 279, 287 (1991);

United States v. Ayala, 43 MJ 296, 298 (1995).




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United States v. Simpson, 00-0126/AF


     The requirement in Article 31(b) that an accused or

suspect be informed of the nature of the accusation has been

the subject of many appellate cases.     In United States v.

Rice, 11 USCMA 524, 526, 29 CMR 340, 342 (1960), this Court

said:

        The purpose of informing a suspect or accused
     of the nature of the accusation is to orient him
     to the transaction or incident in which he is
     allegedly involved. It is not necessary to spell
     out the details of his connection with the matter
     under inquiry with technical nicety.

        In United States v. Davis, 8 USCMA 196, 198, 24 CMR 6,

8 (1957), this Court stated:

     Advice as to the nature of the charge need not be
     spelled out with the particularity of a legally
     sufficient specification; it is enough if, from what
     is said and done, the accused knows the general nature
     of the charge.... A partial advice, considered in
     light of the surrounding circumstances and the manifest
     knowledge of the accused, can be sufficient to satisfy
     this requirement of Article 31, supra.

     The precision and expertise of an attorney in informing

an accused of the nature of the accusation under Article 31

is not required.    See, e.g., United States v. Johnson, 20

USCMA 320, 324, 43 CMR 160, 164 (1971).     It is not necessary

that an accused or suspect be advised of each and every

possible charge under investigation, nor that the advice

include the most serious or any lesser-included charges

being investigated.    Nevertheless, the accused or suspect

must be informed of the general nature of the allegation, to

include the area of suspicion that focuses the person toward



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the circumstances surrounding the event.   United States v.

Huelsman, 27 MJ 511, 513 (ACMR 1988)(citing United States v.

Schultz, 19 USCMA 311, 41 CMR 311 (1970); United States v.

Reynolds, 16 USCMA 403, 37 CMR 23 (1966)).

     Among the possible factors to be considered in

determining whether the nature-of-the-accusation requirement

has been satisfied are whether the conduct is part of a

continuous sequence of events, United States v. Willeford,

5 MJ 634 (AFCMR 1978), whether the conduct was within the

frame of reference supplied by the warnings, United States

v. Quintana, 5 MJ 484 (CMA 1978), or whether the

interrogator had previous knowledge of the unwarned

offenses, United States v. Davis, supra.

     In this case, Agent Carroll verbally warned appellant

that he was being questioned about indecent acts or

liberties with AP.   The offenses of indecent acts and

sodomy are sufficiently related so that the warning oriented

appellant toward the nature of the accusations against him.

It would have been preferable for Agent Carroll to have

warned appellant of all the offenses that were listed on the

search warrants issued the day before the interview.

However, under the circumstances, we hold that the purpose

of providing appellant with Article 31(b) warnings was met,

and those warnings sufficiently oriented appellant to the

nature of the accusations against him.



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United States v. Simpson, 00-0126/AF


     The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




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