      This opinion is subject to revision before publication


        UNITED STATES COURT OF APPEALS
                 FOR THE    ARMED FORCES
                        _______________

                      UNITED STATES
                          Appellee
                               v.
               Joshua D. LEWIS, Specialist
               United States Army, Appellant
                         No. 19-0109
                   Crim. App. No. 20180260
        Argued March 27, 2019—Decided May 30, 2019
              Military Judge: Douglas K. Watkins
   For Appellant: Captain Benjamin J. Wetherell (argued);
   Lieutenant Colonel Tiffany D. Pond, Major Jack D.
   Einhorn, and Captain Benjamin A. Accinelli.
   For Appellee: Captain Allison L. Rowley (argued); Colonel
   Steven P. Haight, Lieutenant Colonel Eric K. Stafford, and
   Captain Catharine M. Parnell.
   Chief Judge STUCKY delivered the opinion of the
   Court, in which Judges OHLSON, SPARKS, and
   MAGGS, joined. Judge RYAN filed a separate
   concurring opinion.
                       _______________

   Chief Judge STUCKY delivered the opinion of the Court.

   During the course of three separate interviews with
three different law enforcement officers assigned to the Fort
Hood Criminal Investigation Command (CID), Appellant
made a series of damaging admissions. The military judge
found that the statements were made involuntarily and
suppressed all three statements. We granted review to de-
termine whether the military judge abused his discretion in
suppressing Appellant’s third statement to law enforcement.
We hold that he did. Accordingly, we affirm the judgment of
the United States Army Court of Criminal Appeals (CCA).
                           I. Posture

   Appellant faces two charges arising from the sexual as-
sault of ZC, a child between the ages of twelve and fifteen.
On February 9, 2018, the convening authority referred one
             United States v. Lewis, No. 19-0109/AR
                     Opinion of the Court

specification of sexual assault of a child against Appellant,
and, in the alternative, referred one specification of sexual
assault. Articles 120b and 120, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. §§ 920b, 920 (2012).1
   This case comes to us as an interlocutory appeal. On
April 30, 2018, the military judge suppressed three incrimi-
nating statements Appellant made to CID as well as all evi-
dence derived therefrom on the grounds that the statements
were made involuntarily under Military Rule of Evidence
(M.R.E.) 304.
   The Government quickly moved for reconsideration as to
Appellant’s second and third statements (as well as their de-
rivative evidence) but did not seek reconsideration of the
military judge’s decision to suppress Appellant’s first state-
ment. After considering the Government’s request for recon-
sideration, the military judge reversed his ruling suppress-
ing the derivative evidence but upheld his ruling
suppressing the second and third statements.
    In an Article 62, UCMJ, 10 U.S.C. § 862 (2012), appeal,
the Government sought relief at the CCA but again did not
challenge the military judge’s decision to suppress Appel-
lant’s first statement to CID. In a published opinion, the
CCA affirmed in part and reversed in part, and held that the
military judge did not err in suppressing Appellant’s second
statement but did err in suppressing Appellant’s third
statement. United States v. Lewis, 78 M.J. 602, 618 (A. Ct.
Crim. App. 2018). The CCA ordered the record returned to
the military judge for action not inconsistent with its opin-
ion. Id. Before us, Appellant seeks reversal of the CCA’s con-
clusion that the third statement is admissible.2




   1  The only difference between the theories of liability is the
age of the victim.
   2 In United States v. Lopez de Victoria, a case in which an ac-
cused appealed an adverse Article 62, UCMJ, ruling to this Court,
we held that “cases appealed under Article 62, UCMJ, may be re-
viewed under Article 67(a), UCMJ.” 66 M.J. 67, 71 (C.A.A.F.
2008).



                                2
             United States v. Lewis, No. 19-0109/AR
                     Opinion of the Court

                       II. Background

    Because the factual circumstances of Appellant’s alleged
offenses are not relevant to the inquiry before us, we need
not engage in a lengthy recitation of the underlying facts.
Instead, we focus solely on the circumstances surrounding
Appellant’s three statements to law enforcement.
    As a preliminary matter, we seek to emphasize that our
review concerns only Appellant’s third statement to law en-
forcement—a confession made to a polygrapher, Special
Agent (SA) Boettger. As noted above, Appellant’s first two
statements were suppressed and are not challenged before
us. As such, “the legal issues presented to this [C]ourt are
narrower than the whole story may otherwise suggest.
While we limit our holding to the issue[] properly presented,
we provide a broader factual picture for context.” Lewis, 78
M.J. at 606. This is because “it is clear from the military
judge’s ruling that his suppression of the … third state-
ment[] is related to police conduct during the first.” Id.
                   A. The First Interrogation

   On May 15, 2017, four days after an “unknown female”
reported to a Fort Hood Charge of Quarters (CQ) desk that
Appellant had inappropriately touched her daughter, a non-
commissioned officer escorted Appellant to the Fort Hood
CID office. The military judge found that, “[p]er CID Stand-
ard Operating Procedure (SOP), the accused’s personal be-
longings were taken from him, to include his cell phone, and
secured in a locker at CID. He was also searched for officer
safety.”
   Investigator (INV) Lizivette Delgado,3 a law enforcement
agent on loan to CID from the Military Police (MP), interro-
gated Appellant. At the time, CID actively suspected Appel-
lant of inappropriately touching the “unknown female’s”
daughter.
  The military judge found that because INV Delgado
wanted to get the accused’s story and feared that Appellant


   3 INV Lizivette Delgado has since changed her last name. Be-
cause she was INV Delgado at all relevant times, we refer to her
as such.



                               3
             United States v. Lewis, No. 19-0109/AR
                     Opinion of the Court

might invoke his Article 31(b), UCMJ, 10 U.S.C. § 831(b)
(2012), rights if she brought them to his attention, she pur-
posely elected not to inform him of them prior to commenc-
ing the interrogation. Instead, prior to any rights waiver,
INV Delgado asked Appellant a series of questions designed
to obtain Appellant’s “story” as well as elicit information as
to the identity and contact information of the “unknown fe-
male.” For example, INV Delgado asked, “Real quick, I had a
crazy lady come in and report something, I don’t know who
she is, she mentioned something about a daughter, so do you
happen to know someone whose mom is crazy?” 78 M.J. at
607. In response, Appellant identified MW, the woman who
made the report and the mother of the alleged victim, ZC.
       The accused then asked [INV Delgado], “What’s go-
       ing on?” [INV Delgado] responded, “Well you men-
       tioned the name right off the bat.” The accused
       then stated he was just trying to get accurate in-
       formation because he thought he and the woman
       had settled the situation. The investigator asked,
       “Is there a situation?” The accused responded,
       “They thought something happened between me
       and their daughter.”
       The investigator returned to asking the accused
       about biographical data, but then asked the ac-
       cused, “Do you want to tell me about the story?”
78 M.J. at 607.
   In response, Appellant admitted that he had touched
ZC’s leg one night, making her uncomfortable.
   Only after INV Delgado had elicited this information did
she decide to advise Appellant of his rights. During a break,
INV Delgado sought advice from other CID personnel as to
whether she should provide a cleansing statement4 to Appel-
lant. The agents decided she should not give a cleansing
statement, and INV Delgado accordingly did not give one.
    When the interrogation resumed, INV Delgado returned
to gathering biographical information, and eventually stat-
ed, “[y]ou mentioned a story, and I didn’t ask any questions.

   4 A “cleansing” statement advises a suspect that the contents
of previous unwarned statements may not be used against him.
United States v. Phillips, 32 M.J. 76, 78 (C.M.A. 1991).



                               4
            United States v. Lewis, No. 19-0109/AR
                    Opinion of the Court

I’m not allowed to ask questions, until I advise you of your
rights, so we can go through that first, and then you’ll tell
me your story again.” 78 M.J. at 607 (emphasis omitted).
   Only then did she: (1) advise Appellant that he was a
suspect; and (2) inform him of his Article 31(b), UCMJ,
rights. After Appellant waived his rights, Appellant was
questioned for approximately forty minutes, and he again
admitted that he touched ZC’s leg when she was fifteen
years old.
                  B. The Second Interrogation

   Exactly one month later, on June 15, 2017, Appellant
was again escorted to CID for interrogation. This time, SA
Singh, a CID agent, interrogated Appellant. Appellant was
immediately advised of his rights, which he waived.
      The military judge found that this second exchange
      consisted primarily of open ended questions, asked
      by an agent in a “calm voice and demeanor
      throughout.” Throughout the interview, “the ac-
      cused was cooperative and inquisitive.” The agent
      did not ask about vaginal penetration, but instead
      asked “what story [he] had heard regarding the vic-
      tim.” The accused responded that he heard he had
      “fingered her.”
78 M.J. at 608.
                  C. The Third Interrogation

   Appellant’s third and final interrogation was conducted
by SA Boettger on July 11, 2017. Appellant again waived his
rights.
      Initially the accused was talkative and inquisitive.
      However, when the polygrapher asked about
      whether the accused had vaginally penetrated Miss
      ZC, the accused became “overwhelmingly sad and
      then admitted to penetrating Miss ZC’s vagina with
      his finger after she had told him no.” He stated he
      had done this in an attempt to convince Miss ZC to
      have sex with him. From the record, it appears that
      appellant’s statements were made before the ad-
      ministration of the polygraph and that the “in-
      strumentation” part of the polygraph was never
      conducted.
78 M.J. at 608.


                               5
             United States v. Lewis, No. 19-0109/AR
                     Opinion of the Court

                D. The Military Judge’s Rulings

    As noted above, the military judge suppressed all three of
Appellant’s statements as well as all derivative evidence,
including the identity of the victim and any testimony she
might have offered, on the grounds that the Government
failed to prove that Appellant’s statements were given vol-
untarily. The Government sought reconsideration and pre-
sented evidence that normal investigative efforts would have
allowed a CID agent without knowledge of Appellant’s
statements to identify ZC. In light of this evidence, the mili-
tary judge found that the doctrine of inevitable discovery
applied to the identities of ZC and her mother, but continued
to suppress Appellant’s statements to CID.
  In making his ruling, the military judge, in relevant part,
made the following factual findings and conclusions of law:
    Appellant was a junior enlisted soldier in his early twen-
ties with a high school education and six years of military
service. He had a General Technical (GT) score of 92 and
possessed “low average or below average intelligence.” 78
M.J. at 609. While a score of 83 is required to enlist, a score
of 110 would qualify a candidate for any Army job. The mili-
tary judge recognized a local recruiter’s observation that, in
her experience, the average GT score for candidates is be-
tween 85 and 102, and that, in her opinion, a 92 is a “dud.”
“In the field of Army psychology, a GT score of 60 would like-
ly indicate an intellectually [sic] disability. A score of 80
would cause concern to a psychologist.”
    Appellant had been diagnosed with an adjustment disor-
der, and even though the diagnosis was made six months
after Appellant’s final interrogation, the military judge de-
termined that he could reasonably infer that Appellant suf-
fered from adjustment disorder at the time of his interroga-
tions. He found, however, that while adjustment disorder
can affect mood and the ability to cope with stressors, it does
not generally affect decision-making.
    Appellant was in custody at all relevant times during the
interrogations, none of which were “of long duration” or in-
volved coercion. While Appellant “may have been allowed to
leave if he insisted, a reasonable person of the accused’s age,
experience, education, diagnoses, and military service would


                               6
             United States v. Lewis, No. 19-0109/AR
                     Opinion of the Court

not have felt he was at liberty to terminate the interrogation
and leave.” Police misconduct during the first interrogation
tainted the second and third interrogations, and “no cleans-
ing statements were given before either subsequent inter-
view.” Notwithstanding the fact that Appellant’s “appear-
ance [wa]s one of willingness and voluntariness,” his free
will had been overborne and his statements were made in-
voluntarily.
                         III. The Law

    “In an Article 62, UCMJ, appeal, this court reviews the
military judge’s decision directly and reviews the evidence in
the light most favorable to the party which prevailed at tri-
al,” which in this case is Appellant. United States v. Pugh,
77 M.J. 1, 3 (C.A.A.F. 2017).
   A military judge’s decision to exclude evidence is re-
viewed for an abuse of discretion. United States v. Jasper, 72
M.J. 276, 279 (C.A.A.F. 2013). “A military judge abuses his
discretion if his findings of fact are clearly erroneous or his
conclusions of law are incorrect.” United States v. Olson, 74
M.J. 132, 134 (C.A.A.F. 2015) (internal quotation marks
omitted) (citation omitted). “[T]he abuse of discretion stand-
ard of review recognizes that a judge has a range of choices
and will not be reversed so long as the decision remains
within that range.” United States v. Gore, 60 M.J. 178, 187
(C.A.A.F. 2004) (citation omitted); see United States v.
Criswell, 78 M.J. 136, 141 (C.A.A.F. 2018).
   M.R.E. 304(a) provides that “an involuntary statement
from the accused, or any evidence derived therefrom, is in-
admissible at trial.” A confession is involuntary if it was “ob-
tained in violation of the self-incrimination privilege or Due
Process Clause of the Fifth Amendment to the United States
Constitution, Article 31, or through the use of coercion, un-
lawful influence, or unlawful inducement.” M.R.E.
304(a)(1)(A); see also United States v. Freeman, 65 M.J. 451,
453 (C.A.A.F. 2008).
   The voluntariness of a confession is a question of law
that this Court reviews de novo. United States v. Bresnahan,
62 M.J. 137, 141 (C.A.A.F. 2005). “The prosecution bears the
burden of establishing by a preponderance of the evidence
that the confession was voluntary.” Freeman, 65 M.J. at 453.


                               7
             United States v. Lewis, No. 19-0109/AR
                     Opinion of the Court

   Voluntariness turns on whether an accused’s “will has
been overborne.” Schneckloth v. Bustamonte, 412 U.S. 218,
225 (1973) (internal quotation marks omitted) (citation omit-
ted). In the course of our review, “[t]he necessary inquiry is
whether the confession is the product of an essentially free
and unconstrained choice by its maker.” United States v.
Bubonics, 45 M.J. 93, 95 (C.A.A.F. 1996).
      In Oregon v. Elstad, 470 U.S. 298 (1985), the Su-
      preme Court distinguished between two classes of
      “involuntary” statements and between the impact
      of each on a subsequent interrogation. Where a con-
      fession is obtained at a lawful interrogation that
      comes after an earlier interrogation in which a con-
      fession was obtained due to actual coercion, duress,
      or inducement, the subsequent confession is pre-
      sumptively tainted as the product of the earlier
      one. On the other hand, where the earlier confes-
      sion was “involuntary” only because the suspect
      had not been properly warned of his panoply of
      rights to silence and to counsel, the voluntariness
      of the second confession is determined by the totali-
      ty of the circumstances.
Phillips, 32 M.J. at 79; accord United States v. Gardinier, 65
M.J. 60, 64 (C.A.A.F. 2007). In this case, we are only con-
cerned with the second class of statements.
      In determining whether a defendant’s will was
      over-borne in a particular case, the Court has as-
      sessed the totality of all the surrounding circum-
      stances—both the characteristics of the accused
      and the details of the interrogation. Some of the
      factors taken into account have included the youth
      of the accused, his lack of education, or his low in-
      telligence, the lack of any advice to the accused of
      his constitutional rights, the length of detention,
      the repeated and prolonged nature of the question-
      ing, and the use of physical punishment such as the
      deprivation of food or sleep.
Freeman, 65 M.J. at 453 (quoting Schneckloth, 412 U.S. at
226) (citations omitted). Other factors include an earlier vio-
lation of Article 31(b), United States v. Byers, 26 M.J. 132,
135 (C.M.A. 1988), whether the admission was made as a
result of the questioner’s using earlier, unlawful interroga-
tions, Phillips, 32 M.J. at 80–81, and “the presence of a
‘cleansing warning,’ however, the absence of such is not fatal


                               8
             United States v. Lewis, No. 19-0109/AR
                     Opinion of the Court

to a finding of voluntariness.” United States v. Brisbane, 63
M.J. 106, 114 (C.A.A.F. 2006) (internal quotation marks
omitted) (citation omitted). “The fact that a suspect chooses
to speak after being informed of his rights, is of course, high-
ly probative.” Elstad, 470 U.S. at 318.
                        IV. Discussion

    With these legal principles in mind, we turn to an analy-
sis of the voluntariness of Appellant’s confession to SA
Boettger. In assessing voluntariness, we apply the two-part
test from Schneckloth, 412 U.S. 218, looking to both the per-
sonal characteristics of the accused as well as the circum-
stances of the interrogation. As the military judge noted,
“[c]ases such as this are very fact specific.”
                A. Characteristics of the Accused

    The military judge found that at the time of Appellant’s
third interrogation, he was a specialist in his early twenties
who had served for six years. He had received a high school
diploma, and his GT score was 92.
    On the record before us, Appellant’s relative age and ma-
turity do not raise any serious red flags. It is true that Ap-
pellant was an E-4 with “low average or below average intel-
ligence.” 78 M.J. at 609. However, many soldiers share those
characteristics, and Appellant’s GT score was not outside
the realm of normalcy. We do not believe that Appellant’s
status as a junior enlisted soldier with “low average” intelli-
gence necessarily weighs against a finding of voluntariness.
Even the military judge acknowledged that Appellant’s GT
score was anecdotally well within that of the average re-
cruit, and that his GT score would not cause concern to ei-
ther the Army or a psychologist.
   Although it is nearly impossible to find a truly analogous
case when conducting such a fact-specific inquiry, we note
that, in many ways, Appellant’s personal characteristics
mirror those of the accused in Freeman, a case in which the
Court concluded that the characteristics of the accused fa-
vored a finding of voluntariness. Like the accused in Free-
man, Appellant was an E-4 in his early twenties, and there
was no evidence that he could not read or write. Freeman, 65
M.J. at 454. Like Freeman, Appellant “never complained



                               9
              United States v. Lewis, No. 19-0109/AR
                      Opinion of the Court

about the process, never asked for an attorney, never asked
to stop the interview or leave, or in any other way indicated
that he felt coerced or pressured into making a statement.”
Id. That said, Freeman is not a perfect comparison; there the
accused did not raise concerns over “low-average” intelli-
gence or mental impairment. See id.
    In contrast, in the instant case, the military judge found
that Appellant was diagnosed with an adjustment disorder
six months after his interview with INV Delgado. The mili-
tary judge then deemed it reasonable to presume that Appel-
lant was suffering “from adjustment disorder with mixed
anxiety and depressed mood” during each of his three inter-
views. On reconsideration, after the Government presented
expert testimony that an adjustment disorder would not af-
fect a person’s “ability to make good decisions,” the military
judge found that Appellant’s diagnosis “generally does not
affect decision making, but it does affect mood and the abil-
ity to cope with additional stressors.” The military judge
then explicitly found that “[t]he accused was suffering from
a psychological disorder that affect[s] his mood and ability to
deal with additional stressors” at the time of his interviews.
    This finding was clearly erroneous, for there is no evi-
dence that Appellant suffered from the disorder at the time
of his interview with SA Boettger. There is simply no tem-
poral tie. As the CCA noted, the type of disorder Appellant
was diagnosed with requires symptoms to emerge within
three months of an “identifiable stressor.” Lewis, 78 M.J. at
611 (internal quotation marks omitted) (citation omitted).
While a military judge is allowed to draw reasonable infer-
ences from the evidence presented, see United States v. King,
78 M.J. 218, 221 (C.A.A.F. 2019), nothing in the record iden-
tifies the “identifiable stressor” that formed the basis of the
diagnosis5 and no expert testimony establishes that Appel-
lant was suffering from the disease at the time of his inter-


   5  We note that Appellant’s subsequent apprehension and
charges could well qualify as “identifiable stressors” that contrib-
uted to his diagnosis. While Appellant might have suffered from
adjustment disorder at the time of his interrogation with SA
Boettger, it is equally likely that Appellant’s disorder was brought
on by stress related to his interrogations and arrest.



                                10
            United States v. Lewis, No. 19-0109/AR
                    Opinion of the Court

views. In the absence of any such evidence, we conclude that
the military judge’s inference that Appellant’s diagnosis
could be retroactively applied was unreasonable and that his
finding was clearly erroneous. See Criswell, 78 M.J. at 141
(“A finding of fact is clearly erroneous when there is no evi-
dence to support the finding.”).
    In conducting its analysis, the CCA found that while the
military judge’s finding was clearly erroneous, it had “mini-
mal impact” due to the military judge’s related finding that
Appellant’s diagnosis generally does not affect decision-
making. We disagree. In his analysis, the military judge ex-
plicitly highlighted the fact that Appellant had been diag-
nosed with a psychological disorder and noted that it “affect-
ed his mood and ability to deal with additional stressors.”
He then commented on Appellant’s mood change, noting
that he “became dejected” right before his ultimate confes-
sion. This language makes clear to us that the military
judge’s erroneous finding played no small role in his ulti-
mate determination of voluntariness.
    Furthermore, even assuming Appellant had suffered
from adjustment disorder at the time of his interview with
SA Boettger, “[m]ental illness does not make a statement
involuntary per se.” United States v. Mott, 72 M.J. 319, 330
(C.A.A.F. 2013); see also Colorado v. Connelly, 479 U.S. 157,
170 (1986) (deeming voluntary the spontaneous confession of
a schizophrenic experiencing command hallucinations).
    In the instant case, the record does not reflect that Ap-
pellant’s adjustment disorder negatively affected his capaci-
ty for free choice or that government overreaching occurred
at the time of his third interview. Accordingly, no considera-
tion of the mental impairment he suffered at the time of his
third interview, if any, is warranted. On the whole, Appel-
lant’s characteristics favor a finding of voluntariness.
              B. The Details of the Interrogation

    Turning to the character of Appellant’s interrogation, we
note that when Appellant appeared at the CID office for a
polygraph examination on July 11, 2017, SA Boettger ad-
vised Appellant of his rights. Appellant acknowledged those
rights, waived them, and agreed to answer questions. We



                              11
             United States v. Lewis, No. 19-0109/AR
                     Opinion of the Court

find it “highly probative” that Appellant chose to speak after
being informed of his rights. Elstad, 470 U.S. at 318.
    SA Boettger was not one of the agents who had
interrogated Appellant previously, and the questioning was
not particularly lengthy. There were no threats, lies, or
physical abuse, and Appellant was not denied any material
comforts. Appellant readily admitted in his sworn statement
that he was allowed to take breaks, not deprived of anything
during the interview, and was treated “great” by SA
Boettger. In short, there was “no evidence any of the
interviews were coercive in nature or under inhumane
conditions.” The military judge seemingly downplayed this
finding in his analysis.
    While the military judge made much of the fact that Ap-
pellant’s latter interrogations were tainted by the first, INV
Delgado’s circumvention of Article 31(b) is but “one circum-
stance to be considered along with others in determining
whether the statements made by [A]ppellant after receiving
a warning were voluntary.” Byers, 26 M.J. at 135. Despite
the problematic nature of Appellant’s first interrogation, we
cannot lose track of the fact that “[t]he appropriate legal in-
quiry is … whether [the] subsequent confession was volun-
tary considering all the facts and circumstances of the case.”
United States v. Steward, 31 M.J. 259, 265 (C.M.A. 1990);
see also Gardinier, 65 M.J. at 64.
   In the instant case, time attenuated the taint of the first
interrogation. Although Appellant was not given a cleansing
statement to cure the earlier Article 31(b) violation, Appel-
lant’s interview with SA Boettger occurred almost two full
months after the first interrogation, during which time he
was not confined. Appellant had been warned of his right to
counsel during the previous interrogations and had several
weeks between interviews to seek legal counsel or decide to
decline further interviews. He did not do so. Just as in Bris-
bane, Appellant was free to leave after each interview, giv-
ing him ample opportunity “to weigh the pros and cons of
continuing to talk with military authorities.” Brisbane, 63
M.J. at 115. By his third interview, he was well acquainted
with CID processes and the military justice system. See
Bubonics, 45 M.J. at 96 (whether an accused has “been in-
volved with military justice before the night of his appre-


                              12
            United States v. Lewis, No. 19-0109/AR
                    Opinion of the Court

hension and interrogation” is a factor to take into account
when analyzing the voluntariness of a statement). Further-
more, we note that neither INV Delgado nor SA Singh had
elicited Appellant’s ultimate confession—that he had vagi-
nally penetrated ZC—at a prior interrogation. Thus, the cat
was not yet out of the bag. Under these facts, we cannot con-
clude that the third interrogation was a continuation of the
first. The military judge thus erred by failing to distinguish
between the three interrogations.
   Having found errors in the military judge’s fact-finding
and rationale, and having determined Appellant’s confession
to SA Boettger was voluntary under the totality of the cir-
cumstances, we conclude that the military judge abused his
discretion in suppressing Appellant’s third statement to law
enforcement.
                        V. Judgment

   The judgment of the United States Army Court of Crimi-
nal Appeals is affirmed.




                             13
             United States v. Lewis, No. 19-0109/AR


   Judge RYAN, concurring.

   I concur with the majority’s opinion in full. I write sepa-
rately only to express my skepticism that an accused may
permissibly appeal an adverse ruling of a Court of Criminal
Appeals (CCA) where the case came before the CCA as an
interlocutory appeal by the government under Article 62,
UCMJ, 10 U.S.C. § 862. I fully recognize that this Court has
long considered petitions in this posture without question,
even rarely granting and deciding cases in favor of the ac-
cused. See, e.g., United States v. Mangahas, 77 M.J. 220
(C.A.A.F. 2018). Nevertheless, this practice runs contrary to
the well-established principles guiding criminal appeals.
    It is a bedrock principle of appellate procedure that
piecemeal appellate litigation should be avoided. See
Cobbledick v. United States, 309 U.S. 323, 324–25 (1940).
This policy against permitting interlocutory appeals is “es-
pecially compelling” in criminal cases. Id. at 325; see DiBella
v. United States, 369 U.S. 121, 124 (1962) (“Th[e] insistence
on finality and prohibition of piecemeal review discourage
undue litigiousness and leaden-footed administration of jus-
tice, particularly damaging to the conduct of criminal cas-
es.”). We should therefore be hesitant to extend the purview
of interlocutory appeals under Article 62, UCMJ, absent
compelling justification.
    Looking first to the text of Article 62, UCMJ, I see no
hint that it provides any right to an accused. Indeed, the ar-
ticle’s title states quite clearly what it provides: “Appeal by
the United States.” There is no mention of criminal defend-
ants, nor, for that matter, is there any mention of this Court.
Article 62, UCMJ. While the general question whether this
Court may entertain an appeal of an Article 62, UCMJ, rul-
ing by a CCA was answered in United States v. Lopez de Vic-
toria, 66 M.J. 67, 68–71 (C.A.A.F. 2008); see United States v.
Michael, 66 M.J. 78, 81–82 (C.A.A.F. 2008) (Ryan, J., with
whom Erdmann, J., joined, concurring in part and in the re-
sult), we have never addressed head on the question wheth-
er we can or should utilize that logic to offer an avenue for
              United States v. Lewis, No. 19-0109/AR
                    Judge RYAN, (concurring)

an accused to appeal an adverse Article 62, UCMJ, CCA rul-
ing to this Court.1
    The truncated nature of government appeals in criminal
cases under Article 62, UCMJ, may justify our review of a
CCA decision adverse to the Government. Unlike the ac-
cused, the Government’s ability to appeal in criminal cases
is historically disfavored and exists only by statute. DiBella,
369 U.S. at 130; Carroll v. United States, 354 U.S. 394, 400–
01 (1957). Working from this baseline, Congress saw fit to
enable certain government appeals in criminal cases in the
military justice system. Article 62, UCMJ.
    Article 62, UCMJ, entitled “Appeal by the United
States,” provides the government the right to appeal certain
rulings and orders of a military judge. Article 62(a)(1),
UCMJ. These appeals, by necessity, arise prior to any con-
viction and sentence and are interlocutory in nature because
of limitations rightfully placed on government appeals of ac-
quittals by the Double Jeopardy Clause—preventing an ac-
cused from being tried twice for the same offense. See United
States v. Wilson, 420 U.S. 332, 339–51 (1975). In truth, an
errant order at the trial level suppressing a key piece of evi-
dence or dismissing a charge or indictment can equate to fi-
nality by preventing the government from prosecuting a case
to a verdict. See, e.g., United States v. Watson, 386 F.3d 304,
308 (1st Cir. 2004). And if the CCA upholds a decision
against the government on appeal under Article 62, UCMJ,
that decision would forever evade review at this Court un-
less the government may appeal again. In contrast, an ac-
cused faced with an unfavorable decision at the CCA is ex-
pressly permitted to appeal that decision in the ordinary
course of appellate review if he is convicted. Article
66(b)(1)(B), UCMJ, 10 U.S.C. § 866(b)(1)(B). There is no rea-
son Article 62, UCMJ, must or should be read to give an ac-
cused the opportunity to appeal.

   1  I recognize that Appellant asserts that his appeal is proper
under Article 67(a)(3), UCMJ, 10 U.S.C. § 867(a)(3). However, Ap-
pellant is only in this position as a result of the Government’s ap-
peal under Article 62, UCMJ. It is not clear to me that this Court’s
jurisdiction under Article 67(a)(3), UCMJ, may be invoked in this
context.




                                 2
             United States v. Lewis, No. 19-0109/AR
                   Judge RYAN, (concurring)

    Further, I see no support for permitting an accused’s in-
terlocutory appeal based on the practice of Article III courts.
Article 62, UCMJ, was modeled after 18 U.S.C. § 3731,
Lopez de Victoria, 66 M.J. at 70, which permits government
appeals in federal civilian criminal cases to the circuit courts
of appeal.2 18 U.S.C. § 3731. When applying this statute or
discussing criminal appeals generally, the Article III courts
evince no understanding that statutes permitting interlocu-
tory appeals by the government upset the long-standing pre-
sumption that criminal defendants may not appeal on an
interlocutory basis. See Flanagan v. United States, 465 U.S.
259, 270 (1984) (“Nothing about a disqualification order dis-
tinguishes it from the run of pretrial judicial decisions that
affect the rights of criminal defendants yet must await com-
pletion of trial-court proceedings for review.”); United States
v. Hollywood Motor Car Co., 458 U.S. 263, 270 (1982) (“The
right asserted by respondents is simply not one that must be
upheld prior to trial if it is to be enjoyed at all.”); Cobbledick,
309 U.S. at 325–26 (“The correctness of a trial court’s rejec-
tion even of a constitutional claim made by the accused in
the process of prosecution must await his conviction before
its reconsideration by an appellate tribunal.”); United States
v. Clariot, 655 F.3d 550, 552 (6th Cir. 2011) (“Section 3731
provides a one-party path for interlocutory review of sup-
pression orders. It allows the government, but not criminal
defendants, to challenge a suppression ruling prior to tri-
al.”); United States v. Williams, 413 F.3d 347, 354 (3d Cir.
2005) (“Although an order granting suppression of evidence
is not considered a final order, the United States is specifi-
cally permitted by 18 U.S.C. § 3731 to bring an interlocutory
appeal. Section 3731 affords no such right to criminal de-
fendants.”); United States v. Eggert, 624 F.2d 973, 975–76
(10th Cir. 1980) (“[P]etitioner’s contentions can be fully re-


   2  Prior to 1970, 18 U.S.C. § 3731 provided that government
appeals from interlocutory decisions in criminal cases were heard
directly by the Supreme Court. See United States v. Marion, 404
U.S. 307, 311 & n.2 (1971). In the Omnibus Crime Control Act of
1970, Pub. L. No. 91-644, § 14(a), 84 Stat. 1880, 1890 (Jan. 2,
1971), Congress removed the Supreme Court’s direct review and
directed these appeals to the federal circuit courts. Marion, 304
U.S. at 311 & n.2.




                                3
             United States v. Lewis, No. 19-0109/AR
                   Judge RYAN, (concurring)

viewed by this court on direct appeal in the event of a con-
viction. . . . [W]e do not believe that the due process violation
alleged in this case . . . is the kind that justifies a departure
from the general rule of non-appealability of prejudgment
motions.”). And in those cases where the government does
appeal under 18 U.S.C. § 3731, there is no clear avenue to
the Supreme Court for a defendant confronted with an ad-
verse ruling. See Wilson, 420 U.S. at 353 (stating that a rul-
ing in favor of an accused appealed by the government under
18 U.S.C. § 3731, “could be acted on by the Court of Appeals
or indeed [the Supreme Court] without subjecting him to a
second trial at the Government’s behest” but that if the gov-
ernment prevails on appeal, “the case must go back to the
District Court”).
      Article 62, UCMJ, like 18 U.S.C. § 3731, recognizes the
government’s limited ability to appeal and represents a leg-
islative policy designed to carve out specific exceptions al-
lowing the government to appeal decisions that would be
otherwise unreviewable. The government may only appeal
when a decision or order at the trial level falls under the
strict requirements specified by Congress. See Abney v.
United States, 431 U.S. 651, 656 (1977) (“The right of appeal
. . . in criminal cases, is purely a creature of statute; in order
to exercise that statutory right of appeal one must come
within the terms of the applicable statute.”); United States v.
Wuterich, 67 M.J. 63, 72 (C.A.A.F. 2008) (stating that this
Court does not liberally construe Article 62, UCMJ). Thus,
we should be wary of permitting this same statute to be used
by criminal defendants as an end run around the general
prohibition on interlocutory appeals. See DiBella 369 U.S. at
124; United States v. Hanks, 24 F.3d 1235, 1239 (10th Cir.
1994) (“[Defendant] can not piggyback on the government’s
appeal. [Defendant’s] appeal cannot stand on its own be-
cause the denial of a motion to suppress evidence is not im-
mediately appealable.”). Doing so would serve only to fur-
ther delay and interrupt the proceedings below without
adequate justification.
    This case is a perfect example of needless delay and in-
terruption. There is no colorable claim that Appellant was
entitled to relief, as the CCA clearly explained. We nonethe-
less interrupted the trial—at which Appellant may still yet




                                4
             United States v. Lewis, No. 19-0109/AR
                   Judge RYAN, (concurring)

be acquitted—for an additional period of time only to con-
clude that the CCA was precisely correct. In my view, we
should only depart from the baseline principle disfavoring
interlocutory appeals “when observance of it would practical-
ly defeat the right to any review at all.” Cobbledick, 309 U.S.
at 324–25. This is the purpose for the statutes authorizing
government appeal under those circumstances. Article 62,
UCMJ; 18 U.S.C. § 3731. In contrast, defendants may al-
ways seek appellate review if and when they are convicted,
see Article 66(b)(1)(B), UCMJ, and there is no clear statutory
authorization allowing criminal defendants to appeal on an
interlocutory basis.
   In this case, whether Appellant had the ability to appeal
the CCA’s decision and whether permitting this practice is
workable was not raised or briefed, but I believe this Court
should give this issue full consideration if and when it is
presented in an appropriate case.




                               5
