

   
   
   
   U.S. v. Swift



United States, Appellee
v.
John B. SWIFT, Staff Sergeant
U.S. Air Force, Appellant
 
No. 98-5012
Crim. App. No. 32447
 
United States Court of Appeals for the Armed
Forces
 
Argued March 9, 1999*
Decided August 31, 2000
EFFRON, J., delivered the opinion of the
Court, in which CRAWFORD, C.J., GIERKE, J., and COX, S.J., joined. SULLIVAN,
J., filed an opinion concurring in part and dissenting in part.

Counsel
For Appellant: Captain Michael J. Apol
(argued); Colonel Douglas H. Kohrt (on brief); Lieutenant Colonel
Kim L. Sheffield.
For Appellee: Captain Steven D. Dubriske
(argued); Colonel Anthony P. Dattilo and Major Ronald A. Rodgers
(on brief); Lieutenant Colonel Michael J. Breslin.
Military Judge: Keith L. Roberts
 

THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION

Judge EFFRON delivered the opinion of the Court.
A general court-martial composed of officer
members convicted appellant, pursuant to mixed pleas, of making a false
official statement (3 specifications), writing bad checks (2 specifications),
bigamy, and impeding an investigation, in violation of Articles 107 and
134, Uniform Code of Military Justice, 10 USC §§ 907 and 934,
respectively. Appellant was sentenced to a bad-conduct discharge and reduction
to the grade of E-1. The convening authority approved the sentence as adjudged.
In an unpublished opinion, the Court of Criminal Appeals affirmed the findings
and sentence but ordered that appellant receive administrative relief from
the improper execution of the adjudged reduction in grade.
On appellant's cross-petition, we granted review
of the following issue:

WHETHER THE MILITARY JUDGE ERRED IN FAILING
TO SUPPRESS STATEMENTS APPELLANT MADE TO HIS FIRST SERGEANT AFTER HAVING
BEEN SUBJECTED TO REPEATED AND PERSISTENT QUESTIONING BY HIS FIRST SERGEANT
WITHOUT HAVING BEEN FIRST ADVISED OF HIS RIGHTS UNDER ARTICLE 31, UCMJ.[1]

We hold that the military judge erred in admitting
the verbal statements at issue in the absence of rights warnings under
Article 31(b), UCMJ, 10 USC § 831(b), but did not err in admitting
the divorce decree into evidence. The error was prejudicial as to
one specification on findings, but harmless as to the sentence. see
Art. 59(a), UCMJ, 10 USC § 859(a).

I. FACTS
A. Questions Concerning Appellant's Marital
Status
On Friday, March 8, 1996, appellant's commander,
Captain (Capt) Myatt, received a telephone call from a woman who identified
herself as appellant's wife, JS (hereafter referred to as "the first Mrs.
Swift"). The first Mrs. Swift stated that she had received a telephone
call that morning from a woman who had identified herself as SS (hereafter
referred to as "the second Mrs. Swift"). According to the first Mrs. Swift,
the second Mrs. Swift had made the following points during their telephone
conversation: (1) the second Mrs. Swift currently was married to appellant;
(2) the first Mrs. Swift no longer was married to appellant; (3) appellant
had divorced the first Mrs. Swift in 1994; (4) the divorce took place in
Pike County, Kentucky; and (5) the divorce papers were in the possession
of the second Mrs. Swift.
The first Mrs. Swift told Capt Myatt that she
had no previous knowledge of either the second Mrs. Swift or a divorce.
The first Mrs. Swift added that to the best of her knowledge, she was still
married to appellant and had not been divorced. She told Capt Myatt that
after her telephone conversation with the second Mrs. Swift, she contacted
the Pike County courthouse, and a clerk had told her there was no record
of such a divorce on file in that county.
The first Mrs. Swift and appellant had been
living apart for some time. She told Capt Myatt that she did not believe
she was divorced since she had not received any notice that appellant was
seeking a divorce and had not signed any paperwork. She asked Capt Myatt
for assistance in determining whether there had been a divorce and whether
she remained eligible for military medical care. The first Mrs. Swift concluded
her conversation with Capt Myatt by telling her that, if appellant had
married the second Mrs. Swift without first obtaining a divorce, she wanted
to press charges for the offense of bigamy.
Capt Myatt related this information to appellant's
first sergeant, Master Sergeant (MSgt) Vernoski. MSgt Vernoski was familiar
with appellant's marriage to the first Mrs. Swift because, in the fall
of 1995, MSgt Vernoski had counseled appellant for failing to support his
wife, the first Mrs. Swift. At that time, MSgt Vernoski assisted appellant
in setting up an allotment for the first Mrs. Swift. Until learning of
the phone call to Capt Myatt, MSgt Vernoski was under the impression that
the first Mrs. Swift and appellant remained married.
Capt Myatt and MSgt Vernoski reviewed appellant's
emergency data card in the unit mobility folder, which still listed the
first Mrs. Swift as appellant's wife. Capt Myatt and MSgt Vernoski then
went to the personnel office to check appellant's records. Appellants
file included several copies of DD Form 1172, the form used to enroll or
disenroll military members and dependents from the Defense Eligibility
Enrollment Reporting System (DEERS) for purposes of health care eligibility.
According to these records, appellant had disenrolled the first Mrs. Swift
and had enrolled the second Mrs. Swift as his spouse. The form indicated
that the first Mrs. Swift became ineligible for benefits on September 14,
1994. An official at the personnel office advised Myatt and Vernoski that
a spouse could be disenrolled only if the servicemember provided a copy
of a divorce decree. The personnel official noted that appellant's emergency
data card in the personnel office still listed the first Mrs. Swift as
appellant's spouse, but she also recalled that appellant was in the process
of revising that card.
Shortly thereafter, Capt Myatt and MSgt Vernoski
visited the base legal office, where they discussed several military justice
matters with the chief of military justice. During this visit, MSgt Vernoski
described the phone call from the first Mrs. Swift and related what they
had learned at the personnel office. MSgt Vernoski later testified that
he had brought this matter to the attention of the chief of military justice
"because it was unusual" and he had "never seen or come across a bigamy
case." The chief of military justice recalled that MSgt Vernoski and Capt
Myatt mentioned, during this meeting, "the troop and his potential bigamy
to me." Later in the day, Capt Myatt and MSgt Vernoski decided that they
would confront appellant Monday morning.
On Monday, March 11, before they confronted
appellant, MSgt Vernoski received a call from the first Mrs. Swift. She
reiterated what she previously had told Capt Myatt and gave MSgt Vernoski
the name and telephone number of the clerk in the Pike County courthouse
with whom she had spoken. According to the first Mrs. Swift, she told MSgt
Vernoski that she did not "think there was a divorce" and added that she
"didnt think it was legal." MSgt Vernoski testified that he had never
heard of anyone being divorced without that persons knowledge, but thought
that it could be possible. After the phone call from the first Mrs. Swift
and prior to meeting with appellant, MSgt Vernoski opened the Manual for
Courts-Martial and reviewed the Manual's provisions concerning the offense
of bigamy, including the elements and the maximum punishment. According
to MSgt Vernoski, he looked at the Manual because he was "curious," as
he had never had a "case like this before."
MSgt Vernoski, who subsequently testified that
he had called appellant into his office to "hear his side of the story,"
did not advise appellant of the right to remain silent or the other self-incrimination
rights under Article 31(b). He told appellant of the "accusations" made
by the first Mrs. Swift. Appellant responded that he had divorced the first
Mrs. Swift in September 1994. Immediately upon hearing appellant state
that he had been divorced in 1994, MSgt Vernoski reminded appellant that
in the fall of 1995, just a few months earlier, appellant had stated that
he still was married to the first Mrs. Swift. Appellant responded by claiming
that he had not made such a statement.
Appellant then provided MSgt Vernoski with
the name of an attorney who, according to appellant, had represented him
in the divorce proceeding. Appellant also suggested that the first Mrs.
Swift might be trying to get him into trouble. MSgt Vernoski responded
by telling appellant that "she can get you in trouble" and showed him the
maximum punishment for bigamy from the Manual for Courts-Martial.
At the conclusion of the conversation, MSgt
Vernoski directed appellant to provide him with a copy of his divorce decree.
Appellant said that he would bring a copy the next morning. Later that
day, MSgt Vernoski visited the chief of military justice at the base legal
office and told him about his conversation with appellant. He later noted
that he had visited the chief of military justice on this matter "because
I normally keep him in the loop regarding 'potential crimes' in the squadron."

B. Production of the Divorce Decree
When appellant failed to appear with the divorce
decree on Tuesday morning, MSgt Vernoski summoned him. Appellant arrived
without the paperwork, explaining that his attorney, who was in court that
morning, would fax a copy of the decree to the squadron later in the day.
On Tuesday afternoon, appellant delivered certain
documents to MSgt Vernoski, who determined that the documents were not
responsive because they pertained to child custody rather than divorce.
He told appellant that he needed to see a divorce decree to verify his
divorce, and appellant promised to deliver the divorce decree at 0730 hours
the following morning.
The next day, appellant again failed to report
to MSgt Vernoski's office. When summoned, appellant arrived without the
paperwork, explaining that his attorney did not open his office until 9:00
a.m. MSgt Vernoski directed appellant to report to him every hour until
he produced the divorce papers. Just before 2:00 p.m., Wednesday, March
13, 1996, appellant delivered a document to MSgt Vernoski that he described
as his divorce decree. A cover letter and a page of the document were missing
from the document, and appellant promised to deliver the missing items
the next morning. After this meeting, MSgt Vernoski did not discuss the
matter again with appellant. Appellant never produced the missing papers.
The document appeared to be unusual to MSgt
Vernoski, so he took it to the chief of military justice because "[he]
wasnt sure if it was legal" and wanted "to have it checked out." Together,
MSgt Vernoski and the chief of military justice examined the document.
The first thing that struck them as unusual was that the first Mrs. Swift
had not signed the document. After further review, they also noticed several
misspellings and typographical errors. The document was purportedly signed
by a Circuit Court Judge in Pike County and filed at the Pike County Courthouse.
The document indicated that it had been filed on September 14, 1994, the
same date listed on the DEERS form. With MSgt Vernoski in the office, the
chief of military justice called the civilian attorney identified by appellant
as his attorney in the divorce proceedings. The attorney responded that,
although he had represented appellant in a child-custody case, he had not
represented him in a divorce action.
The following morning, the chief of military
justice called the Pike County Courthouse to verify whether the divorce
decree had been filed at the court. The Deputy Clerk of the Court informed
him that the document had not been filed with that court or signed by anyone
sitting as a Circuit Court Judge in Pike County. That same day, the second
Mrs. Swift brought MSgt Vernoski a copy of what she believed was appellant's
divorce decree from the first Mrs. Swift. The document was identical to
what appellant had provided him the previous day.
Soon thereafter, appellant was charged with
a number of offenses, including: (1) that he made false official statements
between March 11 and 13, 1996, when he said that he was divorced and that
the named civilian attorney represented him in that action; (2) that he
made a false official statement when he presented a false divorce decree
to MSgt Vernoski on Wednesday, March 13, 1996; (3) that he committed obstruction
of justice by impeding MSgt Vernoskis investigation by presenting a false
divorce decree to MSgt Vernoski; and (4) that he committed bigamy.

C. The Motion to Suppress
At trial, appellant moved to suppress all statements
he had made to MSgt Vernoski and all evidence derived therefrom, including
the purported divorce papers that appellant had given to MSgt Vernoski.
The motion alleged a failure to give warnings under Article 31(b). Defense
counsel indicated that the motion, if granted, would require dismissal
of the two false official statement specifications and the bigamy charge.
The defense did not tie the motion to the obstruction of justice charge
and has not done so on appeal.
The military judge denied the motion to suppress.
He concluded that "there were insufficient circumstances that caused or
reasonably should have caused Sergeant Vernoski to suspect the accused
of the criminal offense of bigamy." With respect to the false official
statement charges, he also concluded that "there was no evidence made known
to Sergeant Vernoski that reasonably should have caused him to suspect
that the accused was possibly going to commit other offenses under the
UCMJ in the course of producing the divorce decree."

D. The Charge of Impeding MSgt Vernoskis
Investigation
The Government charged appellant with obstruction
of justice for wrongfully endeavoring to impede an investigation into his
marital status by giving MSgt Vernoski a document purporting to be a divorce
decree from the first Mrs. Swift, which he knew to be false. At trial,
the Governments theory was that appellants "submi[ssion of] this phony
divorce decree [was] just part and parcel of the impeding an investigation
charge. . . . He provided it in the hopes that Vernoski would be satisfied
with it, and nothing further would happen to him." Trial counsel maintained
that "[appellant] did all these series of lies in hopes of misleading Vernoski,
in misdirecting him so that it would take the pressure off of him, so that
he wouldnt get in any trouble." Trial counsel further argued that appellants
conduct was "prejudicial to good order and discipline" because of the "way
the military justice system works, and the way our disciplinary system
works in the military, and the role and duty of the first sergeant. When
he lies to his first sergeant, that has a direct impact on good order and
discipline in a unit."
With regard to the obstruction of justice charge,
the military judge instructed the members that they must find that appellant
presented a false document to MSgt Vernoski, in a case against himself,
against whom he had reason to believe that there were or would be criminal
proceedings pending, with the intent to impede the due administration of
justice. The military judge also informed the members that the charged
misconduct must be prejudicial to good order and discipline in the armed
forces.

II. DISCUSSION
A. General Principles Concerning the Rights
Warning Requirement
Article 31(a) of the Uniform Code of Military
Justice provides that a person subject to the Code may not "compel any
person to incriminate himself or to answer any question the answer to which
may tend to incriminate him." Article 31(b) implements the privilege against
self-incrimination through a rights warning requirement, providing that
no person subject to the Code 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.

Congress established this statutory warning
requirement in the aftermath of World War II, long before
the Supreme Court's decision in Miranda v. Arizona,
384 U.S. 436 (1966), mandated rights warnings in civilian society.
Miranda specifically cited Article 31 as a precedent for requiring
warning persons of the privilege against self-incrimination. Id.
at 489.
The rights warning requirements under Miranda
represent judicially created, constitutionally based guidelines designed
to protect the privilege against self-incrimination. See Dickerson
v. United States, ___ U.S. ___, ___, 120 S.Ct. 2326, 2334 (2000). As
the product of constitutional adjudication, these guidelines are not "immutable,"
but are subject to such modifications and exceptions as the judiciary may
deem necessary or appropriate in the course of litigation. See id.
at 2335.
The primary source of the rights warning requirements
in military law is a statutory enactment, not constitutional adjudication.
Congress has provided members of the armed forces with a rights warning
requirement that is broader than the warnings required in a civilian setting
as a matter of constitutional law under Miranda. Article 31(b) mandates
rights warnings for anyone "suspected of an offense," whereas Miranda
warnings are required only in circumstances amounting to "custodial interrogation."
Compare 10 USC § 831(b) with 384 U.S. at 498. In addition,
Congress has expressly provided in Article 31(d) that "[n]o statement obtained
from any person in violation of this article . . . may be received in evidence
against him in a trial by court-martial." See Part IID, infra.
The broad application of the warning requirement under Article 31 to all
suspects, not just those who are in custody, and the statutory restriction
on admissibility of unwarned statements reflect a decision by the post-World
War II Congress -- which included many veterans familiar with the military
justice system and its relationship to military missions and operational
requirements -- that the unique circumstances of military service
required specific statutory protections for members of the armed forces.
See Pub. L. No. 81-506, Ch. 169, § 1 (Art. 31), 64 Stat. 118
(1950); cf. Hearings on H.R. 2498 Before a Subcomm. of the
House Armed Services Comm., 81st Cong., 1st Sess. 984 (1949).
In the armed forces, a person learns from the
outset of recruit training to respond promptly to the direct orders and
the indirect expectations of superiors and others, such as military police,
who are authorized to obtain official information. Failure to respond to
direct orders can result in criminal offenses unknown in civilian life,
see, e.g., Arts. 90 and 91, UCMJ, 10 USC §§
890 and 891, respectively. Failure to respond to the expectations of military
life can lead to charges of dereliction of duty, see, e.g.,
Art. 92, UCMJ, 10 USC § 892, as well as serious administrative consequences,
see, e.g., Department of Defense (DoD) Directive 1332.14
Enlisted Administrative Separations (1993).
In such an environment, a question from a superior
or an investigator is likely to trigger a direct response without any consideration
of the privilege against self-incrimination. The Article 31(b) warning
requirement provides members of the armed forces with statutory assurance
that the standard military requirement for a full and complete response
to a superior's inquiry does not apply in a situation when the privilege
against self-incrimination may be invoked. See United States
v. Gibson, 3 USCMA 746, 752, 14 CMR 164, 170 (1954).
Another special feature of military life is
the blending of both administrative and law enforcement roles in the performance
of official duties. Officers, and non-commissioned officers (NCOs)
in particular, have broad responsibility not only for the accomplishment
of specific missions, but also for the health, welfare, morale, good order,
and discipline of their subordinates. As a result, a servicemember may
perceive that a question from an officer or NCO is being asked for administrative
purposes, although the purpose actually may be to acquire information for
use in disciplinary proceedings. As one commentator has noted:

[M]ilitary suspects may know in a general
sense that they have a right to remain silent, and they may know the consequences
of waiving that right, but they may not be aware that they face adversarial
situations where they may want to exercise that right. For example, a suspect
may believe that a platoon sergeant is inquiring about personal finances
to help the suspect balance a bank account. The suspect does not realize
that the sergeant is asking the questions in a law enforcement capacity,
to get evidence against the soldier for later use at a court-martial.

Supervielle, Article 31(b): Who Should Be Required
to Give Warnings?, 123 Mil. L. Rev. 151, 187 (1989).
Our case law has interpreted Article 31 in
a manner that recognizes the difference between questioning focused on
the accomplishment of a military mission, including an administrative function,
and questioning to elicit information for use in disciplinary proceedings.
See, e.g., United States v. Brown, 40 MJ 152,
154 (CMA 1994); United States v. Shepard, 38 MJ 408 (CMA 1993).
In some circumstances, there is likely to be a mixed purpose, and the matter
must be resolved on a case-by-case basis.
In general, we have held that Article 31(b)
requires rights warnings if: (1) the person being interrogated is a suspect
at the time of the questioning, and (2) the person conducting the questioning
is participating in an official law enforcement or disciplinary investigation
or inquiry. See United States v. Moses, 45 MJ 132, 134 (1996).
Whether a person is a suspect is an objective question that "is answered
by considering all the facts and circumstances at the time of the interview
to determine whether the military questioner believed or reasonably should
have believed that the servicemember committed an offense." United States
v. Good, 32 MJ 105, 108 (CMA 1991). Whether the questioning was part
of a law enforcement or disciplinary investigation "is determined by assessing
all the facts and circumstances at the time of the interview to determine
whether the military questioner was acting or could reasonably be considered
to be acting in an official law-enforcement or disciplinary capacity."
Id.; accord United States v. Davis, 36 MJ 337, 340
(CMA 1993), aff'd on other grounds, 512 U.S. 452, 114 S.Ct. 2350
(1994). Questioning by a military superior in the immediate chain of command
"will normally be presumed to be for disciplinary purposes." Good,
32 MJ at 108; see also United States v. Loukas, 29
MJ 385, 389 n.* (CMA 1990). The presumption is not conclusive. See
United States v. Pittman, 36 MJ 404, 407 n.7 (CMA 1993). When there
is a motion to suppress a statement on the ground that rights warnings
were not given, we review the military judge's findings of fact on a clearly-erroneous
standard, and we review conclusions of law de novo. United
States v. Ayala, 43 MJ 296, 298 (1995); Moses, supra
at 135.

B. Appellants Status As A Suspect
Military pay and benefits are closely tied
to marital status and the status of dependents. See, e.g.,
10 USC §§ 1076, 1077, and 1079; 37 USC §§ 401, 403,
406, and 407. officers and NCOs have a legitimate administrative need to
ensure that such benefits are provided to those who are entitled to them
and that they are not provided to those whose eligibility status may have
changed. The role of a first sergeant is multifaceted, and as such, MSgt
Vernoski's duties included addressing questions about dependent entitlements.
See para. 1.2, Air Force Instruction 36-2113, The First Sergeant
(1 August 1996).
Given the plethora of diverse benefit programs
administered by a host of different DoD organizations, members of the armed
forces are well aware of the significant potential for errors in the collection,
processing, and storage of personnel information. In this context, information
coming to the attention of a military official that raises questions about
the eligibility status of a servicemember's spouse or dependents does not,
in itself, establish a basis for designating that member as a suspect for
purposes of Article 31, even if the official has a "hunch" that further
inquiries may disclose a crime. Cf. United States v. Meeks,
41 MJ 150, 161 (CMA 1994)
In the present case, however, the command had
much more than a hunch that appellant had committed an offense. MSgt Vernoski
brought appellants situation to the attention of the chief of military
justice on Friday afternoon because he regarded it as "unusual" and he
had "never seen or come across a bigamy case." The chief of military justice
described the conversation as addressing a "potential bigamy case in their
unit." These circumstances underscore that this was more than simply visiting
the legal office to discuss an administrative matter. MSgt Vernoski and
Capt Myatt had good reason to suspect appellant of bigamy at that time,
based upon the following information: (1) the first Mrs. Swift had been
called by the second Mrs. Swift, a person claiming to be appellant's wife,
and the second Mrs. Swift had asserted there was a divorce in Pike County,
Kentucky; (2) the first Mrs. Swift had never signed a divorce decree and
had not been provided any notice that her husband was seeking a divorce;
(3) to the best of the first Mrs. Swifts knowledge, she was still married
to appellant; (4) the first Mrs. Swift had determined there was no record
of such a divorce in Pike County; (5) if there had been no divorce, the
first Mrs. Swift wanted appellant prosecuted for bigamy; (6) as recently
as the fall of the previous year, MSgt Vernoski had counseled appellant
about matters related to appellant's marriage to the first Mrs. Swift,
during which appellant told him that he was still married to her, yet the
second Mrs. Swift asserted that a divorce had taken place more than 2 years
ago -- a divorce which, according to the first Mrs. Swift, was not recorded
in the county referred to by the second Mrs. Swift; (7) several current
military records still listed the first Mrs. Swift as appellant's wife;
and (8) the first Mrs. Swift had been disenrolled as a beneficiary under
DEERS, and the second Mrs. Swift had been enrolled as appellant's spouse
under DEERS.
On Monday morning, prior to confronting appellant,
MSgt Vernoskis concerns about the case led him to review the provisions
of the Manual for Courts-Martial concerning the offense of bigamy. His
review of the Manual was not simply preparation for a worst case scenario.
The grounds for suspecting appellant of bigamy were reinforced by a call
he received from the first Mrs. Swift prior to his meeting with appellant,
in which she reiterated that she did not think the divorce "was legal"
and provided him with the name and phone number of the clerk with whom
she had spoken at the Pike County Courthouse. When appellant reported,
as ordered, MSgt Vernoski began the interrogation by setting forth the
"accusations" made by the first Mrs. Swift and asking appellant to respond.
Under the objective test, we conclude as a
matter of law that these circumstances demonstrate that MSgt Vernoski "reasonably
should have believed" that appellant was a suspect with respect to the
offense of bigamy prior to this interrogation. See Good,
supra at 108. The fact that MSgt Vernoski was hopeful that appellant
would be able to clarify his marital status, just as he had been able to
clarify prior problems with his wife's allotment, does not lead to a different
result. In light of the relatively low quantum of evidence required to
treat an individual as a suspect, MSgt Vernoski's hope that events would
exonerate appellant was not incompatible with his responsibility to treat
appellant as a suspect based upon the amount of information about the possibility
of bigamy that he had acquired before confronting appellant. It is not
unusual for a superior to be hopeful that circumstances will vindicate
a subordinate, particularly when that subordinate has proved trustworthy
in the past. Such a feeling, no matter how well motivated, does not deprive
a member of the armed forces of the right to be warned under Article 31(b)
when the objective facts point to the subordinate as a suspect. Under the
circumstances of this case, we find that a reasonable person would have
considered appellant a suspect, requiring a rights warning advisement.
See United States v. Muirhead, 51 MJ 94 (1999)(military judge
erred when he relied upon the subjective opinions of the agents as to whether
Article 31(b) warnings were required where facts supported finding that
reasonable person would have suspected accused of an offense.)

C. Questioning By A Military Superior: Application
of the Disciplinary Presumption
Under our case law, we also consider whether
MSgt Vernoski was acting in a law enforcement or disciplinary capacity
in light of the "strong presumption" that questioning by a military superior
in the "chain of command" is part of a "disciplinary" investigation. Good,
supra at 108. As discussed in Part IIB, supra, although MSgt
Vernoski had appropriate administrative concerns about appellant's marital
status, the circumstances of this case led to significant disciplinary
considerations in the conduct of the investigation.
From the initial telephone call from the first
Mrs. Swift to the first confrontation with appellant, the nature of the
actions taken by MSgt Vernoski and Capt Myatt underscore the priority they
placed on military justice implications -- including their joint visit
to the personnel office and the base legal office, their consultation with
the chief of military justice concerning a "potential bigamy case," MSgt
Vernoski's study of the bigamy provisions in the Manual for Courts-Martial,
and MSgt Vernoskis ordering of appellant to report to his office to respond
to the "accusations" made by the first Mrs. Swift.
Based on the foregoing considerations, in the
context of the information provided by the first Mrs. Swift and the information
developed through their own inquiries, we conclude as a matter of law that
the Government failed to rebut the strong presumption that MSgt Vernoskis
interrogation was part of an investigation that included disciplinary purposes.
Under the circumstances, he should have provided appellant with the statutorily
required rights warnings, including the warning that he did not have to
"make any statement regarding the offense" of which he was suspected. Art.
31(b). Accordingly, we hold that the military judge erred when he
determined that rights warnings were not required under Article 31(b).

D. Admissibility of Unwarned Statements
We next examine whether the verbal statements,
although unwarned, were nonetheless admissible. Congress, in Article 31(d),
provided a strict enforcement mechanism to implement the rights warning
requirements in Article 31(b):

No statement obtained from any person in
violation of this article, or through the use of coercion, unlawful influence,
or unlawful inducement may be received in evidence against him in
a trial by court-martial.

This provision, like Article 31(b), was established
by Congress in the aftermath of World War II. Since then, Congress has
not exempted any of the substantive offenses under the UCMJ from the coverage
of Article 31(d), no matter how serious. Article 31(d) applies to
all substantive crimes, including offenses that have a critical impact
on good order, discipline, and national security, such as murder, rape,
robbery, aiding the enemy, mutiny, espionage, spying, and making false
official statements. See United States v. Price, 7 USCMA 590, 23
CMR 54 (1957) (invalidating, as inconsistent with Article 31, a provision
of the Manual for Courts-Martial that permitted use of a statement obtained
in violation of Article 31(b) to prove a charge of making a false official
statement).
More than 40 years have passed since we observed
in Price that the express language of Article 31 did not permit
a false official statement prosecution to be based upon an unwarned
statement. Congress has amended the UCMJ numerous times
since Price was decided in 1957, but
none of the amendments has modified the clear limitations in Article 31(d).2
After Price, the Army issued the following
guidance with respect to the impact of that case on the Manual for Courts-Martial:

Notwithstanding provisions of par. 140a,
MCM, to the contrary, a prosecution for making a false official statement
is not exempt from restrictions of Art. 31 regarding pretrial statements
of an accused or suspected person.
Accordingly, when a statement is obtained from an accused who has not been
warned of his right against self-incrimination and the circumstances are
such that the warning is required by Art. 31, the statement is inadmissible
even though the case in which it is offered is a prosecution for
making a false official statement.

U.S. Army, 1959 Cumulative Pocket Part to the
Manual for Courts-Martial, United States, 1951, at 71 (emphasis in original).
The President, in a subsequent revision of the Manual, expressly provided
that "in a case in which a statement of the accused so obtained [in violation
of applicable warning requirements] is charged as being false, it cannot
be received in evidence to show that he made it." Para. 140a(6),
Manual for Courts-Martial, United States, 1969 (Revised edition);
see Analysis of Contents, Manual for Courts-Martial, United
States, 1969, Revised Edition at 27-11 (Dep't of the Army Pamphlet 27-2
(1970)) (citing Price).
The 1951 Manual, in a separate provision regarding
impeachment of witnesses, provided that an accused who testified as a witness
could not be cross-examined on the basis of a statement obtained in violation
of applicable rights warning requirements, para. 153b(2)(c), and
this provision was retained with minor modifications in the 1969 Manual.
Subsequently, in United States v. Jordan, 20 USCMA 614, 44
CMR 44 (1971), we considered the impact of the Manual's rule in a situation
where the member received rights warnings under Article 31 but did not
receive the right-to-counsel warnings required by United States v. Tempia,
16 USCMA 629, 37 CMR 249 (1967) (holding that the warnings required by
Miranda v. Arizona, 384 U.S. 436 (1966), apply to custodial interrogations
in the armed forces). Although we concluded in Jordan that
the statement could not be used for impeachment based on the Manual's restrictions,
we noted that the President was not precluded from amending the Manual
to permit impeachment of a testifying accused through use of a statement
obtained without provision of such warnings. Jordan was based on
the premise that the "shield" provided by the rights warning requirements
"cannot be perverted [by a testifying defendant] into a license to use
perjury by way of a defense, free from the risk of confrontation
with prior utterances." 20 USCMA at 617, 44 CMR at 47 (quoting Harris
v. New York, 401 U.S. 222, 226 (1971)).
Despite the invitation for change set forth
in Jordan, the two significant revisions of the Manual for Courts-Martial
adopted in the 1970s did not address the impeachment issue. See
Exec. Order No. 11835, 40 Fed. Reg. 4247 (1975); Exec. Order No. 12018,
42 Fed. Reg. 57943 (1977). The Manual continued to preclude
impeachment by an unwarned statement until the evidentiary material
in the Manual, which included extensive guidance and examples, was replaced
entirely by the Military Rules of Evidence in 1980. Chapter XXVII,
Manual For Courts-Martial, United States, 1969 (Revised
edition); see Exec. Order No. 12198, 45 Fed. Reg.
16932 (effective Sept. 1, 1980).
Reflecting the fact that Jordan involved
a situation in which there had been compliance with the rights warning
requirement under Article 31 but noncompliance with the constitutionally-based,
Miranda-Tempia counsel warning requirements, the 1980 amendments
permitted impeachment of a testifying accused by an unwarned statement,
but limited the provision to statements obtained in violation of
the Miranda-Tempia, counsel warning requirements. Under the new
rule, Mil.R.Evid. 304(b), a statement obtained after failure to
provide the Miranda-Tempia warning concerning the right to consult
with counsel could be used "to impeach by contradiction the in-court testimony
of the accused or the use of such statement in a later prosecution against
the accused for perjury, false swearing, or the making of a false official
statement." The Drafters' Analysis noted that this provision "adopts Harris
v. New York, 401 U.S. 222 (1971) insofar as it would allow use for
impeachment or at a later trial for perjury, false swearing, or the making
of a false official statement, or statements taken in violation of the
counsel warnings required under Rule 305(d)-(e)." The Analysis emphasized
the limited scope of the new rule by adding: "A statement obtained in violation
of Article 31(b), however, remains inadmissible for all purposes . . .
." 1969 Manual, supra at A18-19.
In 1990, the Rule was amended further to permit
limited use of a statement obtained in violation of the warning requirements
of Article 31(b) and the related Military Rules of Evidence "to impeach
by contradiction the in-court testimony of the accused or the use of such
statement in a later prosecution against the accused for perjury, false
swearing, or the making of a false official statement." The Drafters' Analysis
cited Harris and our decision in United States v. Williams,
23 MJ 362 (1987). Furthermore, the Analysis, reflecting Harris,
stated that "[a]n accused cannot pervert the procedural safeguards of Article
31(b) into a license to testify perjuriously in reliance on the Government's
disability to challenge credibility utilizing the traditional truth-testing
devices of the adversary process." The Analysis also noted that when there
is a violation of the rules requiring cessation of questioning, "the deterrent
effect of excluding the unlawfully obtained evidence is fully vindicated
by preventing its use in the Government's case-in-chief, but permitting
its collateral use to impeach an accused who testifies inconsistently or
perjuriously." Manual for Courts-Martial, United States (1998 ed.) at A22-10.
The underlying theory of the 1990 change was
that the accused is the gatekeeper as to admission of the unwarned statement
and that only an inconsistent or perjurious statement by an accused who
testifies at trial opens the gate. The accused, in deciding whether to
testify, must consider whether he or she will thereby risk impeachment
by contradiction or a "later prosecution." Mil. R. Evid. 304(b).
The rule is based on the premise that Article 31(d) provides a shield when
the prosecution seeks to use an unwarned statement as a sword against the
accused, but does not shield an accused from cross-examination or a later
prosecution when it is the accused, not the Government, who opens the door
to questioning the veracity of his or her testimony at trial.3
Cf. Williams, supra at 367-68 (precluding use of an
unwarned statement to rebut evidence presented on behalf of an accused
who has not opened the door through his or her in-court testimony).
Although in-court testimony is not at issue
in the present case, we note that when an accused has opened the door to
consideration of an unwarned statement through such testimony, reliance
on Mil.R.Evid. 304(b) in a "later prosecution" may be viewed as consistent
with our precedents regarding impact of actions by an accused in a judicial
setting that affect the member's statutory rights. See, e.g., United
States v. Gammons, 51 MJ 169, 183 (1999) (although the accused is the
gatekeeper as to admissibility of records of prior non-judicial punishment
for the same offenses, the Government may rely on such evidence if the
accused has opened the door); cf. United States v. Dowty,
48 MJ 102, 110 (1998) (if the accused invokes a judicial proceeding
under the Right to Financial Privacy Act, which has the effect of
delaying military justice proceedings, the Government can rely on the provisions
of that Act tolling "any applicable statute of limitations").
Because appellant did not testify in the present
case, the unwarned statements were not used for purposes of impeachment
or otherwise to prove that he testified falsely at trial. The Government,
however, asks us to apply Mil.R.Evid. 304(b) in a manner that would
permit unwarned statements made during an investigation and obtained in
violation of Article 31(b) to be introduced by the prosecution to prove
essential elements of false official statements in its case-in-chief.
We decline to interpret the Rule as applying
to circumstances in which the accused has not opened the door to consideration
of the unwarned statement by his or her in-court testimony. Applying the
rule to a non-testifying accused, as urged by the Government, would
place the Rule in direct conflict with Article 31(d). See United
States v. Price, supra. In any such conflict, the Manual provision
must yield to the statute. Article 36(a), UCMJ, 10 USC § 836(a)
(the rules of evidence in the Manual for Courts-Martial may not be "contrary
to or inconsistent with" the Code); United States v. Lopez, 35 MJ
35, 39 (CMA 1992) (under the "hierarchical sources of rights" applicable
to the military justice system, federal statutes prevail over provisions
of the Manual for Courts-Martial unless the Manual provision provides the
servicemember with greater rights than the statute).
These considerations are particularly important
in the absence of congressional action to overturn a precedent of
this Court that is based upon the plain meaning of a statute and that is
consistent with the context in which the statute was enacted. See
Connecticut National Bank v. Germain, 503 U.S. 249, 253-54, 112
S.Ct. 1146, 1149, 117 L.Ed.2d 391,393 (1992)("[I]n interpreting a statute
a court should always turn first to one, cardinal canon before all others.
We have stated time and again that courts must presume that a legislature
says in a statute what it means and means in a statute what it says there.")
We are well aware of the corrosive impact of
false statements on military effectiveness, and we have forthrightly
rejected precedents from the civilian sector that would diminish the effectiveness
of Article 107. See United States v. Solis, 46 MJ 31 (1997)
(rejecting the so-called "exculpatory no" defense to false-statement prosecutions
under Article 107).4 In
declining to apply civilian analogies to Article 107, Solis reflected
our deference to the paramount role of Congress in shaping the military
justice system. We emphasized that Congress, which created the militarys
false official statement statute embodied in Article 107, did not include
an "exculpatory no" defense in Article 107 and that the responsibility
for evaluating the desirability of including such a provision was within
the province of the Legislative Branch, not this Court. Id. at 36.
The same considerations apply to the present
case. The
requirement to provide specific rights warnings
in Article 31(b) and the restriction on use of statements obtained in violation
of those rights in Article 31(d) represent decisions made by Congress,
not this Court. In the more than 40 years since Price was decided
-- including many years in which the Manual for Courts-Martial expressly
prohibited use of unwarned statements in false statement prosecutions --
Congress took no action to create an exception to Article 31(d) for false
statement cases arising under Article 107. Congressional inaction, in such
circumstances, must be given great weight "because the primary responsibility
for overruling decisions on statutory construction is with Congress." United
States v. Gibson, 43 MJ 343, 346 (1995). The decision as to whether
it is necessary to reexamine the relationship between Article 31(d)
and Article 107 to determine whether unwarned statements should be admissible
in the case-in-chief against a non-testifying servicemember for making
a false official statement rests with Congress, not this Court. Cf.
18 USC § 6002 (proscribing use of certain immunized testimony "in
any criminal case, except a prosecution for perjury, giving a false
statement, or otherwise failing to comply with the order" to provide immunized
testimony).
The dissent suggests that we should rely on
analogies from civilian life to exempt Article 107 offenses from the coverage
of Article 31(d). In some instances, consideration of criminal law developments
in the civilian sector may be helpful when addressing aspects of the military
justice system. However, when this Court assesses legislation created by
Congress under its constitutional authority to "raise and support" the
armed forces and "make Rules for the Government and Regulation" of those
forces, we must be guided by the highest degree of deference to congressional
action. U.S. Const., art. I, § 8, cl. 12-14; Rostker v. Goldberg,
453 U.S. 57 (1981). So long as Congress does not act in disregard of the
Constitution, we are obligated to respect congressional judgments as to
the rights and obligations of members of the armed forces. Id. at
67. Judicial deference to the balance drawn by Congress applies
not only when Congress has provided servicemembers with rights less protective
than those available to their civilian counterparts, but also when Congress
has provided greater rights.
The dissent is based primarily upon cases from
the civilian sector, none of which involve the factual predicate we have
in this case-the prosecution for a false statement, made in the absence
of required self-incrimination warnings, and admitted during the prosecutions
case-in-chief. Instead, many of the cases cited in the dissent involve
circumstances in which a person held a grant of immunity, testified, and
then was prosecuted on the grounds that the testimony was false. Those
cases are based on the premise that a person who knows that he or she has
the protection against self-incrimination embodied in a grant of immunity
cannot choose to abuse the privilege through false testimony. This is in
stark contrast to the present case, which involves a non-testifying person
who was not provided with a statutorily required warning about self-incrimination
protections. Most of the remaining cases cited in the dissent involve situations
in which rights warnings were not required as a matter of law, which mooted
the question whether an illegally obtained statement could be used against
the individual.
The dissent agrees that rights warnings were
required under Article 31(b), but declines to apply the statutorily
mandated procedure for enforcing that requirement under Article 31(d),
based on civilian precedent. Although we should give appropriate consideration
to criminal law precedents, when we interpret the statutory provisions
embodied in the Uniform Code of Military Justice, we must be particularly
cautious in applying analogies from the civilian sector that involve judicial
modifications of judicially-crafted doctrines, see Dickerson,
120 S.Ct. at 2335, or that involve interpretation of statutes that do not
reflect the unique circumstances of military service. It is not our province
to use such analogies to vitiate otherwise constitutional judgments by
Congress about the rights and obligations of members of the armed forces.

E. The Production Of The Divorce Decree
The production of the divorce decree, however,
raises a separate issue--whether appellant had a Fifth Amendment or Art.
31(a) privilege as to the production of the divorce decree-which is distinct
from the requirement to give the rights advisement under Article 31(b).
It is well "settled . . . that a person may be required to produce specific
documents even though they contain incriminating assertions of fact or
belief because the creation of those documents was not 'compelled' within
the meaning of the privilege." United States v. Hubbell, ___ U.S.
___, ___, 120 S.Ct. 2037, 2043 (2000). That proposition rests upon the
legal distinction between the contents of the document and the testimonial
significance of producing the documents. Id. The contents of documents
voluntarily prepared before the compelled production are not protected
by the Fifth Amendment or Article 31(a) because the documents "could not
be `said to contain compelled testimonial evidence." Id. at 2043
(quoting Fisher v. United States, 425 U.S. 391, 409-10 (1976)).
In this case, the record indicates that appellant
voluntarily created a purported divorce decree before MSgt Vernoski requested
its production. Appellants personnel records reflected the fact that he
had produced a divorce decree for purposes of changing spousal enrollment
under DEERS well before MSgt Vernoski initiated his investigation. The
DEERS form stated that appellant was divorced on September 14, 1994, the
same date as listed on the purported divorce decree later provided to MSgt
Vernoski. Additionally, the second Mrs. Swift told the first Mrs. Swift
that she had the divorce decree in her possession during their first phone
conversation, the day before MSgt Vernoski initiated his investigation.
He also knew that the second Mrs. Swift told the first Mrs. Swift that
the divorce decree indicated that she and appellant were divorced in September
of 1994 and that the decree was filed in Pike County.5
It is apparent that MSgt Vernoski's request for a divorce decree was made
in the context of his understanding that appellant had provided a document
purporting to be a divorce decree to the personnel office a month earlier.
In short, MSgt Veroski did not simply ask appellant
to provide information about his marital status, but instead requested
appellant to provide a document which appellant previously had produced
at the personnel office to change appellant's DEERS form. Under these circumstances,
appellant could not have objected to producing the divorce decree solely
on the basis that the fraudulent contents were incriminating because MSgt
Vernoski's request was based on facts indicating that the document, a divorce
decree, had been created prior to the order to produce it. See Fisher
v. United States, supra.
The Supreme Court also has stated "that the
act of
producing documents in response to a subpoena
may have a
compelled testimonial aspect" if "'the act
of production' . . . implicitly communicate[s] `statements of fact." Hubbell,
___ U.S. at ___, 120 S.Ct. at 2043; see also United States
v. Oxfort, 44 MJ 337, 338 (1995) (citations omitted). Even if appellants
act of producing the divorce decree had testimonial aspects which arguably
were incriminating, the production would fall within the "required records"
exception to the Fifth Amendment and Article 31(a). See United
States v. Shapiro, 335 U.S. 1 (1948); see also Grosso
v. United States, 390 U.S. 62, (1968); Oxfort, 44 MJ at 339
(1996). If the Government requires documents to be kept for a legitimate
administrative purpose, neither the content nor the act of production of
these documents are protected by the Fifth Amendment. See Shapiro,
335 U.S. 1; see also United States v. Sullivan, 274
U.S. 259 (1927) (rejecting Fifth Amendment objection to requirement to
file income tax return).
To constitute "required records," the documents
must satisfy the following test: (1) the requirement that they be kept
"must be essentially regulatory"; (2) the records must be the "kind which
the regulated party has customarily kept"; and (3) the records themselves
must be either public documents or "have assumed 'public aspects' which
render them at least analogous to public documents." 390 U.S. at 67-68;
see also In re Dr John Doe, 711 F. 2d 1187 (2d Cir.
1983).
The requirement to produce a divorce decree
in order to establish and update military records supporting spousal eligibility
for government benefits is regulatory; the divorce decree is the type of
record customarily kept by a party; and it is a public record. The personnel
office's requirement for the servicemember to produce a copy of his divorce
decree served a legitimate administrative purpose -- to determine spousal
eligibility for government benefits. Under these circumstances, the divorce
decree was a "required record," the production of which falls within the
exception to the Fifth Amendment and Article 31(a). See United
States v. Oxfort, supra. Under the facts and circumstances of
this case, even if MSgt Vernoski had provided the required Article 31(b)
warnings, appellant could not have objected to an order to produce the
divorce decree that he had previously provided to the personnel office.
Because appellant had no Fifth Amendment or Article 31(a) privilege in
either the content or the act of production of the divorce decree, we conclude
that the military judge did not err in admitting the divorce decree into
evidence.

F. Impact Of The Inadmissible Evidence
The question remaining is whether the error
in admitting the verbal statements obtained in violation of Article 31
had a prejudicial impact. Three aspects of the case potentially were affected
by the illegally obtained statements: the bigamy conviction, two of the
false official statement convictions, and the sentence.

1. The Bigamy Conviction
In support of the bigamy specification, the
prosecution produced evidence of two marriage certificates -- one to the
first Mrs. Swift dated August 28, 1990, and the other to the second Mrs.
Swift dated January 1, 1996 -- and the fraudulent divorce decree. Additionally,
the prosecution offered the testimony of the first Mrs. Swift, who testified
that she knew of no divorce action by appellant.
The first Mrs. Swift also testified that she
and appellant specifically decided not to obtain a divorce at the time
of their separation because she would lose her military medical benefits
and dependent identification card. She testified further that appellant,
during a telephone conversation, had told her that he had a serious interest
in another woman, and she asked him whether he wanted a divorce. She testified
that he had responded that they would just maintain the status quo and
not obtain a divorce. This conversation took place in January 1996 -- after,
unbeknownst to her, he already had married the second Mrs. Swift. In light
of the significant evidence that was not derived from the unwarned statements,
we are satisfied beyond a reasonable doubt that appellant was not prejudiced
as to the bigamy conviction.

2. The False Statement Convictions
In the first false statement specification,
appellant was charged with making a false official statement when, in response
to a question from MSgt Vernoski, he said that he was divorced from the
first Mrs. Swift and that a named civilian attorney had represented him
in the divorce proceeding. This specification was based upon appellant's
verbal response to an unwarned inquiry. Without that evidence, there is
no proof of an offense, and the specification must be dismissed.
In the second specification at issue, appellant
was charged with making a false official statement when he presented to
MSgt Vernoski "an official statement, to wit: a purported divorce decree,
which document was totally false . . . ." Unlike the first specification,
the second false official statement specification was based upon evidence
properly admitted against appellant. In addition to the document itself,
the Government offered evidence that the divorce decree had never been
filed at the Pike County Courthouse nor signed by an active Circuit Court
Judge, as it purported. In light of the Governments evidence on this specification,
we are satisfied that there was sufficient evidence to find appellant guilty
of this specification without reliance upon any of appellants unwarned
statements.

3. The Sentence
Even without the first false official statement
offense, appellant remains convicted of making two separate false official
statements; two specifications of writing bad checks; bigamy; and impeding
an investigation. Appellant's sentence included a bad-conduct discharge
and reduction to the lowest enlisted grade, but did not include either
confinement or forfeitures. In light of the remaining offenses and the
evidence in this case, we are convinced beyond a reasonable doubt that
the error with respect to the dismissed offense was not prejudicial as
to the sentence.

III. DECISION
The decision of the United States Air Force
Court of Criminal Appeals is reversed as to specification 1 of Charge I.
The finding of guilty as to that specification is set aside, and that specification
is dismissed. In all other respects, the decision below is affirmed.
FOOTNOTES:
* This case was argued at the
United States Air Force Academy, Colorado Springs, Colorado, as part of
Project Outreach. See United States v. Martinez, 52 MJ 22,
23 n.* (1999).
1
The initial filing in our Court, which concerned an unrelated issue certified
by the Judge Advocate General under Article 67(a)(2), UCMJ, 10 USC §
867(a)(2)(1989), was disposed of by order on September 30, 1998.
50 MJ 351.
2
During the same period, by contrast, Congress endeavored to circumscribe
the exclusionary rule under Miranda, see 18 USC § 3501.
The Supreme Court recently determined that the legislation was unconstitutional,
relying in part on the doctrine of stare decisis. Dickerson
v. United States, ___ U.S. ___, ___, 120 S.Ct. 2326, 2336 (2000).
3
Cf. United States v. Lewis, 12 MJ 205, 208 (CMA 1982) (noting
in dicta that a person who chooses to testify falsely rather than
asserting the privilege against self-incrimination can be prosecuted for
perjury regardless of whether the statement would be admissible with respect
to another offense). The dicta in Lewis was confined to the
example of an accused who opened the door by testifying. The actual
holding in Lewis, which involved a charge of disrespect to a superior
commissioned officer, is limited to permitting use of an unwarned statement
to show the disrespect. The Court emphasized that the use with respect
to that offense was "not in any way related to the truth, falsity, or reliability
of its meaning." Id. at 208.
4
We reached this decision notwithstanding the fact that a majority of the
federal appellate courts that had addressed the issue at the time of our
decision had endorsed the exculpatory-no doctrine with respect to a similar
civilian offense). See 46 MJ at 34 & n.9. Subsequently, the
Supreme Court disapproved use of the excuplatory-no defense in federal,
civilian criminal trials. Brogan v. United States, 522 U.S. 398
(1998).
5
Although not necessary to our decision on this issue, we note that this
was the same date and location indicated in the divorce decree later provided
by appellant to MSgt Vernoski. The record also indicates that the second
Mrs. Swift provided a copy of what she believed was appellant's divorce
decree to MSgt Vernoski the day after appellant gave the document in question.
Upon comparison of the two documents, MSgt Vernoski concluded that they
were identical.


SULLIVAN, Judge (concurring in part and dissenting
in part):
Appellant was a soldier with two wives, one
of whom was bombarding his command with complaints about his suspected
bigamy. His first sergeant (lst Sgt) had good reason to suspect these complaints
were true when he called appellant into his office to hear "his side of
the story." Unfortunately, he did not advise appellant of his rights under
Article 31 with respect to this suspected criminal offense. This
failure to warn was wrong as both the majority and I agree. See
generally United States v. Good, 32 MJ 105, 108 (CMA 1991)
(and case cited therein).1
Nevertheless, the lST Sgt (in pursuing his
duties to clear up the inconsistencies in appellants administrative records
and in response to the complaints of appellants first wife) proceeded
to get appellant to explain his true marital status. The Army had a right
to know since housing, medical, and other administrative benefits are dependent
on the correct marital status of a servicemember. The record shows that
appellant (in response to requests from the lST Sgt) told the lST Sgt that
he was divorced from his first wife and gave the lST Sgt a false divorce
decree. There was no evidence that appellant was coerced to lie to his
lST Sgt or to give a false divorce decree to him. These acts form the basis
for the two charges of giving false official statements.
Today, the majority sets aside appellant's
conviction on one of these charges. In the process, it effectively provides
military suspects an unparalleled right to lie in their official statements
to their military superiors or other government authorities. In my
view, such a holding directly contradicts existing precedent from our Court,
an applicable Manual provision, and analogous Supreme Court, Court of Appeals
and state court decisions. I dissent and would affirm appellants convictions
for making false official statements in violation of Article 107, Uniform
Code of Military Justice, 10 USC § 907.
When one looks at this case from a distance,
one could say that there is agreement by all the members of this Court
on the requirement for warnings against self-incrimination. The different
outcomes of the majority and my dissent are caused by the two different
approaches to application of the exclusionary rule to the facts of this
case. The majority takes a broad view of the exclusionary rule which allows
appellant to escape any prosecution for the two false-official-statement
charges. But cf. United States v. Wong, 431 U.S. 174
(1977) (conviction for perjurious testimony sustained on basis of evidentiary
use of unadvised but false statements); United States v. Knox,
396 U.S. 77 (1969) (conviction for making false official statement sustained
regardless of validity of Government's request for information).
My dissent applies a narrow, more conservative view of the exclusionary
rule which would affirm his convictions for the two false-official-statement
charges. See Glickstein v. United States, 222 U.S. 139 (1911)
(holding that similarly worded exclusionary-rule statute should not be
interpreted to permit the giving of false testimony with impunity).
In my view, appellant had the right to be
warned not to incriminate himself, but he had no right to lie
in an official statement or to give a false divorce decree to his superiors
in the U.S. Army. See generally 8 Wigmore, Evidence
§§ 2270(2)(b) n.7 and 2282(1)(c) (McNaughton rev. 1961). Neither
the Constitution nor the Code gives him such a right to lie or deceive.
See Brogan v. United States, 522 U.S. 398, 404 (1998). ("neither
the text nor the spirit of the Fifth Amendment confers a privilege to lie");
United States v. Lewis, 12 MJ 205, 208 (CMA 1982) (following United
States v. Madujano, 425 U.S. 564 (1976), and Glickstein v. United
States, supra, in applying Article 31(d)). Moreover, I will
not judicially create such a right of immunity.
The thrust of the majoritys opinion is that
the broad wording of Article 31(d) expresses the careful judgment of Congress
that the servicemember should have an exclusionary rule affording greater
protection than that afforded his civilian counterpart. __ MJ at (14).
The legislative history of this provision does not support such
speculation by the majority. Cf. United States v. Apfelbaum,
445 U.S. 115, 121-123 (1980) (no speculation as to Congress intent where
it is inescapably supported by language and legislative history). Moreover,
the majority's construction of Article 31(d) flouts "constitutional hornbook"
law, well-settled by 1950, that prosecutions for perjury are permissible
even if no perjury exception is provided in an immunity statute. United
States v. Housand, 550 F.2d 818, 822 (2d Cir. 1977) citing United
States v. Bryan, 339 U.S. 323(1950); and Heike v. United States,
227 U.S. 131, 141 (1913) (Holmes, J., noting statutory proviso for perjury
prosecution "added only from superfluous caution").
Instead, I adhere to the past decisions of
this Court recognizing that Congress intended our exclusionary-rule remedy
to be commensurate with the Fifth Amendment exclusionary rule, as traditionally
delineated by the Supreme Court, unless expanded by the President in the
Manual for Courts-Martial. See United States v. Williams,
23 MJ 362, 368 (CMA 1987); United States v. Jordan, 20 USCMA 614,
617, 44 CMR 44, 47 (1971); United States v. Caiola, 18 USCMA
336, 340-41, 40 CMR 48 (1969) (Darden, J., lead opinion). This Court's
decision in United States v. Lewis, supra,2
recognized this point and expressly permitted admission of evidence of
unadvised statements to prove a subsequent disrespect offense.
Moreover, the Supreme Court in Harris v. New York, 401
U.S. 222 (1971), did not suggest that unwarned statements of a suspect
could not be used in the prosecutions case-in-chief for any subsequent
crimes. See United States v. Wong, supra (a post-Harris
case refusing to apply Fifth Amendment exclusionary rule to case-in-chief
evidence showing perjury before grand jury).
In my view, Harris v. New York, supra,
does not support the broad "case-in-chief" exclusionary rule espoused
by the majority in this case. In Harris, the precise question was
whether an accused's pretrial statement, inadmissible under Miranda
v. Arizona, 384 U.S. 436 (1966), in the prosecutions case-in-chief
to prove the sale of heroin, could nonetheless be used in rebuttal
to impeach an accuseds trial testimony as to that drug offense. The Supreme
Court approved an impeachment exception to the federal exclusionary
rule as a part of the Miranda decision. 401 U.S. at 224-25. However,
it did not purport to limit exceptions to the Miranda exclusionary
rule to the impeachment situation. In fact, it cited as authority, United
States v. Knox, 396 U.S. 77 (1969), a case which recognized the traditional
false-official-statement exception to the Fifth Amendment exclusionary
rule.
Furthermore, in United States v. Madujano,
425 U.S. 564 (1976), the Supreme Court subsequently approved the admission
of similarly unwarned statements in the prosecutions case-in-chief for
the offense of making a false statement to a grand jury. There, it approved
its earlier decision in Bryson v. United States, 396 U.S. 69, 72
(1969) (prosecution for providing a false affidavit) and stated "similarly
our cases have consistently  indeed without exception  allowed sanctions
for false statements or perjury; they have done so even in instances
where the perjurer complained that Government exceeded its constitutional
powers in making the inquiry." 425 U.S. at 577 (emphasis added); see
also United States v. Knox, supra. Federal practice
in this regard seems clear to me. See United States v. Raftery,
534 F.2d 854, 857 (9th Cir. 1976), cited with approval in United
States v. Lopez-Martinez, 725 F.2d 471, 476 (9th Cir. 1984).
The majority broadly dismisses as inapplicable
these Supreme Court cases (Brogan, Wong, Knox, Bryson,
Mandujano, and Glickstein) as well as a decision of
one of our fellow U.S. Courts of Appeals, United States v. Veal,
153 F.3d 1233, 1241 (11th Cir. 1998) (holds that Supreme
Court has not excluded from criminal liability false statements made to
government agents or agencies in violation of the Fifth Amendment, whether
made under oath), cert. denied, 119 S.Ct. 2024 (1999).) In my view,
however, although there may be some differences in terms of
the nature of the Fifth Amendment violation in these cases, that does not
alter applicability of their truthfulness rationale to our particular Article
31(d) question. The bottom line is that stated long ago in Glickstein
v. United States, 222 U.S. at 142: "[I]mmunity afforded by the constitutional
guaranty relates to the past and does not endow the person who testifies
with a license to commit perjury." (Emphasis added.)
In my view, Congress was aware of this bedrock
judicial principle of self-incrimination law when it enacted Article 31(d)
and intended it to apply to servicemembers as well. See generally
Brogan v. United States, supra at 406-07 (citing cases where
"background interpretive principles of general application" considered
in construing criminal statute); see Hearings on H.R. 2498 Before
a Subcomm. of the House Armed Services Comm., 81st Cong., 1st
Sess. 984 (1949) (Article 31 structured to generally conform with "the
privilege against self-incrimination"), and United States v. Aronson,
8 USCMA 525, 529-30, 25 CMR 29, 33-34 (1957).
The majority further suggests that Mil. R.
Evid. 304(b)(1) has been improperly urged by the Government in this case
to permit use of the unadvised statements in a prosecution for making a
false official statement. It notes language in the 1980 Drafters'
Analysis suggesting that "a statement obtained in violation of article
31(b), however, remains inadmissible for all purposes" as supporting its
view. I disagree.
Mil. R. Evid. 304(b)(1) (1990) states the contrary.
It says:

(b) Exceptions.
(1) Where the statement is involuntary only
in terms of noncompliance with the requirements of Mil. R. Evid. 305(c)
or 305(f), or the requirements concerning counsel under Mil. R. Evid. 305(d),
305(e), and 305(g), this rule does not prohibit use of the statement
to impeach by contradiction the in-court testimony of the accused or the
use of such statement in a later prosecution against the accused for
perjury, false swearing, or the making of a false official statement.

(Emphasis added.)
This language responded to this Courts previous
decision in United States v. Jordan, supra at 617, 44 CMR
at 47, which noted that the Manual exclusionary rule was broader than federal
practice. The amended rule permits use of unadvised statements in the Governments
case-in-chief in a false-official-statement prosecution as consistent with
federal-exclusionary-rule practice. See United States v. Wong
and United States v. Knox, both supra. Coincidentally, the
Drafters' Analysis for this new rule no longer contains the Article 31(b)
language touted by the majority.
In sum, there is a basic difference between
the majority's view and my view of this case. It centers on one of the
core aspects of the Federal Exclusionary Rule. I believe Article 31 (like
the Fifth Amendment) only applies to past crimes, i.e., those
committed before the interrogation where there were no self-incrimination
warnings. The majority wants to ignore our Court's and federal civilian
courts case law to say that, if there were no warnings of self-incrimination,
any soldier can then lie under oath in an interrogation (i.e., commit
a present crime). I don't think that the post-World War II Congress was
ignorant of this distinction between "past" and "present" crimes when they
passed Article 31. In my view, the majority is clearly wrong in believing
that Congress gives immunity for any crime committed in an unwarned interrogation.
The majority apparently3
returns to the out-dated, absolutist view of Article 31(d) espoused by
this Court prior to the decision of the Supreme Court in Harris v. New
York, supra. See United States v. Price, 7 USCMA
590, 593, 23 CMR 54, 57 (1957). In doing so, it overrules, sub silentio,
our subsequent decisions which have recognized Harris v. New York,
supra, and earlier Supreme Court Fifth Amendment exclusionary-rule
cases as the guiding force for our Article 31(d) case law. United States
v. Lewis and United States v. Jordan, both supra. It
also breaks ranks with mainstream jurisprudence in state and lower federal
courts. See United States v. Veal, supra (federal
cases cited therein); People v. Thomasello, 234 N.E. 2d 190 (N.Y.
1967); Butterfield v. State, 992 S.W. 2d 448 (Tex. Crim. App. 1999);
McGee v. State, 782 P.2d 1329, 1331-33 (Nev. 1989).
Finally, in my view, the majority essentially
holds that Mil. R. Evid. 304(b)(1) is legally invalid because of Article
31(d). "Applying the rule to a non-testifying accused, as urged
by the Government, would place the Rule in direct conflict with Article
31(d). In any such conflict the Manual provision must yield to the statute.")
__ MJ at (32) (citation omitted). Supreme Court review of the propriety
of such a holding would be most appropriate. See United States
v. Scheffer, 523 U.S. 303 (1998) (Supreme Court overturns decision
of this Court that Mil. R. Evid. 707 prohibiting admission of polygraph
evidence was unconstitutional).
FOOTNOTES:
1 The lead
opinion in United States v. Good, 32 MJ 105, 108 (CMA 1991), has
been repeatedly recognized as the law of this Court. See United
States v. Muirhead, 51 MJ 94, 96 (1999); United States v. Meeks,
41 MJ 150, 161 (1994); United States v. Davis, 36 MJ 337, 340 (1993),
affd, 512 U.S. 452 (1994).
2
In United States v. Lewis, 12 MJ 205, 208 (CMA 1982), a unanimous
Court stated: "Under these circumstances, we hold that failure to give
an Article 31 advisement does not bar admission into evidence of the accused's
statement which, by its substance and context, constitutes a separate and
distinct violation of the Uniform Code."
3
The majority attempts to have it both ways. On the one hand, it asserts
that there are no express exceptions to Article 31(d), in the Uniform Code
of Military Justice, which permit use of this evidence in a false-official-statement
prosecution. On the other hand, it asserts that evidence of unadvised statements
may be used as impeachment evidence or to prosecute for perjury if an accused
subsequently testifies falsely at a court-martial. Clearly, the majority's
"gatekeeper" creation is not contained in the language of Article 31(d).


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