                                      CORRECTED COPY

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                           Before
                             KERN, ALDYKIEWICZ, and MARTIN
                                  Appellate Military Judges

                            UNITED STATES, Appellant
                                          v.
                        Specialist JOHNNIE M. MCDONALD
                            United States Army, Appellee

                                   ARMY MISC 20130768*

                        Headquarters, 1st Cavalry Division
                          Patricia Lewis, Military Judge
         Lieutenant Colonel R. Tideman Penland, Jr., Staff Judge Advocate

For Appellant: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Captain Kenneth W. Borgnino, JA (on brief).

For Appellee: Colonel Kevin Boyle, JA; Lieutenant Colonel Peter Kageleiry, Jr., JA;
Lieutenant Colonel Jonathan F. Potter, JA; Captain Matthew M. Jones, JA (on brief).

                                       30 September 2013

                ---------------------------------------------------------------------- --
                     SUMMARY DISPOSITION ON FURTHER REVIEW
                                    AND ACTION ON APPEAL
                      BY THE UNITED STATES FILED PURSUANT TO
                  ARTICLE 62, UNIFORM CODE OF MILITARY JUSTICE
                ------------------------------------------------------------------------

Per Curiam:

        Appellee is charged with wrongfully possessing child pornography and
obstructing justice in violation of Article 134, Uniform Code of Military Justice,
10 U.S.C. § 934 (2012) [hereinafter UCMJ]. See Manual for Courts-Martial, United
States (2012 ed.), pt. IV, ¶¶ 68b.b., 96.b. On 7 May 2013, the United States filed its
first appeal with this court pursuant to Article 62, UCMJ, contending that the
military judge abused her discretion by suppressing a written statement made by the
accused to a special agent of the Army Criminal Investigation Command (CID) on
20 May 2012. Upon our review, we concluded the military judge’s findings were
incomplete, ambiguous, and unsupported by the record on the predicate issues of
whether appellee’s 20 May 2012 statement was voluntary, tainted by appellee’s prior
statement, or inevitable. We then returned the matter to the military judge for
MCDONALD—ARMY MISC 20130768*

clarification and action. United States v. McDonald, ARMY MISC 20130423, 2013
WL 3213336 (Army Ct. Crim App. 24 June 2013) (Mem. Op.).

       On 12 July 2013, the military judge held a hearing , pursuant to Article 39(a),
UCMJ and received further evidence on the issue regarding the admissibility of
appellee’s written statement to CID on 20 May 2012. In a written ruling dated 26
July 2013, the military judge again suppressed the statement. The United States then
filed their second timely appeal with this court contending that the military judge
abused her discretion by suppressing the 20 May 2012 statement. We now review
this matter again under Article 62, UCMJ.

                                        LAW

       The standard of review we apply in an appeal by the United States of a
military judge’s suppression ruling is necessarily deferential:

      “We review a military judge’s ruling on a motion to suppress for
      abuse of discretion.” United States v. Rodriguez, 60 M.J. 239, 246
      (C.A.A.F. 2004) (citing United States v. Monroe, 52 M.J. 326, 330
      (C.A.A.F. 2000)). “In reviewing a military judge’s ruling on a
      motion to suppress, we review factfinding under the clearly-
      erroneous standard and conclusions of law under the de novo
      standard.” United States v. Ayala, 43 M.J. 296, 298 (C.A.A.F.
      1995). “Thus on a mixed question of law and fact . . . a military
      judge abuses his discretion if his findings of fact are clearly
      erroneous or his conclusions of law are incorrect.” Id. The abuse of
      discretion standard calls “for more than a me re difference of opinion.
      The challenged action must be ‘arbitrary, fanciful, clearly
      unreasonable, or clearly erroneous.’” United States v. White, 69 M.J.
      236, 239 (C.A.A.F. 2010) (quoting United States v. Lloyd, 69 M.J.
      95, 99 (C.A.A.F. 2010)).

             When reviewing matters under Article 62(b), UCMJ, [a service]
      court may act only with respect to matters of law. United States v.
      Gore, 60 M.J. 178, 185 (C.A.A.F. 2004). “When a court is limited to
      reviewing matters of law, the question is not whether a reviewi ng court
      might disagree with the trial court’s findings, but whether those
      findings are ‘fairly supported by the record.’” Id. (quoting United
      States v. Burris, 21 M.J. 140, 144 (C.M.A. 1985)). When reviewing a
      ruling on a motion to suppress, “we consider the evidence in the light
      most favorable to the prevailing party.” United States v. Cowgill, 68
      M.J. 388, 390 (C.A.A.F. 2010) (quoting United States v. Reister, 44
      M.J. 409, 413 (C.A.A.F. 1996)).




                                          2
MCDONALD—ARMY MISC 20130768*

United States v. Baker, 70 M.J. 283, 287-288 (C.A.A.F. 2011).
                                  CONCLUSION

       Upon review of record of trial, including the military judge’s ruling dated 26
July 2013, and the briefs of both parties, we find that military judge has not abused
her discretion in suppressing appellee’s 20 May 2012 statement to CID , and her
findings are fairly supported by the record. Therefore, the appeal of the United
States pursuant to Article 62, UCMJ, is DENIED, and the trial may proceed.


                                        FOR
                                        FOR THE COURT:
                                                COURT:




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




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