                          UNITED STATES, Appellee

                                        v.

                       Michael S. Farley, Sergeant
                           U.S. Army, Appellant

                                  No. 03-0646

                          Crim. App. No. 20001079

       United States Court of Appeals for the Armed Forces

                       Argued November 9, 2004

                       Decided March 18, 2005

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

                                    Counsel

For Appellant: Captain Eric D. Noble (argued); Colonel Mark
Cremin, Lieutenant Colonel Mark Tellitocci,and Captain Rob W.
MacDonald (on brief); Colonel Robert D. Teetsel, Major Allyson
G. Lambert, and Captain Gregory M. Kelch.

For Appellee: Captain Mason S. Weiss (argued); Colonel Steven T.
Salata and Lieutenant Colonel Theresa A. Gallagher (on brief).

Military Judge: Robert F. Holland




     THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Farley, No. 03-0646/AR



     Judge CRAWFORD delivered the opinion of the Court.

     Pursuant to his pleas at trial by military judge, Appellant

was convicted of rape of a child under the age of twelve, sodomy

with a child under the age of twelve, and indecent acts with a

child under the age of sixteen in violation of Articles 120,

125, and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C.

§§ 920, 925, and 934 (2000).   Appellant was sentenced to a

dishonorable discharge, twenty-three years of confinement, total

forfeiture of pay and allowances, and reduction to the lowest

enlisted grade.   The convening authority waived the forfeitures

and reduced the term of confinement to nineteen years.    The

United States Army Court of Criminal Appeals affirmed the

findings and sentence.   On July 7, 2004, we granted review of

the following issue:

     WHETHER THE MILITARY JUDGE ERRED IN FINDING THAT
     APPELLANT'S DECISION TO PLEAD GUILTY AT TRIAL WAIVED
     HIS FIFTH AND SIXTH AMENDMENT RIGHTS RETROACTIVELY
     WITH RESPECT TO INTERVIEWS CONDUCTED WHILE IN PRETRIAL
     CONFINEMENT AND LATER USED DURING THE SENTENCING PHASE
     OF HIS TRIAL.

     We need not decide whether there was error, because any

error was harmless.

     On May 14, 2000, Appellant’s wife and a friend brought

Appellant’s eleven-year-old stepdaughter, HF, to the local

hospital.   Following procedure mandated by Texas statute, Child

Protective Services (CPS) was notified of the allegation of


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child abuse.    Ms. Martin, a Texas state social worker, began the

CPS assessment of a possible threat to the family’s two children

by interviewing HF.    As part of her investigation requiring her

to speak to all family members, Ms. Martin, together with

coworker Sam Warren, interviewed Appellant in the Bell County,

Texas, jail.    Ms. Martin did not advise Appellant of his rights

under Miranda v. Arizona1 or Article 31, UCMJ, 10 U.S.C. § 831

(2000), before beginning the interview.   Ms. Martin testified

that, during the interview:

       [Appellant] said something to the effect that he
       needed to touch -– he had just got [sic] out of the
       field. His relationship with his wife was bad and his
       daughter [HF] was there, so he did it. And he said
       that if his mother was there he would did it [sic] to
       her also . . . I am thinking he was referencing having
       sex.

(emphasis added).

       Ms. Martin testified at Appellant’s July 13, 2000, pretrial

investigation pursuant to Article 32, UCMJ, 10 U.S.C. § 832

(2000).    Later, on August 23, 2000, pursuant to Military Rule of

Evidence (M.R.E.) 304(d)(1),2 the Government, in a pretrial

disclosure statement, notified defense counsel that Appellant


1
    384 U.S. 436 (1966).
2
  M.R.E. 304(d)(1) states: “Prior to arraignment, the prosecution
shall disclose to the defense the contents of all statements,
oral or written, made by the accused that are relevant to the
case, known to trial counsel, and within the control of the
armed forces.”



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United States v. Farley, No. 03-0646/AR


made the above statement.3    Four days before trial, the

Government notified defense counsel that Mr. Warren from CPS

would be called to testify.    The following day, the Government

advised defense counsel that Ms. Martin would testify instead of

Mr. Warren and that her testimony would cover the same

statements by the accused that were to have been the subject of

Mr. Warren’s proposed testimony.       Defense counsel acknowledged

having received this notice late in the day on Friday, August

22.

       Before receiving Appellant’s pleas, the military judge

advised him that “any motion to dismiss any charge or to grant

other relief shall be made at this time.”      Defense counsel

responded that Appellant had an unlawful command influence (UCI)

motion, and added that “depending on who the government calls as

witnesses, we may have some brief motions to suppress statements

made by the accused.”    When asked if they were ready to proceed,

both defense counsel responded affirmatively, “[o]ther than with

regard to [a] possible request to have a slight delay to meet

the alleged government sentencing witness[.]”      The military


3
    The disclosure statement from the Government said:

       The Accused made statements to the following
       individuals: On or about 16 May 00, the Accused
       stated to CPS Case Worker Sam Warren, “I just needed
       the touch the other day. If my mother were there, I
       would have had sex with her as well,” or words to that
       effect.

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United States v. Farley, No. 03-0646/AR


judge then asked Appellant to enter his plea “[w]ithout

prejudice to the defense to resolve this UCI motion later[.]”

Defense counsel did not move at this time to suppress

Appellant’s pretrial statements to Ms. Martin.

     During the providence inquiry, the military judge informed

Appellant that by pleading guilty he waived his right against

self-incrimination (i.e., “the right to say nothing at all”);

his right to a trial of the facts by a court-martial (i.e., “the

right to have the court determine whether or not you are guilty

based on the evidence presented by the prosecution and on any

evidence that you may present”); and “the right to confront and

cross-examine any or all of the witnesses against you.”

Appellant persisted in pleading guilty and agreed to the waiver

outlined above.   Appellant’s guilty pleas were not conditional,

and the pretrial agreement contained no terms limiting his right

to submit motions or enter objections.

     According to the record, after Appellant pleaded guilty but

before Ms. Martin testified, the defense moved to suppress her

testimony:

     CDC: [B]efore we call her . . . I still have to talk
     with co-counsel to make sure, we have a motion to
     suppress statements made to [Ms. Martin].

     MJ: [W]hy is defense counsel at this point on a day of
     trial still figuring out whether or not to make a
     motion. I don’t understand that.

     . . . .


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     CDC: The witness list that we received on Friday had
     a, I think, Sam Warren on it and we were not notified
     until just recently that it was going to be Miss
     Martin instead. And there were statements made to her
     that we believe are suppressible. . . .

     After Ms. Martin testified, defense counsel moved to strike

her testimony as violative of the Fifth and Sixth Amendments.

The military judge ruled that the motion was untimely because it

was made after Appellant’s plea of guilty, however, he also

reminded Appellant it was not too late for Appellant to withdraw

his guilty plea.   Furthermore, the military judge noted that, if

Appellant withdrew his guilty plea, he would be allowed to

resubmit the motion to suppress Ms. Martin’s testimony.   During

the aggravation portion of the presentencing hearing, the

military judge admitted Appellant’s statement that he “needed a

touch.”

                            DISCUSSION

     The parties dispute the application of M.R.E. 304(d)(2)(A)

and 304(d)(5).

     M.R.E. 304(d)(2)(A) provides:

     Motions to suppress or objections under this rule or
     [M.R.E. 302 or 305] to statements that have been
     disclosed shall be made by the defense prior to
     submission of a plea. In the absence of such motion
     or objection, the defense may not raise the issue at a
     later time except as permitted by the military judge
     for good cause shown. Failure to so move or object
     constitutes a waiver of the objection.

     M.R.E. 304(d)(5) provides:


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United States v. Farley, No. 03-0646/AR



     Except as otherwise expressly provided in R.C.M.
     910(a)(2), a plea of guilty to an offense that results
     in a finding of guilty waives all privileges against
     self-incrimination and all motions and objections
     under this rule with respect to that offense
     regardless of whether raised prior to plea.

     Even if the military judge did err in applying these two

rules, we hold that error was harmless beyond a reasonable

doubt.   See United States v. Cuento, 60 M.J. 106, 111 (C.A.A.F.

2004).

     When the social worker interviewed Appellant in jail,

Appellant said that he had just returned from a field exercise

and needed to engage in some kind of sex.   He described this as

“need[ing] a touch.”   This “touch” could have been from his wife

or his mother, if she had been there, Appellant said.   When

asked about Appellant’s expressed desire to touch his mother,

the social worker could not remember the circumstances or what

Appellant meant.   Nor did she follow up as to the meaning of his

statement.

     The stipulation of fact and a videotape of the victim’s

statement to an investigator set forth in detail the numerous

instances of rape, sodomy, and indecent acts with HF over an

extensive period of time.    Given the overwhelming nature of this

evidence, if there was any error in this case, it was harmless

beyond a reasonable doubt.




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United States v. Farley, No. 03-0646/AR


     The decision of the United States Army Court of Criminal

Appeals is affirmed.




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