              UNITED STATES NAVY-MARINE CORPS
                 COURT OF CRIMINAL APPEALS
                      WASHINGTON, D.C.

                                 Before
                           THE COURT EN BANC

                      UNITED STATES OF AMERICA

                                     v.

                        MYLES R. SPURLING
            PRIVATE FIRST CLASS (E-2), U.S. MARINE CORPS

                            NMCCA 201400124
                        SPECIAL COURT-MARTIAL

Sentence Adjudged: 26 November 2013.
Military Judge: LtCol C.M. Greer, USMC.
Convening Authority: Commanding Officer, 10th Marine
Regiment, 2d Marine Division, Camp Lejeune, NC.
Staff Judge Advocate's Recommendation: Maj J.N. Nelson,
USMC.
For Appellant: Maj John Stephens, USMC.
For Appellee: Maj David Roberts, USMC; Maj Paul M. Ervasti,
USMC.

                            16 October 2014

     ---------------------------------------------------
                     OPINION OF THE COURT
     ---------------------------------------------------

THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

WARD, S.J., delivered the opinion of the court in which
MITCHELL, C.J., MCFARLANE, S.J., HOLIFIELD, J., and BRUBAKER,
J., concur. KING, J., filed a dissenting opinion joined by
FISCHER, S.J., and MCDONALD, J..

WARD, Senior Judge:

     A special court-martial, consisting of members with
enlisted representation, convicted the appellant, contrary to
his pleas, of one specification of making a false official
statement, in violation of Article 107, Uniform Code of Military
Justice.1 The members sentenced the appellant to reduction to
pay grade E-1 and a bad-conduct discharge. The convening
authority approved the sentence as adjudged but, as a matter of
clemency, suspended the bad-conduct discharge for a period of
twelve months.

     On appeal, the appellant asserts three assignments of
error: (1) that the military judge committed plain error by
failing to suppress the appellant’s statements obtained in
violation of Article 31(b), UCMJ, and the Fifth Amendment;2 (2)
that trial defense counsel (TDC) were ineffective for failing to
object to admission of his statements; and (3) that his sentence
was inappropriately severe. After carefully considering the
record of trial and the submissions of the parties, we find
merit in the appellant’s third assigned error and grant relief
accordingly. Following our corrective action, we find no error
materially prejudicial to a substantial right of the appellant
remains. Arts 59(a), 66(c), UCMJ.

                            Factual Background

     A member of 10th Marine Regiment (10th Marines) the
appellant was temporarily attached to augment the 1st Battalion,
10th Marines (1/10) during an Integrated Training Exercise (ITX)
in May 2013. Personnel from both 10th Marines and 6th Marines
participated in the ITX at Twentynine Palms, California. The
Marines were billeted at Camp Wilson, a small camp within the
training area where personnel participating in ITX staged. Camp
Wilson included a recreational facility that served food and
beer called the “Warrior Club”. Although Marines of legal
drinking age could drink beer at the Warrior Club, the 1/10
commanding officer issued an order prohibiting all 1/10
personnel from consuming any alcohol while at ITX.
Consequently, 1/10 was a “dry” battalion for the duration of the
exercise.

     On 30 May 2013, the appellant went to the Warrior Club
where he bought two cups of beer and sat down at a table with
two other 1/10 Marines, Lance Corporal (LCpl) Mulhauser and LCpl
Terry. After he sat down, he offered one of his beers to the
two Marines who responded that they were not permitted to drink.

1
    10 U.S.C. § 907.
2
  For the reasons discussed in our analysis of the appellant’s ineffective
assistance claim, we find no plain and obvious error by the military judge.


                                      2
LCpl Mulhauser testified at trial that the appellant appeared
surprised when they said this and the appellant said that he was
unaware of the no-alcohol order.3

     Sitting several tables away playing cards were two
noncommissioned officers (NCOs), Corporal (Cpl) Brooks and
Sergeant (Sgt) Moyta. Both were members of 1/10 and Cpl Brooks,
like the appellant, was assigned to Headquarters Battery, 1/10.
Cpl Brooks recognized the appellant as he walked by holding two
cups of beer. Cpl Brooks then told Sgt Moyta that “one of our .
. . Headquarters Battery Marines is over here, and he’s got two
beers in front of him.”4 Cpl Brooks, accompanied by Sgt Moyta,
then approached the table where the appellant was sitting. At
trial, Cpl Brooks testified to the following exchange:

        “A [Cpl Brooks]: . . . I talked to PFC Spurling and I
           said: “What do you have?” He told me: “Beer.”
           Therefore confirming what I thought. I said:
           “Okay. Who are you with?” He stated: “Regiment.”
           I said: “Okay. What Regiment?” And he just – he
           gave me a blank stare, I said: “Well, there’s 6th
           Marine Regiment, there’s 10th Marine Regiment,”
           naming off the units that were . . . part of ITX.
           At that time he said, “6th Marine Regiment.” I
           said: “Try again.”

        Q: And why did you say “try again?”
        A: Because I knew that he was not being honest with
           me.

        Q: [D]id you know what regiment he was part of?
        A: . . . I did at that time . . . .

        Q: Then why did you ask him?
        A: Well I asked him because I wanted him to tell me
           what he was doing and tell me what he was doing
           wrong.

        Q: Okay. So after he said “6th Marine Regiment,” what
           did you say?
        A: I said, “Try again.”

        Q: And what was his response?


3
    Record at 173.
4
    Id. at 197.
                                   3
        A: A blank stare. Then I said – I kind of looked    at
           him – we stared at each other for a minute, he
           looked at me and said: “10th Marine Regiment.”    I
           said: “Okay. That means that you are attached    to?”
           Implying that he would finish the sentence and   he
           just said “10th Marine Regiment.” And I said:    “So,
           you’re with 1/10 right?” And he said: “Yes.”     So,
           okay. “So you are aware of the fact that our
           battalion is dry?”

        Q: And what was his response . . . ?
        A: At that time he said: “Yes.”. . . I said: “So why
           are you drinking?” He said: “My staff sergeant
           said I could.”

           . . . .

        Q: Okay, after he told you that, what did you say?
        A: I said: . . . “Who’s your staff sergeant?” He said:
           “Staff Sergeant Good.” I asked -- I looked at him and
           said: “Your staff sergeant verbally stated that you
           could consume alcohol regardless of the battalion
           policy?” And he said: “Yes.”5

     Cpl Brooks also testified that during this exchange the
appellant was “disrespectful” and “rolled his eyes [and] didn’t
stand up.”6 Following this exchange, the appellant poured out
the beer and left the Warrior Club.

     Cpl Brooks testified that he and Sgt Moyta then went to
find Staff Sergeant (SSgt) Good. After Sgt Moyta explained the
incident, SSgt Good accompanied Sgt Moyta to the appellant’s
tent where SSgt Good confronted the appellant with both the
drinking and using his name. However, the appellant only
admitted to identifying SSgt Good as his platoon sergeant, he
denied telling Cpl Brooks that SSgt Good authorized him to drink
alcohol.7

     At no time did Cpl Brooks or SSgt Good inform the appellant
of his rights under Article 31(b), UCMJ. Ultimately, the
appellant was charged with failing to obey the 1/10 commanding

5
    Id. at 186-87.
6
    Id. at 188.
7
    Id. at 226.


                                   4
officer’s no-alcohol order and with making a false official
statement by stating that “Staff Sergeant Good said it was o.k.
for me to drink alcohol” or words to that effect.8 At trial, the
appellant’s statements to Cpl Brooks and SSgt Good were admitted
without objection.

     Although they raised no objection, TDC9 disputed the
Government’s theory that the appellant knew of the no-alcohol
order. TDC called several witnesses who testified that the
command relied upon formations to inform 1/10 Marines of the
order and that the appellant may not have been at these
formations. In closing argument and in reference to the
allegation that the appellant made a false official statement,
TDC highlighted the inconsistencies in the Government witnesses’
testimony and argued that these inconsistencies were evidence
that the appellant “never said that.”10 The members acquitted
the appellant of failing to obey a lawful order, but convicted
him of making a false official statement.

                      Ineffective Assistance of Counsel

     On appeal, the appellant alleges that Cpl Brooks was
required to provide him Article 31(b), UCMJ, rights warnings
prior to questioning him, and that failing to do so rendered his
statement inadmissible at trial.11 Concomitantly, the appellant
alleges that TDC’s failure to file a motion to suppress or
object to admission of the appellant’s statement amounted to
ineffective assistance under Strickland v. Washington, 466 U.S.
668 (1984). The Government counters that Strickland is an
“extremely deferential” standard and that TDC’s failure to
challenge the statement was a strategic or tactical decision
that this court should not “second-guess.”12

     This court ordered affidavits from both TDC, wherein 1stLt
B candidly concedes that she failed to “recognize the issue
based on [her] lack of experience, the work load at the time,

8
     Charge Sheet.
9
  The appellant was represented by First Lieutenant (1stLt) B and Captain
(Capt) B. 1stLt B acted as lead defense counsel. Unless otherwise
specified, “TDC” refers to both.
10
     Record at 322.
11
     Appellant’s Brief of 29 Apr 2014 at 28-29.
12
     Government Brief of 30 Jun 2014 at 15.


                                         5
and never having argued an Article 31 issue” and that she
“should have filed a motion to suppress.”13 Capt B concurs,
stating that had the issue occurred to him “[he] would have
proposed filing it.”14 Both TDC acknowledge that it was not
until after participating in a post-trial debrief with the
military judge, who asked whether they had filed a suppression
motion, that they recognized the issue.15

     An accused service member is guaranteed the right to
effective assistance of counsel through the Sixth Amendment.16
We analyze ineffective assistance of counsel claims under the
two-prong test outlined in Strickland. In order to prove
ineffective assistance of counsel, the appellant must show: (1)
that his trial counsel’s performance was deficient and (2) that
the deficiency resulted in prejudice.17 “When reviewing
ineffectiveness claims, ‘a court need not determine whether
counsel’s performance was deficient before examining the
prejudice suffered by the [appellant].’ . . . Rather, ‘[i]f it
is easier to dispose of an ineffectiveness claim on the ground
of lack of sufficient prejudice, which we expect will often be
so, that course should be followed.’” United States v. Datavs,
71 M.J. 420, 424-25 (C.A.A.F. 2012) (quoting Strickland, 466
U.S. at 697). Because we conclude that the appellant has failed
to demonstrate prejudice in this case, we do not reach the
question of deficient performance.

     “‘[W]hen a claim of ineffective assistance of counsel is
premised on counsel’s failure to make a motion to suppress
evidence, an appellant must show that there is a reasonable
probability that such a motion would have been meritorious.’”
United States v. Jameson, 65 M.J. 160, 163-64 (C.A.A.F. 2007)
(quoting United States v. McConnell, 55 M.J. 479, 482 (C.A.A.F.
2001). Moreover, the likelihood of success on the motion to
suppress must be “substantial, not just conceivable.” Cullen v.


13
  Government Response to Court Order filed on 23 Jul 2014, 1stLt B Affidavit
at ¶ 7.
14
  Government Response to Court Order filed on 14 Aug 2014, Capt B Affidavit
at ¶ 5.
15
  The trial judge did not preside over arraignment or pretrial motion
hearings.
16
     United States v. Gooch, 69 M.J. 353, 361 (C.A.A.F. 2011).
17
     United States v. Scott, 24 M.J. 186, 188 (C.M.A. 1987).


                                         6
Pinholster, ___ U.S. ___, 131 S.Ct. 1388, 1403 (2011) (citation
and internal quotation marks omitted).18

     In the unique context of a case where the defect is failure
to raise a motion, we first must evaluate the likelihood of that
motion’s success before moving onto the question of any impact
on the fact finder and the verdict. In this case, we conclude
that the appellant fails to show a substantial likelihood of
success in prevailing on a motion to suppress and, accordingly,
we find that he fails to carry his burden of demonstrating
prejudice.

     Official Law-Enforcement or Disciplinary Capacity

     The Court of Military Appeals has held that, “[b]ecause of
the effect of superior rank or official position upon one
subject to military law, the mere asking of a question under
certain circumstances is the equivalent of a command.” United
States v. Duga, 10 M.J. 206, 209 (C.M.A. 1981). Specifically,
the Court of Military Appeals affirmed that, “[c]areful
consideration of the history of the requirement of warning,
compels a conclusion that its purpose is to avoid impairment of
the constitutional guarantee against compulsory self-
incrimination. . . . A person subjected to these pressures may
rightly be regarded as deprived of his freedom to answer or to
remain silent.” Id. This protection applied to situations in
which, “because of military rank, duty, or other similar
relationship, there might be subtle pressure on a suspect to
respond to an inquiry.” United States v. Price, 44 M.J. 430,
432 (C.A.A.F. 1996) (citing United States v. Gibson, 14 C.M.R.
164 (C.M.A. 1954)).

     However, the court also expressed concern that a literal
application of Article 31 would “potentially have a
comprehensive and unintended reach into all aspects of military
life and mission.” United States v. Cohen, 63 M.J. 45, 49

18
  Although the standard of “reasonable probability” may suffer from a lack of
granularity, any difference between this standard and the more familiar
standard of preponderance of the evidence “is slight and matters ‘only in the
rarest case.’” Harrington v. Richter, 562 U.S. 86, 131 S. Ct. 770, 791-92
(2011) (quoting Strickland, 466 U.S. at 693). Here, we employ a
“substantially different” standard from other cases where we evaluate
prejudice resulting from constitutional error. See United States v.
Gutierrez, 66 M.J. 329, 331 (C.A.A.F. 2008) (rejecting harmless beyond a
reasonable doubt standard used by service court of appeals, instead finding
that, but for counsel’s assumed deficiency, “it is just as likely that the
members would have convicted as it is that they would have acquitted.”).


                                      7
(C.A.A.F. 2006) (discussing Gibson). Therefore, the Court of
Appeals for the Armed Forces narrowed the aperture by declaring
that Article 31(b) rights warnings are required only if: (1) the
person being interrogated is a suspect at the time of
questioning, and (2) the person conducting the questioning is
participating in an official law enforcement or disciplinary
investigation or inquiry.19

     On this second requirement, Article 31(b) warnings must be
provided to a suspect if “‘the person conducting the questioning
is participating in an official law enforcement or disciplinary
investigation or inquiry,” United States v. Swift, 53 M.J. 439,
446 (C.A.A.F. 2000), as opposed to “a personal motivation for
the inquiry,” United States v. Jones, 73 M.J. 357, 361 (C.A.A.F.
2014), or an administrative or operational purpose, Cohen, 63
M.J. at 51.20 Any questioning of a suspect by a military
superior in his immediate chain of command will create a “strong
presumption” that the questioning was for disciplinary purposes.
Swift, 53 M.J. at 448 (citing United States v. Good, 32 M.J.
105, 108 (C.M.A. 1991)).

      Thus to evaluate the merit of a motion to suppress, we
must examine all “the facts and circumstances at the time of the
interview to determine whether [Cpl Brooks] was acting or could
reasonably be considered to be acting in an official law-
enforcement or disciplinary capacity.”21 Swift, 53 M.J. at 446
(internal quotation marks omitted). Whether Cpl Brooks could
reasonably be considered to be acting in such an official
capacity, is “judged by reference to ‘a reasonable man in [the
appellant’s] position.’” Jones, 73 M.J. at 362 (quoting Good,
32 M.J. at 108 n.2). These are questions we determine de novo.22

     We first turn our attention to the relationship between Cpl
Brooks and the appellant. The record makes abundantly clear
that Cpl Brooks did not occupy a supervisory position in the
appellant’s chain of command as envisioned under Swift. He was


19
     United States v. Swift, 53 M.J. 439, 446 (C.A.A.F. 2000).
20
     See also United States v. Loukas, 29 M.J. 385 (C.M.A. 1990).
21
  Because our analysis turns on the second prong of Swift, i.e. whether the
questioner is acting pursuant to an official law enforcement or disciplinary
investigation or inquiry, we need not address whether the appellant was a
suspect at the time Cpl Brooks questioned him.
22
     Jones, 73 M.J. at 361.


                                         8
no more than an NCO in the appellant’s battery.23 In fact, he
testified on cross that the appellant was not in his section of
between four and eight Marines.24 Therefore, we find little
evidence to support the “strong presumption” articulated in
Swift.

     Second, we examine the context of their conversation. Cpl
Brooks explained at trial that he went over to the appellant’s
table to “confront” him, and their conversation could hardly be
described as purely casual. But not all official interaction
between a senior and a subordinate is per se “disciplinary.”25
When Cpl Brooks went over to the appellant’s table with Sgt
Moyta, his stated purpose in confronting the appellant for
approximately “two minutes” was for “[the appellant] to tell me
exactly what he was doing wrong first. I wanted to instruct the
Marine, not just belittle him, anything of that nature. I
wanted to let him know [he was] doing wrong, now correct it.”26
LCpl Mulhauser, sitting at the table next to the appellant,
shared a similar view and described the conversation as a
“counseling.”27 In particular, LCpl Mulhauser described it as
follows:

           I know that Corporal Brooks, Sergeant Brooks now, came
           over with the intentions to counsel him, to inform him
           that 1/10 was dry. And Sergeant Moyta – I don’t
           recall him saying anything. Midway thru (sic), Terry
           and I got up and left the table to let the NCOs do
           their thing with a junior Marine. But I don’t recall
           specifics, I know vaguely that it was meant to be a
           counseling session to more – to inform him that, hey,
           even though you’re a detachment you still can’t
           drink.28

23
     Record at 184-85.
24
  Id. at 194. Cpl Brooks testified that he did not even know the appellant
until seeing him at a headquarters battery formation at ITX. While Cpl
Brooks was also a member of headquarters battery, he testified that his only
interaction with the appellant was on occasion as Corporal of the Guard when
he assigned basic watches to the appellant on the fire watch roster. Id. at
185.
25
     See, e.g., Loukas, 29 M.J. at 389.
26
     Record at 199-200 (emphasis added).
27
     Id. at 173-74.
28
     Id.


                                           9
     Also informative is the setting where this conversation
occurred -- the Warrior Club, a large recreational facility
where Marines from the ITX could relax and in the words of LCpl
Mulhauser “get our free time on”.29 Cpl Brooks and Sgt Moyta
were sitting nearby playing cards when the situation dictated
that they intercede. Furthermore, the appellant’s attitude
during the conversation suggests nothing more than informal
counseling. Both Sgt Moyta and Cpl Brooks testified that
throughout the conversation the appellant remained
“disrespectful”, “rolled his eyes”, and acted “a little bit
belligerent.”30

     Still another fact is the grade and the position of the
questioner. Cpl Brooks, other than being an NCO, held no
official law enforcement or disciplinary position at the time.
He was not acting as a military policeman, a corporal of the
guard, or a sentinel. To the contrary, he was on liberty
playing cards a few tables away from the appellant. Although he
went over to confront the appellant, there is no evidence
indicating that his purpose was to take formal disciplinary
action such as place the appellant under apprehension,
interrogate him, or request a formal statement. On the
contrary, his self-described purpose was far more informal -- he
wanted the appellant simply to “tell me what he was doing and
tell me what he was doing wrong.”31

     Even if Cpl Brooks realized the possibility of further
action in light of other alcohol-related incidents in the
command,32 we still must look at the totality of the
29
     Id. at 171.
30
     Id. at 188, 206.
31
  Id. at 187. Other than military police and perhaps a few other limited
situations, law enforcement investigations and official disciplinary matters
such as conducting preliminary inquiries, interrogating suspects and/or
taking formal witness statements are not the normal province of an E-4. See
Loukas, 29 M.J. at 388 (cautioning against overly broad application of
Article 31 to those not normally involved in interrogating or requesting
statements from others suspected of crime) (quoting Gibson, 14 C.M.R. at
170).
32
  Cpl Brooks and Sgt Moyta testified that they had heard or were aware of
other alcohol-related incidents within the battalion. However, the only
evidence in the record of any other alcohol-related incident resulting in
disciplinary action came from the commanding officer who testified that
beside the appellant, there was one other “alcohol-related incident” during
the ITX. That incident involved the battalion color sergeant and resulted in
some form of reprimand or disciplinary action. Record at 163-64.


                                     10
circumstances, including “whether the questioning was ‘designed
to evade the accused’s constitutional or codal rights.’” Cohen,
63 M.J. at 50 (quoting United States v. Bradley, 51 M.J. 437,
441 (C.A.A.F. 1999)). As revealed by the testimony above, there
is no evidence of any such intent by Cpl Brooks. Rather, the
record makes abundantly clear that any actions occurring
afterward that took on a more official appearance, e.g. SSgt
Good confronting the appellant later in the appellant’s tent,
arose from the appellant’s unwise decision to use SSgt Good’s
name.

     The facts in the record do not support a reasonable
probability of success on a motion to suppress the appellant’s
statements to Cpl Brooks. Any chance of success turns on
whether Cpl Brooks was acting in an official law enforcement or
disciplinary capacity at the time of his questioning. On this
record, the appellant faces several significant hurdles in
meeting that challenge, not the least of which is Cpl Brooks’s
own testimony describing his intent as administrative in nature
– to “fix” or “correct” a junior Marine seemingly ignoring the
rules. A second obstacle to the appellant’s likelihood of
success is the objective viewpoint of LCpl Mulhauser who
likewise described the conversation as an informal “counseling.”

     These facts, together with the remainder, lead us to
conclude that the appellant’s chances of prevailing on a
suppression motion fall short of the “substantial, not just
conceivable” likelihood necessary. Pinholster, 131 S.Ct. at
1403. Therefore, even assuming that TDC were deficient, we
conclude that the appellant fails to carry his burden of
demonstrating prejudice within the meaning of Strickland.

                           Sentence Appropriateness

     In his final assignment of error, the appellant contends
that a bad-conduct discharge is inappropriately severe. We
agree. In accordance with Article 66(c), UCMJ, we “may affirm
only such findings of guilty and the sentence or such part or
amount of the sentence as [we] find[] correct in law and fact
and determine[], on the basis of the entire record, should be
approved.” Sentence appropriateness involves the judicial
function of assuring that justice is done and that the accused
gets the punishment he deserves.33 This requires
“‘individualized consideration’ of the particular accused ‘on

33
     United States v. Healy, 26 M.J. 394, 395 (C.M.A. 1988).


                                        11
the basis of the nature and seriousness of the offense and the
character of the offender.’” United States v. Snelling, 14 M.J.
267, 268 (C.M.A. 1982) (quoting United States v. Mamaluy, 27
C.M.R. 176, 180-81 (C.M.A. 1959)). We independently determine
the appropriateness of the sentence in each case we affirm.34

     Following challenges and excusals, the military judge
empanelled four enlisted members; a staff sergeant (E-6) and
three corporals (E-4). After presentation of evidence and
argument, the panel found the appellant not guilty of failing to
obey the battalion commander’s no-alcohol order, but guilty of
making a false official statement by saying that SSgt Good
authorized him to drink alcohol. Based on the members’ verdict,
we are left with only a single instance of lying to an NCO while
being counseled.

     Considering the panel composition, the nature of the
members’ verdict, and the lack of any readily identifiable
aggravating circumstances, we are not “assur[ed] that justice
[was] done and that the [appellant] g[ot] the punishment he
deserve[d].” United States v. Healy, 26 M.J. 394, 395 (C.M.A.
1988).

                                   Conclusion

     Accordingly, we affirm the findings of guilty and only so
much of the approved sentence as provides for reduction to pay
grade E-1.

Chief Judge MITCHELL, Senior Judge MCFARLANE, Judge HOLIFIELD,
and Judge BRUBAKER concur.


KING, Judge (dissenting):

     While I concur with the majority’s finding that a bad-
conduct discharge is not appropriate in this case, I would
reverse the appellant’s conviction because of ineffective
assistance of counsel. In my view, the majority’s “mechanical”
analysis is the very approach that the Supreme Court cautioned
against in Strickland v. Washington, 466 U.S. 668 (1984).
Instead, the record indicates a “reasonable probability” that a
motion to suppress would have merit and I would return the case
to provide the appellant the opportunity to litigate that

34
     See United States v. Baier, 60 M.J. 382, 384-85 (C.A.A.F. 2005).


                                        12
motion. Without that opportunity, I am not convinced that the
appellant received a fair trial. Accordingly, I respectfully
dissent.

         1.   Trial defense counsel’s performance was deficient

     I begin by recognizing that scrutiny of trial defense
counsels’ (TDC) performance “must be highly deferential” and
that there is a “strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance[.]”
Id. at 689. Since counsel are presumed competent, an appellant
must rebut this presumption by showing specific errors that were
unreasonable under prevailing professional norms.1

     A servicemember’s protection against compulsory self-
incrimination is a “fundamental right” protected by Article 31,
UCMJ. United States v. Mapes, 59 M.J. 60, 65 (C.A.A.F. 2003).
Although reasonable minds may differ on when Article 31(b)
applies to a given situation, there can be no determination one
way or the other without first recognizing and analyzing the
issue. Therefore, it is incumbent upon counsel to recognize
issues relating to a servicemember’s right against self-
incrimination in the military context. Here, TDC concede that
they failed to do so until the issue was raised by the military
judge during a post-trial debrief. While I recognize that
counsels’ admirable efforts with respect to Charge I resulted in
an acquittal, their failure to at least recognize the Article 31
issue at play with respect to Charge II fell below prevailing
professional norms. As such, it was deficient.2 Neither
“inexperience” nor “workload” can justify such a deficiency.

                               2.   Prejudice

     Turning to prejudice, the appellant must show that there
was a “reasonable probability” that a suppression motion would
have been meritorious had his counsel raised an Article 31(b),
UCMJ, motion. United States v. Jameson, 65 M.J. 160, 163-64
(C.A.A.F. 2007) (quoting United States v. McConnell, 55 M.J.
479, 482 (C.A.A.F. 2001)) (additional citation and internal

1
  United States v. Scott, 24 M.J. 186, 188 (C.M.A. 1987) (citing United States
v. Cronic, 466 U.S. 648 (1984)).
2
  See Murray v. Carrier, 477 U.S. 478, 496 (1986) (stating that the right to
effective counsel “may in a particular case be violated by even an isolated
error of counsel if that error is sufficiently egregious and prejudicial.”
(quoting Cronic, 466 U.S. at 657, n.20)).


                                     13
quotation marks omitted). A reasonable probability is “a
probability sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694. To determine whether there is a
reasonable probability that a suppression motion would have been
successful, it is necessary to consider the merits of the
Article 31(b) issue.

     Article 31(b), UCMJ provides: “No person subject to this
chapter may interrogate, or request any statement from . . . 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 against him in a trial by court-martial.”

A.   Suspect

     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
M.J. 105, 108 (C.M.A. 1991) (citations omitted). See also
United States v. Jones, 73 M.J. 357 (C.A.A.F. 2014).

     Corporal (Cpl) Brooks testified that he knew the appellant
was a member of 1/10; that he knew of the order prohibiting
members of 1/10 from consuming alcohol while at the ITX; and
that he saw the appellant at the ITX with two cups of beer in
his hand. Upon seeing the appellant with the beer, Cpl Brooks
testified that he became suspicious that the appellant was
violating a lawful order. Under the totality of the
circumstances, and considering the “relatively low quantum of
evidence required to treat an individual as a suspect,” United
States v. Swift, 53 M.J. 439, 447 (C.A.A.F. 2000), I have little
difficulty concluding that Cpl Brooks believed that the
appellant had committed an offense.

B.   Disciplinary Capacity

     Under applicable case law, Article 31(b) does not require
that a suspect be warned of his rights before questioning unless
“the military questioner was acting or could reasonably be
considered to be acting in an official law-enforcement or
disciplinary capacity.” Jones, 73 M.J. at 361 (quoting United
States v. Cohen, 63 M.J. 45, 50 (C.A.A.F. 2006)) (additional
citation and internal quotation marks omitted). This is a

                               14
question of law that an appellate court reviews de novo.3            On
this question of law, I disagree with the majority.

     The record is clear that Cpl Brooks did not have any law-
enforcement responsibilities. As such, there is no reasonable
probability that the appellant would have prevailed on a
suppression motion due to a finding that Cpl Brooks was acting
in an official law-enforcement capacity when he questioned the
appellant.

     Conversely, and contrary to the majority’s attempts to
characterize this as an “informal” interaction, it is equally
clear that Cpl Brooks’ questioning of the appellant was not a
casual conversation between friends. If the questioning had
been part of a casual conversation, then the appellant could not
have been convicted of making a false official statement.4
Moreover, the record is clear that the appellant and Cpl Brooks
were not friends. Indeed, any interaction between Cpl Brooks
and the appellant previous to the questioning was purely
“professional in nature” based upon Cpl Brooks supervisory
responsibilities over the appellant as Corporal of the Guard
when the appellant stood watches.5

     And so the question of prejudice boils down to whether, had
the suppression motion been raised, there is a reasonable
probability that the military judge would have found: (1) that
Cpl Brooks was acting in an official disciplinary capacity, or
(2) that Cpl Brooks could reasonably be considered to be acting
in a disciplinary capacity. The majority answers both questions
in the negative.

     Before turning to the record, I begin by noting my
disagreement with the majority’s choice of standard to apply to
this analysis. The majority is correct that there is a
“substantial difference” between a Strickland prejudice analysis
and the standard of harmless beyond a reasonable doubt that
applies to other constitutional errors. But in United States v.
Gutierrez, 66 M.J. 329 (C.A.A.F. 2008), which the majority cites
to elucidate the standard that applies to our prejudice
analysis, the court was more concerned with which party bears
the burden of showing prejudice, not the quantum of proof needed

3
    Jones, 73 M.J. at 361.
4
    See United States v. Spicer, 71 M.J. 470, 474 (C.A.A.F. 2013).
5
    Record at 185.


                                        15
to undermine an appellate court’s confidence in the outcome of
the case.6 On the quantum of proof required, Strickland is more
instructive, stating “a defendant need not show that counsel’s
deficient conduct more likely than not altered the outcome in
the case.” 466 U.S. at 693. Instead, “the appropriate test for
prejudice ... [is whether] there is a reasonable probability
that, but for the [deficiency] the result of the proceeding
would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.”
Id.

     Struggling to define “reasonable probability,” the majority
expands this test and announces in a footnote that the
“reasonable probability” standard is akin to a preponderance of
the evidence.7 But in my view, reliance upon such dicta trounces
the “fundamental fairness” standard of Strickland.

     In defining “reasonable probability” as akin to a
preponderance of the evidence, the majority cites to Harrington
v. Richter, 562 U.S. 86, 131 S. Ct. 770 (2011). In Richter, the
appellant’s prejudice argument rested on the notion that the
Government’s overwhelming evidence of guilt in a murder trial
could have been countered by expert testimony about “a
theoretical possibility” that the police were initially mistaken
about the exact location of the fatal shooting. Richter, 131 S.
Ct. at 792. Though dicta from Richter does compare Strickland’s
“reasonably likely” standard to a “more-probable-than-not
standard,” it does not say that the two standards are
equivalent. And that dicta from Richter is supported by nothing
more than citations back to Strickland.

     By fashioning a more demanding interpretation of
Strickland’s reasonable-probability standard, the majority falls
prey to exactly what Strickland cautioned against — an overly-
mechanical application of the standards set forth in that case.
In fact, Strickland provides that, when we assess prejudice, we
have broad discretion to ensure justice:



6
  Gutierrez, 66 M.J. at 331-32 (“By applying a ‘harmless beyond reasonable
doubt’ test for prejudice, the ACCA improperly shifted the burden to the
Government[.]”).
7
  Majority Opinion at n.20 (“Although the standard of “reasonable probability”
may suffer from a lack of granularity, any difference between this standard
and the more familiar standard of preponderance of the evidence “is slight
and matters ‘only in the rarest case.’” (Citations omitted)).


                                     16
         [I]n adjudicating a claim of actual ineffectiveness of
         counsel, a court should keep in mind that the
         principles we have stated do not establish mechanical
         rules. Although those principles should guide the
         process of decision, the ultimate focus of inquiry
         must be on the fundamental fairness of the proceeding
         whose result is being challenged. In every case the
         court should be concerned with whether, despite the
         strong presumption of reliability, the result of the
         particular proceeding is unreliable because of a
         breakdown in the adversarial process that our system
         counts on to produce just results.

466 U.S. at 696.        Nothing in Richter abrogates this statement of
the law.

     Even more to the point, the Supreme Court said that the
choice of standard for the prejudice analysis “should alter the
merit of an ineffectiveness claim only in the rarest case.” Id.
at 697. Fundamental fairness, then, is the standard we apply.
Everything else is dicta.

     Nevertheless, relying upon dicta, a constricted
interpretation of the facts, and absolute conclusions about
intentions, the majority declares that “the appellant’s chances
of prevailing on a suppression motion fall short” of a
substantial likelihood of success. The majority’s conclusion is
misplaced for several reasons.

     First, the majority claims that Cpl Brooks was acting in an
official albeit non-disciplinary capacity when he questioned the
appellant. Case law provides numerous examples of official yet
non-disciplinary reasons for questioning a service member. A
medical officer who asks questions for the purpose of diagnosis
is acting in an official yet non-disciplinary capacity.8   A
commander who asks questions for the operational purpose of
determining whether to terminate a service member’s security
clearance is acting in an official yet non-disciplinary
capacity.9 A crew chief who asks questions for the safety-
related purpose of determining whether a crew member’s erratic
behavior during a flight is due to drug use is acting in an
official yet non-disciplinary capacity.10 And so on.

8
     United States v. Fisher, 44 C.M.R. 277, 278-79 (C.M.A. 1972).
9
     United States v. Bradley, 51 M.J. 437, 441 (C.A.A.F. 1999).
10
     United States v. Loukas, 29 M.J. 385, 387 (C.M.A. 1990).
                                         17
     However, the facts of this case are not analogous to any
case in which a questioner was found to be acting in an official
yet non-disciplinary capacity. There was neither an operational
nor a safety-related purpose behind Cpl Brooks’ questioning of
the appellant. And contrary to the suggestion in the majority’s
opinion, there was also no “administrative” purpose behind the
questioning. Rather, Cpl Brooks testified, “I asked him because
I wanted him to tell me what he was doing and tell me what he
was doing wrong.”11 On cross examination, Cpl Brooks elaborated:

        A.    I saw him sit down with two beers in his hand,
              ma’am.
              . . .

        Q.    And in your mind did you think there’s a problem?
        A.    Yes, ma’am.

        Q.    Why did you think there was a problem?
        A.    It’s a violation of the rules.

              . . .

        Q.    Okay. So tell us -- what is you[r] conversation
              like with Sergeant Moyta?
        A.    I looked at Sergeant Moyta, I said, one of our
              guys over here, Headquarters Battery Marines is
              over here, and he’s got two beers in front of
              him.

        Q.    Okay. And rules are rules; right?
        A.    Rules are rules, yes, ma’am.

        Q.    And you don’t want to tolerate that, anyone
              breaking the rules; right?
        A.    No, ma’am.

        Q.    Okay. And so in order to make sure that good
              order and discipline was followed you went over
              there and you wanted to make sure it was
              corrected; right?
        A.    Yes, ma’am.12



11
     Record at 187.
12
     Id. at 197-98.


                                   18
     The majority finds that Cpl Brooks stated desires “to
correct” the appellant is conclusive evidence that Cpl Brooks
intended the confrontation to be an “informal counsel[ing],”
implying that Cpl Brooks had no intention of forwarding the
matter up the chain for discipline. They buttress this
certainty by relying upon LCpl Mauhauser’s completely
speculative statement about what Cpl Brooks’ intentions actually
were and the fact that LCpls Mulhauser and Terry reacted by
getting up and leaving the table. While I recognize the
majority’s interpretation of intentions may be correct, I also
recognize that it may not.

     Instead, it is just as reasonable to conclude that Cpl
Brooks’ stated desire to “correct” the appellant was another way
of saying that he intended to enforce compliance with an order
that he believed the appellant was violating and, once
corrected, would then report that violation to the appellant’s
immediate superiors for action as deemed appropriate.
Tellingly, that is exactly what he did. The majority's
conclusion that the appellant's misconduct was only reported
because of “the appellant's unwise decision to use SSgt Good's
name,” is similarly myopic guesswork.

     The record repeatedly reflects the battalion commander’s
(CO) concern about 1/10 Marines consuming alcohol during the
ITX. The CO testified that, “we were going to focus on training
. . . on putting rounds down range safely and accurately.”13 The
no-alcohol consumption order was “a matter of safety and trying
to keep all hands focused on the mission[.]”14 The CO announced
that he would have a “zero tolerance” policy for consuming
alcohol at staff meetings and battalion all-hands formations.15
Thereafter, and prior to the appellant consuming alcohol, at
least one other battalion Marine was charged with consuming
alcohol and received NJP in a manner that “was very evident” to
the rest of the battalion.16



13
     Id. at 160.
14
     Id.
15
     Id. at 159.
16
  Id. at 164. Cpl Brooks testified that “[p]retty much everybody    knew that
the other Marines had got in trouble for drinking.” Id. at 188.     SSgt Good
testified “[a] few incidents where Marines got NJP’d for drinking   [the
drinking policy] was brought up there in the formations.” Id. at    216.


                                     19
     Considering the evident importance to the command of the
no-alcohol consumption policy, it is at least reasonable to
believe that Cpl Brooks would not have opted to handle this
matter alone. That Cpl Brooks would have forwarded the
appellant’s orders violation for discipline is even more
probable when one considers that, when the issue was brought to
the appellant’s supervisor’s attention, Staff Sergeant (SSgt)
Good asked the appellant “you know you weren’t supposed to
drink, right?”17 After the appellant responded in the
affirmative, SSgt Good said “you know there’s going to be
repercussions,” and the appellant “acknowledged that as well.”18
This is evidence that the battalion noncommissioned officers
knew that violations of the commanding officer’s order to
abstain from alcohol were not to be resolved with “counseling.”
However, again, the majority allows for no such interpretation.

     As for the majority’s reliance upon the reaction of the two
junior Marines who were sitting at the table, I’m left to wonder
how the majority would have expected LCpls Mulhauser and Terry
to react had Cpl Brooks IN FACT been acting in a disciplinary
capacity. It is likely that their reactions and conclusions
about intentions would have been no different.

     Finally, I find it highly probable that the appellant’s
decision to respond to Cpl Brooks’ questioning was influenced by
“subtle pressures” that exist in military society. See Jones,
73 M.J. at 360 (quoting United States v. Duga, 10 M.J. 206, 209
(C.M.A. 1981)). The incident took place while on a military
base during a break in a military exercise. Though he was in a
recreational facility, he was abruptly approached by not one but
two military superiors. One of these superiors launched
immediately into pointed questioning. The peers he had been
socializing with moments before got up and left. During this
exchange, the appellant became “upset.”19 Then, alone with two
of his seniors, the appellant’s attempts to equivocate were
dismissed out of hand. It is highly likely that the appellant,
a lance corporal, would feel compelled to respond to this
questioning by his military superiors.

     To be clear, I do not conclude that Cpl Brooks necessarily
had a duty to warn the appellant of his rights under Article

17
     Id. at 208.
18
     Id.
19
     Record at 279.


                               20
31(b). But I cannot join the majority’s reliance upon
assumptions, coupled with a mechanical application of
Strickland, to affirm this conviction. Instead, the deficiency
raises a substantial doubt in my mind about the outcome of this
court-martial, and that is precisely what — and all that — the
prejudice prong of Strickland requires.

     To summarize, I believe that a reasonable probability
exists that the military judge would have found that Cpl Brooks
was either acting in an official disciplinary capacity or could
reasonably be seen to be so acting. Accordingly, I am convinced
as a matter of law that a suppression motion would have had a
reasonable probability of success. Applying the standard of
fairness, while recognizing that the appellant has the burden of
showing prejudice, I am not convinced that the appellant
received a fair trial. In a fair trial, the appellant’s counsel
would have spotted and fully litigated the Article 31(b) issue
giving the military judge the opportunity to apply the law to
the fully-developed facts. Depriving the appellant of this
opportunity is a “breakdown in the adversarial process that our
system counts on to produce just results.” Strickland, 466 U.S
at 696.

    Therefore, I would set aside the findings and sentence.

Senior Judge FISCHER and Judge MCDONALD join in the dissent.

                                For the Court



                                R.H. TROIDL
                                Clerk of Court




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