UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                           Before
                               JOHNSON, KRAUSS and BURTON
                                  Appellate Military Judges

                              UNITED STATES, Appellant
                                            v.
                              Sergeant ERIC W. COOPER
                              United States Army, Appellee

                                   ARMY MISC 20110914

               Headquarters, 3rd Infantry Division and Fort Stewart
                          Tiernan Dolan, Military Judge
           Lieutenant Colonel Michael K. Herring, Staff Judge Advocate


For Appellee: Lieutenant Colonel Peter Kageleiry, Jr., JA (argued); Lieutenant
Colonel Imogene M. Jamison, JA; Major Jacob D. Bashore, JA; Lieutenant Colonel
Peter Kageleiry, Jr., JA (on brief); Colonel Patricia A. Ham, JA; Lieutenant Colonel
Peter Kageleiry, Jr., JA (on brief following remand).

For Appellant: Captain John D. Riesenberg, JA (argued); Major Ellen Jennings, JA;
Captain Chad M. Fisher, JA; Captain John D. Riesenberg, JA (on brief); Lieutenant
Colonel Amber J. Roach, JA; Captain Chad M. Fisher, JA; Captain John D.
Riesenberg, JA (on brief following remand).


                                      14 September 2012

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                   SUMMARY DISPOSITION AND ACTION ON APPEAL
                      BY THE UNITED STATES FILED PURSUANT TO
                  ARTICLE 62, UNIFORM CODE OF MILITARY JUSTICE
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KRAUSS, Judge:

       Appellee is charged with attempted sodomy, aggravated sexual assault,
aggravated sexual contact, two specifications of abusive sexual contact, five
specifications of indecent acts and five specifications of wrongful sexual contact in
violation of Articles 80 and 120, Uniform Code of Military Justice, 10 U.S.C. §§
880, 920 (2006 & Supp. III 2009) [hereinafter UCMJ]. On 21 December 2011, we
returned this matter to the military judge below for clarification in a decision
resolving appellant’s first Article 62, UCMJ, appeal of this matter. United States v.
Cooper, ARMY MISC 20110914, 2011 WL 6760356 (Army Ct. Crim. App. 21 Dec.
COOPER—ARMY MISC 20110914

2011) (mem. op.). The United States now files a second appeal under Article 62,
UCMJ, upon the judge’s second ruling on the same issue—the suppression of
appellee’s statements to special agents of the Army Criminal Investigation Command
(CID) on 23 September 2010.

       Pursuant to this court’s previous decision on the matter, the military judge
received additional testimony, considered the matter further and again decided to
suppress appellee’s statements. We conclude that the judge did not abuse his
discretion in doing so; his relevant findings of fact are not clearly erroneous and his
conclusions of law are not incorrect under the circumstances. See United States v.
Baker, 70 M.J. 283, 287 (C.A.A.F. 2011). In addition, whether the judge again
failed to do a proper job, as the government asserts, appellate defense counsel here
does not. Enjoying the advantage befitting the prevailing party under the
circumstances, appellee offers a legal analysis upon which we deny the
government’s appeal. United States v. Lincoln, 42 M.J. 315, 320 (C.A.A.F. 1995)
(citations omitted). It is neither fanciful nor clearly unreasonable nor clearly
erroneous or arbitrary to conclude that the government failed to scrupulously honor
appellee’s right to remain silent under the circumstances and failed to establish by a
preponderance of the evidence that appellee’s statements were voluntarily rendered.
See Baker, 70 M.J. at 287 (C.A.A.F. 2011) (citing United States v. White, 69 M.J.
236, 239 (C.A.A.F. 2010)).

        Based on the judge’s findings and reasonable interpretation and
characterization of the same,  it is fair to conclude: 1. that the appellee
unambiguously invoked his right to remain silent; 2. that he enjoyed no break in
contact with law enforcement agents seeking to interrogate him after that invocation;
3. that, after invocation and in light of appellee’s inquiry over the allegations
against him, law enforcement never sought to clarify the appellee’s desire to remain
silent or not but, rather; 4. sought to persuade the appellee to waive his right to
remain silent, or, at the least, reconsider his position on the matter; 5. that law
enforcement never advised the appellee of his right to remain silent a second time; 6.
that appellee’s waiver and ensuing interrogation were obtained under circumstances
exploiting conditions that undermined the appellee’s ability to render a voluntary
statement, including appellee’s fatigue, discomfort, and the custodial setting, time
and duration of the interrogation; and 7. that law enforcement did not respect the
appellee’s right to remain silent a second time when appellee again invoked that
right toward the end of the interrogation. Under the totality of these circumstances,
it is no abuse of discretion to conclude that the government failed to scrupulously
honor appellee’s right to remain silent and to suppress the appellee’s statements.
See Michigan v. Mosley, 423 U.S. 96, 104-05 (1975), United States v.
Thongsophaporn, 503 F.3d 51, 56–57 (1st Cir. 2007); United States v. Hsu, 852 F.2d
407, 409–10 (9th Cir. 1988); Christopher v. Florida, 824 F.2d 836, 841–47 (11th


    See Baker, 70 M.J. at 289-90.


                                           2
COOPER—ARMY MISC 20110914

Cir. 1987); Baker 70 M.J. at 287–88; White, 69 M.J. at 239, United States v.
Watkins, 34 M.J. 344, 345–46 (C.M.A. 1992).

       Neither is it fanciful or clearly unreasonable to conclude that the government
failed to meet its burden on the question of whether the appellee’s statements were
voluntary under the totality of circumstances available on the record before us.
Schneckloth v. Bustamonte, 412 U.S. 218 (1973); United States v. Martinez, 38 M.J.
82, 86-87 (C.M.A. 1993). It is fair to conclude based on the judge’s findings, and
reasonable interpretation and characterization of the same, that those circumstances
include: 1. the appellee’s fatigue, exacerbated by the use of painkillers; 2. the
appellee’s physical discomfort over the course of the interrogation, exacerbated by
the diminishing effects of painkillers previously taken; 3. the appellee’s inability to
reinforce his ability to cope with pain because the interrogation that continued at the
behest of law enforcement postponed his ability to take his medication in the fashion
prescribed; 4. the length of the interrogation; 5. the time of day the interrogation
was conducted (0300-0900); 6. the fact that the interrogation was conducted after a
midnight arrest where the appellee was roused from his bed and placed in a jail cell
for about three hours before being subjected to custodial interrogation; and 7. the
failure of law enforcement to respect the appellee’s right to remain silent.

       The appeal of the United States pursuant to Article 62, UCMJ, is therefore
denied. It is not for us to substitute our judgment for the military judge but, rather,
to review the matter according proper advantage to the prevailing party and proper
deference to the authority necessarily and properly responsible for making such
judgments at the trial level. See Baker, 70 M.J. at 287–88.

      Judge JOHNSON and Judge BURTON concur.

                                        FOR THE
                                            THECOURT:
                                                COURT:




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




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