UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                        WOLFE, SALUSSOLIA, and ALDYKIEWICZ
                                Appellate Military Judges

                             UNITED STATES, Appellant
                                           v.
                             Specialist JOSHUA D. LEWIS
                             United States Army, Appellee

                                  ARMY MISC 20180260

                            Headquarters, Fort Hood
                         Douglas Watkins, Military Judge
           Lieutenant Colonel Joseph M. Fairfield, Staff Judge Advocate

For Appellant: Colonel Tania M. Martin, JA; Lieutenant Colonel Eric K. Stafford,
JA; Captain Catharine M. Parnell, JA; Captain Allison L. Rowley, JA (on brief);
Colonel Steven P. Haight, JA; Lieutenant Colonel Eric K. Stafford, JA; Captain
Catharine M. Parnell, JA; Captain Allison L. Rowley, JA (on reply brief and brief on
specified issue)

For Appellee: Lieutenant Colonel Christopher D. Carrier,                 JA; Captain Patrick G.
Hoffman, JA; Captain Benjamin A. Accinelli, JA; Captain                  Benjamin J. Wetherell, JA
(on brief); Lieutenant Colonel Christopher D. Carrier, JA;               Major Jack D. Einhorn,
JA; Captain Benjamin A. Accinelli, JA; Captain Benjamin                  J. Wetherell, JA (on brief
on specified issue).

                                       26 October 2018

                 ---------------------------------------------------------------------
                   OPINION OF THE COURT AND ACTION ON APPEAL
                     BY THE UNITED STATES FILED PURSUANT TO
                 ARTICLE 62, UNIFORM CODE OF MILITARY JUSTICE
                 ---------------------------------------------------------------------

WOLFE, Senior Judge:

       The United States appeals the ruling of a military judge suppressing
statements made by the accused. 1 The military judge found none of the accused’s
interrogations included coercion, but the statements from each interrogation were

1
  We have jurisdiction over this appeal under Article 62, UCMJ. The parties raise no
jurisdictional issues to our attention nor have we independently identified any.
Unlike our reviews under Article 66, UCMJ, our review is limited solely to
questions of law.
LEWIS—ARMY MISC 20180260

involuntary. We affirm the military judge’s ruling regarding one of the two
statements, and reverse as to the other.

       The accused is charged with the sexual assault of Miss ZC, a child between
the age of 12 and 15. 2

      As we discuss in more detail below, military law enforcement questioned the
accused three separate times. During the first interview, appellant made statements
both before and after receiving an Article 31, UCMJ / Miranda 3 rights advisement.
A month later, the accused waived his rights and was again questioned. At a third
session, the accused was again questioned after waiving his rights.

      At trial, the defense filed a motion to suppress the statements and derivative
evidence. The military judge’s initial ruling was narrowed upon reconsideration.
The government, in turn, only appeals portions of the amended ruling. In other
words, the legal issues presented to this court are narrower than the whole story may
otherwise suggest. While we limit our holding to the issues properly presented, we
provide a broader factual picture for context.

                                   BACKGROUND

                                A. An unusual report 4

       On about 11 May 2017, an unknown woman approached a Charge of Quarters
(CQ) desk at Fort Hood, Texas. The woman had a dog with her and was “wielding”
a baseball bat. She then alleged to the CQ that someone had “touched” her daughter.
The woman wore a green jumpsuit and a battle dress uniform (BDU) 5 jacket with a
last name on the jacket. She told the CQ that she was ex-military but did not
otherwise identify herself. The CQ escorted the woman to the accused’s unit, but
she departed the area after she received a text message from the accused.


2
 The conduct was charged as a sexual assault by bodily harm, in violation of Article
120 and as a sexual assault of a child, in violation of Article 120b.
3
    Miranda v. Arizona, 384 U.S. 436 (1966).
4
  Unless otherwise stated, our factual summary is taken from either the factual
findings of the military judge or appellee’s brief.
5
  The Army began phasing out the BDU on 14 June 2004 with a final wear-out date
for both active and reserve forces of 30 April 2008. Dep’t of the Army, All Army
Activities Message 004/2008, Military Uniforms and Accessories Wear Out Dates
(January 2008) (ALARACT).



                                          2
LEWIS—ARMY MISC 20180260

       The allegation, brief as it was, was conveyed to military law enforcement. At
this point, investigators did not know the identity of the woman, the name or age of
any victim, or any specifics regarding the alleged offense.

        Although the limited record in this interlocutory appeal does not explain why,
it is clear that law enforcement somehow knew that the woman’s accusation was
directed at the accused.

                               B. The three statements

       This brief accusation touched off the first of three interrogations all of which
the military judge suppressed. Although this appeal is limited to the latter two
statements, it is clear from the military judge’s ruling that his suppression of the
second and third statements is related to police conduct during the first.
Accordingly, even though the suppression of the first statement is not before this
court as the government has not appealed the matter, we discuss it in some depth.

                                1. The first statement

       Based on the unknown woman’s report, the accused was escorted to Army
Criminal Investigation Command (CID) at Fort Hood. Consistent with standard
procedures, the accused was searched for officer safety and his personal belongings,
to include a cell phone, were placed in a locker. The accused was then questioned
by an investigator from Military Police Investigations (MPI). Although the test is an
objective one, United States v. Swift, the questioning agent at least subjectively
believed the alleged touching was sexual. 53 M.J. 439, 446 (C.A.A.F. 2000)
(“Whether a person is a suspect is an objective question . . .”).

       After taking some initial biographical information, and prior to any rights
waiver, the investigator asked, “Real quick, I had a crazy lady come in and report
something, I don’t know who she is, she mentioned something about a daughter, so
do you happen to know someone whose mom is crazy?” The accused provided the
name of the woman who had made the unusual report, and who is the mother of the
alleged victim, Miss ZC.

       The accused then asked the investigator, “What’s going on?” The investigator
responded, “Well you mentioned the name right off the bat.” The accused then
stated he was just trying to get accurate information because he thought he and the
woman had settled the situation. The investigator asked, “Is there a situation?” The
accused responded, “They thought something happened between me and their
daughter.”




                                           3
LEWIS—ARMY MISC 20180260

       The investigator returned to asking the accused about biographical data, but
then asked the accused, “Do you want to tell me about the story?” The accused then
made a statement admitting that he had touched Miss ZC’s leg two years earlier,
making Miss ZC uncomfortable.

       During a break in the interview, and outside the presence of the accused, the
investigator discussed with other agents whether she should give a cleansing
statement to the accused. The agents decided not to give a cleansing statement. 6
The military judge found that the investigator did not advise the accused of his
rights before this time because she “wanted to get the accused’s story and to get the
identity and contact information of the victim” and that she “was concerned that if
she advised him of his rights he might invoke.” The military judge would
reasonably conclude that the investigator acted in implied bad faith.

       After obtaining some additional biographical information from the accused,
the investigator advised the accused of his rights under Article 31. She began by
stating, “You mentioned a story, and I didn’t ask any questions, I’m not allowed to
ask questions, until I advise you of your rights, so we’ll go through that first, and
then you’ll tell me your story again.” 7 When explaining the difference between
someone “accused” of a crime and someone “suspected” of a crime, she stated
“suspected means I can talk to you.” 8

       The accused waived his rights and agreed to talk to the investigator. The
military judge found the accused’s demeanor when being advised of his rights and
waiving them was “willing” and “that he was inquisitive.”



6
 That the agents did not give a cleansing statement is certainly relevant to the issue
of voluntariness we later discuss. However, that the agents discussed giving a
cleansing statement outside the presence of the accused is not likely relevant to a
voluntariness determination. “Events occurring outside of the presence of the
suspect and entirely unknown to him surely can have no bearing on the capacity to
comprehend and knowingly relinquish a constitutional right.” Moran v. Burbine, 475
U.S. 412, 422 (1986).
7
 The quoted language is from the military judge’s findings of fact. The emphasis is
ours.
8
  This appears to be a reference to the fact that the Sixth Amendment right to
counsel – and the associated limitations on police questioning – attaches at preferral
of charges. See United States v. Wattenbarger, 21 M.J. 41, 43 (C.M.A. 1985).
However, from the accused’s perspective, defining what it meant to be a “suspect” in
this manner was likely confusing, as it was incomplete.



                                           4
LEWIS—ARMY MISC 20180260

      The accused was then questioned for about forty minutes. The accused
admitted to touching Miss ZC’s thigh, rubbing her leg, making her uncomfortable,
and that she was fifteen at the time.

                              2. The second statement

        After the first interrogation – and now knowing the name of the complainant –
agents from Army CID then investigated the case. Miss ZC was interviewed. She
alleged the accused was driving her home and, against her repeated protestations,
forced down her jeans and inserted two fingers in her vagina. The agents were also
informed that Miss ZC had reported allegations of abuse to high school officials in
Virginia, and subsequently to local police. As the alleged offense took place in
Killeen, Texas, Miss ZC and her mother were advised they would have to report the
crime in Killeen. According to the accused’s First Sergeant, the accused told him
that the woman had driven for twenty hours to report the incident. It appears that
this is how ZC’s mother ended up at the Fort Hood CQ desk.

      The second interrogation took place one month after the first and was
conducted by a special agent from Army CID. At the second interrogation, the
accused was immediately advised of his rights both verbally and in writing. The
accused again waived his rights, stating he understood them. When asked whether
he wanted to make a statement and talk to the CID agent, the accused asked where
he should sign.

       The military judge found that this second exchange consisted primarily of
open ended questions, asked by an agent in a “calm voice and demeanor
throughout.” Throughout the interview, “the accused was cooperative and
inquisitive.” The agent did not ask about vaginal penetration, but instead asked
“what story [the accused] had heard regarding the victim.” The accused responded
that he heard he had “fingered her.” The accused related that he gave Miss ZC a ride
to her home, that Miss ZC was worried because she was out past curfew, and that he
had rubbed her thigh to reassure her.

                               3. The third statement

       The third interrogation was with a polygrapher from Army CID. The accused
again was read and waived his rights. Initially the accused was talkative and
inquisitive. However, when the polygrapher asked about whether the accused had
vaginally penetrated Miss ZC, the accused became “overwhelmingly sad and then
admitted to penetrating Miss ZC’s vagina with his finger after she had told him no.”
He stated he had done this in an attempt to convince Miss ZC to have sex with him.
From the record, it appears that appellant’s statements were made before the
administration of the polygraph and that the “instrumentation” part of the polygraph
was never conducted.



                                          5
LEWIS—ARMY MISC 20180260

                           C. The military judge’s rulings

       The military judge suppressed all three statements by the accused. The
military judge also found that law enforcement learned the identity of the victim
only because of the suppressed statements of the accused. Accordingly, the military
judge also suppressed the identification of Miss ZC. This ruling covered not only
suppressing the accused’s statements identifying Miss ZC but also extended to the
suppression of any testimony that Miss ZC may have offered.

       At the government’s request, the military judge reconsidered his ruling. The
government presented evidence that a CID agent who was unaware of the accused’s
statements was still able to identify Miss ZC using ordinary investigative
techniques. On reconsideration, the military judge found that law enforcement
would have inevitably discovered the identity of Miss ZC and her mother. However,
the military judge again ruled that the accused’s statements from all three
interrogations would be suppressed. 9

       For all three interrogations, the military judge found there was no coercion.
Indeed, the military judge found that the accused’s “appearance is one of
willingness and voluntariness . . . .” Nonetheless, the military judge found the
accused’s free will to have been overborne and the statements to have been
involuntary.




9
  Essentially, after the government lost the initial suppression motion, they showed
what investigative steps would have been taken had they not discovered the identity
of Miss ZC in the first interrogation. Whether such a post hoc endeavor is
cognizable in determining an inevitable discovery question is not before us. See,
e.g., United States v. Eppes, 77 M.J. 339, 347-49 (C.A.A.F. 2018) (discussing the
standard for inevitable discovery). However, to the extent this issue is subject to
future litigation, we would note the correct standard for suppressing live witnesses
as derivative evidence. United States v. Ceccolini, 435 U.S. 268, 276 (1978)
(“Witnesses are not like guns or documents which remain hidden from view until
one turns over a sofa or opens a filing cabinet”); see also United States v. Campbell,
41 M.J. 177 (C.M.A. 1994); United States v. Mancini, ACM 38783, 2016 CCA
LEXIS 660 (A.F. Ct. Crim. App. 7 November 2016) (unpub.); People v. Mendez, 28
N.Y. 2d 94 (1971) (analyzing whether witness testimony should be suppressed when
name of witness was obtained during illegal wiretap).



                                          6
LEWIS—ARMY MISC 20180260

      The military judge’s first ruling on involuntariness rested on several facts and
conclusions of law. The military judge found that the accused was 23 years old, 10
was a junior-enlisted soldier (an E-4), had six years of military service, and had a
high school education. These findings are unchallenged on appeal and are well
supported by the record.

       The military judge also found that the accused had a GT score of 92 and was
of “low average or below average intelligence.” Although the government asserts
these findings are clearly erroneous, we conclude they are supported by the record.

       However, three other aspects of the military judge’s decision warrant a more
detailed discussion:

       First, the military judge found the accused had been diagnosed with an
adjustment disorder. Although this diagnosis was made six months after the last
interview, the military judge found it was a reasonable inference that an adjustment
disorder diagnosis would have been applicable at the time of the interrogations.

      Second, the military judge found that the accused was, at all relevant times, in
custody.

       Third, the military judge’s consideration that police misconduct in the first
interrogation bled into the second and third interrogations.

                                       ANALYSIS

       We review a military judge’s ruling on a motion to suppress for an abuse of
discretion and consider the evidence in the light most favorable to the party that
prevailed at trial. United States v. Rodriguez, 60 M.J. 239, 246-47 (C.A.A.F. 2004).
“A military judge abuses his discretion if his findings of fact are clearly erroneous
or his conclusions of law are incorrect.” United States v. Olson, 74 M.J. 132, 134
(C.A.A.F. 2015) (citation and internal quotation marks omitted). These standards
also apply to interlocutory appeals under Article 62, UCMJ. United States v.
Michael, 66 M.J. 78, 80 (C.A.A.F. 2008); see also United States v. Mitchell, 76 M.J.
413, 417 (C.A.A.F. 2017). 11


10
  In his first ruling, the military judge found that the accused was “a 24 year old
specialist [E-4] with 6 years of service and a high school diploma.” In his second
ruling, the military judge found that the accused was 23 years old. We do not
believe this discrepancy is significant.
11
     The overwhelming majority of cases that come before this court fall under Article

                                                                       (continued . . .)


                                            7
LEWIS—ARMY MISC 20180260

       A confession is inadmissible as a matter of due process if under the totality of
the circumstances it was involuntarily obtained. Voluntariness turns on whether the
“defendant’s will was overborne” when he gave his statement, and the test for this is
whether the statement was a “product of an essentially free and unconstrained choice
by its maker.” Schneckloth v. Bustamonte, 412 U.S. 218, 225-26 (1973); Culombe v.
Connecticut, 367 U.S. 568, 602 (1961). A defendant’s mental condition is a relevant
factor in determining whether a confession was voluntary, but “this fact does not
justify a conclusion that a defendant’s mental condition, by itself and apart from its
relation to official coercion, should ever dispose of the inquiry into constitutional
‘voluntariness.’” Colorado v. Connelly, 479 U.S. 157, 164 (1986).

        Accordingly, “coercive police activity is a necessary predicate to the finding
that a confession is not ‘voluntary.’” Id. at 167. Coercive activity includes
“trickery, psychological pressure, or mistreatment.” Withrow v. Williams, 507 U.S.
680, 708 (1993) (O’Connor, J., concurring in part and dissenting in part).
Furthermore, whether rights warnings were given is a relevant factor but “does not .
. . dispense with the voluntariness inquiry.” Dickerson v. United States, 530 U.S.
428, 444 (2000). “Determination of whether a statement is involuntary ‘requires
more than a mere color-matching of cases.’ It requires careful evaluation of all the
circumstances of the interrogation.” Mincey v. Arizona, 437 U.S. 385, 401 (1978)
(quoting Reck v. Pate, 367 U.S. 433, 442 (1961)).

       Thus, we must consider “both the characteristics of the accused and the
details of the interrogation.” Dickerson, 530 U.S. at 434 (quoting Schneckloth, 412
U.S. at 226). Relevant factors include the defendant’s age and education, the length
of detention, whether the defendant was advised of his rights, and the nature of the
questioning. Schneckloth, 412 U.S. at 226.

       Our superior court has provided guidance for cases such as this where there
are multiple admissions by an accused and the voluntariness of a second or
subsequent statement is challenged on the grounds that it is tainted by an earlier,
illegally obtained statement:

             Where a confession is obtained at a lawful interrogation
             that comes after an earlier interrogation in which a
             confession was obtained due to actual coercion, duress, or


(. . . continued)
66, UCMJ. Under that article, this court has an independent duty to review the
entire record, and may make factual findings that are contrary to those of the trial
court. Given our habitual practice, caution is appropriate when our role is limited to
issues of pure law under Article 62, UCMJ. See, e.g., United States v. Stellato, 74
M.J. 473, 482 (C.A.A.F. 2015).



                                           8
LEWIS—ARMY MISC 20180260

             inducement, the subsequent confession is presumptively
             tainted as a product of the earlier one. On the other hand,
             where the earlier confession was “involuntary” only
             because the suspect had not been properly warned of his
             panoply of rights to silence and to counsel, the
             voluntariness of the second confession is determined by
             the totality of the circumstances. The earlier, unwarned
             statement is a factor in this total picture, but it does not
             presumptively taint the subsequent confession.

United States v. Cuento, 60 M.J. 106, 108-09 (C.A.A.F. 2004).

       In this case, the military judge found that there was no coercion in any of the
interrogations but did find implied bad faith during the first interrogation. The
military judge then correctly applied the second of the two tests articulated above in
Cuento. Therefore, we review whether the military judge erred as a matter of law in
concluding that the accused’s statements made during the second and third
interrogations were involuntary based on the totality of the circumstances. United
States v. Bubonics, 45 M.J. 93, 94-95 (C.A.A.F. 1996) (voluntariness of a confession
is a question of law).

                            A. Diagnosis of the Accused

        The military judge found that a diagnosis of adjustment disorder made six
months after the first interrogation was present at all three interrogations. The
government argues this finding is clearly erroneous. We agree. But the impact of
this issue is questionable, given that the military judge made a related and
unchallenged finding that this diagnosis generally does not affect decision making.

      On 8 November 2017, a board convened pursuant to Rule for Courts-Martial
(R.C.M.) 706 issued a report evaluating the accused’s mental competency and
responsibility. 12 The board determined the following diagnosis existed at the time of
the evaluation: “DSM-5 309.28 (F43.23) – Adjustment Disorder with Mixed Anxiety
and Depressed Mood.”



12
  At the time of the alleged offense (August 2015), the board diagnosed appellant
with “other problems related to employment” and “relationship distress with
spouse.” The board determined that the accused did not suffer from a severe mental
disease or defect at the time of the alleged criminal conduct. The board also
determined that the accused “is not presently suffering from a mental disease or
defect rendering him unable to understand the nature of the proceedings against him
or to conduct or cooperate intelligently in his defense.”



                                          9
LEWIS—ARMY MISC 20180260

       “A mental impairment is a factor to be considered in determining the
voluntariness of the challenged confession only if government overreaching is also
shown.” United States v. Campos, 48 M.J. 203, 207 (C.A.A.F. 1998). In the Fifth
Amendment context, our voluntariness inquiry “is not concerned ‘with moral and
psychological pressures to confess emanating from sources other than official
coercion.’” Connelly, 479 U.S. at 170 (quoting Oregon v. Elstad, 470 U.S. 298, 305
(1985)). “The voluntariness of a waiver of this privilege has always depended on
the absence of police overreaching, not on ‘free choice’ in any broader sense of the
word.” Id.; see also United States v. Diaz, 59 M.J. 79 (C.A.A.F. 2003) (applying
Connelly to the Article 31 context).

        The adjustment disorder diagnosis was raised sua sponte by the military
judge. In his initial ruling, the military judge acknowledged that the diagnosis in the
evaluation was made six months after the first interrogation, but found that it is “a
reasonable presumption that the accused suffered adjustment disorder at the time of
the [ ] interview.” The military judge then found that the diagnosis was valid during
all three interrogations.

       During the motion to reconsider, the government presented evidence from an
expert psychologist that an adjustment disorder would not affect a person’s “ability
to make good decisions.” On reconsideration, the military judge found that the
diagnosis received by the accused “generally does not affect decision making, but it
does affect mood and the ability to cope with additional stressors.”

       The government argues to this court that it was clearly erroneous for the
military judge to find as fact that an adjustment disorder diagnosis that was
diagnosed on 8 November 2017 also existed six months earlier without any
additional facts. The accused responds that we must defer to the factual findings of
the trial court.

       Certainly, there are chronic mental health conditions for which backdating a
diagnosis by six months could be a reasonable inference. There may be other
conditions which, because they are acute, such a presumption may be strained or
unreasonable. The fifth edition of the Diagnostic and Statistical Manual of Mental
Disorders (DSM-V) defines the diagnosis of adjustment disorder as “[t]he
development of emotional or behavioral symptoms in response to an identifiable
stressor(s) occurring within 3 months of the onset of the stressor(s).” Am.
Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders (5th ed.
2013).

       Here, there was no evidence introduced as to what was the “identifiable
stressor” that formed the basis of the diagnosis. Nor was there expert testimony
explaining a basis to retroactively infer that the diagnosis applied six months earlier.




                                          10
LEWIS—ARMY MISC 20180260

For the military judge’s inference to be correct, it would appear the stressor (and the
associated symptomology) would have to predate the first interrogation.

        Thus, based on the record, we find insufficient evidence to support a
conclusion that the accused suffered from an adjustment disorder at the time of the
first interrogation. A finding of fact is clearly erroneous “when although there is
evidence to support it, the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed.” United States v.
Martin, 56 M.J. 97, 106 (C.A.A.F. 2001) (quoting United States v. United States
Gypsum Co., 333 U.S. 364, 395 (1948)).

      Although we agree with the government that this finding is clearly erroneous,
we note the military judge specifically found, consistent with government expert
testimony, that a diagnosis of adjustment disorder generally does not affect decision
making. Accordingly, even if the military judge’s finding over the accused’s
diagnosis was not clearly erroneous, it would have minimal impact on our overall
analysis in light of his additional finding related to decision making.

                                       B. Custody

       The military judge found that at all relevant times the accused was in
“custody.” The military judge then used his determination that the accused was in
custody when assessing the accused’s voluntariness. We find the military judge
erred in his custody determination.

       Whether the accused was in custody “is a de novo question of law to be
decided on the basis of facts found by the factfinder.” United States v. Catrett, 55
M.J. 400, 404 (C.A.A.F. 2001); see also United States v. Schake, 30 M.J. 314, 318
(C.M.A. 1990) (“This is largely a question of fact, although the ultimate conclusion
is a legal one.”). That is, while “custody” may be a question of law, it is one that
often turns on facts.

       The Supreme Court has explained that in the Miranda context “custodial
interrogation” means “questioning initiated by law enforcement officers after a
person has been taken into custody or otherwise deprived of his freedom of action in
any significant way.” Miranda, 384 U.S. at 444; see also Mil. R. Evid. 305(b)(3);
Yarborough v. Alvarado, 541 U.S. 652, 661 (2004).

       In determining whether someone is in custody, however, it is not enough to
say that they are not immediately free to leave without delay. Persons briefly
detained by police during traffic stops or Terry stops 13 are certainly not free to leave,


13
     See Terry v. Ohio, 392 U.S. 1 (1968).



                                             11
LEWIS—ARMY MISC 20180260

but nor are they “in custody” in the Fifth Amendment sense because their lack of
freedom of action does not rise to the level associated with a formal arrest. See,
e.g., Berkemer v. McCarty, 468 U.S. 420, 438-40 (1984) (Terry stop is not Miranda
custody).

      In making a custody determination, courts consider: (1) whether the person
appeared for questioning voluntarily; (2) the location and atmosphere of the place in
which questioning occurred; and (3) the length of the questioning. United States v.
Evans, 75 M.J. 302, 306 (C.A.A.F. 2016).

       The military judge found that each time the accused was interrogated he was
escorted by a superior from his unit to CID. The military judge further found that in
accordance with standard operating procedure the agents searched him for officer
safety, and required him to place his personal belongings in a locker. The military
judge found that during the second and third interrogations the accused’s
“appearance is one of willingness and voluntariness.” (Although, obviously, the
military judge did not find the accused’s statements to actually be voluntary).
During the second interrogation, the questioning was conducted in a calm voice and
calm demeanor. The interrogations were “not lengthy” and did not involve
“coercive tactics” or “inhumane conditions.”

      These factual findings have clear support in the record. 14

       After summarizing his findings of fact, the military judge concluded as
follows: “While [the accused] may have been allowed to leave if he insisted, a
reasonable person of the accused’s age, experience, education, diagnoses, and
military service would not have felt he was at liberty to terminate the interrogation
and leave.”

      We discuss several aspects of the ruling.

       First, the military judge appears to have deviated from the custody test
required by Miranda for Fifth Amendment custody determinations. The Supreme
Court has rejected “place[ing] upon the police the burden of anticipating the frailties
or idiosyncrasies of every person whom they question.” Alvarado, 541 U.S. at 662
(citing Berkemer, 468 U.S. at 442) (quoting People v. P., 21 N.Y.2d 1, 9-10 (1967)).


14
   When assembling the record for interlocutory appeal, the government included
several “allied papers” that contained matter that was never submitted to the military
judge. For example, police reports indicate that the third interrogation (a planned
polygraph) was scheduled in advance by prior arrangement with the accused.
However, if this information was never presented to the military judge, it is legally
irrelevant to our determination as to whether the military judge erred in his ruling.



                                          12
LEWIS—ARMY MISC 20180260

The Court explained that the objective test for making a custody determination is
different than the test for determining whether a suspect’s will has been overborne.
Id. at 666-68. The suspect’s age and other life experiences are relevant to the latter,
but not the former. Id. at 667-68. The Court explained:

             There is an important conceptual difference between the
             Miranda custody test and the line of cases from other
             contexts considering age and experience. The Miranda
             custody inquiry is an objective test . . . . The objective test
             furthers the clarity of Miranda’s rule, ensuring that the
             police do not need to make guesses as to the circumstances
             at issue before deciding how they may interrogate the
             suspect.

             ...

             [T]he objective Miranda custody inquiry could reasonably
             be viewed as different from doctrinal tests that depend on
             the actual mindset of a particular suspect, where we do
             consider a suspect’s age and experience. For example, the
             voluntariness of a statement is often said to depend on
             whether the defendant’s will was overborne, a question
             that logically can depend on the characteristics of the
             accused. The characteristics of the accused can include
             the suspect’s age, education, and intelligence, as well as a
             suspect’s prior experience with law enforcement.

Id. (cleaned up by omitting internal citations and quotations).

       Although the Court would later allow consideration of the fact that the suspect
is a young child, J.D.B. v. North Carolina, 564 U.S. 261 (2011), the Court
reemphasized the objective nature of the test, and that a custody determination is not
to be made on factors “unknowable” to the police at the time:

             By limiting analysis to the objective circumstances of the
             interrogation, and asking how a reasonable person in the
             suspect’s position would understand his freedom to
             terminate questioning and leave, the objective test avoids
             burdening police with the task of anticipating the
             idiosyncrasies of every individual suspect and divining
             how those particular traits affect each person’s subjective
             state of mind.

J.D.B., 564 U.S. at 272.



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LEWIS—ARMY MISC 20180260

       Thus, we find the trial court erred by considering the accused’s age,
education, and military service in making a custody determination. The court
strayed further by including the accused’s diagnoses – diagnoses that would not be
knowable by any person until six months after the first interrogation – in making a
custody determination. The requirements of Miranda are triggered by custody
equivalent to a formal arrest, Berkemer, 468 U.S. at 440, and the police cannot be
expected to follow their Miranda obligations if the determination of custody
includes considering a diagnosis that was made six months after the interrogation.

       Second, the military judge did not appear to distinguish between the three
interrogations and how an objective determination of custody might change at each
instance. There were significant breaks in time between the interrogations. After
each interrogation, the accused was free to leave. 15 A conclusion that a person
reasonably believed he was not free to leave becomes less and less tenable after each
prior interrogation has ended and the accused was left to go about his business.
Thus it may be that the custody question in the third interrogation might be
answered differently than the first.

       Third, the military judge appears to have applied his custody determination to
both his analysis under the Fifth Amendment and his analysis under Article 31(b).
The military judge’s initial ruling focused on the Fifth Amendment, while the ruling
in reconsideration was based on a violation of the accused’s Article 31(b) rights. In
articulating that he found the accused’s statements from the second and third
interrogations involuntary under Article 31, UCMJ, the military judge included his
determination that the accused “was in custody and subjected to custodial
interrogation.” Whether an interrogation was “custodial” is not legally relevant to a
determination of voluntariness under Article 31, UCMJ. While the underlying facts
may be highly relevant to both conclusions (e.g. if the accused was handcuffed or
threatened), that an interrogation was custodial (as a question of law) is not the
relevant inquiry for an Article 31, UCMJ, analysis. Accordingly, we cannot separate
out any error from the military judge’s Fifth Amendment analysis from his analysis
under Article 31.

       Fourth, in making custody determinations, other courts have specifically
considered “whether the officers used coercive tactics such as hostile tones of voice,
the display of weapons, or physical restraint of the suspect’s movements.” United
States v. Willaman, 437 F.3d 354, 359-60 (3d. Cir. 2006); see also Evans, 75 M.J. at
306 (courts should consider “atmosphere” of interrogation). In analyzing the


15
  That the suspect was free to leave at the end of questioning was described by the
Supreme Court in Alvarado as an “objective fact[] [that is] consistent with an
interrogation environment in which a reasonable person would have felt free to
terminate the interview and leave.” 541 U.S. at 664-65.



                                          14
LEWIS—ARMY MISC 20180260

question of custody, the military judge did not appear to weigh his specific factual
findings: (1) that the interrogations were conducted without the use of harsh or
coercive tactics, and (2) that the second interrogation was conducted with a calm
voice and demeanor.

       Although the military judge did not claim otherwise, we note that no court has
created a per se rule that all military law enforcement interrogations are custodial
interrogations under the Fifth Amendment. The circumstances of the accused’s
interrogations are present at many, if not most, interrogations by law enforcement.
Indeed, the military judge found that the pat down and removal of the accused’s
phone was for officer safety and consistent with standard operating procedure.
While the military context may be relevant to a custody analysis, 16 each case must be
decided by the facts.

       Not every soldier escorted to law enforcement, or who is processed for an
interrogation, will be in custody for purposes of the Fifth Amendment. Soldiers, for
example, are often escorted to appointments with defense counsel, or finance, or for
other reasons. And while those are not wholly analogous situations with an
interrogation by law enforcement (at all), we would still nonetheless never describe
such an escorted soldier as having limitations on freedom similar to those of a
formal arrest. To be sure, a soldier told to report to a superior’s office is not free to
walk out the door in the sense that they are not free to ignore superior military
authority. Nor is a civilian detained by civilian law enforcement during a Terry stop
free to ignore police authority. Berkemer, 468 U.S. at 438-40. Whether either case
results in custody will depend on the surrounding circumstances.

       Although we find some gaps in the military judge’s custody determination,
our main concern is that the legal determination of whether a suspect is in custody is
not particularly relevant to the question at issue: voluntariness. Although the same
facts (e.g. if the accused was handcuffed) will be relevant to both legal questions,
that the accused was in custody is not a prerequisite to finding a statement
involuntary.

                    C. Voluntariness: Was the cat out of the bag?

      As we have previously stated, the government has not appealed the military
judge’s suppression of the first interrogation. This court is jurisdictionally barred
from revisiting that part of the military judge’s ruling, and no part of this opinion


16
  See, e.g., Mitchell, 76 M.J. at 417-18. In Mitchell, the CAAF found the accused
was in custody when his presence in his commander’s office was involuntary, the
location and atmosphere suggested custody, and the accused was surrounded by law
enforcement officers who were backed by the authority of the accused’s commander.



                                           15
LEWIS—ARMY MISC 20180260

should be confused with any attempt to do so. However, the decision to suppress the
second and third interrogations relied, in part, on the degree to which errors in the
conduct of the first interrogation weighed on the question of whether the accused’s
will was overborne in the second and third interrogations. It is through this lens in
which we revisit the first interrogation.

       Consistent with case law, the military judge considered the degree to which
appellant’s admissions during the first interrogation weighed on the voluntariness of
the second and third interrogations. See Cuento, 60 M.J. at 108-10. This is
sometimes referred to as having let the “cat out of the bag.” Missouri v. Seibert, 542
U.S. 600, 615 (2004).

      The government attacks two parts of the military judge’s reasoning.

                           1. The “spontaneous” statement

       After the first interrogation, an entry was made in the investigatory file that
labeled the accused’s pre-warning statements as “spontaneous.” The military judge
correctly found this label to be inaccurate – explicitly finding that the admissions
were made in response to an unwarned interrogation.

      In suppressing the third interrogation, the military judge relied on the fact that
the agent had prepared for the interrogation by “reviewing a summary of the
statements in the case, which included a misleading reference to a ‘spontaneous’
statement.”

      All parties agree that in preparing for the third interrogation, which was to be
a polygraph, the polygrapher reviewed a summary of the statements that had been
made in the case. However, the summary did not include a reference to the
spontaneous statement. The parties appear to agree that the military judge’s reliance
was error.

       The government asks this court to find the military judge’s finding to be
clearly erroneous as it is clearly contradicted by the record and otherwise
unsupported. By contrast, the defense points to the fact that the military judge’s
reference to the “spontaneous statement” was not found in the “facts” portion of the
judge’s ruling. Instead, it is located in the “analysis” part of the ruling.

        At least here, we do not think it important where in the military judge’s ruling
the factual finding was located. What matters more is whether the military judge
relied on the fact in reaching a legal conclusion. An erroneous factual conclusion
(e.g. that the 1st of April was a Tuesday) is relevant only if it affects the legal
question at issue. And here, it appears that the military judge relied on an erroneous




                                          16
LEWIS—ARMY MISC 20180260

fact in his analysis of whether to suppress the accused’s statements arising from the
third interrogation.

              2. The use of prior statements as the “basis of denials”

       In suppressing the third interrogation, the military judge found that the
polygrapher “knew and used the accused’s prior statements as a basis for his denials
for the polygraph.” The polygraph examination was never conducted. Thus it is
unclear, and the parties dispute, what was meant by the military judge. In this
Article 62 appeal, we are required to assess the evidence in a light most favorable to
the prevailing party. See United States v. Pugh, 77 M.J. 1, 3 (C.A.A.F. 2017). Thus
here, when a record can reasonably be understood two different ways, we assume a
meaning that is favorable to the accused unless we direct a remand to clarify the
issue.

       However, regardless of what the military judge was referring to, we find that
the military judge was focused on the incorrect question. When assessing whether
the accused’s free will was overborne, the question is not what the agent read in
preparing for an interrogation. Rather, the question is whether he used that
knowledge in a manner that would affect the voluntariness of the accused’s rights
waiver and admissions. Thus we see the military judge’s analysis to be incorrectly
focused on what the agents knew. An agent’s knowledge of an accused’s earlier,
illegally obtained statement is relevant only to the extent that it is accompanied by a
finding or an inference that the knowledge was used in a manner that undermined the
voluntariness of the accused’s decision to repeat the admission.

      Indeed, the military judge’s decision to suppress the second interrogation
contained just such a finding. In analyzing the second interrogation, the military
judge made specific findings that the agent had referenced the first interrogation
when informing the accused of his rights. The record supports the military judge’s
conclusion. Indeed, in our listening, the agent tells the accused:

             I know you were in here earlier, you talked to us, so I’m
             going to ask some additional questions -- before we do it .
             . . we have to go through your rights advisement because
             we want you to be aware of your rights. 17

      The agent then thanked the accused for agreeing to come back to CID.




17
  This quoted language is taken from the record, not the military judge’s findings of
fact. The emphasis is ours.



                                          17
LEWIS—ARMY MISC 20180260

       We understand the military judge’s ruling to be that by referencing the
accused’s statements in the first interrogation, and framing the second interrogation
as consisting of “additional” questions, the agent linked the two interrogations and
risked that the accused’s rights waiver in the second interrogation would not be
viewed as a voluntary act independent of the first interrogation. That is, that the cat
was already out of the bag. The danger was greater as the side comment was made
just prior to the accused’s rights advisement and decision to waive his rights. While
a different military judge may have come to a different conclusion, the military
judge’s interpretation here was a reasonable one. Indeed, it is for this reason that we
leave the military judge’s suppression of the statements made during the second
interrogation intact.

 D. There are substantive differences between the second and third interrogations

       In determining whether the military judge abused his discretion in suppressing
the second and third interrogations, we are required to consider the totality of the
circumstances. Both interrogations shared some commonalities.

           1. Commonalities between the second and third interrogations

       During both the second and third interrogations, the accused was 23 years old,
an E-4 with six years’ experience in the military, and of low average intelligence. In
neither the second or third interrogation was the accused given a cleansing
statement. Additionally, in both instances, the accused was escorted to the
interrogation by a superior before being processed for an interrogation. On balance
this evidence provides some weight in favor of finding his will was overborne.

       On the other hand, in both interrogations the accused was properly advised,
both verbally and in writing, of his rights under Article 31, UCMJ, and the Fifth
Amendment. The military judge found that after the accused stated he understood
his rights, he then waived them. Although the military judge used slightly different
language in describing the manner in which the interrogations were conducted, the
military judge found that neither of the interrogations were of long duration or
involved coercion. All three interrogations took place on different days separated by
weeks. See Seibert, 542 U.S. at 615 (the timing between the two interrogations is a
consideration when determining voluntariness). The three interrogations were
conducted by three different members of law enforcement. Id. (finding that the
“continuity of the police personnel” factored in favor of finding the suspect’s will
being overborne). The military judge found that in both interrogations the accused
was “inquisitive and appeared to be acting rationally and voluntarily.”




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LEWIS—ARMY MISC 20180260

             2. Differences between the second and third interrogations

      The second and third interrogations differed in several respects.

       First, the accused’s admissions in the third interrogation far exceeded those
made during the first and second interrogation. See id. (The Court considered the
degree to which the first and second statements had “overlapping content.”). In the
second interrogation, the essential admission by the accused was that he had rubbed
Miss ZC’s leg to reassure her, and this had made her uncomfortable. In the third
interrogation, appellant repeated that he had rubbed her leg, but also admitted to
putting his finger inside her vagina. In his sworn statement, he described it as
follows:

             We talked a little while in the car. While in the car I
             rubbed her leg. I then pulled her pants down. I put my
             finger inside her vagina and asked if she was
             uncomfortable. She told me she was and I stopped. She
             then pulled up her pants and left the car. I drove away.

       The accused further admitted that he did these acts in an attempt to convince
Miss ZC to have sex with him. Thus, the “cat” was not wholly out of the bag at the
time of the third interrogation. Appellant’s statements in the first two interrogations
that he rubbed Miss ZC’s leg for reassurance placed him in the car with Miss ZC.
They were not confessions. See Mil. R. Evid. 304(a)(1)(B-C). Appellant’s
statement in the third interrogation that he placed his fingers in the vagina of a girl
he knew was underage for the purpose of convincing her to have sex with him was a
confession.

       In the same light, in Cuento, our superior court looked differently at an
interrogation that referenced unwarned statements admitting to an “accidental
touching” and those that referenced substantive admissions. 60 M.J. at 108-10.
When assessing voluntariness and the weight to give the failure to provide a
cleansing statement, we think it is relevant to consider the degree to which appellant
repeated or expanded on the prior statement. See Seibert, 542 U.S. 600. Here, there
is not much “overlap” between the two interrogations.

       Second, as a matter of logic, by the time of the third interrogation the accused
had more familiarity with the military justice system than he had during the first and
second. Appellant cites to Bubonics for the proposition that we should consider
whether an accused has “been involved with military justice before the night of his
apprehension and interrogation” when assessing the totality of the circumstances.
45 M.J. at 96. However, a factor that may weigh in favor of finding the first
interrogation involuntary becomes less powerful when the accused is being advised
of his rights for the third time over the course of many weeks.



                                          19
LEWIS—ARMY MISC 20180260

       Third, and again as a matter of logic, the third interrogation was farther
removed from the first interrogation than the second. Whereas in Seibert the second
interrogation took place only 15 to 20 minutes after the first, here the third
interrogation took place about 21 days after the second interrogation and 52 days
after the first interrogation. 18 Although not exactly the same issue of law, the
Supreme Court has held that the police may re-initiate contact with a suspect who
has invoked his right to counsel after only a 14-day break. Maryland v. Shatzer, 559
U.S. 98 (2010). The passage of time, and the associated attenuation of any taint
from the first interrogation, weighs against finding the accused’s statements in the
third interrogation were involuntary.

       Fourth, and perhaps most importantly, the accused himself was asked
questions about factors that would bear light on the voluntariness of the third
interrogation. A sworn statement, signed by the accused, was attached to the
defense motion to suppress and was considered by the military judge. We quote it at
length:

             Q. Was that the only time you had sexual contact with
             her?

             A. Yes.

             Q. How many times did she tell you to stop that night?

             A. Once when my hand was on the outside of her clothing
             on her thigh and again when my finger was inside her
             vagina.

             Q. You lied in your previous statement, Why?

             A. I was under a lot of pressure.

             Q. Why are you telling the truth now?

             A. I want the case over. I want to do the right thing to
             make this right so it will go away.

             Q. How do you feel now that you have told the truth?




18
  The first interrogation was on 15 May 2017. The second interrogation was on 15
June 2017. The third interrogation was on 6 July 2017.



                                          20
LEWIS—ARMY MISC 20180260

               A. I feel the same. I just want this to go away and I know
               being honest will be the fastest way to make this go away.

      Perhaps concerned that the accused had a misperception about the effect of his
admissions, the agent immediately asked a series of follow up questions:

               Q. Did anyone promise you anything to say the things you
               have said in this statement?

               A. Noe [sic]

               Q. Did anyone tell you that you would get in less trouble
               for saying the things you have said in this statement?

               A. No.

               Q. Do you understand that I am not the person who makes
               a decision as to what happens in this case and to you?

               A. Yes.

               Q. How were you treated during this interview?

               A. Great.

               Q. Were you allowed to take breaks and get something to
               eat or drink any time you wanted?

               A. Yes.

               Q. How much sleep did you get last night?

               A. 4-6 hours which is more than usual.

               Q. When was the last time you had anything to eat?

               A. Last night. 19

               Q. Do you feel that you were deprived of anything prior to
               and/or during this interview?



19
     The accused arrived at CID at 0800 in the morning.



                                           21
LEWIS—ARMY MISC 20180260

             A. No.

             Q. What is your GT score?

             A. 100. 20

             Q. Did you fully understand what is going on today during
             this interview?

             A. Yes.

             Q. Is there anything that would prohibit you from
             completely understanding what we talked about today?

             A. No.

             Q. Are you admitting to the things you have admitted in
             this statement for any other reason than they are the truth?

             A. No.

       The accused did not testify or explain how his will was overborne. While the
accused is not required to testify at a suppression motion, and we give no weight to
his decision not to testify, the effect was to leave his sworn statement about the
voluntariness of his admissions unrebutted.

                                    E. Conclusion

       In his ruling on reconsideration, the military judge correctly stated that this
case is fact dependent. Having found that the military judge applied the wrong law
in determining that the accused was subjected to a custodial interrogation, that the
error was incorporated into the military judge’s voluntariness assessments under
both the Fifth Amendment and Article 31, because we find one fact to have been
unsupported by the record, and based on the totality of the circumstances, we set
aside the military judge’s ruling suppressing the third interrogation.

      To be clear, the ultimate question does not turn on whether the accused was in
custody or not. Rather, the question is whether the accused’s “will” was “overborne
and his capacity for self-determination critically impaired” as a result of agent
conduct. Schneckloth, 412 U.S. at 225-26 (quoting Culombe, 367 U.S. at 602). We


20
 Based on other evidence, the military judge would find as fact that the accused’s
GT score was 92.



                                          22
LEWIS—ARMY MISC 20180260

conclude that under the totality of the circumstances the accused’s statements made
during the third interrogation were voluntary. While we acknowledge that some
factors, such as the lack of a cleansing statement, weigh in favor of finding that the
accused was more vulnerable to having his will overborne, we find little evidence in
the record to support a conclusion that the accused’s will was actually overborne. 21

                                   CONCLUSION

       The government’s appeal pursuant to Article 62, UCMJ, is GRANTED in part
and DENIED in part. The government’s appeal is denied as to the suppression of the
accused’s second interrogation. The government’s appeal is granted as to the
suppression of the accused’s third interrogation. The record will be returned to the
military judge for action not inconsistent with this opinion and R.C.M. 908(c)(3).

      Judge SALUSSOLIA and Judge ALDYKIEWICZ concur.


                                       FOR THE
                                       FOR THE COURT:
                                               COURT:




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




21
  Where the Supreme Court has found statements involuntary, the circumstances
surrounding the interrogation have been much worse than those here. In Mincey, the
defendant was suffering “unbearable” pain from a gunshot wound while unable to
speak because of a tube in his mouth; he also could not provide coherent answers to
questions, and he asked for a lawyer repeatedly over the course of a four-hour
interrogation. 437 U.S. at 396-401. In Blackburn v. Alabama, the defendant
endured an eight to nine-hour interrogation in a small room surrounded by three
police officers and “was insane and incompetent at the time he allegedly confessed.”
361 U.S. 199, 204, 207 (1960). The accused’s circumstances do not come close to
those of Mincey and Blackburn.



                                          23
