                       UNITED STATES, Appellee

                                    v.

              Harvey A. GARDINIER II, Staff Sergeant
                       U.S. Army, Appellant

                              No. 06-0591

                       Crim. App. No. 20020427

       United States Court of Appeals for the Armed Forces

                        Argued March 15, 2007

                         Decided June 6, 2007

ERDMANN, J., delivered the opinion of the court, in which BAKER,
STUCKY, and RYAN, JJ., joined. EFFRON, C.J., filed a separate
opinion concurring in part and dissenting in part.

                                 Counsel

For Appellant: Captain Seth A. Director (argued); Colonel John
T. Phelps II, Lieutenant Colonel Steven C. Henricks, and Major
Fansu Ku (on brief); Captain Julie Caruso and Captain Charles E.
Pritchard.

For Appellee: Captain Philip M. Staten (argued); Colonel John
W. Miller II, Lieutenant Colonel Michele B. Shields, and Major
Tami L. Dillahunt (on brief); Lieutenant Colonel Francis C.
Kiley and Captain Michael Friess.

Amicus Curiae for Appellant: April Trimble (law student)
(argued); Bruce A. Antkowiak, Esq. (supervising attorney) and
Salvatore Bauccio (law student) (on brief) – for the Duquesne
University School of Law.

Military Judge:   Gary V. Casida


       This opinion is subject to revision before final publication.
United States v. Gardinier II, No. 06-0591/AR

     Judge ERDMANN delivered the opinion of the court.

     Staff Sergeant Harvey A. Gardinier II was charged with two

specifications of taking indecent liberties with a female under

sixteen years of age with intent to gratify his sexual desires

and two specifications of committing indecent acts upon the body

of the same child, in violation of Article 134, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. § 934 (2000).    Gardinier

entered pleas of not guilty and was tried by a military judge

sitting alone as a general court-martial.   He was found guilty

of one specification of taking indecent liberties and one

specification of committing indecent acts and not guilty of the

other two specifications.   Gardinier was sentenced to a bad-

conduct discharge, confinement for three years, and reduction to

the grade of Private E-1.   The convening authority approved the

sentence and the United States Army Court of Criminal Appeals

affirmed the findings of guilty and the sentence.   United States

v. Gardinier, 63 M.J. 531, 547 (A. Ct. Crim. App. 2006).

                            General Background

     In December 2001, Gardinier’s five-year-old daughter, KG,

told her mother that Gardinier had touched her inappropriately.

Her mother immediately took KG to Evans Army Community Hospital

in Ft. Carson, Colorado, where a medical examination was

conducted.   The allegations were also reported to the El Paso

County (Colorado) sheriff’s office and the El Paso County



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United States v. Gardinier II, No. 06-0591/AR

Department of Human Services.   On January 2, 2002, personnel

from those agencies conducted a joint interview of KG, which was

videotaped.   That interview was immediately followed by a

forensic medical examination by a sexual assault nurse examiner.

     On January 3, 2002, Gardinier was interviewed by a

sheriff’s department detective and then separately by an Army

Criminal Investigation Division (CID) agent.    The CID agent did

not advise Gardinier of his rights under Article 31(b), UCMJ, 10

U.S.C. § 831(b) (2000).   Both interviews were videotaped and

Gardinier provided a written statement at the request of the CID

agent.   On January 7, the CID agent advised Gardinier of his

Article 31, UCMJ, rights.   Gardinier waived his rights and

provided another statement.

     At trial the military judge admitted the videotape of the

January 3 CID interview and both the January 3 and January 7

statements.   He also admitted the “Forensic Medical Examination”

form completed by the sexual assault nurse examiner and allowed

her to testify as to what KG told her during the examination.

Further, the military judge determined that KG was not available

to testify at trial and admitted the videotape of KG’s interview

with the El Paso law enforcement and human services officials.

All of this evidence was admitted over defense objection.

     We granted review of three issues:   (1) whether the

military judge erred by admitting statements that Gardinier made



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United States v. Gardinier II, No. 06-0591/AR

to the CID agent where no Article 31(b), UCMJ, rights were

given; (2) whether statements that KG made to the sexual assault

nurse examiner were testimonial under Crawford v. Washington,

541 U.S. 36 (2004); and (3) whether the Army Court of Criminal

Appeals erred in determining that the admission of the victim’s

videotaped statement was harmless beyond a reasonable doubt.1

     As we determine that the January 3 videotape of the CID

interview, Gardinier’s January 3 statement to the CID agent and

KG’s statements to the sexual assault nurse examiner were

admitted in error, we remand the case to the Army Court of

Criminal Appeals for further consideration.

     Admissibility of the January 3 Statement and Videotape

     A military investigator who interviews a suspect must

provide that suspect with the statutorily required rights

warnings under Article 31(b), UCMJ.   With few exceptions,

statements obtained in violation of this Article may not be

received in evidence against an accused in a trial by court-

martial.   Article 31(d), UCMJ; United States v. Ruiz, 54 M.J.

138, 140 (C.A.A.F. 2000); Military Rule of Evidence (M.R.E.)




1
  We heard oral argument in this case at Duquesne University
School of Law, Pittsburgh, Pennsylvania, as part of the court’s
“Project Outreach.” See United States v. Mahoney, 58 M.J. 326,
347 n.1 (C.A.A.F. 2003). This practice was developed as part of
a public awareness program to demonstrate the operation of a
federal court of appeals and the military justice system.

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United States v. Gardinier II, No. 06-0591/AR

304; M.R.E. 305.   We granted review of this issue to determine

whether the military judge abused his discretion by admitting

statements from Gardinier in violation of Article 31(d), UCMJ.

We find that the January 3 statement and the videotape of the

CID interview were admitted in error.   The January 7 statement

was properly admitted.

Background

     A detective from the sheriff’s office called Gardinier in

for questioning on January 3, 2002, and notified a CID agent,

Special Agent Phillips about the interview.   Gardinier appeared

voluntarily and was told he was not under arrest and free to

leave at any time.   The sheriff’s detective advised Gardinier of

his rights under Miranda v. Arizona, 386 U.S. 436 (1966), which

he waived.   Later in the interview and before he voluntarily

took a computer voice stress test, Gardinier was once again

given and waived his Miranda rights.

     Phillips watched the interview from behind a one-way

mirror.   At its conclusion, the sheriff’s detective consulted

with Phillips who asked to interview Gardinier.   The sheriff’s

detective brought Phillips into the interview room and left.

Phillips introduced himself as a CID agent and conducted the

interview without advising Gardinier of his Article 31(b), UCMJ,

rights.   He also asked Gardinier to provide a written statement,




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United States v. Gardinier II, No. 06-0591/AR

which he did.    Both the civilian and military interviews were

videotaped.

        On January 7, 2002, Phillips called Gardinier to the CID

office, advised him of his Article 31(b), UCMJ, rights and told

him that another statement was necessary because he may not have

been properly warned on January 3.     Gardinier waived his Article

31(b), UCMJ, rights and provided another statement.

        At trial, Gardinier moved to suppress the January 3

statement, the videotape of the January 3 interviews and the

January 7 statement.    The military judge denied the motion.

While he found that Phillips should have advised Gardinier of

his rights under Article 31(b), UCMJ, the failure was “harmless

error or not prejudicial to the substantial rights of the

accused and had no effect on the decisions that he made.”     In

light of the Miranda warnings given by the civilian detective,

the military judge concluded that Gardinier was “in substance,

advised of all of his rights.”    On appeal, the Court of Criminal

Appeals found that the rights warnings and notice regarding the

nature of the accusations that Gardinier received from the

sheriff’s detective satisfied the requirements of Article 31(b),

UCMJ.    Gardinier, 63 M.J. at 534-35 n.3.

Discussion

        Rights advisements are required in both the civilian and

military communities “‘to avoid impairment of the constitutional



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United States v. Gardinier II, No. 06-0591/AR

guarantee against compulsory self incrimination.’”   United

States v. Harvey, 37 M.J. 140, 143 (C.M.A. 1993) (quoting United

States v. Gibson, 3 C.M.A. 746, 752, 14 C.M.R. 164, 170 (1954));

United States v. Rogers, 47 M.J. 135, 136 (C.A.A.F. 1997).     In

the civilian community, rights advisements are required by the

1966 United States Supreme Court decision Miranda v. Arizona.

The corresponding requirement in the military community is found

in Article 31(b),2 UCMJ, which has essentially been in this form

since its inception in 19503:

     No person subject to this chapter may . . .
     interrogate, or request any statement from an accused
     or 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 as evidence against him in a trial by court-
     martial.

     We have previously recognized that a rights advisement has

particular significance in the military context:   “‘Because 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.’”   Harvey,

37 M.J. at 143 (quoting Gibson, 3 C.M.A. at 752, 14 C.M.R. at


2
  Article 31(b), UCMJ, rights differ slightly from Miranda
rights. See United States v. Rogers, 47 M.J. 135, 137 (C.A.A.F.
1997) (outlining the differences between the rights warnings
under Article 31(b), UCMJ, and under Miranda).
3
  See Act of May 5, 1950, ch. 169, 64 Stat. 107, 118 (Article
31). In 1956, the word “may” was substituted for the word
“shall.” Act of Aug. 10, 1956, ch. 1041, 70A Stat. 48.

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United States v. Gardinier II, No. 06-0591/AR

170).    “‘Conditioned to obey, a serviceperson asked for a

statement about an offense may feel himself to be under a

special obligation to make such a statement.’”    Id. at 143

(quoting United States v. Armstrong, 9 M.J. 374, 378 (C.M.A.

1980)).

        We have also recognized that Congress enacted Article

31(d), UCMJ, as a “strict enforcement mechanism to implement the

rights’ warning requirements” of Article 31(b), UCMJ.    United

States v. Swift, 53 M.J. 439, 448 (C.A.A.F. 2000).     Article

31(d) provides that “[n]o statement obtained from any person in

violation of this article, or through the use of coercion,

unlawful influence, or unlawful inducement may be received in

evidence against him in a trial by court-martial.”    In addition,

M.R.E. 305(a) and (c) provide that statements obtained without a

proper rights warning are defined as “involuntary” and excluded

from evidence by operation of M.R.E. 304(a).4

        The military judge found that the sheriff’s office was not

conducting a joint investigation with the military at the time

the civilian detective gave the rights advisement under Miranda.

The military judge further determined that Phillips should have

given Gardinier a rights advisement under Article 31(b), UCMJ.




4
  M.R.E. 304(b) notes some exceptions to complete evidentiary
exclusion. This case does not involve any of these exceptions.

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United States v. Gardinier II, No. 06-0591/AR

     In light of these determinations, the January 3 statement

and videotape of the CID interview should have been excluded

under Article 31(d), UCMJ, M.R.E. 304(a), and M.R.E. 305(a) and

(c), and the military judge’s failure to do so was legal error.

     Where an earlier statement was “involuntary” only because

the accused had not been properly warned of his Article 31(b),

UCMJ, rights, the voluntariness of the second statement is

determined by the totality of the circumstances.    See United

States v. Brisbane, 63 M.J. 106, 114 (C.A.A.F. 2006) (quotation

and citation omitted).   The earlier unwarned statement is a

factor in this total picture, but it does not presumptively

taint the subsequent statement.   Id.   If a “cleansing warning”

has been given -- where the accused is advised that a previous

statement cannot be used against him -– that statement should be

taken into consideration.   Id.   If a cleansing statement is not

given, however, its absence is not fatal to a finding of

voluntariness.   Id.

     While we have found that the military judge made a legal

error in admitting the January 3 statement and videotape, we are

bound by his factual findings concerning the circumstances of

the interviews if they were not clearly erroneous.   See United

States v. Burris, 21 M.J. 140, 144 (C.M.A. 1985).    In reviewing

those circumstances we note that when the CID agent conducted

his first interview on January 3, he did so in a professional,



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United States v. Gardinier II, No. 06-0591/AR

noncoercive manner.   Just before this interview, Gardinier

received two Miranda warnings during his questioning by civilian

authorities, which he waived without hesitation.   The military

judge found that “[a]t all times [Gardinier] was free to

exercise his own judgment and to make choices without improper

or illegal influence from any law enforcement authority.”

     When he was called back to the CID office on January 7, the

CID agent gave Gardinier his Article 31(b), UCMJ, rights and

told him that another statement was needed because he may not

have been properly warned of his rights on January 3.   Gardinier

waived his Article 31, UCMJ, rights, just as he had previously

waived his Miranda rights.   While the CID agent did not

specifically inform Gardinier that the January 3 statement might

not be admissible against him, the written rights advisement did

state, “[y]our prior statement you provided on 3 Jan 02, was

given with [what] may not have been a proper rights advisement.

Now that a proper rights advisement has been provided, are you

willing to provide an additional statement?”    Gardinier wrote

the word “yes” by this statement followed by his initials,

indicating that he had read it and thus also had an opportunity

to ask questions regarding its meaning.

     There is no suggestion that either the January 3 or the

January 7 interview was a coercive event, nor do Gardinier’s

relative age and maturity level raise concerns about the



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United States v. Gardinier II, No. 06-0591/AR

statement’s voluntariness.   Under the totality of the

circumstances surrounding both the January 3 and January 7

statements, we conclude that Gardinier’s decision to make a

second statement on January 7, 2002, was made voluntarily

following a proper Article 31(b), UCMJ, rights advisement and

was therefore admissible.

             KG’s Statements to the Sexual Assault Nurse

     The Confrontation Clause bars the admission of testimonial

statements of a witness who did not appear at trial unless the

witness was unavailable to testify and the defendant had a prior

opportunity for cross-examination.    Crawford, 541 U.S. at 53-54.

We granted review of this issue to determine whether statements

that KG made to the sexual assault nurse examiner were

testimonial hearsay.   We hold that these statements were

testimonial and their admission into evidence at the court-

martial was error.

Background

     After KG reported to her mother that her father touched her

inappropriately, KG’s mother took her to the Evans Army

Community Hospital for examination.   A few days later, the

sheriff’s department and the human services department conducted

a joint interview of KG.    Immediately following that interview

KG was examined by Ms. Valerie A. Sievers, a sexual assault

nurse examiner (SANE).   Ms. Sievers, who also described herself



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United States v. Gardinier II, No. 06-0591/AR

as a clinical forensic specialist, conducted a forensic medical

examination of KG and completed a report entitled “Forensic

Medical Examination Form.”   This form included a section on

patient history in which Ms. Sievers documented statements that

KG made about Gardinier’s conduct.

     At trial, the complete form was admitted into evidence as

was Ms. Sievers’ testimony about KG’s statements.   The

Government called Ms. Sievers to testify as an expert in the

area of sexual assault nursing and examination.   During her

testimony, trial counsel moved for admission of Ms. Sievers’

complete report under the business records exception to the

hearsay rule, M.R.E. 803(6).   Defense counsel’s objection on

authentication grounds was overruled.   Defense counsel later

objected to Ms. Sievers’ testimony about KG’s statements on

hearsay grounds.   Trial counsel argued that the testimony was

“off of her document, which [was] already admitted into

evidence” and that it fell “under the medical rules exception.”

Defense counsel’s objection was overruled and the testimony was

allowed.

Discussion

     Whether these statements are inadmissible hearsay under

Crawford is a question of law that we review de novo.     United

States v. Rankin, 64 M.J. 348, 351 (C.A.A.F. 2007).       Without

articulating a comprehensive definition of “testimonial” in



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United States v. Gardinier II, No. 06-0591/AR

Crawford, the Supreme Court “set forth ‘[v]arious formulations’

of the core class of ‘testimonial’ statements.”   United States

v. Davis, 126 S. Ct. 2266, 2273 (2006).    We recognize that these

formulations should not be viewed as an exhaustive list of

testimonial statements.   Id. (noting that the Court found it

unnecessary to endorse any of the formulations because “some

statements qualify under any definition”).   Nevertheless, one of

these formulations, i.e., “statements that were made under

circumstances which would lead an objective witness reasonably

to believe that the statement would be available for use at a

later trial” offers a useful baseline to begin analysis of the

testimonial quality of the statements at issue in this case.

Crawford, 541 U.S. at 51-52.

       In Rankin, we identified several factors that could be

considered when distinguishing between testimonial and

nontestimonial hearsay under these circumstances.   64 M.J. at

352.   Those factors include:   (1) was the statement elicited by

or made in response to law enforcement or prosecutorial

inquiry?; (2) did the statement involve more than a routine and

objective cataloging of unambiguous factual matters?; and (3)

was the primary purpose for making, or eliciting, the statement

the production of evidence with an eye toward trial?     Id.

(C.A.A.F. 2007) (citation and quotation omitted).   In

undertaking this factors approach, our goal is an objective look



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United States v. Gardinier II, No. 06-0591/AR

at the totality of the circumstances surrounding the statement

to determine if the statement was made or elicited to preserve

past facts for a criminal trial.       Cf. Davis, 126 S. Ct. at 2273-

74 (distinguishing between testimonial and nontestimonial

statements made in the course of police interrogation by

determining whether the circumstances objectively indicate that

the primary purpose is to prove past events potentially relevant

to later criminal prosecution).

     In applying this approach to the statements that Ms.

Sievers elicited from KG, we consider the first and third

factors together because they are related in this factual

context.5   We determine that on balance the evidence tips towards

a conclusion that the statements were elicited in response to

law enforcement inquiry with the primary purpose of producing

evidence with an eye toward trial.

     Ms. Sievers is a coordinator for the Colorado SANE Program

and also conducts sexual assault examinations at the Children’s

Advocacy Center.   It was in this capacity that she examined KG.

Ms. Sievers testified that she elicited a patient history from

KG “to determine diagnosis and treatment,” and she completed the


5
  As to the second factor, we have no difficulty concluding that
Ms. Sievers’ documentation of KG’s allegations of sexual abuse
is more than a routine and objective cataloging of unambiguous
factual matters. See United States v. Magyari, 63 M.J. 123,
126-27 (C.A.A.F. 2006) (holding that data entries by lab
technicians fit into this category).



                                  14
United States v. Gardinier II, No. 06-0591/AR

“treatment” section on the medical form referring KG to Evans

Army Community Hospital for follow-up care.    However, Ms.

Sievers also testified that she sees children at the Children’s

Advocacy Center to conduct forensic evaluations and detailed

genital examinations.6   Although there is a “treatment” section

on the form, the form itself is entitled a “Forensic Medical

Examination Form” rather than simply a medical exam form and Ms.

Sievers referred to the report as “the medical legal record.”

We also note that one of questions Ms. Sievers asked KG was:

“Can you tell me what you talked about with Ken the policeman?”

This question reflects more of a law enforcement purpose and

less of a medical treatment purpose.

     In addition, the Government concedes that the sheriff’s

office was involved in arranging the examination; the consent

form for the examination stated that the medical report would be

provided to law enforcement; the report was sent to the

sheriff’s office; the sheriff’s office was billed for the

forensic medical exam; and the forensic medical examination form

was introduced by the Government at Gardinier’s court-martial

after the Government established that Ms. Sievers has testified

as an expert in the area of SANE examinations over fifty times

and qualified her as an expert in this area.


6
  “Forensic” is defined as “[u]sed in or suitable to courts of
law or public debate.”    Black’s Law Dictionary 676 (8th ed.
2004).

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United States v. Gardinier II, No. 06-0591/AR

     We recognize that the referral of an alleged victim to a

medical professional by law enforcement or trial counsel does

not always establish that the statements at issue were made in

response to a law enforcement or prosecution inquiry or elicited

with an eye toward prosecution.    Cf. United States v. Rodriguez-

Rivera, 63 M.J. 372, 381 (C.A.A.F. 2006).   Here, however, the

evidence indicates that Ms. Sievers, who specialized in

conducting forensic medical examinations, performed a forensic

medical exam on KG at the behest of law enforcement with the

forensic needs of law enforcement and prosecution in mind.

Under the totality of the circumstances presented here, KG’s

statements to Ms. Sievers are testimonial and were admitted in

error.

 The Court of Criminal Appeals’ Article 66(c), UCMJ, Review and
   Consideration of Prejudice Under New Evidentiary Landscape

     The Court of Criminal Appeals concluded that the military

judge abused his discretion in finding that KG was legally

unavailable to testify within the meaning of M.R.E. 804(a).     63

M.J. at 540.   The lower court found that the subsequent

admission of KG’s videotaped interview with the civilian

authorities violated Gardinier’s Sixth Amendment right to

confrontation.   Id. at 543-44.   However, in considering the

other evidence admitted at trial, the lower court ultimately




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United States v. Gardinier II, No. 06-0591/AR

concluded that the erroneous admission of the videotape was

harmless beyond a reasonable doubt.    Id. at 545.

     We have determined that the following evidence was admitted

in error:    (1) Gardinier’s January 3, 2002 statement; (2) the

January 3 videotape of the CID interview with Gardinier; and (3)

the statements KG made to Ms. Sievers during the sexual assault

examination.   These determinations change the evidentiary

landscape that was before the Court of Criminal Appeals when it

conducted its initial review.

     In light of this changed evidentiary landscape, it is

appropriate that we return the case to the Court of Criminal

Appeals to conduct an Article 66(c), UCMJ, 10 U.S.C. § 866(c)

(2000), factual sufficiency review and also to consider whether

the erroneous admission of KG’s videotaped interview with the

civilian authorities was harmless beyond a reasonable doubt.      In

addition, the admission of Gardinier’s January 3, 2002,

statement, the admission of the videotape of Gardinier’s

interview with the CID agent, and the admission of KG’s

statements to Ms. Sievers were errors of constitutional

magnitude.   See Crawford, 541 U.S. at 61; Brisbane, 63 M.J. at

116 (reviewing Article 31(b), UCMJ, error under standard of

harmless beyond a reasonable doubt).   Therefore, the Court of

Criminal Appeals should also consider whether those errors were

harmless beyond a reasonable doubt.



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United States v. Gardinier II, No. 06-0591/AR

                             Decision

     The decision of the United States Army Court of Criminal

Appeals is set aside.   The record of trial is returned to the

Judge Advocate General of the Army for remand to the Court of

Criminal Appeals for further review consistent with this

opinion.




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United States v. Gardinier, No. 06-0591/AR



     EFFRON, Chief Judge (concurring in part and dissenting in
part):

     I concur in the majority opinion’s determination that a

remand is warranted because the military judge erred in

permitting the introduction of the key pieces of evidence.

First, the military judge erroneously permitted a sexual assault

nurse to recount KG’s statements, which constituted inadmissible

testimonial hearsay under the Confrontation Clause of the Sixth

Amendment.   See Crawford v. Washington, 541 U.S. 36 (2004).

Second, the military judge erred in admitting into evidence

Appellant’s January 3 statement to the Army Criminal

Investigation Division (CID) and the related videotape of his

interview with the CID because these statements were obtained

without providing Appellant with the rights warnings required by

Article 31(b), Uniform Code of Military Justice (UCMJ), 10

U.S.C. § 831(b) (2000).    I respectfully disagree, however, with

the majority opinion’s determination that Appellant’s January 7

statement, obtained by the same CID agent without a cleansing

warning, was admissible.

Successive interrogations after an unwarned statement

     As the majority opinion observes, United States v.

Brisbane, 63 M.J. 106 (C.A.A.F. 2006), provides the appropriate

framework for analyzing the admissibility of Appellant’s second

statement.   In Brisbane, we noted that when a statement is
United States v. Gardinier, No. 06-0591/AR



inadmissible because an individual was not provided with the

applicable rights warning, the voluntariness of a second

statement is determined by the totality of the circumstances.

Id. at 114.   In assessing the totality of the circumstances, we

take into account the presence of a “cleansing warning” -- that

is, advice that a person’s prior statement cannot be used

against that person.   Id.   The absence of a cleansing warning is

a factor to be considered under the totality of the

circumstances, but “the absence of such [a warning] is not fatal

to a finding of voluntariness.”   Id.

     When an accused challenges the admissibility of a statement

under Article 31(b), UCMJ, and Military Rule of Evidence

(M.R.E.) 305, the government bears the burden of establishing

that the statement is admissible.     See United States v. Benner,

57 M.J. 210, 212 (C.A.A.F. 2002).     When a court determines that

an earlier statement is inadmissible, the government bears the

burden of demonstrating that a subsequent statement is

admissible under the totality of the circumstances.    United

States v. Phillips, 32 M.J. 76, 80 (C.M.A. 1991).

Appellant’s unwarned statement and the subsequent interrogation

     The record reflects a direct connection between Appellant’s

unwarned statement on January 3 and his decision to respond to

CID’s request for a statement only four days later on January 7.

Appellant testified that subsequent to his January 3 statement,




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United States v. Gardinier, No. 06-0591/AR



he was directed by his first sergeant to call the CID agent,

Special Agent Phillips.   According to Appellant, Special Agent

Phillips “asked me if I could come in to clarify questions and

clarify or follow up on questions that were asked on the 3rd of

January.”   Appellant added:   “Basically, all he was looking for

was to clarify what was said and, you know, make sure that what

I was talking about was accurate, or you know, he wanted to get

it down on forms there, too.”   When asked if Special Agent

Phillips had told him that his January 3 statement might not be

able to be used against him, Appellant said:   “I don’t remember

him saying anything about it could be used against me.”

      Appellant offered the following explanation for his

decision to make a statement to Special Agent Phillips on

January 7 in light of his prior statement to Phillips on January

3:   “I just thought he knew what he wanted to know.   I mean, all

he was in there to do was basically clarify what was said and

basically rehash the 3 January interview.”

      At the January 7 interview, Special Agent Phillips

presented Appellant with a rights waiver certificate containing

the following advisement:   “Your prior statement you provided on

3 Jan 02, was given with [what] may not have been a proper

rights advisement.”   The military judge, in his findings of

fact, stated that Special Agent Phillips “did not explain what

[the January 7 advisement] meant; i.e., he did not give a




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United States v. Gardinier, No. 06-0591/AR



cleansing warning.”   In his conclusions of law, the military

judge determined that a cleansing warning was not required

because Appellant “was, in substance, advised of all of his

rights” before he made the January 3 statement.

     The military judge erred in his conclusion on the January 7

statement because it was based on his erroneous determination

that the January 3 statement was admissible.   The Court of

Criminal Appeals likewise erred in its conclusion that the

January 3 statement was admissible.

     The Government had an opportunity at trial to rebut

Appellant’s testimony that he gave a statement on January 7

because the Government already possessed the January 3 statement

and the admissions contained therein.   Special Agent Phillips

did not tell him that his earlier statement could not be used

against him at trial.   In view of the fact that qualified

military judges at both the trial and intermediate appellate

level believed as a matter of law that the January 3 statement

was admissible, it was reasonable for Appellant -- a layman --

to assume on January 7 that his choices were constrained by the

Government’s ability to exploit the incriminating statements

from his January 3 statement.   The Government was required to

show that Appellant voluntarily made a second statement after

making an earlier involuntary statement.   See Brisbane, 63 M.J.

at 114.   The Government, however, chose at trial not to rebut




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United States v. Gardinier, No. 06-0591/AR



Appellant’s testimony about his reasons for providing a

statement on January 7, preferring to rely on its belief in the

propriety of the January 3 statement.   Although the absence of a

cleansing warning is not always fatal, in this case, the record

reflects a statement obtained by the same law enforcement agent

close in time to the unwarned statement.   Appellant reasonably

viewed his options as constrained by the earlier statement.   In

that context, Government has not met its burden of demonstrating

that the January 7 was admissible under the totality of the

circumstances.   Accordingly, I respectfully dissent from that

portion of the majority opinion that would permit reliance on

the January 7 statement.




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