        This opinion is subject to revision before publication


          UNITED STATES COURT OF APPEALS
                   FOR THE    ARMED FORCES
                          _______________

                        UNITED STATES
                            Appellee
                                 v.
                Koda M. HARPOLE, Seaman
              United States Coast Guard, Appellant
                           No. 17-0171
                        Crim. App. No. 1420
       Argued December 6, 2017—Decided February 14, 2018
                Military Judge: Christine N. Cutter
   For Appellant: Lieutenant Commander Jason W. Roberts
   (argued); James S. Trieschmann, Esq. (on brief).
   For Appellee: Lieutenant Connor B. Simpson (argued);
   Stephen P. McCleary, Esq. (on brief).
   Judge OHLSON delivered the opinion of the Court, in
   which Judges RYAN and SPARKS, and Senior Judge
   EFFRON, joined. Chief Judge STUCKY filed a separate
   dissenting opinion.
                       _______________

   Judge OHLSON delivered the opinion of the Court.
    Contrary to his pleas, a general court-martial with en-
listed representation convicted Appellant of one specification
of making a false official statement, two specifications of
sexual assault, 1 and one specification of housebreaking, in
violation of Articles 107, 120, and 130, Uniform Code of Mili-
tary Justice (UCMJ), 10 U.S.C. §§ 907, 920, 930 (2012). Ap-
pellant’s adjudged and approved sentence consisted of a dis-
honorable discharge, confinement for seven years, and a
reduction in rank to E-1. The United States Coast Guard
Court of Criminal Appeals (CCA) affirmed the findings and
sentence.
   We granted review of the following three issues:

   1  Following findings, the military judge conditionally dis-
missed one sexual assault specification “subject to final review of”
Appellant’s case because the alternative sexual assault specifica-
tions were charged for “contingencies of proof.”
            United States v. Harpole, No. 17-0171/CG
                      Opinion of the Court

           I. Whether the military judge abused her dis-
       cretion when she allowed a victim advocate to testi-
       fy as to Appellant’s privileged communications, in
       violation of M.R.E. 514.
           II. Whether the trial defense counsel were inef-
       fective by failing to suppress Appellant’s unwarned
       admissions. These admissions were made to YN1
       Nipp when she knew he was a suspect and under
       investigation. She intended to report these admis-
       sions to the command and questioned him without
       advising him of his Art. 31, UCMJ, rights.
           III. Upon request by the defense counsel and
       using a defense-drafted instruction, should the mil-
       itary judge have provided the members with an ex-
       planation of the term “incapable”?
United States v. Harpole, 76 M.J. 334 (C.A.A.F. 2017) (order
granting review).
    Because our decision in United States v. Bailey, 77 M.J.
11 (C.A.A.F. 2017), forecloses providing Appellant with any
relief on Issue III, we only address the first two issues in
this opinion. 2 As for Issue I, we conclude that based on the
record before us, Appellant’s communication to the victim
advocate was not a “confidential” communication as required
under the provisions of Military Rule of Evidence (M.R.E.)
514(a) and thus was not privileged. As for Issue II, we
conclude that a factfinding hearing pursuant to United
States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967), is
necessary because the record fails to reflect why trial
defense counsel did not seek to have Appellant’s statements
to the victim advocate suppressed pursuant to the provisions
of Article 31(b), UCMJ, 10 U.S.C. § 831(b) (2012).
Accordingly, although we find no error with respect to Issues



   2 Just as in Bailey, the defense-requested instruction in this
case was an erroneous statement of the law. 77 M.J. at 14–15. In-
deed, it was precisely the same instruction. See id. at 13. Also as
in Bailey, the military judge in Appellant’s case properly defined
“consent” in the panel instructions and this definition, combined
with the plain meaning of “incapable,” “allowed the panel to un-
derstand the element ‘incapable of consenting.’ ” Id. at 15. We
therefore conclude that the military judge did not err by failing to
define “incapable of consenting.”



                                 2
             United States v. Harpole, No. 17-0171/CG
                       Opinion of the Court

I and III, we set aside the decision of the CCA and remand
for a DuBay hearing to resolve Issue II.
                           I. Background
                    A. Summary of Testimony
   In late February 2014, a Coast Guard icebreaker ship,
the USCGC Polar Star, made a port call in Tahiti. Appel-
lant’s convictions stem from a sexual encounter with Store-
keeper Third Class (SK3) GR during this port call. On the
early morning of February 27, 2014, Appellant entered SK3
GR’s berthing area aboard the ship. Those present in this
berthing area provided three varying accounts of the sexual
encounter, each of which is outlined below.
    (1) SK3 GR’s two roommates described hearing sounds of
consensual sexual activity in their berthing area on the
night in question. One roommate awoke to Appellant open-
ing the curtain of her rack, looking for SK3 GR, and asking
about a backpack. When this roommate pointed Appellant to
SK3 GR’s rack, the roommate watched Appellant shake SK3
GR awake and talk with her before the roommate fell asleep.
This roommate was later reawakened by sounds of sexual
activity in which a female voice was saying, “[Y]es, yes, yes.”
SK3 GR’s other roommate and bunkmate woke up to her
rack shaking and hearing sounds of what she believed to be
consensual sex—moaning, groaning, and kissing—coming
from SK3 GR’s rack.
    (2) SK3 GR described having several alcoholic beverages
throughout the day and evening in Tahiti before returning
to the ship. Upon waking the next morning, SK3 GR was
surprised to find herself naked. She did not know what had
happened the night before, but she initially thought she
might have engaged in sexual intercourse with her ex-
boyfriend before realizing that it was with Appellant. 3 Later


   3   At trial, SH3 GR testified as follows:
        I just have like a few flashes. So the first flash that
        I have is seeing [Appellant’s] face. And knowing
        that we were having sex, because I felt uncomfort-
        able. Then the next thing I remember is him telling
        me to shush. And then after that I don’t know . . .
        how much time passed. I remember feeling like he


                                  3
            United States v. Harpole, No. 17-0171/CG
                      Opinion of the Court

that day, SK3 GR’s roommates informed SK3 GR that “what
happened last night was not acceptable.” When SK3 GR told
her roommates that she did not “know how it happened”
that she ended up having sex with Appellant, her room-
mates told her, “[Y]ou have to report it.” SK3 GR then re-
ported the incident to the command.
    (3) Three days after the incident, Appellant informed his
friend, Seaman Boatswain’s Mate (SNBM) SC, and a victim
advocate, Yeoman First Class (YN1) Nipp, that SK3 GR had
sexually assaulted him. Specifically, in the presence of
SNBM SC, Appellant informed YN1 Nipp of the following:
he and a group of individuals went out drinking at a number
of bars in Tahiti; SK3 GR made sexual comments to him
throughout the night; he gave his backpack to SK3 GR to
take back to the ship; he went to SK3 GR’s berthing area to
retrieve the backpack; he knocked on the door to the berth-
ing area and SK3 GR answered; and he did not remember
anything after that point. Appellant also told YN1 Nipp that
he knew he had been sexually assaulted on the night in
question because he felt the same as he had in the past
when he had been sexually assaulted. 4
    At the time Appellant made this report, YN1 Nipp was
aware of SK3 GR’s sexual assault allegations against Appel-
lant. Because Appellant’s report was unrestricted, YN1 Nipp
communicated his allegation up the chain of command. 5 She
later also provided the United States Coast Guard Investi-
gative Service (CGIS) with a detailed written statement
about Appellant’s communication to her.
                      B. Motion In Limine
   Before trial, defense counsel filed a motion in limine to
preclude YN1 Nipp from testifying about Appellant’s


       was leaving, the weight of his body coming off of
       mine. And him leaving. And that’s all I remember
       until the next morning.
   4Appellant provided no details about any prior incidents when
he was sexually assaulted.
   5 YN1 Nipp subsequently recused herself from Appellant’s
complaint because of a conflict of interest stemming from her prior
knowledge of SK3 GR’s allegations.



                                4
            United States v. Harpole, No. 17-0171/CG
                      Opinion of the Court

statements to her. Appellant argued that this
communication was privileged under the M.R.E. 514 victim
advocate-victim privilege. 6
    The military judge made the following findings of fact be-
fore resolving the defense motion: A few days after the inci-
dent in SK3 GR’s berthing area, Appellant approached his
friend, SNBM SC, and informed SNBM SC that he believed
“he was taken advantage of” by SK3 GR after entering her
berthing area. Following the conversation with SNBM SC,
Appellant went to the victim advocate, YN1 Nipp. Appellant
asked SNBM SC to “sit in on the interview for support,” and
he informed the victim advocate that “he had already told
SNBM [SC] everything.” YN1 Nipp notified Appellant that
his report was unrestricted because he had already spoken
with SNBM SC about the incident and that she would have
to tell the command. Appellant then provided YN1 Nipp
with a similar account as the one he told to SNBM SC. The
military judge then concluded that the M.R.E. 514 privilege
did not apply because Appellant’s communication with YN1
Nipp was made in the presence of a third party—SNBM
SC—and therefore was not confidential. Accordingly, the
military judge denied the defense motion in limine.
                          II. Analysis
                    A. M.R.E. 514 Privilege
   In analyzing this case, we first address whether Appel-
lant’s communication with the victim advocate was privi-
leged under the M.R.E. 514 victim advocate-victim privilege.
                       1. Applicable Law
   The question of whether a communication is privileged is
a mixed question of fact and law. Factual findings are re-
viewed for clear error and legal questions, including the in-
terpretation of a rule’s language, are reviewed de novo.
United States v. Shelton, 64 M.J. 32, 37 (C.A.A.F. 2006) (cit-
ing United States v. McCollum, 58 M.J. 323, 336 (C.A.A.F.
2003)); see also McCollum, 58 M.J. at 340.


   6 Trial defense counsel did not alternatively move to suppress
Appellant’s statement pursuant to the provisions of Article 31(b),
UCMJ.



                                5
            United States v. Harpole, No. 17-0171/CG
                      Opinion of the Court

   The military’s victim advocate-victim privilege provides:
           A victim has a privilege to refuse to disclose and
       to prevent any other person from disclosing a con-
       fidential communication made between the alleged
       victim and a victim advocate, in a case arising un-
       der the [UCMJ], if such communication was made
       for the purpose of facilitating advice or supportive
       assistance to the alleged victim.
M.R.E. 514(a) (emphasis added). 7 Thus, a communication
must be confidential to be privileged. See M.R.E. 514(a),
(b)(3).
           A communication is “confidential” if made in
       the course of the victim advocate—victim relation-
       ship and not intended to be disclosed to third per-
       sons other than those to whom disclosure is made
       in furtherance of the rendition of advice or assis-
       tance to the alleged victim or those reasonably nec-
       essary for such transmission of the communication.
M.R.E. 514(b)(3) (emphasis added). The party claiming the
privilege has the burden of establishing by a preponderance
of the evidence that the communication is privileged. United
States v. Durbin, 68 M.J. 271, 273 (C.A.A.F. 2010) (citing
McCollum, 58 M.J. at 336).
   We use principles of statutory construction when inter-
preting M.R.E. privileges. See United States v. Matthews,
68 M.J. 29, 36 (C.A.A.F. 2009). These privileges are con-
strued narrowly because they “ ‘run contrary to a court’s
truth-seeking function.’ ” United States v. Jasper, 72 M.J.
276, 280 (C.A.A.F. 2013) (quoting United States v. Custis,
65 M.J. 366, 369 (C.A.A.F. 2007)).
    Finally, “[w]e have held, in harmony with federal civilian
law, that communications made in the presence of third par-
ties, or revealed to third parties, are not [generally] privi-
leged.” United States v. McElhaney, 54 M.J. 120, 131–32
(C.A.A.F. 2000); cf. Edward J. Imwinkelried, The New
Wigmore: A Treatise on Evidence: Evidentiary Privileges

   7 Citations to the M.R.E. are to the rules in effect at the time
of Appellant’s 2014 trial. The 2015 amendment to M.R.E. 514 ex-
panded the privilege to communications with Department of De-
fense Safe Helpline staff. See Exec. Order No. 13,696, 3 C.F.R.
300, 300–41 (2015).



                                 6
            United States v. Harpole, No. 17-0171/CG
                      Opinion of the Court

§ 6.8.1 (3d ed. 2016) (noting that the “presence of a third
party during a face-to-face consultation usually negates the
confidentiality necessary for a privilege”). In other M.R.E.
privilege contexts, we have declined to “define the precise
parameters of preserving … privileged communication made
in the presence of third parties,” but we have recognized
that a privilege still exists if “there is a ‘relationship by
blood or marriage’ as well as a ‘commonality of interest’ be-
tween the accused and the third party.” Shelton, 64 M.J. at
39 (quoting In re Grand Jury Investigation, 918 F.2d 374,
385–88 (3d Cir. 1990)).
                          2. Discussion
    Based on the record before us, Appellant has not met his
burden of establishing that his statements to YN1 Nipp
were confidential. Two key factors cause us to reach this
conclusion. First, a third party, SNBM SC, was present dur-
ing this communication and the record indicates that SNBM
SC did not have any special relationship with Appellant. Ra-
ther, SNBM SC was simply Appellant’s shipmate and friend
and attended the victim advocate interview “for support.”
The mere provision of moral support is not enough to main-
tain the confidentiality of a statement. Cf. Shelton, 64 M.J.
at 39; United States v. Evans, 113 F.3d 1457, 1464–65 (7th
Cir. 1997) (holding that meeting with attorney was not privi-
leged where third party attended the meeting as a friend,
supporter and character witness). 8
    Second, the record does not support the contention that
SNBM SC’s presence at the meeting with YN1 Nipp was “in
furtherance of the rendition of advice or assistance” pursu-
ant to the provisions of M.R.E. 514(b)(3). The plain meaning
of this phrase requires the communication to the third per-


   8  See also Imwinkelried, The New Wigmore § 6.8.1 (noting that
“many courts still apply the traditional view” that the presence of
a third party, such as a parent, friend or business associate, for
support negates confidentiality for “professional privileges such as
attorney-client and clergy-penitent” and that the “growing minori-
ty of jurisdictions … adopt[ing] the view that the presence of these
supportive individuals is consistent with confidentiality” have
done so “at least when there is a close family relationship and a
need for the moral support” (footnotes omitted)).



                                 7
           United States v. Harpole, No. 17-0171/CG
                     Opinion of the Court

son to be for the purpose of facilitating the victim advocate
in providing advice or assistance to the victim. At no time
did YN1 Nipp express any need for SNBM SC’s presence
during her meeting with Appellant. Therefore, Appellant’s
communication with YN1 Nipp was not confidential as re-
quired under M.R.E. 514(a). Accordingly, the military judge
properly concluded that the M.R.E. 514 victim advocate-
victim privilege did not apply to Appellant’s communication
with YN1 Nipp.
            B. Ineffective Assistance of Counsel
    We next address Issue II wherein Appellant claims that
trial defense counsel provided ineffective assistance by fail-
ing to seek suppression of his statement to the victim advo-
cate under Article 31(b), UCMJ.
                     1. Applicable Law
    “This court reviews claims of ineffective assistance of
counsel de novo ….” United States v. Captain, 75 M.J. 99,
102 (C.A.A.F. 2016). An appellant will prevail on an
ineffective assistance of counsel claim if he “demonstrate[s]
both ‘(1) that his counsel’s performance was deficient, and
(2) that this deficiency resulted in prejudice.’ ” Id. at 101
(quoting United States v. McIntosh, 74 M.J. 294, 295
(C.A.A.F. 2015)). “ ‘When a claim of ineffective assistance of
counsel is premised on counsel’s failure to make a motion to
suppress evidence, an appellant must show that there is a
reasonable probability that such a motion would have been
meritorious.’ ” United States v. McConnell, 55 M.J. 479, 482
(C.A.A.F. 2001) (quoting United States v. Napoleon, 46 M.J.
279, 284 (C.A.A.F. 1997)). The appellant must also
demonstrate “that there is a reasonable probability that the
verdict would have been different absent the excludable
evidence.” United States v. Loving, 41 M.J. 213, 244
(C.A.A.F. 1994) (internal punctuation omitted) (quoting
Kimmelman v. Morrison, 477 U.S. 365, 375 (1986)).
                        2. Discussion
    In assessing Appellant’s ineffective assistance of counsel
claim, we first must examine whether he has carried his
burden of showing that his counsel would have been success-
ful if she had filed a timely motion seeking to exclude Appel-



                              8
            United States v. Harpole, No. 17-0171/CG
                      Opinion of the Court

lant’s statement to the victim advocate under Article 31(b),
UCMJ. See United States v. Jameson, 65 M.J. 160, 164
(C.A.A.F. 2007). Article 31(b), UCMJ, warnings are required
when: “(1) a person subject to the UCMJ, (2) interrogates or
requests any statement, (3) from an accused or person sus-
pected of an offense, and (4) the statements regard the of-
fense of which the person questioned is accused or suspect-
ed.” United States v. Jones, 73 M.J. 357, 361 (C.A.A.F. 2014)
(footnote omitted) (citation omitted).
    The only Article 31(b), UCMJ, predicate in dispute in
this case is whether the victim advocate interrogated or re-
quested any statement from Appellant. 9 As part of our in-
quiry into this issue, we must determine whether the victim
advocate was “participating in an official law enforcement or
disciplinary investigation or inquiry, as opposed to having a
personal motivation for the inquiry.” See Jones, 73 M.J. at
361 (internal quotation marks omitted) (citation omitted).
   The record reflects that at the time YN1 Nipp and Appel-
lant met, YN1 Nipp knew that Appellant was suspected of a
crime. And yet, she did not advise Appellant of his Article
31(b), UCMJ, rights. Instead, she posed two questions to
Appellant: (1) Was it “okay that SNBM [SC] [was] in the
room”? and (2) “[W]hat was going on”?
    The first question is telling because it indicates YN1
Nipp suspected that Appellant’s request to talk to her was
based on her role as a victim advocate (as opposed to a casu-
al encounter or a junior enlisted servicemember seeking di-
rection from a noncommissioned officer on non-victim advo-
cate matters). Further, Appellant’s response to that
question—stating that he wanted SNBM SC to attend the
meeting and explaining that SC already knew “about every-
thing”—was important because it revealed to YN1 Nipp that


   9  The other three Article 31(b), UCMJ, predicates were clearly
met in this case: (1) the victim advocate, a member of the active
duty Coast Guard, is a person subject to the UCMJ (see Article
2(a)(1), UCMJ, 10 U.S.C. § 802(a)(1) (2012)); (2) Appellant’s
statements to the victim advocate regarded the offenses of which
Appellant was suspected—housebreaking and sexual assault; and
(3) the victim advocate knew that Appellant was suspected of an
offense when she talked with him.



                                9
            United States v. Harpole, No. 17-0171/CG
                      Opinion of the Court

her discussion with Appellant would be unrestricted. Such
unrestricted reports of sexual assault must be sent up the
chain of command and disclosed to law enforcement.
    The second question posed by YN1 Nipp about “what was
going on” demonstrates that she sought to elicit information
from Appellant at a time when she knew he was suspected
of sexually assaulting SK3 GR. 10 YN1 Nipp’s question, and
Appellant’s response, resulted in YN1 Nipp reporting to the
command and to CGIS potentially incriminating information
from Appellant’s own mouth. Therefore, YN1 Nipp’s know-
ing gathering of information from a suspect—with the
knowledge that this evidence would be supplied to senior
commanders and law enforcement—raises a colorable claim
that she engaged in her conversation with Appellant in dual
roles: one as a victim advocate and the other as a person
who was “participating in an official law enforcement or dis-
ciplinary investigation or inquiry.” Jones, 73 M.J. at 361.
    Thus, the facts of this case provided a reasonable basis
for trial defense counsel to argue before the military judge
that Appellant’s statements to YN1 Nipp should have been
suppressed pursuant to the provisions of Article 31(b),
UCMJ. Indeed, on the face of the record, it is unclear why
trial defense counsel did not pursue this issue at Appellant’s
court-martial. Counsel could have first argued that Appel-
lant’s statements were privileged and then, in the alterna-
tive, that Appellant’s statements were inadmissible under
Article 31, UCMJ. 11


   10 This question, though casual in nature, could be construed
as interrogation. See M.R.E. 305(b)(2) (defining “[i]nterrogation”
as “any formal or informal questioning in which an incriminating
response either is sought or is a reasonable consequence of such
questioning” (emphasis added)); cf. Rhode Island v. Innis, 446 U.S.
291, 300–01 (1980).
   11  As demonstrated above, we disagree with the CCA’s asser-
tion that “[t]he theory that [YN1 Nipp] was acting as a Victim Ad-
vocate is factually inconsistent with the theory that [she] was re-
quired to give Appellant his Article 31(b) rights.” United States v.
Harpole, No. 1420, slip op. at 8 (C.G. Ct. Crim. App. Nov. 10,
2016). Moreover, we note that there is nothing improper or unu-
sual about counsel presenting arguments in the alternative before
a trial judge. Consequently, we do not agree with the CCA’s con-


                                10
            United States v. Harpole, No. 17-0171/CG
                      Opinion of the Court

    Finally, we recognize that trial defense counsel’s perfor-
mance is presumed to be competent. See Morrison, 477 U.S.
at 384. However, this presumption may be rebutted “by
showing specific errors that were unreasonable under pre-
vailing professional norms.” McConnell, 55 M.J. at 482. The
record contains no affidavits explaining why trial defense
counsel failed to seek suppression of Appellant’s statements
under Article 31, UCMJ. Thus, all we have before us is a
record seemingly indicating that trial defense counsel failed
to litigate a legitimate legal theory that could have substan-
tially and positively affected her client’s case. Under the
specific circumstances of this case, we cannot discern any
reasonable tactical explanation for trial defense counsel’s
failure to take this course of action, and we decline to engage
in blind speculation on this point. This “insufficiency [in] the
record calls for an explanation from the defense team.” See
United States v. Boone, 42 M.J. 308, 314 (C.A.A.F. 1995).
    We therefore conclude that it is necessary to order a
DuBay hearing in this matter to further develop the record
regarding Appellant’s ineffective assistance of counsel claim.
Specifically, the DuBay military judge should make findings
of fact and conclusions of law to address the following issues:
   (1) whether legal and tactical considerations were in-
volved in trial defense counsel’s decision not to file a motion
to suppress Appellant’s statements pursuant to Article
31(b), UCMJ;
   (2) whether trial defense counsel’s failure to seek sup-
pression of Appellant’s communication with the victim advo-
cate pursuant to Article 31(b), UCMJ, was a reasonable
strategic decision;
  (3) whether there is a reasonable probability that such a
motion to suppress would have succeeded;




clusion that trial defense counsel was presented with a “dilemma,”
and that “defense counsel could reasonably have made the tactical
decision to seek to suppress all of the statements to [YN1 Nipp] as
confidential communications rather than simply seek to suppress
some of his statements because [she] failed to provide Article 31(b)
rights.” Id. at 8–9.



                                11
           United States v. Harpole, No. 17-0171/CG
                     Opinion of the Court

   (4) whether there is a reasonable probability that the
members’ findings would have been different had YN1
Nipp’s testimony been suppressed.
    The DuBay military judge also shall make detailed find-
ings of fact regarding Appellant’s interactions with YN1
Nipp, on the date in question, as well as any other related
factual determinations he or she decides are necessary to
develop the record.
                        III. Decision
    The decision of the United States Coast Guard Court of
Criminal Appeals is set aside. The record of trial is returned
to the Judge Advocate General of the Coast Guard for re-
mand to an appropriate convening authority to order a hear-
ing pursuant to United States v. DuBay, 17 C.M.A. 147, 37
C.M.R. 411 (1967). After the conclusion of these proceedings,
the record of trial and the military judge’s findings of fact
and conclusions of law shall be returned to the Court of
Criminal Appeals for further review in accordance with Ar-
ticle 66, UCMJ, 10 U.S.C. § 866 (2012).




                             12
            United States v. Harpole, No. 17-0171/CG


   Chief Judge STUCKY, dissenting.

    In the granted issues, Appellant asserts that his defense
counsel provided ineffective assistance by failing to move to
suppress statements Appellant made to a victim advocate,
Yeoman (YN1) Nipp, in violation of Article 31(b), UCMJ,
10 U.S.C. § 831(b) (2012). I conclude that Appellant could
not have prevailed on such a motion and, thus, there is no
reason to order a hearing into the defense counsel’s motiva-
tions for not filing it. As I would affirm the judgment of the
United States Coast Guard Court of Criminal Appeals, I re-
spectfully dissent.
    To prevail on a claim of ineffective assistance of counsel,
Appellant bears the burden of proving both that his coun-
sel’s performance was deficient and that the deficiency re-
sulted in prejudice. United States v. Captain, 75 M.J. 99, 103
(C.A.A.F. 2016) (citing Strickland v. Washington, 466 U.S.
668, 698 (1984)). “Judicial scrutiny of counsel’s performance
must be highly deferential.” Strickland, 466 U.S. at 689. We
“must indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assis-
tance.” Id.
   To overcome the presumption, an appellant must “show
specific defects in counsel’s performance that were ‘unrea-
sonable under prevailing professional norms.’ ” United
States v. Mazza, 67 M.J. 470, 475 (C.A.A.F. 2009) (quoting
United States v. Perez, 64 M.J. 239, 243 (C.A.A.F. 2006)).
       Article 31(b) warnings are required when (1) a per-
       son subject to the UCMJ, (2) interrogates or re-
       quests any statement, (3) from an accused or per-
       son suspected of an offense, and (4) the statements
       regard the offense of which the person questioned is
       accused or suspected.
           … Under Article 31(b)’s second requirement,
       rights warnings are required if the person conduct-
       ing the questioning is participating in an official
       law enforcement or disciplinary investigation or in-
       quiry, as opposed to having a personal motivation
       for the inquiry. This is determined by assessing all
       the facts and circumstances at the time of the in-
       terview to determine whether the military ques-
       tioner was acting or could reasonably be considered
           United States v. Harpole, No. 17-0171/CG
              Chief Judge STUCKY, dissenting

      to be acting in an official law-enforcement or disci-
      plinary capacity.
United States v. Jones, 73 M.J. 357, 361 (C.A.A.F. 2014)
(footnotes omitted) (internal quotation marks omitted) (cita-
tions omitted). The President has defined the term “interro-
gation” as “any formal or informal questioning in which an
incriminating response either is sought or is a reasonable
consequence of such questioning.” Military Rule of Evidence
305(b)(2).
    At 9:30 p.m., three days after he was alleged to have
sexually assaulted a shipmate, Appellant went, of his own
volition, with his friend Seaman Childers, to see a victim
advocate, YN1 Nipp, in her berthing area. YN1 Nipp was
asleep at the time and was awakened by knocking on the
door. YN1 Nipp took Appellant and Seaman Childers to the
first class lounge to talk. YN1 Nipp knew Appellant as they
had stood watch together.
    YN1 Nipp asked Appellant if he was comfortable with
Seaman Childers being present. He said that he was and
that he had told Seaman Childers everything he wanted to
speak to her about. YN1 Nipp then asked Appellant “what
was going on.” Appellant told YN1 Nipp that he was having
marital problems—that his spouse had cheated on him. He
claimed to have been sexually abused in the past, knew
what it felt like, and that is why he was talking to her. He
told YN1 Nipp that on the night of the alleged sexual assault
of which he had been accused, he had been drinking with the
alleged victim and others, that he went to the alleged vic-
tim’s berthing area to retrieve his backpack, that the alleged
victim answered the door, and that, although he was not
“super trashed,” he blacked out and didn’t remember any-
thing thereafter until he woke up in his own berthing area.
    Although YN1 Nipp knew that a sexual assault allega-
tion had been lodged against Appellant, she was not the al-
leged victim’s advocate, and there is no evidence that she
was involved with either the alleged victim or investigating
the alleged offense. Nor is there any evidence that, when
Appellant approached her, YN1 Nipp knew he wanted to
discuss that incident.




                               2
           United States v. Harpole, No. 17-0171/CG
              Chief Judge STUCKY, dissenting

    A reasonable person, under the circumstances, would not
conclude that merely by asking “what was going on,” and
listening to Appellant’s story, YN1 Nipp was interrogating
him or that she was engaged in an official law enforcement
or disciplinary investigation or inquiry. Thus, the defense
counsel had no valid grounds on which to challenge the ad-
missibility of Appellant’s statements to YN1.
    Therefore, the defense counsel’s performance was not de-
ficient, and a DuBay hearing to determine counsel’s motiva-
tion in not moving to suppress Appellant’s statements is un-
necessary.




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