United States v. Branoff

34 M.J. 612, 1992 CMR LEXIS 97, 1992 WL 17915
CourtU S Air Force Court of Military Review
DecidedJanuary 24, 1992
DocketACM 28891
StatusPublished
Cited by7 cases

This text of 34 M.J. 612 (United States v. Branoff) is published on Counsel Stack Legal Research, covering U S Air Force Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Branoff, 34 M.J. 612, 1992 CMR LEXIS 97, 1992 WL 17915 (usafctmilrev 1992).

Opinion

JAMES, Judge:

This case is about discovery. Appellant was convicted by a general court-martial of six specifications alleging use and introduction of drugs under Article 112a, UCMJ, 10 U.S.C. § 912a (1988). The trial was lengthy1 and vigorously contested, despite her confession. On appeal, appellant complains that her discovery request for access to a regulation was denied and that she is disadvantaged on appeal because no copy of the regulation is included in the record; that copies of the prior statements of witnesses, given to her in response to her discovery requests, had been redacted; that this Court has impeded her appeal by denying access by her counsel to exhibits sealed and attached to the record; and that the military judge improperly foreclosed her efforts at impeaching some witnesses. She also brings our attention to the admissibility of her confession, to the sufficiency of the evidence to convict on two of the specifications in particular (those not proven by her confession), and to the appropriateness of the sentence. We address the admissibility of the confession first, and then we turn to the other assignments of error. We find one error affecting the sentence and cure it by reassessing the sentence.

I. Admissibility of Confession

The confession issue arises from the involvement of a first sergeant in transporting appellant to the investigators who questioned her. This case is one of several that resulted from an investigation by special agents of the Air Force Office of Special Investigations (OSI) of drug abuse in one squadron at Yokota Air Base in Japan. The investigation involved many suspects who were interviewed by the agents. One day the agents asked the squadron’s first sergeant to find about 20 of the suspects and transport them to the agents’ office for interrogation. Appellant complains that the first sergeant “softened her up” during her ride to the OSI office. The military judge’s findings of fact summarize the events:

Eleven____ During the drive [the first sergeant] did not speak to the accused until he reached the stop sign on Bobzien near the military terminal.2 At the stop sign he informed the accused that he was taking her to OSI where she would be asked questions and that honesty was the best policy.
Twelve, during the trip to the OSI [the first sergeant] did not read Sergeant Branoff her Article 31 rights, nor did he question her.

Thirteen, at 1119 hours an interview of the accused began____ Initially [the OSI agent] asked the accused if she knew why she was there. The accused said she did not know. [The OSI agent] told the accused that this was her interview and she could stop it at any time.

____ Fourteen [the OSI agent] then advised the accused of her Article 31 UCMJ rights as well as her right to counsel. At approximately 1121 hours she acknowledged understanding of these rights. When asked whether she wanted counsel, Sergeant Branoff said she did not know. [The OSI agent] reiterated her rights and said the decision was hers. At about 1124 hours she waived her right to counsel. And at about 1126 agreed to speak.

However, her confession did not flow immediately. Instead, appellant questioned the interrogators at some length. The military judge’s findings of fact continue:

Eighteen, between 1126 and 1155 hours the accused did not make any incriminating statements. During this period she was advised that any cooperation would be passed on to her commander. And it [616]*616was after this discussion of cooperation that a first break was taken.
******
Twenty, during the break [the OSI agent] told the accused that he thought she did not trust OSI and asked her if she wanted to talk to the first sergeant____ At about 1207, the accused requested to see [him].
Twenty-one, from approximately 1217 hours until about 1232 hours the accused talked with [the first sergeant] alone____ Twenty-two, the accused asked [the first sergeant], “What’s happening,”____ Twenty-three, [the first sergeant] informed the accused that there had been a drug bust in the [accused’s squadron] and that various people had confessed. He added that ... these people admitted to the use of drugs with her..... He also informed Sergeant Branoff that this was her chance to tell her side of the story if she chose to do so.
Twenty-four, at one point the accused asked [the first sergeant] if she needed a lawyer. [The first sergeant] reminded her that this was up to her. During their talk when the accused asked [the first sergeant] what she should do, he told her that this was her decision.

Appellant then resumed the interview with the OSI agents and gave a confession. Appellant objected to the confession at trial, and the matter was litigated at considerable length. There is ample evidence to support the military judge’s findings of fact, and we find no reason to disturb them. See United States v. Middleton, 10 M.J. 123, 133 (C.M.A.1981); United States v. Cummings, 21 M.J. 987, 989 (N.M.C.M.R.1986), pet. denied, 22 M.J. 242 (C.M.A.1986). But cf. United States v. Cole, 31 M.J. 270 (C.M.A.1990).

The issue is voluntariness.3 Appellant’s view is that the first sergeant’s speech while driving to the interview was an unwarned interrogation that results in a presumptive taint of the ensuing interrogation by the OSI. She relies on United States v. Byers, 26 M.J. 132 (C.M.A.1988). She further asserts that the first sergeant’s “honesty is the best policy” speech was a “motivational seed to entice cooperation,” relying on our decision in United States v. Steward, 29 M.J. 724 (A.F.C.M.R.1989), reversed, 31 M.J. 259 (C.M.A.1990). Citing United States v. Duga, 10 M.J. 206 (C.M.A. 1981), she sees that and related events as “subtle pressure” designed to nullify the benefit of Article 31, 10 U.S.C. § 831.

After this case was tried, the “presumptive taint” idea in Byers lost any appellate following that it might have had. Steward, 31 M.J. at 264-65. Instead, appellate courts will assess voluntariness in the light of all the circumstances. United States v. Phillips, 32 M.J. 76 (C.M.A.1991).

If appellant is to succeed at all, she must show her case to be like the Byers facts, and so she emphasizes that her statements were unlawfully induced by the first sergeant’s “honesty” speech and by the OSI agent’s remarks that cooperation would be reported to appellant’s commander. However, it is now well established that an agent’s statement that he would report cooperation does not make the confession involuntary. Steward, 31 M.J. at 265-66.

The first sergeant’s brief speech is much dissimilar from the prolonged, 20 to 40-minute “pitch” in Byers, particularly in that it does not seem to have been designed to elicit a response. The Byers situation is also greatly distinguishable because the appellant here intelligently and diligently considered how to exercise her rights by questioning the interrogators at length before she said anything incriminating.

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Bluebook (online)
34 M.J. 612, 1992 CMR LEXIS 97, 1992 WL 17915, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-branoff-usafctmilrev-1992.