United States v. French

38 M.J. 420, 1993 CMA LEXIS 151, 1993 WL 503136

• Court: United States Court of Military Appeals
• Decided: September 30, 1993
• Docket: No. 93-0534; CMR No. 29123
• Status: Published

Opinions

Opinion of the Court

CRAWFORD, Judge:

After denial of defense motions to suppress his confession and evidence derived from a search of his house, appellant entered conditional pleas of guilty to possessing lysergic acid diethylamide (LSD), possessing marijuana, and using marijuana, in violation of Article 112a, Uniform Code of Military Justice, 10 USC § 912a. Contrary to his pleas, he was found guilty of attempted use of methamphetamine, in violation of Article 80, UCMJ, 10 USC § 880. The convening authority approved the sentence of a bad-conduct discharge, 8 months’ confinement, partial forfeitures, and reduction to the lowest enlisted grade. The Court of Military Review affirmed the findings and sentence. 36 MJ 589 (1992). We granted review of the following issues:

I

WHETHER THE INVOLVEMENT OF AIR FORCE PERSONNEL IN AN INTERVIEW CONDUCTED BY BRITISH AUTHORITIES UNDER THE FACTS OF THIS CASE CONSTITUTED “PARTICIPATION” UNDER MIL.R.EVID. 305(h)(2), TRIGGERING THE REQUIREMENT TO GIVE ARTICLE 31, UCMJ, [10 USC § 831,] and MIRANDA RIGHTS’ ADVICE.

II

WHETHER THE INVOLVEMENT OF AIR FORCE PERSONNEL IN A SEARCH CONDUCTED BY BRITISH AUTHORITIES UNDER THE FACTS OF THIS CASE CONSTITUTED “PARTICIPATION” UNDER MIL.R.EVID. 311(c)(1), TRIGGERING THE REQUIREMENT TO COMPLY WITH THE FOURTH AMENDMENT.

We hold that involvement of Air Force personnel did not trigger the requirement to give rights’ warnings or to comply with the Fourth Amendment.

FACTS

An undercover informant who was working with the Air Force Office of Special Investigations (OSI) began working with British law enforcement officials when the sources of information led to British nationals. This investigation by the British police resulted in the arrest of Travis Pele, the dependent spouse of an active-duty military member, for possessing, using, and supplying controlled drugs. At the time of his arrest Mr. Pele indicated he had sold LSD and marijuana to appellant and his wife. Based upon this information, British law enforcement officers, Detective Sergeant John Paul Scotney and Detective Constable Newton, accompanied by OSI Special Agent Sterne, briefed appellant’s commander and his first sergeant about their desire to arrest French for a drug offense. Accompanied by the first sergeant, they went to appellant’s duty station in a restricted area, where appellant was arrested by the British law enforcement officers.

Appellant testified that, after the initial introduction at his workplace, he sat back down in his chair, looked at his first sergeant, and asked for help. Scotney said that this was “all under British law” and that the first sergeant had “nothing to do with” it.

Before interrogating appellant, the British police had already taken appellant’s wife into custody and knew that a search was being conducted of their house for drugs. Appellant was warned by the British interrogators that he had a right to remain silent and that anything he said could be used in evidence against him. Appellant initially denied any knowledge of a drug sale by Pele, drug use, or drugs in his house. Several minutes after the denial, Agent Sterne made a comment to the accused to the effect that it was “better” to remain “quiet than to continue lying.” Appellant’s first sergeant testified, “Then at one point, I think it was after Mick [Newton] said something to the effect that it’d be easier on him. He looked at me and I kind of nodded that it would be.” During his testimony appellant stated that Agent Sterne told him, “It’s better for you to tell the truth than to lie” and admitted that he was never questioned by Agent Sterne or the first sergeant. Appellant remembers the “easier” language, as well as the OSI agent’s saying, “It’s better for you to tell the truth than to lie, Kevin.” Appellant also remembers looking at his first sergeant who nodded his head. After a short delay, appellant proceeded to give an incriminating statement.

After being interrogated at the British Police Station, appellant was released later that evening. Upon his release his first sergeant picked him and his wife up and drove them to their house. Appellant asked the first sergeant “to come in and talk to him and his wife.” When the first sergeant went into the house, he read appellant his Article 31(b) rights which appellant waived.

At trial, Detective Sgt. Scotney testified that the investigation was neither Air Force initiated nor “a joint operation” with the U.S. Air Force. He also testified that Agent Sterne and appellant’s first sergeant: were there to “assist” as this “was a British investigation”; made no other “remarks or comments” during the interrogation; and were merely “observer[s] helping us.” In fact, Detective Scotney testified this was “not a joint operation” and that assistance by the AFOSI was needed to give the British police points of contact and escorts at the base and to tell them where people could be located.

Upon questioning by the judge, Agent Sterne testified as follows:

You indicated that the British policemen needed to be escorted into Airman French’s duty area?

A: Yes, Sir.

Q: Did you also need an escort?

A: Yes, Sir.

Q: And that was Sergeant Keister?

A: Yes, Sir.

Q: You could not just go in there on your own either?

A: I didn’t have a restricted area badge for that area. Sir, No, Sir.

Q: What was your understanding of your reason for being along that day?

A: My understanding was to escort the British policemen, to observe what was going on, and to gather the information that [was] being gathered out of it, if they found drugs, and so forth, because there was a direct Air Force concern, obviously, that he was an Air Force maintenance individual.

The military judge made the following findings of fact:

One, the Cambridgeshire drug squad was the lead law enforcement agency involved in investigating drug offenses in which the accused became a suspect.

Two, Air Force Office of Special Investigations personnel, Detachment 6204, RAF Alconbury, meet frequently with members of the Cambridgeshire drug squad to share information and coordinate activities. This investigation originated with British nationals and involved more British persons than person in or related to the military. There was a lower level of involvement by military members and those related to military members.

Three, the actual arrest of Travis Pele on 25 July 1990 and the arrests of the accused and his wife later on 25 July 1990 were made by British police authorities. United States military authorities were present at those arrests primarily as observers of British police authorities and to assist the British police authorities in locating individuals on military installations.

Four, the arrest of Travis Pele, his being in possession of drugs, and his statement that he had provided LSD and hashish to the accused on 24 July 1990, coupled with previous information about the accused being involved with drugs, provided British police authorities with reasonable suspicion that the accused and his wife would be in possession of drugs on 25 July 1990.

Five, British police authorities, acting on their reasonable suspicion, went with AFOSI personnel to arrest the accused and his wife. Woman Detective Constable Carole McCready, accompanied by Special Agent Brian Lemelin, arrested Mrs. French at the Shoppette on RAF Upwood. Detective Sergeant John Paul Scotney and Detective Constable Newton, accompanied by Special Agent Sterne, briefed the accused’s commander and first sergeant, then went with Special Agent Sterne and the first sergeant to the accused’s duty section.

Six, after the first sergeant explained who everyone was, Detective Sergeant Scotney showed his identification and cautioned the accused to the effect that he did not have to say anything unless he wanted to, but that if he did say anything, it could be used as evidence. Detective Sergeant Scotney and Detective Constable Newton then asked questions of the accused concerning the location of drugs at his residence. Special Agent Sterne witnessed the above events and corroborates that the accused was cautioned.

Seven, the accused answered questions put to him by the British police, initially denying knowledge of drugs. After several minutes of denials by the accused, Special Agent Sterne made a comment to the accused to the effect that “It was better to remain quiet than to continue lying.” This comment was meant by Special Agent Sterne to warn the accused that the should remain silent, rather than make things worse by lying to the police. The comment was not designed to elicit a response from the accused.

Eight, a comment by the British police, Detective Constable Newton, that “It would be easier,” when taken in context and immediately following Special Agent Sterne’s comment, does not amount to an unlawful inducement to get the accused to make admissions. I interpret that comment as an agreement by Detective Constable Newton with Special Agent Sterne’s comment essentially meaning the accused should not compound his problems by lying. I do not interpret the comment as unlawfully encouraging an admission.

Nine, the accused at that point reflected upon his situation and, I conclude, decided on his own that the British police knew everything already and that discovery of the drugs was inevitable.

Ten, the accused then voluntarily disclosed the location of the LSD and indicated there was hashish in the house also.

Eleven, Woman Detective Constable McCready had by this time taken Mrs. French to the quarters on RAF Up-wood. The search warrant issued earlier by a magistrate had an incorrect address on it, so she relied on Section 18 of the Police and Criminal Evidence Act of 1984 as the basis for the search of the residence before Mrs. French was transported to the Huntingdon police station. Mrs. French cooperated and showed WDC McCready where the hashish was. Through an oversight, no inspector has performed the acts specified in subsection (7) of Section 18 of the Police and Criminal Evidence Act of 1984.

Twelve, after the accused disclosed the location of the LSD, Special Agent Sterne radioed the information to his office. The information reached Special Agent Lemelin at the accused’s residence; he told WDC McCready. Mrs. French assisted in actually locating the LSD. After the LSD and hashish had been found, an Air Force drug dog and handler walked through the accused’s residence at the request of the British police, but nothing was found as a result of that walk-through.

Thirteen, the accused, his office, locker, and car were then searched. Nothing was found. The accused was handcuffed, using Special Agent Sterne’s cuffs, for some time, but the cuffs were removed before he was transported to the Huntingdon police station.

Fourteen, at the Huntingdon police station, a custody officer authorized the accused’s continuing detention and advised him on procedures, on his right to make a phone call, and on his right to consult with a solicitor. The accused did not make a phone call or ask to consult with a solicitor.

Fifteen, the accused was placed in a cell for about an hour, then brought out and reinterviewed by Detective Sergeant Scotney and WDC McCready. He was cautioned again and answered questions again. The interview was tape recorded and Appellate Exhibit V is a full transcription of the interview. Sixteen, throughout the arrest and interrogations of the accused and his wife, the British police authorities were in charge of the case and they intended to take jurisdiction of the case.

As the Court of Military Review found:

In this drug probe initiated, controlled, and concluded by British authorities, appellant was just one of several suspects, and the only U.S. military member mentioned. Nothing in the OSI’s earlier awareness of this case, the appearance of Air Force personnel at appellant's first interview, the single comment made by the OSI agent during that interview, or the brief use of the OSI’s handcuffs in appellant’s arrest, reached the level of “participation” necessary to turn the British interrogation of the appellant into a United States interrogation.

36 MJ at 592 (footnote omitted).

A. Treaty Agreements

Under the United States treaty agreement with host countries in the North Atlantic Treaty Organization (NATO), the United States retains no jurisdiction over foreign nationals or dependents accompanying the Armed Forces. Under Article VII.2.-(b) of the NATO Treaty,¹ exclusive jurisdiction over dependents rests with the United Kingdom:

The authorities of the receiving State shall have the right to exercise exclusive jurisdiction over members of a force or civilian component and their dependents with respect to offenses, including offenses relating to the security of that State, punishable by its law but not by the law of the sending State.[²]

Moreover, both the United States and the United Kingdom must “assist each other in the arrest of members of a force or civilian component or their dependents in the territory of the receiving State and in handing them over to the authority which is to exercise jurisdiction____” Article VII. 5.-(a)-^{2 3}

Here, the investigation was unquestionably a British investigation and not a “joint operation.” Detective Scotney testified that Air Force personnel were there to “assist” and that this was not their investigation but “was a British investigation.” The arrest of appellant was also not the result of a “joint operation.” In fact, the investigation had centered on foreign nationals and dependents over whom the United States had no jurisdiction whatsoever.

B. Standard of Review

Based on the deference for factual findings made by the trial judge and the appellate court below, we have applied a clearly erroneous test to these findings. This Court previously indicated in United States v. Penn, 18 USCMA 194, 199, 39 CMR 194, 199 (1969):

Where the evidence presents a question of fact as to the continued independence of the civilian and military investigations that question is determinable by the court members, under appropriate instructions as to the effect of a failure to comply with Article 31.

This standard was enunciated prior to issuance of paragraph 140a (2), Manual for Courts-Martial, United States, 1969 (Revised edition), when issues on admissibility of confessions were presented to the court members and there was no option for trial before a military judge alone.

At least one court has defined the clearly-erroneous standard by stating that it must be “more than just maybe or probably wrong; it must ... strike us as wrong with the force of a five-week-old, unrefrigerated dead fish.” Parts and Electric Motors Inc. v. Sterling Electric, Inc., 866 F.2d 228, 233 (7th Cir.1988). See also United States v. Rice, 995 F.2d 719, 722 (7th Cir.1993). While there are numerous definitions of clearly erroneous, Professors Childress and Davis indicate, “Appellate courts must think long and hard before reversing a district court____” S. Childress & M. Davis, Federal Standards of Review § 2.04 at 2-32 to 2-33 (2d ed.1992). Under the facts presented in this case, the findings by the judge and Court of Military Review are not clearly erroneous.

C. Presence at or Participation in Foreign Police Investigations and Interrogations

The question of whether presence at and participation in foreign police investigations and interrogations of military personnel require satisfaction of Article 31(b) or the Fourth Amendment has had a checkered history before this Court. In United States v. DeLeo, 5 USCMA 148, 156, 17 CMR 148, 156 (1954), this Court indicated “that the mere presence of a military investigator during a search by foreign police [does not] necessarily render[ ] the proceeding an activity of the United States.” This Court in United States v. Penn, 18 USC-MA at 199, 39 CMR at 199, stated:

Article 31 extends to the civilian investigator ____(1) [w]hen the scope and character of the cooperative efforts demonstrate “that the two investigations merged into an indivisible entity”; and (2) when the civilian investigator acts “in furtherance of any military investigation, or in any sense as an instrument of the military.”

(Citations omitted.)

In United States v. Jordan, 1 MJ 334, 337-38 (CMA 1976), this Court “conclude[d] that the DeLeo standard no longer is satisfactory to safeguard the constitutional rights of servicemen stationed in a foreign country.” Thus it held

that, for trials by court-martial commencing after the date of this opinion, whenever American officials are present at the scene of a foreign search or, even though not present, provide any information or assistance, directive or request, which sets in motion, aids, or otherwise furthers the objectives of a foreign search, the search must satisfy the Fourth Amendment as applied in the military community before fruits of the search may be admitted into evidence in a trial by court-martial____

Id. at 338.

In United States v. Jones, 6 MJ 226, 230 (CMA 1979), the Court tempered the dictum in Jordan by indicating that ‘‘Jordan refers to American ‘assistance,’ [but] the operative language is ‘sets in motion, aids, or otherwise furthers the objectives of a foreign search.’ ” It went on to indicate the key is “an element of causation between the American activity and the production of the incriminating evidence____” It concluded the real question was not the presence of American authorities but whether the American authorities had used the foreign police as an instrumentality of the American authorities in an effort to avoid the requirements of Article 31(b).

In 1980 the President adopted Mil. R.Evid. 305(h)(2), 1969 Manual, supra (Change 3), which provided:

An interrogation is not “participated in” by military personnel or their agents or by the officials or agents [of a state or the federal government] merely because they were present at an interrogation conducted in a foreign nation by officials of a foreign government____

45 Fed.Reg. 16947 (1980). The Drafters’ Analysis to this rule citing Jones provides: “The Rule makes it clear that United States personnel do not participate in an interrogation merely by being present at the scene of the interrogation.” 1969 Manual, supra at A18-29 (Change 3); see Mil. R.Evid. 305(h)(2) and its Analysis in Manual for Courts-Martial, United States, 1984, at A22-15 (Change 2). It references the analysis to Mil.R.Evid. 311(c) which deals with whether foreign searches should be considered to be American searches and arrests. 1969 Manual, supra at A18-33 (Change 3); 1984 Manual, supra at A22-17 (Change 2).

In United States v. Morrison, 12 MJ 272, 279 (CMA 1982), the Court asserted “that the rule of Jordan should no longer be applied.” Chief Judge Everett then stated:

Accordingly, in conformity with Mil. R.Evid. 311(c)(3), we shall no longer hold that in itself presence at a foreign search constitutes participation therein. Instead, in each case the presence of American officials must be examined to determine whether it had the benign purposes hypothesized by DeLeo or instead was part of a scheme to evade the Fourth Amendment, as feared by the majority in Jordan.

More recently the Court has solidified Penn and its progeny in United States v. Moreno, 36 MJ 107, 113 (CMA 1992); United States v. Lonetree, 35 MJ 396, 403 (CMA 1992), cert. denied, — U.S. —, 113 S.Ct. 1813, 123 L.Ed.2d 444 (1993).

The analysis under Penn begins with examining the case from the time of the investigation through interrogation rather than from where it was eventually tried. The fact that the individual is eventually tried by the military does not indicate that the foreign officials are agents of the military or that the investigations are so intertwined that rights’ warnings would be required. As amplified by Mil.R.Evid. 305(b)(1), civilian investigators are required to give warnings when the two investigations are merged into one or the civilian becomes an agent or instrument of the military. Drafter’s Analysis, Mil.R.Evid. 305(b)(1), 1984 Manual, supra at A22-13 (Change 3). Otherwise, Article 31 warnings are not required from FBI agents, CIA agents, or state law enforcement officials.

Based upon our case law, treaty obligations, and the factual findings of the judge and appellate court below, we conclude that the minimal involvement of Air Force personnel in the British investigative effort did not trigger a rights’ warning requirement under Article 31(b) or application of the Fourth Amendment. Here, the British had sole jurisdiction over British nationals and American dependents who were the principal targets of the drug investigation. American personnel were required under treaty obligations to assist the British in arresting appellant. Additionally, British nationals were not permitted access to the classified area where appellant worked without being escorted by someone from appellant’s unit. Finally, there is no evidence of a subterfuge by Air Force personnel to evade the requirements of Article 31(b). Cf. United States v. Moreno, 36 MJ at 114 (mental health worker’s inquiry was not so “merged” with a military law enforcement or unit investigation as to require Article 31(b) warnings).

Having concluded that this was a British investigation, we must now examine the interrogation in light of Penn, Jones, and Mil.R.Evid. 305(h)(2). While the mere presence alone of the American officials does not require rights’ warnings, the question is whether there was participation in the interrogation by the first sergeant and the OSI agent.

There are two inquiries that must be made. First, was the first sergeant acting as an agent of the police because of his superior rank and official position? See United States v. Pittman, 36 MJ 404, 407 (CMA 1993). If so, did the Americans interrogate appellant? See Rhode Island v. Innis, 446 U.S. 291, 301 n.7, 100 S.Ct. 1682, 1690 n.7, 64 L.Ed.2d 297 (1980). As appellant himself testified, the first sergeant was acting as a support person, a trusted individual whose presence he valued as security, not someone present because of his official position. Hence, the first sergeant was not acting as an agent of the police.

Additionally, the first sergeant did not “interrogate” appellant by nodding his head. An interrogation “refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” 446 U.S at 301, 100 at S.Ct. 1689-90 (footnote omitted). The single statement by the OSI agent to tell the truth or be silent did not constitute an interrogation. The statement was not followed by a statement that this would be brought to the attention of the appropriate officials for leniency. Cf. United States v. Dell’Aria, 811 F.Supp. 837, 844-45 (E.D.N.Y.1993), and cases cited therein. The British police already had arrested appellant’s supplier and were searching appellant’s home. Appellant’s assertion that he did not know what they were talking about was obviously a lie. At this point the British police knew of appellant’s involvement, and a search of his quarters was initiated. Thus a comment, not a question, to tell the truth or be quiet under the known facts at this time was good advice.

The actions by the American representatives who were present at the interrogation were not attempts to persuade appellant to waive his rights or incriminate himself. Appellant had already waived his rights and was talking freely, albeit untruthfully. The OSI agent merely exhorted appellant to speak truthfully, if he chose to speak at all. Cf. United States v. Oakley, 33 MJ 27, 32 (CMA 1991). The agent’s comment was not intended to elicit a response, and it was not interpreted by appellant as such.

D. Conclusion

It is important that American representatives be present to protect the rights of servicemembers being investigated by foreign officials. In DeLeo the Court asserted that

the serviceman, who is under investigation by the police of a foreign nation, is present in that country by reason of military orders. Having sent him there, the United States labors under a duty to protect him—so far as properly can be— with respect to the criminal procedures of that foreign government. As a part of such protection, it has been thought desirable to arrange for the presence of an American representative at the foreign trial of any military person. Since pretrial investigation may be as important as that of the trial in the fixing of guilt or innocence, it is also desirable that American agents be present during an investigation by the police of another nation into an offense of which a member of an American military service is suspected.

5 USCMA at 155, 17 CMR at 155 (citations omitted).

Although we do not conclude here that the presence and cooperation of American military officials was a subterfuge to avoid Article 31(b) or Fourth Amendment requirements, we caution all American military personnel involved in foreign investigations to be mindful of Article 31(b) and the Fourth Amendment. See United States v. Moreno, 36 MJ at 114.

The decision of the United States Air Force Court of Military Review is affirmed.

Judges COX and GIERKE concur.

1 . Agreement Between the Parties to the North Atlantic Treaty Regarding the Status of Their Forces, 4 U.S.T. 1792, 1798, T.I.A.S. No. 2846 (effective date August 23, 1953) (NATO SOFA).

2 . Judicial notice may be taken at any stage of the proceeding. United States v. Bliss, 642 F.2d 390 (10th Cir.1981); United States v. Jones, 580 F.2d 219 (6th Cir.1978). The military courts have taken judicial notice of treaties. See, e.g., United States v. Stokes, 12 MJ 229 (CMA 1982). See generally United States v. Brown, 18 MJ 360, 361 (CMA 1984).

3 . NATO SOFA, 4 U.S.T. at 1800.