United States v. French

36 M.J. 589, 1992 CMR LEXIS 824, 1992 WL 367516
CourtU S Air Force Court of Military Review
DecidedNovember 24, 1992
DocketACM 29123
StatusPublished
Cited by2 cases

This text of 36 M.J. 589 (United States v. French) 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. French, 36 M.J. 589, 1992 CMR LEXIS 824, 1992 WL 367516 (usafctmilrev 1992).

Opinion

OPINION OF THE COURT

McLAUTHLIN, Senior Judge:

Did “participation” by U.S. officials invalidate the foreign interrogation and search in this case? See Mil.R.Evid. 305(h)(2) and 311(c)(3). The military judge concluded it did not, and we agree. Finding no merit in this or in appellant’s other asserted errors, we affirm.

After denial of motions to suppress his confessions, the evidence derived from those confessions, and the evidence obtained in a search of his house, Airman First Class Kevin A. French entered conditional guilty pleas to possessing lysergic acid diethylamide (LSD), possessing marijuana, and using marijuana. See R.C.M. 910(a)(2); United States v. Forbes, 19 M.J. 953 (A.F.C.M.R.1985). He pleaded not guilty to using methamphetamine, but the military judge, sitting alone, found him guilty of an attempted use. Appellant’s approved sentence includes a bad-conduct discharge, confinement for 8 months, forfeiture of $250 pay per month for 8 months, and reduction to E-l.

[591]*591I. FACTS

British police authorities, acting on information obtained from one of the appellant’s civilian neighbors, decided to arrest the appellant and his wife on the Royal Air Force (RAF) installations where each worked. A British detective, accompanied by an agent from the Air Force Office of Special Investigations (OSI) and an Air Force security policeman, found the appellant’s wife at her place of employment in the Shoppette on RAF Upwood. Appellant’s wife freely admitted that drugs were in her house, and agreed to take the detective there.

At the same time, two other British detectives, escorted into the work area by the appellant’s first sergeant and another OSI agent, approached the appellant at his duty station on RAF Alconbury. One of the detectives showed his identification to the appellant and cautioned the appellant 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. The detectives then asked the appellant about the location of drugs in his house.

For the first several minutes, appellant denied any drug involvement. The OSI agent then said something to the effect that, “It would be better to remain quiet than to continue lying.” One of the British detectives added, “It would be easier.” The appellant then disclosed the location of some LSD and marijuana in the hashish form within the house.

By this time, the British detective and the Air Force personnel with appellant’s wife were inside the appellant’s home. Because a search warrant issued earlier by a magistrate had an incorrect address on it, the detective initiated a search of the house under the authority of a British statute allowing the search of a home of an arrested subject if a constable believes there are “reasonable grounds” to conclude evidence may be found there. Appellant’s wife was cooperating in the search, and had already shown the detective the location of the hashish. When appellant told his questioners where to find the LSD, the OSI agent with the appellant radioed the description to OSI’s main office. The OSI agent in the appellant’s home eventually received this information on his radio and relayed it to the British detective. With appellant’s description and the assistance of appellant's wife, the LSD was located. After seizing the LSD and marijuana, the British police asked an Air Force drug dog handler to walk a drug dog through the house, but nothing else was discovered.

The British officers handcuffed the appellant for the trip to the British police station using the OSI agent’s handcuffs. They quickly removed the cuffs, however, when they found the appellant could not be safely transported while wearing them. At the police station, after specifically declining to make a phone call or contact a solicitor, the appellant again answered the British detectives’ questions about his possession and use of drugs.

When the appellant and his wife were released, the appellant’s first sergeant picked them up and drove them to the appellant’s house. The appellant asked the first sergeant to come in and talk. The first sergeant advised the appellant he would have to read him his rights first, and did so using an “Advisement of Rights” card he carried. After stating that he understood his rights, did not want a lawyer, and was willing to answer questions, the appellant admitted possessing the LSD and “hardly touching” the hashish, which he said was his wife’s.

At work the next morning, the appellant asked his immediate supervisor if he had heard what occurred. The supervisor said, “I heard you were arrested. What happened?” The appellant described the circumstances leading to his possession of the LSD. He also said the hashish found in his residence was his wife's, but admitted trying it. The supervisor never advised the appellant of his rights. He testified that he let the appellant continue because it seemed to be “a relief” for the appellant to talk. The supervisor eventually ended the conversation by telling the appellant to seek legal counsel.

II. APPELLANT’S ADMISSIONS

Appellant contends that OSI’s participation in his case mandated Article 31(b), [592]*592UCMJ, and Miranda1 advice before his first interrogation. He maintains the trial judge erred in admitting the statements he subsequently made to British investigators and the evidence seized as a result of those statements. We disagree.

No Article 31 or Miranda advice is required in an interrogation conducted abroad by foreign officials “unless such interrogation is conducted, instigated, or participated in by military personnel or their agents____” Mil.R.Evid. 305(h)(2). However:

An interrogation is not “participated in” by military personnel ... merely because such a person was present at an interrogation conducted in a foreign nation by officials of a foreign government or their agents, or because such a person acted as an interpreter or took steps to mitigate damage to property or physical harm during the foreign interrogation.

Id.

Our review of the record convinces us that any Air Force involvement in appellant’s initial interrogation never exceeded a “mere presence.” See United States v. Jones, 6 M.J. 226 (C.M.A.1979). 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.2 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. See Jones, supra; United States v. Coleman, 25 M.J. 679 (A.C.M.R.1987), aff'd, 26 M.J. 451 (C.M.A.1988), cert. denied, 488 U.S. 1035, 109 S.Ct. 850, 102 L.Ed.2d 982 (1989). Therefore, no Article 31 or Miranda requirements were invoked when British officials interviewed the appellant. Finding no coercion, unlawful influence, or unlawful inducement in the production of any of the statements appellant provided to British authorities, we agree with the military judge’s decision to admit them. Mil.R.Evid. 305(h)(2).

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Related

United States v. French
38 M.J. 420 (United States Court of Military Appeals, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
36 M.J. 589, 1992 CMR LEXIS 824, 1992 WL 367516, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-french-usafctmilrev-1992.