United States v. Ramos

75 M.J. 936, 2016 CCA LEXIS 631, 2016 WL 6407249
U S Coast Guard Court of Criminal Appeals·Decided October 28, 2016·No. CGCMSP 24924; Docket No. 1418·Published

Opinion

MCCLELLAND, Chief Judge:

Appellant was tried by special court-martial composed of officer members. Contrary to his pleas,. Appellant was convicted of one specification of conspiracy to manufacture and distribute marijuana, in violation of Article 81, Uniform Code of Military Justice (UCMJ); three specifications of making false official statements, in violation of Article 107, UCMJ; and one specification of wrongful possession of marijuana with intent to distribute, in violation of Article 112a, UCMJ. The members sentenced Appellant to confinement for ninety days, reduction to E-3, and a bad-conduct discharge. The Convening Authority approved the sentence.

Before this Court, Appellant has assigned the following errors:

I. Coast Guard officers and CGIS agents questioned Appellant about his involvement in a marijuana-growing business without informing him of his Article 31(b), UCMJ, rights.
II. Appellant was convicted of two specifications of making a false official statement to two officers to the effect that he “wasn’t involved” in his wife’s business, when he only told them he was “not on the paperwork.”
III. The Government's sentencing argument tied the recommended sentence to the way that Appellant’s convictions “specifically contradict core values of the U.S. Coast Guard,” violating Coast Guard Court Rule of Practice and Procedure 25.6.
IV. Appellant’s convictions are all factually insufficient.
V. The military judge plainly erred when he instructed members they must find Appellant guilty.1

We overturn the convictions of Specifications 2 and 3 of Charge II, under Article 107, UCMJ, and otherwise affirm.

Facts

On the morning of 8 April 2014, Appellant, stationed in Seattle, Washington, reported to his division officer that a civilian with whom his wife had a business had made threats against Appellant and his wife and had said he knew where Appellant worked. Appellant mentioned that the business involved recreational marijuana, but that his name was not on the paperwork of the business.2 Appellant’s division officer called upon his superi- or, the operations officer, to whom Appellant repeated his story. The operations officer called upon his superior, the executive officer, to whom Appellant repeated his story in the presence of the operations officer.

The executive officer took steps to notify security officials of the threat, including calling Coast Guard Investigative Service (CGIS). CGIS requested to talk with Appellant. Thereafter, Appellant was interviewed by CGIS agents, to whom- he repeated his story with further details.

Appellant and his wife learned of the business opportunity in January 2014, and both attended a meeting in January with the business partner and his wife at a lawyer’s office, to develop an LLC agreement between Appellant’s wife and the business partner for the purpose of producing marijuana. (R. at lines 6967-90.)3 The business partner had already applied for a license and was seeking financing, which he mentioned while socializing with Appellant and Appellant’s wife. (R. at lines 7582-7662.) The business partner al[939]*939ready had some marijuana plants for use as medicinal marijuana. (R. at lines 8676-90.) He kept the plants for a time in Appellant’s garage. (R. at 8691-8712.) Between January and April, the two couples engaged in activities in varying degrees toward establishing the business. In April, Appellant and his wife met with the business partner and his wife and told them that they (Appellant and his wife) were withdrawing from the business. (R. at lines 9043-46.) The next day, Appellant’s wife informed the business partner’s wife that the plants in the garage had been removed (“chopped down”). (R. at 9088-90, 9122-24, 9138-44.) At that point, the business partner called CGIS, who, coincidentally, had just finished interviewing Appellant.

Appellant was charged with and found guilty of conspiring with his wife to manufacture and distribute marijuana; false official statements to a CGIS special agent, to the division officer and to the executive officer; and possession of marijuana with intent to distribute.

Article 31(b) rights

Appellant complains that the operations officer, the executive officer, and the CGIS agent suspected him of an offense at the time he made statements to them without Article 31(b) rights having been given— statements about which they later testified.

A military judge’s ruling on a motion to suppress is reviewed for abuse of discretion. United States v. Jones, 73 M.J. 357, 360 (C.A.A.F. 2014) (citing United States v. Ayala, 43 M.J. 296, 298 (C.A.A.F. 1996)). When reviewing a ruling on a motion to suppress for failure to give a rights warning, the military judge’s findings of fact are reviewed on a clearly-erroneous standard, and conclusions of law are reviewed de novo. Id. (citing United States v. Swift, 53 M.J. 439, 446 (C.A.A.F. 2000)). Article 31(b) requires rights warnings if the person being interrogated is a suspect at the time, and the person interrogating is acting in an official law enforcement or disciplinary inquiry. Swift, 53 M.J. at 446 (citing United States v. Moses, 45 M.J. 132, 134 (C.A.A.F. 1996)). Whether a person is a suspect is an objective question. Id. (citing United States v. Good, 32 M.J. 105, 108 (C.M.A. 1991)).

The military judge found that Appellant’s meetings with the operations officer and the executive officer were not for a law enforcement or disciplinary purpose, inasmuch as they were focused on identifying and mitigating a threat.4 (Appellate Ex. 29 at 8.) Accordingly, he held their testimony concerning Appellant’s statements would be admissible. We find no error and no abuse of discretion in the military judge’s actions as to statements to the two officers. They eventually testified. (R. at lines 5990-6458, 6515-6842.) We note that there is little or nothing in their testimony that contributed to Appellant’s convictions, aside from Appellant’s statement that is the subject of Charge II Specification 3, so that any error would not be prejudicial as to all other specifications. For reasons discussed below, we disapprove the finding of guilty as to Charge II Specification 3. Accordingly, any error is harmless.

The military judge also found that Appellant’s interview by CGIS agents was not for a law enforcement or disciplinary purpose, again because they were focused on identifying and mitigating a threat. (Appellate Ex. 28 at 8.) Accordingly, he held the CGIS agent’s testimony concerning his statements would be admissible. Again, we find no error and no abuse of discretion in the military judge’s actions as to statements to CGIS.

False official statements to two officers

Appellant was found guilty of false official statements to his division officer and to the executive officer. The two specifications 5 allege that he stated that he “was not involved in his wife’s business venture related to the production of marijuana, or words to that effect.” He objects, asserting that he only told them that he was not on the paper[940]*940work.

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United States v. Ramos, 75 M.J. 936, 2016 CCA LEXIS 631, 2016 WL 6407249 (uscgcoca 2016).

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