United States v. Rios

48 M.J. 261, 1998 CAAF LEXIS 59, 1998 WL 537590
CourtCourt of Appeals for the Armed Forces
DecidedAugust 13, 1998
DocketNo. 97-0543; Crim.App. No. 31877
StatusPublished
Cited by19 cases

This text of 48 M.J. 261 (United States v. Rios) is published on Counsel Stack Legal Research, covering Court of Appeals for the Armed Forces primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Rios, 48 M.J. 261, 1998 CAAF LEXIS 59, 1998 WL 537590 (Ark. 1998).

Opinions

Opinion of the Court

GIERKE, Judge:

A military judge sitting as a general court-martial convicted appellant, contrary to his pleas, of rape, forcible sodomy, assault and battery, and committing indecent acts and liberties with a child, in violation of Articles 120, 125, 128, and 134, Uniform Code of Military Justice, 10 USC §§ 920, 925, 928, and 934, respectively. The victim of all the offenses was appellant’s 14-year-old stepdaughter, MR. The adjudged and approved sentence provides for a dishonorable discharge, confinement for 18 years, and reduction to the lowest enlisted grade. The Court of Criminal Appeals slightly modified the conviction of assault and battery but otherwise affirmed the findings and the sentence. 45 MJ 558 (1997). Appellant also filed a petition for new trial, which was referred to the Court of Criminal Appeals in accordance with Article 73, UCMJ, 10 USC § 873, and RCM 1210(e), Manual for Courts-Martial, United States (1995 ed.). In a separate, unpublished opinion, that court denied the petition for new trial.

Our Court granted review of the following issues:

I
WHETHER THE MILITARY JUDGE ERRED IN DENYING APPELLANT’S MOTION TO SUPPRESS THE TAPE-RECORDING OF THE “PRETEXT” TELEPHONE CONVERSATION WHERE AIR FORCE INVESTIGATORS ADMITTED THAT THE CALL WAS PLACED TO ELICIT INCRIMINATING STATEMENTS FROM APPELLANT WITHOUT HAVING TO FIRST INFORM HIM OF HIS ARTICLE 31 RIGHTS, WHERE AGENTS SUPPLIED APPELLANT’S DAUGHTER WITH QUESTIONS TO ASK AND DIRECTED THAT SHE CONTINUE TO ASK THOSE QUESTIONS UNTIL RECEIVING A RESPONSE, AND WHERE APPELLANT’S MINOR DAUGHTER DID NOT UNDERSTAND THE TERMS OF THE CONSENT FORM SHE SIGNED.
[263]*263II
WHETHER THE AIR FORCE COURT ERRED IN DENYING APPELLANT’S MOTION FOR A NEW TRIAL WHERE NEWLY DISCOVERED EVIDENCE DEMONSTRATED THAT THE OFFENSES DID NOT OCCUR AND THAT APPELLANT’S DAUGHTER HAD PERPETRATED A FRAUD ON THE COURT-MARTIAL.

We resolve both issues against appellant.

I. Pretext Telephone Call

Appellant attacks the admissibility of the pretext telephone call on three grounds: (1) violation of Article 31, UCMJ, 10 USC § 831; (2) lack of valid consent by MR to the monitoring and recording of the conversation; and (3) lack of proper authorization for monitoring the telephone call.

A. Facts

On January 11, 1995, MR told one of her school teachers that she “want[ed] to file a report” against appellant for physically abusing her. MR was 14 years old at the time. On January 9 appellant had beaten her with a military web belt and buckle. MR was visibly bruised when she returned to school on January 11. MR then reported the beating incident to a school counselor and a school nurse and was taken to David Grant Medical Center at Travis Air Force Base, California. While at the medical center, she was interviewed by Special Agent (SA) Kingi, a member of the Air Force Office of Special Investigations (OSI). SA Kingi was accompanied by other OSI agents and a civilian policeman from Fairfield, California.

MR initially complained only about physical abuse, but after she learned that she might be returned home, she accused appellant of sexual abuse, and she was then placed in foster care.

On January 13, 1995, SA Kingi asked MR if she would be willing to call appellant on the telephone and attempt to elicit a response from appellant about her allegations of sexual abuse. MR agreed and signed a written consent to the monitoring and recording of a telephone conversation with appellant. The consent form includes the following:

With knowledge of the foregoing, and of my right to refuse, I expressly agree to allow the above named investigator, and any designated assistants, to monitor and record the above described conversations as they may occur, including any conversations with others which may incidentally occur during activities directed at the individual(s) named above.
I further expressly agree that the contents of such conversations may be released for use as evidence in any administrative or judicial proceedings.
Before deciding to give my consent, I carefully considered this matter. I am giving my consent voluntarily and of my own free will, without having been subjected to any coercion, unlawful influence or unlawful inducement and without any promise of reward, benefit, or immunity having been made to me.

MR testified that the pretext telephone call was suggested by the Fairfield policeman and agreed to by the OSI. When questioned about her written consent to the pretext call, she testified that she understood she was “agreeing to having that phone call recorded.” She understood that she did not have to make the call and did not have to sign the consent form. She testified that she was not threatened, forced, or tricked. She testified that she thought about it for approximately 10 minutes before signing the consent. Asked whether she had any doubts about making the call, she testified that she did not, because “[she] just thought it was right to— [she] was curious as to what he was going to say anyway, so [she] wanted to call.”

MR admitted that she did not understand the terms “coercion,” “unlawful influence,” “unlawful inducement,” and “immunity.” She did not contact her mother, her aunt (appellant’s sister, who lived with them), or anyone else for advice. Asked if she felt that she had a choice to consent or withhold consent, she answered, “Yes.” Asked what she thought would have happened if she had refused to consent, she answered, “I don’t know.”

[264]*264Appellant’s home had been searched and several items of physical evidence removed on January 12. Appellant’s sister had been present during the search. The OSI agents knew that appellant was due to return from a period of temporary duty on January 13, and they thought it important to make the telephone call before appellant was made aware of the ongoing investigation. Because time was of the essence, the OSI commander gave oral approval of an emergency request for consensual telephonic interceptions under paragraph 4.3.3.1 of Air Force Instruction 71-101 (22 July 1994). SA Kingi then followed up with a written record and justification to the Air Force General Counsel.

The OSI contacted Lieutenant Colonel (LtCol) Stearns, appellant’s commander, and secured his agreement to tell appellant to go home and call MR as soon as appellant returned to Travis Air Force Base. Appellant returned in the late afternoon or early evening. Appellant’s sister met him when he returned, hugged him, and whispered in his ear that MR was making allegations of sexual abuse against him. Then an officer approached appellant and told him to leave his bags and report immediately to LtCol Stearns’ office. Appellant reported to LtCol Stearns, who immediately told him, ‘You need to call [MR].” LtCol Stearns gave him a piece of paper with the words “Call [MR]” and a telephone number and told him to go home and call her.

Appellant testified that he believed LtCol Stearns had ordered him to call MR. However, when trial counsel asked appellant whether he believed that LtCol Stearns would discipline him if he did not call MR, appellant responded, “Colonel Stearns was not on my mind when I was speaking with [MR].”

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Cite This Page — Counsel Stack

Bluebook (online)
48 M.J. 261, 1998 CAAF LEXIS 59, 1998 WL 537590, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-rios-armfor-1998.