United States v. Steward

29 M.J. 724, 1989 WL 130942

• Court: U S Air Force Court of Military Review
• Decided: October 3, 1989
• Docket: ACM 27628
• Status: Published

Opinions

DECISION

LEWIS, Senior Judge:

The appellant pleaded not guilty but was found guilty of three drug-related offenses: wrongful possession of marijuana, wrongful use of marijuana on divers occasions and wrongful possession of various items of drug abuse paraphernalia in violation of a lawful general regulation. He was found not guilty of wrongful possession of cocaine. A charge and specification of homosexual sodomy on divers occasions were withdrawn following a ruling by the military judge that the staff judge advocate’s pretrial advice to the convening authority was defective as to that charge and specification. The military judge, sitting alone, imposed a sentence of dismissal, forfeiture of all pay and allowances, confinement for two months, a fine of $10,000.00 and additional confinement of one year if the fine was not paid. The sentence was approved by the general court-martial convening authority. For reasons set forth herein, we reverse.

The appellant, a KC-135 aircraft commander, was summoned to the Office of Special Investigations (OSI) following the receipt of unspecified information that he had used marijuana. Agent C. conducted the questioning of the appellant. He was assisted by Staff Sergeant (SSgt) J., a security police investigator. Agent C., in his testimony at trial, acknowledged that he conducted what is known as a “wing and a prayer” interview. He explained that this description means that the interrogator has no reliable evidence of an offense at his disposal and must “say a prayer and go in and wing it.”

After the appellant reported to the OSI office and had waited alone for several minutes, he was approached by Agent C. The substance of C.’s initial remark to the appellant was summarized by the military judge, in one of his essential findings of fact, as follows: “ ‘Wayne, from this point on you are grounded. You can either cooperate with us and try to get your wings back or lose your wings forever’, or words to that effect.” The appellant was then advised that he was suspected of using marijuana and was provided a full rights advisement. United States v. Tempia, 16 U.S.C.M.A. 629, 37 C.M.R. 249 (1967). The appellant acknowledged his understanding of the rights. He agreed to submit to an interview and declined the services of counsel.

It was the agent’s remark to the appellant prior to the rights advisement that raises the legal issue in this case. We accept as a given factor that the remark created a presumptive taint with respect to incriminating statements subsequently provided by the appellant. This conclusion is compelled by our understanding of the Court of Military Appeals’ analysis in United States v. Byers, 26 M.J. 132 (C.M.A.1988), and is otherwise implicit in the findings and conclusions of the military judge.

We shall explore certain key aspects of the interview following the rights advisement in our subsequent discussion. For the moment, we shall merely summarize the highlights of what transpired. While the appellant initially denied wrongful involvement with marijuana, he certainly did not alleviate suspicion when he readily acknowledged that his wife used marijuana occasionally. About 20 minutes after the interview commenced, at Agent C.’s suggestion, he consented to a urinalysis and a search of his car, although he declined to consent to a search of his quarters. After signing the requisite consent forms, the appellant remarked to SSgt J. that the urinalysis “should come back clean,” or words to that effect. When SSgt J. queried him closely about his use of the word, “should,” the appellant relented and admitted that he and his wife had used marijuana a few days previously. He signed a written statement admitting a recent use of marijuana with his wife in their home. A warrant to search the appellant’s off base quarters was obtained from a civilian magistrate, with probable cause presumably based on his admission.

The search of the appellant’s vehicle did not disclose any items of evidentiary value. The search of the quarters resulted in the discovery and seizure of various items of marijuana paraphernalia. Later the same day the appellant admitted to more extensive and frequent uses of marijuana and signed a statement to that effect. The result of the urinalysis, received sometime afterwards, reflected the presence of the marijuana metabolite at a positive level.

The defense moved to suppress the appellant’s pretrial admissions because they were obtained in violation of Article 31(b), UCMJ, 10 U.S.C. § 831(b). This provision is basic to our investigative process, but it bears quoting, with appropriate emphasis, at this point:

No person subject to this chapter may interrogate, or request any statement from an accused or a person suspected of an offense without first informing him of the nature of the accusation and advising him that he does not have to make any statement regarding the offense of which he is accused or suspected and that any statement made by him may be used as evidence against him in a trial by court-martial.

(Emphasis added.) The defense contention, with which the military judge agreed, was that Agent C. violated this provision by beginning his interrogation prior to providing a rights advisement.

In his limited testimony in support of the motion to suppress, the appellant claimed that he incriminated himself because “finally he [apparently referring to Agent C.] convinced me that maybe there was a chance I could get my wings back if I was honest and up front with them. And my wings were everything, they’re everything I’ve ever worked for.” The appellant testified that during the course of the interview Agent C., himself a former pilot, had expressed empathy for his situation and the concern that he might lose his wings. According to the appellant, C. explained that when the case was presented to the wing commander it would make a difference whether he was able to report that the appellant had told them everything they wanted to know, “or if I was being an ass and I was trying to lie my way out of it.” Agent C. testified that he could not recall talking about flying status during the interrogation, but he acknowledged that some mention of his own past flying status might have occurred. He also acknowledged that he advised the appellant that his cooperation would be noted and passed on to the wing commander. SSgt J.’s recollection, according to his testimony, was that any reference to flying status, including Agent C.’s former flying status, occurred prior to, but not after, the rights advisement.

The military judge resolved the somewhat contradictory testimony of the principals in his essential findings of fact, which are quoted in pertinent part:

At some time during the remainder of the interview, Special Agent [C.] told Captain Steward that he, Special Agent [C.], knew how important Captain Steward’s wings were to him because he, [C.], had been a pilot and had lost his wings too, or words to that effect.

Special Agent [C.] also repeatedly told Captain Steward words to the effect that the accused’s conduct during the interview would be reported and this report would include a report as to whether or not the accused cooperated and whether or not the accused lied as the case may be. Whatever the conduct was during the interview, it would be reported to [the wing commander] who the accused believed at that time, would be the decision maker as to his flying status.¹

The military judge, as previously noted, concluded that Agent C. had engaged in an interrogation by his comment to the appellant prior to a rights advisement. However, citing the Court of Military Appeals’ opinion in United States v. Byers, he concluded further “that it did not create a presumptive taint so great that it could not be cut off by a rights warning as well as the other facts and circumstances of this case.” See 26 M.J. at 135. Other facts and circumstances relied upon by the military judge in concluding that Agent C.’s pre-advisement inducement had not tainted the appellant’s subsequent admissions were the following: (1) the appellant’s age, intelligence, education, and Air Force experience; (2) the relaxed atmosphere in the interview room; (3) the appellant’s acknowledgement, in response to a leading question by the military judge, that he agreed to the interview following the rights advisement because he believed he could satisfy the agent’s curiosity without incriminating himself, and (4) the appellant’s response to another question of the military judge that he had admitted his involvement with marijuana when he realized that there was no use in lying any longer.

We accept the military judge’s essential findings of fact. We do not accept his conclusion, based on the facts, that the rights advisement was sufficient to erase the taint of Agent C.’s introductory remark: “Wayne, from this point on you are grounded. You can either cooperate with us and try to get your wings back or lose your wings forever,” or words to that effect. We find that the military judge erred in denying the defense motion to suppress the appellant’s incriminatory statements.

In Byers, the investigator spoke to the accused at some length prior to providing a rights advisement. Among other things, the investigator in that case stated to the accused that:

....there was no doubt in my mind that he had used marijuana, but he would have to face the situation by cooperating with the Government in the form of making a full admission and possibly providing a signed, sworn statement or he had the option of leaving the interview room at any time.

26 M.J. at 133-134. The Court, in concluding that this statement constituted interrogation, cited United States v. Borodzik, 21 U.S.C.M.A. 95, 44 C.M.R. 149, 151 (1971): “When conversation is designed to elicit a response from a suspect, it is interrogation, regardless of the subtlety of the approach.” 26 M.J. at 134. The Court concluded, nonetheless, that the investigator’s improper preamble had not created a presumptive taint so great that it could not be cut off by a rights warning. The violation of Article 31(b) was one circumstance to be considered along with all others in determining whether the appellant s resulting post-advisement statements were voluntary. Id. at 135.

In the case at hand we conclude that the taint of Agent C.’s remark was not erased by the rights advisement. Indeed, it was reinforced throughout the course of the interview by C.’s sympathetic reference to his own prior experience as a pilot and, more importantly, references to the report to be made to the wing commander of Captain Steward’s “conduct” during the interview. We cannot avoid facing the reality that a trained interrogator (particularly one engaged in a “wing and a prayer” interview) has to hope above all else that a suspect will talk, only if to deny any wrongdoing. See the discussion of interrogation techniques in United States v. Whitehead, 26 M.J 613, 618-619 (A.C.M.R.1988). An interrogator, however, is not entitled to do so by enticing “cooperation” prior to a rights advisement and, subsequently, reinforcing such improper enticement. This is clearly what occurred in the case at hand.

The military judge in stating his conclusions recognized that the appellant was probably motivated in his unsuccessful attempt to alleviate suspicion of marijuana involvement by an inner compulsion to continue on flying status. He noted that the Court of Military Appeals has held that exploitation of a suspect's inner compulsion known by investigators does not, in and of itself, render the suspect’s admissions involuntary. United States v. Robinson, 26 M.J. 361 (C.M.A.1988) (accused’s pathological need to discuss crimes that had been committed). This principle of law is not dispositive of the issue before us, in our view. The Court, in Robinson, 26 M.J. at 367, cites an earlier opinion which develops this particular issue in further detail and is more instructive in the situation before us. In United States v. Wheeler, 22 M.J. 76 (C.M.A.1986), cert. denied, 479 U.S. 827, 107 S.Ct. 106, 93 L.Ed.2d 55 (1986), the accused argued that his admissions of committing sexual crimes were improperly induced by appeals to his deeply held religious beliefs.

The Wheeler Court rejected the accused’s contention, but, in doing so, distinguished Wheeler’s situation from that of Captain Steward in four separate particulars. 22 M.J. at 78. First, Wheeler had testified at trial that his confession was induced by a promise of psychiatric assistance. His failure to mention an appeal to religious convictions indicated that such appeal had only a minor impact. Captain Steward, on the other hand, has not urged that any other underlying concern prompted him to conduct himself as he did during his interrogation. Secondly, Wheeler voluntarily waived his Article 31 rights and consented to answer questions before the question of religion was mentioned. In view of our prior discussion, this is a compelling distinction by itself. Thirdly, Wheeler himself injected the subject of religion into the interview, not the interrogators. This distinction is also obvious and compelling based on our prior discussion. Fourthly, the appeal to Wheeler’s religious beliefs, when it was made, was general in nature and was in the form of an appeal to his conscience. This is not as clear a distinction from the case at hand. However, we note that while Agent C. spoke of the appellant’s and his own flying status in somewhat general terms, he purported to offer hope of a tangible benefit to the appellant, restoration to flying status. In the ease before us, the pre-advisement appeal to the appellant’s compulsion to continue flying constituted an improper inducement.

In acknowledging that he became convinced that there was no use in continuing to lie to Agent C. and SSgt J., the appellant was doing no more than conceding that his resolve to “stonewall” the situation had been overcome by the talents of trained interrogators. The primary question before us is whether the appellant was encouraged to follow the questionable, and shortlived, strategy of “stonewalling” rather than relying on his right to remain silent or seeking the advice of counsel by the carrot skillfully placed before him before the interview commenced. The key is that Captain Steward elected to talk to the investigators, however untruthfully at first, rather than asserting his Article 31 rights. Nothing in the appellant’s testimony overcomes the premise that, in so doing, he was attempting to preserve his flying status, however irrational that expectation might seem in retrospect.² The fact that the appellant, at a rather early time in the interview process, realized there was no use in continuing to lie does nothing whatsoever to separate him from any other suspect under interrogation who recognizes at some point in an interview that the game is up.

There is one nagging factual issue that we cannot clearly answer from the record before us. Has the appellant cleverly contrived an issue that did not exist in fact at the time of the interrogation? In short, how much credit should we give to the appellant’s assertion that he felt compelled to “cooperate” with Agent C. in the hope that he might either remain on or be restored to flying status? The trial counsel cross-examined the appellant in some detail during the motion to suppress and skillfully suggested that Captain Steward could not have rationally supposed that he had any realistic opportunity of saving his flying career, notwithstanding what Agent C. implied. It is always difficult for appellate reviewers to attempt to view a situation through the eyes of one who suddenly becomes a criminal suspect. We assume that Agent C. is an individual well versed in the psychology of the interrogation room. The fact that he found it worthwhile to display a carrot to the appellant at the outset of the interview indicates a belief on his part that this was a useful step in the interrogation process. It appears somewhat disingenuous for the Government to now claim that it was a meaningless and ineffective enticement. A suspect, even an educated and experienced officer, might well not react in the same manner in the interrogation environment as he would after an opportunity for calm- reflection. We find nothing in the record to discredit the appellant’s account that he was unduly influenced by C.’s inducement.

More importantly, we find no indication that the military judge, who directly observed the appellant’s testimony and demeanor, rejected Captain Steward’s account out of hand. Quite the contrary. In a prelude to his discussion of the Robinson case, he stated, “Now, I recognize that the accused may well have been motivated to make the statements by the desire to save his wings, and that this inner desire on the part of the accused may well have been known to the interrogators.” Thus, it appears that the military judge gave some credence to Captain Steward’s account of his thought process during the interrogation process. Given the record before us, we have no basis for concluding that the appellant’s concern and belief respecting his future flying status was other than genuine.

The military judge properly noted that an interrogator may exploit a suspect’s inner desire or motivation when it becomes apparent. However, as our discussion of Wheeler reveals, this case involves more than an opportune exploitation. The interrogator first planted the motivational seed prior to a rights advisement. As Byers suggests, this form of psychological manipulation is not permitted. We suspect that the appellant would have been motivated to save his flying career in any event. However, we have no basis for concluding that he would have imagined it feasible to do so by “cooperating” with the interrogators in the absence of the pre-advisement inducement, as reinforced following the advisement.

We conclude that the military judge correctly denied a separate motion to suppress the result of the urinalysis. However, we note that this motion was based on a narrower factual issue than we have addressed herein; that is, whether the appellant’s consent to provide urine was prompted by advice that if he did not consent his commander would direct that he do so. See United States v. White, 27 M.J. 264 (C.M.A.1988). While the record is not absolutely clear in this respect, we construe the military judge’s ruling to have been premised on this issue alone. We do not reach the issue of the validity of the probable cause search of the appellant’s premises, as that issue was not specifically addressed at trial in light of the military judge’s ruling denying the suppression of the appellant’s pretrial admissions.

The appellant was found guilty, among other offenses, of wrongful use of marijuana on divers occasions. In addition to evidence of the positive urinalysis the military judge considered the appellant’s pretrial admissions³ and evidence that marijuana paraphernalia was seized from his quarters. We are not persuaded that the appellant would have been found guilty of any portion of this particular specification, e.g., a single wrongful use of marijuana, based on the positive urinalysis standing alone. We conclude that no portion of the findings of guilty may stand.

The findings of guilty and sentence are set aside. A rehearing may be ordered.

Senior Judge KASTL concurs. Senior Judge Lewis authored this opinion before his retirement.

1 . The witnesses, particularly appellant, spoke of wearing wings and serving on flying status as if they were interchangeable concepts. Based on certain questions from the bench, it appears to us that the military judge appreciated the distinction between the two concepts.

2 . The bottom line, as we see it, is that the appellant waived his right to remain silent by opting to manifest “cooperation.”

3 . Our holding today should not be construed as precluding the trial counsel in a rehearing from attempting to establish that the appellant’s second statement is admissible. This matter is open to further litigation based on our opinion.