Court of Appeals for the Armed Forces

There is a lot to unpack in Nelson.

The decision of the United States Navy-Marine Corps Court of Criminal Appeals (NMCCA) is hereby affirmed.

​Chief Judge OHLSON filed a separate opinion, concurring in the judgment, in which Judge SPARKS and Judge HARDY joined as to Part II. Judge MAGGS filed a separate opinion concurring in the judgment, in which Senior Judge CRAWFORD joined. Judge SPARKS filed a separate opinion dissenting from the judgment. Judge HARDY filed a separate opinion dissenting from the judgment, in which Judge SPARKS joined.
. . . 
As reflected in their respective separate opinions, three judges conclude that Appellant did not waive the assigned issue before this Court.

​As also reflected in their respective separate opinions, three judges conclude that the decision of the United States Navy-Marine Corps Court of Criminal Appeals should be affirmed. Therefore, this is the holding of the Court in this case. 

This is one of the several "Bahrain Cases" where the Appellant was accused of soliciting prostitutes, "sex trafficking," and 133 (for failing to report others and a false official). Should his statements to NCIS have been suppressed?

At trial, the MJ denied a suppression motion except for statements made about the UCMJ art. 133 allegation. With that, there being no other evidence, that charge was dismissed. The Appellant had agreed he was properly notified by NCIS of their suspicions he engaged with prostitutes, but he argued he was not properly put on notice that they suspected him of sex trafficking. The NMCCA set aside the 133 false official and affirmed.

Any volunteers to write on this case? I didn't represent Nelson but I'm going to recuse myself for other reasons. Send a draft to [email protected], please.

Cheers.

Updated with some comments from anonymous but known to us writers.

In Nelson, the CAAF addresses the proper remedy when military investigators advise a subject of some, but not all, suspected offenses.

NCIS agents advised LCDR Nelson that he was suspected of prostitution related misconduct but did not advise him that he was also suspected of failing to report similar misconduct by others.  Nonetheless, he was charged with failing to report the misconduct of others in violation of Article 133, UCMJ (conduct unbecoming an officer).
At trial, the military judge dismissed the unwarned specification, but allowed the statement to be used as evidence of the warned offenses.  Trial defense counsel appears to have acquiesced to this remedy.  On appeal, however, LCDR Nelson argued that the statement should have been suppressed in its entirety.  The NMCCA disagreed, holding that: “[i]f the suspect . . . makes an otherwise voluntary statement, . . . although such a statement is inadmissible as to unwarned offenses, it is admissible vis-à-vis the warned offenses.”  United States v. Nelson, 80 M.J. 748, 753 (N-M. Ct. Crim. App. 2021); See also CAAFLOG Post on NMCCA Opinion (2 Feb. 2021).  The CCA reasoned that “to hold that Appellant’s statement must be suppressed as to these warned offenses would be to confer upon him an unwarranted windfall inconsistent with public policy.”  Id. at 754.

Via a complex web of concurring and dissenting opinions, addressing both waiver and the merits, the CAAF ultimately affirms the NMCCA’s decision and grants no relief.  However, because no set of three or more judges would decide the case on the same rationale, we do not get precedent on the substantive issue.  Nevertheless, the various opinions offer a wealth of thoughtful discussion and are well worth the read.

Ultimately, Chief Judge Ohlson, Judge Maggs, and Senior Judge Crawford all reach the same result, albeit via different routes.  Here's how the result was reached:
 
The waiver discussion focuses on whether the defense raised the issue with sufficient specificity at trial.  Although trial defense counsel filed three separate motions to suppress LCDR Nelson’s statement to NCIS, it appears that none of them focused on the lack of warning about the Article 133 offense.  Nonetheless, as Chief Judge Ohlson meticulously documents, the litigation touched on this issue at multiple points.  He concludes, and Judges Hardy and Sparks concur, that the issue was sufficiently raised to avoid waiver.  Judge Maggs, joined by Senior Judge Crawford, reaches the opposite conclusion.  Descending even deeper down the waiver rabbit hole, Judge Maggs also addresses, and rejects, Appellant’s argument that the government “waived the waiver argument” by not raising it before the lower court.  While the discussion of waiver is interesting, and ultimately contributes heavily to the result, the main event awaits.

On the merits of the substantive issue, Chief Judge Ohlson concludes that dismissal of the unwarned specification was a proper remedy.  He cites two CMA cases where investigators suspected individuals had committed two offenses, but, in each case, warned only of one offense.  United States v. Reynolds, 16 C.M.A. 403, 37 C.M.R. 23 (1966); United States v. Johnson, 20 C.M.A. 320, 43 C.M.R. 160 (1971).  In both cases, the CMA dismissed the convictions for the unwarned offenses, but affirmed the convictions for the warned offenses.  Chief Judge Ohlson interprets this precedent as an endorsement of the remedy granted by the military judge, and concludes:

Consistent with the approach taken by this Court in Reynolds and Johnson, and consistent with the position taken by the military judge and the NMCCA in the instant case, I conclude that when law enforcement officers suspect an accused of more than one offense but fail to adequately warn the accused under Article 31(b) of all of those offenses, it does not constitute an abuse of discretion for the military judge to dismiss only those offenses which were insufficiently warned or to suppress only those portions of the statement pertaining to the insufficiently warned offenses. In other words, I conclude that a military judge is not compelled to suppress the entire statement given by an accused merely because agents failed to sufficiently warn the accused under Article 31(b) of some of the offenses of which he was suspected.

Judge Sparks dissents, focusing largely on M.R.E. 404(b).  Judge Sparks points out that, after the unwarned offense had been dismissed, the statements about that conduct now related to uncharged misconduct.  As such, an M.R.E. 404(b) analysis should have been conducted prior to the admission of these statements.  While Judge Sparks notes that this issue was not raised at trial, he would find plain error.

Judge Hardy, joined by Judge Sparks, writes a separate and more lengthy dissenting opinion.  He finds the reliance on Reynolds and Johnson misplaced, pointing out that neither opinion indicates that the unwarned statements had any relevance to the warned misconduct.  He further points out that the warned misconduct (AWOL in both cases) seemed to have been supported by overwhelming evidence.  While he does not join in Judge Spark’s dissent, he agrees that, after dismissal of the unwarned offense, admissions about that conduct “would have become evidence of uncharged acts or misconduct that could only be admitted if the requirements of M.R.E. 404(b) were satisfied.” 

Most significantly, Judge Hardy focuses on the text of the underlying authorities, particularly M.R.E. 304(a) and M.R.E. 305(c)(1):

M.R.E. 305(c)(1) and M.R.E. 304(a) both expressly rendered Appellant’s admissions about the unwarned offenses inadmissible. The first provision states: “A statement obtained from the accused in violation of the accused’s rights under Article 31 is involuntary and therefore inadmissible against the accused,” with limited exceptions that do not apply in this case. M.R.E. 305(c)(1) (emphasis added). Similarly, the second provision states that when an accused makes a timely motion or objection under this rule (as Appellant did in this case), “an involuntary statement from the accused, or any evidence derived therefrom, is inadmissible at trial,” again with limited exceptions that do not apply here. M.R.E. 304(a) (emphasis added). The Government ignores these provisions, offering no explanation why they did not—on their face—render Appellant’s admissions about the unwarned offense inadmissible.

As such, he concludes “[i]t was clear error for the military judge to admit Appellant’s admissions about the insufficiently warned charges into evidence, regardless of the military judge’s dismissal of those charges.” 
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Ultimately, we are left without a definitive answer.  The issue is certainly ripe for appeal in a case with a better-preserved record.  At least two judges favor a stronger remedy.  A future appellant would have to convince one more.  Absent a change of view, Chief Judge Ohlson cuts the other way, leaving either Judge Maggs (who does not opine on the merits of the issue) or the fifth judge (presumably Professor/Nominee Johnson by the time any such future case would reach the Court).