Court of Appeals for the Armed Forces

​Certificate for Review Filed
 
No. 24-0093/MC. United States, Appellant v. Brandon K. Flanner, Appellee. CCA 202300134. Notice is given that a certificate for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals and supporting brief were filed under Rule 22 on this date on the following issue:
 
DID THE MILITARY JUDGE ABUSE HER DISCRETION WHEN SHE SUPPRESSED APPELLEE'S NON-CUSTODIAL, PRE-PREFERRAL, SELF-SCHEDULED INTERVIEW WITH LAW ENFORCEMENT IN WHICH APPELLEE WAIVED THE RIGHTS TO COUNSEL AND TO REMAIN SILENT?

The NMCCA decision is here.

The facts of what the accused "knew" or understood are not that uncommon.

1. Appellee called in for NCIS interrogation, invokes, interrogation terminated. (The opinion does not say if he was Titled (fingerprints, mug shot, DNA sample), which is a screening question as an indicator of the NCIS belief in the strength of their case and the possibility of preferral.)

2. Appellee goes to base DSO. No indication of what he was told, but likely to keep his mouth shut. A MJ FF "He made two separate attempts to get an attorney by visiting the Defense Services Office, where he was turned away."

3. As usual, the investigation is taking a long time so he considers what next. He does not go back to DSO and he does not call civilian counsel--either of which would likely have changed the trajectory of events.

4. He asks his Master Guns if he would get a lawyer if he went for an interview.

5. Master Guns calls SJA. The SJA does not say that is a question best answered by the SDC DSO but says he "would only receive counsel if charges were preferred." Had the SJA referred the Master Guns to the DSO, that too might have altered the trajectory of the case. Clearly the government agents had a person on deck who needed to talk to a lawyer who could answer the questions better and more effectively. The USMC DSO manual in place at the time potentially covered that situation.  These were serious allegations and the appellee was being held over his enlistment (something some of us have raised as starting the 707/DP clock). The SDC might have decided the situation was among "a wide variety of situations in which defense counsel may be detailed prior to the preferral of charges including, “servicemembers pending investigation….by any law enforcement agency, when the detailing authority reasonably believes that such an investigation may result in court martial, nonjudicial punishment, or adverse administrative action.” For example, the person being Titled.

6. The SJA's "advice" is repeated to Appellee and he goes ahead and schedules an interrogation with NCIS. The appellee could have gone back to the DSO for the third time for clarification or, as quite a few do, call a civilian who would put him straight not just about the right to counsel but the right to silence.

7. NCIS agent "specifically noted that Appellee was given “incorrect info on lawyer by CMD [command]” and “explained preferral of charges=lawyer.”"

8. SA Charlotte started the interview by asking Appellee if he wanted to speak with her, since the last time he came in he had requested the presence of a lawyer. Appellee told SA Charlotte that his enlisted leader explained his right to counsel to him and so he now understood he could not be appointed a lawyer until charges were preferred. SA Charlotte then reviewed a rights advisement form with Appellee, and Appellee then signed. According to the form, Appellee indicated that he understood he had the right to a “retained civilian lawyer and[/]or appointed lawyer present during [the] interview.” Appellee then participated in an interview with SA Charlotte.The charges were preferred against Appellee on 18 November 2022.

9. MJ suppresses statements. Gov. appeals under Art. 62 to NMCCA and the MJ decision is  affirmed on the facts of this case.

10. Quote of the Case: "The Government’s assertions regarding the ability for an accused to obtain detailed military counsel prior to preferral of charges is contrary to the language of Mil. R. Evid 305(d) and exactly the same premise that the military judge identified as Appellee’s source of government-induced confusion."