United States v. Staff Sergeant DANIEL D. HERMAN
20220248
A.C.C.A.Dec 15, 2023Background
- Staff Sergeant Daniel D. Herman was convicted by general court-martial of six counts of wrongful broadcast of intimate images and one count of making a false official statement, contrary to his pleas.
- The convictions stemmed from broadcasting intimate images of a former romantic partner over social media after their relationship ended.
- The court-martial was presided over by a military judge who sentenced Herman to a bad-conduct discharge, reduction in rank, and thirteen months' confinement (all sentences to confinement ran concurrently).
- Herman moved to suppress statements made after what he claimed was his invocation of his Fifth Amendment rights during CID interrogation and the derivative evidence (images on a second phone).
- At the time of the charged offenses (March-May 2020), Article 117a UCMJ did not specify a maximum punishment; an Executive Order setting greater punishment was issued in 2022, after the conduct at issue.
Issues
| Issue | Herman's Argument | Government's Argument | Held |
|---|---|---|---|
| Motion to suppress post-invocation statements | Invocation was unequivocal so all questioning had to cease | Invocation was ambiguous/equivocal, so questioning could continue | Invocation was not unequivocal; questioning could continue |
| Motion to suppress derivative evidence | Evidence from post-invocation statements was involuntary and inadmissible | Evidence was lawfully obtained through voluntary consent | Consent and phone search were lawful; evidence admissible |
| Calculation of maximum punishment | Sentence exceeded lawful max for Article 117a at time of offense (ex post facto) | Applied 2022 Exec. Order maximum punishment | Applying higher penalty violated ex post facto clause; sentence reduced |
Key Cases Cited
- Miranda v. Arizona, 384 U.S. 436 (requirement to cease questioning upon invocation of right to silence)
- Berghuis v. Thompkins, 560 U.S. 370 (objective standard for invocation of rights during interrogation)
- Michigan v. Mosley, 423 U.S. 96 (right to cut off questioning must be scrupulously honored)
- Doe v. United States, 487 U.S. 201 (definition of testimonial communication for Fifth Amendment purposes)
- Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177 (scope of Fifth Amendment's privilege against self-incrimination)