10 C.M.A. 619 | United States Court of Military Appeals | 1959
Lead Opinion
Opinion of the Court
A general court-martial convicted the accused of absence without leave and wrongful possession of a false pass with
Following the decision of the board of review, The Judge Advocate General of the Army certified the following issue for our determination:
“Was the board of review correct in holding that the FBI agent was required to warn the accused of his rights under Article 31, Uniform Code of Military Justice?”
The question certified and the facts upon which it depends bear a substantial similarity to our recent case of United States v Holder, 10 USCMA 448, 28 CMR 14, and that decision is disposi-tive of the present issue. In Holder, which was decided subsequent to the board of review’s determination in the instant case, we concluded the facts did not bring the FBI agent within the ambit of Article 31(b) of the Code, supra, as interpreted in United States v Grisham, 4 USCMA 694, 16 CMR 268, and United States v Dial, 9 USCMA 700, 26 CMR 480, and, therefore, statements made to him by the accused were admissible, despite the absence of an appropriate warning.
The factual pattern presently before us indicates even less reason for holding the FBI agent subject to the requirements of the Code, supra, for here there was no request by the Army, official or otherwise, that he apprehend the accused, and his action was prompted solely by information obtained through a confidential civilian informant.
The certified question is, therefore, answered in the negative, and that part of the board of review’s decision setting aside the finding of guilty of possession of a false pass is reversed. The record is returned to The Judge Advocate General of the Army for reference to a board of review for action not inconsistent with this opinion.
Concurrence Opinion
(concurring):
The law governing the disposition of this case, over my dissent, has been fixed by the decision of this Court in United States v Holder, 10 USCMA 448, 28 CMR 14. Accordingly, I concur in the disposition ordered by my brothers.