Lead Opinion
delivered the opinion of the Court.
A gеneral court-martial composed of officer members convicted appellant, pursuant to mixed pleas, of making a false official statement (3 specifications), writing bad checks (2 specifications), bigamy, and impeding an investigation, in violation of Articles 107 and 134, Uniform Code of Military Justice, 10 USC §§ 907 and 934, respectively. Appellant was sentenced to a bad-conduct discharge and reduction to the grade of E-l. The convening authority approved the sentence as adjudged. In an unpublished opinion, the Court of Criminal Appeals affirmed the findings and sentence but ordered that appellant receive administrative relief from the improper execution of the adjudged reduction in grade.
On appellant’s cross-petition, we granted review of the following issue:
WHETHER THE MILITARY JUDGE ERRED IN FAILING TO SUPPRESS STATEMENTS APPELLANT MADE TO HIS FIRST SERGEANT AFTER HAVING BEEN SUBJECTED TO REPEATED AND PERSISTENT QUESTIONING BY HIS FIRST SERGEANT WITHOUT HAVING BEEN FIRST ADVISED OF HIS RIGHTS UNDER ARTICLE 31, UCMJ.[1 ]
We hold that the military judge erred in admitting the verbal statements at issue in the absence of rights’ warnings under Article 31(b), UCMJ, 10 USC § 831(b), but did not err in admitting the divorce decree into evidence. The error was prejudicial as to one specification on findings, but harmless as to the sentence. See Art. 59(a), UCMJ, 10 USC § 859(a).
I. FACTS
A. Questions Concerning Appellant’s Marital Status
On Friday, March 8,1996, appellant’s commander, Captain (Capt) Myatt, received a telephone call from a woman who identified herself as appellant’s wife, JS (hereafter referred to as “the first Mrs. Swift”). The first Mrs. Swift stated that she had received a teleрhone call that morning from a woman who had identified herself as SS (hereafter referred to as “the second Mrs. Swift”). According to the first Mrs. Swift, the second Mrs. Swift had made the following points during their telephone conversation: (1) the second Mrs. Swift currently was married to appellant; (2) the first Mrs. Swift no longer was married to appellant; (3) appellant had divorced the first Mrs. Swift in 1994; (4) the divorce took place in Pike County, Kentucky; and (5) the divorce papers were in the possession of the second Mrs. Swift.
The first Mrs. Swift and appellant had been living apart for some time. She told Capt Myatt that she did not believe she was divorced since she had not received any notice that appellant was seeking a divorce and had not signed any paperwork. She asked Capt Myatt for assistance in determining whether there had been a divorce and whether she remained eligible for military mеdical care. The first Mrs. Swift concluded her conversation with Capt Myatt by telling her that, if appellant had married the second Mrs. Swift without first obtaining a divorce, she wanted to press charges for the offense of bigamy.
Capt Myatt related this information to appellant’s first sergeant, Master Sergeant (MSgt) Vernoski. MSgt Vernoski was familiar with appellant’s marriage to the first Mrs. Swift because, in the fall of 1995, MSgt Vernoski had counseled appellant for failing to support his wife, the first Mrs. Swift. At that time, MSgt Vernoski assisted appellant in setting up an allotment for the first Mrs. Swift. Until learning of the phone call to Capt Myatt, MSgt Vernoski was under the impression that the first Mrs. Swift and appellant remained married.
Capt Myatt and MSgt Vernoski reviewed appellant’s emergency data card in the unit mobility folder, which still listed the first Mrs. Swift as appellant’s wife. Capt Myatt and MSgt Vernoski then went to the personnel office to cheek appellant’s records. Appellant’s file included several copies of DD Form 1172, the form used to enroll or disenroll military members and dependents from the Defense Eligibility Enrollment Reporting System (DEERS) for purposes of health care eligibility. According to these records, appellant had disenrolled the first Mrs. Swift and had enrolled the second Mrs. Swift as his spouse. The form indicated that the first Mrs. Swift became ineligible for benefits on September 14, 1994. An official at the personnel office advised Myatt and Vernoski that a spouse could be disenrolled only if the servicemember provided a copy of a divorce decree. The personnel official noted that appellant’s emergency data card in the personnel office still listed the first Mrs. Swift as appellant’s spouse, but she also recalled that appellant was in the process of revising that card.
Shortly thereafter, Capt Myatt and MSgt Vernoski visited the base legal office, where they discussed several military justice matters with the chief of military justice. During this visit, MSgt Vernoski described the phone call from the first Mrs. Swift and related what they had learned at the personnel office. MSgt Vernoski later testified that he had brought this matter to the attention of the chief of military justice “because it was unusual” and he had “never seen or come across a bigamy ease.” The chief of military justice recalled that MSgt Vernoski and Capt Myatt mentioned, during this meeting, “the troop and his potential bigamy to me.” Later in the day, Capt Myatt and MSgt Vernoski decided that they would confront appellant Monday morning.
On Monday, March 11, before they confronted appellant, MSgt Vernoski received a call from the first Mrs. Swift. She reiterated what she previously had told Capt Myatt and gave MSgt Vernoski the name and telеphone number of the clerk in the Pike County courthouse with whom she had spoken. According to the first Mrs. Swift, she told MSgt Vernoski that she did not “think there was a divorce” and added that she “didn’t think it was legal.” MSgt Vernoski testified that he had never heard of anyone being divorced without that person’s knowledge, but thought that it could be possible. After the phone call from the first Mrs. Swift and prior to meeting with appellant, MSgt Vernoski opened the Manual for Courts-Martial and reviewed the Manual’s provisions concerning the offense of bigamy, including the elements
MSgt Vernoski, who subsequently testified that he had called appellant into his office to “hear his side of the story,” did not advise appellant of the right to remain silent or the other self-incrimination rights under Article 31(b). He told appellant of the “accusations” made by the first Mrs. Swift. Appellant responded that he had divorced the first Mrs. Swift in September 1994. Immediately upon hearing appellant state that he had been divorced in 1994, MSgt Vernoski reminded appellant that in the fall of 1995, just a few months earlier, appellant had stated that he still was married to the first Mrs. Swift. Appellant responded by claiming that he had not made such a statement.
Appellant thеn provided MSgt Vernoski with the name of an attorney who, according to appellant, had represented him in the divorce proceeding. Appellant also suggested that the first Mrs. Swift might be trying to get him into trouble. MSgt Vernoski responded by telling appellant that “she can get you in trouble” and showed him the maximum punishment for bigamy from the Manual for Courts-Martial.
At the conclusion of the conversation, MSgt Vernoski directed appellant to provide him with a copy of his divorce decree. Appellant said that he would bring a copy the next morning. Later that day, MSgt Vernoski visited the chief of military justice at the base legal office and told him about his conversation with appellant. He later noted that he had visited the chief of military justice on this matter “because I normally keep him in the loop regarding ‘potential crimes’ in the squadron.”
B. Production of the Divorce Decree
When appellant failed to appear with the divorce decree on Tuesday morning, MSgt Vernoski summoned him. Appellant arrived without the paperwork, explaining that his attorney, who was in court that morning, would fax a copy of the decree to the squadron later in the day.
On Tuesday afternoon, appellant delivered certain documents to MSgt Vernoski, who determined that the documents were not responsive because they pertained to child custody rather than divorce. He told appellant that he needed to see a divorce decree to verify his divorce, and appellant promised to deliver the divorce decree at 0730 hours the following morning.
The next day, appellant again failed to report to MSgt Vernoski’s office. When summoned, appellant arrived without the paperwork, explaining that his attorney did not open his office until 9:00 a.m. MSgt Vernoski directed appellant to report to him every hour until he produced the divorce papers. Just before 2:00 p.m., Wednesday, March 13, 1996, appellant delivered a document to MSgt Vernoski that he described as his divorce decree. A cover letter and a page of the document were missing from the document, and appellant promised to deliver the missing items the next morning. After this meeting, MSgt Vernoski did not discuss the matter again with appellant. Appellant never produced the missing papers.
The document appeared to be unusual to MSgt Vernoski, so he took it to the chief of military justice because “[he] wasn’t sure if it was legal” and wanted “to have it cheeked out.” Together, MSgt Vernoski and the chief of military justice examined the document. The first thing that struck them as unusual was that the first Mrs. Swift had not signed the document. After further review, they also noticed several misspellings and typographical errors. The document was purportedly signed by a Circuit Court Judge in Pike County and filed at the Pike County Courthouse. The document indicated that it had been filed on September 14, 1994, the same date listed on the DEERS form. With MSgt Vernoski in the office, the chief of military justice called the civilian attorney identified by appellant as his attorney in the divorce proceedings. The attorney responded that, although he had represented appellant in a child-custody case, he had not represented him in a divorce action.
The following morning, the chief of military justice called the Pike County Court
Soon thereafter, appellant was charged with a number of offenses, including: (1) that he made false official statements between March 11 and 13, 1996, when he said that he was divorced and that the named civilian attorney represented him in that action; (2) that he made a false official statement when he presented a false divorce decree to MSgt Vernoski on Wednesday, March 13,1996; (3) that he committed obstruction of justice by impeding MSgt Vernoski’s investigation by presenting a false divorce decree to MSgt Vernoski; and (4) that he committed bigamy.
C. The Motion to Suppress
At trial, appellant moved to suppress all statements he had made to MSgt Vernoski and all evidence derived therefrom, including the purported divorce papers that appellant had given to MSgt Vernoski. The motion alleged a failure to give warnings under Article 31(b). Defense counsel indicated that the motion, if granted, would require dismissal of the two false official statement specifications and the bigamy charge. The defense did not tie the motion to the obstruction of justice charge and has not done so on appeal.
The military judge denied the motion to suppress. He concluded that “there were insufficient circumstances that caused or reasonably should have caused Sergeant Vernoski to suspect the accused of the criminal offense of bigamy.” With respect to the false official statement charges, he also concluded that “there was no evidence made known to Sergeant Vernoski that reasonably should have caused him to suspect that the accused was possibly going to commit other offenses under the UCMJ in the course of producing the divorce decree.”
D. The Charge of Impeding MSgt Vemoski’s Investigation
The Government charged appellant with obstruction of justice for wrongfully endeavoring to impede an investigation into his marital status by giving MSgt Vernoski a document purporting to be a divorce decree from the first Mrs. Swift, which he knew to be false. At trial, the Government’s theory was that appellant’s “submission of] this phony divorce decree [was] just part and parcel of the impeding an investigation charge. . . . He provided it in the hopes that Vernoski would be satisfied with it, and nothing further would happen to him.” Trial counsel maintained that “[appellant] did all these series of lies in hopes of misleading Vernoski, in misdirecting him so that it would take the pressure off of him, so that he wouldn’t get in any trouble.” Trial counsel further argued that appellant’s conduct was “prejudicial to good order and discipline” because of the “way the military justice system works, and the way our disciplinary system works in the military, and the role and duty of the first sergeant. When he lies to his first sergeant, that has a direct impact on good order and discipline in a unit.”
With regard to the obstruction of justice charge, the military judge instructed the members that they must find that appellant presented a false document to MSgt Vernoski, in a case against himself, against whom he had reason to believe that there were or would be criminal proceedings pending, with the intent to impede the due administration of justice. The military judge also informed the members that the charged misconduct must be prejudicial to good order and discipline in the armed forces.
II. DISCUSSION
A. General Principles Concerning the Rights’ Warning Requirement
Article 31(a) of the Uniform Code of Military Justice provides that a person subject to the Code may not “compel any person to incriminate himself or to answer any question the answer to which may tend to incriminate him.” Article 31(b) implements the privilege against self-incrimination through a
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.
Congress established this statutory warning requirement in the aftermath of World War II, long before the Supreme Court’s decision in Miranda v. Arizona,
The rights’ warning requirements under Miranda represent judicially creatеd, constitutionally based guidelines designed to protect the privilege against self-incrimination. See Dickerson v. United States, — U.S. —, —,
The primary source of the rights’ warning requirements in military law is a statutory enactment, not constitutional adjudication. Congress has provided members of the armed forces with a rights’ warning requirement that is broader than the warnings required in a civilian setting as a matter of constitutional law under Miranda. Article 31(b) mandates rights’ warnings for anyone “suspected of an offense,” whereas Miranda warnings are required only in circumstances amounting to “custodial interrogation.” Compare 10 USC § 831(b) with
In the armed forces, a person learns from the outset of recruit training to respond promptly to the direct orders and the indirect expectations of superiors and others, such as military police, who are authorized to obtain official information. Failure to respond to direct orders can result in criminal offenses unknown in civilian life, see, e.g., Arts. 90 and 91, UCMJ, 10 USC §§ 890 and 891, respectively. Failure to respond to the expectations of military life can lead to charges of dereliction of duty, see, e.g., Art. 92, UCMJ, 10 USC § 892, as well as serious administrative consequences, see, e.g., Department of Defense (DoD) Directive 1332.14 Enlisted Administrative Separations (1993).
In such an environment, a question from a superior or an investigator is likely to trigger a direct response without any consideration of the privilege against self-incrimination. The Article 31(b) warning requirement provides members of the armed forces with statutory assurance that the standard military requirement for a full and complete response to a superior’s inquiry does not apply in a situation when the privilege against self-incrimination may be invoked. See United States v. Gibson,
.Another special feature of military life is the blеnding of both administrative and law enforcement roles in the performance of official duties. Officers, and non-commissioned
Military suspects may know in a general sense that they have a right to remain silent, and they may know the consequences of waiving that right, but they may not be aware that they face adversarial situations where they may want to exercise that right. For example, a suspect may believe that a platoon sergeant is inquiring about personal finances to help the suspect balance a bank account. The suspect does not realize that the sergeant is asking the questions in a law enforcement capacity, to get evidence against the soldier for later use at a court-martial.
Supervielle, Article 31(b): Who Should Be Required to Give Warnings?, 123 Mil. L.Rev. 151,187 (1989).
Our case law has interpreted Article 31 in a manner that recognizes the difference between questioning focused on the accomplishment of a military mission, including an administrative function, and questioning to elicit information for use in disciplinary proceedings. See, e.g., United States v. Brown,
In general, we have held that Article 31(b) requires rights’ warnings if: (1) the person being interrogated is a suspect at the time of the questioning, and (2) the person conducting the questioning is participating in an official law enforcement or disciplinary investigation or inquiry. See United States v. Moses,
B. Appellant’s Status As A Suspect
Military pay and benefits are closely tied to marital status and the status of dependents. See, e.g., 10 USC §§ 1076, 1077, and 1079; 37 USC §§ 401, 403, 406, and 407. Officers and NCOs have a legitimate administrative need to ensure that such benefits are provided to those who are entitled to them and that they are not provided to those whose eligibility status may have changed. The role of a first sergeant is multifaceted, and as such, MSgt Vernoski’s duties included addressing questions about dependent entitlements. See para. 1.2, Air Force Instruction 36-2113, The First Sergeant (1 August 1996).
Given the plethora of diverse benefit programs administered by a host of different DoD organizations, members of the armed forces are well aware of the significant poten
In the present ease, howеver, the command had much more than a hunch that appellant had committed an offense. MSgt Vernoski brought appellant’s situation to the attention of the chief of military justice on Friday afternoon because he regarded it as “unusual” and he had “never seen or come across a bigamy case.” The chief of military justice described the conversation as addressing a “potential bigamy case in their unit.” These circumstances underscore that this was more than simply visiting the legal office to discuss an administrative matter. MSgt Vernoski and Capt Myatt had good reason to suspect appellant of bigamy at that time, based upon the following information: (1) the first Mrs. Swift had been called by the second Mrs. Swift, a person claiming to be appellant’s wife, and the second Mrs. Swift had asserted there was a divorce in Pike County, Kentucky; (2) the first Mrs. Swift had never signed a divorce decree and had not been provided any notice that her husband was seeking a divorce; (3) to the best of the first Mrs. Swift’s knowledge, she was still married to appellant; (4) the first Mrs. Swift had determined there was no record of such a divorce in Pike County; (5) if there had been no divorce, the first Mrs. Swift wanted appellant prosecuted for bigamy; (6) as recently as the fall of the previous year, MSgt Vernoski had counseled appellant about matters related to appellant’s marriage to the first Mrs. Swift, during which appellant told him that he was still married to her, yet the second Mrs. Swift asserted that a divorce had taken place more than 2 years ago — a divorce which, according to the first Mrs. Swift, was not recorded in the county referred to by the second Mrs. Swift; (7) several current military records still listed the first Mrs. Swift as appellant’s wife; and (8) the first Mrs. Swift had been disenrolled as a beneficiary under DEERS, and the second Mrs. Swift had been enrolled as appellant’s spouse under DEERS.
On Monday morning, prior to confronting appellant, MSgt Vernoski’s concerns about the case led him to review the provisions of the Manual for Courts-Martial concerning the offense of bigamy. His review of the Manual was not simply preparation for a worst case scenario. The grounds for suspecting appellant of bigamy were reinforced by a call he received from the first Mrs. Swift prior to his meeting with appellant, in which she reiterated that she did not think the divorce “was legal” and provided him with the name and phone number of the clerk with whom she had spoken at the Pike County Courthouse. When appellant reported, as ordered, MSgt Vernoski began the interrogation by setting forth the “accusations” made by the first Mrs. Swift and asking appellant to respond.
Under the objective test, we conclude as a matter of law that these circumstances demonstrate that MSgt Vernoski “reasonably should have believed” that appellant was a suspect with respect to the offense of bigamy prior to this interrogation. See Good, supra set 108. The fact that MSgt Vernoski was hopeful that appellant would be able to clarify his marital status, just as he had been able to clarify prior problems with his wife’s allotment, does not lead to a different result. In light' of the relatively low quantum of evidence required to treat an individual as a suspect, MSgt Vernoski’s hope that events would exonerate appellant was not incompatible with his responsibility to treat appellant as a suspect based upon the amount of information about the possibility of bigamy that he had acquired before confronting appellant. It is not unusual for a superior to be hopeful that circumstances will vindicate a subordinate, particularly when that subordinate has proved trustworthy in the past. Such a feeling, no matter how well motivated, does not deprive a member of the armed forces of the right to be warned under Article 31(b) when the objective facts point to the subor
C. Questioning By A Military Superior: Application of the Disciplinary Presumption
Under our case law, we also consider whether MSgt Vernoski was acting in a law enforcement or disciplinary capacity in light of the “strong presumption” that questioning by a military superior in the “chain of command” is part of a “disciplinary” investigation. Good, supra at 108. As discussed in Part IIB, supra, although MSgt Vemoski had appropriate administrative concerns about appellant’s marital status, the circumstances of this case led to significant disciplinary considerations in the conduct of the investigation.
From the initial telephone call from the first Mrs. Swift to the first confrontation with appellant, the nature of the actions taken by MSgt Vernoski and Capt Myatt underscore the priority they placed on military justice implications — including their joint visit to the personnel office and the base legal office, their consultation with the chief of military justice concerning a “potential bigamy ease,” MSgt Vernoski’s study of the bigamy provisions in the Manual for Courts-Martial, and MSgt Vernoski’s ordering of appellant to report to his office to respond to the “accusations” made by the first Mrs. Swift.
Based on the foregoing considerations, in the context of the information provided by the first Mrs. Swift and the information developed through their own inquiries, we conclude as a matter of law that the Government failed to rebut the strong presumption that MSgt Vernoski’s interrogation was part of an investigation that included disciplinary purposes. Under the circumstances, he should have provided appellant with the statutorily required rights’ warnings, including the warning that he did not have to “make any statement regarding the offense” of which he was suspected. Art. 31(b). Accordingly, we hold that the military judge erred when he determined that rights’ warnings were not required under Article 31(b).
D. Admissibility of Unwarned Statements
We next examine whether the verbal statements, although unwarned, were nonetheless admissible. Congress, in Article 31(d), provided a strict enforcement mechanism to implement the rights’ warning requirements in Article 31(b):
No statement obtained from any person in violation of this article, or through the use of coercion, unlawful influence, or unlawful inducement may be received in evidence against him in a trial by court-martial.
This provision, like Article 31(b), was established by Congress in the aftermath of World War II. Since then, Congress has not exempted any of the substantive offenses under the UCMJ from the coverage of Article 31(d), no matter how serious. Article 31(d) applies to all substantive crimes, including offenses that have a critical impact on good order, discipline, and national security, such as murder, rape, robbery, aiding the enemy, mutiny, espionage, spying, and making false official statements. See United States v. Price,
More than 40 years have passed since we observed in Price that the express language of Article 31 did not permit a false official statement prosecution to be based upon an unwarned statement. Congress has amended the UCMJ numerous times since Price was decided in 1957, but none of the amendments has modified the clear limitations in Article 31(d).
Notwithstanding provisions of par. 140a, MCM, to the contrary, a prosecution for making a false official statement is not exempt from restrictions of Art. 31 regarding pretrial statements of an accused or suspected person. Accordingly, when a statement is obtained from an accused who has not been warned of his right against self-incrimination and the circumstances are such that the warning is required by Art. 31, the statement is inadmissible even though the case in which it is offered is a prosecution for making a false official statement.
U.S. Army, 1959 Cumulative Pocket Part to the Manual for Courts-Martial, United States, 1951, at 71 (emphasis in original). The President, in a subsequent revision of the Manual, expressly provided that “in a case in which a statement of the accused so obtained [in violation of applicable warning requirements] is charged as being false, it cannot be received in evidence to show that he made it.” Para. 140a(6), Manual for Courts-Martial, United States, 1969 (Revised edition); see Analysis of Contents, Manual for Courts-Martial, United States, 1969, Revised Edition at 27-11 (Dep’t of the Army Pamphlet 27-2 (1970)) (citing Price).
The 1951 Manual, in a separate provision regarding impeachment of witnesses, provided that an accused who testified as a witness could not be cross-examined on the basis of a statement obtained in violation of applicable rights’ warning requirements, para. 1536 (2)(c), and this provision was retained with minor modifications in the 1969 Manual. Subsequently, in United States v. Jordan,
Despite the invitation for change set forth in Jordan, the two significant revisions of the Manual for Courts-Martial adopted in the 1970s did not address the impeachment issue. See Exec. Order No. 11835, 40 Fed.Reg. 4247 (1975); Exec. Order No. 12018, 42 Fed.Reg. 57943 (1977). The Manual continued to preclude impeachment by an unwarned statement until the evidentiary material in the Manual, which included extensive guidance and examples, was replaced entirely by the Military Rules of Evidence in 1980. Chapter XXVII, Manual For Courts-Martial, United States, 1969 (Revised edition); see Exec. Order No. 12198, 45 Fed.Reg. 16932 (effective Sept. 1, 1980).
Reflecting the fact that Jordan involved a situation in which there had been compliance with the rights’ warning requirement under Article 31 but noncompliance with the constitutionally-based, Miranda-Tempia counsel warning requirements, the 1980 amendments permitted impeachment of a testifying accused by an unwarned statement, but limited the provision to statements obtained in violation of the Miranda-Tempia, counsel warning requirements. Under the new rule, Mil. R.Evid. 304(b), a statement obtained after failure to provide the Miranda-Tempia
In 1990, the Rule was amended further to permit limited use of a statement obtained in violation of the warning requirements of Article 31(b) and the related Military Rules of Evidence “to impeach by contradiction the in-court testimony of the accused or the use of such statement in a later prosecution against the accused for perjury, false swearing, or the making of a false official statement.” The Drafters’ Analysis cited Harris and our decision in United States v. Williams,
The underlying theory of the 1990 change was that the accused is the gatekeeper as to admission of the unwarned statement and that only an inconsistent or perjurious statement by an accused who testifies at trial opens the gate. The accused, in deciding whether to testify, must consider whether he or she will thereby risk impeachment by contradiction or a “later prosecution.” Mil. R.Evid. 304(b). The rule is based on the premise that Article 31(d) provides a shield when the prosecution seeks to use an unwarned statement as a sword against the accused, but does not shield an accused from cross-examination or a later prosecution when it is the accused, not the Government, who opens the door to questioning the veracity of his or her testimony at trial.
Although in-court testimony is not at issue in the present case, we note that when an accused has opened the door to consideration of an unwarned statement through such testimony, reliance on Mil.R.Evid. 304(b) in a “later prosecution” may be viewed as consistent with our precedents regarding impact of actions by an accused in a judicial setting that affect the member’s statutory rights. See, e.g., United States v. Gammons,
Because appellant did not testify in the present case, the unwarned statements were not used for purposes of impeachment or otherwise to prove that he testified falsely at trial. The Government, however, asks us to apply Mil.R.Evid. 304(b) in a manner that would permit unwarned statements made during an investigation and obtained in violation of Article 31(b) to be introduced by the proseсution to prove essential elements of false official statements in its case-in-chief.
We decline to interpret the Rule as applying to circumstances in which the accused has not opened the door to consideration of the unwarned statement by his or her in-court testimony. Applying the rule to a non-testifying accused, as urged by the Government, would place the Rule in direct conflict with Article 31(d). See United States v. Price, supra. In any such conflict, the Manual provision must yield to the statute. Article 36(a), UCMJ, 10 USC § 836(a) (the rules of evidence in the Manual for Courts-Martial may not be “contrary to or inconsistent with” the Code); United States v. Lopez,
These considerations are particularly important in the absence of congressional action to overturn a precedent of this Court that is based upon the plain meaning of a statute and that is consistent with the context in which the statute was enacted. See Connecticut National Bank v. Germain,
We are well aware of the corrosive impact of false statements on military effectiveness, and we have forthrightly rejected precedents from the civilian sector that would diminish the effectiveness of Article 107. See United States v. Solis,
The same considerations apply to the present case. The requirement to provide specific rights’ warnings in Article 31(b) and the restriction on use of statements obtained in violation of those rights in Article 31(d) represent decisions made by Congress, not this Court. In the more than 40 years since Price was decided — including many years in which the Manual for Courts-Martial expressly prohibited use of unwarned statements in false statement prosecutions — Congress took no action to create an exception to Article 31(d) for false statement еases arising under Article 107. Congressional inaction, in such circumstances, must be given great weight “because the primary responsibility for overruling decisions on statutory construction is with Congress.” United States v. Gibson,
The dissent suggests that we should rely on analogies from civilian life to exempt Article 107 offenses from the coverage of Article 31(d). In some instances, consideration of criminal law developments in the civilian sector may be helpful when addressing aspects of the military justice system. However, when this Court assesses legislation created by Congress under its constitutional authority to “raise and support” the armed forces and “make Rules for the Government and Regulation” of those forces, we must be guided by the highest degree of deference to congressional action. U.S. Const., art. I, § 8, cl. 12-14; Rostker v. Goldberg,
The dissent is based primarily upon cases from the civilian sector, none of which involve the factual predicate we have in this case— the prosecution for a false statement, made in the absence of required self-incrimination warnings, and admitted during the prosecution’s case-in-chief. Instead, many of the cases cited in the dissent involve circumstances in which a person held a grant of immunity, testified, and then was prosecuted on the grounds that the testimony was false. Those cases are based on the premise that a person who knows that he or she has the protection against self-incrimination embodied in a grant of immunity cannot choose to abuse the privilege through false testimony. This is in stark contrast to the present case, which involves a non-testifying person who was not provided with a statutorily required warning about self-incrimination protections. Most of the remaining eases cited in the dissent involvе situations in which rights’ warnings were not required as a matter of law, which mooted the question whether an illegally obtained statement could be used against the individual.
The dissent agrees that rights’ warnings were required under Article 31(b), but declines to apply the statutorily mandated procedure for enforcing that requirement under Article 31(d), based on civilian precedent. Although we should give appropriate consideration to criminal law precedents, when we interpret the statutory provisions embodied in the Uniform Code of Military Justice, we must be particularly cautious in applying analogies from the civilian sector that involve judicial modifications of judicially-crafted doctrines, see Dickerson,
E. The Production Of The Divorce Decree
The production of the divorce decree, however, raises a separate issue— whether appellant had a Fifth Amendment or Art. 31(a) privilege as to the production of the divorce decree — which is distinct from the requirement to give the rights’ advisement under Article 31(b). It is well “settled ... that a person may be required to produce specific documents еven though they contain incriminating assertions of fact or belief because the creation of those documents was not ‘compelled’ within the meaning of the privilege.” United States v. Hubbell, — U.S. —, —,
In this case, the record indicates that appellant voluntarily created a purported divorce decree before MSgt Vernoski requested its production. Appellant’s personnel records reflected the fact that he had produced a divorce decree for purposes of changing spousal enrollment under DEERS well before MSgt Vernoski initiated his investigation. The DEERS form stated that appellant was divorced on September 14, 1994, the same date as listed on the purported divorce decree later provided to MSgt Vernoski. Additionally, the second Mrs. Swift told the first Mrs. Swift that she had the divorce decree in her possession during their first phone conversation, the day before MSgt Vernoski initiated his investigation. He also knew that the second Mrs. Swift told the first Mrs. Swift that the divorce decree indicated that she and appellant were divorced in September of 1994 and that the decree was filed in Pike County.
In short, MSgt Veroski did not simply ask appellant to provide information about his marital status, but instead requested appellant to provide a document which appellant previously had produced at the personnel office to change appellant’s DEERS form. Under these circumstances, appellant could not have objected to producing the divorce decree solely on the basis that the fraudulent contents were incriminating because MSgt Vernoski’s request was based on facts indieating that the document, a divorce decree, had been created prior to the order to produce it. See Fisher v. United States, supra.
The Supreme Court also has stated “that the act of producing documents in response to a subpoena may have a compelled testimonial aspect” if “ ‘the act of production’ ... implicitly cоmmunicate[s] ‘statements of fact.’ ” Hubbell,
To constitute “required records,” the documents must satisfy the following test: (1) the requirement that they bfe kept “must be essentially regulatory”; (2) the records must be the “kind which the regulated party has customarily kept”; and (3) the records themselves must be either public documents or “have assumed ‘public aspects’ which render them at least analogous to public documents.”
The requirement to produce a divorce decree in order to establish and update military records supporting spousal eligibility for government benefits is regulatory; the divorce
F. Impact Of The Inadmissible Evidence
The question remaining is whether the error in admitting the verbal statements obtained in violation of Article 31 had a prejudicial impact. Three aspects of the ease potentially were affected by the illegally obtained statements: the bigamy conviction, two of the false official statement convictions, and the sentence.
1. The Bigamy Conviction
In support of the bigamy specification, the prosecution produced evidence of two marriage certificates — one to the first Mrs. Swift dated August 28, 1990, and the other to the second Mrs. Swift dated January 1, 1996 — and the fraudulent divorce decree. Additionally, the prosecution offered the testimony of the first Mrs. Swift, who testified that she knew of no divorce action by appellant.
The first Mrs. Swift also testified that she and appellant specifically decided not to obtain a divorce at the time of their separation because, she would lose her military medical benefits and dependent identification card. She testified further that appellant, during a telephone conversation, had told her that he had a serious interest in another woman, and she asked him whether he wanted a divorce. She testified that he had responded that they would just maintain the status quo and not obtain a divorce. This conversation took place in January 1996 — after, unbeknownst to her, he already had married the second Mrs. Swift. In light of the significant evidence that was not derived from the unwarned statements, we are satisfied beyond a reasonable doubt that appellant was not prejudiced as to the bigamy conviction.
2. Thé.False Statement Convictions
In the first false statement specification, appellant was charged with making a false official statement when, in response to a question from MSgt Vernoski, he said that he was divorced from the first Mrs. Swift and that a named civilian attorney had represented him in the divorce proceeding. This specification was based upon appellant’s verbal response to an unwarned inquiry. Without that evidence, there is no proof of an offense, and the specification must be dismissed.
In the second specification at issue, appellant was charged with making a false official statement when he presented to MSgt Vernoski “an official statement, to wit: a purported divorce decree, which document was totally false. . . .” Unlike the first specification, the second false official statement specification was based upon evidence properly admitted against appellant. In addition to the document itself, the Government offered evidence that the divorce decree had never been filed at the Pike County Courthouse nor signed by an active Circuit Court Judge, as it purported. In light of the Government’s evidence on this specification, we are satisfied that there was sufficient evidence to find appellant guilty of this specification without reliance upon any of appellant’s unwarned statements.
3. The Sentence
Even without the first false official statement offense, appellant remains convicted of making two separate false official statements; two specifications of writing bad checks; bigamy; аnd impeding an investigation. Appellant’s sentence included a bad-
III. DECISION
The decision of the United States Air Force Court of Criminal Appeals is reversed as to specification 1 of Charge I. The finding of guilty as to that specification is set aside, and that specification is dismissed. In all other respects, the decision below is affirmed.
Notes
. The initial filing in our Court, which concerned an unrelated issue certified by the Judge Advocate General under Article 67(a)(2), UCMJ, 10 USC § 867(a)(2)(1989), was disposed of by order on September 30, 1998.
. During the same period, by contrast, Congress endeavored to circumscribe the exclusionary rule
. Cf. United States v. Lewis,
. We reached this decision notwithstanding the fact that a majority of the federal appellate courts that had addressed the issue at the time of our decision had endorsed the exculpatory-no doctrine with respect to a similar civilian offense. See
. Although not necessary to our decision on this issue, we note that this was the same date and location indicated in the divorce decree later provided by appellant to MSgt Vernoski. The record also indicates that the second Mrs. Swift provided a copy of what she believed was appellant’s divorce decree to MSgt Vernoski the day after appellant gave the document in question. Upon comparison of the two documents, MSgt Vernoski concluded that they were identical.
Concurrence Opinion
(concurring in part and dissenting in part):
Appellant was a soldier with two wives, one of whom was bombarding his command with complaints about his suspected bigamy. His first sergeant (1st Sgt) had good reason to suspect these complaints were true when he called appellant into his office to hear “his side of the story.” Unfortunately, he did not advise appellant of his rights under Article 31 with respect to this suspected criminal offense. This failure to warn was wrong as both the majority and I agree. See generally United States v. Good,
Nevertheless, the 1ST Sgt (in pursuing his duties to clear up the inconsistencies in appellant’s administrative records and in response to the complaints of appellant’s first wife) proceeded to get appellant to explain his true marital status. The Army had a right to know since housing, medical, and other administrative benefits are dependent on the correct marital status of a service-member. The record shows that appellant (in response to requests from the 1ST Sgt) told the 1ST Sgt that he was divorced from his first wife and gave the 1ST Sgt a false divorce decree. There was no evidence that appellant was coerced to lie to his 1ST Sgt or to give a false divorce decree to him. These acts form the basis for the two charges of giving false official statements.
Today, the majority sets aside appellant’s conviction on one of these charges. In the process, it effectively provides military suspects an unparalleled right to lie in their official statements to their military superiors or other government authorities. In my view, such a holding directly contradicts existing precedent from our Court, an applicable Manual provision, and analogous Supreme Court, Court of Appeals and state court decisions. I dissent and would affirm appellant’s convictions for making false official statements in violation of Article 107, Uniform Code of Military Justice, 10 USC § 907.
When one looks at this case from a distance, one could say that there is agreement by all the members of this Court on the requirement for warnings against self-incrimination. The different outcomes of the majority and my dissent are caused by the two different approaches to application of the exclusionary rule to the facts of this case. The majority takes a broad view of the exclusionary rule which allows appellant to escape any prosecution for the two false-official-statement charges. But cf. United States v. Wong,
The thrust of the majority’s opinion is that the broad wording of Article 31(d) expresses the careful judgment of Congress that the servicemember should have an exclusionary rule affording greater protection than that afforded his civilian counterpart.
Instead, I adhere to the past decisions of this Court recognizing that Congress intended our exclusionary-rule remedy to be commensúrate with the Fifth Amendment exclusionary rule, as traditionally delineated by the Supreme Court, unless expanded by the President in the Manual for Courts-Martial. See United States v. Williams,
In my view, Harris v. New York, supra, does not support the broad “case-in-chief’ exclusionary rule espoused by the majority in this case. In Harris, the precise question was whether an accused’s pretrial statement, inadmissible under Miranda v. Arizona,
The majority broadly dismisses as inapplicable these Supreme Court cases (Brogan, Wong, Knox, Bryson, Mandujano, and Glickstein) as well as a decision of one of our fellow U.S. Courts of Appeals, United States v. Veal,
In my view, Congress was aware of this bedrock judicial principle of self-incrimination law when it enacted Article 31(d) and intended it to apply to servicemembers as well. See generally Brogan v. United States, supra at 406-07,
The majority further suggests that Mil. R.Evid. 304(b)(1) has been improperly urged by the Government in this case to permit use of the unadvised statements in a prosecution for making a false official statement. It notes language in the 1980 Drafters’ Analysis suggesting that “a statement obtained in violation of article 31(b), however, remains inadmissible for all purposes” as supporting its view. I disagree.
Mil.R.Evid. 304(b)(1) (1990) states the contrary. It says:
(b) Exceptions.
(1) Where the statement is involuntary only in terms of noneompliance with the requirements of Mil.R.Evid. 305(c) or 305(f), or the requirements concerning counsel under Mil.R.Evid. 305(d), 305(e), and 305(g), this rule does not prohibit use of the statement to impeach by contradiction the in-court testimony of the accused or the use of such statement in a later prosecution against the accused for perjury, false swearing, or the making of a false official statement.
(Emphasis added.)
This language responded to this Court’s previous decision in United States v. Jordan, supra at 617,
In sum, there is a basic difference between the majority’s view and my view of this case. It centers on one of the core aspects of the Federal Exclusionary Rule. I believe Article 31 (like the Fifth Amendment) only applies to past crimes, ie., those committed before the interrogation where there were no self-incrimination warnings. The majority wants to ignore our Court’s and federal civilian courts’ case law to say that, if there were no warnings of self-incrimination, any soldier can then lie under oath in an interrogation (ie., commit a present crime). I don’t think that the post-World War II Congress was ignorant of this distinction between “past” and “present” crimes when they passed Article 31. In my view, the majority is clearly wrong in believing that Congress gives immunity for any crime committed in an unwarned interrogation.
The majority apparently
Finally, in my view, the majority essentially holds that Mil.R.Evid. 304(b)(1) is legally invalid bеcause of Article 31(d). “Applying the rule to a non-testifying accused, as urged by the Government, would place the Rule in direct conflict with Article 31(d). In any such conflict the Manual provision must yield to the statute.”
. The lead opinion in United States v. Good,
. In United States v. Lewis,
. The majority attempts to have it both ways. On the one hand, it asserts that there are no express exceptions to Article 31(d), in the Uniform Code of Military Justice, which permit use of this evidence in a false-official-statement prosecution. On the other hand, it asserts that evidence of unadvised statements may be used as impeachment evidence or to prosecute for perjury if an accused subsequently testifies falsely at a court-martial. Clearly, the majority's "gatekeeper” creation is not contained in the language of Article 31(d).