UNITED STATES, Appellee

v.

Thomas S. PIPKIN, Senior Airman

U.S. Air Force, Appellant

No. 02-0837

Crim. App. No. 34585

________________________________________________________________

United States Court of Appeals for the Armed Forces

Argued April 2, 2003

Decided June 26, 2003

BAKER, J., delivered the opinion of the Court, in which CRAWFORD,

C.J., GIERKE, EFFRON, and ERDMANN, JJ., joined.

Counsel

For Appellant: Captain Jennifer K. Martwick (argued); Colonel

Beverly B. Knott and Major Terry L. McElyea (on brief).

For Appellee: Major John D. Douglas (argued); Colonel LeEllen

Coacher, Lieutenant Colonel Lance B. Sigmon, and Captain C.

Taylor Smith (on brief).

Amicus Curiae: Larry D. White (law student)(argued); John C.

Kunich, Esq. (supervising attorney) and Jon W. Shelburne, Esq.

(supervising attorney) - For the Roger Williams University,

Ralph R. Papitto School of Law, Armed Forces Law Student

Association.

Military Judge: James L. Flanary

THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION
United States v. Pipkin, No. 02-0837/AF

2

Judge BAKER delivered the opinion of the Court.

Pursuant to mixed pleas, Appellant was convicted by a

general court-martial, composed of officer and enlisted members,

of conspiracy to distribute ecstasy, wrongful use of ecstasy and

wrongful use of marijuana, in violation of Articles 81, and

112a, Uniform Code of Military Justice [hereinafter UCMJ], 10

U.S.C. §§ 881, 912a (2000), respectively. The adjudged and

approved sentence included a bad-conduct discharge, confinement

for 18 months and reduction in grade to E-1. The Air Force

Court of Criminal Appeals affirmed in an unpublished opinion.

United States v. Pipkin, No. ACM 34585, slip op. (A.F. Ct. Crim.

App. June 6, 2002)(per curiam). We granted review on the

following issue:1

WHETHER THE MILITARY JUDGE ERRED BY NOT GRANTING

DEFENSE COUNSEL’S MOTION TO SUPPRESS APPELLANT’S

WRITTEN AND ORAL STATEMENTS TO OSI WHEN OSI DID NOT

TELL THE APPELLANT HE WAS UNDER INVESTIGATION FOR

CONSIPIRACY.

For the reasons that follow, we hold that the military

judge did not err.

FACTS

On July 31, 2000, Air Force Office of Special

Investigations (OSI) special agents (SAs) Hartwell and Ji

interviewed Airman First Class (A1C) Skinner about

 

1

 Argument was heard in this case at the Roger Williams University, Ralph R.

Papitto School of Law, Bristol, Rhode Island, as part of this Court's Project

Outreach. See United States v. Allen, 34 M.J. 228, 229 n.1 (C.M.A. 1992).
United States v. Pipkin, No. 02-0837/AF

3

suspected drug use and distribution. During the interview, A1C

Skinner indicated that he had received money to purchase his

“working stock” of ecstasy from someone named “Shane.” He also

said that “Shane” was his former roommate.

On August 7, 2000, SAs Hartwell and Ji interviewed A1C

Ponder who told them that he had seen A1C Skinner’s stock of

approximately 300 ecstasy pills and that A1C Skinner told him

that “Shane” had provided half of the money to purchase it.

Through information obtained from an informant, the SAs learned

that Appellant, Senior Airman (SrA) Thomas Shane Pipkin, was the

individual referred to as “Shane” by A1C Skinner and A1C Ponder.

As a result, on August 14, 2000, the SAs brought Appellant and

his current roommate, SrA Georgianna in for interviews. While

SAs Hartwell and Ji interviewed Georgianna in one room, SAs

Ferrell and Dejong interviewed Appellant in another.

Before SA Ferrell and SA Dejong began the interview, they

read Appellant his rights under Article 31, UCMJ, 10 U.S.C. §

831 (2000), and, according to testimony from SA Ferrell,

informed him orally that he was being investigated for “use,

possession and distribution of controlled substances,”

violations of Article 112a. SA Ferrell also testified that he

explained to Appellant that “controlled substances means illegal

drugs, and [Appellant] acknowledged that he understood that.”

Appellant subsequently declined counsel, and agreed to answer
United States v. Pipkin, No. 02-0837/AF

4

questions. The SAs did not inform Appellant that they suspected

him of conspiracy to distribute a controlled substance under

Article 81. According to SA Ferrell, the first thing Appellant

was asked was whether he knew why he had been brought in for an

interview. SA Ferrell testified that “[Appellant] said, yes,

that it had to do with his former roommate, Jeff Skinner, and

that it must be about drugs.” Appellant was then asked whether

he had provided money to A1C Skinner for drugs and if he ever

used ecstasy or other illegal drugs. Appellant denied using

illegal drugs and said he loaned A1C Skinner approximately $600

to help him pay some bills. Appellant then agreed to make a

written statement. At this point, Appellant was provided an Air

Force Form 1168,2

 which in block III indicates that Appellant was

advised that he was suspected of “a violation of Article 112a,

UCMJ, 10 U.S.C. § 934 (2000) wrongful use and possession of a

controlled substance.” Although citing to Article 112a, the

form does not cite to Article 81, nor indicate that Appellant

was suspected of distribution of a controlled substance, or

conspiracy to distribute drugs.

While Appellant was writing his statement, the SAs took a

break to confer with SAs Hartwell and Ji, who were interviewing

SrA Georgianna. SrA Georgianna had told the SAs that Appellant

once told him that he had given approximately $2,000 to A1C

 

2

 This form is entitled, “STATEMENT OF SUSPECT/WITNESS/COMPLAINANT.”
United States v. Pipkin, No. 02-0837/AF

5

Skinner for the purpose of buying ecstasy. According to SrA

Georgianna, Appellant told him the ecstasy would be sold and a

profit would be returned to Appellant. The SAs then returned to

the interview room and confronted Appellant with the information

obtained from SrA Georgianna. Once confronted, Appellant

confirmed SrA Georgianna’s version of events and admitted that

he knew that A1C Skinner was going to buy ecstasy with the money

he loaned him. He also admitted that he anticipated he would

get his money back with an undisclosed profit. However,

Appellant said he had given A1C Skinner only $1,500 and not

$2,000. Appellant eventually executed a written statement to

this effect.

Appellant was subsequently charged with use of marijuana,

use of ecstasy and conspiracy to distribute ecstasy. At trial,

defense counsel moved to suppress Appellant’s oral and written

statements regarding the conspiracy. Counsel argued that the

SAs had provided Appellant with a defective Article 31 rights

advisement when they failed to inform him that, in addition to

being suspected of Article 112a, he was also suspected of

violating Article 81. The military judge denied the motion and

found, inter alia, that Appellant was fully oriented to the

nature of the allegations against him. He also found that

Appellant knew of A1C Skinner’s prior interview and “volunteered

that he was there partially . . . as a result of his
United States v. Pipkin, No. 02-0837/AF

6

acquaintance with Airman First Class Skinner, and had verbally

been told that he was suspected of distributing drugs.”

Thereafter, the statement was admitted on the charge of

conspiracy.

DISCUSSION

We review the denial of a motion to suppress a confession

for an abuse of discretion, and we leave a military judge’s

findings of fact undisturbed unless they are clearly erroneous.

United States v. Simpson, 54 M.J. 281, 283 (C.A.A.F. 2000).

Article 31(b) provides:

No person subject to this chapter may 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.

(Emphasis added.) This is not the first time that this Court has

examined the statutory language of this provision. In United

States v. Rice, 11 C.M.A. 524, 526, 29 C.M.R. 340, 342 (1960),

we concluded that “[i]t is not necessary to spell out the

details of his connection with the matter under inquiry with

technical nicety.” Moreover,

[a]dvice as to the nature of the charge need not be

spelled out with the particularity of a legally

sufficient specification; it is enough if, from what

is said and done, the accused knows the general nature

of the charge. A partial advice, considered in light

of the surrounding circumstances and the manifest
United States v. Pipkin, No. 02-0837/AF

7

knowledge of the accused, can be sufficient to satisfy

this requirement of Article 31[.]

United States v. Davis, 8 C.M.A. 196, 198, 24 C.M.R. 8, 10

(1957)(citations omitted). In our most recent case on the issue

we went further and concluded that:

[i]t is not necessary that an accused or suspect be

advised of each and every possible charge under

investigation, nor that the advice include the most

serious or any lesser-included charges being

investigated. Nevertheless, the accused or suspect

must be informed of the general nature of the

allegation, to include the area of suspicion that

focuses the person toward the circumstances

surrounding the event.

Simpson, 54 M.J. at 284.

In Simpson, OSI agents learned of allegations against the

appellant that he had sexually abused his 9-year-old neighbor.

The agents obtained search warrants that described the offenses

under investigation as failure to obey an order, assault,

indecent acts or liberties with a child, sodomy and rape.

Simpson was interviewed, and during his Article 31(b) rights

advisement, he was told that the matter for which he was being

investigated was indecent acts or liberties with a child.

Having lost the motion to suppress his confession at trial,

Simpson contended on appeal that the agent’s failure to advise

him of the known offenses in addition to indecent acts with a

child rendered the rights advisement deficient. This Court

alluded to possible factors that might be considered in
United States v. Pipkin, No. 02-0837/AF

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determining whether the nature-of-the-accusation requirement was

satisfied. They included: whether the conduct is part of a

continuous sequence of events; whether the conduct was within

the frame of reference supplied by the warnings; or whether the

interrogator had previous knowledge of the unwarned offenses.

Id. The factors cited are not exhaustive, but are “among the

possible factors” to be considered. “[N]ecessarily, in

questions of this type, each case must turn on its own facts.”

United States v. Nitschke, 12 C.M.A. 489, 492, 31 C.M.R. 75, 78

(1961). Other factors might also bear on the application of

Article 31(b), including, as in this case, the complexity of the

offense at issue.

In this case, the military judge found that Appellant knew

he was being interrogated, in part, because of his relationship

to A1C Skinner. He also found that initially, Appellant

characterized the money he gave A1C Skinner as a loan for debts

and only later admitted that it was for the purchase of drugs.

This particular finding suggests that Appellant was aware that

the interview was going to focus on the financial aspect of his

relationship with A1C Skinner. Finally, the military judge

found that Appellant had been verbally informed that he was

suspected of drug distribution. Therefore, the area of

suspicion on which Appellant was focused at the time of the

warnings, and before any admissions, was A1C Skinner's suspected
United States v. Pipkin, No. 02-0837/AF

9

drug distribution and his own suspected complicity in the

distribution. At the outset of the interview, the SAs were not

required to identify each possible theory of accomplice

liability a prosecutor might later pursue. “The precision and

expertise of an attorney in informing an accused of the nature

of the accusation under Article 31 is not required.” Simpson,

54 M.J. at 284.

That being said, we pause for a moment to consider the

discrepancy between SA Ferrell’s testimony that Appellant was

orally warned that he was suspected of use, possession, and

distribution of controlled substances, and the Air Force Form

1168, which indicates only that the Appellant was informed that

he was suspected of use and possession of a controlled

substance. Clearly, a warning on distribution will better

orient a suspect to a suspicion of conspiracy to distribute than

a warning on use and possession alone. The Government has the

burden of establishing compliance with rights warning

requirements by a preponderance of the evidence. Id. at 283.

The military judge concluded that the Government had met its

burden in this case. The discrepancy between the oral warning

and rights advisement form is not enough to find the military

judge’s findings clearly erroneous. Appellant’s response to

investigators, that the interview had to do with his former

roommate (and conspirator) and drugs, makes it clear that he was
United States v. Pipkin, No. 02-0837/AF

10

oriented to the nature of the accusation. Thus, we hold that

the charged conspiracy was within the frame of reference

supplied by the warnings for the purposes of Article 31.

CONCLUSION

The decision of the United States Air Force Court of

Criminal Appeals is affirmed.