UNITED STATES, Appellee 

v. 

Mark S. Brisbane, Staff Sergeant 

U.S. Air Force, Appellant 

No. 05-0136 

Crim. App. No. 35384 

United States Court of Appeals for the Armed Forces 

Argued November 2, 2005 

Decided April 28, 2006 

BAKER, J., delivered the opinion of the Court, in which GIERKE, C.J., 

and CRAWFORD, EFFRON, and ERDMANN, JJ., joined. 

Counsel 

For Appellant: Major Anniece Barber (argued); Lieutenant 

Colonel Carlos L. McDade, Major Andrew S. Williams, and Major 

Sandra K. Whittington (on brief); Major Terry L. McElyea. 

For Appellee: Captain Jin-Hwa L. Frazier (argued); Lieutenant 

Colonel Robert V. Combs and Lieutenant Colonel Gary F. Spencer

(on brief); Major Kevin P. Steins. 

Military Judge: James L. Flanary 

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION. 
United States v. Brisbane, No. 05-0136/AF 

2 

Judge BAKER delivered the opinion of the Court. 

Appellant was tried by general court-martial before a 

military judge alone. Contrary to his pleas, he was convicted 

of one specification of indecent acts and one specification of 

wrongful possession of visual depictions of nude minors, both 

offenses in violation of Article 134, Uniform Code of Military 

Justice (UCMJ), 10 U.S.C. § 934 (2000). Appellant was sentenced 

to a bad-conduct discharge, confinement for twelve months, and 

reduction to E-1. The convening authority approved only nine 

months of confinement and waived automatic forfeitures but 

otherwise approved the sentence as adjudged. The Air Force 

Court of Criminal Appeals found no error and affirmed. United 

States v. Brisbane, No. ACM 35384 (A.F. Ct. Crim. App. Nov. 5, 

2004).1 

SUMMARY 

 For the reasons stated below, we conclude, based on the 

facts in this case, that Ms. Lynch, the Family Advocacy 

 

1

 We granted review of the following issues: 

I. WHETHER THE MILITARY JUDGE ERRED IN FAILING TO SUPPRESS 

APPELLANT’S STATEMENTS TO THE FAMILY ADVOCACY PROVIDER WHERE 

THOSE STATEMENTS WERE MADE IN RESPONSE TO QUESTIONS POSED 

WITHOUT AN ARTICLE 31, UNIFORM CODE OF MILITARY JUSTICE, RIGHTS 

ADVISEMENT. 

II. IF SO, WHETHER THE MILITARY JUDGE ERRED IN FAILING TO SUPPRESS 

ALL EVIDENCE DERIVED FROM APPELLANT’S STATEMENT TO THE FAMILY 

ADVOCACY PROVIDER BECAUSE AFOSI DID NOT GIVE APPELLANT A 

CLEANSING WARNING PRIOR TO ITS INTERROGATION OF APPELLANT. 

III. DID THE PROSECUTOR PRESENT LEGALLY SUFFICIENT EVIDENCE THAT 

APPELLANT’S POSSESSION OF VISUAL DEPICTIONS OF NUDE MINORS WAS 

SERVICE-DISCREDITING OR PREJUDICIAL TO GOOD ORDER AND 

DISCIPLINE? 
United States v. Brisbane, No. 05-0136/AF 

3 

treatment manager who initially questioned Appellant, was acting 

in furtherance of a law enforcement investigation. As a result, 

Appellant was entitled to a rights advisement under Article 31, 

UCMJ, 10 U.S.C. § 831 (2000). However, we find the admission of 

Appellant’s statements to Ms. Lynch harmless beyond a reasonable 

doubt because Appellant repeated the same information, and more, 

to the Air Force Office of Special Investigations (AFOSI) six 

weeks later, and these statements were admissible. These 

subsequent statements were not derivative of Appellant’s earlier 

statements to Ms. Lynch; they were voluntary, and Appellant has 

not demonstrated that AFOSI engaged in the type of “questionfirst” tactic addressed by the Supreme Court in Missouri v. 

Seibert, 542 U.S. 600 (2004). With respect to Issue III, we 

conclude that the evidence was legally sufficient. Based on the 

circumstances of Appellant’s case, any rational factfinder could 

find beyond a reasonable doubt that Appellant’s possession of 

child pornography was service-discrediting or prejudicial to 

good-order and discipline. We affirm. 

BACKGROUND 

On or about June 1, 2001, Appellant showed his eight-yearold stepdaughter, S, pictures of naked adult women on his 

computer in response to her question about what she would look 

like when she was older. S meant the question in terms of what 

she would wear when she graduated. Appellant misunderstood the 
United States v. Brisbane, No. 05-0136/AF 

4 

question, as he told one of his colleagues, to be how would S 

develop physically. At the time, Appellant’s wife was on 

vacation in Hawaii. S subsequently told a neighbor about the 

pictures, and the neighbor called Family Advocacy to report the 

incident. 

After Family Advocacy received this “referral,” the Child 

Sexual Maltreatment Response Team (CSMRT)2 convened. Ms. Lynch, 

the Family Advocacy treatment manager and a civilian Department 

of Defense employee, testified that the participants agreed that 

she, Ms. Lynch, would conduct the initial interviews of 

Appellant and S.3

 At trial, Ms. Lynch stated that the CSMRT 

 

2

 

The Child Sexual Maltreatment Response Team: Consists of the FAO 

[Family Advocacy Officer], the AFOSI agent, the JA [Judge 

Advocate], and optional representatives from other agencies that 

have child protection responsibilities. This multidisciplinary 

team plans investigations of suspected abuse, simultaneously 

minimizing the number of interviews children undergo while 

effectively gathering pertinent information. CSMRT members can 

also be members of the FMCMT [Family Maltreatment Case Management 

Team]. The CSMRT takes coordinated action within 72 hours of any 

report of child sexual abuse without waiting for a scheduled 

meeting. 

Dep’t of the Air Force, Instr. 40-301, Medical Command, Family Advocacy para. 

3.2.1. (July 22, 1994) [hereinafter AFI 40-301]. 

3

 On cross-examination, trial defense counsel and Ms. Lynch had the following 

exchange: 

Q: Okay. So, you start out, and you get a referral, and you suspect 

Staff Sergeant Brisbane of an offense? 

A: Yes. 

Q: You notify legal and OSI, and your three organizations meet? 

A: Yes. 

Q: And, all together, that committee decides that you are going to 

conduct the interview with Staff Sergeant Brisbane? 

A: Yes. 

Q: And, it is even further [sic] based on how far this goes, that 

you should stop and call OSI, or just proceed? 
United States v. Brisbane, No. 05-0136/AF 

5 

decided that she would go first “[t]o determine if we had enough 

information to proceed.” Upon examination by the court, Ms. 

Lynch responded in the affirmative when the military judge 

inquired whether she was “normally the one who is the first [ ] 

to conduct interviews after a CSMRT meeting.” 

On June 1, 2001, Ms. Lynch interviewed S and then 

Appellant. According to Ms. Lynch, she explained to Appellant 

that he had “limited confidentiality” during their interview. 

Ms. Lynch did not give Appellant an Article 31 rights 

advisement. In response to questions from the trial counsel, 

Ms. Lynch stated that she had never given anyone an Article 31 

rights advisement or Miranda warnings and that she had not 

received any training in the matter because that was “just not 

part of [her] job.” Ms. Lynch testified at trial that Appellant 

was “very cooperative” during the interview and that “[h]e 

seemed relaxed.” Ms. Lynch’s first question to Appellant was: 

“Did you do it?” Ms. Lynch testified that Appellant told her 

that his stepdaughter had been asking questions about her body. 

He then stated that in response he had downloaded some pictures 

from an adult site on the Internet and had shown them to her. 

After Ms. Lynch completed her interviews, the information 

was forwarded to the Family Maltreatment Case Management Team 

 A: Yes. 

Q: Okay, and you made the decision just to proceed? 

A: Yes. 
United States v. Brisbane, No. 05-0136/AF 

6 

(FMCMT).4 According to Special Agent Corey Allison, AFOSI 

decided not to pursue the matter at that time because it “lacked 

credible information to open a substantive investigation.” He 

testified that the matter was reported as a “zero.” Special 

Agent Allison gave the following explanation of a “zero”: “It 

means informational file. It is documented and an inquiry is to 

be documented for future reference, if necessary.” After 

categorizing the file as a “zero,” Special Agent Allison, 

according to procedure, forwarded the file to a “forensic 

science consultant.”5

 Later, the forensic consultants 

recommended that AFOSI revisit the case. 

On June 27, 2001, the FMCMT met. According to an e-mail 

dated July 6, 2001, from Sharon K. Burnett, the AFOSI Detachment 

Commander, additional information was provided during this 

meeting “which raised some concerns.” At trial, defense counsel 

sought to establish through cross-examination that it was Ms. 

Lynch’s information that prompted AFOSI to open an 

investigation. However, Special Agent Allison maintained that 

 

4

 “The FMCMT consists of medical, investigative, and other appropriate base 

and community agency representatives as determined by the FAC [Family 

Advocacy Committee].” AFI 40-301, para. 2.2.3. “The [FMCMT]: . . . .In 

cases of child sexual abuse: Ensures the child undergoes as few interviews 

as possible . . . . Monitors the child’s safety . . . . Prescribes a sexual 

abuse treatment program for child sexual abuse offenders who are on active 

duty.” Id. at para. 2.2.3.1. 

5

 The record does not provide any additional information with regard to these 

forensic consultants, i.e., their responsibilities, duty station(s), etc. 
United States v. Brisbane, No. 05-0136/AF 

7 

it was the recommendation by the forensic science consultant 

that AFOSI revisit the case that prompted the investigation. 

On July 13, 2001, Special Agents Allison and Chris Winters 

interviewed Appellant in their office.6

 Special Agent Allison 

testified that they “read [Appellant] his rights, [and] he 

agreed to speak to us without the presence of an attorney.” 

Special Agent Allison characterized Appellant’s demeanor as 

“calm and forthright.” Appellant reduced the content of his 

interview with AFOSI to a signed statement in which he admitted 

showing nude adult pictures to his stepdaughter. 

After concluding the interview, Special Agent Allison and 

Jim Scott, a member of the Joint Drug Enforcement Team, 

accompanied Appellant back to his government quarters where he 

agreed to show them the pictures he had shown his stepdaughter. 

After viewing the pictures, Special Agent Allison asked for 

Appellant’s consent to take possession of the computer for 

analysis. However, after giving consent, but before Special 

Agent Allison took possession of the computer, Appellant 

produced on the screen “what looked like thumbnail pictures of 

naked children.” According to Special Agent Allison, 

Appellant’s demeanor at that moment “changed considerably.” “He 

started to shake, visibly sweating, turned red, turned around 

 

6

 The record does not indicate the date on which AFOSI officially opened its 

investigation, whether it was July 13, 2001, or some prior day. 
United States v. Brisbane, No. 05-0136/AF 

8 

stammering,” telling the Agent that he “‘thought it was okay to 

have pictures of child pornography as long as it was for 

educational purposes.’” Later that day, Appellant signed a 

confession relating to the child pornography found on his 

computer. 

At some point after initiation of the investigation but 

before trial, Appellant had a conversation with his neighbor, 

Staff Sergeant (SSGT) Justin Gilbert, concerning the pictures 

that Appellant had downloaded and his subsequent interaction 

with his stepdaughter regarding the pictures. According to SSGT 

Gilbert, Appellant indicated that he had downloaded some adult 

pictures in order to answer his stepdaughter’s questions about 

how she would develop physically as she got older. Appellant 

further explained to SSGT Gilbert that the pictures were 

”tasteful” and were “kind of like you’d find of a girl on the 

beach.” Appellant went on to describe how the neighbors had 

heard of this and had reported him to the authorities who in 

turn had confiscated his computer. Also according to SSGT 

Gilbert, Appellant stated that “the worst thing that they were 

going to get him on was that he only had seven pictures of kids 

on his computer.” At trial SSGT Gilbert testified that he found 

this conversation “kind of disturbing” to the point that he 

contacted AFOSI to inquire whether any of the pictures included 
United States v. Brisbane, No. 05-0136/AF 

9 

images of his children. He learned that none of the images 

included his children. 

Appellant challenges his conviction before this Court on 

the grounds that: (1) the military judge abused his discretion 

when he failed to suppress Appellant’s statements to the Family 

Advocacy provider; (2) his subsequent interrogation by 

Government agents was unconstitutional in light of the Supreme 

Court’s recent decision in Missouri v. Seibert, (3) the absence 

of a cleansing warning by AFOSI tainted his subsequent 

statements to them, even though those statements were preceded 

by a rights warning; and (4) the Government did not present 

sufficient evidence on the issues of prejudice to good order and 

service-discrediting conduct regarding his possession of visual 

depictions of nude minors. 

The Government responds that Appellant was not entitled to 

a rights advisement under Article 31 because the Family Advocacy 

provider was not working as a law enforcement agent when she 

interviewed Appellant, and therefore, she was not subject to the 

UCMJ. The Government further argues that Appellant’s subsequent 

confession to AFOSI was voluntary under all the circumstances 

and therefore not tainted by his previous admissions to Ms. 

Lynch. Finally, the Government argues that the prosecution was 

not required to prove actual harm to the service’s reputation to 

support Appellant’s conviction for possession of visual 
United States v. Brisbane, No. 05-0136/AF 

10 

depictions of nude minors. 

DISCUSSION 

Appellant’s Statements to the Family Advocacy Provider

“When there is a motion to suppress a statement on the 

ground that rights’ warnings were not given, [this Court] 

review[s] the military judge’s findings of fact on a clearlyerroneous standard, and . . . conclusions of law de novo.” 

United States v. Swift, 53 M.J. 439, 446 (C.A.A.F. 2000) (citing 

United States v. Ayala, 43 M.J. 296, 298 (C.A.A.F. 1995)); 

United States v. Moses, 45 M.J. 132, 135 (C.A.A.F. 1996)). 

Article 31(b) reads: 

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. 

10 U.S.C. § 831(b) (2000). 

Resolution of the first issue in this case turns on whether 

Ms. Lynch, the Family Advocacy treatment manager, was a “person 

subject to the code” for the purposes of Article 31(b) and 

Military Rule of Evidence (M.R.E.) 305(c). Under M.R.E. 

305(b)(1), such a person “includes a person acting as a knowing 

agent of a military unit or of a person subject to the code.” 

We have identified: 
United States v. Brisbane, No. 05-0136/AF 

11 

at least two instances when civilian investigators 

working in conjunction with military officials must 

comply with Article 31: “(1) When the scope and 

character of the cooperative efforts demonstrate ‘that 

the two investigations merged into an indivisible 

entity,’ and (2) when the civilian investigator acts 

in furtherance of any military investigation, or in 

any sense as an instrument of the military.’” 

United States v. Rodriguez, 60 M.J. 239, 252 (C.A.A.F. 2004) 

(quoting United States v. Penn, 18 C.M.A. 194, 199, 39 C.M.R. 

194, 199 (1969) (citations omitted)); see also United States v. 

Lonetree, 35 M.J. 396 (C.M.A. 1992); United States v. Quillen, 

27 M.J. 312, 314 (C.M.A. 1988). 

This Court most recently considered the issue of social 

workers and Article 31 in United States v. Raymond, 38 M.J. 136 

(C.M.A. 1993). In that case, this Court held that a psychiatric 

social worker was not acting as an investigative agent of law 

enforcement where the appellant arrived without any commandreferral document and the social worker had no contact with the 

command before or after the appellant’s walk-in appointment. 

Id. at 138. 

The Court in Raymond also considered the effect of an Army 

regulation dealing with child abuse: “It is not a law 

enforcement program; it is a community services program. The 

cooperative effort required by the regulation does not render 

every member of the military community a criminal investigator 

or investigative agent . . . .” Id. at 138-39. Finally, this 
United States v. Brisbane, No. 05-0136/AF 

12 

Court noted in Raymond that “there is no historical duty of 

health professions engaged in treatment to warn based on the 

purpose behind Article 31(b).” Id. at 140. 

In United States v. Moreno, this Court considered the 

admissibility of statements made to a State of Texas Department 

of Human Services investigator-social worker. 36 M.J. 107, 109 

(C.M.A. 1992). In that case, this Court focused on whether the 

social worker’s investigation merged with the military 

investigation or whether she was acting as an agent of military 

investigators. Id. at 115. The Court answered both of these 

questions in the negative based on three findings: (1) lack of 

“communication or coordination between the two camps”; (2) the 

social worker “remained in the mode of social worker”; and (3) 

the social worker pursued her own “limited, state objectives” 

and cooperated with military authorities “only where necessary 

to effectuate her own goals.” Id. With regard to the first 

finding, this Court noted, specifically, that the social worker 

“did not in any way coordinate [her] meeting [with the 

appellant] with military police or prosecutorial authorities or 

notify them that she intended to interview appellant.” Id. 

We now turn to the facts in this case. The military judge 

found that Ms. Lynch’s interviews were “not for any law 

enforcement purpose.” Rather, in the military judge’s view, Ms. 

Lynch’s “primary purpose in conducting the interview was for 
United States v. Brisbane, No. 05-0136/AF 

13 

treatment purposes.” The Air Force court concluded that the 

“clinical social worker was not ‘functioning as a mere conduit 

for military authorities’ nor was there evidence of any 

understanding between her and military authorities ‘designed to 

subvert the purposes of Article 31.’” Brisbane, No. ACM 35384, 

slip op. at 1. As such, the Air Force court found that, in her 

independent role, Ms. Lynch was not obligated to advise 

Appellant in accordance with Article 31(b). Id. at 1-2. 

AFOSI and the Family Advocacy treatment manager are 

integral parts of the CSMRT. They work closely on initial 

assessments of complaints. Consequently, the initial complaint 

that Appellant was suspected of having acted inappropriately 

with his stepdaughter was assessed at a CSMRT meeting. The 

CSMRT decided to have Ms. Lynch proceed first with the 

interviews of Appellant and his stepdaughter to determine 

whether they “had enough information to proceed.” According to 

Ms. Lynch, the CSMRT made this decision “all together.” Once 

Ms. Lynch obtained Appellant’s admissions, she reported them to 

the FMCMT. Although the AFOSI representatives on the FMCMT 

initially decided not to pursue the matter, they were in receipt 

of Ms. Lynch’s information. Finally, despite stating that her 

role in questioning Appellant was to provide treatment, Ms. 

Lynch also stated that she was not treating Appellant for any 
United States v. Brisbane, No. 05-0136/AF 

14 

condition.7 These facts render the military judge’s finding that 

Ms. Lynch “had not been approached by anyone in the Air Force 

command structure or by law enforcement personnel in an attempt 

to enlist her aid in collecting information to prosecute the 

case” untenable. Furthermore, while there was no direct 

evidence of an understanding between Ms. Lynch and military 

authorities “‘designed to subvert the purposes of Article 31,’” 

this is not the test for whether the UCMJ applies. Brisbane, 

No. ACM 35384, slip op. at 1 (quoting United States v. Moreno, 

36 M.J. 107, 117 (C.M.A. 1992)). Nor is the test an issue of 

 

7

 On cross-examination, trial defense counsel and Ms. Lynch had the following 

exchange: 

Q: Ms. Lynch, have you ever provided treatment to Staff Sergeant 

Brisbane? 

A: Yes. 

Q: You’ve provided him with treatment? 

A: I’m not sure of your definition of “provided treatment,” but I’ve 

provided him counseling. 

Q: Okay. The question was simply whether you’ve given him treatment 

within your definition? 

A: Yes. 

Q: Isn’t it that you just recently said that you were not there for 

treatment in our earlier interviews? 

A: I don’t recall that. 

Q: Okay. Weren’t you there actually to kind of monitor how Staff 

Sergeant Brisbane was dealing with this situation as he came closer to 

court? 

A: Yes. 

Q: Okay. So, what kind of treatment did you provide? 

A: We did more to monitor him, like you said, more of a fit for duty 

assessment, monitored depression, anxiety, and how he was coping with 

the stress. 

Q: Okay. So, you were basically meeting with him to see how he was 

doing? 

A: Yes. 

Q: Is there any condition for which you were treating him? 

A: No. 

Q: Ever? 

A: No. 
United States v. Brisbane, No. 05-0136/AF 

15 

the questioner’s “primary purpose.” Rather, as noted in 

Rodriguez and discussed above, this Court has identified at 

least two instances when civilians working in conjunction with 

military officials must comply with Article 31. See Rodriguez, 

60 M.J. at 252 (quoting Penn, 18 C.M.A. at 199, 39 C.M.R. at 199 

(1969) (citations omitted). In this case, Ms. Lynch acted in 

furtherance of a military investigation. It does not matter 

that her actions in this regard were not deliberately aimed at 

subverting Appellant’s rights. Nor does it matter what her 

“primary purpose” might have been.8 

We also distinguish this case from Raymond and Moreno. 

Unlike the situation in Raymond, Appellant’s command directed 

him to see Ms. Lynch. Furthermore, Ms. Lynch was in regular 

contact, both before and after her interview with Appellant, 

with members of the military law enforcement community. Cf.

Raymond, 38 M.J. at 139; Moreno, 36 M.J. at 115. Finally, Ms. 

Lynch was fully aware of Appellant’s prior contact (or lack 

 

8

 The parties do not argue that Ms. Lynch was providing emergency medical 

treatment, cf. United States v. Moore, 32 M.J. 56, 60 (C.M.A. 1991) (finding 

that a psychiatric nurse who provided appellant with emergency medical 

treatment at his request was acting “only in a legitimate medical capacity” 

when she questioned him about his suspected sexual abuse of his 

stepdaughters), nor did the need to ask incriminating questions arise during 

otherwise routine medical procedures. See United States v. Fisher, 21 C.M.A. 

223, 225, 44 C.M.R. 277, 279 (1972) (“A medical doctor who questions an 

individual solely to obtain information upon which to predicate a diagnosis, 

so that he can prescribe appropriate medical treatment or care for the 

individual, is not performing an investigative or disciplinary function; 

neither is he engaged in perfecting a criminal case against the individual. 

His questioning of the accused is not, therefore, within the reach of Article 

31.”). We agree that these cases are inapplicable to the facts of this case. 
United States v. Brisbane, No. 05-0136/AF 

16 

thereof) with AFOSI in this case. Cf. Raymond, 38 M.J. at 138; 

Moreno, 36 M.J. at 109. As noted, it was a team decision, made 

by the members of the CSMRT, which included a representative 

from AFOSI, that Ms. Lynch would conduct the first interview. 

Although we note that the “cooperative effort” required by 

AFI 40-301 in this case “does not render every member of the 

military community a criminal investigator or investigative 

agent,” Ms. Lynch’s actions in this case were more akin to an 

investigative agent than a social worker. Raymond, 38 M.J. at 

138-39. On cross-examination, Ms. Lynch stated that the first 

thing she asked appellant when he arrived for his interview was 

“[d]id you do it?” Cf. United States v. Swift, 53 M.J. 439, 447 

(C.A.A.F. 2000) (holding that the accused’s supervisor, a 

military criminal investigator, should have advised Swift of his 

rights when he demanded that he respond to certain 

“accusations”). In addition, Ms. Lynch stated that she did not 

in fact treat Appellant for any condition. 

We conclude that the record does not support the military 

judge’s findings that Ms. Lynch was not acting “for any law 

enforcement purpose,” but rather was engaged in treating 

Appellant. In our view, the record supports the contrary 

conclusion that Ms. Lynch was acting as an “investigative agent 

of law enforcement,” by virtue of her close coordination with 

base legal and investigative personnel. Raymond, 38 M.J. at 
United States v. Brisbane, No. 05-0136/AF 

17 

136. Therefore, as a threshold matter, Ms. Lynch was a “person 

subject to the code” for the purposes of Article 31(b) and 

M.R.E. 305(c). The next question we must consider is whether 

the other requirements of Article 31 were met such that 

Appellant was entitled to a rights advisement. The military 

judge did not make findings in this regard because he determined 

that Ms. Lynch did not meet the threshold requirement of being a 

person subject to the code. 

As we noted in United States v. Cohen, 63 M.J. 45, 49 

(C.A.A.F. 2006), Article 31(b) contains four textual predicates. 

First, the article applies to persons subject to the UCMJ. 

Second and third, the article applies to interrogation or 

requests for any statements from “an accused or a person 

suspected of an offense.” Fourth, the right extends to 

statements regarding the offense(s) of which the person 

questioned is accused or suspected. 

In Cohen, we sought to provide a context for this Court’s 

decisions with regard to the second and third textual 

predicates. See id. at 49-50. However, unlike Cohen, this case 

does not present any question as to whether Ms. Lynch was 

requesting a statement from a person she suspected of an 

offense. See United States v. Bradley, 51 M.J. 437, 441 

(C.A.A.F. 1999). “[A]ssessing all the facts and circumstances 

at the time of the interview,” it is clear to us that Ms. Lynch 
United States v. Brisbane, No. 05-0136/AF 

18 

was acting in an official law enforcement or disciplinary 

capacity. United States v. Swift, 53 M.J. at 446 (quoting 

United States v. Good, 32 M.J. 105, 108 (C.A.A.F. 1991)). As 

noted earlier, Ms. Lynch, in conjunction with the law 

enforcement representatives on the CSMRT, decided to conduct the 

first interview of Appellant. According to her testimony, the 

reason for her interview was to decide if they had sufficient 

evidence to proceed, ostensibly, with a case against Appellant. 

In keeping with this, the first question she asked Appellant 

during their meeting was whether he committed the offense. 

Finally, Ms. Lynch admitted that she never provided Appellant 

with any treatment. Unlike Cohen, where the inspector general 

acted independently, consulting only with legal personnel on an 

ad hoc basis, all of Ms. Lynch’s actions were coordinated with 

AFOSI and other members of the CSMRT involved in law enforcement 

activities. 

With respect to Article 31(b)’s third textual predicate, 

this Court applies an objective test. “Whether a person is a 

suspect is an objective question that is answered by considering 

all the facts and circumstances at the time of the interview to 

determine whether the military questioner believed or reasonably 

should have believed that the servicemember committed an 

offense.” Swift, 53 M.J. at 446; Good, 32 M.J. at 108. During 
United States v. Brisbane, No. 05-0136/AF 

19 

her testimony, Ms. Lynch stated that she suspected Appellant of 

an offense at their first meeting. 

We conclude that the remaining requirements of Article 

31(b) were met in this case. As a result, Ms. Lynch should have 

informed Appellant of his Article 31 rights prior to the 

interview. Even though Ms. Lynch advised Appellant that his 

statements were not confidential, and he spoke to her 

voluntarily, this does not otherwise negate the requirements of 

Article 31(b). See M.R.E. 304(a), M.R.E. 305(a). Therefore, 

Appellant’s statements to Ms. Lynch, the Family Advocacy 

treatment manager, should have been suppressed by the military 

judge and could not be used to support his convictions. 

However, this does not resolve the question of whether 

Appellant’s subsequent statements to AFOSI were admissible. Nor 

does it answer the question of whether the pictures found on 

Appellant’s computer should have been admitted as the basis for 

the second specification of Charge I, wrongful and knowing 

possession of visual depictions of nude minors. 

Appellant’s Statements to AFOSI

With regard to Appellant’s second and third challenges, we 

must decide whether AFOSI’s subsequent interrogation of 

Appellant was unconstitutional in light of the Supreme Court’s 

recent decision in Missouri v. Seibert, and whether the absence 
United States v. Brisbane, No. 05-0136/AF 

20 

of a cleansing warning tainted Appellant’s statements, even 

though those statements were preceded by a full rights warning. 

The military judge did not make any findings with regard to 

whether Appellant’s subsequent statements to AFOSI were 

voluntary because Appellant only challenged their admission as 

derivative evidence at trial. In light of its conclusion that 

Ms. Lynch acted independently, the Air Force court found the 

issue of whether AFOSI properly questioned Appellant moot. 

Brisbane, No. ACM 35384, slip op. at 2. This Court has looked 

to the Supreme Court’s decision in Oregon v. Elstad, 470 U.S. 

298 (1985), which distinguished between two classes of 

involuntary confessions, for guidance on evaluating the 

admissibility of a confession obtained subsequent to one that is 

deemed illegally obtained: 

[W]here the earlier confession was “involuntary” only 

because the suspect had not been properly warned of 

his panoply of rights to silence and to counsel, the 

voluntariness of the second confession is determined 

by the totality of the circumstances. The earlier, 

unwarned statement is a factor in this total picture, 

but it does not presumptively taint the subsequent 

confession. 

 

United States v. Cuento, 60 M.J. 106, 109 (C.A.A.F. 2004) 

(quoting United States v. Phillips, 32 M.J. 76, 79 (C.M.A. 

1991)). One of the circumstances this Court takes into account 
United States v. Brisbane, No. 05-0136/AF 

21 

is the presence of a “cleansing warning,”9 however, the absence 

of such is not fatal to a finding of voluntariness. Cuento, 60 

M.J. at 109. 

The classic listing of the other factors used in a 

voluntariness analysis is found in the Supreme Court’s decision 

in Schneckloth v. Bustamonte: 

In determining whether a defendant’s will was overborne in 

a particular case, the Court has assessed the totality of 

all the surrounding circumstances -- both the 

characteristics of the accused and the details of the 

interrogation. Some of the factors taken into account have 

included the youth of the accused, his lack of education, 

or his low intelligence, the lack of any advice to the 

accused of his constitutional right, the length of 

detention, the repeated and prolonged nature of the 

questioning, and the use of physical punishment such as the 

deprivation of food or sleep. 

412 U.S. 218, 226 (1973) (citations omitted). 

In his brief, Appellant also argues that the Supreme 

Court’s recent decision in Seibert applies to the facts of this 

case. In Seibert, police arrested the respondent following the 

deaths of the respondent’s son and another teenager. 542 U.S. 

at 604. At the suppression hearing, the interviewing officer 

admitted that he consciously withheld Miranda warnings, “thus 

resorting to an interrogation technique he had been taught: 

question first, then give the warnings, and then repeat the 

question ‘until I get the answer that she’s already provided 

 

9

 A cleansing warning is one in which the “accused [is] warned that a previous 

statement cannot be used against him.” Cuento, 60 M.J. at 109. 
United States v. Brisbane, No. 05-0136/AF 

22 

once.’” Id. at 605-06. In Seibert, the Court invalidated the 

“police protocol” described above that called for elicitation of 

an unwarned confession, followed by rights warnings, and 

elicitation of the same confession. 542 U.S. at 604. Because 

the officer in Seibert was very candid about the procedure, the 

Court noted that “the focus is on facts apart from intent that 

show the question-first tactic at work.” Id. at 616 n.6. 

According to Appellant, the base legal office and AFOSI 

similarly engaged in a purposeful plan to evade his 

constitutional rights by arranging for Ms. Lynch to interview 

him first, without a proper rights advisement. Cf. Seibert, 542 

U.S. at 605-06. Then, Appellant argues, AFOSI sought to 

interrogate him with the benefit of his earlier unwarned 

statements to Ms. Lynch. 

Although Seibert altered the inquiry under Elstad, the 

facts in Appellant’s case are distinguishable. First, in 

contrast to Seibert, the two interviews in Appellant’s case 

occurred almost six weeks apart. Further, although there was 

coordination between AFOSI and the Family Advocacy staff, the 

record does not demonstrate a deliberate effort aimed at 

securing an unwarned confession for later use in securing a 

warned confession. Cf. United States v. Phillips, 32 M.J. 76 

(C.M.A. 1991) (suppressing appellant’s statements where this 

Court found that the Naval Investigative Service special agent 
United States v. Brisbane, No. 05-0136/AF 

23 

used earlier, unwarned interviews and statements as a starting 

point for his interrogation). According to Special Agent 

Allison, AFOSI did receive information about the incident 

through the FMCMT. However, Special Agent Allison denied that 

Ms. Lynch’s June 1, 2001, interview was the reason that AFOSI 

pursued its investigation. Rather, AFOSI’s decision to 

interview Appellant was based on a forensic consultant’s 

recommendation that AFOSI pursue an investigation. Seibert does 

not ban coordination among individuals. Rather, it is aimed at 

a very specific, deliberate practice of successive 

interrogations to secure an admissible confession. What 

happened in this case does not rise to that level. 

Because the evidence in this case does not support a 

conclusion that Family Advocacy and AFOSI engaged in the type of 

unconstitutional practice prohibited by Seibert, the test for 

whether the second confession is admissible is whether it was 

voluntary under all the circumstances. See Cuento, 60 M.J. at 

109. 

Here, there was no cleansing warning because Special Agent 

Allison and his colleagues did not believe that Appellant was 

entitled to a warning when he first confessed to Ms. Lynch. 

Therefore, our determination of whether Appellant’s second 

confession to Special Agent Allison was voluntary hinges on 

other factors, including those identified in Bustamonte. First, 
United States v. Brisbane, No. 05-0136/AF 

24 

Appellant’s interview with Special Agent Allison occurred almost 

a month and a half after his initial interview with Ms. Lynch. 

This was a substantial amount of time for Appellant to weigh the 

pros and cons of continuing to talk with military authorities 

about showing pictures of nude adult women to his stepdaughter. 

Second, Appellant was a mature, experienced member of the 

military. At the time of the incident, Appellant was a twentyeight-year-old staff sergeant with almost ten years of military 

service. Third, the conditions of Appellant’s second interview 

were not coercive or inhumane. Special Agent Allison testified 

that Appellant was asked to come in and speak with AFOSI about 

an incident involving his daughter. After Appellant waived his 

rights and agreed to give a written statement, Special Agent 

Allison and a colleague followed Appellant back to his house so 

that Appellant could show them the pictures he had shown to his 

stepdaughter. There is nothing to suggest that Appellant’s free 

will was overborne. 

This conclusion is supported by the fact that Appellant did 

not believe that he had done anything criminal in showing 

pictures to his stepdaughter. In his written confession, 

Appellant admits only that his approach was “incorrect.” 

According to Special Agent Allison’s testimony, it was not until 

Appellant brought up pornographic pictures of children on his 

computer that he became nervous. Before that, Special Agent 
United States v. Brisbane, No. 05-0136/AF 

25 

Allison testified that Appellant was “calm.” This comports with 

Ms. Lynch’s description of Appellant’s demeanor during her 

initial interview with him. 

Based on the foregoing, while we agree with Appellant that 

he was entitled to a rights warnings prior to his interview with 

Ms. Lynch, we find that his statements to AFOSI were voluntary 

under the circumstances and not barred by the Supreme Court’s 

decision in Seibert, notwithstanding the absence of a cleansing 

warning. Thus, the military judge did not err in admitting 

these statements or the evidence subsequently seized from 

Appellant’s computer. In light of these later, more detailed 

statements describing his conduct, we conclude that the 

admission of Appellant’s initial statements to Ms. Lynch was 

harmless beyond a reasonable doubt. See United States v. 

Hallock, 27 M.J. 146 (C.M.A. 1988) (citing United States v. 

Remai, 19 M.J. 229, 233 (C.M.A.1985)). 

Appellant’s Possession of the Pictures

 We turn now to the final issue in the case, whether the 

evidence was legally sufficient to sustain Appellant’s 

conviction for possession of child pornography under clauses one 

and two of Article 134. The Air Force court found that 

“[A]ppellant’s possession of . . . pictures was prejudicial to 

good order and discipline or of a nature to bring discredit upon 

the armed forces.” Brisbane, No. ACM 35384, slip op. at 2. 
United States v. Brisbane, No. 05-0136/AF 

26 

Appellant now argues that there is no evidence that his 

possession of pictures of nude minors was service-discrediting 

or conduct prejudicial to good order and discipline. The 

Government argues that Appellant’s mere possession of sexually 

explicit images of minors is an act involving moral turpitude, 

and as such, is inherently prejudicial to good order and 

discipline and service-discrediting. 

The knowing possession of images depicting sexually 

explicit conduct by minors, whether actual or virtual, when 

determined to be service-discrediting conduct or conduct 

prejudicial to good order and discipline, is an offense under 

Article 134. United States v. Mason, 60 M.J. 15, 20 (C.A.A.F. 

2004). However, Ashcroft v. Free Speech Coalition, 535 U.S. 234 

(2002), created a “constitutional dimension” to an Article 134 

charge that did not exist previously. As a result, the elements 

of service discredit or prejudicial conduct must be considered 

in the context of a military member’s possession of what might 

be considered virtual child pornography, or pornography the 

Supreme Court otherwise determined was constitutionally 

protected in a civilian context. Mason, 60 M.J. at 19; United 

States v. O’Connor, 58 M.J. 450, 454 (C.A.A.F. 2003). In light 

of Free Speech Coalition we look to the record to determine 

whether the evidence demonstrates that an accused’s conduct is 

service-discrediting and/or prejudicial to good order and 
United States v. Brisbane, No. 05-0136/AF 

27 

discipline, even if such conduct would have been protected in a 

civilian context. 

After taking Appellant’s statement regarding the showing of 

nude adult photographs to his stepdaughter, the AFOSI 

investigators accompanied Appellant to his home. Based on 

Appellant’s consent, the investigators entered the home where 

Appellant showed the agents images of nude adults he had shown 

to his stepdaughter and sought to explain why he had done so. 

In the course of this conduct, Appellant inadvertently displayed 

images of child pornography to the agents. 

Following this disclosure, Appellant was charged with a 

violation of clauses one and two of Article 134.10 Appellant 

subsequently told his neighbor, SSGT Gilbert, that he possessed 

seven pictures of child pornography. This disclosure alarmed 

SSGT Gilbert enough that he contacted AFOSI to determine whether 

any of the pictures included images of his children. “Viewing 

the evidence in the light most favorable to the prosecution,” we 

conclude that “any rational trier of fact” could have found 

beyond a reasonable doubt that Appellant’s possession of the 

pictures in question was prejudicial to good order and 

discipline or service-discrediting. Jackson v. Virginia, 443 

 

10 The record of trial does not establish whether the photographs contained 

actual or virtual child pornography. As a result, for the sake of our 

analysis we will assume, without deciding, that the pictures were virtual in 

nature. 
United States v. Brisbane, No. 05-0136/AF 

28 

U.S. 307, 319 (1979); United States v. Turner, 25 M.J. 324 

(C.M.A. 1987).11 

DECISION 

The decision of the United Air Force Court of Criminal 

Appeals is affirmed.

 

11 Because we conclude that the record contains specific evidence that 

Appellant’s conduct was service-discrediting and/or prejudicial to good order 

and discipline, we need not consider how, if at all, Free Speech Coalition

applies to the Government’s argument that Appellant’s conduct, as an act of 

moral turpitude, was inherently prejudicial or service-discrediting.