UNITED STATES, Appellee 

v. 

Alexander L. COHEN, Airman First Class 

U.S. Air Force, Appellant 

No. 04-0606 

Crim. App. No. 34975 

United States Court of Appeals for the Armed Forces 

Argued October 12, 2005 

Decided April 7, 2006 

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

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

Counsel 

For Appellant: Captain David P. Bennett (argued); Colonel 

Carlos L. McDade and Major Sandra J. Whittington (on brief); 

Major Terry L. McElyea. 

For Appellee: Major Michelle M. Lindo McCluer (argued); 

Lieutenant Colonel Robert V. Combs and Lieutenant Colonel Gary 

F. Spencer (on brief); Captain C. Taylor Smith. 

Military Judge: Israel B. Willner 

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION. 
United States v. Cohen, No. 04-0606/AF 

2 

Judge BAKER delivered the opinion of the Court. 

Appellant was tried by a general court-martial composed of 

officer members. In accordance with his pleas, he was convicted 

of two specifications of indecent acts in violation of Article 

134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934 

(2000). Contrary to his plea, he was convicted of indecent 

assault also in violation of Article 134, UCMJ.1 The adjudged 

sentence included a dishonorable discharge, confinement for four 

years, forfeiture of all pay and allowances, and reduction to 

grade E-1. The convening authority approved three of the four 

years of confinement but otherwise approved the sentence as 

adjudged. The Air Force Court of Criminal Appeals affirmed. 

United States v. Cohen, No. ACM 34975, 2004 CCA LEXIS 130, 2004 

WL 1238960 (A.F. Ct. Crim. App. May 18, 2004) (unpublished). 

Before this Court, Appellant challenges the military judge’s 

failure to suppress statements he made to the Inspector General 

(IG) on the basis of the IG’s failure to advise him of his 

rights pursuant to Article 31, UCMJ, 10 U.S.C. § 831 (2000).2

 

Although we find that the IG should have given a rights warning, 

we conclude the error was harmless and affirm. 

 

1

 Appellant was acquitted of rape in violation of Article 120, UCMJ, 10 U.S.C. 

§ 920 (2000), and fraudulent enlistment in violation of Article 83, UCMJ, 10 

U.S.C. § 883 (2000). 

2

 We granted review of the following issue: 
United States v. Cohen, No. 04-0606/AF 

3 

Background

On February 5, 2000, Appellant and four other individuals -

- two females and two males -- all trainees at Goodfellow Air 

Force Base (AFB), Texas, drove to a concert in Abilene, Texas. 

During this trip, everyone except for Airman (Amn) W consumed 

large quantities of alcohol. After the concert, Appellant and 

his companions spent the night in a motel room in Abilene. 

While there, Appellant photographed himself digitally 

penetrating one of the female airmen, Amn M, who was passed out 

on a bed. He also photographed another airman having 

intercourse with Amn M while she was passed out on the bed. 

Subsequent to these events, Appellant became concerned 

about the length of time it was taking to process his security 

clearance. Additionally, his command had denied a leave request 

to visit his ill father. Consequently, between February 23, 

2000, and June 14, 2000, Appellant met several times with 

Lieutenant Colonel (Lt Col) Kluck, the IG for the 17th Training 

Wing, to discuss how best to resolve these issues. These 

meetings were initiated by Appellant and were conducted pursuant 

to the IG’s authority to investigate complaints within the Air 

Force. Lt Col Kluck had at least eighteen years of previous 

 WHETHER THE MILITARY JUDGE ERRED WHEN HE DENIED APPELLANT’S MOTION TO 

SUPPRESS STATEMENTS HE MADE TO THE BASE INSPECTOR GENERAL. 
United States v. Cohen, No. 04-0606/AF 

4 

experience as an Office of Special Investigation (OSI) 

investigator. 

According to Lt Col Kluck “the Abilene incident was 

discussed when he . . . came in and spoke with me,” on May 31, 

2000. On a complaint registration form dated the same day, 

Appellant indicated that he had been charged with rape, but that 

the charge had been “dropped [until] further notice.” Lt Col 

Kluck’s notes accompanying this form indicate that “Cohen is 

being told by SJA [staff judge advocate] that he will be a 

witness in a trial [or an Article 32, UCMJ § 832 (2000), 

hearing] beginning 8 Jun 00. Cohen’s attorney feels he won’t be 

needed.” Lt Col Kluck had a final meeting with Appellant on June 

14, 2000, during which they again discussed the issues of 

Appellant’s security clearance and his leave. During this 

meeting, Lt Col Kluck learned from Appellant that his attorney 

had indicated that Appellant “should be good to go on leave 

since he [will] not be needed for trial until mid - late July 

00.” During one or more of these meetings with Lt Col Kluck, 

Appellant described the incident in Abilene. 

On the merits at Appellant’s court-martial, Lt Col Kluck 

was allowed to testify over objection that Appellant had 

admitted to being present during the rape of Amn M, that he had 

photographed the rape of Amn M and that he had assisted in 

cleaning Amn M’s clothing after the rape. During the 
United States v. Cohen, No. 04-0606/AF 

5 

unsuccessful motion to suppress and on the merits Lt Col Kluck 

testified that he had been aware of Appellant’s statement on the 

intake form regarding the rape charge, but had not administered 

warnings because Appellant had indicated to him that he was only 

a witness to the acts against Amn M. Specifically, Lt Col Kluck 

testified that while they were discussing the issue of leave, he 

asked Appellant whether there were any problems he should know 

about before he spoke with Appellant’s command. Appellant 

responded that “he had been involved in an incident in the 

Abilene area.” According to Lt Col Kluck, Appellant went on to 

describe the events of that evening, including the sexual 

activity between the drunk female airman, Amn M, and another 

male airman. However, Appellant told Lt Col Kluck that he was 

not a participant in such activity. When asked about whether 

Appellant mentioned anything about taking photographs of what 

occurred that night in Abilene, Lt Col Kluck responded that 

Appellant did tell him about taking the photographs. Lt Col 

Kluck further testified that he asked Appellant whether he was a 

participant, because, if he had been, “at that point, the 

interview would have changed a bit.” Appellant responded, “no, 

he was simply a witness in this incident, by taking 

photographs,” Lt Col Kluck testified. 

On cross-examination, Appellant’s civilian defense counsel 

asked Lt Col Kluck whether he “ever advise[d] [Appellant] of his 
United States v. Cohen, No. 04-0606/AF 

6 

rights?” Lt Col Kluck responded, “No, I didn’t. There was no 

reason for me to.” 

Defense counsel focused on the intake sheet dated May 31, 

2000, and attempted to show that the IG should have been on 

notice that Appellant was a suspect because of the reference to 

the rape charge. That colloquy proceeded as follows: 

Q. So, in fact, my client told you that he had been 

charged with rape, didn’t he? 

A. He said he’d been charged with rape. 

Q. So, in that sense, he alerted you to the fact that he 

was facing charges? 

A. No. I asked him -- I looked at this [form] and I 

said, “Are you being charged?” And, he said that he 

had been charged, that the charges were dropped, and 

he was now a witness in another case and he wasn’t 

charged with anything. And that was confirmed when I 

talked to the JAG’s office, that he was no longer 

being charged with anything. He was simply a witness 

in another case. 

Satisfied with Appellant’s response that he was not facing 

pending charges related to the rape of Amn M, Lt Col Kluck 

testified that he proceeded to obtain information from Appellant 

that he believed would aid him in resolving Appellant’s leave 

problem. Defense counsel continued: 

Q. Did you need that information from him about what 

happened that night [in Abilene] to be able to decide 

whether or not he should be given leave at that time? 

A. I asked him what issues had been raised, what he’d 

been involved in, was there anything -- any negative 

behavior that he’d been involved with that would 

preclude him from going on leave, which is what I 
United States v. Cohen, No. 04-0606/AF 

7 

would need to know if I were going to talk to the 

squadron commander or the group commander to assist 

him in obtaining leave. 

According to Lt Col Kluck, at this point Appellant described two 

unrelated incidents of sexual misconduct with high school girls 

in New York and Colorado and the events that had transpired in 

Abilene.3

 During further testimony on the motion to suppress, Lt 

Col Kluck stated that he may not have needed all the information 

elicited from Appellant to resolve the issue: 

Q. All you needed to know in order to perform your duties 

as an IG resolving a leave complaint was whether or 

not he might be a witness in a proceeding where his 

presence at Goodfellow would be required that might 

interfere with him taking leave? That’s all you 

needed to know, isn’t it? 

A. Yes. Sure. 

Q. To perform your duties. You didn’t have to know all 

the facts or details of whatever it was he might have 

witnessed in order to perform your duties? 

A. Yes, it could be looked at that way. 

Q. So, you could have resolved his complaint simply by 

knowing that he might be a witness in a proceeding and 

his presence might be required that would interfere 

with leave, right? 

A. True. 

In support of the motion to suppress, the defense argued 

that Lt Col Kluck was aware, at least by May 31, 2000, that 

Appellant had been previously charged with rape. As a result, 

defense counsel asserted, Lt Col Kluck was obligated to 
United States v. Cohen, No. 04-0606/AF 

8 

administer Article 31 warnings before asking Appellant any 

questions related to the rape of Amn M. Absent such warnings, 

Appellant’s incriminating statements to Lt Col Kluck were 

inadmissible, defense counsel argued. The military judge 

disagreed, made essential findings, and concluded that the IG 

had “no criminal investigator or disciplinary duties.” In 

addition, the military judge found, among other things, that the 

accused stated that he was only a witness, that he took 

photographs of the sexual acts, and that he helped clean the 

alleged victim’s clothes. 

On appeal, Appellant maintains that under United States v. 

Duga, 10 M.J. 206 (C.M.A. 1981), warnings were required before 

Lt Col Kluck questioned Appellant because the IG was acting in 

his official capacity and should have reasonably suspected 

Appellant of potential UCMJ violations, primarily because 

Appellant had indicated on his intake form that he had been 

charged with rape. 

The Government responds that Article 31 warnings were not 

required because even though Lt Col Kluck was acting in his 

official capacity, he was not questioning Appellant for a law 

enforcement or disciplinary reason. Furthermore, the Government 

contends, even assuming Article 31 warnings were required, 

Appellant suffered no prejudice from the admission of his 

 3

 The members were not present during this aspect of Lt Col Kluck’s testimony. 
United States v. Cohen, No. 04-0606/AF 

9 

statements to Lt Col Kluck. 

The Court of Criminal Appeals held that Article 31 warnings 

were not required because the IG was not acting in a “law 

enforcement or disciplinary capacity.” Cohen, 2003 CCA LEXIS 

130, at *19, 2004 WL 1238960, at *7. The court also found that 

there was “no basis to conclude that the IG made promises of 

confidentiality such as would render the appellant’s statements 

to him involuntary.” Id. Finally, the court concluded that 

even if the military judge erred by admitting Appellant’s 

statements, Appellant suffered no material prejudice because the 

evidence was sufficiently strong to convict him, even without 

the statements. Id. at *19-*20, 2004 WL 1238960, at *7. 

Discussion

“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); United 

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

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

Article 31(b) states: 

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 
United States v. Cohen, No. 04-0606/AF 

10 

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. 

 

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. 

As this Court first noted in United States v. Gibson, were 

these textual predicates applied literally, Article 31(b) would 

potentially have a comprehensive and unintended reach into all 

aspects of military life and mission. 3 C.M.A. 746, 752, 14 

C.M.R. 164, 170 (1954). As a result, this Court has interpreted 

the second textual predicates -- interrogation and the taking of 

“any” statement -- in context, and in a manner consistent with 

Congress’ intent that the article protect the constitutional 

right against self-incrimination. Id.; see also Duga, 10 M.J. 

at 208-10; Swift, 53 M.J. at 445 (discussing congressional 

intent with regard to Article 31). 

To deal with the problem identified in Gibson, this Court 

decided numerous cases that sought to clarify what it meant to 

“interrogate, or request any statement from an accused or a 

person suspected of an offense.” Article 31(b), UCMJ. From 
United States v. Cohen, No. 04-0606/AF 

11 

these cases, a number of factors become important for the 

analysis, including the questioner’s status and the military 

context in which the questioning occurs. 

Where the questioner is performing a law enforcement or 

disciplinary investigation, for example, and the person 

questioned is suspected of an offense, then Article 31 warnings 

are required. Swift, 53 M.J. at 446-47. Whether the questioner 

should be considered to be performing such an investigation is 

determined by “‘assessing all the facts and circumstances at the 

time of the interview to determine whether the military 

questioner was acting or could reasonably be considered to be 

acting in an official law-enforcement or disciplinary 

capacity.’” Id. at 446. (quoting United States v. Good, 32 M.J. 

105, 108 (C.A.A.F. 2000)). 

Conversely, where the questioner is not acting in a law 

enforcement or disciplinary capacity, rights warnings are 

generally not required, because “military persons not assigned 

to investigate offenses, do not ordinarily interrogate nor do 

they request statements from others accused or suspected of 

crime.” United States v. Loukas, 29 M.J. 385, 388 (C.M.A. 1990) 

(quoting United States v. Gibson, 3 C.M.A. at 752, 14 C.M.R. at 

170 (1954))(emphasis added by Loukas). Similarly, where the 

questioner is acting in an unofficial capacity and the person 

questioned does not perceive the questioning as more than casual 
United States v. Cohen, No. 04-0606/AF 

12 

conversation warnings are not required. Duga, 10 M.J. at 210. 

Such an informal exchange would not implicate the interrogation 

or statement predicate of Article 31(b) or Congress’ concern 

that, in the military context, junior enlisted personnel might 

feel undue pressure to make incriminating statements. 

This Court has also interpreted Article 31(b) in a manner 

that recognizes the difference between questioning focused 

solely on the accomplishment of an operational mission and 

questioning to elicit information for use in disciplinary 

proceedings. Where there is a mixed purpose behind the 

questioning, the matter must be resolved on a case-by-case 

basis, looking at the totality of the circumstances, including 

whether the questioning was “designed to evade the accused’s 

constitutional or codal rights.” United States v. Bradley, 51 

M.J. 437, 441 (C.A.A.F. 1999). In Bradley, for example, this 

Court held that rights warnings were not required where the 

commander was acting in an official capacity in “seeking 

information needed for the proper review of appellant’s security 

clearance status,” but was not conducting a criminal 

investigation. Id. Similarly, in Loukas, warnings were not 

required where an aircraft crew chief’s questioning of a junior 

member of the crew was not for the purposes of a law enforcement 

or disciplinary investigation, but rather to fulfill his 
United States v. Cohen, No. 04-0606/AF 

13 

legitimate operational responsibility to provide for the safety 

of his aircraft in flight. 29 M.J. at 387, 389. 

At the same time, this Court has repeatedly cautioned that 

as a general matter, “questioning by a military superior in the 

chain of command ‘will normally be presumed to be for 

disciplinary purposes.’” Swift, 53 M.J. at 446 (quoting Good, 

32 M.J. at 108). Thus, in Swift, this Court held that the 

Government failed to rebut the strong presumption that Swift’s 

interrogation by a military superior in his immediate chain of 

command was anything but a disciplinary investigation. 53 M.J. 

at 448. Likewise, in Good, this Court found that an 

investigator in the accused’s chain of command should have given 

the accused his warnings upon their second meeting concerning 

missing checks. 32 M.J. at 109. 

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 (quoting Good, 32 

M.J. at 108). 
United States v. Cohen, No. 04-0606/AF 

14 

Analysis

We agree with the parties that Lt Col Kluck was a “person 

subject” to the UCMJ. Lt Col Kluck was a commissioned officer 

serving on active duty as the Wing IG at Goodfellow AFB, Texas. 

In this position, Lt Col Kluck was superior in grade to 

Appellant, but he was not within Appellant’s chain of command. 

The parties do not agree as to whether Lt Col Kluck was 

engaged in a law enforcement or disciplinary function, and 

therefore do not agree as to whether his questioning of 

Appellant should be viewed as interrogation or the taking of 

“any statement” for the purposes of Article 31(b). Further, the 

parties disagree as to whether Lt Col Kluck should have 

reasonably believed Appellant was suspected of an offense 

arising out of the events in Abilene. 

Lt Col Kluck’s Inquiry and Authority

The military judge found that Lt Col Kluck “had no criminal 

investigator or disciplinary duties.” Further, the military 

judge concluded: 

The circumstances of this case easily overcome any 

presumption that the questioning by a superior ranking 

officer was for law enforcement or disciplinary purposes. 

The IG did not know or believe that the accused was a 

suspect in the alleged assault. He reasonably relied on 

the information provided to him by the accused, by the 

accused’s unit, and by Major Ecton. His conclusion was 

reasonable under the facts and circumstances. 

The lower court agreed, concluding: 
United States v. Cohen, No. 04-0606/AF 

15 

The Goodfellow AFB IG, to whom the appellant made the 

incriminating statements, was not acting in a law 

enforcement or disciplinary capacity, and he asked 

questions “limited to that required to fulfill his 

operational responsibilities.” 

Cohen, 2003 CCA LEXIS 130, at *19, 2004 WL 1238960, at *7 

(quoting Loukas, 29 M.J. at 389). The record indicates that 

Appellant initiated the exchange with Lt Col Kluck. The record 

also demonstrates that Lt Col Kluck treated his investigation 

into Appellant’s complaints as an administrative inquiry, and 

not as a criminal or disciplinary investigation. The denial of 

leave and delay in security clearance processing may have 

disciplinary roots, but they are not inherently criminal in 

nature. Rather, on their face, they relate to military morale 

and military mission and fall within Lt Col Kluck’s mandate to 

investigate servicemember complaints administratively. 

Moreover, Lt Col Kluck perceived his function in this light, as 

evidenced by his treatment of Appellant as “a client” as well as 

his refusal to testify against Appellant until ordered to do so. 

However, Lt Col Kluck’s administrative focus in this case 

does not ultimately answer the critical question as to whether 

he was acting in an official law enforcement or disciplinary 

capacity while also performing his administrative duties. See

Duga, 10 M.J. at 210. To answer that question we must consider 

Lt Col Kluck’s authorities and responsibilities as specified in 

Dep’t of the Air Force Instr., 90-301, Inspector General 
United States v. Cohen, No. 04-0606/AF 

16 

Complaints (Aug. 12, 1999)[hereinafter 1999 AFI 90-301],4 the 

regulation in effect at the time. 

Air Force Inspectors General derive their authority from 10 

U.S.C. 8014, 8020 (2000), as delegated, and applicable 

Department of the Air Force regulations. 2005 AFI 90-301; 1999 

AFI 90-301. Installation IGs are responsible for implementing 

the IG Complaints Program and the Fraud, Waste, and Abuse (FWA) 

Program. 

On the one hand, the responsibilities of the installation 

IG, as defined at that time, were primarily administrative and 

not disciplinary in nature. “The primary charge of the IG is to 

sustain a credible Air Force IG system by ensuring the existence 

of responsive complaint investigations, and FWA programs 

characterized by objectivity, integrity, and impartiality.” 

1999 AFI 90-301 para. 1.8.1. “IG investigations are 

administrative in nature and they are fact finding rather than 

judicial proceedings.” Id. at para. 2.32. Moreover, 

complainants were generally offered confidentiality. “A 

complaint to an IG, or a complaint worked in IG channels, is 

confidential in nature and is privileged information.” Id. at 

para. 1.37.1.1.5

 

4

 Note that this regulation. has been superseded by Dep’t of the Air Force, 

Instr. 90-301 Inspector General Complaints Resolution, (Feb. 8, 2005) 

[hereinafter 2005 AFI 90-301]. 
United States v. Cohen, No. 04-0606/AF 

17 

On the other hand, the installation IG also had law 

enforcement and disciplinary responsibilities. For example, the 

confidentiality promised to complainants was subject to an 

express criminal exception: “EXCEPTION: IGs may turn over all 

IG case materials to the AFOSI [Air Force Office of Special 

Investigations] or SF [security forces] for criminal 

investigations if warranted, or higher level IG for 

investigation, as required.” Id. at para. 1.37.5.1.2. 

Moreover, the general duties of the installation IG included the 

analysis of complaints to determine “[w]hat law, regulation, 

procedure, or policy was violated[.]” Id. at para. 2.13.1.3. 

As set out in 1999 AFI 90-301: “If a complainant alleges fraud, 

espionage, sabotage, treason, subversion, disloyal statements, 

disaffection, or other criminal offenses, IGs will immediately 

consult with the SJA and AFOSI office to determine whether the 

allegations should be referred to AFOSI channels for appropriate 

action, or stay within the IG complaint system.” Id. at para. 

2.4.3. 

 5

 It was on this basis that Lt Col Kluck initially declined to testify at 

Appellant’s trial; however, he was eventually ordered to do so by the 

Inspector General of the Air Force. The record reflects that Lt Col Kluck 

acted in good faith in his dealings with Appellant and was motivated by a 

desire to protect the IG complaint mechanism. During the Article 39(a) UCMJ, 

10 U.S.C. § 839(a) (2000), session on the suppression motion, Lt Col Kluck 

testified as follows: 

I somewhat take gross offense to the whole process –- the whole issue 

of having an IG testify against a client that comes in to talk with 

him, . . . . there’s a privileged issue here. And, the IG, in this 
United States v. Cohen, No. 04-0606/AF 

18 

Further, the instruction contemplates the possibility that 

IG investigations could transition into law enforcement or 

disciplinary investigations. Thus, among other things, the 

instruction provides the following: 

[Investigating officers are required to c]onsult in advance 

with the SJA about the need for and substance of Article 31 

rights advisement. 

[MAJCOM, FOA and DRU IGs shall r]efer criminal allegations 

to AFOSI [Air Force Office of Special Investigations] or 

Security Forces (SF), as appropriate. If they decide not to 

investigate a criminal matter, obtain a documented transfer 

back to the IG and complete the appropriate category of 

investigation. 

Witnesses who are military members . . . may refuse to 

testify only if they believe they might incriminate 

themselves. 

Id. at paras. 2.34.6, 1.12.3, 2.36.5. 

Based on the foregoing, we conclude that the military 

judge’s finding that Lt Col Kluck “had no criminal investigator 

or disciplinary duties” was clearly erroneous. Although Lt Col 

Kluck’s responsibilities were primarily administrative, they 

were not exclusively so. Among other things, as the Wing IG, he 

was responsible for investigating wrongdoing, and reporting 

criminal violations to AFOSI. Significantly, the 

confidentiality he could offer to complainants did not extend to 

criminal conduct. 

 particular case, the Secretary of the Air Force IG, elected to waive 

that . . . . And, it, to me, is very very detrimental to the IG system. 
United States v. Cohen, No. 04-0606/AF 

19 

The installation IG’s disciplinary responsibility is 

further evidenced in the instruction’s provision regarding 

rights advisement. Thus, if an IG, acting as an investigating 

officer (IO) on a complaint, “discovers information leading them 

[sic] to believe matters of a criminal nature have occurred and 

a witness or subject becomes a suspect, the IO must stop the 

interview, immediately consult with the Appointing Authority and 

the legal advisor, and (if allowed to proceed), advise the 

suspects of their rights.” 1999 AFI 90-301 para. 2.39.6

 That Lt 

Col Kluck was aware of this requirement is evidenced by his 

testimony at trial that the interview “would have changed a bit” 

had Appellant admitted to participating in the nonconsensual 

sexual actions committed against Amn M. 

In sum, not only did the military judge err when he found 

that Lt Col Kluck did not have law enforcement or disciplinary 

authority, but he also erred in his finding that Lt Col Kluck 

did not act in a way that implicated this authority when 

Appellant disclosed the events in Abilene in response to Lt 

Col’s Kluck’s questions. 

Having concluded that Lt Col Kluck had disciplinary 

responsibility and that it was implicated in this case, we must 

now consider whether he should have reasonably suspected 

 

6

 For active duty military personnel, this translates into a requirement to 

“advise them of their rights as specified under Article 31, UCMJ.” 1999 AFI 

90-301 para. 2.39.1. 
United States v. Cohen, No. 04-0606/AF 

20 

Appellant of an offense at the outset of his inquiry, or whether 

there came a point during his inquiry when he should have 

suspected Appellant of an offense. If so, we must then 

determine whether, in context, a rights advisement was required. 

Appellant’s Status

Appellant argues that Lt Col Kluck should have considered 

him a suspect for the purposes of Article 31(b) at the outset of 

their meeting on May 31, 2000, based upon Appellant’s complaint 

registration form. On it, Appellant wrote, “Legal charged me 

with Article 132? Rape . . . . The charge were [sic] dropped 

to future notice(?)” The Government responds that Lt Col Kluck 

took proper account of this statement by asking Appellant 

whether he was still subject to charges, to which Appellant 

responded that he was only a witness. The Government further 

argues that Lt Col Kluck reasonably relied on Appellant’s 

response that he was no longer a suspect, only a witness. 

Whether Lt Col Kluck was required, as a matter of law, to 

advise Appellant of his rights at the outset of the May 31 

meeting is a close question. The following facts would support 

the contention that Lt Col Kluck was not required to do so. 

First, the IG’s meeting with Appellant was conducted in the 

context of the IG Complaints Resolution program. See generally

1999 AFI 90-301. As a result, Lt Col Kluck’s meetings with 

Appellant were not designed or intended to serve as a mechanism 
United States v. Cohen, No. 04-0606/AF 

21 

to elicit statements of criminal culpability. Second, Lt Col 

Kluck interviewed Appellant about his clearance complaint in 

February without mentioning the incident earlier that month in 

Abilene and without the necessity of rights warnings. Thus, as 

far as Lt Col Kluck was concerned, at least half of Appellant’s 

problem (security clearance) predated the incident in Abilene 

and could be addressed without implicating Article 31. Finally, 

Appellant advised the IG that he was only a potential witness 

involving the incident in Abilene. Lt Col Kluck did not have 

independent basis to conclude otherwise at the outset of the May 

31 meeting. For these reasons, it was arguably reasonable for 

Lt Col Kluck to proceed with his inquiry into the clearance and 

leave complaints without first providing Appellant with an 

Article 31 rights advisement. Such inquiry would not 

necessarily have implicated the allegation of rape for which 

Appellant had been a suspect. Lt Col Kluck was arguably 

entitled, at least at the outset, to make such inquiry as he did 

of the Appellant to clarify his status as a witness and not a 

suspect. On the other hand, Appellant indicated on his form 

that he was charged with rape and that the charge might still be 

reinstated. Furthermore, Lt Col Kluck was aware that, since the 

last time they spoke, before there was any mention of Abilene, 

Appellant’s request for leave had been denied. These two facts 

together are arguably enough to conclude that Lt Col Kluck 
United States v. Cohen, No. 04-0606/AF 

22 

should have reasonably suspected Appellant of an offense, namely 

rape, when Appellant came to see him on May 31. 

However, we need not resolve whether Appellant was entitled 

to a rights advisement at the outset of his May 31 meeting with 

Lt Col Kluck. For the reasons stated below, Appellant was 

clearly entitled to a rights warning at a later point in the 

conversation. Furthermore, up until that later point, Appellant 

had not made any admissions. 

The complaint statement and Lt Col Kluck’s subsequent 

conversations with the Deputy SJA should have placed him on 

notice that his discussions with Appellant might later trigger 

those sections of the IG instruction requiring rights warnings, 

AFOSI reporting, and potential waiver of complaint 

confidentiality. In this light, at the point during the May 31 

interview between Lt Col Kluck and Appellant when the latter 

described his role in taking pictures of the incident in 

Abilene, rights warnings were required. At this point, Lt Col 

Kluck should have reasonably suspected Appellant of the offense 

of indecent acts, if not complicity in the rape itself. Under 

military case law, photographing or filming sexual acts is an 

offense punishable under Article 134 of the UCMJ. See, e.g., 

United States v. Lujan, 59 M.J. 23 (C.A.A.F. 2003) (noting 

appellant’s guilty plea to committing an indecent act where he 

participated in videotaping the performance of numerous sexual 
United States v. Cohen, No. 04-0606/AF 

23 

acts with a heavily intoxicated female soldier); United States 

v. Daye, 37 M.J. 714, 717-18 (A.F.C.M.R. 1993) (upholding 

appellant’s conviction under Article 134 for surreptitiously 

videotaping himself engaged in consensual adulterous activity 

with another female solider); see also United States v. 

Izquierdo, 51 M.J. 421, 422-23 (C.A.A.F. 1999) (discussing the 

use of Article 134 to punish public sexual activity); United 

States v. Whitcomb, 34 M.J. 984, 987-88 (C.M.R. 1992) (upholding 

appellant’s conviction under Article 134 for taking suggestive 

pictures of teenage girls). It was these indecent acts with 

which Appellant was ultimately charged. Further, Lt Col Kluck’s 

testimony revealed that he was aware, at the time of the 

interview with Appellant, that the acts committed upon Amn M 

were not consensual. 

In sum, although Lt Col Kluck was acting in furtherance of 

his administrative duties when he interviewed Appellant, his 

inquiry went beyond what was required to fulfill those duties. 

Moreover, during his inquiry Lt Col Kluck came under the purview 

of Article 31 by requesting statements from Appellant in a way 

that implicated the criminal investigative authority bestowed 

upon him by the applicable Air Force Instruction. 

Conclusion

We conclude that in accordance with Article 31(b), the 

applicable Air Force Instruction, and this Court’s case law, Lt 
United States v. Cohen, No. 04-0606/AF 

24 

Col Kluck had disciplinary responsibility that was implicated 

when Appellant described the incident in Abilene and he should 

reasonably have suspected Appellant of the offense of indecent 

acts at the point in the inquiry where Appellant disclosed his 

direct involvement in the incident in Abilene. Article 31 

warnings were required when Appellant admitted to taking the 

photographs. As a result, the military judge erred in not 

suppressing any incriminating statements made after that point.7 

Prejudice

The question that remains is whether the military judge’s 

error in admitting any unwarned statements made to Lt Col Kluck 

prejudiced Appellant in this case. See United States v. Kerr, 

51 M.J. 401, 405 (C.A.A.F. 1999). We conclude that it did not. 

The prosecution presented the testimony of the other 

eyewitnesses to the events in the hotel room. These witnesses 

placed Appellant in the hotel room in Abilene. Most 

significantly, the prosecution presented the photographs taken 

by Appellant during the incident in Abilene. Moreover, although 

Appellant’s statement that afterwards he helped clean Amn M’s 

clothing was considered by the members on the rape 

specification, he was ultimately acquitted of the rape. As for 

his admissions to Lt Col Kluck regarding the taking of the 

 

7 Because we decide that Appellant was entitled to a warning under the rubric 

of Article 31(b), we do not address any additional arguments for such a 
United States v. Cohen, No. 04-0606/AF 

25 

photographs, Appellant pleaded guilty to the indecent act of 

photographing the other airman’s rape of Amn M. Finally, none 

of what Appellant told Lt Col Kluck implicated Appellant in the 

indecent act he was convicted of committing against Amn M. 

DECISION 

For the reasons stated above, the decision of the United 

States Air Force Court of Criminal Appeals is affirmed.

 warning under Article 31(d), UCMJ.