## UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before BURTON, HAGLER, and FLEMING Appellate Military Judges

UNITED STATES, Appellant

v. Private First Class NATHANIEL E. ALLEN United States Army, Appellee

ARMY MISC 20180285

Headquarters, 7th Infantry Division Timothy P. Hayes, Jr., Mil itary Judge (arraignment) Lanny J. Acosta, Jr., Militar y Judge (motions hearing) Colonel Russell N. Parson, Staff Judge Advocate

For Appellant: Captain Catharine M. Parnell, JA (argued); Colon el Tania M. Martin, JA; Lieutenant Colonel Eric K. Sta fford, JA; Captain Al lison L. Rowley, JA; Captain Catharine M. Parnell, JA (on brief); Colonel Steven P. Haight, JA;

Lieutenant Colonel Eri c K. Stafford, JA; Captain Catharine M. P arnell, JA (on reply brief).

For Appellee: Captain Benjamin A. Accinelli, JA (argued); Lieut enant Colonel Christopher D. Carrier, JA; Capta in Patrick G. Hoffman, JA; Cap tain Benjamin J. Wetherell, JA; Captain Benjamin A. Accinelli, JA (on brief).

14 August 2018

--------------------------------------------------------------- --------- MEMORANDUM OPINION AND ACTION ON APPEAL

BY THE UNITED STATES FILED PURSUANT TO ARTICLE 62, UNIFORM CODE OF MILITARY JUSTICE

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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

BURTON, Senior Judge:

Appellee stands accused of one s pecification of a ttempted indec ent visual recording, two specifications of false official statement, and one specification of

indecent visual recor ding, in viola tion of Artic les 80, 107, an d 120c, Uniform Code of Military Justice, 10 U.S.C . §§ 880, 907, a nd 920c (2016) [UC MJ]. This case is

before this cour t pursuant to a governme nt appeal filed under A rticle 62, UCMJ.2 ALLEN

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In its appeal, the gov ernment challenges the military judge’s d ecision to suppress certain statements of the accused and the contents of his cell phone. We find the military judg e’s ruling is ambiguo us and incomplete on several predicate issues. Therefore, we must retur n the matter to the military j udge for clarification

and action in accordance w ith the decision below.

BACKGROUND

The charged offenses involve alle gations the accused recorded o r attempted to record soldiers in toilet stalls at the National Training Cente r (NTC), Fort Irwin,

California.

On 12 April 2018, trial defense counsel file d a motion to suppr ess certain

statements of the accused to law enforcement and the contents o f his cell phone. On 20 April 2018, the government filed its r esponse. The parties consented to the military judge considering the m otions and attachments in makin g his ruling. The parties also stipula ted to certain facts in the motions.

At the motions hearing, three different witnesses testified and the parties

entered into a s tipulation of testimony for a fourth witness. Notably, the accused

himself testified. H is testimony spanned over forty pages and addressed his

interactions with law enforcemen t on the night i n question. Am ong other th ings, the

accused testified abo ut: (1) how he f elt physically that night, (2) his state of mind when he waived his rights and provided a statement, (3) his sta te of mind when he provided consent to search his cel l phone, and (4) the effect o f his prior unwarned

statements and other att ending circumstances.

On 9 May 2018, the military ju dge granted the d efense motion to suppress. In his ruling, the milit ary judge addres sed the volunt ariness of t he accused’s statements to Criminal Investigat ion Command (CID) and the voluntariness o f his consent to search his cell phone and provide his numeric passcode (PIN). For his annotated findings of fact, the military j udge primarily a dopted portions of the written motions. The military judge’s re maining findings of fact invol ve three sentences,

none of which address the accused’s testimony at the motions he aring.

In his ruling, the mi litary judge first det ermined the accused’ s statements to CID were not voluntary b ased on the “totalit y of the circumstan ces.” Within his analysis, the military judge di d not list any circumstances bes ides the lack of a cleansing statement. The milita ry judge next determined the ac cused’s consent to search his cell phone and provide his PIN was also not voluntar y. For these issues, the military judge again discusse d the lack of a cleansing stat ement, but then briefly cited to “further evidence,” to include the accused falling asl eep in the interrogation room after waiting to be interviewed for s everal hours. Follow ing the military judge’s ruling, the government filed a timely appeal under Arti cle 62, UCMJ.3 ALLEN

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LAW AND DISCUSSION

As our superior court has explaine d, the standard of review we apply in an appeal by the United States of a military judge’s suppression r uling is necessarily

deferential:

“We review a military judge’ s ruling on a motion to suppress for abuse of discretion.” United States v. Rodriguez , 60 M.J. 239, 246 (C.A.A.F. 2004) (citing

United States v. Monroe , 52 M.J. 326, 3 30 (C.A.A.F. 2000)). “In reviewi ng a military judg e’s ruling on a motion to suppress, we revi ew factfinding under the clearly-erroneous s tandard and conclusi ons of law under

the de novo s tandard.” United States v. Ayala , 43 M.J. 296, 298 (C.A.A.F. 1995). “T hus on a mixe d question of

law and fact . . . a m ilitary judge abuses his discretion if his findings of fact are cl early erroneous or his

conclusions of law are incorrect.” Id . The abuse of

discretion standard calls “for more than a mere difference of opinion. The challenged a ction must be ‘arbitrary, fanciful, clearly unreasonable, or cl early erroneous.’”

United States v. White , 69 M.J. 236, 239 (C.A.A.F. 2010) (quoting United States v. Lloyd , 69 M.J. 95, 99 (C.A.A.F. 2010)).

When reviewing matters under Article 62(b), UCMJ, [a service] court may act only with respect to matters of law.

United States v. Gore , 60 M.J. 178, 185 ( C.A.A.F. 2004).

“When a court is limited to r eviewing matters of law, the question is not whether a revi ewing court might disagree with the trial court’s findings , but whether those findings are ‘fairly supported by the record.’” Id . (quoting United

States v. Burris , 21 M.J. 140 , 144 (C.M.A. 19 85)). When reviewing a ruling on a motio n to suppress, “we consider the evidence in the light most favorable to the prevailing party.” United States v. Cowgill , 68 M.J. 388, 390 (C.A.A.F. 2010 ) (quoting United States v. Reister , 44 M.J. 409, 413 (C.A.A.F. 1996)).

United States v. Baker , 70 M.J. 283, 287-88 (C.A.A.F. 2011). See also United States v. Henning , 75 M.J. 187, 190-91 (C.A.A.F. 2016).

However, in conducting such a rev iew, “[t]he appropriate remedy for incomplete or ambiguous rulings is a reman d for clarification.” United States v.4 ALLEN

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Kosek , 41 M.J. 60, 64 ( C.M.A. 1994)). See also United States v. Lincoln , 42 M.J. 315, 320 (C.A.A.F. 1995 ) (explaining the ap propriate remedy for incomplete or ambiguous findings is to remand for clarifi cation or for additi onal findings).

For several reasons, we conclude such a remand is required in t his case.

First, the military j udge’s annotate d findings of f act are almo st exclusively rooted in adopting the written m otions of both parties. As suc h, the military judge’s ruling does no t adequately address the additional testimony fro m the motions hearing. The absence of such fi ndings is problem atic for our r eview, as we “may not make findings of fact in this case.” Lincoln , 42 M.J. at 320.

For example, in their briefs an d at argument, th e parties cite to the accused’s testimony as either undercutting or buttressing the military ju dge’s ruling. This testimony, however , is not explicitly addr essed in the ruling i tself. In essence, the parties are asking th is court to fill in th e gaps resulting fro m the military judge’s limited findings and analysis of the motio ns hearing. In line with our superior court’s guidance, we decline to overstep our bound aries in this context.

Second, it is ambiguous whether the military judg e meant to com partmentalize his “totality of the circumstances ” analysis for the accused’s statements to CID. Unsurprisingly, the pa rties disagree on thi s point. The govern ment asserts the military judge’s analysis of the accused’s statement stands alo ne and is not colored by the later analysis of the accu sed’s consent to search his ce ll phone and providing his PIN. By contrast, the accused asserts certain circumstance s addressed in the subsequent analysis should be l ogically imputed back to the ini tial analysis. Both sides cite contextual language in the ruling to support these d iametrically opposed positions.

Despite the parties adopting black -and-white positions over the military judge’s apparent intent, we find this issue contains shades of gray. Simply put, it is unclear to us whether the military judge meant to separate or c onjoin portions of his analyses. We are equal ly unsure over which , if any, of the ado pted findings the military judge applie d to each issue. Again, in such circumsta nces, “[t]he appropriate remedy . . . is a r emand for clarification.” Kosek , 41 M.J. at 64.

Third, our difficulty is magnified by the military jud ge’s stat ements that reveal he may have erroneously a scribed categorical weight to t he lack of a cleansing statement. For exampl e, in his analysis of the cell phone, the military judge stated, “[W]here the gover nment fails to provide the accu sed his rights warning and the a ccused provides incriminating information, his subsequent consent to a search is unlawfully obtai ned when no cleans ing statement is provided.” This reads like a categorical pronouncement of law, implying that th e cleansing statement is the single criter ion the military judge considered for this issue. However,5 ALLEN

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following this language, the mi litary judge briefly discussed a dditional evidence before determining th e government failed to meet its burden und er the “totality of

the circumstances.”

Similarly, in his ruling regardin g the accused’s s tatements to CID, the military judge referen ced the “totality of t he circumstances,” but then said the rights

waivers were “ tainted by the lack of a clean ing statement and thus not knowing and voluntary,” and called t he lack of a cleani ng statement a “fata l flaw” in this case. Taken together, these statements imply the military judge may n ot have actually

considered the totalit y of the circumstances , but rather applie d the “cat-out-of-thebag” test, in which a n unwarned statement f atally taints an acc used’s later statement.

To be clear, we are not suggesti ng that a military judge must d iscuss every

fact each time he examines the totality of the circumstances. But if a military judge appears to rely almost exclusive ly on one circumst ance—in this case, the lack of a cleansing statement—it is difficu lt to assess how much weight h e gave to other relevant circumstances. Upon remand, the military judge can cl arify the exact weight associated with t he lack of a cleansi ng statement in his analyses of these

issues. See, e.g.

, United States v. Olson , 74 M.J. 132, 134- 35 (C.A.A.F. 2015) (analyzing the militar y judge’s application of the six nonexclu sive factors used to assist in analyzing the voluntariness of a consent to search); United States v.

Brisbane , 63 M.J. 106, 114-16 ( C.A.A.F. 2006) (analy zing the voluntarin ess of a

confession obtain ed subsequent to an ear lier, unwarned statemen t).

For the reasons above, we theref ore hold that th e military judg e’s ruling is ambiguous, incomplete, and insufficient fo r us to perform a pro per review under Article 62, UCMJ. *

CONCLUSION

The appeal of the United States pursuant to Art icle 62, UCMJ, i s GRANTED. The ruling of the m ilitary judge is vacated and the record of t rial will be returned to the military judge for action not inconsist ent with this opinio n. We make no ruling as to the admissibility of t he evidence in question.

* We expressly note th at our sister court h as countenanced the u se of supplemental rulings by military judges in cas es where the government files a timely notice of appeal. United States v. Catano , 75 M.J. 513 (A.F. Ct . Crim. App. 2015). In approving this practice, our sister court pointed out, “[t]he S upreme Court has noted the wisdom of allowing trial cou rts ‘the opportun ity to promptl y correct their own alleged errors,’ as opposed to imposing a dded and unnecessary b urdens on appellate

courts.” Id . at 516-17 (quoting United States v. Dieter , 429 U.S. 6, 8 (1976)).6 ALLEN

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The military judge may, sua spon te or on request of a party, pe rmit additional evidence and argument on any matter relevant to the suppression motion, to include the scope of consent issue that was not part of this appeal. T he military judge shall make detailed findings of fact and conclusions of law to suppor t his ruling. The trial may then proceed or the United States may again pursue appeal u nder Article 62, UCMJ, if appropriate.

Judge FLEMING concurs.

HAGLER, Judge, concurring:

Because this court’s d ecision will allow the military judge to clarify his findings of fact and t he basis for his dec ision, I concur with the majority opinion. But I write separately to expl ain why, in my view, the military judge’s ru ling is at best ambiguous and wh at he might have done to help us resolve t his appeal directly.

This case puts us in an unusual situa tion, since we cannot find facts in an Article 62 appeal. If this was not such a case, I might be inc lined to overturn the military judge’s ruling. I fin d scant support in the record fo r some of the military judge’s conclusions, which make no referen ce to the testimony g iven in the motions hearing. I might als o find he erroneously a pplied the law.

I recognize that we mu st give deference to the military judge’s ruling, but I

find it hard to do so w hen he made no findi ngs of fact reflecti ng the ext ensive, and often contradictory, m otions hearing testi mony in this case. T he accused’s testimony alone accounts for 42 pages of the tra nscript, and hi s testimony is highly probative of the voluntariness of both his confes sion and his c onsent to search.

For example, the accused testif ied on direct exa mination that h e had already told law enforcement “everythin g,” yet it is plain from his two previous statements that his purpose was to deny all criminal misconduct. On cross -examination, the accused acknowledg ed he did not admit to a ny crime in these sta tements. Because the military judge did no t address th is testimony i n his ruling , it is difficult to see how the accused’s prior statements tended t o overbear his will and to coerce his

confession to crim inal conduct.

Similarly, the accused testified on cross-examination that his previous

statements did not im pact his ultimate de cision to confess. Ye t the military judge ruled, “Because the a ccused believed his pre vious statements co uld be used against him, his subsequent waivers were tainted by the lack of a clean sing statement and thus not knowing and voluntary.” Again, the military judge’s f indings of fact are

silent on the motion s hearing testimony, s o it is difficult to see how the military judge weighed the acc used’s testimony, or wh ether he even consi dered it, as part of his totality of the cir cumstances analysis.7 ALLEN

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Finally, I wholly sup port the use of suppl emental rulings, as e ndorsed by our

sister court in Catano and mentioned in a footnote of the lead opinion. Had the military judge issued a supplemental ruling with a more complet e discussion, this court may have been ab le to rule on this appeal directly, rathe r than returning the

case for clarification. Or the government may have elected not to appeal, as appellate counsel acknowledged during oral argum ent. To me, th e use of supplemental rulings might affect a signi ficant number of Artic le 62, UCMJ, appeals and thereby promote efficiency in the system.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: