United States v. Evans

This opinion is subject to revision before publication

UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________

UNITED STATES
Appellee
v.
Asa M. EVANS, First Lieutenant
United States Army, Appellant
No. 16-0019
Crim. App. No. 20130647
Argued May 10, 2016—Decided June 6, 2016
Military Judge: Douglas K. Watkins
For Appellant: Captain Matthew D. Bernstein (argued);
Lieutenant Colonel Jonathan F. Potter and Captain
Heather L. Tregle (on brief); Major Christopher D. Coleman
and Captain Ryan T. Yoder.
For Appellee: Captain Linda Chavez (argued); Colonel
Mark H. Sydenham, Lieutenant Colonel A. G. Courie III,
and Major Steven J. Collins (on brief); Captain Carling M.
Dunham.
Judge OHLSON delivered the opinion of the Court, in
which Chief Judge ERDMANN, and Judges STUCKY,
RYAN, and SPARKS, joined.
_______________

Judge OHLSON delivered the opinion of the Court.

A panel of members sitting as a general court-martial
convicted Appellant, contrary to his pleas, of two specifica-
tions of making false official statements and one specifica-
tion of larceny in violation of Articles 107 and 121, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. §§ 907, 921
(2012). On appeal to the United States Army Court of Crim-
inal Appeals (CCA), Appellant challenged his conviction by
arguing that the military judge erred when he denied his
motion to suppress evidence. In support of his argument,
Appellant cited the fact that the Government obtained in-
criminating statements from him without first advising him
of his rights under Article 31(b), UCMJ, 10 U.S.C. § 831(b)
(2012).
 United States v. Evans, No. 16-0019/AR
Opinion of the Court

In its opinion, the CCA agreed with the substance of Ap-
pellant’s argument. However, after conducting a review of
the Article 31(b), UCMJ, violation for prejudice, the CCA
dismissed only one of the two false official statement specifi-
cations and affirmed the remaining charges. We granted re-
view to determine whether the CCA conducted its prejudice
analysis under the correct standard. The answer, we con-
clude, is yes.
The protections afforded to servicemembers under Article
31(b), UCMJ, are in many respects broader than the rights
afforded to those servicemembers under the Fifth Amend-
ment of the Constitution. See generally United States v.
Swift, 53 M.J. 439, 445 (C.A.A.F. 2000) (“Congress … pro-
vided members of the armed forces with a rights[] warning
requirement that is broader than the warnings required in a
civilian setting as a matter of constitutional law ….”); Unit-
ed States v. Rogers, 47 M.J. 135, 136–37 (C.A.A.F. 1997)
(noting the same). Accordingly, when an Article 31(b),
UCMJ, violation occurs in a particular case, the appropriate
test for prejudice depends upon the facts and circumstances
presented. If the Article 31(b), UCMJ, violation also impli-
cates the constitutional rights of the accused, then the harm-
less beyond a reasonable doubt test applies. But if the Arti-
cle 31(b), UCMJ, violation stands alone as a statutory
violation (that is, if the violation does not also present a con-
stitutional violation) then the nonconstitutional test for
prejudice—spelled out in United States v. Kerr, 51 M.J. 401,
405 (C.A.A.F. 1999)—applies.
In the instant case, although there was a violation of Ap-
pellant’s rights under Article 31(b), UCMJ, that violation did
not also constitute a violation of Appellant’s Fifth Amend-
ment rights. We therefore conclude that the CCA correctly
used the nonconstitutional test for prejudice and, as a result,
affirm the holding below.
I. Background

During the relevant time frame, Appellant served as a
first lieutenant in the United States Army. After questions
arose about whether Appellant was authorized to wear the

2
 United States v. Evans, No. 16-0019/AR
Opinion of the Court

Special Forces Combat Patch,1 Appellant’s battalion com-
mander initiated an investigation under AR 15-6. Dep’t of
the Army, Reg. 15-6, Boards, Commissions, and Committees,
Procedures for Administrative Investigations and Boards of
Officers (Apr. 1, 2016). During the investigation, Appellant
declined to talk with the investigating officer and requested
representation from an attorney. The AR 15-6 investigating
officer ultimately concluded that Appellant had not deployed
to Afghanistan and had worn an unauthorized combat
patch.
When Appellant learned of the investigation’s findings,
he sought to verify his putative Afghanistan deployment by
submitting a dental x-ray that was purportedly from a den-
tal clinic located at Bagram Air Field, Afghanistan. Instead
of allaying suspicions, however, the x-ray raised further
questions about Appellant’s truthfulness.
The Brigade Judge Advocate and Appellant’s attorney
conferred about the AR 15-6 report and whether Appellant
was submitting the x-ray as rebuttal evidence to the report.
Appellant’s attorney informed the Brigade Judge Advocate
that Appellant would execute a statement about the x-ray
and deliver it to the brigade. The Brigade Judge Advocate
then instructed Appellant’s direct supervisor, Major (MAJ)
JH, to verify that Appellant was submitting the x-ray in re-
buttal to the AR 15-6 report. MAJ JH was aware that Appel-
lant was being investigated for “false honors.” At some point,
MAJ JH received an unsigned Memorandum for Record in-
dicating that Appellant had dental work done at Bagram Air

1 Army Regulation (AR) 670-1 provides that the “[a]uthoriza-

tion to wear a [shoulder sleeve insignia] indicating [former war-
time service] applies only to Soldiers who are/were assigned to
U.S. Army units that meet” a certain set of criteria, to include “ac-
tive[] participat[ion] in or support[] [to] ground combat operations
against hostile forces in which [the unit] [was] exposed to the
threat of enemy action or fire, either directly or indirectly.” Dep’t
of the Army, Reg. 670-1, Uniform and Insignia, Wear and Appear-
ance of Army Uniforms and Insignia para. 21-17(a)(1)(b) (Apr. 10,
2015). Notably, Appellant was never charged under Article 134,
UCMJ, 10 U.S.C. § 934, for this conduct.

3
 United States v. Evans, No. 16-0019/AR
Opinion of the Court

Field, Afghanistan, and the x-ray itself purportedly identi-
fied the location and date of the dental work.2
While Appellant was in the field for a network integra-
tion event, MAJ JH took Appellant into a conference room to
ask him about the x-ray and to present Appellant with the
Memorandum for Record.3 He asked Appellant if the x-ray
was submitted in rebuttal to the AR 15-6 report and if the
Memorandum for Record explained Appellant’s intent. Ap-
pellant responded affirmatively to both questions. MAJ JH
then asked Appellant to sign the Memorandum for Record if
he agreed with its contents, and Appellant signed the docu-
ment. At no point during this meeting did MAJ JH advise
Appellant of his rights under Article 31(b), UCMJ, or Mi-
randa v. Arizona, 384 U.S. 436 (1966).
Ultimately, these events—the submission of the x-ray
and the endorsement of the Memorandum for Record—led
the Army to charge Appellant with two specifications of
making false official statements. At trial, Appellant moved
to suppress the statements he made during his meeting with
MAJ JH on the basis that he had not been advised of his Ar-
ticle 31(b), UCMJ, rights. The military judge denied the mo-
tion after concluding that MAJ JH was neither acting in a
disciplinary/law enforcement capacity nor being used as a
pretext to evade the constraints of Article 31(b), UCMJ.
Contrary to his pleas, Appellant was convicted of two
specifications of making false official statements and one
specification of larceny in violation of Articles 107 and 121,
UCMJ. The convening authority approved Appellant’s ad-

2 The origins of the Memorandum for Record are unclear. The
military judge determined that it was “a logical presumption that
the memorandum came from [Appellant’s attorney] and was deliv-
ered to someone in [the Brigade Judge Advocate’s] office in the
field, and then received in a packet by MAJ [JH].” Following oral
argument in this case, Appellant filed a motion on May 13, 2016,
seeking to clarify certain statements regarding the Memorandum
for Record. That motion is granted. In the end, however, the am-
biguous origin of the Memorandum for Record is not a factual
matter that is dispositive in this particular case.
3MAJ JH testified that he brought Appellant to the conference
room because “it was a quiet place where [they] could talk.”

4
 United States v. Evans, No. 16-0019/AR
Opinion of the Court

judged sentence of a dismissal, confinement for one month,
and forfeiture of all pay and allowances.
On appeal, the CCA found that the military judge erro-
neously failed to suppress evidence that had been collected
in violation of Article 31(b), UCMJ.4 The CCA ultimately
dismissed one false official statement specification because
the Memorandum for Record was the “primary evidence ad-
mitted by the government to prove” this specification. Unit-
ed States v. Evans, No. ARMY 20130647, 2015 CCA LEXIS
300, at *14, 2015 WL 4400121, at *4 (A. Ct. Crim. App. July
17, 2015) (unpublished). However, after applying the factors
from Kerr, the CCA further concluded that any error was
harmless with respect to the larceny specification and the
other false official statement specification, which related to
the submitted x-ray. The CCA therefore affirmed the find-
ings for these two offenses, and it also affirmed the approved
sentence following a sentence reassessment. Evans,
2015 CCA LEXIS 300, at *13–16, 2015 WL 4400121, at *4–
5.
We granted review on the following issue:
Where the Army Court of Criminal Appeals found
evidence was admitted in violation of Appellant’s
Article 31(b), UCMJ, rights, did the court err in ap-
plying the Kerr prejudice test as opposed to the
Brisbane harmless beyond a reasonable doubt test?
United States v. Evans, 75 M.J. 204 (C.A.A.F. 2016) (order
granting review). This is a question of law, which we review
de novo. United States v. Springer, 58 M.J. 164, 167
(C.A.A.F. 2003); see also United States v. Paul, 73 M.J. 274,
277 (C.A.A.F. 2014); cf. 3 Steven Alan Childress & Martha S.
Davis, Federal Standards of Review § 15.02, at 15-14 n.74
(4th ed. 2010) (noting that de novo review applies to “the le-
gal question of which standard of review to apply”).

4 Because the Government did not certify whether the CCA
correctly found an Article 31(b), UCMJ, violation, this conclusion
remains the law of the case. See United States v. Ward, 74 M.J.
225, 227 n.3 (C.A.A.F. 2015).

5
 United States v. Evans, No. 16-0019/AR
Opinion of the Court

II. Analysis

Article 31(b), UCMJ, is a statutory precursor to Miranda
warnings5 that implements the Article 31(a), UCMJ, privi-
lege against compulsory self-incrimination. See generally
Swift, 53 M.J. at 444–45. Specifically, Article 31(b), UCMJ,
states:
No person subject to this chapter may interrogate,
or request any statement from, an accused or a per-
son 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 sus-
pected and that any statement made by him may
be used as evidence against him in a trial by court-
martial.
This “warning requirement provides members of the armed
forces with statutory assurance that the standard military
requirement for a full and complete response to a superior’s
inquiry does not apply in a situation when the privilege
against self-incrimination may be invoked.” Swift, 53 M.J. at
445 (emphasis added).
The mere fact that Article 31(b), UCMJ, rights have a
constitutional analog does not change the means by which
those rights are ultimately conferred—that is, by statute—
nor does it otherwise convert those statutory rights into con-
stitutional rights. Indeed, we have explicitly recognized that
Article 31(b), UCMJ, derives primarily from “statutory en-
actment, not constitutional adjudication.” Swift, 53 M.J. at
445 (emphasis added). We further have held that Article
31(b), UCMJ, rights are in certain respects more extensive
than those provided under the Fifth Amendment. See gener-

5 Miranda gave rise to a judicially created, prophylactic rule of
constitutional law requiring that an “accused must be adequately
and effectively apprised of his rights.” Miranda, 384 U.S. at 467.
The Fifth Amendment rights captured by Miranda apply to the
military, United States v. Tempia, 16 C.M.A. 629, 631, 37 C.M.R.
249, 251 (1967), and are distinct from those provided by Article
31(b), UCMJ, Rogers, 47 M.J. at 136–37. Notably, Miranda was
decided by the Supreme Court in 1966, but the statutory warning
requirements for servicemembers first appeared “in the aftermath
of World War II.” Swift, 53 M.J. at 445.

6
 United States v. Evans, No. 16-0019/AR
Opinion of the Court

ally Swift, 53 M.J. at 445; Rogers, 47 M.J. at 136–37. There-
fore, when it comes to such rights, “the Constitution pre-
scribes [a] floor … [not] a ceiling.” Cf., e.g., United States v.
Seljan, 547 F.3d 993, 1013–14 (9th Cir. 2008).
In light of these circumstances, violations of Article
31(b), UCMJ, must be viewed as falling into one of two dis-
tinct categories: either (a) purely statutory violations; or (b)
statutory violations that also present a constitutional viola-
tion. This dichotomy then leads us to the following determi-
nation about the appropriate prejudice test that must be ap-
plied in each instance: (a) purely statutory violations must
be tested for prejudice under the factors provided in Kerr;
and (b) statutory violations that also present a constitution-
al violation must be tested for prejudice under the “harmless
beyond a reasonable doubt” standard, as was done in United
States v. Brisbane, 63 M.J. 106, 116 (C.A.A.F. 2006).
We concede that over the past few decades our opinions
addressing violations of Article 31(b), UCMJ, have not al-
ways clearly drawn, or faithfully observed, this distinction.6
However, we draw this bright line rule today. Accordingly,
any precedent to the contrary is hereby abrogated.
Viewed through the prism provided above, it is clear that
the CCA was correct to apply the nonconstitutional (i.e.,
Kerr) test for prejudice. Two points lead us to this conclu-
sion.
First, Appellant was not subjected to a custodial interro-
gation and therefore suffered no violation of his Fifth
Amendment rights under Miranda. Whether a set of facts
gives rise to a “custodial interrogation” under Miranda de-
pends upon whether a suspect “reasonably believed that his
‘freedom of action [was] curtailed to a ‘degree associated
with formal arrest.’” United States v. Schake, 30 M.J. 314,

6 Importantly, we are aware of no instances where this Court
has applied the nonconstitutional test for prejudice to an Article
31(b), UCMJ, violation that implicated constitutional rights. How-
ever, it is apparent that we have applied the constitutional test
(i.e., the “harmless beyond a reasonable doubt” test) to purely
statutory violations under Article 31(b), UCMJ. See, e.g., United
States v. Guyton-Bhatt, 56 M.J. 484, 487 (C.A.A.F. 2002); United
States v. Pittman, 36 M.J. 404, 408 (C.M.A. 1993).

7
 United States v. Evans, No. 16-0019/AR
Opinion of the Court

318 (C.M.A. 1990) (alteration in original) (emphasis omitted)
(citations omitted). In making this determination, courts
consider: “(1) whether the person appeared for questioning
voluntarily; (2) the location and atmosphere of the place in
which questioning occurred[;] and (3) the length of the ques-
tioning.” United States v. Chatfield, 67 M.J. 432, 438
(C.A.A.F. 2009).
The record before us demonstrates that Appellant’s par-
ticipation in the questioning was voluntary. To begin, the
facts indicate there was some coordination between Appel-
lant’s counsel and the Brigade Judge Advocate regarding
having Appellant submit a statement about the disputed
dental x-ray. Furthermore, when MAJ JH initiated his en-
counter with Appellant, MAJ JH asked him to step into a
conference room simply because “it was a quiet place where
[they] could talk.” Once there, it appears that MAJ JH only
did two things: he asked Appellant whether the x-ray was
submitted in rebuttal to his AR 15-6 investigation, and upon
receiving an affirmative response, he requested that Appel-
lant sign a Memorandum for Record to that effect. Although
there is little indication as to how long this exchange took,
there is no basis upon which to conclude that Appellant
“reasonably believed that his ‘freedom of action [was] cur-
tailed to a ‘degree associated with formal arrest.’” Schake, 30
M.J. at 318 (alteration in original) (emphasis omitted) (cita-
tions omitted); see, e.g., United States v. Catrett, 55 M.J. 400,
404 (C.A.A.F. 2001) (finding interrogation custodial where
accused was told “he was not free to leave” and “was under
constant police supervision”) (internal quotation marks
omitted). As a result, the Article 31(b), UCMJ, violation did
not also implicate Appellant’s Fifth Amendment rights un-
der Miranda.
Second, the failure to provide an Article 31(b), UCMJ,
warning under the attendant circumstances was not itself so
egregious that it prompted any other violation of the Fifth
Amendment. There inarguably exist subtle pressures in mil-
itary society that are not present in the civilian world, see
generally United States v. Armstrong, 9 M.J. 374, 378
(C.M.A. 1980), and these pressures—in concert with other,
case-specific circumstances—may cause a servicemember
who is not in a custodial setting to nonetheless involuntarily

8
 United States v. Evans, No. 16-0019/AR
Opinion of the Court

inculpate himself. If the totality of the circumstances indi-
cate that a servicemember’s will was overborne, and his or
her inculpatory statements were not a product of self-
determination, there may well exist a constitutional viola-
tion under the Fifth Amendment. See Beckwith v. United
States, 425 U.S. 341, 347–48 (1976); cf., e.g., United States v.
Ellis, 57 M.J. 375, 378–79 (C.A.A.F. 2002). However, we are
not faced with such a case here.
Ultimately, then, the facts of this case reflect a statutory
violation of Article 31(b), UCMJ, and not a constitutional
violation under the Fifth Amendment. Accordingly, we hold
that the CCA correctly applied the nonconstitutional test for
prejudice.
III. Decision

The decision of the United States Army Court of Crimi-
nal Appeals is affirmed.

9