This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Koda M. HARPOLE, Seaman
United States Coast Guard, Appellant
No. 20-0142
Crim. App. No. 1420
Argued December 2, 2020—Decided February 16, 2021
Military Judges: Christine Cutter and Matthew J. Fay
For Appellant: Lieutenant Commander Jason W. Roberts
(argued); Lieutenant Commander Salomee G. Briggs (on
brief).
For Appellee: Lieutenant Nicholas J. Hathaway (argued);
Captain Vasilios Tasikas and Mark K. Jamison, Esq. (on
brief).
_______________
PER CURIAM. Judge MAGGS filed a separate opinion
concurring in the judgment, in which Senior Judge
CRAWFORD joined.
Contrary to his pleas, Appellant was convicted of making
a false official statement, sexual assault, and housebreaking,
and sentenced to a dishonorable discharge, confinement for
seven years, and reduction to the grade of E-1. United States
v. Harpole, 77 M.J. 231, 232 (C.A.A.F. 2018). In our first re-
view of this case, we:
conclude[d] that a factfinding hearing pursuant to
United States v. DuBay, 17 C.M.A. 147, 37 C.M.R.
411 (1967), [was] necessary because the record
fail[ed] to reflect why trial defense counsel did not
seek to have Appellant’s statements to the victim ad-
vocate suppressed pursuant to the provisions of Ar-
ticle 31(b), Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 831(b) (2012).
United States v. Harpole, No. 20-0142/CG
Opinion of the Court
Id. at 233. Therefore, we set aside the decision by the United
States Coast Guard Court of Criminal Appeals (CCA) and re-
manded the case for a DuBay hearing. Id. at 238 (citing
United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967).
The case is now before us for a second time. Appellant claims
the statements he made to Yeoman First Class (YN1) Holly
Nipp, the victim advocate, were in fact inadmissible at his
court-martial because she did not first advise him of his rights
under Article 31(b), Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 831(b). He further alleges that his trial
defense counsel were ineffective for failing to file a motion to
suppress the statements under Article 31(b). The CCA af-
firmed the findings and sentence, finding that Article 31(b)
warnings were not required under these circumstances, Ap-
pellant’s counsel were not deficient for declining to pursue the
motion, and Appellant was not prejudiced. United States v.
Harpole, 79 M.J. 737, 741–46 (C.G. Ct. Crim. App. 2019). We
hold Article 31(b) warnings were not required and that his
ineffective assistance of counsel claim is moot.
I. Discussion
The first issue is whether YN1 Nipp was required to advise
Appellant of his rights under Article 31(b) before talking with
him. Article 31(b) provides, in relevant part, that “[n]o person
subject to this chapter . . . may interrogate, or request any
statement from, an accused or a person suspected of an of-
fense without first” giving the suspected person the proper
warnings. Article 31(b), UCMJ.
Both parties agree that the sole Article 31(b) question be-
fore us is whether YN1 Nipp “interrogate[d], or request[ed]
any statement” from Appellant while “participating in an of-
ficial law enforcement or disciplinary investigation or in-
quiry.” United States v. Jones, 73 M.J. 357, 361 (C.A.A.F.
2014) (citations omitted) (internal quotation marks omitted);
United States v. Swift, 53 M.J. 439, 446 (C.A.A.F. 2000) (cita-
tion omitted) (internal quotation marks omitted). The answer
is clearly no.
Appellant, accompanied by a friend, Seaman Boatswain’s
Mate (SNBM) Sean Childers, sought YN1 Nipp out in her role
as a victim advocate to report that Appellant had been sex-
ually assaulted by another member of the ship’s crew, the
2
United States v. Harpole, No. 20-0142/CG
Opinion of the Court
same member who filed the sexual assault complaint for
which Appellant was convicted. As the DuBay judge and CCA
found, YN1 Nipp did not do anything that suggested that she
was acting for law enforcement or disciplinary purposes: she
did not take notes, order Appellant or SNBM Childers to an-
swer questions or write statements, or reach out to the Coast
Guard Investigative Service with a report. Harpole, 79 M.J.
at 744–45. In fact, she was so removed from that kind of role
that she had no familiarity with Article 31(b) warnings at all.
Instead, she acted as a supportive victim advocate: she simply
listened to Appellant’s allegation of sexual assault and then
briefed the chain of command about the report, in accordance
with her victim advocate training. Harpole, 79 M.J. at 745.
The few questions that she asked and to which Appellant re-
sponded were not made in an interrogating manner and did
not elicit incriminating statements from Appellant. Id. There-
fore, Appellant’s Article 31(b) claim fails.
The second issue is whether the trial defense counsel pro-
vided ineffective assistance of counsel by failing to move to
suppress Appellant’s statements under Article 31(b). As we
have determined that Appellant was not entitled to Article
31(b) warnings during his interview with YN1 Nipp, Appel-
lant’s ineffective assistance of counsel claim is moot.
II. Judgment
The judgment of the United States Coast Guard Court of
Criminal Appeals is affirmed.
3
United States v. Harpole, No. 20-0142/CG
Judge MAGGS, with whom Senior Judge CRAWFORD
joins, concurring in the judgment.
Appellant contends that his trial defense counsel was in-
effective because he did not seek to suppress Appellant’s in-
criminating statements to a victim advocate, Yeoman First
Class Holly Nipp, under Article 31, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. § 831 (2012). Appellant argues
that his statements were suppressible because he made them
in response to questions by the victim advocate when the vic-
tim advocate was acting in a law enforcement or disciplinary
capacity and when he had not been warned about his right to
remain silent. The Government disagrees for two reasons.
First, the Government asserts that Appellant did not make
the statements in response to any questions by the victim ad-
vocate. Second, the Government asserts that the victim advo-
cate was not interrogating Appellant for a law enforcement or
disciplinary purpose.
The Court agrees with the Government’s second argu-
ment, concluding that the victim advocate “did not do any-
thing that suggested that she was acting for law enforcement
or disciplinary purposes.” The Court therefore affirms the
judgment of the United States Coast Guard Court of Criminal
Appeals (CGCCA). I also would affirm the CGCCA, but I
would do so on the basis of the Government’s first argument.
At a DuBay 1 hearing, a military judge found as a fact that
Appellant did not make any incriminating statements in re-
sponse to the victim advocate’s questions. That should be the
end of the matter. I would not use this case to set a precedent
on the much more complicated question of whether victim ad-
vocates act for law enforcement or disciplinary purposes. 2
1 See United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411
(1967).
2 In previous cases, we have conducted intricate analyses of reg-
ulatory requirements and other factors to determine whether ser-
vicemembers were engaged in a law enforcement or disciplinary
function for the purpose of applying Article 31, UCMJ. See United
States v. Cohen, 63 M.J. 45, 50–52 (C.A.A.F. 2006) (concluding that
an Air Force wing inspector general was engaged in a disciplinary
function); United States v. Raymond, 38 M.J. 136, 138–39 (C.M.A.
1993) (concluding that a psychiatric social worker at an Army hos-
pital was not engaged in a law enforcement function).
United States v. Harpole, No. 20-0142/CG
Judge MAGGS, concurring in the judgment
I. Standard of Review
“It is well-established that a determination regarding the
effectiveness of counsel is a mixed question of law and fact.”
United States v. Wean, 45 M.J. 461, 463 (C.A.A.F. 1997).
“Therefore, the factual findings of the [DuBay] judge are
reviewed under a clearly-erroneous standard, and the
ultimate determinations whether the representation was
ineffective and, if so, whether it was prejudicial are reviewed
de novo.” Id. “A finding of fact is clearly erroneous when there
is no evidence to support the finding, or when, although there
is evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that a
mistake has been committed.” United States v. Criswell, 78
M.J. 136, 141 (C.A.A.F. 2018) (citations omitted) (internal
quotation marks omitted).
II. Discussion
Article 31(b), UCMJ, requires rights warnings if certain
requirements are met. It provides:
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 regard-
ing 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.
This provision, read literally, would require warnings in this
case if the victim advocate (1) was a person “subject to this
chapter” (2) who “request[ed] any statement from” (3) “a per-
son suspected of an offense.” Article 31(b), UCMJ. But in ad-
dition to these three requirements, we have held that “rights
warnings are required [only] if the person conducting the
questioning is participating in an official law enforcement or
disciplinary investigation or inquiry.” United States v. Jones,
73 M.J. 357, 361 (C.A.A.F. 2014) (citation omitted) (internal
quotation marks omitted); see also United States v. Moses, 45
M.J. 132, 134 (C.A.A.F. 1996) (“This Court has held that Ar-
ticle 31(b) applies only to the questioning of a suspect or an
2
United States v. Harpole, No. 20-0142/CG
Judge MAGGS, concurring in the judgment
accused pursuant to ‘an official law-enforcement investiga-
tion or disciplinary inquiry.’ ” (quoting United States v. Shep-
ard, 38 M.J. 408, 411 (C.M.A. 1993))).
In this case, however, we need not decide whether all the
requirements of Article 31(b), UCMJ, and the additional re-
quirement that the victim advocate was acting in a law en-
forcement or disciplinary capacity, were met. Even if rights
warnings were required and were not provided, Appellant’s
statements were not subject to suppression. Article 31(d),
UCMJ, provides: “No statement obtained from any person in
violation of this article . . . may be received in evidence against
him in a trial by court-martial.” (Emphasis added.) Here, Ap-
pellant’s statements were not obtained by the victim advo-
cate’s questioning.
The victim advocate asked Appellant, “ ‘What were you do-
ing in the female berthing area?’ ” This was a request for “[a]
verbal assertion” about what Appellant was doing in the fe-
male berthing area when he visited the victim and so is a re-
quest for a “statement” within the ordinary meaning of that
word. Black’s Law Dictionary 1699 (11th ed. 2019) (entry for
“statement”). If Appellant had made his incriminating state-
ments in response to this question, and if rights warnings
were required, the statement would be suppressible. But Ap-
pellant did not make his statements, incriminating or other-
wise, in response to the victim advocate’s questions. The
DuBay military judge found as facts: (1) that after asking why
Appellant was in the female berthing area, the victim advo-
cate “then immediately gestured to [Appellant] to convey
‘never mind’ ”; (2) that Appellant “made no response to this
question”; and (3) that Appellant “disregarded this . . . ques-
tion and . . . continued unimpeded with his recitation on what
happened on the evening in question.” Indeed, the DuBay
judge found that Appellant’s “statement to [the victim advo-
cate] was not affected at all by this question from [the victim
advocate]” and that Appellant “made no answer to this ques-
tion as the question was withdrawn by [the victim advocate]
before [Appellant] had an opportunity to answer the ques-
tion.” (Emphasis added.)
3
United States v. Harpole, No. 20-0142/CG
Judge MAGGS, concurring in the judgment
These findings of fact are not clearly erroneous because
they are adequately supported by facts in the record. For ex-
ample, defense counsel’s notes from an interview with Sea-
man Boatswain’s Mate Sean Childers record that the victim
advocate “interrupted him and said, ‘so what was your busi-
ness in female berthing anyway?’ then ‘never mind, besides
the point.’ ” Seaman Boatswain’s Mate Childers corroborated
these notes by testifying, as the DuBay military judge found,
that the victim advocate gestured to Appellant “never mind,
continue” and withdrew the question, “telling him he doesn’t
have to answer” it.
Appellant argues that the DuBay military judge’s findings
are clearly erroneous because the military judge “disre-
garded” Appellant’s testimony. But the DuBay judge specifi-
cally found that Appellant’s “recollection of the meeting in the
lounge to not be credible.” On appeal, we “necessarily defer to
the DuBay judge’s determinations of credibility in this re-
gard.” Wean, 45 M.J. at 463.
Because the facts in the record are insufficient to support
a “definite and firm conviction” that the DuBay judge’s find-
ings were mistaken, I conclude that they are not clearly erro-
neous. Criswell, 78 M.J. at 141. Accordingly, we must defer to
the DuBay judge’s finding that the victim advocate’s request
for a statement was withdrawn and had no effect whatever on
Appellant’s subsequent statements about the night in ques-
tion. It follows that these statements were not “obtained from
[Appellant] in violation of this article.” Article 31(d), UCMJ.
III. Conclusion
“Our task here is greatly facilitated by the high quality of
the DuBay record.” Wean, 45 M.J. at 463. In my view, the
judgment of the lower court must be affirmed by simple ap-
plication of the appropriate standard of review, which re-
quires that we defer to the DuBay judge’s factual findings.
Those findings establish that Appellant’s statements were not
obtained from victim advocate’s withdrawn question. I would
affirm on that ground.
4