United States v. Nelson

This opinion is subject to revision before publication

UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________

UNITED STATES
Appellee
v.
Joseph R. NELSON, Lieutenant Commander
United States Navy Reserve, Appellant
No. 21-0216
Crim. App. No. 201900239
Argued December 7, 2021—Decided July 22, 2022
Military Judge: Arthur L. Gaston III
For Appellant: Major Anthony M. Grzincic, USMC (argued).
For Appellee: Lieutenant Megan E. Martino, JAGC, USN
(argued); Lieutenant Colonel Christopher G. Blosser,
USMC, Major Clayton L. Wiggins, USMC, and Brian K.
Keller, Esq. (on brief); Lieutenant Colonel Nicholas L.
Gannon, USMC.
_______________

PER CURIAM.
The decision of the United States Navy-Marine Corps
Court of Criminal Appeals (NMCCA) is hereby affirmed.

Chief Judge OHLSON filed a separate opinion, concurring in
the judgment, in which Judge SPARKS and Judge HARDY
joined as to Part II. Judge MAGGS filed a separate opinion
concurring in the judgment, in which Senior Judge CRAWFORD
joined. Judge SPARKS filed a separate opinion dissenting from
the judgment. Judge HARDY filed a separate opinion dissenting
from the judgment, in which Judge SPARKS joined.
I. Overview of the Case

Appellant was charged with multiple offenses. Relevant to
the issue before us, these charges included one specification
of service-discrediting conduct for patronizing prostitutes in
violation of Article 134, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 934 (2012), and one specification of
conduct unbecoming an officer for “fail[ing] to report
misconduct committed by other members of the uniformed
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Judgment of the Court

services, including patronizing prostitutes and sex
trafficking” in violation of Article 133, UCMJ, 10 U.S.C. § 933
(2012).1
Before trial, Appellant moved to suppress an
incriminating statement he gave to agents from the Naval
Criminal Investigative Service (NCIS), arguing that the
agents who questioned him violated his rights under Article
31(b), UCMJ, 10 U.S.C. § 831(b) (2018). Specifically,
Appellant conceded he was properly warned that he was
suspected of patronizing prostitutes, but he asserted that the
Article 31(b) warning he received was insufficient to orient
him to the sex trafficking offense which the NCIS agents
suspected him of committing.
During the Article 39(a), UCMJ, 10 U.S.C. § 839(a) (2018),
session regarding Appellant’s suppression motion, the
military judge “conclud[ed] that Article 31(b) was not
complied with” by the NCIS agents. As a remedy, rather than
suppress the entire statement or any portion thereof, the
military judge instead chose to dismiss the Article 133,
UCMJ, “conduct unbecoming” charge related to Appellant’s
failure to report the misconduct of other servicemembers. The
NMCCA affirmed on this point. United States v. Nelson, 80
M.J. 748, 754 (N-M. Ct. Crim. App. 2021).
This Court granted review to determine whether the
military judge erred in failing to suppress for all purposes

1 Appellant initially was charged with one specification of
desertion in violation of Article 85, UCMJ, 10 U.S.C. § 885 (2018);
one specification of making a false official statement in violation of
Article 107, UCMJ, 10 U.S.C. § 907 (2018); four specifications of
conduct unbecoming an officer in violation of Article 133, UCMJ;
and three specifications of acts in violation of Article 134, UCMJ.
One of the specifications for conduct unbecoming an officer alleged
that Appellant did “wrongfully and dishonorably fail to report
misconduct committed by other members of the uniformed services,
including patronizing prostitutes and sex trafficking.” One of the
specifications alleging a violation of Article 134, UCMJ, asserted
that Appellant had violated a federal sex trafficking law, 18 U.S.C.
§ 1591 (2012), by “patroniz[ing] a person knowing that force, fraud,
and coercion . . . would be used to cause the person to engage in a
commercial sex act.”

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Judgment of the Court

Appellant’s statement to NCIS that was taken in violation of
Article 31(b), UCMJ.2
II. Background

Appellant is an officer in the United States Navy Reserve.
While on active duty and deployed in Bahrain, he patronized
prostitutes and allowed prostitutes to live with him in his
government quarters. On January 23, 2018, NCIS agents
interviewed Appellant at the NCIS office aboard Naval
Support Activity Bahrain. Before asking him any questions,
the agents warned him that he had a right to remain silent.
They also informed Appellant that he was suspected of
violating “Article 134, which is prostitution.” The NCIS
agents, however, did not advise Appellant that he was also
suspected of violating Article 133, UCMJ, conduct
unbecoming an officer, by failing to report similar misconduct
by others.
During the interview, the agents downplayed Appellant’s
potential criminal liability and told him that their real
concern was the involvement of other servicemembers in sex
trafficking. For example, one NCIS agent told Appellant: “I
was really hoping that you’d be my . . . whistleblower.”
Appellant ultimately admitted to the NCIS agents that he
patronized prostitutes and allowed prostitutes to live in his
home, and that he failed to report other servicemembers’
involvement with prostitutes.
Before trial, Appellant submitted three written
suppression motions. In the first motion, he sought

2 The assigned issue is:
Article 31(d), UCMJ[,] requires suppression of
statements taken in violation of Article 31(b). After
the military judge determined that NCIS agents
violated Article 31(b) because their rights
advisement did not properly orient Appellant to the
nature of the suspected misconduct, did the military
judge err by only suppressing the statement as it
related to one specific offense, but then allowing the
evidence to be admitted for the remainder of the
offenses?
United States v. Nelson, 81 M.J. 452, 452–53 (C.A.A.F. 2021) (order
granting review).

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Judgment of the Court

suppression of his entire statement to the NCIS agents on
January 23, 2018, on the grounds that the statement was
“obtained through the use of coercion, unlawful influence, or
unlawful inducement.” The military judge denied this motion
as unsupported by the “totality of the circumstances.” In the
second motion, Appellant sought suppression of his entire
statement to the NCIS agents on the grounds that the agents
had not warned him, as required by Article 31(b), that he was
suspected of sex trafficking in violation of Article 134, UCMJ,
and 18 U.S.C. § 1591. The military judge denied this motion,
concluding that “the accused was oriented to” the Article 134,
UCMJ, offenses with which he was charged, i.e., all of his own
“prostitution-related misconduct.” In the third motion,
Appellant sought suppression of certain portions of his
statement to the NCIS agents on the grounds that they were
inadmissible hearsay. The military judge ruled that he would
admit the challenged portions of the statement but would give
instructions limiting their use.
In these three written motions, Appellant did not mention
the Article 133, UCMJ, specification regarding his failure to
report criminal misconduct by other servicemembers. The
military judge, however, brought up this specification sua
sponte in an Article 39(a), UCMJ, session during which the
parties discussed Appellant’s motions. The military judge
asked counsel whether the NCIS agents had violated Article
31(b), UCMJ, by not warning Appellant that he was
suspected of violating Article 133, UCMJ, by failing to report
the misconduct of others. The military judge then heard
extemporaneous arguments on this question from counsel on
both sides. The military judge also asked counsel to address
the appropriate remedy for the possible violation of Article
31(b), UCMJ. The military judge proposed that one remedy
might be to “suppress the use of the statement with respect
to that specification.” The military judge suggested that
another remedy might be to “dismiss the specification” if the
Government did not have “any additional evidence” to prove
the specification. Trial counsel agreed that suppression and
dismissal “could be a potential remedy” if the military judge
found that the NCIS agents had violated Article 31(b), UCMJ.
Trial defense counsel agreed that “the use of the statement
for that charge would be completely inappropriate.”

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Judgment of the Court

In a subsequent written ruling, the military judge stated
that “Article 31(b) was generally complied with in this case”
because most of the charges were related to prostitution and
the warning properly oriented Appellant to those activities.
However, the military judge ruled that the warning “did not
orient the accused toward the fact that his failure to report
prostitution-related misconduct by other service members (a)
was a crime that (b) he was suspected of.” (Emphasis
removed.) Therefore, the military judge ruled that
Appellant’s statement to the NCIS agents “may not be used
to prove [the Article 133] specification against the accused.”
And because the Government had no other evidence to
support that specification, the military judge dismissed it
without prejudice.
III. Procedural Posture

Following a contested trial on the remaining charges and
specifications, a general court-martial with members found
Appellant guilty of one specification of unauthorized absence
terminated by apprehension (as a lesser included offense of
desertion), two specifications of conduct unbecoming an
officer, and one specification of patronizing prostitutes, in
violation of Articles 86, 133, and 134, UCMJ. The court-
martial found him not guilty of making a false official
statement in violation of Article 107, UCMJ. The court-
martial sentenced Appellant to forfeit $7,596 pay per month
for four months and to be dismissed. The convening authority
approved the findings and approved the sentence subject to
certain minor adjustments to the amount of the forfeited pay
not relevant here.
On appeal, the NMCCA affirmed all but one of the
findings of guilt. Nelson, 80 M.J. at 760. The NMCCA set
aside the finding that Appellant had committed conduct
unbecoming an officer by making a false statement,
concluding that the evidence was legally insufficient to
support the finding. Id. at 758. After dismissing this
specification with prejudice, the NMCCA reassessed the
sentence, affirming only a forfeiture of $6,596 pay per month
for four months and a dismissal. Id. at 760.
In his appeal to the NMCCA, Appellant argued that the
military judge had abused his discretion by suppressing

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Judgment of the Court

Appellant’s statements only as to the Article 133 “failure to
report” specification while allowing the Government to use
the statements to prove the remaining specifications. Id. at
754. The NMCCA disagreed, holding that “[i]f the suspect . . .
makes an otherwise voluntary statement, . . . although such
a statement is inadmissible as to unwarned offenses, it is
admissible vis-à-vis the warned offenses.” Id. at 753. The CCA
reasoned that “to hold that Appellant’s statement must be
suppressed as to these warned offenses would be to confer
upon him an unwarranted windfall inconsistent with public
policy.” Id. at 754.3
IV. Disposition

As reflected in their respective separate opinions, three
judges conclude that Appellant did not waive the assigned
issue before this Court.
As also reflected in their respective separate opinions,
three judges conclude that the decision of the United States
Navy-Marine Corps Court of Criminal Appeals should be
affirmed. Therefore, this is the holding of the Court in this
case.

3 In a footnote, the NMCCA reasoned that even if the military
judge had erred, Appellant suffered no prejudice with respect to the
findings or sentence because “failure to report the misconduct of
another is not prima facie evidence that Appellant had [a] bad
character or a criminal predisposition.” Id. at 754 n.21.

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Chief Judge OHLSON, with whom Judge SPARKS and
Judge HARDY join as to Part II, concurring in the judgment.

I. Disposition of the Case

For the reasons provided in section three of this opinion, I
conclude that the decision of the United States Navy-Marine
Corps Court of Criminal Appeals (NMCCA) should be af-
firmed. Judge Maggs and Senior Judge Crawford agree with
this conclusion but on different grounds. Specifically, as re-
flected in the opinion authored by Judge Maggs and joined by
Senior Judge Crawford, they believe that Appellant waived
his argument that the military judge should have suppressed
for all purposes the statement he gave to investigators. De-
spite these differing rationales, we three judges are in agree-
ment regarding the proper disposition of this case. Therefore,
this Court holds that the decision of the United States Navy-
Marine Corps Court of Criminal Appeals is affirmed.
II. Waiver

For the reasons provided immediately below, I conclude
that Appellant did not waive his argument that the military
judge should have suppressed for all purposes the statement
he gave to investigators. As reflected in their respective opin-
ions, both Judge Sparks and Judge Hardy concur with this
conclusion. Therefore, three judges of this Court are in accord
that waiver does not apply in this case.
The purpose of the waiver doctrine is “to promote the effi-
ciency of the entire justice system by requiring the parties to
advance their claims at trial, where the underlying facts can
best be determined.” United States v. King, 58 M.J. 110, 114
(C.A.A.F. 2003). In this case, Appellant’s suppression argu-
ment was indeed presented to, discussed at length with, and
ruled on by the military judge. Therefore, in my view, waiver
simply does not apply here.
Consistent with the requirements of Military Rule of Evi-
dence (M.R.E.) 103(a)(1)(A)–(B), the record in this case shows
that Appellant “timely object[ed]” to the admission of his
statements to NCIS on the “specific ground” that they were
obtained in violation of Article 31(b), Uniform Code of Mili-
tary Justice (UCMJ), 10 U.S.C. § 831(b) (2018). Specifically,
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Chief Judge OHLSON, concurring in the judgment

in a supplement to his motion to suppress, Appellant re-
quested the “suppress[ion of] the statement made by [him] to
NCIS Special Agent[s] . . . on 23 January 2018.” Appellant
grounded this request in Article 31(b), UCMJ, and argued
that the warning given to him by the NCIS special agents was
insufficient to orient him to a human trafficking charge.
In addition, during the Article 39(a), UCMJ, 10 U.S.C.
§ 839(a) (2018), session at which the parties discussed this
motion with the military judge:
 The Government acknowledged that one of the bases
for Appellant’s motion was, broadly stated, whether
the NCIS agents “provide[d] . . . sufficient notice of [his
Article] 31(b) rights to put the accused on notice of
what he might be suspected of.”
 Appellant’s counsel clarified Appellant’s view that the
warning as to patronizing prostitutes fell “drastically
short of everything else [NCIS] suspected him of, [of]
which the biggest concern is the human trafficking
charge.” (Emphasis added.)
 The military judge indicated that he understood Ap-
pellant to be challenging the admissibility of his state-
ments to NCIS as to all of the charges against him,
noting that “the conduct unbecoming[ charges]
are . . . with one exception . . . going to . . . activities”
related to the sufficiently warned offense of “patroniz-
ing prostitutes.” (Emphasis added.)1
 The military judge asked the parties about their “posi-
tion[s] with respect to the [specification concerning]
failing to report conduct committed by others under
the conduct unbecoming [charge].”
 The military judge acknowledged that the argument
that the NCIS agents violated Article 31(b), UCMJ, “is
the argument the Defense is making with respect to

1 One can deduce from the record that this “one exception” was
the “conduct unbecoming” charge concerning Appellant’s “fail[ure]
to report misconduct committed by other members of the uniformed
services” because the only other “conduct unbecoming” charge re-
lated to Appellant’s activities abroad concerned “cohabitat[ing]
with known prostitutes.”

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Chief Judge OHLSON, concurring in the judgment

everything,” and indicated that he was considering the
suppression argument in relation to each of the
charges. (Emphasis added.)2
As can be seen then, the defense’s broader Article 31(b),
UCMJ, suppression argument was sufficiently “apparent
from the context” of the motion for the military judge to ask
the parties about it and to rule on it. M.R.E. 103(a)(1)(B). And
in his ruling, the military judge made specific findings of fact

2 This portion of the colloquy proceeded as follows:
MJ: And so I—at the end of the day, I mean, I
think going back to your very original question,
which is could you as a remedy, if you find that to be
problematic, dismiss that particular charge.
MJ: Or essentially maybe suppress the use of the
statement with respect to that specification. Then it
would be up to the Government to decide whether
you’ve got any additional evidence. And so you would
dismiss the specification potentially. I guess I—
TC: I think you have the authority in—I believe
you have the authority as a potential remedy to dis-
miss charges in this instance because I think, if I re-
call, the Rule says, you know, suppression or any
other appropriate remedy.
MJ: Okay.
TC: So I think that could be a potential remedy.
MJ: I’m not saying I’m going to, but I did—in go-
ing through the statement, this is the argument the
Defense is making with respect to everything.
TC: Yes, sir.
MJ: But I’m less persuaded on patronizing forms
of activity that are chargeable under different charg-
ing regimes as the Government has done, like [the]
sex trafficking statute or conduct unbecoming or
straight [Article] 134. In terms of orienting an ac-
cused to those offenses, I’m less persuaded that he
wasn’t oriented to those, but I do have a concern
about the failure to report others when he’s asked
about that. Okay.
(Emphasis added.)

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Chief Judge OHLSON, concurring in the judgment

and conclusions of law regarding the admissibility of Appel-
lant’s statement in relation to each charge. The military judge
ultimately concluded “that Article 31(b) was not complied
with” as to the charge concerning Appellant’s “failure to re-
port prostitution-related misconduct by other service mem-
bers,” but was complied with “[i]nsofar as the accused was
questioned about . . . [and] charged . . . with . . . patronizing
prostitutes . . . or conduct unbecoming an officer . . . due to co-
habitation and public association with prostitutes.”
As this Court held in United States v. Brandell, “Where
. . . all parties at trial fully appreciate the substance of the
defense objection and the military judge has full opportunity
to consider it, waiver should not apply.” 35 M.J. 369, 372
(C.M.A. 1992). Accordingly, I conclude that there was no
waiver here.
III. The Granted Issue

For the reasons provided immediately below, I conclude
that the military judge did not abuse his discretion when he
decided to dismiss only the specification as to which Appel-
lant’s statement was insufficiently warned. See United States
v. Gore, 60 M.J. 178, 187 (C.A.A.F. 2004) (“[T]he abuse of dis-
cretion standard of review recognizes that a judge has a range
of choices and will not be reversed so long as the decision re-
mains within that range.”). Because Judge Maggs and Senior
Judge Crawford conclude that the waiver doctrine applies,
they do not reach this issue. Further, for the reasons stated
in their respective opinions, Judge Sparks and Judge Hardy
disagree with my conclusion and would hold that the remedy
imposed by the military judge was insufficient to cure the Ar-
ticle 31(b) violation. Because no set of three or more judges
agrees on this point, nothing in this section of my opinion
serves as precedent.
Article 31(d), UCMJ, provides that “[n]o statement ob-
tained from any person in violation of this article, or through
the use of coercion, unlawful influence, or unlawful induce-
ment may be received in evidence against him in a trial by
court-martial.” M.R.E. 305(c)(1) similarly provides that “[a]
statement obtained from the accused in violation of the ac-
cused’s rights under Article 31 is involuntary and therefore

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Chief Judge OHLSON, concurring in the judgment

inadmissible against the accused.” However, in certain in-
stances where an appellant’s statements were “voluntary” as
to some charges but “involuntary” as to others, this Court has
dismissed only the charges as to which the Article 31(b),
UCMJ, warning was insufficient.
In United States v. Reynolds, the appellant was suspected
of absence without leave (AWOL) and wrongful appropriation
of another servicemember’s car. 16 C.M.A. 403, 404, 37
C.M.R. 23, 24 (1966). “However, although [the investigating
agent] suspected Reynolds of taking Colonel Parker’s car, he
did not so advise” the appellant before interrogating him, ap-
parently telling the appellant that he was only inquiring into
his activities while absent without leave. Id., 37 C.M.R. at 24.
Because the appellant was not warned that he was suspected
of wrongful appropriation of the car, the Reynolds Court held
“that the accused’s statement was obtained without proper
advice under . . . Article 31, and was, therefore, inadmissible
in evidence against him.” Id. at 406, 37 C.M.R. at 26. Im-
portantly, however, although the Court then set aside the
finding of guilty as to the wrongful appropriation charge, it
did not disturb the finding of guilty as to the AWOL charge.
Id. at 407, 37 C.M.R. at 27.
Similarly, in United States v. Johnson, the appellant ab-
sconded from authorized leave in Thailand “with the intent to
contact the Viet Cong or North Vietnamese regulars . . . . ‘and
teach [them] something of Christianity and of moral respon-
sibilities.’ ” 20 C.M.A. 320, 321, 43 C.M.R. 160, 161 (1971).
The agent who interrogated the appellant suspected him of
both (1) going AWOL and (2) attempting to make contact with
the enemy. However, the agent only warned the appellant as
to the first charge. Id. at 322, 43 C.M.R. at 162. The Johnson
Court held that the appellant’s statement “was not admissible
in evidence” in light of this clear Article 31(b) violation. Id. at
323, 43 C.M.R. at 163. Despite this holding, however, the
Court did not remand for a new trial but instead only dis-
missed the contact with the enemy charge “[s]ince the ac-
cused’s statement . . . is the only evidence in the record relat-
ing to this offense.” Id. at 324–25, 43 C.M.R. at 164–65. The
Court in Johnson made no reference to the fact that the gov-
ernment used the appellant’s own insufficiently warned
statements against him in the course of prosecuting him on

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Chief Judge OHLSON, concurring in the judgment

the AWOL charge, and the Court provided Appellant no relief
on those grounds.
Consistent with the approach taken by this Court in Reyn-
olds and Johnson, and consistent with the position taken by
the military judge and the NMCCA in the instant case, I con-
clude that when law enforcement officers suspect an accused
of more than one offense but fail to adequately warn the ac-
cused under Article 31(b) of all of those offenses, it does not
constitute an abuse of discretion for the military judge to dis-
miss only those offenses which were insufficiently warned or
to suppress only those portions of the statement pertaining to
the insufficiently warned offenses. In other words, I conclude
that a military judge is not compelled to suppress the entire
statement given by an accused merely because agents failed
to sufficiently warn the accused under Article 31(b) of some of
the offenses of which he was suspected.3
In the instant case, the military judge was presented with
an interrogation in which the characterization of statements
as insufficiently warned or sufficiently warned—involuntary
or voluntary—depended on which charge they were used for.
Rather than suppressing the entire statement, the military
judge simply dismissed the charge that would have rendered
the statements involuntary. Based on the facts of this case,
the applicable provisions of Article 31 and M.R.E. 305, and
precedents of this Court, I conclude that the military judge
did not abuse his discretion in doing so. Accordingly, I con-
clude that the decision of the United States Navy-Marine
Corps Court of Criminal Appeals should be affirmed.

3 My colleague, Judge Sparks, raises a very important point:
The question of whether the admission of a statement violated Ar-
ticle 31, UCMJ, is separate from the question of whether that state-
ment was otherwise admissible at trial. As Judge Sparks carefully
explains, in those cases where insufficiently warned statements are
offered by the government, the contents of those statements may
implicate the prohibition against the use of evidence of uncharged
misconduct. See M.R.E. 404(b)(1). Therefore, the question of
whether insufficiently warned statements are admissible at a
court-martial must be litigated at the trial level. However, as Judge
Sparks also correctly points out, the defense in the instant case did
not raise at trial or on appeal the underlying M.R.E. 404(b) issue.

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Judge MAGGS, with whom Senior Judge CRAWFORD
joins, concurring in the judgment.
I concur in the Court’s judgment because, in my view, Ap-
pellant did not make a timely request for the suppression that
he now asserts the military judge should have granted. Ac-
cordingly, any argument for additional suppression was
waived by operation of law under Military Rule of Evidence
(M.R.E.) 304(f)(1). Because Appellant has presented no other
grounds for relief, I agree that the Court must affirm the
United States Navy-Marine Corps Court of Criminal Appeals
(NMCCA).1
I. Waiver

As described above, Appellant argues before this Court
that the military judge erred by only suppressing the state-
ment that he made to the Naval Criminal Investigative Ser-
vice (NCIS) agents on January 23, 2018, as it related to the
“failing to report” specification, but then allowing the state-
ment to be admitted as evidence with respect to specifications
alleging other offenses. The Government responds, in part,
that Appellant waived this argument by not preserving it at
trial. Specifically, the Government asserts: “Appellant’s sup-
pression motions did not identify the grounds for exclusion
that the Military Judge ultimately ruled on, and his consent

1 Readers of the opinions in this case should take care to note
how the issues have divided the Court. The Supreme Court has ex-
plained that when no opinion of the Court commands a majority,
“the holding of the court may be viewed as that position taken by
those [m]embers who concurred in the judgments on the narrowest
grounds,” Marks v. United States, 430 U.S. 188, 193 (1977) (internal
quotation marks omitted) (quoting Gregg v. Georgia, 428 U.S. 153,
169 n.15 (1976)). But sometimes deciding that one opinion is nar-
rower than another is not possible. “[O]ne opinion can be meaning-
fully regarded as ‘narrower’ than another . . . only when one opinion
is a logical subset of other, broader opinions.” United States v. Da-
vis, 825 F.3d 1014, 1020 (9th Cir. 2016) (internal quotation marks
omitted) (quoting King v. Palmer, 950 F.2d 771, 781 (D.C. Cir.
1991)). In this case, of the three judges who concur in the judgment
to affirm, two do so based on waiver and one does so based on Article
31, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 831
(2018). Neither of these grounds is a subset of the other. Therefore,
although the Court has decided this appeal, it unfortunately has
produced no holding for courts to follow in the future.
 United States v. Nelson, No. 21-0216/NA
Judge MAGGS, concurring in the judgment

to the Military Judge’s remedy was the only request for relief
Appellant made with respect to those grounds.”
The rules governing this appeal are not disputed. M.R.E.
304(a) provides that an “involuntary statement from the ac-
cused,” which is defined to include a “statement obtained in
violation of . . . Article 31,” UCMJ, is “inadmissible at trial.”
M.R.E. 304(a)(1)(A); see United States v. Gilbreath, 74 M.J.
11, 18 (C.A.A.F. 2014) (addressing the application of M.R.E.
304(a) to violations of Article 31, UCMJ). M.R.E. 304(f)(1),
however, provides that a failure to move for suppression of
statements obtained in violation of Article 31, UCMJ, in a
timely manner results in a waiver by operation of law of any
objection to their admission. M.R.E. 304(f)(1) provides: “Mo-
tions to suppress or objections under this rule . . . must be
made by the defense prior to submission of a plea. . . . Failure
to so move or object constitutes a waiver of the objection.” See
United States v. Ahern, 76 M.J. 194, 197 (C.A.A.F. 2017)
(holding that M.R.E. 304(f)(1) “is not a case where the rule
uses the word ‘waiver’ but actually means ‘forfeiture’ ”).
M.R.E. 103(a)(1) prescribes the method for preserving an
objection to the admission of evidence, stating: “A party may
claim error in a ruling to admit . . . evidence . . . if . . . a party,
on the record: (A) timely objects . . . and (B) states the specific
ground, unless it was apparent from context.” (Emphasis
added.) As we explained in United States v. Datz, 61 M.J. 37,
42 (C.A.A.F. 2005), “M.R.E. 103 does not require the moving
party to present every argument in support of an objection,
but does require argument sufficient to make the military
judge aware of the specific ground for objection.” Accordingly,
to prevent waiver by operation of law under M.R.E. 304(f)(1),
“the defense need only make an offer of proof and be timely
and specific in raising its point.” 1 Stephen A. Saltzburg et
al., Military Rules of Evidence Manual § 304.02[8][a] at 3-108
(9th ed. 2020) (emphasis added); see also M.R.E. 304(f)(4)
(“The military judge may require the defense to specify the
grounds upon which the defense moves to suppress . . . evi-
dence.”). If a party fails to make the military judge aware of
the specific ground for an objection, the issue is not preserved.
Cf. United States v. Perkins, 78 M.J. 381, 390 (C.A.A.F. 2019)
(finding waiver under M.R.E. 311 where a party sought sup-
pression on appeal on a ground that was not raised below).

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 United States v. Nelson, No. 21-0216/NA
Judge MAGGS, concurring in the judgment

In this case, in the words of M.R.E. 103(a)(1), Appellant is
“claim[ing] error in [the] ruling to admit” into evidence his
statement to the NCIS agents on January 23, 2018. Appellant
contends that this statement should have been suppressed on
the specific ground that the NCIS agents did not warn him
that they suspected him of the offense of conduct unbecoming
an officer by failing to report the misconduct of others. The
question for this Court is whether Appellant “timely ob-
ject[ed]” to admission of this “evidence” on the “specific
ground” that he now asserts. M.R.E. 103(a)(1). The objection
would be timely if made “prior to submission of a plea” but not
if made for the first time on appeal. M.R.E. 304(f)(1).
Appellant had two opportunities to preserve his suppres-
sion argument under M.R.E. 304(a). He could have preserved
it either (A) in his three written suppression motions or (B) in
statements that trial defense counsel made to the military
judge during the session on the written motions held under
Article 39(a), Uniform Code of Military Justice (UCMJ), 10
U.S.C. § 839(a) (2018). For the reasons explained below, I con-
clude that he did not preserve his current argument in either
way. The argument therefore was waived by operation of law
under M.R.E. 304(f)(1).
A. The Written Suppression Motions
In his three written suppression motions, Appellant did
not argue the “specific ground” for suppression that he asserts
now. As described above, Appellant’s motions sought suppres-
sion of statements made to the NCIS agents on three specific
grounds: (1) the statements were “obtained through use of co-
ercion, unlawful influence, or unlawful inducement”; (2) Ap-
pellant was not warned about possible charges under 18
U.S.C. § 1591 as required by Article 31(b), UCMJ; and (3) the
statements were hearsay. Nowhere in these motions did Ap-
pellant mention the “failing to report” specification. And
therefore nowhere in these motions did Appellant specifically
ask for suppression of any statements based on the NCIS
agents’ failure to warn him about this offense.
Appellant, however, argues that the NCIS agents’ failure
to warn him about the offense of “ ‘failure to report known
misconduct of other service members’ . . . [was] part and par-
cel of the defense’s motion[s]” for suppression and that the

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 United States v. Nelson, No. 21-0216/NA
Judge MAGGS, concurring in the judgment

military judge recognized it as such. I agree that under
M.R.E. 103(a)(1)(B), a party can preserve an objection to the
admission of evidence implicitly where the nature of the ob-
jection was not explicit but “was apparent from the context.”
But I do not agree that Appellant, in his written motions, im-
plicitly requested suppression of his statement to the NCIS
agents on grounds that the NCIS agents failed to warn him
that he was suspected of conduct unbecoming an officer in vi-
olation of Article 133, UCMJ, because he failed to report the
misconduct of others.
The record makes clear that neither the military judge nor
the trial defense counsel understood the three written mo-
tions to address the “failing to report” offense. During the Ar-
ticle 39(a), UCMJ, session, the military judge described his
concerns about this offense as “new stuff” and accordingly
asked Appellant if he wanted to be heard on the subject. Ap-
pellant also recognized that the subject was not raised in his
written motions. Indeed, he expressly conceded that the mat-
ter “was not discussed in our motion[s].” Reviewing the writ-
ten motions myself, I agree with this assessment. The “failing
to report” offense accordingly was not “part and parcel” of any
of the written motions.
B. The Article 39(a), UCMJ, Session
As described above, at the Article 39(a), UCMJ, session,
the military judge brought up sua sponte that the NCIS
agents did not warn Appellant that they suspected him of vi-
olating Article 133, UCMJ, by failing to report the misconduct
of others. The military judge proposed remedying this error
by barring the Government from introducing Appellant’s
statement as evidence with respect to the “failing to report”
specification. Appellant agreed to this remedy. But Appellant
never objected to the admission into evidence of his statement
to the NCIS agents with respect to any other specifications on
the specific ground that the NCIS agent had not warned him
that he was suspected of an offense for failing to report others.
In his brief, Appellant cites only two passages from the
record of the Article 39(a), UCMJ, session in support of his
claim that he preserved his objection. First, he asserts that
“the prosecutor specifically acknowledged that defense
wanted the entire statement suppressed, stating ‘Well, the

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 United States v. Nelson, No. 21-0216/NA
Judge MAGGS, concurring in the judgment

Defense is moving to suppress the statement as a whole.” But
trial counsel in this passage was talking about one of Appel-
lant’s written motions to suppress. Trial counsel actually
said: “Well, the Defense is moving to suppress the statement
as a whole because they say that it is—I mean, they have mul-
tiple reasons why they—in their motion.” At that point, the
military judge interrupted trial counsel and clarified that he
was asking whether he should suppress a statement only with
respect to one offense if NCIS did not warn Appellant about
that offense. Trial counsel responded “for the sake of argu-
ment” that the military judge’s proposal would be an “ade-
quate remedy.” This statement thus provides no support for
Appellant’s contention that he preserved at the Article 39(a),
UCMJ, session the suppression that he now seeks.
Second, Appellant discusses trial defense counsel’s agree-
ment with the military judge at the Article 39(a), UCMJ, ses-
sion that “ ‘the use of the statement for that charge [i.e., the
failing to report specification] would be completely inappro-
priate.’ ” Appellant asserts that this statement “is wholly con-
sistent with the remedy they specifically requested” and that
the “defense never backed off or changed its requested relief
of suppression of the entire statement.” Appellant’s charac-
terizations of these two statements are correct but they are
insufficient to show that Appellant preserved the argument
that he now makes on appeal. In these two statements, Ap-
pellant did not move for suppression of the entire statement
on the specific ground that the NCIS agents did not warn him
that he committed an offense by failing to report others. Ra-
ther, the statements show only that Appellant was consistent
in asking for suppression of the entire statement on other
grounds.
Appellant has not cited any other statements made during
the Article 39(a), UCMJ, session in support of his argument
that he preserved the issue now before this Court. Having re-
viewed the entire record of that session, I agree that no other
statements are relevant. Appellant’s present argument for
suppression of evidence was thus waived by operation of law
under M.R.E. 304(f)(1).

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 United States v. Nelson, No. 21-0216/NA
Judge MAGGS, concurring in the judgment

C. Waiver of the Waiver Argument
Appellant argues in his reply brief that the Government
cannot assert the issue of waiver before this Court because
the Government did not assert the issue of waiver before the
NMCCA. In making this argument, Appellant recognizes that
under the cross-appeal doctrine, this Court may allow the
Government to defend a favorable judgment below on any
ground even if the Government did not cross-appeal. See
United States v. Am. Ry. Exp. Co., 265 U.S. 425, 435 (1924)
(explaining this doctrine); Perkins, 78 M.J. at 386 n.8 (apply-
ing the doctrine); United States v. Williams, 41 M.J. 134, 135
(C.M.A. 1994) (same). Appellant, however, argues that appli-
cation of the cross-appeal doctrine is not mandatory when an
issue was neither argued nor addressed by a lower court. See
Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 39–40 (1989)
(declining to consider an argument that the respondent had
not pressed before the lower courts, that the lower courts had
not addressed, and that possibly would have enlarged the re-
spondent’s rights beyond what the lower court had decided).
Appellant contends that allowing the Government to assert
waiver in this appeal would be improper because the Govern-
ment did not assert waiver before the NMCCA and indeed
specifically told the NMCCA that no additional arguments be-
yond those in its brief were necessary for resolving the case.
Although the cross-appeal doctrine is not mandatory when
a lower court has not addressed an issue, I believe that the
Court should allow the Government to raise its waiver argu-
ment for four reasons. First, waiver is a fundamental re-
striction on appeals. “ ‘[W]e cannot review waived issues at all
because a valid waiver leaves no error for us to correct on ap-
peal.’ ” United States v. Campos, 67 M.J. 330, 332 (C.A.A.F.
2009) (quoting United States v. Pappas, 409 F.3d 828, 830
(7th Cir. 2005)). Second, the legal principles governing this
case are not disputed; all agree that this case involves the ap-
plication of M.R.E. 304(a) and M.R.E. 304(f)(1). Third, both
parties have fully addressed the waiver argument in their
briefs. Finally, applying the pertinent legal principles to these
facts is straightforward even without a lower court opinion
addressing them. A simple review of the joint appendix re-
veals that Appellant did not ask either in his written appeals
or during his comments at the Article 39(a), UCMJ, session

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 United States v. Nelson, No. 21-0216/NA
Judge MAGGS, concurring in the judgment

for the suppression he now seeks on the specific grounds that
he now asserts.
II. Conclusion

For these reasons, I concur in the judgment to affirm the
United States Navy-Marine Corps Court of Criminal Appeals.

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 United States v. Nelson, No. 21-0216/NA

Judge SPARKS, dissenting from the judgment, joining
Judge HARDY, and joining Chief Judge OHLSON in Part II,
concurring in the judgment.
Generally, for the reasons eloquently set forth in his sep-
arate opinion, I agree with the Chief Judge that Appellant did
not waive his argument that the statement he gave to the Na-
val Criminal Investigative Service should have been sup-
pressed for all purposes because of the Article 31(b), UCMJ,
10 U.S.C. § 831(b) (2018), violation. More specifically, I do not
believe he waived the issue of whether the military judge
should have permitted the Government to use the unwarned
statements as evidence on the remaining charged offenses.
The military judge’s dismissal of the offense for which the
only supporting evidence consisted of the unwarned state-
ments was a logical ruling. However, I believe the ultimate
decision to admit the unwarned statements on the remaining
offenses required an additional analytical step. When the mil-
itary judge dismissed the offense of failure to report the mis-
conduct of others, any admissions supporting that offense be-
came admissions to, now, uncharged acts or uncharged
misconduct.
As we all know, the use of such evidence is governed by
Military Rule of Evidence (M.R.E.) 404(b). “Evidence of a
crime, wrong, or other act is not admissible to prove a person’s
character in order to show that on a particular occasion the
person acted in accordance with the character.” M.R.E
404(b)(1). However, such evidence “may be admissible for an-
other purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or
lack of accident.” M.R.E. 404(b)(2). The threshold question in
determining the admissibility of this type of evidence is
whether the evidence is intrinsic, that is, inextricably related
in time and place to the offenses charged or whether it is ex-
trinsic to those offenses. United States v. Thomas, 11 M.J.
388, 392 (C.M.A. 1981). More modern formulations of the dis-
tinction declare that intrinsic evidence is that which is “inter-
twined with the commission of charged crimes.” United States
v. Al-Nishiri, 222 F. Supp. 3d 1093, 1100 (C.M.C.R. 2016) (in-
ternal quotation marks omitted) (quoting United States v.
McGill, 815 F.3d 846, 879 (D.C. Cir. 2016)). “[I]f the evidence
is of an act that is part of the charged offense, it is properly
 United States v. Nelson, No. 21-0216/NA
Judge SPARKS, dissenting from the judgment, joining
Judge HARDY, and joining Chief Judge OHLSON
in Part II, concurring in the judgment

considered intrinsic.” United States v. Bowie, 232 F.3d 923,
929 (D.C. Cir. 2000). Additionally, some uncharged acts per-
formed contemporaneously with the charged crime may be in-
trinsic if they facilitate commission of the crime. Id. I need
not, however, explore the varied formulations of the extrin-
sic/intrinsic distinction. It suffices to say that extrinsic evi-
dence, unlike intrinsic evidence, must be analyzed under
M.R.E. 404(b). United States v. Green, 617 F.3d 233, 237 (3d
Cir. 2010).
It is useful then to examine what should have occurred in
this case. The military judge determined that Appellant had
not been properly warned as to the failure to report the mis-
conduct of others. He dismissed the offense since the only ev-
idence supporting it was unwarned statements elicited from
Appellant during his interview. At that point, the Govern-
ment, the proponent of the evidence, should have been re-
quired to inform the military judge which statements it con-
sidered as warned and which ones were unwarned. The
military judge could then have made his own factual findings
as to whether certain statements were in fact unwarned and
whether they qualified as admissions to uncharged acts or un-
charged misconduct relating to the dismissed offense. The
military judge would then have determined whether any un-
charged misconduct was intrinsic to the remaining charged
offenses or was, as a matter of law, extrinsic evidence. If he
concluded the statements were intrinsic to the charged of-
fenses, then the statements could be admitted. If he concluded
that the statements were extrinsic, then they could only be
admitted if they met the requirements of M.R.E. 404(b). Oth-
erwise, the statements were inadmissible as evidence on the
remaining charged offenses.
Obviously, this issue was not raised at trial. Nonetheless,
the importance of the issue demands that it be brought to the
attention of future trial litigants. Likewise, one cannot in
good faith conclude the military judge abused his discretion
here. The Chief Judge’s citations to United States v. Johnson,
20 C.M.A. 320, 43 C.M.R. 160 (1971), and United States v
Reynolds, 16 C.M.A. 403, 37 C.M.R. 23 (1966), appear to indi-
cate that for years this Court has sanctioned what I believe is

2
 United States v. Nelson, No. 21-0216/NA
Judge SPARKS, dissenting from the judgment, joining
Judge HARDY, and joining Chief Judge OHLSON
in Part II, concurring in the judgment

an erroneous evidentiary procedure. As a consequence, I be-
lieve plain error has occurred in this case.
On the issue of prejudice, I am compelled to take some is-
sue with the lower court’s cursory disposal of this issue in a
footnote. United States v. Nelson, 80 M.J. 748, 754 n.21 (N-M.
Ct. Crim. App. 2021). I find curious the lower court’s observa-
tion that “failure to report the misconduct of another is not
prima facia evidence that Appellant had bad character or a
criminal disposition,” id., particularly since the convening au-
thority apparently felt otherwise given his referral of this
very conduct to a court-martial. Nor is it clear how a prejudice
determination could have been made at all in the absence of
a finding as to what comprised the potentially prejudicial ev-
idence. I agree with Judge Hardy’s reasoning and conclusions,
and I join his opinion and proposed resolution of the case.
To conclude, I do not believe Appellant waived the issue.
Further, I cannot join the proposition that any unwarned
statements were admissible in this case, without more, to
prove the remaining charged offenses simply because they
might have been voluntary.

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 United States v. Nelson, No. 21-0216/NA

Judge HARDY, with whom Judge SPARKS joins,
concurring in part with Chief Judge OHLSON, and dissenting
from the judgment.
I agree with Chief Judge Ohlson that Appellant did not
waive his argument that the military judge should have
suppressed the statement he gave to investigators for all
purposes. As Chief Judge Ohlson noted, Appellant filed three
timely motions to suppress his statement in its entirety, and
although the military judge raised the specific issue whether
the Government had warned Appellant of all of the offenses
of which he was suspected sua sponte at the hearing to resolve
those motions, that does not undermine the fact that the
question was “presented to, discussed at length with, and
ruled on by the military judge.” United States v. Nelson, __
M.J. __, __ (1) (C.A.A.F. 2022) (Ohlson, C.J., concurring in the
judgment, with whom Sparks J., and Hardy J., join as to Part
II). I respectfully dissent from the Court’s judgment, however,
because I disagree that the remedy imposed by the military
judge was sufficient to cure the Article 31(b), Uniform Code
of Military Justice (UCMJ), 10 U.S.C. § 813(b), error in this
case.
I. Discussion

Article 31(b), UCMJ, states that no person subject to the
code may “interrogate . . . a person suspected of an offense
without first informing him of the nature of the accusation.”
When that provision is violated, 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.) Recognizing that a
rights’ advisement has particular significance in the military
context, this Court has repeatedly described this provision as
a “ ‘strict enforcement mechanism to implement the rights’
warning requirements’ of Article 31(b), UCMJ.” United States
v. Gardinier, 65 M.J. 60, 63 (C.A.A.F. 2007) (quoting United
States v. Swift, 53 M.J. 439, 448 (C.A.A.F. 2000)). The
President buttressed Congress’s proscription against
statements obtained in violation of Article 31(b), UCMJ, from
being admitted into evidence in the Military Rules of
Evidence (M.R.E.), which unambiguously state that when a
defendant makes a timely motion or objection, such a
statement “is inadmissible at trial.” M.R.E. 304(a) (emphasis
 United States v. Nelson, No. 21-0216/NA
Judge HARDY, dissenting

added); see also M.R.E. 305(c)(1) (“A statement obtained from
the accused in violation of the accused’s rights under Article
31 is involuntary and therefore inadmissible against the
accused . . . .”).
At trial, the military judge concluded that at least some of
the admissions made by Appellant to investigators were
obtained in violation of Article 31(b), UCMJ. United States v.
Nelson, EURAFSWA Jud. Circ., slip op. at 6 (N-M. Trial
Judiciary, Apr. 2, 2019) (ruling on defense motion to suppress
Appellant’s statements to NCIS). As the military judge
astutely stated: “The government cannot lead a suspect to
believe he is suspected of x, but is really being questioned
about y (as opposed to x), and then turn around and use his
resulting admissions to charge him with y (in addition to x).”
Id. Yet that is exactly what happened in this case. The
Government only warned Appellant “that he was suspected of
prostitution under Article 134, UCMJ,”1 but also suspected
him of and charged him with several additional offenses.
Despite this clear violation of Article 31(b), UCMJ, the
military judge denied Appellant’s request to suppress his
statement to the investigators. The military judge apparently
concluded that—rather than suppressing Appellant’s
statement (even in part) as seemingly required by
Article 31(d), UCMJ, M.R.E. 304(a), and M.R.E. 305(c)(1)—
he could instead cure the legal error by dismissing the
unwarned charges. I disagree that this was the proper
remedy.
A. Admissibility of Appellant’s Statement
There is no dispute in this case that the Government
violated Appellant’s Article 31 rights by failing to notify him
of all of the offenses of which he was suspected before they
interrogated him. As summarized by the court below:
In January 2018, NCIS special agents interviewed
Appellant as part of a prostitution and sex trafficking

1 Id. at 1. At the beginning of the NCIS interview, Appellant
signed a “Military Suspect’s Acknowledgement and Waiver of
Rights” form by which he affirmed that: “I, [Appellant], have been
advised by SA [GS] that I am suspected of Article 134 (Prostitution),
Uniform Code of Military Justice.”

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 United States v. Nelson, No. 21-0216/NA
Judge HARDY, dissenting

investigation in Bahrain. Although the agents provided
Appellant an Article 31(b) rights advisement for
patronizing prostitutes, they did not warn him that he
was also suspected of failing to report the prostitution
and sex trafficking-related misconduct of other Service
Members.
United States v. Nelson, 80 M.J. 748, 751 (N-M. Ct. Crim.
App. 2021). Thus, the primary question before this Court is
what the military judge should have done about it.
As noted above, Congress and the President have
mandated that no “statement” obtained in violation of Article
31(b), UCMJ, “may be received in evidence against [the
accused] in a trial by court-martial.” Article 31(d), UCMJ; see
also M.R.E. 304(a); M.R.E. 305(c)(1). An obvious question
presented by Article 31(d), UCMJ, is whether the “statement”
that cannot be received into evidence is the entire statement
given to investigators or only the part of that statement
relating to unwarned offenses.
The Government adopts the former interpretation,
arguing not only that an accused’s statement to investigators
can be parsed into voluntary and involuntary admissions on
an offense-by-offense basis, but also boldly asserting that if a
military judge dismisses the insufficiently warned charges (as
the military judge did here before Appellant’s court-martial),
the accused’s entire statement becomes admissible despite the
seemingly contrary language of Article 31(d), UCMJ,
M.R.E. 304(a), and M.R.E. 305(c)(1). To reach this conclusion,
the Government relies primarily on the phrase “against him”
in Article 31(d), UCMJ, apparently reasoning that, once the
military judge dismissed the charges for which the
Government failed to properly warn Appellant, his
admissions about those offenses were no longer “evidence
against” the accused. Brief for Appellee at 24–25, United
States v. Nelson, No. 21-0216 (C.A.A.F. Nov. 17, 2021) (“Even
assuming Appellant was not properly oriented to the failure
to report offense, any part of his statement that was only
relevant as [to] that offense would not require exclusion under
Article 31(d) as Appellant was not charged with that crime at
trial.”). This argument is unpersuasive for two reasons.

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 United States v. Nelson, No. 21-0216/NA
Judge HARDY, dissenting

First, all the evidence proffered by the Government is
“evidence against” the accused or it would not be relevant at
all. M.R.E. 401 states:
Evidence is relevant if: (a) it has any tendency to make
a fact more or less probable than it would be without the
evidence; and (b) the fact is of consequence in
determining the action.
And M.R.E. 402(b) states: “Irrelevant evidence is not
admissible.” Thus, everything proffered by the government
and admitted into evidence by the military judge—by
definition—has a tendency to make a consequential fact more
or less probable than it would be without the evidence. It is
disingenuous for the Government to argue now on appeal that
the evidence that it proffered and presented to the jury at
Appellant’s court-martial—over Appellant’s objection—was
not “evidence against” Appellant.2
Second, the Government’s argument about the plain
meaning of Article 31(d), UCMJ, only addresses the
admissibility of those parts of Appellant’s statement to
investigators about the unwarned conduct. The Government
appears to assume the admissibility of those parts of
Appellant’s statement to investigators about the warned
conduct, but that is exactly the question that must be decided.
The Government’s plain language argument provides no
insight into whether the word “statement” in Article 31(d),
UCMJ, refers to everything Appellant said during his
interview or only what he said about the unwarned offenses.
Contrary to the Government, Appellant argues that
Article 31(d), UCMJ, prohibits the admission of any part of
the statement given by an accused to investigators when
there has been any violation of Article 31(b), UCMJ. Brief for
Appellant at 13, United States v. Nelson, No. 21-0216

2 Even if the Government is correct that the portions of
Appellant’s statement relevant to the unwarned conduct were
admissible under Article 31(d), UCMJ, once the military judge
dismissed those charges, I agree with Judge Sparks that those
admissions would have become evidence of uncharged acts or
misconduct that could only be admitted if the requirements of
M.R.E. 404(b) were satisfied. Nelson, __ M.J. at __ (1–2) (Sparks, J.,
dissenting from the judgment, joining Hardy, J., and joining
Ohlson, C.J., in Part II, concurring in the judgment).

4
 United States v. Nelson, No. 21-0216/NA
Judge HARDY, dissenting

(C.A.A.F. Oct. 18, 2021 (“Article 31(d) does not permit a judge
to pick and choose which offenses the offending statement can
be admitted to prove.”). Appellant argues that the entire
statement given by an accused after an insufficient rights
warning is either wholly voluntary (and thus admissible) or
wholly involuntary (and thus inadmissible). Although
Appellant notes that Government’s interpretation “would add
a caveat to Article 31(d) that does not exist in its plain
language,” id. at 19, Appellant primarily supports his position
with policy arguments unrelated to the specific text of Article
31(b), UCMJ, and the relevant evidentiary rules.
I cannot agree with either the Government or Appellant
that the text of Article 31(d), UCMJ, is plain or obvious with
respect to the scope of the word “statement.” The word
“statement” might reasonably mean—as the Government
argues—only what the accused told investigators with respect
to a specific offense, or it might reasonably mean—as
Appellant argues—everything the accused said during the
interview after the insufficient rights warning. The former
interpretation seems to contradict this Court’s insistence that
Article 31(d), UCMJ, is a “strict” enforcement mechanism
necessary to protect defendants in the inherently coercive
military environment, Gardinier, 65 M.J. at 63; Swift, 53 M.J.
at 448, but the latter interpretation undoubtedly provides a
windfall to an accused who is sufficiently warned about some
offenses but insufficiently warned about others. Surprisingly,
considering that the language of Article 31(d), UCMJ, has
remained nearly identical since it was first enacted in 1950, I
can find no evidence that this Court or the Criminal Courts of
Appeals have ever considered this question directly.
Relying on only two precedents from the service courts
and its desire to avoid granting Appellant “an unwarranted
windfall,” the United States Navy-Marine Corps Court of
Criminal Appeals (NMCCA) concluded that Article 31(d),
UCMJ, does not require a military judge to suppress in its
entirety a statement obtained by the government in violation
of Article 31(b), UCMJ. Nelson, 80 M.J. at 754 (citing United
States v. Blanton, No. NMCCA 2014004199, 2019 CCA LEXIS
198, at *28, 2019 WL 2029155, at *9–10 (N-M. Ct. Crim. App.
May 8, 2019) (unpublished); United States v. Willeford, 5 M.J.
634, 636 (A.F.C.M.R. 1978)). In reaching this conclusion, the

5
 United States v. Nelson, No. 21-0216/NA
Judge HARDY, dissenting

NMCCA did not mention—let alone analyze—the text of
Article 31(d), UCMJ, M.R.E. 304(a), or M.R.E. 305(c)(1).
Indeed, it engaged in no analysis at all, apparently relying
solely on the strength of the cited precedents and its view of
public policy.
That reliance could not have been more misplaced because
neither of the cited cases offers a single word of analysis on
this question. The more recent case, Blanton, 2019 CCA
LEXIS 198, at *28, 2019 WL 2029155, at *9–10, merely
concluded—without citation to any precedent, statute, or
rule—that the defendant’s statements about the warned
offenses were admissible, but the defendant’s statements
about the unwarned offense were not. Similarly, in Willeford,
5 M.J. at 636, the United States Air Force Court of Military
Review appears to have implicitly reached the same
conclusion, but again without any analysis.
Chief Judge Ohlson would affirm the decision below, but
he does so on alternative grounds. Chief Judge Ohlson
appears to agree that Article 31(d), UCMJ, authorizes a
military judge to parse a defendant’s statement to
investigators into voluntary (sufficiently warned) and
involuntary (insufficiently warned) parts that can be
admitted or excluded from evidence as appropriate. Nelson,
__ M.J. at __ (6) (Ohlson, C.J., concurring in the judgment,
with whom Sparks J., and Hardy, J., join as to Part II).
Although the military judge in this case admitted Appellant’s
statement to investigators in its entirety—despite the
confirmed Article 31 violation—Chief Judge Ohlson agrees
that a court can remedy such a violation by dismissing only
the charges for which the Article 31(b) warning was
insufficient. Id. Relying on two precedents from this Court’s
predecessor, Chief Judge Ohlson concludes “that a military
judge is not compelled to suppress the entire statement given
by an accused merely because agents failed to sufficiently
warn the accused under Article 31(b) of some of the offenses
of which he was suspected.” Id. I respectfully disagree that
the Court of Military Appeals’s decisions in United States v.
Reynolds, 16 C.M.A. 403, 37 C.M.R. 23 (1966), and United
States v. Johnson, 20 C.M.A. 320, 43 C.M.R. 160 (1971),
mandate that conclusion.

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 United States v. Nelson, No. 21-0216/NA
Judge HARDY, dissenting

First, in Reynolds, it is true that the Court only set aside
one of the two findings of guilt after concluding that the
investigators violated the appellant’s Article 31(b) rights, but
the Court provided no explanation why it imposed that
specific remedy. 16 C.M.A. at 406–07, 37 C.M.R. at 26–27.
The Court did not explain why the second finding of guilty for
absence without leave (AWOL) in violation of Article 86,
UCMJ, 10 U.S.C. § 886 (1964), could still stand, but I see no
reason to assume it was because the appellant’s statement
was admissible with respect to that charge. To the contrary,
the Court expressly stated that Article 31, UCMJ, “declares,
without equivocation, that statements obtained in violation of
its terms are not to be received in evidence.” Id. at 406, 37
C.M.R. at 26 (emphasis added).
In Reynolds, the Court gave no indication that the
appellant challenged his AWOL conviction or that the
statement he gave to investigators was even relevant (let
alone necessary) to the appellant’s conviction on that charge.
Presumably, given that civilian police arrested the appellant
in Roosevelt, Utah, over 800 miles from his duty station at
Travis Air Force Base in California, the Government did not
need the appellant’s insufficiently warned statement to prove
the AWOL charge beyond a reasonable doubt. Without any
discussion whatsoever of these issues, I cannot agree that
Reynolds provides any clarification about the required
remedy for when an accused is properly warned about some
offenses, but not about others.
In Johnson, the Court again faced a situation where a
defendant was suspected of two crimes, AWOL and
unlawfully attempting to hold intercourse with the enemy,
but only warned about one—the AWOL offense—before he
was interrogated by investigators. 20 C.M.A. at 321–23, 43
C.M.R. at 161–62. The appellant’s counsel argued that the
appellant’s entire statement—Prosecution Exhibit 3—was
“inadmissible” because of the investigator’s failure to warn
the appellant about the second suspected offense. Id. at 321,
43 C.M.R. at 161. Citing the text of Article 31, UCMJ, the
Court agreed:
We hold that Prosecution Exhibit 3 was not admissible
in evidence. Article 31(b), Code, supra, 10 USC § 831,
specifically prohibits the interrogation of, or the request

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 United States v. Nelson, No. 21-0216/NA
Judge HARDY, dissenting

for a statement from, an accused or a person “suspected
of an offense without first informing him of the nature
of the accusation.’ (Emphasis supplied.) No statement
obtained in violation of this Article may be received in
evidence against an accused in a trial by court-martial.
Article 31(d), Code, supra.
Id. at 323, 43 C.M.R. at 163.
Like in Reynolds, the Johnson Court remedied the
erroneous admission of the appellant’s statement to
investigators (Prosecution Exhibit 3) by dismissing the
second, unwarned finding of guilty. Id. at 324, 43 C.M.R. at
164 (“Reversal of the accused’s conviction for the offense of
attempting, without authority, to hold intercourse with the
enemy is required.”). But also like in Reynolds, the Court gave
no indication whether the appellant challenged his AWOL
conviction or what, if any, relevance the erroneously admitted
statement had to that charge. In fact, the Court’s explanation
of why it dismissed the second charge—because “the accused’s
statement, Prosecution Exhibit 3, is the only evidence in the
records relating to this offense”—suggests that the
insufficiently warned statement was not the only evidence
with respect to the AWOL charge. Id., 43 C.M.R. at 164
(emphasis added). Again, this would not be surprising, given
that the appellant in Johnson, who was on duty with the
Marine Corps in Vietnam, failed to return from his authorized
rest and recreation leave, was listed as AWOL, and was
apprehended by border guards in Laos. Thus in my view,
Johnson, like Reynolds, fails to provide persuasive support for
the NMCCA’s conclusion that Article 31(d), UCMJ, does not
require a military judge to suppress in its entirety a
statement obtained by the government in violation of Article
31(b), UCMJ.
Without any controlling or persuasive guidance from
precedent, we are back where we started with nothing more
to go on than the text of Article 31, UCMJ, and the Military
Rules of Evidence. Given the ambiguous meaning of
“statement” in Article 31(d), UCMJ, and the dearth of any
controlling precedent or direct analysis on this question from
this Court, I cannot conclude that the military judge abused
his discretion in admitting the portions of Appellant’s
statement relative to the properly warned offenses.

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 United States v. Nelson, No. 21-0216/NA
Judge HARDY, dissenting

Nevertheless, I believe that the meaning of Article 31(d),
UCMJ, is an important issue that deserves this Court’s full
attention in a future case.
However, the military judge’s actions with respect to
Appellant’s statements about the unwarned offenses cannot
be squared with the text of Article 31(d), UCMJ, or the rules
of evidence. Regardless of the scope of the word “statement”
in Article 31(d), UCMJ, that provision prohibited Appellant’s
admissions about the unwarned offense from being “received
in evidence” during his court-martial. As noted above, the
Government’s insistence that those statements were not
“evidence against” Appellant is baseless. If they were not
“evidence against” Appellant, they would have been
irrelevant and should have been excluded on that basis alone.
Furthermore, M.R.E. 305(c)(1) and M.R.E. 304(a) both
expressly rendered Appellant’s admissions about the
unwarned offenses inadmissible. The first provision states: “A
statement obtained from the accused in violation of the
accused’s rights under Article 31 is involuntary and therefore
inadmissible against the accused,” with limited exceptions
that do not apply in this case. M.R.E. 305(c)(1) (emphasis
added). Similarly, the second provision states that when an
accused makes a timely motion or objection under this rule
(as Appellant did in this case), “an involuntary statement
from the accused, or any evidence derived therefrom, is
inadmissible at trial,” again with limited exceptions that do
not apply here. M.R.E. 304(a) (emphasis added). The
Government ignores these provisions, offering no explanation
why they did not—on their face—render Appellant’s
admissions about the unwarned offense inadmissible.
It is certainly true that this Court has endorsed the
dismissal of charges as an appellate remedy when the
government has violated an accused’s Article 31 rights. See,
e.g., Reynolds, 16 C.M.A. 403, 37 C.M.R. 23; Johnson, 20
C.M.A. 320, 43 C.M.R. 160. But those cases approved
dismissal of charges as a post hoc remedy on appeal when the
military judge had erroneously admitted an accused’s
involuntary statements at trial. Here, the military judge
recognized the Article 31 error during a pretrial hearing
where the proper remedy—exclusion of the involuntary
admissions as mandated by Article 31(d), UCMJ,

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 United States v. Nelson, No. 21-0216/NA
Judge HARDY, dissenting

M.R.E. 304(a), and M.R.E. 305(c)(1)—should have been
obvious. It was clear error for the military judge to admit
Appellant’s admissions about the insufficiently warned
charges into evidence, regardless of the military judge’s
dismissal of those charges. Of course, exclusion of Appellant’s
admissions might have also required the dismissal of some
unsupported charges, but that dismissal in no way then
converted inadmissible evidence back into admissible
evidence that the Government could use against Appellant in
his court-martial.
B. Prejudice

We review the prejudicial effect of an erroneous
evidentiary ruling de novo. United States v. Kohlbek, 78 M.J.
326, 334 (C.A.A.F. 2019). Such an error prejudices a
defendant if the error had a substantial influence on the
findings. United States v. Frost, 79 M.J. 104, 111 (C.A.A.F.
2019). When deciding whether an appellant was prejudiced,
this Court weighs: “(1) the strength of the [g]overnment’s
case, (2) the strength of the defense case, (3) the materiality
of the evidence in question, and (4) the quality of the evidence
in question.” Id. (internal quotation marks omitted) (citation
omitted); Kohlbek, 78 M.J. at 334 (internal quotation marks
omitted) (citations omitted).
Despite carrying the burden of proof with respect to
prejudice,3 the Government failed to present any argument in
its brief with respect to the application of these four factors.
Instead, the Government relied on a single precedent from
this Court to argue that—even assuming an Article 31 error—
Appellant was not prejudiced by the admission of his
involuntary, unwarned statements. Brief for Appellee at 34–
35, Nelson, No. 21-0216 (C.A.A.F. Nov. 17, 2021 (citing United
States v. Cohen, 63 M.J. 45, 54 (C.A.A.F. 2006)).
Assuming, as the military judge concluded, that
Appellant’s admissions about the sufficiently warned offenses
were admissible, the Government’s case on those offenses was

3“ ‘Importantly, it is the Government that bears the burden of
demonstrating that the admission of erroneous evidence is
harmless.’ ” Frost, 79 M.J. at 111 (quoting United States v. Flesher,
73 M.J. 303, 318 (C.A.A.F. 2014)).

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 United States v. Nelson, No. 21-0216/NA
Judge HARDY, dissenting

strong and the defense was weak. The Government was able
to rely almost entirely on Appellant’s own admissions to prove
both the unlawful cohabitation with prostitutes charge under
Article 133, UCMJ, and the patronizing prostitutes charge
under Article 134, UCMJ. Nevertheless, Appellant argues
that he was prejudiced by the material and powerful (i.e.,
high quality) way in which the Government relied on the
inadmissible parts of Appellant’s statement.
First, when instructing the panel on how it should
determine whether Appellant’s conduct was unbecoming an
officer under Article 133, UCMJ, the military judge
instructed the members that “all the circumstances should be
taken into consideration.” Transcript of Record at 859, United
States v. Nelson, __ M.J. __ (C.A.A.F. 2022) (No. 21-0216)
(emphasis added). The Government’s trial counsel reiterated
this instruction during closing argument, telling the panel,
“the judge instructed you that you should look at all the
surrounding circumstances of what was going on and who he
is, who [Appellant] is.” Id. at 877. Without any limiting
instruction about how the panel should use Appellant’s
involuntary admissions about the unwarned conduct, this
statement expressly invited the members to use that
inadmissible evidence in its deliberations.
Second, after Appellant’s counsel argued during closing
that the panel should not consider Appellant’s statement to
be reliable or competent evidence due to the problems with
the interrogation, the Government’s trial counsel made the
following statement during rebuttal:
And the Defense suggests that [Appellant’s statement
is] not legal and competent evidence. Well, Members, it
is before you in this court. It has been admitted before
you. It is legal and competent evidence that you should
consider, all of it.
Id. at 913 (emphasis added). This statement is troubling for
two reasons: Government’s counsel used the fact that the
military judge had (erroneously) admitted Appellant’s entire
statement to buttress the reliability of that statement, and he
specifically instructed the jury to consider “all of it,” including
the involuntary admissions about the unwarned conduct.

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 United States v. Nelson, No. 21-0216/NA
Judge HARDY, dissenting

Although these problematic uses of Appellant’s
involuntary admissions might not establish prejudice on their
own, it was not Appellant’s burden to establish prejudice. In
the absence of any meaningful argument from the
Government that the military judge’s error was harmless, I
cannot conclude that the Government carried its burden of
proving that the military judge’s erroneous admission of
Appellant’s admissions did not have a substantial influence
on the findings.
II. Conclusion

There is no dispute that the Government violated
Appellant’s Article 31 rights when it took his statement
without warning him of all of the offenses of which he was
suspected. In light of this error, the military judge abused his
discretion by disregarding the plain language of Article 31(d),
UCMJ, M.R.E. 304(a), and M.R.E. 305(c)(1), and admitting
Appellant’s involuntary admissions into evidence. Because
this error prejudiced Appellant’s substantial rights, I would
reverse the Navy-Marine Corps Court of Criminal Appeals,
set aside the findings of guilt as to Charge III, Specification I,
and Charge IV, and remand to the Judge Advocate General of
the Navy for further proceedings. For these reasons, I
respectfully dissent from the judgment.

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