United States v. Brisbane

UNITED STATES, Appellee

v.

Mark S. Brisbane, Staff Sergeant
U.S. Air Force, Appellant

No. 05-0136

Crim. App. No. 35384

United States Court of Appeals for the Armed Forces

Argued November 2, 2005

Decided April 28, 2006

BAKER, J., delivered the opinion of the Court, in which GIERKE, C.J.,
and CRAWFORD, EFFRON, and ERDMANN, JJ., joined.

Counsel

For Appellant: Major Anniece Barber (argued); Lieutenant
Colonel Carlos L. McDade, Major Andrew S. Williams, and Major
Sandra K. Whittington (on brief); Major Terry L. McElyea.

For Appellee: Captain Jin-Hwa L. Frazier (argued); Lieutenant
Colonel Robert V. Combs and Lieutenant Colonel Gary F. Spencer
(on brief); Major Kevin P. Steins.

Military Judge: James L. Flanary

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Brisbane, No. 05-0136/AF

Judge BAKER delivered the opinion of the Court.

Appellant was tried by general court-martial before a

military judge alone. Contrary to his pleas, he was convicted

of one specification of indecent acts and one specification of

wrongful possession of visual depictions of nude minors, both

offenses in violation of Article 134, Uniform Code of Military

Justice (UCMJ), 10 U.S.C. § 934 (2000). Appellant was sentenced

to a bad-conduct discharge, confinement for twelve months, and

reduction to E-1. The convening authority approved only nine

months of confinement and waived automatic forfeitures but

otherwise approved the sentence as adjudged. The Air Force

Court of Criminal Appeals found no error and affirmed. United

States v. Brisbane, No. ACM 35384 (A.F. Ct. Crim. App. Nov. 5,

2004).1

SUMMARY

For the reasons stated below, we conclude, based on the

facts in this case, that Ms. Lynch, the Family Advocacy

1
We granted review of the following issues:

I. WHETHER THE MILITARY JUDGE ERRED IN FAILING TO SUPPRESS
APPELLANT’S STATEMENTS TO THE FAMILY ADVOCACY PROVIDER WHERE
THOSE STATEMENTS WERE MADE IN RESPONSE TO QUESTIONS POSED
WITHOUT AN ARTICLE 31, UNIFORM CODE OF MILITARY JUSTICE, RIGHTS
ADVISEMENT.
II. IF SO, WHETHER THE MILITARY JUDGE ERRED IN FAILING TO SUPPRESS
ALL EVIDENCE DERIVED FROM APPELLANT’S STATEMENT TO THE FAMILY
ADVOCACY PROVIDER BECAUSE AFOSI DID NOT GIVE APPELLANT A
CLEANSING WARNING PRIOR TO ITS INTERROGATION OF APPELLANT.
III. DID THE PROSECUTOR PRESENT LEGALLY SUFFICIENT EVIDENCE THAT
APPELLANT’S POSSESSION OF VISUAL DEPICTIONS OF NUDE MINORS WAS
SERVICE-DISCREDITING OR PREJUDICIAL TO GOOD ORDER AND
DISCIPLINE?

2
United States v. Brisbane, No. 05-0136/AF

treatment manager who initially questioned Appellant, was acting

in furtherance of a law enforcement investigation. As a result,

Appellant was entitled to a rights advisement under Article 31,

UCMJ, 10 U.S.C. § 831 (2000). However, we find the admission of

Appellant’s statements to Ms. Lynch harmless beyond a reasonable

doubt because Appellant repeated the same information, and more,

to the Air Force Office of Special Investigations (AFOSI) six

weeks later, and these statements were admissible. These

subsequent statements were not derivative of Appellant’s earlier

statements to Ms. Lynch; they were voluntary, and Appellant has

not demonstrated that AFOSI engaged in the type of “question-

first” tactic addressed by the Supreme Court in Missouri v.

Seibert, 542 U.S. 600 (2004). With respect to Issue III, we

conclude that the evidence was legally sufficient. Based on the

circumstances of Appellant’s case, any rational factfinder could

find beyond a reasonable doubt that Appellant’s possession of

child pornography was service-discrediting or prejudicial to

good-order and discipline. We affirm.

BACKGROUND

On or about June 1, 2001, Appellant showed his eight-year-

old stepdaughter, S, pictures of naked adult women on his

computer in response to her question about what she would look

like when she was older. S meant the question in terms of what

she would wear when she graduated. Appellant misunderstood the

3
United States v. Brisbane, No. 05-0136/AF

question, as he told one of his colleagues, to be how would S

develop physically. At the time, Appellant’s wife was on

vacation in Hawaii. S subsequently told a neighbor about the

pictures, and the neighbor called Family Advocacy to report the

incident.

After Family Advocacy received this “referral,” the Child

Sexual Maltreatment Response Team (CSMRT)2 convened. Ms. Lynch,

the Family Advocacy treatment manager and a civilian Department

of Defense employee, testified that the participants agreed that

she, Ms. Lynch, would conduct the initial interviews of

Appellant and S.3 At trial, Ms. Lynch stated that the CSMRT

2

The Child Sexual Maltreatment Response Team: Consists of the FAO
[Family Advocacy Officer], the AFOSI agent, the JA [Judge
Advocate], and optional representatives from other agencies that
have child protection responsibilities. This multidisciplinary
team plans investigations of suspected abuse, simultaneously
minimizing the number of interviews children undergo while
effectively gathering pertinent information. CSMRT members can
also be members of the FMCMT [Family Maltreatment Case Management
Team]. The CSMRT takes coordinated action within 72 hours of any
report of child sexual abuse without waiting for a scheduled
meeting.

Dep’t of the Air Force, Instr. 40-301, Medical Command, Family Advocacy para.
3.2.1. (July 22, 1994) [hereinafter AFI 40-301].
3
On cross-examination, trial defense counsel and Ms. Lynch had the following
exchange:

Q: Okay. So, you start out, and you get a referral, and you suspect
Staff Sergeant Brisbane of an offense?
A: Yes.
Q: You notify legal and OSI, and your three organizations meet?
A: Yes.
Q: And, all together, that committee decides that you are going to
conduct the interview with Staff Sergeant Brisbane?
A: Yes.
Q: And, it is even further [sic] based on how far this goes, that
you should stop and call OSI, or just proceed?

4
United States v. Brisbane, No. 05-0136/AF

decided that she would go first “[t]o determine if we had enough

information to proceed.” Upon examination by the court, Ms.

Lynch responded in the affirmative when the military judge

inquired whether she was “normally the one who is the first [ ]

to conduct interviews after a CSMRT meeting.”

On June 1, 2001, Ms. Lynch interviewed S and then

Appellant. According to Ms. Lynch, she explained to Appellant

that he had “limited confidentiality” during their interview.

Ms. Lynch did not give Appellant an Article 31 rights

advisement. In response to questions from the trial counsel,

Ms. Lynch stated that she had never given anyone an Article 31

rights advisement or Miranda warnings and that she had not

received any training in the matter because that was “just not

part of [her] job.” Ms. Lynch testified at trial that Appellant

was “very cooperative” during the interview and that “[h]e

seemed relaxed.” Ms. Lynch’s first question to Appellant was:

“Did you do it?” Ms. Lynch testified that Appellant told her

that his stepdaughter had been asking questions about her body.

He then stated that in response he had downloaded some pictures

from an adult site on the Internet and had shown them to her.

After Ms. Lynch completed her interviews, the information

was forwarded to the Family Maltreatment Case Management Team

A: Yes.
Q: Okay, and you made the decision just to proceed?
A: Yes.

5
United States v. Brisbane, No. 05-0136/AF

(FMCMT).4 According to Special Agent Corey Allison, AFOSI

decided not to pursue the matter at that time because it “lacked

credible information to open a substantive investigation.” He

testified that the matter was reported as a “zero.” Special

Agent Allison gave the following explanation of a “zero”: “It

means informational file. It is documented and an inquiry is to

be documented for future reference, if necessary.” After

categorizing the file as a “zero,” Special Agent Allison,

according to procedure, forwarded the file to a “forensic

science consultant.”5 Later, the forensic consultants

recommended that AFOSI revisit the case.

On June 27, 2001, the FMCMT met. According to an e-mail

dated July 6, 2001, from Sharon K. Burnett, the AFOSI Detachment

Commander, additional information was provided during this

meeting “which raised some concerns.” At trial, defense counsel

sought to establish through cross-examination that it was Ms.

Lynch’s information that prompted AFOSI to open an

investigation. However, Special Agent Allison maintained that

4
“The FMCMT consists of medical, investigative, and other appropriate base
and community agency representatives as determined by the FAC [Family
Advocacy Committee].” AFI 40-301, para. 2.2.3. “The [FMCMT]: . . . .In
cases of child sexual abuse: Ensures the child undergoes as few interviews
as possible . . . . Monitors the child’s safety . . . . Prescribes a sexual
abuse treatment program for child sexual abuse offenders who are on active
duty.” Id. at para. 2.2.3.1.
5
The record does not provide any additional information with regard to these
forensic consultants, i.e., their responsibilities, duty station(s), etc.

6
United States v. Brisbane, No. 05-0136/AF

it was the recommendation by the forensic science consultant

that AFOSI revisit the case that prompted the investigation.

On July 13, 2001, Special Agents Allison and Chris Winters

interviewed Appellant in their office.6 Special Agent Allison

testified that they “read [Appellant] his rights, [and] he

agreed to speak to us without the presence of an attorney.”

Special Agent Allison characterized Appellant’s demeanor as

“calm and forthright.” Appellant reduced the content of his

interview with AFOSI to a signed statement in which he admitted

showing nude adult pictures to his stepdaughter.

After concluding the interview, Special Agent Allison and

Jim Scott, a member of the Joint Drug Enforcement Team,

accompanied Appellant back to his government quarters where he

agreed to show them the pictures he had shown his stepdaughter.

After viewing the pictures, Special Agent Allison asked for

Appellant’s consent to take possession of the computer for

analysis. However, after giving consent, but before Special

Agent Allison took possession of the computer, Appellant

produced on the screen “what looked like thumbnail pictures of

naked children.” According to Special Agent Allison,

Appellant’s demeanor at that moment “changed considerably.” “He

started to shake, visibly sweating, turned red, turned around

6
The record does not indicate the date on which AFOSI officially opened its
investigation, whether it was July 13, 2001, or some prior day.

7
United States v. Brisbane, No. 05-0136/AF

stammering,” telling the Agent that he “‘thought it was okay to

have pictures of child pornography as long as it was for

educational purposes.’” Later that day, Appellant signed a

confession relating to the child pornography found on his

computer.

At some point after initiation of the investigation but

before trial, Appellant had a conversation with his neighbor,

Staff Sergeant (SSGT) Justin Gilbert, concerning the pictures

that Appellant had downloaded and his subsequent interaction

with his stepdaughter regarding the pictures. According to SSGT

Gilbert, Appellant indicated that he had downloaded some adult

pictures in order to answer his stepdaughter’s questions about

how she would develop physically as she got older. Appellant

further explained to SSGT Gilbert that the pictures were

”tasteful” and were “kind of like you’d find of a girl on the

beach.” Appellant went on to describe how the neighbors had

heard of this and had reported him to the authorities who in

turn had confiscated his computer. Also according to SSGT

Gilbert, Appellant stated that “the worst thing that they were

going to get him on was that he only had seven pictures of kids

on his computer.” At trial SSGT Gilbert testified that he found

this conversation “kind of disturbing” to the point that he

contacted AFOSI to inquire whether any of the pictures included

8
United States v. Brisbane, No. 05-0136/AF

images of his children. He learned that none of the images

included his children.

Appellant challenges his conviction before this Court on

the grounds that: (1) the military judge abused his discretion

when he failed to suppress Appellant’s statements to the Family

Advocacy provider; (2) his subsequent interrogation by

Government agents was unconstitutional in light of the Supreme

Court’s recent decision in Missouri v. Seibert, (3) the absence

of a cleansing warning by AFOSI tainted his subsequent

statements to them, even though those statements were preceded

by a rights warning; and (4) the Government did not present

sufficient evidence on the issues of prejudice to good order and

service-discrediting conduct regarding his possession of visual

depictions of nude minors.

The Government responds that Appellant was not entitled to

a rights advisement under Article 31 because the Family Advocacy

provider was not working as a law enforcement agent when she

interviewed Appellant, and therefore, she was not subject to the

UCMJ. The Government further argues that Appellant’s subsequent

confession to AFOSI was voluntary under all the circumstances

and therefore not tainted by his previous admissions to Ms.

Lynch. Finally, the Government argues that the prosecution was

not required to prove actual harm to the service’s reputation to

support Appellant’s conviction for possession of visual

9
United States v. Brisbane, No. 05-0136/AF

depictions of nude minors.

DISCUSSION

Appellant’s Statements to the Family Advocacy Provider

“When there is a motion to suppress a statement on the

ground that rights’ warnings were not given, [this Court]

review[s] the military judge’s findings of fact on a clearly-

erroneous standard, and . . . conclusions of law de novo.”

United States v. Swift, 53 M.J. 439, 446 (C.A.A.F. 2000) (citing

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

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

Article 31(b) reads:

No person subject to this chapter may interrogate, or
request any statement from an accused or a person
suspected of an offense without first informing him of
the nature of the accusation and advising him that he
does not have to make any statement regarding the
offense of which 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.

10 U.S.C. § 831(b) (2000).

Resolution of the first issue in this case turns on whether

Ms. Lynch, the Family Advocacy treatment manager, was a “person

subject to the code” for the purposes of Article 31(b) and

Military Rule of Evidence (M.R.E.) 305(c). Under M.R.E.

305(b)(1), such a person “includes a person acting as a knowing

agent of a military unit or of a person subject to the code.”

We have identified:

10
United States v. Brisbane, No. 05-0136/AF

at least two instances when civilian investigators
working in conjunction with military officials must
comply with Article 31: “(1) When the scope and
character of the cooperative efforts demonstrate ‘that
the two investigations merged into an indivisible
entity,’ and (2) when the civilian investigator acts
in furtherance of any military investigation, or in
any sense as an instrument of the military.’”

United States v. Rodriguez, 60 M.J. 239, 252 (C.A.A.F. 2004)

(quoting United States v. Penn, 18 C.M.A. 194, 199, 39 C.M.R.

194, 199 (1969) (citations omitted)); see also United States v.

Lonetree, 35 M.J. 396 (C.M.A. 1992); United States v. Quillen,

27 M.J. 312, 314 (C.M.A. 1988).

This Court most recently considered the issue of social

workers and Article 31 in United States v. Raymond, 38 M.J. 136

(C.M.A. 1993). In that case, this Court held that a psychiatric

social worker was not acting as an investigative agent of law

enforcement where the appellant arrived without any command-

referral document and the social worker had no contact with the

command before or after the appellant’s walk-in appointment.

Id. at 138.

The Court in Raymond also considered the effect of an Army

regulation dealing with child abuse: “It is not a law

enforcement program; it is a community services program. The

cooperative effort required by the regulation does not render

every member of the military community a criminal investigator

or investigative agent . . . .” Id. at 138-39. Finally, this

11
United States v. Brisbane, No. 05-0136/AF

Court noted in Raymond that “there is no historical duty of

health professions engaged in treatment to warn based on the

purpose behind Article 31(b).” Id. at 140.

In United States v. Moreno, this Court considered the

admissibility of statements made to a State of Texas Department

of Human Services investigator-social worker. 36 M.J. 107, 109

(C.M.A. 1992). In that case, this Court focused on whether the

social worker’s investigation merged with the military

investigation or whether she was acting as an agent of military

investigators. Id. at 115. The Court answered both of these

questions in the negative based on three findings: (1) lack of

“communication or coordination between the two camps”; (2) the

social worker “remained in the mode of social worker”; and (3)

the social worker pursued her own “limited, state objectives”

and cooperated with military authorities “only where necessary

to effectuate her own goals.” Id. With regard to the first

finding, this Court noted, specifically, that the social worker

“did not in any way coordinate [her] meeting [with the

appellant] with military police or prosecutorial authorities or

notify them that she intended to interview appellant.” Id.

We now turn to the facts in this case. The military judge

found that Ms. Lynch’s interviews were “not for any law

enforcement purpose.” Rather, in the military judge’s view, Ms.

Lynch’s “primary purpose in conducting the interview was for

12
United States v. Brisbane, No. 05-0136/AF

treatment purposes.” The Air Force court concluded that the

“clinical social worker was not ‘functioning as a mere conduit

for military authorities’ nor was there evidence of any

understanding between her and military authorities ‘designed to

subvert the purposes of Article 31.’” Brisbane, No. ACM 35384,

slip op. at 1. As such, the Air Force court found that, in her

independent role, Ms. Lynch was not obligated to advise

Appellant in accordance with Article 31(b). Id. at 1-2.

AFOSI and the Family Advocacy treatment manager are

integral parts of the CSMRT. They work closely on initial

assessments of complaints. Consequently, the initial complaint

that Appellant was suspected of having acted inappropriately

with his stepdaughter was assessed at a CSMRT meeting. The

CSMRT decided to have Ms. Lynch proceed first with the

interviews of Appellant and his stepdaughter to determine

whether they “had enough information to proceed.” According to

Ms. Lynch, the CSMRT made this decision “all together.” Once

Ms. Lynch obtained Appellant’s admissions, she reported them to

the FMCMT. Although the AFOSI representatives on the FMCMT

initially decided not to pursue the matter, they were in receipt

of Ms. Lynch’s information. Finally, despite stating that her

role in questioning Appellant was to provide treatment, Ms.

Lynch also stated that she was not treating Appellant for any

13
United States v. Brisbane, No. 05-0136/AF

condition.7 These facts render the military judge’s finding that

Ms. Lynch “had not been approached by anyone in the Air Force

command structure or by law enforcement personnel in an attempt

to enlist her aid in collecting information to prosecute the

case” untenable. Furthermore, while there was no direct

evidence of an understanding between Ms. Lynch and military

authorities “‘designed to subvert the purposes of Article 31,’”

this is not the test for whether the UCMJ applies. Brisbane,

No. ACM 35384, slip op. at 1 (quoting United States v. Moreno,

36 M.J. 107, 117 (C.M.A. 1992)). Nor is the test an issue of

7
On cross-examination, trial defense counsel and Ms. Lynch had the following
exchange:

Q: Ms. Lynch, have you ever provided treatment to Staff Sergeant
Brisbane?
A: Yes.
Q: You’ve provided him with treatment?
A: I’m not sure of your definition of “provided treatment,” but I’ve
provided him counseling.
Q: Okay. The question was simply whether you’ve given him treatment
within your definition?
A: Yes.
Q: Isn’t it that you just recently said that you were not there for
treatment in our earlier interviews?
A: I don’t recall that.
Q: Okay. Weren’t you there actually to kind of monitor how Staff
Sergeant Brisbane was dealing with this situation as he came closer to
court?
A: Yes.
Q: Okay. So, what kind of treatment did you provide?
A: We did more to monitor him, like you said, more of a fit for duty
assessment, monitored depression, anxiety, and how he was coping with
the stress.
Q: Okay. So, you were basically meeting with him to see how he was
doing?
A: Yes.
Q: Is there any condition for which you were treating him?
A: No.
Q: Ever?
A: No.

14
United States v. Brisbane, No. 05-0136/AF

the questioner’s “primary purpose.” Rather, as noted in

Rodriguez and discussed above, this Court has identified at

least two instances when civilians working in conjunction with

military officials must comply with Article 31. See Rodriguez,

60 M.J. at 252 (quoting Penn, 18 C.M.A. at 199, 39 C.M.R. at 199

(1969) (citations omitted). In this case, Ms. Lynch acted in

furtherance of a military investigation. It does not matter

that her actions in this regard were not deliberately aimed at

subverting Appellant’s rights. Nor does it matter what her

“primary purpose” might have been.8

We also distinguish this case from Raymond and Moreno.

Unlike the situation in Raymond, Appellant’s command directed

him to see Ms. Lynch. Furthermore, Ms. Lynch was in regular

contact, both before and after her interview with Appellant,

with members of the military law enforcement community. Cf.

Raymond, 38 M.J. at 139; Moreno, 36 M.J. at 115. Finally, Ms.

Lynch was fully aware of Appellant’s prior contact (or lack

8
The parties do not argue that Ms. Lynch was providing emergency medical
treatment, cf. United States v. Moore, 32 M.J. 56, 60 (C.M.A. 1991) (finding
that a psychiatric nurse who provided appellant with emergency medical
treatment at his request was acting “only in a legitimate medical capacity”
when she questioned him about his suspected sexual abuse of his
stepdaughters), nor did the need to ask incriminating questions arise during
otherwise routine medical procedures. See United States v. Fisher, 21 C.M.A.
223, 225, 44 C.M.R. 277, 279 (1972) (“A medical doctor who questions an
individual solely to obtain information upon which to predicate a diagnosis,
so that he can prescribe appropriate medical treatment or care for the
individual, is not performing an investigative or disciplinary function;
neither is he engaged in perfecting a criminal case against the individual.
His questioning of the accused is not, therefore, within the reach of Article
31.”). We agree that these cases are inapplicable to the facts of this case.

15
United States v. Brisbane, No. 05-0136/AF

thereof) with AFOSI in this case. Cf. Raymond, 38 M.J. at 138;

Moreno, 36 M.J. at 109. As noted, it was a team decision, made

by the members of the CSMRT, which included a representative

from AFOSI, that Ms. Lynch would conduct the first interview.

Although we note that the “cooperative effort” required by

AFI 40-301 in this case “does not render every member of the

military community a criminal investigator or investigative

agent,” Ms. Lynch’s actions in this case were more akin to an

investigative agent than a social worker. Raymond, 38 M.J. at

138-39. On cross-examination, Ms. Lynch stated that the first

thing she asked appellant when he arrived for his interview was

“[d]id you do it?” Cf. United States v. Swift, 53 M.J. 439, 447

(C.A.A.F. 2000) (holding that the accused’s supervisor, a

military criminal investigator, should have advised Swift of his

rights when he demanded that he respond to certain

“accusations”). In addition, Ms. Lynch stated that she did not

in fact treat Appellant for any condition.

We conclude that the record does not support the military

judge’s findings that Ms. Lynch was not acting “for any law

enforcement purpose,” but rather was engaged in treating

Appellant. In our view, the record supports the contrary

conclusion that Ms. Lynch was acting as an “investigative agent

of law enforcement,” by virtue of her close coordination with

base legal and investigative personnel. Raymond, 38 M.J. at

16
United States v. Brisbane, No. 05-0136/AF

136. Therefore, as a threshold matter, Ms. Lynch was a “person

subject to the code” for the purposes of Article 31(b) and

M.R.E. 305(c). The next question we must consider is whether

the other requirements of Article 31 were met such that

Appellant was entitled to a rights advisement. The military

judge did not make findings in this regard because he determined

that Ms. Lynch did not meet the threshold requirement of being a

person subject to the code.

As we noted in United States v. Cohen, 63 M.J. 45, 49

(C.A.A.F. 2006), Article 31(b) contains four textual predicates.

First, the article applies to persons subject to the UCMJ.

Second and third, the article applies to interrogation or

requests for any statements from “an accused or a person

suspected of an offense.” Fourth, the right extends to

statements regarding the offense(s) of which the person

questioned is accused or suspected.

In Cohen, we sought to provide a context for this Court’s

decisions with regard to the second and third textual

predicates. See id. at 49-50. However, unlike Cohen, this case

does not present any question as to whether Ms. Lynch was

requesting a statement from a person she suspected of an

offense. See United States v. Bradley, 51 M.J. 437, 441

(C.A.A.F. 1999). “[A]ssessing all the facts and circumstances

at the time of the interview,” it is clear to us that Ms. Lynch

17
United States v. Brisbane, No. 05-0136/AF

was acting in an official law enforcement or disciplinary

capacity. United States v. Swift, 53 M.J. at 446 (quoting

United States v. Good, 32 M.J. 105, 108 (C.A.A.F. 1991)). As

noted earlier, Ms. Lynch, in conjunction with the law

enforcement representatives on the CSMRT, decided to conduct the

first interview of Appellant. According to her testimony, the

reason for her interview was to decide if they had sufficient

evidence to proceed, ostensibly, with a case against Appellant.

In keeping with this, the first question she asked Appellant

during their meeting was whether he committed the offense.

Finally, Ms. Lynch admitted that she never provided Appellant

with any treatment. Unlike Cohen, where the inspector general

acted independently, consulting only with legal personnel on an

ad hoc basis, all of Ms. Lynch’s actions were coordinated with

AFOSI and other members of the CSMRT involved in law enforcement

activities.

With respect to Article 31(b)’s third textual predicate,

this Court applies an objective test. “Whether a person is a

suspect is an objective question that is answered by considering

all the facts and circumstances at the time of the interview to

determine whether the military questioner believed or reasonably

should have believed that the servicemember committed an

offense.” Swift, 53 M.J. at 446; Good, 32 M.J. at 108. During

18
United States v. Brisbane, No. 05-0136/AF

her testimony, Ms. Lynch stated that she suspected Appellant of

an offense at their first meeting.

We conclude that the remaining requirements of Article

31(b) were met in this case. As a result, Ms. Lynch should have

informed Appellant of his Article 31 rights prior to the

interview. Even though Ms. Lynch advised Appellant that his

statements were not confidential, and he spoke to her

voluntarily, this does not otherwise negate the requirements of

Article 31(b). See M.R.E. 304(a), M.R.E. 305(a). Therefore,

Appellant’s statements to Ms. Lynch, the Family Advocacy

treatment manager, should have been suppressed by the military

judge and could not be used to support his convictions.

However, this does not resolve the question of whether

Appellant’s subsequent statements to AFOSI were admissible. Nor

does it answer the question of whether the pictures found on

Appellant’s computer should have been admitted as the basis for

the second specification of Charge I, wrongful and knowing

possession of visual depictions of nude minors.

Appellant’s Statements to AFOSI

With regard to Appellant’s second and third challenges, we

must decide whether AFOSI’s subsequent interrogation of

Appellant was unconstitutional in light of the Supreme Court’s

recent decision in Missouri v. Seibert, and whether the absence

19
United States v. Brisbane, No. 05-0136/AF

of a cleansing warning tainted Appellant’s statements, even

though those statements were preceded by a full rights warning.

The military judge did not make any findings with regard to

whether Appellant’s subsequent statements to AFOSI were

voluntary because Appellant only challenged their admission as

derivative evidence at trial. In light of its conclusion that

Ms. Lynch acted independently, the Air Force court found the

issue of whether AFOSI properly questioned Appellant moot.

Brisbane, No. ACM 35384, slip op. at 2. This Court has looked

to the Supreme Court’s decision in Oregon v. Elstad, 470 U.S.

298 (1985), which distinguished between two classes of

involuntary confessions, for guidance on evaluating the

admissibility of a confession obtained subsequent to one that is

deemed illegally obtained:

[W]here the earlier confession was “involuntary” only
because the suspect had not been properly warned of
his panoply of rights to silence and to counsel, the
voluntariness of the second confession is determined
by the totality of the circumstances. The earlier,
unwarned statement is a factor in this total picture,
but it does not presumptively taint the subsequent
confession.

United States v. Cuento, 60 M.J. 106, 109 (C.A.A.F. 2004)

(quoting United States v. Phillips, 32 M.J. 76, 79 (C.M.A.

1991)). One of the circumstances this Court takes into account

20
United States v. Brisbane, No. 05-0136/AF

is the presence of a “cleansing warning,”9 however, the absence

of such is not fatal to a finding of voluntariness. Cuento, 60

M.J. at 109.

The classic listing of the other factors used in a

voluntariness analysis is found in the Supreme Court’s decision

in Schneckloth v. Bustamonte:

In determining whether a defendant’s will was overborne in
a particular case, the Court has assessed the totality of
all the surrounding circumstances -- both the
characteristics of the accused and the details of the
interrogation. Some of the factors taken into account have
included the youth of the accused, his lack of education,
or his low intelligence, the lack of any advice to the
accused of his constitutional right, the length of
detention, the repeated and prolonged nature of the
questioning, and the use of physical punishment such as the
deprivation of food or sleep.

412 U.S. 218, 226 (1973) (citations omitted).

In his brief, Appellant also argues that the Supreme

Court’s recent decision in Seibert applies to the facts of this

case. In Seibert, police arrested the respondent following the

deaths of the respondent’s son and another teenager. 542 U.S.

at 604. At the suppression hearing, the interviewing officer

admitted that he consciously withheld Miranda warnings, “thus

resorting to an interrogation technique he had been taught:

question first, then give the warnings, and then repeat the

question ‘until I get the answer that she’s already provided

9
A cleansing warning is one in which the “accused [is] warned that a previous
statement cannot be used against him.” Cuento, 60 M.J. at 109.

21
United States v. Brisbane, No. 05-0136/AF

once.’” Id. at 605-06. In Seibert, the Court invalidated the

“police protocol” described above that called for elicitation of

an unwarned confession, followed by rights warnings, and

elicitation of the same confession. 542 U.S. at 604. Because

the officer in Seibert was very candid about the procedure, the

Court noted that “the focus is on facts apart from intent that

show the question-first tactic at work.” Id. at 616 n.6.

According to Appellant, the base legal office and AFOSI

similarly engaged in a purposeful plan to evade his

constitutional rights by arranging for Ms. Lynch to interview

him first, without a proper rights advisement. Cf. Seibert, 542

U.S. at 605-06. Then, Appellant argues, AFOSI sought to

interrogate him with the benefit of his earlier unwarned

statements to Ms. Lynch.

Although Seibert altered the inquiry under Elstad, the

facts in Appellant’s case are distinguishable. First, in

contrast to Seibert, the two interviews in Appellant’s case

occurred almost six weeks apart. Further, although there was

coordination between AFOSI and the Family Advocacy staff, the

record does not demonstrate a deliberate effort aimed at

securing an unwarned confession for later use in securing a

warned confession. Cf. United States v. Phillips, 32 M.J. 76

(C.M.A. 1991) (suppressing appellant’s statements where this

Court found that the Naval Investigative Service special agent

22
United States v. Brisbane, No. 05-0136/AF

used earlier, unwarned interviews and statements as a starting

point for his interrogation). According to Special Agent

Allison, AFOSI did receive information about the incident

through the FMCMT. However, Special Agent Allison denied that

Ms. Lynch’s June 1, 2001, interview was the reason that AFOSI

pursued its investigation. Rather, AFOSI’s decision to

interview Appellant was based on a forensic consultant’s

recommendation that AFOSI pursue an investigation. Seibert does

not ban coordination among individuals. Rather, it is aimed at

a very specific, deliberate practice of successive

interrogations to secure an admissible confession. What

happened in this case does not rise to that level.

Because the evidence in this case does not support a

conclusion that Family Advocacy and AFOSI engaged in the type of

unconstitutional practice prohibited by Seibert, the test for

whether the second confession is admissible is whether it was

voluntary under all the circumstances. See Cuento, 60 M.J. at

109.

Here, there was no cleansing warning because Special Agent

Allison and his colleagues did not believe that Appellant was

entitled to a warning when he first confessed to Ms. Lynch.

Therefore, our determination of whether Appellant’s second

confession to Special Agent Allison was voluntary hinges on

other factors, including those identified in Bustamonte. First,

23
United States v. Brisbane, No. 05-0136/AF

Appellant’s interview with Special Agent Allison occurred almost

a month and a half after his initial interview with Ms. Lynch.

This was a substantial amount of time for Appellant to weigh the

pros and cons of continuing to talk with military authorities

about showing pictures of nude adult women to his stepdaughter.

Second, Appellant was a mature, experienced member of the

military. At the time of the incident, Appellant was a twenty-

eight-year-old staff sergeant with almost ten years of military

service. Third, the conditions of Appellant’s second interview

were not coercive or inhumane. Special Agent Allison testified

that Appellant was asked to come in and speak with AFOSI about

an incident involving his daughter. After Appellant waived his

rights and agreed to give a written statement, Special Agent

Allison and a colleague followed Appellant back to his house so

that Appellant could show them the pictures he had shown to his

stepdaughter. There is nothing to suggest that Appellant’s free

will was overborne.

This conclusion is supported by the fact that Appellant did

not believe that he had done anything criminal in showing

pictures to his stepdaughter. In his written confession,

Appellant admits only that his approach was “incorrect.”

According to Special Agent Allison’s testimony, it was not until

Appellant brought up pornographic pictures of children on his

computer that he became nervous. Before that, Special Agent

24
United States v. Brisbane, No. 05-0136/AF

Allison testified that Appellant was “calm.” This comports with

Ms. Lynch’s description of Appellant’s demeanor during her

initial interview with him.

Based on the foregoing, while we agree with Appellant that

he was entitled to a rights warnings prior to his interview with

Ms. Lynch, we find that his statements to AFOSI were voluntary

under the circumstances and not barred by the Supreme Court’s

decision in Seibert, notwithstanding the absence of a cleansing

warning. Thus, the military judge did not err in admitting

these statements or the evidence subsequently seized from

Appellant’s computer. In light of these later, more detailed

statements describing his conduct, we conclude that the

admission of Appellant’s initial statements to Ms. Lynch was

harmless beyond a reasonable doubt. See United States v.

Hallock, 27 M.J. 146 (C.M.A. 1988) (citing United States v.

Remai, 19 M.J. 229, 233 (C.M.A.1985)).

Appellant’s Possession of the Pictures

We turn now to the final issue in the case, whether the

evidence was legally sufficient to sustain Appellant’s

conviction for possession of child pornography under clauses one

and two of Article 134. The Air Force court found that

“[A]ppellant’s possession of . . . pictures was prejudicial to

good order and discipline or of a nature to bring discredit upon

the armed forces.” Brisbane, No. ACM 35384, slip op. at 2.

25
United States v. Brisbane, No. 05-0136/AF

Appellant now argues that there is no evidence that his

possession of pictures of nude minors was service-discrediting

or conduct prejudicial to good order and discipline. The

Government argues that Appellant’s mere possession of sexually

explicit images of minors is an act involving moral turpitude,

and as such, is inherently prejudicial to good order and

discipline and service-discrediting.

The knowing possession of images depicting sexually

explicit conduct by minors, whether actual or virtual, when

determined to be service-discrediting conduct or conduct

prejudicial to good order and discipline, is an offense under

Article 134. United States v. Mason, 60 M.J. 15, 20 (C.A.A.F.

2004). However, Ashcroft v. Free Speech Coalition, 535 U.S. 234

(2002), created a “constitutional dimension” to an Article 134

charge that did not exist previously. As a result, the elements

of service discredit or prejudicial conduct must be considered

in the context of a military member’s possession of what might

be considered virtual child pornography, or pornography the

Supreme Court otherwise determined was constitutionally

protected in a civilian context. Mason, 60 M.J. at 19; United

States v. O’Connor, 58 M.J. 450, 454 (C.A.A.F. 2003). In light

of Free Speech Coalition we look to the record to determine

whether the evidence demonstrates that an accused’s conduct is

service-discrediting and/or prejudicial to good order and

26
United States v. Brisbane, No. 05-0136/AF

discipline, even if such conduct would have been protected in a

civilian context.

After taking Appellant’s statement regarding the showing of

nude adult photographs to his stepdaughter, the AFOSI

investigators accompanied Appellant to his home. Based on

Appellant’s consent, the investigators entered the home where

Appellant showed the agents images of nude adults he had shown

to his stepdaughter and sought to explain why he had done so.

In the course of this conduct, Appellant inadvertently displayed

images of child pornography to the agents.

Following this disclosure, Appellant was charged with a

violation of clauses one and two of Article 134.10 Appellant

subsequently told his neighbor, SSGT Gilbert, that he possessed

seven pictures of child pornography. This disclosure alarmed

SSGT Gilbert enough that he contacted AFOSI to determine whether

any of the pictures included images of his children. “Viewing

the evidence in the light most favorable to the prosecution,” we

conclude that “any rational trier of fact” could have found

beyond a reasonable doubt that Appellant’s possession of the

pictures in question was prejudicial to good order and

discipline or service-discrediting. Jackson v. Virginia, 443

10
The record of trial does not establish whether the photographs contained
actual or virtual child pornography. As a result, for the sake of our
analysis we will assume, without deciding, that the pictures were virtual in
nature.

27
United States v. Brisbane, No. 05-0136/AF

U.S. 307, 319 (1979); United States v. Turner, 25 M.J. 324

(C.M.A. 1987).11

DECISION

The decision of the United Air Force Court of Criminal

Appeals is affirmed.

11
Because we conclude that the record contains specific evidence that
Appellant’s conduct was service-discrediting and/or prejudicial to good order
and discipline, we need not consider how, if at all, Free Speech Coalition
applies to the Government’s argument that Appellant’s conduct, as an act of
moral turpitude, was inherently prejudicial or service-discrediting.

28