United States v. Cohen

UNITED STATES, Appellee

v.

Alexander L. COHEN, Airman First Class
U.S. Air Force, Appellant

No. 04-0606

Crim. App. No. 34975

United States Court of Appeals for the Armed Forces

Argued October 12, 2005

Decided April 7, 2006

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

Counsel

For Appellant: Captain David P. Bennett (argued); Colonel
Carlos L. McDade and Major Sandra J. Whittington (on brief);
Major Terry L. McElyea.

For Appellee: Major Michelle M. Lindo McCluer (argued);
Lieutenant Colonel Robert V. Combs and Lieutenant Colonel Gary
F. Spencer (on brief); Captain C. Taylor Smith.

Military Judge: Israel B. Willner

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Cohen, No. 04-0606/AF

Judge BAKER delivered the opinion of the Court.

Appellant was tried by a general court-martial composed of

officer members. In accordance with his pleas, he was convicted

of two specifications of indecent acts in violation of Article

134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934

(2000). Contrary to his plea, he was convicted of indecent

assault also in violation of Article 134, UCMJ.1 The adjudged

sentence included a dishonorable discharge, confinement for four

years, forfeiture of all pay and allowances, and reduction to

grade E-1. The convening authority approved three of the four

years of confinement but otherwise approved the sentence as

adjudged. The Air Force Court of Criminal Appeals affirmed.

United States v. Cohen, No. ACM 34975, 2004 CCA LEXIS 130, 2004

WL 1238960 (A.F. Ct. Crim. App. May 18, 2004) (unpublished).

Before this Court, Appellant challenges the military judge’s

failure to suppress statements he made to the Inspector General

(IG) on the basis of the IG’s failure to advise him of his

rights pursuant to Article 31, UCMJ, 10 U.S.C. § 831 (2000).2

Although we find that the IG should have given a rights warning,

we conclude the error was harmless and affirm.

1
Appellant was acquitted of rape in violation of Article 120, UCMJ, 10 U.S.C.
§ 920 (2000), and fraudulent enlistment in violation of Article 83, UCMJ, 10
U.S.C. § 883 (2000).
2
We granted review of the following issue:

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Background

On February 5, 2000, Appellant and four other individuals -

- two females and two males -- all trainees at Goodfellow Air

Force Base (AFB), Texas, drove to a concert in Abilene, Texas.

During this trip, everyone except for Airman (Amn) W consumed

large quantities of alcohol. After the concert, Appellant and

his companions spent the night in a motel room in Abilene.

While there, Appellant photographed himself digitally

penetrating one of the female airmen, Amn M, who was passed out

on a bed. He also photographed another airman having

intercourse with Amn M while she was passed out on the bed.

Subsequent to these events, Appellant became concerned

about the length of time it was taking to process his security

clearance. Additionally, his command had denied a leave request

to visit his ill father. Consequently, between February 23,

2000, and June 14, 2000, Appellant met several times with

Lieutenant Colonel (Lt Col) Kluck, the IG for the 17th Training

Wing, to discuss how best to resolve these issues. These

meetings were initiated by Appellant and were conducted pursuant

to the IG’s authority to investigate complaints within the Air

Force. Lt Col Kluck had at least eighteen years of previous

WHETHER THE MILITARY JUDGE ERRED WHEN HE DENIED APPELLANT’S MOTION TO
SUPPRESS STATEMENTS HE MADE TO THE BASE INSPECTOR GENERAL.

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experience as an Office of Special Investigation (OSI)

investigator.

According to Lt Col Kluck “the Abilene incident was

discussed when he . . . came in and spoke with me,” on May 31,

2000. On a complaint registration form dated the same day,

Appellant indicated that he had been charged with rape, but that

the charge had been “dropped [until] further notice.” Lt Col

Kluck’s notes accompanying this form indicate that “Cohen is

being told by SJA [staff judge advocate] that he will be a

witness in a trial [or an Article 32, UCMJ § 832 (2000),

hearing] beginning 8 Jun 00. Cohen’s attorney feels he won’t be

needed.” Lt Col Kluck had a final meeting with Appellant on June

14, 2000, during which they again discussed the issues of

Appellant’s security clearance and his leave. During this

meeting, Lt Col Kluck learned from Appellant that his attorney

had indicated that Appellant “should be good to go on leave

since he [will] not be needed for trial until mid - late July

00.” During one or more of these meetings with Lt Col Kluck,

Appellant described the incident in Abilene.

On the merits at Appellant’s court-martial, Lt Col Kluck

was allowed to testify over objection that Appellant had

admitted to being present during the rape of Amn M, that he had

photographed the rape of Amn M and that he had assisted in

cleaning Amn M’s clothing after the rape. During the

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unsuccessful motion to suppress and on the merits Lt Col Kluck

testified that he had been aware of Appellant’s statement on the

intake form regarding the rape charge, but had not administered

warnings because Appellant had indicated to him that he was only

a witness to the acts against Amn M. Specifically, Lt Col Kluck

testified that while they were discussing the issue of leave, he

asked Appellant whether there were any problems he should know

about before he spoke with Appellant’s command. Appellant

responded that “he had been involved in an incident in the

Abilene area.” According to Lt Col Kluck, Appellant went on to

describe the events of that evening, including the sexual

activity between the drunk female airman, Amn M, and another

male airman. However, Appellant told Lt Col Kluck that he was

not a participant in such activity. When asked about whether

Appellant mentioned anything about taking photographs of what

occurred that night in Abilene, Lt Col Kluck responded that

Appellant did tell him about taking the photographs. Lt Col

Kluck further testified that he asked Appellant whether he was a

participant, because, if he had been, “at that point, the

interview would have changed a bit.” Appellant responded, “no,

he was simply a witness in this incident, by taking

photographs,” Lt Col Kluck testified.

On cross-examination, Appellant’s civilian defense counsel

asked Lt Col Kluck whether he “ever advise[d] [Appellant] of his

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rights?” Lt Col Kluck responded, “No, I didn’t. There was no

reason for me to.”

Defense counsel focused on the intake sheet dated May 31,

2000, and attempted to show that the IG should have been on

notice that Appellant was a suspect because of the reference to

the rape charge. That colloquy proceeded as follows:

Q. So, in fact, my client told you that he had been
charged with rape, didn’t he?

A. He said he’d been charged with rape.

Q. So, in that sense, he alerted you to the fact that he
was facing charges?

A. No. I asked him -- I looked at this [form] and I
said, “Are you being charged?” And, he said that he
had been charged, that the charges were dropped, and
he was now a witness in another case and he wasn’t
charged with anything. And that was confirmed when I
talked to the JAG’s office, that he was no longer
being charged with anything. He was simply a witness
in another case.

Satisfied with Appellant’s response that he was not facing

pending charges related to the rape of Amn M, Lt Col Kluck

testified that he proceeded to obtain information from Appellant

that he believed would aid him in resolving Appellant’s leave

problem. Defense counsel continued:

Q. Did you need that information from him about what
happened that night [in Abilene] to be able to decide
whether or not he should be given leave at that time?

A. I asked him what issues had been raised, what he’d
been involved in, was there anything -- any negative
behavior that he’d been involved with that would
preclude him from going on leave, which is what I

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would need to know if I were going to talk to the
squadron commander or the group commander to assist
him in obtaining leave.

According to Lt Col Kluck, at this point Appellant described two

unrelated incidents of sexual misconduct with high school girls

in New York and Colorado and the events that had transpired in

Abilene.3 During further testimony on the motion to suppress, Lt

Col Kluck stated that he may not have needed all the information

elicited from Appellant to resolve the issue:

Q. All you needed to know in order to perform your duties
as an IG resolving a leave complaint was whether or
not he might be a witness in a proceeding where his
presence at Goodfellow would be required that might
interfere with him taking leave? That’s all you
needed to know, isn’t it?

A. Yes. Sure.

Q. To perform your duties. You didn’t have to know all
the facts or details of whatever it was he might have
witnessed in order to perform your duties?

A. Yes, it could be looked at that way.

Q. So, you could have resolved his complaint simply by
knowing that he might be a witness in a proceeding and
his presence might be required that would interfere
with leave, right?

A. True.

In support of the motion to suppress, the defense argued

that Lt Col Kluck was aware, at least by May 31, 2000, that

Appellant had been previously charged with rape. As a result,

defense counsel asserted, Lt Col Kluck was obligated to

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administer Article 31 warnings before asking Appellant any

questions related to the rape of Amn M. Absent such warnings,

Appellant’s incriminating statements to Lt Col Kluck were

inadmissible, defense counsel argued. The military judge

disagreed, made essential findings, and concluded that the IG

had “no criminal investigator or disciplinary duties.” In

addition, the military judge found, among other things, that the

accused stated that he was only a witness, that he took

photographs of the sexual acts, and that he helped clean the

alleged victim’s clothes.

On appeal, Appellant maintains that under United States v.

Duga, 10 M.J. 206 (C.M.A. 1981), warnings were required before

Lt Col Kluck questioned Appellant because the IG was acting in

his official capacity and should have reasonably suspected

Appellant of potential UCMJ violations, primarily because

Appellant had indicated on his intake form that he had been

charged with rape.

The Government responds that Article 31 warnings were not

required because even though Lt Col Kluck was acting in his

official capacity, he was not questioning Appellant for a law

enforcement or disciplinary reason. Furthermore, the Government

contends, even assuming Article 31 warnings were required,

Appellant suffered no prejudice from the admission of his

3
The members were not present during this aspect of Lt Col Kluck’s testimony.

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statements to Lt Col Kluck.

The Court of Criminal Appeals held that Article 31 warnings

were not required because the IG was not acting in a “law

enforcement or disciplinary capacity.” Cohen, 2003 CCA LEXIS

130, at *19, 2004 WL 1238960, at *7. The court also found that

there was “no basis to conclude that the IG made promises of

confidentiality such as would render the appellant’s statements

to him involuntary.” Id. Finally, the court concluded that

even if the military judge erred by admitting Appellant’s

statements, Appellant suffered no material prejudice because the

evidence was sufficiently strong to convict him, even without

the statements. Id. at *19-*20, 2004 WL 1238960, at *7.

Discussion

“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); United

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

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

Article 31(b) states:

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

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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.

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.

As this Court first noted in United States v. Gibson, were

these textual predicates applied literally, Article 31(b) would

potentially have a comprehensive and unintended reach into all

aspects of military life and mission. 3 C.M.A. 746, 752, 14

C.M.R. 164, 170 (1954). As a result, this Court has interpreted

the second textual predicates -- interrogation and the taking of

“any” statement -- in context, and in a manner consistent with

Congress’ intent that the article protect the constitutional

right against self-incrimination. Id.; see also Duga, 10 M.J.

at 208-10; Swift, 53 M.J. at 445 (discussing congressional

intent with regard to Article 31).

To deal with the problem identified in Gibson, this Court

decided numerous cases that sought to clarify what it meant to

“interrogate, or request any statement from an accused or a

person suspected of an offense.” Article 31(b), UCMJ. From

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these cases, a number of factors become important for the

analysis, including the questioner’s status and the military

context in which the questioning occurs.

Where the questioner is performing a law enforcement or

disciplinary investigation, for example, and the person

questioned is suspected of an offense, then Article 31 warnings

are required. Swift, 53 M.J. at 446-47. Whether the questioner

should be considered to be performing such an investigation is

determined by “‘assessing all the facts and circumstances at the

time of the interview to determine whether the military

questioner was acting or could reasonably be considered to be

acting in an official law-enforcement or disciplinary

capacity.’” Id. at 446. (quoting United States v. Good, 32 M.J.

105, 108 (C.A.A.F. 2000)).

Conversely, where the questioner is not acting in a law

enforcement or disciplinary capacity, rights warnings are

generally not required, because “military persons not assigned

to investigate offenses, do not ordinarily interrogate nor do

they request statements from others accused or suspected of

crime.” United States v. Loukas, 29 M.J. 385, 388 (C.M.A. 1990)

(quoting United States v. Gibson, 3 C.M.A. at 752, 14 C.M.R. at

170 (1954))(emphasis added by Loukas). Similarly, where the

questioner is acting in an unofficial capacity and the person

questioned does not perceive the questioning as more than casual

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conversation warnings are not required. Duga, 10 M.J. at 210.

Such an informal exchange would not implicate the interrogation

or statement predicate of Article 31(b) or Congress’ concern

that, in the military context, junior enlisted personnel might

feel undue pressure to make incriminating statements.

This Court has also interpreted Article 31(b) in a manner

that recognizes the difference between questioning focused

solely on the accomplishment of an operational mission and

questioning to elicit information for use in disciplinary

proceedings. Where there is a mixed purpose behind the

questioning, the matter must be resolved on a case-by-case

basis, looking at the totality of the circumstances, including

whether the questioning was “designed to evade the accused’s

constitutional or codal rights.” United States v. Bradley, 51

M.J. 437, 441 (C.A.A.F. 1999). In Bradley, for example, this

Court held that rights warnings were not required where the

commander was acting in an official capacity in “seeking

information needed for the proper review of appellant’s security

clearance status,” but was not conducting a criminal

investigation. Id. Similarly, in Loukas, warnings were not

required where an aircraft crew chief’s questioning of a junior

member of the crew was not for the purposes of a law enforcement

or disciplinary investigation, but rather to fulfill his

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legitimate operational responsibility to provide for the safety

of his aircraft in flight. 29 M.J. at 387, 389.

At the same time, this Court has repeatedly cautioned that

as a general matter, “questioning by a military superior in the

chain of command ‘will normally be presumed to be for

disciplinary purposes.’” Swift, 53 M.J. at 446 (quoting Good,

32 M.J. at 108). Thus, in Swift, this Court held that the

Government failed to rebut the strong presumption that Swift’s

interrogation by a military superior in his immediate chain of

command was anything but a disciplinary investigation. 53 M.J.

at 448. Likewise, in Good, this Court found that an

investigator in the accused’s chain of command should have given

the accused his warnings upon their second meeting concerning

missing checks. 32 M.J. at 109.

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 (quoting Good, 32

M.J. at 108).

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Analysis

We agree with the parties that Lt Col Kluck was a “person

subject” to the UCMJ. Lt Col Kluck was a commissioned officer

serving on active duty as the Wing IG at Goodfellow AFB, Texas.

In this position, Lt Col Kluck was superior in grade to

Appellant, but he was not within Appellant’s chain of command.

The parties do not agree as to whether Lt Col Kluck was

engaged in a law enforcement or disciplinary function, and

therefore do not agree as to whether his questioning of

Appellant should be viewed as interrogation or the taking of

“any statement” for the purposes of Article 31(b). Further, the

parties disagree as to whether Lt Col Kluck should have

reasonably believed Appellant was suspected of an offense

arising out of the events in Abilene.

Lt Col Kluck’s Inquiry and Authority

The military judge found that Lt Col Kluck “had no criminal

investigator or disciplinary duties.” Further, the military

judge concluded:

The circumstances of this case easily overcome any
presumption that the questioning by a superior ranking
officer was for law enforcement or disciplinary purposes.
The IG did not know or believe that the accused was a
suspect in the alleged assault. He reasonably relied on
the information provided to him by the accused, by the
accused’s unit, and by Major Ecton. His conclusion was
reasonable under the facts and circumstances.

The lower court agreed, concluding:

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United States v. Cohen, No. 04-0606/AF

The Goodfellow AFB IG, to whom the appellant made the
incriminating statements, was not acting in a law
enforcement or disciplinary capacity, and he asked
questions “limited to that required to fulfill his
operational responsibilities.”

Cohen, 2003 CCA LEXIS 130, at *19, 2004 WL 1238960, at *7

(quoting Loukas, 29 M.J. at 389). The record indicates that

Appellant initiated the exchange with Lt Col Kluck. The record

also demonstrates that Lt Col Kluck treated his investigation

into Appellant’s complaints as an administrative inquiry, and

not as a criminal or disciplinary investigation. The denial of

leave and delay in security clearance processing may have

disciplinary roots, but they are not inherently criminal in

nature. Rather, on their face, they relate to military morale

and military mission and fall within Lt Col Kluck’s mandate to

investigate servicemember complaints administratively.

Moreover, Lt Col Kluck perceived his function in this light, as

evidenced by his treatment of Appellant as “a client” as well as

his refusal to testify against Appellant until ordered to do so.

However, Lt Col Kluck’s administrative focus in this case

does not ultimately answer the critical question as to whether

he was acting in an official law enforcement or disciplinary

capacity while also performing his administrative duties. See

Duga, 10 M.J. at 210. To answer that question we must consider

Lt Col Kluck’s authorities and responsibilities as specified in

Dep’t of the Air Force Instr., 90-301, Inspector General

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Complaints (Aug. 12, 1999)[hereinafter 1999 AFI 90-301],4 the

regulation in effect at the time.

Air Force Inspectors General derive their authority from 10

U.S.C. 8014, 8020 (2000), as delegated, and applicable

Department of the Air Force regulations. 2005 AFI 90-301; 1999

AFI 90-301. Installation IGs are responsible for implementing

the IG Complaints Program and the Fraud, Waste, and Abuse (FWA)

Program.

On the one hand, the responsibilities of the installation

IG, as defined at that time, were primarily administrative and

not disciplinary in nature. “The primary charge of the IG is to

sustain a credible Air Force IG system by ensuring the existence

of responsive complaint investigations, and FWA programs

characterized by objectivity, integrity, and impartiality.”

1999 AFI 90-301 para. 1.8.1. “IG investigations are

administrative in nature and they are fact finding rather than

judicial proceedings.” Id. at para. 2.32. Moreover,

complainants were generally offered confidentiality. “A

complaint to an IG, or a complaint worked in IG channels, is

confidential in nature and is privileged information.” Id. at

para. 1.37.1.1.5

4
Note that this regulation. has been superseded by Dep’t of the Air Force,
Instr. 90-301 Inspector General Complaints Resolution, (Feb. 8, 2005)
[hereinafter 2005 AFI 90-301].

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On the other hand, the installation IG also had law

enforcement and disciplinary responsibilities. For example, the

confidentiality promised to complainants was subject to an

express criminal exception: “EXCEPTION: IGs may turn over all

IG case materials to the AFOSI [Air Force Office of Special

Investigations] or SF [security forces] for criminal

investigations if warranted, or higher level IG for

investigation, as required.” Id. at para. 1.37.5.1.2.

Moreover, the general duties of the installation IG included the

analysis of complaints to determine “[w]hat law, regulation,

procedure, or policy was violated[.]” Id. at para. 2.13.1.3.

As set out in 1999 AFI 90-301: “If a complainant alleges fraud,

espionage, sabotage, treason, subversion, disloyal statements,

disaffection, or other criminal offenses, IGs will immediately

consult with the SJA and AFOSI office to determine whether the

allegations should be referred to AFOSI channels for appropriate

action, or stay within the IG complaint system.” Id. at para.

2.4.3.

5
It was on this basis that Lt Col Kluck initially declined to testify at
Appellant’s trial; however, he was eventually ordered to do so by the
Inspector General of the Air Force. The record reflects that Lt Col Kluck
acted in good faith in his dealings with Appellant and was motivated by a
desire to protect the IG complaint mechanism. During the Article 39(a) UCMJ,
10 U.S.C. § 839(a) (2000), session on the suppression motion, Lt Col Kluck
testified as follows:

I somewhat take gross offense to the whole process –- the whole issue
of having an IG testify against a client that comes in to talk with
him, . . . . there’s a privileged issue here. And, the IG, in this

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Further, the instruction contemplates the possibility that

IG investigations could transition into law enforcement or

disciplinary investigations. Thus, among other things, the

instruction provides the following:

[Investigating officers are required to c]onsult in advance
with the SJA about the need for and substance of Article 31
rights advisement.

[MAJCOM, FOA and DRU IGs shall r]efer criminal allegations
to AFOSI [Air Force Office of Special Investigations] or
Security Forces (SF), as appropriate. If they decide not to
investigate a criminal matter, obtain a documented transfer
back to the IG and complete the appropriate category of
investigation.

Witnesses who are military members . . . may refuse to
testify only if they believe they might incriminate
themselves.

Id. at paras. 2.34.6, 1.12.3, 2.36.5.

Based on the foregoing, we conclude that the military

judge’s finding that Lt Col Kluck “had no criminal investigator

or disciplinary duties” was clearly erroneous. Although Lt Col

Kluck’s responsibilities were primarily administrative, they

were not exclusively so. Among other things, as the Wing IG, he

was responsible for investigating wrongdoing, and reporting

criminal violations to AFOSI. Significantly, the

confidentiality he could offer to complainants did not extend to

criminal conduct.

particular case, the Secretary of the Air Force IG, elected to waive
that . . . . And, it, to me, is very very detrimental to the IG system.

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The installation IG’s disciplinary responsibility is

further evidenced in the instruction’s provision regarding

rights advisement. Thus, if an IG, acting as an investigating

officer (IO) on a complaint, “discovers information leading them

[sic] to believe matters of a criminal nature have occurred and

a witness or subject becomes a suspect, the IO must stop the

interview, immediately consult with the Appointing Authority and

the legal advisor, and (if allowed to proceed), advise the

suspects of their rights.” 1999 AFI 90-301 para. 2.39.6 That Lt

Col Kluck was aware of this requirement is evidenced by his

testimony at trial that the interview “would have changed a bit”

had Appellant admitted to participating in the nonconsensual

sexual actions committed against Amn M.

In sum, not only did the military judge err when he found

that Lt Col Kluck did not have law enforcement or disciplinary

authority, but he also erred in his finding that Lt Col Kluck

did not act in a way that implicated this authority when

Appellant disclosed the events in Abilene in response to Lt

Col’s Kluck’s questions.

Having concluded that Lt Col Kluck had disciplinary

responsibility and that it was implicated in this case, we must

now consider whether he should have reasonably suspected

6
For active duty military personnel, this translates into a requirement to
“advise them of their rights as specified under Article 31, UCMJ.” 1999 AFI
90-301 para. 2.39.1.

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United States v. Cohen, No. 04-0606/AF

Appellant of an offense at the outset of his inquiry, or whether

there came a point during his inquiry when he should have

suspected Appellant of an offense. If so, we must then

determine whether, in context, a rights advisement was required.

Appellant’s Status

Appellant argues that Lt Col Kluck should have considered

him a suspect for the purposes of Article 31(b) at the outset of

their meeting on May 31, 2000, based upon Appellant’s complaint

registration form. On it, Appellant wrote, “Legal charged me

with Article 132? Rape . . . . The charge were [sic] dropped

to future notice(?)” The Government responds that Lt Col Kluck

took proper account of this statement by asking Appellant

whether he was still subject to charges, to which Appellant

responded that he was only a witness. The Government further

argues that Lt Col Kluck reasonably relied on Appellant’s

response that he was no longer a suspect, only a witness.

Whether Lt Col Kluck was required, as a matter of law, to

advise Appellant of his rights at the outset of the May 31

meeting is a close question. The following facts would support

the contention that Lt Col Kluck was not required to do so.

First, the IG’s meeting with Appellant was conducted in the

context of the IG Complaints Resolution program. See generally

1999 AFI 90-301. As a result, Lt Col Kluck’s meetings with

Appellant were not designed or intended to serve as a mechanism

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to elicit statements of criminal culpability. Second, Lt Col

Kluck interviewed Appellant about his clearance complaint in

February without mentioning the incident earlier that month in

Abilene and without the necessity of rights warnings. Thus, as

far as Lt Col Kluck was concerned, at least half of Appellant’s

problem (security clearance) predated the incident in Abilene

and could be addressed without implicating Article 31. Finally,

Appellant advised the IG that he was only a potential witness

involving the incident in Abilene. Lt Col Kluck did not have

independent basis to conclude otherwise at the outset of the May

31 meeting. For these reasons, it was arguably reasonable for

Lt Col Kluck to proceed with his inquiry into the clearance and

leave complaints without first providing Appellant with an

Article 31 rights advisement. Such inquiry would not

necessarily have implicated the allegation of rape for which

Appellant had been a suspect. Lt Col Kluck was arguably

entitled, at least at the outset, to make such inquiry as he did

of the Appellant to clarify his status as a witness and not a

suspect. On the other hand, Appellant indicated on his form

that he was charged with rape and that the charge might still be

reinstated. Furthermore, Lt Col Kluck was aware that, since the

last time they spoke, before there was any mention of Abilene,

Appellant’s request for leave had been denied. These two facts

together are arguably enough to conclude that Lt Col Kluck

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should have reasonably suspected Appellant of an offense, namely

rape, when Appellant came to see him on May 31.

However, we need not resolve whether Appellant was entitled

to a rights advisement at the outset of his May 31 meeting with

Lt Col Kluck. For the reasons stated below, Appellant was

clearly entitled to a rights warning at a later point in the

conversation. Furthermore, up until that later point, Appellant

had not made any admissions.

The complaint statement and Lt Col Kluck’s subsequent

conversations with the Deputy SJA should have placed him on

notice that his discussions with Appellant might later trigger

those sections of the IG instruction requiring rights warnings,

AFOSI reporting, and potential waiver of complaint

confidentiality. In this light, at the point during the May 31

interview between Lt Col Kluck and Appellant when the latter

described his role in taking pictures of the incident in

Abilene, rights warnings were required. At this point, Lt Col

Kluck should have reasonably suspected Appellant of the offense

of indecent acts, if not complicity in the rape itself. Under

military case law, photographing or filming sexual acts is an

offense punishable under Article 134 of the UCMJ. See, e.g.,

United States v. Lujan, 59 M.J. 23 (C.A.A.F. 2003) (noting

appellant’s guilty plea to committing an indecent act where he

participated in videotaping the performance of numerous sexual

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acts with a heavily intoxicated female soldier); United States

v. Daye, 37 M.J. 714, 717-18 (A.F.C.M.R. 1993) (upholding

appellant’s conviction under Article 134 for surreptitiously

videotaping himself engaged in consensual adulterous activity

with another female solider); see also United States v.

Izquierdo, 51 M.J. 421, 422-23 (C.A.A.F. 1999) (discussing the

use of Article 134 to punish public sexual activity); United

States v. Whitcomb, 34 M.J. 984, 987-88 (C.M.R. 1992) (upholding

appellant’s conviction under Article 134 for taking suggestive

pictures of teenage girls). It was these indecent acts with

which Appellant was ultimately charged. Further, Lt Col Kluck’s

testimony revealed that he was aware, at the time of the

interview with Appellant, that the acts committed upon Amn M

were not consensual.

In sum, although Lt Col Kluck was acting in furtherance of

his administrative duties when he interviewed Appellant, his

inquiry went beyond what was required to fulfill those duties.

Moreover, during his inquiry Lt Col Kluck came under the purview

of Article 31 by requesting statements from Appellant in a way

that implicated the criminal investigative authority bestowed

upon him by the applicable Air Force Instruction.

Conclusion

We conclude that in accordance with Article 31(b), the

applicable Air Force Instruction, and this Court’s case law, Lt

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Col Kluck had disciplinary responsibility that was implicated

when Appellant described the incident in Abilene and he should

reasonably have suspected Appellant of the offense of indecent

acts at the point in the inquiry where Appellant disclosed his

direct involvement in the incident in Abilene. Article 31

warnings were required when Appellant admitted to taking the

photographs. As a result, the military judge erred in not

suppressing any incriminating statements made after that point.7

Prejudice

The question that remains is whether the military judge’s

error in admitting any unwarned statements made to Lt Col Kluck

prejudiced Appellant in this case. See United States v. Kerr,

51 M.J. 401, 405 (C.A.A.F. 1999). We conclude that it did not.

The prosecution presented the testimony of the other

eyewitnesses to the events in the hotel room. These witnesses

placed Appellant in the hotel room in Abilene. Most

significantly, the prosecution presented the photographs taken

by Appellant during the incident in Abilene. Moreover, although

Appellant’s statement that afterwards he helped clean Amn M’s

clothing was considered by the members on the rape

specification, he was ultimately acquitted of the rape. As for

his admissions to Lt Col Kluck regarding the taking of the

7
Because we decide that Appellant was entitled to a warning under the rubric
of Article 31(b), we do not address any additional arguments for such a

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photographs, Appellant pleaded guilty to the indecent act of

photographing the other airman’s rape of Amn M. Finally, none

of what Appellant told Lt Col Kluck implicated Appellant in the

indecent act he was convicted of committing against Amn M.

DECISION

For the reasons stated above, the decision of the United

States Air Force Court of Criminal Appeals is affirmed.

warning under Article 31(d), UCMJ.

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