Opinion of the Court
ROBERT E. Quinn, Chief Judge:A general court-martial convicted the accused of forging and uttering a forged check, in violation of Article 123, Uniform Code of Military Justice, 10 USC § 923, and sentenced him to a bad-conduct discharge, total forfeitures, and confinement at hard labor for nine months. Intermediate appellate authorities affirmed the findings of guilty but modified the sentence in several respects. On this appeal, the accused contends that the law officer erred to his prejudice by refusing to allow him to present evidence in an out-of-court hearing to the effect that a pretrial statement made by him was inadmissible in evidence.
The prosecution called a Federal Bureau of Investigation agent to the stand as a witness. Defense counsel advised the law officer that he believed the witness would testify in regard to a pretrial statement by the accused. Since the defense proposed to contest the admissibility of the statement, he requested that the matter be considered in an out-of-court hearing. The law officer granted the request. Two witnesses were heard on behalf of the Government in the out-of-court hearing. The accused then took the stand. After some testimony, the law officer interrupted. The following discussion was had:
“Law Officer: Let me interrupt just a moment. Do you intend to call witnesses other than the accused on this matter before we call the court? This testimony will have to be heard by the court.
“Defense Counsel: I don’t believe it is proper to be heard by the court.
“Law Officer; This would be repe*251titious. If this is the only -witness that you have, his testimony would concern prejudice to his rights and be in conflict with what we have previously heard. It would be a decision that would ultimately have to come before the court, as to voluntariness, we would have to put him on the stand, as we will have to do with the two previous witnesses for their testimony.
“Defense Counsel: For what purpose?
“Law Officer: Their testimony before the court as to the voluntariness of the statement is essential. It is their decision to make and I feel in fairness to the accused himself he should present his testimony before the court and it would be error for the law officer to rule on the admissibility on his own volition. At this point the accused will rejoin his counsel and court will be called back into session.”
The court was reconvened and over defense counsel’s objection the hearing on admissibility was conducted in the court members’ presence. Briefly, the evidence is as follows: On June 21, 1957, the accused cashed a check at a banking facility on the Luke Air Force Base, Arizona. The check was drawn by “Edmond De Simons” against a non-existent account on a bank in Warren, Ohio. On July 26, 1957, a Federal Bureau of Investigation agent appeared at the Office of Special Investigations at the base. He spoke to agent Mitchum. At his request Mitchum made “arrangements” for the accused to come to the office for questioning. The accused was called at his organization and directed to report “immediately” to the Office of Special Investigations. On arrival there, he was referred to two men. One identified himself as a Federal Bureau of Investigation agent and the other was identified as “Mr. Mitchum of the OSI.” With Mitchum sitting “right next” to the accused, the Bureau agent questioned the accused. According to his testimony, he told the accused he had information about a check issued by the accused on a nonexistent account. He advised the accused he did not have to say anything and that if he did say anything, it could be used against him. He also advised the accused he had a right to counsel. He made no threats or promises and exerted no coercion against the accused. Agent Mitchum took no part in the interrogation. Eventually, the accused made a statement which was reduced to writing by the FBI agent, signed by the accused, and witnessed by agent Mitchum.
The FBI agent was substantially corroborated by Mitchum who explained his presence at the interrogation as follows: “the only reason for my being there was to assist Mr. Tuckey and I did witness a statement.” On the other hand, the accused testified that when the introductions were completed, the FBI agent opened a folder and produced a photostatic copy of a check. He held out the check and said “What about this, Sergeant.” He was questioned and made an oral statement. When the agent “finished writing up” the statement he remarked to the accused “ ‘You know your rights under the Constitution’, some words to that effect.”
In United States v Cates, 9 USCMA 480, 26 CMR 260, we held that it is error to deny the accused’s request for a preliminary out-of-court hearing to determine the admissibility of a pretrial statement made by him.2 See also United States v Carignan, 342 US 36, 38, 72 S Ct 97, 96 L ed 48; United States v Cooper, 2 USCMA 333, 8 CMR 133. The question then is whether an issue of admissibility is presented by the record of trial. If there is none, the accused obviously was not harmed by the failure to hold the preliminary hearing. In our opinion, there is an issue of admissibility.
The accused was told to report to the *252Office of Special Investigations located on a military installation. At the office he was confronted by two persons, one of whom was a Federal Bureau of Investigation agent and the other an Office of Special Investigations agent. Although the actual interrogation was conducted by the FBI agent, the OSI agent remained through the proceedings; he also witnessed the statement. According to the accused’s testimony, he was not told that the investigation was in connection with a civilian charge. On the basis of this evidence we cannot conclude, as a matter of law, that the interrogation was entirely nonmilitary in nature.3 If the interrogation is determined factually to be military in nature, the evidence patently raises the question whether the accused was advised before or after the statement of his rights under Article 31 of the Uniform Code. Accordingly, the case comes within our decision in United States v Cates, supra.
The decision of the board of review is reversed. The findings of guilty and the sentence are set aside. A rehearing may be ordered.
Judge FERGUSON concurs.It would seem that the law officer here completely disregarded his duty to make the initial determination of admissibility in favor of submitting the issue directly to the court-martial. However, the accused does not challenge the law officer’s ruling from that standpoint, and we put the matter aside in our consideration of the case.
Cf. United States v DeLeo, 5 USCMA 148, 17 CMR 148. In that case a Criminal Investigation Division agent accompanied a French police officer, acting under letters rogatory issued by the Examining Magistrate of the La-Rochelle District, to the accused’s orderly room. There the agent informed the accused that “the French had made [charges] against” him. The charges were described as “counterfeit and traffic.” The accused, the CID agent, and the French officer went to the accused’s civilian apartment in Bordeaux. A search was made of the room by the French officer. One of the objects searched was a writing kit. When the French official laid aside the kit, the CID agent observed in it a slip of paper with the name “Andrew D. Binz.” He recognized the name as one which came up in connection with an earlier case. He picked up the slip and several others like it. These were introduced at the trial over defense counsel’s objection on the ground that they had been obtained in violation of American law of search and seizure. We held that the evidence supported the law officer’s ruling on two grounds. First, we pointed out that the law officer could reasonably find from the evidence that the search was not “an activity of the United States.” In part we said: “a somewhat higher degree of participation by Federal officials must be required in an overseas area, than in one within the continental limits of the United States, as the predicate for a finding that a particular search constituted an American enterprise.” Secondly, we observed that even if the search was an American activity it was lawful since there was probable cause to believe that the accused had committed an offense; the accused’s commanding officer authorized the search; and the agents “were armed with valid French process permitting the search.” Ibid, page 155, 160.