United States v. Campbell

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
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No. ACM 38906
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UNITED STATES
Appellee
v.
Ryan A. CAMPBELL
First Lieutenant (O-2), U.S. Air Force, Appellant
________________________

Appeal from the United States Air Force Trial Judiciary
Decided 25 April 2017
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Military Judge: Natalie D. Richardson.
Approved sentence: Dismissal. Sentence adjudged 6 June 2015 by GCM
convened at Los Angeles Air Force Base, California.
For Appellant: Major Virginia M. Bare, USAF; Major Lauren A. Shure,
USAF; Major Jeffrey A. Davis, USAF.
For Appellee: Major Mary Ellen Payne, USAF; Gerald R. Bruce, Es-
quire.
Before DREW, J. BROWN, and MINK, Appellate Military Judges.
Chief Judge DREW delivered the opinion of the court, in which Judge
MINK joined. Senior Judge J. BROWN filed a separate opinion concur-
ring in part.
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PUBLISHED OPINION OF THE COURT
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DREW, Chief Judge:
A general court-martial composed of officer members convicted Appellant,
contrary to his pleas, of three specifications of wrongful use of 3, 4-methylene-
dioxymethamphetamine (ecstasy) and one specification of divers wrongful use
of amphetamine in the form of Adderall, in violation of Article 112a, Uniform
 United States v. Campbell, No. ACM 38906

Code of Military Justice (UCMJ), 10 U.S.C. § 912a; and one specification of
solicitation to distribute ecstasy, in violation of Article 134, UCMJ, 10 U.S.C.
§ 934. 1 The court-martial sentenced Appellant to a dismissal. The convening
authority approved the adjudged sentence.
Appellant raises several assignments of error on appeal: (1) whether the
military judge abused her discretion in not suppressing Appellant’s oral and
written statements to the Air Force Office of Special Investigations (AFOSI);
(2) whether the Government failed to adequately corroborate Appellant’s
confession; 2 (3) whether the military judge abused her discretion in not sup-
pressing evidence derived from a search of Appellant’s cell phone; (4) whether
the military judge erred in denying a Defense challenge for cause of Captain
TA; (5) whether the military judge erred in overruling defense counsel’s ob-
jection to trial counsel’s sentencing argument; and (6) whether the military
judge erred in giving the Air Force Trial Judiciary mandated reasonable
doubt instruction. 3 We find no error materially prejudicial to a substantial
right of Appellant and affirm the findings and sentence.

I. BACKGROUND
Since graduating from the Air Force Academy, Appellant used ecstasy on
three occasions with a couple of his former classmates, now active duty lieu-
tenants, and used Adderall on several occasions while studying for the Grad-

1 The military judge granted a motion for a finding of not guilty, in accordance with
Rule for Court-Martial 917, as to a specification of wrongful use of cocaine, and the
court-martial acquitted Appellant of an additional specification of wrongful use of
ecstasy and two specifications of solicitation to distribute amphetamine in the form of
Adderall.
2 Appellant raises this issue pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982). As the Government pointed out in its Answer to Appellant’s Assign-
ment of Error, Appellant’s counsel failed to identify this Grostefon error with particu-
larity, listing the issues and arguments by Appellant, if any, as required by Rule 15.1
of this court’s Rules of Practice and Procedure. Despite the Government raising this
oversight, Appellant’s counsel chose in Appellant’s Reply Brief not to supplement
their bare assertion of this error. The military judge adequately addressed the cor-
roboration issue and the record, in particular Appellate Exhibit XXIII, more than
sufficiently establishes that Appellant’s admissions and confessions were adequately
corroborated. The issue does not require further discussion or warrant relief. See
United States v. Matias, 25 M.J. 356, 361 (C.M.A. 1987).
3Consistent with United States v. McClour, 76 M.J. 23 (C.A.A.F. 2017), we find that,
absent objection at trial, the instruction did not constitute plain error.

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uate Management Admission Test. He also solicited one of the lieutenants by
text message to get him some ecstasy.
When his text messages were uncovered on one of the lieutenants’ phone,
Appellant was called in by AFOSI and confronted with the digital evidence of
his drug involvement. After a somewhat problematic rights advisement by
AFOSI, Appellant voluntarily confessed and relinquished his cell phone for a
search.

II. DISCUSSION
A. Appellant’s Statements to AFOSI
Appellant argues that the military judge abused her discretion when she
failed to suppress his statements to investigators. Appellant asserts that,
after initially waiving his right to counsel and his right to remain silent, he
subsequently requested counsel when the investigators asked him if he was
willing to submit to a polygraph and that his request for counsel was not
honored by the investigators. Appellant also contends that the investigators
created a coercive atmosphere during the interview, rendering his statements
involuntary. We disagree that Appellant unambiguously invoked counsel or
that the conditions of the interview rendered his statements involuntary, and
find that the military judge did not abuse her discretion by failing to suppress
Appellant’s statements. While not directly raised by Appellant, we are how-
ever troubled by the investigators’ actions prior to advising Appellant of his
rights, which came all too close to undermining the intended effectiveness of
the advice.
“A military judge’s denial of a motion to suppress a confession is reviewed
for an abuse of discretion.” United States v. Chatfield, 67 M.J. 432, 437
(C.A.A.F. 2009). “The abuse of discretion standard is a strict one, calling for
more than a mere difference of opinion.” United States v. White, 69 M.J. 236,
239 (C.A.A.F. 2010) (quoting United States v. Lloyd, 69 M.J. 95, 99 (C.A.A.F.
2010)). The military judge’s findings of fact are upheld unless they are clearly
erroneous or unsupported by the record; however, we review de novo any
conclusions of law in a denial of a motion to suppress a confession. Id. “A
military judge abuses [her] discretion when: (1) the findings of fact upon
which [she] predicates [her] ruling are not supported by the evidence of rec-
ord; (2) if incorrect legal principles were used; or (3) if [her] application of the
correct legal principles to the facts is clearly unreasonable.” United States v.
Ellis, 68 M.J. 341, 344 (C.A.A.F. 2010). “On questions of fact, [we ask] wheth-
er the decision is reasonable; on questions of law, [we ask] whether the deci-
sion is correct.” United States v. Baldwin, 54 M.J. 551, 553 (A.F. Ct. Crim.
App. 2000) (alteration in original), aff’d, 54 M.J. 464 (C.A.A.F. 2001).

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When analyzing the voluntariness of Appellant’s statements to investiga-
tors, we review the totality of the circumstances to determine whether his
“will was overborne and his capacity for self-determination was critically
impaired.” Chatfield, 67 M.J. at 439 (quoting United States v. Bubonics, 45
M.J. 93, 95 (C.A.A.F. 1996)). We evaluate “both the characteristics of the
accused and the details of the interrogation.” Id. (quoting Bubonics, 45 M.J.
at 95); see also Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973). We
consider an appellant’s “age, education, experience, and intelligence as part
of the circumstances bearing on the question whether a statement was volun-
tary.” Id. at 439–40.
1. Article 31 Rights Advisement—Nature of the Accusation
After a brief rapport-building session, one AFOSI special agent, SA1, in
the presence of another who mostly took notes, engaged Appellant in a dis-
cussion leading up to reading Appellant his Article 31 rights. A portion of the
video recording of the interview was introduced into evidence and played for
the members. 4

4 Prosecution Exhibit 4 is a DVD data disk, reflecting a redacted version of Appel-
lant’s AFOSI interview that was admitted into evidence. We note that the copy of
Prosecution Exhibit 4 placed in the original Record of Trial was erroneously a dupli-
cate of Prosecution Exhibit 3 (another DVD data disk). However Appellate Exhibit
XIV, the unredacted version used during the motions hearing, and the parties’ copies
of Prosecution Exhibit 4 were correct. We have substituted the correct version of
Prosecution Exhibit 4 in the Record of Trial for the erroneous copy. Court Reporters
and military justice personnel at the trial level are advised to review all digital media
in the original and all copies of Records of Trial to ensure they contain what they
purport.
The record of trial includes a transcription of Prosecution Exhibit 4. Like the military
judge below, we have access to the recording. We have reviewed the transcript along-
side the video recording. While the transcript is substantially verbatim, it is incom-
plete. Words, typically filler words or repeated phrases, are at times omitted. In order
for courts and other reviewing authorities to properly fulfill our statutory and regula-
tory responsibilities, it is essential that transcriptions of critical evidence, such as
interviews of subjects and complaining witnesses, be as accurate as possible and not
“cleaned up.” Especially, as here, where a court must carefully evaluate the voluntar-
iness of a subject interview, precision in reflecting the exact words spoken is key.
Applying Article 66(c), 10 U.S.C. § 866(c), we find that the quotations cited in the
opinion accurately reflect the actual words spoken during Appellant’s AFOSI inter-
view.

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Prior to the rights advice, which SA1 read from a standard Advisement of
Rights (For military personnel) card, SA1 indicated that AFOSI was investi-
gating a number of people and they needed to talk to Appellant:
SA1: Yeah like I said there’s a lot of stuff that I want to talk to
you about, and there’s a lot of stuff that, ah, ah, doesn’t deal
with you directly at all, it deals with, more so, other people.
Appellant: Okay.
SA1: But in order to speak with you about some of that stuff,
um, it’s kind of like an umbrella catch-all. So I’ve got to at least
let you know, ah, what you’re in here for, and I’ve got to let you
know some of the things that I’m going to talk to you about.
And I’m going to do that, ah, but, um, I have to get through
kind of the umbrella catch-all. So, some of the stuff that I’m go-
ing to brief you on doesn’t necessarily pertain to you, kind of
pertains to other people. But, because I’m asking you questions
in that arena I have to, I have to allow you to know that, right?
And I’m going to do that in the means of letting you know what
your rights are while you’re over here.
Cause, ah, I mean you’re over at OSI, right? So, I mean, we
can’t just, ah pull people in here that don’t want to be in here,
right? You’re just off the street. You have, you have your rights
so I’m going to let you know them.
Appellant: Am I being charged with something?
SA1: Um—I’m going to ask you some questions.
Appellant: Okay.
SA1: About—like I said some of the stuff to deal with other
people, but—in order to do that, I have to read you your rights.
So, right now, um, I’m not saying that you did any of this stuff,
I’m not saying that you’re guilty of any of this stuff. I’m just
saying that in order to speak with you about it, I have to advise
you of your rights.
Appellant: Okay.
SA1: So does that make sense?
Appellant: Yeah.
SA1: Sometimes even commanders, if they’re doing some sort
of—like if your commander, your supervisor, or whoever was to
talk to you about something that maybe you or your friend or
somebody else did, they would still have to read you your

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rights. They’re not law enforcement, they’re not DoD police,
they’re not OSI, but they still have to read you your rights.
Appellant: Uh, hum.
SA1: So, were you aware of that?
Appellant: I was not.
SA1: Okay—So I’m going to go ahead and do that, ah, right
now. I’m going to read it off the card here before we—
Okay, so I am [SA1], a member of the Air Force Office of
Special Investigations. I am investigating the alleged of-
fense of Article 112(a) wrongful use, possession of a con-
trolled substance, and Article 82, solicitation of a controlled
substance, of which you are suspected.
I advise that under the provisions of Article 31, UCMJ, you
have the right to remain silent, that is say nothing at all.
Any statements you make, oral or written, may be used as
evidence against you in trial by courts-martial, or in other
judicial or administrative proceedings.
You have the right to consult a lawyer and to have a lawyer
present during this interview. You have the right to mili-
tary legal counsel free of charge. In addition to military
counsel you are entitled to civilian counser [sic], counsel of
your own choosing, at your own expense. You may request a
lawyer at any time during this interview. If you decide to
answer questions you may stop the inter–, questioning at
any time.
Do you understand your rights?
Appellant: Yes.
SA1: Do you want a lawyer?
Appellant: [Pause] I don’t know.
SA1: You don’t know. Okay, unfortunately, um, I can’t keep
explaining some of the things that I’ve got in front of me, um,
unless you choose to sit in here and discuss them with us. So,
um, it’s kind of—there’s really no middle ground on that. So I’ll
ask you again, or if you need a couple of minutes or something I
can give it to you. But, um, it kind of has to be a “yes” or a “no”
answer.
Appellant: No, I’ll talk about it.

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SA1: You’ll talk about it for a little bit?
Appellant: [Nodding affirmatively]
Article 31(b), UCMJ, 10 U.S.C. § 831(b), states:
No person subject to [the UCMJ)] may interrogate, or request
any statement from an accused or a person suspected of an of-
fense 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.
(Emphasis added.)
The Article 31(b) requirement to advise a suspect of the nature of the ac-
cusation is unique to military practice. There is no civilian counterpart in
Miranda v. Arizona, 384 U.S. 436 (1966). See United States v. Tempia, 37
C.M.R. 249, 264 (C.M.A. 1967) (Quinn, CJ, dissenting). In advising a suspect
of his Article 31(b) rights, the
[a]dvice as to the nature of the charge need not be spelled out
with the particularity of a legally sufficient specification; it is
enough if, from what is said and done, the accused knows the
general nature of the charge. . . . A partial advice, considered in
light of the surrounding circumstances and the manifest
knowledge of the accused, can be sufficient to satisfy this re-
quirement of Article 31.
United States v. Simpson, 54 M.J. 281, 284 (C.A.A.F. 2000) (omission in orig-
inal) (quoting United States v. Davis, 24 C.M.R. 6, 8 (C.M.A. 1957)). However,
a suspect must be informed of the general nature of the allegation, including
the area of suspicion that focuses him toward the circumstances surrounding
the event in which he is allegedly involved. Id.
In this case, the nature of the accusation as described by SA1 to Appellant
while the agent read from a rights advisement card would appear to be more
than sufficient: “Article 112(a) wrongful use, possession of a controlled sub-
stance, and Article 82, solicitation of a controlled substance, of which you are
suspected.” However, prior to reading Appellant his rights, SA1’s preliminary
comments could have created the impression that Appellant was being inter-
viewed as a witness, not a suspect. For example, SA1 told Appellant that
there was “a lot of stuff” that he wanted to talk to him about and “there’s a lot
of stuff that, ah, ah, doesn’t deal with you directly at all, it deals with, more
so, other people.” He also twice used the term “umbrella catch-all,” to explain
the forthcoming rights advisement, suggesting that the rights advisement

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concerned, at least in part, “some of the stuff that I’m going to brief you on
[that] doesn’t necessarily pertain to you.” (Emphasis added.) At best, SA1
created an ambiguity as to the nature of the accusation against Appellant, as
opposed to “other people.”
Article 31(b) requires that a suspect be informed of the general nature of
the allegation against him that focuses him toward the circumstances sur-
rounding the events in which he is allegedly involved. Davis, 24 C.M.R. at 8.
Inherent in advising a suspect of the nature of an allegation is advising the
suspect that he is suspected of something (as opposed to other people being
suspected). Anything that shifts that focus potentially undermines this
unique aspect of Article 31(b) and, if sufficiently confusing, would invalidate
the subsequent rights advisement.
An investigator’s use of trickery, artifice, or subterfuge in obtaining a con-
fession is generally permissible, as long as the tactic does not result in coer-
cion or an otherwise involuntary statement within the meaning of the Due
Process Clause. 5 See, e.g., Frazier v. Cupp, 394 U.S. 731, 739 (1969) (false
statement that coconspirator had confessed did not render confession invol-
untary); United States v. McKay, 26 C.M.R. 307, 311 (C.M.A. 1958) (feigned
threat to use a polygraph to prove accused’s denials were false did not render
subsequent confession involuntary); Lucero v. Kerby, 133 F.3d 1299, 1311
(10th Cir. 1998) (false statement that officers recovered suspect’s fingerprints
in victim’s house did not render confession involuntary). See generally United
States v. Erie, 29 M.J. 1008, 1012 (A.C.M.R. 1990). However, an investigator’s
use of such tactics in securing a rights waiver or in discouraging an invoca-
tion of rights invalidates the waiver and is clearly improper. Id. Cf. United
States v. Whitehead, 26 M.J. 613, 619 (A.C.M.R. 1988) (after suspect’s equivo-
cal request for counsel, “Maybe I should get a lawyer” investigator improperly
dissuaded him from unequivocally invoking counsel by telling suspect “if you
didn’t do anything wrong, . . . you don’t need one, right?”).
If this court were to focus strictly on SA1’s reading from the rights ad-
visement card, we would have no trouble in finding a clear waiver of Appel-
lant’s rights. However, the court must consider the totality of the circum-
stances to determine whether Appellant waived his rights, not just the talis-
manic recitation of words from a card. “The question is not one of form, but
rather whether the defendant in fact knowingly and voluntarily waived [his]
rights . . . .” North Carolina v. Butler, 441 U.S. 369, 373 (1979). The court’s

5 U.S. CONST. amend. V.

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determination of a valid waiver, just as in the Miranda setting, is a two-step
process:
First, the relinquishment of the right must have been volun-
tary in the sense that it was the product of a free and deliber-
ate choice rather than intimidation, coercion, or deception. Sec-
ond, the waiver must have been made with a full awareness of
both the nature of the right being abandoned and the conse-
quences of the decision to abandon it. Only if the “totality of the
circumstances surrounding the interrogation” reveals both an
uncoerced choice and the requisite level of comprehension may
a court conclude that the Miranda rights have been waived.
Moran v. Burbine, 475 U.S. 412, 421 (1986) (quoting Fare v. Michael C., 442
U.S. 707, 725 (1979)).
This case gives us serious concern that SA1’s comments prior to formally
advising Appellant of his Article 31 rights might have inoculated Appellant to
disregard the warning he was about to receive. If they did, whether resulting
from intentional deception or inadvertent unartfulness, Appellant would not
have made a free and deliberate choice in relinquishing his rights. In addi-
tion, if Appellant was led to believe that, notwithstanding the words from the
card, he was not really under suspicion, he would not have made his subse-
quent waiver with a full awareness of the consequences of his decision to
abandon his rights. 6
For example, if the special agent had said: “I’m about to read from a card.
I’m going to tell you I suspect you of something, but I really don’t. You can just
disregard that.” then there would be no question that the special agent’s
subsequent rendition “of which you are suspected” would not have satisfied

6 We focus only on the second part of step two of the Moran v. Burbine two-step
analysis because the special agent’s pre-advisement statements did not minimize the
nature of the rights that Appellant was abandoning. For example, the agent did not
tell him that if he chose to remain silent the government would compel him to speak
anyway, or tell him that even though he had a right to counsel, a lawyer would not do
him any good if he asked for one. Thus, when the agent read from the rights advise-
ment card, nothing in the record indicates that Appellant was not fully aware of the
nature of his rights. The problem with the special agent’s pre-advisement state-
ments, in addition to potentially negating the Article 31(b) nature of the accusation
advice requirement, is their tendency to minimize the consequences of abandoning
his rights. Cf. United States v. Whitehead, 26 M.J. 613, 619 (A.C.M.R. 1988) (“[I]f you
didn’t do anything wrong, . . . you don’t need [a lawyer], right?”).

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Article 31(b)’s requirement to inform Appellant of the nature of the allegation
against him.
The question therefore is whether the special agent’s use of the minimiz-
ing term “umbrella catch-all” and emphasizing that “a lot of stuff” that he
wanted to talk to him about “deals with, more so, other people” was the func-
tional equivalent of telling Appellant that, “I’m going to tell you I suspect you
of something, but I really don’t.” In evaluating whether Appellant freely and
deliberately waived his rights with full awareness of the consequences of
doing so, we focus primarily upon the perceptions of Appellant, rather than
the intent of the special agent. Rhode Island v. Innis, 446 U.S. 291, 301
(1980). Since Appellant did not testify on the motion challenging the volun-
tariness of his statements to AFOSI, the military judge and this court are
limited to examining the video recording of his interview. This court must
determine whether Appellant understood the nature of the allegation against
him before we can determine whether his waiver was voluntary, in light of
the conflicting advice given to him by the special agent.
After SA1 read Appellant his rights from the card, the agent asked him,
“Do you want a lawyer?” Appellant, after a pause, responded “I don’t know.”
Appellant’s hesitation to continue with the interview immediately after SA1
read him his rights suggests that Appellant was aware that there were con-
sequences to abandoning his rights. In addition to what SA1 told him that
AFOSI was investigating, Appellant himself was aware of his activities in-
volving the use and solicitation of controlled substances. This is not a situa-
tion in which an accused may be unclear that his prior conduct might be
illegal and the subject of a criminal investigation. Appellant was an Air Force
officer and graduate of the Air Force Academy, who was nearly 25 years old
at the time of the interview. He was well aware that his actions violated the
UCMJ. Under the unique facts of this case, and this particular accused, we
conclude that Appellant understood that he was a suspect and the nature of
the allegations against him, and he appreciated the consequences of waiving
his rights and agreeing to answer the investigator’s questions.
Nevertheless, had additional evidence been admitted to establish that at
the time of his rights waiver, Appellant actually believed that he was not
under suspicion, this court might likely have come to a different result. We
would like to clearly and unequivocally emphasize that when reading a sus-
pect his or her rights, criminal investigators are not authorized, and have no
legitimate purpose, to create confusion about any aspect of the rights advice,
including the nature of the allegation. While the law may allow investigators
to use deceit during other portions of an interview, the rendering of rights
advice must be clear, honest, and understandable.

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2. Invocation of Counsel
Invocation of the right to counsel “requires, at a minimum, some state-
ment by an accused that can reasonably be construed to be an expression of a
desire for the assistance of an attorney.” McNeil v. Wisconsin, 501 U.S. 171,
178 (1991). “Where nothing about the request for counsel or the circumstanc-
es leading up to the request would render it ambiguous, all questioning must
cease.” Smith v. Illinois, 469 U.S. 91, 98 (1984). Statements subsequent to a
clear invocation of counsel may not be considered in determining whether the
invocation was ambiguous. Id. Reviewing courts may, however, consider
statements and events immediately preceding the invocation, as well as
“nuances inherent in the request itself.” Id. at 99; United States v. Delarosa,
67 M.J. 318, 324 (C.A.A.F. 2009).
The determination of whether an invocation is unambiguous (requiring
the agents to immediately terminate the questioning) or ambiguous (permit-
ting further clarifying questions) is an objective inquiry based upon how a
“reasonable officer” would view the comments. Davis v. United States, 512
U.S. 452, 459 (1994); see also United States v. Lovely, 73 M.J. 658, 672 (A.F.
Ct. Crim. App. 2014). If an accused is indecisive in his request, questions
regarding whether he did or did not waive counsel “must necessarily be left to
the judgment of the interviewing Agent.” Miranda, 384 U.S. at 485.
Once an accused unambiguously requests counsel, “courts may admit his
responses to further questioning only on finding that he (a) initiated further
discussions with the police, and (b) knowingly and intelligently waived the
right he had invoked.” Smith, 469 U.S. at 95.
After he was read his rights, Appellant initially indicated that he did not
know if he wanted a lawyer. Once SA1 clarified with him that he needed
either a “yes” or “no” answer, Appellant unambiguously indicated that he
wanted to talk, waiving his right to consult with a lawyer at that time. Later
in the interview, SA1 asked Appellant if he was willing to take a polygraph
examination, and the following discussion ensued:
SA1: Would you be willing to take a poly?
Appellant: I want to talk to lawyer first.
SA1: Before the poly?
Appellant: Yeah.
SA1: Okay.
Appellant: I just, I mean, I’m in the corner by myself with no
idea what I’m doing. I’ve been in situations in the past where,

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I’ve been accused of things and I, didn’t consult legal advice
and I regret it.
SA1: Okay, then I’m going to see um—cause we’re gonna have
to do a couple things out here, other than, other than that, as
far as like fingerprints and stuff so, we’re going to get that stuff
going and then, um, we’ll be back in here in a second and
we’ll—
[SA1 leaves interview room]
SA2: Hold on a sec. You need to use the restroom Lieutenant?
Appellant: I could use some water.
SA2: Some water? I can get you some water. Hold on a sec. I’ll
be right back—two seconds.
[SA2 leaves interview room]
[SA1 and SA2 reenter interview room approximately five and
one-half minutes later and hand Appellant a bottle of water]
SA1: If your good with—we’ll push the, as far as the—if, if you
do want to ask about that you can as far as a lawyer with the
polygraph, and we can set that up at a later time, but, um, as
far as just hanging out, um, for a couple minutes longer—are
you okay to hang out here and talk to us a little bit more?
Appellant: Uh hum.
SA1: Alright.
Appellant made a conditional request for counsel. Specifically, he indicat-
ed that he wanted to talk to a lawyer before deciding whether to take a poly-
graph.7 The agents left him alone for over five minutes, giving him plenty of
time to fully consider his options. Once the agents returned, SA1 asked him a
clarifying question to be perfectly sure that Appellant was willing to continue
the interview before consulting counsel. While the conditional nature of Ap-
pellant’s request for counsel was clear, given his musing about having been in
situations in the past when he did not consult legal advice and regretted it, it
was certainly prudent and proper for SA1 to clarify Appellant’s desire to
speak with counsel.

7That the investigators suggested to Appellant that a polygraph examination was set
up, when in fact it was not, did not render his subsequent statements involuntary.
McKay, 26 C.M.R. at 311.

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A conditional invocation of counsel does not prohibit investigators from ei-
ther clarifying the condition or continuing with an interview if the subject’s
condition is honored. See Connecticut v. Barrett, 479 U.S. 523, 529 (1987)
(subject’s expressed desire for the presence of counsel only in the event he
had to make a written statement did not prohibit investigators continuing to
interview him without taking a written statement); United States v. Jacobs,
97 F.3d 275, 280 (8th Cir. 1996) (subject’s statement that he would want a
lawyer if he had to take a polygraph test did not preclude investigators con-
tinuing to interview him and take his confession).
Although Appellant’s response on the video recording to SA1’s clarifying
question was somewhat obscured (Appellant was drinking from a water bot-
tle at the time), applying our fact-finding authority under Article 66(c),
UCMJ, 10 U.S.C. § 866(c), we find that Appellant indicated his continuing
willingness to speak with AFOSI without first consulting counsel and that
his invocation of counsel was limited to the specific purpose of talking with a
lawyer before agreeing to a polygraph.
3. Coercive Atmosphere of Interview
Appellant alleges that AFOSI made “significant threats” to him during
the interview that caused his statements to be involuntary. In particular,
Appellant points to SA1’s comment: “probably rip the bars right off of your
chest if this stuff goes up if you don’t want to say anything about it.” Howev-
er, the atmosphere of the interview room was relaxed when SA1 made the
comment. He was not raising his voice. Appellant was sitting diagonally
away from him, with a small desk between them, and SA1 was not even
looking in his direction. He was looking down, apparently at a copy of Appel-
lant’s text messages, and he made the statement in a rather matter-of-fact
way.
Prior to making the statement, SA1 had discussed how the Air Force was
currently going through “force shaping cuts,” in which officers were being
selected for involuntary separation and that now was not a good time to not
tell the truth. “But it’s up to you.” The implication SA1 made was that if
Appellant continued to lie, “people with lots of stars, and even people that
don’t have those stars” who would be receiving the AFOSI report, would
likely force Appellant out of the Air Force and take away his rank. While
saying that Appellant’s bars would probably be ripped right off his chest was
perhaps not the most artful way to put it, a review of the video recording
reveals that SA1 did not make the comment in a physically threatening way
and there is no indication that Appellant either took it that way or that his
participation and discussion throughout the interview was coerced in any
way. The interview eventually ended when Appellant said he wanted to talk
to a lawyer.

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In addition to being an experienced 24 year-old Air Force officer, Appel-
lant played collegiate football at the Air Force Academy. At no point during
the interview did he appear to be intimidated by the AFOSI agents and he
had no hesitation in invoking his right to counsel, once he decided it was in
his best interest to do so. Accordingly, we find that all of Appellant’s state-
ments to AFOSI were voluntary and free from coercion or unlawful induce-
ment.
B. Search of Appellant’s Cell Phone
A military magistrate authorized the search of Appellant’s phone at 1345
hours on 10 January 2014 based upon probable cause to believe that evidence
of Appellant’s wrongful use, possession, and solicitation of controlled sub-
stances existed on the phone. At 1523 hours the same day, Appellant sepa-
rately consented to the search of his phone and voluntarily provided the
password for this phone to facilitate his consent. AFOSI seized Appellant’s
phone pursuant to both his consent and the search warrant. AFOSI complet-
ed its search of Appellant’s phone when it made a digital copy of the phone on
that date or shortly thereafter using a Cellebrite device. All subsequent ex-
aminations of evidence originally taken from Appellant’s phone were of
AFOSI’s digital copy and not of Appellant’s cell phone. On 24 January 2014,
Appellant withdrew his consent to the search of his phone.
The Fourth Amendment provides:
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and sei-
zures, shall not be violated; and no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched and the per-
sons or things to be seized.
U.S. CONST. amend. IV. Whether a search is “reasonable” depends, in part, on
whether the person subject to the search has a subjective expectation of pri-
vacy in the thing to be searched, and that expectation is objectively reasona-
ble. United States v. Wicks, 73 M.J. 93, 98 (C.A.A.F. 2014). Evidence obtained
as a result of an unlawful search is inadmissible against an accused if the
accused (1) makes a timely objection, and (2) has an adequate interest, such
as a reasonable expectation of privacy in the person, place, or property
searched. Mil. R. Evid. 311(a).
We review a military judge’s ruling on a motion to suppress evidence for
an abuse of discretion, viewing the evidence in the light most favorable to the
party prevailing below. United States v. Hoffmann, 75 M.J. 120, 124
(C.A.A.F. 2016). We accept the military judge’s findings of fact unless they
are clearly erroneous or unsupported by the record; however, we review the

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conclusions of law de novo. Id. Searches conducted pursuant to a warrant or
authorization based on probable cause are presumptively reasonable, where-
as warrantless searches are presumptively unreasonable unless they fall
within a few specifically established and well-delineated exceptions. Id. at
123–24. Consent is a specifically established exception to both the warrant
and probable cause requirements of the Fourth Amendment. Schneckloth v.
Bustamonte, 412 U.S. 218, 219 (1973). “Property . . . may be seized with con-
sent consistent with the requirements applicable to consensual searches
under Mil. R. Evid. 314.” Mil. R. Evid. 316(c)(3). “Consent [to search] may be
limited in any way by the person granting consent, including limitations in
terms of time, place, or property, and may be withdrawn at any time.” Mil. R.
Evid. 314(e)(3). The Government bears the burden of showing the applicabil-
ity of the consent exception. Hoffmann, 75 M.J. at 124.
There is no reasonable expectation of privacy in a government-created
copy of evidence that was lawfully seized, whether by consent or by a search
warrant, and, in the case of consent, is not to be suppressed if the copy was
created before the consent is revoked. United States v. Lutcza, ___ M.J. ___,
Misc. Dkt. No. 2016-13, 2017 CCA LEXIS 28, at *8–12 (A.F. Ct. Crim. App.
18 Jan. 2017); see also United States v. Ward, 576 F.2d 243, 244–45 (9th Cir.
1978) (“[W]e agree with the district court that any evidence gathered or cop-
ies made from the records during the intervening five days [before consent
was revoked] should not be suppressed.”); United States v. Ponder, 444 F.2d
816, 818 (5th Cir. 1971), cert. denied, 405 U.S. 918 (1971) (“Ponder agreed to
supply the records requested and voluntarily delivered them . . . . At that
point there was a valid consent to search, which carries with it the right to
examine and photocopy.”); Mason v. Pulliam, 557 F.2d 426, 429 (5th Cir.
1977) (“This withdrawal [of consent] . . . does not affect the validity of [the
agent’s] actions prior to the time he received notice that his right to retain
Mason’s papers was gone. The district court correctly refused to require the
return of copies made prior to the demand by Mason’s attorney.”)
The search of Appellant’s cell phone was reasonable and the military
judge did not abuse her discretion in refusing to suppress the results of the
search.
C. Challenge for Cause of Captain TA
During voir dire, the Prosecution disclosed to the court members that SA1
would be testifying during the trial. A prospective court member, Capt TA,
disclosed that she had previously served as a Sexual Assault Response Coor-
dinator (SARC) and in that role had met SA1 at a joint SARC, AFOSI, and
judge advocate conference, roughly three years prior to the court-martial.
Capt TA indicated that she had very minimal contact with SA1 during the
conference, had not had any subsequent contact with him, had not formed

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any personal opinion of him, and was not likely to give his testimony any
additional weight based on their contact. Appellant challenged Capt TA for
cause on the basis of implied bias because she had met SA1 at a conference
and had worked with sexual assault victims.
The military judge applied the “liberal grant mandate” and denied the
challenge because Capt TA had no professional relationship with SA1, she
had no personal opinion of him or other contact beyond the one conference,
and her professional involvement with self-proclaimed victims of sexual
assault is very far removed from any of the allegations or issues of this case.
The military judge was convinced that anyone with full knowledge of this
court-martial would have no concern with Capt TA’s ability to be fair. Appel-
lant exercised his peremptory challenge against Capt TA, but preserved the
issue for appeal by indicating on the record that he would have exercised his
peremptory challenge against another court member if the military judge had
granted his challenge for cause.
R.C.M. 912(f)(1)(N) provides that a member shall be excused for cause
whenever it appears the member “[s]hould not sit as a member in the interest
of having the court-martial free from substantial doubt as to legality, fair-
ness, and impartiality.” “This rule encompasses challenges based upon both
actual and implied bias.” United States v. Elfayoumi, 66 M.J. 354, 356
(C.A.A.F. 2008). The burden of establishing the grounds for a challenge for
cause is on the party making the challenge. United States v. Wiesen, 57 M.J.
48, 49 (C.A.A.F. 2002).
The test for implied bias is “objective, viewed through the eyes of the pub-
lic, focusing on the appearance of fairness.” United States v. Bagstad, 68 M.J.
460, 462 (C.A.A.F. 2010) (quoting United States v. Clay, 64 M.J. 274, 276
(C.A.A.F. 2007)) (internal quotation marks omitted). “The hypothetical ‘pub-
lic’ is assumed to be familiar with the military justice system.” Id. We review
rulings on challenges for implied bias “under a standard less deferential than
abuse of discretion but more deferential than de novo.” United States v.
Strand, 59 M.J. 455, 458 (C.A.A.F. 2004) (quoting United States v. Miles, 58
M.J. 192, 195 (C.A.A.F. 2003)). Military judges apply a liberal-grant mandate
in ruling on challenges for cause. United States v. White, 36 M.J. 284, 287
(C.M.A. 1993). “The liberal grant mandate recognizes the unique nature of
military courts-martial panels, particularly that those bodies are detailed by
convening authorities and that the accused has only one peremptory chal-
lenge.” United States v. Moreno, 63 M.J. 129, 134 (C.A.A.F. 2006).
Like the military judge, we find no basis to question Capt TA’s fairness
based on her fleeting encounter with SA1 at an official conference three years
prior to the court-martial. In addition, her previous duties as a SARC provide
no basis whatsoever to question her suitability to serve as a court member in

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Appellant’s court-martial for the use and solicitation of distribution of con-
trolled substances. The military judge was correct in denying the Defense
challenge for cause.
D. Trial Counsel’s Sentencing Argument
The military judge instructed the members that the maximum punish-
ment they could adjudge was forfeiture of all pay and allowances, confine-
ment for 25 years, and a dismissal. The Government argued for a sentence of
total forfeitures, confinement for six months, and a dismissal. During his
sentencing argument, the second assistant trial counsel (ATC2) made the
following argument:
ATC2: Now, defense counsel is going to say, “Look, since the—
since the investigation began he’s been a good citizen; he’s
learned humility, he’s all this,” but—and the accused said a lot
of things, and I think what the accused said shows he still
doesn’t get it. Think about not just what the things he said, but
what he didn’t say.
DC: I’m going to object, Your Honor, commenting on an ac-
cused’s right to remain silent.
MJ: Not quite—we’re not—we’re not there yet. Overruled.
ATC2: You know, the accused has every right to make us put
the burden of proving our case, and we have the burden to put
on the case. He also has the right to ask for leniency and mer-
cy. But it’s also important that you consider where that’s mer-
ited in this case. And when you consider that he never—he
never mentioned his crime, he never took responsibility for his
criminal conduct, that mercy and leniency is not merited here.
(Emphasis added.) While defense counsel objected to the reference to “what
[Appellant] didn’t say,” he did not object to ATC2’s further argument that
Appellant “never took responsibility for his criminal conduct.”
“Improper argument involves a question of law that [we] review de novo.”
United States v. Frey, 73 M.J. 245, 248 (C.A.A.F. 2014). “The legal test for
improper argument is whether the argument was erroneous and whether it
materially prejudiced the substantial rights of the accused.” United States v.
Baer, 53 M.J. 235, 237 (C.A.A.F. 2000). Error occurs when counsel fail to
limit their arguments to “the evidence of record, as well as all reasonable
inferences fairly derived from such evidence.” Id. Even within the context of
the record, it is error for trial counsel to make arguments that “unduly . . .
inflame the passions or prejudices of the court members.” United States v.
Marsh, 70 M.J. 101, 102 (C.A.A.F. 2011) (alteration in original) (quoting

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United States v. Schroder, 65 M.J. 49, 58 (C.A.A.F. 2007)). On the other hand,
trial counsel is expected to zealously argue for an appropriate sentence, so
long as the argument is fair and reasonably based on the evidence. United
States v. Kropf, 39 M.J. 107, 108 (C.M.A. 1994).
Where improper sentencing argument occurs, we must determine wheth-
er we can be confident that the appellant was sentenced on the basis of the
evidence alone. United States v. Halpin, 71 M.J. 477, 480 (C.A.A.F. 2013).
When the defense has objected at trial, we review argument for prejudicial
error. United States v. Hornback, 73 M.J. 155, 159 (C.A.A.F. 2014). To the
extent that trial defense counsel failed to object to an argument at trial, we
review for plain error. Marsh, 70 M.J. at 104. To establish plain error, Appel-
lant must prove (1) there was error, (2) it was plain or obvious, and (3) the
error resulted in material prejudice. United States v. Flores, 69 M.J. 366, 369
(C.A.A.F. 2011). Regardless of whether there was an objection or not, in the
context of a constitutional error, the burden is on the Government to estab-
lish that the comments were harmless beyond a reasonable doubt. Id.
An accused has a fundamental right to plead not guilty. Any comment on
the exercise of that right by trial counsel is “intolerable.” United States v.
Johnson, 1 M.J. 213, 215 (C.M.A. 1975). Argument by trial counsel which
comments upon an accused’s exercise of his or her constitutionally protected
rights is “beyond the bounds of fair comment.” United States v. Paxton, 64
M.J. 484, 487 (C.A.A.F. 2007). However, if the proper foundation is laid, an
accused’s refusal to admit guilt or accept responsibility after findings may be
an appropriate factor for the member’s consideration in their sentencing
deliberation on rehabilitation potential. United States v. Garren, 53 M.J. 142,
144 (C.A.A.F. 2000); United States v. Edwards, 35 M.J. 351, 355 (C.M.A.
1992). “As a general rule, the predicate foundation is that an accused has
either testified or has made an unsworn statement and has either expressed
no remorse or his expression of remorse can be arguably construed as being
shallow, artificial, or contrived.” Edwards, 35 M.J. at 355. However, the
inference that an accused is not remorseful may not be drawn from his deci-
sion to not testify or from his pleas of not guilty. Id.
Appellant made an oral unsworn statement before the court members. In
context, it is apparent that when ATC2 said “the accused said a lot of things”
in his sentencing argument, he was referring to Appellant’s unsworn state-
ment. Likewise when ATC2 said “Think about not just what the things he
said, but what he didn’t say,” ATC2 was not referring to Appellant’s exercise
of his right to remain silent. Therefore, the military judge did not abuse her
discretion in overruling defense counsel’s objection to the argument.
With regard to ATC2’s comment that Appellant “never took responsibility
for his criminal conduct,” that went without objection from trial defense

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counsel, again it is clear that ATC2 was referring to Appellant’s unsworn
statement. In his statement, Appellant said several things that arguably
expressed a degree of remorse: He said that although a guilty verdict was not
the outcome he was hoping for, he understood and respected the members’
decisions. He said that words cannot express the amount of shame he felt. He
apologized to his parents for the burden that they have shared on his behalf
and to anyone else who’s had to share the burden with him. He said he could
not describe the amount of humiliation he felt when he looked up at his com-
mander after leaving the AFOSI interview room. He also made other com-
ments suggesting that the decisions he had made will impact his future.
Whether Appellant’s statements truly evidenced remorse and taking respon-
sibility, or were shallow and stopped short is a matter of argument. But what
is clear is that ATC2 was making that argument, based on Appellant’s un-
sworn statement and not on his exercise of his rights to plead guilty and to
remain silent.
Assuming, arguendo, that ATC2’s argument included improper comments
on Appellant’s exercise of his constitutional rights, we are nevertheless con-
vinced that the comments were harmless beyond a reasonable doubt. Appel-
lant, an officer, was convicted of multiple uses of controlled substances and of
soliciting the distribution of additional controlled substances. His crimes
were further aggravated by being committed with other Air Force officers.
That he received a dismissal, a uniquely military punishment reserved for
officers, was not surprising and fully appropriate for his offenses. The Gov-
ernment argued that he should also be confined and forfeit pay. However the
members spared him those additional punishments. Having reviewed the
entire record, we are convinced that Appellant was not prejudiced by ATC2’s
comments about Appellant not taking responsibility for his criminal conduct.

III. CONCLUSION
The approved findings and sentence are correct in law and fact, and no
error materially prejudicial to the substantial rights of Appellant occurred.
Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the
findings and the sentence are AFFIRMED.

J. BROWN, Senior Judge (concurring in part and concurring in the result):
I join my esteemed colleagues in all but a portion of their rationale re-
garding the search of Appellant’s cellular phone. Although I agree that the
military judge did not abuse her discretion in failing to suppress information
obtained from Appellant’s cellular phone, I base my conclusion on the exist-
ence of a valid search warrant for the phone—not on Appellant’s initial con-
sent to search the phone that was later revoked.

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I write separately because I am skeptical of the majority’s reliance on the
holding of United States v. Lutcza, ___ M.J. ___, Misc. Dkt. No. 2016-13, 2017
CCA LEXIS 28 (A.F. Ct. Crim. App. 18 Jan. 2017) for the broad proposition
that there is no reasonable expectation of privacy in a government-created
version of digital evidence that was seized pursuant to an accused’s consent
where an accused later revokes that consent. Though Lutcza was a published
decision from another panel of this court, my hesitation stems from my con-
cern that the opinion did not fully address the potential implication of Mili-
tary Rule of Evidence 314(e)(3) to its holding. That rule provides that consent
may be withdrawn “at any time.” A plain reading of the rule might suggest
that an accused could indeed withdraw consent to future searches of forensi-
cally identical versions of an accused’s computer files—regardless of whether
a version of those files are located on electronic storage devices owned by an
accused or the Government. Nevertheless, as there was a valid search war-
rant here, resolution of this more difficult issue is not necessary to dispose of
this assignment of error.

FOR THE COURT

KURT J. BRUBAKER
Clerk of the Court

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