Petition for Writ of Certiorari — Price v. United States

Nn

Supreme Court, U.S.

Q) FILED

: 96 898 DEC 4 19%

No. «10 Or iHE CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1996

STAFF SERGEANT GREGORY J. PRICE,

PETITIONER

V.

UNITED STATES OF AMERICA, RESPONDENT

Petition For a Writ of Certiorari to the United States

Court of Appeals for the Armed Forces

PETITION FOR WRIT OF CERTIORARI

Ormond R. Fodrea

Major, United States Air Force

Appellate Defense Division

Counsel of Record

Michael L. McIntyre

Captain, United States Air Force

Appellate Defense Counsel

Counsel for the Petitioner

) Air Force Legal Services Agency

Appellate Defense Division

172 Luke Avenue, Suite 343

Bolling AFB, DC 20332-8000

202-767-1562

| December 1996

rm

| vy)

QUESTION PRESENTED

Whether the Military Judge erred in denying Petitioner’s

motion to suppress statements induced from him by SSgt

Moore, by finding that SSgt Moore, in questioning Petitioner,

was not acting in an official capacity and, therefore, had no

duty to inform Petitioner of his Article 31 rights under the

Uniform Code of Military Justice or inform Petitioner’s

retained counsel that he wished to question him.

eee

TABLE OF CONTENTS

Page

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PPP, os iad vas 6 45.6 Woks ccc Ba oo eer |

CONSTITUTIONAL PROVISIONS INVOLVED ........ 1

PEPER RSENS GIO AER CCE. ook do cee c tc ccescecis ]

REASON FOR GRANTING THE WRIT............... 5

THE MILITARY JUDGE ERRED IN DENYING

PETITIONER’S MOTION TO SUPPRESS

STATEMENTS INDUCED FROM HIM BY SSGT

MOORE, WHEN IT FOUND THAT SSGT

MOORE, IN QUESTIONING PETITIONER, WAS

NOT ACTING IN AN OFFICIAL CAPACITY

AND, THEREFORE, HAD NO DUTY TO

INFORM PETITIONER OF HIS ARTICLE 31

RIGHTS UNDER THE UNIFORM CODE OF

MILITARY JUSTICE OR TO INFORM

PETITIONER’S COUNSEL BEFORE

QUESTIONING PETITIONER AGAIN

IRI hey oe 2b 5G Week vA awa kak ks vos

APPENDIX A (Opinion of the United States

Court of Appeals for the Armed Forces). ..............

APPENDIX B (Opinion of the United States

Air Force Court of Criminal Appeals) ................

iv

TABLE OF AUTHORITIES

Page

Military Cases:

United States v. Duga, 10 M.J. 206 (CMA 1981) ...... 5

United States v. Goode, 32 M.J. 105 (CMA 1991) .. .5, 6

United States v. Loukas, 29 M.J. 385 (CMA 1990) ... .6

United States v. Price, No. 95-0147, M.J._

(G SOGSCMNES TSF 5 6 6 Sv Nien es Ske baa eee ess 1

United States v. Price, ACM 30445

(AFCMR 7 September 1994) .............2.006: .

Federal Statutes:

28 U.S.C.A. § 1259(3) (West Supp. 1996) ........... 1

10 U.S.C.A. § 934 (West Supp. 1996) ...............

10 U'S.C.A. § 831 (West Supp. 1996) .......5.....: 1

10 U.S.C.A. § 867 (West Supp. 1996) .............. 1

The petitioner, Staff Sergeant Gregory J. Price,

respectfully prays that a writ of certiorari issue to review the

order and judgment of the United States Court of Appeals for

the Armed Forces entered in his case, issued on 6 September

1996.

OPINIONS BELOW

The order and judgment of the United States Court of

Appeals for the Armed Forces, reported at No. 95-0147,

_M.J._ (6 September 1996), is located at Appendix A. The

unpublished opinion of the United States Air Force Court of

Criminal Appeals, United States v. Price, ACM 30445

(AFCMR 7 September 1994), is located at Appendix B.

JURISDICTION

The judgment of the United States Court of Appeals for

the Armed Forces was eritered on 6 September 1996. The

jurisdiction of this Court is invoked under 28 U.S.C.A.

§ 1259 (3) (West Supp. 1996) and 10 U.S.C.A. § 867(a)

(West Supp. 1996).

STATEMENT OF THE CASE

On 27 July 1992, pursuant to a random inspection,

petitioner provided a urinalysis sample for drug testing. The

sample was sent to the laboratory at Brooks AFB, TX, and on

21 August 1992, the laboratory notified March Air Force Base

officials that petitioner’s urine sample had tested positive for

methamphetamine. (App. Ex. IV). On 27 August 1992,

Special Agent (SA) Dave Riter called petitioner to come to

the Air Force Office of Special Investigations (AFOSI) to

make a statement. (App. Ex. X). Petitioner was read his rights

under Article 31 of the Uniform Code of Military Justice, 10

U.S.C.A. § 831 (West Supp. 1996) and told he had a right to

remain silent and a right to an attorney. After completing a

Statement (which was not incriminating), petitioner requested

a lawyer and first saw his defense counsel on 28 August 1992.

(R. 100).

SSgt Richard Moore, Jr. worked with petitioner in the

pharmacy section of the 22d Medical Group, March AFB. He

was petitioner’s nominal subordinate and apparent friend. (R.

32-34). SSgt Moore harbored a strong opposition to drug use

and a fervent desire to become an AFOSI agent. (R. 41; App.

Ex. III). In early August 1992, SSgt Moore became suspicious

that petitioner was using illegal drugs. He had heard rumors

about such activity from a civilian named Peggy and believed

that petitioner was nervous about the urinalysis test petitioner

had taken on 27 July. (R. 15, 16).

Armed with his suspicions, SSgt Moore approached the

AFOSI on 14 August 1992 with information about petitioner.

Contact was made through his supervisor (and appellant’s

supervisor), SMSgt Thomas Frausto, and his first sergeant,

CMSgt Van Slyke. (R. 15). At that time, no case file existed

on petitioner; however, the agents instructed SSgt Moore to

“see what information you can get.” (R. 16, 33). From 14

August onward, the AFOSI trained, tasked, and

communicated with SSgt Moore concerning petitioner and

other matters. Although at some point the agents directed SSgt

Moore to fill out a Declaration of Agreement and informed

him that he “was not an agent,” their actions (and SSgt

Moore’s actions) speak louder than words. (R. 29, 47).

AFOSI agents purchased lunch for SSgt Moore at an off

base establishment on 14 August and met with him on 20

August, 28 August, 1 September, 16 September, and 2

October. (R. 49; App. Ex. VIII; App. Ex. IX). According to

the 14 August AFOSI Form 14 at App. Ex. III, contact was to

be maintained “[w]eekly or as operation dictates.” SA Riter

and SA Thomas D. West accomplished several additional

Form 14s concerning SSgt Moore. (R. 43; App. Ex. VIII;

App. Ex. IX).

In the course of their relationship with SSgt Moore, the

AFOSI agents provided him with narcotics training and

tasked him to get the vehicle description and license plate of

cars belonging to “Peggy” and petitioner, (R. 44); to obtain

the medical records of petitioner (R. 59); and to get a

prescription from petitioner. (R. 30) (this last request is

disputed by SA West at R. 59). Moreover, they tasked SSgt

Moore with a job unrelated to petitioner’s case. (R. 59).

Although the military judge found that the AFOSI agents

did not instruct SSgt Moore to question petitioner (Military

Judge’s Finding #28), the AFOSI agents were aware that SSgt

Moore was overly enthusiastic, noting sometime after 21

August 1992, “we will have to keep the reins tight.” (R. 42,

43; App. Ex. III). The record shows that they took information

elicited by SSgt Moore without protest. (App. Ex. III, VII,

and IX). When asked what he would do with the information

elicited from petitioner, SSgt Moore replied that he would

“[t]ell the OSI.” (R. 19). Most importantly, after each meeting

with petitioner, SSgt Moore would inform the AFOSI agents

about his conversations. (R. 21, 22).

On 28 August or 2 September 1992 (most probably the

earlier date), the AFOSI informed SSgt Moore that petitioner

had requested an attorney and that the AFOSI could no longer

talk to petitioner. (R. 18, 19). Petitioner also told SSgt Moore

that he had an attorney. (R. 28). By 2 September, SSgt Price

had been removed from his duty section. (R. 34).

Nevertheless, SSgt Moore initiated all subsequent

conversations with petitioner, (R. 28), “to see what kind of

information I could gather” (R. 19). Knowing that petitioner

was a suspect and had invoked his right to legal counsel, SSgt

Moore approached him on 2 September, 11 September, and 16

September 1992 in an attempt to elicit incriminating

information. (R. 19, 20, and 28). SSgt Moore tried to induce

statements about drugs using trickery and falsehood. SSgt

Moore told petitioner that he had taken a command directed

urinalysis after ingesting cocaine and asked petitioner “if he

knew of anything that might flush my (SSgt Moore’s)

system.” (R. 20-25). SSgt Moore also asked petitioner for a

prescription for Fastin, a drug similar to methamphetamine.

(R. 20, 21). SSgt Moore testified that AFOSI asked him to get

a prescription of this drug from petitioner. (R. 23, 30).

SSgt Moore testified on the merits of the case about his

conversations with petitioner. Petitioner’s primary defense

was that the drug Fastin may have caused a positive urinalysis

reading for methamphetamine. However, SSgt Moore testified

that petitioner said “I got my dates together” in relation to the

Fastin. (R. 207). The government theorized that petitioner

obtained a Fastin prescription from a diet clinic in order to

create a defense to the charge against him. Furthermore, the

government used the discussions initiated by SSgt Moore

about flushing agents, specifically herbal tea, te further cast

doubt on petitioner’s credibility. (R. 383-385).

In her findings of fact and conclusions of law on the

motion to suppress, the military judge ruled that SSgt Moore

was a person subject to the Uniform Code of Military Justice

and that he suspected petitioner of drug use. Although the

judge stated that SSgt Moore, “clearly went beyond his

tasking,” she ruled that he was not acting in an official

capacity. The military judge ruled that SSgt Moore was

required neither to give petitioner Article 31 rights nor to

notify petitioner’s counsel of his desire to interrogate

petitioner. (R. 85).

On 7 September 1994, the Air Force Court of Military

Review (now United States Air Force Court of Criminal

Appeals but for purposes of this Brief will be referred to by its

former name) affirmed the findings of guilty and the sentence

in an unpublished opinion. United States v. Price, ACM

30445, (AFCMR 7 September 1994). (Appendix). On 6

September 1996, the Court of Appeals for the Armed Forces

likewise affirmed.

REASON FOR GRANTING THE WRIT

THE MILITARY JUDGE ERRED IN

DENYING PETITIONER’S MOTION TO

SUPPRESS STATEMENTS INDUCED FROM

HIM BY SSGT MOORE, WHEN IT FOUND

THAT SSGT MOORE, IN QUESTIONING

PETITIONER, WAS NOT ACTING IN AN

OFFICIAL CAPACITY AND, THEREFORE,

HAD NO DUTY TO INFORM PETITIONER

OF HIS ARTICLE 31 RIGHTS UNDER THE

UNIFORM CODE OF MILITARY JUSTICE

OR TO INFORM PETITIONER’S COUNSEL

BEFORE AGAIN QUESTIONING

PETITIONER.

In accordance with United States v. Goode, 32 M.J. 105,

108 (CMA 1991), a “servicemember is entitled to this rights

advice [under Article 31] only if he is a suspect at the time of

the questioning and the questioning itself is part of an official

law enforcement investigation or disciplinary inquiry.”

The first prong of the test enunciated in Goode concerns

the definition of officiality. In United States v. Duga, 10 M.J.

206 (CMA 1981), the Court of Appeals for the Armed Forces

(then named the Court of Military Appeals) separated the test

of officiality into two parts:

Accordingly, in each case it is necessary to

determine whether (1) a questioner subject to the

Code was acting in an official capacity in his

inquiry or only had a personal motivation; and (2)

whether the person questioned perceived that the

inquiry invoived more than a casual conversation.

Duga, 10 M.J. at 210. Nonetheless, this rule has, at times,

been modified. United States v. Loukas, 29 M.J. 385 (C.M.A.

1990) (second prong of Duga test met when questioner had

superior rank or authority over the suspect). All the facts and

circumstances determine the Duga test for officiality. Goode,

32 M.J. 108.

The Court of Appeals for the Armed Forces found no

error, even assuming, arguendo, the first prong of the Duga

test was met, because petitioner could not have perceived

that the questioning by SSgt Moore, a friend and nominal

subordinate of petitioner, was anything other than a casual

inquiry. Therefore, there was no indication that petitioner

was coerced by some superior or disciplinary authority into

implicating himself. Although this finding meets the Duga

two prong test, petitioner asks this Honorable Court to grant

writ of certiori in order to determine whether Duga should

be overruled in order to give Article 31 of the UCM its

proper meaning and effect—to protect the greater rights

afforded servicemembers under the Uniform Code of

Military Justice—-when a military servicemember, in

accordance with the Article 31 rights provided to him or her,

requests an attorney and no longer wishes to be questioned

under Article 31.

Conclusion :

SSgt Moore was acting in a sufficiently official capacity

when he questioned petitioner three times after being told

that petitioner had an attorney. SSgt Moore questioned

petitioner solely to obtain a confession from him that he

intended to (and did) report to AFOSI. He did not question

petitioner for any personal reason. The actions of the AFOSI

officials after they told SSgt Moore that they could no longer

question petitioner clearly show that SSgt Moore was not

acting for personal reasons with no direction from AFOSI.

AFOSI, upon learning that SSgt Moore was questioning

petitioner, allowed the questioning to continue, had lunch

with SSgt Moore, and willingly received reports from SSgt

Moore on what petitioner had told him. In order to give

Article 31 its proper meaning and effect, the perception on

the part of a servicemember that such questioning was

“casual” as opposed to “official” is irrelevant and the second

prong of the Duga test should be overruled.

WHEREFORE, petitioner respectfully requests that this

writ of certiori be granted.

Respectfully submitted,

Ormond R. Fodrea

Major, United States Air Force

Appellate Defense Division

Counsel of Record

Michael L. McIntyre

Captain, United States Air Force

Appellate Defense Counsel

Counsel for the Petitioner

Air Force Legal Services Agency

Appellate Defense Division

112 Luke Avenue, Suite 208

Bolling AFB, DC 20332-8000

(202) 767-1562

December 1996

BLANK PAGE

la

APPENDIX A

UNITED STATES, Appellee

V.

Gregory J. PRICE, Staff Sergeant

U.S. Air Force, Appellant

No. 95-0147

CMR No. 30445

UNITED STATES COURT OF

APPEALS FOR THE ARMED FORCES

Argued: November 2, 1995

Decided: Sep. 06, 1996

Counsel

For Appellant: Captain Michael L. McIntyre (argued);

Colonel Jay L. Cohen (on brief); Lieutenant Colonel Joseph

L. Heimann.

For Appellee: Major Jane M.E. Peterson (argued); Colonel

Jeffery T. Infelise (on brief); Lieutenant Colonel Michael J.

Breslin.

Military Judge: Martha Bower

2a

Opinion of the Court

COX, Chief Judge:

Appellant was tried by general court—martial with

members! at March Air Force Base, California. Contrary to

his pleas, he was found guilty2 of wrongful use of

methamphetamine, in violation of Article 112a, Uniform Code

of Military Justice, 10 USC § 912a. He was sentenced to a

bad—conduct discharge, confinement for 6 months, and

reduction to pay grade E-4. The convening sethority

approved the sentence. The Court of Military Review

affirmed.

'Before the court below, appellate defense counsel stated that this

case was tried by judge alone. The Government “accepted” this

statement. The opinion below correctly stated in its very first word

that this was a trial by members.

In its supplement and its final brief, appellate defense counsel

stated this case was tried by judge alone. The Government again

“accepted” this statement in its letter answer and its Answer to

Final Brief.

The record reflects that the PRES announced the findings

(R.414) and the sentence (R.450).

Counsel are reminded that the purpose of pleadings is to assist

the Court. Accuracy in every respect is an essential aspect of a

helpful brief. The existence of patent errors significantly diminishes

the effectiveness of the brief. One purpose of an adversary

proceeding is to prevent inaccurate or misleading statements from

being before this Court.

e military judge instructed the members that there was no need

to vote on the Charge, regardless of the vote on the specification.

(R.413) This is contrary to RCM 921(c)(1) and (c)(6), Manual for

Courts—Martial, United States (1995 ed.). Those provisions have

not been changed since 1984.

Military judges are not free to pick and choose which of the

President’s procedural rules to follow.

3See 41 MJ 213, 229 n.* (1994)

3a

We granted review of the following issue:

WHETHER THE AIR FORCE COURT OF

MILITARY REVIEW ERRED IN FINDING THAT

SSGT MOORE WAS NOT ACTING IN AN

OFFICIAL CAPACITY WHEN HE QUESTIONED

APPELLANT AND THAT THEREFORE

STATEMENTS INDUCED FROM APPELLANT

BY SSGT MOORE WITHOUT THE READING

OF ARTICLE 31 RIGHTS OR NOTIFICATION

OF APPELLANT’S DEFENSE COUNSEL, WERE

INADMISSIBLE.

We hold that the military judge did not err in denying the

defense motion to suppress.

After taking evidence and prior to ruling on the defense

motion, the military judge made extensive findings of fact and

her findings were specifically adopted by the Court of Military

Review. Unpub. op at 2. Based upon our review of the record

and the evidence, we, too, conclude that the

military judge’s findings were correct and adopt them to

resolve the granted issue. United States v. French, 38 MJ 420

(CMA 1993); United States v. Davis, 36 MJ 337 (CMA 1993).

The facts, in brief, are as follows:

On July 27, 1992, appellant provided a urine sample as

part of random urinalysis testing. At that time, appellant and

Staff Sergeant (SSgt) Moore both worked in the pharmacy

section of the 22d Medical Group at March AFB. SSgt

Moore “technically worked for” appellant. “Sometime in

early August 1992,” SSgt Moore “heard, or was told” that —

appellant was “using drugs.” He passed this information on to

the pharmacy superintendent and later made a report to the

Office of Special Investigations (OSI) when Special Agent

(SA) Riter took him to funch where they discussed SSgt

4a

Moore’s concerns about appellant’s drug use. SA Riter

informed SSgt Moore that they did not have an active case on

appellant and that SSgt Moore’s participation by providing

information “was voluntary.” They both signed a Declaration

of Agreement that SSgt Moore was not an OSI agent, and

SSgt Moore was advised “that if he committed a criminal act,

the OSI would investigate” him and that he must act “as the

OSI told him to do.” SA Riter then asked SSgt Moore to get

some details about appellant’s vehicle and “to pass on” any

information he got-from a named civilian employee about

appellant; “he did not tell” SSgt Moore “to obtain statements

from” appellant. Also at this meeting, SSgt Moore expressed a

desire “to become an OSI agent,” and SA Riter told him what

the requirements for such a job would be. Additiona} luncheon

meetings took place between SSgt Moore and age>‘s of the

OSI, and SSgt Moore “was given some type «.. training

concerning drugs during one” of these meetings.

Appellant’s urine sample tested positive for

methamphetamine. The OSI was notified of the results and

they “called” appellant “in.” After having been advised of his

rights under Article 31, UCMJ, 10 USC § 831, appellant

waived his rights and made a written statement; then he

requested counsel. Appellant was “removed” from his job at

the pharmacy “and assigned elsewhere.”

The two OSI agents in this case testified that they

“believed” they advised SSgt Moore that appellant had asked

to see an attorney. Later, in September 1992, SSgt Moore had

three conversations with appellant, and the statements

appellant made to him during these discussions were reported

to the OSI agents. Those statements were the focus of the

defense motion to suppress. Trial defense counsel asserted

that SSgt Moore was obligated to advise appellant of his

Article 31 rights and to notify counsel of the scheduled

interview. Despite the fact that the military judge found SSgt

Sa

Moore’s testimony about these conversations to be unclear

and “confusing,” she found that they were “casual” exchanges

between co-workers. After the last of the three meetings, SSgt

Moore indicated to the OSI agents that appellant would claim

that the urinalysis was positive because he was using a

prescription drug. One of the OSI agents then asked SSgt

Moore to “check” appellant’s medical records to see if that

was the case. The military judge found that the agents never

“instruct[ed] SSgt Moore to initiate any conversations with”

or interrogations of appellant and that they did not “provide

him questions to ask” appellant. She further found that SSgt

Moore was motivated by “his dislike of drugs in the military”

and “his very strong desire to become an OSI agent”;

however, his “conversations with” appellant “were informal

and outside the scope of any military relationship.”

On the basis of the foregoing facts, the military judge

ruled that SSgt Moore “was a person subject to” the Uniform

Code of Military Justice who “suspected” that appellant was

wrongfully using drugs. But she further concluded that SSgt

Moore had not been “acting in an official law enforcement or

disciplinary capacity”; that “a reasonable man” in appellant’s

“position would not perceive” that SSgt Moore “was acting in

an official law enforcement or disciplinary capacity”; SSgt

Moore “was not required to advise” appellant “of his rights

under Article 31(b)”; and that SSgt Moore had no obligation

to notify counsel. We agree.

Appellant clearly was suspected of using drugs by SSgt

Moore, a person subject to the UCMJ, when the two engaged

in the three conversations that gave rise to the defense

motion to suppress. See United States v. Good, 32 MJ 105,

108-09 (CMA 1991). However, standing alone, that fact does

6a

not invoke the warning requirements of Article 31(b).4

Rather, as this Court held in United States v. Duga, 10 MJ

206, 210 (1981):

Therefore, in light of Article 31(b)’s purpose

and its legislative history, the Article applies only to

situations in which, because of military rank, duty,

or other similar relationship, there might be subtle

pressure On a suspect to respond to an inquiry.

United States v. Gibson, [3 USCMA 746, 14 CMR

164 (1954)]. Accordingly, in each case it is

necessary to determine whether (1) a questioner

subject to the Code was acting in an official

capacity in his inquiry or only had a personal

motivation; and (2) whether the person questioned

perceived that the inquiry involved more than a

casual conversation. United States v. Gibson, supra.

Unless both prerequisites are met, Article 31(b)

does not apply.

See also United States v. Loukas, 29 MJ 385 (CMA 1990).

We recently examined this two-pronged test for the

rights’—advisement requirement of Article 31(b) in United

States v. Harvey, 37 MJ 140 (1993). There we held that the

requirement was not triggered where a military member

4 Article 31(b), Uniform Code of Military Justice, 10 USC § 831(b),

provides the following:

(b) No person subject to this chapter may

interrogate, or request any statement from, an accused or

a person suspected of an offense without first informing

him of the nature of the accusation and advising him that

he does not have to make any statement regarding the

offense of which he is accused or suspected and that any

statement made by him may be used as evidence against

him in a trial by court-martial.

7a

(O’Brien), acting as an agent for the OSI, agreed to use a

hidden transmitter to allow law enforcement officials to

monitor his conversations with Harvey. Holding that the

accused’s Fifth and Sixth Amendment rights to counsel and

Article 31 warnings had not been violated, we observed the

following:

In this case O’Brien was Subject to the Code and

was acting as an agent of the OSI. But both

meetings were requested and arranged by appellant

who was O’Brien’s Supervisor and would not have

been perceived as an inquiry by an individual acting

in an official Capacity or as a law enforcement

official to obtain a confession from a suspect. As in

Gibson, this questioning created neither a coercive

atmosphere nor an atmosphere where appellant

thought she was required to cooperate. See also

United States v. Kirby, 8 MJ 8 (CMA 1979),

37 MJ at 143-44.

In the present case there are fewer factors warranting a

conclusion that warnings were required than there were in

Harvey. The operative in Harvey was clearly acting as an

agent for law enforcement officials; and therefore, in an

official capacity. Here the military judge found that SSgt

Moore was not so acting and that he went beyond what he

was asked to do by the law enforcement Officials. Even

assuming arguendo that some specter of officiality had been

imprinted on SSgt Moore’s actions, the second prong of

United States v. Duga, supra, Clearly was not present in this

case. It was appellant who was SSgt Moore’s technical

supervisor, not the other way around; the conversations were

casual and took place in a work environment; there was no

evidence that appellant was aware of SSgt Moore’s

involvement with the OSI; and the encounters between

8a

appellant and SSgt Moore took place under circumstances

which gave no indication that appellant was coerced by some

superior or disciplinary authority.> Thus, we hold that there

was no violation of appellant’s rights under Article 31, UCMJ,

10 USC § 831.

Turning to the obligation to notify counsel, we note that

the military judge, apparently relying on the version of

Mil.R.Evid. 305(e), Manual for Courts—Martial, United

States, 1984, in existence at the time of trial (amended

effective December 9, 1994), held that no duty to notify

defense counsel existed “[s]ince Article 31(b) rights were not

required.” We likewise hold that no such notice was required.

We note, however, that in United States v. Harvey, supra, the

Court addressed the question of the possible implications of

an accused’s rights to counsel under the Fifth and Sixth

Amendments, after he had requested and consulted with

counsel, when the person who elicited the incriminating

responses was acting in an official capacity. Here we have

upheld the military judge’s holding that SSgt Moore was not

acting in an official capacity, so such an inquiry would not be

required. However, again assuming arguendo that there was a

specter of officiality, we note that the conversations took

place prior to preferral of the charge, so there was no Sixth

Amendment right involved in this case. United States v.

Wattenbarger, 21 MJ 41 (CMA 1985). Furthermore, appellant

was not in custody during the period in question. Therefore,

there was no violation of appellant’s Fifth Amendment right

to counsel.

The concerns expressed by the Supreme Court in

>We note that the military judge applied a reasonable—person

standard in resolving this issue, relying on United States v. Good,

32 MJ 105, 108 n.2 (CMA 1991). However, in view of the evidence

in this case, we need not now decide if a subjective standard is

more appropriate.

9a

L.Ed.2d 246 (1964); and Edwards v, Arizona, 451 U.S. 477,

101 S.Ct. 1880, 68 L.Ed.2d 378 (1981); and this Court in

United States v, Applewhite, 23 MJ 196 (1987); and United

States v. McOmber, 1 MJ 380 (1976), simply are not pertinent

to this case. United States y. Harvey, supra; see generally

United States v, LeMasters, 39 MJ 490 (CMA 1994).

The decision of the United States Air Force Court of

Military Review is affirmed.

Judges SULLIVAN, CRAWFORD, and GIERKE, and

Senior Judge EVERETT concur.

10a

APPENDIX B

UNITED STATES

v.

Staff Sergeant GREGORY J. PRICE, FR565—06-6476

United States Air Force

ACM 30446

7 September 1994

Sentence adjudged 11 December 1992 by GCM convened at

March Air Force Base, California. Military Judge: Marth

Bower. )

Approved sentence: Bad—conduct discharge, confinement for

6 months, and reduction to E4.

Appellate Counsel for Appellant: Colonel Terry J.

Woodhouse, Colonel Jay L. Cohen, Captain Del Grissom, and

Captain Joel R. Reifman.

Appellate Counsel for the United States: Colonel Jeffery T.

Infelise and Captain Jane M.E. Peterson.

Before

HEIMBURG, SCHREIER, and GAMBOA

Appellate Military Judges

lla

OPINION OF THE COURT

SCHREIER, Judge:

Members convicted appellant contrary to his pleas of a

single use of methamphetamine. The approved sentence is a

bad—conduct discharge, confinement for 6 months, and

reduction to E~4. Appellant argues the military judge erred in

admitting appellant’s statements to a co—worker who was

applying information to the Air Force Office of Special

Investigations (AFOS]). Finding no prejudicial error, we affirm.

On 27 July, appellant was selected for a random

urinalysis which tested positive for methamphetamine.

Several weeks later, SSgt M, a co—worker, went to AFOSI to

report rumors about appellant’s drug use. He also indicated he

wanted to become an AFOSI agent. AFOSI did not have an

active case on appellant, but told SSgt M to “see what

information you can get.” Over the next month, AFOSI asked

him to obtain a description of appellant’s vehicle, to check

appellant’s medical records, and to obtain information on

other individuals who might be involved with he was not an

agent. Appellate defense counsel urge that the facts of this

case are similar to United States vy. Johnstone, 5 M.J. 744

(A.F.C.M.R. 1978). In Johnstone, this Court found that the

informant’s inquiries were official when the AFOSI directed

him to go to the suspect’s room, look for stolen property, ask

questions, and report back to them. The key factor in the

Johnstone case was the informant’s use of questions

propounded by the AFOSI. Here, the AFOSI taskings were far

more general in nature and never directed at personal contact

with appellant. Additionally, the fact that SSgt M lied about

his personal use of drugs does not make the inquiry official or

create a coercive environment. See United States v. Hinkson,

17 U.S.C.M.A. 126, 37 C.M.R. 390 (1967). We find that SSgt

M's actions were not official but were motivated by his dislike

of drugs and personal desire to become an AFOSI agent.

12a

We have also applied the facts of this case to the second

prong of Duga concerning the perceptions of the person being

questioned. The circumstances of these conversations,

including their informal nature at the workplace among

co—workers, support the military judge’s conclusion that there

was not a coercive environment where appellant believed he

was compelled to answer questions. See United States v.

Harvey, 37 M.J. 140 (C.M.A. 1993). Therefore, neither prong

of the Duga test was met and there was no requirement to

advise appellant of his Article 31 rights.

Appellant also alleges that SSgt M was required to

contact appellant’s counsel prior to questioning him.

Appellant argues that otherwise the AFOSI could circumvent

the counsel notification requirements of Mil.R.Evid. 305(e) by

using informants. We have previously found that SSgt M was

not required to advise appellant of his Article 3i rights.

Therefore, the requirements of Mil.R.Evid. 305(e) do not

apply to him. :

Finally, we observe that the statements in question were

not critical to the finding of guilty. Trial counsel introduced

evidence showing an unbroken chain of custody and

laboratory findings. Although appellant denied any knowing

use of methamphetamine, he indicated the positive result may

have been the result of either his prescribed use of Fastin or

an inadvertent ingestion of methamphetamine. The

government expert, Dr. Jain, explained why Fastin would not

produce the same laboratory readings. There was no evidence

to support an inadvertent ingestion. We find overwhelming

evidence to support the findings of guilty apart from the

statements of appellant to SSgt M.

We conclude that the findings and sentence are correct in

law and fact, the sentence is appropriate, and no error

prejudicial to the substantial rights of the accused occurred.

Accordingly, the findings of guilty and the sentence are

13a

AFFIRMED.

Senior Judge HEIMBURG and Judge GAMBOA concur.

OFFICIAL

LAURA L. GREEN

Clerk of Court

Air Force Court of Military Review