United States v. Specialist AVERY J. SUAREZ

CORRECTED COPY

UNITED STATES ARMY COURT OF CRIMINAL AP P EALS Befo re M ULLIGA N, FEBBO, an d W OLFE A p p ellat e M ilit ary Ju d g es

UNITED STATES, Appe llant v. Spe cialis t AVERY J. SUAREZ Unite d State s Army, Appe lle e

ARMY MISC 1 20170366

Headquarters, Fort Bliss Michael J. Hargis, Militar y Judge Colonel Charles C. Poché, Staff Judge Advocate

For Appellant: Captain Catharine M. Parnell, JA (argued); Lieutenant Colonel Eric K. Stafford, JA; Major Michael E. Korte, JA; Captain Samuel E. Landes, JA; Captain Catharine M. Parnell, JA (on brief); Colonel Tania M. Martin, JA; Lieutenant Colonel Eric K. Stafford, JA; Captain Samuel E. Landes, JA (reply brief) .

For Appellee: Captain Joshua B. Fix, JA (argued); Lieutenant Colonel Christopher D. Carrier, JA; Major Todd W. Simpson, JA; Captain Joshua B. Fix (on brief).

27 September 2017 -------------- --- -- --- --- -- --- --- -- --- --- -- --- --- -- --- --- -- --- --- -- --- M EM ORA NDUM OPINION A ND A CTION ON A PPEA L BY THE UNITED STA TES FILED PURSUA NT TO A RTICLE 62, UNIFORM CODE OF M ILITA RY JUSTICE -------------- --- -- --- --- -- --- --- -- --- --- -- --- --- -- --- --- -- --- --- -- ---

Thi s o p i ni o n i s i ssued a s a n unp ub l i shed o p i ni o n a nd , a s such, d o es no t serve a s p reced ent . WOLFE, Judge:

In this case we consider an appeal by the United States , under Article 62, Unifor m Code of Militar y Justice, 10 U.S.C. § 862 (2012 & Supp. IV 2017) [hereinafter UCMJ]. The government claims that the militar y judge erred as a matter of law when he suppressed the results of a search of the accused ’s cell phone. We decline to address the merits of the government ’s arguments on appeal because we

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find that the governme nt waived the underly ing issues at the trial court. We therefore deny the governme nt’s appeal.

BACKGROUND 2

An internet company provided local police in Richland , Washingto n, with informa tio n indicating that the accused was involved in child pornography offenses. Upon receipt of an affidavit, a militar y magistrate authorized a search of the accused’s phone. The scope or legality of the search authoriza tio n is not part of this appeal.

On 28 February 2017, an agent from the Army Crimina l Investigative Command (CID) seized the accused ’s phone from his person pursuant to the authorizatio n. The accused was placed in handcuffs and brought to the CID offices at Fort Bliss and interrogated. The accused was read his rights in accordance with United States v . Miranda, 384 U.S. 436 (1966), and Article 31(b), UCMJ. While the accused initia lly waived his rights, he later invoked his right to consult with counsel. The accused was released back to his unit.

There are two versions of events claiming to explain when CID asked the accused to provide his passcode to his phone to an investiga tor. The accused testified that he was asked for his passcode before he was advised of his rights under Article 31(b), UCMJ. However, an agent from CID testified that the day after the intervie w, she sought out the accused to have him sign for personal property that CID was returning to him. During this exchange of personal property she testified that she asked the accused for the passcode to his phone.

The militar y judge did not find it necessary to determine which version was the more likely. This is because, and critically, neither party assert s that the accused provided his passcode while being questioned after having waived his rights. Either the question was asked pre- warning (claims the accused), or post- invocatio n of his right to counsel (claims the governme nt).

A search of the accused’s phone revealed six images which the governme nt alleges are child pornography. The accused moved to suppress his statement to CID revealing the passcode to his phone and the images that were subsequently discovered. The militar y judge granted the motion and the governme nt appeals.

2 We adopt the factual findings of the militar y judge as they are not clearly erroneous. See United States v . Bak er, 70 M.J. 283, 287 (C.A.A.F. 2011).

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LAW AND DISCUSSION

The government makes numerous arguments as to why the milita r y judge erred. First, the governme nt argues requesting a passcode is similar to requesting consent to search, which the Supreme Court has found is not an interrogatio n. Fisher v . United States, 425 U.S. 391, 397 (1976).

Second, the government argues the request for the passcode was not a “communica tive act” because in this case it did not amount to “an admissio n to the ownership and control of materials sought by the governme nt. ” That is, as the phone already had been identified through business records and seized from the accused ’s person, ownership of the phone was a “foregone conclusio n. ” See Id. at 411.

Third, the governme nt argues that assuming the accused was asked to provide his passcode after he had been release d from custody, there was no Edwards violatio n because, again, the question was not an interrogatio n and the accused ’s answer was not testimonia l. See Edwards v . Arizona, 451 U.S. 477 (1981).

Fourth, the governme nt argues that Edwards violatio ns do not require the exclusio n of derivative evidence. Here, the governme nt asks us to focus on the constitutio na l answer to this question and not focus on the exclusio nar y rule contained in the Militar y Rules of Evidence.

Fifth, the government initia lly claimed that the militar y judge erred because the evidence would have been inevitab ly discovered. At oral argument the government conceded that this argument was conclusive ly resolved in the accused’s favor by the United States Court of Appeals for the Armed Forces’ decision in United States v . Mitchell, __ M.J. __, 2017 CAAF LEXIS 856 (C.A.A.F. 2017).

We do not address the merits of the government’s arguments. Mitchell explicitly did not resolve whether asking for a passcode is testimonia l. Id. at *12 (“We thus do not address whether Appellee’s delivery of his passcode was ‘testimonia l’ or ‘compelled . . . .’”). We also leave this question unanswered.

It is also unclear, whether Mitchell dispatched the foregone conclusio n doctrine as a general matter or just based on the facts of that particular case. See Fisher, 425 U.S. at 411 (articulating the foregone conclusio n doctrine such that the Fifth Amendment does not protect an act of production when any potent ially testimonia l component of the act of production—such as the existence, custody, and authentic ity of evidence—is a “foregone conclusio n” that “adds little or nothing to the sum total of the Government’s informa tio n. ”); Compare United States v . Apple Mac Pro Computer, 851 F.3d 238, 246- 48 (3rd Cir. 2017) (although dealing with the

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appeal of a civil contempt order for a suspect’s failur e to comply with a court order to decrypt devices containing suspected child pornography, the court concluded that even if it could assess the underlying issue of a Fifth Amendme nt privile ge in the context of compelled decryption, it would be inapplicab le because the magistrate judge issuing the order did not commit a clear or obvious error in applying the foregone conclusio n doctrine to the facts of that case as the government had provided evidence to show the files existed on the encrypted portions of the devices and that the suspect could access them), with In re Grand Jury Subpoena Duces Tecum Dated Mar. 25, 2011, 670 F.3d 1335, 1337, 1346- 49 (11th Cir. 2012) (determining that the Fifth Amendment does apply to compelled decryption and based on the facts before it, the forgone conclusion doctrine did not apply, as the government failed to show that any files existed on the hard drives and could not show with any reasonable particular ity that the suspect could access the encrypted portions of the drives).

We do not reach the merits of the government’s arguments because t he United States waived most of the issues they assert on appeal when they conceded in their initia l brief to the militar y judge that the accused’s providing a passcode to a CID agent was testimonia l and incriminating. In the brief to the militar y judge the government stated that “[a] statement is testimonia l when its contents are contained in the mind of the accused and are communicated to the Government. ” The brief then stated “the Government concedes that the Accused ’s statement [providing the passcode] would be testimonia l, incriminating, and compelled .”

The government concession in the brief was initia lly limited to the assumptio n that CID asked for the accused’s passcode before reading him his right’s warning. That is, the government’s concession assumed that CID asked the accused for his passcode before advising him of his Article 31(b), UCMJ, rights. However, we can distinguis h no reason why the statement would be testimonia l pre - rights warning and non- testimo nia l after the accused has invoked his rights. If asking for the passcode is “testimo nia l” and “incriminating” before a rights warning is given, then it is also testimonia l and incriminating after that same suspect has invoked his right to counsel.

However, if there is any doubt about the scope of the government ’s concession at trial, it was erased by the following exchange between the trial counsel and militar y judge.

MJ: So, governme nt, do you concede that asking someone for their passcode to a computer is asking for incriminating evidence or incrimina ting informa tio n that

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would trigger 5th Amendment and Article 31(b) protections?

TC: Uhm - - prior to being read one’s rights, Your Honor, or in just in general?

MJ: No. I am asking you, does - - asking someone for the passcode to their iPhone trigger 5 th Amendment protections and Article 31(b) protections?

TC: Yes, Your Honor.

The militar y judge went on to confirm the governme nt’s concession two more times. 3 The militar y judge even noted that there was contrary case law that would support an argument that providing a passcode is not testimonia l. The government maintained its position.

The government concession at trial included that the passcode was “testimo nia l” and “incriminating. ” In conceding the passcode was incriminating, the government necessarily conceded the request for the incrimina ting response was an interrogatio n. See Militar y Rule of Evidence [hereina fter Mil. R. Evid.] 305(b)(2) (defining an interrogatio n as “any formal or informa l questioning in which an incriminating response either is sought or is a reasonable consequence of such questioning. ”). Thus, we are confused when the governme nt argues to us on appeal that “even if [the accused] was in custody when [CID] asked for his passcode, [the accused] was not entitled to a rights warning because the request for the passcode, which was akin to a request for consent to sea rch, was not ‘interrogatio n.’

3 After the militar y judge granted the accused ’s motion to suppress the evidence the government requested reconsideratio n in light of our sister court’s decision in United States v . Robinson, 76 M.J. 663 (A.F. Ct. Crim. App. 2017). The motion stated that “the Government still concedes that stating as [sic] passcode is testimonia l, the Government maintains its position that stating a passcode is not incriminating. ” The government’s statement that they “mainta in” their position that a passcode is not incriminating is hard to reconcile with their origina l motion where they stated that “the Government concedes that the Accused’s statement would be testimonia l, incriminating, and compelled. ” In any event, the government’s position in the motion for reconsideratio n does not cause us to alter our approach to the case for two reasons: first, the government continued to clearly concede that providing the passcode was testimonia l; second, the motion for reconsideratio n only asked the militar y judge to reconsider his decision on 5 th Amendment grounds, and not the Article 31(b), UCMJ, grounds that we find to be controlling.

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The government’s argument misundersta nds, as we see it, our role on appeal. Our job is not to determine whether the accused providing his passcode is testimonia l. Our job is to determine whether the milita r y judge erred when he found that providing the passcode was testimonia l. In many cases these two questions will be the same.

However, when a party waives or forfeits an issue at trial the two questions diverge. When the government tells the trial judge that the ac cused’s statement is testimonia l and incriminating, we will never find that the militar y judge erred even if—and we do not decide this—in or own view the statements are not testimonia l and incriminating.

The efficie nt appellate review of trial decisions d epends on the preservation of issues at trial. “No procedural principle is more familiar to this Court than that a constitutio na l right may be forfeited in crimina l as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdictio n to determine it.” Yak us v . United States, 321 U.S. 414, 444 (1944). “Forfeiture is ‘not a mere technicality and is essential to the orderly administra tio n of justice. ’” Freytag v . Commissioner, 501 U.S. 868, 895 (1991) (Scalia, J. concurring and quoting 9 C. Wright & A. Miller, Federal Practice and Procedure § 2472, p. 455 (1971)). “[A] trial on the merits, whether in a civil or crimina l case, is the ‘main event,’ and not simply a ‘tryout on the road’ to appellate review.” Id. (quoting Wainright v . Syk es, 433 U.S. 72, 90 (1977)). The waiver doctrine bars consideration of an issue that a party could have raised in an earlier appeal in the case. See Brook s v . United States, 757 F.2d 734, 739 (5th Cir. 1985). It “serves judicia l economy by forcing parties to raise issues whose resolutio n might spare the court and parties later rounds of remands and appeals.” Hartman v . Duffey, 88 F.3d 1232, 1236 (D.C. Cir. 1996), cert. denied, 520 U.S. 1240 (1997). Regardless, whether waiver or forfeiture is the appropriate principle in a particular case, the preservation of issues is required for orderly appellate review.

The importance of waiver, the issue here, is all the more important as our jurisdictio n to hear the government’s appeal is provided by Article 62, UCMJ. While we have the authority to notice waived and forfeited issues when a case is on direct appeal under Article 66, UCMJ, no similar authority exists for interlocutor y appeals.

In United States v . Schelmetty, ARMY 20150488, 2017 CCA LEXIS 445 (Army Ct. Crim. App. 30 June 2017) (mem. op.), the appellant asked us to review the militar y judge’s ruling excluding evidence under Mil. R. Evid. 412. In asking us to find error, appellant asserted for the first time on appeal new legal and factual theories in support of admitting evidence of the victim’s sexual behavior. Id. at *8.

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We limited our ruling to determining whether the trial judge had erre d based on the arguments made at trial. Id. at *9. Thus in Schelmetty, we refused to consider an argument on appeal that the victim’s other sexual acts should have been admitted under the “consent” exception to Mil. R. Evid. 412 when the defense counsel during the motion’s hearing stated that the issue was “not an issue of consent.” Id. at 10- 11.

In other words, in Schelmetty we reviewed whether the militar y judge erred by looking at the facts and legal theories of the case that had been brought to his attention at the time. We did not consider arguments or theories of the evidence that were advanced for the first time on appeal. Applying our methodology in Schelmetty to the present case would lead us to accept the governme nt’ s concessions at trial.

Indeed, we conclude that we cannot reject the governme nt’ s concession in this case, even if we were otherwise inclined. The government argues that we should not accept its concession at trial and that we are not bound by the concession. We disagree. When the government makes a concession to this court we may choose to reject the concession. If a party misapplies the law in a brief to this court we are not required to adopt the flawed reasoning. That is what de novo review of an issue of law allows.

However, when the government concedes an issue at trial and the militar y judge accepts the concession, then the government cannot complain to this court that the milita ry judge erred. We find the cases cited by the government to be unpersuasive. United States v . Budk a, 74 M.J. 220 (C.A.A.F. 2015) (summ. disp.), is a case where the court of crimina l a ppeals (CCA) rejected a government concession made at the CCA. United States v . Emmons, 31 M.J. 108, 110 (C.M.A. 1990), is a case where the CCA and our superior court rejected the government’s concession on appeal. Similar ly, United States v . McNamara, 7 U.S.C.M.A. 575, 578, 23 C.M.R. 39, 42 (1957), is a case where the court stated it was not bound by the governme nt’ s concession on appeal to that appellant’s claim of error . United States v . Hand, 11 M.J. 321 (C.M.A. 1981), and United States v . Patrick , 2 U.S.C.M.A. 189, 7 C.M.R. 65, 67 (C.M.A. 1953), are cases where the governme nt’ s concessions were never accepted. In none of these cases did a party concede an issue at the trial level, have the concession accepted, and then argue to the appellate courts that the concession should be ignored. The closest case cited by the government on point, United States v . Taylor, 47 M.J. 322, 328 (C.A.A.F. 1997), is acknowledged by the government to be a citation to the dissenting opinion.

Our review, here, is to determine whether, under Article 62(a)(1)(B), UCMJ, the milita ry judge erred in his “ruling which exclude[d] evidence that is substantia l proof of a fact material in the proceeding. ” That is, our review is to determine

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whether the trial judge erred as a matter of law, not to determine how we would decide the same issue in the first instance.

As the accused’s counsel on appeal correctly summar ized in oral argument, “‘[S]hould’ is an Article 66 question, ‘can’ is an Article 62 question . . . the problem with trying to overturn the concession here is: the question posed to this court is whether or not the militar y judge abused his discretion. And, saying that a militar y judge abused his discretion by accepting the concession of the very party who then claims he abused his discretion in accepting the concession, is—it fails to logically connect.”

If asking for the accused’s passcode to his phone invited a testimonia l and incriminating response, the government was required to ob tain a valid waiver of the accused’s Article 31(b), UCMJ, rights prior to asking for the passcode. Under Mil. R. Evid. 305(b)(2), action that triggers the requirement for Article 31, UCMJ, warnings includes “any formal or informa l questioning in which an incrimina ting response either is sought or is a reasonable consequence of such questioning. ” As either (1) no rights warning was given, or (2) the accused invoked his rights, we find no error when the militar y judge suppressed both the accused’s statement and the derivative evidence from that statement. 4 Militar y Rule of Evidence 305(a) and (c) provide that statements obtained without a proper rights warning are defined as “invo luntar y” and are excluded along with any evidence derived from the statement by operation of Mil. R. Evid. 304(a) and (b).

It may be that the government’s concession in this case was gratuito us and logically inconsis te nt with its stated goal of defeating the accused’s motion to suppress. This inferred inconsiste nc y is certainly an undercurrent in the government’s arguments on appeal. However, except when necessary to address a claim such as ineffec tive assistance of counsel, we do not think it wise or necessary to try to determine why a party may have done what they did. The concession was made. The government maintained the concession even under repeated questioning by the militar y judge. As such, the substantive issue of this appeal was waived by the governme nt at trial.

4 While the militar y judge noted the government ’s waiver and discussed in depth the government’s concession during argument, his decision to suppress the evidence may have also reached the merits of the issue. The accused on appeal asks that we apply the Tipsy Coachman doctrine if we arrive at the same result as the militar y judge, albeit for different reasons. United States v . Carista, 76 M.J. 511, 515 (Army Ct. Crim. App. 2017). We find this argument reasonable.

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CONCLUSION

Accordingly, the appeal by the United States under Article 62, UCMJ, is DENIED.

Senior Judge MULLIGAN and Judge FEBBO concur.

FOR THE COURT:

JOHN P. TAITT Acting Clerk of Court