UNITED STATES NAVY-MARINE CORPS
                    COURT OF CRIMINAL APPEALS
                         WASHINGTON, D.C.

                                    Before
                              THE COURT EN BANC 1

                         UNITED STATES OF AMERICA

                                        v.

                          MYLES R. SPURLING
              PRIVATE FIRST CLASS (E-2), U.S. MARINE CORPS

                              NMCCA 201400124
                          SPECIAL COURT-MARTIAL

Sentence Adjudged: 26 November 2013.
Military Judge: LtCol C.M. Greer, USMC.
Convening Authority: Commanding Officer, 10th Marine
Regiment, 2d Marine Division, Camp Lejeune, NC.
Staff Judge Advocate's Recommendation: Maj J.N. Nelson,
USMC.
For Appellant: Maj John Stephens, USMC.
For Appellee: Maj David Roberts, USMC; Maj Paul M. Ervasti,
USMC.

                                31 July 2015

       ---------------------------------------------------
                       OPINION OF THE COURT
       ---------------------------------------------------

THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

KING, J., delivered the opinion of the court in which FISCHER,
S.J., MARKS, J., and MILLER, J., concur. BRUBAKER, S.J., filed
a concurring opinion joined by HOLIFIELD, J.. MITCHELL, C.J.,
filed a dissenting opinion.




1
    Judges Rugh and Palmer did not participate in the decision of this case.
KING, Judge:

     A special court-martial, consisting of members with
enlisted representation, convicted the appellant, contrary to
his pleas, of one specification of making a false official
statement, in violation of Article 107, Uniform Code of Military
Justice. 2 The members sentenced the appellant to reduction to
pay grade E-1 and a bad-conduct discharge. The convening
authority approved the sentence as adjudged but, as a matter of
clemency, suspended the bad-conduct discharge for a period of
twelve months.

     In his original appeal, the appellant raised three
assignments of error (AOEs): (1) that the military judge
committed plain error by failing to suppress the appellant's
statements obtained in violation of Article 31(b), UCMJ, and
the Fifth Amendment; (2) that trial defense counsel (TDC) were
ineffective for failing to object to admission of his
statements; and (3) that his sentence was inappropriately
severe.

     In our initial decision, United States v. Spurling, No.
201400124, 2014 CCA LEXIS 771, unpublished op. (N.M.Ct.Crim.App.
16 Oct 2014), we affirmed the findings of guilty and approved
only so much of the sentence as provided for reduction to pay
grade E-1. The Court of Appeals for the Armed Forces (CAAF) set
aside our decision and returned the case to the Judge Advocate
General of the Navy for remand to this court for further
consideration utilizing the standards of review set forth in
United States v. Jones, 

(C.A.A.F. 2014) and
Strickland v. Washington, 

(1994). See United
States v. Spurling, __ M.J. __, 2015 CAAF LEXIS 116 (C.A.A.F.
Feb. 6, 2015) (summary disposition). The case is now before us
following that remand.

     After carefully considering the record of trial, the
submissions of the parties, and oral argument, we find merit in
the appellant's second AOE. 3

                              Factual Background

     A member of 10th Marine Regiment (10th Marines) the
appellant was temporarily attached to augment the 1st Battalion,
10th Marines (1/10) during an Integrated Training Exercise (ITX)
2
    10 U.S.C. § 907.
3
    Our resolution of AOE 2 moots AOEs 1 and 3.
                                        2
in May 2013. Personnel from both 10th Marines and 6th Marines
participated in the ITX at Twentynine Palms, California. The
Marines were billeted at Camp Wilson, a small camp within the
training area where personnel participating in ITX staged. Camp
Wilson included a recreational facility that served food and
beer called the “Warrior Club”. Although Marines of legal
drinking age could drink beer at the Warrior Club, the 1/10
commanding officer (CO) issued an order prohibiting all 1/10
personnel from consuming any alcohol while at ITX.
Consequently, 1/10 was a “dry” battalion for the duration of the
exercise.

     On 30 May 2013, the appellant went to the Warrior Club
where he bought two cups of beer and sat down at a table with
two other 1/10 Marines, Lance Corporal (LCpl) Mulhauser and LCpl
Terry. After he sat down, he offered one of his beers to the
two Marines who responded that they were not permitted to drink.

     Sitting several tables away playing cards were two
noncommissioned officers (NCOs), Corporal (Cpl) Brooks and
Sergeant (Sgt) Moyta. Both were members of 1/10 and Cpl Brooks,
like the appellant, was assigned to Headquarters Battery, 1/10.
Cpl Brooks recognized the appellant as he walked by holding the
two cups of beer. Cpl Brooks then told Sgt Moyta that “one of
our . . . Headquarters Battery Marines is over here, and he’s
got two beers in front of him.” 4 Cpl Brooks, accompanied by Sgt
Moyta, then approached the table where the appellant was
sitting. At trial, Cpl Brooks testified to the following
exchange:

        A: [Cpl Brooks]: . . . I talked to PFC Spurling and I
           said: “What do you have?” He told me: “Beer.”
           Therefore confirming what I thought. I said:
           “Okay. Who are you with?” He stated: “Regiment.”
           I said: “Okay. What Regiment?” And he just – he
           gave me a blank stare, I said: “Well, there’s 6th
           Marine Regiment, there’s 10th Marine Regiment,”
           naming off the units that were . . . part of ITX.
           At that time he said, “6th Marine Regiment.” I
           said: “Try again.”

        Q: And why did you say “try again?”
        A: Because I knew that he was not being honest with
           me.


4
    

                                   3
        Q: [D]id you know what regiment he was part of?
        A: . . . I did at that time . . . .

        Q: Then why did you ask him?
        A: Well I asked him because I wanted him to tell me
           what he was doing and tell me what he was doing
           wrong.

        Q: Okay. So after he said “6th Marine Regiment,” what
           did you say?
        A: I said, “Try again.”

        Q: And what was his response?
        A: A blank stare. Then I said – I kind of looked    at
           him – we stared at each other for a minute, he
           looked at me and said: “10th Marine Regiment.”    I
           said: “Okay. That means that you are attached    to?”
           Implying that he would finish the sentence and   he
           just said “10th Marine Regiment.” And I said:    “So,
           you’re with 1/10 right?” And he said: “Yes.”     So,
           okay. “So you are aware of the fact that our
           battalion is dry?”

        Q: And what was his response . . . ?
        A: At that time he said: “Yes.” . . . I said: “So why
           are you drinking?” He said: “My staff sergeant
           said I could.”

           . . . .

        Q: Okay, after he told you that, what did you say?
        A: I said: . . . “Who’s your staff sergeant?” He said:
           “Staff Sergeant Good.” I asked -- I looked at him and
           said: “Your staff sergeant verbally stated that you
           could consume alcohol regardless of the battalion
           policy?” And he said: “Yes.” 5

     Following this exchange, the appellant poured out the beer
and left the Warrior Club.

     Sgt Moyta testified that he went immediately to find Staff
Sergeant (SSgt) Good. After Sgt Moyta explained the incident,
SSgt Good accompanied Sgt Moyta to the appellant’s tent where
SSgt Good confronted the appellant with both the drinking and

5
    

                                   4
using his name. Although the appellant admitted to identifying
SSgt Good as his platoon sergeant, he denied telling Cpl Brooks
that SSgt Good authorized him to drink alcohol. 6 SSgt Good then
asked the appellant, “you know you weren’t supposed to drink,
right?” 7 After the appellant responded in the affirmative, SSgt
Good said, “you know there’s going to be repercussions,” and the
appellant “acknowledged that as well.” 8 At no time did Cpl
Brooks (at the Warrior Club) or SSgt Good (at the appellant’s
tent) inform the appellant of his rights under Article 31(b),
UCMJ.

     The appellant was charged with failing to obey the 1/10
CO’s no-alcohol order and with making a false official statement
by claiming that “Staff Sergeant Good said it was o.k. for me to
drink alcohol.” 9 At trial, the appellant’s statements to Cpl
Brooks and SSgt Good were admitted without objection. The
members acquitted the appellant of failing to obey a lawful
order, but convicted him of making a false official statement.

                     Ineffective Assistance of Counsel

     On appeal, the appellant alleges that Cpl Brooks was
required to provide him Article 31(b), UCMJ, rights warnings
prior to questioning him, and that failing to do so rendered his
statement inadmissible at trial. 10 Concomitantly, the appellant
alleges that TDC’s failure to file a motion to suppress or
object to admission of the appellant’s statement amounted to
ineffective assistance under Strickland. The Government
counters that the appellant has failed to establish either error
or prejudice under Strickland.”

     This court ordered affidavits from TDC, wherein First
Lieutenant (1stLt) B candidly concedes that she failed to
“recognize the issue based on [her] lack of experience, the work
load at the time, and never having argued an Article 31 issue”
and that she “should have filed a motion to suppress.” 11 Her co-

6
     

7
     

8
     

Sheet.
10
     Appellant’s Brief of 29 Apr 2014 at 28-29.
11
  Government Response to Court Order filed on 23 Jul 2014, 1stLt B Affidavit
at ¶ 7.
                                         5
counsel, Captain (Capt) B largely concurs, stating that had the
issue occurred to him “[he] would have proposed filing it.” 12
Both TDC acknowledge that it was not until after participating
in a post-trial debrief with the military judge, who asked
whether they had filed a suppression motion, that they
recognized the issue. 13

                                Discussion

     An accused service member is guaranteed the right to
effective assistance of counsel through the Sixth Amendment.
United States v. Gooch, 

, 361 (C.A.A.F. 2011). We
analyze ineffective assistance of counsel claims under the two-
prong test outlined in Strickland. In order to prove
ineffective assistance of counsel, the appellant must show: (1)
that his TDC’s performance was deficient and (2) that the
deficiency resulted in prejudice. United States v. Scott, 

, 188 (C.M.A. 1987).

A.   TDCs’ Performance was Deficient

     When reviewing an appellant’s claim that his TDC’s
performance was ineffective, there is a “strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance . . . .” 

Since counsel are
presumed competent, the appellant must rebut this presumption by
showing specific errors that were unreasonable under prevailing
professional norms. 

(citing United States
v. Cronic, 

(1984)).

     A servicemember’s protection against compulsory self-
incrimination is a “fundamental right” protected by Article 31,
UCMJ. United States v. Mapes, 

, 65 (C.A.A.F. 2003).
Although reasonable minds may differ on whether Article 31(b)
applies to a given situation, there can be no determination one
way or the other without first recognizing and analyzing the
issue. Therefore, it is incumbent upon counsel to recognize
issues relating to a servicemember’s right against self-
incrimination in the military context.

     Here, TDC concede that they failed to recognize the issue
until it was raised by the military judge during a post-trial

12
  Government Response to Court Order filed on 14 Aug 2014, Capt B Affidavit
at ¶ 5.
13
  The trial judge did not preside over arraignment or pretrial motion
hearings.
                                      6
debrief. While we recognize that TDCs’ efforts lead to an
acquittal on the orders violation charge, their failure to at
least recognize and analyze the Article 31 issue at play with
respect to Charge II fell below prevailing professional norms.
As such, it was deficient. See Murray v. Carrier, 

,
496 (1986) (stating that the right to effective counsel “may in
a particular case be violated by even an isolated error of
counsel if that error is sufficiently egregious and prejudicial”
(citing 

, n.20 and 

). Neither “inexperience” nor “workload” can justify
such a deficiency.

B.   Prejudice

     “‘[W]hen a claim of ineffective assistance of counsel is
premised on counsel’s failure to make a motion to suppress
evidence, an appellant must show that there is a reasonable
probability that such a motion would have been meritorious.’”
United States v. Jameson, 

, 163-64 (C.A.A.F. 2007)
(quoting United States v. McConnell, 

, 482 (C.A.A.F.
2001). In this regard, the term “meritorious” is synonymous
with “successful.” 

(decisional issue is whether the
appellant has shown a reasonable probability that “his counsel
would have been successful if he had filed a timely motion . .
.” (Emphasis added)).

     “A defendant need not show that counsel’s deficient conduct
more likely than not altered the outcome in the case,” however,
“the appropriate test for prejudice . . . [is whether] there is
a reasonable probability that, but for the [deficiency] the
result of the proceeding would have been different.”

. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome”

. To determine whether there is a
reasonable probability that a suppression motion would have been
successful, it is necessary to consider the merits of the
Article 31(b) issue.

                          Article 31(b)

     Article 31(b), UCMJ provides: “No person subject to this
chapter may interrogate, or request any statement from . . . 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 against him in a trial by court-martial.”

                                7
     Congress passed Article 31(b) “to provide servicepersons
with a protection . . . deemed necessarybecause of subtle
pressures which existed in military society.” 

(internal quotation marks and citation omitted). Our
superior court has held that, “[c]areful consideration of the
history of the requirement of warning, compels a conclusion that
its purpose is to avoid impairment of the constitutional
guarantee against compulsory self-incrimination. . . [a] person
subjected to these pressures may rightly be regarded as deprived
of his freedom to answer or to remain silent.” United States v.
Duga, 

, 209 (C.M.A. 1981), overruled in part by

. These pressures are created when
“military rank, duty, or other similar relationship,” might
cause “subtle pressure on a suspect to respond to an inquiry.”
United States v. Price, 

, 432 (C.A.A.F. 1996) (citing
United States v. Gibson, 

(C.M.A. 1954)). In fact,
the Court of Military Appeals has held that, “[b]ecause of the
effect of superior rank or official position upon one subject to
military law, the mere asking of a question under certain
circumstances is the equivalent of a command.” 

). As a result, our jurisprudence has evolved to the
point where any questioning of a suspect by a military superior
in his immediate chain of command will create a “strong
presumption” that Article 31(b) applies. United States v.
Swift, 

, 448 (C.A.A.F. 2000) (citing United States
v. Good, 

, 108 (C.M.A. 1991)).

     However, the CAAF has also expressed concern that a literal
application of Article 31 would “potentially have a
comprehensive and unintended reach into all aspects of military
life and mission.” United States v. Cohen, 

, 49
(C.A.A.F. 2006) (discussing 

).
Therefore, that court narrowed the aperture by declaring that
Article 31(b) rights warnings are required only if: (1) the
person being interrogated is a suspect at the time of
questioning, and (2) the person conducting the questioning is,
or could reasonably be considered to be acting, in an official
law enforcement or disciplinary investigation or inquiry.

.

A.   Suspect

     Whether a person is a suspect is a question that “is
answered by considering all the facts and circumstances at the
time of the interview to determine whether the military
questioner believed or reasonably should have believed that the


                                8
servicemember questioned committed an offense.” 

(citations omitted). See also 

.

     Cpl Brooks testified that he knew the appellant was a
member of 1/10; that he knew of the order prohibiting members of
1/10 from consuming alcohol while at the ITX; and that he saw
the appellant at the ITX with two cups of beer in his hand. Cpl
Brooks testified that, upon seeing the appellant with the beer,
he became suspicious that the appellant was violating a lawful
order. Under the totality of the circumstances, and considering
the “relatively low quantum of evidence required to treat an
individual as a suspect,” 

, we have little
difficulty concluding that Cpl Brooks believed that the
appellant had committed an offense.

B. Disciplinary Capacity

      On this second requirement, Article 31(b) warnings must be
provided to a suspect if “the person conducting the questioning
is participating in an official law enforcement or disciplinary
investigation or inquiry,” 

as opposed to having “a
personal motivation for the inquiry,” e.g. 

, or an administrative or operational purpose, e.g. 

.

      To make this determination, we must examine all “the facts
and circumstances at the time of the interview to determine
whether [Cpl Brooks] was acting or could reasonably be
considered to be acting in an official law-enforcement or
disciplinary capacity.” 

(internal
quotation marks and citations omitted). Whether Cpl Brooks
could reasonably be considered to be acting in a disciplinary
capacity is “judged by reference to ‘a reasonable man in [the
appellant’s] position.’” 

(quoting 

n.2).

     We begin by recognizing that not every questioning of a
servicemember who might reasonably be considered a “suspect”
will invoke the requirements of Article 31(b). Indeed, mindful
of the “unintended reach” warned of by the CAAF in Cohen, our
precedent provides several examples of “official” but “non-
disciplinary” inquiries: a medical officer who asks questions
for the purpose of diagnosis is acting in an official yet non-
disciplinary capacity (United States v. Fisher, 

,
278-79 (C.M.A. 1972)); a commander who asks questions for the
operational purpose of determining whether to terminate a
service member’s security clearance is acting in an official yet

                                9
non-disciplinary capacity (United States v. Bradley, 

, 441 (C.A.A.F. 1999); a crew chief who asks questions for
the safety-related purpose of determining whether a crew
member’s erratic behavior during a flight is due to drug use is
acting in an official yet non-disciplinary capacity (United
States v. Loukas, 

, 387 (C.M.A. 1990)), and so on.

     However, the facts of this case are not analogous to any of
those cases, for there was neither an operational nor a safety-
related purpose behind Cpl Brooks’ questioning of the appellant.
Rather, Cpl Brooks testified, “I asked him because I wanted him
to tell me what he was doing and tell me what he was doing
wrong.” 14 On cross examination, Cpl Brooks elaborated:

        A: I saw him sit down with two beers in his hand,
           ma'am.

        . . . .

        Q: And in your mind did you think there's a problem?
        A: Yes, ma'am.

        Q: Why did you think there was a problem?
        A: It's a violation of the rules.

        . . . .

        Q: Okay. And rules are rules; right?
        A: Rules are rules, yes, ma'am.

        Q: And you don't want to tolerate that, anyone
           breaking the rules; right?
        A: No, ma'am.

        Q: Okay. And so in order to make sure that good order
           and discipline was followed you went over there and
           you wanted to make sure it was corrected; right?
        A: Yes, ma'am. 15

     Under these facts, it is clear that Cpl Brooks was not
acting in an operational, safety, or personal capacity.
Instead, he saw a crime being committed and he questioned the
one he suspected of committing it. While the dissent classifies

14
     Record at 187.
15
     

                                  10
this questioning as “informal” and only an attempt to “correct
this junior Marine’s deficient behavior,” it is at least as
reasonable to conclude that Cpl Brooks’ intended to enforce
compliance with the order the appellant was violating and then
ensure that such violation was reported to the appellant’s
immediate superior for action.

     This conclusion is reasonable given the CO’s concern
regarding 1/10 Marines consuming alcohol during the ITX. The CO
testified that, “we were going to focus on training . . . on
putting rounds down range safely and accurately.” 16 The no-
alcohol consumption order was “a matter of safety and trying to
keep all hands focused on the mission[.]” 17 The CO also
announced at staff meetings and battalion all-hands formations
that he would have a “zero tolerance” policy for consuming
alcohol. 18 Thereafter, and prior to the appellant consuming
alcohol, at least one other Battalion Marine violated the order
and received nonjudicial punishment (NJP) in a manner that “was
very evident” to the rest of the battalion. 19

    Considering the importance of the no-alcohol consumption
policy to the command, it is reasonable to conclude that Cpl
Brooks, who knew of the CO’s decision to take others who
previously violated the no-alcohol policy to NJP, would not have
opted to resolve this open violation on his own, but rather
would have forwarded the information up the chain of command for
a decision on whether to discipline the appellant. This
reasonable conclusion strengthens the probability that Cpl
Brooks was acting in a disciplinary capacity.

    That “a reasonable man in the appellant’s position” would
have concluded that Cpl Brooks was acting in a disciplinary
capacity is also probable. Again, the evidence indicates that
it was well-known in the Battalion that those who violated the
no-drinking order received NJP, an inference that is reinforced
by the appellant’s conversation with SSgt Good, wherein the

16
     

17
     

at 159.
19
  

. Cpl Brooks testified that “[p]retty much everybody knew that
the other Marines had got in trouble for drinking.” 

SSgt Good
testified “[a] few incidents where Marines got NJP’d for drinking [in
violation of the no-drinking policy] was brought up there in the formations.”

                                     11
appellant acknowledges that there were “going to be
repercussions” for his violation of the no-drinking order. 20 A
reasonable interpretation of this evidence is that a reasonable
person in the appellant’s position knew that violations of the
CO’s order to abstain from alcohol were not likely to be
resolved with simple informal “corrections.”

     Like the concurring opinion, we are mindful of the
dissent’s concern that an overly-strict application of Article
31(b) might result in “prohibit[ing] superiors from lawfully
inquiring into or correcting deficient behavior in a subordinate
without first issuing an Article 31(b) rights advisement.”
However, the dissent’s opinion is founded upon the conclusion
that the interaction between Cpl Brooks and the appellant was
not “disciplinary” but merely a “teachable moment” or simply
“informal counseling.” While we allow such a conclusion may be
true, we also recognize that it may not. We reiterate that we
do not know the answer to that critical question because the
issue was not raised and litigated at trial.

     To be clear, we do not conclude that Cpl Brooks necessarily
had a duty to warn the appellant of his rights under Article
31(b), nor do we hold as a matter of law that the appellant
would have been successful had the motion been litigated.
Instead, we find that a motion to suppress this case-dispositive
evidence had a reasonable probability of success and therefore
TDCs’ failure to litigate the issue is “sufficient to undermine
[our] confidence in the outcome” of this court-martial.

.

                                 Conclusion

     The finding of guilty and the sentence are set aside. The
record is returned to the Judge Advocate General for remand to
an appropriate convening authority with a rehearing authorized.

           Senior Judge FISCHER, Judge MARKS, and Judge MILLER concur.


BRUBAKER, Senior Judge (concurring):
     I agree that applying the proper legal standards, as
clarified by our superior court, the appellant has met his
burden of demonstrating both prongs of the Strickland test for
ineffective assistance of counsel, Strickland v. Washington, 446

20
     

668, 694 (1984), and accordingly concur in the result. I
write separately to clarify my reasoning in reaching this
conclusion and out of a deep concern that this opinion not be
misconstrued to give Article 31, UCMJ, the “comprehensive and
unintended reach into all aspects of military life and mission”
warned of in United States v. Cohen, 

, 49 (C.A.A.F.
2006) (citation omitted).
     Noncommissioned officers (NCOs) on a daily basis ensure
compliance with standards, regulations, and norms. That is what
they are expected and required to do, and it is not an
exaggeration to say that a unit’s effectiveness hinges on its
NCOs’ ability and willingness to perform this duty——hence their
moniker as the “backbone of the Marine Corps.” Technically,
every time an NCO observes what he suspects to be noncompliance
and approaches a Marine to correct it, the noncompliant Marine
is a “suspect” within a literal meaning of Article 31. But it
would be absurd indeed if Article 31 were read in a way to
impose on every NCO the statutory duty to provide rights
warnings every time before asking a Marine why he is a few
minutes late for formation, or is not in the uniform of the day,
or failed to render a salute to a passing officer.
     There can be little doubt Corporal Brooks suspected the
appellant was not in compliance with an order and that his
purpose was to ensure good order and discipline. But this much
is true every time an NCO performs his daily task of enforcing
standards and is a different question than whether he was acting
in a disciplinary capacity such as to trigger Article 31
requirements. See 

(interpreting Article
31(b) in a manner that “recognizes the difference between
questioning focused solely on the accomplishment of an
operational mission and questioning to elicit information for
use in disciplinary proceedings.”).
     Indeed this case is, in my view, close because the record
as developed does not make clear whether, subjectively and
objectively, Corporal Brooks was acting with an administrative
purpose when questioning the appellant——that is, with the
purpose of taking administrative measures to ensure the
appellant was aware of and complying with the order not to
drink——or was eliciting information for use in disciplinary
proceedings. 

is correct that no additional facts have come
before the court to cause a change of position. I have changed
my position from the original decision not because I am now
factually persuaded that Corporal Brooks was acting with a
disciplinary purpose, but because, having received course
                               13
correction on applicable legal standards from our superior
court, I find that had the defense raised the admissibility of
the statements to Corporal Brooks as they should have, there was
a reasonable probability of a legally correct finding that
Corporal Brooks was acting or reasonably could be considered to
have been acting in such a capacity. I find the probability to
be well beyond conjecture or speculation and sufficiently likely
as to undermine my confidence in the outcome of the trial——which
is all that Strickland demands. 

.
Accordingly, I concur in the result.
      Judge HOLIFIELD joins.


MITCHELL, Chief Judge (dissenting):
     In the original en banc opinion of this court, the majority
and the minority were in agreement that Corporal (Cpl) Brooks
intended to correct the appellant for violating the battalion
commander’s order not to consume alcohol during the Integrated
Training Exercise (ITX), and consequently, that Cpl Brooks was
not acting in a law enforcement capacity when he confronted the
appellant. 1 Both the majority and the minority opinions also
were in agreement that any chance of success on the motion to
suppress the statement the appellant made to Cpl Brooks hinged
on whether Cpl Brooks was acting, or could reasonably be
considered to be acting, in a disciplinary capacity. The former
majority, of which I was a part, specifically opined that, based
on the totality of the circumstances, the appellant faced
several significant obstacles in meeting this challenge to
include, inter alia, Cpl Brooks’ own testimony in which he
described his intent as to “fix” or “correct” this Marine,
making his actions administrative in nature. Accordingly, we
found that the appellant failed to carry his burden of
demonstrating prejudice within the meaning of Strickland v.
Washington, 

(1984). Upon reevaluation, no
additional facts have been put before the court that would imply
that Cpl Brooks had any illicit motive in confronting the
appellant, or to give us pause to alter our original position.
That being said, I now find myself standing alone in dissent.
     In a summary disposition, the Court of Appeals for the
Armed Forces (CAAF) reversed this court’s original decision,
stating that the majority, in its review of the facts and

1
  There is nothing in the record to suggest that Cpl Brooks was acting in an
official or law enforcement capacity. We need not analyze this aspect of
Article 31(b), UCMJ.


                                     14
circumstances to determine whether a motion to suppress would
have been meritorious, relied on the subjective beliefs and
opinions of the questioner and third-parties in assessing
whether the appellant faced questioning from an individual in an
official capacity or for disciplinary purposes vice the
objective standard set out in United States v. Jones, 

, 362 (C.A.A.F. 2014). The CAAF also stated that this court
correctly cited the “reasonable probability” of success standard
to be applied, but that we erroneously equated that standard
with a preponderance of the evidence standard to resolve the
ineffective assistance of counsel question. 2
                  Ineffective Assistance of Counsel
      Ineffective assistance of counsel under Strickland
requires a two-fold examination into: (1) the deficiency of
trial counsel’s performance; and (2) whether the deficiency
resulted in 

; see also United States
v. Garcia, 

, 450 (C.A.A.F. 2004).
     While I am cognizant of the fact that this is an issue of
ineffective assistance of counsel vice a question about the
application of Article 31(b), the two matters are inextricably
linked. Showing that counsel’s deficiencies were prejudicial to
the appellant (i.e., that certain action would have had a
substantial likelihood of changing the outcome) is predicated
upon the probability of success of the motion to suppress,
which, in turn, rests on how the law is decided regarding the
potential Article 31(b) violation. It boils down to two
questions: (1) what does “disciplinary status” mean with regard
to Article 31(b); and (2) on a continuum measuring the
probability of success - with wholly frivolous at one end and a
preponderance of the evidence at the other — where does “a
reasonable probability of success” lie?
Article 31(b) Protections
     It is well-established that the military environment is
different than the civilian context, which is why Article 31(b)
offers different rights protections than those articulated under
2
  The actual language of the original majority opinion, citing language from
Supreme Court case law amplifying the “reasonable probability” standard set
forth in Strickland, stated: “Although the standard of ‘reasonable
probability’ may suffer from a lack of granularity, any difference between
this standard and the more familiar standard of preponderance of evidence of
the evidence ‘is slight and matters “only in the rarest case.’” United
States v. Spurling, No. 201400124, 2014 CCA Lexis 771 at *9 n.18, unpublished
op. (N.M.Ct.Crim.App. 16 Oct 2014) (citing Harrington v. Richter, 

(2011) (additional citation omitted)).


                                     15
Miranda v. Arizona, 

(1966). The intent was to
avoid impairing the constitutional guarantee against compulsory
self-incrimination that might occur when members are questioned
by superiors, law enforcement, or any other person in authority
given the rank structure of the military. See United States v.
Duga, 

, 209 (C.M.A. 1981). I cannot fathom that the
framers of Article 31(b) crafted the rule intending to prohibit
superiors from lawfully inquiring into or correcting deficient
behavior in a subordinate without first issuing an Article 31(b)
rights advisement.
     Consider the following scenario. A Sailor or Marine is
late to formation. A superior in the chain of command,
intending to determine whether or not the tardiness was the
result of deficient behavior and correct any deficiency with
extra military instruction, consequently questions the member
about his absence. The member, when questioned, chooses to lie
– arguably a much greater infraction under the UCMJ. The
majority’s opinion seems to suggest that correcting conduct that
is conceivably punishable under the UCMJ requires the reading of
Article 31(b) rights, or else the member could be absolved of
any culpability for his untruthful statements through a motion
to suppress the statement for lack of notice against self-
incrimination. Such a proposition does not comport with
military culture as it would bind the disciplinary authority of
the officers and noncommissioned officers whose responsibility
it is to maintain good order and discipline within the unit.
Disciplinary Status of Cpl Brooks
     As in the original majority and minority opinions, we are
all still in agreement that any chance of success on a motion to
suppress the appellant’s statement turns on whether Cpl Brooks
was either acting in a disciplinary status or could reasonably
be considered to be acting in a disciplinary capacity. This is
determined by “assessing all the facts and circumstances at the
time of the interview to determine whether the military
questioner was acting or could reasonably be considered acting
in an official or law enforcement or disciplinary capacity.”

(quoting United States v. Swift, 

, 446 (C.A.A.F. 2000) (additional citation omitted)); see
also 

.
     In assessing all the pertinent facts, I first note that the
setting was the Warrior Club, a recreational facility where the
Marines assigned to the ITX, in the words of one lance corporal,
could “get [their] free time on.” 3 There was nothing

3
    Record at 171.
                               16
intimidating about the venue in which this conversation took
place. We next note that Cpl Brooks was not the appellant’s
senior noncommissioned officer, as he was not in the appellant’s
direct chain of command. While in Swift there is a presumption
that the person acted in a disciplinary capacity if the military
questioner was in the direct chain of command - such is not the
case here. The pertinent part of the record, and the facts
before this court, then and now, support Cpl Brooks’ contention
that he informally approached the appellant with the intent to
counsel him and correct this junior Marine’s deficient behavior.
     Finally, the manner and tone in which Cpl Brooks approached
the appellant gives credence to the informal nature of the
query. Cpl Brooks did not need to approach the appellant and
question him about consuming alcohol to report the apparent
violation up the chain of command. He and Sergeant (Sgt) Moyta,
along with others in the Warrior Club, had already witnessed the
violation as the appellant was drinking openly in front of
others. Cpl Brooks approached the appellant in a teachable
moment and initially asked him if he was part of 1/10 in order
to allow the appellant the opportunity to acknowledge his error
and correct his behavior. Cpl Brooks and Sgt Moyta testified
that the appellant’s attitude during the conversation suggested
no more than informal counseling as the appellant rolled his
eyes and acted in a disrespectful manner. 4 While not
dispositive, a casual bystander, Lance Corporal Mulhauser, also
described the conversation as informal counseling. On this
record, the appellant would be hard-pressed to show that Cpl
Brooks was either acting in a disciplinary status or could
reasonably be considered to be acting in a disciplinary
capacity. These facts present a significant challenge to the
appellant’s burden to show prejudice.
     While I am hesitant to speculate, I am left to wonder what
the result would have been had the appellant acknowledged his
mistake, apologized, and discarded the beer. 5 I, in all

4
    

206.
5
  The majority seems to put a lot of stock in the fact that at least one
Marine was punished at nonjudicial punishment (NJP) for consuming alcohol
during this exercise. The majority opinion suggests because this Marine was
punished at NJP, it was a foregone conclusion that Cpl Brooks was going to
report this incident up the chain of command thereby buttressing the argument
that he was acting in a disciplinary status. I note, however, that there is
no indication in the record or otherwise detailing the facts of the alcohol
related incident involving the other Marine. There is nothing in Cpl Brooks’
testimony that leads me to believe that he was doing more than correcting
deficient behavior as he stated on the record. Even if Cpl Brooks realized
that there would probably be disciplinary action to follow, there is no
                                     17
likelihood, would have no need to write this dissent as the case
probably would not be before this court.
Sufficiency of the Record
     I also note that the majority opinion indicates that
because this issue was not identified, raised, and litigated by
the trial defense team, we are left with an incomplete record
that could have been fleshed out through motions practice. Such
conjecture could be argued in any case where a motion to
suppress evidence, or any motion for that matter, was not raised
by the trial defense counsel, which leads us down an unintended
slippery slope of exposing counsel to undue scrutiny and
burdening the justice system. See 

(finding that “Courts should strive to ensure that
ineffectiveness claims do not become so burdensome to defense
counsel that the entire justice system suffers as a result.”).
I decline to speculate as to what, if any, additional facts
could have been uncovered had the issue been litigated. There
is sufficient evidence in the record before us to resolve
whether it was error for the trial defense team to not raise the
issue, and whether the appellant has met his burden to show
prejudice.
Reasonable Probability/Prejudice
     In assessing prejudice under Strickland, 6 a court must
examine whether “it is ‘reasonably likely’ the result would have
been different” but for the conduct of counsel. 

. “‘When a claim of ineffective assistance of
counsel is premised on counsel’s failure to make a motion to
suppress evidence, an appellant must show that there is a
reasonable probability that such a motion would have been
meritorious’” in order to meet its burden of demonstrating
prejudice. United States v. Jameson, 

, 163-64
(C.A.A.F. 2007) (quoting United States v. McConnell, 

, 482 (C.A.A.F. 2001) (additional citation omitted)).



indication that Cpl Brooks questioned the appellant with the intent to “evade
the accused’s constitutional or codal rights.” 

(quoting
United States v. Bradley, 

, 441 (C.A.A.F. 1999)). Furthermore,
even if he had reported the incident, discipline is at the discretion of the
command, and there is no evidence that the matter would have been resolved in
a punitive way vice informal counseling or no consequence at all.

6
  “When reviewing ineffectiveness claims, ‘a court need not determine whether
counsel’s performance was deficient before examining the prejudice suffered
by the [appellant].’” United States v. Datavs, 

, 424 (C.A.A.F.
2012) (quoting 

).
                                      18
     As “a reasonable probability” is unquantified in case law,
it is this issue that causes the greatest amount of angst.
Supreme Court case law decided after Strickland, and amplifying
on the standard established in that case, intimates that the
“likelihood of a different result must be substantial, not just
conceivable.” Harrington v. Richter, 

, 112 (2011)
(citation omitted).
       Accordingly, it follows that a reasonable probability of
the motion being meritorious should be substantial and not just
conceivable. See Cullen v. Pinholster, 

, 1403
(2011); see also 

. The Supreme Court
decisions after Strickland on this issue and elaborating on the
standard established in that case suggest that, “reasonable
probability of success” falls on the spectrum closer to a
preponderance of the evidence than to frivolous, i.e., merely
conceivable. See 

(finding that “the
difference between Strickland’s prejudice standard and a more-
probable-than-not standard is slight and matters ‘only in the
rarest case’”) (quoting 

)).
     With the standard of a “reasonable likelihood” of the
motion’s success falling closer to a preponderance of evidence
than just a possible or conceivable chance of success, on this
record, I would find that the appellant failed to carry his
burden to prove a reasonable possibility of success within the
meaning of Strickland. I would, therefore, affirm his
conviction, in accordance with the original majority opinion. I
would also, like in the original majority opinion, find his
sentence inappropriately severe, affirming only that part of the
sentence as extends to reduction to pay grade E-1.

                                For the Court



                                R.H. TROIDL
                                Clerk of Court




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