than a casual conversation." As an example, if a fellow prisoner were to ask
"what are you in for?" Article 31 warnings would not be necessary.
8. In this case, the court decided that "the questioning was not done in an
official capacity... Byers was not acting on behalf of the Air Force -- either
as a security policeman or as an agent of the OSI... the questioning by Byers
was solely motivated by his own personal curiosity and was entirely unconnected
with his previous contact with the OSI." The OSI did not direct nor advise him
to question the accused. Also, "the appellant could not possibly have perceived
his interrogation as being official in nature. The evidence portrays a casual
conversation between comrades... The appellant could not have envisioned that
Byers was acting in an official capacity.
Moreover, there was no subtle
coercion of any sort which could have impelled the appellant to answer Byer's
questions."
9. This is similar to what happened in U.S. v. Kirby, 8 MJ 8 (CMA, 1979).
There, the OSI had received information that property missing from the base
medical center was in a trailer shared by two sergeants, one of whom was the
accused. When questioned by the OSI, the other sergeant, SGT English denied
everything, but said that he had seen the accused with the property at the
trailer. SGT English "suggested that he be permitted to attempt to persuade
the accused to surrender it to the OSI."
The 0SI commander said it "seemed
like the only thing to do." Under these facts, the issue was whether or not
SGT English was acting in an official capacity when he told the accused that he
should return the property.
The court held that he was not, explaining its
conclusion in the following way:
"In determining whether English acted in an official capacity, we
recognize that the OSI agreed to allow English to proceed. However,
they did not contribute in any way to the details of English's
activities. He was given no directions or advice. There was not
even any arrangement for English to make reports to OSI on his
progress. No promises were made to English conditioned on return of
the property. Agent Reid (OSI) even admitted that they did not have
any assurance that English would give the accused the opportunity to
destroy the property or otherwise dispose of it. Furthermore, the
OSI did not have anyone watching the trailer or English.
When
English left the OSI, he was free to pursue his own devices.
Indeed, he was even free to do nothing.
But he approached the
accused and told him he had better bring the property back because
the OSI knew he had the items. This was a true statement."
10. Here, then, SGT English did not question the accused at the request of OSI.
He "was acting entirely for his own benefit to clear himself from suspicion of
theft." What the OSI did "in essence was to tell English he could do as he
chose... we decline to require that law enforcement officials take steps to
prevent citizens from acting as English did, which in reality merely amounted
to advising his friend and roommate what the OSI knew, and then suggesting the
obvious."
11. The Duga case may be old, but it is still solid legal precedent.
The
principles of the case were followed recently in U.S. v. Pittman, 36 MJ 404
1-23
MP1020
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