278 F.

3d 239

Michael Todd BROSIUS, Appellant,

v.
WARDEN, UNITED STATES PENITENTIARY,
LEWISBURG, PA.
No. 01-1102.

United States Court of Appeals, Third Circuit.

Argued September 7, 2001.
Opinion Filed January 23, 2002.

Paul M. Pohl (Argued), Jones, Day, Reavis & Pogue, Pittsburgh, PA,
Counsel for Appellant.
Major Dan Brookhart (Argued), Department of the Army Office of the
Judge Advocate General, Arlington, VA, Counsel for Appellee.
Before: BECKER, Chief Judge, ALITO, and BARRY, Circuit Judges.
OPINION OF THE COURT
ALITO, Circuit Judge.

I.

This is an appeal by Michael Todd Brosius from an order dismissing his

petition for a writ of habeas corpus. Brosius was convicted of unpremeditated
murder following a general court martial, and he is serving a sentence of
imprisonment. His conviction was affirmed by the Army Court of Military
Review, see United States v. Brosius, 37 M.J. 652 (A.C.M.R. 1993), and the
Court of Military Appeals granted review but summarily affirmed without
opinion. See United States v. Brosius, 39 M.J. 378 (C.M.A.1994). Brosius, who
is imprisoned at the United States Penitentiary in Lewisburg, Pennsylvania,
then filed a petition for a writ of habeas corpus under 28 U.S.C. 2241 in the
United States District Court for the Middle District of Pennsylvania. The
District Court denied his petition, Brosius v. Warden, 125 F.Supp.2d 681
(M.D.Pa.2000), and this appeal followed.

At approximately 4:40 a.m. on June 2, 1990, two sergeants in the United States
Army found Private First Class Tammy Ivon near death in the parking lot
adjacent to the enlisted service members' barracks at the United States Army
Airfield in Giebelstadt, Germany. When Ivon was found, her legs were
protruding from under a pickup truck, and her jeans had been pulled down to
her ankles. One of the sergeants noticed a man whom he identified as Brosius
staring at him from a nearby road. After several seconds, Brosius, who had
been a close friend of Ivon's, walked away. A short time later, Ivon died.

An autopsy revealed that Ivon had been stabbed 11 times, four times in the
chest, five times in the abdomen, and once near each eye. Ivon's car was found
parked next to the pickup, and the back seat of the car was stained with blood.
The sign-in log for a gate on the base showed that Ivon's car had returned at
2:30 a.m. with two occupants. A witness who had passed Ivon's car at about
3:00 a.m. stated that the windows were fogged, he heard a grunt or groan
coming from inside, and he thought that the occupants were having sex.

Numerous witnesses described Brosius's behavior during the hours after Ivon's
body was found. A witness who saw him at 7:25 a.m. described him as shocked
and dazed. At 7:30 a.m., he told another witness that he had just come from
working out in the gym although the gym was closed at the time. He told
another witness that a girl who had given him a ride home two hours earlier
was dead and that he suspected her boyfriend. Brosius then reportedly
threatened to kill the boyfriend. A short time later, when another witness asked
Brosius if he had heard about Ivon's death, Brosius said that he had not. Brosius
then went to the laundromat and told a witness who later testified for the
prosecution that Ivon had given him a ride home that night and that he might
have been the last person to see her alive. He said that he had heard that she had
been stabbed 11 times. He told another witness who testified for the defense
that a third person had accompanied Ivon and him when they drove back to the
base. At 11:10 a.m., he awakened his roommate, screaming that Ivon's
boyfriend had killed her.

Word reached Brosius's first sergeant that Brosius had been with the victim on
the night of her murder, and the first sergeant then provided this information to
agents from the Criminal Investigation Division ("CID"). Brosius was called to
the orderly room, and Special Agents Douglas Allen and Tyrone Robinson took
Brosius into the first sergeant's office and spoke with him. Brosius stated that
on the night of the murder, Ivon had driven another soldier and him back to the
base from a local club. When Special Agent Allen asked the identity of the
third person, Brosius replied that he did not wish to say anything about it.
According to Special Agent Allen, Brosius then requested to have a lawyer, his

first sergeant, or some other third party present to witness his statement.
According to Brosius, he asked to have a lawyer present, but Brosius admitted
that it was "possible" that he might have also mentioned his first sergeant.
Special Agent Allen told Brosius that there were lawyers at the CID
Headquarters ("the River Building") in Wuerzburg and that if he wanted to
speak to a lawyer or someone else, he should go there. Sergeant Pickett,
Brosius's section sergeant, drove him to the River Building. Sergeant Pickett
and Brosius were acquaintances. App. 75.
6

At the River Building, Special Agent Mark Nash questioned Brosius without
administering any warning of rights. Special Agent Nash told Brosius that the
victim's boyfriend was the main suspect and that if Brosius "was worried about
rights or anything being violated, if you start to say anything that we think
would be incriminating against you, we would stop you and advise you of your
rights." App. 19-20. Special Agent Nash told Brosius that Captain Harper
Ewing would be available to witness the interview. Captain Ewing was the
prosecutor assigned to the case.

When Captain Ewing arrived, Brosius recognized him as an attorney who had
represented him in an earlier civil matter. Captain Ewing asked Brosius some
questions about the prior representation in order to ascertain whether there was
a conflict that would prevent him from prosecuting the case. Special Agent
Nash and Captain Ewing both told Brosius that Captain Ewing was a
prosecutor and was "working with the cops," but Brosius did not voice any
objection. Captain Ewing acknowledged, however, that Brosius said something
to the effect that he wanted an attorney present because he did not trust the
police and feared that they would twist his words. App. 43-44. Captain Ewing
testified that he thought that Brosius was simply requesting someone to record
his words accurately and was not requesting legal representation, and Special
Agent Nash testified that Captain Ewing was present at the interview for that
purpose. Brosius did not ask Captain Ewing any questions or request legal
advice, but he testified at trial that he thought that Captain Ewing was his
lawyer because Captain Ewing had represented him in an earlier matter and
was present while he was being questioned.

At the end of the interview, Brosius signed a written statement. The chief points
stated were that: 1) Ivon had given Brosius a ride back to the base from the
club; 2) another male soldier, whom he described, had accompanied them; 3)
Ivon had a troubled relationship with her boyfriend; and 4) Brosius had last seen
her at about 2:55 a.m. Brosius's statement seems to have added little if anything
of substance to what he had told other witnesses during the hours immediately
after Ivon's body was discovered. The CID agents also took the clothing that

Brosius had worn on the night of the murder, but it apparently did not yield any
incriminating evidence. After the interview, Brosius returned to his unit.
9

Brosius returned for further questioning on June 4 and 5. At this time, he was
warned of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16
L.Ed.2d 694 (1966), and Article 31 of the Uniform Code of Military Justice
("UCMJ"), 10 U.S.C. 83. After receiving these warnings, Brosius waived his
rights and eventually confessed to the murder. He said that he had returned to
the base with Ivon and that no one else was in the car. When they reached the
parking lot, he stated, they started to have intercourse, but he realized that this
"wasn't right" because she was "like a sister" to him. He stated that he stabbed
her in the chest and stomach and then, because she was looking at him, in the
eyes. He said that he stabbed her about nine times. At the end of the confession,
however, he stated: "I don't believe I did it and if I did I want help. I feel like I
falsified the whole statement."

II.
10

The degree to which a federal habeas court may consider claims of errors
committed in a military trial has long been the subject of controversy and
remains unclear. Nearly 50 years after it was decided, the Supreme Court's
decision in Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045, 97 L.Ed. 1508
(1953), is still the leading authority. In Burns, two soldiers were tried by court
martial, found guilty of murder and rape, and sentenced to death. They filed
habeas petitions claiming that they had been denied due process of law. Some
of the claims appear to have presented pure questions of fact (e.g., whether the
petitioners were beaten and denied food and sleep before they confessed), while
other claims presented either mixed questions or questions of law (e.g.,
whether, on the undisputed facts, their confessions were coerced). The district
court dismissed the petition, and the court of appeals affirmed. Burns v. Lovett,
202 F.2d 335 (D.C.Cir.1952). The court of appeals applied the following
standard:

11

[H]abeas corpus will not lie to review questions raised and determined, or
raisable and determinable, in the established military process, unless there has
been such gross violation of constitutional rights as to deny the substance of a
fair trial and, because of some exceptional circumstance, the petitioner has not
been able to obtain adequate protection of that right in the military process.

12

Id. at 342. Applying this standard, the court reviewed each of the petitioner's
allegations and found that none warranted relief.

13

The Supreme Court affirmed by a vote of 6 to 2 but without a majority opinion.

One member of the majority, Justice Minton, took the position that the Court
could do no more than inquire whether the court martial had jurisdiction.
Burns, 346 U.S. at 146-48, 73 S.Ct. 1045 (Minton, J., concurring in judgment).
However, the plurality opinion written by Chief Justice Vinson and joined by
three other Justices concluded that the Court's inquiry was somewhat broader.
The plurality stated that the petitioners' allegations "were sufficient to depict
fundamental unfairness" and that the district court could have reviewed these
claims de novo if the military courts had "manifestly refused to consider" them.
Id. at 142, 73 S.Ct. 1045. But because the military courts had "heard petitioners
out on every significant allegation" and had "given fair consideration to each of
the[ir] claims," the plurality stated, the petitioners had "failed to show that this
military review was legally inadequate." Id. at 144-46, 73 S.Ct. 1045. The
plurality added that "although the Court of Appeals may have erred in
reweighing each item of relevant evidence in the trial record, it certainly did not
err in holding that there was no need for a further hearing in the District Court."
Id. at 146, 73 S.Ct. 1045. Justice Jackson, the sixth member of the majority,
concurred in the result without opinion. Id.

14

Justice Douglas, joined by Justice Black, dissented, arguing that it was proper
to determine in the habeas proceeding whether, based on the undisputed facts,
viz., that the petitioners had been held incommunicado and repeatedly
questioned over a period of five days, the petitioners' confessions had been
unconstitutionally obtained. 1 Burns, 346 U.S. at 154-55, 73 S.Ct. 1045
(Douglas, J., dissenting).

15

Although the rule that emerges from Burns is far from clear in all respects, it
appears that a majority (the plurality plus Justice Minton) held that in
considering a constitutional claim involving a pure question of law or a mixed
question of law and fact, a habeas court may not exercise de novo review and
may not go beyond considering whether the military courts "dealt fully and
fairly" with the claim. Moreover, the plurality's treatment of the petitioners'
coerced confession claim suggests that full and fair consideration was intended
to mean no more than "hear[ing]" the petitioners "out." Burns, 346 U.S. at 144,
73 S.Ct. 1045. Although it appears that the Judge Advocate General, then the
highest reviewing officer, had not addressed the question whether the
undisputed facts relating to the confessions established a violation of the
governing Supreme Court precedent concerning unconstitutionally coerced
confessions,2 the plurality rejected the coerced confession claim with the
simple statement that "there was exhaustive inquiry into the background of the
confessionswith the taking of testimony from the persons most concerned
with the making of these statements." Id. at 145, 73 S.Ct. 1045.

16

Lower courts have had difficulty applying the Burns "full and fair" test. The
Tenth Circuit, which has the most experience with habeas petitions filed by
service members due to the location of the Disciplinary Barracks at Ft.
Leavenworth, Kansas, has stated that "[t]he federal courts' interpretation
particularly this court's interpretation of the language in Burns has been
anything but clear." Dodson v. Zelez, 917 F.2d 1250, 1252 (10th Cir.1990); see
also, e.g., Kauffman v. Sec. of the Air Force, 415 F.2d 991, 997 (D.C.Cir.1969)
(the test "has meant many things to many courts").

17

Our court's treatment of Burns has also been far from seamless. In United States
ex rel. Thompson v. Parker, 399 F.2d 774 (3d Cir.1968), we interpreted Burns
narrowly. The petitioner argued that his confession had been obtained in
violation of the Fifth Amendment and Article 31 of the UCMJ, but we rejected
that argument with the terse statement that "the district court, after determining
that the military courts had given due consideration to petitioner's contentions,
quite correctly refused to review and reevaluate the facts surrounding
petitioner's allegations." Id. at 776.

18

By contrast, in Levy v. Parker, 478 F.2d 772 (3d Cir.1973), rev'd on other
grounds, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974), we seemingly
read Burns more expansively. Levy, a military doctor, was convicted by a
general court martial of wilful disobedience of the lawful command of a
superior officer, uttering public statements designed to promote disloyalty and
disaffection among the troops, and wrongfully and dishonorably making
intemperate, defamatory, provoking, contemptuous, disrespectful, and disloyal
statements to other officers. See id. at 778. He contended that the articles under
which he was convicted were too vague to satisfy due process. We suggested
that a habeas court may examine de novo those constitutional claims "not
dependent upon any evidentiary or factual construction." Id. at 783. The actual
holding of the case, however, was limited to claims related to "the facial
unconstitutionality of [a] statute" under which a petitioner was charged. Id. Any
broader reading of Levy as requiring de novo review over all questions of law
would be inconsistent with Burns, in which a majority of the Court (the
plurality plus Justice Minton) applied a deferential standard of review to the
claims that, on the undisputed facts, the habeas petitioners' constitutional rights
were violated. See Burns, 346 U.S. at 154, 73 S.Ct. 1045 (Douglas, J.,
dissenting) (arguing that "the undisputed facts in [the] case ma[de] a prima facie
case that [the Supreme Court's] rule on coerced confessions expressed in Watts
v. Indiana, 338 U.S. 49, 69 S.Ct. 1357, 93 L.Ed. 1801 (1949), was violated"),

19

In the present case, we find it unnecessary to attempt any further explication of

Burns. Whatever Burns means, we have no doubt that at least absent a

challenge to the constitutionality of the statute under which the defendant was
convicted, such as that raised in Levy, our inquiry in a military habeas case may
not go further than our inquiry in a state habeas case. See Burns, 346 U.S. at
142, 73 S.Ct. 1045 ("In military habeas corpus cases, even more than in state
habeas corpus cases, it would be in disregard of the statutory scheme if the
federal civil courts failed to take account of the prior proceedings ...")
(emphasis added). Thus, we will assume but solely for the sake of argument
that we may review determinations made by the military courts in this case
as if they were determinations made by state courts. Accordingly, we will
assume that 28 U.S.C. 2254(e)(1) applies to findings of historical fact made
by the military courts. Under this provision, "a determination of a factual issue
made by a State court" is "presumed to be correct," and a habeas petitioner has
"the burden of rebutting the presumption of correctness by clear and convincing
evidence." In considering other determinations made by the military courts, we
will assume that 28 U.S.C. 2254(d) applies. Under this provision,
20

[a]n application for a writ of habeas corpus on behalf of a person in custody

pursuant to the judgment of a State court shall not be granted with respect to
any claim that was adjudicated on the merits in State court proceedings unless
the adjudication of the claim

21

(1) resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme
Court of the United States; or

22

(2) resulted in a decision that was based on an unreasonable determination of

the facts in light of the evidence presented in the State court proceeding.

23

See also Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389
(2000); Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 891 (3d Cir.1999)
(en banc).

III.
24

Brosius argues that his conviction must be reversed because, prior to his two
interviews on June 2, he was not given the warnings prescribed by Miranda or
Article 31(b) of the Uniform Code of Military Justice, 10 U.S.C. 831(b).3
Article 31(b) differs from Miranda in that it requires warnings whenever a
service member is "suspected of an offense" and is being interrogated. It may
thus apply in situations in which a service member is not in "custody." See
United States v. Baird, 851 F.2d 376, 383 (D.C.Cir.1988). We will discuss

Miranda and Article 31(b) separately.

A.
25

In Miranda, the Supreme Court held that warnings must be administered before
a person is subjected to "custodial interrogation," i.e., "questioning initiated by
law enforcement officers after a person has been taken into custody or
otherwise deprived of his freedom of action in any significant way." 384 U.S. at
444, 86 S.Ct. 1602 (footnote omitted). In this case, the Army Court of Military
Review concluded that Brosius was not in "custody" when he was interviewed
on June 2, and the court credited testimony that Brosius "voluntarily appeared
before [the CID agents] as a friend of PFC Ivon wishing to provide them with
information that might lead to the apprehension of her killer." 37 M.J. at 660.
Whether a person is in "custody" for purposes of Miranda is not a factual
question entitled to the presumption of correctness, see Thompson v. Keohane,
516 U.S. 99, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995), and therefore we ask
whether the determination of the military courts that Brosius was not in custody
is "contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States." 28
U.S.C. 2254(d)(1). We hold that under these standards, the determination of
the military courts must be sustained.

26

Brosius argues that he was in custody at the time of the first interview on June
2 because his first sergeant, the highest-ranking noncommissioned officer in
the unit, "sent" him to the orderly room to speak with the CID agents and
because under Article 91(2) of the UCMJ, 10 U.S.C. 891(2), Brosius was
required to obey the first sergeant's orders. In making this argument, Brosius
relies on the statement of Special Agent Allen that the first sergeant "sent"
Brosius to the orderly room. However, when Special Agent Allen's testimony
on this point is viewed in context and together with other pertinent testimony, it
is apparent that there is no basis for overturning the Army Court of Military
Review's determination that Brosius appeared before the CID agents
voluntarily.
Special Agent Allen testified as follows:

27

A. ... [T]he First Sergeant told us there was a soldier that stated that he was
with her the night before, and he asked if we wanted to see him. We said, "Yes
if he's in the area you can send him down."

28

Q. Okay. So the First Sergeant sent him down to the orderly room?

29

A. Yes, sir.

30

App. 1.

31

Special Agent Nash explained the circumstances that led to Brosius's being
"sent" to the orderly room.4 Special Agent Nash testified that Brosius
"approached some of our agents or the First Sergeant, and the First Sergeant
approached our agents while they were in the unit, saying that he was with PFC
Ivon, and that he wanted to come and tell us what he knew about it." App. 18;
see also id. at 30. When Brosius was asked how he had come to be interviewed
at the base, he stated "[s]omebody from the orderly room ... came down to my
room where I was at the time, and said that the police, CID, wanted to speak to
me about what happened the night before." App. at 80.

32

Viewing all of this evidence together, we see no basis for rejecting the
determination of the Army Court of Military Review that Brosius appeared
voluntarily. Special Agent Nash's testimony directly supports that
determination, and Special Agent Allen's use of the term "sent" is easily
reconcilable with his testimony. A person who has expressed a desire to speak
with someone may be "sent" to see that person when the person is available.
("After some time in the waiting room, the patient was sent in to see the
doctor.")

33

We thus then turn to the second interview conducted on June 2 at the River
Building. Brosius argues that he was in custody at the time of this interview
because, according to the opinion of the Army Court of Military Review,
Special Agent Allen "instructed" Brosius to go to the River Building, 37 M.J. at
655, and, according to testimony given by Special Agent Robinson, Brosius
was then "escorted" to the River Building by his section sergeant. App. 123.
Brosius contends that, in the military, the word "escort" is synonymous with
the word "guard." The government, by contrast, argues that Brosius had a
friendly personal relationship with his section sergeant and that the sergeant
simply gave him a ride to the River Building.

34

The Army Court of Military Review, as previously noted, concluded that

Brosius voluntarily appeared before the CID agents, and we accept that
determination. Special Agent Allen testified as follows concerning the
circumstances that led to Brosius's appearance at the River Building:

35

Q. ... [W]hen he said that ... he didn't want to talk to you, what did you do?

36

A. Well, we had several other people to talk to, and I told him "There's two
lawyers down at the River Building," you know, if he wanted to talk to a
lawyer about it or if he wanted to talk to someone about it, "go down there and
someone would be glad to talk to you about it."

37

App. 4-5. (emphasis added). Special Agent Allen added:

38

A. ... I said, "Well, if you don't want to talk to us, there are attorneys down at
the River Building right now, and if you want to go down there and talk to them
about it, go ahead."

39

Q. And then they did he?

40

A. I think he did. He had a Sergeant there with him. I think it was his section
Sergeant, whatever. I think he took him down there.

41

App. 13 (emphasis added).

42

Brosius himself said little about the circumstances that brought him to the
River Building, stating only that his section sergeant, who was "an
acquaintance," gave him a ride to that facility. App. 75.

43

Considering the relevant portions of the record that have been brought to our
attention, we see no basis for rejecting the determination of the Army Court of
Military Review that Brosius was not in custody when he spoke with the agents
at the River Building. According to Special Agent Allen, Special Agent
Robinson and he did not direct Brosius to go to the River Building but merely
told him to go there "if he wanted to talk to a lawyer about it or if he wanted to
talk to someone about it." Brosius himself does not appear to have testified that
he felt compelled to go to the River Building. Since the River Building was
about 12 miles from the base, Brosius needed transportation to get there.
Special Agent Robinson's use of the term "escorted" may simply mean that the
section sergeant gave him a ride. In ordinary speech, a person who is "escorted"
is not necessarily deprived of freedom of movement. If the military courts did
not think that Special Agent Robinson's use of the term carried a special
meaning due to the military context, we are not inclined to second guess that
interpretation. Accordingly, we see no ground for holding that Brosius's
Miranda rights were violated on June 2.

B.

44

We now consider Brosius's argument that the failure to give him warnings on
June 2 violated his rights under Article 31(b) of the UCMJ. As noted, Article
31(b) applies whenever a service member who is "suspected of an offense" is
interrogated, whether or not the member is in custody. Statements obtained in
violation of Article 31(b) may not be received in evidence at a court martial
against the person who made them. 10 U.S.C. 83(d).

45

The parties disagree sharply about whether Brosius was a suspect at the time of
the June 2 interviews. Brosius maintains that a reasonable investigator would
have regarded him as a suspect immediately upon learning that Ivon had driven
him back to the base alone in the early morning hours of June 2. The
government argues that the agents were focusing on other suspects, chiefly
Ivon's estranged boyfriend, and did not regard Brosius as a suspect.

46

We find it unnecessary to decide whether Brosius was "suspected" of an

offense on June 2. Even if he was "suspected" and even if the statements that he
provided on June 2 should have been suppressed under 10 U.S.C. 83(d), the
failure to suppress those statements was harmless error. See Hassine v.
Zimmerman, 160 F.3d 941, 949 (3d Cir.1998) (in a habeas corpus proceeding,
an error is harmless if it did not have a substantial and injurious effect or
influence on the verdict). If the confession that Brosius made on June 4 and 5 is
not suppressed, a subject that we discuss below, the statements made on June 2
were obviously harmless. As noted, at the June 2 interview, Brosius stated that:
1) PFC Ivon gave him a ride back to the base from a nightclub; 2) another male
soldier rode with them; 3) she had a troubled relationship with her boyfriend;
and 4) he had last seen her at about 2:55 a.m. on the morning of the murder.
These statements added nothing to Brosius's later confession. Indeed, they do
not appear to have added much if anything to evidence available from other
witnesses or sources. Prior to the June 2 interview, Brosius had told other
witnesses who testified at trial that he had driven home with the victim on the
night of her murder; that he might have been the last person to see her alive;
and that another person had accompanied them in the car. In addition, the log
book at a gate revealed that Ivon's car had returned at 2:30 a.m. with two
occupants. Accordingly, the failure to suppress evidence obtained during the
June 2 interview was harmless under any standard.

47

Brosius, however, contends that, because warnings were improperly withheld

on June 2, his subsequent confession on June 4 and 5 must be suppressed. We
cannot agree. In Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d
222 (1985), the Supreme Court considered the appropriate remedy when a
suspect in custody is first interviewed without Miranda warnings and is later
given proper warnings and interviewed again. In Elstad, the defendant was

taken into custody for committing a burglary. Id. at 300-01, 105 S.Ct. 1285. He
was initially questioned at the scene of the arrest and made an incriminating
admission. Id. After he was taken to the police station, Miranda warnings were
given, he signed a written waiver, and confessed to the crime. Id. at 301-02,
105 S.Ct. 1285. The state appellate court held that, even if the confession had
not resulted from actual compulsion, the defendant's initial statement had a
coercive impact because it had let the "`cat ... out of the bag.'" Id. at 303, 105
S.Ct. 1285 (citation omitted). The state appellate court consequently held that
the later statement had to be suppressed. Id.
48

The Supreme Court reversed, holding that "absent deliberately coercive or

improper tactics in obtaining the initial statement, the mere fact that a suspect
has made an unwarned admission does not warrant a presumption of
compulsion." Id. at 314, 105 S.Ct. 1285. The Court added that "[a] subsequent
administration of Miranda warnings to a suspect who has given a voluntary but
unwarned statement ordinarily should suffice to remove the conditions that
precluded admission of the earlier statement." Id. at 314, 105 S.Ct. 1285.

49

That is precisely what occurred here. Brosius made unwarned statements on

June 2. He went home, and two days passed. On June 4th, he was called back
for a second interview. He was then given proper warnings, and he
subsequently confessed. There is no reason to believe that these later statements
were not "knowingly and voluntarily made." Elstad, 470 U.S. at 309, 105 S.Ct.
1285.

50

Brosius argues that the circumstances surrounding the interview at the River
Building were improper because Brosius was led to believe that Captain
Ewing, who was actually a member of the prosecution team, was serving as
Brosius's attorney. The government responds that, although Captain Ewing had
previously represented Brosius in an unrelated matter, Captain Ewing and the
agents made it clear that Captain Ewing was working with the prosecution in
relation to the Ivon murder investigation.

51

Captain Ewing's role at the June 2 interview at the River Building was
inadvisable, but it does not call for the suppression of the confession that
Brosius provided days later after receiving proper warnings. Brosius relies on
the statement in Elstad that a prior failure to warn may call for the suppression
of a subsequent statement made after receiving proper warnings if "deliberately
coercive or improper tactics" were used in the first interrogation. 470 U.S. at
314, 105 S.Ct. 1285. This rule, however, relates to situations in which the
tactics used in the first, improper interrogation had a coercive effect that led to
the later admissions. Nothing of that sort happened here. As we have noted,

Brosius did not provide any new, incriminating information during the
interviews on June 2. He was not even in the position of the defendant in
Elstad, who had "let the cat out of the bag" when he was initially questioned.
Brosius's statements during the June 2 interviews cannot have coerced him to
make his subsequent confession.
IV.
52

Brosius's final argument is that his confession should be suppressed under

Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). In
Edwards, the Supreme Court held that "an accused... having expressed his
desire to deal with the police only through counsel, is not subject to further
interrogation by the authorities until counsel has been made available to him,
unless the accused himself initiates further communications, exchanges, or
conversations with the police." Id. at 484-85, 101 S.Ct. 1880. Brosius maintains
that he requested counsel during the interview on June 2 and therefore his
subsequent questioning without counsel was improper.

53

We reject Brosius's Edwards argument. Edwards applies only where the suspect
makes a request for counsel while in custody. See, e.g., United States v. Wyatt,
179 F.3d 532, 536 (7th Cir.1999) (citing cases); United States v. Bautista, 145
F.3d 1140, 1146 (10th Cir.1998); cf. Alston v. Redman, 34 F.3d 1237, 1249 (3d
Cir.1994) (Edwards does not apply where counsel was requested outside the
context of "custodial interrogation"). Here, because Brosius was not in custody
on June 2, Edwards does not apply.

V.
54

For these reasons, we affirm the order of the District Court.

Notes:
1

The ninth Justice, Justice Frankfurter, did not vote to affirm or reverse but
stated the Court should have put the case down for reargument. 346 U.S. at
150, 73 S.Ct. 1045

See Burns, 346 U.S. at 154-55, 73 S.Ct. 1045 (Douglas, J., dissenting).

This provision states:

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....
4

Special Agent Nash's testimony on this point was apparently hearsay. Under
Mil.R.Evid. 104(a), a trial judge is not bound by the rules of evidence other
than those pertaining to privileges and may consider hearsay in a suppression
hearingSee United States v. Dababneh, 28 M.J. 929, 934 (N.M.C.M.R. 1989)
quoting Bourjaily v. United States, 483 U.S. 171, 178, 107 S.Ct. 2775, 97
L.Ed.2d 144 (1987). Hearsay may be considered in a suppression hearing in a
federal court. United States v. Raddatz, 447 U.S. 667, 679, 100 S.Ct. 2406, 65
L.Ed.2d 424 (1980).