In February 2020, SSgt Flanner, USMC, was deployed to Kuwait as a contracting officer. He submitted four purchase vouchers for more than $30,000 for payment during that month. The Government claimed that they were fraudulent and NCIS opened an investigation into SSgt Flanner in May 2020. In May 2021, NCIS brought SSgt Flanner in for an interrogation. The SSgt asserted his right to have counsel present during the interrogation and the interview ended. After leaving the NCIS office, SSgt Flanner went to the Defense Services Organization on board Camp Pendleton, but was not detailed a military attorney.
Several more months passed without any apparent progress on the investigation. SSgt Flanner was now being held on Camp Pendleton on legal hold past his EAS. His family had already moved away in anticipation of his end of service. SSgt Flanner wished to resolve the matter and join his family. He asked a MGySgt in his command whether he would be detailed a military attorney to be present during an NCIS interview. After consulting with the Staff Judge Advocate, the MGySgt told SSgt Flanner that he would only receive counsel if he was charged.
In order to move the investigation towards resolution, SSgt Flanner contacted the NCIS agent and requested an interview. The NCIS agent noted that SSgt Flanner had been given “incorrect info on lawyer by command.” When SSgt Flanner arrived at NCIS in September 2021, the agent asked if he wanted to speak with her since he had invoked his right to counsel at their last meeting. SSgt Flanner told her that he had spoken with the MGySgt and now knew that he could not have counsel appointed until he was charged. SSgt Flanner then reviewed a rights waiver form, waived his rights, and was questioned by the agent.
In November 2022, the Government finally charged SSgt Flanner. His defense counsel moved to suppress his statements to NCIS, arguing that while SSgt Flanner voluntarily waived his right to counsel, he did not do so “knowingly and intelligently.” After hearing the motion, the Military Judge agreed that SSgt Flanner did not understand the right that he was waiving because he believed that he could not have an attorney with him during the interview.
Before proceeding to trial, the Government appealed this decision to the Navy-Marine Corps Court of Criminal Appeals. Article 62, UCMJ, allows the Government to appeal rulings that exclude evidence that is substantial proof of a material fact in the case. The Navy-Marine Corps Court determined that the Military Judge had not abused her discretion when she suppressed the statement. The Court found that while a defense counsel must be detailed when a servicemember is charged, there are other circumstances in which defense counsel can be assigned, such as when a servicemember is pending investigation for a matter that may lead to court-martial. The Court further found that the Military Judge applied the law properly in determining that SSgt Flanner’s waiver of his rights was not knowing or intelligent since he did not understand that he could have counsel present despite not yet being charged.
Although the Navy-Marine Corps Court of Criminal Appeals decided in favor of SSgt Flanner and sent the case back to continue to trial, the Government has now certified the issue in an appeal to the Court of Appeals for the Armed Forces. Article 67, UCMJ, requires the Court of Appeals for the Armed Forces to hear cases that a service’s Judge Advocate General sends for review. The Court has ordered SSgt Flanner to file a response and will likely set the case for oral argument in the next few months.
If you or your loved one is facing a court-martial or wants to appeal a court-martial conviction, you need someone with experience who knows the law. I have the experience you need. Please call Bill Cassara at (706) 445-2943 for a free consultation.