Charges Over Military Shooting Baffle Judge

     MANHATTAN (CN) – A federal judge wants an explanation of why a Marine faces charges for the accidental, nonfatal shooting of a Navy corpsman in Iraq five years ago.
     Wilfredo Santiago, a Marine Corps corporal, is charged with one count of reckless assault and two counts of making false statements following the January 2008 shooting of Michael Carpeso, while the two men were serving at Camp Echo in Iraq.
     “The court finds this case troubling, and the government’s response to my inquiries has done little to mitigate my unease,” U.S. District Judge Colleen McMahon wrote. “How this court became involved, in 2013, in an internal military matter involving conduct committed in Iraq in 2008, is its own conundrum.”
     Santiago moved to suppress the statements he made to a lieutenant investigating the shooting, and sought to dismiss the indictment on the ground that the Marine Corps and the U.S. Department of Justice intentionally delayed prosecution to gain a tactical advantage and deprive him of his rights.
     McMahon declined to do any of that, stating that the “record needs considerable amplification, both factual and legal, before I can consider and rule on defendant’s motion to dismiss the indictment.”
     According to the government’s case, a supervising officer had ordered Santiago on Jan. 26, 2008, to return an M9 and three magazines to Carpeso after an Iraqi soldier used them on a mission. Santiago entered a trailer, where Carpeso was sitting on a cot. As Carpeso bent down to place the magazines in his pants pocket, he was shot in the head at close range.
     The bullet entered Carpeso’s left temple, ruptured his eye, went through his skull and exited his right cheek.
     Santiago told investigators that Carpeso shot himself, but the investigating lieutenant suspected Santiago accidentally shot Carpeso amid speculation that he was prone to “dry-shooting” and “quick-drawing” his M9.
     The Naval Criminal Investigative Services got involved, and Santiago recanted his story, stating that he lied about his involvement in the accidental shooting because he was “scared of the reactions of my fellow team members, and of the consequences.”
     In his attempts to have his statements withdrawn, Santiago argued that his admission was coerced because he was told by superior officers that he needed to “come clean” or he would be severely punished.
     Santiago completed his tour in Iraq in the spring of 2008, and was discharged from active duty. He officially received an honorable discharge from the Marine Corps as a reservist in June 2011.
     McMahon noted that Santiago had, up until that moment, been subject to the Uniform Code of Military Justice, and thus faced with court-martial proceedings.
     The U.S. Attorney’s Office says the Naval Criminal Investigative Service (NCIS) and the Staff Judge Advocate’s Office asked the Department of Justice to determine whether Santiago should face criminal charges for his conduct.
     That ultimately led to an indictment alleging that Santiago shot Carpeso as a result of his reckless handling of his M9 pistol.
     “As far as this court knows, Santiago’s is the first case in which MEJA [the Military Extraterrorial Jurisdiction Act] has been invoked to try a serviceman who was subject to court-martial, and known to be subject to court-martial, but who was not court-martialed – for reasons as yet unknown to the court – despite Congress’ plain directive that active duty service personnel should be tried by court-martial, not in civilian courts,” McMahon wrote.
     Santiago’s motion to suppress stems from his claim that the statements he made to the Marine Corps and NCIS were obtained in violation of Article 31 of the Uniform Code of Military Justice.
     But McMahon rejected that notion. “The failure to advise Santiago of his rights pursuant to Article 31 of the UCMJ (assuming there was such a failure) cannot be used as the basis of a motion to suppress, because Article 31 does not apply to a trial in a civilian court,” she wrote (parentheses in original).
     Federal courts also “have strictly construed Article 31 to apply only to evidence in trials by court-martial and have refused to expand its reach to federal civilian court proceedings,” McMahon added.
     Santiago also sought to suppress statements he made during the Navy’s investigation on the ground that they violated his Miranda rights. He further argued that he was “in custody,” even though he was never handcuffed or detained.
     The investigating officer noted, however, that Santiago remained calm during the encounter, and that he was not accused of any wrongdoing when they spoke.
     “The government suggests that these are hardly the hallmarks of a custodial interrogation,” McMahon wrote. “In the civilian world, I would agree with alacrity. But in a classically hierarchical institution like the military, where a subordinate has no choice but to obey the lawful order of a superior, a ‘reasonable person’ in defendant’s position might well feel ‘coerced’ to participate in what is described to him as a ‘voluntary’ interview with a superior officer – even more ‘coerced’ than a civilian feels when a police officer stops him and ask him questions.”
     McMahon cautioned: “That does not mean, however, that every time a superior questions a subordinate in the military, the subordinate is ‘in custody’ within the meaning of Miranda.”
     Miranda rights are triggered only when a suspect is questioned while in custody, McMahon continued.
     This is a “significantly higher threshold” than that of the U.S. Military “in order to deal with the unique problem confronting servicemen and women who, when questioned by a superior, are required to respond or face discipline,” the 37-page opinion states.
     “In short, I conclude that defendant’s statements … cannot be suppressed under Miranda because” his questioning was not “custodial,” in that Santiago was never formally arrested,” McMahon wrote.
     The government blames “a communication breakdown within the USMC” for the five-year delay between incident and indictment, according to the ruling.
     “I have absolutely no idea what that means, so I cannot possibly decide whether it masks some improper purpose” as Santiago contends, McMahon wrote.
     “But I cannot imagine what dog could have eaten that homework, and then failed to regurgitate it during the forty-two months while the Marine Corps retained UCMJ jurisdiction over defendant,” she added. “It is particularly hard to fathom since Santiago was back in the United States – with his commanding officer’s recent decision to court-martial presumably right there in his file – only a few weeks after the on-site factual investigation concluded. Neither can I imagine how the lost file would have come to be found after Santiago was no longer of any concern to the Marine Corps. Anyway, I suspect that the government would have come out and said so if all we were talking about is a lost file.”
     Santiago’s due process motion requires the court to first establish why he was not court-martialed when it lay within the Marines’ power to do so, and why it took another year and a half to indict him civilly after he ceased to be subject to UCMJ, the judge said.
     A planned hearing “goes beyond what the parties originally anticipated, and cannot be held next week – or next month, either, given the court’s trial schedule and the amount of time it will take for the government to get all witnesses together,” McMahon added.
     She offered to arrange a two-way, real-time communication to provide testimony for the beginning of trial, Oct. 21.

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