Appellant asserts the military judge erred by failing to suppress his statements to AFOSI, but he focuses on a different portion of the interview than did the Defense’s motion at trial. At trial, the Defense conceded Appellant effectively waived his rights to counsel and silence after the agents re-advised of his rights following the ten-minute break. The Defense’s contention at trial was that Appellant’s subsequent comments about feeling intimidated” was an unequivocal invocation of his Fifth Amendment right to silence. It was this “narrow” question that the military judge addressed and ruled on.
On appeal, Appellant asserts that his initial response when asked whether he wanted a lawyer, “Uh, yes? I don’t know. Like why, why would I need a lawyer,” was an unambiguous invocation of his Fifth Amendment right to counsel that the agents violated by failing to terminate the interview. The Government contends Appellant waived this issue by failing to raise it at trial. We agree that the issue was waived.
United States v. Sunday, AFCCA March 2021.