Filed: May 01, 2015
Latest Update: Mar. 02, 2020
Summary: The court explained, however, [a]lthough, defense counsel revealed that he had represented Sergeant Lawrence, the record does not, reflect the nature and extent of that representation or whether that representation involved, a criminal proceeding or was in any way related to appellants case.
UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS
UNITED STATES
v.
Senior Airman VEON D. SELMAN
United States Air Force
ACM 38626
1 May 2015
Sentence adjudged 25 March 2014 by GCM convened at Eielson Air Force
Base, Alaska. Military Judge: Christopher M. Schumann (sitting alone).
Approved Sentence: Bad-conduct discharge, confinement for 15 months,
and reduction to E-1.
Appellate Counsel for the Appellant: Major Anthony D. Ortiz and Brian L.
Mizer, Esquire.
Appellate Counsel for the United States: Major Roberto Ramírez and
Gerald R. Bruce, Esquire.
Before
ALLRED, HECKER, and TELLER
Appellate Military Judges
OPINION OF THE COURT
This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
under AFCCA of Practice and Procedure 18.4.
TELLER, Judge:
The appellant was convicted by a military judge sitting alone, in accordance with
his pleas, of failure to obey a lawful general order, distribution of hydrocodone and
cocaine, use of cocaine, and attempted manufacture of cocaine1 in violation of Articles 92
and 112a, UCMJ, 10 U.S.C. §§ 892, 912a. The court sentenced him to a bad-conduct
1
Although the appellant pled guilty to manufacturing cocaine with the intent to distribute, the military judge found
his plea of guilty to that specification improvident and found him guilty only of attempted manufacture with the
intent to distribute.
discharge, confinement for 15 months, and a reduction to E-1. The sentence was
approved as adjudged.
On appeal, the appellant contends: (1) the military judge erred by not fully
inquiring about the defense counsel’s representation of another Airman on indirectly
related charges; (2) due to that representation, a post-trial hearing should be ordered to
ascertain whether trial defense counsel’s performance was deficient; (3) his guilty plea to
manufacturing cocaine, which supported the military judge’s finding of guilt to the lesser
included offense of attempted manufacture of cocaine, was improvident both as to the
offense charged and the lesser included offense; (4) a rehearing should be ordered
because the staff judge advocate advising the special court-martial convening authority
on the preferral and forwarding of charges was a victim in this case and gave victim-
impact testimony at appellant’s court-martial; and (5) he was subjected to illegal pretrial
punishment.
Background
The appellant was a security forces patrolman assigned to Eielson Air Force Base,
Alaska. In late summer and fall of 2013, an investigation by the Air Force Office of
Special Investigations (AFOSI) implicated the appellant in the sale of prescription
narcotics and a scheme to buy, dilute, and resell cocaine.
In early September 2013, an Airman working as an AFOSI informant asked the
appellant if he would sell him some of his prescribed hydrocodone (Vicodin). After the
appellant said he would get back to him, the informant then suggested to another subject,
Airman Bragassa, that the appellant might sell him the medication. Airman Bragassa
contacted the appellant and purchased 10 Vicodin pills from him. In the course of this
transaction, Airman Bragassa told the appellant he planned to distribute some of the pills
to another Airman, who, unbeknownst to the appellant and Airman Bragassa, was also an
AFOSI informant. The appellant contacted that Airman and eventually sold him 10
Vicodin pills. For this, the appellant pled guilty to distributing hydrocodone on divers
occasions.
After those transactions, AFOSI arranged to have the two informants approach the
appellant about obtaining and distributing other narcotics. The informants told the
appellant they had contacts interested in buying drugs, and could supply the money if the
appellant could obtain the drugs. The plan that eventually emerged entailed the
informants providing $300 each, which the appellant would use to buy cocaine from a
civilian supplier. The Airmen would then dilute that cocaine, using instructions the
appellant found on the Internet, to essentially double the product and make a profit. The
appellant asked the informants to find a location to process the cocaine and told them to
pick up certain supplies.
2 ACM 38626
After the informants rented a hotel room in nearby North Pole, Alaska, AFOSI
secretly installed video recording equipment in the room. The appellant bought the
cocaine and brought it to the informants’ room where he tested it by placing a small
amount on his tongue. He handed the cocaine to one of the informants and began
preparing a mixture of baking soda and water, which was going to be used to cut the
cocaine. All this activity was recorded on video. As the appellant was preparing the
baking soda, AFOSI agents entered the room and took the appellant into custody. The
appellant pled guilty to using and distributing cocaine. He also pled guilty to
manufacturing cocaine with the intent to distribute, but the military judge found his guilty
plea to this specification improvident and found him guilty only of attempted
manufacture with the intent to distribute.
While the appellant was awaiting trial, his mother asked him what he knew about
the lawyers who were defending and prosecuting the case. The appellant used his access
to the base personnel roster to obtain a list of the legal office staff, including their social
security numbers, and e-mailed the list, along with the names of his defense team, to his
mother. There was no evidence that the information was ever misused. For this, the
appellant pled guilty to failing to obey a lawful general regulation, Air Force Instruction
33-332, Air Force Privacy and Civil Liberties Program (5 June 2013), by wrongfully
transmitting individuals’ social security numbers to a personal e-mail account.
Conflict of Interest Inquiry
The day before the appellant’s court-martial, Airman Bragassa pled guilty before
the same military judge to various offenses involving illegal drugs, as well as prescription
and over-the-counter medication. He was represented by the same senior defense counsel
(SDC) who represented the appellant. The appellant asserts that the military judge erred
by not conducting a more extensive inquiry into the SDC’s potential conflict of interest in
representing both Airmen. He argues the court should remand the case for additional
fact-finding regarding the existence and impact of any conflict.
“It is well settled that conflicts of interest are analyzed under the ‘ineffective
assistance of counsel’ rubric . . . .” United States v. Lee, 66 M.J. 387, 391
(C.A.A.F. 2008) (Ryan, J., dissenting). Allegations of conflicts of interest during
ineffective assistance of counsel inquiries are reviewed de novo. United States v. Sales,
56 M.J. 255, 258 (C.A.A.F. 2002); United States v. Smith,
36 M.J. 455 (C.M.A. 1993)
(applying a de novo-level review to a conflicting interest claim).
As a general rule, “any deficiencies in counsel’s performance must be prejudicial
to the defense in order to constitute ineffective assistance under the Constitution.”
Strickland v. Washington, 466 U.S. 668, 692 (1984). One exception to the general rule is
that such prejudice is presumed “when counsel is burdened by an actual conflict of
interest.” Id (citing Cuyler v. Sullivan,
466 U.S. 335, 345–50 (1980)). The Supreme
Court has interpreted an actual conflict of interest in this context to be “a conflict that
3 ACM 38626
affected counsel’s performance -- as opposed to a mere theoretical division of loyalties.”
Mickens v. Taylor, 535 U.S. 162, 171 (2002) (emphasis in original).
Accordingly, in order to find a Sixth Amendment2 violation based on a conflict of
interest, the appellant must show that (1) counsel actively represented conflicting
interests and (2) the actual conflict of interest adversely affected counsel’s performance.
Cuyler, 446 U.S. at 349–50; see also
Smith, 36 M.J. at 457 (Crawford, J., concurring).
Our superior court has established a rebuttable presumption that the first element of the
test is established whenever there is multiple representation and the military judge has not
conducted a suitable inquiry3 on the record. See United States v. Breese,
11 M.J. 17, 23
(C.M.A. 1981)). The absence of an inquiry “does not reduce the [appellants]’s burden of
proof; . . . [the appellant must still] establish that the conflict of interest adversely
affected his counsel’s performance.”
Mickens, 535 U.S. at 173–74.
In this case, the record contains no indicia that the presumed conflict adversely
affected the SDC’s performance, and the appellant has pointed to none. Although the
military judge did not conduct a sufficient inquiry to establish knowing and intelligent
waiver of conflict-free counsel, he did address the potential conflict briefly on the record:
[Military Judge]: Airman Selman, I don’t necessarily . . . I
don’t need to know what you talked about
with your current lawyers, but I’m
assuming that, in the process of your
discussions with them, you understood that
[the SDC] participated in yesterday’s case
with regard to Airman Bragassa?
[Appellant]: Yes, sir.
[Military Judge]: Her participation in that case doesn’t, in
any way necessarily, prohibit her from
defending you, as long as she is capable
and able to fully represent your interest in
this case, without any allegiance to her
2
U.S. CONST. amend. VI.
3
Where the potential for a conflict of interest arises due to multiple representation, the military judge must inquire
into that potential for conflict. See United States v. Smith, 36 M.J. 455, 457 (C.M.A. 1993). An accused may waive
his right to conflict-free counsel, but waivers must be voluntary, and they must be “knowing intelligent acts done
with sufficient awareness of the relevant circumstances and likely consequences.” United States v. Lee,
66 M.J. 387,
388 (C.A.A.F. 2008) (quoting United States v. Davis,
3 M.J. 430, 433 n.16 (C.M.A. 1977)) (internal quotation marks
omitted). The military judge “should inquire of the accused whether: (1) He has been advised of the right to
effective representation; (2) He understands the reasons for the attorney’s possible conflict of interest and the
dangers of the conflict; (3) He has discussed the matter with his attorney or if he wishes with outside counsel; and
(4) He voluntarily waives his Sixth Amendment protection.” United States v. Dorman,
57 M.J. 539, 543 (A.F. Ct.
Crim. App. 2002) (citing United States v. Breese,
11 M.J. 17, 22 (C.M.A. 1981)).
4 ACM 38626
attorney/client relationship with Airman
Bragassa. Do you understand that?
[Appellant]: Yes, sir.
[Military Judge]: And I’ll give [the SDC] an opportunity
here in a second to be heard, but the
question is, whether or not . . . ultimately,
is whether or not you have any concerns
about her representing you and whether or
not she’s representing you in your best
interest. So, [SDC], I’ll give you an
opportunity to at least be heard on that
issue if you’d like?
[SDC]: Sir, Your Honor, I don’t see any conflict
whatsoever. I just I talked to . . . or
actually, I had my [area defense counsels]
talk to both clients out of an abundance of
caution and got it, in writing,4 that they
were fine with that. Again, you know,
Airman Selman seemed [Inaudible.] in the
trial, and I don’t see how my
representation of Airman Selman is
somehow inhibited by my representation
of Airman Bragassa.
[Military Judge]: Okay. Airman Selman, do you have any
concerns at all with [the SDC]
representing you, in this case, despite her
connection to that previous case
yesterday?
[Appellant]: No, sir.
The area defense counsel was present for the colloquy and made no objection or
effort to correct or qualify the SDC’s assertions.
In the absence of a specific assertion of adverse effect by the appellant, we
examined the record for evidence that the conflict affected the SDC’s performance.
There is no indication that the SDC’s representation of Airman Bragassa inhibited her
recommendations with regard to his plea or overall trial strategy. The appellant pled
4
No written waiver of conflict-free counsel was made part of the record of trial.
5 ACM 38626
guilty to distributing hydrocodone on two occasions, one of which involved a sale to
Airman Bragassa. AFOSI had surveillance photos of the appellant’s distribution of
Vicodin to the informant, and the government introduced evidence during the Article 32,
UCMJ, 10 U.S.C. § 832, hearing of possible distribution to another Airman that was
never raised during the guilty plea inquiry. Accordingly, a plea with regard to the
specification involving Airman Bragassa was reasonable in light of the likely evidence
and may have avoided the admission of evidence of additional misconduct. During a
different part of the inquiry, the SDC asserted the appellant’s desire to take responsibility
for his actions as the reason for his decision not to contest the charge of completed rather
than attempted manufacture of cocaine. We have no reason to question that strategy
characterization by counsel.
We also examined whether the SDC’s duty to Airman Bragassa foreclosed
potential avenues of argument or cross-examination of government witnesses in the
appellant’s case. The potential adverse impact that might arise when counsel is prevented
from arguing that a co-actor (whom she also represents) bears a greater share of the
blame is rendered moot when the client pursues a strategy of taking full responsibility for
the misconduct alleged. Here, trial defense counsel even successfully elicited testimony
suggesting that the appellant’s distribution to Airman Bragassa was brought about by
AFOSI, allowing her to argue from an independent source of testimony that the appellant
was induced into the distribution and therefore less culpable. We see no evidence that the
SDC’s performance in the appellant’s case was affected adversely by her representation
of Airman Bragassa.
This case is distinguishable from United States v. Smith, where our superior court
ordered a post-trial fact-finding hearing to resolve factual issues related to a potential
conflict of interest. In Smith, trial defense counsel disclosed to the military judge that he
had previously represented Sergeant Lawrence, a likely government witness. Sergeant
Lawrence’s potential testimony was relevant to Smith’s intent to permanently deprive the
Air Force of computer equipment, the only contested issue at the trial. Although the
parties agreed to a stipulation of certain facts, the defense raised, then later withdrew, an
objection to any mention of Sergeant Lawrence in the stipulation. On appeal, the Court
of Appeals for the Armed Forces ordered a post-trial fact-finding hearing to “resolve the
question of multiple representation,” or, in the alternative, a complete rehearing of the
case. Smith, 36 M.J. at 457. The court held that “[a]n unrebutted Breese presumption is
sufficient . . . to require further inquiry.”
Id. The court explained, however, “[a]lthough
defense counsel revealed that he had represented Sergeant Lawrence, the record does not
reflect the nature and extent of that representation or whether that representation involved
a criminal proceeding or was in any way related to appellant’s case.”
Id.
In this case, the nature of the SDC’s representation was fully developed in the
record. The SDC represented another client in a criminal trial related to one of the drug
transactions alleged against the appellant, so the Breese presumption applies. However,
6 ACM 38626
independent of that presumption, the appellant must still show his counsel’s performance
was adversely affected by the dual representation. See Mickens, 535 U.S. at 173–74.
The appellant suggests that Smith stands for the proposition that in any case where
the military judge’s inquiry into a possible conflict of interest is deficient, an appellate
court should order what amounts to a performance review of trial defense counsel,
inquiring whether there was any deficiency, and whether such deficiency was related to
the multiple representation. We do not read Smith so broadly. The Smith court remanded
the case so that the convening authority could decide whether to order a hearing “to
resolve the question of multiple representation or order a rehearing on the findings and
sentence.” Smith, 36 M.J. at 457. The court also discussed what subsequent proceedings
might be appropriate depending upon the findings:
If the judge in the DuBay hearing determines (1) that there
was multiple representation; (2) that there was an actual
conflict of interest; and (3) that the conflict of interest
adversely affected counsel’s representation of appellant, the
judge shall set aside the findings and sentence and return the
record to the convening authority for a decision whether to
order a rehearing on the findings and sentence. If the judge in
the DuBay hearing finds (1) no multiple representation; or (2)
no actual conflict of interest; or (3) an actual conflict of
interest but no adverse effect on counsel’s representation of
appellant, the record will be returned to the Judge Advocate
General of the Air Force for submission to the Court of
Military Review for further review under Article 66, UCMJ,
10 USC § 866. Thereafter, Article 67, UCMJ, 10 USC § 867,
shall apply.
Smith, 36 M.J. at 457–58. Smith, therefore, clearly supports the proposition that once a
hearing is required to determine whether multiple representation occurred, the related
question of adverse impact should be resolved at the same hearing.
This case presents a narrower question. The court must decide, having found that
multiple representation occurred and that the military judge failed to conduct a sufficient
inquiry, whether the appellant is automatically entitled to a fact-finding hearing to review
trial defense counsel’s performance, or whether, under Strickland and Mickens, the
appellant must provide some evidence that the conflict affected counsel’s performance
before the court must order a hearing.
In asserting a claim of ineffective assistance of counsel, including conflicted
counsel, the appellant must identify the acts or omissions of counsel that are alleged to
constitute deficient performance. Strickland, 466 U.S. at 690. The appellant in this case
7 ACM 38626
has failed to specify any acts or omissions in his assignment of errors and he has made no
claim of ineffective assistance of counsel on appeal. See United States v. Lindsey,
48 M.J. 93, 99 (C.M.A. 1998). Nor has the appellant submitted an affidavit or
declaration that would provide facts from which this court could find such adverse
impact. Such an affidavit normally provides the initial assertion of fact that triggers the
analysis of whether a hearing is necessary. See United States v. Parker,
36 M.J. 269, 272
(C.M.A. 1993). In this case, we have no such trigger. Instead, we have only an
unsupported conclusion in the appellant’s assignment of errors that the existence of
multiple representation should trigger a hearing into the SDC’s representation of the
appellant. Such assertions in argument are insufficient to require a hearing in other cases
alleging ineffective assistance of counsel. See United States v. Moulton,
47 M.J. 227, 230
(C.A.A.F. 1997). We find no reason to apply a different rule in the specific area of
multiple representation. The appellant has the burden to make that initial showing of
impact, and the appellant here has not even identified a single basis for that claim, much
less provided evidence of it.
We are also guided by our superior court’s holding in United States v. Ellis,
47 M.J. 20, 22 (C.A.A.F. 1997), expressing the court’s reluctance to order an explanation
from a trial defense counsel “until appellant personally (not merely through argument of
appellate counsel) attacks his counsel.” (Emphasis in original). Although the invasion of
the attorney-client relationship considered by the Ellis court concerned declarations, we
find that rationale persuasive in the context of the post-trial hearing requested here as
well.
We find that a fact-finding hearing in this case is not necessary or appropriate.
The appellant has failed to meet his burden under Strickland and this assignment of error
is without merit.
Providence of Plea to Attempted Manufacture of Cocaine
The appellant also asserts that his guilty plea to manufacturing cocaine, which
supported the military judge’s finding of guilt to the lesser included offense of attempted
manufacture of cocaine, was improvident both as to the offense charged and the lesser
included offense.
A military judge must determine whether an adequate basis in law and fact exists
to support a guilty plea by establishing on the record that the “acts or the omissions of the
accused constitute the offense or offenses to which he is pleading guilty.” United States
v. Care, 40 C.M.R. 247, 253 (C.M.A. 1969). A military judge’s acceptance of a guilty
plea is reviewed for an abuse of discretion, and questions of law arising from the plea are
reviewed de novo. United States v. Inabinette,
66 M.J. 320, 322 (C.A.A.F. 2008). We
grant significant deference to the military judge’s determination that a factual basis exists
to support the plea.
Id. (citing United States v. Jordan,
57 M.J. 236, 238 (C.A.A.F.
2002)). Rejection of a guilty plea requires that the record show a substantial basis in law
8 ACM 38626
and fact for questioning the providence of the plea. Inabinette, 66 M.J. at 322 (citing
United States v. Prater,
32 M.J. 433, 436 (C.M.A. 1991)).
The appellant argues that his planned “combination of baking soda and cocaine
would have produced more of a substance, [but] would not have resulted in or ‘made’
cocaine, which is all that may be punished under the manufacturing provision of Article
112a, UCMJ.”5 The appellant cites for this proposition an unpublished summary
disposition by the Army Court of Criminal Appeals and Black’s Law Dictionary. The
appellant acknowledges that the Manual for Courts-Martial, United States (MCM), Part
IV, ¶ 37.c.(4) (2012 ed.), defines manufacture much more broadly. We find the
definition in the Manual is the more accurate statement of the law, and hold that the
appellant’s plea was provident.
Congress did not explicitly define “manufacture” in the UCMJ, so we apply the
normal rules of statutory construction to derive its meaning. Our superior court has
turned to the Controlled Substances Act, 21 U.S.C. §§ 801, et. seq., in determining
Congress’ intent in Article 112a, UCMJ. See United States v. Speer, 40 M.J. 230, 232 n.1
(C.M.A. 1994) (defining “distribute” with reference to legislative history of Article 112a,
UCMJ, that indicates a heavy reliance on the Controlled Substances Act); United States
v. Dillon,
61 M.J. 221, 223 (C.A.A.F. 2005) (examining 21 U.S.C. § 841 to define
“controlled substance” under Article 112a, UCMJ); see also United States v. Chenery,
29 M.J. 565, 567 (A.F.C.M.R. 1989) (referring to 21 U.S.C. § 802 to resolve claim of
multiplicity for distribution and manufacture of cocaine), United States v. Omick,
30 M.J. 1122, 1124 (N.M.C.M.R. 1989) (using 21 U.S.C. § 802(11) in establishing
meaning of “distribute” under Article 112a). The Controlled Substances Act defines
manufacture as:
[T]he production, preparation, propagation, compounding, or
processing of a drug or other substance, either directly or
indirectly or by extraction from substances of natural origin,
or independently by means of chemical synthesis or by a
combination of extraction and chemical synthesis, and
includes any packaging or repackaging of such substance or
labeling or relabeling of its container . . . .
21 U.S.C. § 802(15). Additionally, the President, in Part IV, paragraph 37(c)(4) of the
Manual, incorporated this definition for “manufacture” from 21 U.S.C. § 802. See
Drafter’s Analysis, MCM, A23-13 (2012 ed.). The military judge advised the appellant
of this definition during the providence inquiry.
5
We note that Article 112a(b)(1), UCMJ, 10 U.S.C. § 912a(b)(1), explicitly criminalizes not only the manufacture
of cocaine itself, but also the manufacture of “any compound or derivative” of cocaine. However, since the accused
was found guilty of attempted manufacture of cocaine itself, we assess his plea in that context.
9 ACM 38626
Applying that definition to this case, we find that the appellant’s plea was
provident as to the lesser included offense of attempted manufacture of cocaine. In the
providence inquiry, the appellant admitted bringing the cocaine to the hotel room with the
specific intent of compounding it with baking soda to increase the overall amount of
product they could sell. Compounding the cocaine with another substance falls explicitly
within the meaning of manufacture as set out by Congress in the Controlled Substances
Act and adopted by the President in the Manual. We find no substantial basis in law or
fact for questioning the providence of the plea.
Role of the Staff Judge Advocate
The appellant also claims that a rehearing should be ordered because the staff
judge advocate (SJA) advising the special court-martial convening authority on the
preferral and forwarding of charges was a victim in this case and gave victim-impact
testimony at his court-martial. This issue was not raised at trial nor during the clemency
process.
When an issue is forfeited by failure to raise it during the trial, 6 it is subject only to
plain error review. United States v. Harcrow, 66 M.J. 154, 156 (C.A.A.F. 2008). Under
a plain error analysis, the appellant must demonstrate that “(1) there was error; (2) the
error was plain and obvious; and (3) the error materially prejudiced a substantial right of
the [appellant].” United States v. Clifton,
71 M.J. 489, 491 (C.A.A.F. 2013) (citing
United States v. Powell,
49 M.J. 460, 464–65 (C.A.A.F. 1998)). The appellant bears the
burden of establishing plain error. United States v. Hardison,
64 M.J. 279, 281 (C.A.A.F.
2007).
Based upon the record before us, we find no error, plain or otherwise. It is clear
that the 354th Fighter Wing SJA was a victim of the conduct alleged in the Article 92,
UCMJ, charge, as her social security number was included in the e-mail sent to the
appellant’s mother. Also, we assume without deciding that after she became aware of
that offense, she could not properly act as the SJA in the appellant’s case. See Rule for
Courts-Martial 1106, Discussion (“The staff judge advocate . . . may . . . be ineligible
when, for example, [she] . . . has other than an official interest in the same case . . . .”).
However, the record contains no evidence that she served in such a role after the
conflict arose. In particular, with regard to the appellant’s assertion that the 354th Fighter
Wing SJA advised the special court-martial convening authority on the preferral and
forwarding of charges, the record indicates otherwise. The charge sheet indicates that a
judge advocate from the 673d Air Base Wing at Joint Base Elmendorf-Richardson
administered the oath supporting the preferral of charges. The 673d Air Base Wing SJA
6
In the absence of any evidence that the appellant knowingly declined to assert this claim at trial, we consider it
forfeited and not waived. See United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009) (noting a forfeiture is “the
failure to make the timely assertion of a right”).
10 ACM 38626
signed for the receipt of charges on behalf of the special court-martial convening
authority and detailed the trial counsel in the case.
The appellant has offered no evidence of actual consultation between the 354th
Fighter Wing SJA or her staff and the special court-martial convening authority after the
e-mail issue occurred in mid-December 2013. Instead, counsel seems to infer the
existence of such consultation from the SJA’s testimony, during the pre-sentencing
phase, concerning her involvement:
[Trial Counsel:] Ma’am, I’m going to ask, how are you
involved in this case today?
[SJA:] Well, as the Staff Judge Advocate, I
obviously advise the wing commander as
well as the commanders; so, when this
broke, my staff, my chief of justice, et
cetera, they were advising OSI and I was
advising the commanders as well as the
convening authority, at least the special
court-martial convening authority.
[Trial Counsel:] Okay. And when did you . . . approximately
when was that, ma’am?
[SJA:] That was the later part of last year, so
September, October, November timeframe
. . . that’s when it started anyway.
[Trial Counsel:] At some point, were you notified that there
was another issue in this case involving you
specifically?
[SJA:] Yes, in December of 2013.
[Trial Counsel:] What was that issue?
[SJA:] I . . . got a notification . . . [that] an e-mail
[sent by Airman Selman] contained my
social security number as well as eight
other of my staff members . . . .
We are convinced that the SJA’s description of her role in this case pertained to the
period of time before she became aware of the 16 December 2013 e-mail that transmitted
her own and her staff’s personal information. We find that the appellant failed to meet
11 ACM 38626
his burden to establish error, and absent evidence in the record that she improperly
advised a convening authority, any error that did occur was not plain error.
Illegal Pretrial Punishment
While awaiting trial, members of the appellant’s unit participated in five actions
that the appellant argues constituted illegal pretrial punishment. The parties presented
testimony on the issue, and the military judge made substantial findings of fact, which
were not clearly erroneous. We adopt the following facts, summarized from the military
judge’s ruling on the motion, pursuant to our fact-finding authority under Article 66,
UCMJ, 10 U.S.C. § 866.
At some point after the investigation began in September 2013, the appellant was
given a no-contact order prohibiting any contact with 17 members of the unit. It also
directed him not to come within a certain distance of specified security forces buildings.
Subsequent to that order, he was detailed to the Civil Engineer Squadron and relocated
his dorm room to that unit’s dormitory.
For approximately one week in September 2013, the appellant and several other
Airmen who had been relieved of duty were required to stand outside the security forces
building at 1650 where they were directed to observe retreat. This group was referred to
in testimony as the “ROD squad” in an apparent reference to their “relieved of duty”
status. They were required to adhere to the normal customs of standing at attention and
saluting during the playing of the national anthem. The only individuals required to
participate during that week were those suspected of misconduct.
While detailed to the Civil Engineer Squadron, the appellant was not allowed to
play on security forces intramural sports teams, but was allowed to play on the Civil
Engineer team. The appellant’s commander sent an e-mail to the Civil Engineer
Squadron commander suggesting that he not permit the appellant to play on that
squadron’s teams either. During one intramural basketball game outside the presence of
the appellant, the appellant’s commander told a noncommissioned officer serving as a
referee, “you’re Selman’s boy,” or words to that effect. That exchange was followed by
other comments in the hearing of unit members that the appellant would be “getting
locked up” or words to that effect.
On 17 December 2013, a senior noncommissioned officer assigned to security
forces sent out a squadron-wide e-mail saying that a member of the squadron “with an
ASVAB score lower than dirt” had been caught sending personally identifying
information (PII) via e-mail. Although the appellant had engaged in that activity the
previous day, the appellant was not mentioned by name, nor were any specific details of
the alleged offense included in the e-mail.
12 ACM 38626
One day in March 2014, after the appellant’s detail to the Civil Engineer Squadron
had ended, he and at least one other Airman who had been relieved of duty were required
to break up a patch of ice covering the length of a sidewalk outside the security forces
building. The sidewalk was being cleared in anticipation of the arrival of a general
officer who was scheduled to conduct a commander’s call in the building. After repeated
attempts, the sidewalk was cleared to the satisfaction of command, and the individuals
were excused and not required to attend the commander’s call.
Article 13, UCMJ, 10 U.S.C. § 813, provides in part, “[n]o person, while being
held for trial, may be subjected to punishment or penalty other than arrest or confinement
upon the charges pending against him, nor shall the arrest or confinement imposed upon
him be any more rigorous than the circumstances required to insure his presence.”
Courts have identified two types of activities that violate this provision: “(1) the
intentional imposition of punishment on an accused prior to trial, i.e., illegal pretrial
punishment; and (2) pretrial confinement conditions that are more rigorous than
necessary to ensure the accused’s presence at trial, i.e., illegal pretrial confinement.”
United States v. Fischer, 61 M.J. 415, 418 (C.A.A.F. 2005). In this case, since the
appellant was not confined, only intentional imposition of punishment is at issue.
Generally, the question of whether an “appellant is entitled to credit for a violation
of Article 13 is a mixed question of fact and law.” See United States v. Mosby,
56 M.J. 309, 310 (C.A.A.F. 2002). We review findings of fact under a clearly erroneous
standard and the ultimate question of whether the appellant is entitled to credit under
Article 13, UCMJ, de novo. See
Fischer, 61 M.J. at 418;
Mosby, 56 M.J. at 310;
United States v. Smith,
53 M.J. 168, 170 (C.A.A.F. 2000). The appellant bears the
burden of establishing his entitlement to credit. See
Fischer, 61 M.J. at 418.
The military judge affirmatively found no intent to punish with regard to each of
the instances cited in the assignment of error. Those findings were not clearly erroneous.
They were supported by some evidence with regard to each action which could
reasonably support the military judge’s conclusion.
Irrespective of any intent to punish, Article 13, UCMJ, is violated if the activity at
issue serves no legitimate, non-punitive purpose. See Smith, 53 M.J. at 172.
Accordingly, the question before this court is whether there was there any legitimate,
non-punitive purpose for each action the appellant asserts as illegal pretrial punishment.
While the e-mail reminder not to transmit PII via e-mail and the ice removal detail each
have an easily discernable non-punitive purpose, the remaining three actions cited on
appeal merit further analysis.
The appellant argues that the requirement to stand outside the security forces
building for retreat served only a punitive purpose. The first sergeant testified that he
required those relieved of duty to report to his office to ensure accountability and
13 ACM 38626
exchange information with those personnel. He incorporated the retreat requirement into
that daily routine. The military judge found that the first sergeant “required individuals
to participate in retreat in an effort to boost their morale and provide them with an
opportunity to reflect on their situation and hopefully motivate them in a positive
manner.” Military ceremonies are often used in furtherance of that objective. We find
that the first sergeant’s stated purpose did constitute a legitimate, non-punitive purpose
for the informal retreat formations in the manner in which they were conducted here.
Similarly, we find that there was a legitimate, non-punitive purpose for any
restrictions on the appellant’s ability to play on the squadron intramural team. Such
teams represent the squadrons with which they are affiliated. To the extent members of
the team fail to meet conduct or performance standards, such failure reflects on the unit.7
In this case, there was sufficient information available to the commander to support an
administrative decision to restrict the appellant’s representation of the squadron in
intramurals and other activities pending the outcome of the investigation.
Conversely, we find no legitimate, non-punitive purpose behind the commander’s
disparaging comment during the basketball game. First, we distinguish between
disparaging comments made towards the referee which happened to refer to the appellant
and those which were actually disparaging towards the appellant. We find that any
comment that the referee was “Selman’s boy” in that context would be unprofessional
and disparaging towards the referee, but not disparaging towards the appellant. The
comment that the appellant would be “getting locked up,” or words to that effect, carried
an inescapable disparaging implication that the appellant was a criminal. While the harm
in a single disparaging comment outside the appellant’s presence to a limited number of
Airmen is small, it is not insignificant. Not every perceived slight or sidelong glance
constitutes punishment, but commanders in particular, because of their role in the military
justice system, have a higher responsibility not to engage in gratuitous negative
comments about an accused.
We find that the appellant should have received relief for one day of unlawful
pretrial punishment for the day that the commander made public disparaging comments
suggesting that the appellant was a criminal. Where Article 13, UCMJ, violations
involve illegal pretrial punishment without confinement, the military judge must take
those facts into consideration when determining an appropriate sentence.
See United States v. Cruz, 25 M.J. 326, 331 (C.M.A. 1987). Since the military judge
found no illegal pretrial punishment, and therefor did not consider what impact such
punishment should have on the appellant’s sentence, we must either return the case for a
sentence rehearing or reassess the sentence ourselves.
7
We acknowledge the irony of upholding the restriction of team membership on the basis of professional conduct in
light of the testimony regarding the commander’s own behavior during one of these games. However, any
unprofessionalism on his part during intramurals does not invalidate the objectively rational purpose of restricting
team membership to those meeting fundamental standards of conduct.
14 ACM 38626
Sentence Reassessment
This court has “broad discretion” when reassessing sentences. United States v.
Winckelmann, 73 M.J. 11, 12 (C.A.A.F. 2013). However, before reassessing a sentence,
we must be confident “that, absent the error, the sentence would have been of at least a
certain magnitude.” United States v. Doss,
57 M.J. 182, 185 (C.A.A.F. 2002) (citing
United States v. Sales,
22 M.J. 305, 307 (C.M.A. 1986)). A “dramatic change in the
‘penalty landscape’” lessens our ability to reassess a sentence. United States v. Riley,
58
M.J. 305, 312 (C.A.A.F. 2003). Ultimately, a sentence can be reassessed only if we
“confidently can discern the extent of the error’s effect on the sentencing authority’s
decision.” United States v. Reed,
33 M.J. 98, 99 (C.M.A. 1991), aff’d,
36 M.J. 43
(C.M.A. 1992) (mem.). Even within this limit, the court must determine that a sentence it
proposes to affirm is “appropriate,” as required by Article 66(c), UCMJ, 10 U.S.C. §
866(c). In short, a reassessed sentence must be purged of prejudicial error and also must
be “appropriate” for the offense involved.
Sales, 22 M.J. at 307–08.
In light of the military judge’s determination that the commander had no punitive
intent, we are confident that he would have awarded no more than three-for-one credit for
the day the appellant was subjected to illegal pretrial punishment. In the context of the
appellant’s 15-month sentence, that change does not constitute a dramatic change in the
penalty landscape. Accordingly, we reassess the sentence to a bad-conduct discharge,
confinement for 453 days,8 and reduction to E-1. We are confident that such sentence “is
no greater than that which would have been imposed if the prejudicial error had not been
committed.” United States v. Suzuki, 20 M.J. 248, 249 (C.M.A. 1985). If the appellant’s
term of confinement has been served prior to this decision taking effect, we direct the
restoration of any pay and allowances that might have been forfeited under Article 58b,
UCMJ, 10 U.S.C. § 858b, during confinement attributable to any sentence in excess of
453 days.
Conclusion
The approved findings and the sentence, as reassessed, are correct in law and fact,
and no error materially prejudicial to the substantial rights of the appellant occurred.
Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c).
8
Confinement of 15 months that commenced on 25 March 2014 consisted of 456 consecutive days.
15 ACM 38626
Accordingly, the findings and sentence, as reassessed, are AFFIRMED.
FOR THE COURT
LEAH M. CALAHAN
Deputy Clerk of the Court
16 ACM 38626
