United States v. Swafford
ACM S32435
A.F.C.C.A.Dec 4, 2017Background
- Appellant (A1C Swafford) was convicted at a special court-martial for wrongful use of marijuana based on a positive urinalysis taken after a prior court-martial (Swafford I) and an AFOSI interview on 22 April 2016. Sentence: bad-conduct discharge, 45 days confinement, forfeiture of $500 for one month (as approved).
- During Swafford I, Capt. PC submitted a Notice of Representation asserting an attorney-client relationship and requesting no interviews without counsel; Appellant later pleaded guilty under a PTA in Swafford I and was confined 29 March 2016.
- While still in post-trial confinement for Swafford I, Appellant was transported for AFOSI questioning about a March 2016 positive urinalysis; Capt. PC was not present, Appellant waived Article 31 rights and declined counsel, and consented to searches.
- AFOSI found phone texts and interviewed A1C JS, who implicated Appellant in March 2016 marijuana use; new charge preferred and referred in May 2016; Capt. PC was re-notified but by then representation had ended and Major AC was appointed in July 2016.
- Appellant contended trial counsel was ineffective for not moving to suppress statements taken in April 2016 on the ground they violated his rights to counsel (Fifth, Sixth, and Mil. R. Evid. 305(c)(3)). The court reviewed constitutional and rule-based protections and found no violation and no prejudice.
Issues
| Issue | Swafford's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether Article 31/Fifth Amendment right to counsel was violated by the April 2016 interview | Appellant argued he had invoked counsel and statements were taken in violation of right to counsel | Gov’t: Appellant was properly advised and intelligently waived Article 31 rights; no Fifth Amendment violation | No Fifth Amendment violation; waiver was valid |
| Whether Sixth Amendment right (offense-specific) attached to the April interview | Appellant argued prior representation by Capt. PC extended to the new charge | Gov’t: Sixth Amendment attaches only to charged offenses; new charge was separate so Sixth Amendment did not attach | Sixth Amendment did not attach to the new charge under Cobb elements test |
| Whether Mil. R. Evid. 305(c)(3) provided broader protection and was violated | Appellant argued the Rule gives expanded protection when accused has appointed counsel, so statements were inadmissible | Gov’t: The April questioning did not concern the preferred Swafford I charges and did not fall under 305(c)(3) protection | Court held 305(c)(3) protections are broader than Cobb but were not violated on these facts (no "concerned" connection) |
| Whether counsel was ineffective for failing to move to suppress evidence | Appellant claimed prejudice from counsel’s failure to file suppression motion | Gov’t: Even if counsel omitted the motion, Appellant cannot show a meritorious motion or prejudice | Ineffective assistance claim denied for lack of prejudice; no reasonable probability motion would have succeeded |
Key Cases Cited
- Cronic v. United States, 466 U.S. 648 (ineffective-assistance framework for structural error)
- Wiggins v. Smith, 539 U.S. 510 (Strickland prejudice standard applied)
- Strickland v. Washington, 466 U.S. 668 (standard for deficient performance and prejudice)
- Jameson v. United States, 65 M.J. 160 (need reasonable probability a suppression motion would be meritorious)
- McConnell v. United States, 55 M.J. 479 (ineffective assistance when failure to move to suppress requires showing motion likely meritorious)
- Montejo v. Louisiana, 556 U.S. 778 (Sixth Amendment invocation/waiver principles)
- Cobb v. Texas, 532 U.S. 162 (Sixth Amendment offense-specific/Blockburger elements test)
- Shatzer v. Maryland, 559 U.S. 98 (limits on re-initiation after invocation of counsel under Fifth Amendment)
- Roberson v. Arizona, 486 U.S. 675 (custodial request for counsel principle under Fifth Amendment)
- Blockburger v. United States, 284 U.S. 299 (same-elements test)
- Gutierrez v. United States, 66 M.J. 329 (de novo review of claimed counsel-right violations)
- Wattenbarger v. United States, 21 M.J. 41 (Sixth Amendment attachment in unusual military circumstances)
- Adams, 45 C.M.R. 175 (preferral requirement as baseline for Rule-based Sixth Amendment protections)