28 M.J. 780 | U.S. Navy-Marine Corps Court of Military Review | 1989
Lead Opinion
At a judge alone general court-martial, appellant was convicted, in accordance with his pleas, of two specifications of using cocaine and, contrary to his pleas, of one specification of soliciting a fellow officer to be derelict in his duties, in violation of, respectively, Articles 112a and 134 of the Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 912a and 934. Appellant was sentenced to confinement for six months, total forfeiture of all pay and allowances, a $2000.00 fine, and dismissal from the Naval Service. The convening authority approved the sentence as adjudged and, in accordance with a pretrial agreement, suspended all confinement for a period of two years from the date of trial.
The assignments of error for review by this Court relate solely to the guilty finding under the Article 134, UCMJ, charge of soliciting another to commit an offense. The facts underlying both the assignments and the charge are briefly summarized below.
Shortly after submitting a urine sample for urinalysis, appellant, on or about 20 October 1986, contacted the officer in his squadron responsible for the collection and custody of urine samples, Lieutenant Junior Grade Anderson, and asked him if he would replace appellant’s sample with a new sample. Lieutenant Junior Grade Anderson, however, would not permit the substitution of the appellant’s sample and
On 19 November at an official Navy reception on board the Norfolk Naval Base, appellant’s civilian attorney, in a conversation with the assistant staff judge advocate for the general court-martial authority over appellant’s command, revealed appellant’s confidential communication concerning his solicitation of Anderson.
Prior to arraignment, appellant’s new civilian attorney
The sole evidence presented by the Government to defeat appellant’s motion was the testimony of Anderson. Anderson acknowledged that he had not reported to anyone the solicitation by the appellant, who was his friend, during the entire 30-day period following the solicitation and only did so when questioned by his commanding officer. He further acknowledged that he originally had no intention of ever reporting it but, when the test came back positive, thought “well, maybe I should say something.” R. 12. Anderson vacillated but finally decided, according to his testimony, that he would come forward when the right circumstances occurred. Notwithstanding this testimony, however, 30 days had passed since the solicitation, and he had not yet determined to whom he would report the incident, nor had he determined what the “right circumstance” would be until questioned by his commanding officer. Finally, on cross-examination, Anderson admitted that after informing the commanding officer of the solicitation, he was counseled concerning his failure to report the incident earlier and received a non-punitive letter of caution for not having done so.
Despite the less than convincing testimony of Anderson and the stipulation of fact, the military judge denied appellant’s motion to suppress the evidence finding, inter alia, that “the evidence of the solicitation offense, with reasonable probability, would
Before this Court, appellant raises the following assignments of error:
I
THE VIOLATION OF THE ATTORNEY-CLIENT PRIVILEGE REQUIRES THE DISMISSAL OF CHARGE II AND ITS SPECIFICATION.
II
APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.
In essence, the appellant asserts that his attorney’s unauthorized disclosure to the Government of his confidential communication
In McCluskey the accused had consulted with a judge advocate regarding the legal aspects of his first and second marriages. Subsequently, the same judge advocate was appointed trial counsel to prosecute the accused on bigamy and other charges. In preparing for trial, the judge advocate drafted messages requesting that depositions be taken from relatives of the accused’s first wife to establish certain elements of the offense of bigamy and addressed additional correspondence to certain officials regarding aspects of the accused’s first marriage. Shortly thereafter, the judge advocate was relieved as trial counsel and thus did not prosecute the accused when his case came up for trial. In dismissing the charges affected by the breach of the confidential relationship, the Court of Military Appeals found that the judge advocate utilized the confidences tendered him in an effort to obtain evidence of sufficient weight for the Government to successfully prosecute his former client.
We view the McCluskey Court’s reversal as not resting on the judge advocate’s conflict of interest, but rather on the principle that evidence developed as a consequence of a breach of the attorney-client relationship may not be used to convict the client. In absence of such a principle, the accused would be wronged in law but the law would provide no effective remedy. Even more important, the primary purpose behind the confidentiality of the attorney-client relationship would be defeated.
Our decision to set aside the findings of guilty as to Charge II and its Specification is based on the denial of effective assistance of counsel guaranteed by the sixth amendment to the United States Constitution.
I
It is generally recognized that before an accused can be denied the right to effective assistance of counsel, the right to counsel must first attach under the sixth amendment. See Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981). Prior to United States v. Wattenbarger, 21 M.J. 41 (C.M.A.1985), the sixth amendment right to counsel did not attach in the military until preferral of charges. Wattenbarger, 21 M.J. at 43, citing United States v. Adams, 21 U.S.C.M.A. 401, 405, 45 C.M.R. 175, 179 (1972); and United States v. Moore, 4 U.S.C.M.A. 482, 486, 16 C.M.R. 56, 60 (1954). In Wattenbarger, the Court of Military Appeals held that “the test for sixth amendment purposes is whether adversary judicial proceedings have been instituted against a subject,” even though charges had not yet been preferred. Wattenbarger, 21 M.J. at 44. See also Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986) (by its very terms [the sixth amendment] is applicable only when the Government’s role shifts from investigation to accusation). Id., 475 U.S. at 430, 106 S.Ct. at 1146.
In the case sub judice, the breach of the attorney-client relationship forming the basis of the ineffective assistance of counsel claim occurred on 19 November. We conclude that, despite preferral date of 25 November, the Government’s role had shifted from investigation to accusation and that adversary proceedings had been instituted against the appellant prior to the date of counsel’s offending disclosure on 19 November so that his sixth amendment right to counsel had legally attached.
We derive the foregoing conclusion from both the nature of appellant’s offenses and the documents of record. Appellant had tested positive twice on urinalysis tests and these results were in the hands of the Government prior to his retaining civilian counsel in early November. See Attachment 1 to Appellate Exhibit I. Thus, at the time of the attorney’s unauthorized disclosure, the appellant was not a suspect in an
II
Having determined that the appellant’s right to counsel had already attached, we next turn to the issue of whether the offending disclosure constituted ineffective assistance of counsel in violation of appellant’s sixth amendment rights. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); United States v. Scott, 24 M.J. 186 (C.M.A. 1987). In resolving this issue, we initially find that the appellant’s communication to his civilian counsel concerning the solicitation of Anderson was confidential and his counsel’s disclosure of the communication to the Government was unauthorized and thus violated the attorney-client relationship to the detriment of the appellant.
The Government argues, as it did in United States ex rel. Shiflet v. Lane, that no sixth amendment violation can occur where Government officials have not made an affirmative intrusion into the privileged relationship between client and attorney. We disagree, and conclude, as did the lower court in Shiflet, that intentional Government intrusion has never been, nor should it be, the only benchmark of a sixth amendment claim.
Thus, we conclude that the appellant must prevail on his ineffective assistance of counsel claim as to Charge II since he has established both incompetence and prejudice under the test set forth by the Supreme Court and adopted by the United States Court of Military Appeals:
*785 First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064; and United States v. Scott, 24 M.J. at 187.
Accordingly, we set aside the findings of guilty to Charge II and its specification and dismiss that charge. The remaining findings of guilty are affirmed. Upon reassessment of the sentence we set aside the fine of $2,000.00. Otherwise, we affirm the sentence as approved on review below including the dismissal from the Naval Service.
. These two positive urinalysis tests formed the basis for the two use of cocaine offenses set forth in Specifications 1 and 2 of Charge I.
. Although the record contains no explanation or motive for the attorney’s unauthorized disclosure, the Court will presume for the purposes of this review that his breach of the attorney-client relationship was unintentional.
. Prior to trial, appellant discharged the civilian attorney as a result of the breach of the attorney-client relationship and retained another civilian attorney who represented him at trial along with assigned military counsel.
. The attorney in question voluntarily reported the matter to his state bar of Virginia, as a possible violation of Canon 4 of Virginia’s Code of Professional Responsibility mandating that a lawyer preserve the confidences and secrets of a client. Attachment 1 of Appellate Exhibit I. It is noted that the Professional Conduct of Judge Advocates, promulgated by the Judge Advocate General of the Navy, is now applicable to civilian attorneys practicing before our courts-martial. JAG INSTRUCTION 5803.1, dtd 26 October 1987, paragraph 4.C.(1). Rule 1.6 of the Rules of Professional Conduct of Judge Advocates mandates that an attorney protect his client’s confidences. See also Rule 1.6(a) of the American Bar Association Model Rules of Professional Conduct which provides, ‘‘[a] Lawyer shall not reveal information relating to representation of a client unless the client consents after consultation____’’ See also R.C.M. 502(d)(6), Discussion at (B) (Defense counsel must ... represent the accused with undivided fidelity and may not disclose the accused’s secrets or confidences except as the accused may authorize (See also Mil.R.Evid. 502)).
. The Circuit Court of Appeals in reversing the District Court did not address the issue of application of the sixth amendment, because they ruled on the threshold question that the sixth amendment had not yet attached at the time of the unauthorized disclosure. We thus consider the sound reasoning and rationale of the District Court to be both viable and applicable to the resolution of this appeal.
. The principle of confidentiality is given effect in both the attorney-client privilege and the rule of confidentiality. The attorney-client privilege is a rule of evidence that applies in judicial proceedings, while the rule of confidentiality is a mandate of professional ethics that applies even beyond the courtroom doors. The confidentiality rule covers all information relating to the representation from whatever the source, not merely to matters communicated in confidence by the client and prohibits the disclosure of such information except as authorized or required by the Rules of Professional Conduct or other law. ABA Model Rules of Professional Conduct, Rule 1.6, Comment (5).
. We specifically do not base our decision on Military Rule of Evidence (Mil.R.Evid.) 511(a), Manual for Courts-Martial, United States, 1984, which provides:
Evidence of a statement or other disclosure of the privileged matters is not admissible against the holder of the privilege if disclosure was compelled erroneously or was made without an opportunity for the holder of the privilege to claim the privilege.
Although the unauthorized disclosure by the civilian attorney clearly falls within Mil.R.Evid. 511(a), neither the civilian attorney nor any of the Government officials to whom the confidential matter was communicated testified at trial. Accordingly, Mil.R.Evid. 511(a) was not violated. Nor are we willing to extend the exclusionary rule of Mil.R.Evid. 511(a) via the fruit of the poisonous tree doctrine so as to artificially create a basis for the dismissal of the charge.
. The Shiflet Court distinguished the Supreme Court decision in Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977), by noting that Weatherford merely held that it is incorrect to apply a per se rule finding a sixth amendment violation solely because the Government overheard a privileged communication. Rather, the Weatherford Court looked for prejudice to the defendant and found none "since none of the information overheard was used in either a direct or indirect manner in the prosecution of the defendant.” Shiflet, 625 F.Supp. at 687 (quoting Weatherford, 429 U.S. at 552, 97 S.Ct. at 842).
. Although there was no Government intrusion in obtaining the unauthorized disclosure, it must be noted that Government officials nevertheless affirmatively initiated an investigation based on the information knowing that it was disclosed to them in an unauthorized manner.
. We note that the 2-year period of the suspension of the sentence to confinement has run in its entirety prior to the date of this decision and, accordingly, that part of the sentence has been remitted assuming it was not sooner vacated. We further note that the sentence to a fine was not based on either unjust enrichment or other good reason of record. In view of our action of setting aside the fine upon reassessment, however, we need not decide whether a fine was appropriate under the circumstances. See United States v. Czeck, 28 M.J. 563 (N.M.C.M.R. 1989).
Concurrence Opinion
(concurring/dissenting):
I concur that Military Rule of Evidence (Mil.R.Evid.) 511(a) was not violated. I dissent from the majority’s dismissal of Charge II and its Specification on the basis of ineffective assistance of counsel. Appellant asserts two assignments of error. I will address both assignments of error in the order they are presented in his brief.
I
The Violation of the Confidential Communication Issue
The civilian attorney’s divulgence to the assistant staff judge advocate of his client’s conversation with Lieutenant Junior Grade Anderson was a violation of a confidence between client and attorney. Rule 1.6, ABA Model Code of Professional Conduct.
United States v. Turley and United States v. McCluskey are both conflict of interest cases ■ in which the trial counsel involved used client confidences, obtained in earlier representations of the accused, in prosecuting the accused. United States v. Green concerns a memorandum of expected testimony prepared by defense counsel at the request of the staff judge advocate and passed on to the trial counsel for use at trial. In the instant case, we are concerned with neither defense counsel’s assumption of duties in conflict with his client’s interests nor with a Government-instigated breach of confidentiality. The instant issue arises from the inadvertent disclosure by civilian defense counsel,
Military Rule of Evidence 511(a), Manual for Courts-Martial, United States, 1984, provides as follows:
Evidence of a statement or other disclosure of privileged matter is not admissible against the holder of the privilege if disclosure was compelled erroneously or was made without an opportunity for the holder of the privilege to claim the privilege.
(Emphasis added.) Clearly, the civilian attorney’s disclosure to the assistant staff judge advocate was unauthorized and, thus, falls squarely within the above-emphasized portion of MiLR.Evid. 511(a). However, neither the civilian attorney, nor any of the Government officials to whom the confidential matter was communicated, testified at trial. The evidence utilized to convict appellant on the charge in question consisted of a confessional stipulation of fact admitting each of the elements of the charged offense and signed by both appellant and his detailed defense counsel. The disclosure itself was not introduced into evidence. Consequently, Mil.R.Evid. 511(a) was not violated.
Thus, appellant’s pretrial request to suppress “all evidence discovered by the government ... as a result of a breach of the attorney-client relationship by” the civilian attorney (Appellate Exhibit I (emphasis added)) and his current assignment of error requesting that the charge be dismissed are apparently based on an application of the “fruit of the poisonous tree” doctrine to the civilian attorney’s unauthorized disclosure of his client’s confidences. Likewise, the military judge apparently utilized this approach in reaching a result based upon his finding that Lieutenant Junior Grade Anderson would have come forward with evidence of the solicitation even if his commanding officer had not approached him and that, therefore, the evidence would have been inevitably discovered. “Fruit of the poisonous tree” and “inevitable discovery” emanate from the exclusionary rule established in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914).
[t]he core rationale consistently advanced ... for extending the exclusionary rule to evidence that is the fruit of unlawful police conduct has been that this admittedly drastic and socially costly course is needed to deter police from violations of constitutional and statutory protections.
Nix v. Williams, 467 U.S. at 442-443, 104 S.Ct. at 2508-2509, 81 L.Ed.2d at 386-387. Thus, “[i]t is clear that the cases implementing the exclusionary rule ‘begin with the premise that the challenged evidence is in some sense the product of illegal governmental activity.’ ” Id., at 444, 104 S.Ct. at 2509, 81 L.Ed.2d at 387 (quoting United States v. Crews 445 U.S. 463, 471, 100 S.Ct. 1244, 1250, 63 L.Ed.2d 537 (1980)) (emphasis added in Nix).
In the instant case, the record is devoid of any police misconduct or governmental intrusion involving the appellant’s attorney-client relationship with his civilian attorney. Therefore, the exclusionary rule, the “fruit of the poisonous tree” doctrine, and “inevitable discovery,” are inapplicable. See Nix v. Williams, 467 U.S. 431, 104 S.Ct. at 2501; see also Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986).
Absent evidence that a defense counsel’s unauthorized disclosure of client confidences was prompted by the Government or was the product of his purposeful effort to further the Government’s cause at the expense of his client, evidence adduced by the Government as a result of a lawful investigation into facts gleaned from that disclosure is not subject to a constitutional rule of exclusion. There being no evidence in-
II
The Ineffective Assistance of Counsel Issue
Appellant’s second assignment of error, asserting Charge II and its specification must be dismissed on the grounds of ineffective assistance of counsel, is without merit.
The general rule in the military is that the “sixth-amendment right to counsel does not attach until preferral of charges.” United States v. Wattenbarger, 21 M.J. 41, 43 (C.M.A.1985). In Wattenbarger, however, it was “not entirely clear when charges had in fact first been preferred against appellant, a situation not confronted in earlier cited military cases.” Id., at 44. Stating that in “any event, the test for sixth-amendment purposes is whether adversary judicial proceedings have been instituted against a suspect ...,” id., the United States Court of Military Appeals concluded that under “the facts of this case, we are convinced that appellant’s sixth-amendment right to counsel attached within the meaning of Kirby v. Illinois [406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972)] and Estelle v. Smith, both supra, on December 19,1980, before his command-ordered mental examination.” Id. Previously, the Court had noted what these facts were:
(1) military authorities induced Australian authorities to waive jurisdiction and then accepted jurisdiction;
(2) after being placed in pretrial confinement the accused was advised of his rights at an impending Article 32 investigation, including his right to counsel;
(3) lawyers were made available for the impending pretrial investigation; and
(4) the doctor who conducted a command-ordered mental examination of appellant referred to an earlier dated charge sheet than the date of preferral of charges upon which Wattenbarger was tried.
Id., at 43-44.
In United States ex rel. Shiflet v. Lane, 815 F.2d 457, 464-65 (7th Cir.1987), the opinion which reversed the very case upon which the majority rely, Circuit Judge Ripple stated:
Just last Term, in Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986), the Supreme Court squarely reaffirmed that, “[b]y its very terms, [the sixth amendment] becomes applicable only when the government’s role shifts from investigation to accusation.” Id., 106 S.Ct. at 1146.
This is because, after the initiation of adversary criminal proceedings, “the government has committed itself to prosecute, and ... the adverse positions of government and defendant have solidified. It is then that the defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law.”
Maine v. Moulton, 474 U.S. 159, 106 S.Ct. 477, 484, 88 L.Ed.2d 481 (1985) (quoting United States v. Gouveia, 467 U.S. 180, 189, 104 S.Ct. 2292, 2298, 81 L.Ed.2d 146 (1984)). Indeed, this court has already stated that the “right to counsel attaches only when a defendant proves that, at the time of the procedure in question, the government had crossed the constitutionally-significant divide from fact-finder to adversary.” United States ex rel. Hall v. Lane, 804 F.2d 79, 82 (7th Cir.1986); see United States ex rel. Espinoza v. Fairman, 813 F.2d 117, 120-22 (7th Cir.1987); see also DeAngelo v. Wainwright, 781 F.2d 1516, 1519-20 (11th Cir.1986).
Here, Mr. Shiflet apparently decided that the circumstances surrounding the discovery of his wife’s murder made it prudent for him to consult counsel several hours after the body was discovered and while the police were still investigating the matter. Mr. Shiflet, however, cannot claim the protection of the sixth
[T]he suggestion that the existence of an attorney-client relationship itself triggers the protections of the Sixth Amendment misconceives the underlying purposes of the right to counsel. The Sixth Amendment’s intended function is not to wrap a protective cloak around the attorney-client relationship for its own sake any more than it is to protect a suspect from the consequences of his own candor. Its purpose, rather, is to assure that in any “criminal prosecutio[n],” U.S. Const., Arndt. 6, the accused shall not be left to his own devices in facing the “prosecutorial forces of organized society.” Maine v. Moulton, 474 U.S. at [170], 106 S.Ct. at 484 (quoting Kirby v. Illinois, 406 U.S. at 689, 92 S.Ct. at 1882).
Moran, 106 S.Ct. at 1146. We hold, therefore, that Mr. Shiflet cannot, under these circumstances, successfully contend that his sixth amendment rights were violated.
In the case before us, there was no preferral of charges nor had adversary judicial proceedings been instituted against the appellant at the time of the attorney’s disclosure.
Even if the appellant’s right to counsel had attached, there is no meritorious issue. Almost assuredly, the evidence would have been discovered. Even if the evidence would not have been discovered, the appellant is not entitled to relief under any known precedent. This statement includes United States ex rel. Shiflet v. Lane, 625 F.Supp. 677 (N.D.Ill.1985) rev’d, 815 F.2d 457 (7th Cir.1987), upon which the majority relies for their reasoning and rationale. In that case, the District Court stated:
Thus, in certain circumstances, the absence of an improperly motivated government intrusion combined with an extremely prejudicial disclosure may constitute a Sixth Amendment violation.
But in Shiflet there was a deliberate, intentional, disclosure by the defense counsel’s investigator to the Government.
In our case, the civilian counsel’s disclosure was unintentional.
In the tug-of-war of trial advocacy there are bound to be “loose lips,” at times, as defense counsel seek to serve their clients as best they can (even while at social events). But, in an adversary system, the “loose lips” of the defense should not be permitted to sink the Government’s “ship.”
I believe that the appellant’s assignment of error on the second issue is also without merit.
I would affirm the findings and sentence as approved on review below.
. "A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, ..."
. United States v. Brooks, 2 M.J. 102 (C.M.A. 1977), is a conflict of interest case in which confidential information was allegedly disclosed by the accused's counsel, under circumstances of "strict confidence”, to a chief of military justice who was later appointed assistant trial counsel in accused’s case. Id., at 104. The United States Court of Military Appeals did not resolve various "assumptions,” including whether the defense counsel believed he could consult with the chief of military justice for advice on matters relating to the defense, preferring instead to dispose of the case on the basis that the use made of the communication was harmless to the accused and that the conviction was "otherwise valid.” Id., at 105.
. See Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984), and Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed. 2d 441 (1963).
. At the time of the civilian attorney’s inadvertent disclosure on November 19, 1986, a stipulation of fact stated that "the accused’s squadron Commanding Officer had made no decision as to how to dispose of the charges and accordingly the GCM convening authority’s only involvement concerned an awareness of the situation and giving advice to the command.” Appellate Exhibit III. Charges were not preferred until six days after the disclosure.
. See n. 2 of the principal opinion.
