*1 STATES, Appellee, UNITED BOLKAN, Class, L. Airman First
Joshua Force, Appellant.
U.S.
No. 00-0673.
Crim.App. No. 33508. Appeals
U.S. Court
the Armed Forces.
Argued 2001. March Sept. 20,
Decided 2001. Appellant: Captain
For Dolan Patrick J. (argued); R. Lieu- Colonel James Wise and (on Timothy Murphy tenant W. Colonel brief). Appellee: Major
For Martin J. Hindel Dattilo, (argued); Anthony Major P. Colonel Bryan B. T. Sigmon, Major Lance brief). Baker, J., (on opinion concurring in filed the Wheeler result.
Sullivan, J., opinion. Chief delivered the dissenting filed CRAWFORD judgment of the Court. Effron, J., dissenting opinion. filed
Contrary pleas, appellant to his robbery victed officer members of the JS, Article violation of Uniform Code (UCMJ), Military Justice USC convening authority approved sen- tence of a bad-conduct The Court Appeals findings of Criminal affirmed unpublished opinion. in an granted following review of the issue: WHETHER APPELLANT’S SEN- BE BE- TENCE MUST SET ASIDE CAUSE THERE IS SOME EVIDENCE THE IN- IN RECORD WHICH FAIRLY *2 DICATES THAT APPELLANT DE- appellant The victim then masturbated and BE orally SIRED TO RETAINED IN THE copulated him. After the interview test, AIR FORCE DESPITE appellant HIS CONVIC- and screen told the victim that TION AND DEFENSE IM- he COUNSEL was comfortable and was “interested ... PLIED THAT A type PUNITIVE DIS- business.” CHARGE WAS AN APPROPRIATE week, Sometime the next Airman Miller PUNISHMENT. go through called the victim to the interview We hold if there was it was process. filming early February, and he harmless. appellant and apart- returned to the victim’s
ment. appel- Airman Miller asked to view FACTS tape. lant’s interview after view- minutes, ing tape the for several Airman Caught appellant a sex scheme in which grabbed throat, Miller the victim’s held taped by acts, performing JS sexual he hold, put a choke eight-inch and a serrated and his friend returned to the house to recov- knife to his neck. Airman Miller told the videotapes er by Appellant force. and they “change victim had a They of heart.” friend, Miller, Airman were students at yell told the they victim not to Language Defense Institute the Presi- lights Additionally, they “knock out.” [his] Monterey, dio January California. tape legs tried to he but resisted. Air- 1998, they went to San Francisco to attend man Miller told the victim that if he did not party. victim, party, “rave” At the cooperate, Navy some seals would return and “owner-producer” Productions, of Thrasher they finish where left off. second- purported film enterprise, approached adult Airman Miller’s statement. Air- While them. gave When the victim them his busi- knifepoint, man Miller held the victim at card, they expressed ness their concerns be- appellant videotape retrieved the and inter- they duty cause were active Air Force ser- left, logs. they view they Before warned the party vicemembers. Since the would not victim any- not to disclose them actions to hours, begin they for a few went with the body. apartment, victim to his they complet- where questionnaire, ed a including more than 70 Appellant’s testimony varied from the vic- questions preferences. about their sexual they tim’s. He admitted that went to the tapes victim’s house to After retrieve and inter- completing questionnaire, both logs, view but stated that when the knife they indicated were interested “this kind pulled Miller, out They they Airman work.” then left the victim’s house laughing they about it. go a.m., When left with the party. at 4:00 tapes, they they “silly faggot.” called the victim a called spend- the victim and asked about However, appellant admitted and ing night. agreed, Airman they He returned Miller were interested in the adult film apartment. to his morning, The next busi- the two happy ness and would be to be filmed for 50 left but were invited back for an interview performing dollars for various sexual acts. again and screen test. The interview rejected The court members the contention sisted questions concerning of several their robbery the knife was not used for the preferences, sexual they and whether could and that there was an amicable perform return of the certain sexual being acts while tapes appellant, possi- to Airman Miller and They agreed filmed. but asked about com- bly appellant Airman pensation. because Miller He said there was none. Before could have called and had amicable return leaving, they they told the victim would reth- tapes, they week, of the but did not. ink they the offer. The next called agreed videotape back and interview sentencing, prosecutor argued On filming. planning the members should look at the After completing preceded impact the second interview con- which victim, cerning preference more questions, sexual and the fact that lied to emphasized carry- masturbated before the camera. them. He that even after tee, plan choose between confinement their must ing out day took and bad-conduct Airman Miller the remainder Francisco, He “completely punitive discharge. might not ever sightsee in San it will recover from it and follow they Looking what had done.” unaffected life, factors, will be but he prosecutor the rest at these *3 in go society and use given chance to out punishment was a dishonorable confinement, intelligence. skills and his discharge, 10 total forfei- his tures, reduction to the lowest enlisted and Appeals, 2000 WL The Court of Criminal so, Even recommended bad- grade. he that “there is evidence of both noted confinement, discharge, 12 months’ conduct appellant’s express to remain on active desire forfeitures, total and reduction lowest duty not to and his desire be confined.” grade. Unpub. op. that at 5. The Court concluded hand, whole,” “[t]aking
Appellant, argument on the other made an as defense discharge that he wished to remain in lieu of unsworn statement counsel did not ask for a addition, discharge Air Force. and request in the “His prosecutor’s argument, defense trast lieu of the one asked for lengthy argument. During made a counsel that would easier for his client to endure. strenuously argument, circumstances, defense counsel we find no error Under these punitive against and a argued occurred.” Id.
discharge. She said: The asserts that trial defense give punitive discharge. But do not him a punitive inappropriately conceded a you conduct is that to such want being appropriate, that and brand for the rest of his life with a concession, judge when the heard such judge will instruct Contrariwise, inquiry. should made punitive you that a leaves an argues the Government person stigma [sic] inirradicable lengthy vigorous argument made a to as Airman Bolkan. service, keep appellant in the and the two are, of, effect, crime of quoted
The which he’s been convicted sentences above taken society day forgive According one him and out of the Govern- context. day forget ment, eighteen. one it. He’s He’s argument case .did young. you give He’s if him a naive. But of a constitute a concession going to rather, that’s follow light prosecu- charge, but “[i]n life. sentence, the rest of his When vigorous heavy for such a tion’s call nineteen, twenty-nine, fifty-nine, he’s sev- argued lowest trial defense counsel for the enty-nine. something society That is not possible which had some reasonable going forgive forget. ever probability acceptance.” Final Answer to Brief at 8. Countering argu- the assistant trial counsel’s
ment, appellant’s defense counsel made the following recommendation: DISCUSSION The defense submit that should Military have a accuseds constitution him hard give labor without right al and codal to the effective assistance him to reduce E-l and restrict him to VI; of counsel trial. U.S. Const. Amend. reprimand. base. And This 27, UCMJ, 827; Art. 10 USC see United stay permanently every
will
his file
MacCulloch,
see that in
commander
he has will
1994).
probably
to counsel is
right
file.
paramount
ensuring
the adver
right
system
properly.
only
then
sarial
functions
It was
Force,
forces,
coun
the armed
ensure
regarding
made her statement
all
independence
organi
and a
sels’
with trial defense
choice between confinement
Closing,
totally separate
zations
from the command
she said:
and staff
advocates’
offices.
Unit-
desire.
hold that
error
Cf.
Norfleet,
was harmless.
ethically charged
Defense counsel are
every
we ask counsel to determine
diligently representing their accused at trial.
might happen
of what
odds
as to the
(4
Air Force Rule of Professional Conduct 1.3
findings or sentence and to structure their
1998).
February
requires
range
This
a wide
arguments
probabilities.
based on these
decisions,
professional
including
what evi-
Fluellen,
dence to
arguments
introduce and what
(CMA 1994). Appellant’s counsel made a
make. Air Force Standard for Criminal Jus-
strategic
decision at the end of her
4-5.2(b) (8
1999). However,
tice
November
if the members “must
plea, pretrial
the accused has control of the
choose between confinement and a bad-con-
forum,
agreement, questions
right
as to
*4
discharge, [they
duct
should]
Id.;
testify,
appeal.
and whether
see
punitive discharge.” Appellant
heavy
faced a
(11th
Teague,
United
v.
States
It is error for defense
result):
appropriateness
a bad-conduct dis-
BAKER,
(concurring in
argument without an
During
assistant
sentencing,
agreed
with
adequate record that
(ADC) argued against
both confine-
argument.
United
“Confinement,
ment and a
298, 299,
States v.
United
appropriate,”
argued.
the ADC
is not
Volmar,
1983), this Court
339MJ
provided you
“The
hasn’t
good
tactical
recognized that
there
justification
for confinement
advocacy
representing the best
reasons
any.”
and that’s
there isn’t
because
to concede
bad-con-
behalf
accused
argued against
ADC
mak-
really
discharge, where “there
was no
duct
ing
expressed
it clear that the views
reflected
alternative of
the service.” Id.
retention
appellant’s explicit desire to remain in the
present case is distin-
at 343.
Air Force.
said:
She
guishable from
because there is
Volmar
keep
fairly
which
working.
The Air
can
“some evidence
the record
Force
They
linguist
they
desire[d]
him as a
indicates
the accused
to be
trained
*5
despite
keep
job
have
retained
the service
convic-
can
him on the
him be a
Force____
Id. at
productive
tion.”
member of the
enjoys
He
its
being linguist;
challenging
a
Here,
unequivo-
the evidence is clear
you
give
for him
like
and he would
to
for
Appellant’s
enjoys
cal.
counsel stated: “He
get
him
opportunity
to
back to
like for
being linguist
you
a
... and he would
work____
him
You can reduce
to E-l.
opportunity
get
back
give
to
to
to
away
Take
...
the rank
take
some of his work____
punitive
give
not
a
dis-
[D]o
pay.
punitive
But
not
him a
do
“an
charge.”
in the absence of
ade-
charge----
eighteen.
young.
He’s
He’s
quate
appellant’s
pu-
desire that
record of
a
you give
punitive
He’s
But if
him a
naive.
actually imposed,”
nitive
be
it is
discharge,
going
that’s
to follow him
puni-
for
to concede a
error
rest of his life.
for the
discharge, regardless
tive
of tactical motive.
important,
independent mission.
suggests
panel
that both the
and the Govern-
weighed
ment
in mitigation
factors
when con-
Nonetheless,
finding
“[a]
or sentence of
sidering appellant’s
sentence.
it
may
court-martial
not be held incorrect on
does
necessarily
not
judgments
follow that
ground
of an error of law unless the
parallel
about
judgments
about
materially
error
prejudices the substantial
punitive separation. A bad-conduct dis-
rights
59(a), UCMJ,
of the accused.” Art.
charge addresses a
punish-
distinct facet of
859(a).
§USC
Case law further informs the
ment, namely whether an accused should be
statutory test for harmless error:
separated from the service under conditions
say,
assurance,
one cannot
[I]f
with fair
dishonor,
whether or not he or she is
after pondering
happened
all that
without
confined.
stripping the erroneous action from the
In this
premedi-
record reflects a
whole, that the judgment
substan-
tated
involving
crime of
the violent
tially swayed by
impossible
it is
employment of a knife in a manner that
to conclude that
rights
substantial
might well have resulted in death or serious
affected. The
cannot be mere-
injury. Appellant’s record of
in-
service
ly whether
enough
there was
cludes
reprimand.
two letters of
result, apart
phase
from the
affected
naive,
duped,
been
rather,
so,
the error.
It is
even wheth-
question
placed
but there is no
that he
him-
er the error itself had substantial
influ-
in position
self
separate
of trouble on three
so,
ence. If
grave doubt,
or if one
is left
occasions, including one
involving
occasion
the conviction cannot stand.
pornographic filming.
Pollard,
disposition
Nor does the
of Airman Miller’s
1993),
States,
quoting Kotteakos v. United
*6
case change
analysis. Appellant,
750, 765,
1239,
328 U.S.
66 S.Ct.
90 L.Ed.
Miller,
not
protagonist
was the central
in this
(1946).
1557
appellant,
Miller,
crime.
It was
not
who
Pineda,
put
gloss
this Court
a further
engaged in pornographic filming. Miller’s
on the test for harmless error when assess
record of
part
service is not at issue and not
ing counsel
discharge:
concession on
“[W]e
Therefore,
of the record.
disposition
of
impact
assessed the
of that error on the
meaningfully
Miller’s case cannot
serve
aas
approved sentence to determine whether suf
point
appellant’s
of reference for
case
prejudice
ficient
finding
existed for a
of inef
absence of a
alleging
claim
a violation of the
fective assistance of counsel under the second
rule in
Lacy,
United
v.
States
431
(2001),
findings or
Pineda,
might happen as to
what
v.
United States
arguments
structure their
sentence and to
not have been violated
case.
428,
at
probabilities,”
55 MJ
based
these
harmlessness,
question
Turning to the
of
96,
Fluellen,
98
citing
v.
40 M J
United States
opinion.
again
disagree
the lead
I must
with
(CMA 1994).
obligate
law
not
ease
does
Our
Volmar,
v.
United States
MJ
to make such a calculation.
case,
1983), technically
ais
not a
no-error
however,
held,
decision
disagree
case.
I
harmless-error
discharge is
appropriateness
concede
separate opinion on
Baker’s
harmless
accused,
a matter
not
reserved
particular
that
his assertion
appropri
counsel.
If counsel concedes the
of Airman Miller’s case are
rele-
results
as a
“even
ateness
question.
vant on this
step
accomplish mitigation of other
tactical
prejudice
for
under United
elements of a
sentence —counsel
Pineda,
301,
supra
States v.
.whether
advocacy is
must make a record that such
given
compel
the facts of a
case
a conclusion
pursuant
accused’s
United
wishes.”
reasonably
that a
was
bad-conduct
(em
(2001)
Pineda,
likely.
a trial
Unlike
this was
before
omitted).
phasis
members,
implicitly
did not
punitive discharge
was
In this
there is
clear record
concede that
rea-
service,
Moreover,
sonably
youth,
to remain in
as
certain.
desired
career,
military
military
brevity
request
and the
bizarre
reflected
counsel’s
for
suggest
point,
circumstances
case
that a
the member’s on that
instruct
plea
clemency might
testimony
forceful
have been
as
as well
from
Dresen,
demonstrate,
See United
successful.
40 uncle. The record does not
(CMA 1994).
however,
to coun-
consented
sel’s
if the
“must
members
—that
Finally,
opinion,
indicated
in the lead
a bad-con-
choose between
principal
co-accused
actor
discharge, give
duct
i.e.,
who
armed
the man
held
charge.”
court below
asserted
the knife to the throat of the victim. The
“were
a realistic
comments
undisputed fact that
he did
receive a
recognition
either confinement or dis-
punitive discharge for the same or similar
both,
punish-
charge, perhaps
likely
appellant seriously
offenses as
undermines a
ments for his client’s offense ...
[and
punitive discharge
conclusion that
rea
request
confine-
the]
in lieu of
*7
(See
sonably likely in
Id.
case.
ment
asked for the one that would be
appellant’s clemency
dated
submission
November
Unpub. op.
easier
his client to endure.”
1998.)
of bene-
at 5.
conclusion
the denial
permanent
fits and
stain of
dis-
EFFRON, Judge (dissenting):
than
“easier to endure”
would be
issue in this
whether
case asked
represents
the views of
Appeals
approve ap-
Court
could
of Criminal
below,
appellant.
court
pellant’s
appro-
sentence under the sentence
in-
appellant
The record does not indicate
66, UCMJ,
priateness
standards Article
easily
that he
formed
would more
issue,
866,1
§USC
would affirm. The
how-
endure a
The record
ever,
improper
is whether defense counsel’s
nothing
contains
from
prejudicial
sentencing argument constituted
specu-
opinion’s
the lead
59(a), UCMJ, 10
error under Article
USC
any
made
commu-
lation
859(a).
respectfully disagree
I
with the
privacy
nication “in
of defense counsel’s
any
opinion’s
lead
error in
conclusion
prior
office”
to trial.
The lead asserts that fact that faced counsel to of offense and the we ask determine odds of a dishonorable appel- and 10 The issue in this case is opinion confinement. As the acknowl- appropriate, lant’s sentence was but whether however, edges, only recom- there possibility appel- mended 12 months’ and the might lant have received a different sen- imposed by sentence the members did not tence, relatively period such as the brief include discharge adjudged confinement without a Airman Miller’s case. Given the nature of The members’ decision adjudge no con- information, sentencing the absence of finement well reflect a number of favor- imposed upon appellant, factors, able including appellant’s relatively light imposed on his co- young age years at the time of the of- —18 actor, say we cannot with fair business, assurance that unsavory fense —the victim’s prior would have received a victim’s pornogra- conviction for child phy, charge had urged and the fact that the knife his counsel not was held mem- appellant’s co-actor, bers to choose a Airman Miller. It over confinement. noteworthy that Airman Miller’s sen- The failing to ensure tence did not include a argument represented includ- ap- only 45-day period wishes, brief pellant’s of confinement prejudi- and the error was partial forfeitures. cial.