United States v. Cooper ( 2021 )

This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee/Cross-Appellant
v.
Paul E. COOPER, Yeoman Second Class
United States Navy, Appellant/Cross-Appellee
Nos. 21-0149 & 21-0150
Crim. App. No. 201500039
Argued October 20, 2021—Decided December 13, 2021
Military Judges: Robert B. Blazewick (trial) and
Marcus N. Fulton (DuBay hearing)
For Appellant/Cross-Appellee: Lieutenant Michael W.
Wester, JAGC, USN (argued).
For Appellee/Cross-Appellant: Major Kerry E. Friedewald,
USMC (argued); Lieutenant Colonel Christopher G. Blosser,
USMC, Lieutenant Colonel Nicholas L. Gannon, USMC,
Lieutenant Gregory A. Rustico, JAGC, USN, and Brian K.
Keller, Esq. (on brief); Lieutenant Joshua C. Fiveson, JAGC,
USN.
Judge MAGGS delivered the opinion of the Court, in
which Chief Judge OHLSON, Judge SPARKS, Judge
HARDY, and Senior Judge EFFRON, joined.
_______________
Judge MAGGS delivered the opinion of the Court.
This Court previously reviewed this case in 2019. United
States v. Cooper, 78 M.J. 283 (C.A.A.F. 2019). At that time,
we concluded that Appellant/Cross-Appellee Yeoman Second
Class (YN2) Cooper had waived his right to request individual
military counsel (IMC). Id. at 287. We then remanded the
case for further review. Id. On remand, the United States
Navy-Marine Corps Court of Criminal Appeals (NMCCA)
held that YN2 Cooper had received ineffective assistance of
counsel. United States v. Cooper, 80 M.J. 664, 666 (N-M. Ct.
Crim. App. 2020). As a consequence, the NMCCA set aside
the findings and sentence in this case and authorized a new
trial. Id.United States v. Cooper, No. 20-0149/NA & No. 20-0150/NA
Opinion of the Court
The Judge Advocate General of the Navy, believing that
the NMCCA had reached the ineffective assistance of counsel
issue in an improper manner, then certified the following
question to this Court: “Did the lower court err applying
United States v. Chin, 75 M.J. 220 (C.A.A.F. 2016), (a) as a
prerequisite to considering ineffective assistance of counsel,
and (b) to disregard the knowing, voluntary, and R.C.M. 905
waivers, of individual military counsel?” United States v.
Cooper, 81 M.J. 135 (C.A.A.F. 2021). YN2 Cooper also has ap-
pealed, asserting alternative grounds for affirming the
NMCCA’s decision. 1
After careful consideration of the parties’ contentions, we
have determined that we need not decide the certified issue
because the Government now concedes that the NMCCA
could have reached the ineffective assistance of counsel issue
without relying on our decision in Chin. As a result, whether
the NMCCA erred in applying Chin to reach the ineffective
assistance of counsel issue is of no consequence in this case.
1 The two assigned issues that YN2 Cooper has raised in his
separate appeal are:
I. An accused has a constitutional right to have his
counsel make a proper argument on the evidence
and applicable law in his favor. Did the military
judge abuse his discretion when he allowed the
members to recall the complaining witness after de-
liberations but refused the defense request to pre-
sent a renewed closing summation on her new testi-
mony? Did the lower court err by refusing to consider
the issue?
II. An appellant has the right to the effective repre-
sentation by appellate counsel. Were appellate coun-
sel ineffective where: (1) counsel failed to assign as
error the military judge’s denial of a renewed closing
argument despite defense counsel’s objection at
trial; (2) this Court decided United States v. Bess, 75
M.J. 70 (C.A.A.F. 2016), one month before counsel
filed a supplemental brief raising assignments of er-
ror before the lower court; and (3) the lower court
refused to consider the issue when it was raised dur-
ing a later remand to that court?
United States v. Cooper, 81 M.J 319 (C.A.A.F. 2021) (order granting
review).
2
United States v. Cooper, No. 20-0149/NA & No. 20-0150/NA
Opinion of the Court
Accordingly, we are presented with no grounds for setting
aside the NMCCA’s decision. We therefore affirm the
NMCCA, and we do not reach the issues that YN2 Cooper has
raised in his appeal.
I. Background
Our previous opinion in this case describes in detail the
facts and procedure in this case. Cooper, 78 M.J. at 283–86.
To recapitulate briefly, YN2 Cooper was charged with one
specification of violating a general order, three specifications
of sexual assault, and one specification of abusive sexual con-
tact in violation of Articles 92 and 120, UCMJ, 10 U.S.C.
§§ 892, 920 (2012). Upon learning of the charges, YN2 Cooper
informed his detailed trial defense counsel that he would like
to be represented by individual military counsel (IMC). See
Rule for Courts-Martial (R.C.M.) 506(b). The IMC whom YN2
Cooper most desired was a judge advocate in the California
National Guard. YN2 Cooper’s detailed trial defense counsel,
however, did not properly forward YN2 Cooper’s request for
this judge advocate to serve as IMC. Instead, the detailed trial
defense counsel incorrectly told YN2 Cooper that the re-
quested judge advocate was not available.
At arraignment, in accordance with R.C.M. 901(d)(4), the
military judge inquired about YN2 Cooper’s desires with
respect to counsel. YN2 Cooper told the military judge that he
wished to be represented by his detailed trial defense counsel
and no one else. The court-martial subsequently found YN2
Cooper not guilty of the charge and specification under Article
92, UCMJ, but guilty of the charges and specifications under
Article 120, UCMJ. The court-martial sentenced YN2 Cooper
to a dishonorable discharge, confinement for five years,
forfeiture of all pay and allowances, and reduction to pay
grade E-1.
On appeal, the NMCCA concluded that YN2 Cooper had
been deprived of his statutory right to IMC and had suffered
material prejudice. United States v. Cooper, No. NMCCA
201500039, 2018 CCA LEXIS 114, *22–45, 2018 WL 1178847,
at *8–16 (N-M. Ct. Crim. App. Mar. 7, 2018) (unpublished).
The NMCCA, accordingly, set aside the findings and sentence
and authorized a rehearing. Id. at *53, 2018 WL 1178847, at
*19. Although YN2 Cooper also sought relief on grounds that
3
United States v. Cooper, No. 20-0149/NA & No. 20-0150/NA
Opinion of the Court
he had received ineffective assistance of counsel, the NMCCA
did not reach this issue because its ruling that YN2 Cooper
had been denied his right to IMC had mooted this question.
Id. at *3 & n.3, 2018 WL 1178847, at *1 & n.3.
After the NMCCA issued its decision, the Judge Advocate
General certified four issues to this Court:
(1) Did Appellee waive the right to IMC?; (2) Should
the failure of the detailed defense counsel to submit
a request for IMC be reviewed under the Strickland
v. Washington standard for ineffective assistance of
counsel (IAC)?; (3) If Strickland does not apply, was
Appellee deprived of his statutory right to IMC?; (4)
Was Appellee prejudiced?
Cooper, 78 M.J. at 283 (footnote omitted). This Court an-
swered the first question in the affirmative and did not an-
swer the other three. Id. This Court then remanded the case
to the NMCCA for further proceedings. Id.
In our decision, this Court made two statements concern-
ing the unanswered certified issues. Toward the start of the
opinion, this Court said: “In light of our waiver determination,
the remaining certified issues are moot.” Id. Near the end of
the opinion, this Court stated: “[The decision that YN2 Cooper
had knowingly and intelligently waived his right to IMC]
leaves unanswered other issues the CCA determined were
mooted by its decision that Appellee was denied his statutory
right to IMC. . . . We leave those issues for the CCA to resolve
on remand.” Id. at 287.
On remand, one of the issues raised by YN2 Cooper was
whether his trial defense counsel had provided ineffective as-
sistance of counsel. Addressing the question of whether the
NMCCA could reach this issue, YN2 Cooper argued: “While
the CAAF . . . held [YN2 Cooper] waived his right to IMC by
remaining silent, this does not address the separate issue of
whether counsel were ineffective.” (Footnote omitted.) On the
merits of the ineffective assistance issue, YN2 Cooper argued
that he had “only remained silent since he was relying on his
counsel’s erroneous claims that [his requested IMC] was un-
available.” The Government responded by arguing that YN2
Cooper had waived his ineffective assistance of counsel claim.
The Government asserted that “this claim is nothing more
than a thinly veiled attempt to subvert the Court of Appeals
4
United States v. Cooper, No. 20-0149/NA & No. 20-0150/NA
Opinion of the Court
for the Armed Forces’ holding that he waived the right to in-
dividual military counsel.” In the alternative, addressing the
merits of the issue, the Government argued that YN2 Cooper
did not have a valid ineffective assistance of counsel claim be-
cause he could not show actual prejudice.
The NMCCA appears to have agreed with the Govern-
ment’s argument that YN2 Cooper’s waiver of his right to
IMC also waived his ineffective assistance of counsel claim.
Cooper, 80 M.J. at 671. But the NMCCA concluded, on the
basis of United States v. Chin, 75 M.J. 220 (C.A.A.F. 2016),
that it could—and should—disregard YN2 Cooper’s waiver of
his right to IMC. 2 80 M.J. at 671–72. And by disregarding
YN2 Cooper’s waiver, the NMCCA believed it could consider
his ineffective assistance of counsel claim. Id. at 671. The
NMCCA explained:
Based on Chin and the text of Article 66, we invoke
our statutory authority to disregard [YN2 Cooper’s]
in-court waiver of his right to IMC. As a matter of
law, CAAF has spoken on [YN2 Cooper’s] waiver. It
is a waiver. We have no authority to conclude other-
wise, and we do not do so here. CAAF did not, how-
ever, address whether [YN2 Cooper’s detailed trial
defense counsel] committed IAC. Under its Article
67 statutory authority, once CAAF found a waiver
on IMC, the underlying IAC issue was moot, but not
necessarily resolved. CAAF did not proceed to re-
solve the underlying IAC issue and bar this Court
from resolving the issue, or bar [YN2 Cooper] from
asking this Court to resolve it.
Id.
The NMCCA then proceeded to examine YN2 Cooper’s in-
effective assistance of counsel claim under the test described
in Strickland v. Washington, 466 U.S. 668 (1984). 80 M.J. at
672–77. The NMCCA concluded that the detailed trial de-
fense counsel’s performance was deficient because that coun-
sel had failed to forward the IMC request for formal action.
In Chin, this Court did not reverse a decision of the United
2
States Air Force Court of Criminal Appeal to use its Article 66(c),
UCMJ, 10 U.S.C. § 866(c), review power to look past an appellant’s
general waiver of all waivable motions to address an unreasonable
multiplication of charges. 75 M.J. at 223. In their briefs to the
NMCCA in this case, neither party discussed or even cited Chin.
5
United States v. Cooper, No. 20-0149/NA & No. 20-0150/NA
Opinion of the Court
Id. at 673. The NMCCA addressed the issue of prejudice with
alternate holdings. The court first concluded that no showing
of actual prejudice was required “for this manner of violation
of [YN2 Cooper’s] statutory right to IMC.” Id. at 676. In the
alternative, the NMCCA concluded that “[YN2 Cooper] suf-
fered material prejudice in both the preparatory stages of his
court-martial and at trial when his IMC request was never
drafted and forwarded to [the requested judge advocate’s]
chain-of-command for consideration and approval.” Id. at 677.
One judge dissented, concluding that this Court’s decision
precluded the NMCCA from reopening the issue of waiver and
the related ineffective assistance of counsel issue. Id. at 678
(Crisfield, C.J. Emeritus, dissenting). The dissenting judge
wrote: “I cannot read CAAF’s opinion as authority for us to
review, de novo, assignments of error related to [YN2
Cooper’s] desire for an individual military counsel. Those is-
sues are now res judicata.” Id. The dissenting judge also dis-
agreed with the majority’s application of Chin and the major-
ity’s reasoning about the issue of prejudice. Id. at 678–79.
The Judge Advocate General, as noted, then certified the
issue of whether “the lower court err[ed] applying United
States v. Chin,” both as “a prerequisite to considering ineffec-
tive assistance of counsel” and as authority for “disregard[ing]
the knowing, voluntary, and R.C.M. 905 waivers of individual
military counsel.” Cooper, 81 M.J. at 135.
II. Discussion
In their briefs and at oral arguments in this second appeal
to this Court, counsel for both sides have thoroughly dis-
cussed this Court’s holding in Chin and the circumstances un-
der which it might or might not allow a Court of Criminal Ap-
peals to disregard a waiver. At the same time, however,
counsel for both sides have stated that we need not decide the
central question of the certified issue, namely, whether the
lower court erred in applying Chin. Specifically, the parties
both have asserted that the NMCCA could have reached the
ineffective assistance of counsel claim without relying on
Chin.
When this case was previously here, this Court deter-
mined that YN2 Cooper had waived his right to IMC and said
that the remaining three certified issues were “moot.” Cooper,
6
United States v. Cooper, No. 20-0149/NA & No. 20-0150/NA
Opinion of the Court
78 M.J. at 283. In its brief to the NMCCA, as described above,
the Government argued that this holding prevented YN2
Cooper from raising an ineffective assistance claim before the
NMCCA. But the Government now reasons that this Court’s
conclusions in the first appeal did not preclude the NMCCA
from reviewing the ineffective assistance of counsel claim
upon remand. The Government explains:
[T]his Court found the remaining certified issues
moot because the lower court never resolved the in-
effective assistance of counsel claim in the first di-
rect review, thus remand was required. . . . The sec-
ond certified issue did not ask this Court to apply
Strickland itself to the ineffectiveness claim—in-
deed, it could not have, since the lower court had not
yet answered the Strickland question.
Therefore, because this Court’s holding on
waiver did not preclude the lower court from apply-
ing Strickland to the ineffective assistance claim,
the lower court was not faced with a situation where
it could only reach the issue by disregarding the
waiver under Chin.
Reply Brief for Appellee/Cross-Appellant at 3–4, United
States v. Cooper, No. 21-0150 (C.A.A.F. May 17, 2021). As
noted above, YN2 Cooper’s brief before the NMCCA made es-
sentially the same argument. And during oral argument be-
fore this Court, counsel for YN2 Cooper also agreed that this
Court’s decision on waiver did not preclude the NMCCA from
directly reviewing the ineffective assistance of counsel issue
without going through Chin.
We agree with the reasoning and conclusion of the parties
on this issue. Our decision in the first appeal that YN2 Cooper
had waived his statutory right to request IMC did not pre-
clude YN2 Cooper from asserting an ineffective assistance of
counsel claim on remand. Perhaps this Court’s initial state-
ment that the undecided issues were “moot” was ambiguous.
But this Court clarified any uncertainty at the end of the opin-
ion by stating unambiguously that the “other issues the CCA
determined were mooted by its decision that Appellee was de-
nied his statutory right to IMC”—which included the ineffec-
tive assistance of counsel issue—were “unanswered” and
were left “for the CCA to resolve on remand.” Cooper, 78 M.J.
at 287. The Government and YN2 Cooper are thus correct in
7
United States v. Cooper, No. 20-0149/NA & No. 20-0150/NA
Opinion of the Court
asserting that the NMCCA had no need to use Chin to disre-
gard the waiver of the right to IMC. 3 Accordingly, it does not
matter whether the NMCCA correctly understood and ap-
plied Chin. We therefore see no need to decide the certified
issue or express any opinion about whether the NMCCA ap-
plied Chin properly or improperly in this case.
The Government has not limited its arguments to ques-
tions about Chin. Instead, the Government also argues that
the NMCCA erred in its analysis of the ineffective assistance
of counsel issue. The Government specifically faults the
NMCCA for not recognizing that “[b]y waiving the right to in-
dividual military counsel and electing to be represented by
his Detailed Defense Counsel, [YN2 Cooper] contributed to
the denial of individual military counsel that he seeks to lay
solely at the feet of his Detailed Defense Counsel.” We decline
to consider this argument, and other arguments, about inef-
fective assistance of counsel because the Government did not
certify an issue concerning ineffective assistance of counsel to
this Court.
In making this decision, we recognize that the NMCCA’s
reliance on Chin may have influenced its analysis of the inef-
fective assistance argument. But the certified question of
whether the NMCCA correctly applied Chin to reach the in-
effective assistance claim is still different from the question
of whether the NMCCA correctly decided the ineffective as-
sistance claim. The Judge Advocate General could have certi-
fied the latter question to us but it did not. We therefore need
not address the issue of whether the NMCCA correctly de-
cided the ineffective assistance of counsel claim. See United
States v. Jacobsen, 77 M.J. 81, 83 n.2 (C.A.A.F. 2017) (declin-
ing to decide an issue that “was not certified” because it was
“simply not before us”). Accordingly, we affirm the NMCCA’s
judgment because the Government has not properly pre-
3 We also note that YN2 Cooper’s IMC waiver could not have
waived the ineffective assistance of counsel claim because “an
appellant cannot waive a claim of ineffective assistance of counsel
where waiver is based on the very advice he asserts was
ineffective.” United States v. Gooch, 69 M.J. 353, 355 n.2 (C.A.A.F.
2011).
8
United States v. Cooper, No. 20-0149/NA & No. 20-0150/NA
Opinion of the Court
sented any argument for setting it aside. And because we af-
firm the NMCCA’s judgment, we have no need to reach the
assigned issues in YN2 Cooper’s appeal.
III. Judgment
The judgment of the United States Navy-Marine Corps
Court of Criminal Appeals is affirmed.
9