United States v. Jacks ( 2021 )

This opinion is subject to administrative correction before final disposition.
Before
GASTON, HOUTZ, and MYERS
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Adam M. JACKS
Staff Sergeant (E-6), U.S. Marine Corps
Appellant
No. 202000098
Decided: 20 September 2021
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judges:
Keaton H. Harrell (arraignment)
Kyle G. Phillips (trial)
Sentence adjudged 16 December 2019 by a general court-martial
convened at Marine Corps Base Camp Lejeune, North Carolina,
consisting of a military judge sitting alone. Sentence in the Entry of
Judgment: reduction to E-1, confinement for 16 months, 1 and a bad-
conduct discharge.
For Appellant:
Captain Jeremiah J. Sullivan III, JAGC, USN
1 Pursuant to a pretrial agreement, the convening authority suspended confine-
ment in excess of the time Appellant served in pretrial confinement (308 days).
United States v. Jacks, NMCCA No. 202000098
Opinion of the Court
For Appellee:
Lieutenant Gregory A. Rustico, JAGC, USN
Lieutenant Joshua C. Fiveson, JAGC, USN
_________________________
This opinion does not serve as binding precedent, but
may be cited as persuasive authority under
NMCCA Rule of Appellate Procedure 30.2.
_________________________
PER CURIAM:
Appellant was convicted, pursuant to his pleas, of two specifications of
larceny, one specification of adultery, one specification of fraternization, one
specification of conspiracy to obstruct justice, one specification of conspiracy
to commit larceny, and one specification of unauthorized absence terminated
by apprehension, in violation of Articles 81, 86, 92, 121, and 134, Uniform
Code of Military Justice [UCMJ], 2 for conspiring to steal and stealing an All-
Terrain Vehicle [ATV] and a dirt bike, conspiring to move them to impede the
resulting investigation, engaging in a sexual relationship with a married
officer, and absenting himself without authority for seven weeks until he was
apprehended.
Appellant asserts two assignments of error: (1) his trial defense counsel
were ineffective for failing to present expert testimony regarding Appellant’s
Traumatic Brain Injury [TBI], Post-traumatic Stress Disorder [PTSD], and
other mental and behavioral issues; and (2) the sentence is highly disparate
and inappropriately severe. We find no prejudicial error and affirm.
I. BACKGROUND
In the spring of 2018, Appellant conspired with Staff Sergeant (E-6)
[SSgt] Bravo to steal an ATV and a dirt bike. Staff Sergeant Bravo executed
the plan, used Appellant’s truck to steal the vehicles, and stored them in
Appellant’s garage. Appellant and SSgt Bravo then conspired with SSgt Golf
to move the vehicles in order to impede the investigation into their disap-
pearance. During this time, Appellant was also having a sexual relationship
2 10 U.S.C. §§ 881, 886, 892, 921, 934.
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Opinion of the Court
with a married Marine officer. Six months later, while under investigation for
these and other offenses, he went absent from his unit without authority for
approximately 50 days until he was apprehended by law enforcement.
Prior to this course of misconduct, Appellant’s record of service includes
four combat deployments from 2006 to 2011, during which he was frequently
in firefights. During the last of these deployments, Appellant stepped on an
Improvised Explosive Device [IED] while attempting to burn down an enemy
observation post, resulting in the amputation of his right leg and the loss of
feeling in his left. Despite his physical injuries, Appellant voluntarily
remained on active duty and passed a board to retain his infantry Military
Occupational Specialty. At trial, Appellant gave an unsworn statement
detailing that he had been diagnosed with TBI and PTSD due to the IED
blast and his deployments. He described the symptoms of his memory issues,
behavioral issues, and loss of sleep and appetite. He discussed his treatment
at the National Intrepid Center of Excellence, where specialized doctors had
created care plans and prescribed medication to treat his TBI and PTSD. He
also spoke of his diagnosis of lymphedema and several follow-on or “revision”
surgeries to his right leg.
II. DISCUSSION
A. Ineffective Assistance of Counsel
Claims of ineffective assistance of counsel are reviewed de novo. 3 “In
order to prevail on a claim of ineffective assistance of counsel, an appellant
must demonstrate both (1) that his counsel’s performance was deficient, and
(2) that this deficiency resulted in prejudice.” 4 “Failure to make the required
showing of either deficient performance or sufficient prejudice defeats the
ineffectiveness claim.” 5 There is “a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance; that is, the
[accused] must overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy.” 6 “A trial defense
3 United States v. Mazza, 67 M.J. 470, 474 (C.A.A.F. 2009) (citations omitted).
4United States v. Green, 68 M.J. 360, 361–62 (C.A.A.F. 2010) (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984)).
5 Strickland, 466 U.S. at 700.
6 Id. at 689 (internal quotations and citation omitted).
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Opinion of the Court
counsel’s decision on whether to call a witness is a tactical decision.” 7
Regarding the prejudice prong, “[t]he [accused] must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” 8
Appellant asserts that by failing to present expert testimony at trial
regarding his medical and mental health issues, his trial defense counsel
failed to offer powerful mitigating evidence. However, we have consistently
held that introducing evidence of an appellant’s PTSD and TBI through lay
witness testimony and unworn statements, instead of through expert
testimony or documents, is not deficient performance by trial defense
counsel. 9 Rather, the decision to introduce evidence of an appellant’s PTSD
and TBI in sentencing via testimony or unsworn statement is “a reasonable
tactical choice.” 10
Here, Appellant discussed his PTSD and TBI on the record at length,
along with his combat deployments, treatments, surgeries, medications, and
additional injuries. Trial defense counsel also admitted Appellant’s medical
records, which discussed his TBI and several other symptoms and injuries.
During sentencing argument, trial defense counsel referenced Appellant’s
mental health issues and stated that “[t]he judge has had enough experience
in this job as well as career to know what the fellow Marines are going
through mentally based upon all the conflicts over the last 10 to 12 years.” 11
Based on the record before us, we find that trial defense counsel’s decision to
introduce evidence of Appellant’s TBI and PTSD via Appellant’s unsworn
statement and documentary evidence instead of through an expert witness
was a reasonable tactical decision. We therefore conclude that trial defense
counsel’s performance was not deficient.
7 United States v. Gardiner, No. 201600337, 2017 CCA LEXIS 774 at *8 (N-M. Ct.
Crim. App. Dec. 28, 2017) (unpublished) (citing United States v. Akbar, 74 M.J. 364,
390 (C.A.A.F. 2015)).
8 Strickland, 466 U.S. at 694.
9 E.g., United States v. Cox, No. 201700197, 2018 CCA LEXIS 523 at *16–20 (N-
M. Ct. Crim. App. Nov. 1, 2018) (unpublished); United States v. Smith, No.
200501482, 2007 CCA LEXIS 191 at *12–15 (N-M. Ct. Crim. App. June 6, 2007)
(unpublished).
10 Cox, 2018 CCA LEXIS 523 at *19.
11 R. at 304.
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B. Sentence Disparity and Severity
Military courts of criminal appeals [CCA] have two duties in approving
sentences under Article 66(c), UCMJ: first to ensure the sentence is “correct
in law” and second to ensure the imposed sentence “should be approved.” 12 In
making these determinations, we must do so on the basis of the entire
record. 13 “Generally, sentence appropriateness should be judged by individu-
alized consideration of the particular accused on the basis of the nature and
seriousness of the offense and the character of the offender.” 14 However, in
reviewing whether a sentence “should be approved,” our “authority to grant
relief is not without limits” because “Article 66(c), UCMJ, empowers the
CCAs to do justice, with reference to some legal standard, but does not grant
the CCAs the ability to grant mercy.” 15
We may consider other court-martial sentences when determining sen-
tence appropriateness for any case, but are only required to do so “in those
rare instances in which sentence appropriateness can be fairly determined
only by reference to disparate sentences adjudged in closely related cases.” 16
“We generally refrain from second guessing or comparing a sentence that
flows from a lawful pretrial agreement . . . .” 17
Appellant asserts the sentence he received is highly disparate and inap-
propriately severe because he received a bad-conduct discharge. We disagree.
Appellant received the benefit of the deal that he bargained for with the
convening authority. In his pretrial agreement, Appellant accepted terms
that exposed him to an approved bad-conduct discharge in exchange for
substantial confinement protection. During its sentencing argument, the
Government asked for 18 months’ confinement, reduction to E-1, total
forfeitures, and a dishonorable discharge. 18 Trial defense counsel asked for
ten months’ confinement and even asked the military judge to consider
12 United States v. Guinn, 81 M.J. 195, 199 (C.A.A.F. 2021).
13 United States v. Jessie, 79 M.J. 437, 440 (C.A.A.F. 2020).
14 United States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982).
15 Guinn, 81 M.J. at 203 (quoting United States v. Nerad, 69 M.J. 138, 146
(C.A.A.F. 2010)) (internal quotation marks omitted).
16 United States v. Wacha, 55 M.J. 266, 267 (C.A.A.F. 2001).
17 United States v. Widak, No. 201500309, 2016 CCA LEXIS 172 at *7 (N-M. Ct.
Crim. App. Mar. 22, 2016).
18 R. at 299.
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Opinion of the Court
adjudging a bad-conduct discharge if he deemed a punitive discharge
appropriate. 19
Appellant was convicted of a significant amount of criminal misconduct.
At the time of his pleas, Appellant’s maximum sentence exposure for the
offenses to which he pleaded guilty was reduction to pay grade E-1, confine-
ment for 24 years and six months, total forfeitures, and a dishonorable
discharge. The sentence he ultimately received—reduction to E-1, confine-
ment for 16 months (suspended above 308 days by the pretrial agreement),
and a bad-conduct discharge—is considerably less than this maximum. That
Appellant continued to serve his country even after losing a limb in combat
and suffered a host of other mental and physical challenges and injuries as a
result of his service does not excuse his behavior or actions. The law requires
that the individual and lifelong sacrifices Appellant made for his country
must be taken into account for sentencing, and the record shows that they
were.
Even if we were to disregard Appellant’s bargained-for exchange in his
pretrial agreement, his sentence is not inappropriately severe or highly
disparate in comparison with the sentences of his co-conspirators. SSgt Bravo
pleaded guilty to one specification of conspiracy to commit larceny, three
specifications of larceny of personal property, and two specifications of
obstruction of justice, and was sentenced to reduction to E-1, confinement for
14 months, and a bad-conduct discharge. SSgt Golf pleaded guilty to
conspiracy to commit larceny and conspiracy to obstruct justice, five
specifications of larceny of personal and military property, and one specifica-
tion of obstruction of justice, and was sentenced to reduction to E-1,
confinement for 24 months, and a bad-conduct discharge. Assuming that
Appellant’s additional, separate crimes do not preclude his case as a whole
from being considered “closely related” to those of his co-conspirators, we do
not find that the sentences are highly disparate.
We find that Appellant’s sentence was adjudged with individualized
consideration based on both the nature and seriousness of his offenses and
Appellant’s character and record of service. After reviewing the record as a
whole, we find that the sentence is correct in law, that it appropriately
reflects both what was bargained for in the pretrial agreement and what was
presented in extenuation, mitigation, and aggravation at trial, and that it
should be approved.
19 R. at 303–04.
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Opinion of the Court
III. CONCLUSION
After careful consideration of the record and briefs of appellate counsel,
we have determined that the findings and sentence are correct in law and
fact and that no error materially prejudicial to Appellant’s substantial rights
occurred. 20
The findings and sentence are AFFIRMED.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
20 Articles 59 & 66, UCMJ.
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