United States v. Garcia ( 2004 )

IN THE CASE OF
UNITED STATES, Appellee
v.
Fernando GARCIA, Staff Sergeant
U.S. Marine Corps, Appellant
No. 03-0151
Crim. App. No. 9901513
United States Court of Appeals for the Armed Forces
Argued January 22, 2004
Decided May 6, 2004
ERDMANN, J., delivered the opinion of the Court, in which
GIERKE, EFFRON, and BAKER JJ., joined. CRAWFORD, C.J., filed a
dissenting opinion.
Counsel
For Appellant: Lieutenant Robert E. Salyer, JAGC, USNR
(argued); Lieutenant Glenn Gerding, JAGC, USNR, and Lieutenant
Colin A. Kisor, JAGC, USNR (on brief).
For Appellee: Lieutenant Lars C. Johnson, JAGC, USNR (argued);
Colonel R. M. Favors, USMC, and Commander Robert P. Taishoff,
JAGC, USN (on brief).
Amicus Curiae: Alexander N. Pickands (law student) (argued);
Frederic I. Lederer, Esq. (supervising attorney), John M. Hackel
and Christopher R. Clements (law students) (on brief) – for the
College of William & Mary School of Law.
Military Judge: R. E. Nunley
This opinion is subject to editorial correction before final
publication.
United States v. Garcia, No. 03-0151/MC
Judge ERDMANN delivered the opinion of the Court.
Appellant, Staff Sergeant Fernando Garcia, was charged with
two specifications of attempted robbery, five specifications of
conspiracy to commit robbery, one specification of conspiracy to
commit larceny, three specifications of larceny, six
specifications of robbery, one specification of housebreaking,
four specifications of interstate transport of stolen property,
and four specifications of receiving stolen property in
violation of Articles 80, 81, 121, 122, 130, and 134 of the
Uniform Code of Military Justice [UCMJ], 10 U.S.C. §§ 880, 881,
921, 922, 930, and 934 (2000), respectively. Garcia entered
pleas of not guilty to all specifications and charges and was
tried before a general court-martial. He was found guilty of
all charges, other than the four specifications of receiving
stolen property which were withdrawn prior to findings.
Garcia was sentenced by a panel of members to a
dishonorable discharge, confinement for 125 years, forfeiture of
all pay and allowances, a fine of $60,000 and reduction to the
lowest enlisted grade (E-1). The convening authority reduced
the term of confinement to 75 years, suspended all confinement
in excess of 40 years, and otherwise affirmed the sentence. The
Navy-Marine Corps Court of Criminal Appeals affirmed the
findings of guilty and the sentence. United States v. Garcia,
57 M.J. 716 (N-M. Ct. Crim. App. 2002).
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United States v. Garcia, No. 03-0151/MC
We granted review of the following issues pursuant to
Article 67(b), UCMJ, 10 U.S.C. § 867(b) (2000):1
I. WHETHER THE LOWER COURT ERRED WHEN IT HELD THAT
APPELLANT'S ON-PREMISES OBJECTION TO THE NCIS SEARCH OF
HIS HOME DID NOT PREVAIL OVER HIS WIFE'S OFF-PREMISES
CONSENT TO A SEARCH OF THE HOME.
II. WHETHER THE LOWER COURT ERRED WHEN IT HELD THAT THE
ABSENCE OF AN ARTICLE 32 HEARING IN APPELLANT'S GENERAL
COURT-MARTIAL DOES NOT REQUIRE A COMPLETE REVERSAL.
III. WHETHER APPELLANT RECEIVED EFFECTIVE ASSISTANCE OF
COUNSEL. (IN ADDITION TO THE SEVEN MATTERS RAISED BY
APPELLANT IN HIS PETITION SUPPLEMENT, THE PARTIES SHOULD
ADDRESS THE FOLLOWING: (1) WHETHER TRIAL DEFENSE COUNSEL
WAS INEFFECTIVE IN NOT OBJECTING TO ADMISSION OF EVIDENCE
OBTAINED FROM THE SEARCH DESCRIBED IN ISSUE I; (2)
WHETHER TRIAL DEFENSE COUNSEL WAS INEFFECTIVE IN NOT
OBJECTING TO THAT PORTION OF TRIAL COUNSEL'S SENTENCING
ARGUMENT DESCRIBED IN ISSUE IV; AND (3) WHETHER TRIAL
DEFENSE COUNSEL WAS INEFFECTIVE IN NOT ADVISING APPELLANT
REGARDING THE POSSIBILITY OF OBTAINING A PLEA AGREEMENT
BEFORE OFFERING THE CONFESSIONAL TESTIMONY DESCRIBED IN
ISSUE V).
IV. WHETHER THE LOWER COURT ERRED WHEN IT HELD THAT TRIAL
COUNSEL'S SENTENCING ARGUMENT WAS NOT IMPROPER.
V. WHETHER THE LOWER COURT ERRED WHEN IT HELD THAT THE
MILITARY JUDGE HAD NO DUTY TO ADVISE APPELLANT OF HIS
RIGHTS PURSUANT TO UNITED STATES V. BERTELSON, 3 M.J. 314(C.M.A. 1977) AND UNITED STATES V. WILLIAMS, 18 M.J. 186(C.M.A. 1984) AND RULED THAT APPELLANT'S CONFESSIONAL
STIPULATION DID NOT AMOUNT TO A CONFESSIONAL STIPULATION
AND A DE FACTO GULTY PLEA.
We hold that Garcia received ineffective assistance of counsel
1
We heard oral argument in this case at the William and Mary
School of Law, Williamsburg, Virginia, as part of the Court’s
“Project Outreach.” See United States v. Mahoney, 58 M.J. 346,
347 n.1 (C.A.A.F. 2003).
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United States v. Garcia, No. 03-0151/MC
at his court-martial, and therefore reverse on Issue III. In
light of that disposition, we do not reach the remaining issues.
FACTS
In October 1997 Garcia was apprehended outside of his home
in Jacksonville, North Carolina, by agents of the Naval Criminal
Investigative Service who suspected that he and various
coconspirators had engaged in a string of criminal activity,
including armed carjackings, armed robberies, and burglary.
After his apprehension, Garcia retained a civilian defense
counsel to represent him along with his military defense
counsel. His civilian defense counsel, Bruce Cockshoot, signed
a written waiver on behalf of Garcia which unconditionally
waived Garcia’s right to an investigation pursuant to Article
32, UCMJ, 10 U.S.C. § 832 (2000). Garcia subsequently stated
that he knew nothing of the waiver until after his conviction
and would not have authorized it had he known.2 The lack of an
Article 32 investigation was not raised at trial.
Prior to trial, Garcia’s civilian defense counsel advised
Garcia that he should not agree to enter into a pretrial
agreement that called for confinement of more than four to six
2
The Government was unable to locate Mr. Cockshoot to obtain his
version of events and military defense counsel was unable to
remember many details due to the passage of time. Thus, the
facts relevant to representation offered by Garcia in a post-
trial declaration are unrebutted. See United States v. Ginn, 47
M.J. 236, 248 (C.A.A.F. 1997).
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United States v. Garcia, No. 03-0151/MC
years. Garcia’s military defense counsel, on the other hand,
advised him that a sentence in excess of 40 years was likely if
they went to trial and informed him that the Government would
probably agree to a plea agreement limiting confinement to 20-25
years.3 Garcia, apparently relying on the advice of his civilian
attorney, chose not to enter into a plea agreement.
Approximately three weeks before the court-martial, Mr.
Cockshoot’s representation ended and Garcia was represented only
by his military defense counsel for the remainder of the
proceedings.
Initially, Garcia did not admit to his military counsel the
degree of his involvement in the charged offenses. However,
after three days of the trial, military defense counsel met with
Garcia and indicated to Garcia that the defense was getting
“killed” by the Government evidence. At this point, Garcia
informed his military counsel of the full extent of his
culpability. Faced with this disclosure in mid-trial, defense
counsel advised Garcia that they should allow the Government to
finish its case and then have Garcia testify that he had
committed the charged activity, in the hope that the members
3
We note that Garcia was exposed to a substantial maximum
sentence in this case. Based upon the findings of guilty, the
military judge instructed the members that the maximum sentence
included, inter alia, confinement for 260 years.
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United States v. Garcia, No. 03-0151/MC
would be lenient if Garcia candidly accepted responsibility.
Garcia followed this advice. His attorney did not discuss any
other possible options available to him at that time, and Garcia
later stated that he was unaware that he could have changed his
plea to guilty.
During sentencing arguments, the Government asked the
members to return a sentence that included a fine of $23,000 and
confinement for 86 years. The members returned a sentence that
included a fine of $60,000 and confinement for 125 years.
DISCUSSION
Garcia alleges that he received ineffective assistance of
counsel at his court-martial. Under Strickland v. Washington,
466 U.S. 668, 687 (1984), Garcia must show both that counsel’s
performance was deficient and that the deficiencies were so
serious as to deprive him of a fair trial. Moreover, “a court
must indulge a strong presumption that counsel's conduct falls
within the wide range of reasonable professional assistance;
that is, the defendant must overcome the presumption that, under
the circumstances, the challenged action ‘might be considered
sound trial strategy.’” Id. at 689 (quoting Michel v. Lousiana,
350 U.S. 91, 101 (1955)).
This Court applies a three prong test to determine if the
presumption of competence has been overcome:
(1) Are the allegations true; if so, "is there a
reasonable explanation for counsel's actions?";
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United States v. Garcia, No. 03-0151/MC
(2) If the allegations are true, did defense
counsel's level of advocacy fall "measurably
below the performance . . . [ordinarily expected]
of fallible lawyers?"; and
(3) If defense counsel was ineffective, is there a
"reasonable probability that, absent the errors,"
there would have been a different result?
United States v. Grigoruk, 56 M.J. 304, 307 (C.A.A.F. 2002)
(citing United States v. Polk, 32 M.J. 150, 153 (C.M.A. 1991)).
We evaluate the combined efforts of the defense as a team rather
than evaluating the individual shortcomings of any single
counsel. United States v. McConnell, 55 M.J. 479, 481 (C.A.A.F.
2001).
Applying the Grigoruk three prong test, we find that Garcia
received ineffective assistance of counsel in two significant
respects: (1) his civilian defense counsel waived the Article 32
investigation without Garcia’s agreement; and (2) his military
defense counsel inexplicably failed to advise Garcia of the
range of options he faced when he eventually confessed his full
involvement to counsel near the conclusion of the Government’s
case-in-chief and thereafter failed to demonstrate a sound trial
strategy in the presentation of Garcia’s case. We will consider
each of these deficiencies separately. Given our conclusion
that these two deficiencies prejudiced Garcia, we need not
address the other alleged deficiencies in the defense team
performance.
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United States v. Garcia, No. 03-0151/MC
1. The Article 32 Investigation
Article 32 requires “a thorough and impartial
investigation” before any charges or specifications may be
referred to a general court-martial. At the investigation, the
accused has the right to be represented by counsel, to cross-
examine witnesses, and “to present anything he may desire in his
own behalf.” Article 32, UCMJ. The Article 32 investigation
“operates as a discovery proceeding for the accused and stands
as a bulwark against baseless charges.” United States v.
Samuels, 10 C.M.A. 206, 212, 27 C.M.R. 280, 286 (1959). The
procedures, rights and duties applicable to an Article 32
investigation are specified in Rule for Courts-Martial 405
[R.C.M.].
Pursuant to R.C.M. 405(k), “[t]he accused may waive an
[Article 32] investigation under this rule.” The precise form
or procedure for a waiver is not specified, and whether the
accused’s right to an Article 32 investigation is personal to
the accused is an issue of first impression at this Court. As
the Supreme Court has noted, “What suffices for waiver depends
on the nature of the right at issue. ‘Whether the defendant must
participate personally in the waiver; whether certain procedures
are required for waiver; and whether the defendant's choice must
be particularly informed or voluntary, all depend on the right
at stake.’" New York v. Hill, 528 U.S. 110, 114 (2000)(quoting
8
United States v. Garcia, No. 03-0151/MC
United States v. Olano, 507 U.S. 725, 733 (1993)). Garcia
argues that his personal consent to the waiver of his right to
an Article 32 investigation was required and we agree.
On this record, it is undisputed that Garcia’s civilian
defense counsel waived Garcia’s right to an Article 32
investigation without Garcia’s personal consent. We recognize
that in many situations consent or waiver by counsel is binding,
whether or not the client has personally consented or explicitly
agreed to waive a matter. “As to many decisions pertaining to
the conduct of the trial [e.g., what evidentiary objections to
raise or what agreements to conclude regarding the admission of
evidence], the defendant is ‘deemed bound by the acts of his
lawyer-agent . . . .’” Hill, 528 U.S. at 115 (quoting Link v.
Wabash R. Co., 370 U.S. 626, 634 (1962)).
However, the decision whether to waive a pretrial
investigation is unlike the many routine decisions a lawyer must
make as the trial progresses. It is, rather, a decision
fundamentally impacting a “substantial pretrial right” of the
accused. See United States v. Chuculate, 5 M.J. 143, 145
(C.M.A. 1978). Our treatment of Article 32 waivers in pretrial
agreements, for example, reflects that the right is personal to
the accused and we have tasked military judges with ensuring
that the waiver is freely given and fully understood. See
United States v. Schaffer, 12 M.J. 425, 429 (C.M.A.
9
United States v. Garcia, No. 03-0151/MC
1982)(“[T]here are obvious reasons why a military accused, with
the advice of counsel, may wish to initiate a waiver of an
Article 32 investigation[.]”); see also R.C.M. 910(f). We agree
with Garcia that the right to an Article 32 investigation is a
personal right, and in most instances cannot be waived without a
defendant’s informed consent.
It is possible that under other circumstances waiver of an
Article 32 investigation without the client’s personal consent
would not constitute ineffective assistance of counsel under
either or both prongs of Strickland, for example where there is
good cause for the failure to obtain personal consent, a sound
tactical decision or a lack of resultant prejudice. Here,
however, we see no such saving circumstances. We perceive no
sound strategic reasons for the waiver itself, and the record
reveals no benefit for Garcia in exchange for giving up his
right to an Article 32 investigation.
On the contrary, the record demonstrates that Garcia was
prejudiced. He did not have the opportunity to hear the
Government’s case against him and to assess the potential
strength of that case. If he had seen the case against him
prior to rather than in the midst of the trial, he might have
sought a plea agreement which would have limited his sentence.
The Government argues that it could have chosen to put on only a
“bare-bones” case at the Article 32 investigation, and thus
10
United States v. Garcia, No. 03-0151/MC
Garcia still might not have seen enough of the Government’s case
to persuade him to enter into a plea agreement. This argument
is based on a faulty premise: it is not the Government that
controls the Article 32 investigation, but rather an
investigating officer charged with making a thorough and
impartial investigation into the form and substance of the
charges, which includes the examination of available witnesses
requested by the accused. Article 32, UCMJ; R.C.M. 405.
Under these circumstances, we find that defense counsel’s
action in waiving Garcia’s right to an Article 32 investigation
without Garcia’s personal consent fell measurably below the
performance ordinarily expected of fallible lawyers, and that
there is a reasonable probability of a different result absent
that action. See Grigoruk, 56 M.J. at 307.
2. The Mid-Trial Advice to Confess
As noted, Garcia did not disclose the full extent of his
involvement to his military counsel until three days into the
presentation of the Government’s evidence. At that point,
defense counsel, who remained bound by the requirement to take
only those actions that were in the best interests of his
client, was left with a range of problematic options, including
exploring of the possibility of a plea agreement, changing his
plea to guilty, having Garcia remain silent, or having Garcia
confess and throw himself on the mercy of the court without
11
United States v. Garcia, No. 03-0151/MC
changing his plea. At this strategic crossroads, defense
counsel had the responsibility of explaining these options to
his client and obtaining the client’s fully informed consent as
to which path to follow. See Strickland, 466 U.S. at 688(noting that counsel’s duties include consulting with the
defendant on important decisions, keeping the defendant informed
of important developments, and bringing to bear “such skill and
knowledge as will render the trial a reliable adversarial
testing process”).
Instead, defense counsel inexplicably chose to advise
Garcia of a single and arguably the least tenable option.
Counsel failed to inform or discuss with Garcia any other
options. We find no reasonable explanation for defense
counsel’s failure to advise his client of the range of options
open to him. His performance in this regard fell measurably
below that standard ordinarily expected of fallible lawyers.
Relying on this limited, deficient advice, Garcia, the sole
witness in the defense case-in-chief, fully detailed his
involvement and the actions of his co-conspirators in the
charged offenses. Defense counsel explained to the members that
his intent in having Garcia testify was for the members to know
“the whole thing, the good, the bad, the worst, the ugly and the
uglier all together” in order to make an informed judgment. The
adversarial nature of our system of justice depends on partisan
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United States v. Garcia, No. 03-0151/MC
advocacy by both parties: the right to effective assistance of
counsel includes the right of the accused to a counsel who is
acting as an advocate for the accused, as opposed to a friend of
the court. United States v. Cronic, 466 U.S. 648, 656-57
(1984). By eliciting from Garcia the details of his criminal
activity and by conceding the “ugly” character of Garcia’s
actions, much of what defense counsel accomplished merely
assisted the Government and bolstered the case against Garcia.
During his lengthy and detailed examination of Garcia’s
criminal activity, defense counsel’s actions exhibited a clear
lack of a sound trial strategy that would have served the best
interests of his client. He did not attempt to elicit from
Garcia any expressions of remorse or contrition; this judicial
confession had no mitigating impact. In fact, defense counsel’s
direct examination opened the door for the prosecution in its
cross-examination to elicit aggravating and damaging details not
previously established, such as the fact that the escape route
of a planned armored-vehicle robbery went by a child day-care
center. Moreover, while the defense counsel argued during his
sentencing argument that Garcia was remorseful, he also made
arguments that served only to highlight Garcia’s culpability.
For example, defense counsel argued:
Was he three-and-a-half-pounds of trigger
pull away from [killing or injuring
someone]? Yes. He’s admitted to you that he
has put people’s lives in danger, and he has
13
United States v. Garcia, No. 03-0151/MC
told you how he feels about that, but the
bottom line is that we are not here to
punish him for that possibility.
It is difficult to discern a sound trial strategy in reminding
the members that Garcia was only “three-and-a-half-pounds of
trigger pull away from” homicide. Although we are not prepared
to say that the strategy chosen by defense counsel was per se
ineffective, under the circumstances before us, and given that
Garcia was not informed of other possible options, defense
counsel’s performance fell measurably below the performance
ordinarily expected of fallible lawyers.
The extreme harshness of the sentence returned by the
members is strong evidence that Garcia was prejudiced by the
aggravating testimony elicited from him as he followed defense
counsel’s advised course of action. The Government asked for a
$23,000 fine and confinement for 86 years, and the members
returned a sentence which included a fine of $60,000 and a
sentence of 125 years - $37,000 and 39 years more than even what
the Government thought was appropriate. Such an exceptionally
harsh sentence leads us to believe that there is a reasonable
probability of a different outcome to the court-martial had
defense counsel explored the range of available options with his
client. See Grigoruk, 56 M.J. at 307.
In conclusion, we find that the “strong presumption that
counsel's conduct falls within the wide range of reasonable
14
United States v. Garcia, No. 03-0151/MC
professional assistance” has been overcome. Strickland, 466
U.S. at 689. There was no reasonable explanation for the
defense team’s actions with regards to the Article 32 waiver.
That action, coupled with counsel’s advice to confess and his
subsequent lack of a coherent trial strategy, falls measurably
below the performance ordinarily expected of fallible lawyers.
There is a reasonable probability that, absent these errors,
there would have been a different result.
DECISION
We therefore set aside findings and sentence and the
decision of the Navy-Marine Corps Court of Criminal Appeals.
This case is returned to the Judge Advocate General. A
rehearing may be ordered upon completion of an Article 32
investigation and pretrial advice.
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United States v. Garcia, No. 03-0151
CRAWFORD, Chief Judge (dissenting):
I respectfully dissent from the majority’s unprecedented
treatment of (1) the waiver of the investigation pursuant to
Article 32, Uniform Code of Military Justice, 10 U.S.C. § 832(2000), and (2) the accused’s right to a mid-trial continuance,
as well as from the majority’s (3) hasty and fundamentally
unfair resolution of the ineffectiveness of counsel issue
without first ordering a hearing pursuant to United States v.
DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967). I fear the
unintended consequence of these actions will place this Court’s
opinion outside the judicial mainstream and undermine public
confidence in its decision-making.
The opinion fails to recognize that a majority of federal
courts have indicated that counsel may waive a preliminary
hearing and an indictment by a grand jury. See, e.g., New York
v. Hill, 528 U.S. 110, 114 (2000). These proceedings are
similar to the military’s investigation under Article 32.
Contrary to federal precedent, this is the first time in this
Court’s history that the majority holds that waiver of the
Article 32 investigation is a personal right of the accused.
Moreover, the Court’s holding implies that Appellant has a right
to a mid-trial continuance to negotiate a pretrial agreement
after a three-day presentation of Government testimony.
United States v. Garcia, No. 03-0151
The majority also resolves the allegation of
ineffectiveness based on an unchallenged affidavit from
Appellant, who over a number of months admittedly lied to both
his civilian and military defense counsel about his involvement
in the offenses, and only changed his mind mid-trial after the
Government’s three-day presentation of evidence to the court
members. The majority’s action is not only premature, but also
fundamentally unfair to defense counsel. To resolve the
ineffectiveness issue as to advice of counsel concerning a
guilty plea and a pretrial agreement, I would order a DuBay
hearing, rather than reverse at this level.
In United States v. Lewis, 42 M.J. 1 (C.A.A.F. 1995),
military and civilian defense counsel resisted the request for
an affidavit. This Court in Lewis chose to treat the pleadings
as a motion for intervention, and rejected defense counsel’s
assertion that the defense did not have to cooperate. In the
instant case, civilian defense counsel, a member of our bar, did
not furnish an affidavit as to the facts surrounding Appellant’s
plea. As in Lewis, this Court may legitimately request that
both counsels participate in a DuBay hearing to resolve the
facts surrounding their advice on the guilty plea, testimony at
trial, and a cap on any sentence. I feel it is inappropriate to
hold that counsel is ineffective without giving them a chance to
respond at a court-ordered DuBay hearing.
2