United States v. Burt

UNITED STATES, Appellee
v.
Bernard D. BURT, Senior Airman
U.S. Air Force, Appellant
No. 01-0351
Crim. App. No. 33429
United States Court of Appeals for the Armed Forces
Argued October 24, 2001
Decided January 24, 2002
CRAWFORD, C.J., delivered the opinion of the Court, in
which EFFRON and BAKER, JJ., and SULLIVAN, S.J., joined.
GIERKE, J., filed an opinion concurring in part and in the
result.
Counsel
For Appellant: Captain Kyle R. Jacobson (argued); Lieutenant
Colonel Beverly B. Knott and Lieutenant Colonel Timothy W.
Murphy (on brief); Colonel James R. Wise.
For Appellee: Major Eric D. Placke (argued); Colonel
Anthony P. Dattilo, Major Lance B. Sigmon, and Captain Matthew
J. Mulbarger (on brief).
Military Judge: William M. Burd
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Burt, No. 01-0351/AF
Chief Judge CRAWFORD delivered the opinion of the Court.
In May 1998, contrary to his pleas, appellant was convicted
by officer and enlisted members of failing to obey a lawful
order to report for random urinalysis testing, failing to obey a
no-contact order, wrongful use of marihuana, assault consummated
by a battery, and adultery, in violation of Articles 92, 112a,
128, and 134, Uniform Code of Military Justice, 10 USC §§ 892,
912a, 928, and 934. At the time of this court-martial,
appellant had 255 months of active service with the United
States Air Force and was otherwise retirement eligible. The
convening authority approved a sentence of a bad-conduct
discharge, confinement for two years, and reduction to the
lowest enlisted grade. Pursuant to Article 58b, UCMJ, 10 USC
§ 858b, the convening authority waived automatic forfeitures for
the benefit of appellant’s wife and dependent children. The Air
Force Court of Criminal Appeals affirmed the findings and
sentence. 54 M.J. 687 (2001).
Appellant now claims that he received ineffective
assistance of counsel during his sentencing proceedings.1 We
review claims of ineffective representation de novo. United
1
The Court granted the following Issue:
WHETHER APPELLANT RECEIVED EFFECTIVE ASSISTANCE OF COUNSEL FOR
SENTENCING WHEN HIS COUNSEL REQUESTED THAT THE MILITARY JUDGE NOT
INSTRUCT THE MEMBERS REGARDING THE IMPACT OF A PUNITIVE DISCHARGE ON
RETIREMENT BENEFITS AND THEN ARGUED TO THE COURT MEMBERS THAT,
REGARDLESS OF WHAT SENTENCE THEY IMPOSED, APPELLANT WOULD STILL RETIRE
“IN THE NEXT THIRTY DAYS.”
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United States v. Burt, No. 01-0351/AF
States v. Lee, 52 M.J. 51, 52 (1999). For the reasons contained
herein, we affirm the decision of the Court of Criminal Appeals.
This was appellant’s second court-martial. In May 1997,
appellant was convicted by a general court-martial of wrongful
use of both marijuana and cocaine, and was sentenced, inter
alia, to a reduction from Master Sergeant to Senior Airman (E-
4).
Sentencing proceedings during the court-martial now under
review were brief. The Government introduced over fifty pages
of documents that fairly captured appellant’s career in the Air
Force. Included in this documentation were his enlisted
performance reports for approximately twenty years of service
and a personnel data sheet reflecting four previous honorable
discharges, foreign service in Italy and the United Kingdom, his
awards and decorations, and the fact that he was married with
three dependents. The Government presented no witnesses in
aggravation.
The defense’s case consisted of eleven exhibits and
appellant’s unsworn testimony. Among these exhibits were over
fifty pages of letters and certificates of appreciation,
statements of good character from both senior civilians and
enlisted members, and a note from appellant’s wife asking the
convening authority to consider her and the children because
they depended on appellant’s support for fifty percent of their
livelihood.
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United States v. Burt, No. 01-0351/AF
While addressing the court members, appellant thanked them
for their time and consideration in reaching the verdict; talked
about his life before the Air Force; spoke about his time in the
Air Force and some of the highlights of his twenty-one-year
career; explained how his marriage failed as early as 1992, but
that he and his wife, while separated, continued to be married
so that she and the children would have some support; expressed
regret for his relationship with the woman that he assaulted, as
well as with whom he committed adultery; expressed remorse for
his conduct; and asked the members to consider not only his
service record, but also his family’s need for continued
financial support when sentencing him.
Prior to instructing the members on sentencing, the
military judge ascertained that appellant was retirement
eligible. At that time, the following colloquy occurred between
the military judge and defense counsel:
MJ: There is an optional instruction that may
be appropriate. Let me read this to you.
If a punitive discharge is adjudged, if
approved and ordered executed, the accused
will lose all retirement benefits. However,
regardless of the sentence of this court,
even if a punitive discharge is adjudged,
the Secretary of the Air Force or his
designee may instead allow the accused to
retire from the Air Force.
Does either side request that instruction?
DC: Your Honor, we would not like that instruction.
MJ: Should I interpret that as an objection?
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United States v. Burt, No. 01-0351/AF
DC: Yes, Your Honor
After the Court of Criminal Appeals rendered its decision
in this case, Captain Hecker, one of appellant’s trial defense
counsel, provided a declaration explaining that the trial
defense team rejected the military judge’s proposed instruction
because a part of the instruction “could make the members
believe that such Secretarial clemency action was routinely
given. Instead..., we decided that we could argue that the
punitive discharge would result in the loss of retirement
benefits for SrA Burt, since that was an accurate statement of
the law.” With the benefit of hindsight, counsel now argues
that the decision to reject the military judge’s instruction was
error, in light of civilian defense counsel’s “convoluted and
ineffective argument” that contained “false and inflammatory
comment.”
During his sentencing argument, trial counsel fairly and
forcefully noted that appellant now had two general court-
martial convictions within one year. While alluding to the fact
that appellant probably deserved a dishonorable discharge, trial
counsel told the members that “a bad-conduct discharge [will
get] the point across.” Trial counsel addressed the retirement
issue, arguing that appellant was given a chance after his first
court-martial conviction to earn his retirement and support the
family about whom he professed to care. Instead, appellant
forfeited that opportunity to earn a retirement pension while
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United States v. Burt, No. 01-0351/AF
engaging in further serious misconduct, to include continuing to
use marijuana.
In response, civilian defense counsel emphasized that
appellant had over twenty years of honorable service with four
honorable discharges, and that the members needed to consider
the “whole person” when fashioning a sentence. Contrary to
appellant’s contention, civilian defense counsel’s argument was
focused and demonstrated a trial strategy. In particular,
counsel emphasized that jail would “accomplish nothing.” With
two federal convictions and a military background in the areas
of security and intelligence, appellant essentially had non-
employable skills and would need to start anew in the labor
force. Counsel emphasized that his client was forty-one years
old and needed counseling, but not imprisonment.
The gravamen of appellant’s argument revolves around
civilian counsel’s statement concerning appellant’s retirement.2
When arguing that appellant was not a threat to society and that
imprisonment would serve no rehabilitating purpose, counsel
said: “If you give him a letter of reprimand, he’s still going
to retire here in the next 30 days.” Counsel continued that
theme later: “A punitive discharge is really not going to
accomplish much. It might make everyone feel better and boy, we
2
In the words of CPT Hecker: “[T]he sentencing argument given by Mr.
Buckingham [civilian defense counsel] was horrendous and caused great
prejudice to SrA Burt.”
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United States v. Burt, No. 01-0351/AF
sure showed him, but he’s going to be gone. He’s going to be a
memory.”
In rebuttal to defense counsel’s argument, trial counsel
pointed out:
There is no evidence of when he is leaving the
service. We heard oh, in 30 days. Where did
that number come from? You’ve already heard from
the military judge that the only evidence you
hear in the courtroom comes from witnesses and
documents. Where did that come from? Argument.
When invited by the military judge to respond, civilian
defense counsel said: “[K]eep in mind that a punitive discharge
is not necessary to ensure that he doesn’t remain on active
duty.” After trial counsel objected, and the military judge
overruled the objection, defense counsel continued: “Regardless,
a punitive discharge is going to be another black mark on his
record, and he is going to have to overcome that. That just
puts more and more obstacles in front of him. Yeah, you could
easily conclude that that’s appropriate. Put as many obstacles
out there for the rest of his life as needed. But again, go
back to that whole man, the whole career.”
In reviewing claims of ineffective assistance of counsel de
novo, we begin our analysis with Strickland v. Washington, 466
U.S. 668 (1984). There, the Supreme Court set out a two-prong
test: “First, the defendant must show that counsel’s
performance was deficient.... Second, the defendant must show
that the deficient performance prejudiced the defense.” Id. at
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687. Testing defense counsel’s performance by asking the three
questions posed in the United States v. Polk, 32 M.J. 150, 153
(CMA 1991), we conclude that appellant has failed to overcome
counsel’s presumed competence and to show any specific area
where trial defense counsel’s performance was deficient under
prevailing professional norms. See United States v. Cronic, 466
U.S. 648 (1984); United States v. Scott, 24 M.J. 186 (CMA 1987).
“Defense counsel is an advocate for the accused, not an
amicus to the court.” United States v. Volmar, 15 M.J. 339, 340
(CMA 1983), citing Ellis v. United States, 356 U.S. 674 (1958).
To be an effective advocate, trial defense counsel is required
to discuss with an accused the various components of a military
sentence, i.e., confinement, discharge, reduction in rank, and
forfeitures, and after such counseling and in accordance with
his client’s wishes, zealously represent his or her client. See
United States v. Pineda, 54 M.J. 298 (2001); cf. New York v.
Hill, 528 U.S. 110, 114-15 (2000)(client bound by counsel’s
tactical choices).
It is well settled that a punitive discharge from a
component of the armed forces is severe punishment. See United
States v. McNally, 16 M.J. 32, 33 (CMA 1983). The impact of a
punitive discharge increases after the servicemember becomes
retirement eligible, as in the case at bar. See United States
v. Boyd, 55 M.J. 217, 220 (2001). Counsel errs by conceding the
appropriateness of a punitive discharge when an accused wishes
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United States v. Burt, No. 01-0351/AF
to remain in the service or otherwise avoid such a separation.
See United States v. Robinson, 25 M.J. 43 (CMA 1987); United
States v. Webb, 5 M.J. 406 (CMA 1978); United States v. Holcomb,
20 USCMA 309, 43 CMR 149 (1971).
While it is clear appellant did not wish to receive a
punitive discharge, thereby hoping to save his retirement pay,
the defense counsel’s argument neither conceded the
appropriateness of a discharge nor “convey[ed] to the members
that appellant’s retirement was untouchable and any action the
members took would have no effect.” Defense Brief at 7. To the
contrary, civilian defense counsel’s argument focused on
appellant’s first twenty years of unblemished service to the
nation and asked the members to consider the whole man when
judging an appropriate sentence. In other words, defense
counsel’s tactic was to show that appellant had legitimately
earned his retirement through twenty years of faithful,
honorable service, and it was only after appellant’s retirement
vested that he “went bad.”
Contrary to appellate defense counsel’s stance, there was
no concession in civilian trial defense counsel’s argument that
his client had no rehabilitative potential. His point to the
court members was that the realities of the situation dictated
that the Air Force would somehow remove appellant from active
duty in light of his retirement eligibility and two court-
martial convictions within a twelve-month period. Effective
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United States v. Burt, No. 01-0351/AF
advocacy requires an astute, reflective evaluation of a set of
circumstances with rational, tactical trial choices flowing
therefrom.
Finally, defense counsel’s tactical decision to reject the
proposed instruction concerning loss of retirement benefits
represented a logical choice not to let the members off the
proverbial hook. In the absence of that instruction, the court
members were forced to come to grips with the hard decision of
whether to impose a punitive discharge and strip appellant of
his retirement pay and benefits without being told (and perhaps
reassured) that the Secretary of the Air Force could override
their sentence and allow appellant to retire and receive the
fruits of that retirement. Thus, we find no error in trial
defense counsel’s representation of appellant.
The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
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United States v. Burt, No. 01-0351/AF
GIERKE, Judge (concurring in part and in the result):
In my view, it is unnecessary to decide whether
civilian defense counsel’s performance was deficient under
Strickland v. Washington, 466 U.S. 668 (1984), because
appellant was not prejudiced. Appellant had a previous
conviction by general court-martial for wrongful use of
marijuana and wrongful use of cocaine. He was convicted in
this case, only nine months after his previous court-
martial, of wrongful use of marijuana, two specifications
of disobedience of orders, assault consummated by a
battery, and adultery. With this record, there was no
reasonable likelihood that appellant’s sentence would not
have included a punitive discharge. Accordingly, I agree
with the majority that a sentence rehearing is not
required. See United States v. Pineda, 54 M.J. 298, 301
(2001) (sentence rehearing unnecessary “where the facts of
a given case compel a conclusion that a bad-conduct
discharge was reasonably likely”).