United States v. Fagan

IN THE CASE OF
UNITED STATES, Appellant
v.
Joshua M. FAGAN, Private
U.S. Army, Appellee
No. 03-5002
Crim. App. No. 20000891
United States Court of Appeals for the Armed Forces
Argued October 7, 2003
Decided February 4, 2004
ERDMANN, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., GIERKE, EFFRON, and BAKER, JJ., joined.
Counsel
For Appellant: Captain Mark A. Visger (argued); Colonel Lauren
B. Leeker, Lieutenant Colonel Margaret B. Baines, Major Jennifer
H. McGee, and Captain Christopher Graveline (on brief).
For Appellee: Captain Kathleen D. Schmidt (argued); Colonel
Robert D. Teetsel and Captain Sean S. Park (on brief);
Lieutenant Colonel E. Allen Chandler, Jr.
Amicus Curiae: Colonel LeEllen Coacher, Lieutenant Colonel
Lance B. Sigmon and Captain C. Taylor Smith (on brief) – for
United States Air Force Appellate Government Division.
Amicus Curiae: Colonel R. M. Favors, USMC, and Lieutenant Lars
C. Johnson, JAGC, USNR (on brief) – for United States Navy-
Marine Corps Appellate Review Activity, Government Division.
Military Judge: Kenneth Clevenger
This opinion is subject to editorial correction before final publication.
United States v. Fagan, No. 03-5002/AR
Judge ERDMANN delivered the opinion of the Court.
Private First Class Joshua Fagan entered guilty pleas and
was convicted by a military judge of larceny, forgery and the
wrongful use and distribution of marijuana, in violation of
Articles 121, 123, and 112a, Uniform Code of Military Justice
[hereinafter UCMJ], 10 U.S.C. §§ 921, 923 and 912a (2000). He
was sentenced by the military judge to 30 months confinement,
total forfeiture of pay and allowances and a dishonorable
discharge. The convening authority reduced the confinement to
20 months and approved the balance of the sentence.
Fagan's conviction and sentence were then submitted to the
United States Army Court of Criminal Appeals for automatic
review under Article 66(b)(1), UCMJ, 10 U.S.C. § 866(b)(1)
(2000). The Court of Criminal Appeals affirmed the guilty
findings but, for reasons more fully outlined below, reassessed
the sentence by affirming the dishonorable discharge and the
total forfeitures, but only 19 of the 20 months confinement.
United States v. Fagan, 58 M.J. 534, 539 (A. Ct. Crim. App.
2003).
The Judge Advocate General of the Army certified the case
to this Court for review of the following issues1:
I. WHETHER THE UNITED STATES ARMY COURT OF CRIMINAL
APPEALS ERRED IN CONCLUDING THAT THE SIX PRINCIPLES LAID
1
This case was certified under the provisions of Article
67(a)(2), UCMJ, 10 U.S.C. § 867(a)(2) (2000) and Rules 4 and 18
of this Court’s Rules of Practice and Procedure.
2
United States v. Fagan, No. 03-5002/AR
OUT IN UNITED STATES V. GINN, 47 M.J. 236 (1997), PROVIDE
THE PROPER DECISIONAL FRAMEWORK FOR ANALYZING ANY ISSUE
RAISED IN A POST-TRIAL AFFIDAVIT, INCLUDING ISSUES RAISED
UNDER UNITED STATES V. GROSTEFON, 12 M.J. 431 (C.M.A.
1982)?
II. WHETHER THE UNITED STATES ARMY COURT OF CRIMINAL
APPEALS ERRED IN CONCLUDING THAT THIS COURT'S DECISION IN
UNITED STATES V. GINN, 47 M.J. 236 (1997), PRECLUDED THAT
COURT FROM CONSIDERING THE GOVERNMENT AFFIDAVITS THAT
FACTUALLY CONFLICTED WITH APPELLANT'S POST-TRIAL AFFIDAVITS
AND FROM RESOLVING THE ISSUE IN THE GOVERNMENT'S FAVOR
WITHOUT ORDERING A HEARING PURSUANT TO THIS COURT'S
DECISION IN UNITED STATES V. DUBAY, 17 U.S.C.M.A. 147, 37
C.M.R. 411 (1967)?
III. WHETHER THE UNITED STATES ARMY COURT OF CRIMINAL
APPEALS ERRED IN CONCLUDING THAT IT HAD THE AUTHORITY TO
GRANT APPROPRIATE RELIEF UNDER THIS COURT'S DECISION IN
UNITED STATES V. WHEELUS, 49 M.J. 283 (1998), WHEN THE
COURT ADMITTED GOVERNMENT AFFIDAVITS SPECIFICALLY REBUTTING
APPELLANT'S POST-TRIAL AFFIDAVITS THAT MADE FACTUAL
ASSERTIONS OF CRUEL AND UNUSUAL PUNISHMENT?
We hold that the Court of Criminal Appeals properly
identified and applied United States v. Ginn, 47 M.J. 236(C.A.A.F. 1997) as the decisional framework for addressing
Fagan's claim of cruel and unusual punishment. We further hold
that the Court of Criminal Appeals erred in granting sentence
relief to Fagan in lieu of ordering further proceedings under
United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967).
BACKGROUND
At the conclusion of his trial in October of 2000, Fagan
began serving his confinement at the United States Army
Confinement Facility, Europe (USACFE) in Mannheim, Germany. In
January of 2001, he was transferred from USACFE to the Regional
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United States v. Fagan, No. 03-5002/AR
Confinement Facility at Fort Knox, Kentucky, to finish serving
the balance of his sentence.
As part of his appeal to the Court of Criminal Appeals,
Fagan asserted that, while confined at USACFE, he had been
subjected to cruel and unusual punishment in violation of the
Eighth Amendment to the United States Constitution and Article
55, UCMJ, 10 U.S.C. § 855 (2000). In support of his claim, he
submitted an affidavit to the Court of Criminal Appeals
asserting that he was "repeatedly subjected to physical abuse"
by a certain guard (SGT D) who conducted "overly aggressive
frisks" when Fagan was leaving the dining area. He indicated
that, on approximately five occasions, SGT D "forcefully took
his hand up the inside of [Fagan's] groin area and, what can
described as similar to a karate chop, . . . would use the side
of his hand to slap [Fagan's] testicle area."
He also indicated that, on approximately five occasions,
SGT D would, "using two hands, hold the waistband of [Fagan's]
pants, tugging and yanking [his] pants in an upward motion so
that [his] underwear and pants seams would forcibly be tucked up
into [his] testicles and between [his] buttocks." According to
his affidavit, these instances caused Fagan excruciating pain
that lasted several minutes. Fagan alleged that he did not
report these instances of abuse because of fear of retaliation
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United States v. Fagan, No. 03-5002/AR
based on his observation of "repercussions" suffered by other
inmates who had made reports against guards.
In addition to his own affidavit, Fagan submitted
affidavits from eight other inmates who had been confined at
USACFE well before Fagan's arrival there, primarily between
March and October 1999. The eight affidavits contained "nearly
identical" allegations of mistreatment by SGT D and had been
previously considered by the Court of Criminal Appeals in
another proceeding. Fagan, 58 M.J. at 535 n.2 (describing
affidavits submitted in United States v. Kinsch, 54 M.J. 641 (A.
Ct. Crim. App. 2000)).
In response to Fagan's claim and submissions, the
Government submitted affidavits from SGT D and MAJ Suskie, the
commander at USACFE during the period of time that Fagan's
mistreatment was alleged to have occurred. In his affidavit,
SGT D categorically denied any specific recollection of Fagan
and any abusive activity towards any inmate during frisk
searches or "pat down" procedures. MAJ Suskie also denied any
recollection of Fagan and any awareness of SGT D having
aggressively frisked inmates.
The Court of Criminal Appeals turned to the framework of
United States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997) to address
Fagan's claim of cruel and unusual punishment. Fagan, 58 M.J.
at 536. While expressing dissatisfaction with that framework,
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United States v. Fagan, No. 03-5002/AR
the court ultimately concluded that "the clear mandate" in Ginn
would require additional factfinding regarding Fagan's claim
under the procedures set forth in DuBay. Rather than order such
proceedings, however, the court elected to "moot the issue" by
granting sentence relief under United States v. Wheelus, 49 M.J.
283 (C.A.A.F. 1998) and reduced Fagan's confinement from 20
months to 19 months. Id. at 538.
The Court of Criminal Appeals then went on to characterize
the interplay between Ginn and Wheelus as "far from clear" and
took "the unusual step" of recommending that the Judge Advocate
General send the case to this Court for review of the issues
outlined above. Id. All three issues involve questions of law
and we address them de novo. United States v. Sales, 56 M.J.
255, 258 (C.A.A.F. 2002)(reviewing de novo the issue of whether
lower court properly applied Ginn principles)
DISCUSSION
A. The Ginn Framework
This case involves the manner in which the military justice
system deals with "collateral" claims. Fagan's post-trial claim
of cruel and unusual punishment is "collateral" in the most
classic sense -- it has nothing to do with his guilt or
innocence of the crimes of which he stands convicted. See
United States v. Dykes, 38 M.J. 270, 272 (C.A.A.F.
6
United States v. Fagan, No. 03-5002/AR
1993)(collateral claim is one which does not go directly to the
issue of the guilt or innocence of accused).
In the realm of state and federal criminal law these
claims are typically raised through a separate post-conviction
proceeding where evidentiary hearings are held. Judges or
magistrates make factual findings and conclusions of law that an
appellate court can later review and consider. United States v.
Polk, 32 M.J. 150, 152 (C.M.A. 1991). In the military justice
system, however, there is no separate procedural mechanism
available for raising and litigating these claims. Rather, they
typically present themselves in the form of affidavits or
unsworn allegations submitted as part of the direct appeal
process. Id.In light of that reality, this Court "long ago recognized"
that resolution of these post-trial claims requires a procedure
by which the Courts of Criminal Appeals, as well as this Court,
may expand the record of trial where appropriate through an
evidentiary hearing. Dykes, 38 M.J. at 272. The origin of that
process is found in DuBay, where we remanded that case for a
fact-finding hearing on post-trial claims of unlawful command
influence. The so-called "DuBay hearing" has since become a
well-accepted procedural tool for addressing a wide range of
post-trial collateral issues. See e.g., United States v. Mack,
58 M.J. 413, 415 (C.A.A.F. 2003)(question of whether certain
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United States v. Fagan, No. 03-5002/AR
members were properly detailed to court-martial); United States
v. Baker, 58 M.J. 380, 387 (C.A.A.F. 2003)(ineffective
assistance of counsel claim); United States v. Hurn, 55 M.J.
446, 450 (C.A.A.F. 2001)(claim of racial discrimination in
exercise of peremptory challenge).
Our decision in Ginn simply addresses the threshold aspect
of the DuBay process. Specifically, it focuses on the
circumstances under which a DuBay hearing is required to resolve
a post-trial claim that is framed by conflicting affidavits. We
recognized in Ginn that Article 66(c) does not authorize a Court
of Criminal Appeals to decide disputed questions of material
fact pertaining to a post-trial claim, solely or in part on the
basis of conflicting affidavits submitted by the parties. Ginn,
47 M.J. at 243.
We also recognized, however, that a post-trial evidentiary
hearing is not required in every case simply because an
affidavit is submitted by an appellant. Id. at 248; see also
United States v. Guthrie, 53 M.J. 103, 105 (C.A.A.F. 2000)(mere
submission of an affidavit by an appellant does not trigger the
need for a post-trial evidentiary hearing); Dykes, 38 M.J. at
273 (cautioning military law practitioners that mere submission
of post-trial affidavits does not usually require an evidentiary
hearing in order to resolve a post-trial collateral claim). In
the context in which Ginn was presented, i.e., an ineffective
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United States v. Fagan, No. 03-5002/AR
assistance of counsel claim, we outlined the following
principles for determining when a factfinding DuBay hearing is
required:
First, if the facts alleged in the affidavit allege an
error that would not result in relief even if any factual
dispute were resolved in appellant's favor, the claim may
be rejected on that basis.
Second, if the affidavit does not set forth specific
facts but consists instead of speculative or conclusory
observations, the claim may be rejected on that basis.
Third, if the affidavit is factually adequate on its
face to state a claim of legal error and the Government
either does not contest the relevant facts or offers an
affidavit that expressly agrees with those facts, the court
can proceed to decide the legal issue on the basis of those
uncontroverted facts.
Fourth, if the affidavit is factually adequate on its
face but the appellate filings and the record as a whole
"compellingly demonstrate" the improbability of those
facts, the Court may discount those factual assertions and
decide the legal issue.
Fifth, when an appellate claim of ineffective
representation contradicts a matter that is within the
record of a guilty plea, an appellate court may decide the
issue on the basis of the appellate file and record
(including the admissions made in the plea inquiry at trial
and appellant's expression of satisfaction with counsel at
trial) unless the appellant sets forth facts that would
rationally explain why he would have made such statements
at trial but not upon appeal.
Sixth, the Court of Criminal Appeals is required to
order a factfinding hearing only when the above-stated
circumstances are not met. In such circumstances the court
must remand the case to the trial level for a DuBay
proceeding. During appellate review of the DuBay
proceeding, the court may exercise its Article 66
factfinding power and decide the legal issue.
9
United States v. Fagan, No. 03-5002/AR
Ginn, 47 M.J. at 248. The first two issues presented to this
Court by the Judge Advocate General involve the application of
that framework to Fagan's post-trial claim of cruel and unusual
punishment.
B. Application of the Ginn Framework
The Court of Criminal Appeals was correct in identifying
Ginn as the appropriate framework for addressing Fagan's claim.
While Ginn was decided in the context of an ineffective
assistance of counsel claim, its principles are applicable to a
broader range of affidavit-based, post-trial collateral claims.
See e.g., Hurn, 55 M.J. at 449 (affidavit-based uncertainties
regarding claim of racial discrimination in exercise of
peremptory challenge); United States v. Sherman, 51 M.J. 73, 75-
76 (C.A.A.F. 1999)(affidavit-based fact question as to existence
of sub rosa agreement between counsel).
Contrary to the assessment of the Court of Criminal
Appeals, however, there are no "problems" presented by the Ginn
framework that are "compounded" by our decision in United States
v. Grostefon, 12 M.J. 431 (C.M.A. 1982).2 Fagan, 58 M.J. at 537-
38. Our decision in Grostefon simply prescribed a "rule of
practice" which requires, at a minimum, that when an accused
2
While this case does not involve any Grostefon claims, the
Court of Criminal Appeals discussed the problems they perceived
to be aggregated by Grostefon under a Ginn analysis. We
therefore chose to clarify this issue.
10
United States v. Fagan, No. 03-5002/AR
specifies any error in his request for appellate representation
or in some other form, the appellate defense counsel will invite
the attention of the Court of Criminal Appeals to those issues.
That court will review those issues and specifically acknowledge
that it has considered and disposed of them. United States v.
Knight, 15 M.J. 202, 204 (C.M.A. 1983)(characterizing
Grostefon).
The linchpin of the Ginn framework is the recognition that
a Court of Criminal Appeals' factfinding authority under Article
66(c) does not extend to deciding disputed questions of fact
pertaining to a post-trial claim, solely or in part on the basis
of conflicting affidavits submitted by the parties. Ginn, 47
M.J. at 243. There is nothing inherent in the Grostefon
procedure that amplifies, restricts or even impacts upon Article
66(c) authority in the context of affidavit-based post-trial
claims, which is the context in which Ginn arises. The fact
that these claims may be assigned as error by counsel or raised
by an appellant under Grostefon has no impact on the Ginn
analysis.
We now turn to the Court of Criminal Appeals' application
of the Ginn framework to Fagan's claim. The first Ginn factor
looks at whether the facts alleged in the affidavit, if true,
would result in relief. Ginn, 47 M.J. at 248. If the facts
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United States v. Fagan, No. 03-5002/AR
sworn to by Fagan in his affidavit are taken as true, they could
result in relief.
The second Ginn factor considers whether the affidavit sets
forth speculative or conclusory observations rather than
specific facts. Fagan's affidavit and the others he filed in
support of his claim are fact specific and his claim cannot be
rejected on that basis.
The third Ginn factor involves the situation where the
facts in the affidavit are either not contested by the
Government or agreed to by the Government. The facts material
to Fagan's treatment at USACFE have been directly contested by
the Government's counter-affidavits and Fagan's assertions
cannot be disposed of as a legal claim based on uncontroverted
facts. Id.
Under the fourth Ginn factor, if the affidavit is factually
adequate on its face, but the appellate filings and the record
as a whole “compellingly demonstrate” the improbability of those
facts, a hearing is not necessary. Id. This factor requires an
assessment of that portion of "the appellate filings and the
record as a whole" apart from any conflicting affidavits and a
determination as to whether that broader framework "compellingly
demonstrates" the improbability of the factual assertions
underlying the claim. As Fagan's claim relates to events that
occurred after trial, there is nothing in the present record of
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United States v. Fagan, No. 03-5002/AR
trial to "compellingly demonstrate" the improbability of his
assertions. The only matters in the "appellate filings" are his
affidavit-based assertions, the affidavits from other inmates at
USACFE and the opposing Government affidavits. In this case it
is not possible to conclude that the Government’s affidavits
“compellingly demonstrate” the improbability of the assertions
made in the affidavits submitted by Fagan without engaging in
precisely the sort of appellate fact-finding that we rejected in
Ginn.3
While the fifth Ginn factor is articulated in the specific
context of an ineffective assistance of counsel claim, the Ginn
framework applies outside of that specific context. From that
more general perspective, the fifth factor refers to matters
within the record of a guilty plea that contradict the
assertions made in support of the post-trial claim. Id. at 248.
While Fagan entered guilty pleas to his offenses, his claim
relates to matters that allegedly occurred well after his trial
and his entry of those guilty pleas. Accordingly, they shed no
light on the matter.
3
We also note that the appellate filings before the Court of
Criminal Appeals drew that court’s attention to its earlier
dispositions in a number of cases involving allegations against
SGT D by other prisoner affiants. Those earlier dispositions
included factual determinations that SGT D had engaged in the
same misconduct that Fagan now alleges, which makes it difficult
to now view the present record as “compellingly demonstrating”
the improbability of those assertions.
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United States v. Fagan, No. 03-5002/AR
As the Court of Criminal Appeals properly recognized,
Fagan's claim of cruel and unusual punishment resides in the
sixth and final Ginn category and his case must be remanded to
the trial level for a DuBay hearing.
A DuBay hearing is not required here simply because Fagan
filed an affidavit -- the mere submission of an affidavit does
not trigger the need for a post-trial evidentiary hearing.
Guthrie, 53 M.J. at 105. Nor is it the mere filing of
responsive affidavits from the Government that triggers the
requirement for a DuBay hearing. The Ginn framework requires a
DuBay hearing only if the opposing affidavits raise a fact
dispute that is "material" to the resolution of the post-trial
claim and the claim cannot be otherwise resolved through the
application of the five Ginn factors. Ginn, 47 M.J. at 244-45;
see also United States v. Murphy, 50 M.J. 4, 11 (C.A.A.F.
1998)(recognized that Ginn condemned the resolution of disputes
of material fact based on mere affidavits.)
In the present case, it is the inapplicability of any of
the five Ginn factors and the presence of affidavits that raise
material fact disputes concerning Fagan's claim that require a
DuBay hearing. We turn now to the issue of whether the court
erred in not directing those further proceedings.
C. Application of Wheelus
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United States v. Fagan, No. 03-5002/AR
After properly concluding that the "clear mandate" of Ginn
would require a DuBay hearing in this case, the Court of
Criminal Appeals went on to conclude that this mandate was "in
conflict" with its "broad power to moot claims of prejudice"
under United States v. Wheelus, 49 M.J. 283 (C.A.A.F. 1998).
Fagan, 58 M.J. at 538. Rather than order a DuBay hearing under
Ginn, the court elected to simply grant sentence relief to Fagan
"under Wheelus." Id.
As with its misperception of a "problem" created by Ginn
and Grostefon, the Court of Criminal Appeals similarly perceived
a "conflict" between Ginn and Wheelus where none exists. The
central principles of these two cases are completely independent
of one another.
The "broad power to moot claims of prejudice" as referred
to in the context of Wheelus is a remedial tool available to
address acknowledged post-trial processing errors. In Wheelus,
the Government conceded that the staff judge advocate did not
fulfill his obligation to inform the convening authority of
certain pretrial restraint matters. Wheelus, 49 M.J. at 285.
While noting that appellate courts do not have clemency powers
per se, the Court in Wheelus noted that they do have
broad power to moot claims of prejudice by “affirm[ing]
only such findings of guilty and the sentence or such part
or amount of the sentence, as it finds correct in law and
fact and determines, on the basis of the entire record,
should be approved.”
15
United States v. Fagan, No. 03-5002/AR
Id. at 288 (quoting Article 66(c)). The Court went on to cite
United States v. Cook, 46 M.J. 37 (C.A.A.F. 1997) as an example
of this “broad power”, where the Government failed to afford an
accused the opportunity to respond to "new matter" in the staff
judge advocate recommendation. There the Court of Criminal
Appeals ordered a sentence reduction rather than remand the case
to the convening authority for a new recommendation and action.
The exercise of the "broad power" referred to in Wheelus
flowed from the existence of an acknowledged legal error or
deficiency in the post-trial review process. It is not a "broad
power to moot claims of prejudice" in the absence of an
acknowledged legal error or deficiency, nor is it a mechanism to
"moot claims" as an alternative to ascertaining whether a legal
error or deficiency exists in the first place.
In terms of Fagan's claim, he may be entitled to relief if
he did in fact suffer a violation of the rights guaranteed him
by the Eighth Amendment and Article 55. However "broad" it may
be, the "power" referred to in Wheelus does not vest the Court
of Criminal Appeals with authority to eliminate that
determination and move directly to granting sentence relief to
Fagan. Rather, a threshold determination of a proper factual
and legal basis for Fagan's claim must be established before any
entitlement to relief might arise.
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United States v. Fagan, No. 03-5002/AR
As Fagan's claim is post-trial, collateral and affidavit-
based, Ginn is the appropriate threshold framework under which
the claim needs to be evaluated. No post-trial collateral error
or deficiency has been acknowledged and Wheelus does not come
into play until, and unless, that acknowledgement is made. The
Court of Criminal Appeals erred in relying on Wheelus as a basis
for granting sentence relief to Fagan in lieu of ordering a
DuBay hearing.
CONCLUSION
We answer the first and second issues directed to us for
review by the Judge Advocate General in the negative and answer
the third issue in the affirmative. The decision of the United
States Army Court of Criminal Appeals is set aside. The record
of trial is returned to the Judge Advocate General of the Army
for submission to a convening authority for a DuBay hearing on
Fagan's claim of cruel and unusual punishment. The military
judge at such hearing shall make findings of fact and
conclusions of law and then return the record of trial to the
Court of Criminal Appeals for further review under Article
66(c). Thereafter, Article 67 shall apply.
17