United States v. Gilley

UNITED STATES, Appellee
v.
David E. GILLEY, Technical Sergeant
U. S. Air Force, Appellant
No. 00-0559
Crim. App. No. 32877
________________________________________________________________
United States Court of Appeals for the Armed Forces
Argued November 15, 2000
Decided November 15, 2001
BAKER, J., delivered the opinion of the Court, in which GIERKE and
EFFRON, JJ., joined. CRAWFORD, C.J., filed an opinion concurring in
part and in the result. SULLIVAN, S.J., filed an opinion concurring
in part and dissenting in part.
Counsel
For Appellant: Major Jeffrey A. Vires (argued); Lieutenant
Colonel James R. Wise and Lieutenant Colonel Timothy W. Murphy
(on brief); Major Stephen P. Kelly and Major Thomas R. Uiselt.
For Appellee: Lieutenant Colonel Karen L. Manos (argued);
Colonel Anthony P. Dattilo, Lieutenant Colonel Ronald A.
Rodgers, and Captain Christa S. Cothrel (on brief); Lieutenant
Colonel William B. Smith.
Military Judge: Howard R. Altschwager
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION
United States v. Gilley, No. 00-0559/AF
Judge BAKER delivered the opinion of the Court.
On April 22-23, 1997, appellant was tried by a general
court-martial consisting of officer and enlisted members.
Appellant was charged with nine specifications of committing
indecent acts on his three stepchildren and four specifications
involving assault and battery of the same children, in violation
of Articles 134 and 128, Uniform Code of Military Justice, 10
USC §§ 934 and 928. He was convicted of six specifications of
indecent acts and one specification of assault and battery.
Appellant was sentenced to a dishonorable discharge, confinement
for ten years, total forfeiture of pay and allowances, and
reduction to E-1. The convening authority approved the adjudged
sentence. The Air Force Court of Criminal Appeals affirmed.
This Court granted review of the following issues:
I.
WHETHER THE MILITARY JUDGE COMMITTED PLAIN ERROR
WHEN, CONTRARY TO MILITARY RULE OF EVIDENCE 301
(f)(3), HE ADMITTED EVIDENCE THAT WHEN QUESTIONED
BY INVESTIGATORS, APPELLANT ELECTED TO REQUEST
COUNSEL AND ALLOWED TRIAL COUNSEL TO REFER TO
APPELLANT’S REQUEST FOR COUNSEL IN HIS FINDINGS
ARGUMENT AND FAILED TO PROVIDE A CURATIVE
INSTRUCTION, THEREBY PERMITTING A VIOLATION OF
APPELLANT’S RIGHT UNDER THE FIFTH AMENDMENT OF
THE UNITED STATES CONSTITUTION AND ARTICLE 31 OF
THE UNIFORM CODE OF MILITARY JUSTICE.
2
United States v. Gilley, No. 00-0559/AF
II.
WHETHER APPELLANT WAS DENIED EFFECTIVE ASSISTANCE
OF COUNSEL DURING THE POST-TRIAL PHASE OF HIS
COURT-MARTIAL.
For the reasons cited below, as to Issue I, we hold the
military judge did not commit plain error. However, as to Issue
II, we hold appellant did not receive effective, post-trial
assistance of counsel. As a result, we return this case for
further action.
FACTS
Appellant was convicted of committing indecent acts on his
three stepchildren (ages ten to fourteen), and committing an
assault and battery on a stepdaughter. The evidence showed that
appellant convinced the children to let him commit the indecent
acts by giving them money and telephone privileges, and letting
them spend the night with friends. Appellant and his wife also
had two biological children, but neither of these children was
involved in the offenses.
The defense theory of the case had several components.
First, that the sexual misconduct with his stepchildren never
happened. According to appellant, his stepchildren were
controlled by their mother and had been coached to lie in order
to receive victim assistance money. In those instances where
appellant did not deny the conduct at issue, he claimed that he
3
United States v. Gilley, No. 00-0559/AF
and the children were just playing around and were not engaged
in sexual misconduct. Second, regarding the assault and
battery, appellant claimed that he was administering fair
punishment. Third, appellant attempted to discredit two of the
three investigators by implying that they fabricated appellant’s
oral confessions based on their prior knowledge of the
stepchildren’s allegations. Appellant claimed the investigators
then put those fabrications in a written statement, which
appellant refused to sign because it contained fabrications.
ISSUE I
The allegations arose in Loudoun County, Virginia. On July
30, 1996, Donald Canham, a criminal investigator with the
Loudoun County Sheriff’s Office, with thirty years of
experience, interviewed appellant along with Special Agent (SA)
Washington of the Air Force Office of Special Investigations
(AFOSI) and Henry Stribling (a Loudoun County Social Services
Child Protection case worker). Appellant was advised of his
Fifth Amendment rights and elected to cooperate and answer
questions. When confronted with the allegations, appellant
initially said he had no recollection of the alleged acts.
Appellant later admitted to several of the allegations.
Following this interview, Loudoun County authorities
released jurisdiction to the Air Force. On August 1, 1996, SA
Richardson and SA Washington interviewed appellant at Bolling
4
United States v. Gilley, No. 00-0559/AF
Air Force Base. SA Washington did the questioning; SA
Richardson primarily took notes. The interview began between
9:00 and 9:30 a.m. By the time the interview concluded at
approximately 2:30 p.m., appellant admitted to acts involving
his stepson’s genitals, touching his stepdaughter’s breasts,
putting his hands down his stepdaughter’s pants and touching her
genitals, watching a stepdaughter masturbate with a vibrator,
and hitting a stepdaughter on the tongue with a spoon. The
agents released appellant to go to lunch at 2:30 p.m.
When he returned at 4:30 p.m., appellant was presented a
typed statement that was based on the notes taken by SA
Richardson. According to the investigators’ testimony, without
reading this statement, appellant refused to sign it, stating
that he was seeking legal counsel.
At trial, during his opening statement, trial defense
counsel stated:
You will hear that the Loudoun County
Sheriff’s Office, as well as members of the
AFOSI detachment, interviewed Sergeant
Gilley; that they read him his rights on two
occasions; and on those occasions, he waived
his rights and answered questions and he
made statements to those agents.
Now you won’t see any sort of evidence as
far as videotape or audiotape as to what
Sergeant Gilley said. The investigators
will tell you what he said, and you are
asked to believe that. But what you will
not see is any sort of written statement.
You will hear testimony that a written
5
United States v. Gilley, No. 00-0559/AF
statement was prepared. It was prepared by
the OSI agents and, when they presented it
to Sergeant Gilley to sign, Technical
Sergeant Gilley, he refused because the
words and acts and deeds in that statement
were not true. They were false.
The first witness called by the Government was Sheriff’s
Investigator Canham. In cross-examining him, defense counsel
established that appellant was advised of his rights, was
cooperative, and that the interview was not taped. Next, the
Government called SA Richardson. On cross-examination trial
defense counsel established the length of the interview, and
that SA Richardson prepared the typewritten statement, followed
by this question and answer:
Q: Okay, and when that statement was presented to
Sergeant Gilley, he refused to sign that, is that
not true?
A: That’s correct, Sir. He said he wished to seek
counsel.
(Emphasis added.) Defense counsel did not object or indicate
that the witness’s statement was non-responsive.
On redirect examination, the trial counsel asked SA
Richardson questions that rebutted the notion that the OSI
agents had concocted a confession that was not true. Then the
following colloquy took place:
Q: And defense counsel asked you if he asked for counsel
at the time before signing the written statement, is
that correct?
ADC: Objection, Your Honor, that was not my question.
6
United States v. Gilley, No. 00-0559/AF
MJ: Overruled. The question, counsel?
WIT: Could you repeat the question?
MJ: You were making a statement, so now ask a question.
ATC: Yes, Your Honor. Prior to the end of the interview
when the accused asked for counsel, did he ask for
counsel at any time prior to that?
WIT: No, sir.
(Emphasis added.) Again, defense counsel did not object to this
reference to appellant’s request for counsel.
SA Richardson was followed to the stand by SA Washington,
who, on direct, talked about the admissions appellant made
during the course of the interview. On direct examination,
trial counsel asked no questions about appellant’s refusal to
sign the draft statement or his request for counsel. On cross-
examination, defense counsel elicited from SA Washington that
the reason for the August 1 interview was to obtain a confession
from appellant. Following questions about SA Richardson's
preparation of the statement, the following exchange took place:
Q: And when that statement was given to Sergeant Gilley,
he refused to sign it?
A: Sergeant Gilley didn't look at the statement. He just
requested legal.
(Emphasis added.) Again, counsel did not object to the
witness’s response.
7
United States v. Gilley, No. 00-0559/AF
On redirect examination, the assistant trial counsel
revisited the point:
Q: Agent Washington, you mentioned that, in answer to
defense counsel's questions, that when Tech Sergeant
Gilley came back from lunch he didn't even read the
statement that Agent Richardson had prepared and he
immediately asked for counsel.
A: Yes.
ADC: Objection, Your Honor.
MJ: Overruled.
(Emphasis added.)
Also on redirect examination, in questioning SA Washington
as to whether a rights advisement was provided after the
preparation of the statement, the following exchange took place:
Q: So when the typed document is then given to the
accused, is he then read his rights again?
A: No.
Q: Why not?
A: In this -- in Tech Sergeant Gilley's case, we got
into the interview room and immediately when we did
get into -- got into the room, he turned around and
said he wants legal counsel.
Q: Okay, so that is this particular case. But in terms
of your ordinary procedures, would you read rights
again?
A: If that was in the expanded time as such before we
went into it, he may have been, he would be advised,
“You are still under rights advisement”.
Q: Okay. Now I just want to make clear, did the accused
read the typed statement?
8
United States v. Gilley, No. 00-0559/AF
A: No, sir.
(Emphasis added.) Defense counsel did not object.
Finally, during his closing argument on findings, trial
counsel argued:
Then around [2:30 p.m.] they allowed—the accused goes to
lunch. So obviously, this is not the spotlight on the
suspect where they are grilling him. They let him go to
lunch and they are under the impression that he is going
to come back because they discuss writing a statement. He
is going to come back and write a statement out or sign a
statement from the notes that the agents wrote and wrote
it out in narrative form. Well, he comes back some two
hours later. Remember that, and that is important because
two hours later what does he have time to do? He has time
now to realize, “Gee, I’ve said all these statements and
my rights were advised to me.” Members of the court, you
are allowed to use your common sense. What are some of
those rights that are advised? Anything you say can and
will be used against you in a court of law.
So he comes back two hours later, doesn’t even look at the
statement. Despite defense’s cross-examination of the
agent saying, “He didn’t sign that statement because
anything in that statement wasn’t true. You wrote that
statement, Agent so and so, didn’t you?” “Sir, he never
even looked at the statement. He asked for his attorney.”
Remember that Constitutional requirement that we have, if
someone asks for an attorney? They couldn’t force him to
sign that statement. They weren’t out to get him. And we
will speak about that theory a little later also.
* * *
Their [sic] other theme here and theory was that the
investigators are just lying. Remember the experience
that these agents had. You had Inspector Canham who had
over thirty years with Child Protective Services. Do you
think he has seen a few cases before? You had Special
Agent Richardson who works for the DEA. You had Agent
Washington who works for the OSI. These three guys are
coming in here and lying just to get this guy? That is
another thing that the defense wants you to believe here.
There is a conspiracy to get the accused by the agents.
9
United States v. Gilley, No. 00-0559/AF
That is putting their credibility in issue here. And
specifically, I guess the two main points they harped on
was the fact that, on a form that Agent Washington signed,
he said he was at an interview when it was just that he
was being briefed by it and he signed for receipt of
Inspector Canham’s notes and briefings and then he went to
an interview with him. It is kind of a standard operating
procedure. He said, “Yeah, I probably shouldn’t have done
that, but no, I wasn’t there.” Even Inspector Canham said
he wasn’t there at first. He was there, but not in the
interviews. He was there, but he did not sit in on the
interviews.
If they were to have had a conspiracy, members of the
court, go back in your deliberations and think. These
three agents, these law enforcement agents who had over
sixty years of experience in law enforcement, don’t you
think they could have come up with more egregious acts
than what is charged here? Don’t you think we could have
had maybe a little penetration or oral sodomy or something
like that? If they were really out to get this guy, if
they really wanted to lie and make sure it stuck, why not
add a few more things? There is no conspiracy here. You
have the charges in front of you.
Again, defense counsel did not enter an objection to trial
counsel’s argument. In his closing argument on findings,
defense counsel argued:
The purpose of the second interview was to obtain a
confession. And they typed up something for Sergeant
Gilley to sign and Sergeant Gilley wouldn’t sign it. They
say Sergeant Gilley wouldn’t read it, he decided to invoke
his rights. But your common sense and your knowledge of
the ways of the world say that if somebody types something
up for you to sign, you read it and if it is not true, you
don’t sign it. And the investigator said that what they
typed was a synopsis of what they testified about. So
when they put that in front of Sergeant Gilley, he refused
to sign it because it was not true.
In his rebuttal argument on findings, trial counsel again
touched on appellant’s invocation of his right to counsel:
10
United States v. Gilley, No. 00-0559/AF
They said in--their argument was the second interview was
out to get a confession. If they wanted to get a
confession, why let the guy go to lunch for two hours?
Why let him go to lunch if you are going to get a
confession? Why not just type it up while he is there and
have him sign it there and then go to lunch? You saw
Agent Washington. This is not the Gestapo. You saw him
and he testified and you get to judge his honesty. Why
not just keep him there and have him sign a statement?
Order him or something like that. They can’t because,
when he came back, he requested counsel and they can’t do
anything further after that, members of the court. That
is why they didn’t get it.
The military judge instructed the members as follows: “The
accused has an absolute right to remain silent. You will not
draw any inference adverse to the accused from the fact that he
did not testify as a witness. The fact that the accused has not
testified must be disregarded by you.” The military judge did
not instruct the members about the right to counsel.
ISSUE II
Prior to taking action in appellant's case, the convening
authority properly afforded appellant the opportunity to submit
clemency matters under RCM 1105 and 1106, Manual for Courts-
Martial, United States (2000 ed.).1 The convening authority
received twelve matters from defense counsel and appellant. The
defense counsel's 1105 petition informed the convening authority
that his client had been unjustly convicted, but also asked that
1
All Manual provisions are identical to the ones in effect at the time of
appellant’s court-martial, unless otherwise indicated. RCM 1105(b) was
amended after appellant’s court-martial, but the amendment was minor and has
no impact on the content of this opinion.
11
United States v. Gilley, No. 00-0559/AF
the confinement be reduced to four years and be served at the
Charleston brig, where there was a sexual offender treatment
program (defense counsel attached a syllabus of that program to
his 1105 petition).
The general theme of appellant’s clemency package was that
appellant was wrongfully convicted and should be granted
clemency. Enclosures 3 and 4 went beyond the general theme and
included negative comments on the Air Force judicial system, as
well as pointed criticisms of specific individuals.
Enclosure 3 was a letter from appellant’s mother. In this
letter, addressed to the convening authority, she stated that “I
can’t believe the Air Force has turned on [appellant] when he
needs them,” and “If you can’t see through this, it’s
unbelievable.” Additionally, in commenting on the
appropriateness of appellant’s sentence, she stated, “You know
his life is ruined – which it should be if he was guilty.”
Enclosure 4 was a letter from appellant’s father. This
letter is a vitriolic attack on the Air Force and its judicial
system. It reads, in pertinent part, as follows:
In my opinion David is getting a raw deal. No man like
David, that has served his country and so dedicated to his
job as an Air Force air controller should have to go
through anything like this. . . .
. . . .The whole damned thing was a kangaroo court. David
was guilty before he ever went to court and the military
helped it along. They saw a man with a good rank, 18
12
United States v. Gilley, No. 00-0559/AF
years of service, never been in trouble, and close to
retirement and a way to take it away. It would save the
Government a lot of money and make the Air Force look
good. That was the plan and the Air Force lawyers, the
military jury, the judge, the Air Force high ranks wanted
it ended in two days. They wanted David put away so all
of them could look good. All they are [sic] a bunch of
low-lifed [sic] bastards as far as I’m concerned. All
they want was to get it over so they could go home. I
overheard the jurors talking in the hallway. They knew
the kids were coached and lying, but wanted it over. Man,
did that make the Air Force look good. They saved the
Federal Government a lot of money. That’s the game plan.
Put David Gilley away for ten years, take his rank and
retirement and brand him for life as dishonorable. It’s
bad enough to lose your family and be lied about and be
branded for life. But to spend 10 years in prison, lose
your career, your personal belongings and never be able to
see your two children that belong to you again. That’s
what a person gets when you marry a lying tramp whore who
wouldn’t know a decent person if they kicked her in the
ass and give [sic] her a new set of brains, which she
doesn’t have.
* * *
In conclusion, there isn’t much I can say. I suppose
our efforts to get David’s charges appealed or overturned
will be ignored by the Air Force as well as the U.S.
Government. I know one thing for sure it has ruined my
life forever, as well as David’s. I no longer have
respect for the armed forces and the federal government
for the way they are treating their people. The American
flag no longer flies on the flagpole in my front yard (I
took the pole down) – like it used to. I no longer care
what happens to our nation or our government. After what
the Air Force has done to my son and my family I lost
faith in about everything. Sometimes I think God has
turned his back on me. Tears come to my eyes everyday and
night without warning. Sometimes at night it haunts me
with visions of a man dressed in orange coveralls with his
hands handcuffed behind his back and his ankles shackled.
That’s the price an innocent man pays for serving his
country. I hope you low-lifed [sic] bastards along with
that lying no good whore and her bastard kids, that lied
about David, enjoy your freedom now, and burn in hell
later. Everytime [sic] something bad happens and you
13
United States v. Gilley, No. 00-0559/AF
wonder why, then you can sit back and say God forgive me,
I’m sorry I was part of a plan to convict an innocent man
and make his family suffer for the rest of their life.
You will bear the heavy cross of burden and shed the tears
like I do. Everyday for the rest of your life as I will
be doing. No man deserves punishment like this unless
he’s a killer on death-row. I think when the military or
the government does something like this their [sic]
nothing but a chicken-shit bunch that should have to face
the firing squad because they don’t know what justice is.
Those dumb ass Air Force judges, lawyers, and jurors all
thrown together wouldn’t make one good civilian lawyer.
In civilian life they laugh at the dumb asses. I wish I
was a rich man, I’d shove all this up their ass. As I see
it, it’s entirely up to you to grant David an appeal or
reduce his sentence. Personally I think he has suffered
enough. If not then maybe you’ll enjoy being like me,
having flashbacks and shedding tears in the middle of the
night and living with it day by day.
The twelfth and final enclosure is a copy of an
electronically mailed (e-mail) statement from appellant's
brother attacking the Air Force legal system and appellant's
defense counsel as incompetent.
No affidavit was submitted by the defense counsel, but
appellant in his affidavit stated, “Neither of my trial defense
counsels discussed with me the content of my father’s clemency
letter other than to tell me that there were some curse words in
it and that they were asking him to rewrite it. I did not
direct that my father’s clemency letter be included in my
clemency package.”
DISCUSSION
It is well settled that the Government may not use a
defendant’s assertion of his Fifth Amendment rights as
14
United States v. Gilley, No. 00-0559/AF
substantive evidence against him. Griffin v. California, 380
U.S. 609, 614 (1965); see also Baxter v. Palmigiano, 425 U.S.
308, 319 (1976); Lakeside v. Oregon, 435 U.S. 333, 338 (1978);
United States v. Ruiz, 54 M.J. 138 (2000). Violations of the
Griffin rule are subject to harmless error review. Chapman v.
California, 386 U.S. 18 (1967).
Mil. R. Evid. 301(f)(3), Manual, supra, provides:
The fact that the accused during official questioning and
in exercise of rights under the Fifth Amendment to the
Constitution of the United States or Article 31, remained
silent, refused to answer a certain question, requested
counsel, or requested that the questioning be terminated
is inadmissible against the accused.
The Drafters’ Analysis of this rule states that it follows
United States Supreme Court decisions. A22-7, Manual, supra;
see United States v. Hale, 422 U.S. 171 (1975)(An accused’s
silence during police interrogation lacked significant probative
value so that any reference to his silence in cross-examination
in an attempt to impeach his alibi carried with it an
intolerably prejudicial impact entitling him to a new trial.);
Doyle v. Ohio, 426 U.S. 610 (1976)(Use for impeachment purposes
of an accused’s silence at the time of arrest and after
receiving Miranda warnings violates due process.).
Hale and Doyle addressed government comments on the
accused’s right to remain silent. This case implicates comments
on the accused’s right to counsel. The analysis, however, is
15
United States v. Gilley, No. 00-0559/AF
parallel to that regarding the right to remain silent; both
rights flow from the Fifth Amendment. See United States v.
Daoud, 741 F.2d 478, 480 (1st Cir. 1984)(analysis for comments
regarding right to remain silent is the same as for right to
counsel); United States v. Kallin, 50 F.3d 689, 693 (9th Cir.
1995)(right to counsel included in Miranda warnings and
therefore carries implicit assurance that invocation carries no
penalties).
We also recognize the Supreme Court’s holding that the
Government is permitted to make “a fair response” to claims made
by the defense, even when a Fifth Amendment right is at stake.
United States v. Robinson, 485 U.S. 25, 32 (1988); see also
Doyle, supra at 619-20 n.11 (“It goes almost without saying that
the fact of post-arrest silence could be used by the prosecution
to contradict a defendant who testifies to an exculpatory
version of events and claims to have told the police the same
version upon arrest. In that situation the fact of earlier
silence would not be used to impeach the exculpatory story, but
rather to challenge the defendant’s testimony as to his behavior
following arrest.”); Walder v. United States, 347 U.S. 62, 65
(1954)(The availability of an objection to the affirmative use
of improper evidence does not provide the defendant “with a
shield against contradiction of his untruths.”). Robinson
addresses the prohibition against prosecutorial comment upon the
16
United States v. Gilley, No. 00-0559/AF
failure to testify, which is a corollary of the right to remain
silent. Accordingly, the analysis in Robinson applies to this
case.
The defense counsel in Robinson, in closing, argued
several times that the Government did not allow the defendant,
who did not testify, to explain his side of the story.
“Following this closing and out of the presence of the jury, the
prosecution objected to the remarks of defense counsel and
contended that the defense had ‘opened the door.’” 485 U.S. at
28. The trial judge agreed. In rebuttal, the prosecutor
remarked that the defendant “could have taken the stand and
explained it to you, anything he wanted to. The United States
of America has given him, throughout, the opportunity to
explain.” Id. “Defense counsel did not object to this closing
and did not request a cautionary instruction. Nonetheless, the
court included in the jury instruction the admonition that ‘no
inference whatever may be drawn from the election of a defendant
not to testify.’” Id. at 28-29.
Robinson held that the prosecutor’s statement did not
violate the defendant’s Fifth Amendment rights, because the
prosecutor’s reference to the defendant’s opportunity to testify
“did not treat the defendant’s silence as substantive evidence
of guilt, but instead referred to the possibility of testifying
as one of several opportunities which the defendant was
17
United States v. Gilley, No. 00-0559/AF
afforded, contrary to the statement of his counsel, to explain
his side of the case." Id. at 32. Moreover, Robinson held that
where a prosecutor’s reference is a “fair response to a claim
made by defendant or his counsel,” there is no violation of the
Fifth Amendment privilege against self-incrimination. Id.
In order to determine whether or not comments are fair,
“prosecutorial comment must be examined in context.” Id. at 33,
citing Lockett v. Ohio, 438 U.S. 586 (1978)(Prosecutor’s
repeated remarks that the evidence was uncontradicted were not
improper because defense counsel focused the jury’s attention on
silence by outlining the contemplated defense during opening
statement and by stating to the court and jury that the
defendant would be the “next witness.”). Such analysis invokes
the “invited response” or “invited reply” rule. United States
v. Young, 470 U.S. 1, 11 (1985), citing Lawn v. United States,
355 U.S. 339 (1958). In reviewing whether an appellant was
deprived of a fair trial by such comments, the question an
appellate court must resolve is whether, “viewed within the
context of the entire trial, ... defense counsel’s comments
‘clearly invited the reply.’” Id., quoting Lawn, supra at 360
n.15.
There are two aspects to the first granted issue, i.e.,
whether the military judge committed plain error: (1) by
admitting evidence that when questioned by investigators,
18
United States v. Gilley, No. 00-0559/AF
appellant elected to request counsel, and (2) by allowing trial
counsel to refer to appellant’s request for counsel in his
closing argument and by failing to provide a curative
instruction.
1. Did the military judge commit plain error by admitting
evidence that when questioned by investigators, appellant
elected to request counsel?
Appellant’s trial strategy, beginning with his defense
counsel’s opening argument, was to discredit two of the three
investigators by implying that they fabricated appellant’s oral
statements based on their prior knowledge of his stepchildren’s
allegations. Appellant claimed the investigators then put those
fabrications into a written statement, which appellant refused
to sign.
Defense counsel initially elicited appellant’s request for
counsel during his cross-examination of SA Richardson and SA
Washington. Consistent with the defense theory of the case,
defense counsel asked whether appellant refused to sign the
statement. SA Richardson testified that appellant refused to
sign the statement and requested counsel. SA Washington
testified that appellant “didn’t even read the statement” and
“immediately asked for counsel.”
Faced with an allegation that the Government fabricated
important evidence, not surprisingly trial counsel returned to
these points of rebuttal on redirect examination. Consistent
19
United States v. Gilley, No. 00-0559/AF
with the prosecution’s theory of the case, trial counsel asked
agents Richardson and Washington to recount the close of
appellant’s interview. Again, they stated that appellant
declined to sign the statement without reading it and that
appellant requested counsel.
Defense counsel did not object to these responses during
cross-examination; however, on redirect, defense counsel
objected without specifying the basis for his objection. In the
absence of an objection, issues of admissibility of evidence are
waived, and we will grant relief only if the admission of such
evidence constitutes plain error. United States v. Powell, 49
M.J. 460, 462-64 (1998).
Appellant argues that the military judge committed plain
error by admitting the testimony of agents Richardson and
Washington on cross-examination and redirect. Had the
Government first introduced this evidence, this would be a
different case. See United States v. Riley, 47 M.J. 276 (1997).
However, as recounted above, defense counsel opened the door to
rebuttal by attacking the veracity of the agents, thus inviting
a response from those same agents suggesting an alternative
theory as to why appellant refused to sign the statement.
Clearly, the agents’ testimony that appellant did not read the
statement was fair rebuttal. Arguably, reference to appellant’s
request for counsel also fairly rebutted the defense theory of
20
United States v. Gilley, No. 00-0559/AF
the case by offering an alternative explanation as to why
appellant did not sign the statement, i.e., appellant wanted a
lawyer to review the statement before signing it, whether or not
he read it. However, appellant might also have logically
requested a lawyer when faced with a false statement, putting
his request outside the scope of fair rebuttal. We need not
resolve this question. In any event, appellant’s request for
counsel was not used as substantive evidence of guilt against
him. Whether it was error or not to allow the testimony, given
the context in which the issue arose here, we are convinced that
there was no material prejudice to appellant’s substantial
rights. See Art. 59(a), UCMJ, 10 USC § 859(a).2
2. Did the military judge commit plain error by allowing
trial counsel to refer to appellant’s request for counsel
in his findings argument and by failing to provide a
curative instruction?
More difficult are the subsequent references to
appellant’s request for counsel in trial counsel’s closing
argument, in the absence of appropriate instruction to the
members that such information was only relevant to the members’
consideration of appellant’s claim that the unsigned interview
statement was false.
In his closing argument, trial counsel directly referenced
appellant’s invocation of his rights on three occasions. First,
2
Having found no material prejudice to appellant’s substantial rights, we
need not address Senior Judge Sullivan’s attempt to revisit Powell.
21
United States v. Gilley, No. 00-0559/AF
he argued that “[appellant] has time now to realize, ‘Gee, I’ve
said all these statements and my rights were advised to me.’
Members of the court, you are allowed to use your common sense.
What are some of those rights that are advised: Anything you say
can and will be used against you in a court of law.” Second, he
argued, “Remember that Constitutional requirement that we have,
if someone asks for an attorney? They couldn’t force him to
sign that statement. They weren’t out to get him.” Finally, on
rebuttal, he argued that the reason SA Richardson and SA
Washington did not order appellant to stay and sign a statement
was because appellant “requested counsel and they can’t do
anything further after that, members of the court. That is why
they didn’t get it.”
By contrast, defense counsel argued, consistent with his
theory of the case, that appellant refused to sign the written
statement because it was not true. He also referred to trial
counsel’s argument, stating: “They say Sergeant Gilley wouldn’t
read it, he decided to invoke his rights.” Defense counsel
argued that that scenario did not make sense, but that “common
sense and your knowledge of the ways of the world say that if
somebody types something up for you to sign, you read it and if
it is not true, you don’t sign it.”
In reviewing the actions of the military judge, we must
ask whether, given the defense theory of the case, trial
22
United States v. Gilley, No. 00-0559/AF
counsel’s comments were fair. Robinson, 485 U.S. at 32. Here,
the defense counsel focused the jury’s attention on why
appellant refused to sign the written confession, beginning with
his opening statement. The defense contention was that
appellant read the statement but refused to sign it because it
was fabricated by SA Richardson and SA Washington. As we have
previously noted, the defense theory could have been
contradicted by testimony from the agents that appellant refused
to sign it without even reading it. Nonetheless, both agents
added to their testimony that at the same time, appellant
invoked his right to counsel. Because appellant failed to
object to the testimony, and since the testimony contradicted
appellant’s claim that he read the statement but refused to sign
it because it was full of lies, we find that defense counsel
opened the door to the use of this testimony for that limited
purpose.
Defense counsel’s mention of appellant’s counsel election
during his closing argument was consistent with his theme and
consistent with the limited purpose for which we find the door
to have been opened. On the other hand, the repeated references
to appellant’s request for counsel could have reflected
negatively upon the invocation of those rights by leading the
members to attach a significance to such invocation that went
beyond fair rebuttal of appellant’s allegation.
23
United States v. Gilley, No. 00-0559/AF
Nonetheless, since defense counsel did not object or
request a curative instruction, we will grant relief only if the
military judge’s failure to instruct sua sponte was plain error.
See United States v. Southwick, 53 M.J. 412, 414 (2000); United
States v. Boyd, 55 M.J. 217, 222 (2001) (“Because the defense did
not request an instruction on the impact of a punitive discharge
on temporary disability retirement, we will grant relief only if
the military judge’s failure to instruct sua sponte was plain
error.”); Powell, 49 M.J. at 464; United States v. Fisher, 21 M.J.
327 (CMA 1986).
We noted in United States v. Carpenter, 51 M.J. 393, 396
(1999), that this Court, in a variety of contexts, “has
commented that it is improper for a prosecutor to ask the court
members to infer guilt because an accused has exercised his
constitutional rights.” In United States v. Toro, 37 M.J. 313,
318 (CMA 1993), this Court held that it was improper to comment
on the exercise of the right to remain silent. Although closely
related, this Court has not specifically ruled on a prosecution
argument that an accused invoked his right to counsel.
As we noted in Carpenter, “the lack of defense objection
is relevant to a determination of prejudice” because the lack of
a defense objection is “’some measure of the minimal impact’ of
a prosecutor’s improper comment.” 51 M.J. at 397 (citation
omitted). In addition to the lack of objection, in this case,
24
United States v. Gilley, No. 00-0559/AF
the overwhelming evidence of record demonstrated appellant’s
guilt. Although trial counsel’s argument tied appellant’s
exercise of his right directly to his exculpatory story (that he
did not sign the written statement because it was full of lies
fabricated by SA Richardson and SA Washington), this exculpatory
story was implausible for several reasons. First, it was
premised on the collaboration in a falsity by three
investigators from two different jurisdictions. The first
investigator was a civilian, and only when the case was turned
over to the military did SA Richardson and SA Washington become
involved. Second, appellant admitted to committing the offenses
of which he was convicted, both to the civilian investigator and
then later to SA Richardson and SA Washington. Third, the
admissions were directly supported by the testimony of
appellant’s wife and stepchildren.
Although we are troubled by trial counsel’s repeated
references to appellant invoking his right to counsel without
objection and without instruction, based upon the overwhelming
evidence of appellant’s guilt and the implausibility of
appellant’s exculpatory story, we hold that there was no
material prejudice to appellant’s substantial rights in this
case.
25
United States v. Gilley, No. 00-0559/AF
ISSUE II
Appellant argues that he received ineffective assistance
of counsel in the post-trial phase when his defense counsel
submitted highly inflammatory letters to the convening
authority. The Government argues that the letters were simply
impassioned pleas for corrective action that criticized the
prosecutors, not the convening authority, and continued the
defense trial strategy by maintaining appellant’s children and
wife were lying and that he was innocent of the charges.
The Sixth Amendment guarantees the right to effective
assistance of counsel. In the military, this right extends to
assistance in the preparation and submission of post-trial
matters. See United States v. Fluellen, 40 M.J. 96, 98 (CMA
1994).
We have adopted the Supreme Court’s test for effectiveness
of counsel articulated in Strickland, as well as the presumption
of competence announced in United States v. Cronic, 466 U.S.
648, 658 (1984). United States v. Grigoruk, 52 M.J. 312, 315
(2000), citing United States v. Scott, 24 M.J. 186, 188 (CMA
1987). We have adopted a three-pronged test to determine if the
presumption of competence has been overcome:
(1) Are appellant’s allegations true; if so, “is there a
reasonable explanation for counsel’s actions”?
26
United States v. Gilley, No. 00-0559/AF
(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 a defense counsel was ineffective, is there “a
reasonable probability that, absent the errors,” there
would have been a different result.
Id., quoting United States v. Polk, 32 M.J. 150, 153 (CMA 1991).
Responsibility for tactical and strategic post-trial
decisions are within the control of counsel. Counsel has the
responsibility to “make an evaluative judgment” on what items to
submit to the convening authority, and to so advise his client.
United States v. MacCulloch, 40 M.J. 236, 239 (CMA 1994). As we
noted in MacCulloch, “One of the last best chances an appellant
has is to argue for clemency by the convening authority.” Id.
In this case, counsel submitted twelve items to the
convening authority. The letter from appellant’s mother
arguably undercut appellant’s plea for clemency. The letter
from appellant’s father was acerbic. It was a scathing diatribe
directed toward trial counsel, trial defense counsel, the
members, the judge, and the convening authority, to whom the
letter was addressed. The e-mail statement from appellant’s
brother echoed the theme of appellant’s father’s letter.
It is impossible to imagine any possible clemency arising
from appellant’s father’s statement, “I hope you low-lifed
bastards along with that lying, no good whore and her bastard
kids, that lied about [appellant], enjoy your freedom now, and
27
United States v. Gilley, No. 00-0559/AF
burn in hell later." Likewise, it is impossible to put a
positive spin on his father’s statements, such as, “I think when
the military or the government does something like this their
[sic] nothing but a chicken-shit bunch that should have to face
the firing squad because they don’t know what justice is. Those
dumb ass Air Force judges, lawyers, and jurors all thrown
together wouldn’t make one good civilian lawyer.” Res ipsa
loquitor.
We expect that a convening authority in the exercise of
his clemency power will anticipate and deal professionally with
the heartfelt disappointment and confusion of a family trying to
comprehend the trial, conviction, and sentencing of a son or
daughter. However, letters that go far beyond disappointment
and confusion and contain a scathing denouncement of the system
and its participants cannot be viewed as helpful to an
appellant’s request for clemency. The prejudicial impact of
appellant’s father’s letter was compounded by appellant’s
brother’s letter and his mother’s letter. Appellant’s affidavit
mentioned only that his defense counsel discussed with appellant
the content of his father’s letter and that they were asking his
father to rewrite it. We are concerned about the cumulative
impact of all three letters, but especially with the content of
appellant’s father’s letter which, even if rewritten, was
inappropriate.
28
United States v. Gilley, No. 00-0559/AF
In this case, appellant was sentenced to a dishonorable
discharge, confinement for ten years, and associated penalties.
Appellant petitioned the convening authority to disapprove his
sentence and allow his administrative discharge. Alternatively,
counsel requested reduction in confinement to four years and
designation of the Charleston brig as the place of confinement,
which would allow appellant to “serve a lengthy prison sentence
without imprisonment in the US Disciplinary Barracks at Ft.
Leavenworth, KS.” Counsel also argued that it would allow
appellant access to a superior sex offender program run by the
Air Force at the Charleston brig. The convening authority did
not grant appellant any clemency. By attaching these letters,
trial defense counsel may have dashed appellant’s “last best
chance” for sentencing relief or for assignment to Charleston
for sex offender treatment.
Addressing the three-pronged Polk test to determine
competence, we answer all three questions in the affirmative.
We find that trial defense counsel in this case failed to make
an evaluative judgment on what items to submit to the convening
authority. We can find no reasonable explanation for counsel’s
inclusion of these letters. We also find the inclusion of these
letters to fall “measurably below the performance ...
[ordinarily expected] of fallible lawyers.” Finally, while we
cannot know with certainty what relief, if any, the convening
29
United States v. Gilley, No. 00-0559/AF
authority might have granted, there is a reasonable probability
that absent the admission of these letters, there would have
been a different result. As in MacCulloch, the submission to
the convening authority of the contempuous and abusive letter
from appellant’s father “effectively negat[ed] any plea for
clemency.” 40 M.J. at 240. Thus, at the very least, removal of
these letters would have resulted in a meaningful clemency
hearing.
Accordingly, we hold that appellant was denied effective
assistance of counsel during the post-trial phase of his court-
martial.
DECISION
The decision of the United States Air Force Court of
Criminal Appeals and the convening authority’s action are set
aside. The record of trial is returned to the Judge Advocate
General of the Air Force for submission to an officer exercising
general court-martial jurisdiction over appellant for
consideration of a new post-trial clemency petition and staff
judge advocate’s recommendation, and action. Thereafter, the
record will be returned to the Court of Criminal Appeals for
further review, and then Article 67, UCMJ, 10 USC § 867, shall
apply.
30
United States v. Gilley, No. 00-0559/AF
CRAWFORD, Chief Judge (concurring in part and in the result):
The right to counsel1 and the right not to incriminate
oneself2 are hallmarks of our adversary system. But a defendant
may not use the shield of these constitutional rights to prevent
the Government from contradicting the untruths and reasonable
inferences that the factfinders could logically draw from the
defense cross-examination.3
The Government may not introduce as substantive evidence in
the first instance that a person invoked his or her right to
silence and/or right to counsel.4 However, these invocations may
be used to impeach any witness, including a defendant.
Moreover, when the defendant opens the door, the Government may
forcefully rebut the evidence and its reasonable inferences.5
Remaining silent in the face of an accusation or remaining
silent by invoking one’s right without any explanation at the
time is evidence of guilt. There may be reasonable explanations
for one’s silence -- “The statement is false”; “I don’t trust
you”; “I want to think about it”; “I want to know what others
have said before I make a statement.” However, these
1
“In all criminal prosecutions, the accused shall enjoy the right ... to have
the Assistance of Counsel for his defence.” U.S. Const. amend. VI.
2
“No person shall ... be compelled in any criminal case to be a witness
against himself....” Id. at amend. V.
3
See, e.g., United States v. Havens, 446 U.S. 620 (1980).
4
See, e.g., Griffin v. California, 380 U.S. 609 (1965).
5
See Havens, supra.
United States v. Gilley, No. 00-0559/AF
explanations do not undercut the inference that silence, without
explanation, is evidence of guilt.
On cross-examination, defense counsel brought out that
appellant invoked his right to counsel because of the untruths
in the typewritten statement. The Government had a right to
rebut this assertion, to include arguing its falsity. For this
reason, I do not agree with the rationale of the majority, but
concur in the result.
Appellant, like the defendant in United States v. Beason,
220 F.3d 964 (8th Cir. 2000), sought to take advantage of a
constitutional right and use it as a sword. The defense in
Beason sought to take advantage of the rule in Bruton v. United
States, 391 U.S. 123 (1968). This rule provides that at a joint
trial, co-defendant A’s confession, which implicates co-
defendant B, is not admissible against B. In limine
instructions would be inadequate because co-defendant B cannot
test through cross-examination the evidence set forth in A’s
confession.
In Beason, the Government introduced evidence that Beason
was the kingpin who was selling drugs from his truck while
hiding hundreds of thousands of dollars in its inside
compartments. Like most drug kingpins, Beason had some runners.
One of these was an individual named Washington. Defense
counsel asked FBI Agent Hempen whether Washington, who had a
2
United States v. Gilley, No. 00-0559/AF
prior drug arrest, was the source of the information concerning
where the money was hidden in the truck. The Government argued
and the trial judge agreed that this question opened the door
for a different agent to testify about other information
provided by Washington -- information that revealed the truck’s
ownership, how the money was collected, how the money was given
to Washington, and who was giving directions concerning where to
hide it in the truck. On appeal, the Eighth Circuit reasoned:
Beason’s theory of defense at trial was that
Washington orchestrated the events in question, while
Beason was an unknowing bystander. We find defense
counsel’s questioning, stressing not only that
information regarding the hidden currency did not come
from Beason, but also that it came from Washington, an
individual with a prior drug record, did more than
simply dispel an assumption that Beason provided the
information. It could have created a misleading
inference to the jury that Washington was the “bad
guy.”
220 F.3d at 968.
Likewise, in United States v. Havens, 446 U.S. 620 (1980),
the Court prohibited the defense from using a constitutional
right as a sword in order to prevent the Government from
contradicting the defense theory of the case. The Court
recognized that in Walder v. United States, 347 U.S. 62 (1954),
Harris v. New York, 401 U.S. 222 (1971), and Oregon v. Hass, 420
U.S. 714 (1975), impeachment with illegally obtained evidence
was permitted because of what the defendant said on direct
examination. "These cases repudiated the statement in Agnello
3
United States v. Gilley, No. 00-0559/AF
[v. United States, 269 U.S. 20 (1925),] that no use at all may
be made of illegally obtained evidence.” 446 U.S. at 625.
In Havens, the Court of Appeals held that evidence illegaly
seized could only be used to impeach if it contradicted a
particular statement made by the accused during direct
examination. Accordingly, since a T-shirt taken from Havens’s
luggage was tainted evidence, it could not be used, because
Havens was asked nothing during his direct testimony about the
T-shirt or luggage. The Court of Appeals also relied on the
statement in Agnello that Agnello had done nothing "to justify
cross-examination in respect of the evidence claimed to have
been obtained by the search.” Id.
In reversing, the Supreme Court restricted the reach of
Agnello to cases of cross-examination having too tenuous a
connection with any subject opened by direct examination to
permit impeachment by tainted evidence. Relying on Harris and
Hass, the High Court indicated that the objective of the
exclusionary rule is served without extending it to legitimate
cross-examination needed to satisfy the fundamental, truth-
seeking goal of our legal system. Id. at 626.
This is not an instance where there was an inadvertent
opening of the door. From the opening statement through final
argument and at numerous points in between, the defense set
forth their theory of the case: that the statement typed by the
4
United States v. Gilley, No. 00-0559/AF
agents who had questioned appellant was false, and when he
reviewed that written statement and its falsity, he requested
counsel. Defense counsel’s eliciting testimony that appellant
invoked a constitutional right was a conscious, intentional act
to undermine the law enforcement officers and support the
defense theory of the case. Thus, the Government had the right
to rebut all reasonable inferences set forth by the defense.
As to the trial counsel’s argument, there was no error. The
defense theory of the case was that appellant gave total
cooperation until the agents sought to get him to sign a false
statement. The defense evoked this theory numerous times during
the trial. A trial judge is not required to count the number of
times the trial counsel responds to the defense theory, and in
fact, some of the prosecution’s statements as to the theory of
the case are paraphrases of what the defense was setting forth
throughout the trial. As the Air Force Court of Military Review
once observed:
A criminal trial is not a tea dance, but an
adversary proceeding to arrive at the truth. Both
sides may forcefully urge their positions so long as
they are supported by the evidence. Considering the
trial counsel’s closing argument in toto, it was
within the bounds of fair comment considering the
state of the evidence.
United States v. Rodriguez, 28 M.J. 1016, 1023 (AFCMR 1989).
For the reasons mentioned above, I concur in the result as
to Issue I and concur on Issue II.
5
United States v. Gilley, 00-0559/AF
SULLIVAN, Judge (concurring in part and dissenting in part):
Overview
The majority, as part of its plain error analysis on Issue I,
has examined the record as a whole and determined that “there was
no material prejudice to appellant’s substantial rights in this
case.” ___ MJ at (21, 25). It justifies its conclusion on the
basis of the context of this trial, “the overwhelming evidence of
appellant’s guilt,” and “the implausibility of appellant’s
exculpatory story.” Id. at (25). Such a holding is clearly
inconsistent with the plain error approach of this Court in
United States v. Powell, 49 M.J. 460, 464 (1998). See United
States v. Ruiz, 54 M.J. 138, 144 (2000) (Gierke, J., concurring in
part and in the result and dissenting in part) (disagreeing with
majority that “unfair prejudicial impact on the jury’s
deliberation is an element of plain error”).
I sense a continued withdrawal, albeit sub silentio, by the
1
majority of this Court from the plain error dicta of United
States v. Powell. See United States v. Tanksley, 54 M.J. 169, 173
1
United States v. Powell, 49 M.J. 460, 465 (1998), particularly
addressed the question whether the Court of Criminal Appeals was
required to reverse a conviction where it found plain error under
United States v. Olano, 507 U.S. 725 (1993). It did not purport
to address the proper plain error test for our Court.
United States v. Gilley, 00-0559/AF
(2000); United States v. Ruiz, supra at 138-43; United States v.
Kho, 54 M.J. 63, 65 (2000); United States v. Southwick, 53 M.J. 412,
414 (2000). I applaud the majority’s return to the more
conventional outcome-oriented approach to plain error previously
followed by this Court in United States v. Fisher, 21 M.J. 327, 328
(CMA 1986). See generally United States v. Wilson, 54 M.J. 57, 60-
62 (2000) (Sullivan, J., concurring in part and dissenting in
part), citing United States v. Olano, 507 U.S. 725 (1993).
Issue I
Trial Counsel’s Argument
(Plain Error)
As a preliminary matter, I must note my disagreement with the
majority that trial counsel’s references in his closing argument
to appellant’s pretrial request for counsel “reflected
negatively” on his right to counsel and, therefore, constituted
error. ___ MJ at (23). In United States v. Robinson, 485 U.S.
25, 32 (1988), the Supreme Court clearly said: “[W]here as in
this case the prosecutor’s reference to the defendant’s
opportunity to testify is a fair response to a claim made by
defendant or his counsel, we think there is no violation of the
privilege.” The references in this case were proper in this
light, and there was no suggestion that the prosecution was
trying to use this evidence of exercise of rights to
substantively show appellant’s guilt. Even if I were to find
that these references to appellant’s exercise of his right to
2
United States v. Gilley, 00-0559/AF
counsel were erroneous without specific limiting instructions, I
would find such errors neither obvious nor substantial.
Concerning the majority’s “material prejudice to substantial
rights” analysis, I agree that this factor is appropriate in a
military plain error case, i.e., a case where there was no
objection at trial to the prosecutor’s argument. See generally
Article 59(a), UCMJ, 10 USC § 859(a). I also note that under
conventional plain error doctrine, there is a requirement for
determining whether the unobjected to error affected an accused’s
substantial rights. See United States v. Wilson, supra
(Sullivan, J., concurring in part and dissenting in part). By
that is meant, did the “unobjected to” error, as demonstrated by
the entire record of trial, substantially impact the outcome of
the trial? Id.; see United States v. Kho, supra (Sullivan, J.,
concurring). Contrary to Powell, supra at 464, this Court has
once again implied that in our Court, the effect of the
unobjected to error on the outcome of the case as demonstrated by
the record of trial is a recognized part of finding plain error.
See United States v. Tanksley, 54 M.J. at 173; see also United
States v. Ruiz, 54 M.J. at 143.
Article 59(a), UCMJ, is consistent with this approach. It
states:
A finding or sentence of court-martial may
not be held incorrect on the ground of an
3
United States v. Gilley, 00-0559/AF
error of law unless the error materially
prejudices the substantial rights of the
accused.
(Emphasis added.)
Similar language has been viewed by the Supreme Court as
“authoriz[ing] no remedy unless the error does ‘affec[t]’
substantial rights.” See United States v. Olano, 507 U.S. at
735. It also has been construed to place the burden on the
convicted person to show prejudice to his trial result based on
the entire record, and not on the Government to show
harmlessness. Id. at 734.
This Court has applied Article 59(a), UCMJ, somewhat
differently where error has been objected to at trial by the
accused. If the error is a violation of constitutional or codal
norm, we have required that the Government convince us that
unobjected to error was harmless based on the entire record of
trial. See United States v. Lucas, 1 USCMA 19, 23, 1 CMR 19, 23
(1951); United States v. Lee, 1 USCMA 212, 216, 2 CMR 118, 122
(1952). In this regard, we have followed Supreme Court case law
(Kotteakos v. United States, 328 U.S. 750, 761-62, 764-65 (1946))
and Fed. R. Crim. P. 52(a) in applying Article 59(a), UCMJ, to
objected to errors.
4
United States v. Gilley, 00-0559/AF
Nevertheless, with respect to unobjected to error at the
trial level, this Court has literally applied Article 59(a),
UCMJ, consistent with Supreme Court decisions on plain error and
Fed. R. Crim. P. 52(b). See generally United States v. Fisher,
21 M.J. at 327; United States v. Plaut, 18 USCMA 265, 272, 39 CMR
265, 272 (1969); United States v. Pond, 17 USCMA 219, 224, 38 CMR
17, 22 (1967); United States v. Stephen, 15 USCMA 314, 317-18, 35
CMR 286, 289-90 (1965). This body of plain error law places the
burden on the appellant to show prejudice from the entire record
of trial as to the outcome of the case. See United States v.
Williams, 47 M.J. 142, 144 (1997); United States v. Hall, 46 M.J.
145, 147 (1997); United States v. Czekala, 42 M.J. 168, 170-71
(1995); United States v. Pollard, 38 M.J. 41, 51 (CMA 1993); United
States v. Strachan, 35 M.J. 362, 364 (CMA 1992); see generally
United States v. Olano, 507 U.S. at 732; Johnson v. United
States, 520 U.S. 461, 467 (1997). This Court’s “burden shifting”
pronouncements in Powell, 49 M.J. at 460, temporarily upset this
body of law but they are no longer controlling. See United
States v. Tanksley, 54 M.J. at 173.
In sum, the plain error approach of United States v. Powell,
supra at 465, which required the appellant to merely show the
type of legal right violated and then the Government to show
harmlessness based on the entire record of trial, has been
rejected by the Supreme Court. United States v. Young, 470 U.S.
5
United States v. Gilley, 00-0559/AF
1, 16-17 n.14 (1985). It has said that courts have “studiously
avoided” this approach and commentators have “properly
criticized” it. Such an approach has also been rejected by all
the circuits and called “strange” by a noted legal commentator.
See 3A Charles Alan Wright, Federal Practice and Procedure § 856
at 344 n.26 (2d ed. 1982 & 2001 Supp.). The majority of this
Court today also rejects this approach, albeit sub silentio, and
returns to our traditional and well-established position of
following Supreme Court precedent on this matter. It has
reembraced United States v. Fisher, supra (___ MJ at (24)), and
required, as part of its plain error analysis, that the entire
record of trial be examined to determine whether the outcome of
the trial was impacted.
Issue II
Ineffective Assistance of Counsel
(Prejudice)
On the ineffective assistance of counsel question, however, I
disagree. In my view, there was no reasonable probability in
appellant’s case that a different result would have obtained if
defense counsel had winnowed the letters of his father, mother,
and brother from appellant’s clemency package. See United States
v. Grigoruk, 52 M.J. 312, 315 (2000). Contrary to his pleas,
appellant was found guilty of numerous sexual offenses and a
physical abuse offense over a three-year period with his stepson
and his two stepdaughters, who were from ages ten to fourteen at
the time of trial. After his conviction, appellant continued to
6
United States v. Gilley, 00-0559/AF
assert his stepchildren were lying at the behest of his wife,
even though there was some evidence in this case of a pretrial
confession. No remorse was shown. Accordingly, even if the
inappropriate letters from appellant’s family castigating the Air
Force for such a verdict were excepted, appellant’s position
would not have been enhanced before the convening authority.
Unlike the majority, I agree with and adopt the lower court’s
common sense view of the family letters. The Court of Criminal
Appeals found:
After reviewing his mother’s letter, we
find it to be appropriate for submission
to the convening authority. Neither the
tone nor the content is prejudicial or
inflammatory. It is simply a mother’s
plea that her son is innocent. The
interpretation the appellant asks us to
attach to this letter is not reasonable.
The letter from his father contains
emotion and anger but it is consistent
with the defense theory at trial that the
appellant’s wife coached the children to
lie. This anger is directed at his son’s
wife, Air Force lawyers, and the military
judge. According to him, his son was the
target for Air Force “high ranks” so they
could look good. His anger builds
throughout the letter and he eventually
refers to everyone involved in his son’s
case as “low-lifed bastards” and hopes
they “burn in hell.” He bestows his
greatest contempt on Air Force lawyers who
he views as “dumb asses.” After
describing how he has lost faith in the
United States, experiences nightmares, and
is constantly upset, the appellant’s
7
United States v. Gilley, 00-0559/AF
father closes by telling the convening
authority,
As I see it, it’s entirely up to
you to grant David an appeal or
reduce his sentence. Personally, I
think he has suffered enough. If
not then maybe you’ll enjoy being
like me, having flashbacks and
shedding tears in the middle of the
night and living with it day by day.
The appellant’s affidavit is silent about
whether he directed his attorneys not to
include the letter.
Reduced to its basic essence, this
letter is from a loving and frustrated
father who is convinced of his son’s
innocence. This is apparent to anyone who
reads the words and is a standard plea
from relatives and friends. However, the
character of this letter is different
because rather than begging for mercy, he
leaves the sugar in the bowl. His
contempt for those he sees as his son’s
tormenters is obvious. His admonition to
the convening authority is similar to
Marley’s exhortation to Scrooge, save
yourself (by righting the wrong the system
has visited upon my son), or suffer my
fate. 1/ Even if we were to conclude that
counsel violated the first prong of
Strickland by submitting the letter, which
we do not, the appellant has not
demonstrated he suffered any prejudice.
An argument can be made that by virtue of
his position, the convening authority is
one of the “high ranks” excoriated in the
letter. However, in our view, the
appellant’s father excluded the convening
authority from his cast of villains
because he appealed to the convening
authority for justice. We are convinced
that any convening authority reading this
letter would recognize it was written by a
devastated parent who felt powerless to
help his child. We refuse to hold that
there is no room for candor in the
clemency process.
8
United States v. Gilley, 00-0559/AF
___________
1/
Charles Dickens, A Christmas Carol
(1843).
Unpub. op. at 8-9.
As the Supreme Court said in Strickland v. Washington, 466
U.S. 668, 686 (1984):
The benchmark for judging any claim of
ineffectiveness must be whether counsel’s
counsel so undermined the proper
functioning of the adversarial process
that the trial cannot be relied on as
having produced a just result.
I cannot say that the submission of the father’s letter in the
clemency process breached this high threshold for a successful
claim of ineffectiveness of counsel. I, like the U.S. Air Force
Court of Criminal Appeals, find that the prejudice prong of
Strickland has not been met. Accordingly, I would affirm.
9