United States v. Phillips

Opinion of the Court

CRAWFORD, Judge:

1. Pursuant to Ms pleas, appellant was convicted of absence without leave (11 days), conspiracy to distribute cocaine,¹ possession of cocaine, and distribution of cocaine, in violation of Articles 86, 81, and 112a, Uniform Code of Military Justice, 10 USC §§ 886, 881, and 912a, respectively. The convening authority approved the sentence of a bad-conduct discharge, 20 months’ confinement, total forfeitures, and reduction to the lowest enlisted grade. The Court of Military Review² affirmed the findings and sentence. 38 MJ 641 (1993). We specified the following issue for review:

WHETHER THERE WAS INEFFECTIVE ASSISTANCE OF COUNSEL DUE TO COUNSEL’S FAILURE TO ADMIT THE CHAPLAIN’S HANDBOOK, FOR WHICH THE JUDGE ALLOWED 48 HOURS, AND THE WICCA[N] BIBLE, WHICH WAS APPARENTLY REASONABLY OBTAINABLE.

We hold that defense counsel was not ineffective m failing to move the admission of the Chaplain’s Handbook and the Wiccan Bible.

FACTS

2. After hearing evidence during sentencing,³ the military judge held a post-trial session under Article 39(a), UCMJ, 10 USC § 839(a), to address the allegations of illegal pretrial pumshment by demal of appellant’s right to “religious practice.” During this session appellant alleged that he was not permitted access to the Wiccan Bible during Ms pretrial confinement in a civilian jail. Appellant’s First Sergeant testified that appellant was denied the Bible by the head jailer because Wicca “wasn’t a recognized religious practice in the State of North Carolina.”

3. The Court of Military Review m tMs case stated:

Wicca is a pagan religion not unlike the ancient Druid faith, believing in the sacredness of Nature. While not involving a belief m, or worsMp of, Satan, prejudice against Wiccans exists because of popular confusion between witchcraft (wMch is part of the Wiccan faith) and Satamsm. See Office of the CMef of Chaplains, Dep’t of the Army, Religious Requirements and Practices of Certain Selected Groups: A Handbook for Chaplams (n.d) [not dated].

38 MJ at 642 n. 3. Although appellant’s personnel records reflect that he was a Baptist, appellant claimed to have been practicing witchcraft for approximately 14 months.

4. At the hearing the judge asked the defense whether any Army regulations covered religious practices in confinement facilities. The defense responded:

I flunk 19CM/7 is the confinement regulation. I think there’s simply a general admonition within that regulation that should attempt to accommodate religious practice. I don’t think it gets specific on that. That’s just my recollection.

5. The judge allowed the defense 48 hours to submit these materials. However, no materials were submitted, and the judge found:

[T]e accused was denied access to materials concerning the Wiccan religion. However, the defense has presented no evidence whatsoever, except for some sketchy testimony by the accused, concerning the nature of the Wiccan religion, its tenets and practices. I am not convinced by the evidence that the Wiccan religion is in fact a “religion,” that is, “the service and worship of the supernatural” (Websters New Collegiate Dictionary). Nor am I convinced that the accused is a devotee of Wiccan practices to any extent such that deprivation of reading materials would have any significant prejudicial effect upon him. In any event, I find that deprivation of such materials was not intended by anyone (Army personnel or Cumberland County Jail personnel) to be pretrial punishment.

Appellate Exhibit (App.Ex.) VIII at 2.

DISCUSSION

6. The First Amendment right to the free exercise of religion is a preferred and cherished right. See Murdock v. Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292 (1943). The freedom to believe may never be infringed within the prison walls. However, the practice of a religion there is subject to reasonable regulations. Long v. Parker, 390 F.2d 816, 820 (3d Cir. 1968). While not manacling the right to worship, certain practices may be curbed due to security needs, or insufficient space, time, or resources. We need not in this case determine the exact nature of the right to practice religion and what legitimate governmental interests may limit this right. But we do know that at least religious expression may not include preaching defiance of prison authorities. Knuckles v. Prasse, 302 F.Supp. 1036, 1058 (E.D.Pa. 1969), aff'd, 435 F.2d 1255 (3d Cir. 1970), cert. denied, 403 U.S. 936, 91 S.Ct. 2262, 29 L.Ed.2d 717 (1971).

7. An effective counsel obtains credit against a sentence to confinement for the following: pretrial confinement, United States v. Allen, 17 MJ 126 (CMA 1984); no assignment of requested counsel, RCM 305(f), Manual for Courts-Martial, United States, 1984; no review of confinement within 48 hours, RCM 305(h)(2), as modified by United States v. Rexroat, 38 MJ 292 (CMA 1993), cert. denied, — U.S.-, 114 S.Ct. 1296, 127 L.Ed.2d 648 (1994); no review by a neutral officer within 7 days, RCM 305(i)— see RCM 305(k); or violations of Article 13, UCMJ, 10 USC § 813, United States v. Suzuki 14 MJ 491 (CMA 1983). The specified issue concerns effectiveness of counsel in failing to litigate the necessity for Suzuki credit for illegal pretrial confinement occurring when appellant was not given a Wiccan Bible.

8. The effectiveness of counsel is determined by a two-pronged test: first, the competence prong, and second, the prejudice prong. Strickland v. Washington, 466 U.S. 668, 687, 699, 104 S.Ct. 2052, 2064, 2070-71, 80 L.Ed.2d 674 (1984); United States v. Loving, 41 MJ 213, 242-49, ¶¶ 25-42 (1994). In applying the Strickland test the Supreme Court has emphasized that “[jjudicial scrutiny of counsel’s performance must be highly deferential.” 466 U.S. at 689, 104 S.Ct. at 2065. “[Cjounsel is strongly presumed” to have given “adequate assistance.” Id. at 690, 104 S.Ct. at 2066. The Court warned that “it is all too tempting ... to second-guess” a lawyer’s performance and the Court should try “to eliminate the distorting effects of hindsight.” Id. at 689, 104 S.Ct. at 2065. Acts or admissions by counsel that are strategic or tactical do not lead to a violation of the first prong. The Court in Strickland held that “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” Id. at 690, 104 S.Ct. at 2066.

9. While the record does not reflect defense counsel’s reason for not producing a Wiccan Bible and the pertinent regulations, it is doubtful that these materials would have convinced the judge that appellant suffered pretrial punishment by denial of a so-called Wiccan Bible. In point of fact there is no Wiccan Bible. Instead the ritual text is called The Book of Shadows. It is a blank book in which the pages are copied by hand from one’s initiating High Priestess. Dep’t of Army Pamphlet 165-13, Religious Requirements And Practices, Chap. VII-39 at 5 (April 1978) (Appendix B of Final Brief). This pamphlet also notes that “[individual worship is possible, but not generally practiced.” Page 2. Additionally, it describes the “Minimum Equipment For Worship: an atheme (ritual knife), a bowl of water, a censer with incense, salt, an altar and 6 candles in candlesticks. A sword and pentacle (talisman) are optional, not widely used. All tools must be ritually consecrated by a High Priestess.” Page 3. It is highly doubtful that any confinee would be permitted access to this “minimum equipment for worship” of the Wicean religion. Indeed it is reasonable to assume that counsel may have investigated producing The Book of Shadows and other descriptive materials but decided that it would be counter-productive. Thus, appellant has not carried his burden to show that his counsel was incompetent by not producing these materials.

10. Even assuming that appellant has met his burden with respect to the first prong of Strickland, the issue concerning Article 13 is whether the refusal to furnish the Bible was done with the intent to punish or stigmatize a person awaiting disciplinary disposition. United States v. Bayhand, 6 USCMA 762, 21 CMR 84 (1956); see also Thacker v. United States, 16 MJ 841 (NMCMR 1983); United States v. Southers, 12 MJ 924, 927 (NMCMR 1982).

Article 13 of the Uniform Code of Military Justice provides:

No person, while being held for trial, may be subjected to punishment or penalty other than arrest or confinement upon the charges pending against him, nor shall the arrest or confinement imposed upon him be any more rigorous than the circumstances require to insure his presence, but he may be subjected to minor punishment during that period for infractions of discipline.

11. No evidence was introduced at trial that denial of the Bible was intended to punish appellant. The only evidence was that the jailer erroneously thought that Wicea was not a recognized religion. While the Fourth Circuit (which includes North Carolina) in Dettmer v. Landon, 799 F.2d 929 (1986), cert. denied, 483 U.S. 1007, 107 S.Ct. 3234, 97 L.Ed.2d 739 (1987), recognized Wicca as a religion, the court went on to hold that it was permissible to exclude from a confinement facility many of the objects utilized in the practice of the Wicca religion. Cf. Theriault v. Carlson, 495 F.2d 390 (5th Cir. 1974), cert. denied, 419 U.S. 1003, 95 S.Ct. 323, 42 L.Ed.2d 279 (1974). In any event, we hold the military judge’s findings of fact that there was no intentional punishment were not clearly erroneous. Because we conclude that there was no violation of Article 13, appellant could not have been prejudiced by any deficiency of counsel. Thus, we conclude that the second prong of Strickland has not been met.

The decision of the United States Army Court of Military Review is affirmed.

Judges COX and GIERKE concur.

1 . GCMO 11 dated 11 July 1992 erroneously reflects that appellant was found not guilty of this offense (specification 1 of Charge II). The finding of not guilty as to Charge IV is correct. R. 98.

2 . See 41 MJ 213, 229 n. * (1994).

3 . Appellant made an unsworn statement during sentencing that he asked the First Sergeant about religious materials. He stated, "[T]he jailers wouldn't allow” his girlfriend to bring "all my books about” Wicca.

The First Sergeant testified that appellant told him and the company commander that the jailers refused to "let his girlfriend bring a copy of his book—whatever it was that he wanted in there.” Appellant’s girlfriend was asked:

Q. When Specialist Phillips was incarcerated in pretrial confinement down at the Cumberland County Jail, did you attempt to take religious literature to him?

A. Yes. And the literature that I took to— inside the front cover—it’s got an AR.

Q. Were you permitted to give that religious literature to him?

A. No, they wouldn’t allow it.