United States v. Leipart (2024)

For the reasons cited below, I concur in the judgment of the Court. 1

Issue I: Ineffective Assistance of Counsel

The first granted issue asks “[w]hether trial defense counsel were ineffective for, inter alia, allowing the military judge to consider Appellant's guilty plea when determining whether Appellant was guilty of the litigated offenses.” United States v. Leipart, 83 M.J. 448 (C.A.A.F. 2023) (order granting review). As can be seen, the language of this granted issue squarely focuses on whether defense counsel erred by “allowing” the military judge to “consider” during the contested phase of the court-martial proceedings the admissions Appellant previously had made during the providence inquiry. And yet, Appellant now seeks to argue that trial defense counsel were also ineffective because they failed to object to trial counsel's slides during findings argument and failed to object to trial counsel's “clearly improper” findings argument. As is evident, however, the latter two arguments are outside the scope of the granted issue.

In order to ensure that a claim of error lies within the scope of an issue, an appellant must raise it with a reasonable degree of specificity based on the wording of that issue. Any notion that the phrase “inter alia”—which Appellant inserted into the issue statement—necessarily serves to later open the door to other, unreferenced arguments is mistaken. And in the instant case, there is no reason for this Court to exercise its discretion and consider the additional two arguments raised by Appellant. See, e.g., United States v. Pyron, 83 M.J. 59, 63 n.2 (C.A.A.F. 2023) (declining to “weigh in on [a] matter” outside of the scope of the granted issue). Accordingly, only Appellant's argument pertaining to the effect his prior guilty pleas had on the contested charges merits our review.

Upon engaging in an analysis of the issue presented, a preliminary point must be addressed. Specifically, the language of Issue I asserts that trial defense counsel allowed the military judge to “consider” Appellant's prior guilty pleas. However, during the exchange between civilian defense counsel and the military judge, the issue was whether the military judge—in his role as the factfinder for the contested charges—should be deemed “aware of” the prior guilty pleas:

[Military Trial Judge (MJ2)]: But you had mentioned in your opening statement about the mixed pleas, the guilty pleas, and one of the questions I was going to ask you, regardless of that, is your position—from the defense team—on consideration, or the fact-finder being aware that there has been previous guilty pleas? ․

[Civilian Defense Counsel (CivDC1)]: ․ I wasn't necessarily asking you to, as the factfinder, to necessarily consider that mixed plea. ․

․

MJ2: So we're operating in a world where I'm aware of the previous guilty pleas?

CivDC1: Of course, sir; yes.

MJ2: ․ [E]ven as the factfinder. ․

․

MJ2: ․ I'm aware of it.

(Emphasis added.) This point is not a mere matter of technical precision. If the military judge had used the word “consider,” Appellant perhaps would have a stronger argument that civilian trial counsel was authorizing—and even encouraging—the military judge to use the facts elicited during the providence inquiry when deciding whether the elements of the contested offenses had been met. That approach would be a matter of grave concern. Compare United States v. Flores, 69 M.J. 366, 368 (C.A.A.F. 2011) (“[A] military judge who has advised an accused that she is waiving her right against self-incrimination only to those offenses to which she is pleading guilty cannot later rely on those statements as proof of a separate offense.”), with United States v. Kaiser, 58 M.J. 146, 148-49 (C.A.A.F. 2003) (stating the factfinder should not be notified of an accused's guilty pleas “[i]n the absence of a specific request by the accused”), and United States v. Rivera, 23 M.J. 89, 96 (C.M.A. 1986) (same), and R.C.M. 913(a) Discussion (2016 ed.) (same).

I concede that this point is complicated by the DuBay 2 military judge's finding which conspicuously uses the word “consider” rather than the phrase “aware of.” But, as indicated above, the actual record of trial is clear on this point and the contemporaneous record is the preferred source for determining what civilian defense counsel's position was at the time of trial and what the military judge's state of mind was at the time of findings. Moreover, the United States Air Force Court of Criminal Appeals (CCA) made a finding that supersedes the finding of the DuBay military judge. Namely, the CCA made a factual finding that “the trial judge indicated that he would be ‘aware’ of the guilty plea, not that he would consider or use the guilty plea during his deliberations on findings.” United States v. Leipart, No. ACM 39711, Misc. Dkt. No. 2021-03, 2023 CCA LEXIS 39, at *34, 2023 WL 415990, at *11 (A.F. Ct. Crim. App. Jan. 26, 2023) (unpublished). This finding by the CCA is not clearly erroneous and thus controls. See United States v. Tollinchi, 54 M.J. 80, 82 (C.A.A.F. 2000) (“We will not overturn findings of fact by a Court of Criminal Appeals unless they are clearly erroneous or unsupported by the record.”).

Turning to the gravamen of the granted issue, this Court “recognize[s] that trial defense counsel's performance is presumed to be competent.” United States v. Harpole, 77 M.J. 231, 237 (C.A.A.F. 2018). An appellant may overcome this presumption if he satisfies his burden by first demonstrating that his allegation about his counsel's conduct is accurate and, if so, by then showing that “there [is no] reasonable explanation for counsel's actions” and these actions “fall measurably below the performance ․ [ordinarily expected] of fallible lawyers.” United States v. Gooch, 69 M.J. 353, 362 (C.A.A.F. 2011) (second and third alterations in original) (internal quotation marks omitted) (quoting United States v. Polk, 32 M.J. 150, 153 (C.M.A.1991)). For the reasons stated below, I conclude that Appellant cannot succeed on his ineffective assistance of counsel claim because there was a “reasonable explanation” for counsel's decision to make the military judge, as the factfinder, “aware of” Appellant's guilty pleas, such that the civilian defense counsel's performance was not deficient. Therefore, no further analysis of this issue is required. See United States v. Captain, 75 M.J. 99, 103 (C.A.A.F. 2016) (indicating that ineffective assistance of counsel claims can be disposed of based on the deficient performance prong).

At the outset of my analysis, I acknowledge that civilian defense counsel (1) did not place specified limitations on how the military judge should employ his awareness of Appellant's prior guilty pleas; (2) conceded in his DuBay testimony that upon reflection he “probably” would not have taken the same approach; and (3) did not consult with other counsel—or with Appellant—before asking the military judge to be aware of the guilty pleas. However, these three points do not warrant a finding of deficient performance.

In regard to the first point, there is no indication in the record that civilian defense counsel erroneously intended for the military judge to consider Appellant's admissions during the providence inquiry as evidence supporting an element of the contested charges. Instead, counsel only asked the military judge to be “aware of” Appellant's guilty pleas. Importantly, civilian defense counsel had no reason to believe that the military judge would use his “awareness of” the prior guilty pleas in an improper manner. Indeed, the counsel knew that the military judge seemed meticulously mindful of his distinct role during each phase of the proceedings. Therefore, the civilian defense counsel was not required to place specified limitations on how the military judge should employ his awareness of Appellant's prior guilty pleas.

In regard to the second point, the mere fact that civilian defense counsel subsequently questioned whether he should have taken this approach at trial carries very little weight in an ineffective assistance of counsel context. The full benefit of hindsight, whereby counsel now knows that his trial strategy was unsuccessful, can affect perceptions. See Strickland v. Washington, 466 U.S. 668, 689 (1984) (“A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.”); United States v. Mazza, 67 M.J. 470, 474 (C.A.A.F. 2009) (“We are not to assess counsel's actions through the distortion of hindsight ․”).

And in regard to the third point, there is some indication in the record that the two civilian defense counsel had at least briefly conferred about this general topic. But regardless, Appellant has not cited any statute or case law that requires one counsel who is arguing a point to obtain the agreement of fellow counsel about how best to proceed. Moreover, Appellant cannot prevail solely because civilian defense counsel failed to consult with Appellant himself before counsel took the approach now at issue in this appeal. Simply stated, Appellant's constitutional right to silence was not at issue in this case. That is because civilian defense counsel did not advocate for any statements made by Appellant during the providence inquiry to be used against Appellant as evidence of guilt. Moreover, there is no evidence in the record that the military judge improperly used these statements in that manner. Therefore, the decision to pursue the “awareness approach” rested within the sound discretion of defense counsel and Appellant's acquiescence was not required. See McCoy v. Louisiana, 584 U.S. 414, 422 (2018) (contrasting between the decisions that are “the lawyer's province” and those an accused must personally make, including “whether to plead guilty, waive the right to a jury trial, testify in one's own behalf, ․ forgo an appeal,” and “[a]utonomy to decide that the objective of the defense is to assert innocence”); see also Rivera, 23 M.J. at 96 (“[A] military judge certainly should not presume that an accused is willing to have this potentially damaging information as to a guilty plea brought to the members’ attention unless, in fact, the accused or his counsel has given some specific indication to this effect.” (emphasis added)).

The key question then is whether civilian defense counsel had a reasonable explanation for his actions at the time of trial such that counsel's conduct was not deficient. I conclude that he did. To begin with, the record before us indicates that civilian defense counsel concluded that this particular military judge would properly handle his “awareness of” the prior guilty pleas. Next, by acknowledging the obvious and being reasonable in his approach, civilian defense counsel wanted to cultivate “goodwill” with the military judge which would redound to the benefit of his client. See Rivera, 23 M.J. at 96 (discussing one rationale for an accused to inform the factfinder of his guilty pleas was to prevent the factfinder from feeling “duped”). And finally, it was “reasonable” for civilian defense counsel to take the tack of arguing that Appellant had demonstrated through the prior guilty pleas that he was willing to accept responsibility for those offenses which he actually committed, and that he was pleading not guilty to the remaining offenses because he was, in fact, innocent of those charges. See id. at 95-96 (discussing another rationale to inform the factfinder of an accused's guilty pleas as “counsel wish[ing] to argue that the accused was perfectly willing to plead guilty to the crimes of which he, in fact, was guilty, but that he has pleaded not guilty to the remaining charges because he is innocent thereof”).

For all these reasons, I conclude that there was no ineffective assistance of counsel in this case.

Issue II: Improper Argument

The second granted issue asks “[w]hether the trial counsel's ‘clear error’ in findings argument—leveraging Appellant's guilty plea to prove his guilt of the litigated offenses—was harmless beyond a reasonable doubt.” Leipart, 83 M.J. at 448. Consistent with the phrasing of this issue statement, I conclude that trial counsel did indeed commit clear error when he used Appellant's admissions during the providence inquiry to argue that Appellant was guilty of the contested charges.

Civilian defense counsel's decision to have the military judge be aware of the prior guilty pleas did not extend to authorizing the military judge to use those guilty pleas and related admissions as evidence of Appellant's guilt to the other offenses. And yet, trial counsel argued during findings that “the [G]overnment believes [the military judge should] use [Appellant's guilty pleas] in assessing [the victim's] credibility on the stand.” 3 If the military judge had used the guilty plea inquiry in this manner, it would have violated Appellant's presumption of innocence as well as his Fifth Amendment right against self-incrimination. See Flores, 69 M.J. at 369-70 (To “later rely on [the providence inquiry] statements as proof of a separate offense ․ would compel an accused to incriminate [himself] in the separate criminal proceeding.” (citation omitted)); Kaiser, 58 M.J. at 150 (notifying the factfinder of guilty pleas “implicates the presumption of innocence”). Thus, the trial counsel's conduct constituted “clear error.” See Flores, 69 M.J. at 370 (stating that “the direct reference made by trial counsel to a statement made by [the accused] at the providence inquiry” was error that was “plain and obvious”).

Because this type of error is of constitutional magnitude, the Government bears the burden in the plain error context of demonstrating that the error was harmless beyond a reasonable doubt. See United States v. Palacios Cueto, 82 M.J. 323, 334 (C.A.A.F. 2022) (citing United States v. Tovarchavez, 78 M.J. 458, 460 (C.A.A.F. 2019)). 4 In evaluating prejudice, this Court considers such factors as “ ‘(1) the severity of the misconduct, (2) the measures adopted to cure the misconduct, ․ (3) the weight of the evidence supporting the conviction,’ ” Andrews, 77 M.J. at 402 (quoting United States v. Fletcher, 62 M.J. 175, 184 (C.A.A.F. 2005)), and (4) “the lack of defense objection,” United States v. Carpenter, 51 M.J. 393, 397 (C.A.A.F. 1999).

Although I view it as a close call, I conclude that the Government has met its burden when evaluating these factors. In terms of the first factor, I note that trial counsel's conduct was only moderately severe because the reason for the erroneous reference to Appellant's guilty pleas originated from civilian defense counsel's request that the military judge be “aware of” the pleas, which apparently was somewhat confusing for all of the participants. 5 In terms of the third factor, the evidence in support of the convictions was not particularly compelling. See Leipart, 2023 CCA LEXIS 39, at *74, 2023 WL 415990, at *24 (stating “the evidence in favor of conviction was not overwhelming”). Thus, this factor weighs in favor of Appellant. And in terms of the fourth factor, Appellant's trial defense counsel did not object to trial counsel's erroneous argument, which “is ‘some measure of the minimal impact’ of a prosecutor's improper comment.” Carpenter, 51 M.J. at 397 (quoting United States v. Nelson, 1 M.J. 235, 238 n.6 (C.M.A. 1975)).

The key to the resolution of this issue therefore lies with the second factor. It must be noted, however, that in military judge-alone trials, the question of whether any measures were adopted to cure the misconduct “adds little to the [prejudice] analysis.” United States v. Erickson, 65 M.J. 221, 224 (C.A.A.F. 2007). Of course, this Court has often stated that “[m]ilitary judges are presumed to know the law[,] ․ to follow it absent clear evidence to the contrary,” and “to distinguish between proper and improper ․ arguments.” Id. at 225. Nevertheless, the presumption that a military judge knows the law is not dispositive of the prejudice issue in a case such as this one. Instead, the fact that there was a bench trial merely serves as an additional point to weigh in the course of assessing the issue of prejudice. See id. at 224-25. 6

The record causes me to conclude that it is appropriate in this case to invoke the presumption that the military judge knew the law and followed it. And as a result, I presume that the military judge was able to distinguish between proper and improper argument here, and thus, contrary to trial counsel's clearly erroneous argument, did not use Appellant's statements during the providence inquiry as evidence to prove any element of the contested offenses. See id. at 225.

In support of this position, I note that the military judge made it repeatedly clear on the record that he was only going to deem himself “aware of” the prior guilty pleas. He never said that he would “consider” those pleas in the course of the contested proceedings. Further, there is no evidence in the record that the military judge was confused or mistaken about the practical application of Appellant's Fifth Amendment rights in this context. And finally, the fact that the military judge found Appellant not guilty of certain offenses demonstrates that he did not adopt the trial counsel's expansive argument that because Appellant's own words during the providence inquiry verified the victim's credibility, the victim must automatically be believed in regard to all of her allegations. See United States v. Sewell, 76 M.J. 14, 19 (C.A.A.F. 2017) (“The panel's mixed findings further reassure us that the members weighed the evidence at trial and independently assessed Appellant's guilt without regard to trial counsel's arguments.”).

When weighing these various factors for evaluating prejudice, the presumption that the military judge knew and applied the law tips the scale in the Government's favor. Accordingly, I conclude that the Government has demonstrated that the trial counsel's clear error during findings argument was harmless beyond a reasonable doubt.

Conclusion

As the discussion above demonstrates, I believe that Appellant cannot prevail on either of the granted issues, and therefore I would affirm the decision of the United States Air Force Court of Criminal Appeals. Because the majority opinion reaches the same result, I concur in the judgment.

FOOTNOTES

1.   I adopt the facts as laid out by the majority opinion.

2.   United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967).

3.   For instance, trial counsel implicated Appellant's guilty pleas when counsel said that the military judge “kn[e]w for a fact [the victim was] telling the truth about X, Y, and Z. So that increases her credibility automatically.” (Internal quotation marks omitted.)

4.   The Government argues that Tovarchavez should be overruled. In my view, the Government did not meet its “substantial burden of persuasion” to overrule this case because it failed to evaluate each stare decisis factor. United States v. Andrews, 77 M.J. 393, 399 (C.A.A.F. 2018) (citation omitted) (internal quotation marks omitted).

5.   The Government contends that this confusion invited trial counsel's response during findings argument such that there was no plain error. Indeed, this Court has recognized: “[T]he 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. Gilley, 56 M.J. 113, 120 (C.A.A.F. 2001) (quoting United States v. Robinson, 485 U.S. 25, 32 (1988)). “Under the ‘invited response’ or ‘invited reply’ doctrine, the prosecution is not prohibited from offering a comment that provides a fair response to claims made by the defense.” United States v. Carter, 61 M.J. 30, 33 (C.A.A.F. 2005) (citations omitted); Gilley, 56 M.J. at 121 (“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.’ ” (citation omitted)). Here, the Government claims that the defense opened the door to trial counsel's use of the providence inquiry and guilty pleas by referring to them in the opening statement, asking the military judge to be aware of them, and by cross-examining the victim on her statements that formed the basis for the guilty plea offenses in order to challenge her credibility. Viewed in context, the Government contends that trial counsel's use of the providence inquiry statements and guilty pleas to rehabilitate the victim's credibility was a fair response to the defense's strategic use of the evidence. While the Government makes some strong points, I choose to resolve this issue on other grounds.

6.   In the court-martial panel context, there is a presumption that members follow military judges’ instructions. United States v. Norwood, 81 M.J. 12, 20 (C.A.A.F. 2021). Importantly, however, this Court has acknowledged that a trial counsel's conduct may be “so prejudicial that the curative instructions were inadequate.” United States v. Short, 77 M.J. 148, 151 (C.A.A.F. 2018); see also Donnelly v. DeChristoforo, 416 U.S. 637, 644 (1974) (observing that “some occurrences at trial may be too clearly prejudicial for such a curative instruction to mitigate their effect”); United States v. Crutchfield, 26 F.3d 1098, 1103 (11th Cir. 1994) (“When [prosecutorial misconduct] permeate[s] a trial to such a degree as occurred in this case, we do not believe that instructions from the bench are sufficient to offset the certain prejudicial effect suffered by the accused.”). As Erickson, 65 M.J. at 224, demonstrates, this same exception applies to the presumption that miliary judges follow the law.

Chief Judge OHLSON, with whom Judge JOHNSON joins, concurring in the judgment.