On Tuesday of next week, CAAF will hear oral argument in the certified case of United States v. Rose, No. 09-5003/AF. The case involves a government appeal of a decision of the Air Force CCA finding ineffective assistance of counsel and setting-aside findings of guilty, with the following issues:

Certified Issue: Whether the Air Force Court of Criminal Appeals erred in finding ineffective assistance of counsel in this case.

Granted Issue: Whether an Article 134 clause 1 or 2 specification that fails to expressly allege either potential terminal element states an offense under the Supreme Court’s holdings in United States v. Resendiz-Ponce and Russell v. United States, and this Court’s opinion in United States v. Fosler, 70 M.J. 225 (C.A.A.F., 2011).

The appellee, Airman Rose, was convicted in 2005 by a military judge sitting as a general court-martial, pursuant to his pleas in accordance with a pretrial agreement, of multiple offenses including three specifications of indecent assault in violation of Article 134, UCMJ (note that this occurred prior to the change in Article 120 that took effect in 2007). He was sentenced to confinement for 20 months and a dishonorable discharge. In 2006 he raised an IAC issue pursuant to United States v. Grostefon, complaining of his “civilian defense counsel’s erroneous advice that pleading guilty to indecent assault did not require [him] to register as a sex offender.” The AFCCA ordered a DuBay hearing, heard oral argument in 2008, and issued a published opinion in 2009 in which it found IAC and set-aside the indecent assault convictions. United States v. Rose, 67 M.J. 630 (A. F. Ct. Crim. App., 2009) (Rose I).

The Air Force JAG certified the case to CAAF, which heard oral argument in 2009 and then summarily remanded the case, ordering that the AFCCA obtain an affidavit from the military trial defense counsel, and then conduct a new Article 66 review. In 2010, the AFCCA again found IAC, and again set-aside the indecent assault findings in an unpublished en banc opinion. United States v. Rose, ACM 36508 (A.F. Ct. Crim. App., June 11, 2010) (Rose II). The JAG re-certified, but CAAF again summarily remanded the case because the AFCCA only conducted a new review of the indecent assault specifications, while CAAF had set-aside the AFCCA’s initial review in its entirety.

The AFCCA then conducted a third review (March 2011), and then a fourth review (Aug 2011) after a government request for reconsideration, both en banc, both unpublished, and both again finding IAC and setting-aside the indecent assault specifications (Rose III). The government then re-certified, leading to next week’s argument.

Beneath an appellate history worthy of a law school exam question, the heart of the case is application of the test for IAC established by the Supreme Court in Strickland v. Washington, 466 U.U. 668 (1984), to dueling recollections of the appellee’s primary concern during pretrial negotiations: the civilian trial defense counsel claims that the appellee was most concerned with limiting time spent in confinement, while the appellee claims that he was most concerned with the possibility of sex offender registration. The government’s argument is that the civilian defense counsel did not make an “affirmative misrepresentation,” and that the AFCCA’s decision “improperly extends case law regarding affirmative misrepresentation of collateral consequences by defense counsel to include ‘impressions’ by counsel, even when that counsel has clearly stated that he does not know the answer to Appellee’s questions regarding collateral consequences.” Gov’t br. at 13. The appellee’s argument is that “[t]he civilian defense counsel’s statements to Appellee would lead an objective listener to believe that Appellee would not have to register as a sex offender if he were to plead guilty to the indecent assault specifications. … [Additionally,] Appellee’s counsel violated [applicable] ethical requirements when they failed to provide him with accurate advice despite his many requests to determine whether pleading guilty to the indecent assault specifications would require him to register as a sex offender.” Appellee’s br. at 10-11 (internal citation omitted).

In short, the government’s argument is focused on the absence of an affirmative misrepresentation (i.e., “he never said you won’t have to register”), while the appellee’s argument is focused on the absence of a straight answer to the appellee’s pre-trial questions about registration (i.e., “he never answered my question about registration, leading me to believe it wasn’t an issue”).

Strickland set forth a two-part test for ineffective assistance of counsel (IAC): (1) that the counsel’s performance was so deficient that he was not functioning as counsel guaranteed by the Sixth Amendment (meaning that his performance fell measurably below an objective standard of reasonableness), and (2) that this deficient performance prejudiced the defense (meaning that but for the deficiency, the result would have been different). The client/appellant has the burden to prove both parts of the test.

The government’s brief sets out the differences in this case in the following manner:

Not receiving an answer to a question about collateral consequences is fundamentally different from being given incorrect advice. This Court has already held that the complete failure to provide any advice on the need to register as a sex offender if convicted does not constitute deficient performance under the first prong of Strickland and so does not rise to the level of ineffective assistance of counsel. In the same vein, one would expect a counsel who did not know or was unsure of the answer to a question about a collateral matter to tell the client he did not know or was unsure. Mr. NC told Appellee he was unsure of the answer each time he addressed the issue. That does not amount to a constitutionally deficient performance within the meaning of Strickland.

Gov’t br. at 22-23 (internal citation omitted). The government also argues that by basing its decision on the “impressions” of the appellee, the AFCCA opens the floodgates to claims of IAC from “all manners of impressions an accused may draw from his counsel’s demeanor, words, or lack of response.” Gov’t br. at 24. Finally, the government argues that even if the defense counsel’s performance was deficient, the appellee has failed to establish that he would not have pleaded guilty had he been told that he would have to register as a sex offender, because the government maintains that he was most concerned about limiting confinement time and not registration.

The appellee’s brief strikes back at the government’s position and insists that the civilian trial defense counsel did affirmatively misadvise the appellee, citing to findings by the AFCCA that “[t]he statements of [Appellee’s] civilian defense counsel clearly attempt to minimize the seriousness of the indecent assault charges and assure [Appellee] that he would not have to register as a sex offender.” Appellee’s br. at 20. The brief continues:

Appellee testified that “in the end,” he placed the issue in his attorney’s hands and asked Mr. [C] for his “best advice” about what he should do. Mr. [C] replied that he did not see any reason why Appellee would have to register and advised him to sign the pretrial agreement.That response was not a failure to advise; it was misadvice. And that misadvice violates Strickland’s first prong. As the Air Force Court concluded, “Erroneous advice in this important area falls measurably below the level of performance reasonably expected of professional legal counsel.”

But even if the trial defense team’s responses to Appellee’s queries about sex offender registration did not rise to the level of misadvice, the trial defense team’s failure to comply with Appellee’s reasonable requests for information still offends Strickland’s deficient performance prong. … in this case, Appellee repeatedly asked his counsel about sex offender registration and his counsel understood the significance of the issue to Appellee. Failing to provide advice in that context is objectively unreasonable.

Appellee’s br. at 21-22. The appellee’s brief also cites to the Air Force professional responsibility rules and the ABA’s model rules for the principle that the trial defense team had an ethical duty to accurately answer the appellee’s questions about registration, the violation of which amounted to an objectively unreasonable failure. “A reasonable defense counsel faced with Appellee’s repeated queries about the issue would have informed himself about the law and provided accurate advice. That did not occur in this case.” Appellee’s br. at 25.

Finally, addressing the prejudice test, the appellee’s brief emphasizes the findings in the record, of the DuBay judge and the AFCCA, that the appellee wouldn’t have pleaded guilty had he known about the requirement to register.

The case will be argued at Gonzaga Law School, and there is an amicus brief from two 3Ls at the school. The amici contend that the appellee has met his burden on both prongs of the Strickland test, and that CAAF should affirm the AFCCA’s decision. In their brief they first argue that the Supreme Court’s rationale in Padilla v. Kentucky, 130 S. Ct. 1473 (2010) (“counsel must inform her client whether his plea carries a risk of deportation”) should extend to “a consequence so integral to a criminal penalty as sex offender registration.” Amicus br. at 12. This would create an affirmative duty to advise on sex offender registration that would have been violated in this case (and possibly many others pending on direct review).

On the question of prejudice, the amici argue that in this context the test for prejudice is not that the result at trial would have been different, but that had the deficiency not existed it would have been rational to reject the plea bargain under the circumstances. Amicus br. at 18-19 (citing Padilla, 130 S. Ct. 1473). The brief summarizes this context-specific approach as: “Different outcome in the context of plea bargaining should simply mean whether the defendant would have pled guilty had he received effective counsel.” Id., at 23.The amici propose a two-step test for prejudice:

The appropriate prejudice test in this case should ask whether it is reasonably probable that a rational person in the [appellee’s] position would have rejected the plea had he known that registration was mandatory. In deciding this question, this Court must ask whether it is reasonably probable that there would have been a different outcome. The first question is essentially the “rational under the circumstances” test adopted in Padilla, while the second question asked is nearly the same as that of Strickland, but with the broader understanding of “different outcome” as explained above.

Amicus br. at 24 (internal citations omitted).

Claims of IAC involve mixed questions of law and fact. CAAF reviews factual findings under a clearly-erroneous standard, and the questions of deficient performance and prejudice de novo. I anticipate that next week’s oral argument will thoroughly explore both parts of the certified issue: the factual questions of what transpired between the appellee and his counsel, and the legal questions of deficient performance and prejudice. I also anticipate CAAF will ask the parties to comment on the tests proposed by the amici in the context of their arguments (and, considering Col Sullivan will argue on behalf of the appellee, the court will likely ask about the practical consequences of the proposed tests).

Case Links:
Rose I: AFCCA opinion (Feb 12, 2009) (warning: 23MB pdf)
Rose I: Blog post: Published AFCCA opinion grants relief…
Rose I: CAAF Oral argument audio (Sep 23, 2009)
Rose I: CAAF summary opinion (Oct 28, 2009) (link to daily journal)
Rose I: Blog post: CAAF remands Rose

Rose II: AFCCA en banc opinion (Jun 11, 2010)
Rose II: Blog post: New certified issue
Rose II: CAAF summary opinion (Nov 9, 2010) (link to daily journal)
Rose II: Blog post: Rose drops off CAAF’s schedule

Rose III: AFCCA opinion (en banc) (Mar 9, 2011)
Rose III: AFCCA opinion on reconsideration (en banc) (Aug 15, 2011)
Rose III: Blog post: AFJAG recertifies Rose
Rose III
: Appellant’s (government) CAAF brief
Rose III: Appellee’s CAAF brief
Rose III: Amicus CAAF bref
Rose III: Blog post: Argument preview

3 Responses to “Argument Preview: United States v. Rose, No. 09-5003/AF”

  1. Dew_Process says:

    Strickland has been subtlely modified starting in 2001, where the Court inter alia recognized the “duty to investigate” before giving advice / making tactical decisions.  The IAC cases decided last week seem to emphasize that.  Counsel cannot constitutionally and ethically advise his/her client – here on sex offender registration – without doing the legal investigation (research) necessary to provide accurate advice OR associating themselves with counsel from the jurisdiction involved to answer that question.

  2. Cap'n Crunch says:

    Yeah, not to mention significant decisions this term in SCOTUS on IAC in the context of guilty plea bargain negotiations, drawing sharp dissents from Justice Scalia.

  3. John Fogley says:

    sudden realization from Healthcare OA: Henderson explained Bowles to negate Rodriguez