CAAF will hear oral argument in United States v. Riley, No. 11-0675/AR, on Tuesday, January 22, 2013. CAAF granted review of the following issues:

I. Whether appellant received ineffective assistance of counsel when her defense counsel failed to inform her that she would have to register as a sex offender after pleading guilty.

II. Whether, in light of United States v. Miller, 63 M.J. 452 (C.A.A.F. 2006), there is a substantial basis to question appellant’s guilty plea due to the military judge’s failure to inquire if trial defense counsel informed appellant that the offense to which she pleaded guilty would require appellant to register as a sex offender.

Last term, in United States v. Rose, CAAF avoided the specific question of whether it is deficient performance, meeting the first prong under Strickland v. Washington, 466 U.U. 668 (1984), for ineffective assistance of counsel, for a defense counsel to fail to advise his client about the collateral consequence of sex offender registration in the context of a guilty plea. Now CAAF appears ready to take another bite of this apple with Riley, a case with somewhat unusual facts that make it a good candidate for the question presented in the first issue.

The Appellant in Riley was convicted, in accordance with her plea pursuant to a pretrial agreement, of kidnapping in violation of Article 134. A panel of officers sentenced her to a dishonorable discharge, confinement for five years, and total forfeitures. The sentence was approved as adjudged (the PTA protected against confinement in excess of 11 years). In July, 2011, the ACCA summarily affirmed the sentence. But in November, 2011, CAAF remanded the case for consideration of new issues raised by the Appellant, and ordered the ACCA to obtain affidavits from the trial defense counsel regarding allegations of ineffective assistance of counsel. In May, 2012, the ACCA again affirmed, this time in a memorandum opinion. Then, in October, CAAF granted review.

The facts are neatly summarized in the ACCA’s memorandum opinion:

While on involuntary excess leave following a previous court-martial conviction for failing to report, false official statement, and malingering, appellant dressed in medical scrubs and entered the baby ward of Darnall Army Medical Center on Fort Hood, Texas. Appellant then entered the maternity room of a new mother and baby, and pretended to be an attending nurse. When the mother left to use the bathroom, appellant took the baby out of the room and into the hallway. After the mother returned and noticed her baby missing, she also went out of her room into the hallway. At this time appellant was placing the baby in a backpack and when the mother saw her, she told appellant to stop. Appellant responded that the baby needed to be fed and gave the baby back to the mother and left the area. Five days later, appellant was apprehended by law enforcement agents and admitted to kidnapping the baby from the hospital room.

While serving confinement after pleading guilty at her court-martial for kidnapping, appellant claims that she was informed for the first time that she would have to register as a sex offender for the kidnapping offense. Affidavits provided by appellant’s two defense counsel confirm that they did not inform appellant she would have to register as a sex offender for the kidnapping offense. Moreover, the record of trial confirms that the issue of sex offender registration was not addressed during appellant’s court-martial.

United States v. Riley, No. 20100084, slip op. at 2 (A.Ct.Crim.App. May 11, 2012). The ACCA explained that the sex offender registration was a consequences of Department of Defense Instruction 1325.7, Encl. 27, which lists offenses that require federal sex offender notification to state and local authorities, kidnapping being among them. Of the two Strickland prongs for IAC (deficient performance and prejudice; both must be shown for the Appellant to prevail), the ACCA did not address the question of deficiency because it found that there was no prejudice, due to “the strength of the government’s case, including the overwhelming weight of evidence against appellant, and the favorable sentence limitation in the pretrial agreement.” Riley, slip op. at 3. The court also considered whether it was error for the military judge to accept the Appellant’s plea without asking about sex offender registration, but found that the misunderstanding was not made readily apparent to the judge, noting that “chief reliance must be placed on defense counsel to inform an accused about the collateral consequences.” Riley, slip op. at 4 (quoting United States v. Bedania, 12 M.J. 373, 376 (C.M.A. 1982)).

In her brief to CAAF, the Appellant begins by highlighting the prospective rule established in United States v. Miller, 63 M.J. 452, 459 (C.A.A.F. 2006):

In light of the federal statute, DoD Instr. 1325.7, and state statutes requiring sex offender registration, we conclude that a prospective rule is appropriate to address the importance of trial defense counsel explaining the sex offender registration requirement to an accused. For all cases tried later than ninety days after the date of this opinion, trial defense counsel should inform an accused prior to trial as to any charged offense listed on the DoD Instr. 1325.7 Enclosure 27: Listing Of Offenses Requiring Sex Offender Processing. Trial defense counsel should also state on the record of the court-martial that counsel has complied with this advice requirement. While failure to so advise an accused is not per se ineffective assistance of counsel, it will be one circumstance this Court will carefully consider in evaluating allegations of ineffective assistance of counsel.

(emphasis added). The Appellant’s brief doesn’t specifically ask CAAF to revisit the per se language of Miller, but it does indirectly argue that failure to advise is per se deficient performance, meeting the first Strickland prong. On the question of prejudice, the Appellant’s brief argues that the sex offender registration requirement in this case comes from the additional element of a minor to the kidnapping offense. In the Appellant’s view, this is an aggravating factor that didn’t affect the maximum sentence and would have been negotiable at trial, particularly in the context of sex offender registration. In support of this argument, the Appellant’s brief states that “[a]t the time the parties signed the pretrial agreement, the government did not view sex offender registration as a viable bargaining tool.” App. Br. at 15. Unfortunately, there is no citation to the record to support this assertion. Moreover, the Government’s use of a state-law collateral consequences as a bargaining tool is – in my view – a dubious practice that raises serious ethical concerns (and I felt the same way as a prosecutor).

The Appellant’s brief on the second issue is short, and makes the simple argument that “[i]t’s hard to imagine a collateral consequence that qualifies as ‘major’ if sex offender registration for life does not.” App. Br. at 19. “Private Riley’s lack of understanding of sex offender registration requirements was or reasonably should have been readily apparent to the military judge. No lay person, including PVT Riley, could reasonably be expected to understand that a conviction for kidnapping, which is in no way sexual, triggers sex offender registration requirements.” App. Br. at 20. The real issue here is if the possibility of sex offender registration must be part of the guilty plea colloquy, particularly where the offense is listed in DODI 1325.7, Encl. 27 (of note, this list was revised in this memorandum dated Nov. 16, 2009). It’s not hard to  imaging CAAF adopting a prospective rule on this point.

The Government’s response sticks to the no-prejudice argument accepted by the CCA. The brief makes two main points: First, the Appellant’s conviction was certain, based on the overwhelming evidence against her. Second, the Appellant strongly desired a plea agreement in order to limit her exposure to confinement (as reflected in the post-trial affidavits gathered after the Appellant raised her IAC claim). The brief then turns to the Appellant’s assertion that the Government would have been willing to remove the of a minor element from the charge of kidnapping, thereby (presumably) eliminating the registration requirement:

Appellant’s reasoning is critically flawed. It’s nonsensical to argue that as a result of the government’s superior position, it would be willing to surrender the gravamen of its case.

First, it is not even clear whether removing references to a “minor” is legally permissible, nor does appellant offer any alternative offenses that she could have pled to. [n.]66 The phrase “minor whose parent or legal guardian the accused was not” is part of the “wrongfulness” element of the charged offense. [n.]67 The victim is either “a minor” or “a person not a minor.” [n.]68 Failing to allege that the accused is not the parent of the minor would either: (1) create a charge that fails to state an offense; or (2) allege a simple disorder with a relatively negligible confinement period and possibly no discharge. It defies reason to believe that the government, which appellant concedes has the “superior bargaining position”, would even entertain such a plea offer.

[n.]66 For example, there is no lesser included offense for kidnapping described in the MCM except for Article 80, Attempts. But even that would still subject appellant to the same maximum punishment authorized for the charged offense to include mandatory sex offender registration pursuant to DODI 1325.7.
[n.]67 Manual for Courts-Martial, United States (2008 ed.) [hereinafter MCM] , pt. IV, para. 92 (c) (5)
[n.]68 Id.

Gov’t Br. at 14-15 (emphasis added). I reproduced the footnotes because you might be scratching your head and wondering why the Government’s brief appears to claim that kidnapping itself (not of a minor, but just kidnapping) is not an enumerated 134 offense, when the elements of “Kidnapping” listed in the 2008 (and 2012) Manual are:

(1) That the accused seized, confined, inveigled, decoyed, or carried away a certain person;
(2) That the accused then held such person against that person’s will;
(3) That the accused did so willfully and wrongfully; and
(4) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.

No mention “of a minor” there… Oops? I’m sure the court will give the Government’s attorney an opportunity to clarify this point during the oral argument.

On the second issue, the Government urges CAAF to resist expanding the scope of the military judge’s role in the plea inquiry, arguing that the detailed defense counsel is in the best position to assist the accused in this regard, and that any expansion would “open the floodgates to a myriad of appeals on collateral grounds.” Gov’t Br. at 22. A footnote cites two possible bases for appeals based on collateral consequences: “the right to bear arms and the right to vote.” Gov’t Br. at 22 n.87. Reading this argument brings one particular case to mind: United States v. Denedo, 556 U.S. 904 (2009) (a case involving a claim of IAC due to inaccurate advice about the collateral consequence of deportation, in which the Supreme Court held that military appellate courts have the authority to issue writs of error coram nobis). Even though last year’s robust writ practice was #9 on our list of the Top 10 Military Justice Stories of 2012, it’s hard to say that the floodgates were open or, if they were, that it was a problem. In fact, we said the opposite:

CAAF’s extraordinary writ practice this year — while robust — occurred only reluctantly, usually after it had previously denied another request for extraordinary relief in the same case.  The writs also shared another common feature — they had the apparent effect of making the military justice system function more smoothly while removing appellate issues that could have disturbed the cases’ outcome later.

CAAF’s action in this case could also have the apparent effect of making the military justice system function more smoothly, by clearly defining the role of defense counsel and military judge in advising an accused about the collateral consequence of sex offender registration (undeniably one of the more onerous and life-changing consequences – collateral or otherwise – of a criminal conviction). Despite my complaints about the court’s apparent dodges so far this term (see United States v. Altier and United States v. Datavs), I believe that CAAF will set some new requirements for both counsel and judge, even if it does not grant relief to this Appellant.

Case Links:
AFCCA opinion
Blog post: CAAF grants review of SORNA IAC issue
Appellant’s Brief
Appellee’s (Government) Brief
Blog post: Argument preview

15 Responses to “Argument Preview: United States v. Riley, No. 11-0675/AR”

  1. Michael A says:

    Para. 92(c)(5) says:  “It is not wrongful under this paragraph and therefore not kidnapping for a parent or legal guardian to seize and hold that parent’s or legal guardian’s child.”  The sample spec accounts for this by including the language “a minor whose parent or legal guardian the accused was not.”  This language in the sample spec might also be necessary b/c of para. 92(c)(3), which states “If the victim is incapable of having a recognizable will, as in the case of a very young child…the holding must be against the will of the victim’s parents or legal guardian.”
    The way the President has defined the elements, it would seem to me that the language, “a minor whose parent or legal guardian the accused was not” must be included in the specification when the victim is a minor.  
    At the end of the day, even if you say the language is not necessary in the specification, isn’t the offense still kidnapping of a minor?  Which is what qualifies for registration?

  2. Tami says:

    Is it too much to expect defense counsel to do some research to get smart on collateral consequences of a conviction?  I don’t think so.  Otherwise, what does that say about the quality of representation?  In today’s Army (and these have been issues for a very long time), defense attorneys need to be smart about a variety of collateral consequences of pleading guilty–loss of pension and benefits, sex offender registration, deportation, naturalization, voting, possessing a firearm, etc.  I had a foreign national client charged with desertion.  If he had pled guilty to desertion, he would have been permanently barred from becoming a US citizen.  So instead, he pled guilty to 2.5 year-long AWOL, got an extremely lenient sentence, and no bar to citizenship.
    In a guilty plea case, I think the strength of the government’s case is irrelevant.  The issue is “would the accused have pled guilty to (insert charge) had he/she known about (insert collateral consequence)?”  There are some people out there who don’t care about the strength of the government’s case, they would rather take their chances in court than plead guilty to an offense that makes them subject to the collateral consequence.

  3. EGNB says:

    What is up with female appellants named Riley and baby-related offenses?  See U.S. v. Riley, 58 M.J. 305 (C.A.A.F. 2003).  Bizarre.

  4. Lieber says:

    This case didn’t necessarily have the smartest defense counsel(s).  And that’s all I’ll say about that.

  5. stewie says:

    The military judge didn’t catch it either, not sure it’s quite fair to lambaste the DC for not realizing that kidnapping resulted in sex offender registration. It certainly is not obvious on its face that one would see a charge on kidnapping and think, I better go check and make sure this isn’t an offense that requires sex offender registration.

  6. Zachary Spilman says:

    Michael A:

    ”It is not wrongful under this paragraph and therefore not kidnapping for a parent or legal guardian to seize and hold that parent’s or legal guardian’s child.” The sample spec accounts for this by including the language “a minor whose parent or legal guardian the accused was not.”  This language in the sample spec might also be necessary b/c of para. 92(c)(3), which states “If the victim is incapable of having a recognizable will, as in the case of a very young child…the holding must be against the will of the victim’s parents or legal guardian.”

    This Appellant stole a child. Assuming the child (a newborn) was asleep at the time (a fair assumption), she literally took a napping kid. I just don’t understand how this isn’t kidnapping.

    At the end of the day, even if you say the language is not necessary in the specification, isn’t the offense still kidnapping of a minor? Which is what qualifies for registration?

    That’s a good point, particularly since the language of the 2009 memorandum includes as a reportable sex offense:

    134-Z: Conduct Prejudicial to Good Order and Discipline or Service Discrediting that … (2) involves kidnapping of a minor (except by a parent of the minor)

    But it’s also a fair to wonder if the government wouldn’t have considered a plea to a different offense, if everyone realized that (a lifetime of) sex offender registration was on the line.

  7. Bean says:

    Before folks start piling on defense counsel, it looks like the judge and gov’t missed the registration requirement. But it is one thing if it wasn’t on the DoDI, but quite another when it is and everyone just failed tokeep current on what is on it. And didn’t CAAF essentially find in Rose that the appellant’s rights were prejudiced simply because he would not have pleaded guilty and would have held the govt to its burden?  I’m not sure the strength of the govt’s case has anything to do with it.

  8. Zachary Spilman says:

    Rose was set-aside because he specifically asked about registration, and didn’t get an answer.

  9. Bean says:

    Right.  Rose is a different fact pattern.  But Rose was pre-Miller, and this is post.

  10. Cloudesley Shovell says:

    Bean hits the nail on the head.  The government brought this prosecution.  The case is belongs to the Convening Authority, and it is the SJA and Trial Counsel’s responsibility to ensure that they, at no point, commit easily avoidable error that results in appellate issues.  The goal ought to be as nearly an error-free case as possible, since the case isn’t over until appellate review is complete. 
     
    To paraphrase Tami above, is it too much to expect trial counsel and the SJA responsible for the case to do some research to get smart on collateral consequences of a conviction?  I don’t think so.  Otherwise, what does that say about the quality of representation the government receives?  In today’s Army (and these have been issues for a very long time), trial counsel and SJAs need to be smart about a variety of collateral consequences of pleading guilty–loss of pension and benefits, sex offender registration, deportation, naturalization, voting, possessing a firearm, etc. Because if they aren’t, cases are going to come back from the appellate level for retrial.  And cases are always harder the second time around.  Don’t be the ineffective trial counsel or SJA the causes a case to be returned to your office (probably after you’ve moved on), making your colleagues clean up your mess.
     
    It is not the defense counsel’s role to perfect the government’s case.  That responsibility lies with trial counsel, the SJA, and others answerable to the convening authority.  Their errors in this case should not be left out of the discussion.
     
    Kind regards,
    CS

  11. Anonymous Air Force Senior Defense Counsel with the initials NM says:

    Nobody looked at the DoDI because it’s counter-intuitive to believe that kidnapping would be a sex offense under this fact pattern.  The govt should have to announce before pleas whether an offense will be treated as a sex offense.  I know they can’t speak for the 50 states, but they can speak for whether they will forward the military will treat it that way. 
    The one state official I’ve spoken to about this issue said that his state always requires SORNA registration when the DoD confinement facility forwards him the notice of a possible sex offense.  He also said they never require registration when they don’t get the notice.
    Couldn’t trial counsel just announce on the record whether or not the govt intends to notify the HOR of a possible sex offense?  We can’t speak exactly for what the states will eventually do, but we can at a minimum declare definatively what the military will do BEFORE pleas are entered.  Then we make that declaration binding or give a new trial.
    (Just another reason to dislike the way SORNA applies to C-Ms)

  12. SFC V says:

    Bean/Tami,
    I think when trying to determine whether or not a person would have  pled guilty had the been given additional information the strength of the governments case is an issue.  The strength of the governments case and any benefit to the accused effects the probability that one would have pled guilty even if they had been informed of registration.  The weaker the case and less benefit to the accused would make me think the scale tips in favor of not pleading guilty.  While you may be correct that many people would just as soon go to trial the other side of that coin is that the direct consequences may be greater and they may still suffer the collateral consequences.
     
    On another note I agree with Mr. Spilman in that negotiating around collateral consequences is not a good thing.  The CA doesn’t control the collateral consequences and they may change in the future.  The government can’t guarantee that the collateral consequences of a conviction won’t change.  Making promises to an accused about collateral consequences might end up being a promise that you have no authority to keep. 
     
     
     
     
     
     

  13. John O'Connor says:

    “And cases are always harder the second time around.  Don’t be the ineffective trial counsel or SJA the causes a case to be returned to your office (probably after you’ve moved on), making your colleagues clean up your mess.” 
    I’ll mark Sir Cloudesley down as an adherent to O’Connor’s Law, though someone who drove his ship into the rocks at the Isles of Scilly maybe doesn’t live in a glass house, so to speak.

  14. Lieber says:

    CS: Well, I’d say that at a Ford Hood it’s not reasonable for the SJA to be doing any research on a case like this…but the STC and CoJ should have been cognizant of the issue.

  15. Bean says:

    There is a lot about sex offender registration that is counterintuRomeo-Romeo and Juliet type cases for example.  So I don’t think that should excuse it.  And it doesn’t get much easier than looking on the DoDI, which everyone involved should have been familiar witsolid don’t agree with the idea that negotiating over collateral consequences is wrong.  Things can be charged in many different ways, and some of these collateral consequences have gotten out of control. Besides, don’t we do that anyway by negotiating for an art 15 or SCM? DAs negotiate, why not CAs?