CAAFlog » September 2011 Term » United States v. Bradley

CAAFs leap-day opinion in United States v. Bradley, No. 11-0399/NA (Bradley II), finally resolves the fallout from a trial counsel’s Kastigar violation nearly a decade ago. As I wrote in the argument preview:

The appellant [charged with attempted murder, etc.] entered into a pretrial agreement that included an agreement to testify in the trials of his co-actors under a grant of immunity. Appellant met with prosecutors and testified, however he eventually withdrew from his PTA. The appellant was subsequently prosecuted by a trial counsel who had knowledge of his immunized statements. He moved both to dismiss and to disqualify the trial counsel; both motions were denied by the trial military judge. He then entered guilty pleas pursuant to a new pre-trial agreement.

Bradley II presents fairly technical issues about the interplay between CAAF and a CCA considering a case on remand. But the court, in a unanimous decision (Chief Judge Baker concurring), charts a fairly simple course and focuses on the matter of ineffective assistance of counsel to resolve the case in favor of the government.

First, in a footnote on the first substantive page of the opinion, the court subtly states a significant rule: “Furthermore, the law of the case issue is without merit, as the CCA cannot be bound by an earlier judgment this Court set aside.” Slip op. at 2, N. 1 (emphasis added).

Then, the court avoids determining if the appellant’s counsel was deficient because it easily concludes that even if he was deficient, the appellant suffered no prejudice. In language that is a primer on prejudice analysis, the court explains that:

Appellant further argued in his brief that because the CCA in Bradley I indicated that he would have prevailed on having trial counsel disqualified, he has shown prejudice.

When an appellant argues that counsel was ineffective for erroneously waiving a motion, it makes sense to deny the claim if the appellant would not be entitled to relief on the erroneously waived motion, because the accused cannot show he was harmed by not preserving the issue. However, the accused is wrong to assume the opposite is true — merely being entitled to relief on an erroneously waived motion does not by itself satisfy the prejudice analysis in the guilty plea context. Appellant also must satisfy a separate, objective inquiry — he must show that if he had been advised properly, then it would have been rational for him not to plead guilty. In this case, it would not have been rational for Appellant to reject his pleas.

Even if the military judge had disqualified trial counsel, it would not have changed the nature of the evidence Appellant faced.

Slip op. at 9-10 (citations omitted) (emphasis added).

Judge Stucky’s opinion is a reminder to avoid fixating on an error, and to look instead to the prejudice and the appropriate remedy. The Chief Judge’s concurring opinion shares this point, and it makes for a quiet ending to this long-lived case.

Case Links:
Bradley I: N-MCCA opinion
Bradley I: CAAF oral argument audio
Bradley I: CAAF opinion
Bradley I: Blog post: CAAF issues two more opinions
Bradley II: N-MCCA opinion
Bradley II: Appellant’s brief
Bradley II: Appellee’s (government) brief
Bradley II: Blog Post: Argument preview
Bradley II: CAAF Opinion
Bradley II: Blog Post: Opinion analysis

CAAF has decided United States v. Bradley.

Judge Stucky writes for the court, and three others, CJ Baker writes in concurrence with the result.

We granted review in this case to determine:  (1) whether the United States Navy-Marine Corps Court of Criminal Appeals (CCA) was bound by this Court’s prior decision that Appellant’s unconditional guilty pleas were provident despite waiving a motion to disqualify trial counsel; (2) whether Appellant  received ineffective assistance of counsel; and (3) whether the law of the case doctrine required the CCA to find prejudice from counsel’s deficient performance given the CCA’s prior holding that Appellant was entitled to relief.  We hold that the CCA properly determined the degree to which it was bound by our prior decision and that, even if counsel was deficient, Appellant was not prejudiced by the deficient performance.

CAAF will hear oral argument in a second case on Tuesday, January 24: United States v. Bradley, No. 11-0399/NA. This will be the second time CAAF considers Seaman Bradley’s 2004 guilty pleas before a general court-martial for assault with a means likely to cause grievous bodily harm and reckless endangerment by discharging a firearm, in violation of Articles 128 and 134, UCMJ (appellant participated in a drive-by shooting targeting another Sailor), for which he was sentenced to confinement for 48 months and a dishonorable discharge.

The appellant entered into a pretrial agreement that included an agreement to testify in the trials of his co-actors under a grant of immunity. Appellant met with prosecutors and testified, however he eventually withdrew from his PTA. The appellant was subsequently prosecuted by a trial counsel who had knowledge of his immunized statements. He moved both to dismiss and to disqualify the trial counsel; both motions were denied by the trial military judge. He then entered guilty pleas pursuant to a new pre-trial agreement.

On automatic review, the N-MCCA set-aside the findings and sentence, ruling that the trial military judge gave an ambiguous advisement with regard to the unconditional nature of the appellant’s guilty pleas, finding the pleas to be de facto conditional, and deciding that the military judge abused his discretion by not disqualifying trial counsel who had knowledge of appellant’s immunized statements, creating a Kastigar violation.

The JAG certified two issues to CAAF, which heard oral argument in 2009 (Bradley I), asking if the CCA erred in (1) finding the trial military judge abused his discretion by not disqualifying the trial counsel, and (2) setting-aside the findings and sentence without first finding material prejudice. However, CAAF did not consider the specified issues. Instead, in an opinion from which (now) Chief Judge Baker dissented, CAAF found the appellant’s guilty plea to be unconditional, waiving the issues, set-aside the CCA’s decision, and returned the case for the CCA to complete its review under Article 66.

Read more »

On Tuesday CAAF granted review in United States v. Bradley, No. 11-0399/NA, on the following issues:

I. In Bradley I, this court ruled that its application of waiver to appellant’s disqualification-of-trial-counsel claim did not render his pleas improvident where there was: (1) no ineffective assistance of counsel (IAC) claim; and (2) only a possibility that he believed the disqualification claim was preserved for appeal.  On remand, appellant claimed IAC and presented evidence that he did believe his disqualification issue was preserved.  Did NMCCA err in holding that it was bound by this court’s ruling that appellant’s pleas were provident?

II. Appellant’s civilian counsel erroneously advised him that his denied motion to disqualify trial counsel from further participation in the case was preserved for appeal despite unconditional pleas.  Did NMCCA err in finding that civilian counsel’s erroneous advice was reasonable, and therefore not deficient?

III. On remand, did NMCCA violate the law of the case doctrine by finding that even if the trial judge erred by not disqualifying trial counsel – which the Bradley I court found he had – appellant was not prejudiced – which the Bradley I court found he was?

The N-MCCA’s initial unpublished opinion is here: United States v. Bradley, No. 200501089 (N-M Ct. Crim. App., 25 Nov 2008).

CAAF’s review and remand (Bradley I) is here: United States v. Bradley, 68 M.J. 279; No. 09-5002/NA (CAAF, 20 Jan 2010).

The N-MCCA’s unpublished opinion on remand is here: United States v. Bradley, No. 200501089 (N-M Ct. Crim. App., 15 Feb 2011).

I’m not familiar with the case and haven’t yet reviewed the opinions, so I can’t provide further background at this time.

The Judge Advocate General of the Navy has filed a certificate of review in United States v. Bradley raising these two issues:

I. Whether the lower court erred by finding that the military judge abused his discretion when he denied the defense motion to disqualify trial counsel from further participation in the case.

II. Whether the lower court erred in setting aside the findings and sentence based upon speculation that the trial counsels’ continued participation in the case could have prejudiced Appellee, without making any finding that their continued participation did materially prejudice Appellee, as required by Article 59(a), UCMJ.

We previously discussed Bradley here.

On 25 November 2008, in United States v. Bradley, NMCCA set aside the findings to assault with a means likely to cause grievous bodily harm and reckless endangerment by discharging a firearm, as well as the sentence, due to the accused’s misunderstanding of the effect of his guilty plea. United States v. Bradley, No. NMCCA 200501089 (N-M. Ct. Crim. App. Nov. 25, 2008). The court concluded that neither Seaman Bradley nor his counsel understood his plea of guilty waived “his right to appeal the military judge’s denial of his motion to remove the trial counsel from his case due to a violation of Kastigar v. United States, 406 U.S. 441 (1972).”

As the government does so often when it loses on appeal, Code 46 sought reconsideration. The panel denied reconsideration on 9 March.

Now Code 46 has asked CAAF to extend the time for the Judge Advocate General of the Navy to certify the case. United States v. Bradley, __ M.J. ___, No. 09-5002/NA (C.A.A.F. March 20, 2009).