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 In 2010, the AFCCA again found IAC, and again set-aside the indecent assault findings in an unpublished en banc opinion.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(March 2011), and then a fourth review (Aug 2011) after a government request for reconsideration, both en banc, both unpublished, and both again finding IAC and setting-aside the indecent assault specifications (Rose III).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”).
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