CAAFlog » September 2011 Term » United States v. Rose

All the above denied.  Fry not on the list because of pending action.  But couldn’t see Easton?

CAAF’s opinion in United States v. Rose, No. 09-5003/AF, 71 M.J. 138 (C.A.A.F. May 24, 2012) (CAAFlog case page) (link to slip op.), comes at the end of an appellate history worthy of a law school final exam. The AFCCA found ineffective assistance of counsel in this case a total of four times, and CAAF remanded the case twice for further consideration, before Judge Ryan wrote for a unanimous court on May 24, 2012, that “counsel’s failure to comply with a reasonable request for information about sex offender registration amounted to deficient performance where counsel knew that this was a ‘key concern,’ and where, had the request been investigated and answered, even counsel acknowledges that his advice would have been different.” Rose, slip op. at 13-14.

The case involves an Airman who was convicted, pursuant to his pleas and in accordance with a pretrial agreement, of multiple offenses including three specifications of indecent assault in violation of Article 134 (in 2005 – two years before the “new” Article 120 in 2007). He subsequently complained of his civilian defense counsel’s “erroneous advice that pleading guilty to indecent assault did not require [him] to register as a sex offender,” pursuant to United States v. Grostefon. On brief, the government argued that:

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). But CAAF finds the opposite: “counsel’s failure to answer a specific request for information violates the duty to ‘promptly comply with reasonable requests for information’ under the ABA Model Rules of Prof’l Conduct R. 1.4 and the AF Rule of Prof’l Conduct 1.4.” Slip op. at 13.

Rose was argued at Gonzaga Law School as part of Project Outreach, and two 3Ls wrote an amicus brief arguing, in part, 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. But Padilla gets only a single mention in CAAF’s opinion in Rose, and the argument of the amicus, that sex offender registration requires the same pretrial advice as immigration consequences, gets no mention at all.

In the end, CAAF’s opinion in Rose is grounded in the ABA’s Model Rules of Professional Conduct and the Air Force Rules of Professional Conduct, and the court avoids the kind of sweeping change incumbent in creating a blanket requirement to advise on the possibility of the requirement for sex offender registration. It’s a relatively simple resolution to a relatively complex case.

Case Links (see the argument preview for case links for Rose I & II):
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
Rose III: Oral argument audio
Rose III: CAAF opinion
Rose III: Blog post: Opinion analysis

Judge Ryan writes for a unanimous court, ruling against the government in this certified case, setting aside the sentence, and authorizing a rehearing. Opinion here.

Under Article 67(a)(2), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 867(a)(2) (2006), the Judge Advocate General of the Air Force (TJAG) certified the following issue:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED IN FINDING INEFFECTIVE ASSISTANCE OF COUNSEL IN THIS CASE.

We answer the question in the negative, albeit under different reasoning than the United States Air Force Court of Criminal Appeals (AFCCA). Where, as here, a defendant’s reasonable request for information regarding sex offender registration was “a key concern” identified to defense counsel that “went unanswered,” and if it had been correctly answered he would not have pleaded guilty, we hold that he received ineffective assistance of counsel.

Moreover, in light of our decision in United States v. Ballan, 71 M.J. 28 (C.A.A.F. 2012), we hold that it was obvious error to omit the terminal element of Article 134, UCMJ, 10 U.S.C. § 934 (2006), from Specification 4 under Charge V, but that there was no prejudice to Appellee’s substantial rights. Therefore, we affirm the decision and order of the AFCCA setting aside the findings of guilty to Specifications 1, 2, and 3 under Charge V and the sentence, affirming the remaining findings of guilty, and authorizing a rehearing.

Analysis to follow.

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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Today the Judge Advocate General of the Air Force certified the case of United States v. Rose to CAAF for the third time.  The certified issue is:  “Whether the Air Force Court of Criminal Appeals erred in finding ineffective assistance of counsel in this case.”

The Air Force Court’s latest decision in the case is available here.  The Air Force Court’s decision that led to the second certification — and the one that is really at issue in this certification — is available here.  The Air Force Court’s original decision in the case is published at 67 M.J. 630 (A.F. Ct. Crim. App. 2009).

[Disclosure:  I’m one of AB Rose’s appellate defense counsel.]

On Tuesday, CAAF remanded United States v. Rose, No. 09-5003/AF, to the Air Force Court, resulting in the cancellation of next month’s scheduled oral argument in the case.  CAAF’s order explains:

Upon further consideration of the certified issue (69 M.J. 198), we note that because of an ambiguity in this Court’s order of October 28, 2009 (68 M.J. 236), where we set aside the decision of the United States Air Force Court of Criminal Appeals, but ordered a new review of only Issue II, the Court of Criminal Appeals, in its subsequent decision of June 11, 2010, acted on the findings with respect to Specifications 1, 2, and 3 of Charge V, but not on the remaining findings and the sentence.  This has resulted in having a case before us for review that does not have a complete decision on all findings and a sentence by a Court of Criminal Appeals as required by Article 67(c), Uniform Code of Military Justice, 10 U.S.C. § 867(c) (2006).  Accordingly, it is, this 9th day of November, 2010,

ORDERED:

That the case is returned to the Judge Advocate General of the Air Force for remand to the lower court to complete its review under Article 66(c), UCMJ, as to the remaining findings and the sentence; and

That the hearing notice issued on September 28, 2010, is hereby rescinded.

[insert familiar disclosure here]

The Judge Advocate General of the Air Force certified an issue to CAAF today:  “WHETHER AN ‘IMPRESSION’ LEFT BY CIVILIAN DEFENSE COUNSEL THAT APPELLEE MAY NOT HAVE TO REGISTER AS A SEX OFFENDER AMOUNTED TO AN AFFIRMATIVE MISREPRESENTATION AND LED TO INEFFECTIVE ASSISTANCE OF COUNSEL.”  United States v. Rose, __ M.J. __, No. 09-8020/AF (C.A.A.F. July 12, 2010).

This is the second time that a Judge Advocate General of the Air Force has certified the Rose case to CAAF.  When it first considered the case, the Air Force Court reversed the findings of guilty that would require the accused to register as a sex offender on IAC grounds arising from the civilian defense counsel’s faulty response to AB Rose’s questions about whether he’d have to register as a sex offender if he pleaded guilty to the indecent assault charges he faced.  United States v. Rose, 67 M.J. 630 (A.F. Ct. Crim. App. 2009).  The Judge Advocate General of the Air Force certified the case to CAAF, which reversed due to the Air Force Court’s failure to compel an affidavit from AB Rose’s former military defense counsel addressing the IAC claim.  United States v. Rose, 68 M.J. 235 (C.A.A.F. 2009) (summary disposition).  After that affidavit was produced (which said the previous counsel didn’t remember anything), the Air Force Court, sitting en banc, reached the same outcome as in the original case, this time in a 3-2 unpublished decision available hereUnited States v. Rose, No. 36508 (f rev) (A.F. Ct. Crim. App. June 11, 2010) (en banc).

[Disclosure:  while I didn’t represent AB Rose in any of his previous appeals, I’m representing him for purposes of the certified issue.]

CAAF has already resolved one of the cases in which it heard oral argument this term.

Rose is an IAC/faulty advice as to collateral consequences case.   Yesterday’s Daily Journal, available here, includes an order remanding the case for further factfinding.  CAAF split 3-2.  United States v. Rose, __ M.J. __, No. 09-5003/AF (C.A.A.F. Oct. 28, 2009).

The central issue in Rose is whether the civilian defense counsel provided ineffective assistance of counsel by creating the false impression that Airman Basic Rose wouldn’t have to register as a sex offender as a result of his pleas.  AFCCA found IAC and set aside three of the specs.  United States v. Rose,   67 M.J. 630 (A.F. Ct. Crim. App. 2009).  At some point, apparently after the case had been orally argued, appellate government counsel asked AFCCA to order that the original military defense counsel in the case provide an affidavit.  AFCCA denied the motion.

The Judge Advocate General of the Air Force certified two issues to CAAF — the correctness of the IAC ruling and whether AFCCA erred by failing to order the affidavit’s production.  In yesterday’s order, CAAF ruled for the government on the affidavit production issue.  Judges Baker, Stucky, and Ryan were in the majority.  Chief Judge Effron and Judge Erdmann dissented.

CAAF held that when an IAC claim is made, the attorney-client privilege is waived as to the entire defense team, and not just as to the particular counsel against whom the allegation is made.  Even though the original military defense counsel was released before the alleged ineffective assistance of counsel occurred, CAAF found that information from his was potentially relevant.

CAAF reversed AFCCA’s decision and remanded the case for AFCCA to obtain an affidavit from the original military defense counsel and to conduct a new analysis of the IAC claim with the benefit of that affidavit.

Chief Judge Effron, joined by Judge Erdmann, argued in dissent that the government had adequate opportunity to develop the facts and that its post-decision motion seeking an affidavit from the original military defense counsel came too late.

Wednesday’s oral argument in United States v. Rose, No. 09-5003/AF, is now available here.

Wednesday’s oral argument in United States v. Bradley, No. 09-5002/NA, is now available here.

The Judge Advocate General of the Air Force certified two issues to CAAF today:

I. Whether the Air Force Court of Criminal Appeals erred in denying the United States’ request that the court order an affidavit from Appellee’s original military defense counsel.

II. Whether an “impression” left by civilian defense counsel that Appellee may not have to register as a sex offender amounted to an affirmative misrepresentation and led to Appellee receiving ineffective assistance of counsel.

AFCCA’s opinion in the case is published at 67 M.J. 630. We discussed AFCCA’s opinion here and here.

I know some of you don’t routinely read the comments; this post is for you. In a follow up to the post on AFCCA’s Rose opinion, below, Sir Cloudesley (as usual) provided a useful perspective, which I cut and am now pasting here:

The sample pretrial agreement in the Navy JAG Manual is two pages long. PTAs in the real world are already 6-10 pages.

They are about to get longer. Any SJA or trial counsel that fails to foreclose these appellate issues with a well-crafted PTA is not doing his job.

Every PTA should have boilerplate paragraphs putting the accused on notice of collateral consequences, a complete laundry list, with the accused acknowledging that the law can change at any time. The accused should be required to affirmatively acknowledge that he has been put on notice of all possible collateral consequences, known and unknown, and that the accused bears the risk of being subject to an undiscovered or unperceived collateral consequence, and also places upon the accused the affirmative duty to research all possible collateral consequences, and require him to affirmatively state his is satisfied with his attorney’s advice with regard to collateral consequences.

SJAs should not rely upon the diligence of defense counsel. If a guilty plea gets flipped, its the gov’t that deals with the consequences, not the defense atty.

I can think of several collateral consequences that the PTA should put the accused on notice of, regardless: deportation, voting, weapons possession, sex offender registration, limitations on foreign travel (either through loss or inability to get a passport or through prohibitions by the foreign country), property forfeiture, inability to get a student loan, loss of military and veteran’s benefits, inability to get a professional license (depending on the state licensing scheme), inability to hold public office, mandatory DNA testing, impairment of ability to get employment (public and private), inability to qualify to adopt a child, loss of child custody in a divorce, termination of parental rights, inability to qualify for public housing, loss of drivers license. I’m sure others could think of more categories.

If not in the PTA, then SJA’s and trial counsel should require that the laundry list of collateral consequences be listed on a separate document, signed by the accused and counsel, and admitted into evidence at the guilty plea hearing in order to insulate against appellate attacks on the guilty plea based upon lack of knowledge of guilty pleas or “affirmative misrepresentation.” Or demand that the military judge address the issue on the record. Haven’t looked at the Benchbook lately; has a colloquy regarding collateral consequences been inserted into the Benchbook?

(BTW, and I kid you not, Sir Cloudesley has his own Facebook page; I know, because I’m a “Facebook friend” of the dearly departed admiral’s.)

The Court-Martial Trial Practice blog also has a post about Rose‘s implications here.

AFCCA today issued a published opinion setting aside findings of guilty to indecent assault due to the civilian and military defense counsel’s failure to provide accurate advice when their client asked about whether pleading guilty to indecent assault would require him to register as a sex offender. United States v. Rose, __ M.J. ___, No. ACM 36508 (A.F. Ct. Crim. App. Feb. 12, 2009). I’ve posted the opinion here. Senior Judge Francis wrote for himself and Senior Judge Heimann. Judge Thompson dissented.