CAAFlog » October 2018 Term » United States v. Cooper

This week at SCOTUS: A new cert. petition (available here) was filed in Cooper v. United States, No. 18-423, on May 13, 2019. In United States v. Cooper, 78 M.J. 283 (C.A.A.F. Feb. 12, 2019) (CAAFlog case page), a nearly-unanimous court found finds that the failure to request individual military defense counsel after a military judge discusses the right to make such a request with the accused is a knowing and intentional waiver of the right. The question presented in the petition is:

Whether the United States Court of Appeals for the Armed Forces exceeded its statutory authority under 10 U.S.C. § 867(c) when it took action with respect to a matter of fact.

The petition asserts:

The CAAF reversed the lower court because it found Cooper knowingly and intelligently waived his right to IMC. (Pet. App. 4a, 16a.) But what a defendant knew or understood at any given moment in time is a historical fact: making a state of mind determination calls for a “recital of external events and the credibility of their narrators.” Thompson v. Keohane, 516 U.S.99, 110 (1995) (internal quotations omitted).

The CAAF took action on a matter of fact—an authority specifically withheld from CAAF and provided to the NMCCA. Compare 10 U.S.C. § 866(c) with 10 U.S.C. §867(c). In exercising its authority under 10 U.S.C. § 866(c), the NMCCA found, as fact, that Cooper did not make a knowing and intelligent waiver of his right to IMC. Without so much as a declaration that this finding was clear error, the CAAF disagreed.

Pet at 12.

Additionally, the Solicitor General requested and has received an extension of time – until June 22, 2019 – to seek certiorari of CAAF’s decision in United States v. Briggs, 78 M.J. 289 (C.A.A.F. Feb. 22, 2019) (CAAFlog case page).

Finally, the cert. petition in Hale was distributed for conference on May 30, 2019.

I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking three cases:

This week at CAAF: CAAF will hear oral argument infour cases this week:

Tuesday, May 21, 2019, at 9:30 a.m.:

United States v. English, No. 19-0050/AR (CAAFlog case page)

Issue: Whether the Army Court of Criminal Appeals can find the unlawful force, as alleged, factually insufficient and still affirm the finding based on a theory of criminality not presented at trial.

Case Links:
ACCA opinion
Blog post: CAAF grants review
Appellant’s brief
Appellee’s (Gov’t Div.) brief
Appellant’s reply brief

Followed by:

United States v. Navarette, No. 19-0066/AR (CAAFlog case page)

Issues:
I. Whether the Army Court erroneously denied appellant a post-trial R.C.M. 706 inquiry by requiring a greater showing than a non-frivolous, good faith basis articulated by United States v. Nix, 15 C.M.A. 578, 582, 36 C.M.R 76, 80 (1965).
II. Whether the Army Court erred when it held that submitting matters pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), was evidence of Appellant’s competence during appellate proceedings.

Case Links:
ACCA opinion
Blog post: CAAF grants review
Appellant’s brief
Appellee’s (Gov’t Div.) brief
Appellant’s reply brief

Wednesday, May 22, 2019, at 9:30 a.m.:

United States v. Coleman, No. 19-0087/AR (CAAFlog case page)

Issue: Whether Specification 1 of Charge VII is multiplicious with Specification 1 of Charge I, as they are part of the same transaction.

Case Links:
ACCA opinion
Blog post: CAAF grants review
Appellant’s brief
Appellee’s (Gov’t Div.) brief
Appellant’s reply brief

Followed by:

United States v. Hyppolite, II., Nos.19-0119/AF & 19-0197/AF (CAAFlog case page)

Granted issue: Whether the military judge’s erroneous admission of evidence regarding Specifications 1, 2, and 3 as a common plan or scheme for Specifications 4 and 5 was harmless.

Certified issue: Did the Air Force Court of Criminal Appeals err when it found the military judge abused his discretion by ruling that the evidence regarding Specifications 1, 2, and 3 could be considered as evidence of a common plan or scheme for Specifications 4 and 5.

Case Links:
AFCCA opinion
Blog post: CAAF grants review
Blog post: JAG cross-certifies
Granted Issue: Appellant’s brief
Granted Issue: Appellee’s (Gov’t Div.) brief (granted issue
Certified Issue: Cross-Appellant’s (Gov’t Div.) brief
Certified Issue: Cross-Appellee’s brief
Certified Issue: Cross-Appellant’s (Gov’t Div.) reply brief

This week at the ACCA: The Army CCA’s website shows no scheduled oral arguments.

This week at the AFCCA: The Air Force CCA’s website shows no scheduled oral arguments.

This week at the CGCCA: The Coast Guard CCA’s website shows no scheduled oral arguments.

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments. 

CAAF decided the certified Navy case of United States v. Cooper, __ M.J. __, No. 18-0282/NA (CAAFlog case page) (link to slip op.), on Tuesday, February 12, 2019. A nearly-unanimous court finds that an accused’s affirmative failure to request individual military defense counsel after a military judge discusses the right to make such a request with the accused is a knowing and intentional waiver of the right. The court reverses the decision of the Navy-Marine Corps CCA (that found a violation of the right) and remands for further review.

Chief Judge Stucky writes for the court, joined by all but Judge Sparks who dissents.

Every accused at a court-martial is detailed a military defense counsel, free of charge, without regard to indigence. The accused may even request a specific individual military defense counsel (IMC), however that person must be reasonably available as determined by service regulations (that generally narrow the choice considerably).

Yeoman Second Class (E-5) Cooper was convicted, by a general court-martial composed of members with enlisted representation, of three specifications of sexual assault and one specification of abusive sexual contact. He was sentenced to confinement for five years, reduction to E-1, total forfeitures, and a dishonorable discharge.

Cooper was represented by two detailed military defense counsel: Lieutenant (LT) Buyske and Lieutenant Commander (LCDR) Gross. At trial, the military judge asked Cooper who he wanted to represent him (a standard question), and Cooper said that the wanted to be represented by just those two lawyers and by nobody else. But on appeal Cooper claimed that he also wanted to be represented by IMC, and that his detailed defense counsel failed to request one of the three people Cooper identified as potential IMC. The Navy-Marine Corps CCA ordered a post-trial factfinding hearing, concluded that Cooper was denied his statutory right to IMC, and reversed Cooper’s convictions.

The Judge Advocate General of the Navy then certified the case and four issues to CAAF, challenging the CCA’s findings that Cooper did not waive his right to IMC when he failed to make his desire known to the military judge, that Cooper was denied his statutory right to IMC, and that reversal is warranted as a result:

I. Did the lower court err not finding waiver of the right to request individual military counsel where Appellee was advised of his right to request an individual military counsel, agreed he understood the right but wanted instead to be represented by trial defense counsel, and made no motion for individual military counsel?

II. Did the lower court err in not applying the Strickland ineffective assistance test where the government and trial judge played no part in the defense’s failure to request individual military counsel, and if so, did Appellee suffer ineffective assistance of counsel?

III. If Strickland does not apply, did the lower court correctly find Appellee was deprived of his statutory right to request individual military counsel?

IV. Did the lower court err in it’s prejudice analysis for Appellee’s asserted deprivation of his statutory right to individual military counsel when Appellee did not preserve the issue at trial, raised the issue for the first time on appeal, and has alleged no specific prejudice?

A majority of CAAF answers the first issue in the affirmative, finding waiver based on the fact that Cooper “fully understood the nature of the right to IMC and how it would have applied to him,” slip op. at 9, and then told the military judge that he did not want any other lawyer to represent him. The court then orders a remand to the CCA for consideration of other issues that Cooper raised on appeal but the CCA did not address in its initial review.

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Audio of today’s oral arguments at CAAF is available at the following links:

United States v. Cooper, No. 18-0282/NA (CAAFlog case page): Oral argument audio.

United States v. Forbes, 18-0304/NA (CAAFlog case page): Oral argument audio.

United States v. Briggs, No. 16-0711/AF (CAAFlog case page): Oral argument audio.

United States v. Stout, No. 18-0273/AR (CAAFlog case page): Oral argument audio.

CAAF will hear oral argument in the certified Navy case of United States v. Cooper, No. 18-0282/NA (CAAFlog case page), on Tuesday, December 4, 2018, at 9:30 a.m. Four issues related to Cooper’s choice of defense counsel were certified to CAAF:

I. Did the lower court err not finding waiver of the right to request individual military counsel where Appellee was advised of his right to request an individual military counsel, agreed he understood the right but wanted instead to be represented by trial defense counsel, and made no motion for individual military counsel?

II. Did the lower court err in not applying the Strickland ineffective assistance test where the government and trial judge played no part in the defense’s failure to request individual military counsel, and if so, did Appellee suffer ineffective assistance of counsel?

III. If Strickland does not apply, did the lower court correctly find Appellee was deprived of his statutory right to request individual military counsel?

IV. Did the lower court err in it’s prejudice analysis for Appellee’s asserted deprivation of his statutory right to individual military counsel when Appellee did not preserve the issue at trial, raised the issue for the first time on appeal, and has alleged no specific prejudice?

Persons accused of criminal offenses in the civil courts are generally appointed an attorney to represent them only if they are indigent. Every accused at a court-martial, however, is detailed a military defense counsel free of charge, without regard to indigence. The accused may even request a specific individual military defense counsel (however that person must be reasonably available as determined by service regulations that generally narrow the choice considerably).

Yeoman Second Class (E-5) Cooper was convicted, by a general court-martial composed of members with enlisted representation, of three specifications of sexual assault and one specification of abusive sexual contact. He was sentenced to confinement for five years, reduction to E-1, total forfeitures, and a dishonorable discharge.

Cooper was represented by two detailed military defense counsel: Lieutenant (LT) JB and Lieutenant Commander (LCDR) NG. At trial, the military judge asked Cooper who he wanted to represent him (a standard question), and Cooper said that the wanted to be represented by LT JB and LCDR NG and by nobody else. But Cooper also wanted to be represented by individual military defense counsel (IMC), and on appeal Cooper claimed that his detailed defense counsel failed to request one of the three people Cooper identified as potential IMC. The Navy-Marine Corps CCA ordered a post-trial factfinding hearing, concluded that Cooper was denied his statutory right to IMC, and reversed Cooper’s convictions.

The Judge Advocate General of the Navy then certified the case to CAAF, challenging the CCA’s findings that Cooper did not waive his right to IMC when he failed to make his desire known to the military judge, that Cooper was denied his statutory right to IMC, and that reversal is warranted as a result.

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CAAF added two new cases to its master docket yesterday, one a certification from the Judge Advocate General of the Navy, and the other a grant.

First, the certified case:

No. 18-0282/NA. United States, Appellant v. Paul E. Cooper, Appellee. CCA 201500039. Notice is hereby given that a certificate for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed under Rule 22 on this date on the following issues:

DID THE LOWER COURT ERR NOT FINDING WAIVER OF THE RIGHT TO REQUEST INDIVIDUAL MILITARY COUNSEL WHERE APPELLEE WAS ADVISED OF HIS RIGHT TO REQUEST AN INDIVIDUAL MILITARY COUNSEL, AGREED HE UNDERSTOOD THE RIGHT BUT WANTED INSTEAD TO BE REPRESENTED BY TRIAL DEFENSE COUNSEL, AND MADE NO MOTION FOR INDIVIDUAL MILITARY COUNSEL?

DID THE LOWER COURT ERR IN NOT APPLYING THE STRICKLAND INEFFECTIVE ASSISTANCE TEST WHERE THE GOVERNMENT AND TRIAL JUDGE PLAYED NO PART IN THE DEFENSE’S FAILURE TO REQUEST INDIVIDUAL MILITARY COUNSEL, AND IF SO, DID APPELLEE SUFFER INEFFECTIVE ASSISTANCE OF COUNSEL?

IF STRICKLAND DOES NOT APPLY, DID THE LOWER COURT CORRECTLY FIND APPELLEE WAS DEPRIVED OF HIS STATUTORY RIGHT TO REQUEST INDIVIDUAL MILITARY COUNSEL?

DID THE LOWER COURT ERR IN IT’S PREJUDICE ANALYSIS FOR APPELLEE’S ASSERTED DEPRIVATION OF HIS STATUTORY RIGHT TO INDIVIDUAL MILITARY COUNSEL WHEN APPELLEE DID NOT PRESERVE THE ISSUE AT TRIAL, RAISED THE ISSUE FOR THE FIRST TIME ON APPEAL, AND HAS ALLEGED NO SPECIFIC PREJUDICE?

The Navy-Marine Corps CCA’s decision is available here. The CCA concluded:

In this case we find that a member of an agent of the government—RLSO SE—frustrated the appellant’s right to legal advice early in the case. We find formation of an attorney-client relationship regarding the facts of this case in direct response to that frustration. And finally, we find deprivation of representation by that attorney, with whom the relationship was shared, through no fault of the appellant. The facts of this case lead us to conclude the appellant suffered material prejudice when his IMC request for CPT T.N. was never drafted and forwarded to CPT T.N.’s chain of command for consideration and possible approval.

Slip op. at 23. For the waiver issue, the CCA found:

To the extent the appellant waived his right to request CPT T.N. as an IMC, he relied on an erroneous representation of CPT T.N.’s unavailability.

Slip op. at 19.

Next, the granted case:

No. 18-0209/AR. U.S. v. Jeffrey G. Eugene. CCA 20160438. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that the petition is granted on the following issues:

I. WHETHER APPELLANT’S REQUEST TO CRIMINAL INVESTIGATION COMMAND [CID] THAT HIS CELL PHONE BE RETURNED WAS A WITHDRAWAL OF THE THIRD PARTY CONSENT TO SEARCH GIVEN BY APPELLANT’S WIFE IN APPELLANT’S ABSENCE.

II. WHETHER THE ARMY COURT ERRED IN DETERMINING THE APPLICABILITY OF THE INEVITABLE DISCOVERY DOCTRINE WHERE (1) THE CID AGENTS FAILED TO TAKE ANY STEPS TO OBTAIN A WARRANT AND (2) THE CASE TOOK A “DEAD-END” UNTIL THE WARRANTLESS SEARCH.

Briefs will be filed under Rule 25.

The Army CCA’s decision is available here and explains that:

Appellant argues that he withdrew his wife’s third-party consent, which begs the question: can one individual withdraw another person’s consent, at least where he has a greater property interest in the evidence being searched? This appears to be a matter of first impression in this court.

Slip op. at 5. The CCA did “not extinguish the possibility that there may exist a situation in which a review of
the totality of the circumstances may allow for withdrawal of third-party consent to search personal property,” slip op. at 6, but the court concluded that the appellant did not actually withdraw consent (and also that the inevitable discovery doctrine applies).