Opposition — Rousseau v. Nix

| Office-Supreme Court, U.S,

FILED

|

SEP 95 1983

No. 82-1879 lems me ahi

In the Supreme Court of the Hnited States

OCTOBER TERM, 1983

JERRY DEAN ROUSSEAU, PETITIONER

V.

CrISPUS NIX, COMMANDANT, U.S.D.B.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

Rex E. LEE

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

JOHN F. DePUE

Attorney

Department of Justice

Washington, D. C. 20530

(202) 633-2217

QUESTION PRESENTED

Whether petitioner is entitled to habeas corpus relief

from his court martial conviction for a murder committed

in Morocco on the ground that the American Ambassador,

because of a diplomatic dispute, prohibited defense counsel

from contacting non-Embassy personnel to investigate a

possible alibi defense — even though petitioner subse-

quently admitted to defense counsel that the alibi was not

true, voluntarily pleaded guilty and confessed to the crime,

and has not shown that an investigation by counsel would

have been fruitful in any event. —

(I)

Opinion below

Jurisdiction

Statement

Argument

Conclusion

TABLE OF CONTENTS

TABLE OF AUTHORITIES

Cases:

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worm ¥. Parrett, G3 F.2d 11S ..... oo cn cass

Hawkman v. Parratt, 661 F.2d 1161 .......

McMann v. Richardson, 397 U.S. 759 .....

Menna v. New York, 423 U.S. 61 ..........

Scott v. Wainwright, 698 F.2d 427 .........

Tollett v. Henderson, 411 U.S. 258 ........

Constitution and statutes:

United States Const. Amend. VI ...........

Uniform Code of Military Justice, 10 U.S.C.

801 et seq.:

Prt 32, POU S.C. B92 occ enn css

Article 118(1), 10 U.S.C. 918(1) ........

Article 118(2), 10 U.S.C. 918(2) ........

Artes 120, 10 U.S.C. 928 .....ccccess

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In the Supreme Court of the Hnited States

OCTOBER TERM, 1983

No. 82-1879

JERRY DEAN ROUSSEAU, PETITIONER

Vz.

Crispus Nix, COMMANDANT, U.S.D.B.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 2a-6a) is

unreported. The opinion of the district court (Pet. App.

8a-12a) dismissing the habeas corpus petition is also

unreported.

JURISDICTION

The judgment of the court of appeals (Pet. App. la) was

entered on March 3, 1983. The petition for a writ of certio-

rari was filed on May 4, 1983. The jurisdiction of this Court

is invoked under 28 U.S.C. 1254(1).

STATEMENT

Pursuant to a plea of guilty, petitioner, a member of the

United States Marine Corps, was convicted by a general

court martial convened by the Commanding General,

Marine “Corps Development and Education Command,

Quantico, Virginia, of unpremeditated murder, in violation

(1)

2

of Article 118(2) of the Uniform Code of Military Justice

(UCMJ), 10 U.S.C. 918(2). The military judge sentenced

petitioner to life imprisonment. The sentence was reduced

to 55 years’ imprisonment by the convening authority as

part ofa pretrial agreement that also included dismissal of a

charge of premeditated murder in violation of Article

118(1), UCMJ (10 U.S.C. 918(1)) and rape, in violation of

Article 120, UCMJ (10 U.S.C. 920) (Pet. App. 8a-9a). The

sentence also included a dishonorable discharge, forfeiture

of pay and allowances, and reduction to the lowest enlisted

grade (Pet. App. 9a). The United States Navy Court of

Review affirmed, and the Court of Military Appeals denied

petitions for discretionary review. 9 M.J. 271 (1980); 10

M.J. 281 (1981). Thereafter, the United States District

Court for the District of Kansas dismissed a petition for a

writ of habeas corpus under 28 U.S.C. 224! (Pet. App.

8a-12a), and the court of appeals affirmed (Pet. App.

2a-6a).

1. The charge upon which petitioner was convicted

resulted from the murder of Dorothy Layton, an American

schoolteacher, in her apartment in Rabat, Morocco, during

the early morning of July 3, 1978. Following the slaying,

petitioner, 4 Marine guard stationed at the American

Embassy in Rabat, admitted to being in Layton’s company

between 1:30 and 7:15 a.m. on that date and to having

consensual intercourse with her. Petitioner initially denied

committing the murder, although his bloodstained clothing

was left in the apartment. Exh. D to Answer to Pet. for Writ

of Habea Corpus at 5,6. Petitioner instead maintained that

after leaving the victim’s apartment to obtain some wine

from the trunk of her automobile, he was approached by

two men who offered to take him home because he

appeared intoxicated. He further maintained that after he

rode a long distance and fell asleep, he awoke alongside the

road; he explained that he then obtained a ride from a

3

Moroccan truck driver who took him to a motel on the

outskirts of Agadir, Morocco, an eight-hour drive from

Rabat (Pet. App. 15a-16a). An affidavit of defense counsel

filed in district court in these habeas corpus proceedings

states that petitioner initially told counsel an essentially

identical story. Answer Exh. D, supra.

Defense counsel went to Morocco for a one-week period

from July 5 to July 12, 1978. There counsel interviewed

petitioner and sought assistance from the United States

Embassy in Rabat in locating and interviewing the Moroc-

can truck driver and a motel clerk petitioner had men-

tioned. However, because of a jurisdictional dispute then

extant between American and Moroccan authorities with

respect to who was going to try petitioner for the murder,

the American Ambassador ordered counsel not to interview

individuals outside the Embassy community (Pet. 2; App.

Exh. 29, 31; R. 1037, 1041).' Petitioner subsequently was

transferred to Quantico Marine Corps Base where, after an

investigation conducted pursuant to Article 32, UCMJ (10

U.S.C. 832), the convening authority referred murder and

rape charges to a general-court martial (App. Exh. 31).

2. Prior to trial, petitioner’s attorneys moved to be per-

mitted to go to Morocco to investigate his asserted alibi.

Although the motion was denied, on August 30, 1978, the

military judge directed officials of the Naval Investigative

Service and a military attorney in Morocco to assist in the

investigation (R. 213, 556-560, 563-564). Petitioner has not

contended that the investigation in Morocco on the latter

occasion was impeded by the Embassy. On September 21,

1978, the military judge inquired whether the defense had

sufficient cooperation from the attorney and the Naval

Investigative Service “with regard to the matters that you

“R_"” refers to the three-volume record of trial.

4

required to or requested to be investigated at the scene of

the crime.” Petitioner’s counsel responded: “Yes, your

Honor” (R. 712).?

According to the affidavit of defense counsel, petitioner

admitted to his attorney on September 15, 1978, that he had

committed the murder and that his alibi was not true. He

also told them that he wished to plead guilty in exchange for

an agreement limiting the duration of his sentence (Answer

Exh. D, supra, at 5-7). Petitioner then pleaded guilty,

admitting that he had killed Layton and giving the military

judge a detailed account of the circumstances of the murder

(R. 721-728).

On appeal to the United States Navy Court of Military

Review, petitioner argued that his Sixth Amendment right

to the assistance of counsel was violated on several occa-

sions, including when the American Ambassador ordered

his attorneys not to interview Moroccan nationals in July

1978 (R. 116-118), and that counsel had engaged in miscon-

duct by pressuring him to plead guilty (R. 119-123). The

Navy Court of Military Review affirmed petitioner's con-

viction (R. 80-81), concluding that petitioner had voluntar-

ily pleaded guilty. The court did not specifically address the

matter of the Ambassador's order (Pet. App. 4a; R. 80-81).

3. After exhaustion of his appellate rights under the

UCM], petitioner filed a petition for a writ of habeas cor-

pus in the United States District Court for the District of

Kansas. The district court concluded that petitioner had

received effective assistance of counsel (Pet. App. 12a). In

addition, relying upon Menna v. New York, 423 U.S. 61

(1975), and Tollett v. Henderson, 411 U.S. 258 (1973), the

2Counsel stated in his affidavit that if the case had gone to trial he

would not have been satisfied with the assistance he received in

Morocco, but that the issue became moot when petitioner admitted the

murder. Answer Exh. D, supra, at 3.

5

court concluded that by pleading guilty petitioner had fore-

gone his opportunity to litigate further his claim regarding

the Ambassador’s order (Pet. App. | 1a).

The court of appeals affirmed. That court likewise

rejected petitioner’s claim that the assistance his trial coun-

sel provided him in deciding whether to plead guilty was

inadequate. Relying upon Burns v. Wilson, 346 U.S. 137,

142 (1953), it reasoned that this fact-bound question

received full and fair consideration in the military courts,

which concluded that counsel had not acted improperly and

that petitioner’s plea was voluntarily entered (Pet. App. 4a).

The court of appeals also concluded that because “[peti-

tioner] entered a voluntary and intelligent plea of guilty, it

was irrelevant whether or not defense counsel was permit-

ted a free hand to investigate the circumstances of the

crime” (Pet. App. Sa-6a).

ARGUMENT

Petitioner does not seek review of the court of appeals

holding — which was consistent with that of the district

court and the Navy Court of Military Review — that his

plea of guilty was voluntarily and intelligently made. In this

Court, he contends only that he is entitled to habeas corpus

relief because of the order by the Ambassador when peti-

tioner’s counsel were in Morocco for one week in July 1978

that they not investigate his alibi defense outside of the

Embassy community because of the pending jurisdictional

dispute with the Moroccan government. The courts below

properly rejected this claim.

’

A guilty plea “represents a break in the chain of events

which ha[{d] preceded it in the criminal process.” Tollett v.

Henderson, 411 U.S. 258, 267 (1973). As this Court

explained in Menna v. New York, 423 U.S. 61, 62-63 n.2

(1975):

6

[A] counseled plea of guilty is an admission of factual

guilt so reliable that, where voluntary and intelligent, it

quite validly removes the issue of factual guilt from the

case. In most cases, factual guilt is a sufficient basis for

the State’s imposition of punishment. A guilty plea,

therefore, simply renders irrelevant those constitu-

tional violations not logically inconsistent with the

valid establishment of factual guilt and which do not

stand in the way of conviction, if factual guilt is validly

established.

Here, petitioner’s counseled plea likewise constituted a

reliable admission of guilt that removed the issue of factual

guilt from the case. The reliability of his admission is rein-

forced by the affidavit of defense counsel, which states that

petitioner acknowledged to counsel that his earlier alibi

story was untrue and that he had committed the murder.

Petitioner’s plea, therefore, renders irrelevant the issue of

the Ambassador’s order preventing his attorneys from

interviewing witnesses to substantiate an alibi defense that

was inconsistent with his subsequent admission of guilt.

It is true, as petitioner points out, that in some circum-

stances a plea of guilty does not bar a defendant from

contending that counsel was ineffective in failing to investi-

gate certain matters. See Pet. 10, citing Hawkman v. Par-

ratt, 661 F.2d 1161, 1168-1169 (8th Cir. 1981), and Ford v.

Parratt, 638 F.2d 1115, 1118 (8th Cir. 1981). But the theory

of these cases is that a plea of guilty may be set aside if

counsel’s lack of investigation affected the voluntariness

and intelligence of the plea because it left the defendant with

no other choice. 661 F.3d at 1169; 638 F.2d at 1118. See also

Scott v. Wainwright, 698 F.2d 427, 429 (11th Cir. 1983); cf.

McMann v. Richardson, 397 U.S. 759, 770-771 (1970).

Here, however, the courts below and the military courts all

found that petitioner’s plea was voluntary and intelligent.

7

In his certiorari petition, petitioner does appear to argue

(Pet. 3, 9, 10) that the Ambassador’s order “forced” him to

plead guilty, perhaps now intending to suggest that his plea

was not voluntary and intelligent. But petitioner did not

argue in his habeas corpus petition that the Ambassador’s

order actually caused him to plead guilty or rendered his

plea involuntary or unintelligent. He simply contended that

the order deprived him of effective assistance of counsel at

that particular pretrial stage and that he was entitled to

relief on that basis alone. See Habeas Petition at 6; Brief in

Support of Petition at 5-8; Traverse at 3-7.3 Nor does peti-

tioner cite any evidence to support a claim that his plea was

not voluntary and intelligent. To the contrary, the record

indicates that he chose to plead guilty after he failed to pass

a polygraph test arranged by defense counsel in hopes that

the charges would be dismissed. Answer Exh. D, supra, at

4-6.

Nor is there any basis for believing that the Ambassador’s

order had such an effect on petitioner’s decision to plead

guilty. That order did not foreclose counsel from assessing

the weakness of the alibi defense and providing informed

advice to petitioner with respect to whether the more pru-

dent course would be to enter a plea of guilty in exchange

for a limitation on the sentence. Moreover, as we have

noted, the military judge arranged for an investigation to be

conducted by an associate attorney and personnel of the

Office of Naval Investigations in Morocco prior to entry of

the plea, and petitioner has not shown that this opportunity

for investigation was inadequate.

Even without interviewing the alleged alibi witnesses,

however, the defense attorneys, after considering the evi-

dence available, including petitioner’s statements to inves-

tigative authorities and the bloodstained clothing in the

3Petitioner’s arguments to the Navy Court of Military Review were to

the same effect. See R. 116-119.

8

victim’s apartment, had concluded that “the government’s

circumstantial case was strong” (Answer Exh. D, supra, at

6). In addition, during the guilty plea inquiry, petitioner

stated that he had consulted fully with his two defense

counsel and received the benefit of their advice; that he was

Satisfied that their advice to plead guilty was in his best

interest; and that he was satisfied with them (R. 731). Onthe

present record, then, there is no basis for concluding that

the Ambassador’s order affected the validity of petitioner’s

guilty plea.

Finally, as we explain in our brief (at 18-26) in Strickland

v. Washington, No. 82-1554, a defendant who asserts that

his conviction should be set aside because of counsel’s

alleged ineffectiveness in failing to investigate must demon-

strate prejudice by showing that the investigation would

have produced evidence that probably would have altered

the outcome of the trial.* A fortiori, in this case, in which

petitioner previously admitted that the alibi was untrue and

that he committed the crime, petitioner must make a sub-

stantial showing that favorable evidence would have been

produced. But petitioner has not pointed to any evidence

that would have been uncovered and supported an alibi

defense, much less shown that any such evidence probably

would have affected the outcome of the trial if he had not

pleaded guilty. Indeed, there is no indication even now that

petitioner has made any effort to substantiate his alibi

defense in Morocco. He accordingly is not entitled to relief

for this reason as well.5

“We have furnished counsel for petitioner with a copy of our brief in

Strickland v. Washington.

‘Petitioner also devotes several pages of his petition (Pet. 6-8) to an

issue that is not before this Court. He contends that the court of appeals

erred in not independently assessing his claim that counsel was ineffec-

tive in other respects in connection with the plea of guilty, on the ground

9

CONCLUSION

The petition for certiorari should be denied.

Respectfully submitted.

Rex E. LEE

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

JOHN F. DePUE

Attorney

SEPTEMBER 1983

that that claim was fully and fairly considered by the military courts.

See Burns v. Wilson, 346 U.S. 137 (1953). The court of appeals relied

on that doctrine, however, only in connection with that aspect of its

decision of which petitioner has not sought review. The Burns rationale

played no part in the court's consideration of the issue of the Ambassa-

dor’s order. See Pet. App. 3a-6a.

DOJ -1983-09