Opposition Brief — Newak v. United States

Supreme Court, U. P

FILED

jan § 1390

}

No. 89-757 - JOSEPH F. SPANIOL, JR.

CLERK

In the Supreme Court of the Gnited States

OCTOBER TERM, 1989

JOANNE C. NEWAK, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF MILITARY APPEALS

BRIEF FOR THE UNITED STATES

IN OPPOSITION

KENNETH W. STARR

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

JOE R. LAMPORT

Col., OJAG, USAF

ROBERT E. GIOVAGNONI

Col., OJAG, USAF

Morris D. DAVIS

Capt., OJAG, USAF

Appellate Government Counsel

Government Trial and

Appellate Division

Headquarters, United States Air Force

Bolling Air Force Base

Washington, D.C. 20332-6128

BEST AVAILABLE COPY™

QUESTION PRESENTED

Whether petitioner is entitled to dismissal of the charges

against her because an attorney who represented her before

trial suffered from a conflict of interest, even though peti-

tioner was represented at trial by a different attorney and

petitioner suffered no prejudice from the pretrial represen-

tation by her first attorney.

(I)

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

Chapman v. California, 386 U.S. 18 (1967) ....

Coleman v. Alabama, 399 U.S. 1 (1970) .......

Cuyler v. Sullivan, 446 U.S. 335 (1980) ........

Gilbert v. California, 388-U.S. 263 (1967) ...... 8, 1

Glasser v. United States, 315 U.S. 60 (1942) ....

Hamilton v. Alabama, 368 U.S. 52 (1961) .....

Hoffa v. United States, 385 U.S. 293 (1966) ....

Holloway v. Arkansas, 435 U.S. 475 (1978) ....

Kastigar v. United States, 406 U.S. 441 (1972) ..

Massiah v. United States, 377 U.S. 201 (1964) ..

Milton v. Wainwright, 407 U.S. 371 (1972) .....

Moore v. Illinois, 434 U.S. 220 (1977) .........

Moran v. Burbine, 475 U.S. 412 (1986) ........

Murphy v. Waterfront Comm'n, 378 U.S. 52

Cie ee tn ees eg eanes Uhdsécussedeces

Rushen v. Spain, 464 U.S. 114 (1983) .........

United States v. Gardner, 18 M.J. 612 (A.F.C.M.R.

1984), aff'd, 22 M.J. 28 (C.M.A. 1986) ...... 6, 11

United States v. Gouveia, 467 U.S. 180 (1984) .. )

United States v. Lucas, 25 M.J. 9 (C.M.A. 1987),

cert. denied, 484 U.S. 1027 (1988) ........... 11

United States v. Morrison, 449 U.S. 361

PCC N A iC coe cosh eee eeausehés Gennes 9, 10

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IV

Cases — Continued: Page

United States v. Wade, 388 U.S. 218 (1967) .... 8, 10

United States v. Wattenbarger, 21 M.J. 41 (C.M.A.

1985), cert. denied, 477 U.S. 904 (1986) .....

Weatherford v. Bursey, 429 U.S. 545 (1977) .... 8, 11

White v. Maryland, 373 U.S. 59 (1963) ........

Constitution and statutes:

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Uniform Code of Military Justice, 10 U.S.C. 801 et ©

seq.:

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Art. 66(c), 10 U.S.C. 866(c) ..............

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§Jn the Supreme Court of the Gnited States

OCTOBER TERM, 1989

No. 89-757

JOANNE C. NEWAK, PETITIONER

V.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF MILITARY APPEALS

\

BRIEF FOR THE UNITED STATES

IN OPPOSITION

OPINIONS BELOW

The initial opinion of the Air Force Court of Military

Review (Pet. App. 109-115) is reported at 15 M.J. 541. The

opinion of the Court of Military Appeals reversing in part

the judgment of the court of military review and remand-

ing the case to that court (Pet. App. 117-132) is reported

at 24 M.J. 238. The opinions of the court of military review

on remand (Pet. App. 135-141) and on appeal after resen-

tencing (Pet. App. 149-155) are unreported. The opinion

of the Court of Military Appeals affirming the final judg-

ment of the court of military review (Pet. App. 156-157)

is not yet officially reported.

JURISDICTION

The judgment of the Court of Military Appeals was

entered on September 8, 1989. The petition for a writ of

(1)

2

certiorari was filed on November 7, 1989. The jurisdiction

of this Court is invoked under 28 U.S.C. 1259(1) (Supp.

V 1987).

STATEMENT

Following a general court-martial at Hancock Field in

New York, petitioner, an officer in the United States Air

Force, was convicted of using and transferring a substance

that she believed to be amphetamine, in violation of Arti-

cle 80 of the Uniform Code of Military Justice (UCMJ),

10 U.S.C. 880; possession of amphetamine, in violation of

Article 92, UCMJ, 10 U.S.C. 892; possession, use, and

transfer of marijuana, in violation of Article 134, UCM],

10 U.S.C. 934; conduct unbecoming an officer by making

homosexual comments and advances toward a female

enlisted member, in violation of Article 133, UCMJ, 10

U.S.C. 933; and sodomy with a second female enlisted

member, in violation of Article 125, UCMJ, 10 U.S.C. 925.

The court-martial sentenced petitioner to confinement for

seven years, dismissal from the service, and forfeiture of

all pay and allowances. The convening authority modified

the findings and reduced petitioner’s confinement to six

years. The Court of Military Appeals set aside some of the

findings of guilt and remanded the case for further pro-

ceedings. A rehearing on sentence was held on the remain-

ing offenses, and petitioner was sentenced to 14 months’

confinement, dismissal from the service, and forfeiture of

all pay and allowances. On further review, the court of

military review and the Court of Military Appeals both

affirmed.

1. In May or June 1981, Airman Donna Ryan went to

the Air Force Office of Special Investigations (OSI). Ryan

was a member of the security police squadron and had

previously received administrative punishment for driving

———

3

while intoxicated (DWI). Believing that she was innocent

of the DWI offense, Ryan went to the OSI for assistance.

Tr. 71. While at the OSI office, Ryan was asked if she would

assist the OSI in an undercover capacity. Ryan decided to

do so in order to prove that, despite the DWI incident, she

was still “a good cop.” Tr. 72.

On June 17, Ryan, along with petitioner and several other

female military members, attended a softball game. While

sitting in the bleachers, Ryan discussed her DWI incident

with petitioner. Petitioner told Ryan that the reason she had

been punished for DWI was because she was bisexual, which

Ryan denied. Later, petitioner invited Ryan to go with her

to a bar, and Ryan accepted. Tr. 72. Petitioner subsequently

put her arm around Ryan, kissed her on the neck, and said

that she loved her. Ryan pulled away from petitioner. Tr. 73.

On July 6, Ryan saw petitioner at another softball game.

Along with Airman John Liles, they agreed to meet later

at Ryan’s dormitory room. Petitioner drove Ryan and Liles

to several bars in the local area. While sitting in her car out-

side one bar, petitioner reached into a compartment between

the seats and pulled out some speckled pills. Petitioner told

Ryan and Liles that the pills were “speed” and passed them

out. Tr. 73, 74. Petitioner and Liles each ingested one and

a half pills; Ryan placed her pill into her pocket and later

gave it to the OSI. Tr. 74. The pill was tested and found

to contain caffeine. Tr. 104-105; PX 1.

On July 9, Ryan and petitioner again met at the softball

field while petitioner was umpiring a game, and they later

went for a ride in petitioner’s car. Petitioner told Ryan that

Airman Lynne Peelman had come to her house one even-

ing after breaking up with her boyfriend. According to peti-

tioner, while she and Peelman were in the basement peti-

tioner kissed Peelman, Peelman responded, and they

ultimately engaged in intimate physical contact. Tr. 75-76.

4

On July 10, petitioner invited Ryan to her house for din-

ner, where they were ultimately joined by Airman Liles.

During a tour of her home, petitioner removed a zip-lock

bag from beneath a dresser in her bedroom. Ryan estimated

that the bag contained about an ounce of marijuana. Peti-

tioner also pulled out a film canister containing the same

type of pills that she had previously given Ryan and Liles.

Petitioner gave Ryan and Liles two of the pills each. Liles

ingested his pills, but Ryan placed hers in her pocket. Tr.

76-77. The pills were later tested and found to contain caf-

feine. Tr. 104-105; PX 1. Later that evening, petitioner and

Peelman rolled and smoked four or five marijuana ciga-

rettes. Ryan simulated smoking the cigarettes, as she had

been taught to do by the OSI. Ryan retrieved three cigarette

remnants, which were tested and found to contain mari-

juana. Tr. 77-78, 104-105; PX 1.

2. During the summer of 1981, petitioner and Peelman

were notified that they were under investigation, and Cap-

tain John Powers, the base defense counsel, was informal-

ly assigned to them. Captain Powers saw petitioner and

Peelman separately and formed an attorney-client relation-

ship with each of them. Late in August or early in

September, Captain Powers learned that he was to be

transferred; he subsequently introduced his replacement,

Captain Raymond Smith, to petitioner and Peelman. Cap-

tain Smith then entered into an attorney-client relationship

with petitioner and Peelman. Pet. App. 119.

The investigation ultimately focused on petitioner. On

about October 20, the base staff judge advocate met with

Captain Smith informally to discuss the possibility of grant-

ing Peelman use immunity. The base staff judge advocate

told Captain Smith that he would recommend to the con-

vening authority that Peelman be given use immunity, and

he advised Smith to encourage Peelman to cooperate. Smith

and Powers discussed the matter and contacted their super-

5

visor, who decided that Smith should sever his attorney-

client relationship with petitioner. Pet. App. 120-121. Smith

withdrew as petitioner’s counsel and a new attorney was

assigned to petitioner on October 23, id. at 121, the same

day that petitioner was formally charged with all of the nar-

cotics offenses as well as the charge of conduct unbecom-

ing an officer. Tr. 7-7.1. Peelman was formally granted use

immunity a month later, on November 17. Pet. App.

120-121. Based on information provided by Peelman, peti-

tioner was charged with sodomy on December 31, 1981. Tr.

8-8.1.

Captain Smith thereafter represented Peelman, who

testified against petitioner at trial. During the course of his

representation, Smith may have relied on information that

he learned from petitioner in formulating his advice for

Peelman. Pet. App. 121-122.

3. On appeal, petitioner argued that Captain Smith

labored under a conflict of interest because before trial he

represented both petitioner and Peelman, who later became

a prosecution witness. The court of military review rejected

petitioner’s argument, on the ground that she was assigned

a different attorney before any charges were filed. Pet. App.

111-113. The Court of Military Appeals, however, agreed

with petitioner and held that Captain Smith’s joint pretrial

representation of petitioner and Peelman was improper. The

court reasoned that, due to his discussions with the base

staff judge advocate regarding immunity for Peelman and

his subsequent representation of Peelman, “Captain Smith

played an important role in producing the testimony of Air-

man Peelman” against petitioner at her trial. Jd. at 128. Ac-

cordingly, the court vacated the findings of guilt “in which

Peelman’s testimony constituted either the only evidence of

[petitioner’s] guilt or such strong evidence that we are unable

to conclude that [petitioner] was not prejudiced from

Peelman’s testimony thereon.” Jd. at 132 n.6. The court

6

remanded the case to the court of military review for it to

determine whether the remaining findings of guilt were also

tainted. Jd. at 129.!

On remand, the court of military review found that the

remaining findings of guilt were not tainted. The court held

that the remaining convictions could stand if the govern-

ment could prove “that it ‘ “had an independent, legitimate

source for the disputed evidence.” ’ ” Pet. App. 138 (quoting

United States v. Gardner, 18 M.J. 612, 615 (A.F.C.M.R.

1984), aff'd, 22 M.J. 28 (C.M.A. 1986), quoting in turn

Murphy v. Waterfront Comm’n, 378 U.S. 52, 79 n.18

(1964)). After examining the record, the court determined

that the government had carried its burden. Pet. App.

138-139. It found that the proof of petitioner’s remaining

convictions — violating a military regulation by transferring

a substance that petitioner believed was amphetamine;

possessing and using marijuana; and engaging in conduct

unbecoming an officer by making homosexual remarks to

and advances toward a female enlisted member — was based

entirely on the testimony of Airman Ryan and the physical

evidence that Ryan obtained. Jd. at 138. Since that “evidence

was developed and known to the Government long before

either Captain Powers or Captain Smith * * * became in-

volved in the case,” id. at 138-139, the improper joint

representation did not have any “spillover” effect on the re-

maining convictions, id. at 139. Because some of petitioner’s

convictions had been reversed, however, the court ordered

a rehearing as to her sentence. Jd. at 140. See id. at 141-148.

Following the rehearing on sentence, the court of military

review, Pet. App. 149-155, and the Court of Military Ap-

peals, id. at 156, both affirmed the findings and sentence.

' The courts of military review have independent fact-finding authori-

ty under Article 66(c) of the UCMJ, 10 U.S.C. 866(c), which the Court

of Military Appeals does not have under Article 67, 10 U.S.C. 867.

7

ARGUMENT

Petitioner contends that she is entitled to dismissal of the

charges against her because Captain Smith improperly

represented both petitioner and Peelman for a brief period

during the pretrial stage of the case. Relying on Cuyler v.

Sullivan, 446 U.S. 335 (1980), Holloway v. Arkansas, 435

U.S. 475 (1978), and Glasser v. United States, 315 U.S. 60

(1942), petitioner contends that the military appellate courts

erred in undertaking to determine whether she was prej-

udiced by that conflict of interest. |n her view, this Court’s

decisions hold that once a defendant has shown that her

counsel suffered from a conflict of interest, the court may

not inquire whether a defendant was prejudiced. According-

ly, petitioner submits, the only remedy is to dismiss the

charges against her. The courts below, however, correctly

rejected petitioner’s claim, and the unusual facts of this case

do not warrant review by this Court.

Cuyler, Holloway, and Glasser are not controlling here.

In those cases, a lawyer jointly represented at trial defend-

ants charged with identical criminal conduct whose interests

conflicted. This Court held that in such cases the defendant

is denied the assistance of counsel in violation of the Sixth

Amendment and is entitled to a new trial at which he is

represented by a lawyer who does not suffer from divided

loyalties. Cf. Chapman v. California, 386 U.S. 18, 23 &

n.8 (1967) (forcing a defendant to stand trial without counsel

requires reversal in every case). In this case, however, Cap-

tain Smith did not represent petitioner at trial. Captain

Smith withdrew as petitioner’s counsel once charges were

filed against her, Pet. App. 121, and he did not thereafter

represent petitioner at any hearing in the case. In fact, the

record shows that petitioner has been continuously repre-

sented by her current lawyer from the pretrial Article 32

8

hearing? to date. Accordingly, Cuyler, Holioway, and

Glasser do not govern this case.

The inquiry undertaken by the military appellate court

into the question whether petitioner was prejudiced is con-

sistent with well settled authority in this Court. For instance,

this Court has long held that the government’s failure to

provide a defendant with counsel at a pretrial stage of a

criminal case can be harmless error in an appropriate case.

Rushen v. Spain, 464 U.S. 114, 117-118 n.2 (1983); Moore

v. Illinois, 434 U.S. 220, 232 (1977); Coleman v. Alabama,

399 U.S. 1, 10-11 (1970). See also Milton v. Wainwright,

407 U.S. 371 (1972); Gilbert v. California, 388 U.S. 263,

272, 274 (1967); United States v. Wade, 388 U.S. 218, 242

(1967). Compare White v. Maryland, 373 U.S. 59, 60 (1963)

(reversal required in a capital case where defendant’s unac-

cepted guilty plea entered at arraignment in the absence of

counsel was later introduced against him at trial); Hamilton

v. Alabama, 368 U.S. 52, 54-55 (1961) (reversal required

in a capital case where the defendant forfeited the right to

enter an insanity plea at arraignment, where he lacked

counsel). Moreover, the Court has held that the Sixth

Amendment is not violated if a government informant meets

with a defendant and his counsel before trial, as long as

the government does not make use of privileged informa-

tion in preparing and presenting its case at trial. Weather-

ford v. Bursey, 429 U.S. 545, 551-559 (1977). Cf. Hoffa

v. United States, 385 U.S. 293, 308-309 (1966). The military

appellate courts were therefore correct in ruling that not

every Sixth Amendment violation requires a judgment of

2 Article 32 of the UCMJ, 10 U.S.C. 832, requires an impartial of-

ficer to investigate the factual basis for a charge before it may be re-

ferred to a general court-martial. An Article 32 hearing is similar to

the type of preliminary hearing that is held in the civilian courts to deter-

mine whether there is probable cause to believe that the accused has

committed a crime.

9

conviction to be set aside, much less dismissal of the charges

against the accused.?

This Court’s decision in United States v. Morrison, 449

U.S. 361 (1981), is instructive on the correct inquiry in a

case like this one. In that case, after the defendant was in-

dicted and had retained counsel, federal narcotics agents

conversed with the defendant in the absence of her attorney

_ and sought to persuade her to retain a new lawyer. The

Court held that the agents’ conduct, although improper, did

not require a dismissal of the indictment, because the de-

fendant was not prejudiced by the agents’ conduct. The

Court reasoned that “[c]ases involving Sixth Amendment

deprivations are subject to the general rule that remedies

should be tailored to the injury suffered from the constitu-

tional violation and should not necessarily infringe on com-

peting interests.” 449 U.S. at 364. After canvassing its earlier

Sixth Amendment decisions, the Court noted that “when

before trial but after the institution of adversary pro-

ceedings, the prosecution has improperly obtained in-

criminating information from the defendant in the absence

of his counsel, the remedy characteristically imposed is not

to dismiss the indictment but to suppress the evidence or

to order a new trial if the evidence has been wrongfully ad-

3 It is not clear that petitioner can even assert a claim under the Sixth

Amendment, since she had not been charged with a crime at the time

that Captain Smith discussed the subject of use immunity for Peelman

with the base staff judge advocate. See Moran v. Burbine, 475 U.S.

412, 428-431 (1986), and United States v. Gouveia, 467 U.S. 180, 187

(1984) (a defendant’s Sixth Amendment right to counsel attaches “only

at or after the initiation of adversary judicial proceedings against” him);

United States vy. Wattenbarger, 21 M.J. 41, 43 (C.M.A. 1985), cert.

denied, 477 U.S. 904 (1986) (in the military a defendant’s right to counsel

does not attach until the preferral of charges against him). Petitioner’s

claim is therefore more properly characterized as a due process claim,

and under a due process analysis it is clear that automatic reversal is

not required.

10

mitted and the defendant convicted.” Jd. at 365 (citing

Gilbert, supra; Wade, supra; and Massiah v. United States,

377 U.S. 201 (1964)). As the Court summarized, “[oJur ap-

proach has thus been to identify and then neutralize the taint

by tailoring relief appropriate in the circumstances to assure

the defendant the effective assistance of counsel and a fair

trial.” 449 U.S. at 365.

The military appellate courts correctly followed that ap-

proach in this case. The Court of Military Appeals found

that Captain Smith’s joint pretrial representation of peti-

tioner and Peelman injured petitioner because he “played

an important role in producing [Peelman’s] testimony”

against petitioner at trial. Pet. App. 128. Accordingly, the

Court of Military Appeals vacated petitioner’s convictions

on all the charges that were based entirely on Peelman’s

testimony, or in which Peelman’s testimony provided

“strong evidence” of petitioner’s guilt, Pet. App. 132 n.6, ©

and the court of military review dismissed those charges on

remand, id. at 137, 140. That action left standing only peti-

tioner’s convictions on the three charges originally filed

against her before Peelman was granted use immunity. In

order to determine whether petitioner was also entitled to

relief on those charges, the Court of Military Appeals

directed the court of military review on remand to deter-

mine whether Peelman’s testimony had any “spillover” ef-

fect on those counts. In undertaking that inquiry, the court

of military review required the government to prove that

it had “an independent, legitimate source for the disputed

evidence,” id. at 138, which is the same burden that the

government must carry under Kastigar v. United States, 406

U.S. 441, 460 (1972), to show that it has not made improper

use of testimony given by a defendant under a grant of use

immunity.‘ Given the nature of the Sixth Amendment

¢ Although the court of military review did not cite Kastigar in its

opinion in this case, the court of military review clearly applied the

11

violation that the Court of Military Appeals found in this

case, the Kastigar standard is an appropriate one to deter-

mine whether petitioner was denied the effective assistance

of counsel or a fair trial. Cf. Weatherford v. Bursey, 429

U.S. at 550-559. In sum, the military appellate courts under-

took precisely the inquiry contemplated by this Court’s

precedents and crafted a remedy that neutralized the adverse

effect on petitioner from Captain Smith’s conflict of interest.

The only remaining question is whether the government

satisfied the Kastigar standard in this case. The court of

military review twice found that the government carried its

burden, since the offenses of which petitioner now stands

convicted were all based upon information and physical

evidence that Airman Ryan gave to the OSI in June and

July 1981, well before Captain Smith became petitioner’s

lawyer. Pet. App. 138-139 (remand decision), 154-155 (deci-

sion on appeal following resentencing).* The Court of

Military Appeals did not disturb those findings. Petitioner

does not argue that the government’s proof of the am-

phetamine, marijuana, and conduct-unbecoming-an-officer

charges were based on Peelman’s testimony. In fact, peti-

tioner concedes that Ryan supplied the proof for those

charges. Pet. 6. Under these circumstances, further review

of petitioner’s claims is not warranted.

Kastigar standard. The court quoted the correct standard, Pet. App.

138, it expressly drew “an analogy between the situation at bar and the

Government’s ability to establish that it made no improper use of an

accused’s immunized testimony,” id. at 137, and it cited the decisions

in United States v. Lucas, 25 M.J. 9 (C.M.A. 1987), cert. denied, 484

U.S. 1027 (1988), and United States v. Gardner, 18 M.J. at 615, which

discussed Kastigar.

$ The court of military review, exercising its independent fact-finding

power, found that there was no spillover of tainted evidence from the

dismissed allegations to those remaining. Pet. App. 139.

iil

12

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

JOE R. LAMPORT

Col., OJAG, USAF

ROBERT E. GIOVAGNONI

Col., OJAG, USAF

Morris D. DAVIS

Capt., OJAG, USAF

Appellate Government Counsel

Government Trial and

Appellate Division

JANUARY 1990

wx U.S. GOVERNMENT PRINTING OFFICE: 1989—262-203/00804