# Opposition Brief — Newak v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1990
- **Citation:** 493 U.S. 1070

## Text

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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0589%3A3. Public record. Not legal advice.