Petition for Writ of Certiorari — Zabkar v. United States

» 94 686 OCT 17 1998

No, OFFICE OF THE CLERK

SEM ORRTE

In the Supreme Court of the United States

OCTOBER TERM, 1994

MARK S. ZABKAR, PETITIONER

Vv.

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

PETITION FOR WRIT OF CERTIORARI

JAY LINDSEY COHEN

Colonel, United States Air Force

Chief, Appellate Defense Division

Counsel of Record

Eric N. EKLUND

Captain, United States Air Force

Appellate Defense Counsel

Counsel for the Petitioner

AIR FORCE LEGAL SERVICES AGENCY

172 Luke Avenue, Suite 208

Bolling AFB, DC 20332-5113

(202) 767-1562

OCTOBER 1994

patient

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QUESTIONS PRESENTED

Whether the military judge erred by failing to inquire in-

to whether a factual basis existed for the stipulation of fact

in violation of United States v. Bertelson, 3 M.J. 314

(C.M.A. 1977) as well as misadvising the appellant as to

the effect of his confessional stipulation in violation of

United States v. Watruba, 35 M.J. 488 (C.M.A. 1992).

Whether the appellant was the victim of selective prose-

cution thereby rendering his court-martial a nullity.

Whether the appellant was denied effective assistance of

counsel.

TABLE OF CONTENTS

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STATEMENT OF THE CASE .............------>-

REASONS FOR GRANTING THE WRIT ........-.

1. THE FAILURE TO CONDUCT A PROPER

II.

BERTELSON INQUIRY .............+---.

THE NATURE OF THE VINDICTIVE

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THE INEFFECTIVE ASSISTANCE OF

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APPENDIX A (Order of the U.S. Court of Military

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APPENDIX B (Opinion of the Air Force Court of

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TABLE OF AUTHORITIES

FEDERAL CASE: Page

Strickland v. Washington, 466 U.S. 668, 104 S. Ct.

2062. BBL... TG.. BE GPR ID 4 vo cc cc tc tess 13

MILITARY CASES:

United States v. Bertelson, 3 M.J. 314 (C.M.A.

SEE - ok oon 604 eae reer rere 8, 15

United States v. Bradley, 30 M.J. 308 (C.M.A.

EOE TOPPED Ce Verde ea ae 1]

United States v. Care, 40 C.M.R. 247 (C.M.A.

PEE os x a aos Ee eee 6

United States v. DeHart, 33 M.J. 58 (C.M.A.

SOE ni os hays eee area eer ae 12

United States v. Garwood, 20 M.J. 148 (C.M.A.

Pe a oN se i a es 10

United States v. Hagen, 25 M.J. 78 (C.M.A.

Se ie ss ke ba eo ce oe ee ee 11

United States v. Honeycutt, 29 M.J. 416 (C.M.A.

DO 5 ils ccc ok erate bo Ce creat 7

United States v. Palus, 13 M.J. 179 (C.M.A.

RO, i. nv's tik we Ox ea wee a ea nae hoe 12

United States v. Polk, 32 M.J. 150 (C.M.A.

vcs 2 ab eee ean woe 13

United States v. Scott, 24 M.J. 186 (C.M.A.

SUE 55 aces wan vee Oe coach eee ees 13

United States v. Terry, 45 C.M.R. 216 (C.M.A.

Le ane ic boy pacers aye aaa 6, 8

United States v. Watruba, 35 M.J. 488 (C.M.A.

se knc ds cco bua eee cso eee ie

STATUTES:

10 U.S.C.A. § 867(a) (Supp. 1992) ............. |

28 U.S.C.A. § 1259(3) (Supp. 1992) ............ ]

iV

In the Supreme Court of the United States

OCTOBER TERM, 1994

No.

MARK S. ZABKAR, PETITIONER

v.

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

PETITION FOR WRIT OF CERTIORARI

The petitioner, Mark S. Zabkar, respectfully prays that

a writ of certiorari issue to review the order of the United

States Court of Military Appeals entered in his case on 20

July 1994.

OPINIONS BELOW

The order of the United States Court of Military Ap-

peals affirming the decision of the Air Force Court of

Military Review is reported at __._ MJ ____ (CMA.

1994) (Appendix A). The unpublished opinion of the

United States Air Force Court of Military Review is at-

tached. (Appendix B).

JURISDICTION

The final order of the United States Court of Military

Appeals was entered on July 20th, 1994. The jurisdiction

of this Court is invoked under 28 USCA § 1259(3) (Supp.

1992) and 10 USCA § 867(a) (Supp. 1992).

(1)

N

STATEMENT OF THE CASE

On 19 January 1991, after a date with Amn Malloy, the

appellant and Amn Malloy returned to the appellant’s

quarters. Returning to his room after leaving it for a brief

period, the appellant discovered that Amn Malloy had re-

moved her clothing and was lying on his bed. Amn Malloy

then went into the bathroom, obtained one of the appel-

lant’s disposable razors and requested that the appellant

cut her shoulders, suck the blood out of the cuts, and

engage in anal intercourse with her. When the appellant

suggested they should go to the hospital, Amn Malloy re-

sponded by throwing a drink on him. Emerging from the

bathroom with a towel to clean up the spilled drink, the

appellant discovered that Amn Malloy had slit her wrists.

The appellant then told her he was taking her to the

hospital, to which Amn Malloy responded with vulgari-

ties. She then took a cigarette out of her purse, lit it, and

told the appellant she wanted to kill herself when he told

her to get out of his apartment. Amn Malloy then threat-

ened the appellant by telling him if he called the police, she

would scream “rape” and then “who would they believe,

with (her) back and wrists all cut up.” Affidavit of ap-

peliant. She then forced the appellant to smoke a cigarette

she had taken out of her purse, to prove she could trust

him and so she would not do herself in. After they finished

the cigarette, Amn Malloy returned to her dorm room. Af-

fidavit. The following day the appellant submitted to a

urinalysis test which ultimately tested positive for the

marijuana metabolite. See Narrative Message, Allied

Papers.

As a result of this positive urinalysis, the appellant was

scheduled to be discharged pursuant to AFR 39-10. See

AF Form 286A, Allied Papers; Ltr. dated 21 March 1991

to Congressman Frank Horton, Allied Papers. However,

3

the appellant’s First Sergeant, SMSgt Capocia, was de-

ployed to the Middle East, and Major Ronald J. Juhl

assumed command of the appellant’s squadron. Following

the 22 February 1991 congressional inquiry from Con-

gressman Horton, Ltr to the Vice Commander at Griffiss

AFB, Allied Papers, Major Juhl canceled the appellant’s

planned administrative separation, and preferred the

Charge and Specification at bar against the appellant on

27-March 1991. R. 6a. The Charges were referred the same

day. R. 6b. This action against the appellant was done

despite the fact that first term airmen under similar cir-

cumstances would have received nonjudicial punishment

and a General Discharge. Clemency Request. The appel-

lant’s Request for Discharge in Lieu of Court-Martial was

disapproved by the 416th BW/CC, Col Michael F.

Loughran on 23 April 1991. Ltr from Col Loughran dated

23 April 91, Allied Papers.

At trial, in a judge alone forum, the appellant pleaded

not guilty to'the Charge and its Specification, but stipu-

lated to both elements of the offense of the wrongful use

of marijuana. The appellant’s counsel made no motions

and did not bring any of the above facts surrounding the

appellant’s use of marijuana to the attention of the mili-

tary judge, notwithstanding their obvious exculpatory

value. During the subsequent inquiry required by United

States v. Bertelson, the military judge failed to determine

whether in fact there was a factual basis for the appellant’s

plea of guilty. Notwithstanding his plea, the appellant was

found guilty of the wrongful use of marijuana in violation

of Article 112a, U.C.M.J.

The appellant was sentenced to a bad conduct dis-

charge, confinement for 15 days, and reduction to the

lowest enlisted grade (E-1). The convening authority ap-

proved the sentence as adjudged on 17 June 1991.

4

On | March 1993, the Air Force Court of Military Re-

view affirmed the findings and sentence as approved by

the convening authority. (Appendix B). The Air Force

Court of Military Review determined, inter alia, that the

appellant failed to present a prima facie case that he was

the victim of selective prosecution. After obtaining affi-

davits from appellant’s trial defense counsel, the Court

determined that said counsel were not ineffective at trial.

Lastly, the court held that the Bertelson inquiry performed

by the military judge was adequate.

On 16 March 1993, appellant submitted a Petition for

Grant of Review with the United States Court of Military

Appeals asserting three issues of error. On 25 June 1993,

that Court granted appellant’s Petition with regard to issue

1, the Bertelson issue and ordered the appellee to file a

response brief to appellant’s supplement to petition for

grant of review. After reviewing the appellee’s response

brief, the Court of Military Appeals summarily affirmed

the lower court’s decision in its 20 July 1994 order. (Ap-

pendix A).

REASONS FOR GRANTING THE WRIT

1. THE MILITARY JUDGE ERRED BY FAILING

TO INQUIRE WHETHER A FACTUAL BASIS

EXISTED FOR THE STIPULATION OF FACT

IN VIOLATION OF UNITED STATES vy.

BERTELSON, 3 M.J. 314 (C.M.A. 1977) AS

WELL AS MISADVISING THE APPELLANT

AS TO THE EFFECT OF HIS CONFESSIONAL

STIPULATION IN VIOLATION OF UNITED

STATES v. WATRUBA, 35 M.J. 488 (C.M.A.

1992).

Notwithstanding established military precedent and the

constraints of Article 45, U.C.M.J., the military judge

;

5

failed to ascertain from the appellant on the record that a

factual basis existed for the stipulation of fact entered into

in this case, namely, Prosecution Exhibit 1. Prosecution

Exhibit 1 formed the entire basis of the Government's case

against the appellant. During findings, the military judge

merely read Prosecution Exhibit | to the appellant, asked

him if he understood the “facts” and if they were true to the

best of his knowledge, and whether he stipulated to the

facts contained therein. R. 9. A reading of Prosecution Ex-

hibit 1, however, reveals that the alleged “facts” were a

mere recapitulation of the “legalese” found on the charge

sheet, e.g., “. . . the accused, Sgt. Zabkar, knowingly and

without legal justification, wrongfully used marijuana, a

controlled substance ...” R. 9. Moreover, the military

judge misadvised the appellant as to the effect of the con-

fessional stipulation he was entering. In particular, the

military judge advised the appellant that:

MJ: By entering into this stipulation to these facts

you give up certain constitutional rights. These rights

are first, your right against self-incrimination. That is,

you’ve given up your right to say nothing at all. Sec-

ond, you give up the right to a trial of facts by court-

martial. No trial of the facts is required because you

are admitting that the facts set out in the Specification

are true. And third, you give up the right to be con-

fronted by the witnesses against you as to these facts.

Ordinarily, there would be no witnesses called to testi-

fy or other evidence presented because your Stipula-

tion admits the facts alleged in the Specification are

true. Do you have any questions about these constitu-

tional rights?

ACC: No, sir.

MJ: Do you, in fact, give up each of these constitu-

tional rights?

a: Fea; Sh.

oe FE

6

With regard to the military judge’s first error, he had an

obligation under Bertelson to “ascertain from the [ap-

pellant] that a factual basis exists for the stipulation,”

supra at 317. See also United States v. Watruba, 35 M.J.

488 (C.M.A. 1992). The reason is simple. The same under-

lying considerations which led the Court of Military Ap-

peals to adopt the United States v. Care, 40 C.M.R. 247

(C.M.A. 1967) inquiry led the court to mandate a similar

inquiry in confessional stipulation cases—to prevent the

prosecution from circumventing the letter or spirit of Arti-

cle 45(a), UCMJ, which prohibits improvident pleas of

guilty. Bertelson, supra at 316. See also Watruba, 35 M.J.

at 490 n. 2 (Discussing how it “should come as no shock

that the confessional-stipulation inquiry required under

Bertelson that is founded on Article 45(a) should differ

from the stipulation inquiry conducted in [United States]

District Court.”)

In fact, the inquiry at bar is practically the exact replica

of the defective inquiry: in United States v. Terry, 45

C.M.R. 216 (C.M.A. 1972), a case which the Court of

Military Appeals cited in Bertelson, 3 M.J. at 317, as

standing for the proposition that the trial judge must “also

ascertain for the accused on the record that a factual basis

exists for the stipulation” in confessional stipulation cases.

In Terry, the Court reversed a guilty plea case for insuffi-

cient inquiry when all the judge did was recite the charged

specifications: ue

Before accepting the appellant’s pleas in his case the

military judge read aloud each specification in its en-

tirety. The judge then recited the elements consti-

tuting the offenses. Terry assured the judge that he

understood the meaning of the specifications and the

elements. The responses satisfied the judge that no

further development of the facts was neéded to iden-

tify the plea with the offenses charged. He accepted

the proffered guilty plea.

Terry, 45 C.M.R. at 216. Finding this factual inquiry in-

sufficient, the Court commented:

The record reveals nothing more than a recital of the

elements of the offenses charged, followed by Terry’s

affirmative reply to the military judge’s conclusion,

You are in fact pleading guilty because you are in fact

guilty?” Colloquies of this nature have never satisfied

the demands of Care, for they fail to furnish a satis-

factory factual development.

Td. at 217.

Like the military judge in Jerry, the military judge sub

jJudice failed to ascertain any underlying facts to the con-

fessional stipulation found in Pros. Ex. 1. He thereby

committed reversible error. United States v. Honeycutt, 29

M.J. 416, 419 n.5 (C.M.A. 1990). Because there was

essentially no “factual” stipulation before the judge related

to the charge, detailed or otherwise, no detailed stipulated

testimony by a witness setting out the appellant’s offenses,

nor any confession before the military judge, there can be

assertion by appellee that the totality of circumstances sur-

rounding this case vitiates the prejudice suffered by the ap-

pellee by this improper and defective inquiry. This is

especially true in light of the appellant’s duress defense,

discussed supra, a defense that a confessional stipulation,

as a matter of law, does not waive. Cf., /d.; See Watruba,

35 M.J. at 491 (C.M.A. 1992).

With regard to the military judges’ second error, that of

misadvising the appellant of the effect of his confessional

stipulation, the Court of Military Appeals recently noted

that:

In many respects, as the military judge observed, this

predicate to accepting a confessional stipulation of

fact parallels the inquiry into the providence of a guil-

ty plea. Still significant legal differences exist bet-

ween, on the one hand, pleading not guilty but agree-

ing to a confessional stipulation and, on the other,

pleading guilty. For instance, in the former case, the

accused does not automatically waive all of the con-

stitutional rights that are waived as a matter of law by

a plea of guilty; clearly, for example, his plea of not

guilty still as a matter of law requires a trial of facts

by the court. Thus, the military judge’s advice here re-

garding Watruba’s waiver of his constitutional rights

was incorrect.

Watruba, 35 M.J. at 490-91. A comparison between the

Bertelson confessional stipulation misadvice in Watruba

and the advice provided to the appellant at bar leads to

just One conclusion, that the military judge’s advice to the

appellant was incorrect as a matter of law—as the Court

stressed, a “plea of not guilty still as a matter of law re-

quires a trial of the facts by the court.” Watruba, 35 M.J.

at 491. Parenthetically, the military judge’s consistent

references to the alleged “facts” set forth in Prosecution

Exhibit | is puzzling —there are no detailed facts therein,

merely just a reiteration of the Charge Sheet specification.

In sum, the military judge committed prejudicial, re-

versible error during his legally defective Bertelson in-

quiry. The military judge both failed to “ascertain from

the accused on the record that a factual basis exists for the

stipulation,” Watruba, 35 M.J. at 491 (Emphasis added);

Terry, 45 C.M.R. at 217, as well as gave incorrect and mis-

leading advice to the appellant as to the affect of the

stipulation on his constitutional rights. Watruba, 35 M.J.

at 491.

9

Il. THE APPELLANT WAS THE VICTIM OF

SELECTIVE PROSECUTION THEREBY

RENDERING HIS COURT-MARTIAL A

NULLITY

The appellant’s court-martial should have never been

convened. But for selective and vindictive prosecution, the

appellant’s “offense” would not have been sent to a court-

martial and this case would have been disposed of in an

alternative nonjudicial forum. A review of the pertinent

facts at bar serves to illustrate this point.

The appellant was a first-term airman in the latter part

of 1990, and was scheduled to separate with an honorable

discharge on 15 December 1990. Due, however, to the

Stop-Loss Extension Program, he was prevented from do-

ing so. Request for Discharge in Lieu of Trial by Court-

Martial dated 1 April 1991, Allied Papers (hereinafter Re-

quest for Discharge); Def. Ex. A.; Affidavit of Amn Mark

Zabkar dated 23 September 1991 submitted under separate

motion to the lower court (hereinafter Affidavit.) Appen-

dix B. In addition, the appellant was promoted to Sergeant

on 1 December 1990. Request for Discharge; Affidavit.

The appellant had not asked for NCO status, it was given

to him due to his time-in-grade created by his involuntary

extension, and it could not be declined. Request for

Clemency dated 12 June 1991, Allied Papers, (hereinafter

Clemency Request).

Over the New Year holiday, on | January, 1991, several

anti-nuclear war civilians gained access to a heavily guard-

ed area at Griffiss AFB, resulting in the reprimand of the

entire squadron and the court-martial of six security per-

sonnel. Affidavit, Clemency Request, Allied Papers.

Less then two months after his involuntary promotion,

the appellant unfortunately crossed paths with Amn

Kathleen M. Malloy, more fully described supra, which

10

ultimately led to his positive urinalysis. As a result of this

positive urinalysis, the appellant was scheduled to be dis-

charged pursuant to AFR 39-10. However, the appellant’s

First Sergeant, SMSgt Capocia, was deployed to the Mid-

die East, and Major Ronald J. Juhl assumed command of

the appellant’s squadron. Following the 22 February 1991

congressional inquiry from Congressman Horton, Ltr to

the Vice Commander at Griffiss AFB, Major Juhl can-

celed the appeilant’s planned administrative separation,

which should have been facilitated by the removal of his

81150 security police specialty code, and preferred the

Charge and Specification at bar against the appellant on

27 March 1991. R. 6a. The Charges were referred the same

day. R. 6b. This action against the appellant was done

despite the fact that first term airmen under similar cir-

cumstances would have received nonjudicial punishment

and a General Discharge. The appellant’s Request for Dis-

charge in Lieu of Court-Martial was disapproved by the

416th BW/CC, Col Michael F. Loughran on 23 April

1991. Ltr from Col Loughran dated 23 April 91.

As the facts supra indicate, the appellant was imper-

missibly targeted for prosecution for exercising his First

Amendment right to petition the Government for redress

of grievances, and for the impermissible reason of retribu-

tion for the breach of security on 1 January 1991. U:S.

Const. amend. I. While other similarly situated as the ap-

pellant have been merely separated from the service with

honorable characterizations of service, the appellant was

forced to trial for the sole purpose of punishing him for

raising valid questions regarding the irregularities in his

case. See United States v. Garwood, 20 M.J. 148, 154 }

(C.M.A. 1985) (Selective prosecution established by show-

ing others generally situated have not been proceeded

against for conduct forming the basis of the charge against

the appellant and that the selection to prosecute is based

upon impermissible considerations such as the desire to

prevent the exercise of constitutional rights). Moreover,

although the appellant was a Sergeant, he had involuntari-

ly held that rank for less than two months and was not in-

volved with leading a group of subordinates in a crime

spree, the factual underpinnings in United States vy.

Bradley, 30 M.J. 308, 311 (C.M.A. 1990), wherein the

Court of Military Appeals held that an accused’s higher

rank defeated a selective prosecution claim. Likewise,

there was no other similarly situated accused testifying

under a grant of immunity in this case. /d.

In sum, there is simply no “rational and legitimate pros-

ecutorial policy” which would justify the appellant’s prose-

cution under the facts and circumstances of this case. /d.

Instead, the record clearly establishes that the appellant

was prosecuted in retribution for exercising his constitu-

tional rights and for the commander’s illegitimate purpose

of atoning for a breach of security that was not appellant’s

fault. This being the case, the burden shifts to the prose-

cution to disprove the misconduct at bar. United States v.

Hagen, 25 M.J. 78, 84 (C.M.A. 1987). Under the facts of

this case, the prosecution cannot disprove the selective

prosecution allegation. !

' Despite the aforementioned sequence of events, the Air Force

Court of Military Review found that the appellant “has not presented

a prima facie case his commanders engaged in any vindictive or dis-

criminatory activity by electing to substitute a special court-martial

for the pending administrative action. Therefore, he fails in his effort

to convince us he was the victim of selective prosecution.” Zabkar,

ACM 828521 at 2. The Court of Military Appeals did not grant review

of this issue or address this issue in its order. (Appendix A).

12

lil. THE APPELLANT WAS DENIED EFFECTIVE iy

ASSISTANCE OF COUNSEL.

The appellant’s trial defense counsel were ineffective in

their defense of the appellant at trial, thereby meriting re-

versal of the findings and sentence. As noted supra in the

Statement of the Case, the appellant was in the unenviable

and untenable position of not only having to succumb to

Amn Malloy’s entreaty to smoke her “cigarette” or face

her threat to cry rape, he also had to contend with the

possibility that she would hurt herself if he did not do as

she requested. Affidavit. On its face, this information

raised the defense of duress, as the appellant “had a

reasonably grounded fear” that unless he smoked the ciga-

rette, she would immediately kill herself, suffer serious

bodily injury, or scream rape (a lie, yet as an allegation

which could cause appellant to face court-martial for a

crime punishable by up to life in prison). United States v.

DeHart, 33 M.J. 58, 61 (C.M.A. 1991) citing United

States v. Palus, 13 M.J. 179 (C.M.A. 1982); see also

R.C.M. 916(h), Manual for Courts-Martial, 1984. Despite

having been made aware of the events of the evening, the

appellant’s trial defense attorneys, Capt Jeffery Robb and

Capt John Russell advised the appellant that “a military

judge will never believe the story,” and that the appellant

was “better advised to plead guilty or admit certain ele-

ments of the charge and request a lenient sentence.” Affi-

davit. They therefore did not raise a necessity defense on

the appellant’s behalf. Moreover, despite the appellant’s

willingness to take a polygraph, and the fact that arrange- I

ments had been made to take a polygraph off base, Capt \

Robb further advised the appellant not to take the test be-

cause a “new judge,” had been assigned to the case. The

appellant accordingly never took one, despite repeatedly

requesting one. Affidavit. Finally, although defense

13

counsel requested and received authority to fund an expert

witness regarding suppression of the appellant’s urinalysis

test, and consulted with the expert, no evidence regarding

problems with the urinalysis was offered at trial. Affi-

davit.?

These aforementioned actions of trial defense counsel

deprived the appellant of effective assistance of counsel.

See United States v. Scott, 24 M.J. 186, 187 (C.M.A.

1987) incorporating the standard for measuring claims of

ineffectiveness of counsel found in Strickland v. Washing-

ton, 466 U.S. 668, 104S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Specifically, but for the trial defense counsel’s unprofes-

sional errors, the result of the proceeding would have been

different. Strickland, 466 U.S. at 694. Trial defense

counsels’ conclusion that the judge would not believe what

the appellant would tell him about what happened that

night, and their failure to follow through and investigate

what the appellant told them about that night by not per-

sonally interviewing Amn Malloy was “. . . conclusory,

self-serving and inadequate to justify [their] failure to do

everything legally and ethically required . . .” to prepare

the appellant’s case. United States v. Polk, 32 M.J. 150,

153 (C.M.A. 1991). Indeed, after oral argument before the

Air Force Court of Military Review below, the lower court

ordered the government to obtain affidavits from both

Major Jeffrey L. Robb and Captain John G. Russell, the

appellant’s former defense counsel. In their affidavits,

both counsel admit it was their opinion that the above

scenaiio did not constitute a duress defense, and that they

did not interview Amn Malloy. According to the appel-

? Defense counsels’ lackadaisical attitude with respect to the appel-

lants’ defense is highlighted by the jokes on the eve of the trial that the

trial better not take longer than one day, as Capt Robb was due to

leave Griffiss AFB on 17 March 1991. Affidavit.

14

lants’ former defense counsel, they were not able to inter-

view Amn Malloy because she invoked her Article 31

rights and requested counsel. It is obvious from the tenor

of both defense counsel affidavits that they were the ones

who failed to put on a defense the appellant sincerely

wanted, ignoring his request for a polygraph as well as

foregoing a guilty plea to ensure that the circumstances

surrounding the appellant’s offense remained buried. They

also failed to seek a grant of immunity for Amn Malloy so

they could secure the evidence by which to corroborate the

appellant’s account of what occurred.

In this regard, for example, the affidavit of Major Robb

is contradictory. On the one hand, he indicates that he exe-

cuted a trial strategy to minimize the duration of confine-

ment, yet goes on to indicate that it was he who recom-

mended that the motion to dismiss (suppress?) be with-

drawn, that the forum be judge alone, and the plea be not

guilty, but accompanied by a confessional stipulation.

Para. 3 of Major Robb’s affidavit. Indeed, in paragraph

14 of Major Robb’s affidavit, Major Robb states, “thus

our plan was formulated. It was executed as expected with

the results I anticipated.” The appellant’s rebuttal affidavit

submitted to the lower court sums up the course of action

the appellant desired to pursue. “My plan would have been

to plead not guilty, present all of the bizarre facts, in-

cluding the attempted and threatened suicide by Airman

Malloy, bizarre sexual requests, threat of crying rape by

Airman Malloy and all other incidents brought to bear

upon myself on the night of the arrest.” Appellant’s Affi-

davit dated 23 Feb 1993. Appendix E.

The fact that the appellant failed to plead guilty should

raise a red flag before this Honorable Court. It shows that

at least in the appellant’s mind, his actions that night were

legally justified. The military judge should have asked

some questions regarding the factual underpinning of the

15

appellant’s confessional stipulation during the United

States v. Bertelson, 3 M.J. 314 (C.M.A. 1977) inquiry in

this case. See discussion under assignment of Error I. If he

had, the military judge would have unearthed the defense

the appellant’s trial defense counsel tried to bury. The ac-

tions of trial defense counsel in and of themselves, how-

ever, amounted to ineffectiveness of counsel.

3 The Air Force Court of Military Review opined that the trial

defense counsels’ performance was not deficient, and did not pursue

an analysis under Strickland v. Washington, 466 U.S. 668 (1984). The

Court of Military Appeals did not grant on the issue of ineffective

assistance of counsel, nor did they comment on this issue in their order

affirming the appellant’s conviction. (Appendix A).

16

CONCLUSION

The questions presented above are genuinely important

and affect not only petitioner, but the rights of millions of

Americans serving in the armed forces. In this case, it is

clear that the appellant was singled out for prosecution for

exercising his constitutional right to seek redress, that he

was hamstrung at trial by ineffective assistance of counsel,

and ultimately prejudiced by the military judge’s failure to

perform the inquiry required by United States v. Bertel-

son. For all the reasons stated, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

JAY LINDSEY COHEN

Colonel, United States Air Force

Chief, Appellate Defense Division

Counsel of Record

Eric N. EKLUND

Captain, United States Air Force

Appellate Defense Counsel

Counsel for the Petitioner

AIR FORCE LEGAL SERVICES AGENCY

172 Luke Avenue, Suite 208

Bolling AFB, DC 20332-5113

(202) 767-1562

OCTOBER 1994

APPENDICES

APPENDIX A

UNITED STATES COURT OF MILITARY APPEALS

USCMA Dkt. No. 93-0698/AF

CMR Dkt. No. S28521

UNITED STATES, APPELLEE

V.

MARK S. ZABKAR (082-54-5493), APPELLANT

ORDER

On further consideration of the granted issue (38 MJ

233), we are satisfied that the military judge substantially

complied with United States v. Bertelson, 3 MJ 314 (CMA

1977), when he advised appellant of the effect of the

stipulation of fact in this case. Accordingly, it is, by the

Court, this 20th day of July, 1994

ORDERED:

That the decision of the United States Air Force Court

of Military Review is affirmed.

For the Court,

/s/ John A. Cutts, III

Deputy Clerk of the Court

cc: The Judge Advocate General of the Air Force

Appellate Defense Counsel (JIVIDEN)

Appellate Government Counsel (MADSEN)

(la)

2a

APPENDIX B

UNITED STATES AIR FORCE

COURT OF MILITARY REVIEW

ACM 828521

UNITED STATES

V.

SERGEANT MARK S. ZABKAR, FRO82-54-5493

UNITED STATES AIR FORCE

1 March 1993

Sentence adjudged 15 May 1991 by SPCM con-

vened at Griffiss Air Force Base, New York.

Military Judge: Perry L. Anderson (sitting

alone).

Approved sentence: Bad-conduct discharge, con-

finement for 15 days, and reduction to E-1.

Appellate Counsel for the Appellant: Captain

David D. Jividen (argued), Colonel Jeffrey R.

Owens, Lieutenant Colonel Terry J. Wood-

house, Major Alice M. Kottmyer, and Mr. Mark

S. Nunn, Esquire.

Appellate Counsel for the United States: Captain

Carlos L. McDade (argued), Colonel Richard L.

Purdon, Lieutenant Colonel Brenda J. Hollis,

Lieutenant Colonel Jeffery T. Infelise, and

Major Paul H. Blackwell, Jr.

Before

O’HAIR, SNYDER, and GRUNICK

Appellate Military Judges

3a

OPINION OF THE COURT

O’HAIR, Senior Judge:

At his special court-martial for a single use of marijuana

in violation of Article 112a, UCMJ, appellant had very lit-

tle to say. There were no motions, he pleaded not guilty to

the charge, entered a confessional stipulation, and made

no argument to the military judge on findings. During the

sentencing portion of the trial appellant commented in a

short oral statement that, “I was presented with the oppor-

tunity to use marijuana. I did so having a free choice.” His

written statement to the trial court highlighted his family

background and his embarrassment and remorse for having

used marijuana. Presumably in deference to appeilant’s

stated desire for a punitive discharge rather than confine-

ment, the military judge sentenced him to a bad-conduct

discharge, confinement for 15 days, and reduction to E-1.

In the post-trial submissions to the convening authority

appellant raised, for the first time, an allegation he was the

victim of selective prosecution. He based this on several

theories: 1) he was being penalized for having previously

complained in a letter to his congressman because the Air

Force had placed on hold on the processing of his admini-

strative discharge; 2) a replacement unit commander

decided to scrap the pending administrative discharge ac-

tion and prefer court-martial charges because appellant

recently attained the grade of sergeant; and 3) all other

airmen had been administratively discharged, not court-

martialed, for a single incidence of use of marijuana.

The law requires appellant to articulate a prima facie

case that he was singled out for prosecution which is based

on bad faith. United States v. Hagen, 25 M.J. 78 (C.M.A.

4a

1987). Appellant has not presented a prima facie case his

commanders engaged in any vindictive or discriminatory

activity by electing to substitute a special court-martial for

the pending administrative discharge action. Therefore, he

fails in his effort to convince us he was the victim of selec-

tive prosecution.

The government would have us believe the above analy-

sis was unnecessary because appellant’s failure to raise this

claim at trial waived the issue. They rely on language in

Hagen which states, “Ordinarily, the forum for vindi-

cating oneself in a criminal justice system is the trial.”

Hagen, 25 M.J. at 84. Similarly, in United States v.

Bradley, 30 M.J. 308, 310-311 (C.M.A. 1990), the court

noted, “a finding of waiver based on appellant’s failure to

properly raise this claim might be appropriate.” To take

such a step and find the issue was waived would place the

military courts in agreement with our civilian brethren

who, as held in United States v. Mann, 884 F.2d 532,

539-40 (10th Cir. 1989), require that objections based on

defects in the initiation of prosecution must be raised

before trial. In the absence of clear authority to find this

issue can be waived, we have made the finding, supra, that

no unlawful command influence exists.

Appellant next asserts he was denied effective assistance

of trial defense counsel because his counsel failed to raise

the issue of duress, did not pursue a pretrial polygraph of

appellant, and did not attempt to suppress the results of

the urinalysis test. Since the government did not obtain an

affidavit from either defense counsel, we ordered the gov-

ernment to obtain affidavits which would address the

issues raised by appellant. Both affidavits were received

and filed with the Court, as well as one submitted in re-

ee eT ee

Penny

Sa

buttal by appellant. From our reading of ail three affi-

davits, we conclude the strategy the counsel pursued, both

before and during the trial, was sensible, fully explained to

appellant, and agreed to, by him, before it was executed.

In our opinion, the trial defense counsels’ performance

was not deficient, thus eliminating the need for further

analysis under Strickland vy. Washington, 466 U.S. 668

(1984).

The only evidence presented by the government at trial

tO prove its case was a bare bones stipulation of fact. The

first of three paragraphs contains exclusively jurisdictional

information. Paragraphs 2 and 3 read as follow:

2. Between on or about 20 December 1990 and on or

about 20 January 1991, at or near Griffiss Air Force

Base, New York, the accused, Sgt Zabkar, knowingly

and without legal justification wrongfully used mari-

juana, a controlled substance.

3. The accused’s urine specimen, taken on 20 Janu-

ary 1991, tested positive for marijuana at the Air

Force Drug Test Laboratory, Brooks AFB, Texas.

From the time of collection through the time of

testing, a proper chain of custody was maintained.

The concentration of Tetrahydrocannabinol (THC)

was 33 nanograms/ml.

The military judge correctly perceived this as a confes-

sional stipulation which obligated him to conduct a Berte/-

son* inquiry because the stipulation amounted to a total

confession of guilt. Accordingly, the military judge in-

formed appellant he could not accept this stipulation into

* United States v. Bertelson, 3 M.J. 314 (C.M.A. 1977).

6a

evidence until appellant understood certain legal conse-

quences. Included among these was an acknowledgement

that: 1) he had to consent to its admission; 2) the military

judge could find him guilty based solely on the stipulation;

and 3) he would be giving up his constitutional right

against self-incrimination, a right to the trial of the facts,

and the right to be confronted by witnesses against him.

Next, the judge explained the elements of the offense and

the maximum imposable sentence. Appellant had no ques-

tions during this explanation of his rights and responded

there was no pretrial agreement among the parties. After

the judge read the stipulation of fact into the record, the

counsel for both sides confirmed the facts contained in the

stipulation were true and admissible. The judge then asked

appellant if the facts were true to the best of his knowledge

and appellant answered in the affirmative.

The need for a Bertelson inquiry arose because of the

Court of Military Appeal’s concern that Bertelson had not

“knowingly, intelligently and voluntarily consented” to the

admission of a stipulation of fact which practically

amounted to a confession. As a result, the court mandated

that in the future, all military judges should conduct an in-

quiry for each confessional stipulation to assure the ac-

cused “knowingly, intelligently and voluntarily consented”

to the admission of the stipulation, as well as to “ascertain

on the record that a factual basis exists for the stipulation.”

Bertelson, 3 M.J. at 317. There is no further discussion as

to what would constitute a “factual basis”, only a citation

to United States v. Terry, 21 U.S.C.M.A. 442, 45 C.M.R.

216 (1972).

In Terry the military judge conducted what amounted to

an inadequate guilty plea providence inquiry because all he

did was to read aloud each specification, recite the ele-

ments, and obtain an assurance from Terry he understood

the meaning of the specifications and the elements. The

a a

Ta

court found this exchange failed to furnish a satisfactory

factual development of the misconduct. There was no

assurance that the misconduct for which Terry pleaded

guilty was the same misconduct with which he was charged.

Terry, 45 C.M.R. at 217.

In the case before us, appellant asserts the military judge

failed to inquire whether a factual basis existed for admis-

sion of this confessional stipulation. Appellant would have

us require the same intensive dialogue between the military

judge and the accused as is mandated by United States v.

Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969). We

disagree.

It must not be forgotten that an accused undergoing a

Bertelson inquiry has pleaded not guilty. He is not placed

under oath and he has waived his Article 31 rights only with

regard to the matters contained in the stipulation. See

United States v. Watruba, 35 M.J. 488 (C.M.A. 1992);

United States:'v. Enlow, 26 M.J. 940 (A.C.M.R. 1988). To

determine if a factual basis exists for the stipulation, the

military judge’s inquiry is fairly limited to going over the

stipulation with the accused, line by line, and ascertaining if

the facts are true. Such a procedure was utilized and found

to be perfectly acceptable in United States v. Matlock, 35

M.J. 895 (A.C.M.R. 1992). If this procedure is followed,

absent a later contradiction of the information in the

stipulation, which brings into question whether it had a fac-

tual basis or was true, the stipulation is admissible. See

United States v. Cantu, 30 M.J. 1088 (N.M.C.M.R. 1989).

In this case the military judge provided all the appro-

priate advice to appellant as to the uses to be made of his

stipulation, the rights he was waiving and that the facts in

the stipulation were true. There were no other challenges to

the truthfulness of this stipulation during the remainder of

the trial. Accordingly, the admission of the stipulation was

proper.

8a

IV

The remaining assignments of error are without merit.

See United States v. Snelling, 14 M.J. 267 (C.M.A. 1982);

United States v. Graff, 35 M.J. 450 (C.M.A. 1992).

The findings of guilty and the sentence are

AFFIRMED.

Judges SNYDER and GRUNICK concur.

OFFICIAL

NAoMI D. ALLEN

TSgt, USAF

Chief Court Administrator, AFCMR