Petition for Writ of Certiorari — Hall v. United States

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Supreme Court, U.S.

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927 +316 AUG 20 1997

No.

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1996

CAPTAIN ADRIENNE M. HALL,

Petitioner

UNITED STATES OF AMERICA,

Respondent

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Armed Forces

PETITION FOR WRIT OF CERTIORARI

CAROL L. HUBBARD

Major, United States Air Force

Appellate Defense Counsel

Counsel of Record

DOUGLAS H. KOHRT

Colonel, United States Air Force

Chief, Appellate Defense Division

Counsel for Petitioner

Air Force Legal Services Agency

Appellate Defense Division

112 Luke Avenue, Suite 343

Bolling AFB DC 20332-8000

(202) 767-1562

August 1997

QUESTION PRESENTED

Whether the military judge committed plain error by

instructing the members about collateral consequences of

a court-martial conviction.

(i)

TABLE OF CONTENTS

Page

QUESTION PRESENTED .... Se ae i

TABLE OF AUTHORITIES . iv

OPINIONS BELOV. ..................... xa code ssnale 1

JURISDICTION ............. 2 oe BER 2

CONSTITUTIONAL PROVISION INVOLVED .... 2

STATEMENT OF THE CASE ...................... .. 2

REASON FOR GRANTING THE PETITION 4

CONCLUSION ... eres ee ne See - 9

APPENDIX A

(Opinion of the United States Court of Appeals

for the Armed Forces) ts la

APPENDIX B

(Opinion of the United States Air Force Court of

Criminal Appeals) ......... SVWERD SEE Ze Pa ae 6a

(iii)

TABLE OF AUTHORITIES

Military Cases: Page

United States v. Cleckley, 8 U.S.C.M.A. 83, 23

Ce IE ED adxeinstestdciutsncisontbeeniaabeesanes 6

United States v. Fisher, 21 M.J. 327 (C. M.A.

RE hac uicesceasasiicccresladalaceeaninanndat ines tamanneraaaaiias 7

United States v. Grady, 30 M.J. 911 (A.C.M. R.

1990), pet. denied, 32 M.J. 197 (C.M.A. 1990).. 7

United States v. Griffin, 25 M.J. 423 (C.M.A.

1988), cert. denied, 487 U.S. 1206 (1988) ........3, 4, 5, 8

United States v. Hall, 46 M.J. 145 (1997) |........... 3

United States v. McElroy, 40 M.J. 368 (C.M.A.

| RRR OA REN ne Ree RNA RRMA TERE he Mem ee 7,8

United States v. McLaren, 34 M.J. 926

(A.F.C.M.R. 1992), aff'd, 38 M.J. 112 (C.M.A.

1993), cert. denied, U.S. ——, 114 S.Ct.

| Ee ICN ee eOE Dy MRO. oteenty ee 4,5, 6

United States v. Quesinberry, 12 U.S.C.M.A. 609,

ee 2 BR Bt: Repeater eee A oe. 4

Manual for Courts-Martial, United States, 1984 (1995 ed.)

| a a RS SR RE | See ene em en R

Rules for Courts-Martial (R.C.M.) 801(c) ........... 5

Federal Statutes:

10 U.S.C. § 867 (a) (3) ..... sides eeietahacualaaiows 2,3

28 U.S.C. § 1259 (8) ..................... saanlans 2

IN THE

Supreme Court of the United States

OCTOBER TERM, 1996

CAPTAIN ADRIENNE M. HALL.

‘ Petitioner

UNITED STATES OF AMERICA,

Respondent

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Armed Forces

PETITION FOR WRIT OF CERTIORARI

The petitioner, Captain Adrienne M. Hall, respectfully

prays that a writ of certiorari issue to review the order

and judgment of the United States Court of Appeals for

the Armed Forces entered in her case on 9 June 1997.

OPINIONS BELOW

The order and judgment of the United States Court of

Appeals for the Armed Forces, reported at United States

v. Hall, 46 M.J. 145 (1997), is located at Appendix A.

The unpublished opinion of the United States Air Force

Court of Criminal Appeals (A.F. Ct. Crim. App., 17 June

1996) is located at Appendix B.

JURISDICTION

The judgment of the United States Court of Appeals

for the Armed Forces was entered on 9 June 1997. The

jurisdiction of this Court is invoked under 28 U.S.C.

§ 1259(3) (West Supp. 1996) and 10 U.S.C. § 867(a)(3)

(West Supp. 1996).

CONSTITUTIONAL PROVISION INVOLVED

The Due Process Clause of the Fifth Amendment to the

Constitution of the United States provides, in relevant

part:

“No person shall . . . be deprived of life, liberty, or

property, without due process of law... .”

STATEMENT OF THE CASE

On 18 August 1994, pursuant to her pleas, petitioner

was convicted of the wrongful use of methamphetamine in

violation of Article 112a of the Uniform Code of Military

Justice. In their sentencing arguments before the panel of

members, both trial and defense counsel focused on

whether or not petitioner, a veteran of 19 years and 8

months, should be dismised from the service. Basically, a

dismissal was all the Government asked for, Record 98; it

was what the Defense argued most forcefully against.

Record 100. After deliberating for more than an hour,

the members returned to the courtroom with a question:

“Should the accused be dismissed from the Air Force,

what benefits would she be entitled to as a dependent?”

Record 108; App. Ex. X. (This question was asked in

reference to petitioner’s husband being a retired Air Force

officer. Record 108.) The question was hand-written on

an otherwise blank sheet of paper, with no indications on

it or in the record of any opportunity afforded either trial

or defense counsel to review the question and note any

objection they might have to it before the military judge

replied:

“The response to that is, her conviction by this court

Or any sentence imposed by this court, including a

dismissal, would not affect any benefits she would be

entitled to as a dependent of a retired military person.

In other words, those might be use of commissary,

use of BX, medical benefits, as any other dependent

of a retired military person.” Record 108.

Having answered the question with substantive information

that appeared facially accurate, the military judge asked

whether either counsel had “any quarrel with that point

of view.” Record 108. Both counsel replied in the nega-

tive. 7d. Twenty-nine minutes later the members returned

and announced their sentence: dismissal from the service.

Record 109.

On 17 June 1996, the Air Force Court of Criminal

Appeals affirmed the findings and sentence. App. B, infra.

The court stated that [o]rdinarily, the appropriate remedy

for a military judge faced with such a question is to simply

affirm that ‘collateral consequences are not germane’ to

the sentencing process,” quoting United States v. Griffin,

25 M.J. 423, 424 (C.M.A. 1988), cert. denied, 487 U.S.

1206 (1988). However, the court failed to find plain

error as it found the military judge was essentially correct,

and the trial defense counsel did not request additional in-

structions. On 8 January 1997, the United States Court

of Appeals for the Armed Forces granted review of the

decision of the Air Force Court of Criminal Appeals pur-

suant to 10 U.S.C. 867(a)(3). On 9 June 1997, the

Court of Appeals for the Armed Forces affirmed the lower

court’s decision. The court ruled that the petitioner failed

to satisfy her burden of showing that an obvious, substan-

tial error occurred and that the error had an unfairly prej-

udicial impact on her case. United States v. Hall, 46 M.J.

145, 147 (1997). :

REASON FOR GRANTING THE PETITION

“The general rule concerning collateral consequences of

a sentence is that ‘courts-martial [are] to concern them-

selves with the appropriateness of a particular sentence for

an accused and his offense, without regard to the collateral

administrative effects of the penalty under consideration.’ ”

United States v. Griffin, 25 M.J. 423, 424 (C.M.A. 1988),

cert. denied, 487 U.S. 1206 (1988); quoting United States

v. Quesinberry, 12 U.S.C.M.A. 609, 612, 31 C.M.R. 195,

198 (1962). While it is not necessarily error for a mili-

tary judge to answer court members’ questions on collat-

eral consequences of particular sentences—

“[mJilitary judges must tread carefully when respond-

ing to a court member’s question on such matters.

Ordinarily, the appropriate reply is simply to affirm

that ‘collateral consequences are not germane’ to the

sentencing process. Griffin, 25 M.J. at 424. With

the accused’s permission, though, the judge may ven-

ture further. However, that path is fraught with

hazards. The answer must be clear, despite the ex-

temporaneity of the occasion. /d. It must also be

accurate and complete. This is of particular concern,

since military judges are less likely to be fully in-

formed as to collateral consequences. Griffin, 25 M.J.

at 425 (concurring opinion by Everett, C.J.).

Finally, the potential for unnecessary confusion, re-

sulting from inundating the members with administra-

tive trivia, must be avoided. Quesinberry, 12

U.S.C.M.A. at 612, 31 C.M.R. at 198; see Mil. R.

Evid. 403.”

United States v. McLaren, 34 M.J. 926, 934 n.9

(A.F.C.M.R. 1992) (emphasis added), aff'd, 38 M.J.

112 (C.M.A. 1993), cert. denied, —— U.S. ——, 114

S.Ct. 1056 (1994).

Ignoring the appellate courts’ repeated pronouncements

that military judges should simply affirm that collateral

consequences are not germane to members’ sentencing

considerations, the military judge in the instant case pro-

ceeded sua sponte and without the permission of the

accused to provide the members with a substantive re-

sponse to their question on the collateral consequences of

a dismissal vis-a-vis petitioner’s dependent military benefits

by virtue of her marital status. When a military judge

contemplates providing the court with such information,

he must obtain permision from the defense before doing

so. The Court of Appeals for the Armed Forces has made

this requirement emphatically known when it stated (in

italics) that a military judge does not err in answering

members’ questions “if an accused agrees.” Griffin, supra.

In the instant case, after the military judge announced

the members’ question in open court, he answered it di-

rectly without first convening an Article 39(a) session or

even inquiring as to any objections by counsel. Rules for

Courts-Martial 801(c). Rather than follow the advice of

McLaren, supra, to “tread carefully” in responding to such

questions, the military judge answered the question. Only

thereafter did the military judge ask counsel whether they

had “any quarrel with that point of view.”

Even this question was not one asking whether defense

counsel thought the question should have been answered.

the question asked whether counsel disagreed with the sub-

stantive correctness of the information provided to the

members. That substance having, at that moment. been

apparently correct (and the “bell having already been

rung”), both counsel indicated that they had no “quarrel

with that point of view.”

What the judge didn’t say is just as devastating as what

he did. Having answered the substance of the members’

question, the military judge failed to instruct them that

this information was not to be taken into account in ad-

judging an appropriate sentence for petitioner. Cf. United

States v. McLaren, 34 M.J. at 933 (military judge an-

Swers question and then concludes by saying “you can’t

take that into consideration in adjudging what you believe

to be an appropriate sentence.) As the Air Force Court

noted in McLaren, supra, once a judge takes it upon him-

self to provide a collateral consequence instruction, his in-

struction thereon must be complete. Indeed, the McLaren

Court closed its discussion of this issue by concluding that

the judge’s explicit guidance to not consider any extrane-

Ous matters was appropriate and adequate to preclude any

improper consideration by the members. (emphasis

added). McLaren at 934.

As a practical matter, the information conveyed to the

members by the military judge was that if the members

felt petitioner deserving of her military retirement bene-

fits (i.e. medical care, use of the commissary and the base

exchange), they needn’t worry about a dismissal depriving

her of them because she would still have access to such

benefits as the dependent of a military retiree. The im-

propriety of considering a similar type of collateral infor-

mation was addresed in United States v. Cleckley, 8

U.S.C.M.A. 83, 23 C.M.R. 307 (1957). As the Court

stated, “. . . the authority of a fiscal agent of the Federal

Government acting under a separate law to pay or not to

pay the accused is a matter which cannot be tossed into

military law to befuddle sentences authorized by the

Code.” Cleckley at 309.

Further, petitioner’s entitlement to dependent military

benefits was/is contingent upon her remaining married

to her husband, a military retiree. Should they divorce,

she will lose the vestigial benefits the members apparently

intended her to retain following her almost twenty years

of exemplary service. As reflected in her unsworn state-

ment, there have been difficulties in the marriage, Record

92; although at the time of trial, counseling had improved

their relationship, Record 93, a divorce between the two

remains a distinct possibility. Should this occur, petitioner

will lose the military benefits the members obviously

thought her deserving of.

If the rule avoiding consideration of collateral conse-

quences without the consent of the accused had been fol-

lowed in the instant case, the members would have been

forced to decide whether petitioner was deserving of mili-

tary benefits based upon her service record and the of-

fense she committed. They would not have been allowed

to avoid this issue by defaulting to her status as a de-

pendent wife. As it were, the military judge effectively

allowed the members to decide whether to dismiss the

petitioner, based not upon her service record, but upon

that of her husband. This was plain error. See United

States v. Grady, 30 M.J. 911, 916-917 (A.C.M.R. 1990)

(military judge erred in apparently constructing a sen-

tence with sufficient time in confinement to ensure appel-

lant would be confined at Ft. Leavenworth based upon

the collateral matter of drug treatment programs available

there), pet. denied, 32 M.J. 197 (C.M.A. 1990).

Plain error is an obvious and substantial error having

an unfair prejudicial impact on a jury’s deliberations.

United States v. Fisher, 21 M.J. 327, 328-29 (C.M.A.

1986). In the instant case, the military judge completely

ignored extant precedent stating that members’ questions

involving collateral consequences are generally not to be

answered; if they are, permisison from the defense must

be obtained first. Failing entirely to address this require-

ment of obtaining the accused’s consent, the Air Force

Court found no plain error because the military judge’s

response was substantively correct and defense counsel

requested no further instruction. Though the Court of

Appeals for the Armed Forces recently declined to find

plain error after a defense counsel failed to object to a

proposed sentencing instruction on vested Veterans Affairs

benefits, the defense counsel in that case had the oppor-

tunity to object before the instruction was given to the

members. United States v. McElroy, 40 M.J. 368

(C.M.A. 1994). Further, the McElroy court again af-

firmed the general rule that instructions on collateral ad-

ministrative consequences should be avoided. McElroy

at 372.

The Air Force Court erred in examining the accuracy

(or inaccuracy) of the Judge’s pronouncement of the col-

lateral information as the Court’s approach overlooked

the real feature at issue: the information is collateral and,

by definition, irrelevant (and therefore inadmissible, Mil.

R. Evid. 402). Members are generally precluded from

considering collateral consequences because they are not

a germane consideration to the issues at hand, not because

the information can be accurately presented to the court-

martial. Whether petitioner might in some other way in-

directly qualify for military benefits that a dismisal would

deprive her of was not an appropriate concern for the

panel as they were tasked with deciding an appropriate

punishment for this accused and her offense.

Against the black and white background of Griffin, the

error of the military judge is plain. The military judge

pronounced in absolute terms that the petitioner would be

able to use BX, Commissary benefits, etc. though he failed

to account for possible action by other authorities to deny

petitioner access to such benefits. Further, the error is sub-

Stantial in that it led to an improper foundation for deci-

sion of the only issue in the case: petitioner’s sentence.

The unfair, prejudicial impact on the members’ delibera-

tions is evident from their termination of an outstanding

career spanning almost tweny years, based not upon the

merits of that career, but upon the retirement eligibility of

another to whom petitioner may not ultimately remain

married.

CONCLUSION

The military judge committed plain error that had an

unfairly prejudicial impact on her case. Despite a rule

specifying that a courts-martial panel not be informed of

collateral consequences associated with adjudged sen-

tences, the military judge told the panel in the case sub

judice that petitioner’s conviction and sentence would not

affect any benefits she would be entitled to as a dependent

of a retired military member. Only after the judge violated

this long-standing prohibition on discussing collateral con-

sequences did he ask counsel if they “had any quarrel with

that point of view.” Though neither counsel objected, the

information was already before the panel, having issued

forth from the military judge himself. The panel was re-

quired to concern itself “with the appropriateness of a

particular sentence for an accused and his offense, with-

out regard to the collateral administrative effects of the

penalty under consideration.” In giving the panel imper-

missible information, the military judge committed an ob-

vious and substantial error. The record of trial demon-

strates the resulting unfair prejudice to the petitioner from

this plain error. Having come within four months of being

eligible to retire from the United States Air Force, peti-

tioner put on a strong sentencing case. The panel then en-

tered its closed session deliberations, but after one hour,

returned to open court to ask the military judge what im-

pact a dismissal would have upon petitioner’s benefits as

a dependent of a retiree. After hearing the military judge’s

answer, the panel resumed their deliberations, reaching a

sentence in twenty-nine minutes—a dismissal from the Air

Force. The nature of the deliberations and the sentence

announced indicate the petitioner has met her burden of

showing that an obvious, substantial error took place in

her August 1994 trial and that the error of the military

judge had an unfairly prejudicial impact on her case.

The petition for a writ of certiorari should be granted.