Opposition Brief — Wiechmannmann v. United States (No. 09-418)

Supreme Court, U.S.

FILED

‘ DEC 2 4 2009

Kr OFFICE OF THE CLERK

No. 09-418

Jn the Supreme Court of the Gnited States

JEFF R. WIECHMANN, PETITIONER

7D.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

BRIEF FOR THE UNITED STATES IN OPPOSITION

ISLENA KAGAN

Solicitor General

Counsel of Record

LANNY A. BREUER

Assistant Attorney General

THOMAS E.. BOOTH

Attorney

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether the military violated petitioner’s right to

counsel under the Sixth Amendment by refusing to rec-

ognize one of petitioner’s two appointed military counsel

at various pretrial stages before petitioner entered a

guilty plea with the assistance of both counsel to the

charges at issue.

(I)

TABLE OF CONTENTS

Page

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pT ENF EES E TT CCP ECT EC TOR Sere Tree es ]

NS 0h Genk sata eee eae Re ea eee 1

EE os k's eau Lowes keeeen Prey enn ns 7

SEE nc. o 5b ip 5 ONS 4s BS ERR Re eee ea eS 13

TABLE OF AUTHORITIES

Cases:

Anizona v. Fulminante, 499 U.S. 279 (1991) ........... 10

Bell v. Watkins, 692 F.2d 999 (5th Cir. 1982),

cert. denied, 464 U.S. 843 (1983) .................... 9

Chapman v. California, 386 U.S. 18 (1967) .......... 6, 11

Coleman v. Alabama, 399 U.S. 1 (1970) .......... 9,10, 11

Ditch v. Grace, 479 F.3d 249 (3d Cir.), cert. denied,

Eee SP ED ks 6k co ore dcw eyes siwceneivevsx 11

Fields v. Attorney Gen., 956 F.2d 1290 (4th Cir.),

cert. denied, 506 U.S. 885 (1992) ...... cc cece ee ee ees 8

Kotteakos v. United States, 328 U.S. 750 (1946) ......... 7

McMann v. Richardson, 397 U.S. 759 (1970) ........... 8

Montejo v. Louisiana, 129 S. Ct. 2079 (2009) ......... 8,9

Neder v. United States, 527 U.S. 1 (1999) .............. i0

Pope v. Illinois, 481 U.S. 497 (1967)... cee cc en es 12

Riley v. Taylor, 277 F.3d 261 (3d Cir. 2001) ............ 9

Satterwhite v. Texas, 486 U.S. 249 (1988) ........... 10, 11

Tollett v. Henderson, 411 U.S. 258 (1973) ............... 7

Trahan v. Estelle, 544 F.2d 1305 (5th Cir. 1977) ......... 8

(III)

Cases—Continued: Page

United States v. Basham, 561 F.3d 302 (4th Cir.

2009), petition for cert. pending, No. 09-617

eu ce va sdb ends one enees 9

Unated States v. Brooks, 66 M.J. 221 (C.A.A.F. 2008) .... 6

United States v. Casseus, 282 F.3d 253 (3d Cir.),

cert. denied, 537 U.S. 852 (2002) ..........cceecceees 9

United States v. Cronic, 466 U.S. 648 (1984) ......... 9, 10

United States v. Garcia, 59 M.J. 447 (C.A.A.F’. 2004) ..... 3

United States v. Gonzalez-Lopez, 548 U.S. 140

en are Ne gee ele se g's 5, 9, 10

United States v. Lott, 433 F.3d 718 (10th Cir.),

cert. denied, 549 U.S. 851 (2006) ................... 11

United States v. Owen, 407 F.3d 222 (4th Cir. 2005),

cert. denied, 546 U.S. 1098 (2006) .................. 11

United States v. Samuels, 27 C.M.R. 280

eR I OE PREG ce a 3

United States v. Walker, 57 M.J. 174 (C.A.A.F. 2002) .... 7

United States v. Williams, 544 F.2d 1215 (4th Cir.

eee ee an Re ae 6 tak epee 4 4s 9

Washington v. Recuenco, 548 U.S. 212 (2006) .......... 10

Williams v. Jones, 571 F.3d 1086 (10th Cir. 2009) ....... 9

Constitution, statutes and rules:

Re I oo ck ceccnnndengewnsans passim

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

801 et seq.:

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PG ee EE hows hove caw issn eeeetes ys 2,5

Ave. THOR TOUS. BAD) occ ce ncccsvens 2

V

Statutes and rules—Continued: Page

pa OEE yk. . a 3, 5, 6, 12

PT, By BO A SO) oe ciccesccsvcusseeses 2

Art. 38(b)(6), 10 U.S.C. 838(b)(6) .............666- 2

Pe Foo sos ko ve ease vee naws iz

Pe Re as ne ccs co seewcacdcbs suas 1,2

PN le sR nc 6 vcd nea cicsecscecebeds ee

Pe, Be A ee PE kok ne ccc cv cvcevewcnevens 2

ey al da dn on 4 hiv Kee oh ea ag 9

oh a ce ee a waa unas ees 7

Courts-Martial R.:

Rule 405QG)(2)(H) ........ eres re aie hee eae te ee 3

I 800 2d 2 oe, hs ho Sas ce adage ares 3

In the Supreme Court of the Anited States

No. 09-418

JEFF R. WIECHMANN, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the United States Court of Appeals

for the Armed Forces (Pet. App. 1a-23a) is reported at

67 M.J. 456.

JURISDICTION

The judgment of the court of appeals was entered on

July 9, 2009. The petition for a writ of certiorari was

filed on October 7, 2009. The jurisdiction of this Court

is invoked under 28 U.S.C. 1259(3).

STATEMENT

Petitioner, a lieutenant colonel in the United States

Marine Corps, pleaded guilty at a general court-martial

to failing to obey a lawful order, making a false official

statement, conduct unbecoming an officer, adultery, and

obstructing justice, in violation of Articles 92, 107, 133

(1)

2

and 134 of the Uniform Code of Military Justice

(UCMJ), 10 U.S.C. 892, 907, 933 and 934. Pet. App. 2a.

The court-martial, composed of a military judge, sen-

tenced him to dismissal and confinement for 90 days.

Ibid. Pursuant to a plea agreement, the convening au-

thority suspended all punishment for 12 months from

the date of trial. The United States Navy-Marine Corps

Court of Military Appeals (N-MCCA) affirmed. No.

NMCCA 200700593, 2008 WL 3540244 (N-M. Ct. Crim.

App. Aug. 14, 2008). The United States Court of Ap-

peals for the Armed Forces (CAAF) affirmed. Pet. App.

la-23a.

1. Article 27(a)(1), 10 U.S.C. 827(a)(1), provides that

trial and defense counsel will be detailed for each gen-

eral or special court-martial and that the Secretaries of

the military departments will prescribe regulations gov-

erning the detailing of counsel for military defendants.

Article 38(b), 10 U.S.C. 838(b), provides that a defendant

may be represented by military counsel detailed under

Article 27, by military counsel of his own selection if that

counsel is reasonably available as determined by regula-

tions, or by civilian counsel! at his own expense. Article

38(b)(6), 10 U.S.C. 838(b)(6), provides that a defendant

is not entitled to be represented by more than one mili-

tary counsel, but competent military authority has the

discretion to detail an additional military counsel for the

defendant.

2. a. Petitioner committed adultery with the wife of

a non-commissioned officer. He then lied to military

investigators to conceal the affair and encouraged the

woman to do likewise. Gov’t CAAF Br. 3.

b. In June 2006, Captain Snow, the senior defense

counsel at Marine Corps Base Hawaii, learned that

charges had been preferred against petitioner and that

3

he would face an investigation and a hearing under Arti-

cle 32, 10 U.S.C. 832.' Snow detailed himself as defense

counsel for petitioner, but requested assistance because

he had just one month of experience as defense counsel.

The Chief Defense Counsel detailed Lieutenant Colonel

Shelburne, a reservist, to serve as petitioner’s defense

counsel, thereby giving petitioner two appointed mili-

tary defense counsel at government expense. Pet. App.

4a-5a.

The convening authority denied a defense request to

fund Shelburne’s assignment on the ground that there

was no authority to detail him as defense counsel for

petitioner. Shelburne asked the convening authority to

continue the Article 32 hearing pending a resolution of

the funding issue, but the convening authority denied

that request. Pet. App. 5a.

On July 24, 2006, Shelburne appeared at the Article

32 hearing, objected to the proceeding, and moved for a

continuance because he did not have sufficient time to

prepare for it. The Article 32 investigating officer de-

' Article 32, 10 U.S.C, 832, requires that no charge may be referred

to a general court-martial until a thorough and impartial investigation

has been made. The investigation includes a hearing at which the ac-

cused is entitled to be represented by counsel and has the right to con-

front adverse witnesses and to present evidence in mitigation. The Ar-

ticle 32 investigating officer has to determine whether “reasonable

grounds exist to believe that the accused committed the offenses al-

leged.” Courts-Martial 405 R. ()(2)(H) (R.C.M.). An Article 32 investi-

gation is designed “to inquire into the truth of the matters set forth in

the charges to review, the form of the charges, and to secure informa-

tion to determine what disposition should be made of the case.” See

R.C.M. 405 discussion. It is also “a discovery proceeding for the ac-

cused and stands as a bulwark against baseless charges.” United

States v. Garcia, 59 M.J. 447, 450-451 (C.A.A.F. 2004) (quoting United

States v. Samuels, 27 C.M.R. 280, 286 (C.M.A. 1959)).

4

nied the motions but permitted Shelburne to represent

petitioner at the hearing. Afterwards, Shelburne ob-

jected to the denial of the continuance and to the admis-

sion of certain evidence at the hearing. Pet. App. 5a.

Shelburne and Snow asked to meet with the conven-

ing authority to discuss plea negotiations, which in-

cluded an offer to dispose of the case under the non-

judicial punishment provisions of Article 15, 10 U.S.C.

815. The convening authority declined to meet with the

attorneys and refused to accept the written plea pro-

posal because Shelburne’s name was on it. The conven-

ing authority eventually accepted the plea proposal pa-

perwork for consideration after Snow removed Shel-

burne’s name from it. Pet. App. 5a-6a.

The convening authority denied another request to

meet with Shelburne, but conducted a meeting with

Snow alone to discuss petitioner’s plea proposal. Subse-

quently, the convening authority effectively rejected pe-

titioner’s plea proposal by referring the case to a gen-

eral court-martial. Pet. App. 6a.

After referral, the military judge held an informal

scheduling conference by telephone and he refused to

allow Shelburne to participate. Snow filed a motion to

have Shelburne recognized as defense counsel. The mo-

tion was litigated in front of a different military judge,

who granted the motion and ruled that Shelburne had

been properly detailed and that Shelburne’s detail would

be funded by Headquarters, Marine Corps rather than

the convening authority. The new military judge also

denied petitioner’s motions for dismissal of the charges

for unlawful command influence and for a new Article 32

hearing, Pet. App. 6a-7a.

On November 27, 2006, the convening authority met

with Shelburne to discuss a plea agreement. On Janu-

5

ary 8, 2007, petitioner entered into a plea agreement

with the government. As part of the plea, petitioner

expressly waived any defect in the Article 32 investiga-

tion and agreed that the charges were properly referred

to trial. Pet. App. 7a-8a. Petitioner then pleaded guilty

at the court-martial, where he was represented by Shel-

burne. Petitioner did not raise a Sixth Amendment

claim there. /d. at 8a-9a.

On appeal, the NMCCA affirmed. Among others, it

rejected petitioner’s claims that the convening author-

ity’s pretrial interference with Shelburne violated peti-

tioner’s right to due process and Sixth Amendment right

to counsel. 2008 WL 3540244, at *2-*3.

The CAAF granted review on the sole question of

whether petitioner was denied his Sixth Amendment

right to counsel and then affirmed the N-MCCA. The

CAAF held first that the convening authority violated

petitioner’s Article 27 rights by refusing to recognize

Shelburne as petitioner’s counsel! until the military

judge ruled that Shelburne had been properly detailed

as petitioner’s counsel. Pet. App. lla-138a. The CAAF

found that the convening authority’s action had harmed

petitioner because Shelburne did not have an opportu-

nity to prepare for the Article 32 hearing, he did not

participate in the earlier plea negotiations, and he did

not participate in a pretrial scheduling conference. Pet.

App. 13a-15a.

The CAAF then considered whether the Article 27

violation violated petitioner’s Sixth Amendment right to

counsel and whether the error was structural. Pet. App.

15a. The CAAF stated that a structural crror occurs

when a court has difficulty assessing the impact of

the error or the error is so fundamental so as to make

harmlessness irrelevant. /bid. (citing United States v.

6

Gonzalez-Lopez, 548 U.S. 140, 149 n.4 (2006), and Uni-

ted States v. Brooks, 66 M.J. 221, 224 (C.A.A.F. 2008)).

The CAAF held that the error was not structural. It

stressed that petitioner had the services of Snow

throughout the proceedings, that petitioner agreed to

waive any defect in the Article 32 investigation in his

plea agreement, and that Shelburne ultimately repre-

sented petitioner during the later plea negotiations and

at trial despite his exclusion from the earlier plea nego-

tiations. The court concluded that the convening author-

ity’s actions were capable of harmless-error assessment,

and that they were not so fundamental as to make

harmless-error analysis irrelevant. Pet. App. 15a-16a.

The CAAF then assumed, without deciding (Pet.

App. 17a), that a Sixth Amendment violation had oc-

curred, but found that the error was harmless beyond a

reasonable doubt. /d. at 17a-18a (citing Chapman v.

Calrfornia, 386 U.S. 18, 24 (1967)). The CAAF empha-

sized that Shelburne represented petitioner throughout

the trial and post-trial proceedings and that he negoti-

ated a plea agreement for petitioner despite his exclu-

sion from the initial negotiation sessions. Further, the

CAAF stated, petitioner had shown no harm from

Shelburne’s exclusion from the initial scheduling confer-

ence, and he did not claim that his guilty plea was invol-

untary or otherwise deficient. Jd. at 16a-18a.

Judge Ryan concurred in the result. She agreed that

the convening authority’s actions violated petitioner’s

rights under military law and that petitioner was not

prejudiced by the error, but she disagreed with the ma-

jority’s assumption that there was a constitutional error.

Instead, she would have held that no Sixth Amendment

error occurred because petitioner was represented by

7

one competent counsel at all times despite the interfer-

ence with Shelburne. Pet. App. 18a-23a.

ARGUMENT

Petitioner contends (Pet. 3-15) that the military’s

interference with Sheiburne’s representation during

various pretrial stages of the prosecution constituted a

structural violation of petitioner’s Sixth Amendment

right to counsel that requires automatic reversal of his

conviction.” There is no merit to that claim, and it does

not warrant further review.

1. As an initial matter, petitioner’s Sixth Amend-

ment claim is foreclosed by his unconditional guilty plea.

Under this Court’s decision in Tollett v. Henderson, 411

U.S. 258, 267 (1973), a guilty plea constitutes “a break in

the chain of events which has preceded it in the criminal

process.” Accordingly, a defendant who pleads guilty

“may not thereafter raise independent claims relating to

the deprivation of constitutional rights that occurred

prior to the entry of the guilty plea.” /bid. Rather, a

defendant seeking to raise such “antecedent constitu-

tional violations,” id. at 266, is limited to attacks on the

* The petitioner (Pet. 3) raises only a Sixth Amendment claim, and

he does not assert any independent violation of the UCMJ. Nor could

petitioner raise a statutory claim. 28 U.S.C. 1259 limits this Court’s

review to “[dJecisions” of the CAAF. The CAAF granted review only

on petitioner’s Sixth Amendment claim (Pet. App. 2a), and decided that

issue only.

In any event, consideration of the independent violation of the UCMJ

would yield the same result. The test for non-constitutional error is

“whether the error itself had substantial influence’ on the findings.”

See United States v. Walker, 57 M.J. 174, 178 (C.A.A.F. 2002) (quoting

Kotteakos v. United States, 328 U.S. 750, 765 (1946)). That test would

be easily met given that the more stringent harmless error test for con-

stitutional errors was met in this case.

8

knowing, voluntary, and intelligent character of the

guilty plea, and when a plea is counseled, he must ordi-

narily establish that the advice received from counsel

was not “within the range of competence demanded of

attorneys in criminal cases,” McMann v. Richardson,

397 U.S. 759, 771 (1970). Because petitioner does not

allege ineffective assistance of counsel in connection

with his guilty plea, that plea bars any effort to chal-

lenge his claim of an antecedent violation in the depriva-

tion of counsel at earlier proceedings. See Fields v. At-

torney Gen., 956 F.2d 1290, 1296 (4th Cir.) (claim of de-

nial of counsel at a critical stage was barred by the defen-

dant’s counseled plea of guilty; “[HJis claim concerns an

alleged constitutional! deprivation that occurred prior to

Fields’ guilty plea and is unrelated to it. Todlett there-

fore bars this claim.”), cert. denied 506 U.S. 885 (1992);

Trahan v. Estelle, 544 F.2d 1305, 1309 (5th Cir. 1977)

(“{S]Jince Trahan pleaded guilty with at least some ad-

vice from court appointed counsel, any question with

reference to his uncounselled meeting with the district

attorney, two or three days previously, was not open to

attack.”).

2. In any event, petitioner’s claim lacks merit even

if the Court were to look past the effect of the guilty

plea. First, the CAAF majority’s assumption that a

Sixth Amendment violation occurred was unwarranted;

no Sixth Amendment violation occurred in this case. A

defendant’s right to counsel under the Sixth Amendment

includes the right to have counsel present at all critical

stages of the criminal proceedings. Montejo v. Louist-

ana, 129 S. Ct. 2079, 2085 (2009); United States v.

9

Cronic, 466 U.S. 648, 659 (1984).° The right to counsel

also includes a right to counsel of choice, but only for

those defendants who retain their own counsel. See

United States v. Gonzalez-Lopez, 548 U.S. 140 (2006).

A defendant who has counsel appointed for him does not

have a right to counsel of choice. See zd. at 151; Mon-

tejo, 129 S. Ct. at 2084; United States v. Basham, 561

F.3d 302, 324 (4th Cir. 2009), petition for cert. pending,

No. 09-617 (filed Nov. 23, 2009). Further, the constitu-

tional right to appointed counsel is limited to one attor-

ney; a defendant has no constitutional right to the ap-

pointment of a second or an additional attorney for the

accused. See, e.g., Riley v. Taylor, 277 F.3d 261, 273 n.1,

306 (8d Cir. 2001); Bell v. Watkzns, 692 F.2d 999, 1008-

1009 (5th Cir. 1982), cert. denied, 464 U.S. 8438 (1983). A

federal statute may provide for the appointment of an

additional counsel for the accused. See 18 U.S.C. 3005

(providing for the appointment of an additional counsel

in a capital case). But when an accused is denied his

statutory right to additional counsel, that is only a statu-

tory violation, not a Sixth Amendment violation. United

States v. Casseus, 282 F.3d 253, 256 (3d Cir.) (violation

of Section 3005), cert. denied, 537 U.S. 852 (2002); Uni-

ted States v. Williams, 544 F.2d 1215, 1218 (4th Cir.

1976) (same).

Here, petitioner was represented by appointed coun-

sel Snow in addition to Shelburne, and petitioner does

not claim either that the military violated his right to

Snow’s services, or that Snow rendered ineffective assis-

* The Court may assume that plea negotiations and the preliminary

hearings in this case constitute “critical stages” for right-to-counsel

purposes. See Coleman v. Alabama, 399 U.S. 1, 9-10 (1970) (prelimi-

nary hearing); Willzams v. Jones, 571 F.3d 1086, 1090-1091 (10th Cir.

2009) (plea negotiations).

10

tance of counsel.’ Accordingly, petitioner was afforded

his Sixth Amendment right to counsel at all critical

stages. ‘Therefore, the military’s violation of petitioner’s

right to additional counsel Shelburne under military law

was irrelevant for Sixth Amendment purposes.

Even if there were a Sixth Amendment violation in

this ease, the error was harmless. First, no structural

error occurred here. A structural error is a “defect af-

fecting the framework within which the trial proceeds,

rather than simply an error in the trial process itself.”

Arizona v. Fulminante, 499 U.S. 279, 310 (1991). When

properly preserved, a structural error is prejudicial per

se and requires reversal of the defendant’s conviction.

Washington v. Recuenco, 548 U.S. 212, 218-219 (2006).

A structural error is rare; most constitutional errors are

subject to harmless error review. See ibzd.; Neder v.

United States, 527 U.S. 1, 8 (1999).

A violation of a defendant’s Sixth Amendment right

to counsel is a structural error if the error “affected—

and contaminated—the entire criminal proceeding.”

Satterwhite v. Texas, 486 U.S. 249, 257 (1988). In addi-

tion, a complete denial of the right to retained counsel of

choice at trial! is prejudicial per se and requires reversal

of the defendant’s conviction. Gonzalez-Lopez, 548 U.S.

at 148-151. But a violation of the right to counsel at pre-

trial proceedings alone does not affect the entire crimi-

nal trial, so an error in that context is a non-structural

one that is tested for harmlessness. See, e.g., Coleman

v. Alabama, 399 U.S. 1, 10-11 (1970) (preliminary hear-

* Petitioner notes (Pet. 3, 12-13) that Snow was relatively inexperi-

enced compared to Shelburne, but Snow’s lack of experience would not

have justified a presumption of ineffectiveness under the Sixth Amend-

ment. See Cronic, 466 U.S. at 665. Nothing in the record would sup-

port a claim that Snow was ineffective in this case.

1]

ing); Ditch v. Grace, 479 F.3d 249, 253-255 (3d Cir.) (pre-

liminary hearing), cert. denied, 552 U.S. 949 (2007);

United States v. Lott, 483 F.3d 718, 722-724 (10th Cir.)

(evidentiary hearing), cert. denied, 549 U.S. 851 (2006);

United States v. Owen, 407 F.3d 222, 226-229 (4th Cir.

2005) (arraignment), cert. denied, 546 U.S. 1098 (2006).

Because the errors alleged in this case occurred only at

pretrial stages of petitioner’s prosecution and did not

affect the entire criminal proceeding, they were non-

structural errors that the CAAF correctly tested for

harmlessness.”

A constitutional error is harmless if the government

establishes beyond a reasonable doubt that the error did

not contribute to the verdict obtained. Satterwhite, 486

U.S. at 256; Chapman v. California, 386 U.S. 18, 24

(1967). In evaluating harmlessness, courts consider

many factors, including whether, and to what extent, the

government obtained any evidence against the defen-

dant at the proceeding in which counsel was denied,

Coleman, 399 U.S. at 10, the strength of the govern-

ment’s untainted evidence, Chapman, 386 U.S. at 25-26;

Ditch, 479 F.3d at 255-257, and whether counsel had

sufficient time to prepare for trial. Owen, 407 F.3d at

229.

” Petitioner’s reliance (Pet. 10-11) on Gonzalez-Lopez is misplaced

for two reasons. First, Gonzalez-Lopez’s holding that a denial of the

right to counsel of choice is not subject to harmless-error review does

not apply here because petitioner was represented by appointed coun-

sel, not retained counsel. Second, in Gonzalez-Lopez, the trial court

disqualified the defendant’s retained counsel before trial and that coun-

sel was therefore absent from the trial and sentencing proceedings. In

marked contrast, both counsel represented petitioner during the later

pretrial stages, the plea negotiations, and the entry of the plea.

12

Here, the alleged violations that occurred at the pre-

trial stages of the proceedings had no effect on peti-

tioner’s subsequent decision to plead guilty. The denial

of petitioner’s motion for a continuance of the Article 32

hearing to allow Shelburne time to prepare was harm-

less because petitioner ultimately agreed that the case

was properly referred to trial and he expressly waived

any defect in the Article 32 investigation as part of his

plea agreement. Shelburne’s exclusion from an initial

pretrial scheduling session was an insubstantial error

that did not affect the outcome. Further, the convening

authority’s initial refusals to enter into plea negotiations

with Shelburne was cured when he subsequently did

negotiate with Shelburne, which led to the plea agree-

ment between the convening authority and petitioner.

Petitioner has not claimed that his guilty plea was invol-

untary or that Shelburne had insufficient time to negoti-

ate a favorable plea for him. Indeed, petitioner raised

no Sixth Amendment claim at the court-martial where

he pleaded guilty. Finally, petitioner was represented

by Snow at all critical stages of the prosecution.°

" Petitioner’s fact-bound (Pet. 11-14) disagreement with the CAAF’s

harmless-error ruling warrants no further review. The CAAF express-

ly applied the Chapman harmless-error test (Pet. App. 17a), and it is

primarily the task of a court of appeals, not this Court, to conduct

harmless-error review. See, e.g., Pope v. Illinois, 481 U.S. 497, 504

(1987) (noting that this Court conducts harmless-error review “spar-

ingly”).

13

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELENA KAGAN

Solicitor General

LANNY A. BREUER

Assistant Attorney General

THOMAS E. BOOTH

Attorney

DECEMBER 2009