Petition for Writ of Certiorari — Ryan v. United States (No. 08-422)

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Supreme US. ’

(3) ) 08-422 JUL 242008

‘_—— ___ OFFICE OF THE CLERK

IN THE

Supreme Court of the Anited States

JASON M. RYAN,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Armed Forces

PETITION FOR A WRIT OF CERTIORARI

DARRIN W.S. MACKINNON*

Lieutenant, JAGC

U.S. Navy Reserve

*Counsel of Record

14232 Catbird Drive

Gainesville, VA 20155

(703) 930-5161

Counsel for Petitioner

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Question Presented:

Whether a military defense counsel’s refusal to honor

a military servicemember’s request to appeal his case

to the Supreme Court effectively denies him that

right under the UCMUJ, and, whether that refusal to

appeal constitutes ineffective assistance of counsel?

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TABLE OF CONTENTS

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CONSTITUTIONAL AND STATUTORY

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I. THE UCMJ AND MILITARY REGULATIONS REQUIRE

MILITARY DEFENSE COUNSEL TO # REPRESENT

APPELLANTS BEFORE THIS COURT..............0ccceeseeeeee 8)

Il. A DEFENSE ATTORNEY HAS AN ETHICAL AND

PROFESSIONAL OBLIGATION TO FILE A PETITION WITH

THIS COURT IF THE CLIENT MAKES THE REQUEST....12

Ill. REASONABLE PERFORMANCE INVOLVES ADVANCING

THE CLIENT’S INTERESTS OR COMMUNICATING WITH

THE CLIENT TO EXPLAIN WHY THE LAWYER REFUSES TO

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TABLE OF AUTHORITIES

United States Constitution

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Supreme Court of the United States

Ashcroft v. Free Speech Coalition, 535 U.S. 234

Anders v. California, 386 U.S. 738 (1967)............ 17

Clinton v. Goldsmith, 526 U.S. 529 (1999)............... 8

Davis v. United States, 512 U.S. 452 (1994)........... 13

Edmond v. United States, 520 U.S. 651 (1997)....... 13

Edwards v. Arizona, 451 U.S. 477 (1981)............... 13

Evitts v. Lucey, 469 U.S. 387 (1985)............ceseeeeees i7

Goodson v. United States, 471 U.S. 1063 (1988)...... 15

Honig v. Doe, 484 U.S. 305 (1988) ............ cece cece een 9

Kennedy v. Toisiatana 008)... .......cccccccosccccscsces 20

Knowles v. Mirzayance, 127 S. Ct. 1247 (2007) ........ 9

Loving v. United States, 517 U.S. 748 (1996)......... 13

Miranda v. Arizona, 384 U.S. 436 (1966)............... 13

O’Connor v. United States, 535 U.S. 1014 (2002)....15

Parker v. Levy, 417 U.S. 733 (1974) ............0000 17, 21

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Ryder v. United States, 515 U.S. 177 (1995)........... 13

Smith v. Illinois, 469 U.S. 91 (1984).................008- 15

Solorio v. United States, 483 U.S. 435 (1987)......... 13

Strickland v. Washington, 466 U.S. 688 (1984)....... 16

United States v. Scheffer, 523 U.S. 303 (1998)........ 13

Weiss v. United States, 510 U.S. 163 (1994)........... 13

Wiggins v. Smith, 539 U.S. 510 (2008)................. 16

Military Cases

Lovett v. United States,64 M.J.232(C.A.A.F. 2006).10

& United States v. Baier, 60 M.J. 382 (C.A.A.F. 2005).....5

4 _ United States v. Usry, 9 M.J. 701 (N.C.M.R. 1980)......6

- United States:v. Goodson, 18 M.J. 243(C.M.A. 1984)..14

United States v. Goodson,22 M.J.947(A.C.M.R. 1986)15

United States v. O'Connor, No. ACM 33671, 2003 CCA

LEXIS 251 (A.F. Ct. Crim. App. Oct. 29, 2003), aff'd, 60

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Statutes

q 10 U.S.C. § 870(c), Art. 70(c), UCMJ......... 2,10,12,21 |

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Miscellany

ABA Ethics Opinion 280 (1949)..............0 ceseceeeceees 8

ABA Standards, Defense Function (3rd Ed. 1993)..16

Professor Schlueter, Hodson lecture, “Military

Justice for the 1990’s — A Legal System Looking for

Respect.” 133 Mil. L. Rev. 1 (1991) ...................6- 20

The Manual of the Judge Advocate General, JAG

Instruction 5800.7E, 20June 2007,Section 0164(e)..10

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PETITION FOR A WRIT OF CERTIORARI

Corporal Jason M. Ryan, a member of the United

States Marine Corps, respectfully petitions for a writ

of certiorari to review the judgment of the United

States Court of Appeals for the Armed Forces.

OPINIONS BELCW

The opinion of the Court of Appeals for the Armed

Forces (CAAF) is reprinted in the Appendix A, at 1A.

The final Ryan opinion authored by the Navy-Marine

Corps Court of Criminal Appeals (NMCCA), Ryan II,

is reprinted at Appendix B, at 2a-5a. The CAAF’s

remand of the Ryan case is reprinted at Appendix C,

at 6a-7a. The first Ryan opinion authored by the

NMCCA, Ryan I, is reprinted at 8a-22a.

JURISDICTION

This Court’s jurisdiction is invoked pursuant to

28 U.S.C. § 1259(3), which permits “review of cases

in which the Court of Appeals for the Armed Forces

granted a petition for review.” The CAAF granted

review of Corporal Ryan’s petition for review on April

25, 2008.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Article I, § 8, clause 14 of the United States

Constitution vests with Congress the authority “To

make Rules for the Government and Regulation of

the land and naval Forces.”

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Article 70(c), UCMJ, states: “Appellate defense

counsel shall represent the accused before the Court

of Military Review, the Court of Military Appeals, or

the Supreme Court--(1) when requested by the

accused;...”

STATEMENT OF THE CASE

Corporal Ryan’s case represents two important

principles: first, members of the Armed Forces

possess a statutory right to petition this Court

through appointed counsel; and _ second, a

servicemember should not bear the sentence and

lifelong stigma of a bad-conduct discharge when a

reviewing court mischaracterizes his misconduct.

Corporal Ryan therefore asks this Court for two

related forms of relief: first, this Court should find

that members of the Armed Forces have a right to

petition the Supreme Court through appointed

counsel; and second, this Court should reverse and

remand Corporal Ryan’s sentence for a full and fair

sentence rehearing.

A. Facts

The case of Corporal Ryan case reads like an

excerpt from the screenplay of A Few Good Men.

Corporal Ryan was a squad leader for the Marine

Security Force at Guantanamo. Corporal Ryan was

convicted of maltreating his subordinates in various

ways — similar to the “Code Red” lore from the silver

screen.

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Unlike the accused in most military court-

martials, Corporal Ryan had a stellar Marine Corps

record prior to the incidents of “hazing” for which he

was convicted.

After Corporal Ryan completed boot camp, he

went on to the School of Infantry where he went

through specialized weapons training and graduated

first in his class. With Corporal Ryan’s sincere

dedication and hard work, he was awarded

Meritorious Lance Corporal. Living up to the

expectations of this promotion, Corporal Ryan went

through various training and other schools while in

the Fleet. While serving as a member of the 26th

MEU SOC, Corporal Ryan was awarded an early

promotion to Corporal. Upon returning to Camp

Lejeune, Corporal Ryan once again undertook

extensive infantry and leadership training in

preparation for his deployment to Cuba.

Corporal Ryan was put on non-commissioned

officer (NCQ) of the quarter boards, meritorious

sergeant boards and was highly recommended for re-

enlistment into the Marine Corps.

Corporal Ryan was the only non-commissioned

officer (NCO) that took his Marines on patrols.

While conducting such training missions, Corporal

Ryan tried to teach his subordinate Marines what

life was like in a combat zone. Corporal Ryan

wanted his Marines to become closer than brothers

and to understand that they needed to count on each

other no matter what adversity they faced.

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In the process of training his Marine subor-

dinates, Corporal Ryan “hazed” them by ordering his

Marines, for example, to dance.

Corporal Ryan did not “haze” his subordinate

Marines in a manner any different than was done to

him or his peers when they were new Marines.

Corporal Ryan “hazed” subordinate Marines along

with three other corporals who had all experienced

the same treatment. The “training” was not

designed to hurt junior Marines, but was designed to

make them form a closer unit. In fact, two junior

Marines in Corporal Ryan’s squad did not say that he

“hazed” them. These junior Marines agreed that

Corporal Ryan was only trying to train them.

In another one of these “hazing” incidents,

Corporal Ryan pointed a 9 mm pistol at the chest of

one subordinate. This weapons-pointing incident

occurred while Corporal Ryan conducted weapons

training with another Marine leader. The other

Marine, Chris VanVlet, and Corporal Ryan, were

training subordinate Marines how to take down,

clean and put back together the 9 mm service pistol.

In this case, after the junior Marine had put the

weapon back together, Corporal Ryan pointed the 9

mm pistol at the subordinate when the weapon was

cleared and the slide was locked in the rear position.

Unlike civilians, Marines frequently — point

weapons at each other. Pointing weapons at one

another is sometimes part of Marine training. When

Marines conduct mock patrols, raids or firefights,

pointing weapons at one other is common.

As a result of these “hazing” incidents, Corporal

Ryan was sentenced to serve time in the brig, lost all

of his rank, lost all his pay, and was awarded a bad-

conduct discharge. Two of the other Marines that

“hazed” subordinates along with Corporal Ryan

received only a loss in rank and pay. They finished

their Marine careers with Honorable Discharges.

B. Proceedings Below

At NMCCA, Corporal Ryan _ raised five

assignments of error: 1) that a charge should have

been dismissed because it contained a major change;

2) the need for a tailored “spillover” instruction for

the jury after the government counsel made an

inappropriate closing argument; 3) _ ineffective

assistance of counsel due to lack of preparation; 4)

factual and legal insufficiency; and 5) that a bad-

conduct discharge was an inappropriately severe

sentence, and a highly disparate cne, for hazing.

The Navy-Marine Corps Court of Criminal

Appeals (NMCCA) affirmed Corporal Ryan’s findings

and sentence on March 29, 2007. Appendix D, 8A-

22A, Ryan I. ,

But NMCCA’s decision in Corporal Ryan’s case

rested on a legal error in regard to sentencing.

In 2005, the Court of Appeals for the Armed

Forces (CAAF) reversed a sentence appropriateness

holding by the Navy-Marine Corps Court of Criminal

Appeals (NMCCA) in United States v. Baier, 60 M.J.

382 (C.A.A.F. 2005). In that case, the Navy-Marine

Corps Court had written, in part: “When reviewing a

sentence it is important to consider the sense of

justice of the community where the crime was

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committed which should not be disturbed unless ‘the

harshness of the sentence is so disproportionate to

the crime as to cry out for equalization.’ Rojas, 15

M.J. at 919.” United States v. Baier, No. NMCCA

200200476, slip op. at 2 (N-M. Ct. Crim. App. Oct. 23,

2003) (per curiam).

But NMCCA used the wrong sentence approp-

riateness standard, ruled the CAAF. NMCCA’s

language “is legally incorrect. A Court of Criminal

Appeals must determine whether it finds the

sentence to be appropriate. It may not affirm a

sentence that the court finds inappropriate, but not

‘so dispropor-tionate as to cry out’ for reduction.” In

footnote 15 of its Baier opinion, the CAAF also

observed that the legally erroneous “language that

the lower court quoted originated in United States v.

Usry, 9 M.J. 701, 704-05 (N.C.M.R. 19380).”

Despite the CAAF overruling United States v.

Usry, the NMCCA cited that decision in its March

29, 2007 opinion upholding the appropriateness of

Corporal Ryan’s sentence. NMCCA improperly cited

Usry for the following proposition: “A sentence

should not be disturbed on appeal, ‘unless the

harshness of the sentence is so disproportionate as to

cry out for sentence equalization.” United States v.

Ryan, No. NMCCA 200401577, slip op. at 8 (N-M. Ct.

Crim. App. March 29, 2007).

The CAAF wasted little time calling NMCCA’s

error to that court’s attention. Corporal Ryan filed a

petition for grant of review on March 29, 2007.

United States v. Ryan, No. 07-0601/MC, _ MJ. _

(C.A.A.F. March 29, 2007). After Corporal Ryan’s

brief was filed, CAAF turned around the case in little

more than three weeks, affirming NMCCA’s ruling

on the findings, but setting aside its decision on the

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sentence. United States v. Ryan, No. 07-0601/MC, __

MJ. _ (C.AA.F. Aug. 23, 2007) (summary

disposition).

The CAAF ruled: “The record of trial is returned

to the Judge Advocate General of the Navy for

remand to the Navy-Marine Corps Court for a new

sentence appropriateness review in light of United

States v. Baier, 60 M.J. 382 (C.A.A.F. 2005).”

In Corporal Ryan’s remanded argument before

NMCCA, he argued that, first, the Government

unconstitutionally infringed on his right to demand a

trial by jury when it considered his not guilty pleas

unfavorably as a lack of cooperation; and two, his

sentence was inappropriately severe because his

actions caused no lasting harm to his subordinates.

The undersigned counsel, then an active duty

Judge Advocate in the Navy, argued those positions

on Corporal Ryan’s behalf. Both the NMCCA and

the CAAF rejected these arguments. Appendix B,

2A-5A, Ryan I; Appendix A, 1A.

C. Representation Before This Court

The undersigned counsel left active duty in

September 2007. Corporal Ryan was then detailed a

new active duty Navy Judge Advocate as his

appellate defense counsel.

After the CAAF granted Corporal Ryan’s case, but

summarily affirmed the decision below, neither the

Navy-Marine Corps Appellate Defense Division, nor

his detailed appellate defense counsel, contacted him

to inform him of his lega! options, including his

statutory right to petition the United States

Supreme Court for a writ of certiorari.

Corporal Ryan even contacted his new appellate

defense attorney in writing to request continued

representation. But the active duty defense counsel

failed to respond to Corporal Ryan and failed to file a

petition for a writ of certiorari before this Court.

Corporal Ryan then contacted the undersigned

attorney, still a member of the United States Navy

Reserve, with only days remaining before this

Court’s filing deadline, pleading for assistance.

The undersigned attorney, serving now as a

Foreign Service Officer in Peshawar, Pakistan,

agreed to assist and hastily assembled this Petition

for a writ of certiorari.

REASONS FOR GRANTING THE PETITION

Corporal Ryan asks this Court for two forms of

relief: first, a holding by this Court that members of

the Armed Forces have a right to petition the

Supreme Court through appointed counsel; and

second, Corporal Ryan requests that this Court

reverse and remand his sentence for a full and fair

sentence rehearing.

A military defense counsel violates his legal and

ethical obligations to his client when he refuses to

honor a military servicemember’s request to appeal

his case to the Supreme Court. Such a refusal

effectively denies the servicemembers’ right to appeal

under the UCM, and, furthermore, such refusal

constitutes ineffective assistance of counsel.

This Court should grant review because it

effectively has original jurisdiction over this issue

involving statutory interpretation of the UCMJ. No

other court may authoritatively determine the right

to representation before this Court.

Corporal Ryan requests that this Court grant his

petition as a companion case to Knowles uv.

Mirzayance, 127 S. Ct. 1247 (2007), to be argued this

term, as a similar case where “failure to advance the

defendant's only affirmative defense” judicial

triggers scrutiny. Similar to Mirzayance’s aban-

doned insanity defense, Corporal Ryan had a

convincing sentence inappropriateness claim where

he was sentenced to a bad-conduct discharge when

his behavior amounted to something more akin to

fraternity hazing than to criminal offenses. But

Corporal Ryan’s appeltate defense attorney refused

to advance these arguments before this Court.

Even if this Court concludes that Corporal Ryan’s

sentencing argument would ultimately fail, this

Court should grant review because the underlying

issue of representation arises in almost all military

cases where the CAAF has granted review and is

“capable of repetition, yet evading review.” See

Honig v. Doe, 484 U.S. 305 (1988); Roe v. Wade, 410

U.S. 113, 125 (1973). Servicembers will never know

of their rights if their attorneys fail to communicate

with them or advise them, as in this case. Finally,

lower courts may not authoritatively announce that

servicemembers possess a right to representation

under the UCMJ before this Court. Only this Court

may authoritatively declare that a statutory right to

representation before this Court exists under the

UCMd.

I. THE UCMJ AND MILITARY REGULATIONS

REQUIRE MILITARY DEFENSE COUNSEL TO

REPRESENT APPELLANTS BEFORE THIS COURT.

Corporal Ryan’s right to representation before

this Court was effectively denied. A military defense

counsel violates his legal obligation to his client

when he refuses to honor a military servicemember’s

request to appeal his case to the Supreme Court.

Such a refusal effectively denies the servicemembers’

right to appeal under the UCMUJ.

Article 70(c), UCMJ, mandates representation:

“Appellate defense counsel shall represent the

accused before the Court of Military Review, the

Court of Military Appeals, or the Supreme Court--(1)

when requested by the accused...”

The Manual of the Judge Advocate General, JAG

Instruction 5800.7E, 20 June 2007, Section 0164(e),

states that appellate review is not complete until,

including, when the Supreme Court completes review

of a case.

The Court of Appeals for the Armed Forces

(CAAF) has found that servicembers possess a

statutory right to representation before this Court.

In 2006, Air Force Staff Sergeant Lovett filed a pro

se petition for writ of mandamus at the CAAF,

asking the CAAF to order the Judge Advocate

General of the Air Force to provide him with counsel

to represent him before this Court in challenging the

CAAF’s affirmance of his court-martial conviction

and 14-year sentence. Lovett v. United States, 64

M.J. 232 (C.A.A.F. 2006). The CAAF granted the

requested writ without dissent. The CAAF ruled:

The Uniform Code of Military Justice

provides: “Appellate defense counsel shall

represent the accused before the Court of

Criminal Appeals, the Court of Appeals for

the Armed Forces, or the Supreme Court...

when requested by the accused .. . .” Article

70(c)(1), UCMJ, 10 U.S.C. § 870(c)() (2000).

Petitioner’s case is not final as a matter of

law. See Article 71(c), UCMJ, 10 U.S.C. §

871(c) (2000). The immediate question

before us is not whether counsel must file

any particular matter in the course of

representing a servicemember, but whether

counsel may discontinue such representation

before the case is final as a matter of law.

Nothing in the record of the present case

established a basis for counsel to sever the

lawyer-client relationship. Accordingly, it is

ordered that the Judge Advocate General of

the Air Force shall provide appellate defense

counsel to represent Petitioner for the

purposes of review of his court-martial under

Article 67a, UCMJ, 10 U.S.C. § 867a (2000).

Id. at 232-33.

Appellate defense counsel subsequently filed a

certiorari petition on SSgt Lovett’s behalf, which this

Court denied. Lovett v. United States, 127 S. Ct.

1333 (2007). So while a servicemember in Corporal

Ryan’s position could probably obtain appellate

representation by filing a pro se petition for

extraordinary relief at the CAAF, Corporal Ryan,

and servicemembers like him in a similar position,

probably would not know without a lawyer’s advice

that he or she could obtain representation by filing a

pro se petition for extraordinary relief at the CAAF.

And in this case, Corporal Ryan has specifically

requested the undersigned attorneys continued

representation.

This Court should grant review of Corporal

Ryan’s case because it essentially has original

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jurisdiction over the statutory interpretation of the

UCMJ on this issue. Even though the CAAF has

addressed this issue, no other court may

authoritatively determine the right to representation

before this Court.

II. A DEFENSE ATTORNEY HAS AN ETHICAL AND

PROFESSIONAL OBLIGATION TO FILE A PETITION

WITH THIS COURT IF THE CLIENT MAKES THE

REQUEST.

Corporal Ryan’s appellate defense attorney had

an ethical and professional obligation to file a

petition for a writ of certiorari with this Court.

Under the military justice system, the United States

Court of Appeals for the Armed Forces (CAAF)

serves a “gatekeeper” role. Under 28 U.S.C. §

1259(3), this Court only has jurisdiction in those few

cases where the CAAF grants review. The CAAF isa

discretionary court and rejects the vast majority of

military appeals it reviews each year. (In a typical

year, the CAAF grants review of approximately 100

military cases out of around 2,000 military appeals).

Corporal Ryan’s sentencing argument was not

frivolous. His case was in that rare minority where

the CAAF had granted review. The relatively small

numbers of cases where the CAAF grants review are

significant; this Court should not be deterred from

vigorously supporting an appellant’s right to appeal

to this Court with a false fear of being overrun with

military petitions. Because the CAAF will continue

to perform its “gatekeeping” role, the small numbers

of potential military appeals ensure that this Court

will not be overrun with military cases.

‘.

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This Court has seldom exercised certiorari

jurisdiction over cases involving servicemembers.

This Court has granted plenary review of decisions

by the Court of Appeals for the Armed Forces (CAAF)

to only eight court-martial cases since Congress

established that authority 25 years ago under the

Military Justice Act of 1983.1

1 Solorio v. United States, 483 U.S. 435 (1987), the biggest

victory for the gowsrnment in a military justice case over the

last quarter ventury, abolishing the “service connection”

requirement; Weiss v. United States, 510 U.S. 163 (1994), a net

gain for the government when this Court adopted a due process

test for the military justice system less searching than the

Court of Military Appeals’ decision, or even than that advocated

by Weiss’s counsel or government counsel. See id. at 173-77;

Davis v. United States, 512 U.S. 452 (1994), this Court upheld

the CAAF’s rejection of a Miranda/Edwards challenge, but on

grounds far more favorable to the prosecution than those upon

which CMA had relied; Ryder v. United States, 515 U.S. 177

(1995), the only Military Justice Act of 1983 case in which this

Court held oral argument and ruled for the defense,

invalidating the grounds on which Chief Judge Baum originally

served on the Coast Guard Court, leading to his reappointment

under different authority. But on remand, neither Petty Officer

Ryder nor any of his fellow Coastguardsman whose cases were

granted and remanded under Ryder received more favorable

treatment during their second review; Loving v. United States,

517 U.S. 748 (1996), affirmed the CAAF’s affirmance of a

military death sentence; Edmond v. United States, 520 U.S. 651

(1997), affirmed the CAAF’s affirmance of the basis for Chief

Judge Baum’s reappointment to the Coast Guard Court; United

States v. Scheffer, 523 U.S. 303 (1998), this Court reversed a

CAAF decision holding that despite Military Rule of Evidence

707, an accused had a Sixth Amendment constitutional right to

at least attempt to lay a foundation for an exculpatory

polygraph’s admissibility; Clinton v. Goldsmith, 526 U.S. 529

(1999), this Court restricted CAAF’s exercise of jurisdiction,

reversing a favorable ruling for an Air Force major.

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This Court has generally exercised certiorari

jurisdiction over court-martial cases in a manner

that moved the law in the prosecution’s favor. Of the

eight court-martial cases this Court has reviewed

since 1983 (Solorio; Weiss; Davis; Ryder; Loving;

Edmond; Scheffer; Goldsmith), the government won

seven of those eight cases. This included two

reversals of decisions by the CAAF favorable to a

servicemember (Edmond and Scheffer). In practice,

even more significantly, this Court has three times

affirmed CAAF decisions favoring the government on

grounds more advantageous to the prosecution than

those relied upon by the CAAF (Solorio; Weiss;

Davis). And in the only court-martial case in which

this Court heard oral argument and then ruled for

the defense, the accused received no meaningful

relief as a result (Ryder).

The eight court-martial cases over which this

Court has exercised plenary review do not exhaust

the effects of the Military Justice Act of 1988,

because this Court summarily reversed and

remanded several additional CAAF cases, at least

one of which actually resulted in sentence relief for

the service member.

The last 25 years reflects a record of incredible

futility for the military defense bar before this Court.

In the eight cases to receive plenary consideration

under the Military Justice Act of 1983, not a single

service member received any meaningful relief.?

2 There is only one servicemember who actually received

sentence relief as the result of a proceeding under authority of

the Military Justice Act of 1983. In 1984, the CMA affirmed the

findings and sentence, which included a bad-conduct discharge

and three months’ confinement, of Spec4 Johnnie K. Goodson.

United States v. Goodson, 18 M.J. 243 (C.M.A. 1984). This

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In a quarter of a century under the Military

Justice Act of 1983, the defense bar has collectively

erased the findings of guilty to six specifications and

eliminated just one bad-conduct discharge. The

government, on the other hand, has reinstated one

conviction, reinstated a bad-conduct discharge,

dropped an officer from the rolls, and made the

overall legal terrain considerably more friendly to

the prosecution. Given this 25-year history, a

military appellate defense counsel could conclude

that submitting a certiorari petition on behalf of his

servicemember client would be either futile or

frivolous.

But such a conclusion would be wrong.

If a- military appellate defense attorney gives up

the ghost and surrenders a servicemember’s case —

against the client’s wishes — and fails to file a

Court granted and remanded the case for further consideration

in light of Smith v. Illinois, 469 U.S. 91 (1984). Goodson v.

United States, 471 U.S. 1063 (1985). On remand, the Army

Court of Military Review (ACMR) set aside the findings of

guilty to four specifications, affirmed the findings of guilty to

other specifications, and upon reassessment, set-aside the bad-

conduct discharge. United States v. Goodson, 22 M.J. 947

(A.C.M.R. 1986). Eighteen years after the Goodson grant and

renand, this Court granted and remanded another court-

martial case, this time for further consideration in light of

Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002).

O’Connor v. United States, 535 U.S. 1014 (2002). On remand,

the Air Force Court of Criminal Appeals (AFCCA) set-aside the

findings of guilty to two of the numerous specifications of which

SrA O’Connor had been convicted and upheld the original

sentence. United States v. O'Connor, No. ACM 33671, 2003

CCA LEXIS 251 (A.F. Ct. Crim. App. Oct. 29, 2003), aff'd, 60

M.J. 118 (C.A.A.F. 2004).

PEN Ta eT Pee TE Ne Fee ee TO Ee Mt RAT TREO NE Ce ee he ee

certiorari petition before this Court based on a tiny

sample of only ten cases — the decision is illogical,

illegal and unethical.

Surrendering is logical based on such a small

sample of cases and a select few issues. Such

fatalism also represents the logic of the self-fulfilling

prophecy — a community of military defense lawyers

: who invent a conventional wisdom that this Court

3 will not grant certiorari of a military case.

Surrendering is illegal because the UCMJ

mandates representation in plain language.

a Surrendering is unethical because a lawyer’s duty

is to fight for his client until the end. Under such

guidance as ABA Standards, The Defense Function —

(83rd Ed. 1993) and ABA Ethics Opinion 280 (1949),

Corporal Ryan’s appellate defense attorney should

E. have file a petition for a writ of certiorari with this

4 Court.

. III. REASONABLE PERFORMANCE INVOLVES ADv-

4 ANCING THE CLIENT’S INTEREST OR COMMUN-

3 ICATING WITH THE CLIENT TO EXPLAIN WHY THE

LAWYER REFUSES TO Do So.

Corporal Ryan’s active duty appellate defense

attorney was ineffective by refusing to file a petition

for a writ of certiorari before this Court. Under

Strickland v. Washington, 466 U.S. 688 (1984), his

4 appellate defense counsel’s choice to abandon all

3 arguments and simply refuse to file an appeal before

this Court was not reasonable performance. See

Wiggins v. Smith, 539 U.S. 510 (2003).

It is never reasonable for a defense attorney to

simply surrender all defenses. The Strickland stan-

dard provides generous coverage for defense

FE Te ST be TT ee ON Me Ee ET Ltt Oe ERNE ee eae Te SOS se Na IRC NER Wee PN oe Ny MOTE ASRS eee Bie Rey ee ee eS

y attorneys who abandon some defenses in favor of

3 others; it provides no defense attorneys who abandon

3 all of them. There is no tactical reason to abandon

4 all defenses.

4 Moreover, it is never reasonable for a defense

% attorney to fail to communicate with his client why

he refuses to pursue an appeal.

a This Court held in Anders v. California, 386 U.S.

a 738 (1967), that indigents seeking review of a

Be conviction warranted the services of an advocate

under the Fourteenth Amendment. The Court

concluded that if counsel conscientiously decides that

an appeal is “wholly frivolous,” he should so advise

the court and request permission to withdraw, at the

same time furnishing the court and the indigent with

eid et ich ith

lag oS aad a Hath ca 8 aa a I A I

: econ =

2 a brief of anything in the record arguably supporting

9 the appeal. Anders at 744.

a In Evitts v. Lucey, 469 U.S. 387, 394 (1985), the

Court held that counsel “must play the role of an

active advocate, rather than a mere friend of the

court assisting in a detached evaluation of the

appellant’s claim.”

Unfortunately for military appellants, the

inherently conservative nature of military society,

Parker v. Levy, 417 U.S. 733 (1974), deters many

judge advocates from aggressively asserting their

client’s rights. Defense work is sometimes seen as a

necessary, but drudging phase of a longer legal

career in which one’s own professional reputation is

more important than the client’s interests.

Another servicemember who petitioned this Court

with a writ of certiorari is First Lieutenant Raymon

F. Thomas, USMC. His case was decided by the

CAAF on the same day as Corporal Ryan’s case was

decided. The undersigned attorney also represented

Pr SR re Be NG RD ae Oe Oe ee eae Pete ent a EME aT Pe Tee eet eet ee ee >. Rep RT da tee PLR OTR Or oe

2 ns» ae a bie See ee eee eS BP Bt go Ne ee sae ae FORE REE ee

lst Lt Thomas while an active duty Navy Judge

| Advocate. When ist Lt Thomas requested that his

4 new active duty attorney file a petition to the United

5 States Supreme Court, here was the response he

received on April 30, 2008:

LT Thomas,

Whether you think the court got it right or not,

they have made their decision. Your case is

over. There is nothing more that can be done.

You have to live with the consequences of your

decisions and your action. It is not that you

don’t have what could be good issues, its that

the court read your case, and a grant means

q the entire court read the entire record of trial,

s and the court decided not to grant you relief.

Whether you think they are right or not, their

decision is final. Their decision is subject only

to review by the Supreme Court and the issues

in your case are not issues which the Supreme

Court will grant cert on. Yes, CAAF can decide

what cases it wants to hear and what cases it

a does not want to hear. It has that statutory

3 authority. Again, my legal opinion is that

2 there is nothing more that can be done in your

case that has even a remote chance of success.

For all intents and purposes, your case is final,

whether you like it or not. I’m sorry you may

regret some of your decisions, but they cannot

be undone. CAAF heard your case, and you

lost. That’s it.

LCDR R

The problem of abandoning clients is endemic to

the military justice system. From this Court’s

October 2002 term through its October 2006 term,

the Army Defense Appellate Division has not filed a

single certiorari petition. In that time, seven cert

petitions have been filed in Army cases, but five

(Christian, Shelton, Adams, Ronghi, Glover) were

filed pro se IFP while two (Crousser, Saintaude) were

filed by civilian counsel.

During that same period, eight certiorari

petitions were filed by the Air Force Appellate

Defense Division (Lovett, Jenkins, Keyser, Davis,

Traum, Moses, Robinson, Phillips), though one,

Lovett, was filed after Lovett won a writ from CAAF

compelling continued representation. One additional

Air Force case (Johnson) was filed pro se IFP.

The Coast Guard appellate defense counsel filed

only one cert petition (Stirewalt).

During that same time span, Navy-Marine Corps

Appellate Defense Division filed 14 certiorari

petitions (Craig, Rose, Washington, Parker, Magyari,

Quintanilla, Fisher, Disney, Pratchard, Ribaudo,

Allen, Strother, Dowty, Hurn), while civilian counsel

filed cert petitions in another three Navy-Marine

Corps cases (McKeel, Lucas, House). No sailor or

Marine filed a pro se cert petition during that period.

Reviewing the CAAF opinions in military cases

where the accused lost reveals many cases where the

accused lost an issue that rise about the “frivolous”

standard.

The counter-argument is that the fourteen

certiorari petitions filed by the Navy-Marine Corps

Appellate Defense were a grand waste of time, since

all of these cases were ultimately denied by this

Court. But it is not a counsel’s duty to decide

whether an issue is worthy of certiorari, much less

whether it is likely to be granted; rather, it is a

counsel’s duty to decide whether the issue clears the

frivolousness hurdle. Many cases will exceed the

frivolousness standard but fail the “certworthiness”

standard. It is a military appellate defense counsel’s

duty to file a cert petition in those cases, if the client

asks counsel to do so.

When the number of certiorari petitions filed by

the appellate defense division of the largest branch of

our military since 18 November 2002 is precisely

zero, it seems apparent that there is a problem. The

problem is that military appellate defense counsel

are not performing their ethical or statutory duties.

There is yet one more reason for this Court to

grant review of Corporal Ryan’s case. Earlier this

year, in its Kennedy v. Louisiana opinion, this Court

appeared to overlook military law (Section 552(b) of

the National Defense Authorization Act for Fiscal

Year 2006, 119 Stat. 3136, 3264 (2006)), a

congressional statute expressly authorizing the

death penalty for the rape of a child. No attorney,

clerk, or justice seemed to notice.

This Court almost never grants review of military

cases. Many years ago, Professor Schlueter gave a

Hodson lecture he called, “Military Justice for the

1990’s — A Legal System Looking for Respect.” See

133 Mil. L. Rev. 1 (1991).

Granting Corporal Ryan’s case will reverse the

sense that this Court largely ignores the military

justice system. This Court should rigorously affirm

the right of servicemembers to be represented before

this Court, especially after enemy combatants have

received more review by this Court than our own

servicemembers have.

Servicemembers lose many rights when they

volunteer to serve our nation. Parker v. Levy, 417

U.S. 733 (1974). They also subject themselves to a

host of much stricter criminal sanctions under the

UCMJ. Accordingly, those servicemembers who

request to have their cases reviewed by this Court

under 28 U.S.C. § 1259(3) and 10 U.S.C. § 870(c),

Art. 70(c), UCMJ, should be granted that right.

This Honorable Court should grant review of

Corporal Ryan’s case because he was denied the right

to present a full and fair sentence appropriateness

argument before this Court when his active duty

appellate defense counsel refused to file a petition for

a writ of certiorari before this Court.

CONCLUSION

Corporal Ryan respectfully requests the Court

grant this petition for a writ of certiorari.

Respectfully submitted,

Darrin W.S. MacKinnon*

Lieutenant, JAGC

U.S. Navy Reserve

*Counsel of Record

14232 Catbird Drive

Gainesville, VA 20155

(703) 930-5161

September 2008

Appendix A

UNITED STATES, Appellee,

v. |

Jason M. RYAN, Corporal, U.S. Marine Corps,

Appellant.

No. 07-0601

Crim. App. No. 200401577.

United States Court of Appeals for the Armed Forces

April 25, 2008

On consideration of the petition for grant of

review of the decision of the United States Navy-

Marine Corps Court of Criminal Appeals, said

petition is hereby granted, and the decision of the

United States Navy-Marine Corps Court of Criminal

Appeals is affirmed.

Appendix B

(Ryan IT)

UNITED STATES NAVY-MARINE CORPS

COURT OF CRIMINAL APPEALS

WASHINGTON, D.C.

Before 4

E.E. GEISER, V.S. COUCH, D.E. O'TOOLE 4

Appellate Military Judges

UNITED STATES OF AMERICA

JASON M. RYAN

CORPORAL (E-4), U.S. MARINE CORPS

NMCCA 200401577

GENERAL COURT-MARTIAL

Sentence Adjudged: 13 April 2004. 7

Military Judge: Maj Paul McConnell, USMC. q

Convening Authority: Commanding General, 2d

Marine Division, Camp Lejeune, NC.

Staff Judge Advocate's Recommendation: LtCol

J.K. Keith, USMC.

For Appellant: LT Darrin MacKinnon, JAGC,

USN; LT J.M. Lokey, JAGC, USN.

For Appellee: Capt Brian K. Keller, USMC; LT

Derek Butler, JAGC, USN.

31 January 2008

AS AN UNPUBLISHED DECISION, THIS

OPINION DOES NOT SERVE AS PRECEDENT.

PER CURIAM:

A general court-martial with — enlisted

representation convicted the appellant, contrary to

his pleas, of violating a lawful general order, four

specifications of maltreatment of a subordinate, and

assault, in violation of Articles 92, 93, and 128,

Uniform Code of Military Justice, 10 U.S.C. §§ 892,

893, and 928. The appellant was sentenced to

confinement for 3 months, hard labor without

confinement for 3 months, reduction to pay grade E-

1, and a bad-conduct discharge. The convening

authority (CA) approved the sentence as adjudged.

We previously affirmed the approved findings and

sentence in an unpublished decision issued on 29:

March 2007. On 23 August 2007 our superior court

affirmed our decision as to findings but set aside the

decision as to sentence. The case was remanded to

this court for a new sentence appropriateness review

in light of United States v. Baier, 60 MJ. 382

(C.A.A.F. 2005). United States v. Ryan, 65 M.J. 328

(C.A.A.F. 2007)(summary disposition). The appellant

was given an opportunity to submit additional

matters for consideration and elected to resubmit

and somewhat expand a summary assignment of

error relating to sentence severity and disparity. In _

addition, the appellant now raises a claim relating to

post-trial processing.?

We have examined the record of trial, the

appellant’s various pleadings to include his two

2 supplemental assignments of error, and _ the

a Government’s responses. We conclude that the

2 approved sentence is correct in law and fact and that

no error materially prejudicial to the substantial

¥ rights of the appellant was committed. Arts. 59 (a)

3 and 66(c), UCM.

Sentence Appropriateness

The appellant argues that a _ bad-conduct

discharge is inappropriately severe because the

: misconduct “did not cause any lasting physical or

*s emotional harm to his subordinate Marines.”

3 Appellant’s Brief and Assignments of Error of 25 Oct

: 2007 at 4. We have considered the appellant’s

4 record, his pretrial confinement and pretrial

restriction, and the entire record of trial. We have

also considered the seriousness of his offenses.

1 The Government’s answer of 21 June 2006 includes argument

suggesting that the CA may have improperly considered the

appellant’s not guilty pleas unfavorably as a lack of coop-

eration. While this issue was forfeited by the appellant when

he failed to raise it prior to our 29 March 07 decision, we also

note that the issue is without merit as the language identified

by the appellant is clearly speculation by the appellate

Government counsel as to why the CA may have acted more

severely in the instant case. There is no evidence and no

assertion that the CA actually considered any of the matters

speculated by the appellate Government counsel.

LN TIRES BEE AAR S IS tren ER TO

The appellant ordered his subordinates to

participate in humiliating, dangerous, and degrading

conduct including sexually perverse acts. He did this

to young inexperienced Marines in Cuba who had

been taught to trust the appellant as a Corporal and

as their squad leader. This type of conduct strikes

directly at the trust and confidence needed to

maintain unit cohesion, morale, and combat

effectiveness. The maximum punishment authorized

at this court-martial was confinement for 8 years,

forfeiture of all pay and allowances, reduction to nay

grade E-1, and a dishonorable discharge. After

reviewing the entire record, we conclude that the

sentence is appropriate for this offender and his

offenses. Baier, 60 M.J. at 382; United States v.

Healy, 26 M.J. 394, 395 (C.M.A. 1988); United States

v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982).2

Conclusion

The findings were previously affirmed by this

court and our superior court. We once again affirm

the approved sentence.

For the Court

R.H. TROIDL

Clerk of Court

2 The appellant’s remaining argument that his sentence was

highly disparate from the sentences of other Marines who were

involved in similar conduct is also without merit. He fails to

offer any evidence beyond the general nature of the charges

that his case was “closely related” to the cited cases. See United

States v. Lacy, 50 M.J. 286, 288 (C.A.A.F. 1999).

Appendix C

UNITED STATES, Appellee,

Jason M. RYAN, Corporal, U.S. Marine Corps,

Appellant.

No. 07-0601

Crim. App. No. 200401577.

United States Court of Appeals for the Armed Forces

August 25, 2007

On consideration of the petition for grant of

review of the decision of the United States Navy-

Marine Corps Court of Criminal Appeals, it is noted

that that court set aside Specifications 1 and 2 of

Charge I (violation of a lawful regulation),

Specifications 1 and 2 of Charge II (maltreatment by

sexual harassment), Specifications 1 and 2 of Charge

IV (adultery), and the Specification of the Additional

Charge (fraternization).

The court then stated that the remaining

approved findings of guilty were affirmed. In fact,

Charge II and all five of its specifications had been

withdrawn by the Government as part of the plea

agreement and dismissed.

Moreover, Specification 1 of Charge I and

Specification 1 of Charge IV were merged into

Specification 2 of Charge III (conduct unbecoming an

officer). Likewise, Specification 2 of Charge I and the

Additional Charge and its Specification were merged

into Specification 1 of Charge III (conduct

unbecoming an officer).

Despite the court’s broad statement that the

remaining findings of guilty were affirmed, it then

suggested that “[t]he affirmed charges and

specifications reflect two separate instances of

conduct unbecoming an officer to include a specific

quid pro quo offer by the Appellant of time off from

work in return for sex from a subordinate female

Marine.”

In fact, four specifications of a single charge of

conduct unbecoming an officer remained. Under

Article 67(c), Uniform Code of Military Justice

(UCMJ), 10 U.S.C. § 867(c) (2000), this Court can

only act with respect to findings as affirmed by a

court of criminal appeals.

Accordingly, because of the ambiguity as to the

affirmed findings, it is ordered that said petition is

hereby granted. The decision of the United States

Navy-Marine Corps Court of Criminal Appeals is set

aside, and the record of trial is returned to the Judge

Advocate General of the Navy for remand to the

United States Navy-Marine Corps Court of Criminal

Appeals for clarification as to the affirmed findings.

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Appendix D

(Ryan I)

IN THE U.S. NAVY-

MARINE CORPS COURT OF CRIMINAL APPEALS

WASHINGTON NAVY YARD

WASHINGTON, D.C.

BEFORE

J.D.HARTY R.G.KELLY W.M. FREDERICK

UNITED STATES

Jason M. RYAN

Corporal (E-4), U. S. Marine Corps

NMCCA 200401577 Decided 29 March 2007

Sentence adjudged i3 April 2004. Miltary Judge:

P.H. McConnell. Review pursuant to Article 66(c),

UCMJ, of General Court-Martial convened by

Commanding General, 2d Marine Division, U.S.

Marine Forces, Atlantic, Camp Lejeune, NC.

LT J.M. LOKEY, JAGC, USN, Appellate Defense

Counsel

Capt . BRIAN KELLER, USMC, Appellate

Government Counsel

AS AN UNPUBLISHED DECISION, THIS

OPINION DOES NOT SERVE AS PRECEDENT.

KELLY, Judge:

A members panel with enlisted representation,

sitting as a general court-martial, convicted the

appellant, contrary to his pleas, of violating a lawful

general order, four specifications of maltreatment,

and assault, in violation of Articles 92, 93, and 128,

Uniform Code of Military Justice, 10 U.S.C. §§ 892,

893, and 928. The appellant was sentenced to

confinement for 3 months, hard labor without

confinement for 3 months, reduction to pay grade E-

1, and a bad-conduct discharge. The convening

authority (CA) approved the sentence as adjudged

and, except for the bad-conduct discharge, ordered it

executed.

We have examined the record of trial, the

appellant’s five assignments of error,? and the Gov-

3 I. THE MILITARY JUDGE ERRED WHEN HE FAILED TO

DISMISS CHARGE II FOR CONTAINING A MAJOR

CHANGE.

Il. THE MILITARY JUDGE ERRED WHEN HE FAILED TO

TAILOR A SPILLOVER INSTRUCTION FOR THE MEMBERS

AFTER TRIAL COUNSEL’S INAPPROPRIATE CLOSING

ARGUMENT.

Ill. CORPORAL RYAN, USMC, WAS DENIED HIS SIXTH

AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF

COUNSEL WHEN HIS TRIAL DEFENSE COUNSEL WAS

PREVENTED FROM ADEQUATELY PREPARING FOR

TRIAL.

IV. THE GOVERNMENT FAILED TO PRESENT

FACTUALLY AND LEGALLY SUFFICIENT EVIDENCE TO

PROVE BEYOND A REASONABLE DOUBT THAT

CORPORAL RYAN, USMC, COMMITTED THE CHARGED

OFFENSES. FURTHERMORE, THE GOVERNMENT

EVIDENCE WAS NOT ENOUGH TO OVERCOME THE

GOOD MILITARY CHARACTER EVIDENCE PRESENTED

BY THE DEFENSE.

ernment’s response. We conclude that the findings

and the sentence are correct in law and fact and that

no error materially prejudicial to the substantial

rights of the appellant was committed. Arts. 59(a)

and 66(c), UCMJ.

Background

The appellant was deployed as a Marine squad

leader with a portion of 3d Battalion, 6th Marine

Regiment, a security force sent to Guantanamo Bay,

Cuba, from June 2002 until July 2003. Lance

Corporal (LCpl) J, LCpl S, Private First Class (PFC)

D, and PFC S, were members of the appellant’s

squad. During this deployment, the appellant hazed

and maltreated these Marines, and in one instance,

assaulted a Marine under his charge. Essentially,

the appellant was administering his own brand of

punishment to these Marines when he found them

performing in what he perceived to be a substandard

manner. CA’s Action of 28 Oct 2004.

Major versus Minor Change

In his first assignment of error, the appellant

contends that the military judge abused his

discretion by allowing the Government to amend the

specification under Charge II, alleging a failure to

V. A BAD-CONDUCT DISCHARGE IS AN

INAPPROPRIATELY SEVERE SENTENCE GIVEN THE

NATURE AND CIRCUMSTANCES OF THE OFFENSES AND

THE SIGNIFICANT MATTERS IN EXTENUATION AND

MITIGATION. ADDITIONALLY, THE PART OF THE

SENTENCE RELATING TO THE BAD-CONDUCT

DISCHARGE IS HIGHLY DISPARATE FROM THE

SENTENCE OF OTHER MARINES WHO WERE INVOLVED

IN SIMILAR CONDUCT.

11A

obey a lawful general order under Article 92, UCMJ.

Specifically, the Government added the numbers

“1700.28” after the words “Marine Corps Order” and

added the words “on divers occasions” before the

words “between August 2003 and October 2003,”.

The appellant contends that the amendments

effected an impermissible major change, contrary to

RULE FOR COURTS-MARTIAL 603, MANUAL FOR

COURTS-MARTIAL, UNITED STATES (2002 ed.), because

it added substantial material and was of such a

nature that it was likely to mislead the accused as to

the offense charged. Appellant’s Brief of 13 Jan 2006

at 5. We find that the amendments to the

specification effected a minor change and that the

military judge did not violate R.C.M. 603 by

permitting the amendments.

R.C.M. 603 governs changes made to charges and

specifications. R.C.M. 603(b) permits’ the

Government to make minor amendments to a

specification at any time prior to arraignment. After

arraignment, only the military judge may permit

minor changes to be made provided “no substantial

right of the accused is prejudiced.” R.C.M. 603(c).

Minor charges are defined by R.C.M. 603(a) as “any

except those which add a party, offenses, or

substantial matter not fairly included in those

previously preferred, or which are likely to mislead

the accused as to offenses charged." The Discussion

to R.C.M. 603(a) notes that minor changes include

those changes “necessary to correct inartfully drafted

or redundant specifications; to correct a misnaming

of the accused; to allege the proper article; or to

correct other slight error.” In contrast, R.C.M. 603(d)

permits major changes to be made over the objection

12A

of the accused only if the charges are re-preferred.

The question before us then is whether the

amendment to the specification of Charge II was a

major or minor change.

In the sole specification under Charge II, the

appellant was charged with violating a lawfui

general order. Specifically, the specification alleged

that the appellant did: “between about August 2003

and October 2003, violate a lawful general order, to

wit: paragraph 4, Marine Corps Order, dated 18

June 1997, by wrongfully hazing” the named

Marines. Charge Sheet. At the Article 32, UCMJ,

pretrial investigation, the appellant fully explored

the conduct at issue in this specification and charge.

Moreover, upon completion of the Article 32

investigation, the appellant received a copy of the

investigating officer’s report which recommended

inclusion of the additional language specifying the

number of the Marine Corps Order violated, and the

addition of the words “divers occasions”.

Investigating Officer’s Report of 16 Jan 2004. Prior

to referral, the Government amended _ the

specification to include the additional language.

Charge Sheet. At his arraignment, the appellant did

not object to the changes. Record at 25. Only later,

during pretrial motions, did the appellant object to

the changes. Record 104, 123-24; Appellate Exhibit

VIII.

We find that the amendments to the specification

are minor changes within the meaning of R.C.M.

603(a), to correct inartful drafting and obvious

scrivener’s errors. The amendments do not alter the

gravamen of the offense, nor the misconduct by

which the appellant allegedly violated that provision.

13A

The changes do not add any substantial matter that

was not already fairly included in the previously

preferred charges. There is no evidence that the

a appellant was misled, surprised, or hindered in his

7 trial preparation in any way by these changes.

4 Furthermore, we are convinced that under the facts

of this case, there was no possible prejudice to the

E. appellant as a result of the changes. Thus, we find

. that the military judge did not violate R.C.M. 603 by

determining that these were minor changes. This

assignment of error without merit.

Spillover Instruction

In his second assignment of error, the appellant

argues that the military judge erred when he did not

tailor the spillover instruction after the trial

counsel’s alleged inappropriate argument. Appel-

lant’s Brief at 7.4 The appellant asks this court to set

aside the findings and sentence and dismiss the

charges and specifications. We do not find error,

therefore, we decline to grant relief.

We review a military judge’s decision not to tailor

a defense-requested instruction for an abuse of

discretion. United States v. Myers, 51 M.J. 570, 578

¥ (N.M.Ct.Crim.App. 1999)(citing United States uv.

4 Maxwell, 45 M.J. 406, 424 (C.A.A.F. 1996)).

4 We note that the appellant’s counsel indicates in his brief that

the trial defense counsel made an immediate objection to the

Government’s argument, when in fact, there was no objection

during the argument, but rather a request for a more narrowly

tailored instruction at the completion of argument. Record at

668.

CO ee OE MOP LI ee Re NEN APE LE A MM ER PY Pe AM PNT AON FUER SS TAL MED ar PTY MNO LLY MWD ETN EAT Ae ee ER ee

14A

In his rebuttal argument on findings, the trial

counsel argued:

‘a Should you find for instance the Article

a 93, the maltreatment. If you take a look

4 at the elements and you say, [m]Jaybe

that is not Article 93. The government

believes at the barest minimum all of

these factors constitute -- take a look at

all of them, the bare minimum you have

[is] hazing by the accused.

Record at 667.

At the conclusion of the trial counsel’s argument,

the trial defense requested a “more narrowly

tailored” spillover instruction. Jd. at 668. The

military judge denied this request, and instead, gave

a a general spillover instruction, stating:

BAL S35 49 ee

Sofie as aks fo, ay a

SAARC ADL SE Ret eR hy ee

Spillover. Each offense charged must

a stand on its own and you must keep the

evidence of each offense separate. The

burden is on the [G]overnment to prove

each element of each offense by legal

and competent evidence beyond a

3 reasonable doubt. Proof of one offense

q carries with it no inference that the

a accused is guilty of any other offense.

Id. at 691.

The appellant now alleges that the military judge

erred in not tailoring the spillover instruction

because there was great danger of spillover since

much of the testimony was overlapping and

confusing. Appellant’s Brief at 8. We disagree.

15A E

It is axiomatic that the fundamental fairness

guarantee of the Due Process Clause of the

Constitution requires the prosecution to prove each

and every element of every offense alleged against an

accused by legal and competent evidence beyond a

: reasonable doubt. Myers, 51 M.J. at 578 (citing z

a Estelle v. McGuire, 502 U.S. 62, 78 (1991)(O’Connor, 4

’ J., concurring in part and dissenting in part)). When a

3 separate offenses are joined together for trial at the

same time, there is a very real possibility that

members will use the evidence of one of the crimes to

infer a criminal disposition on the part of an accused

in regard to other crimes charged. Myers, 51 M.J. at

579. “Generally, the law seeks to prevent juries from A

cumulating the evidence of the various crimes

charged to find guilt when, if considered separately,

they would not so find.” Jd. (citing Drew v. United

States, 531 F. 2d 85, 87 (D.C. Cir. 1964)). This court

has held that “[wje are apparently comfortable in

military practice with the assumption that properly

drafted and delivered instructions are sufficient to

prevent juries from cumulating evidence, thus

avoiding improper spillover.” Myers, 51 M.J. at 579.

Absent evidence to the contrary, courts of military

appeals may presume that members followed the

military judge’s instructions. Loving, 41 M.J. at 235;

United States v. Holt, 33 M.J. 400, 408 (C.M.A.

1991).

: Based on our review of this case, we find that the

% military judge’s decision to give a standard spillover

| instruction was proper and that no _ spillover

occurred. Contrary to the appellant’s assertion, the

trial counsel’s argument was proper comment on the

related offenses and the evidence before the court.

16A

Trial counsel was not making a spill-over “smoke and

fire” argument which tied the two offenses together

by cumulating the evidence. Nor was trial counsel

urging the use of evidence of one charge to bolster

the other charge. Rather, the trial counsel was

arguing that if the same evidence could not be used

to support each of the elements under both the

Article 93 and Article 92 charge, then it could be

used to support the orders violation charge under

Article 92. Clearly, trial counsel was arguing for

contingencies of proof, and not arguing for the

merging of evidence. Hence, we find there was no

need for a tailored instruction on_¥ spillover.

Moreover, the military judge’s instructions were

sufficient to focus the attention of the court members

on each charge and specification and to keep the

evidence separate for each _ specification. The

members properly applied the military judge’s

instructions and distinguished between the two

charges as evidenced by the fact that they found the

appellant guilty of the specifications under Article 93

by meticulously excepting certain allegations of the

charged misconduct from the specifications. Thus,

we are confident that spillover did not occur, and

that the appellant’s substantial rights were not

prejudiced. We find this claim without merit.

Effective Assistance of Counsel

In his third assignment of error, the appellant

avers that his counsel was ineffective at trial because

he was denied time and access to relevant and

necessary evidence. Appellant’s Brief at 12.

Specifically, the appellant argues that his trial

defense counsel was prevented from adequately

preparing for trial because: (1) he was denied the

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17A

ability to view the crime scene by the Staff Judge

Advocate and the military judge; (2) he had extreme

difficulty in interviewing witnesses; and, (3) the

defense was rushed to trial. Appellant’s Brief at 9-

10. We disagree.

We apply a presumption that counsel provided

effective assistance. Strickland v. Washington, 466

U.S. 668, 687 (1984); United States v. Garcia, 59 M.ZJ.

447, 450 (C.AA.F. 2004). This presumption is

rebutted only by “a showing of specific errors made

by defense counsel that were unreasonable under

prevailing professional norms.” United States v.

Davis, 60 M.J. 469, 473 (C.A.A.F. 2005)(citing United

States v. McConnell, 55 M.J. 479, 482 (C.AA.F.

2001)). Even if defense counsel’s performance was

deficient, the appellant is not entitled to relief unless

he was prejudiced by that deficiency. United States

v. Quick, 59 M.J. 383, 385 (C.A.A.F. 2004)(quoting

Strickland, 466 U.S. at 687).

In this case, we do not find any deficiencies in the

defense counsel’s performance under the Strickland

standards. To the contrary, ti‘al defense counsel

effectively represented the appellant at trial on all

charges. The trial defense coursel made numerous

successful motions, requesteci and received a

continuance, vigorously cross-examined the

witnesses against his client, and put on a strong case

of good military character. In addition, he was

successful in having’ several _ specifications

withdrawn, having the members return a finding of

not guilty to four specifications, and convincing the

members to except out much of the charged

misconduct in their findings. We find that the

appellant received effective assistance of counsel,

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18A

and was not deprived of a fair trial. This assignment

of error is without merit.5

Sentence Appropriateness

In his fifth assignment of error, the appellant

asserts that a bad-conduct discharge is an

inappropriately severe sentence. We disagree.

“Sentence appropriateness involves the judicial

function of assuring that justice is done and that the

accused gets the punishment he deserves.” United

States v. Healy, 26 M.J. 394, 395 (C.M.A. 1988). This

requires “individualized consideration’ of the

particular accused ‘on the basis of the nature and

seriousness of the offense and character of the

offender.” United States v. Snelling, 14 M.J. 267,

268 (C.M.A. 1982)(quoting United States ov.

Mamaluy, 27 C.M.R. 176, 180-81 (C.M.A. 1959)).

Courts of Criminal Appeals are tasked with

determining sentence appropriateness, as opposed to

bestowing clemency, which is the prerogative of the

convening authority. Healy, 26 M.J. at 395. A

sentence should not be dist» rbed on appeal, “unless

4 5 We have considered the appellant’s fourth assignment of error

E challenging the legal and factual sufficiency of the evidence.

E. Considering the evidence in the light most favorable to the

prosecution, we conclude that a reasonable factfinder could

have found all the essential elements of violating a lawful

general order, four specifications of maltreatment, and assault

beyond a reasonable doubt. See United States v. Roderick, 62

M.J. 425, 429 (C.A.A.F. 2006)(citing United States v. Turner, 25

M.J. 324, 324 (C.M.A. 1987)). After weighing the evidence in

3 the record of trial and making allowances for not having

a personally observed the witnesses, we ourselves are convinced

of the appellant's guilt beyond a reasonable doubt.

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19A

the harshness of the sentence is so disproportionate

as to cry out for sentence equalization." United States

v. Usry, 9 M.J. 701, 704 (N.C.M.R. 1980).

In the present case, the appellant, a squad leader

and noncommissioned officer of Marines, was found

guilty of violating a general order prohibiting hazing,

maltreating his Marines, and assaulting a Marine

subordinate. After reviewing the entire record, and

taking into consideration the appellant’s excellent

military record, we find that the adjudged sentence is

appropriate for this offender and his offenses.

Healey, 26 M.J. at 395; Snelling, 14 M.J. at 268.

Sentence Disparity

As part of his fifth assignment of error, the

appellant contends that his sentence, including a

bad-conduct discharge, is highly disparate from the

sentences of other Marines who were involved in

similar conduct. Appellant’s Brief at 16. In support

of his claim of sentence disparity, the appellant relies

on the results of trial and sentence limitation

portions of pretrial agreements of other Marines

convicted at Camp Lejeune, North Carolina for

hazing, maltreatment, and assault, which were

included as part of Defense Exhibit A and the

appellant’s Clemency Request of 29 August 2004.

As a general rule, sentence comparison is

appropriate only in those instances of highly

disparate sentences adjudged in closely related cases.

United States v. Lacy, 50 M.J. 286, 288 (C.A.A.F.

1999); United States v. Olinger, 12 M.J. 458, 460

(C.M.A. 1982). Closely related cases are those in

which “coactors [are] involved in a common crime,

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20A

servicemembers [are] involved in a common or

parallel scheme, or [there is} some other direct nexus

between the servicemembers whose sentences are

sought to be compared.” Lacy, 50 M.J. at 288. Cases

may also be closely related if the charges are similar

in nature and seriousness. United States v. Kelly, 40

M.J. 558, 570 (N.M.C.M.R. 1994). If the cases are

closely related and the sentences are highly

disparate, the disparity must be supported by a

rational basis. Lacy, 50 M.J. at 288. When a wide

disparity exists for reasons without a rational basis,

we have the discretion to remedy the problem. Kelly,

40 M.J. at 570. The appellant bears the burden of

demonstrating that any cases are closely related and

that the sentences are highly disparate. Lacy, 50

M.J. at 288. The purpose of sentence comparison in

closely related cases is to achieve “relative

uniformity.” Olinger, 12 M.J. at 461. Relative

uniformity, however, does not mean mathematical

equivalency. Id.

Applying the criteria set forth in Kelly and Lacy,

we find that the appellant has nct met his burden of

demonstrating that his case is closely related to that

of Corporal (CPL) G, LCpi F, or LCpl Q. The

appellant committed his crimes while he was in a

forward deployed unit in Guantanamo Bay, Cuba,

which is a high profile, mission-critical environment.

The other Marines’ crimes were committed while

they were in garrison at Camp Lejeune. The

appellant was the victims’ squad leader, entrusted

with his victims’ care as a noncommissioned officer.

We are unable to determine, based on the

information provided, that the other Marines were

squad leaders, or were in positions of direct or

21A

immediate command over their victims. The

appellant’s course of conduct was not similar in

nature and seriousness to those of CPL G, LCPL F

and LCPL Q, and did not arise from a common

scheme. Unlike the other Marines, the appellant’s

maltreatment of his subordinates included sexually

perverse acts, and his assault consisted of pointing a

loaded 9mm pistol at the chest of one his

subordinates. Thus, the appellant has failed to carry

his initial burden, and therefore further examination

of his disparity argument is unnecessary.

However, even assuming, arguendo, that the

cases are closely related, we find the appellant has

failed to show that the sentences adjudged are highly

disparate. Lacy, 50 M.J. at 288. To the contrary, the

sentences adjudged are nearly identical, in that they

all included a bad-conduct discharge, a period of

confinement, and a reduction in pay grade to E-1.6

The fact that CPL G, LCpl F, or LCpl Q had pretrial

agreements that required the CA to suspend their

punitive discharges is not enough to make the

sentences “highly” disparate. “[T]he military system

must be prepared to accept some disparity in the

sentencing of codefendants, provided each military

6 The appellant was sentenced to a bad-conduct discharge,

confinement for three months, hard labor without confinement

for three months, and reduction to pay grade E-1. The sentence

adjudged to CPL G was a bad-conduct discharge, confinement

for 120 days, reduction in pay grade to E-1, and forfeiture of

$500 pay per month for four months. The sentence adjudged

LCPL F was a bad-conduct discharge, confinement for 150 days,

and reduction in pay grade to E-1. LCPL Q was adjudged a

sentence extending to a bad-conduct discharge, confinement for

eight months, reduction in pay grade to E-1, and forfeiture of

$795.00 pay per month for eight months.

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22A

accused is sentenced as an individual.” United

States v. Durant, 55 M.J. 258, 261 (C.A.A.F.

2001)(citing United States v. Taylor, 991 F.2d 533,

536 (9th Cir. 1993)).

Finally, even if the appellant had satisfied his

burden of establishing that the sentences are highly

disparate, the record contains sufficient information

to support a rational basis for that disparity. The

appellant was a squad leader of Marines in a

mission-critical, forward deployed environment, who

seriously abused his authority by hazing and

maltreating his subordinates by ordering his

subordinates to perform humiliating, degrading, and

perverse acts. In addition, he pointed a loaded 9 mm

pistol at the chest of one subordinate. Hence, there

is a rationai basis for the differences in sentences

approved by the convening authority in each of the

cases. This assignment of error is without merit.

Conclusion

The findings and the sentence as approved by the

CA are affirmed.

Senior Judge HARTY and Judge FREDERICK

concur.

For the Court

R.H. TROIDL

Clerk of Court

Appendix E

Affidavit of Jason M. RYAN, —

Corpora), U.S. Marine Corps, Appellant.

July 24, 2008

I, Corporal Jason M. Ryan, declare that the

following statement is true, under penalty of perjury

pursuant to 28 U.S.C § 1746.

L. Request for Continued Representation

1) I respectfully request that LT Darrin MacKin-

non, JAGC, USNR, file this petition for a grant of

certiorari to the United States Supreme Court on my

behalf as part of his official duties as my appellate

defense attorney and in his capacity as a reserve

military attorney.

2) I respectfully request that LT MacKinnon

continue to represent me in my military appeal as

part of his official duties as a reserve military

attorney and that he continue his ongoing attorney-

client relationship with me, which was established

when he served on active-duty.

3) I also request that LT MacKinnon continue to

represent me as part of his official duties as a reserve

military attorney for any further proceedings related

to my case in any other forum, including my

sentencing argument.

II. My Attorneys Failure to Communicate

4) No other attorney or organization has

communicated with me about my appeal other than

LT MacKinnon.

5) Nobody else other than LT MacKinnon has

ever contacted me in regards to my right to appeal

my case to the United States Supreme Court. I have

not received any letters, messages, e-mails or phone

calls from any other organization or attorney about

my right to appeal to the United States Supreme

Court.

6) After LT MacKinnon left active duty in

September 2007, I never received any letters,

messages, e-mails or phone calls from any other

organization or attorney informing me who my new

active-duty appellate defense attorney was.

7) I have lived in the same house, at the same

address (180 Fairview Rd. Kersey PA, 15846) since

June 18, 2004, the day that I returned home from the

Marine Corps. My phone number has also been the

same since then: (814) 885-6094.

8) Neither of the other two military attorneys

detailed to my case talked to me about my case in as

much depth as LT MacKinnon did.

9) I did not receive an answer to my request for

further representation from my active-duty appellate

attorney.

10) LT MacKinnon is the only attorney who

informed me that I could appeal to the United States

Supreme Court since I returned home from the

Marine Corps on appellate leave.

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III. Refusal to Petition the Supreme Court

11) After the Court of Appeals for the Armed

Forces (CAAF) affirmed the findings in sentence in

my case, I sent an e-mail message to the active-duty

appellate attorney, LT S, who LT MacKinnon told me

was detailed to my case after his departure. I sent

an e-mail message on Sunday, June 8, 2008, at

17:14:59, to LT S of the Navy-Marine Corps

Appellate Defense Division (Code 45). In that e-mail

message to LT S, I identified myself as a military

chent and asked for legal representation in my

appeal. But I did not receive a response.

IV. My Sentencing Argument

12) lIamchallenging my sentence to a bad-conduct

discharge, which is a lifelong stigma and

characterizes the service to my country in the same

way as that of deserters, drug-users, drunks, thieves

and other common criminals. But my bad-conduct

discharge was based primarily on two incidents: 1)

pointing a weapon at a subordinate; and 2) ordering

subordinates to dance.

13) The Weapon-Pointing. My sentence of a

bad-conduct discharge is largely based on a

mischaracterization of the most serious charge

against me. Contrary to what the Navy-Marine

Corps Court of Criminal Appeals (NMCCA) stated in

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26A

its opinion, I was not convicted of pointing a loaded

9mm weapon at a subordinate Marine. I pointed an

empty 9mm weapon at the subordinate, not a loaded

one. There is a huge difference.

14) And this weapons-pointing incident occurred

in the context of weapons training, not out-of-the-

blue. We (Chris VanVlete and I) were training

subordinate Marines how to take down, clean and

put back together the 9mm service pistol. In this

case, after the junior Marine had put the weapon

back together, I pointed the 9mm pistol at the

subordinate when the weapon was cleared and the

3 slide was locked in the rear position.

--:15)~—- Marines point weapons at each other all the

4 time. It is part of our training. When we conduct

4 mock patrols, raids or firefights, Marines always

point weapons at each other.

16) The Dance. Contrary to what the Navy-

Marine Corps Court of Criminal Appeals (NMCCA)

stated in its decision, I did not order my subordinates

to perform “humiliating, degrading and perverse

acts.” I simply ordered them, briefly, to dance with

each other, in order to make a training point.

17) I never ordered any of my Marines to touch

each other. Once the story got told once, it grew like

7a a fishing story. More details were added, and

4 because I was the senior Marine on site, I got the

2 blunt of the trouble.

4 18) Hazing. At Guantanamo, | did nothing to my

s subordinate Marines that was not done to me or my

_ peers when we were ‘boots' — new Marines to the

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27A

Fleet Marine Force. The other three corporals that

were in the room with me and acted like me went

through the same treatment as I did. The training

was not meant to hurt the junior Marines, it was

meant to make them a closer unit. That is what

happened to us when we were junior Marines.

19) While it is true that I “hazed” Marines, these

instances were brief and minor and were done for

training only. I was the only non-commissioned

officer (NCO) that took his Marines on patrols, and

tried to teach them what life is like in a combat

zone. I wanted them to become closer than brothers

and understand that they need to count on each

other no matter what the situation is. I never, ever

wanted to hurt or cause harm to my Marines. I only

wanted the best for them and for them to be the

best. The other two junior Marines in my squad did

not say that I “hazed” them. They agreed that I was

only training them.

20) I had a stellar Marine Corps record prior to

this incident. I was put on NCO of the quarter

boards, meritorious sergeant boards and highly

recommended for re-enlistment into the Marine

Corps.

21) The punishment for these incidents was

aggressive. I served time in the brig, lost all my

rank, lost all my pay, and was awarded a bad-

conduct discharge. Two of the other Marines that

were with us only received a loss in rank and pay.

They finished their careers and received Honorable

Discharges.

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22) To demonstrate my character and the kind of

person that I am, when I returned home on appellate

leave, I began to attend college at Penn State

University. I received two Associate Degrees, one in

Materials Engineering and the other in Mechanical

Engineering. I am currently finishing my Bachelors

of Science (BS) degree (December of 2008). My wife

has also given birth to two beautiful babies, one boy

and one girl. I am currently an Operations Manager

of a medium sized manufacturing company.

23) Irespectfully request that this Court allow me

the opportunity to make another’ sentencing

argument to demonstrate that a bad-conduct

discharge was inappropriately severe and dispro-

portionate to the punishment received by other Marines

who committed the same misconduct.

ss/ Jason M. RYAN,

Corporal, U.S. Marine Corps

July 24, 2008

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.