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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2009

## Text

Supreme US. ’
(3) ) 08-422 JUL 242008

‘_—— ___ OFFICE OF THE CLERK

IN THE

Supreme Court of the Anited States

JASON M. RYAN,

Petitioner,
v.

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
PR IED FIEY OV GD 5. 5... osc encecenececescecscesesns 1

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

lv

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.

5

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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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.

8

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

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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

10

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).

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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

16

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

17

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

18

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.

R,
LCDR R

19

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

20

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.

21

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

1A
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.

2A

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
v.

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 _

4A

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

5A

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).

6A

Appendix C
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
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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8A
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
v.

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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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_0728%3A1. Public record. Not legal advice.