IN THE
CASE OF
UNITED
STATES, Appellant
v.
Joshua M.
FAGAN, Private
No.
03-5002
Crim. App.
No.
20000891
Argued
Decided
ERDMANN,
J., delivered the opinion of the Court, in which CRAWFORD, C.J.,
GIERKE,
EFFRON, and BAKER, JJ., joined.
Counsel
For Appellant:
Captain
Mark A. Visger (argued);
Colonel Lauren B. Leeker,
Lieutenant Colonel Margaret B. Baines, Major Jennifer H.
McGee,
and Captain Christopher Graveline
(on brief).
For Appellee: Captain Kathleen D. Schmidt (argued); Colonel
Robert D. Teetsel and Captain Sean
S. Park
(on brief); Lieutenant Colonel E. Allen
Amicus Curiae:
Colonel
LeEllen Coacher, Lieutenant Colonel
Lance B. Sigmon and Captain C.
Taylor Smith (on brief) –
for United States Air Force Appellate Government Division.
Amicus Curiae:
Colonel
R. M. Favors, USMC, and Lieutenant Lars C. Johnson, JAGC,
USNR (on
brief) – for United States Navy-Marine Corps Appellate Review Activity,
Government Division.
Military Judge:
Kenneth
Clevenger
This
opinion is subject to editorial correction before final publication.
Judge
ERDMANN delivered the opinion of the Court.
Private
First Class Joshua Fagan entered guilty pleas and was convicted by a
military
judge of larceny, forgery and the wrongful use and distribution of
marijuana,
in violation of Articles 121, 123, and 112a, Uniform Code of Military
Justice
[hereinafter UCMJ], 10 U.S.C. §§ 921, 923 and 912a (2000).
He was sentenced by the military judge to 30
months confinement, total forfeiture of pay and allowances and a
dishonorable
discharge. The convening authority
reduced the confinement to 20 months and approved the balance of the
sentence.
Fagan's
conviction and sentence were then submitted to the United States Army
Court of
Criminal Appeals for automatic review under Article 66(b)(1), UCMJ, 10
U.S.C. §
866(b)(1) (2000). The Court of Criminal
Appeals affirmed the guilty findings but, for reasons more fully
outlined below,
reassessed the sentence by affirming the dishonorable discharge and the
total
forfeitures, but only 19 of the 20 months confinement.
The
Judge Advocate General of the Army certified the case to this Court for
review
of the following issues1:
I. WHETHER
THE UNITED STATES ARMY COURT OF CRIMINAL APPEALS ERRED IN CONCLUDING
THAT THE
SIX PRINCIPLES LAID OUT IN UNITED STATES V. GINN, 47 M.J. 236
(1997),
PROVIDE THE PROPER DECISIONAL FRAMEWORK FOR ANALYZING ANY ISSUE RAISED
IN A
POST-TRIAL AFFIDAVIT, INCLUDING ISSUES RAISED UNDER UNITED STATES
V.
GROSTEFON, 12 M.J. 431 (C.M.A. 1982)?
II. WHETHER
THE UNITED STATES ARMY COURT OF CRIMINAL APPEALS ERRED IN CONCLUDING
THAT THIS
COURT'S DECISION IN UNITED STATES V. GINN, 47 M.J. 236 (1997),
PRECLUDED
THAT COURT FROM CONSIDERING THE GOVERNMENT AFFIDAVITS THAT FACTUALLY
CONFLICTED
WITH APPELLANT'S POST-TRIAL AFFIDAVITS AND FROM RESOLVING THE ISSUE IN
THE
GOVERNMENT'S FAVOR WITHOUT ORDERING A HEARING PURSUANT TO THIS COURT'S
DECISION
IN UNITED STATES V. DUBAY, 17 U.S.C.M.A. 147, 37 C.M.R. 411
(1967)?
III. WHETHER
THE UNITED STATES ARMY COURT OF CRIMINAL APPEALS ERRED IN CONCLUDING
THAT IT
HAD THE AUTHORITY TO GRANT APPROPRIATE RELIEF UNDER THIS COURT'S
DECISION IN UNITED
STATES V. WHEELUS, 49 M.J. 283 (1998), WHEN THE COURT ADMITTED
GOVERNMENT
AFFIDAVITS SPECIFICALLY REBUTTING APPELLANT'S POST-TRIAL AFFIDAVITS
THAT MADE
FACTUAL ASSERTIONS OF CRUEL AND UNUSUAL PUNISHMENT?
We
hold that the Court of Criminal Appeals properly identified and applied
United
States v. Ginn, 47 M.J. 236 (C.A.A.F.
1997) as
the decisional framework for addressing Fagan's claim of cruel and
unusual
punishment. We further hold that the
Court of Criminal Appeals erred in granting sentence relief to Fagan in
lieu of
ordering further proceedings under United States v. DuBay,
17 C.M.A. 147, 37 C.M.R. 411 (1967).
At
the conclusion of his trial in October of 2000, Fagan began serving his
confinement at the United States Army Confinement Facility, Europe
(USACFE) in
As
part of his appeal to the Court of Criminal Appeals, Fagan asserted
that, while
confined at USACFE, he had been subjected to cruel and unusual
punishment in
violation of the Eighth Amendment to the United States Constitution and
Article
55, UCMJ, 10 U.S.C. § 855 (2000). In
support of his claim, he submitted an affidavit to the Court of
Criminal
Appeals asserting that he was "repeatedly subjected to physical
abuse" by a certain guard (SGT D) who conducted "overly aggressive
frisks" when Fagan was leaving the dining area. He
indicated that, on approximately five
occasions, SGT D "forcefully took his hand up the inside of [Fagan's]
groin area and, what can described as similar to a karate chop, . . .
would use
the side of his hand to slap [Fagan's] testicle area."
He
also indicated that, on approximately five occasions, SGT D would,
"using
two hands, hold the waistband of [Fagan's] pants, tugging and yanking
[his]
pants in an upward motion so that [his] underwear and pants seams would
forcibly be tucked up into [his] testicles and between [his]
buttocks." According to his
affidavit, these instances caused Fagan excruciating pain that lasted
several
minutes. Fagan alleged that he did not
report these instances of abuse because of fear of retaliation based on
his
observation of "repercussions" suffered by other inmates who had made
reports against guards.
In
addition to his own affidavit, Fagan submitted affidavits from eight
other
inmates who had been confined at USACFE well before Fagan's arrival
there,
primarily between March and October 1999.
The eight affidavits contained "nearly identical" allegations
of mistreatment by SGT D and had been previously considered by the
Court of
Criminal Appeals in another proceeding. Fagan,
58 M.J. at 535 n.2 (describing affidavits submitted in United
States v. Kinsch, 54 M.J. 641 (A. Ct. Crim.
App. 2000)).
In
response to Fagan's claim and submissions, the Government submitted
affidavits
from SGT D and MAJ Suskie, the commander
at USACFE
during the period of time that Fagan's mistreatment was alleged to have
occurred. In his affidavit, SGT D
categorically denied any specific recollection of Fagan and any abusive
activity towards any inmate during frisk searches or "pat down"
procedures. MAJ Suskie
also denied any recollection of Fagan and any awareness of SGT D having
aggressively frisked inmates.
The
Court of Criminal Appeals turned to the framework of United States
v. Ginn, 47 M.J. 236 (C.A.A.F. 1997)
to address Fagan's
claim of cruel and unusual punishment. Fagan,
58 M.J. at 536.
While expressing dissatisfaction with that framework, the court
ultimately concluded that "the clear mandate" in Ginn
would require additional factfinding
regarding
Fagan's claim under the procedures set forth in DuBay. Rather than order such proceedings, however,
the court elected to "moot the issue" by granting sentence relief
under United States v. Wheelus, 49
M.J. 283
(C.A.A.F. 1998) and reduced Fagan's confinement from 20 months to 19
months.
The
Court of Criminal Appeals then went on to characterize the interplay
between Ginn and Wheelus as
"far from clear" and took "the unusual step" of
recommending that the Judge Advocate General send the case to this
Court for
review of the issues outlined above.
A. The Ginn
Framework
This
case involves the manner in which the military justice system deals
with
"collateral" claims. Fagan's
post-trial claim of cruel and unusual punishment is "collateral" in
the most classic sense -- it has nothing to do with his guilt or
innocence of
the crimes of which he stands convicted.
See United States v. Dykes, 38 M.J. 270, 272
(C.A.A.F.
1993)(collateral claim is one which does not
go
directly to the issue of the guilt or innocence of accused).
In
the realm of state and federal criminal law these claims are typically raised through a
separate post-conviction proceeding where evidentiary hearings are held. Judges or magistrates make factual
findings
and conclusions of law that an appellate court can later review and
consider.
In
light of that reality, this Court "long ago recognized" that
resolution of these post-trial claims requires a procedure by which the
Courts
of Criminal Appeals, as well as this Court, may expand the record of
trial
where appropriate through an evidentiary hearing. Dykes,
38 M.J. at
272. The origin of that process
is found in DuBay, where we
remanded that case
for a fact-finding hearing on post-trial claims of unlawful command
influence. The so-called "DuBay hearing" has since become a
well-accepted
procedural tool for addressing a wide range of post-trial collateral
issues. See e.g., United
States v. Mack, 58 M.J. 413, 415 (C.A.A.F. 2003)(question
of whether certain members were properly detailed to court-martial); United
States v. Baker, 58 M.J. 380, 387 (C.A.A.F. 2003)(ineffective
assistance of
counsel claim); United States v. Hurn,
55 M.J.
446, 450 (C.A.A.F. 2001)(claim of racial discrimination in exercise of
peremptory challenge).
Our
decision in Ginn simply addresses
the
threshold aspect of the DuBay
process. Specifically, it focuses on the
circumstances
under which a DuBay hearing is
required to
resolve a post-trial claim that is framed by conflicting affidavits. We recognized in Ginn
that Article 66(c) does not authorize a Court of Criminal Appeals to
decide
disputed questions of material fact pertaining to a post-trial claim,
solely or
in part on the basis of conflicting affidavits submitted by the parties. Ginn, 47 M.J. at 243.
We
also recognized, however, that a post-trial evidentiary hearing is not
required
in every case simply because an affidavit is submitted by an appellant. Id. at 248; see also United
States v. Guthrie, 53 M.J. 103, 105 (C.A.A.F. 2000)(mere
submission of an affidavit by an appellant does not trigger the need
for a
post-trial evidentiary hearing); Dykes, 38 M.J. at 273
(cautioning
military law practitioners that mere submission of post-trial
affidavits does
not usually require an evidentiary hearing in order to resolve a
post-trial
collateral claim). In the context in
which Ginn was presented, i.e., an
ineffective
assistance of counsel claim, we outlined the following principles for
determining when a factfinding DuBay
hearing is required:
First, if
the facts alleged in the affidavit allege an error that would not
result in relief
even if any factual dispute were resolved in appellant's favor, the
claim may
be rejected on that basis.
Second, if
the affidavit does not set forth specific facts but consists instead of
speculative or conclusory observations,
the claim may
be rejected on that basis.
Third, if
the affidavit is factually adequate on its face to state a claim of
legal error
and the Government either does not contest the relevant facts or offers
an
affidavit that expressly agrees with those facts, the court can proceed
to
decide the legal issue on the basis of those uncontroverted
facts.
Fourth, if
the affidavit is factually adequate on its face but the appellate
filings and
the record as a whole "compellingly demonstrate" the improbability of
those facts, the Court may discount those factual assertions and decide
the
legal issue.
Fifth,
when an appellate claim of ineffective representation contradicts a
matter that
is within the record of a guilty plea, an appellate court may decide
the issue
on the basis of the appellate file and record (including the admissions
made in
the plea inquiry at trial and appellant's expression of satisfaction
with
counsel at trial) unless the appellant sets forth facts that would
rationally
explain why he would have made such statements at trial but not upon
appeal.
Sixth, the
Court of Criminal Appeals is required to order a factfinding
hearing only when the above-stated circumstances are not met. In such circumstances the court must remand
the case to the trial level for a DuBay
proceeding. During appellate review of
the DuBay proceeding, the court may
exercise
its Article 66 factfinding power and
decide the legal
issue.
Ginn,
47 M.J. at 248.
The first two issues presented to this Court by the Judge
Advocate
General involve the application of that framework to Fagan's post-trial
claim
of cruel and unusual punishment.
B. Application
of the Ginn Framework
The
Court of Criminal Appeals was correct in identifying Ginn
as the appropriate framework for addressing Fagan's claim.
While Ginn was
decided in the context of an ineffective assistance of counsel claim,
its
principles are applicable to a broader range of affidavit-based,
post-trial
collateral claims. See e.g., Hurn,
55
M.J. at 449 (affidavit-based uncertainties regarding claim of racial
discrimination in exercise of peremptory challenge); United States
v.
Sherman, 51 M.J. 73, 75-76 (C.A.A.F. 1999)(affidavit-based
fact question as to existence of sub rosa
agreement
between counsel).
Contrary
to the assessment of the Court of Criminal Appeals, however, there are
no
"problems" presented by the Ginn
framework that are "compounded" by our decision in United States
v. Grostefon, 12 M.J. 431 (C.M.A.
1982).2 Fagan,
58 M.J. at
537-38. Our decision in Grostefon simply prescribed a "rule of
specifies
any error in his request for appellate representation or in some other
form,
the appellate defense counsel will invite
The
linchpin of the Ginn framework is
the
recognition that a Court of Criminal Appeals' factfinding
authority under Article 66(c) does not extend to deciding disputed
questions of
fact pertaining to a post-trial claim, solely or in part on the basis
of
conflicting affidavits submitted by the parties. Ginn, 47 M.J. at 243. There
is nothing inherent in the Grostefon
procedure
that amplifies, restricts or even impacts upon Article 66(c) authority
in the
context of affidavit-based post-trial
We
now turn to the Court of Criminal Appeals' application of the Ginn framework to Fagan's claim. The first Ginn
factor looks at whether the facts alleged in the affidavit, if true,
would
result in relief. Ginn,
47 M.J. at 248. If the facts sworn to by
Fagan in his
affidavit are taken as true, they could result in relief.
The
second Ginn factor considers
whether the
affidavit sets forth speculative or conclusory
observations rather than specific facts.
Fagan's affidavit and the others he filed in support of his
claim are
fact specific and his claim cannot be rejected on that basis.
The
third Ginn factor involves the
situation where
the facts in the affidavit are either not contested by the Government
or agreed
to by the Government. The facts material
to Fagan's treatment at USACFE have been directly contested by the
Government's
counter-affidavits and Fagan's assertions cannot be disposed of as a
legal
claim based on uncontroverted facts.
Under
the fourth Ginn factor, if the
affidavit is
factually adequate on its face, but the appellate filings and the
record as a
whole “compellingly demonstrate” the improbability of those facts, a
hearing is
not necessary.
While
the fifth Ginn factor is
articulated in the
specific context of an ineffective assistance of counsel claim, the Ginn framework applies outside of that
specific
context. From that more general
perspective, the fifth factor refers to matters within the record of a
guilty
plea that contradict the
As
the Court of Criminal Appeals properly recognized, Fagan's claim of
cruel and
unusual punishment resides in the sixth and final Ginn
category and his case must be remanded to the trial level for a DuBay hearing.
A
DuBay hearing is not required here
simply
because Fagan filed an affidavit -- the mere submission of an affidavit
does
not trigger the need for a post-trial evidentiary hearing. Guthrie,
53 M.J. at 105. Nor
is it the mere filing of responsive affidavits from the Government that
triggers the requirement for a DuBay
hearing. The Ginn
framework requires a DuBay hearing
only if the
opposing affidavits raise a fact dispute that is "material" to the
resolution of the post-trial claim and the claim cannot be otherwise
resolved
through the application of the five Ginn
factors. Ginn,
47 M.J. at 244-45; see also
In
the present case, it is the inapplicability of any of the five Ginn factors and the presence of
affidavits that
raise material fact disputes concerning Fagan's claim that require a DuBay hearing.
We turn now to the issue of whether the court erred in not
directing
those further proceedings.
C. Application
of Wheelus
After
properly concluding that the "clear mandate" of Ginn
would require a DuBay hearing in
this case,
the Court of Criminal Appeals went on to conclude that this mandate was
"in conflict" with its "broad power to moot claims of
prejudice" under United States v. Wheelus,
49 M.J. 283 (C.A.A.F. 1998). Fagan,
58 M.J. at 538.
Rather than order a DuBay
hearing under
Ginn, the court elected to simply
grant
sentence relief to Fagan "under Wheelus."
As
with its misperception of a "problem" created by Ginn
and Grostefon, the Court of
Criminal Appeals
similarly perceived a "conflict" between Ginn
and Wheelus where none exists. The central principles of these two cases are
completely independent of one another.
The
"broad power to moot claims of prejudice" as referred to in the
context of Wheelus is a remedial
tool
available to address acknowledged post-trial processing errors. In Wheelus,
the Government conceded that the staff judge advocate did not fulfill
his
obligation to inform the convening authority of certain pretrial
restraint
matters. Wheelus,
49 M.J. at 285. While noting that appellate
courts do
not have clemency powers per se, the
Court in Wheelus noted that they do
have
broad
power to moot claims of prejudice by “affirm[ing]
only such findings of guilty and the sentence or such part or amount of
the
sentence, as it finds correct in law and fact and determines, on the
basis of
the entire record, should be approved.”
The
exercise of the "broad power" referred to in Wheelus
flowed from the existence of an acknowledged legal error or deficiency
in the
post-trial review process. It is not a
"broad power to moot claims of prejudice" in the absence of an
acknowledged legal error or deficiency, nor is it a mechanism to "moot
claims" as an alternative to ascertaining whether a legal error or
deficiency exists in the first place.
In
terms of Fagan's claim, he may be entitled to relief if he did in fact
suffer a
violation of the rights guaranteed him by the Eighth Amendment and
Article
55. However "broad" it may be,
the "power" referred to in Wheelus
does not vest the Court of Criminal Appeals with authority to eliminate
that
determination and move directly to granting sentence relief to Fagan. Rather, a threshold determination of a proper
factual and legal basis for Fagan's claim must be established before
any
entitlement to relief might arise.
As
Fagan's claim is post-trial, collateral and affidavit-based, Ginn is the appropriate threshold
framework under
which the claim needs to be evaluated.
No post-trial collateral error or deficiency has been
acknowledged and Wheelus does not
come into play until, and unless,
that acknowledgement is made. The Court
of Criminal Appeals erred in relying on Wheelus
as a basis for granting sentence relief to Fagan in lieu of ordering a DuBay hearing.
CONCLUSION
We
answer the first and second issues directed to us for review by the
Judge
Advocate General in the negative and answer the third issue in the
affirmative. The decision of the United
States Army Court of Criminal Appeals is set aside.
The record of trial is returned to the Judge
Advocate General of the Army for submission to a convening authority
for a DuBay hearing on Fagan's
claim of cruel and unusual
punishment. The military judge at such
hearing shall make findings of fact and conclusions of law and then
return the
record of trial to the Court of Criminal Appeals for further review
under
Article 66(c). Thereafter, Article 67
shall apply.
1 This case was
certified under the provisions of Article 67(a)(2),
UCMJ, 10 U.S.C. § 867(a)(2) (2000) and Rules 4 and 18 of this Court’s
Rules of
Practice and Procedure.
2 While this case
does not involve any Grostefon
claims, the
Court of Criminal Appeals discussed the problems they perceived to be
aggregated by Grostefon under a Ginn analysis. We therefore chose to
clarify this
issue.
3 We also note that the appellate filings before
the Court of
Criminal Appeals drew that court’s attention to its earlier dispositions
in a number of cases involving allegations against SGT D by other
prisoner
affiants. Those earlier dispositions
included factual determinations that SGT D had engaged in the same
misconduct
that Fagan now alleges, which makes it difficult to now view the
present record
as “compellingly demonstrating” the improbability of those assertions.