United States v. Burt

56 M.J. 261, 2002 CAAF LEXIS 61, 2002 WL 87013
CourtCourt of Appeals for the Armed Forces
DecidedJanuary 24, 2002
DocketNo. 01-0351; Crim.App. No. 33429
StatusPublished
Cited by9 cases

This text of 56 M.J. 261 (United States v. Burt) is published on Counsel Stack Legal Research, covering Court of Appeals for the Armed Forces primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Burt, 56 M.J. 261, 2002 CAAF LEXIS 61, 2002 WL 87013 (Ark. 2002).

Opinions

Chief Judge CRAWFORD

delivered the opinion of the Court.

In May 1998, contrary to his pleas, appellant was convicted by officer and enlisted members of failing to obey a lawful order to report for random urinalysis testing, failing to obey a no-contact order, wrongful use of marihuana, assault consummated by a battery, and adultery, in violation of Articles 92, 112a, 128, and 134, Uniform Code of Military Justice, 10 USC §§ 892, 912a, 928, and 934. At the time of this court-martial, appellant had 255 months of active service with the United States Air Force and was otherwise retirement eligible. The convening authority approved a sentence of a bad-conduct discharge, confinement for two years, and reduction to the lowest enlisted grade. Pursuant to Article 58b, UCMJ, 10 USC § 858b, the convening authority waived automatic forfeitures for the benefit of appellant’s wife and dependent children. The Air Force Court of Criminal Appeals affirmed the findings and sentence. 54 MJ 687 (2001).

Appellant now claims that he received ineffective assistance of counsel during his sentencing proceedings.1 We review claims of ineffective representation de novo. United States v. Lee, 52 MJ 51, 52 (1999). For the reasons contained herein, we affirm the decision of the Court of Criminal Appeals.

This was appellant’s second court-martial. In May 1997, appellant was convicted by a general court-martial of wrongful use of both marijuana and cocaine, and was sentenced, inter alia, to a reduction from Master Sergeant to Senior Airman (E-4).

Sentencing proceedings during the court-martial now under review were brief. The Government introduced over fifty pages of documents that fairly captured appellant’s career in the Air Force. Included in this documentation were his enlisted performance reports for approximately twenty years of service and a personnel data sheet reflecting four previous honorable discharges, foreign service in Italy and the United Kingdom, his awards and decorations, and the fact that he was married with three dependents. The Government presented no witnesses in aggravation.

The defense’s case consisted of eleven exhibits and appellant’s unsworn testimony. Among these exhibits were over fifty pages of letters and certificates of appreciation, statements of good character from both senior civilians and enlisted members, and a note from appellant’s wife asking the convening authority to consider her and the children because they depended on appellant’s support for fifty percent of their livelihood.

While addressing the court members, appellant thanked them for their time and consideration in reaching the verdict; talked about his life before the Air Force; spoke about his time in the Air Force and some of the highlights of his twenty-one-year career; explained how his marriage failed as early as 1992, but that he and his wife, while separated, continued to be married so that she and the children would have some support; ex[263]*263pressed regret for his relationship with the woman that he assaulted, as well as with whom he committed adultery; expressed remorse for his conduct; and asked the members to consider not only his service record, but also his family’s need for continued financial support when sentencing him.

Prior to instructing the members on sentencing, the military judge ascertained that appellant was retirement eligible. At that time, the following colloquy occurred between the military judge and defense counsel:

MJ: There is an optional instruction that to you.
If a punitive discharge is adjudged, if approved and ordered executed, the accused will lose all retirement benefits.
However, regardless of the sentence of this court, even if a punitive discharge is adjudged, the Secretary of the AirForce or his designee may instead allow the accused to retire from the Air Force.
Does either side request that instruction?
DC: Your Honor, we would not like that instruction.
MJ: Should I interpret that as an objection?
DC: Yes, Your Honor

After the Court of Criminal Appeals rendered its decision in this case, Captain Heck-er, one of appellant’s trial defense counsel, provided a declaration explaining that the trial defense team rejected the military judge’s proposed instruction because a part of the instruction “could make the members believe that such Secretarial clemency action was routinely given. Instead ..., we decided that we could argue that the punitive discharge would result in the loss of retirement benefits for SrA Burt, since that was an accurate statement of the law.” With the benefit of hindsight, counsel now argues that the decision to reject the military judge’s instruction was error, in light of civilian defense counsel’s “convoluted and ineffective argument” that contained “false and inflammatory comment.”

During his sentencing argument, trial counsel fairly and forcefully noted that appellant now had two general court-martial convictions within one year. While alluding to the fact that appellant probably deserved a dishonorable discharge, trial counsel told the members that “a bad-conduct discharge [will get] the point across.” Trial counsel addressed the retirement issue, arguing that appellant was given a chance after his first court-martial conviction to earn his retirement and support the family about whom he professed to care. Instead, appellant forfeited that opportunity to earn a retirement pension while engaging in further serious misconduct, to include continuing to use marijuana.

In response, civilian defense counsel emphasized that appellant had over twenty years of honorable service with four honorable discharges, and that the members needed to consider the “whole person” when fashioning a sentence. Contrary to appellant’s contention, civilian defense counsel’s argument was focused and demonstrated a trial strategy. In particular, counsel emphasized that jail would “accomplish nothing.” With two federal convictions and a military background in the areas of security and intelligence, appellant essentially had non-employable skills and would need to start anew in the labor force. Counsel emphasized that his client was forty-one years old and needed counseling, but not imprisonment.

The gravamen of appellant’s argument revolves around civilian counsel’s statement concerning appellant’s retirement.2 When arguing that appellant was not a threat to society and that imprisonment would serve no rehabilitating purpose, counsel said: “If you give him a letter of reprimand, he’s still going to retire here in the next 30 days.” Counsel continued that theme later: “A punitive discharge is really not going to accomplish much. It might make everyone feel better and boy, we sure showed him, but he’s [264]*264going to be gone. He’s going to be a memory.”

In rebuttal to defense counsel’s argument, trial counsel pointed out:

There is no evidence of when he is leaving the service. We heard oh, in 30 days. Where did that number come from? You’ve already heard from the military judge that the only evidence you hear in the courtroom comes from witnesses and documents. Where did that come from? Argument.

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Cite This Page — Counsel Stack

Bluebook (online)
56 M.J. 261, 2002 CAAF LEXIS 61, 2002 WL 87013, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-burt-armfor-2002.