United States v. Cain

57 M.J. 733, 2002 CCA LEXIS 241, 2002 WL 31367434
CourtArmy Court of Criminal Appeals
DecidedOctober 21, 2002
DocketARMY 9800797
StatusPublished
Cited by3 cases

This text of 57 M.J. 733 (United States v. Cain) is published on Counsel Stack Legal Research, covering Army Court of Criminal Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Cain, 57 M.J. 733, 2002 CCA LEXIS 241, 2002 WL 31367434 (acca 2002).

Opinion

OPINION OF THE COURT

CURRIE, Senior Judge:

A military judge, sitting as a general court-martial, convicted appellant, pursuant to his pleas, of indecent assault (two specifications), in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934 [hereinafter UCMJ]. Appellant was sentenced to a dishonorable discharge, confinement for five years, forfeiture of all pay and allowances, and reduction to Private El. Pursuant to a pretrial agreement, the convening authority approved only so much of the sentence as provided for a dishonorable discharge, confinement for twenty-four months, forfeiture of all pay and allowances, and reduction to Private El. This case is before the court for review pursuant to Article 66, UCMJ, 10 U.S.C. § 866.

In his initial brief, appellant alleged that his lead trial defense counsel, Major (MAJ) S, had a coerced, homosexual relationship with him, which denied him effective assistance of counsel. As we were unable to resolve the facts underlying appellant’s allegations from the record of trial, we ordered that a hearing be conducted pursuant to United States v. DuBay, 17 U.S.C.M.A. 147, 37 C.M.R. 411, 1967 WL 4276 (1967), and that the presiding military judge make findings of fact and conclusions of law on the following two issues raised by appellant:

I
WHETHER APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL WHERE A COERCED HOMOSEXUAL RELATIONSHIP EXISTED BETWEEN THE APPELLANT AND THE LEAD TRIAL DEFENSE COUNSEL CREATING AN ACTUAL CONFLICT OF INTEREST.
II
WHETHER THE APPELLANT WAS DENIED HIS FUNDAMENTAL RIGHT TO CONFLICT-FREE COUNSEL WHERE THE LEAD DEFENSE COUNSEL COERCED THE APPELLANT INTO A SECRETIVE HOMOSEXUAL RELATIONSHIP WITH HIM THEREBY UNDERMINING APPELLANT’S PLEAS OF GUILTY TO THE OFFENSES TO WHICH THE APPELLANT NOW STANDS CONVICTED.

The DuBay hearing was conducted on 14 May 2001. On 16 July 2001, the military judge published his findings of fact, which we adopt, and conclusions of law.

FINDINGS OF FACT

We agree with the DuBay military judge that MAJ S and appellant had a consensual sexual relationship which did not create a conflict of interest denying appellant effective assistance of counsel. Pursuant to Arti[735]*735cle 66(c), UCMJ, we make the following findings of fact:

1. Appellant was a thirty-three year old sergeant (E5) with more than twelve years of service at the time of his court-martial. He had a GT score of 112 and a two-year Associate’s Degree.

2. Appellant committed the offenses to which he ultimately pleaded guilty in August 1993 and February 1995. At the time of the first offense, appellant was assigned to the Reserve Officers’ Training Corps (ROTC) Department, Norwich University, Vermont. Appellant invited JM, a student at Norwich, to his apartment as a prospective roommate. Appellant gave him beer, which he drank until he fell asleep. While JM slept, appellant opened JM’s pants to expose his penis and performed fellatio on him. JM did not consent to appellant’s conduct.

3. In February 1995, appellant invited PH and his brother, CH, both eighteen-years old, to his apartment. Appellant offered both boys alcohol, which they drank to excess. Appellant told PH to “crash” on his bed. Sometime later, CH passed out in appellant’s living room. Early the next morning, appellant went into his bedroom; saw that PH, wearing boxer shorts, had an erection; and performed oral and anal sex on him. When PH began to awake, appellant stopped. PH did not consent to appellant’s conduct.

4. On 15 October 1997, three specifications of forcible sodomy were preferred against appellant; two of the specifications were based on appellant’s conduct with JM and PH. Major S, Senior Defense Counsel, U.S. Army Trial Defense Service (TDS), XVIII Airborne Corps and Fort Bragg Field Office, Fort Bragg, North Carolina, detailed himself to appellant’s ease.

5. On 3 December 1997, an Article 32, UCMJ, hearing was conducted at Fort Devens, Massachusetts. Major S represented appellant. On 18 December 1997, the charge and its specifications were referred to a general court-martial.

6. Major S entered into a consensual sexual relationship with appellant shortly before the Article 32, UCMJ, hearing. It lasted to the conclusion of appellant’s court-martial about six months later.

7. Appellant told several people about his relationship with MAJ S and that he wanted to end it, to include his mother, a friend, a staff member for the Servicemembers Legal Defense Network, and two civilian attorneys. Appellant told them that he continued the relationship only because he wanted MAJ S—who he considered to be an excellent, dynamic, and aggressive attorney—to continue to represent him. He also thought that since MAJ S was gay, like himself, he would fight even harder on his behalf. Both civilian attorneys told appellant that MAJ S’s behavior was unethical and illegal and that he should fire him. Appellant did not want to follow their advice because he believed that MAJ S was the best military defense counsel available to him; he could not afford a civilian defense counsel; and he thought that without MAJ S’s representation, he risked conviction and a lengthy jail sentence.

8. Appellant never told MAJ S that he had any reservations about them relationship. As he testified at the DuBay hearing, “[N]ot once did I protest what he was doing to me or what he had me do to him.”

9. In late January 1998, MAJ S, at appellant’s request, detailed Captain (CPT) L to appellant’s ease. Appellant told CPT L that he thought highly of MAJ S, but that the government had two prosecutors at the arraignment, and he felt he was entitled to the same.

10. Several Article 39(a), UCMJ, sessions were held in January, February, and March 1998, concerning appellant’s attempts (ultimately unsuccessful) to secure civilian counsel. Appellant never expressed dissatisfaction with either MAJ S or CPT L during these sessions.

11. Appellant told MAJ S and CPT L that he did not engage in any sexual activity without JM’s and PH’s consent, and that he would not plead guilty to forcible sodomy. Major S also wanted to fight the charges because of the age of the charges, the victims’ credibility problems, and the possible bias of appellant’s command for his whistle-blower activities. Captain L, however, after [736]*736thoroughly familiarizing himself with the evidence, believed that conviction was probable and that appellant faced substantial confinement because of the nature of the offenses: an “ROTC NCO charged with sexually preying on troubled young men.” Major S and appellant eventually agreed.

12. Captain L initiated negotiations with the government regarding a possible pretrial agreement only after first discussing the matter with appellant and obtaining his consent. Negotiations occurred over approximately ten days before trial. Captain L and MAJ S repeatedly consulted with appellant during the negotiations.

13.

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Related

United States v. Cain
59 M.J. 285 (Court of Appeals for the Armed Forces, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
57 M.J. 733, 2002 CCA LEXIS 241, 2002 WL 31367434, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-cain-acca-2002.