Judge GIERKE
delivered the opinion of the Court.
A special court-martial composed of officer and enlisted members convicted appellant, contrary to her pleas, of willfully disobeying a lawful command from a superior commissioned officer and communicating a threat, in violation of Articles 90 and 134, Uniform Code of Military Justice, 10 USC §§ 890 and 934, respectively. The order in question was a “no contact” order, prohibiting appellant from having contact with the estranged wife of Corporal (CPL) B and her children. Appellant had admitted that she was involved in a romantic relationship with CPL B and was pregnant with his child. However, because the lawfulness of the order was stipulated, evidence of this admission was not disclosed to the members.
[71] The adjudged and approved sentence provides for a bad-conduct discharge, confinement and partial forfeiture of pay for 6 months, and reduction to the lowest enlisted grade. The Court of Criminal Appeals affirmed the findings and sentence in an unpublished opinion.
This Court remanded the case for further factfinding and a determination whether appellant was represented at trial by conflict-free counsel. 49 MJ 158 (1998). The Court of Criminal Appeals obtained an affidavit from appellant, asserting that she disobeyed the no-contact order because a civilian lawyer, who also represented her at this special court-martial, “advised [her] not to obey the order because it was bias [sic] and vague,” and because CPL [B] “was never given the opportunity to rebute [sic] the order.”
The Court of Criminal Appeals did not obtain an affidavit from the civilian lawyer. Therefore, there is no conflict of affidavits to be resolved. See generally, United States v. Ginn, 47 MJ 236 (1997).
Upon further review, the Court of Criminal Appeals rejected appellant’s claim of ineffective representation. The court’s reasoning was as follows:
Appellant testified twice under oath during the merits, stating that she did not violate the terms of the order because the incident in question did not happen at Mrs. B’s house. Appellant never stated or inferred that her civilian lawyer (the same attorney who represented her at her court-martial) told her: (1) to violate the order; or (2) that she could violate the order without any possibility of punishment. Further, appellant did not testify or imply that she violated the order because she mistakenly believed that to do so was not a crime:
The court held that appellant received effective assistance of counsel and found that her disobedience “was the product of her knowing and willful choice to violate the order, and not the result of any ineffective assistance of counsel or conflict of interest.” Un-pub. op. at 2.
This Court granted review of the conflict-of-interest issue.1 Appellant argues that, in order for her civilian lawyer to effectively represent her, he would have had to raise the defense of mistake due to erroneous pre-trial legal advice, thereby admitting his incompetence. Final Brief at 4. Thus, appellant argues that the lawyer had an actual conflict of interest, id. at 7, because he could not effectively defend appellant and defend the propriety of his own conduct at the same time. For the reasons set out below, we disagree.
The order in question was given to appellant in writing by her commander, Captain (CPT) Gervais. It includes the following directive language:
2. I order you to have no contact [with Mrs. B], or her children, except for required court appearances or command directed appearances.
3. I order you not to visit, see, speak to, nor be in the immediate vicinity of [Mrs. B], or her children. Whether you are on or off duty you are not to touch, go near, speak to, talk on [the] phone to, write to or send any message to [Mrs. B], or her children. You are not to go near [Mrs. B’s residence].
At trial, appellant’s defense counsel (the same civilian attorney referred to in appellant’s affidavit) made a motion in limine to preclude appellant’s commander from testifying about the reasons for issuing the order. The military judge declined to grant the motion in limine, opining “that if the lawfulness of an order is challenged, then the Government’s entitled to show what the commander’s basis for [issuing] the order is.” Defense counsel then informed the military judge that the defense did not “intend to challenge the lawfulness of the order.” Defense counsel stated, “Our position is it was a [72] lawful order.” Thereafter, trial counsel and defense counsel, with the express consent of appellant, stipulated that the order was given and that it was a lawful order.
CPT Gervais testified that she gave the order on February 22, 1995, at 1:15 p.m. She testified that appellant disobeyed it within 40 minutes after it was given. A “General Counseling Form” reflects that CPT Gervais received a telephone call from Mrs. B, complaining that while she was talking to CPL B on the telephone, appellant called her vulgar names. Appellant signed the form, indicating that she concurred in the accuracy of the information on it.
CPT Gervais counseled appellant about the order again on April 11, 1995. On this date, Mrs. B called CPT Gervais and complained that CPL B and their son “were residing” with appellant. Appellant declined to concur in the accuracy of the counseling form. She wrote, “I nonconcur do [sic] to the grounds that I was advised by my civilian attorney that the command order was bias [sic] and that CPL [B] has every right to have his child in any visinity [sic] he deems proper, due to the grounds that coustady [sic] has not been determined by a court of law.”
The theory of the prosecution was that appellant disobeyed the order by being in Mrs. B’s house and the yard. The theory of the defense was that appellant attended a barbecue at a house approximately 1000 feet from Mrs. B’s house, parked her car 300-400 feet from Mrs. B’s house, and was never “near” the house or Mrs. B. Appellant testified that she did not disobey the order and that she was never in the house or the yard, and she supported her testimony with corroborating witnesses. The prosecution produced testimony that appellant and CPL B were seen in the house and the yard.
When an alleged conflict of interest is at issue, “a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance.” Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), quoted in United States v. Breese, 11 MJ 17, 20 (CMA 1981). The burden of proof is on the defense. United States v. Calhoun, 49 MJ 485, 489 (1998), citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
An allegation of ineffective representation presents a mixed question of law and fact, which we review de novo. United States v. Smith, 44 MJ 459, 460 (1996).
Appellant voluntarily stipulated that the order was given and that it was lawful. She does not assert, and the record does not show, that this stipulation was the product of any concern by her civilian attorney for protecting himself from an accusation of giving bad advice.
Free access — add to your briefcase to read the full text and ask questions with AI
Judge GIERKE
delivered the opinion of the Court.
A special court-martial composed of officer and enlisted members convicted appellant, contrary to her pleas, of willfully disobeying a lawful command from a superior commissioned officer and communicating a threat, in violation of Articles 90 and 134, Uniform Code of Military Justice, 10 USC §§ 890 and 934, respectively. The order in question was a “no contact” order, prohibiting appellant from having contact with the estranged wife of Corporal (CPL) B and her children. Appellant had admitted that she was involved in a romantic relationship with CPL B and was pregnant with his child. However, because the lawfulness of the order was stipulated, evidence of this admission was not disclosed to the members.
[71] The adjudged and approved sentence provides for a bad-conduct discharge, confinement and partial forfeiture of pay for 6 months, and reduction to the lowest enlisted grade. The Court of Criminal Appeals affirmed the findings and sentence in an unpublished opinion.
This Court remanded the case for further factfinding and a determination whether appellant was represented at trial by conflict-free counsel. 49 MJ 158 (1998). The Court of Criminal Appeals obtained an affidavit from appellant, asserting that she disobeyed the no-contact order because a civilian lawyer, who also represented her at this special court-martial, “advised [her] not to obey the order because it was bias [sic] and vague,” and because CPL [B] “was never given the opportunity to rebute [sic] the order.”
The Court of Criminal Appeals did not obtain an affidavit from the civilian lawyer. Therefore, there is no conflict of affidavits to be resolved. See generally, United States v. Ginn, 47 MJ 236 (1997).
Upon further review, the Court of Criminal Appeals rejected appellant’s claim of ineffective representation. The court’s reasoning was as follows:
Appellant testified twice under oath during the merits, stating that she did not violate the terms of the order because the incident in question did not happen at Mrs. B’s house. Appellant never stated or inferred that her civilian lawyer (the same attorney who represented her at her court-martial) told her: (1) to violate the order; or (2) that she could violate the order without any possibility of punishment. Further, appellant did not testify or imply that she violated the order because she mistakenly believed that to do so was not a crime:
The court held that appellant received effective assistance of counsel and found that her disobedience “was the product of her knowing and willful choice to violate the order, and not the result of any ineffective assistance of counsel or conflict of interest.” Un-pub. op. at 2.
This Court granted review of the conflict-of-interest issue.1 Appellant argues that, in order for her civilian lawyer to effectively represent her, he would have had to raise the defense of mistake due to erroneous pre-trial legal advice, thereby admitting his incompetence. Final Brief at 4. Thus, appellant argues that the lawyer had an actual conflict of interest, id. at 7, because he could not effectively defend appellant and defend the propriety of his own conduct at the same time. For the reasons set out below, we disagree.
The order in question was given to appellant in writing by her commander, Captain (CPT) Gervais. It includes the following directive language:
2. I order you to have no contact [with Mrs. B], or her children, except for required court appearances or command directed appearances.
3. I order you not to visit, see, speak to, nor be in the immediate vicinity of [Mrs. B], or her children. Whether you are on or off duty you are not to touch, go near, speak to, talk on [the] phone to, write to or send any message to [Mrs. B], or her children. You are not to go near [Mrs. B’s residence].
At trial, appellant’s defense counsel (the same civilian attorney referred to in appellant’s affidavit) made a motion in limine to preclude appellant’s commander from testifying about the reasons for issuing the order. The military judge declined to grant the motion in limine, opining “that if the lawfulness of an order is challenged, then the Government’s entitled to show what the commander’s basis for [issuing] the order is.” Defense counsel then informed the military judge that the defense did not “intend to challenge the lawfulness of the order.” Defense counsel stated, “Our position is it was a [72] lawful order.” Thereafter, trial counsel and defense counsel, with the express consent of appellant, stipulated that the order was given and that it was a lawful order.
CPT Gervais testified that she gave the order on February 22, 1995, at 1:15 p.m. She testified that appellant disobeyed it within 40 minutes after it was given. A “General Counseling Form” reflects that CPT Gervais received a telephone call from Mrs. B, complaining that while she was talking to CPL B on the telephone, appellant called her vulgar names. Appellant signed the form, indicating that she concurred in the accuracy of the information on it.
CPT Gervais counseled appellant about the order again on April 11, 1995. On this date, Mrs. B called CPT Gervais and complained that CPL B and their son “were residing” with appellant. Appellant declined to concur in the accuracy of the counseling form. She wrote, “I nonconcur do [sic] to the grounds that I was advised by my civilian attorney that the command order was bias [sic] and that CPL [B] has every right to have his child in any visinity [sic] he deems proper, due to the grounds that coustady [sic] has not been determined by a court of law.”
The theory of the prosecution was that appellant disobeyed the order by being in Mrs. B’s house and the yard. The theory of the defense was that appellant attended a barbecue at a house approximately 1000 feet from Mrs. B’s house, parked her car 300-400 feet from Mrs. B’s house, and was never “near” the house or Mrs. B. Appellant testified that she did not disobey the order and that she was never in the house or the yard, and she supported her testimony with corroborating witnesses. The prosecution produced testimony that appellant and CPL B were seen in the house and the yard.
When an alleged conflict of interest is at issue, “a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance.” Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), quoted in United States v. Breese, 11 MJ 17, 20 (CMA 1981). The burden of proof is on the defense. United States v. Calhoun, 49 MJ 485, 489 (1998), citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
An allegation of ineffective representation presents a mixed question of law and fact, which we review de novo. United States v. Smith, 44 MJ 459, 460 (1996).
Appellant voluntarily stipulated that the order was given and that it was lawful. She does not assert, and the record does not show, that this stipulation was the product of any concern by her civilian attorney for protecting himself from an accusation of giving bad advice.
Although defense counsel criticized the order for vagueness in both his opening statement and closing argument, the focus of his criticism was on the term “near.” Appellant’s complaints about the vagueness of the order before and after trial concerned the question how “near” to Mrs. B she could be without violating the order. Appellant’s complaint at her second counseling session was about applicability of the order to contact with CPL B’s son. At no time before, during, or after trial has appellant contended that she thought that being in Mrs. B’s house or yard would not violate the order.
The factual contest at trial was a credibility battle. The pivotal issue was not the legality of the order; it was whether appellant was at Mrs. B’s house. The Government witnesses said appellant was in Mrs. B’s house and the yard. Appellant and her witnesses said that she was never closer than 300 feet from Mrs. B’s residence. There was no issue whether 300 feet from the house was near enough to violate the order. Thus, defense counsel had no actual conflict of interest.
The court below found that appellant was effectively and vigorously defended. We agree.
The decision of the United States Army Court of Criminal Appeals on remand is affirmed.