United States v. Mann

16 M.J. 571, 1983 CMR LEXIS 880
CourtUnited States Court of Military Appeals
DecidedMay 27, 1983
DocketCM 441891
StatusPublished

This text of 16 M.J. 571 (United States v. Mann) is published on Counsel Stack Legal Research, covering United States Court of Military 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. Mann, 16 M.J. 571, 1983 CMR LEXIS 880 (cma 1983).

Opinion

OPINION OF THE COURT

FOREMAN, Judge:

In accordance with his pleas, the appellant was convicted of one specification of attempted burglary, one specification of attempted sodomy, two specifications of rape, two specifications of robbery, one specification of burglary and two specifications of aggravated assault, in violation of Articles 80, 120, 122, 129 and 128, Uniform Code of Military Justice, 10 U.S.C. §§ 880, 920, 922, 929 and 928 (1976). He was sentenced to a dishonorable discharge, total forfeitures, confinement at hard labor for life and reduction to the lowest enlisted grade. The convening authority reduced the conviction of burglary to housebreaking, in violation of Article 130, Uniform Code of Military Justice, 10 U.S.C. § 930 (1976), approved the remaining findings of guilty, and, in accordance with a pretrial agreement, reduced the period of confinement from life imprisonment to confinement at hard labor for twenty years.

The appellant first contends that his pleas of guilty should be set aside because they were the product of undue coercion and impermissible psychological pressure from an improper Criminal Investigation Command (CID) investigation. Secondly, he contends that he was not accorded adequate representation “due to neglect, misadvice, failure to investigate and other serious derelictions and wrongful motives on the part of his counsel.” We find both contentions without merit.

At the trial the military judge conducted an extensive plea inquiry during which the appellant stated that he understood the elements of the offenses charged and the consequences of a guilty plea, admitted his guilt, stated that he understood the terms of his pretrial agreement, and expressed his satisfaction with his detailed counsel, Captains Brancato and Vick. The appellant does not now contest the adequacy of the plea inquiry. Instead he asserts that he gave false assurances to the military judge because of the pressure and coaching of his counsel.

In a post-trial affidavit the appellant makes numerous allegations of misconduct and derelictions by his counsel. We have examined the appellant’s responses during the plea inquiry, the allied papers, the affidavits submitted by the appellant, and the affidavits of Captain Brancato and Captain Vick. On the basis of all the evidence before us we find the appellant’s allegations unworthy of belief.

The appellant contends that Captain Brancato labored under a conflict of interest because he was a neighbor and casual acquaintance of one of the rape victims. In his post-trial affidavit, Captain Brancato states that he disclosed to the appellant that he and the victim, a female Army [573]*573captain, lived in the same building, an apartment-type bachelor officers quarters, along with twenty or thirty other officers, but that he did not know her. We believe that the fact that Captain Brancato lived in the same apartment building as the victim in no way affects the voluntariness of the pleas or the quality of Captain Brancato’s representation. Nor do we believe that such a remote and incidental relationship amounts to a conflict of interest. Captain Brancato made the disclosure to the appellant out of an abundance of caution. The appellant had ample opportunity to request other military counsel but did not do so. We find no conflict of interest. See Standards for Criminal Justice § A-3.5(a) (2d edition 1980); United States v. Breese, 11 M.J. 17, 20 (C.M.A.1981), citing Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333 (1980).

The appellant also complains that his defense counsel refused to allow him to assist in the defense of his case. In his post-trial affidavit the appellant asserts that he requested his counsel to arrange for him to telephonically contact two women who had provided the CID with damaging evidence against him. It is clear from the affidavits of Captain Brancato and Captain Vick that the appellant’s concept of assisting in his own defense was to exert influence on potential witnesses against him. His counsel were bound not to assist in such misconduct. See Standards, supra, §§ 4-3.-7(b), 4r-5.1(c); Model Code of Professional Responsibility DR 7-102(A)(7) (1981).

The appellant also claims that his counsel pressured him into a pretrial agreement without explaining the consequences of a guilty plea or the effect of the pretrial agreement. We find the appellant’s allegation patently false. Captain Brancato states that both counsel explained the consequences of a guilty plea to the appellant after the appellant initiated the consideration of a guilty plea. The military judge likewise conducted an extensive plea inquiry during which the appellant was able to convince the military judge that he understood the consequences of his plea and the effect of his pretrial agreement. We note that the appellant is not a naive recruit of marginal intelligence, but rather a twenty-five year old specialist five with five and a half years of service and a GT score of 147. The appellant asserts that he gave false answers to the military judge during the plea inquiry. We find his answers during the plea inquiry more believable than the self-serving declarations of his post-trial affidavit. See United States v. Deadmon, 3 M.J. 1003, 1004 (A.C.M.R.1977), pet. denied, 4 M.J. 149 (C.M.A.1977), citing Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 1629, 52 L.Ed.2d 136 (1977).

The appellant next contends that his defense counsel refused to investigate the circumstances under which the CID had obtained damaging but inaccurate statements from two women with whom the appellant admittedly had “unorthodox or unconventional sexual relations.... ” We find this complaint without merit. In the federal courts there appears to be a different standard for applying the. duty of counsel to investigate in guilty pleas as compared to contested cases. In guilty plea cases the focus of the inquiry appears to shift to counsel’s duty to insure that the plea is provident. See Pollinzi v. Estelle, 628 F.2d 417 (5th Cir.1980); Jones v. Henderson, 549 F.2d 995 (5th Cir.), cert, denied, 434 U.S. 840, 98 S.Ct. 135, 54 L.Ed.2d 103 (1977); Walker v. Caldwell, 476 F.2d 213 (5th Cir.1973); see also Annot., 26 A.L.R. Fed. 218, 265 (1976). The question whether military courts should be more protective than the civilian federal courts need not detain us, because we are satisfied of the adequacy of representation in this case under either standard.

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Related

Blackledge v. Allison
431 U.S. 63 (Supreme Court, 1977)
Cuyler v. Sullivan
446 U.S. 335 (Supreme Court, 1980)
United States v. Rivas
3 M.J. 282 (United States Court of Military Appeals, 1977)
United States v. Deadmon
3 M.J. 1003 (U.S. Army Court of Military Review, 1977)
United States v. Williams
5 M.J. 570 (U.S. Army Court of Military Review, 1978)
United States v. Breese
11 M.J. 17 (United States Court of Military Appeals, 1981)
United States v. Jefferson
13 M.J. 1 (United States Court of Military Appeals, 1982)
United States v. Combest
14 M.J. 927 (U.S. Army Court of Military Review, 1982)

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Bluebook (online)
16 M.J. 571, 1983 CMR LEXIS 880, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-mann-cma-1983.