              U NITED S TATES AIR F ORCE
             C OURT OF C RIMINAL APPEALS
                         ________________________

                             No. ACM S32435
                         ________________________

                           UNITED STATES
                               Appellee
                                     v.
                      Braxton T. SWAFFORD
               Airman Basic (E-1), U.S. Air Force, Appellant
                         ________________________

          Appeal from the United States Air Force Trial Judiciary
                         Decided 4 December 2017
                         ________________________

Military Judge: J. Wesley Moore.
Approved sentence: Bad-conduct discharge, confinement for 45 days, and for-
feiture of $500.00 pay for one month. Sentence adjudged 2 August 2016 by
SpCM convened at Sheppard Air Force Base, Texas.
For Appellant: Major Allen S. Abrams, USAF (argued); Colonel Jane E.
Boomer.
For Appellee: Major J. Ronald Steelman III, USAF (argued); Captain Anne M.
Delmare, USAF (on brief); Lieutenant Colonel Joseph J. Kubler, USAF; Major
Mary Ellen Payne, USAF; Major Meredith L. Steer, USAF; Major Matthew L.
Tusing.
Amicus Curiae for Appellant: Rebecca I. Naranjo (law student); Andrea M.
Piloto (law student); Eric R. Carpenter, Esq. (supervising attorney)—Florida
International University School of Law.
Before DREW, MAYBERRY, and DENNIS, Appellate Military Judges.
Judge DENNIS delivered the opinion of the court, in which Chief Judge DREW
and Senior Judge MAYBERRY joined.
                         ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 18.4.
                         ________________________
                  United States v. Swafford, No. ACM S32435


DENNIS, Judge:
    A special court-martial composed of officer and enlisted members convicted
Appellant, contrary to his pleas, of one charge and specification of wrongful use
of marijuana, in violation of Article 112a, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 912a. The members sentenced Appellant to a bad-conduct
discharge, confinement for 45 days, and forfeiture of $500.00 pay for one
month. 1
    Appellant asks this court to set aside his conviction. At the heart of his
request is an assertion that his conviction was based on pretrial statements
taken in violation of his rights to counsel. In his sole assignment of error, Ap-
pellant alleges that his trial defense counsel was ineffective in not filing a mo-
tion to suppress the statements. Having reviewed his rights to counsel under
the Fifth2 and Sixth3 Amendments, we find no violation of these rights oc-
curred. While we hold that Appellant is also protected by an expanded right to
counsel under Military Rule of Evidence 305(c)(3), we do not find a violation of
that right in Appellant’s case. Accordingly, we affirm. 4

                                I. BACKGROUND
    This is Appellant’s second court-martial for wrongful use of marijuana. His
first court-martial (Swafford I) included one specification of wrongful use of
marijuana on divers occasions between 1 August and 5 November 2015, as well
as one specification of wrongful distribution of marijuana during the same pe-
riod. Swafford I was tried on 29 March 2016. United States v. Swafford, No.
ACM S32416, 2017 CCA LEXIS 681 (A.F. Ct. Crim. App. 17 Oct. 2017) (unpub.
op.). Prior to his court-martial in Swafford I, Appellant was detailed a military
defense counsel, Captain (Capt) PC, who submitted a Notice of Representation
on 24 February 2016 to Appellant’s commander, the Sheppard Air Force Base
(SAFB) legal office, and the Air Force Office of Special Investigations (AFOSI)
stating the following:
          1. This is to inform you that I currently represent, and have
       an attorney-client relationship with A1C Braxton T. Swafford
       pertaining to all potential military adverse actions. Conse-



1 The members announced a sentence which included “$500.00 pay for three months.”
The staff judge advocate’s recommendation noted the error in failing to include the
required “pay per month” language in the announcement of sentence. Only so much of
the sentence as provided for $500.00 pay for one month was approved.
2 U.S. CONST. amend. V.

3 U.S. CONST. amend. VI.
4 We heard oral argument in this case on 24 October 2017 at Florida International

University School of Law as part of Project Outreach.

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                  United States v. Swafford, No. ACM S32435


       quently, I request that you not interview, interrogate, or ques-
       tion him and that you refrain from requesting any statements,
       oral or written, unless and until you have contacted me. Fur-
       thermore, any prior consent for search, samples or any other pro-
       cedure is hereby withdrawn.
           2. This request is in accordance with the rights afforded by
       Article 31 of the Uniform Code of Military Justice, Military
       Rules of Evidence 305(e) and the Fifth and Sixth Amendments
       to the United States Constitution, as interpreted by case law.
       Thank you in advance for your cooperation and understanding
       in this matter.
    Appellant subsequently entered into a pretrial agreement (PTA) in which
he agreed to plead guilty in exchange for the convening authority’s agreement
to cap his confinement at six months. There were no other sentencing limita-
tions. Appellant was sentenced to a bad-conduct discharge, confinement for two
months, and reduction to E-1. Appellant was ordered to provide a urine sample
the same day he entered confinement. This sample tested positive for mariju-
ana and led to a single charge and specification of wrongful use of marijuana
on divers occasions between on or about 1 March and 29 March 2016—the
charge currently before this court.
   AFOSI Detective MB—the same detective who investigated Appellant in
Swafford I—received notice of Appellant’s positive urinalysis while Appellant
was still in confinement for Swafford I. He arranged with the Wichita County
Sheriff’s Office to transport Appellant to SAFB for AFOSI questioning on
22 April 2016, prior to the completion of post-trial processing in Swafford I.
    Detective MB began the interview by showing Appellant the positive uri-
nalysis result and advising him of his rights under Article 31, UCMJ. Capt PC
was not present for the interview. Appellant waived his Article 31, UCMJ,
rights and declined to have counsel present. 5 Appellant told Detective MB that
he did not know why his urine test was positive for marijuana, and suggested
the positive 29 March 2016 test might be from his smoking marijuana on 5
November 2015. Appellant further stated that he believed marijuana could
stay in a person’s system for up to 90 days. Appellant also gave written consent
to search his dorm room and his cellular phone.
   Detective MB searched Appellant’s cell phone and found text messages be-
tween Appellant and Airman First Class (A1C) JS. That same day, Detective


5 Appellant’s interview was apparently recorded in accordance with AFOSI standard
operating procedures. The recording, however, is not included in the record of trial.
The evidence of Appellant’s waiver was introduced at trial through the cross-examina-
tion of Detective MB.

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                 United States v. Swafford, No. ACM S32435


MB interviewed A1C JS. A1C JS told investigators that Appellant was in fact
living off-base, that in March 2016 at the off-base residence Appellant showed
him a jar holding approximately one ounce of marijuana, and that he had seen
Appellant smoke marijuana five or six times in March 2016. The charge in this
case was subsequently preferred on 13 May 2016 and referred for trial on 18
May 2016. Capt PC was notified of the new charge and specification and re-
ceipted for the referral on 18 May 2016.
    Capt PC submitted a written waiver of Appellant’s right to submit matters
for clemency in Swafford I on 10 June 2016. According to the declaration from
Capt PC provided to this court, Capt PC’s representation of Appellant con-
cluded upon the waiver submission. The Swafford I sentence was approved as
adjudged on 16 June 2016, after Appellant had already completed his term of
confinement.
    Appellant’s trial defense counsel in the case now before us, Major (Maj) AC,
began her representation of Appellant “in early July 2016.” According to the
declaration Maj AC submitted to this court, she knew Appellant was inter-
viewed while in confinement for his previous court-martial, but decided “there
was not a reasonable basis for filing a motion to suppress.” Specifically, Maj
AC believed Detective MB questioned Appellant about new misconduct not re-
lated to his previous representation.
    At trial, Appellant testified in his own defense. He testified that he used
marijuana in the fall of 2015 as a result of stress in his life and was court-
martialed. He denied using marijuana in March of 2016. On cross-examina-
tion, trial counsel sought to discredit Appellant’s denial of misconduct using
statements from his April 2016 interview with Detective MB. Trial counsel of-
fered the Swafford I court-martial order—which showed the original trial in-
volved the use and distribution of marijuana—to rebut the premise that Ap-
pellant’s crimes were stress induced.

                               II. DISCUSSION
   Appellant alleges he was denied the effective assistance of counsel under
the Sixth Amendment protections outlined in Mil. R. Evid. 305(c)(3).
    In an allegation of ineffective assistance of counsel, “the burden rests on
the accused to demonstrate a constitutional violation.” United States v. Cronic,
466 U.S. 648, 658 (1984). Appellant must show his trial defense counsel was
not only deficient, but that the deficiency prejudiced his defense. Wiggins v.
Smith, 539 U.S. 510, 521 (2003) (citing Strickland v. Washington, 466 U.S. 668,
687 (1984)). Counsel is deficient when representation falls “below an objective
standard of reasonableness.” Id. (quoting Strickland, 466 U.S. at 688). To es-
tablish prejudice, Appellant must show there is a “reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have

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                 United States v. Swafford, No. ACM S32435


been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. at 534 (quoting Strickland, 466 U.S. at 694)
(internal quotation marks omitted).
    Consistent with this principle, our superior court has stated, “[w]hen a
claim of ineffective assistance of counsel is premised on counsel’s failure to
make a motion to suppress evidence, an appellant must show that there is a
reasonable probability that such a motion would have been meritorious.”
United States v. Jameson, 65 M.J. 160, 163–64 (C.A.A.F. 2007) (quoting United
States v. McConnell, 55 M.J. 479, 482 (C.A.A.F. 2001)) (internal quotation
marks omitted). As applied to this case, Appellant must establish that his right
to counsel was violated. We review such claims de novo. United States v.
Gutierrez, 66 M.J. 329, 330–31 (C.A.A.F. 2008).
    Within the military justice system, the right to counsel stems from multi-
ple sources: the Fifth and Sixth Amendments, the Military Rules of Evidence,
and the published decisions of this and our superior courts interpreting these
rights. “While the protections afforded an accused by these sources may over-
lap, they are not coextensive and require independent analysis.” United States
v. Kerns, 75 M.J. 783, 788 (A.F. Ct. Crim. App. 2016); see also United States v.
Evans, 75 M.J. 302, 305 (C.A.A.F. 2016). In order to assess whether Appel-
lant’s motion to suppress would have been successful, we will review the mer-
its of each of these rights to counsel, as interpreted by precedent, in turn.
    We begin with the Fifth Amendment. Under the Fifth Amendment, the
right to counsel is invoked once an accused unequivocally requests counsel in
a custodial setting. See Arizona v. Roberson, 486 U.S. 675 (1988). Once invoked,
the right may be waived under any one of three circumstances: (1) counsel is
present; (2) the accused person initiates communication with law enforcement;
or (3) 14 non-custodial days have passed since the invocation. Maryland v.
Shatzer, 559 U.S. 98, 104–11 (2010) (citing Edwards v. Arizona, 451 U.S. 477,
484 (1981)) (additional citations omitted). Here, Appellant was properly ad-
vised and intelligently waived his right to counsel. Thus, Appellant concedes,
and we agree, there was not a Fifth Amendment violation in his case. See
United States v. Finch, 64 M.J. 118, 125 (C.A.A.F. 2006).
    Next, we turn to the Sixth Amendment right to counsel, which includes
elements similar to and distinct from the Fifth Amendment. Like the Fifth, a
Sixth Amendment right to counsel may only be invoked by an affirmative re-
quest for counsel. Montejo v. Louisiana, 556 U.S. 778 (2009). Once invoked, the
right may be waived if the accused initiates the communication. Id. Unlike the
Fifth, the Sixth Amendment right to counsel is offense-specific and only at-
taches once charges have been brought. Texas v. Cobb, 532 U.S. 162, 167–68
(2001) (quoting McNeil v. Wisconsin, 501 U.S. 171, 175 (1991)). In Cobb, the
Supreme Court rejected a claim that the Sixth Amendment right to counsel

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                     United States v. Swafford, No. ACM S32435


extended to those offenses which were “factually related” to charged offenses.
Id. at 168. The Court held that any extension of the Sixth Amendment beyond
“the four corners of a charging instrument” would only apply to those offenses
that would be considered the same offense under the Blockburger 6 elements
test. Cobb, 532 U.S. at 173. Here, although Appellant was represented by Capt
PC at the time he was questioned, the Sixth Amendment did not extend Capt
PC’s representation to the new charge since it did not satisfy the elements test.
Specifically, the new charge involved an entirely separate offense than the of-
fenses in Swafford I. Capt PC’s notice of representation, to the extent it consti-
tuted an invocation on behalf of Appellant, was not applicable to all future
prosecutions. 7 McNeil, 501 U.S. at 175.
    The last right to counsel we will examine arises from Mil. R. Evid. 305(c)(3).
The critical question is whether Mil. R. Evid. 305(c)(3) afforded Appellant a
right to counsel beyond those recognized by the Court’s interpretation of the
Sixth Amendment in Cobb. Mil. R. Evid. 305(c)(3) provides that:
              If an accused against whom charges have been preferred is
          interrogated on the matters concerning the preferred charges by
          anyone acting in a law enforcement capacity . . . and the accused
          requests counsel, or if the accused has appointed or retained
          counsel, any statement made in the interrogation, or evidence
          derived from the interrogation, is inadmissible unless counsel
          was present for the interrogation.
   Supplement to the Manual for Courts-Martial, United States, Military
Rules of Evidence (2012 ed.) (2012 MCM Supp.), pt. III, Mil. R. Evid, 305(c)(3)
(emphasis added).
    The fact that Mil. R. Evid. 305(c)(3) offers broader protections than the
Sixth Amendment is clear on its face. The Rule’s provision that it applies “if
the accused has appointed or retained counsel” is plainly broader than the
Montejo requirement to affirmatively request counsel. Before the Supreme
Court’s decision in Montejo, Mil. R. Evid. 305 protected military accused who
had not affirmatively requested counsel. Recognizing the conflict, the drafters
of the Rule offered guidance to clarify how the Montejo decision affected the
existing Rule. The analysis of Mil. R. Evid. 305, (Drafters’ Analysis), provides
that “the protections of subsection (c)(3) exceed the constitutional minimal
standard established by the Sixth Amendment as interpreted by the Supreme


6   Blockburger v. United States, 284 U.S. 299 (1932).
7In light of this finding, we need not address Appellant’s waiver in a Sixth Amendment
context.




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                  United States v. Swafford, No. ACM S32435


Court in Montejo v. Louisiana, 556 U.S. 778 (2009).” 2012 MCM Supp, App. 22,
at A22-19 (emphasis added). The drafters specifically noted that, contrary to
the Court’s holding, a military accused “need not affirmatively request coun-
sel.” Id. By including this language, the drafters reaffirmed the preexisting
Rule protecting a military accused’s expanded right to appointed counsel under
Mil. R. Evid. 305. 8 The Rule itself remained unchanged.
    Unlike their clarification of the Montejo decision, the Drafters’ Analysis
provides no clarification as to how Mil. R. Evid. 305(c)(3) is to be read in light
of Cobb, despite it being decided eight years earlier than Montejo. The Rule’s
language on matters concerning the preferred charge remained largely un-
changed. 9 It is also worth noting that many other changes have been made to
Mil. R. Evid. 305 to conform the Rule with changes to Supreme Court precedent
since Cobb was decided in 2001. See 2012 MCM Supp., App. 22, at A15. Despite
these changes, we find no evidence that the President sought to align Mil. R.
Evid. 305(c)(3) with the elements test limitations set forth in Cobb. We there-
fore rely on prior interpretations of Sixth Amendment protections afforded to
military accused. See generally United States v. Wattenbarger, 21 M.J. 41, 43–
45 (C.M.A. 1985) (finding that the Sixth Amendment may attach prior to the
preferral of charges in unusual circumstances), cert. denied, 477 U.S. 904
(1986).
    In light of these considerations, we hold that an accused’s Sixth Amend-
ment protections under Mil. R. Evid. 305(c)(3) are broader than those outlined
by the Supreme Court in Cobb. This is not to suggest that the scope of Mil. R.
Evid. 305(c)(3) is without limitation. It affords protections rooted in the Sixth
Amendment and requires, at a minimum, a preferral of charges. Id. (citing
United States v. Adams, 45 C.M.R. 175, 179 (C.M.A. 1972)).
    Finally, we apply the Mil. R. Evid. 305(c)(3) right to counsel to Appellant’s
case. The only charges that had been preferred at the time Appellant was ques-
tioned were those tried in Swafford I. Appellant asserts that he nevertheless
satisfied the requirements of Mil. R. Evid. 305(c)(3) because the charge in this
case “concerned” the preferred offense. Appellant identifies several connections
between Swafford I and the charged offense in this case to support his claim.
These include the fact that both cases involved a charge for the use of mariju-




8 See 2008 MCM, pt. III, Mil. R. Evid. 305(e)(2). The language in 305(e)(2) was added
to 305(c)(3) following the reorganization of Mil. R. Evid. 305 in the 2012 MCM Supp.
9E.g., 2012 MCM, pt. III, Mil. R. Evid. 305(d)(1)(B); 2008 MCM, pt. III, Mil. R. Evid.
305(d)(1)(B); 2005 MCM, pt. III, Mil. R. Evid. 305(d)(1)(B); 2002 MCM, pt. III, Mil. R.
Evid. 305(d)(1)(B); 2000 MCM, pt. III, Mil. R. Evid. 305(d)(1)(B).

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                  United States v. Swafford, No. ACM S32435


ana and were investigated by the same AFOSI agent as well as the chronolog-
ical overlap between the pretrial processing of this case and the post-trial pro-
cessing of Swafford I. We are not persuaded.
    Unlike Cobb, there was no factual relationship between the charges in
Swafford I and the charge in this case. In fact, Detective MB began Appellant’s
interview by specifically indicating that the offenses underlying Swafford I
were “water under the bridge” and would not be discussed. Notably, it was Ap-
pellant who repeatedly brought up the use for which he was previously tried,
both during the interview with AFOSI and at trial. Finally, Appellant suggests
the interrogation could have jeopardized his pending PTA. We find this asser-
tion without merit. Appellant’s PTA, signed on 4 March 2016, only allowed for
withdrawal from the agreement if he committed an offense between sentencing
and action, not between the date of the agreement and action. Appellant’s
wrongful use in this case occurred between on or about 1 March and 29 March
2016. He was sentenced in Swafford I on 29 March 2016 and placed into con-
finement the same day. Moreover, Appellant’s adjudged two-month sentence
in Swafford I fell well below the sentence cap of six months. The convening
authority’s withdrawal from the PTA would have had no effect. In short, Ap-
pellant’s rights to counsel under Mil. R. Evid. 305(c)(3) were not violated.
    Appellant has failed to demonstrate that a motion to suppress would have
been meritorious. McConnell, 55 M.J. at 482. There is consequently no need to
analyze whether Maj AC’s performance was deficient. Id. at 481. Appellant’s
claim of ineffective assistance of counsel fails for lack of prejudice. We leave for
another day whether, in a different factual scenario, it is appropriate under
Mil. R. Evid. 305(c)(3) to question a represented accused.

                                III. CONCLUSION
    The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to the substantial rights of Appellant occurred. Arti-
cles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the find-
ings and sentence are AFFIRMED.


                  FOR THE COURT


                  KATHLEEN M. POTTER
                  Acting Clerk of the Court




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