                                    IN THE CASE OF


                            UNITED STATES, Appellee


                                            v.


                          Noel A. PINEDA, Corporal
                        U.S. Marine Corps, Appellant


                                   No. 99-0915
                             Crim. App. No. 98-1659

        United States Court of Appeals for the Armed Forces

                           Argued February 29, 2000

                            Decided January 9, 2001

SULLIVAN, J., delivered the opinion of the Court, in which GIERKE
and EFFRON, JJ., and COX, S.J., joined. CRAWFORD, C.J., filed an
                opinion concurring in the result.

                                        Counsel

For Appellant: Lieutenant Omar R. Lopez, JAGC, USNR (argued).




For Appellee:  Lieutenant Kevin S. Rosenberg, JAGC, USNR (argued); Colonel
    Kevin M. Sandkuhler, USMC, and Commander Eugene E. Irvin, JAGC, USN (on
    brief); Lieutenant Commander Philip Sundel, JAGC, USNR, and Lieutenant
    Janice O’Grady, JAGC, USNR.




Military Judge: R. G. Williams

            THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.
United States v. Pineda, 99-0915/MC


    Judge SULLIVAN delivered the opinion of the Court.


    On August 28, 1997, appellant was tried by a special court-

martial composed of a military judge sitting alone at the Naval

Legal Service Office, Middle Atlantic, Norfolk, Virginia.    In

accordance with his pleas, he was found guilty of unauthorized

absence, nine specifications of making false official statements,

forgery, and six specifications of fraud against the United

States, in violation of Articles 86, 107, 123, and 132, Uniform

Code of Military Justice, 10 USC §§ 886, 907, 923, and 932.    He

was sentenced to a bad-conduct discharge, confinement for 4

months, forfeiture of $600 pay per month for 4 months, and

reduction to pay grade E-1.   On December 18, 1997, the convening

authority acted in this case. 1   On May 28, 1999, the Court of

Criminal Appeals affirmed in an unpublished opinion (No. 98-

1659).



    We granted review in this case on October 22, 1999, on the

following issues:



          I. WHETHER THE LOWER COURT ERRED IN
          AFFIRMING THE MILITARY JUDGE’S DECISION
          NOT TO INQUIRE INTO APPELLANT’S
          UNDERSTANDING OF THE RAMIFICATIONS OF HIS
          REQUEST FOR A BAD-CONDUCT DISCHARGE.


1 The convening authority’s action in this case was unclear
regarding whether appellant’s bad-conduct discharge was approved.
However, an affidavit supplied by the convening authority and
made part of the record without appellant’s objection makes clear
the convening authority’s intent to approve the bad-conduct
discharge. Therefore, we are satisfied the bad-conduct discharge
was approved.

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United States v. Pineda, 99-0915/MC


            II. WHETHER THE LOWER COURT ERRED IN NOT
            FINDING THAT THE TRIAL DEFENSE COUNSEL’S
            ERROR MATERIALLY PREJUDICED APPELLANT’S
            SUBSTANTIAL RIGHTS WHERE HE ARGUED THAT A
            DISCHARGE WAS APPROPRIATE EVEN THOUGH
            APPELLANT HAD NOT REQUESTED IT.


We hold that defense counsel erred in conceding the

appropriateness of a bad-conduct discharge in his sentencing

argument without putting in the record that appellant agreed with

this argument.    United States v. Dresen, 40 MJ 462, 465 (CMA

1994).   Such error, however, did not materially prejudice

appellant’s substantial rights.       United States v. Robinson, 25 MJ

43, 44 (CMA 1987).



    Appellant was a 19-year-old Marine with one-and-a-half years

of military service at the time he began committing the charged

offenses.    He engaged in a scheme to secure additional allowances

from the United States Government by falsifying various official

forms to the effect that he was married.      He maintained this

scheme from March of 1995 to January of 1997, and obtained

various unauthorized allowances in the approximate amount of

$15,000. (Prosecution Exhibit 11).      As a result of these criminal

activities, appellant rented and lived in a two-bedroom apartment

in the Virginia Beach area.    He was promoted to the rank of

corporal (E-4) during the period of these fraudulent activities

and borrowed $15,000 from his parents to make restitution.



    The Court of Criminal Appeals found the following facts

concerning the granted issues:



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United States v. Pineda, 99-0915/MC




            Appellant obtained a pretrial agreement
          which allowed his charges to be brought to
          a special court-martial, in lieu of the
          Government seeking a referral to a general
          court-martial. This was the sole
          consideration given by the Government in
          the pretrial agreement. In return,
          appellant had to enter pleas of guilty to
          the charges and specifications and make
          restitution to the United States in the
          amount of $15,425.03. Appellate Exhibit I
          and Record at 92-95.

            During the sentencing portion of the
          trial, appellant elected to make an
          unsworn statement. The relevant portion
          is as follows:

                ICC: Now, you know what the maximum
          possible punishment is in this case, and
          you and I have been frank with each other
          with regard to the type of discharge
          you’re undoubtedly going to receive, and
          if this court didn’t, the Marine Corps
          would. What confinement are you -- do you
          have any request you want to make of the
          Judge with regard to confinement?

                ACCUSED: Yes - yes, I do. I’m -
          I’m in debt to my to my parents for
          helping with the -- the restitution, and
          I’m making every possible effort to -- to
          pay them back. They don’t make that much
          money themselves, my mom is a teacher’s
          aid at a school and my dad works at a
          factory. My bother [sic] also helps out
          for expenses. I got a second job to -- to
          help them out a little bit more, and
          whatever happens I’m going to try to make
          -- make the best of anything, that’s --
          that’s what I always do.

          Record at 84. During argument on
          sentencing, appellant’s counsel made the
          following comments:

             So, I would respectfully submit,
             Your Honor, that perhaps a bad-
             conduct discharge, and I don’t like
             asking for one, but I’m practical
             it’s going to happen, and the
             forfeiture, and I agree the


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United States v. Pineda, 99-0915/MC


               reduction to pay grade E-1 are
               appropriate in this particular case.
               But I respectfully submit, Your
               Honor, that a period of confinement,
               certainly a lengthy period of
               confinement in his case is -- is
               simply not warranted and I
               respectfully ask in his behalf that
               you not confine him. Thank you.

            Record at 90. The military judge did not
            ask appellant any questions regarding his
            understanding of the ramifications of a
            bad-conduct discharge, nor did he ask
            appellant if he authorized his counsel to
            request a punitive discharge on his
            behalf.

Unpub. op. at 2-3 (emphasis added).



    The appellate court below found that defense counsel erred.

It said, “In appellant’s case, it is clear that his counsel, at a

minimum, conceded the appropriateness of the discharge without

any indication on the record that appellant desired such an

outcome.   This is error.    United States v. Dresen, 40 MJ 462 (CMA

1994).”    Id. at 4.   However, it also found no prejudice.   It

said:



              Prejudice will not be presumed. We must
            decide if the argument of counsel
            prejudiced appellant’s sentence and
            increased appellant’s chances of otherwise
            being awarded a bad-conduct discharge. We
            find that it did not. Unlike the facts in
            McNally, in which our superior court found
            prejudice at a special court-martial
            because his confinement was already
            limited by the pretrial agreement and the
            nature of the charges were not so serious
            that a discharge was inevitable, we find
            the circumstances surrounding appellant’s
            offenses were such that a punitive
            discharge was inevitable. These were very
            serious charges that were brought to a


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United States v. Pineda, 99-0915/MC


           special, vice a general, court-martial
           pursuant to a pretrial agreement.
           Appellant was required to make restitution
           of over $15,000. The charges and
           specifications of criminal misconduct are
           numerous. We cannot believe that any
           sentencing authority would not have
           awarded a punitive discharge, no matter
           how elegantly or forcefully defense
           counsel may have argued for retention.

Id. at 4-5 (emphasis added).

                            ___ ___ ___



    A punitive separation from the military, either a bad-conduct

discharge or a dishonorable discharge, is a severe punishment and

has long been recognized as such by this Court.   See United

States v. McNally, 16 MJ 32, 33 (CMA 1983), and cases cited

therein.   Nevertheless, we have recognized that in certain

circumstances a military accused may request such a punishment be

imposed by his court-martial.   E.g., United States v. Volmar, 15

MJ 339 (CMA 1983).   Our case law, however, reflects this Court’s

views that defense counsel not ask for this type of discharge in

contravention of an accused’s wishes, and that a military judge

make appropriate inquiries where an apparent conflict exists

between them. 2   See United States v. Lyons, 36 MJ 425, 427 (CMA

1993).   Moreover, we have held that a defense counsel may not




2 There is no conflict in the record in this case which
required the military judge to stop this trial and interrogate
appellant and his defense counsel in this matter.

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United States v. Pineda, 99-0915/MC


even concede the appropriateness of a punitive discharge in the

face of a silent record.   Id.



    In United States v. Dresen, this Court restated this law

concerning defense counsel’s arguments for a punitive discharge.

We said:



             Of course, an accused has a right to ask
           the sentencing authority for a particular
           punishment to the exclusion of other kinds
           of permissible penalties, and a defense
           counsel may advocate an accused’s wishes
           in this regard in an effort to effectuate
           them. United States v. Weatherford, 19
           USCMA 424, 42 CMR 26 (1970). Counsel may
           not, however, ask a court-martial to
           impose a punitive discharge when the
           accused’s wishes are to the contrary.
           United States v. Robinson, 25 MJ 43 (CMA
           1987); United States v. Webb, 5 MJ 406
           (CMA 1978); United States v. Weatherford,
           supra. Accordingly, when defense counsel
           does seek a punitive discharge or does
           concede the appropriateness of such a
           dischargeeven as a tactical step to
           accomplish mitigation of other elements of
           a possible sentencecounsel must make a
           record that such advocacy is pursuant to
           the accused’s wishes. United States v.
           Lyons, 36 MJ 425 (CMA 1993); United States
           v. McNally, 16 MJ 32 (CMA 1983).


40 MJ at 465 (emphasis added).   In the present case, we hold that

there was not an adequate record of appellant’s desire that a

punitive discharge be actually imposed.   Cf. United States v.

Lyons, supra at 426 (“I feel that it is in both my interest and

the Navy [sic] to discharge me.”), and cases cited at 427.




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United States v. Pineda, 99-0915/MC


    Nevertheless, in United States v. Dresen, supra, we held that

the failure to make a proper record of the accused’s wishes does

not, per se, require an appellate court to set aside a court-

martial sentence.   Instead, in that case we assessed the impact

of that error on the approved sentence to determine whether

sufficient prejudice existed for a finding of ineffective

assistance of counsel under the second prong of the test in

Strickland v. Washington, 466 U.S. 668 (1984).   The same inquiry

is appropriate in the present case with respect to the adjudged

sentence.   In particular, where the facts of a given case compel

a conclusion that a bad-conduct discharge was reasonably likely,

we do not normally order a new sentence hearing.   United States

v. Volmar, supra at 343.



    Turning to the record before us, we note that appellant

implicitly acknowledged the reasonable certainty of a punitive

discharge in his case when questioned by defense counsel. (R. at

84).   His belief in this regard was well justified.   He was

convicted of numerous offenses (17) involving repeated financial

frauds on the United States Government involving a substantial

amount of money, approximately $15,000.   See United States v.

Robinson, supra at 44.   Moreover, in his brief military career,

he was previously counseled for financial dishonesty

(unauthorized use of a government phone), and he committed some

of the charged military offenses while a noncommissioned officer.

His repeated abuse of government property entrusted to him

greatly enhanced his chances of receiving a punitive discharge.



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United States v. Pineda, 99-0915/MC


Cf. United States v. Dresen, supra at 465 (special circumstances

existed suggesting forceful and persuasive plea for clemency may

have been successful).   Finally, this was a trial before a

military judge alone, and we are confident that this judge was

aware that a proper record had not been made and disregarded the

improper argument before him.   See United States v. Robinson,

supra at 44; see also United States v. Raya, 45 MJ 251, 254

(1996).   Therefore, appellant has failed to prove that he was

prejudiced by his counsel’s improper argument.   See Strickland v.

Washington, supra.   In these circumstances, we agree with the

appellate court below that a sentence rehearing is not required

in this case.



    The decision of the United States Navy-Marine Corps Court of

Criminal Appeals is affirmed.




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United States v. Pineda, No. 99-0915/MC


CRAWFORD, Chief Judge (concurring in the result):

     In my judgment, appellant’s claim is essentially one

of ineffective assistance of counsel.   See, e.g., United

States v. Pfister, 53 MJ 158, 160 (2000)(Sullivan, J.,

concurring in the result).   While I agree that it would

have been preferable for the military judge to inquire on

the record whether appellant’s civilian counsel was

requesting a discharge, and if so, whether appellant

concurred in such a request, I find no error based upon the

facts of this case.

     “Defense counsel is an advocate for the accused, not

an amicus to the court.”   United States v. Volmar, 15 MJ

339, 340 (CMA 1983), citing Ellis v. United States,

356 U.S. 674 (1958).   When an accused expresses a desire to

stay in the service (whether it be to avoid a punitive

discharge or because he wants to continue to serve the

nation), the defense counsel errs by conceding the

appropriateness of a punitive discharge or telling the

court that the accused’s conduct warrants such.   See United

States v. Garcia, 18 USCMA 75, 76, 77, 39 CMR 75, 76, 77

(1968); United States v. Richardson, 18 USCMA 52, 53, 39

CMR 52, 53 (1968); United States v. Holcomb, 20 USCMA 309,

43 CMR 149 (1971); United States v. Webb, 5 MJ 406 (CMA

1978).
United States v. Pineda, No. 99-0915/MC


     While the majority correctly notes that there is no

evidence that appellant desired to be discharged, I note

that the record is devoid of any evidence to the contrary.

Nowhere does appellant express a desire to be retained in

the service after his conviction.   See United States v.

Lyons, 36 MJ 425, 427 (CMA 1993).   The record indicates

that both appellant and his counsel were resigned to the

fact that appellant’s days in the Marine Corps were short

lived, for the reasons cited by the majority.   __ MJ at(8).

The evidence of record convinces me that appellant’s

primary desire was to avoid incarceration so that he could

continue to work and repay the $15,000 debt his parents

incurred in making the Government whole following

appellant’s larcenous adventures.

     As I stated in United States v. Lee, 52 MJ 51, 53

(1999)(Crawford, J., concurring in the result):   “The key

to effective advocacy on behalf of one’s client ...

requires the advocate to do many things ..., including

making rational choices based on the unique circumstances

of each case....”   By conceding the likelihood of

appellant’s discharge from the Marine Corps, whether that

discharge came in the form of a punitive sentence from the

military judge, or whether it came administratively after

trial, defense counsel was asking the judge to mitigate


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United States v. Pineda, No. 99-0915/MC


confinement.   This concession also dovetailed with the

defense theory at sentencing -- let this “fallen Marine”

return home, remain employed, and repay his debts.

Counsel’s concession was entirely appropriate in light of

the number and nature of the offenses with which his client

was charged.   Zealous representation does not equate to

making hopeless arguments.   See id. at 54.   Finding no

deficiency in counsel’s representation under the first

prong of Strickland v. Washington, 466 U.S. 668 (1984), I

would affirm the findings and sentence in this case.




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