                              IN THE CASE OF

                        UNITED STATES, Appellant
                                    v.
                        Joshua M. FAGAN, Private
                           U.S. Army, Appellee

                               No. 03-5002

                        Crim. App. No. 20000891


       United States Court of Appeals for the Armed Forces

                         Argued October 7, 2003
                        Decided February 4, 2004

    ERDMANN, J., delivered the opinion of the Court, in which
     CRAWFORD, C.J., GIERKE, EFFRON, and BAKER, JJ., joined.

                                  Counsel

For Appellant: Captain Mark A. Visger (argued); Colonel Lauren
B. Leeker, Lieutenant Colonel Margaret B. Baines, Major Jennifer
H. McGee, and Captain Christopher Graveline (on brief).

For Appellee: Captain Kathleen D. Schmidt (argued); Colonel
Robert D. Teetsel and Captain Sean S. Park (on brief);
Lieutenant Colonel E. Allen Chandler, Jr.

Amicus Curiae: Colonel LeEllen Coacher, Lieutenant Colonel
Lance B. Sigmon and Captain C. Taylor Smith (on brief) – for
United States Air Force Appellate Government Division.

Amicus Curiae: Colonel R. M. Favors, USMC, and Lieutenant Lars
C. Johnson, JAGC, USNR (on brief) – for United States Navy-
Marine Corps Appellate Review Activity, Government Division.

Military Judge:    Kenneth Clevenger

  This opinion is subject to editorial correction before final publication.
United States v. Fagan, No. 03-5002/AR

     Judge ERDMANN delivered the opinion of the Court.

     Private First Class Joshua Fagan entered guilty pleas and

was convicted by a military judge of larceny, forgery and the

wrongful use and distribution of marijuana, in violation of

Articles 121, 123, and 112a, Uniform Code of Military Justice

[hereinafter UCMJ], 10 U.S.C. §§ 921, 923 and 912a (2000).    He

was sentenced by the military judge to 30 months confinement,

total forfeiture of pay and allowances and a dishonorable

discharge.   The convening authority reduced the confinement to

20 months and approved the balance of the sentence.

     Fagan's conviction and sentence were then submitted to the

United States Army Court of Criminal Appeals for automatic

review under Article 66(b)(1), UCMJ, 10 U.S.C. § 866(b)(1)

(2000).   The Court of Criminal Appeals affirmed the guilty

findings but, for reasons more fully outlined below, reassessed

the sentence by affirming the dishonorable discharge and the

total forfeitures, but only 19 of the 20 months confinement.

United States v. Fagan, 58 M.J. 534, 539 (A. Ct. Crim. App.

2003).

     The Judge Advocate General of the Army certified the case

to this Court for review of the following issues1:

     I.   WHETHER THE UNITED STATES ARMY COURT OF CRIMINAL
     APPEALS ERRED IN CONCLUDING THAT THE SIX PRINCIPLES LAID

1
  This case was certified under the provisions of Article
67(a)(2), UCMJ, 10 U.S.C. § 867(a)(2) (2000) and Rules 4 and 18
of this Court’s Rules of Practice and Procedure.

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United States v. Fagan, No. 03-5002/AR

     OUT IN UNITED STATES V. GINN, 47 M.J. 236 (1997), PROVIDE
     THE PROPER DECISIONAL FRAMEWORK FOR ANALYZING ANY ISSUE
     RAISED IN A POST-TRIAL AFFIDAVIT, INCLUDING ISSUES RAISED
     UNDER UNITED STATES V. GROSTEFON, 12 M.J. 431 (C.M.A.
     1982)?

     II. WHETHER THE UNITED STATES ARMY COURT OF CRIMINAL
     APPEALS ERRED IN CONCLUDING THAT THIS COURT'S DECISION IN
     UNITED STATES V. GINN, 47 M.J. 236 (1997), PRECLUDED THAT
     COURT FROM CONSIDERING THE GOVERNMENT AFFIDAVITS THAT
     FACTUALLY CONFLICTED WITH APPELLANT'S POST-TRIAL AFFIDAVITS
     AND FROM RESOLVING THE ISSUE IN THE GOVERNMENT'S FAVOR
     WITHOUT ORDERING A HEARING PURSUANT TO THIS COURT'S
     DECISION IN UNITED STATES V. DUBAY, 17 U.S.C.M.A. 147, 37
     C.M.R. 411 (1967)?

     III. WHETHER THE UNITED STATES ARMY COURT OF CRIMINAL
     APPEALS ERRED IN CONCLUDING THAT IT HAD THE AUTHORITY TO
     GRANT APPROPRIATE RELIEF UNDER THIS COURT'S DECISION IN
     UNITED STATES V. WHEELUS, 49 M.J. 283 (1998), WHEN THE
     COURT ADMITTED GOVERNMENT AFFIDAVITS SPECIFICALLY REBUTTING
     APPELLANT'S POST-TRIAL AFFIDAVITS THAT MADE FACTUAL
     ASSERTIONS OF CRUEL AND UNUSUAL PUNISHMENT?

     We hold that the Court of Criminal Appeals properly

identified and applied United States v. Ginn, 47 M.J. 236

(C.A.A.F. 1997) as the decisional framework for addressing

Fagan's claim of cruel and unusual punishment.   We further hold

that the Court of Criminal Appeals erred in granting sentence

relief to Fagan in lieu of ordering further proceedings under

United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967).

                           BACKGROUND

     At the conclusion of his trial in October of 2000, Fagan

began serving his confinement at the United States Army

Confinement Facility, Europe (USACFE) in Mannheim, Germany.    In

January of 2001, he was transferred from USACFE to the Regional



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United States v. Fagan, No. 03-5002/AR

Confinement Facility at Fort Knox, Kentucky, to finish serving

the balance of his sentence.

     As part of his appeal to the Court of Criminal Appeals,

Fagan asserted that, while confined at USACFE, he had been

subjected to cruel and unusual punishment in violation of the

Eighth Amendment to the United States Constitution and Article

55, UCMJ, 10 U.S.C. § 855 (2000).    In support of his claim, he

submitted an affidavit to the Court of Criminal Appeals

asserting that he was "repeatedly subjected to physical abuse"

by a certain guard (SGT D) who conducted "overly aggressive

frisks" when Fagan was leaving the dining area.   He indicated

that, on approximately five occasions, SGT D "forcefully took

his hand up the inside of [Fagan's] groin area and, what can

described as similar to a karate chop, . . . would use the side

of his hand to slap [Fagan's] testicle area."

     He also indicated that, on approximately five occasions,

SGT D would, "using two hands, hold the waistband of [Fagan's]

pants, tugging and yanking [his] pants in an upward motion so

that [his] underwear and pants seams would forcibly be tucked up

into [his] testicles and between [his] buttocks."   According to

his affidavit, these instances caused Fagan excruciating pain

that lasted several minutes.   Fagan alleged that he did not

report these instances of abuse because of fear of retaliation




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United States v. Fagan, No. 03-5002/AR

based on his observation of "repercussions" suffered by other

inmates who had made reports against guards.

     In addition to his own affidavit, Fagan submitted

affidavits from eight other inmates who had been confined at

USACFE well before Fagan's arrival there, primarily between

March and October 1999.   The eight affidavits contained "nearly

identical" allegations of mistreatment by SGT D and had been

previously considered by the Court of Criminal Appeals in

another proceeding.   Fagan, 58 M.J. at 535 n.2 (describing

affidavits submitted in United States v. Kinsch, 54 M.J. 641 (A.

Ct. Crim. App. 2000)).

     In response to Fagan's claim and submissions, the

Government submitted affidavits from SGT D and MAJ Suskie, the

commander at USACFE during the period of time that Fagan's

mistreatment was alleged to have occurred.   In his affidavit,

SGT D categorically denied any specific recollection of Fagan

and any abusive activity towards any inmate during frisk

searches or "pat down" procedures.   MAJ Suskie also denied any

recollection of Fagan and any awareness of SGT D having

aggressively frisked inmates.

     The Court of Criminal Appeals turned to the framework of

United States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997) to address

Fagan's claim of cruel and unusual punishment.   Fagan, 58 M.J.

at 536.   While expressing dissatisfaction with that framework,



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United States v. Fagan, No. 03-5002/AR

the court ultimately concluded that "the clear mandate" in Ginn

would require additional factfinding regarding Fagan's claim

under the procedures set forth in DuBay.    Rather than order such

proceedings, however, the court elected to "moot the issue" by

granting sentence relief under United States v. Wheelus, 49 M.J.

283 (C.A.A.F. 1998) and reduced Fagan's confinement from 20

months to 19 months.    Id. at 538.

     The Court of Criminal Appeals then went on to characterize

the interplay between Ginn and Wheelus as "far from clear" and

took "the unusual step" of recommending that the Judge Advocate

General send the case to this Court for review of the issues

outlined above.   Id.   All three issues involve questions of law

and we address them de novo.   United States v. Sales, 56 M.J.

255, 258 (C.A.A.F. 2002)(reviewing de novo the issue of whether

lower court properly applied Ginn principles)

                             DISCUSSION

     A.   The Ginn Framework

     This case involves the manner in which the military justice

system deals with "collateral" claims.    Fagan's post-trial claim

of cruel and unusual punishment is "collateral" in the most

classic sense -- it has nothing to do with his guilt or

innocence of the crimes of which he stands convicted.   See

United States v. Dykes, 38 M.J. 270, 272 (C.A.A.F.




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United States v. Fagan, No. 03-5002/AR

1993)(collateral claim is one which does not go directly to the

issue of the guilt or innocence of accused).

     In the realm of state and federal criminal law these

claims are typically raised through a separate post-conviction

proceeding where evidentiary hearings are held.     Judges or

magistrates make factual findings and conclusions of law that an

appellate court can later review and consider.    United States v.

Polk, 32 M.J. 150, 152 (C.M.A. 1991).    In the military justice

system, however, there is no separate procedural mechanism

available for raising and litigating these claims.    Rather, they

typically present themselves in the form of affidavits or

unsworn allegations submitted as part of the direct appeal

process.   Id.

     In light of that reality, this Court "long ago recognized"

that resolution of these post-trial claims requires a procedure

by which the Courts of Criminal Appeals, as well as this Court,

may expand the record of trial where appropriate through an

evidentiary hearing.   Dykes, 38 M.J. at 272.    The origin of that

process is found in DuBay, where we remanded that case for a

fact-finding hearing on post-trial claims of unlawful command

influence.   The so-called "DuBay hearing" has since become a

well-accepted procedural tool for addressing a wide range of

post-trial collateral issues.   See e.g., United States v. Mack,

58 M.J. 413, 415 (C.A.A.F. 2003)(question of whether certain



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United States v. Fagan, No. 03-5002/AR

members were properly detailed to court-martial); United States

v. Baker, 58 M.J. 380, 387 (C.A.A.F. 2003)(ineffective

assistance of counsel claim); United States v. Hurn, 55 M.J.

446, 450 (C.A.A.F. 2001)(claim of racial discrimination in

exercise of peremptory challenge).

     Our decision in Ginn simply addresses the threshold aspect

of the DuBay process.   Specifically, it focuses on the

circumstances under which a DuBay hearing is required to resolve

a post-trial claim that is framed by conflicting affidavits.     We

recognized in Ginn that Article 66(c) does not authorize a Court

of Criminal Appeals to decide disputed questions of material

fact pertaining to a post-trial claim, solely or in part on the

basis of conflicting affidavits submitted by the parties.    Ginn,

47 M.J. at 243.

     We also recognized, however, that a post-trial evidentiary

hearing is not required in every case simply because an

affidavit is submitted by an appellant.   Id. at 248; see also

United States v. Guthrie, 53 M.J. 103, 105 (C.A.A.F. 2000)(mere

submission of an affidavit by an appellant does not trigger the

need for a post-trial evidentiary hearing); Dykes, 38 M.J. at

273 (cautioning military law practitioners that mere submission

of post-trial affidavits does not usually require an evidentiary

hearing in order to resolve a post-trial collateral claim).    In

the context in which Ginn was presented, i.e., an ineffective



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United States v. Fagan, No. 03-5002/AR

assistance of counsel claim, we outlined the following

principles for determining when a factfinding DuBay hearing is

required:

          First, if the facts alleged in the affidavit allege an
     error that would not result in relief even if any factual
     dispute were resolved in appellant's favor, the claim may
     be rejected on that basis.

          Second, if the affidavit does not set forth specific
     facts but consists instead of speculative or conclusory
     observations, the claim may be rejected on that basis.

          Third, if the affidavit is factually adequate on its
     face to state a claim of legal error and the Government
     either does not contest the relevant facts or offers an
     affidavit that expressly agrees with those facts, the court
     can proceed to decide the legal issue on the basis of those
     uncontroverted facts.

          Fourth, if the affidavit is factually adequate on its
     face but the appellate filings and the record as a whole
     "compellingly demonstrate" the improbability of those
     facts, the Court may discount those factual assertions and
     decide the legal issue.

          Fifth, when an appellate claim of ineffective
     representation contradicts a matter that is within the
     record of a guilty plea, an appellate court may decide the
     issue on the basis of the appellate file and record
     (including the admissions made in the plea inquiry at trial
     and appellant's expression of satisfaction with counsel at
     trial) unless the appellant sets forth facts that would
     rationally explain why he would have made such statements
     at trial but not upon appeal.

          Sixth, the Court of Criminal Appeals is required to
     order a factfinding hearing only when the above-stated
     circumstances are not met. In such circumstances the court
     must remand the case to the trial level for a DuBay
     proceeding. During appellate review of the DuBay
     proceeding, the court may exercise its Article 66
     factfinding power and decide the legal issue.




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United States v. Fagan, No. 03-5002/AR

Ginn, 47 M.J. at 248.   The first two issues presented to this

Court by the Judge Advocate General involve the application of

that framework to Fagan's post-trial claim of cruel and unusual

punishment.

      B.   Application of the Ginn Framework

      The Court of Criminal Appeals was correct in identifying

Ginn as the appropriate framework for addressing Fagan's claim.

While Ginn was decided in the context of an ineffective

assistance of counsel claim, its principles are applicable to a

broader range of affidavit-based, post-trial collateral claims.

See e.g., Hurn, 55 M.J. at 449 (affidavit-based uncertainties

regarding claim of racial discrimination in exercise of

peremptory challenge); United States v. Sherman, 51 M.J. 73, 75-

76 (C.A.A.F. 1999)(affidavit-based fact question as to existence

of sub rosa agreement between counsel).

      Contrary to the assessment of the Court of Criminal

Appeals, however, there are no "problems" presented by the Ginn

framework that are "compounded" by our decision in United States

v. Grostefon, 12 M.J. 431 (C.M.A. 1982).2   Fagan, 58 M.J. at 537-

38.   Our decision in Grostefon simply prescribed a "rule of

practice" which requires, at a minimum, that when an accused



2
  While this case does not involve any Grostefon claims, the
Court of Criminal Appeals discussed the problems they perceived
to be aggregated by Grostefon under a Ginn analysis. We
therefore chose to clarify this issue.

                                10
United States v. Fagan, No. 03-5002/AR

specifies any error in his request for appellate representation

or in some other form, the appellate defense counsel will invite

the attention of the Court of Criminal Appeals to those issues.

That court will review those issues and specifically acknowledge

that it has considered and disposed of them.   United States v.

Knight, 15 M.J. 202, 204 (C.M.A. 1983)(characterizing

Grostefon).

     The linchpin of the Ginn framework is the recognition that

a Court of Criminal Appeals' factfinding authority under Article

66(c) does not extend to deciding disputed questions of fact

pertaining to a post-trial claim, solely or in part on the basis

of conflicting affidavits submitted by the parties.   Ginn, 47

M.J. at 243.   There is nothing inherent in the Grostefon

procedure that amplifies, restricts or even impacts upon Article

66(c) authority in the context of affidavit-based post-trial

claims, which is the context in which Ginn arises.    The fact

that these claims may be assigned as error by counsel or raised

by an appellant under Grostefon has no impact on the Ginn

analysis.

     We now turn to the Court of Criminal Appeals' application

of the Ginn framework to Fagan's claim.   The first Ginn factor

looks at whether the facts alleged in the affidavit, if true,

would result in relief.   Ginn, 47 M.J. at 248. If the facts




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United States v. Fagan, No. 03-5002/AR

sworn to by Fagan in his affidavit are taken as true, they could

result in relief.

     The second Ginn factor considers whether the affidavit sets

forth speculative or conclusory observations rather than

specific facts.   Fagan's affidavit and the others he filed in

support of his claim are fact specific and his claim cannot be

rejected on that basis.

     The third Ginn factor involves the situation where the

facts in the affidavit are either not contested by the

Government or agreed to by the Government.   The facts material

to Fagan's treatment at USACFE have been directly contested by

the Government's counter-affidavits and Fagan's assertions

cannot be disposed of as a legal claim based on uncontroverted

facts.   Id.

     Under the fourth Ginn factor, if the affidavit is factually

adequate on its face, but the appellate filings and the record

as a whole “compellingly demonstrate” the improbability of those

facts, a hearing is not necessary.   Id.   This factor requires an

assessment of that portion of "the appellate filings and the

record as a whole" apart from any conflicting affidavits and a

determination as to whether that broader framework "compellingly

demonstrates" the improbability of the factual assertions

underlying the claim.   As Fagan's claim relates to events that

occurred after trial, there is nothing in the present record of



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United States v. Fagan, No. 03-5002/AR

trial to "compellingly demonstrate" the improbability of his

assertions.   The only matters in the "appellate filings" are his

affidavit-based assertions, the affidavits from other inmates at

USACFE and the opposing Government affidavits. In this case it

is not possible to conclude that the Government’s affidavits

“compellingly demonstrate” the improbability of the assertions

made in the affidavits submitted by Fagan without engaging in

precisely the sort of appellate fact-finding that we rejected in

Ginn.3

     While the fifth Ginn factor is articulated in the specific

context of an ineffective assistance of counsel claim, the Ginn

framework applies outside of that specific context.   From that

more general perspective, the fifth factor refers to matters

within the record of a guilty plea that contradict the

assertions made in support of the post-trial claim.   Id. at 248.

While Fagan entered guilty pleas to his offenses, his claim

relates to matters that allegedly occurred well after his trial

and his entry of those guilty pleas.   Accordingly, they shed no

light on the matter.



3
  We also note that the appellate filings before the Court of
Criminal Appeals drew that court’s attention to its earlier
dispositions in a number of cases involving allegations against
SGT D by other prisoner affiants. Those earlier dispositions
included factual determinations that SGT D had engaged in the
same misconduct that Fagan now alleges, which makes it difficult
to now view the present record as “compellingly demonstrating”
the improbability of those assertions.

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United States v. Fagan, No. 03-5002/AR

     As the Court of Criminal Appeals properly recognized,

Fagan's claim of cruel and unusual punishment resides in the

sixth and final Ginn category and his case must be remanded to

the trial level for a DuBay hearing.

     A DuBay hearing is not required here simply because Fagan

filed an affidavit -- the mere submission of an affidavit does

not trigger the need for a post-trial evidentiary hearing.

Guthrie, 53 M.J. at 105.   Nor is it the mere filing of

responsive affidavits from the Government that triggers the

requirement for a DuBay hearing.     The Ginn framework requires a

DuBay hearing only if the opposing affidavits raise a fact

dispute that is "material" to the resolution of the post-trial

claim and the claim cannot be otherwise resolved through the

application of the five Ginn factors.     Ginn, 47 M.J. at 244-45;

see also United States v. Murphy, 50 M.J. 4, 11 (C.A.A.F.

1998)(recognized that Ginn condemned the resolution of disputes

of material fact based on mere affidavits.)

     In the present case, it is the inapplicability of any of

the five Ginn factors and the presence of affidavits that raise

material fact disputes concerning Fagan's claim that require a

DuBay hearing.   We turn now to the issue of whether the court

erred in not directing those further proceedings.

     C.   Application of Wheelus




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United States v. Fagan, No. 03-5002/AR

     After properly concluding that the "clear mandate" of Ginn

would require a DuBay hearing in this case, the Court of

Criminal Appeals went on to conclude that this mandate was "in

conflict" with its "broad power to moot claims of prejudice"

under United States v. Wheelus, 49 M.J. 283 (C.A.A.F. 1998).

Fagan, 58 M.J. at 538.   Rather than order a DuBay hearing under

Ginn, the court elected to simply grant sentence relief to Fagan

"under Wheelus."   Id.

     As with its misperception of a "problem" created by Ginn

and Grostefon, the Court of Criminal Appeals similarly perceived

a "conflict" between Ginn and Wheelus where none exists.   The

central principles of these two cases are completely independent

of one another.

     The "broad power to moot claims of prejudice" as referred

to in the context of Wheelus is a remedial tool available to

address acknowledged post-trial processing errors.   In Wheelus,

the Government conceded that the staff judge advocate did not

fulfill his obligation to inform the convening authority of

certain pretrial restraint matters.   Wheelus, 49 M.J. at 285.

While noting that appellate courts do not have clemency powers

per se, the Court in Wheelus noted that they do have

     broad power to moot claims of prejudice by “affirm[ing]
     only such findings of guilty and the sentence or such part
     or amount of the sentence, as it finds correct in law and
     fact and determines, on the basis of the entire record,
     should be approved.”



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United States v. Fagan, No. 03-5002/AR

Id. at 288 (quoting Article 66(c)).   The Court went on to cite

United States v. Cook, 46 M.J. 37 (C.A.A.F. 1997) as an example

of this “broad power”, where the Government failed to afford an

accused the opportunity to respond to "new matter" in the staff

judge advocate recommendation.   There the Court of Criminal

Appeals ordered a sentence reduction rather than remand the case

to the convening authority for a new recommendation and action.

     The exercise of the "broad power" referred to in Wheelus

flowed from the existence of an acknowledged legal error or

deficiency in the post-trial review process.   It is not a "broad

power to moot claims of prejudice" in the absence of an

acknowledged legal error or deficiency, nor is it a mechanism to

"moot claims" as an alternative to ascertaining whether a legal

error or deficiency exists in the first place.

     In terms of Fagan's claim, he may be entitled to relief if

he did in fact suffer a violation of the rights guaranteed him

by the Eighth Amendment and Article 55.   However "broad" it may

be, the "power" referred to in Wheelus does not vest the Court

of Criminal Appeals with authority to eliminate that

determination and move directly to granting sentence relief to

Fagan.   Rather, a threshold determination of a proper factual

and legal basis for Fagan's claim must be established before any

entitlement to relief might arise.




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United States v. Fagan, No. 03-5002/AR

     As Fagan's claim is post-trial, collateral and affidavit-

based, Ginn is the appropriate threshold framework under which

the claim needs to be evaluated.     No post-trial collateral error

or deficiency has been acknowledged and Wheelus does not come

into play until, and unless, that acknowledgement is made.    The

Court of Criminal Appeals erred in relying on Wheelus as a basis

for granting sentence relief to Fagan in lieu of ordering a

DuBay hearing.

                            CONCLUSION

     We answer the first and second issues directed to us for

review by the Judge Advocate General in the negative and answer

the third issue in the affirmative.    The decision of the United

States Army Court of Criminal Appeals is set aside.    The record

of trial is returned to the Judge Advocate General of the Army

for submission to a convening authority for a DuBay hearing on

Fagan's claim of cruel and unusual punishment.    The military

judge at such hearing shall make findings of fact and

conclusions of law and then return the record of trial to the

Court of Criminal Appeals for further review under Article

66(c).   Thereafter, Article 67 shall apply.




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