

   
   
   
   U.S. v. McClain



United States, Appellee
v.
John M. MCCLAIN, Jr., Specialist
U.S. Army, Appellant
 
No. 98-0752
Crim. App. No. 9501831
 
United States Court of Appeals for the Armed
Forces
Argued April 6, 1999
Decided July 14, 1999
CRAWFORD, J., delivered the opinion of the
Court, in which COX, C.J., and SULLIVAN, GIERKE, and EFFRON, JJ., joined.

Counsel
For Appellant: Captain Scott A. De La Vega
(argued);
Colonel John T. Phelps, II, Lieutenant
Colonel Adele H. Odegard, and Captain Kirsten V. Campbell-Brunson
(on brief); Captain Paul Fiorino.
For Appellee: Captain Joseph A. Pixley
(argued);
Colonel Russell S. Estey, Lieutenant
Colonel Eugene R. Milhizer, and Captain Mary E. Braisted (on
brief).
Military Judge: Larry R. Dean
 
 


THIS OPINION IS SUBJECT TO
EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.


Judge CRAWFORD delivered the opinion of the
Court.
Consistent with his pleas, appellant was convicted
of conspiracy (4 specifications) and submitting fraudulent claims (19 specifications),
in violation of Articles 81 and 132, Uniform Code of Military Justice,
10 USC §§ 881 and 932, respectively. Contrary to his pleas, he
was convicted of conspiracy (3 specifications), and also of larceny (19
specifications), in violation of Article 121, UCMJ, 10 USC § 921.
A military judge, sitting alone as a general court-martial, sentenced him
to a dishonorable discharge, 8 years' confinement, total forfeitures, and
reduction to E-1. The convening authority approved the sentence as adjudged,
and the Court of Criminal Appeals affirmed the findings and sentence in
an unpublished opinion. We granted review of the following issue raised
by appellate defense counsel:

WHETHER THE APPELLANT RECEIVED INEFFECTIVE
ASSISTANCE
OF COUNSEL WHEN HIS ATTORNEY STATED THAT "SPECIALIST
MCCLAIN HAS TOLD LIES HERE TODAY IN COURT"
AFTER THE
APPELLANT HAD SOUGHT THE RELEASE OF COUNSEL,
AND
THEREAFTER APPELLANTS LAWYERS NEVER EXPLAINED
AN
AVAILABLE INSANITY DEFENSE TO THE APPELLANT
BEFORE
HE ENTERED HIS PLEAS.

and the following issue personally asserted by
appellant:

WHETHER THE MILITARY JUDGE COMMITTED ERROR
BY DELAYING,
UNTIL AFTER THE PROVIDENCE INQUIRY, A RULING
ON THE
RELEASE OF COUNSEL WHERE THE APPELLANT CHANGED
HIS
PLEA AND PLED GUILTY WITHOUT THE BENEFIT OF
A PRETRIAL
AGREEMENT, WHERE ASSIGNED COUNSEL REPEATEDLY
SOUGHT HIS
RELEASE FROM THE CASE, WHERE THE INDIVIDUALLY
REQUESTED
MILITARY COUNSEL WAS ADMITTEDLY UNPREPARED
TO PROCEED
DESPITE NEARLY 10 MONTHS PREPARATION TIME,
AND WHERE THE
APPELLANT WAS A DIAGNOSED PARANOID SCHIZOPHRENIC
TAKING
MEDICATION AT THE TIME OF TRIAL.

For the reasons delineated below, we affirm.


FACTS


Appellant is a 25-year-old, married soldier with
approximately 7 years of active service. For 4 years prior to trial, he
was assigned to the 598th Maintenance Co. at Fort Benning, Georgia.
There, appellant discovered that the finance office on post was not closely
monitoring the processing of claims for "Do It Yourself" (DITY) moves and
was not following up to recoup advance payments when the required documentation
was not submitted. Over a period of slightly more than a year, appellant
submitted twenty DITY move applications, claimed and accepted advance payments
for those moves, and was never challenged or subjected to recoupment when
he did not file the required paperwork to substantiate that the moves were
made. Appellant shared his knowledge with several other soldiers, telling
them of the ease of obtaining money through false DITY move claims and
the likelihood of not being caught. Appellant supplied the necessary paperwork
to the soldiers, showed them how to fill out the paperwork, escorted them
to the finance office, and accepted a portion of the money they received
as a result of their false claims. Appellant succeeded in defrauding the
government of thousands of dollars.
The charges against appellant were preferred
on January 3, 1995. Appellants request to be represented by an African-American
field grade officer, regardless of the branch of service, could not be
fulfilled. He then requested that "the highest possible ranking" defense
counsel, regardless of race, be detailed. In addition to being represented
by his appointed counsel, Captain (CPT) Meith, he was assigned Major (MAJ)
Moran as his individual military counsel (IMC) on January 31, 1995.
From January 31 to February 7, 1995, appellant
was treated in a military psychiatric ward. He was diagnosed as a paranoid
schizophrenic, but was released back to duty. He performed his duties until
the time of trial. A sanity board was requested on March 6, 1995. The board
found that, despite his mental disease or defect, appellant was "able to
appreciate the nature and quality or wrongfulness of his conduct." The
board also concluded that he had "sufficient mental capacity to understand
the nature of the proceedings against him and to conduct and to cooperate
intelligently in his defense." He was prescribed medication to treat his
symptoms.
On September 22, 1995, appellant offered to
plead guilty pursuant to a pretrial agreement. The convening authority
accepted the offer. Trial was scheduled for October 2, 1995. On September
30, 1995, appellant withdrew from the pretrial agreement. Later that same
day, appellant was again admitted to the psychiatric unit when he was allegedly
found running around his yard naked, carrying a frying pan. After a days
observation, appellant was released back to his unit. The treating physician
concluded that he was feigning his symptoms. A military magistrate cited
as an example of his malingering an anecdote that, while pending investigation
and trial, appellant told a friend that he would "act crazy before he ever
went to jail."
At a pretrial confinement hearing, Lieutenant
Colonel (LTC) Hirsch, an Army psychiatrist who had treated and counseled
appellant, informed the military magistrate that he had diagnosed appellant
as having paranoid schizophrenia. LTC Hirsch also opined that appellant
was feigning symptoms of mental disorder. In addition, LTC Hirsch related
that appellants conduct of running around the yard naked was inconsistent
with appellants diagnosed disorder. The day after appellant was admitted
to the psychiatric ward, his symptoms disappeared.
On the morning of October 2, 1995, LTC Hirsch
and a civilian psychiatrist, Dr. Meritt, examined appellant and found him
to be normal. He was then arraigned and pled not guilty to all offenses.
Appellant was granted a continuance in his court-martial until October
18, 1995.
Prior to this session, appellant wrote the
military judge a handwritten note, made a part of the record, in which
he claimed his lawyers were "conspiring [with trial counsel] against [him]
to obstruct [his] case." When the trial reconvened, appellant elected to
be tried by military judge alone and reiterated his desire to dismiss his
counsel. Appellant informed the judge that CPT Meith would not properly
defend him and that he disagreed with decisions made by his defense team.
During a session that lasted approximately
1 hour, appellant complained that his lawyers were not working for him
and had not called witnesses for the investigation under Article 32, UCMJ,
10 USC § 832. When asked to what witnesses appellant was referring,
he indicated that he wanted "[t]he whole Finance system of the Army." The
prosecutor interjected that they were not charging appellant with being
the ring leader, although approximately eleven people who were coconspirators
had already been tried on the same offenses. Defense counsel, CPT Meith,
stated:

Specialist McClain has also articulated to
me
on a number of occasions that there has been
a
fundamental betrayal of his trust, that he
feels
we have lied to him, that we have taken action
in his case directly contrary to his best
interest
and his desires. For instance sir, without
disclosing a confidence but in the letter
which
you've already marked, the handwritten letter,
Specialist McClain claims that my request
for
your review of Captain Wadsworth's decision
approving pretrial confinement was over his
objection, that despite my statements to the
contrary he never consented to your reviewing
the documents and making a decision without
getting on the record at a 39(a) session.
There
are other examples which I do not want to
disclose
to the court without getting into the attorney/
client privilege that Specialist McClain has
stated
to me on a number of occasions, so aside from
dis-
regarding his instructions with respect to
some
decisions where he has the final call, he,
again
sir, I'm just recapitulating his views, not
what I
believe my views to be of the actual facts
in this
case; Specialist McClain feels both Major
Moran and
I have lied to him, we have betrayed his trust,
that
we are for whatever motivation not acting
in his
best interest, that we were either deficient,
derelict, or incompetent in properly investigating
his
case, and he has articulated these to me perhaps
in a
more direct or different way then he is trying
to
articulate his complaints to you right now.

Appellant responded:

[M]y attorney's [sic] do not have anything
at stake with me. They're going to get paid whether they win this case
or not. If I get prosecuted in the case, I go to jail, they go home and
turn the television on....

Appellant said that the attorneys also told him,
"[W]e dont care what you do," and that he "refuse[d] to have these attorneys
represent [him] with all due respect to them." CPT Meith indicated that
appellant refused to work with him or MAJ Moran.
In fact, appellant thought that the appointment
of MAJ Moran was "a racist thing against [him]." After further discussions
with the judge, appellant said he was "set up." The judge found that appellant
was aware of his right to counsel for a considerable period of time, i.e.,
10 months, and refused to grant a delay to allow appellant to obtain another
counsel. Appellant asked the judge if that meant that he had to represent
himself, to which the judge replied, "No." The judge told appellant it
would be "a huge mistake if you decide to represent yourself." The judge
patiently advised appellant as to the drawbacks of self-representation,
similar to the advice we recommended in United States v. Mix, 35
MJ 283, 289-90 (CMA 1992). After hearing appellant's complaints, defense
counsel spoke up:

. . . Specialist McClain accuses me of on
[sic]
at least two counts of criminal dereliction
of
duty. One allegation was that I am, as I recall
his allegation, specifically corroborating
[sic]
the trial counsel to obstruct justice in his
case,
somehow that I am in cahoots with the Government
directly opposed to his interest. He also
in the
same letter claimed that I brought the pretrial
confinement review motion to you over -- without
his consent, and lied to you in effect by
asking
that it be considered on brief rather than
on the
record at a 39(a) session. There are other
alle-
gations against me Specialist McClain has
communi-
cated to me and to family members, for instance
that I don't want to discuss here specifically
since that would intrude on privileged communication,
and it seems to me that I have a duty to my client
to avoid him doing things that are even more
against
his interest than what he's doing already,
sir, and I suspect that my continued involvement in this case
would for whatever reason prompt Specialist
McClain
to do things that are even more against his
best
interest, motivate him even further to make
the
wrong decisions. I have to admit that I am
also
concerned for how my participation may come
across
in court not only for any actual conflicts
of
interest but appearance of a conflict of interest,
and frankly sir I am concerned for my own
well being. Specialist McClain has told you lies here today in court. I
don't feel that by my staying on the case that I would somehow be indirectly
a part of that process
and for my interest, for my client's interest,
for the interest of justice I think that I need to be released.[1]

The military judge took appellant's request to
release appointed counsel under advisement. He also deferred ruling on
appellant's request to represent himself. However, the military judge later
stated to appellant that he was inclined to release detailed defense counsel
because of the "seriousness of the allegations" that appellant made against
him.
The IMC requested a 3-day continuance to prepare
for the trial, without objection by trial counsel. The military judge granted
that defense request.2
Following further discussion, to include discussion
of other matters, and a short recess, the military judge asked appellant
to enter pleas again. Appellant responded by asking the military judge
for permission to speak with trial counsel. The military judge advised
appellant of the danger of self-incrimination if he chose to speak with
trial counsel and then granted a brief recess, following which, as "instructed"
by appellant, detailed defense counsel entered extensive pleas of guilty.
Thereafter, the military judge "denied" detailed defense counsel's request
to be released ("I am specifically not deciding to dismiss you") and granted
counsel leave to "alert" the judge later if the need arose to renew the
request.
Before accepting appellant's pleas, the military
judge ensured that appellant truly wanted to plead guilty. Appellant confirmed
that he had had the opportunity to consult with counsel in making his decision
to plead guilty and confirmed that he had had enough time to consider his
options and make up his mind.
Appellant then announced spontaneously, "I
want my attorney's [sic]." When the military judge asked appellant what
he meant, appellant replied, "I'm this far in this far and I want to get
it over with ... so whatever happened is happened, but I want Captain Mieth
and Major Moran to finish this case for me." Appellant then confirmed that
he believed both his defense counsel had his "interest at heart." Appellant
stated that he could see that CPT Mieth was not lazy and was doing what
was best for him: "I see that now, sir. I didn't see it [before]." Appellant
repeated his desire to plead guilty.
Appellant withdrew his allegations that detailed
defense counsel conspired with trial counsel. Appellant reassured the military
judge that he wanted both of his appointed counsel to continue representing
him. Appellant acknowledged that much of his earlier criticism of counsel
was due to "agitation," under the circumstances. After assurances from
detailed defense counsel that he would do everything in his power to obtain
the best results for appellant, the military judge granted appellant's
request to have both appointed counsel remain on the case. Later, in an
unsworn statement on sentencing, appellant stated, "I would like to apologize
to my attorneys for the wrong accusation made against them. I would like
to thank them for representing me to their fullest capabilities."

DISCUSSION
The defense and the Government agree that the
standard of review as to ineffectiveness of counsel is de novo.
United
States v. Wean, 45 MJ 461, 463 (1997); United States v. Murray,
42 MJ 174, 178 (1995); see also United States v. Calhoun,
49 MJ 485, 489 (1998).
The defense contends that the antagonistic
relationship between appellant and his trial defense counsel was derivative
of the threats made by the trial lawyer to withdraw. The defense notes
that CPT Mieth "unfortunately chose the personal attack method." Final
Brief at 10.
The Government contends counsel were not ineffective.
As to the statement by defense counsel that appellant lied at trial, the
Government asserts that that was in response to appellants own statement.
The Government also notes that appellant withdrew his allegation as to
personal and professional misconduct, and that the judge recognized that
counsel were competent in representing appellant to the utmost of their
abilities. The Government also rejects the claim that defense counsel never
explained the insanity defense to appellant. They had specifically requested
a sanity board and told the judge that appellant had been diagnosed a paranoid
schizophrenic. Their conclusions not to raise incompetency or sanity were
supported by the experts. The Government argues that, based on the record,
it is clear that "appellant was alert, involved, and responsive during
the entire proceedings." Answer to Final Brief at 21. As to the claim of
failure to advise appellant about pleading without a pretrial agreement,
the Government notes that appellant had a pretrial agreement from which
he withdrew.
The Sixth Amendment guarantees an appellant
the right to the effective assistance of counsel. The right to effective
counsel means the right to counsel who is conflict free. Cuyler v. Sullivan,
446 U.S. 335, 345 (1980). To demonstrate a Sixth Amendment violation, an
appellant "must establish [1] ... an actual conflict of interest [that
2] adversely affected his lawyers performance." Id. at 350.
This case does not involve a conflict caused
by successive representation of individuals involved in the same misconduct
or simultaneous representation of codefendants. The question of the conflict
here arises because of a difference of opinion as to strategy. Appellant
had the advantage of attending a number of his coconspirators' trials.
Absent a lack of mental responsibility, which had been negated by experts,
the best available option would be for appellant to enter into a plea agreement.
See
United States v. Lonetree, 35 MJ 396, 413-14 (CMA 1992) (counsel
may be ineffective in not advising accused of the right to enter into pretrial
agreement). The judge correctly advised appellant regarding the options
he had as to pleading, the forum, whether to accept a plea agreement, and
whether to testify.
The defense does not address the fact that
it was appellant who said that MAJ Moran had lied to him and that his detailed
counsel had conspired with trial counsel. Generally, a defense counsel
can respond to a defendant's assertions. United States v. Baldwin,
987 F.2d 1432, 1438 (9th Cir. 1993). However, the defense argues
that the judge abused his discretion in failing to halt the proceeding
to resolve the representation issue. When there is a claim of ineffectiveness,
counsel need not stand mute. Mil. R. Evid. 502(d)(3), Manual for Courts-Martial,
United States (1995 ed.),3
provides that, when there is an allegation of a breach of a duty, there
is not a complete attorney-client privilege. Cf. United States
v. Dupas, 14 MJ 28, 30 (CMA 1982). In the context of this case, defense
counsel would have been permitted to tell the judge that they had advised
appellant to plead guilty because of the Governments evidence, including
the testimony of all the coconspirators. They also might have told the
judge that they advised appellant of his obligation to be truthful to the
tribunal, and that there were ways they could continue to represent him
even if he insisted on testifying untruthfully. See Nix v. Whiteside,
475 U.S. 157 (1986); United States v. Polk, 32 MJ 150 (CMA 1991).
Putting this information on the record would have negated the issues in
this case. However, we hold that based on the totality of circumstances
in this case, appellant waived any conflict of interest.
The decision of the United States Army Court
of Criminal Appeals is affirmed.
FOOTNOTES:
1 Later, during argument
on findings, detailed defense counsel addressed the subject of appellant's
"honesty" by stating, "Specialist McClain was open and honest [during the
providence inquiry]. I mean after the initial agitation and so forth, he
came clean, Your Honor."
2
Detailed defense counsel later withdrew the request for a continuance stating,
"I am prepared to proceed both with a contested case at this point, and
sentencing, as is Major Moran, we would not need a delay until Saturday."
3
All Manual provisions are cited to the version in effect at the time of
trial. The 1998 version is unchanged, unless otherwise indicated.

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