                         UNITED STATES, Appellee

                                         v.

                   David M. BROOKS, Lance Corporal
                     U.S. Marine Corps, Appellant

                                  No. 07-0639
                        Crim. App. No. 200501266

       United States Court of Appeals for the Armed Forces

                         Argued February 4, 2008

                            Decided May 1, 2008

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

                                     Counsel

For Appellant: Lieutenant Heather L. Cassidy, JAGC, USN
(argued); Lieutenant Richard H. McWilliams, JAGC, USN.


For Appellee: Captain James W. Weirick, USMC (argued);
Commander Paul C. LeBlanc, JAGC, USN, and Lieutenant Derek D.
Butler, JAGC, USN (on brief); Major Brian K. Keller, USMC.


Military Judges:    Jeffrey P. Colwell, M. H. Sitler, and M. J.
Griffith


            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Brooks, No. 07-0639/MC


     Judge STUCKY delivered the opinion of the Court.

     We granted review in this case to decide whether brig

personnel violated Appellant’s Sixth Amendment right to

appellate counsel by monitoring his telephone conversations with

his appellate counsel and by seizing his privileged

correspondence.   We hold that, even assuming some interference

with his attorney-client relationship, Appellant failed to

articulate or show any prejudice, and affirm.

                                I.

     Appellant pled guilty at a general court-martial to failing

to obey a restriction order, obstruction of justice, and

adultery.   Articles 92 and 134, Uniform Code of Military Justice

(UCMJ), 10 U.S.C. §§ 892, 934 (2000).   Contrary to Appellant’s

pleas, the military judge also found Appellant guilty of

assault, obstructing justice, and unlawful entry.   Articles 128

and 134, UCMJ, 10 U.S.C. §§ 928, 934 (2000).    The convening

authority approved the adjudged sentence -- a dishonorable

discharge, confinement for ninety-three months, forfeiture of

all pay and allowances, and reduction to the lowest enlisted

grade.   The United States Navy-Marine Corps Court of Criminal

Appeals (NMCCA) affirmed.   United States v. Brooks, NMCCA No.

200501266, 2007 CCA LEXIS 166, at *26, 2007 WL 1704348, at *8

(N-M. Ct. Crim. App. May 16, 2007).




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United States v. Brooks, No. 07-0639/MC


                                 II.

     After trial, Appellant was confined in the brig at Camp

Lejeune.    On May 3, 2006, Appellant’s appellate counsel e-mailed

brig officials, relaying Appellant’s complaints that brig

officials (1) stood so close to him during his telephone

conversations with his appellate counsel that they could

overhear what he was saying, and (2) seized a copy of a brig

regulation sent to him by his appellate counsel.      The brig

officer admitted that the monitors were in the room when a

prisoner was using the telephone, but denied that they were so

close as to overhear Appellant’s conversations with his

attorney.   The brig officer also informed defense counsel that

the brig regulation was confiscated because it “contain[ed]

sensitive information concerning Brig Operations” such that “it

[wa]s considered contraband and [wa]s unauthorized.”

     On May 13, 2006, Appellant filed a complaint pursuant to

Article 138, UCMJ, 10 U.S.C. § 938 (2000), that included

concerns about brig personnel listening to his telephone

conversations with his attorney, restricting the number of calls

he could place to his attorney, and opening and reading his

attorney-client privileged mail.       After speaking with the

commanding officer, Appellant withdrew this complaint based on

assurances that the command would address Appellant’s concerns.




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United States v. Brooks, No. 07-0639/MC


     Appellant filed another complaint in September 2007 that

included allegations that his privileged correspondence was

being unlawfully opened and read, but did not repeat the prior

allegation that his phone conversations were being improperly

monitored.1    Pursuant to a November 2007 formal investigation,

the investigating officer found that Appellant’s privileged

correspondence had been restricted three times in 2007 for

mailing or attempting to mail out contraband.2    He also found

that all of Appellant’s incoming and outgoing privileged

correspondence had been delivered, although one piece of

incoming privileged correspondence had been received at the brig

unsealed.     He concluded that the brig properly handled prisoner

privileged correspondence and that the restrictions on

Appellant’s privileged correspondence accorded with applicable

directives.3



1
  Nevertheless, during the resulting Commander’s Investigation,
Appellant mentioned in passing that he felt he could not
“effectively communicate with lawyers (civilian and military
appellate), even over the phone.”
2
  Appellant was alleged to have mailed white powder, dust, dirt,
lint, and hair to the Commandant of the Marine Corps and to have
attempted to mail white powder and dirt to his appellate defense
counsel.
3
  At oral argument, Appellant’s counsel stated that there was no
evidence that the Government had interfered with Appellant’s
communications after the case was docketed at this Court. We
now grant her February 15, 2008, motion to correct errata in
which she explained that Appellant’s June 18, 2007, affidavit
and the November 8, 2007, Command Investigation contain
assertions of interference with attorney-client communications.

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United States v. Brooks, No. 07-0639/MC


                                III.

     Appellant raised the same issue concerning the denial of

his right to appellate counsel at the court below.   The NMCCA

found the issue unripe for review “in that the appellant has

failed to exhaust his available administrative remedies.”

Brooks, 2007 CCA LEXIS 166, at *25, 2007 WL 1704348, at *7.      The

court opined that even if Appellant had overcome the ripeness

problem, “the evidence before us fails to show how the alleged

improper brig practices have negatively impacted the appellant’s

ability to actively participate with his appellate counsel in

the appellate process.”   Id. at *25, 2007 WL 1704348, at *7.

     Appellant alleges that the ability of brig personnel to

overhear his telephone conversations with his appellate counsel

chilled his attorney-client communications and, thus, deprived

him of his Sixth Amendment right to counsel.   Claiming

structural error, he asks this Court to set aside the lower

court’s decision and order the NMCCA to conduct another review

under Article 66(c), UCMJ, 10 U.S.C. § 866(c) (2000).     Instead,

we affirm the lower court’s decision.   Any error was not

structural and Appellant failed to show prejudice.

                                 IV.

     “In all criminal prosecutions, the accused shall enjoy the

right . . . to have the Assistance of Counsel for his defence.”

U.S. Const. amend. VI.    The Supreme Court has extended the right


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United States v. Brooks, No. 07-0639/MC


to counsel to first appeals guaranteed as a matter of right.

Evitts v. Lucey, 469 U.S. 387, 396-97 (1985).   In military

jurisprudence, “[a]n accused has the right to effective

representation by counsel through the entire period of review

following trial, including representation before the Court of

Criminal Appeals and [this] Court by appellate counsel appointed

under Article 70, UCMJ, 10 U.S.C. § 870 (2000).”   Diaz v. Judge

Advocate General of the Navy, 59 M.J. 34, 37 (C.A.A.F. 2003);

accord United States v. Adams, 59 M.J. 367, 370 (C.A.A.F. 2004).

Necessarily included in the Sixth Amendment right to counsel is

the right of an accused to confer privately with his attorney.

United States v. Godshalk, 44 M.J. 487, 490 (C.A.A.F. 1996); see

Geders v. United States, 425 U.S. 80, 88-91 (1976) (holding

that, by sequestering the accused from his attorney for

seventeen hours during an overnight recess of the trial, the

trial court impinged upon his right to the assistance of counsel

guaranteed by the Sixth Amendment).

     Not all impingements on attorney-client communication

constitute per se violations of the Sixth Amendment right to

counsel thereby requiring reversal.   See United States v.

Pinson, 56 M.J. 489, 492 (C.A.A.F. 2002) (citing Weatherford v.

Bursey, 429 U.S. 545 (1977)).   Per se violations are limited to

“structural errors” and require no proof of prejudice for

reversal.   “Structural errors involve errors in the trial


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United States v. Brooks, No. 07-0639/MC


mechanism” so serious that “a criminal trial cannot reliably

serve its function as a vehicle for determination of guilt or

innocence.”    Arizona v. Fulminante, 499 U.S. 279, 309-10 (1991).

They are not amenable to harmless error review and will always

result in reversal if properly preserved for appeal.    Sullivan

v. Louisiana, 508 U.S. 275, 281-82 (1993).   Generally, for all

other errors, an appellant must show an effect on the

proceedings or prejudice to substantial rights.   Fulminante, 499

U.S. at 306.   There is a “strong presumption” that an error is

not structural.    Rose v. Clark, 478 U.S. 570, 579 (1986),

overruled on other grounds by Brecht v. Abrahamson, 507 U.S.

619, 637 (1993).

     The Supreme Court has recognized two tests for structural

error:   (1) when a court is faced with “the difficulty of

assessing the effect of the error,” as in:

     Waller v. Georgia, 467 U.S. 39, 49 n.9 (1984)
     (violation of the public-trial guarantee is not
     subject to harmlessness review because “the benefits
     of a public trial are frequently intangible, difficult
     to prove, or a matter of chance”); Vasquez v. Hillery,
     474 U.S. 254, 263 (1986) (“[W]hen a petit jury has
     been selected upon improper criteria or has been
     exposed to prejudicial publicity, we have required
     reversal of the conviction because the effect of the
     violation cannot be ascertained”).

United States v. Gonzalez-Lopez, 126 S. Ct. 2557, 2564 n.4

(2006) (holding denial of counsel of choice is not subject to

harmless error analysis because of difficulty in assessing the



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United States v. Brooks, No. 07-0639/MC


effect of the error in light of the many unquantifiable and

indeterminate variables involved in representation); and (2)

when harmlessness is irrelevant, as in McKaskle v. Wiggins, 465

U.S. 168, 177 n.8 (1984) (“Since the right to self-

representation is a right that when exercised usually increases

the likelihood of a trial outcome unfavorable to the defendant,

its denial is not amenable to ‘harmless error’ analysis”).

Gonzalez-Lopez, 126 S. Ct. at 2564 n.4

     This case fits neither structural error category.     If an

appellant thought he could not freely converse with counsel, he

should be able to articulate with some specificity what he

deleted from those communications.    An appellate court would

then be able to assess the significance of the missing matter on

the ability of counsel to defend the appellant.   Appellant’s

failure to do so does not render it impossible to assess

prejudice as a matter of law in all cases; rather, his silence

suggests that little, if anything, was chilled from Appellant’s

attorney-client conversations.   Similarly, a refusal to make

certain undefined communications, especially when the appellant

had ample alternative opportunities to speak freely with

counsel, does not, as a general matter, constitute prejudice.

While structural error might be present if Appellant was somehow

completely deprived of all opportunities to speak with appellate

counsel, that is not the case here.   See Johnson v. United


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United States v. Brooks, No. 07-0639/MC


States, 520 U.S. 461, 468-69 (1997) (citing Gideon v.

Wainwright, 372 U.S. 335, 342-45 (1963) (holding that total

deprivation of the right to counsel at trial constitutes a

structural error and requires reversal).

     Therefore, in this case, Appellant must show prejudice.

See United States v. Morrison, 449 U.S. 361, 365-66 (1981)

(limiting remedy, where government agents met with accused

without his defense counsel’s knowledge or permission, to

“denying the prosecution the fruits of its transgression”);

Weatherford, 429 U.S. at 557-58 (declining to apply per se error

standard to undercover agent’s presence during attorney-client

communications); Williams v. Woodford, 306 F.3d 665, 683 (9th

Cir. 2002) (holding that “[w]hen the government deliberately

interferes with the confidential relationship between a criminal

defendant and defense counsel [by disparaging that counsel in

front of the defendant], that interference violates the Sixth

Amendment right to counsel if it substantially prejudices the

criminal defendant.   Substantial prejudice results from the

introduction of evidence gained through the interference against

the defendant at trial, from the prosecution’s use of

confidential information pertaining to defense plans and

strategy, and from other actions designed to give the

prosecution an unfair advantage at trial”) (citations omitted);

Ervin v. Busby, 992 F.2d 147, 150 (8th Cir. 1993) (requiring a


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United States v. Brooks, No. 07-0639/MC


prejudice showing where inmate’s transfer to a more distant

detention facility resulted in his having to make a toll call to

his attorney where only a local call had been needed prior to

the transfer).

     After all, “[n]ot all government interference with the

attorney-client relationship renders counsel’s assistance so

ineffective as to violate a defendant’s sixth amendment right to

counsel.”   Hall v. Iowa, 705 F.2d 283, 290 (8th Cir. 1983)

(holding that police obtaining consent to search without

contacting accused’s counsel did not amount to violation of the

Sixth Amendment right to counsel when the police could have

seized the evidence anyway) (citations omitted); accord United

States v. Chavez, 902 F.2d 259, 266-67 (4th Cir. 1990) (holding

that agent’s failure to terminate conversations initiated by an

accused without the knowledge of his attorney did not rise to a

constitutionally impermissible invasion into the attorney-client

relationship -- some showing of prejudice is required).

     Even assuming the Government interfered with Appellant’s

right to counsel by allowing brig personnel to be present during

attorney-client telephone conversations and seizing the brig

regulation, Appellant has not cited, and the record fails to

establish, how he was prejudiced -– namely, what issues he

wanted to raise before the NMCCA but was unable to do so because




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United States v. Brooks, No. 07-0639/MC


of the chilling effect the brig officials’ actions had on his

attorney-client communications.

     This should not be taken to confer upon confinement

facility officials carte blanche to eavesdrop upon confidential

communications between attorney and client, beyond what is

strictly necessary to maintain the order and safety of the

institution.   While we are not, and do not intend to be,

overseers of the day-to-day operations of such facilities, a

case in which an appellant can articulate particularized

prejudice (let alone one in which the fruits of such

eavesdropping were used at trial) would raise far more acute

issues.   This, however, is not such a case.

                                  V.

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.




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