                          IN THE CASE OF

                      UNITED STATES, Appellee

                                   v.

                  Fernando GARCIA, Staff Sergeant
                    U.S. Marine Corps, Appellant

                            No. 03-0151

                      Crim. App. No. 9901513


       United States Court of Appeals for the Armed Forces

                      Argued January 22, 2004

                        Decided May 6, 2004

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

                                 Counsel

For Appellant: Lieutenant Robert E. Salyer, JAGC, USNR
(argued); Lieutenant Glenn Gerding, JAGC, USNR, and Lieutenant
Colin A. Kisor, JAGC, USNR (on brief).

For Appellee: Lieutenant Lars C. Johnson, JAGC, USNR (argued);
Colonel R. M. Favors, USMC, and Commander Robert P. Taishoff,
JAGC, USN (on brief).

Amicus Curiae: Alexander N. Pickands (law student) (argued);
Frederic I. Lederer, Esq. (supervising attorney), John M. Hackel
and Christopher R. Clements (law students) (on brief) – for the
College of William & Mary School of Law.

Military Judge:   R. E. Nunley

  This opinion is subject to editorial correction before final
                          publication.
United States v. Garcia, No. 03-0151/MC

     Judge ERDMANN delivered the opinion of the Court.

     Appellant, Staff Sergeant Fernando Garcia, was charged with

two specifications of attempted robbery, five specifications of

conspiracy to commit robbery, one specification of conspiracy to

commit larceny, three specifications of larceny, six

specifications of robbery, one specification of housebreaking,

four specifications of interstate transport of stolen property,

and four specifications of receiving stolen property in

violation of Articles 80, 81, 121, 122, 130, and 134 of the

Uniform Code of Military Justice [UCMJ], 10 U.S.C. §§ 880, 881,

921, 922, 930, and 934 (2000), respectively.   Garcia entered

pleas of not guilty to all specifications and charges and was

tried before a general court-martial.   He was found guilty of

all charges, other than the four specifications of receiving

stolen property which were withdrawn prior to findings.

     Garcia was sentenced by a panel of members to a

dishonorable discharge, confinement for 125 years, forfeiture of

all pay and allowances, a fine of $60,000 and reduction to the

lowest enlisted grade (E-1).   The convening authority reduced

the term of confinement to 75 years, suspended all confinement

in excess of 40 years, and otherwise affirmed the sentence.     The

Navy-Marine Corps Court of Criminal Appeals affirmed the

findings of guilty and the sentence.    United States v. Garcia,

57 M.J. 716 (N-M. Ct. Crim. App. 2002).



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United States v. Garcia, No. 03-0151/MC

         We granted review of the following issues pursuant to

Article 67(b), UCMJ, 10 U.S.C. § 867(b) (2000):1

    I.     WHETHER THE LOWER COURT ERRED WHEN IT HELD THAT
           APPELLANT'S ON-PREMISES OBJECTION TO THE NCIS SEARCH OF
           HIS HOME DID NOT PREVAIL OVER HIS WIFE'S OFF-PREMISES
           CONSENT TO A SEARCH OF THE HOME.

    II.    WHETHER THE LOWER COURT ERRED WHEN IT HELD THAT THE
           ABSENCE OF AN ARTICLE 32 HEARING IN APPELLANT'S GENERAL
           COURT-MARTIAL DOES NOT REQUIRE A COMPLETE REVERSAL.

    III. WHETHER APPELLANT RECEIVED EFFECTIVE ASSISTANCE OF
         COUNSEL. (IN ADDITION TO THE SEVEN MATTERS RAISED BY
         APPELLANT IN HIS PETITION SUPPLEMENT, THE PARTIES SHOULD
         ADDRESS THE FOLLOWING: (1) WHETHER TRIAL DEFENSE COUNSEL
         WAS INEFFECTIVE IN NOT OBJECTING TO ADMISSION OF EVIDENCE
         OBTAINED FROM THE SEARCH DESCRIBED IN ISSUE I; (2)
         WHETHER TRIAL DEFENSE COUNSEL WAS INEFFECTIVE IN NOT
         OBJECTING TO THAT PORTION OF TRIAL COUNSEL'S SENTENCING
         ARGUMENT DESCRIBED IN ISSUE IV; AND (3) WHETHER TRIAL
         DEFENSE COUNSEL WAS INEFFECTIVE IN NOT ADVISING APPELLANT
         REGARDING THE POSSIBILITY OF OBTAINING A PLEA AGREEMENT
         BEFORE OFFERING THE CONFESSIONAL TESTIMONY DESCRIBED IN
         ISSUE V).

    IV.    WHETHER THE LOWER COURT ERRED WHEN IT HELD THAT TRIAL
           COUNSEL'S SENTENCING ARGUMENT WAS NOT IMPROPER.

    V.     WHETHER THE LOWER COURT ERRED WHEN IT HELD THAT THE
           MILITARY JUDGE HAD NO DUTY TO ADVISE APPELLANT OF HIS
           RIGHTS PURSUANT TO UNITED STATES V. BERTELSON, 3 M.J. 314
           (C.M.A. 1977) AND UNITED STATES V. WILLIAMS, 18 M.J. 186
           (C.M.A. 1984) AND RULED THAT APPELLANT'S CONFESSIONAL
           STIPULATION DID NOT AMOUNT TO A CONFESSIONAL STIPULATION
           AND A DE FACTO GULTY PLEA.


    We hold that Garcia received ineffective assistance of counsel




1
  We heard oral argument in this case at the William and Mary
School of Law, Williamsburg, Virginia, as part of the Court’s
“Project Outreach.” See United States v. Mahoney, 58 M.J. 346,
347 n.1 (C.A.A.F. 2003).

                                    3
United States v. Garcia, No. 03-0151/MC

at his court-martial, and therefore reverse on Issue III.    In

light of that disposition, we do not reach the remaining issues.

                               FACTS

     In October 1997 Garcia was apprehended outside of his home

in Jacksonville, North Carolina, by agents of the Naval Criminal

Investigative Service who suspected that he and various

coconspirators had engaged in a string of criminal activity,

including armed carjackings, armed robberies, and burglary.

After his apprehension, Garcia retained a civilian defense

counsel to represent him along with his military defense

counsel.   His civilian defense counsel, Bruce Cockshoot, signed

a written waiver on behalf of Garcia which unconditionally

waived Garcia’s right to an investigation pursuant to Article

32, UCMJ, 10 U.S.C. § 832 (2000).    Garcia subsequently stated

that he knew nothing of the waiver until after his conviction

and would not have authorized it had he known.2   The lack of an

Article 32 investigation was not raised at trial.

     Prior to trial, Garcia’s civilian defense counsel advised

Garcia that he should not agree to enter into a pretrial

agreement that called for confinement of more than four to six


2
  The Government was unable to locate Mr. Cockshoot to obtain his
version of events and military defense counsel was unable to
remember many details due to the passage of time. Thus, the
facts relevant to representation offered by Garcia in a post-
trial declaration are unrebutted. See United States v. Ginn, 47
M.J. 236, 248 (C.A.A.F. 1997).



                                 4
United States v. Garcia, No. 03-0151/MC

years.    Garcia’s military defense counsel, on the other hand,

advised him that a sentence in excess of 40 years was likely if

they went to trial and informed him that the Government would

probably agree to a plea agreement limiting confinement to 20-25

years.3   Garcia, apparently relying on the advice of his civilian

attorney, chose not to enter into a plea agreement.

Approximately three weeks before the court-martial, Mr.

Cockshoot’s representation ended and Garcia was represented only

by his military defense counsel for the remainder of the

proceedings.

     Initially, Garcia did not admit to his military counsel the

degree of his involvement in the charged offenses.    However,

after three days of the trial, military defense counsel met with

Garcia and indicated to Garcia that the defense was getting

“killed” by the Government evidence.   At this point, Garcia

informed his military counsel of the full extent of his

culpability.   Faced with this disclosure in mid-trial, defense

counsel advised Garcia that they should allow the Government to

finish its case and then have Garcia testify that he had

committed the charged activity, in the hope that the members




3
  We note that Garcia was exposed to a substantial maximum
sentence in this case. Based upon the findings of guilty, the
military judge instructed the members that the maximum sentence
included, inter alia, confinement for 260 years.

                                  5
United States v. Garcia, No. 03-0151/MC

would be lenient if Garcia candidly accepted responsibility.

Garcia followed this advice.    His attorney did not discuss any

other possible options available to him at that time, and Garcia

later stated that he was unaware that he could have changed his

plea to guilty.

     During sentencing arguments, the Government asked the

members to return a sentence that included a fine of $23,000 and

confinement for 86 years.   The members returned a sentence that

included a fine of $60,000 and confinement for 125 years.

                            DISCUSSION

     Garcia alleges that he received ineffective assistance of

counsel at his court-martial.   Under Strickland v. Washington,

466 U.S. 668, 687 (1984), Garcia must show both that counsel’s

performance was deficient and that the deficiencies were so

serious as to deprive him of a fair trial.   Moreover, “a court

must indulge a strong presumption that counsel's conduct falls

within the wide range of reasonable professional assistance;

that is, the defendant must overcome the presumption that, under

the circumstances, the challenged action ‘might be considered

sound trial strategy.’”   Id. at 689 (quoting Michel v. Lousiana,

350 U.S. 91, 101 (1955)).

     This Court applies a three prong test to determine if the

presumption of competence has been overcome:

     (1)   Are the allegations true; if so, "is there a
           reasonable explanation for counsel's actions?";


                                  6
United States v. Garcia, No. 03-0151/MC

     (2)   If the allegations are true, did defense
           counsel's level of advocacy fall "measurably
           below the performance . . . [ordinarily expected]
           of fallible lawyers?"; and

     (3)   If defense counsel was ineffective, is there a
           "reasonable probability that, absent the errors,"
           there would have been a different result?


United States v. Grigoruk, 56 M.J. 304, 307 (C.A.A.F. 2002)

(citing United States v. Polk, 32 M.J. 150, 153 (C.M.A. 1991)).

We evaluate the combined efforts of the defense as a team rather

than evaluating the individual shortcomings of any single

counsel.   United States v. McConnell, 55 M.J. 479, 481 (C.A.A.F.

2001).

     Applying the Grigoruk three prong test, we find that Garcia

received ineffective assistance of counsel in two significant

respects: (1) his civilian defense counsel waived the Article 32

investigation without Garcia’s agreement; and (2) his military

defense counsel inexplicably failed to advise Garcia of the

range of options he faced when he eventually confessed his full

involvement to counsel near the conclusion of the Government’s

case-in-chief and thereafter failed to demonstrate a sound trial

strategy in the presentation of Garcia’s case.   We will consider

each of these deficiencies separately.    Given our conclusion

that these two deficiencies prejudiced Garcia, we need not

address the other alleged deficiencies in the defense team

performance.




                                 7
United States v. Garcia, No. 03-0151/MC

     1.     The Article 32 Investigation

     Article 32 requires “a thorough and impartial

investigation” before any charges or specifications may be

referred to a general court-martial.       At the investigation, the

accused has the right to be represented by counsel, to cross-

examine witnesses, and “to present anything he may desire in his

own behalf.”    Article 32, UCMJ.   The Article 32 investigation

“operates as a discovery proceeding for the accused and stands

as a bulwark against baseless charges.”      United States v.

Samuels, 10 C.M.A. 206, 212, 27 C.M.R. 280, 286 (1959).         The

procedures, rights and duties applicable to an Article 32

investigation are specified in Rule for Courts-Martial 405

[R.C.M.].

     Pursuant to R.C.M. 405(k), “[t]he accused may waive an

[Article 32] investigation under this rule.”      The precise form

or procedure for a waiver is not specified, and whether the

accused’s right to an Article 32 investigation is personal to

the accused is an issue of first impression at this Court.        As

the Supreme Court has noted, “What suffices for waiver depends

on the nature of the right at issue. ‘Whether the defendant must

participate personally in the waiver; whether certain procedures

are required for waiver; and whether the defendant's choice must

be particularly informed or voluntary, all depend on the right

at stake.’"    New York v. Hill, 528 U.S. 110, 114 (2000)(quoting



                                    8
United States v. Garcia, No. 03-0151/MC

United States v. Olano, 507 U.S. 725, 733 (1993)).    Garcia

argues that his personal consent to the waiver of his right to

an Article 32 investigation was required and we agree.

     On this record, it is undisputed that Garcia’s civilian

defense counsel waived Garcia’s right to an Article 32

investigation without Garcia’s personal consent.   We recognize

that in many situations consent or waiver by counsel is binding,

whether or not the client has personally consented or explicitly

agreed to waive a matter.   “As to many decisions pertaining to

the conduct of the trial [e.g., what evidentiary objections to

raise or what agreements to conclude regarding the admission of

evidence], the defendant is ‘deemed bound by the acts of his

lawyer-agent . . . .’”   Hill, 528 U.S. at 115 (quoting Link v.

Wabash R. Co., 370 U.S. 626, 634 (1962)).

     However, the decision whether to waive a pretrial

investigation is unlike the many routine decisions a lawyer must

make as the trial progresses.   It is, rather, a decision

fundamentally impacting a “substantial pretrial right” of the

accused.   See United States v. Chuculate, 5 M.J. 143, 145

(C.M.A. 1978).   Our treatment of Article 32 waivers in pretrial

agreements, for example, reflects that the right is personal to

the accused and we have tasked military judges with ensuring

that the waiver is freely given and fully understood.    See

United States v. Schaffer, 12 M.J. 425, 429 (C.M.A.



                                 9
United States v. Garcia, No. 03-0151/MC

1982)(“[T]here are obvious reasons why a military accused, with

the advice of counsel, may wish to initiate a waiver of an

Article 32 investigation[.]”); see also R.C.M. 910(f).      We agree

with Garcia that the right to an Article 32 investigation is a

personal right, and in most instances cannot be waived without a

defendant’s informed consent.

     It is possible that under other circumstances waiver of an

Article 32 investigation without the client’s personal consent

would not constitute ineffective assistance of counsel under

either or both prongs of Strickland, for example where there is

good cause for the failure to obtain personal consent, a sound

tactical decision or a lack of resultant prejudice.   Here,

however, we see no such saving circumstances.   We perceive no

sound strategic reasons for the waiver itself, and the record

reveals no benefit for Garcia in exchange for giving up his

right to an Article 32 investigation.

     On the contrary, the record demonstrates that Garcia was

prejudiced.   He did not have the opportunity to hear the

Government’s case against him and to assess the potential

strength of that case.   If he had seen the case against him

prior to rather than in the midst of the trial, he might have

sought a plea agreement which would have limited his sentence.

The Government argues that it could have chosen to put on only a

“bare-bones” case at the Article 32 investigation, and thus



                                10
United States v. Garcia, No. 03-0151/MC

Garcia still might not have seen enough of the Government’s case

to persuade him to enter into a plea agreement.    This argument

is based on a faulty premise: it is not the Government that

controls the Article 32 investigation, but rather an

investigating officer charged with making a thorough and

impartial investigation into the form and substance of the

charges, which includes the examination of available witnesses

requested by the accused.   Article 32, UCMJ; R.C.M. 405.

     Under these circumstances, we find that defense counsel’s

action in waiving Garcia’s right to an Article 32 investigation

without Garcia’s personal consent fell measurably below the

performance ordinarily expected of fallible lawyers, and that

there is a reasonable probability of a different result absent

that action.   See Grigoruk, 56 M.J. at 307.

     2. The Mid-Trial Advice to Confess

     As noted, Garcia did not disclose the full extent of his

involvement to his military counsel until three days into the

presentation of the Government’s evidence.     At that point,

defense counsel, who remained bound by the requirement to take

only those actions that were in the best interests of his

client, was left with a range of problematic options, including

exploring of the possibility of a plea agreement, changing his

plea to guilty, having Garcia remain silent, or having Garcia

confess and throw himself on the mercy of the court without



                                11
United States v. Garcia, No. 03-0151/MC

changing his plea.   At this strategic crossroads, defense

counsel had the responsibility of explaining these options to

his client and obtaining the client’s fully informed consent as

to which path to follow.   See Strickland, 466 U.S. at 688

(noting that counsel’s duties include consulting with the

defendant on important decisions, keeping the defendant informed

of important developments, and bringing to bear “such skill and

knowledge as will render the trial a reliable adversarial

testing process”).

     Instead, defense counsel inexplicably chose to advise

Garcia of a single and arguably the least tenable option.

Counsel failed to inform or discuss with Garcia any other

options.   We find no reasonable explanation for defense

counsel’s failure to advise his client of the range of options

open to him.   His performance in this regard fell measurably

below that standard ordinarily expected of fallible lawyers.

     Relying on this limited, deficient advice, Garcia, the sole

witness in the defense case-in-chief, fully detailed his

involvement and the actions of his co-conspirators in the

charged offenses.    Defense counsel explained to the members that

his intent in having Garcia testify was for the members to know

“the whole thing, the good, the bad, the worst, the ugly and the

uglier all together” in order to make an informed judgment.     The

adversarial nature of our system of justice depends on partisan



                                 12
United States v. Garcia, No. 03-0151/MC

advocacy by both parties: the right to effective assistance of

counsel includes the right of the accused to a counsel who is

acting as an advocate for the accused, as opposed to a friend of

the court.    United States v. Cronic, 466 U.S. 648, 656-57

(1984).   By eliciting from Garcia the details of his criminal

activity and by conceding the “ugly” character of Garcia’s

actions, much of what defense counsel accomplished merely

assisted the Government and bolstered the case against Garcia.

     During his lengthy and detailed examination of Garcia’s

criminal activity, defense counsel’s actions exhibited a clear

lack of a sound trial strategy that would have served the best

interests of his client.    He did not attempt to elicit from

Garcia any expressions of remorse or contrition; this judicial

confession had no mitigating impact.    In fact, defense counsel’s

direct examination opened the door for the prosecution in its

cross-examination to elicit aggravating and damaging details not

previously established, such as the fact that the escape route

of a planned armored-vehicle robbery went by a child day-care

center.   Moreover, while the defense counsel argued during his

sentencing argument that Garcia was remorseful, he also made

arguments that served only to highlight Garcia’s culpability.

For example, defense counsel argued:

             Was he three-and-a-half-pounds of trigger
             pull away from [killing or injuring
             someone]? Yes. He’s admitted to you that he
             has put people’s lives in danger, and he has


                                  13
United States v. Garcia, No. 03-0151/MC

           told you how he feels about that, but the
           bottom line is that we are not here to
           punish him for that possibility.

It is difficult to discern a sound trial strategy in reminding

the members that Garcia was only “three-and-a-half-pounds of

trigger pull away from” homicide.    Although we are not prepared

to say that the strategy chosen by defense counsel was per se

ineffective, under the circumstances before us, and given that

Garcia was not informed of other possible options, defense

counsel’s performance fell measurably below the performance

ordinarily expected of fallible lawyers.

     The extreme harshness of the sentence returned by the

members is strong evidence that Garcia was prejudiced by the

aggravating testimony elicited from him as he followed defense

counsel’s advised course of action.   The Government asked for a

$23,000 fine and confinement for 86 years, and the members

returned a sentence which included a fine of $60,000 and a

sentence of 125 years - $37,000 and 39 years more than even what

the Government thought was appropriate.    Such an exceptionally

harsh sentence leads us to believe that there is a reasonable

probability of a different outcome to the court-martial had

defense counsel explored the range of available options with his

client.   See Grigoruk, 56 M.J. at 307.

     In conclusion, we find that the “strong presumption that

counsel's conduct falls within the wide range of reasonable



                                14
United States v. Garcia, No. 03-0151/MC

professional assistance” has been overcome.   Strickland, 466

U.S. at 689.   There was no reasonable explanation for the

defense team’s actions with regards to the Article 32 waiver.

That action, coupled with counsel’s advice to confess and his

subsequent lack of a coherent trial strategy, falls measurably

below the performance ordinarily expected of fallible lawyers.

There is a reasonable probability that, absent these errors,

there would have been a different result.

                             DECISION

     We therefore set aside findings and sentence and the

decision of the Navy-Marine Corps Court of Criminal Appeals.

This case is returned to the Judge Advocate General.   A

rehearing may be ordered upon completion of an Article 32

investigation and pretrial advice.




                                15
United States v. Garcia, No. 03-0151


     CRAWFORD, Chief Judge (dissenting):

     I respectfully dissent from the majority’s unprecedented

treatment of (1) the waiver of the investigation pursuant to

Article 32, Uniform Code of Military Justice, 10 U.S.C. § 832

(2000), and (2) the accused’s right to a mid-trial continuance,

as well as from the majority’s (3) hasty and fundamentally

unfair resolution of the ineffectiveness of counsel issue

without first ordering a hearing pursuant to United States v.

DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967).    I fear the

unintended consequence of these actions will place this Court’s

opinion outside the judicial mainstream and undermine public

confidence in its decision-making.

     The opinion fails to recognize that a majority of federal

courts have indicated that counsel may waive a preliminary

hearing and an indictment by a grand jury.    See, e.g., New York

v. Hill, 528 U.S. 110, 114 (2000).   These proceedings are

similar to the military’s investigation under Article 32.

Contrary to federal precedent, this is the first time in this

Court’s history that the majority holds that waiver of the

Article 32 investigation is a personal right of the accused.

Moreover, the Court’s holding implies that Appellant has a right

to a mid-trial continuance to negotiate a pretrial agreement

after a three-day presentation of Government testimony.
United States v. Garcia, No. 03-0151


        The majority also resolves the allegation of

ineffectiveness based on an unchallenged affidavit from

Appellant, who over a number of months admittedly lied to both

his civilian and military defense counsel about his involvement

in the offenses, and only changed his mind mid-trial after the

Government’s three-day presentation of evidence to the court

members.    The majority’s action is not only premature, but also

fundamentally unfair to defense counsel.     To resolve the

ineffectiveness issue as to advice of counsel concerning a

guilty plea and a pretrial agreement, I would order a DuBay

hearing, rather than reverse at this level.

        In United States v. Lewis, 42 M.J. 1 (C.A.A.F. 1995),

military and civilian defense counsel resisted the request for

an affidavit.    This Court in Lewis chose to treat the pleadings

as a motion for intervention, and rejected defense counsel’s

assertion that the defense did not have to cooperate.     In the

instant case, civilian defense counsel, a member of our bar, did

not furnish an affidavit as to the facts surrounding Appellant’s

plea.    As in Lewis, this Court may legitimately request that

both counsels participate in a DuBay hearing to resolve the

facts surrounding their advice on the guilty plea, testimony at

trial, and a cap on any sentence.      I feel it is inappropriate to

hold that counsel is ineffective without giving them a chance to

respond at a court-ordered DuBay hearing.


                                   2
