United States v. St. Blanc , 70 M.J. 424 ( 2012 )

UNITED STATES, Appellee
v.
William J. ST. BLANC Jr., Senior Airman
U.S. Air Force, Appellant
No. 10-0178
Crim. App. No. 37206
United States Court of Appeals for the Armed Forces
Argued October 25, 2011
Decided January 20, 2012
RYAN, J., delivered the opinion of the Court, in which
ERDMANN and STUCKY, JJ., and COX, S.J., joined. BAKER,
C.J., filed a separate opinion concurring in part and
dissenting in part.
Counsel
For Appellant: Captain Ja Rai A. Williams (argued);
Lieutenant Colonel Gail E. Crawford, Major Matthew C.
Hoyer, Major Michael S. Kerr, and Captain Nicholas W. McCue
(on brief); Major Shannon A. Bennett.
For Appellee: Major Deanna Daly (argued); Colonel Don M.
Christensen, Lieutenant Colonel Linell A. Letendre, Major
Jamie L. Mendelson, and Gerald R. Bruce, Esq. (on brief);
Lieutenant Colonel Jeremy S. Weber.
Military Judge: Nancy J. Paul
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. St. Blanc, 10-0178/AF
Judge RYAN delivered the opinion of the Court.
Contrary to his pleas, Appellant was found guilty by a
military judge sitting as a general court-martial of one
specification of attempting to communicate indecent
language to a person believed to be under age sixteen, and
one specification of wrongful and knowing possession of
four videos and fifteen visual depictions of “what appears
to be” minors engaging in sexually explicit conduct, in
violation of Articles 80 and 134, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. §§ 880, 934 (2006). Appellant
was sentenced to a bad-conduct discharge, confinement for
two years, forfeiture of all pay and allowances, and
reduction to E-1. The convening authority approved the
sentence but deferred the adjudged forfeitures and waived
the mandatory forfeitures for a period of one month.
The United States Air Force Court of Criminal Appeals
(AFCCA) affirmed.1 St. Blanc, 2009 CCA LEXIS 433, at *8,
1
In its initial review, the AFCCA affirmed the findings but
did not affirm the sentence because the Action did not
reflect the convening authority’s deferral of the adjudged
forfeitures and waiver of the mandatory forfeitures for a
period of one month. United States v. St. Blanc, No. ACM
37206, 2009 CCA LEXIS 433, at *7-*8, 2009 WL 4110805, at *3
(A.F. Ct. Crim. App. Oct. 21, 2009) (unpublished). The
AFCCA remanded the case for the convening authority to
withdraw the erroneous Action and substitute a corrected
Action. Id. at *8, 2009 WL 4110805, at *3. Upon a second
review, the AFCCA recognized that the corrected Action
2
United States v. St. Blanc, 10-0178/AF
2009 WL 4110805, at *3. We granted Appellant’s petition
for review to consider whether Appellant’s decision to seek
trial by military judge alone was knowing and voluntary
when his counsel “misadvised” him of the maximum punishment
that he faced.2 We conclude that Appellant’s decision to
choose trial by military judge alone complied with Rule for
Courts-Martial (R.C.M.) 903, and was knowing and voluntary.
We remand, however, for resentencing in light of United
States v. Beaty, 70 M.J. 39 (C.A.A.F. 2011).
I. FACTUAL BACKGROUND
Starting in May 2006, Appellant engaged in sexually
explicit online conversations with an undercover agent
posing as a thirteen-year-old girl with the screen name
complied with its directions and affirmed the sentence.
United States v. St. Blanc, No. ACM 37206, 2010 CCA LEXIS
147, at *1, 2010 WL 4117554, at *1 (A.F. Ct. Crim. App.
Mar. 19, 2010) (unpublished) (per curiam).
2
On August 12, 2010, we granted the petition for review on
the following issue:
I. WHETHER APPELLANT’S FORUM SELECTION WAS NOT MADE
KNOWINGLY AND VOLUNTARILY BECAUSE HE WAS
MISADVISED BY ALL PARTIES REGARDING THE MAXIMUM
PUNISHMENT FOR POSSESSION OF WHAT “APPEARS TO BE”
CHILD PORNOGRAPHY.
On June 1, 2011, this Court ordered the parties to file
additional briefs “addressing Beaty and whether Appellant
waived his right to a trial by court members based on the
misapprehension of the maximum punishment.” United States
v. St. Blanc, 70 M.J. 208 (C.A.A.F. 2011) (order).
3
United States v. St. Blanc, 10-0178/AF
“swtmandygal13.” As a result of these conversations, the
Air Force Office of Special Investigations interviewed
Appellant and conducted a search of his residence, during
which it seized several computers and compact discs. In
the seized media, Defense Computer Forensics Lab discovered
photographs and videos containing suspected child
pornography. Based on this evidence, the Government
charged Appellant with, inter alia, two specifications of
possession of (1) four videos and (2) eighteen visual
depictions of “what appears to be” minors engaging in
sexually explicit conduct, in violation of Article 134,
UCMJ.
Prior to trial, Appellant discussed the potential
maximum punishment for the offenses as charged with his
counsel. Appellant’s counsel noted that, in this case,
“there was some unpredictability in the maximum punishment”
because of the two specifications charged under Article
134, UCMJ. Counsel explained, however, that the
“comparable federal statute” -- the Child Pornography
Prevention Act of 1996 (CPPA), 18 U.S.C. § 2252A (2006) --
would serve “as a ceiling for confinement.” Looking to the
CPPA, counsel informed Appellant, erroneously, that he
4
United States v. St. Blanc, 10-0178/AF
faced a possible maximum punishment of forty-nine years if
convicted of all charges.3
As to forum selection, counsel “told [Appellant] that
neither a judge nor a panel would be likely to sentence him
to anywhere near the maximum punishment.” Nonetheless,
counsel recommended that Appellant choose a trial by
military judge alone. This recommendation was based on
counsel’s previous experience with the military judge
assigned to preside over Appellant’s court-martial
proceedings and on the nature of the charges and evidence
in his case. Prior to trial, Appellant submitted a written
request for trial by military judge alone.
Before accepting Appellant’s request, the military
judge conducted a forum rights advisement, in accordance
with R.C.M. 903. She began the advisement by providing
3
Trial defense counsel reached this figure by adding two
years for attempted indecent communication with a minor,
seven years for attempted indecent liberties, and twenty
years each for possession of child pornography (1) videos
and (2) visual depictions. In so doing, it appears that
trial defense counsel mistakenly relied upon 18 U.S.C. §
2252A(b)(1) which punishes a number of child pornography
offenses under the law instead of § 2252A(b)(2) which
punishes only simple possession -- the charge that
Appellant faced. Compare 18 U.S.C. § 2252A(b)(1) (imposing
a maximum punishment of twenty years), with 18 U.S.C. §
2252A(b)(2) (imposing a maximum punishment of ten years).
Appellant does not argue that he would have elected trial
by members if he was informed that the maximum punishment
he faced was twenty-nine years rather than forty-nine
years.
5
United States v. St. Blanc, 10-0178/AF
Appellant with a detailed description of his right to trial
by members or by military judge alone. The military judge
then ensured, and Appellant verbally acknowledged, that he
understood the difference between the forums and his rights
with respect to election.
After ensuring that Appellant knew his rights, the
military judge then considered Appellant’s written request.
She first verified Appellant’s signature on his written
request and then verified that, prior to making his
request, Appellant was aware that she would be the military
judge in his case and that he was giving up his right to
trial by members. After Appellant confirmed these facts,
the military judge approved his request to be tried by
military judge alone.
Shortly after forum selection, the military judge
merged the two specifications for possession of child
pornography under Charge II, dismissing Specification 2 and
amending Specification 1 to read, “possess[ed] four videos
and eighteen visual depictions.”
Thereafter, the case proceeded to trial on the
remaining charges, at the end of which the military judge
found Appellant not guilty of attempt to take indecent
liberties with a person believed to be under age sixteen,
in violation of Article 80, UCMJ, and guilty of attempting
6
United States v. St. Blanc, 10-0178/AF
to communicate indecent language to a minor and possession
of fifteen -- not eighteen -- visual depictions of “what
appears to be” child pornography, in violation of Articles
80 and 134, UCMJ.4 Prior to sentencing, the following
exchange took place regarding the maximum sentence that
could be adjudged:
TC: Ma’am, in the quick 802, we needed a max
sentence, too.
MJ: You mean just the inquiry into the maximum
sentence that could be imposed?
TC: Just bringing it to your attention, not a
big deal.
MJ: As far as I was concerned, the maximum
sentence was confinement for 12 years --
TC: Yes, ma’am.
MJ: Forfeiture of all pay and allowances,
reduction to the grade of E-1 and a dishonorable
discharge.
TC: Yes, ma’am.
MJ: Okay.
While not explicit, given the finding of not guilty for the
specification of attempting to take indecent liberties with
a minor and the merger of two specifications of wrongful
4
It appears that the military judge found Appellant guilty
of possessing only fifteen of the eighteen charged visual
depictions because the defense’s expert testimony called
into question whether three of the images were of persons
under the age of eighteen years.
7
United States v. St. Blanc, 10-0178/AF
and knowing possession of “what appears to be” child
pornography, it appears that the military judge reached the
maximum punishment by adding ten years -- the CPPA maximum
for a single specification of possession of child
pornography, see 18 U.S.C. § 2252A(b)(2), -- to the two-
year maximum for attempting to communicate indecent
language to a minor, see Manual for Courts-Martial, United
States pt. IV, paras. 4.e., 89.e.(1) (2008 ed.) (MCM).
Defense counsel did not object to this calculation. The
military judge then sentenced Appellant to two years
confinement, a bad-conduct discharge, reduction to E-1, and
forfeiture of all pay and allowances.
The AFCCA issued its decision prior to our decision in
Beaty, 70 M.J. 39 (setting aside the appellant’s sentence
because the military judge relied upon the CPPA to
calculate the sentence maximum for possession of “what
appears to be” child pornography). St. Blanc, 2009 CCA
LEXIS 433, 2009 WL 4110805. The AFCCA therefore held that
the military judge did not err in adopting the CPPA’s ten-
year maximum sentence for possession of child pornography
even though the specification alleged possession of “what
appears to be” child pornography. Id. at *7-*8, 2009 WL
4110805, at *2-*3. As a result, the court found the issue
8
United States v. St. Blanc, 10-0178/AF
regarding Appellant’s forum selection to be moot, so it
approved the findings. Id.II. DISCUSSION
A.
The interpretation of UCMJ and R.C.M. provisions and
the military judge’s compliance with them are questions of
law, which we review de novo. See, e.g., United States v.
Hunter, 65 M.J. 399, 401 (C.A.A.F. 2008); United States v.
Roberts, 59 M.J. 323, 326 (C.A.A.F. 2004); United States v.
Rendon, 58 M.J. 221, 224 (C.A.A.F. 2003). Within the
military justice system, an accused has a right to trial
before a panel of military members. United States v.
Turner, 47 M.J. 348, 350 (C.A.A.F. 1997) (“Article 16
guarantees the right to a trial by court members.”); United
States v. Parkes, 5 M.J. 489, 489 (C.M.A. 1978)
(recognizing that an accused has a “statutory right to
trial by a court with members”). An accused also has a
choice: prior to trial, an accused has the right to elect
to be tried by members or by a military judge alone.
Article 16(1)(B), UCMJ, 10 U.S.C. § 816(1)(B) (2006).
In the military context, R.C.M. 903 protects the forum
selection right codified in Article 16, UCMJ, by ensuring
that an accused’s waiver of the right to trial by members
is knowing and voluntary. To this end, the request for
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United States v. St. Blanc, 10-0178/AF
trial by military judge alone must be made in a signed
writing by the accused or made orally on the record.
R.C.M. 903(b)(2). If the accused requests trial by
military judge alone, the military judge must further
ensure that the accused has: (1) “consulted with defense
counsel” about the choice; (2) “been informed of the
identity of the military judge;” and (3) been informed “of
the right to trial by members.” R.C.M. 903(c)(2)(A). In
this way, R.C.M. 903 ensures that an accused understands
the nature of the choice before waiving the right to trial
by members. Cf. Turner, 47 M.J. at 350 (recognizing the
need for a knowing waiver); Parkes, 5 M.J. at 489-90
(reviewing the adequacy of a military judge’s forum
selection inquiry to assure that the forum selection was
“understandingly made”).
B.
In this case, Appellant does not contest that the
military judge complied with R.C.M. 903. Instead,
Appellant claims that his waiver to trial by members was
not knowing and voluntary because he received inaccurate
information from his defense counsel regarding the maximum
10
United States v. St. Blanc, 10-0178/AF
punishment that he faced.5 Importantly, the “inaccuracy”
Appellant relies on is not counsel’s initial mistake in
relying on 18 U.S.C. § 2252A(b)(1), see supra note 3, but
rather an inaccuracy based on a retroactive application of
Beaty, 70 M.J. 39.
“The maximum punishment authorized for an offense is a
question of law, which we review de novo.” Beaty, 70 M.J.
at 41 (citing United States v. Ronghi, 60 M.J. 83, 84-85
(C.A.A.F. 2004)). Here, as in Beaty, Appellant was charged
with possession of “what appears to be” child pornography,
yet his maximum sentence was determined by reference to the
CPPA. Beaty held that the maximum sentence for a
specification of possessing “what appears to be” child
pornography cannot be determined by reference to the CPPA.
Id. at 44 (explaining that because the CPPA does not punish
possession of “what appears to be” child pornography, it
was error “to utilize the punishment authorized for a
violation of the CPPA when setting the maximum
punishment”). As a result, and in the absence of the
President setting a sentence maximum for such an offense,
5
Appellant also claims that the military judge misled him
as to the maximum punishment. But Appellant could not have
based his forum selection on this as Appellant made his
forum selection before the military judge discussed the
maximum sentence.
11
United States v. St. Blanc, 10-0178/AF
id. at 42 & n.6, the maximum sentence for the offense today
is that of a general or simple disorder under Article 134,
UCMJ -- four months of confinement and forfeiture of two-
thirds pay per month for four months. Id. at 45.
According to Appellant, if he had known that the
maximum punishment he faced for the original charges and
specifications was only nine years and eight months, he
would have elected trial by members, and, therefore, his
decision was not knowing and voluntary because it was based
on inaccurate information.
C.
We agree with Appellant that he should be correctly
informed by his defense counsel of the maximum punishment
he faces before making fundamental decisions in his case.
See Strickland v. Washington, 466 U.S. 668, 688 (1984);
United States v. Larson, 66 M.J. 212, 218 (C.A.A.F. 2008);
cf. United States v. Straight, 42 M.J. 244, 251 (C.A.A.F.
1995) (holding that defense counsel’s erroneous advice that
a post-trial session posed a risk of an increase in the
appellant’s sentence and his decision based on this belief
constituted “deficient performance within the meaning of
Strickland” but finding no prejudice). We also recognize
that, where the accused has been grossly misled by a
miscalculation or erroneous sentence estimation by defense
12
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counsel, such conduct may constitute ineffective assistance
of counsel. See United States v. Herrera, 412 F.3d 577,
580 (5th Cir. 2005); United States v. Martinez, 169 F.3d
1049, 1053 (7th Cir. 1999); see also United States v.
Benson, 127 F. App’x 808, 810-11 (6th Cir. 2005); United
States v. Rodriguez Rodriguez, 929 F.2d 747, 753 (1st Cir.
1991); cf. United States v. Marshall, 45 M.J. 268, 273
(C.A.A.F. 1996) (concluding that counsel’s advice did not
constitute deficient performance but leaving open whether
“an erroneous sentence estimation by defense counsel” could
be deficient performance for purposes of ineffective
assistance of counsel). But see United States v. Gordon, 4
F.3d 1567, 1570 (10th Cir. 1993) (“A miscalculation or
erroneous sentence estimation by defense counsel is not a
constitutionally deficient performance rising to the level
of ineffective assistance of counsel.”).
There are, nonetheless, at least two problems with
Appellant’s assertion that counsel’s sentence advice here
can be recast as an unknowing and involuntary waiver of his
right to trial by military members in this case. First, as
a threshold matter, we do not think the retroactive
application of Beaty to cases on direct review stretches so
far as Appellant suggests. It is not insignificant that
under the law as it existed when Appellant’s counsel
13
United States v. St. Blanc, 10-0178/AF
calculated the maximum sentence, it was not a gross
mischaracterization to state that the maximum sentence for
possession of “what appears to be” child pornography could
be calculated by reference to the CPPA. See United States
v. Leonard, 64 M.J. 381, 384 (C.A.A.F. 2007) (holding that
the military judge did not err by referencing 18 U.S.C.
§ 2252(a)(2) to identify the maximum punishment for
wrongful and knowing receipt of child pornography in
violation of clauses 1 and 2 of Article 134, UCMJ). Beaty
had not been decided at the time of Appellant’s court-
martial proceeding.
While the rule from Griffith v. Kentucky, 479 U.S.
314, 328 (1987), see also United States v. Harcrow, 66 M.J.
154, 157 (C.A.A.F. 2008), provides the benefit of the
holding from a case decided while another case is on direct
appeal, it is at best unclear that the benefit stretches
beyond the actual holding of the case.6 See Davis v. United
States, 131 S. Ct. 2419, 2430-34 (2011) (applying the
retroactive application rule, noting that this did “not,
however, determine what ‘appropriate remedy’ (if any) the
defendant should obtain,” and declining to extend
6
In Beaty, the remedy was to set aside the sentence and
authorize a sentence rehearing based on the revised maximum
sentence, which was required by the holding in the case.
70 M.J. at 45.
14
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exclusionary rule protection to the fruit of a “search
conducted in objectively reasonable reliance” on then
existing law); United States v. Owens, No. 09-14932 (Non-
Argument Calendar), 2011 U.S. App. LEXIS 21787, at *5-*6,
2011 WL 5061634, at *2 (11th Cir. Oct. 26, 2011) (per
curiam) (same).
It likewise follows that the Griffith rule does not
extend so far as to encompass, and undo or undermine, any
and all matters that might have been decided differently if
Appellant was aware at point in time A that the law at
point in time B would be different while his case was on
direct appeal. Cf. United States v. Jacobs, 79 F. App’x
557, 560-61 (4th Cir. 2003) (per curiam) (holding that
although Apprendi v. New Jersey, 530 U.S. 466 (2000),
applied retroactively under Griffith to the issue of the
appellant’s sentence, the record did not “conclusively
reveal[]” grounds for ineffective assistance of counsel
with regard to the Apprendi issue).
Second, even if retroactivity swept as broadly as
Appellant desires, we do not agree that the right to be
properly informed of the sentence maximum is encompassed
within Article 16, UCMJ. The right to elect the forum for
trial, Article 16, UCMJ, is protected and implemented by
R.C.M. 903, which requires that the election be knowing and
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voluntary. Nothing in the MCM or UCMJ suggests any reason
for this Court to part ways with the federal courts, which
treat erroneous advice as to sentence in a contested case
as potential ineffective assistance of counsel and do not
analyze it as potential involuntary waiver of a forum
selection right. See supra p. 12-13 (citing cases); cf.
Article 36(a), UCMJ, 10 U.S.C. § 836(a) (2006) (providing
the President with the authority to prescribe procedures
“by regulations which shall . . . apply the principles of
law and the rules of evidence generally recognized in the
trial of criminal cases in the United States district
courts”).
Nor is there any textual or practical reason to do so.
While there are myriad reasons an accused may choose one
forum over another, R.C.M. 903 does not require that a
military judge inquire into any non-enumerated factors or
collateral matters that may have influenced the accused’s
election. Moreover, as the facts of this case demonstrate,
the difference between an accused’s potential maximum
punishment prior to arraignment, when forum selection is
made, and the actual maximum sentence after findings --
impacted by dismissal of a charge or specification, merger
of specifications, findings of guilty only to a lesser
included offense, or findings of not guilty -- can be
16
United States v. St. Blanc, 10-0178/AF
significant. Thus, it would create an insoluble conundrum
if failure of pretrial sentencing advice in this regard in
a contested case were assessed under any standard other
than ineffective assistance of counsel. See Herrera, 412
F.3d at 580; Martinez, 169 F.3d at 1053.
Under the terms of R.C.M. 903, Appellant made a
knowing and voluntary election of trial by military judge
alone.
D.
Although the decision to waive trial by members was
valid, we must apply our holding in Beaty to the sentence,7
see United States v. Mullins, 69 M.J. 113, 116 (C.A.A.F.
2010), and Appellant is entitled to sentence relief. Under
Beaty, 70 M.J. at 44, the military judge calculated an
incorrect maximum punishment, in reliance on the CPPA.
That error was plain and obvious. See Harcrow, 66 M.J. at
158 (applying plain error analysis in the absence of an
objection by defense counsel when the law changed while the
case was on appeal). Given the disparity between the
maximum sentence of twelve years calculated by the military
judge and the actual maximum sentence of two years and four
7
Senior Judge Cox did not participate in Beaty but agrees
that Appellant was materially prejudiced by the incorrect
calculation of the maximum sentence as required by the
Court’s decision in Beaty.
17
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months, we cannot say that this error did not substantially
influence the sentence and materially prejudice Appellant’s
substantial rights. See Article 59(a), UCMJ, 10 U.S.C.
§ 859(a) (2006). The sentence must be set aside.
III. DECISION
The decision of the United States Air Force Court of
Criminal Appeals is affirmed as to the findings, but is
reversed as to the sentence. Appellant’s sentence must be
set aside under United States v. Beaty, 70 M.J. 39(C.A.A.F. 2011). The record is returned to the Judge
Advocate General of the Air Force. A rehearing on the
sentence may be ordered.
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BAKER, Chief Judge (concurring in part and dissenting in
part):
I agree with the majority that “[u]nder the terms of R.C.M.
903, Appellant made a knowing and voluntary election of trial by
military judge alone.” United States v. St. Blanc, __ M.J. __
(17) (C.A.A.F. 2012).
However, I respectfully dissent from Section II. D of the
majority opinion as well as the result based on my dissent in
United States v. Beaty, 70 M.J. 39, 45 (C.A.A.F. 2011) (Baker,
J., dissenting). In my view, a military violation of Article
134(1)(2), Uniform Code of Military Justice (UCMJ),1 for
possession of what “appears to be minors” engaging in sexually
explicit conduct is directly analogous to the civilian offense
of possessing any visual depiction “that is, or is
indistinguishable from that of a minor engaging in sexually
explicit conduct.” 18 U.S.C. § 2256(8)(B), (11) (2006).
Therefore, the maximum punishment Appellant could face for
possession of “what appears to be child pornography” was ten
years with reference to the Child Pornography Prevention Act, 18
U.S.C. § 2252A (2006), rather than four months as a general
disorder.
1
10 U.S.C. § 934 (2006).