United States v. Bolkan

UNITED STATES, Appellee

v.

Joshua L. BOLKAN, Airman First Class
U. S. Air Force, Appellant

No. 00-0673

Crim. App. No. 33508

United States Court of Appeals for the Armed Forces

Argued March 29, 2001

Decided September 20, 2001

CRAWFORD, C.J., delivered the judgment of the Court, in
which GIERKE, J., joined. BAKER, J., filed an opinion
concurring in the result. SULLIVAN and EFFRON, JJ., each filed
a dissenting opinion.

Counsel

For Appellant: Captain Patrick J. Dolan (argued); Colonel James
R. Wise and Lieutenant Colonel Timothy W. Murphy (on brief).

For Appellee: Major Martin J. Hindel (argued); Colonel Anthony
P. Dattilo, Major Lance B. Sigmon, and Major Bryan T. Wheeler
(on brief).

Military Judge: William M. Burd

THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Bolkan, No. 00-0673/AF

Chief Judge CRAWFORD delivered the judgment of the Court.

Contrary to his pleas, appellant was convicted by officer

members of the robbery of JS, in violation of Article 122,

Uniform Code of Military Justice (UCMJ), 10 USC § 922. The

convening authority approved the sentence of a bad-conduct

discharge. The Court of Criminal Appeals affirmed the findings

and sentence in an unpublished opinion. We granted review of

the following issue:

WHETHER APPELLANT’S SENTENCE MUST BE SET ASIDE
BECAUSE THERE IS SOME EVIDENCE IN THE RECORD
WHICH FAIRLY INDICATES THAT APPELLANT DESIRED
TO BE RETAINED IN THE AIR FORCE DESPITE HIS
CONVICTION AND DEFENSE COUNSEL IMPLIED THAT A
PUNITIVE DISCHARGE WAS AN APPROPRIATE PUNISHMENT.

We hold that if there was error, it was harmless.

FACTS

Caught in a sex scheme in which appellant was taped by JS

performing sexual acts, he and his friend returned to the house

to recover the videotapes by force. Appellant and his friend,

Airman Miller, were students at the Defense Language Institute

at the Presidio of Monterey, California. In January 1998, they

went to San Francisco to attend a “rave” party. At the party,

the victim, the “owner-producer” of Thrasher Productions, a

purported adult film enterprise, approached them. When the

victim gave them his business card, they expressed their

concerns because they were active duty Air Force servicemembers.

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Since the party would not begin for a few hours, they went with

the victim to his apartment, where they completed a

questionnaire, including more than 70 questions about their

sexual preferences.

After completing the questionnaire, both indicated they

were interested in “this kind of work.” They then left the

victim’s house to go to the party. However, at 4:00 a.m., they

called the victim and asked about spending the night. He

agreed, and they returned to his apartment. The next morning,

the two left but were invited back for an interview and screen

test. The interview again consisted of several questions

concerning their sexual preferences, and whether they could

perform certain sexual acts while being filmed. They agreed but

asked about compensation. He said there was none. Before

leaving, they told the victim they would rethink the offer. The

next week, they called back and agreed to the videotape

interview and filming.

After completing the second interview concerning more

sexual preference questions, appellant masturbated before the

camera. The victim then masturbated appellant and orally

copulated him. After the interview and screen test, appellant

told the victim that he was comfortable and was “interested ...

in this type of business.”

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Sometime the next week, Airman Miller called the victim to

go through the interview and filming process. In early

February, he and appellant returned to the victim’s apartment.

Airman Miller asked to view appellant’s interview tape.

However, after viewing the tape for several minutes, Airman

Miller grabbed the victim’s throat, held him in a choke hold,

and put a serrated eight-inch knife to his neck. Airman Miller

told the victim they had a “change of heart.” They told the

victim not to yell or they would “knock [his] lights out.”

Additionally, they tried to tape his legs but he resisted.

Airman Miller told the victim that if he did not cooperate, some

Navy seals would return and finish where they left off.

Appellant seconded Airman Miller’s statement. While Airman

Miller held the victim at knifepoint, appellant retrieved the

videotape and interview logs. Before they left, they warned the

victim not to disclose their actions to anybody.

Appellant’s testimony varied from the victim’s. He

admitted that they went to the victim’s house to retrieve the

tapes and interview logs, but stated that when the knife was

pulled out by Airman Miller, they were laughing about it. When

they left with the tapes, they called the victim a “silly

faggot.” However, appellant admitted he and Airman Miller were

interested in the adult film business and would be happy to be

filmed for 50 dollars for performing various sexual acts. The

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court members rejected the contention that the knife was not

used for the robbery and that there was an amicable return of

the tapes to Airman Miller and appellant, possibly because

appellant and Airman Miller could have called and had an

amicable return of the tapes, but they did not.

On sentencing, the prosecutor argued that the members

should look at the planning which preceded the robbery, the

impact on the victim, and the fact that appellant lied to them.

He emphasized that even after carrying out their plan to a tee,

appellant and Airman Miller took the remainder of the day to

sightsee in San Francisco, “completely unaffected by what they

had done.” Looking at these factors, the prosecutor recognized

the maximum punishment was a dishonorable discharge, 10 years’

confinement, total forfeitures, and reduction to the lowest

enlisted grade. Even so, he recommended a bad-conduct

discharge, 12 months’ confinement, total forfeitures, and

reduction to the lowest enlisted grade.

Appellant, on the other hand, made an unsworn statement

that he wished to remain in the Air Force. In addition, and in

contrast to the prosecutor’s argument, defense counsel made a

lengthy argument. During the argument, defense counsel

strenuously argued against confinement and a punitive discharge.

She said:

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But do not give him a punitive discharge. If his
conduct is such that you want to brand him for the
rest of his life with a punitive discharge, the
judge will instruct you that a punitive discharge
leaves an inirradicable [sic] stigma on a person
such as Airman Bolkan.

The crime of which he’s been convicted of,
society may one day forgive him and may one day
forget it. He’s eighteen. He’s young. He’s
naive. But if you give him a punitive discharge,
that’s going to follow him around for the rest of
his life. When he’s nineteen, twenty-nine, fifty-
nine, seventy-nine. That is not something society
is ever going to forgive or forget.

Countering the assistant trial counsel’s argument, appellant’s

defense counsel made the following recommendation:

The defense would submit that you should give him
hard labor without confinement, reduce him to E-1
and restrict him to base. And give him the
reprimand. This will stay in his file permanently
and every commander that he has will see that in
his file.

It was only then that appellant’s counsel made her statement

regarding a possible choice between confinement and a punitive

discharge. Closing, she said:

If you must choose between confinement and
a bad-conduct discharge, give him the punitive
discharge. He might not ever recover from it
and it will follow him around the rest of his
life, but he will be given a chance to go out
in society and use his skills and his intelligence.

The Court of Criminal Appeals noted that “there is evidence

of both appellant’s express desire to remain on active duty and

his desire not to be confined.” Unpub. op. at 5. The Court

concluded that “[t]aking the argument as a whole,” defense

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counsel did not ask for a discharge in lieu of confinement.

“His request for discharge in lieu of confinement merely asked

for the one that would be easier for his client to endure.

Under these circumstances, we find no error occurred.” Id.

The defense asserts that trial defense counsel

inappropriately conceded a punitive discharge as being

appropriate, and that when the judge heard such a concession, he

should have made an inquiry. Contrariwise, the Government

argues that defense counsel made a vigorous and lengthy argument

to keep appellant in the service, and the two sentences quoted

above are, in effect, taken out of context. According to the

Government, the argument in this case did not constitute a

concession of a punitive discharge, but rather, “[i]n light of

the prosecution’s vigorous call for such a heavy sentence, trial

defense counsel argued for the lowest possible sentence which

had some reasonable probability of acceptance.” Answer to Final

Brief at 8.

DISCUSSION

Military accuseds have a constitutional and codal right to

the effective assistance of counsel at trial. U.S. Const.

Amend. VI; Art. 27, UCMJ, 10 USC § 827; see United States v.

MacCulloch, 40 MJ 236 (CMA 1994). The right to counsel is

probably the paramount right in ensuring that the adversarial

system functions properly. The Air Force, and all the armed

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forces, ensure counsels’ independence with trial defense

organizations totally separate from the command and staff judge

advocates’ offices. Cf. United States v. Norfleet, 53 MJ 266

(2000).

Defense counsel are ethically charged with diligently

representing their accused at trial. Air Force Rule of

Professional Conduct 1.3 (4 February 1998). This requires a

wide range of professional decisions, including what evidence to

introduce and what arguments to make. Air Force Standard for

Criminal Justice 4-5.2(b) (8 November 1999). However, the

accused has control of the plea, pretrial agreement, questions

as to forum, right to testify, and whether to appeal. Id.; see

United States v. Teague, 953 F.2d 1525 (11th Cir. 1992).

We have faced the granted issue numerous times in the past.

See, e.g., United States v. Pineda, 54 MJ 298 (2001); United

States v. Lee, 52 MJ 51 (1999); United States v. Dresen, 40 MJ

462 (CMA 1994); United States v. Lyons, 36 MJ 425 (CMA 1993);

United States v. Robinson, 25 MJ 43 (CMA 1987); United States v.

Holcomb, 20 USCMA 309, 43 CMR 149 (1971); United States v.

Weatherford, 19 USCMA 424, 42 CMR 26 (1970); United States v.

Mitchell, 16 USCMA 302, 36 CMR 458 (1966). These cases clearly

instruct that when an accused asks the sentencing authority to

be allowed to remain on active duty, defense counsel errs by

conceding the propriety of a punitive discharge. This is

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because “[d]efense counsel is an advocate for the accused, not

an amicus to the court.” United States v. Volmar, 15 MJ 339,

340 (CMA 1983), citing Ellis v. United States, 356 U.S. 674

(1958). However, when advocacy falls short of that required to

render effective assistance of counsel, we have tested for

prejudice. See Strickland v. Washington, 466 U.S. 668, 691

(1984).

Appellant has not directly attacked the adequacy of his

representation, “no[r] asserted ... that his defense counsel

failed to discuss” trial tactics for sentencing with him. See

Lee, supra at 52. However, we will assume that there was a

concession, and that the judge erred in not making an inquiry

into whether defense counsel’s “better to discharge than

confine” argument reflected appellant’s desire. We hold that

any error was harmless.

In every case, we ask counsel to determine the odds of what

might happen as to the findings or sentence and to structure

their arguments based on these probabilities. United States v.

Fluellen, 40 MJ 96, 98 (CMA 1994). Appellant’s counsel made a

strategic decision at the end of her argument and recognized

that if the members “must choose between confinement and a bad-

conduct discharge, [they should] give him the punitive

discharge.” Appellant faced a heavy maximum punishment,

including a dishonorable discharge, 10 years’ confinement,

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reduction to the lowest enlisted grade, and total forfeitures.

Para. 47e(2), Part IV, Manual for Courts-Martial, United States

(1998 ed.).

Additionally, the assistant trial counsel recommended a

sentence to include a bad-conduct discharge, 12 months’

confinement, total forfeitures, and reduction to the lowest

enlisted grade. In light of the prosecution’s argument, trial

defense counsel was realistic in her approach by “accept[ing]

... the force of adverse facts.” Mitchell, supra at 304, 36 CMR

at 460.

This case is similar to Volmar, where we recognized that

there may be occasions where “there is really no alternative of

retention in the service.” 15 MJ at 343. In such

circumstances, a tactical concession by trial defense counsel,

in support of a client’s rational choice (avoiding confinement),

often communicated in the privacy of defense counsel’s office

before trial commences, is good courtroom advocacy. Here,

appellant portrayed himself as a homosexual for commercial

purposes and then, realizing the filming was based on the

victim’s sexual predilections, robbed the victim to obtain the

video tape. Defense counsel knew that the members would very

likely ask themselves, is this the type of individual we want to

remain in the service? She would also know that the

probabilities were very high that the answer would be “no.”

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Thus, we conclude that any error based on this apparent

concession and the failure of the judge to make an appropriate

inquiry was harmless.

The decision of the United States Air Force Court of

Criminal Appeals is affirmed.

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BAKER, Judge (concurring in the result):

During sentencing, the assistant defense counsel (ADC)

argued against both confinement and a discharge. “Confinement,

in this case, is not appropriate,” the ADC argued. “The

prosecution hasn’t provided you with any reasonable

justification for confinement and that’s because there isn’t

any.” The ADC also argued against a discharge, making it clear

that the views expressed reflected appellant’s explicit desire

to remain in the Air Force. She said:

The Air Force can keep him working. They trained him as a
linguist and they can keep him on the job and have him be a
productive member of the Air Force. . . . He enjoys being
a linguist; its challenging for him and he would like for
you to give him the opportunity to get back to work . . . .
You can reduce him to E-1. Take the rank . . . take away
some of his pay. But do not give him a punitive discharge
. . . . He’s eighteen. He’s young. He’s naïve. But if
you give him a punitive discharge, that’s going to follow
him around for the rest of his life.

The defense also called appellant’s uncle. The uncle

testified that confinement “would be the worst thing for him.”

When the ADC asked the uncle about a punitive discharge, the

military judge sustained trial counsel’s objection to the

question. Having argued against both confinement and a

discharge, the ADC nonetheless closed her statement, saying:

“If you must choose between confinement and a bad-conduct

discharge, give him the punitive discharge.” Defense counsel

offered nothing to suggest this reflected appellant’s position
United States v. Bolkan, No. 00-0673
or priorities. Although a close call, in this factual context,

the ADC’s statement amounted to a concession where the appellant

was squarely exposed to both a punitive discharge and 10 years’

confinement for a violent crime. The ADC let the members off

her sentencing argument hook. Accepting that they might

disregard her argument, she steered members to a punitive

discharge by arguing a preference against confinement.

It is error for defense counsel to concede the

appropriateness of a bad-conduct discharge in sentencing

argument without an adequate record that appellant agreed with

this argument. United States v. Pineda, 54 MJ 298, 299, 301

(2001). In United States v. Volmar, 15 MJ 339 (CMA 1983), this

Court recognized that there may be good tactical reasons

representing the best advocacy on behalf of the accused to

concede a bad-conduct discharge, where “there really was no

alternative of retention in the service.” Id. at 343. However,

the present case is distinguishable from Volmar because there is

“some evidence in the record which fairly indicates that the

accused desire[d] to be retained in the service despite his

conviction.” Id. at 341.

Here, the evidence is clear and unequivocal. Appellant’s

counsel stated: “He enjoys being a linguist. . . and he would

like for you to give him the opportunity to get back to work. .

. . [D]o not give him a punitive discharge.” Thus, in the

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absence of “an adequate record of appellant’s desire that a

punitive discharge be actually imposed,” it is error for defense

counsel to concede a punitive discharge, regardless of tactical

motive. Pineda, 54 MJ at 301. As important, in this context,

the military judge erred by not inquiring into the apparent

contradiction between a sentencing statement that presents the

client’s desire to avoid confinement and discharge, and yet

invites the members to choose one over the other in closing.

See United States v. Lyons, 36 MJ 425, 427 (CMA 1993).

A realistic assessment of possible outcomes is good

lawyering. However, a fundamental representational choice, such

as a decision whether to seek to stay in the service or

passively accept a punitive discharge, is for the client to

make. As a result, case law dictates that judges test an

apparent ambiguity between counsel’s argument and the accused’s

desires. Military judges should do so for appearance reasons as

well. Defense counsel may be perceived by some members of the

public as wearing the same uniform as the prosecution--no matter

how zealously and effectively they pursue their distinct and

independent mission.

Nonetheless, "[a] finding or sentence of court-martial may

not be held incorrect on the ground of an error of law unless

the error materially prejudices the substantial rights of the

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accused." Art. 59(a), UCMJ, 10 USC § 859(a). Case law further

informs the statutory test for harmless error:

[I]f one cannot say, with fair assurance, after pondering
all that happened without stripping the erroneous action
from the whole, that the judgment was not substantially
swayed by the error, it is impossible to conclude that
substantial rights were not affected. The inquiry cannot
be merely whether there was enough to support the result,
apart from the phase affected by the error. It is rather,
even so, whether the error itself had substantial
influence. If so, or if one is left in grave doubt, the
conviction cannot stand.

United States v. Pollard, 38 MJ 41, 52 (CMA 1993), quoting

Kotteakos v. United States, 328 U.S. 750, 765 (1946).

In Pineda, this Court put a further gloss on the test for

harmless error when assessing counsel concession on discharge:

“[W]e assessed the impact of that error on the approved sentence

to determine whether sufficient prejudice existed for a finding

of ineffective assistance of counsel under the second prong of

the test in Strickland v. Washington[.]” 54 MJ at 301. Thus,

“where the facts of a given case compel a conclusion that a bad-

conduct discharge was reasonably likely, we do not normally

order a new sentence hearing.” Id.

Appellant faced a maximum punishment including a

dishonorable discharge, 10 years’ confinement, reduction to the

lowest enlisted grade, and total forfeitures. Para. 47e(2),

Part IV, Manual for Courts-Martial, United States (1998 ed.).

The Government recommended a sentence of a bad-conduct

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discharge, 12 months confinement, reduction to the lowest

enlisted grade, and total forfeitures. As is apparent, the

Government’s recommendation was substantially below the maximum

confinement exposure. The panel awarded appellant no

confinement. This suggests that both the panel and the

Government weighed factors in mitigation when considering

appellant’s sentence. However, it does not necessarily follow

that judgments about confinement parallel judgments about

punitive separation. A bad-conduct discharge addresses a

distinct facet of punishment, namely whether an accused should

be separated from the service under conditions of dishonor,

whether or not he or she is confined.

In this case, the record reflects a premeditated crime of

robbery, involving the violent employment of a knife in a manner

that might well have resulted in death or serious injury.

Appellant’s record of service includes two letters of reprimand.

Appellant may have been duped, and he may be naïve, but there is

no question that he placed himself in a position of trouble on

three separate occasions, including one occasion involving

pornographic filming.

Nor does the disposition of Airman Miller’s case change

this analysis. Appellant, and not Miller, was the central

protagonist in this crime. It was appellant, not Miller, who

engaged in pornographic filming. Miller’s record of service is

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not at issue and not part of the record. Therefore, the

disposition of Miller’s case cannot meaningfully serve as a

point of reference for appellant’s case in the absence of a

claim alleging a violation of the rule in United States v.

Lacy, 50 MJ 286 (1999).

Based on these facts, a bad-conduct discharge was

reasonably likely. Moreover, a reasonable person would not be

left in doubt, let alone grave doubt, that counsel’s closing

statement would have substantially swayed appellant’s panel into

awarding a bad-conduct discharge.

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SULLIVAN, Judge (dissenting):

I agree with Judge Effron and Judge Baker that error occurred

in this case when the military judge failed to inquire whether

appellant approved defense counsel’s argument for a punitive

discharge. Accordingly, I dissent from the lead opinion’s

suggestion that United States v. Pineda, 54 MJ 298 (2001), may

not have been violated in this case.

Turning to the question of harmlessness, again I must

disagree with the lead opinion. United States v. Volmar, 15 MJ

339 (CMA 1983), technically is a no-error case, not a

harmless-error case. I also disagree with Judge Baker’s separate

opinion on harmless error, in particular his assertion that the

results of Airman Miller’s case are not relevant on this

question.

The inquiry for prejudice under United States v. Pineda,

supra at 301, is whether the facts of a given case compel a

conclusion that a bad-conduct discharge was reasonably likely.

Unlike Pineda, this was a trial before members, and appellant did

not implicitly concede that a punitive discharge was reasonably

certain. Moreover, his youth, the brevity of his military

career, and the bizarre circumstances of his case suggest that a
United States v. Bolkan, No. 00-0673/AF

forceful plea for clemency might have been successful. See

United States v. Dresen, 40 MJ 462, 465 (CMA 1994).

Finally, as indicated in the lead opinion, appellant’s

co-accused was the principal actor in the armed robbery, i.e, the

man who held the knife to the throat of the victim. The

undisputed fact that he did not receive a punitive discharge for

the same or similar offenses as appellant seriously undermines a

conclusion that a punitive discharge was reasonably likely in

appellant’s case. Id. (See appellant’s clemency submission

dated November 23, 1998.)

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EFFRON, Judge (dissenting):

If the issue in this case asked whether the Court of

Criminal Appeals could approve appellant’s sentence under the

sentence appropriateness standards of Article 66, UCMJ, 10 USC

§ 866, I would affirm. The issue, however, is whether defense

counsel’s improper sentencing argument constituted prejudicial

error under Article 59(a), UCMJ, 10 USC § 859(a). I

respectfully disagree with the lead opinion’s conclusion that

any error in the defense counsel’s closing argument was

harmless.

The lead opinion asserts that “[i]n every case, we ask

counsel to determine the odds of what might happen as to the

findings or sentence and to structure their arguments based on

these probabilities,” __ MJ at (9), citing United States v.

Fluellen, 40 MJ 96, 98 (CMA 1994). Our case law does not

obligate defense counsel to make such a calculation. We have

held, however, that the decision to concede the appropriateness

of a discharge is a matter reserved to the accused, not defense

counsel. If counsel concedes the appropriateness of a punitive

discharge, “even as a tactical step to accomplish mitigation of

other elements of a possible sentence -- counsel must make a

record that such advocacy is pursuant to the accused’s wishes.”
United States v. Bolkan, No. 00-0673/AF

United States v. Pineda, 54 MJ 298, 301 (2001) (emphasis

omitted).

In this case, there is a clear record that appellant

desired to remain in service, as reflected in counsel’s request

for the military judge to instruct the member’s on that point,

as well as the testimony from appellant’s uncle. The record

does not demonstrate, however, that appellant consented to

counsel’s argument -- that if the members “must choose between

confinement and a bad-conduct discharge, give him the punitive

discharge.” The court below asserted that counsel’s comments

“were merely a realistic recognition that either confinement or

discharge, perhaps both, were likely punishments for his

client’s offense ... [and that the] request for discharge in

lieu of confinement merely asked for the one that would be

easier for his client to endure.” Unpub. op. at 5. The

conclusion that the denial of benefits and permanent stain of a

punitive discharge would be “easier to endure” than confinement

represents the views of the court below, not appellant.

The record does not indicate appellant informed his counsel

that he would more easily endure a punitive discharge. The

record contains nothing from trial defense counsel that would

support the lead opinion’s speculation that appellant made any

such communication “in the privacy of defense counsel’s office”

prior to trial. ___ MJ at (10).

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The lead opinion concludes that any error was harmless,

relying upon the nature of the offense and the fact that

appellant faced a maximum of a dishonorable discharge and 10

years' confinement. As the opinion acknowledges, however, the

prosecution only recommended 12 months' confinement, and the

sentence imposed by the members did not include any confinement.

The members’ decision to adjudge no confinement may well

reflect a number of favorable sentencing factors, including

appellant’s young age – 18 years at the time of the offense -

the victim’s unsavory business, the victim’s prior conviction

for child pornography, and the fact that the knife was held by

appellant’s co-actor, Airman Miller. It is also noteworthy that

Airman Miller’s sentence did not include a discharge, and

included only a brief 45-day period of confinement and partial

forfeitures.

The issue in this case is not whether appellant’s sentence

was appropriate, but whether there was a reasonable possibility

that appellant might have received a different sentence, such as

the relatively brief period of confinement without a discharge

adjudged in Airman Miller’s case. Given the nature of the

sentencing information, the absence of confinement imposed upon

appellant, and the relatively light sentence imposed on his co-

actor, we cannot say with fair assurance that appellant would

have received a punitive discharge had his counsel not urged the

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members to choose a discharge over confinement. The military

judge erred by failing to ensure that the counsel’s argument

represented appellant’s wishes, and the error was prejudicial.

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