United States v. Adams

IN THE CASE OF

UNITED STATES, Appellee

v.

Brian P. ADAMS, Specialist
U.S. Army, Appellant

No. 02-0457

Crim. App. No. 20000431

United States Court of Appeals for the Armed Forces

Argued December 10, 2003

Decided April 8, 2004

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

Counsel

For Appellant: Captain Craig A. Harbaugh (argued); Colonel
Robert D. Teetsel, Lieutenant Colonel Mark Tellitocci, and Major
Allyson G. Lambert (on brief); Lieutenant Colonel E. Allen
Chandler Jr., and Major Jeannette K. Stone.

For Appellee: Captain Michael D. Wallace (argued); Lieutenant
Colonel Margaret B. Baines, and Major Natalie A. Kolb (on
brief); Major Jennifer H. McGee.

Military Judge: D. L. Wilkins

This opinion is subject to editorial correction before final publication.
United States v. Adams, No. 02-0457/AR

Judge ERDMANN delivered the opinion of the Court.

Specialist Brian P. Adams was tried by a military judge

sitting as a general court-martial. He was charged with rape

and adultery in violation of Articles 120 and 134, Uniform Code

of Military Justice [UCMJ], 10 U.S.C. §§ 920, 934 (2000),

respectively. He entered pleas of not guilty to the adultery

charge and guilty to the lesser-included offense of attempted

rape in violation of Article 80, UCMJ, 10 U.S.C. § 880 (2000).

He was found guilty of both adultery and rape. His adjudged and

approved sentence included a bad-conduct discharge, confinement

for 14 months, total forfeitures, and reduction to the lowest

enlisted grade.

Following the trial, Adams retained a civilian attorney to

represent him in the post-trial process. Although the civilian

attorney actively represented him before the convening

authority, a brief prepared by the civilian counsel for filing

with the Army Court of Criminal Appeals was never received by

the Army Defense Appellate Division and was never filed.

Following a number of continuance requests by a series of

assigned military counsel, a “merits” pleading was filed by

military counsel with the Army court.

The Army court affirmed Adams’ conviction in a per curiam

decision and later denied an untimely motion for

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reconsideration. Adams petitioned this Court for relief and we

granted review of the following issue:

WHETHER APPELLANT’S APPELLATE DEFENSE
COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF
COUNSEL.

We find that Adams has failed to meet the prejudice

component of the ineffective assistance of counsel test set

forth in Strickland v. Washington, 466 U.S. 668 (1984), and

therefore affirm the Army Court of Criminal Appeals.

BACKGROUND

After his trial Adams retained the services of a civilian

defense counsel, Mr. Cassara, to represent him before the

convening authority. Mr. Cassara submitted matters pursuant to

Rule for Courts-Martial 1105 [R.C.M.] in which he challenged the

military judge’s ruling admitting Adams’ pretrial statement to

criminal investigators. Despite this effort, the convening

authority approved the adjudged sentence.

Adams’ record of trial was subsequently forwarded to the

Army Court of Criminal Appeals for review pursuant to Article

66(c), UCMJ, 10 U.S.C. § 866(c) (2000). Captain Maher was

initially detailed as Adams’ appellate defense counsel. Through

discussions with Adams, Captain Maher became aware that Mr.

Cassara would serve as civilian appellate defense counsel before

the Court of Criminal Appeals. See Article 70(d), UCMJ, 10

U.S.C. § 870(d) (2000). Captain Maher communicated with Mr.

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Cassara by electronic mail and received a response from Mr.

Cassara confirming that he would represent Adams before the Army

court. Mr. Cassara did not, however, file any notice of

appearance with the Court of Criminal Appeals.

Captain Maher continued to represent Adams until he left

active duty and during that time he filed three motions

requesting extensions of time in which to file a brief at the

Army court. The motions did not indicate that Adams was also

represented by civilian counsel. The relationship between the

civilian and military counsel at this point was summarized in

Adams’ appellate brief:1

Apparently Mr. Cassara was still working behind the
scenes during this timeframe. According to Mr.
Cassara, in May 2001, he researched and drafted an
appellate brief for SPC Adams. Mr. Cassara also
alleges that he personally discussed the case with
CPT Maher in June or July of 2001. Finally, Mr.
Cassara remembers either sending or attempting to
send a copy of the finished brief to CPT Maher.
Supposedly due to a “miscommunication” between
civilian and military appellate defense counsel,
Mr. Cassara believed that the brief was filed by
CPT Maher sometime in June or July of 2001. There
is no evidence in the file that it was ever
received by the [Defense Appellate Division], nor
is there any evidence that the brief was filed with
the [Army Court of Criminal Appeals]. Mr. Cassara
maintains that he experienced “computer problems”
that rendered it impossible for him to be certain
that CPT Maher received the brief that he believes
he forwarded.

1
The Government accepted the statement of facts set forth in
Adams’ brief.

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When he left active duty, Captain Maher was succeeded by

Captain Richardson as Adams’ detailed military appellate defense

counsel. Captain Richardson apparently did not communicate with

either Adams or Mr. Cassara and the extent of his representation

consisted of filing three motions for extension of time in which

to file a brief.

Captain Richardson was succeeded by Captain Carrier as

appellate defense counsel. Captain Carrier did communicate with

Adams to discuss the status of the appeal. Following that

discussion, in which there was apparently no discussion of

civilian representation, Captain Carrier submitted a “merits”

pleading on behalf of Adams to the Army court.2 Although

asserting no specific issues, that pleading contained a

footnote, pursuant to United States v. Grostefon, 12 M.J. 431

(C.M.A. 1982)3, stating:

Pursuant to U.S. v. Grostefon, 12 M.J. 431 (C.M.A.
1982) and Army Court of Criminal Appeals Rule 15.3(b)
appellant asks this Court to consider the issue raised
in the Appendix[4] as well as those matters raised to

2
A “Pro Forma” or “Merits” pleading is provided for by Internal
Rules of Practice and Procedure, United States Army Court of
Criminal Appeals, Rule 15.2. The rule provides for a pleading
to be filed “without conceding the legal or factual correctness
of the findings of guilty or the sentence . . . which does not
assign error[.]”
3
See id., Rule 15.3, providing that “Grostefon issues shall be
brought to the Court’s attention by footnote or in an Appendix
to the Brief on Behalf of Appellant.”
4
The merits pleading in the original record does not contain an
Appendix.

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the convening authority pursuant to Rule for Court[s]-
Martial 1105.

The matters raised in the R.C.M. 1105 submission to the

convening authority included a challenge to the military judge’s

ruling admitting Adams’ pretrial statement to criminal

investigators. At this point, however, Captain Carrier was not

aware that Mr. Cassara was involved in the case even though he

had communicated directly with Adams prior to filing the merits

pleading.

The Army court affirmed the trial court’s findings and

sentence in a per curiam decision. That opinion noted that the

court had considered “the issues personally specified by the

appellant.” United States v. Adams, ARMY 20000431 (A. Ct. Crim.

App. January 10, 2002). Thereafter, Adams filed a Petition for

Grant of Review that was docketed at this Court on April 10,

2002.

Following the filing of the petition with this Court,

Captain Carrier became aware of Mr. Cassara’s involvement in

Adams’ appeal and the fact that a pleading prepared by Mr.

Cassara had not been filed at the Army Court of Criminal

Appeals. Captain Carrier moved to withdraw the Petition for

Grant of Review without prejudice, arguing in the motion that

“there are matters that appellant, civilian defense counsel, and

military counsel need to address to the Army Court of Criminal

Appeals, which cannot exercise jurisdiction if the case is

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before this Court.” Captain Carrier attached to his motion a

copy of the brief that Mr. Cassara “intends to submit to the

Army Court of Criminal Appeals.” We granted the motion to

withdraw on May 16, 2002.

Adams then filed a “Motion for Leave to File Out of Time a

Request for Reconsideration” with the Army court. The “Request

for Reconsideration” attached to the motion to file raised the

issue of the admissibility of Adams’ pretrial statement. The

Army court denied the motion for leave to file out of time.

DISCUSSION

“An 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 our Court by appellate counsel appointed under Article 70,

UCMJ, 10 U.S.C. § 870 (2000).” Diaz v. The Judge Advocate

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

United States v. Palenius, 2 M.J. 86 (C.M.A. 1977)). See also

United States v. Dorman, 58 M.J. 295, 297 (C.A.A.F. 2003)

(“[I]ndividuals accused of crime shall have the assistance of

counsel for their defense through completion of their appeal. .

. . This right includes the right to the effective assistance

of counsel on appeal.”); United States v. Knight, 53 M.J. 340,

342 (C.A.A.F. 2000)(“[T]he right of a military accused to

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effective assistance of counsel after his trial is a fundamental

right.”).

Claims that appellate defense counsel have rendered

ineffective assistance are measured by the same test applicable

to such claims lodged against a trial defense counsel. United

States v. Hullum, 15 M.J. 261, 267 (C.M.A. 1983). Thus, we are

guided by the Supreme Court’s two-pronged test set forth in

Strickland v. Washington, 466 U.S. 668 (1984). As applied to

the appellate setting, this test places the burden on an

appellant to show both deficient performance by appellate

defense counsel and prejudice. An appellant meets his burden on

deficient performance when he demonstrates that his appellate

counsel’s performance was so deficient that it fell below an

objective standard of reasonableness.5 Id. at 688.

5
An appellant’s burden is heavy because counsel is presumed to
have performed in a competent, professional manner. To overcome
this presumption, an appellant must show specific defects in
counsel’s performance that were “unreasonable under prevailing
professional norms.” United States v. Anderson, 55 M.J. 198,
201 (C.A.A.F. 2001). We apply a three-part test to determine
whether an appellant has overcome the presumption of competence:
1. Are the allegations made by appellant true;
and, if they are, is there a reasonable
explanation for counsel’s actions . . . ?
2. If they are true, did the level of advocacy
“fall[] measurably below the performance . . .
[ordinarily expected] of fallible lawyers”?
3. If ineffective assistance of counsel is found
to exist, “is . . . there . . . a reasonable
probability that, absent the errors, [there would
have been a different result]?”

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The burden to show prejudice is met when the appellant

shows that appellate “counsel’s errors were so serious as to

deprive the [appellant] of a fair [appellate proceeding] . . .

whose result is reliable.” Id. at 687. See United States v.

Key, 57 M.J. 246, 249 (C.A.A.F. 2002)(prejudice is not

established where there is “no reasonable likelihood” of a

different result); see also United States v. Drewell, 55 M.J.

131, 133 (C.A.A.F. 2001); United States v. Christy, 46 M.J. 47,

50 (C.A.A.F. 1997); United States v. Curtis, 44 M.J. 106, 118-19

(C.A.A.F. 1996). We review an appellate defense counsel’s

effectiveness de novo as a question of law. See Key, 57 M.J. at

249; United States v. Sales, 56 M.J. 255, 258 (C.A.A.F. 2002).

There is, however, no particular order in which the two

components must be addressed.

[A] court need not determine whether counsel’s
performance was deficient before examining the
prejudice suffered by the defendant as a result
of the alleged deficiencies. The object of an
ineffectiveness claim is not to grade counsel’s
performance. If it is easier to dispose of an
ineffective claim on the ground of lack of
sufficient prejudice, which we expect will often
be so, that course should be followed.
Strickland, 466 U.S. at 697. See also United States v.

McConnell, 55 M.J. 479, 481 (C.A.A.F. 2001).

United States v. Polk, 32 M.J. 150, 153 (C.M.A. 1991)(citations
omitted). See also United States v. Grigoruk, 56 M.J. 304, 307
(C.A.A.F. 2002).

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Assuming without deciding therefore, that civilian defense

counsel’s failure to file a notice of appearance with the Court

of Criminal Appeals, the lack of communication among the various

appellate defense counsel and the failure to file civilian

counsel’s substantive brief before the Army court was deficient

performance, we turn to the prejudice component of the test for

ineffective assistance.6

An appellant has the right to representation before the

Army Court of Criminal Appeals by both detailed military and

civilian counsel. See Article 70(c)-(d). In such cases, the

civilian counsel normally exercises the responsibilities of lead

counsel for the defense. See United States v. May, 47 M.J. 478,

481 (C.A.A.F. 1998)(citing United States v. Tavolilla, 17 C.M.A.

395, 38 C.M.R. 193 (1968)). In analyzing Adams’ claim of

ineffective appellate representation, we do not look at the

shortcomings of any single counsel and speculate about the

impact of individual errors. Rather, we measure the impact upon

the proceedings “by the combined efforts of the defense team as

a whole.” McConnell, 55 M.J. at 481 (quoting United States v.

Boone, 42 M.J. 308, 313 (C.A.A.F. 1995)).

6
The Government conceded in its Final Brief “that civilian
appellate defense counsel provided ineffective assistance of
counsel in that he failed to ensure that his brief was filed in
a timely fashion.”

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Citing United States v. May, 47 M.J. 478 (C.A.A.F. 1998),

Adams argues that prejudice should be assumed in this case

because he was effectively deprived of counsel at the appellate

level. In May, the appellant had both military and civilian

counsel for his Article 66(c) appeal. Despite the fact that the

Court of Criminal Appeals knew May was represented, no brief of

any kind was filed and that court affirmed the findings and

sentence without the benefit of briefs. Addressing those facts,

we said, “Where, as in this case, appellate counsel do nothing,

an appellant has been effectively deprived of counsel, and

prejudice is presumed.” May, 47 M.J. at 481.

Adams, however, was not wholly unrepresented before the

Court of Criminal Appeals. At all times he had detailed

military appellate defense counsel who undertook various actions

in the case. The initial military counsel communicated with Mr.

Cassara, ascertained that Mr. Cassara would represent Adams

before the Army court and thereafter filed several motions for

continuance. The next military counsel did not contact Adams or

Mr. Cassara, but did file three motions for continuance.

Captain Carrier, the last military defense attorney to represent

him before the Army court, communicated with Adams, “carefully

examined the record of trial,” filed a proper form of pleading

at the Army court, and drew the Army court’s attention to Adams’

personal assertions in a “Grostefon” footnote. We find that

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Adams was not unrepresented before the Court of Criminal Appeals

and is therefore not entitled to the presumption of prejudice

that would follow when counsel is wholly absent. See id.

(citing Penson v. Ohio, 488 U.S. 75, 88 (1988)).

Absent the presumption of prejudice, this record does not

support a conclusion that Adams was prejudiced by the absence of

Mr. Cassara’s brief at the court below. The single issue raised

by Mr. Cassara in the “missing” brief and in the brief that was

later presented to the Army court as part of the motion for

reconsideration concerned the admissibility of Adams’ pretrial

statement to criminal investigators. At trial, Adams contended

that his statement was coerced and involuntary with respect to

any admissions concerning penetration. He asserted those

particular admissions were inserted into the final statement by

the investigators and that he was coerced into adopting them.

Adams did not contest the voluntariness of his pretrial

statement in any other respect.

After the issue was fully litigated on the record, the

military judge found, by a preponderance of the evidence, that

Adams’ pretrial statements were voluntary. Adams subsequently

entered a plea of guilty to the lesser-included offense of

attempted rape and acknowledged that he understood he was

waiving any objection to his pretrial statement with respect to

that lesser-included offense. It is in this context that the

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record was presented to the Court of Criminal Appeals for review

under Article 66(c), and it is in this context that we have

reviewed whether Adams was prejudiced by the absence of the

brief prepared by civilian counsel.

While we neither condone the lack of communication between

appellate counsel nor derogate the value of a researched brief

as an aid to an appellate court, we find that the result would

have been no different had Mr. Cassara’s brief been properly

filed and considered by the Army court. See McConnell, 55 M.J.

at 482 (finding no prejudice where the appellant failed to show

a “reasonable probability” that a motion not filed would have

been meritorious). Several factors lead us to that conclusion.

First, we note that a brief by Mr. Cassara appears in the

record both as an attachment to Appellant’s motion to withdraw

his petition in this Court and as an attachment to his

subsequent motion for reconsideration in the Court of Criminal

Appeals. The brief raised a single issue of law regarding the

admissibility of Appellant’s pretrial statement, and did not

address the unique responsibilities of the Court of Criminal

Appeals under Article 66(c), such as determination of questions

of fact or sentence appropriateness. Our Court has discretion

to resolve such issues of law at our level or to remand a case

for further proceedings at the Court of Criminal Appeals. In

the present case, the voluntariness of the pretrial statement

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was fully litigated and comprised a substantial portion of the

record of trial. The brief does not add significant arguments

to the matters advanced at trial. Accordingly, we need not

return the case to the Court of Criminal Appeals for further

consideration of whether counsel’s performance was deficient

because we conclude that any alleged deficiency by appellate

counsel did not deprive Adams of a fair appellate review at the

Court of Criminal Appeals. See, e.g., McConnell, 55 M.J. at

481.

Second, we note that a Court of Criminal Appeals is charged

by the UCMJ with the responsibility of reviewing the “entire

record” and approving “only such findings of guilty and the

sentence or such part or amount of the sentence, as it finds

correct in law and fact.” Article 66(c). The Court of Criminal

Appeals was required to independently review the record of

trial, including the extensive litigation in the record

regarding Appellant’s pretrial statement. We do not minimize

the role of effective advocacy during Article 66(c) review.

Courts of Criminal Appeals, however, are statutorily charged

with reviewing the entire record for law and fact, and there is

no indication they failed to perform this duty here in reviewing

a legal issue that was fully litigated on the record at trial.

See United States v. Washington, 57 M.J. 394, 399-400 (C.A.A.F.

2002).

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Third, Adams was represented before the Court of Criminal

Appeals at all times. Captains Maher, Richardson and Carrier

provided uninterrupted representation. Although Captain Carrier

was not informed by Appellant or the other counsel of Mr.

Cassara’s involvement, any deficiency in that regard did not

prejudice Appellant, as noted above. With respect to the

actions taken by Captain Carrier, we observe that he

communicated with his client, thoroughly reviewed the record,

filed a pleading on behalf of his client, and complied with

Adams’ direction to make a personal assertion pursuant to

Grostefon.

Fourth, the merits brief specifically directed the Army

court’s attention to Adams’ post-trial submission to the

convening authority. That submission was prepared by Mr.

Cassara and it specifically challenged the voluntariness of the

pretrial statements, stating that the “method by which the

alleged confession was garnered” was the “most disturbing”

aspect of the case. The “Grostefon” footnote and the Army

court’s acknowledgement that it considered “the issues

personally specified by the appellant,” demonstrate that the

Army court did in fact review the voluntariness of the pretrial

statements.

We do not condone the poor communications and other

circumstances that caused the brief by Mr. Cassara to be lost or

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otherwise misplaced. Under the circumstances presented in this

case, any deficiency in counsel’s performance did not prejudice

Adams’ right to review by the Court of Criminal Appeals under

Article 66(c). We are also confident that had the admissibility

of Adams’ pretrial statement been presented in the brief

prepared by Mr. Cassara, the conclusion of the Army Court of

Criminal Appeals would have been no different. We find that

Adams has not sustained his burden of demonstrating that that

review was unreliable or unfair and therefore prejudicial.

DECISION

The decision of the United States Army Court of Criminal

Appeals is affirmed.

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