Title: Def Resp to the Alleged Legal Issues, 21 Feb 13

Release Date: 2014-03-20

Text: IN THE UNITED STATES ARMYFIRST JUDICIAL CIRCUITUNITED STATES DEFENSE RESPONSE TOv. THE ALLEGED LEGAL ISSUESRAISED BY THE PROPOSEDPROVIDENCE INQUIRY ANDPLEAMANNING, Bradley E., PFC U.S. Army, DATED: 21 February 2013Headquarters and Headquarters Company, U.S. Army Garrison, Joint Base Myer-Henderson Hall, Fort Myer, VA 2221] RELIEF SOUGHTI . The Defense respectfully requests that this Court deny the Govemment?s requested relief.The Defense requests oral argument.BURDEN OF PERSUASION AND BURDEN OF PROOF2. The burden of proof on any factual issue the resolution of which is necessary to decide amotion shall be by preponderance of the evidence. See Manual for Courts-Martial, UnitedStates, Rule for Courts-Martial (RCM) 905(c)(1) (2012). The burden of persuasion on anyfactual issue the resolution of which is necessary to decide a motion shall be on the Governmentas the moving party. See RCM 905(c)(2).FACTS3. PFC Manning is charged with one speci?cation of aiding the enemy, one speci?cation ofdisorders and neglects to the prejudice of good order and discipline and service discrediting,eight speci?cations of violations of 18 U.S.C. 793(e), ?ve speci?cations of violations of 18U.S.C. 641, two specifications of violations of 18 U.S.C. 1030, and ?ve speci?cations ofviolating a lawful general regulation, in violation of Article 104, I34, and 92, Uniform Code ofMilitary Justice (UCMJ).4. The Defense does not intend to produce any witnesses or evidence for this motion.APPELLATE PAGE REFERENCED:PAGE PAGESgm LEGAL AUTHORITY AND ARGUMENT5. The Court should deny the Govemment?s requested relief of precluding the Defense fromoffering PFC Manning?s statement as a document in support of his providence inquiry. TheGovemment?s objection is based upon a fundamental misunderstanding of the use of statementsduring the providence inquiry. Statements made during the providence inquiry may only beconsidered by the military judge in determining the providence of an accused?s guilty plea and insentencing in order to determine an appropriate sentence. Statements made during theprovidence inquiry may not be used during the merits phase of the trial on contested offenses.6. The case the Government primarily relies upon for its argument is US. v. Cahn, 31 M.J. 729(A.F.C.M.R. 1990). The Government?s reliance on Cahn is misplaced. Far from supporting theGovemment?s position, Cahn undercuts its entire argument.7. In Cahn, the appellant was convicted of the theft of his roommate?s automated teller machine(ATM) card despite his plea of not guilty. During the Care inquiry on related offenses of theft ofmoney by using the ATM card, the appellant explained to the judge how he came into lawfulpossession of the ATM card. Id. at 729. The appellant told the militaryjudge that when heasked for the ATM card his roommate had initially said Id. at 730. The appellant thentold the militaryjudge that despite the initial ?no? he was eventually successful in talking hisroommate into loaning him the ATM card.? Id.8. The appellant elected not to testify during the contested portion of the trial. Id. As such, theappellant did not offer his version of the events again where he claimed that he was eventuallysuccessful in convincing his roommate into letting him borrow the ATM card. Instead, theappellant relied upon the cross-examination of his roommate in order to attempt to establish thathe had authorization to possess the ATM card. Id.9. During the findings argument, the military judge stated the he would not consider thestatements made by the appellant during the Care inquiry on the contested offense? Id.; seegenerally US. v. Care, 40 CMR 247 (1969). Instead, the military judged stated that he wouldrely solely on the evidence presented by the parties during the merits on the contested offense.Id.10. On appeal, the appellant defense counsel argued that the statements made during theprovidence inquiry should have also been admissible during the merits phase on the contestedoffenses. Id. The appellate defense counsel argued ?that it would be ?an absurd distinction? toallow such statements to be used to support charges to which an accused pleads guilty, but not topermit their consideration on other charges which are being contested.? Id. In response to theappellant?s assertion that it would be ?an absurd distinction? the court in Cahn held ?on thecontrary, we find this distinction to be a critical one.? Id.1 Although the facts provided by Airman Cahn were not relevant to the the? of money offenses that he was pleadingguilty to, they were circumstances surrounding the the? offenses in that they explained how he gained access to hisroommate?s money.2 Interestingly, both the trial counsel and defense counsel had speci?cally agreed that the stipulation of fact usedduring the Care inquiry was intended for consideration on the merits of the contested offense as well.211. The above quote, ?we ?nd this distinction to be a critical one? was just the first of severalquotes that the Government chose to cherry-pick from the Cahn opinion. In doing so, theGovernment has presented a misleading account of the Cahn opinion in order to support itsrequest for this Court to limit the proffered statement by PFC Manning. To demonstrate theliberties taken by the Government, the entire relevant portion of the Cahn opinion is providedbelow:Allowing Care inquiry statements to be considered in sentencing is a far cryfrom approving the use of such statements on the merits of an offense to whichan accused has pled not guilty and, thus, has chosen to place on the governmentthe burden of producing evidence to prove his guilt. Indeed, in so arguing,appellate defense counsel would have us establish a dangerous precedent?onewhich would undoubtedly serve more often as a sword against an accusedrather than, as in this case, a shield in his favor. We ?nd no support for theproposition that an accused?s right to remain silent on a contested offense maybe abridged by allowing consideration of statements required to be made insupport of a guilty plea.Allowing such use would not only serve as a deterrent to guilty pleas whererelated offenses were to be contested, but would inhibit an accused?swillingness to speak freely in establishing a factual basis for pleas of guilty insuch situations. From the standpoint of information favorable to an accused,this practice would tempt an accused to ?garnish? his Care testimony withfavorable statements, thereby placing such statements before the court withoutbeing subject to cross-examination.For the foregoing reasons, we conclude that the militaryjudge acted properly innot considering appellant's Care inquiry statements in arriving at ?ndings on thecontested offense.Id. at 730 731 (emphasis added; citations omitted). The court in Cahn was concerned about anaccused?s statements being used during the merits stage of the trial not about an accused?sstatements being used during the providence inquiry itself or on sentencing. Speci?cally, thecourt in Cahn was concerned about 1) the chilling effect on an accused during the providenceinquiry if his statements could be used against him during the contested portion of the trial (useas a sword) and 2) the incentive of an accused to pepper his providence inquiry statements withfavorable statements for use during the merits, thereby avoiding cross-examination (use as ashield). Importantly, the court in Cahn did not say that the statements made by the appellantcould not be properly considered by the military judge during the providence inquiry itself or onsentencing to determine an appropriate sentence.12. In the instant case, the Defense is simply requesting the Court to consider the statementduring the providence inquiry and in determining an appropriate sentence. Thus, the concerns inCahn are not applicable to this case and the Govemment?s reliance upon Cahn is not persuasive.As the Court is well aware, in a guilty plea the military judge is responsible for ensuring theprovidence of an accused?s plea. US. v. Care, 40 CMR 247 (1969). An accused?s plea must beknowing, intelligent, and voluntary, and have a basis to survive appellate review. US. v.Grisham, 66 M.J. 501, 504 (A. Ct. Crim. App. 2008) (citing Santobello v. New York, 404 U.S.257, 262-63 (1971)); RCM 9l0(e). A militaryjudge ensures that an accused?s plea is knowing,intelligent, and voluntary through a Care Inquiry. Id.13. The Care inquiry consists of arraignment and the providence inquiry. During theprovidence inquiry, the military judge must include an explanation of the offenses and ensure theaccused:a) Understands that the accused waives certain rights: speci?cally the rightagainst self-incrimination; trial of facts by members; and the right of confrontation;b) Understands the elements of the offense;c) Agrees that the plea admits every element, act or omission, and relevant intent;d) Understands that the accused may be convicted on plea alone without furtherproof;e) Is advised of the maximum sentence available based on the plea alone;f) Has had the opportunity to consult with counsel;g) Is entering the plea knowingly, intelligently, and voluntarily.RCM see also Boykin V. Alabama, 395 U.S. 238 (1969). In order to establish that 1there is a factual basis for the plea, the militaryjudge is required to question the accused, underoath, about the offenses. RCMS 910(c)(5), 9l0(e). The militaryjudge must ascertain, throughthe accused?s own words, why the accused believes he is guilty. Id.14. In most guilty pleas, the military judge will have the assistance of a stipulation of fact by theparties. However, in cases where there is no pretrial agreement, there is no stipulation of fact. Insuch situations, the military judge must rely upon the accused to provide the factual basis for theplea, but also the details of the circumstances surrounding the offense. Illustrative of such asituation is US. v. Irwin, 42 M.J. 479 (C.A.A.F. 1995).15. In Irwin, the appellant entered his guilty pleas without the bene?t of a pretrial agreement.Id. at 480. During the ?providence inquiry, the appellant described in detail the how, when, why,and where he committed each of the offenses.? Id. (emphasis added). The appe11ant?s?recitation of the facts not only provided the factual basis required? under the Care inquiry, but?it also included details of the circumstances surrounding the offenses.? Id. at fn 6 (noting that?The appellant?s recollection of the events was so vivid at two places during the providenceinquiry that he spoke without interruption or prompting by the militaryjudge for three and sixpages, respectively, in the record of 16. After the providence inquiry, the government gave notice to the military judge and thedefense of its intent to play a recording of the providence inquiry to the panel members onsentencing. Id. at 480 481. The trial counsel argued that the ?appellant?s statement was, ineffect, a judicial confession; that the court members should have the facts surrounding theoffenses in order to adj udge a proper sentence; and that playing the tape would be in accordancewith United States v. Holt, 27 MJ 57 (CMA 1988).? Id. at 481.17. Over the defense?s objection, the trial court permitted the government to play portions of theprovidence inquiry for the members as proper aggravation evidence under RCM 1001(b)(4). Id.On appeal, the appellant contended that admissibility of his providence inquiry statement was inviolation of the Holt opinion and an impermissible admission of his statements since themembers were ?given access to evidence of misconduct of which he was not found guilty.? Id.18. The CMA rejected the appellant?s argument that it was error under Holt to considerstatements made by him during the providence inquiry on sentencing. Id. The CMA speci?callyheld ?[c]ontrary to appellant?s beliefs, Holt did not place limits on how much evidence isadmissible during sentencing; it only limits the kind of evidence.? Id. Thus, the Court held the?question becomes whether that portion of the providence inquiry that was presented to themembers amounted to ?aggravating circumstances directly relating to the offenses of whichthe accused? was found guilty. RCM Id. at 482. With this question in mind, theCourt held that the appellant?s responses during the providence inquiry ?did not ?range[] fara?eld? but instead, were relevant as they directly described circumstances surrounding theoffenses without venturing into unrelated matters, and there was no stipulation of fact in this caseso there was no danger of cumulative effect.? Id. (citations omitted). As such, the statementsamounted to ajudicial admission under MRB 801(d)(2).19. As in Irwin, PFC Manning should be allowed to provide the facts and circumstancessurrounding the commission of the charged offenses during his providence inquiry. When doingso, PFC Manning is permitted to ?described in detail the how, when, why, and where hecommitted each of the offenses.? Irwin, 42 M.J. at 480 (emphasis added). As long as astatement describes the ?circumstances surrounding the offenses without venturing into unrelatedmatters? the statement is properly before the Court.4 Id. at 482.20. Given that there is no stipulation of fact, the statement provided by PFC Manning will helpthe Court with an understanding of the facts and circumstances surrounding the offenses. It alsoprovides the Court with the factual basis to conduct a sufficient inquiry of PFC Manning. US. v.Bailey, 20 M.J. 703 (A.C.M.R. 1985) (holding that a militaryjudge must conduct a sufficientinquiry in order for a guilty plea to not be set aside on appeal). The facts provided by PFCManning will provide the Court with the factual basis to determine that PFC Manning?s plea isindeed knowing, intelligent and voluntary. RCM Thus, the Court can certainlyconsider PFC Manning?s statement in determining the providence of his pleas.3 The Court also stated that admissibility of the statement for sentencing purposes must satisfy the Military Rules ofEvidence. Id. at 582 (citations omitted).4 PFC Manning?s initial draft of his statement contained several pages describing in detail his struggles with notbeing able to dress like a woman during the deployment. PFC Manning discussed how this impacted him during thedeployment and how it made it dif?cult for him to control his emotions. He also discussed how he dressed like awoman while on mid-tour leave from Iraq. Speci?cally, he described how he dressed like a woman during his traintrip to and from Boston to see his boyfriend, Tyler Watkins. Although these details were important to PFCManning, because they helped describe the emotional struggles that he was enduring during the deployment, theDefense advised him to remove these from his statement as we believed that they ventured into unrelated mattersmore appropriately brought out during direct examination of witnesses. The remaining facts, however, we advisedhim to retain given that they describe circumstances surrounding the offenses that he was pleading guilty to. 21. The Government argues that PFC Manning?s statement must ?contain the sort ofuncontested facts or information helpful to focus issues, such as those found in a stipulation.?The Government?s continues its diatribe by stating the ?fonn and substance of the profferedstatement allow[s] the defense and the accused to circumvent the adversarial process outlined inthe Rules for Court?Martial? and that ?[w]here the Rules discuss the entry of evidence to therecord whether by stipulation, by testimony, or by statement they contemplate theparticipation of both parties.? Government?s Motion at p. 5-6.22. The Government cites no authority for its position. Undoubtedly this is because it has nosuch authority. When an accused pleads guilty without the benefit of a pretrial agreement, therewill be no such stipulation of fact and obviously no ?participation of both parties? in anystatement provided to the Court during the providence inquiry. If the Government contests thefacts within PFC Manning?s statement in support of his plea to the lesser included offenses, itmay either attempt to prove up the greater offenses or offer proper rebuttal evidence duringsentencing. The Government, however, is not permitted to limit PFC Manning?s statement to abald assertion of the elements of the offenses. U. S. v. Frederick, 23 M.J. 561 (A.C.M.R. 1986)(military judge?s inquiry requiring simple yes or no answers when asked whether he did thatwhich the speci?cations alleged was inadequate). Additionally, the Government?s concernsignore the practical reality that statements made during the providence inquiry are only admittedfor the purposes of the militaryjudge determining the providence of an accused?s plea and onsentencing in determining an appropriate sentence. US. v. Resch, 65 M.J. 233 (C.A.A.F. 2007)(CAAF concluded that it was error to use the providence inquiry statements in determining guiltof the contested offense).23. Assuming that PFC Manning?s pleas are providence and accepted by the Court, theprovidence inquiry statement may also be considered by the Court in order to determine anappropriate sentence. When deciding which portions of the providence inquiry statement toconsider during sentencing, the Court may clearly consider those statements that either amount to?aggravating circumstances directly relating to or resulting from the offense of which theaccused has been found guilty? or are matters in extenuation or mitigation. RCMs 1001 and l00l(c)(l)(A) and (B).24. The Government?s final argument regarding PFC Manning?s statement is also without merit.The Government argues that PFC Manning?s statement may increase the probability of creating amatter inconsistent with his plea. The Government frames its concern by stating:to allow broad commentary on unrelated issues not subject to ready rebuttalthreatens issue confusion by mixing relevant and irrelevant information onthe record making it exponentially more dif?cult to track facts to theelements at issue. The inclusion of extraneous commentary also raises thepossibility of inconsistencies between facts elicited during the inquiry andthose presented during the merits portion of the proceedings. It therebymuddies the water and provides more material for the [C]ourt to monitor.Moreover, the United States intends to move forward on the greateroffenses and, in so doing, will present evidence relating to the elements ofboth the lesser and greater offense. As such, to admit this largely irrelevantstatement as sworn evidence would make an already complicated inquiryuntenable. In short, the inclusion of extraneous information in theprovidence inquiry requires the Court and the parties to be hyper ?vigilantto ensure any inconsistencies are identi?ed and addressed.Government Motion at p. 6-7. The Govemment?s concern is based upon a misunderstanding ofwhat it means to have a matter inconsistent with factual or legal guilt. Under RCM 9l0(h)(2),?If after ?ndings but before the sentence is announced the accused makes a statement to thecourt-martial, in testimony or otherwise, or presents evidence which is inconsistent with a plea ofguilty on which a ?nding is based, the military judge shall inquire into the providence of theplea.? The key is that the inconsistent matter must be raised by the accused, not the Government.This requirement is also outlined in Article 45(a), UCMJ, an accused . . . after a plea ofguilty sets up a matter inconsistent with the plea . . . a plea of not guilty shall be entered.? Whenan accused presents either a matter inconsistent with factual or legal guilt, the military judge isrequired to explain the inconsistent matter to the accused and should not accept the plea unlessthe accused admits facts which negate the factual or legal inconsistency. See discussion to RCM910(h)(2); see also US. v. Phillippe, 63 M.J. 307 (C.A.A.F. 2006) (accused?s statementregarding his attempt to return right after 9/11 raised a matter inconsistent with pleading guilty toan almost three year AWOL).25. Far from creating an ?untenable? situation, the statement by PFC Manning provides theCourt with the facts surrounding the offenses to which PFC Manning?s is pleading guilty. If theGovernment goes forward on the greater offenses, and if they are unsuccessful in proving thegreater offenses, the Court will ?nd PFC Manning guilty in accordance with his pleas. In such asituation, the Court need only be concerned with PFC Manning raising a matter that isinconsistent with his factual or legal guilt to the lesser included offenses. Whatever facts theGovernment would present on the greater offenses would be of no importance. If, however, theGovernment is successful in proving the greater offenses, then there is no potential issue for amatter that is inconsistent with factual or legal guilt. In this situation, the Court would enter a?nding of guilt to the greater offenses, and not to the lesser included offenses pled to by PFCManning. In short, the Government spends seven pages discussing possible concerns and issueswith PFC Manning?s statement that are simply not valid concerns. As such, the Court shoulddeny the Govemment?s requested relief of altering the content of PFC Manning?s pretrialstatement or accepting PFC Manning?s statement in an open-ended providence inquiry question-and-answer colloquy that meets with the Government?s arbitrary sense of what an accused?sstatement in support of his pleas should be.26. Finally, the Government proposes an additional line of questioning ?in an abundance ofcaution? to ensure PFC Manning understands the nature and effect of his plea of guilty.Government Motion at p. 8. The Defense believes the current proposed providence inquiryensures that PFC Manning?s plea is knowing, intelligent, and voluntary. As such, the Courtshould deny the Govemment?s request for an additional line of questioning. CONCLUSION27. For foregoing reasons, the Defense respectfully requests that this Court deny theGovernment?s requested relief.Respectfully submitted,DAVID E. COOMBSCivilian Defense Counsel

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