Army Court of Criminal Appeals--Soler

United States v. Soler. Appellant pled guilty to six instances of obstructing justice condensed into one specification. As part of a PTA, the government dismissed two sexual assaults, one indecent recording (his extramarital sex with a junior Soldier), and a general order violation. Appellant was sentenced to six months, RiR, and a BCD. The CA only approved an RiR to E2, per the PTA.

On appeal the Appellant claimed IAC for failing to "present evidence pertaining to his ten years of service in the Army, moving for admission of his enlisted record brief (ERB), or presenting evidence of appellant's combat-related [X] diagnosis." 

After reviewing the case and affidavits provided by defense counsel, the court finds no error or prejudice.

​The defense had prepared a sentencing case by interviewing witnesses, getting documents, and getting the Appellant's medical records. But the decision was made to give only an unsworn statement. The TC submitted no documents in sentencing and the defense submitted some personal photographs.

Interestingly, the MJ asked the Government if they would provide the ERB, an invitation the TC declined. Slip op. at 2.

Query, could the MJ have ordered the TC to produce the ERB as a court exhibit?

Can the military judge order the Government to produce the whole official service record, subject to objections from defense?

If then introduced, could the TC try to offer aggravation evidence based solely as rebuttal to the ERB?

Affidavits from appellant's military and civilian defense counsel outlined their efforts in preparing both character and mitigation evidence for the pre-sentencing hearing and the tactical reasons for ultimately editing the presentation of that evidence. Appellant's military defense counsel submitted an affidavit stating she interviewed several family members, friends, supervisors, and colleagues of appellant and prepared those witnesses to testify at appellant's pre­sentencing hearing. Concerned that good soldier evidence would allow the government to present evidence of appellant's prior misconduct of an unfounded allegation of and obstruction of justice, civilian defense counsel requested this testimony be reduced to written statements.

As trial approached, the civilian defense counsel made a tactical decision not to admit any documentary evidence during the pre-sentencing hearing in an effort to prevent the government from potentially submitting rebuttal evidence of appellant's prior misconduct.' According to the military defense counsel's affidavit, she did not agree with the civilian defense counsel's approach to severely limiting the presentation of written character statements. However, the military defense counsel's affidavit states that appellant ultimately agreed with the advice of his civilian defense counsel to not admit any character letters during the pre-sentencing hearing. The civilian defense counsel's affidavit stated that, on at least three occasions, he discussed his strategic decision to limit pre-sentencing evidence of appellant's good military service in order to avoid opening the door to the government admitting information of appellant's prior misconduct and appellant agreed with that approach. Rather, the civilian defense counsel determined that it would be best to wait and submit the written character statements in appellant's post-trial submission to the convening authority.

What was the concern?

In 2013, appellant was investigated for the offense of [X]. While the [X] was unfounded, there was evidence in the investigation that appellant made efforts to obstruct justice during the investigation by asking a witness not to talk to the military. Appellant's witness production request included ten witnesses, both military and civilian, that appellant asserted would testify as to his rehabilitative potential during the pre-sentencing hearing. Given that appellant plead guilty to obstruction of justice approximately five years after his prior attempt to do so was relevant information as to both appellant's good military service and rehabilitative potential. The government could have utilized appellant's prior efforts to obstruct justice by: (1) cross-examining his character witnesses about this prior misconduct in order to test the strength of their opinion as to his rehabilitative potential, or (2) presented the information as rebuttal evidence concerning appellant's rehabilitative potential or good military service. See Scott, 81 M.J. at 86 (C.A.A.F. 2021) ("[R]ecogniz[ing] that, in some cases, trial defense counsel may not wish to call witnesses on sentencing who, through their testimony, may open the door for the government to present additional adverse evidence."). 

So, in this case,

[The] decision to constrain the presentation of character evidence reasonable under the circumstances. See United States v. Datavs, 71 M.J. 424 (C.A.A.F. 2012) (Defense counsel do not perform deficiently when they make a strategic decision to accept a risk or forego a potential benefit, where it is objectively reasonable to do so.").

The court did note that even if there was IAC it would not have been prejudicial.

Despite appellant's assertions to the contrary, the conduct to which appellant pied guilty was significant in not only attempting to impede a law enforcement investigation but leveraging his rank and position of authority to influence subordinates to commit a criminal offense for his benefit. Even if defense counsel presented the few pages of medical evidence of appellant's - diagnosis in 2017 and appellant's ERB, there is no "reasonable probability" that the sentence would have been any different given the severity of appellant's misconduct.

Cheers, Phil Cave