United States v. Wiechmann , 67 M.J. 456 ( 2009 )

UNITED STATES, Appellee
v.
Jeff R. WIECHMANN, Lieutenant Colonel
U.S. Marine Corps, Appellant
No. 09-0082
Crim. App. No. 200700593
United States Court of Appeals for the Armed Forces
Argued April 15, 2009
Decided July 9, 2009
EFFRON, C.J., delivered the opinion of the Court, in which
BAKER, ERDMANN, and STUCKY, JJ., joined. RYAN, J., filed a
separate opinion concurring in the judgment.
Counsel
For Appellant: Captain Kyle R. Kilian (argued).
For Appellee: Lieutenant Timothy H. Delgado (argued); Brian K.
Keller, Esq. (on brief).
Military Judge: Bruce D. Landrum
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Wiechmann, No. 09-0082/MC
Chief Judge EFFRON delivered the opinion of the Court.
A general court-martial composed of a military judge sitting
alone convicted Appellant, pursuant to his pleas, of failing to
obey a lawful order, making a false official statement, conduct
unbecoming an officer, adultery, and obstructing justice, in
violation of Articles 92, 107, 133, and 134, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. §§ 892, 907, 933, 934 (2000).
The sentence adjudged by the court-martial included dismissal
and confinement for ninety days. Pursuant to the pretrial
agreement, the convening authority suspended all punishment for
twelve months from the date of trial. The United States Navy-
Marine Corps Court of Criminal Appeals affirmed. United States
v. Wiechmann, No. NMCCA 200700593, 2008 CCA LEXIS 298, 2008 WL
3540244 (N-M. Ct. Crim. App. August 14, 2008) (unpublished).
On Appellant’s petition, we granted review of the following
issue:
WHETHER APPELLANT WAS DENIED HIS SIXTH
AMENDMENT RIGHT TO COUNSEL WHEN THE
CONVENING AUTHORITY AND STAFF JUDGE ADVOCATE
FAILED TO RECOGNIZE ONE OF HIS TWO DETAILED
DEFENSE COUNSEL.
For the reasons set forth below, we conclude that the
convening authority erred in treating one of Appellant’s defense
counsel as not properly detailed. Under the circumstances of
this case, we further conclude that the error was harmless
beyond a reasonable doubt.
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I. BACKGROUND
A. DETAIL OF DEFENSE COUNSEL
The accused has the right to be represented by counsel
during an investigation under Article 32, UCMJ, 10 U.S.C. § 832
(2000), and before a general or special court-martial. Article
38(b)(1), UCMJ, 10 U.S.C. § 838(b)(1) (2000). See U.S. Const.
amend. VI; United States v. Davis, 60 M.J. 469, 473 (2005). In
the military justice system, the right to counsel includes the
right to counsel detailed under Article 27, UCMJ, 10 U.S.C. §
827 (2000). The right to the services of detailed counsel “is
substantial, and extends to both the pretrial and the trial
proceedings.” United States v. Tellier, 13 C.M.A. 323, 327, 32
C.M.R. 323, 327 (1962). See United States v. Eason, 21 C.M.A.
335, 337-39, 45 C.M.R. 109, 111-13 (1972).
Under Article 27(a)(1), UCMJ, the secretaries of the
military departments prescribe regulations governing the detail
of military counsel. Although the accused does not have the
right to more than one detailed counsel, “the person authorized
by regulations prescribed under section 827 of this title
(Article 27) to detail counsel, in his sole discretion . . . may
detail additional military counsel as assistant defense
counsel.” Article 38(b)(6), UCMJ, 10 U.S.C. § 838(b)(6) (2000).
The authority to assign detailed defense counsel to a
particular case is vested in the official designated under
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departmental regulations, and the accused is not entitled to
detailed counsel of choice under Article 27(a). Compare Article
38(b), UCMJ, 10 U.S.C. § 838(b) (2000) (setting forth the right
to representation by civilian counsel if provided by the accused
and the right to representation by military counsel selected by
the accused if reasonably available under departmental
regulations). Although the accused does not have the right to
detailed counsel of choice, once counsel has been detailed under
Article 27(a) and an attorney-client relationship has been
established, the convening authority may not undermine that
relationship. See Rule for Courts-Martial (R.C.M.) 505(d)(2);
Eason, 21 C.M.A. at 339-40, 45 C.M.R. at 113-14. The
responsibility for any changes in the assignment of detailed
counsel is vested in the authority competent to detail such
counsel under departmental regulations, not the convening
authority, and may be exercised only for good cause shown on the
record or under the other limited circumstances provided in
R.C.M. 505(d)(2)(B).
In June 2006, Captain Snow, the senior defense counsel at
Marine Corps Base Hawaii, learned of an impending Article 32
investigation into charges against Appellant. Captain Snow
detailed himself as defense counsel and requested a continuance
of the investigation, which was granted. At that time, Captain
Snow, who had one month of experience as defense counsel,
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expressed through defense counsel channels his need for
assistance, noting Appellant’s retirement-eligible status.
Captain Snow began to explore the possibility that Appellant
would request a specific individual military counsel at
government expense or obtain civilian counsel at Appellant’s own
expense. See Article 38(b)(2)-(3), UCMJ.
The chief defense counsel of the Marine Corps detailed
Lieutenant Colonel (LtCol) Shelburne, a reservist, to serve as
Appellant’s defense counsel, thereby providing Appellant with
both Captain Snow and LtCol Shelburne as detailed defense
counsel. The convening authority subsequently denied a defense
request for funding of LtCol Shelburne’s assignment, stating
that he could “find no authority for the Chief Defense Counsel
of the Marine Corps to detail LtCol Shelburne to this case.”
LtCol Shelburne then requested a continuance of the Article 32
hearing, noting the funding issue. The convening authority
responded that “LtCol Shelburne is not detailed as counsel and
has no authority to act in this matter.”
B. REPRESENTATION OF APPELLANT AT THE ARTICLE 32 HEARING
AND PRIOR TO REFERRAL OF CHARGES
On July 24, 2006, LtCol Shelburne appeared at the Article
32 hearing, objecting to the proceeding on the grounds that
efforts were underway to address the counsel issue. He also
stated that he did not have adequate time to meet with Appellant
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or to prepare for the hearing. After consideration of a brief
delay, the investigating officer decided to proceed, while
permitting LtCol Shelburne to represent Appellant over objection
by the Government’s representative. Following the hearing,
LtCol Shelburne submitted objections to the investigating
officer regarding the decision to proceed, as well as the
decision to admit into evidence certain unsworn statements.
LtCol Shelburne and Captain Snow subsequently requested a
meeting with the convening authority to propose a pretrial
agreement package, which included a proposal for disposition
under Article 15, UCMJ, 10 U.S.C. § 815 (2000) (nonjudicial
punishment). The convening authority denied the request for the
meeting and refused to accept the pretrial agreement package on
the ground that LtCol Shelburne had not been properly detailed
as defense counsel. After Captain Snow removed LtCol
Shelburne’s name from the package, the convening authority
accepted the paperwork for consideration.
After the convening authority denied a further request from
LtCol Shelburne for a meeting, the convening authority met with
Captain Snow alone to discuss Appellant’s case and the request
for disposition under Article 15. The convening authority at
that time did not agree to enter into a pretrial agreement or
other disposition. On September 25, 2006, the convening
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authority referred the charges for trial by general court-
martial.
C. REPRESENTATION OF APPELLANT AT THE COURT-MARTIAL
After the charges were referred to trial, the military
judge initially assigned to the case conducted an informal
scheduling conference by telephone under R.C.M. 802. The
military judge denied Captain Snow’s request that the military
judge include LtCol Shelburne in the discussion and suggested
that Captain Snow submit a request for individual military
counsel if he wanted LtCol Shelburne to be recognized. The
defense filed a motion for appropriate relief requesting “that
the military judge deny the government motion to prevent LtCol
Shelburne from fulfilling his duties as detailed defense
counsel.”
Subsequently, a different military judge was assigned to
the case. At the opening session of Appellant’s court-martial,
the military judge made the standard inquiry of Appellant
regarding representation by counsel. Appellant noted that he
wished to be represented by LtCol Shelburne as lead detailed
defense counsel and by Captain Snow as assistant defense
counsel. After arraignment, the military judge heard the
parties’ arguments on the defense motion for appropriate relief.
The military judge granted the defense motion, ruling that
the applicable departmental regulations authorized the chief
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defense counsel of the Marine Corps to detail LtCol Shelburne as
defense counsel. The military judge also interpreted applicable
regulations as providing that LtCol Shelburne’s assignment would
be funded by Headquarters Marine Corps rather than by the
convening authority.
In a separate filing, the defense moved to dismiss the
charges based on allegations of unlawful command influence. In
addition, the defense moved for a new Article 32 investigation
on the ground that Appellant did not have the full assistance of
LtCol Shelburne during the Article 32 proceedings. The military
judge eventually denied both motions.
While these motions were pending, the convening authority
met with LtCol Shelburne on November 27, 2006, at the request of
defense counsel to discuss possible disposition through
nonjudicial punishment. LtCol Shelburne also entered into
negotiations with the convening authority and his
representatives about a possible pretrial agreement.
The convening authority and Appellant entered into a
pretrial agreement on January 8, 2007. Appellant agreed to
plead guilty to all charges except for one specification of
failing to obey a lawful general order, to waive any defect in
the Article 32, UCMJ, pretrial investigation, to waive the right
to a board of inquiry, and to submit a request for immediate
retirement at the grade of major. The convening authority
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agreed to suspend any confinement and punitive discharge
adjudged.
LtCol Shelburne represented Appellant at Appellant’s guilty
plea providence inquiry and at sentencing on January 10, 2007.
During the inquiry into the plea agreement, the military judge
explained that by pleading guilty, Appellant would forfeit the
right to appeal the military judge’s decisions on the previous
motions made in his case, except for the unlawful command
influence motion. Appellant agreed that he was voluntarily
waiving the right to appeal the prior motions. Appellant stated
that he freely and voluntarily agreed to each of the specially
negotiated provisions of the pretrial agreement. These
provisions included the waiver of any defect in the Article 32
investigation. The military judge told Appellant that the
waiver provision “might be superfluous in light of the fact that
the guilty plea waived the appeal of the motion. However, this
basically states your clear understanding and your waiver of any
defect that there might have been in that Article 32. Do you
understand that?” Appellant replied “Yes,” and he also replied
“Yes” when asked if it was his intention to waive any defect in
the Article 32 investigation.
Appellant confirmed that he was satisfied with his defense
counsels “in all respects” and that he had entered into the
pretrial agreement freely and voluntarily. Appellant replied
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“yes,” when asked whether he understood “each and every
provision” of the pretrial agreement. The military judge asked,
“Have you fully discussed this agreement with your counsel, and
are you satisfied that their advice has been in your best
interests?” Appellant replied “Yes.” The military judge
accepted Appellant’s pleas and convicted Appellant of the
offenses to which he entered guilty pleas.
D. CONSIDERATION BY THE COURT OF CRIMINAL APPEALS
Appellant alleged multiple assignments of error before the
Court of Criminal Appeals, including that the convening
authority’s refusal to recognize LtCol Shelburne as detailed
defense counsel prior to the military judge’s ruling on that
issue violated Appellant’s Sixth Amendment right to counsel and
improperly severed his attorney-client relationship with LtCol
Shelburne. Wiechmann, 2008 CCA LEXIS 298, at *1-*3, 2008 WL
3540244 at *1.
In the course of addressing these issues, the Court of
Criminal Appeals found that LtCol Shelburne had established an
attorney-client relationship with Appellant by the time of the
Article 32 investigation. Id. at *8, 2008 WL 3540244, at *3.
The court described the pretrial dispute about the validity of
LtCol Shelburne’s status as a “good faith” disagreement “over
how to interpret the detailing directives,” while noting that
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the convening authority’s initial refusal to recognize LtCol
Shelburne as detailed defense counsel “burdened his ability to
represent the appellant pretrial.” Id. at *9, 2008 WL 3540244,
at *3. The court concluded, however, that the convening
authority’s actions “were not so severe as to constitute a
severance of the attorney-client relationship, nor did they rise
to such a level as to deny appellant due process.” Id. at *5-
*9, 2008 WL 3540244, at *1-*3. The court added that Appellant
did not have the right to a pretrial meeting with the convening
authority, that he benefited from the advice of LtCol Shelburne,
and that Captain Snow served as a “conduit” to the convening
authority until LtCol Shelburne was recognized. Id. at *9, 2008
WL 3540244, at *3.
II. DISCUSSION
A. PRE-REFERRAL RESPONSIBILITIES OF THE CONVENING AUTHORITY
The granted issue asks whether the convening authority’s
refusal to treat LtCol Shelburne as detailed defense counsel
violated Appellant’s Sixth Amendment right to counsel. In
assessing whether there has been a Sixth Amendment violation, we
begin by considering the stage of the proceedings in which the
acts or omissions at issue occurred. In the present appeal, the
granted issue concerns the convening authority’s acts and
omissions during the pre-referral stage of the proceedings.
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Because a military judge is not appointed to conduct proceedings
until charges are referred to a court-martial, see Article
26(a), UCMJ, 10 U.S.C. § 826(a) (2000), the military justice
system does not have standing courts at the trial level to
address legal issues at the pre-referral stage. The convening
authority exercises responsibility for pretrial matters that
would otherwise be litigated before a judge in civilian
proceedings, including issues involving the conduct of
depositions, issuance of protective orders, availability of
government-funded experts, mental responsibility proceedings,
and questions concerning the validity of charges. See, e.g.,
Article 34, UCMJ, 10 U.S.C. § 834 (2000); R.C.M. 405(g)(6), 406,
407, 702(b), 703(d), 706(b)(1).
Pretrial agreements also implicate distinctive
responsibilities of the convening authority with respect to
court-martial proceedings. In the military justice system,
responsibility for the function of determining sentencing is
shared by the court-martial, see Article 51, UCMJ, 10 U.S.C. §
851 (2000) (governing the determination of the sentence by the
court-martial), and the convening authority, see Article 60,
UCMJ, 10 U.S.C. § 860 (2000) (providing the convening authority
with virtually unfettered discretion to modify the sentence so
long as the severity is not increased). As an incident of the
responsibility for sentencing, the convening authority may enter
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into a pretrial agreement that imposes a legal limitation on the
scope of the sentence. See R.C.M. 705(b)(2)(E). R.C.M. 705
underscores the vital role of counsel at the pretrial stage of
the proceedings: “Government representatives shall negotiate
with defense counsel unless the accused has waived the right to
counsel.” R.C.M. 705(d)(1). The rule further provides that a
pretrial agreement “shall be signed by the accused and defense
counsel, if any.” R.C.M. 705(d)(2).
B. NONRECOGNITION OF DETAILED DEFENSE COUNSEL
BY THE CONVENING AUTHORITY
A convening authority may not interfere with or impede an
attorney-client relationship established between an accused and
detailed defense counsel. See supra Part I.A. Although LtCol
Shelburne was detailed as Appellant’s defense counsel, the
convening authority declined to recognize LtCol Shelburne during
the Article 32 investigation period in which Appellant was
entitled to representation by detailed defense counsel under
Articles 32(b) and 38(b)(1), UCMJ, 10 U.S.C. §§ 832(b),
838(b)(1) (2000). The convening authority continued to do so
during initial pretrial agreement negotiations, a period in
which the Government was obligated to conduct any negotiations
with defense counsel. See R.C.M. 705(d)(1). After the
convening authority referred the case to trial, he persisted in
refusing to recognize LtCol Shelburne as Appellant’s counsel
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until that point in the court-martial proceedings when the
military judge ruled that LtCol Shelburne had been properly
detailed as defense counsel under Articles 27 and 38, UCMJ.
As noted in the previous section, the convening authority
exercises significant pretrial responsibilities in the
military’s criminal justice system. The responsibility for
detailing defense counsel, however, is not one of the duties
assigned to the convening authority by law. Although the UCMJ,
as originally enacted, authorized the convening authority to
detail counsel, Congress amended the statute in 1983 to provide
that the responsibility for detailing counsel would be exercised
by persons authorized to do so under departmental regulations.
Compare Act of May 5, 1950, Pub. L. No. 81-506, ch. 169, 64
Stat. 107, 117 (Article 27(a)), with Military Justice Act of
1983, Pub. L. No. 98-209, 97 Stat. 1393, 1394 (Article 27(a)).
See S. Rep. No. 98-53, at 13 (1983) (noting that “in addition to
removing . . . potential burdens, eliminating the requirement
for the convening authority to personally detail . . . counsel
will remove any hint or possibility of improper command
influence or control . . . .”). The regulations at issue in the
present case vested the responsibility for detailing counsel in
various department-level officers, not in the convening
authority. See Dep’t of the Navy, Marine Corps Order P5800.16A,
Marine Corps Manual for Legal Administration, para. 2002 (Aug.
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31, 1999); Dep't of the Navy, Judge Advocate General Instr.
5800.7D, Manual of the Judge Advocate General para. 0130 (Mar.
15, 2004).
In the present case, the convening authority, who did not
seek clarification of the department’s regulations from
officials at the departmental level, proceeded with the case
while declining to recognize LtCol Shelburne as Appellant’s
detailed defense counsel. Eventually, the military judge ruled
that LtCol Shelburne had been properly detailed as defense
counsel, effective as of the date of LtCol Shelburne’s initial
detail as Appellant’s defense counsel. As neither party has
challenged the military judge’s interpretation of departmental
regulations on appeal, we treat his ruling as the law of the
case. See United States v. Parker, 62 M.J. 459, 464 (C.A.A.F.
2006). In that context, the convening authority erred by
restricting the role of Appellant’s detailed defense counsel
during the pretrial proceedings, including the proceedings
concerning the Article 32 investigation and pretrial agreement
negotiations. In so doing, the convening authority improperly
interfered with the attorney-client relationship established at
the time of LtCol Shelburne’s initial detail as Appellant’s
defense counsel. These actions violated Appellant’s rights
under Article 27, UCMJ.
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C. LIMITATIONS ON PARTICIPATION OF DETAILED DEFENSE COUNSEL
IN THE PRETRIAL AND TRIAL PROCEEDINGS
Captain Snow, the first detailed defense counsel,
represented Appellant throughout the pretrial and trial
proceedings. LtCol Shelburne, the second detailed defense
counsel, participated in the Article 32 proceedings, submitted
comments to the Article 32 investigating officer, and assisted
Captain Snow in preparing the first pretrial packet for
submission to the convening authority. After the military
judge’s order that he was properly detailed, LtCol Shelburne
served as lead defense counsel, participating fully in the
negotiation of the plea agreement and subsequent trial and post-
trial proceedings.
LtCol Shelburne and Appellant had established an attorney-
client relationship by the time of the Article 32 investigation.
See Wiechmann, 2008 CCA LEXIS 298, at *8, 2008 WL 3540244, at
*3. In that context, the Court of Criminal Appeals observed
that the convening authority’s “initial refusal to recognize
LtCol Shelburne burdened [LtCol Shelburne’s] ability to
represent the appellant pretrial.” Id. at *9, 2008 WL 3540244,
at *3. We agree. The convening authority’s action burdened
LtCol Shelburne’s representation of Appellant in several
respects: (1) the Article 32 proceeding was conducted without a
full opportunity for LtCol Shelburne to prepare and participate;
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(2) LtCol Shelburne was excluded from pretrial disposition
negotiations that the Government conducted with Captain Snow,
the less experienced defense counsel; (3) LtCol Shelburne was
unable to represent Appellant in pretrial procedural matters,
such as in a scheduling conference or by requesting a
continuance. Under these circumstances, the Government’s
actions infringed Appellant’s right to the assistance of counsel
under Article 27 during pretrial proceedings before both the
convening authority and the military judge. See Tellier, 13
C.M.A. at 327, 32 C.M.R. at 327; Eason, 21 C.M.A. at 335-37, 45
C.M.R. at 109-11.
D. EVALUATION OF ERROR AND PREJUDICE
Having found a violation of Appellant’s statutory right to
counsel, we now turn to Appellant’s constitutional claims. When
a Sixth Amendment claim involves a governmental act or omission
affecting the right of an accused to the assistance of counsel,
we consider whether the infringement involves a structural error
-- an error so serious that no proof of prejudice is required --
or whether the error must be tested for prejudice. See United
States v. Brooks, 66 M.J. 221, 223-24 (C.A.A.F. 2008). Compare
Davis, 60 M.J. at 473 (discussing separate standards applicable
to claims of ineffective assistance of counsel). Structural
error exists when “a court is faced with ‘the difficulty of
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assessing the effect of the error’” or the error is so
fundamental that “harmlessness is irrelevant.” Brooks, 66 M.J.
at 224 (citing United States v. Gonzalez-Lopez, 548 U.S. 140,
149 n.4 (2006)).
As we noted in Brooks: “‘Structural errors involve errors
in the trial mechanism’ so serious that ‘a criminal trial cannot
reliably serve its function as a vehicle for determination of
guilt or innocence.’” 66 M.J. at 224 (quoting Arizona v.
Fulminante, 499 U.S. 279, 309-10 (1991)). We further noted that
“[t]here is a strong presumption that an error is not
structural.” 66 M.J. at 224 (citations and quotation marks
omitted).
In the present case, Appellant had the services of
qualified counsel, Captain Snow, throughout the proceedings.
Captain Snow had the assistance of LtCol Shelburne in addressing
pretrial matters. To the extent that the convening authority’s
restrictions on LtCol Shelburne adversely affected Appellant’s
rights during the Article 32 proceeding, Appellant subsequently
entered into a plea agreement -- with the assistance of LtCol
Shelburne -- that expressly waived any defects in the Article 32
proceeding. Likewise, to the extent that the convening
authority’s actions restricted Appellant’s rights during the
initial pretrial agreement negotiations, Appellant had the
benefit of LtCol Shelburne’s unrestricted assistance during the
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subsequent negotiations, completion of the agreement, entry of
pleas, and other trial and post-trial proceedings. Under these
circumstances, the initial restrictions did not significantly
affect “the framework within which the trial proceed[ed].” See
Gonzalez-Lopez, 548 U.S. at 148; Brooks, 66 M.J. at 224. The
convening authority’s actions in the present case do not
constitute the type of error that is incapable of assessment,
and the error is not so fundamental that harmlessness is
irrelevant. See Gonzalez-Lopez, 548 U.S. at 148-49; Brooks, 66
M.J. at 224. Under these circumstances, the deficiencies in the
present case do not amount to structural error.
Appellant contends that the infringement of his Sixth
Amendment rights, even if not structural error, constituted
prejudicial error. In particular, Appellant contends that the
infringement adversely affected Appellant’s rights during the
Article 32 proceeding and during the initial pretrial agreement
negotiations.
The infringement of Appellant’s rights in this case
constituted a trial error that can be “‘quantitatively assessed
in the context of other evidence.’” Gonzalez-Lopez, 548 U.S. at
148 (quoting Fulminante, 499 U.S. at 307-08). In that posture,
“we shall assume, without deciding, that the Sixth Amendment was
violated in the circumstances of this case.” United States v.
Morrison, 449 U.S. 361, 364 (1981). Assuming that the error is
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of constitutional dimension, we assess whether it was harmless
beyond a reasonable doubt. See United States v. Moran, 65 M.J.
178, 187 (C.A.A.F. 2007) (quoting Chapman v. California, 386
U.S. 18, 24 (1967)) (applying the harmless beyond a reasonable
doubt standard to certain constitutional errors).
As previously noted, after the military judge’s ruling at
the outset of the trial proceedings that confirmed LtCol
Shelburne’s status as lead detailed defense counsel, LtCol
Shelburne represented Appellant fully as lead defense counsel
throughout the trial and post-trial proceedings. Appellant,
with the assistance of LtCol Shelburne as lead counsel, entered
into a pretrial agreement that expressly waived any error in the
Article 32 investigation. Moreover, as lead counsel, LtCol
Shelburne had the opportunity to engage in negotiations with the
convening authority regarding the defense request for
nonjudicial disposition as well as the terms of the pretrial
agreement. Appellant has claimed no measurable prejudice from
the inability of LtCol Shelburne to participate in the initial
scheduling conference under R.C.M. 802, nor has Appellant
claimed that his plea was involuntary or that the providency
inquiry was otherwise deficient. Under these circumstances, we
conclude that the convening authority’s erroneous action with
respect to the status of LtCol Shelburne during the pretrial
proceedings was harmless beyond a reasonable doubt.
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III. CONCLUSION
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is affirmed.
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RYAN, Judge (concurring in the judgment):
I agree with the majority’s conclusion that “the convening
authority erred by restricting the role of Appellant’s detailed
defense counsel during the pretrial proceedings, including the
proceedings concerning the Article 32 investigation and pretrial
agreement negotiations.” United States v. Wiechmann, __ M.J.
__, __ (15) (C.A.A.F. 2009). I write separately because I do
not believe, as the majority opinion “‘assume[s] without
deciding,’” id. at __ (19-20) (quoting United States v.
Morrison, 449 U.S. 361, 364 (1981)), that the convening
authority’s refusal to recognize the power vested in and
exercised by the detailing authority by statute, see Article
38(b)(6), Uniform Code of Military Justice (UCMJ), 10 U.S.C. §
838 (2000) (providing that the detailing authority “in his sole
discretion” may choose to appoint a second defense counsel),
qualifies as constitutional error.
Because the Government does not challenge the conclusion by
the Court of Criminal Appeals that the convening authority’s
refusal to recognize Lieutenant Colonel (Lt. Col.) Shelburne
burdened his attempts to fully represent Appellant, I, like the
majority, accept that conclusion as the law of the case. United
States v. Parker, 62 M.J. 459, 464 (C.A.A.F. 2006) (“When a
party does not appeal a ruling, the ruling of the lower court
normally becomes the law of the case.”). But Appellant has
United States v. Wiechmann, No. 09-0082/MC
likewise not disputed that during all times in which Lt. Col.
Shelburne’s participation was limited, Appellant was fully
represented by Captain (Capt.) Snow. At oral argument,
Appellant conceded that Capt. Snow was competent and qualified
to be his defense counsel; that at all times he had effective
assistance of counsel; and that there was no instance in which
Capt. Snow’s representation was deficient. While I believe
reaching the constitutional issue at all to be unnecessary,
under the circumstances of this case there is no basis for even
suggesting that Appellant’s Sixth Amendment rights were violated
by the limitations placed on Lt. Col. Shelburne.
The Sixth Amendment guarantees that “‘[i]n all criminal
prosecutions, the accused shall . . . have the Assistance of
Counsel for his defence.’ The core of this right has
historically been, and remains today, ‘the opportunity for a
defendant to consult with an attorney and to have him
investigate the case and prepare a defense for trial.’” Kansas
v. Ventris, 129 S. Ct. 1841, 1844-45 (2009) (citation omitted)
(brackets and ellipsis in original). But “[n]ot every
restriction on counsel’s time or opportunity to investigate or
consult with his client or otherwise to prepare for trial
violates a defendant’s Sixth Amendment right to counsel.”
Morris v. Slappy, 461 U.S. 1, 11, 13-14 (1983) (finding there is
no Sixth Amendment right to “a meaningful attorney-client
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United States v. Wiechmann, No. 09-0082/MC
relationship” and that denial of a continuance to give an
attorney who was appointed to appellant’s case six days before
trial more time to prepare was not an abuse of discretion).
Further, as the majority acknowledges, a military accused has
neither the absolute right to detailed counsel of choice, nor
the right to the assistance of two counsel. Wiechmann, __ M.J.
at __ (3-4); see Article 38(b)(3)(B), UCMJ (“The accused may be
represented by military counsel of his own selection if that
counsel is reasonably available” as determined by applicable
service regulations); Article 38(b)(6), UCMJ (“The accused is
not entitled to be represented by more than one military
counsel.”).
The scenario in which a defendant has two attorneys and one
is prevented from participating in a particular stage of the
proceedings appears to be a rare subject of litigation in the
federal courts. One situation where it has arisen is when
defense counsel has requested a continuance to allow both
counsel to be present. On appeal, the reviewing courts have
applied an abuse of discretion standard without any mention of
the Sixth Amendment. United States v. Riccobene, 709 F.2d 214,
231 (3d Cir. 1983); United States v. McManaman, 653 F.2d 458,
460-61 (10th Cir. 1981). In both Riccobene and McManaman, the
court found no abuse of discretion both because the second and
participating attorney was qualified and competent to represent
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United States v. Wiechmann, No. 09-0082/MC
the accused and because there was no assertion that the
resulting representation was inadequate or ineffective. See
Riccobene, 709 F.2d at 231 (finding no abuse of discretion
because appellant’s “other attorney had the experience and
capability to represent” appellant and because appellant “d[id]
not claim [his] representation was in any way inadequate”);
McManaman, 653 F.2d at 460 (finding no abuse of discretion
because attorney who was available when the trial began was
competent and well-prepared and because “there [was] no real
suggestion that [appellant] did not receive the assistance of
competent counsel at his trial”). Similarly, in this case,
Appellant was at all times represented by at least one counsel
he conceded was competent, and there is no allegation of
ineffective representation at any stage of the proceedings.
Of course, the military right to counsel is broader than
the right to counsel guaranteed to civilians. See, e.g., United
States v. Johnson, 21 M.J. 211, 213 (C.M.A. 1986) (“[O]ur
starting premise is that Congress intended to bestow on
servicemembers a right to counsel unparalleled in civilian
criminal trials.”). But these broader rights are the creations
of statute and regulation, not of the Constitution. See id. at
213-15 (discussing rights guaranteed by Article 38, UCMJ);
United States v. Gnibus, 21 M.J. 1, 5-7 (C.M.A. 1985)
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United States v. Wiechmann, No. 09-0082/MC
(discussing history of right to counsel in the military as
defined by the UCMJ and its statutory predecessors).
Article 38(b)(6), UCMJ, provides that “the person
authorized under regulations prescribed under [Article 27, UCMJ,
10 U.S.C. § 827 (2000)] to detail counsel in his sole discretion
may detail additional military counsel” to an accused. I agree
that a convening authority who does not honor such an additional
detailing has erred. Once a defense counsel has been detailed
under Article 38, UCMJ, and an attorney-client relationship has
been established, only the detailing authority may sever that
relationship, and only then under limited circumstances. See
Rule for Courts-Martial (R.C.M.) 505(d)(2) (outlining
circumstances in which the detailing authority, not the
convening authority, may excuse or change defense counsel once
that counsel has formed an attorney-client relationship with the
accused).
However, under the facts of this case, I cannot agree with
the suggestion that this error could be a Sixth Amendment
violation or an infringement of “Appellant’s right to the
assistance of counsel under Article 27,” as the majority
concludes. Wiechmann, __ M.J. at __ (17, 19-20). The
majority’s suggestion that interference with one counsel while
Appellant was fully represented by a second competent counsel
could constitute a Sixth Amendment violation is both incorrect
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United States v. Wiechmann, No. 09-0082/MC
and an unnecessary assumption, given the statutory violation we
all agree exists. Nor do United States v. Eason, 21 C.M.A. 335,
45 C.M.R. 109 (1972), and United States v. Tellier, 13 C.M.A.
323, 32 C.M.R. 323 (1962), offer any support for a Sixth
Amendment inquiry: Neither case presented the issue of
severance of an attorney-client relationship in the context of
an Article 27, UCMJ, “assistance of counsel” or Sixth Amendment
claim. Instead, both cases were grounded in the statutory
question whether the appellant’s rights under Article 38, UCMJ,
had been violated. Eason, 21 C.M.A. at 339-40, 45 C.M.R. at
113-14 (upholding Court of Military Review conclusion that there
was prejudice in the government’s refusal to appoint appellant’s
personally selected military counsel in violation of Article 38,
UCMJ); Tellier, 13 C.M.A. at 326-28, 32 C.M.R. at 326-28
(emphasizing that precedent from the boards of review and “the
clear and unequivocal command of the statute’s language” lead to
the conclusion that “an accused is entitled as a matter of right
to the association of his appointed defense counsel with his
individually employed attorneys”).1
1
Of course, both cases were decided under a prior version of
Article 38, UCMJ, which was interpreted to establish a statutory
right to representation by two military counsel. See Article
38(b), UCMJ, 10 U.S.C. § 838(b) (1964) (“Should the accused have
counsel of his own selection, the defense counsel, and assistant
defense counsel, if any, who were detailed shall, if the accused
so desires, act as his associate counsel.”) (emphasis added). A
subsequent revision of Article 38, UCMJ, clarified the fact that
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United States v. Wiechmann, No. 09-0082/MC
In this case, the chief defense counsel of the Marine Corps
detailed an additional military counsel, Lt. Col. Shelburne, to
Appellant’s case. Because the convening authority declined to
accept this detailing as valid, he improperly refused to
recognize authority conferred solely on the detailing authority
by Article 38, UCMJ, and R.C.M. 505. As an error under the UCMJ
and the Rules for Courts-Martial, it should be assessed under
Article 59, UCMJ, 10 U.S.C. § 859 (2000), to determine whether
the error materially prejudiced Appellant’s “substantial
rights.”
For the same reasons cited by the majority in support of
its conclusion that the error was harmless beyond a reasonable
doubt, I agree that there was no material prejudice to
Appellant’s substantial rights. Wiechmann, __ M.J. at __ (19-
21). I respectfully concur in the judgment.
a military member is not entitled to two military counsel,
although the person authorized under the applicable service
regulations to detail counsel may detail a second military
counsel “in his sole discretion.” Military Justice Amendments
of 1981, Pub. L. No. 97-81, § 4(b), 95 Stat. 1085, 1088.
7