United States v. Strother , 60 M.J. 476 ( 2005 )

IN THE CASE OF
UNITED STATES, Appellee
v.
Keith W. STROTHER, Corporal
U.S. Marine Corps, Appellant
No. 03-0655
Crim. App. No. 200000050
United States Court of Appeals for the Armed Forces
Argued October 20, 2004
Decided March 7, 2005
EFFRON, J., delivered the opinion of the Court, in which
GIERKE, C.J., CRAWFORD, BAKER, and ERDMANN, JJ., joined.
Counsel
For Appellant: Lieutenant Brian L. Mizer, JAGC, USNR (argued);
Vaughan E. Taylor (on brief); Lieutenant Rebecca S. Snyder,
JAGC, USNR.
For Appellee: Lieutenant Donald L. Palmer, JAGC, USNR (argued);
Colonel William K. Lietzau, USMC (on brief); Colonel M.E.
Finnie, USMC, and Lieutenant Frank L. Gatto, JAGC, USN.
Military Judge: P. J. Straub
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Strother, No. 03-0655/MC
Judge EFFRON delivered the opinion of the Court.
At a general court-martial composed of a military judge
sitting alone, Appellant was convicted, contrary to his pleas,
of an indecent act and endeavoring to impede an investigation,
in violation of Article 134, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 934 (2000). He was sentenced to a bad-
conduct discharge, confinement for 90 days, and reduction to E-
1. The convening authority approved these results, and the
Court of Criminal Appeals affirmed in an unpublished opinion.
On Appellant’s petition, we granted review of the following
issue:
WHETHER THE LOWER COURT ERRED IN UPHOLDING
THE MILITARY JUDGE’S DENIAL OF A DEFENSE
MOTION TO REMOVE THE TRIAL COUNSEL, WHO HAD
ACTED AS THE CASE INVESTIGATOR AND COMMAND
LEGAL ADVISOR, WHILE IN THE POSITION OF
STAFF JUDGE ADVOCATE.
For the reasons set forth below, we conclude that the military
judge properly rejected the motion to disqualify the trial
counsel, and we affirm.
I. BACKGROUND
A. THE PRELIMINARY INQUIRY
Appellant, a corporal, attended a farewell party for a
sergeant in the unit, which was hosted by the departing member’s
roommate. Within weeks thereafter, rumors circulated within the
command about inappropriate sexual activity at the party. The
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unit’s command sergeant major conducted an investigation and
concluded that the evidence was insufficient to warrant further
action. He briefed the Deputy Commander, Chief of Staff, and
Staff Judge Advocate, all of whom agreed with his assessment of
the evidence.
Subsequently, Major (Maj) Flexer was detailed to serve as
staff judge advocate for the command. At some point, the
convening authority and Maj Flexer discussed the incident that
had been the subject of the prior investigation. Maj Flexer
conducted a number of interviews. He also inquired into the
availability of Lieutenant Colonel (LtCol) Harper, a reserve
officer and an attorney in civilian life, to conduct an inquiry.
LtCol Harper was ordered to conduct a preliminary inquiry, and
he discussed various aspects of the case with Maj Flexer,
including procedural matters, substantive issues, and
investigative options. As a result of information obtained
during the preliminary inquiry, Appellant was confined, and Maj
Flexer represented the command during Appellant’s pretrial
confinement hearing.
During the course of LtCol Harper’s preliminary inquiry, a
new Staff Judge Advocate, Colonel (Col) Nangle, was assigned to
the command, and Maj Flexer assumed other legal duties.
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B. THE ARTICLE 32 PRETRIAL INVESTIGATION
After receiving LtCol Harper’s report, the convening
authority ordered a formal pretrial investigation under Article
32, UCMJ, 10 U.S.C. § 832 (2000), and appointed Maj Chenail as
the Article 32 Investigating Officer. The convening authority
also designated Maj Flexer as the Counsel for the Government.
The Article 32 Investigating Officer conducted a hearing,
reviewed documentary evidence, and recommended referral of
charges against Appellant to a general court-martial.
C. TRIAL PROCEEDINGS
The convening authority referred the charges to a general
court-martial. Maj Flexer was detailed to serve as trial
counsel. The defense moved to disqualify Maj Flexer because of
his previous participation in the investigatory stages, citing
Rule for Courts-Martial (R.C.M.) 502(d)(4), which states in
pertinent part that:
No person shall act as trial counsel . . .
in any case in which that person is or has
been:
. . .
(B) An investigating officer; . . .
See also Article 27(a)(2), UCMJ, 10 U.S.C. § 827(a)(2)(2000).
The defense also cited Appellant’s due process right to a fair
trial. See U.S. Const. amend. V.
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During argument on the motion, defense counsel asserted
that “the rules say that if a person has been an investigator in
the same case, he cannot be trial counsel.” According to
defense counsel, Maj Flexer violated the rules by taking
statements, speaking to witnesses, arranging for witness travel,
and participating in the determination to reopen the
investigation. Defense counsel relied on the record of the
Article 32 proceeding and presented testimony from LtCol Harper,
the officer who conducted the preliminary inquiry, concerning
his interaction with trial counsel. The military judge denied
the motion, concluding that the trial counsel’s activity did not
constitute any “overstepping” of the rules.
D. APPELLATE CONSIDERATION
Appellant contends in the present appeal that the military
judge erred in denying the motion to disqualify trial counsel.
According to Appellant, Maj Flexer was disqualified as a matter
of due process because his pretrial activities made him an
“interested party” who could not perform prosecutorial duties
with the requisite degree of neutrality. In the alternative,
Appellant contends that Maj Flexer acted as an “investigating
officer” as that term is used in Article 27, thereby
disqualifying him from serving as trial counsel. We review the
military judge’s ruling on a motion to disqualify counsel under
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an abuse of discretion standard. See United States v. Hamilton,
41 M.J. 22, 27 (C.M.A. 1994).
II. DUE PROCESS
Appellant asserts Maj Flexer was an “interested party”
whose participation as a prosecutor violated Appellant’s due
process rights under the Supreme Court’s decisions in Young v.
United States ex rel. Vuitton et Fils S.A., 481 U.S. 787 (1987),
and Marshall v. Jerrico, 446 U.S. 238 (1980). In support of his
contention, Appellant notes that Maj Flexer was responsible for
reviving a dormant investigation; he provided legal advice to
commanders and investigators during an earlier phase of the
case; he assisted in decisions leading to grants of immunity;
this was his “first big case for the command”; the pressure to
secure a conviction “must have been great,” particularly in view
of the grants of immunity to other persons whose culpability
arguably was greater; and his “performance at trial likely would
have been documented on his fitness evaluation reports.”
A. DISQUALIFICATION OF A PROSECUTOR AS AN “INTERESTED PARTY”
A prosecutor will be disqualified as an “interested party”
if the prosecutor has a financial or improper personal stake in
the outcome of the proceeding. The Supreme Court in Young
addressed the propriety of appointing a private party’s lawyer
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as the prosecuting attorney in a related contempt proceeding,
and held that “the beneficiary of a court order may not be
appointed to undertake contempt prosecutions for alleged
violations of that order.” 481 U.S. at 790.
The Court emphasized that a prosecuting attorney:
is the representative not of an ordinary
party to a controversy, but of a sovereignty
whose obligation to govern impartially is as
compelling as its obligation to govern at
all; and whose interest, therefore, in a
criminal prosecution is not that it shall
win a case, but that justice shall be done.
As such, he is in a peculiar and very
definite sense the servant of the law, the
twofold aim of which is that guilt shall not
escape nor innocence suffer.
Id. at 803 (quoting Berger v. United States, 295 U.S. 78, 88
(1935)). The Court then noted that the distinctive role of the
prosecutor has been expressly recognized in the American Bar
Association’s Model Code of Professional Responsibility, Canon
7, Ethical Consideration 7-13 (1982). See also Model Rules of
Prof’l Conduct R. 3.8 cmt. 1 (2004).
The Court discussed the conflict of interest provisions
applicable to Department of Justice attorneys, including the
prohibition against simultaneously representing the Government
and a private party having a financial interest that could be
affected by a contempt proceeding. Young, 481 U.S. at 803-04(citations omitted). The Court determined that similar
considerations should apply to a district court’s appointment of
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a special prosecutor in a contempt proceeding. Id. at 805-09.
The Court did not express a view as to whether the appointment
constituted a violation of the due process rights of the parties
to the contempt proceeding. Id. at 809-10, 814-15.
In Marshall v. Jerrico, the Supreme Court discussed
prosecutorial disqualification in both judicial and
administrative proceedings in the course of rejecting a due
process challenge to an administrative procedure. 446 U.S. at
242-43, 248-50. Under the challenged procedure, the Department
of Labor imposed civil penalties for certain unlawful labor
practices, and used the proceeds to reimburse the Department for
the costs of determining violations and assessing penalties.
See id. at 239. The Jerrico company contended that the
potential for reimbursement could distort the department’s
objectivity by creating an incentive for the assistant regional
administrator to assert and assess penalties. Id. at 241. This
procedure violated due process, Jerrico argued, citing the
practices struck down in Tumey v. Ohio, 273 U.S. 510 (1927)
(mayor’s salary tied to fines adjudicated by the mayor in a
judicial capacity), and Ward v. Village of Monroeville, 409 U.S.
57 (1972) (sums produced by mayor’s court accounted for a
substantial portion of the municipality’s revenue). Jerrico,
446 U.S. at 241-42.
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The Court rejected the due process argument. Id. at 243-
44. The Court noted that Tumey and Ward both were based on the
requirement for an adjudication by an impartial tribunal,
whereas the functions performed by the assistant regional
administrator “resemble those of a prosecutor more closely than
those of a judge.” Id. at 243. According to the Court, the due
process limitations on “officials performing judicial or quasi-
judicial functions . . . are not applicable to those acting in a
prosecutorial or plaintiff-like capacity.” Id. at 248. The
Court added:
Our legal system has traditionally accorded
wide discretion to criminal prosecutors in
the enforcement process . . . . Prosecutors
need not be entirely neutral and detached[.]
In an adversary system, they are necessarily
permitted to be zealous in their enforcement
of the law. The constitutional interests in
accurate finding of facts and application of
law, and in preserving a fair and open
process for decision, are not to the same
degree implicated if it is the prosecutor,
and not the judge, who is offered an
incentive for securing . . . penalties.
Id. at 248-49 (citations and internal quotation marks omitted).
The Court emphasized, however, that the differences between
prosecutors and judges did not foreclose judicial review of
prosecutorial activities:
We do not suggest . . . that the Due
Process Clause imposes no limits on the
partisanship of . . . prosecutors.
Prosecutors are also public officials; they
too must serve the public interest. In
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appropriate circumstances the Court has made
clear that traditions of prosecutorial
discretion do not immunize from judicial
scrutiny cases in which the enforcement
decisions of an administrator were motivated
by improper factors or were otherwise
contrary to law.
Id. at 249 (citations omitted). After noting the significant
burden of defending against a prosecution, the Court stated:
A scheme injecting a personal interest,
financial or otherwise, into the enforcement
process may bring irrelevant or
impermissible factors into the prosecutorial
decision and in some contexts raise serious
constitutional questions. But the strict
requirements of neutrality cannot be the
same for administrative prosecutors as for
judges, whose duty it is to make the final
decision and whose impartiality serves as
the ultimate guarantee of a fair and
meaningful proceeding in our constitutional
regime.
Id. at 249-50 (citations omitted).
The Court reviewed the administrative process at issue and
concluded that “the influence alleged to impose bias [was]
exceptionally remote.” Id. at 250. The Court observed that the
regional administrator did not have a personal financial
interest in the collection of penalties and that any
institutional benefit to the organization from the exercise of
prosecutorial discretion was dependent upon too many
contingencies. Id. at 250-52. In reaching this conclusion, the
Court declined to “say with precision what limits there might be
on a financial or personal interest of one who performs a
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prosecutorial function . . . .” Id. at 250 (footnote omitted).
The Court added: “In particular, we need not say whether
different considerations might be held to apply if the alleged
biasing influence contributed to prosecutions against particular
persons, rather than to a general zealousness in the enforcement
process.” Id. at 250 n.12.
B. DISCUSSION -- DUE PROCESS
The factors cited by Appellant, summarized at the outset
of Part II of this opinion, do not transform a prosecutor into
an “interested party” who must be disqualified as a matter of
due process. The Supreme Court, in Young and Jerrico,
recognized that prosecutors are advisors and advocates for a
party. Young, 481 U.S. at 802-03; Jerrico, 446 U.S. at 248-49.
As such, they need not maintain the degree of neutrality
required of judges.
In civilian society, prosecutors routinely provide advice
and recommendations on the conduct of investigations, grants of
immunity, and charging decisions. The fact that such decisions
later may be challenged at trial or on appeal does not
disqualify an attorney from serving as a prosecutor as a matter
of due process. Likewise, a civilian prosecutor, whether
elected or appointed, inevitably faces the pressure of his or
her “first big case,” as well as the pressure generated when
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advice provided in a pretrial setting comes under challenge at
trial. Such pressures, which come with the territory inhabited
by prosecuting attorneys, do not transform a prosecutor into an
interested party. Military prosecutors, like their civilian
counterparts, are obligated to deal with such pressures in the
context of the prosecutor’s responsibility to ensure both that
the guilty not escape and that the innocent not suffer. See
Young, 481 U.S. at 803.
Appellant also asserts that Maj Flexer had a conflict of
interest because he did not respond to defense discovery
requests in a manner that was timely or complete. The defense
litigated the issue of discovery in connection with a motion to
reopen the Article 32 investigation, which was denied by the
military judge. The defense has not asserted on appeal that the
military judge committed prejudicial error with respect to
discovery. While it is possible that prosecutorial abuse of
discovery in another case would be so egregious as to
demonstrate impermissible bias requiring disqualification as a
matter of due process, see Jerrico, 446 U.S. at 250 n.12, this
is not such a case. The interest of the trial counsel in the
present case did not approach the type of conflict or bias that
would have made him an “interested party” under Young and
Jerrico.
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III. STATUTORY DISQUALIFICATION
Appellant contends that even if Maj Flexer was not
disqualified as a matter of due process, he should have been
disqualified in the present case as an “investigating officer”
prohibited from serving as a trial counsel under Article
27(a)(2). The statute provides in pertinent part that: “[n]o
person who has acted as investigating officer, military judge,
or court member in any case may act later as trial counsel . . .
. ” Id.In support of his contention that Maj Flexer was a
statutory “investigating officer” under Article 27, Appellant
notes that Maj Flexer engaged in a variety of activities more
characteristic of a police officer rather than a prosecutor.
According to Appellant, these activities resulted in selective
prosecution and evidence produced by use of questionable
investigative techniques.
A. DEVELOPMENT OF THE “INVESTIGATING OFFICER” DISQUALIFICATION
The prohibition on an “investigating officer” serving as a
prosecutor in courts-martial was first enacted in the 1948
legislation amending the Articles of War, popularly known as the
Elston Act. Selective Service Act of 1948, Pub. L. No. 80-759,
§§ 201-46, 62 Stat. 604, 627-44 (1948) [hereinafter Elston Act].
As originally proposed, the provision was designed to ensure
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that the position of “investigating officer” would not be filled
by a person having “the attitude of a prosecutor.” See Hearings
on H.R. 2575 to Amend the Articles of War before Subcomm. No 11,
Legal, of the House Comm. on Armed Services, 80th Cong. 2036
(1947)(remarks of Rep. Charles H. Elston, Chairman, and
Brigadier General Hubert D. Hoover, Assistant Judge Advocate
General of the Army); H.R. Rep. No. 80-1034, at 2, 15, 18
(1947).
The Elston Act contained two pertinent provisions. The
first provision, Article of War 11, stated that “no person who
has acted as member, defense counsel, assistant defense counsel,
or investigating officer in any case shall subsequently act in
the same case as a member of the prosecution . . . .” Elston
Act § 208. The second provision, Article of War 46, stated that
“[n]o charge will be referred to a general court-martial for
trial until after a thorough and impartial investigation thereof
shall have been made,” and referred to the person conducting the
impartial proceeding as “the investigating officer.” Elston Act
§ 222.
In the aftermath of the 1948 legislation, the President
promulgated the Manual for Courts-Martial (MCM), U.S. Army, in
1949 (1949 MCM). Paragraph 6 of the 1949 MCM, governing
appointment of the trial judge advocate (as the prosecutor was
then designated), mirrored the statutory disqualification of a
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person who had served as investigating officer in the same case.
With respect to the appointment of a pretrial investigating
officer under Article of War 46, paragraph 35a of the 1949 MCM
provided: “Neither the accuser nor any officer who is expected
to become a member of the prosecution or defense upon possible
trial of the case will be designated as investigating officer.”
Paragraph 41a, of the 1949 MCM, contained a parallel provision:
The trial judge advocate must be fair and
free from bias, prejudice, or hostility. If
he has acted as a member of the court,
defense counsel, assistant defense counsel,
or investigating officer in any case he
shall not subsequently act in the same case
as trial judge advocate or assistant trial
judge advocate.
Under these provisions, the term “investigating officer” in the
Articles of War and the 1949 MCM referred to a specific
statutory position, filled by a person required to conduct an
impartial investigation prior to referral of a case to a general
court-martial. Because the trial counsel, an advocate for a
party, would have an institutional conflict, the statute and the
1949 MCM required the position to be filled by a person who
would not prosecute the case as trial counsel.
The UCMJ, which replaced the Articles of War, as well as
the Articles for the Government of the Navy, was enacted in
1950, and took effect in 1951. Act of May 5, 1950, Pub. L. No.
81-506, 64 Stat. 107 (1950). The new legislation retained the
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United States v. Strother, No. 03-0655/MC
pertinent provisions of the Articles of War without substantive
change. Article 32 continued the requirement for a “thorough
and impartial investigation” by an “investigating officer” prior
to referral of charges to a general court-martial. Article
27(a) continued the limitation that “[n]o person who has acted
as investigating officer . . . in any case shall act
subsequently as trial counsel . . . in the same case.” See H.R.
Rep. No. 81-491, at 18-20 (1949); S. Rep. No. 81-486, at 15-16
(1949).
The 1951 edition of the MCM reflected the statutory
prohibition against appointing an investigating officer as trial
counsel and prohibited appointment of a person to serve as an
Article 32 Investigating Officer if the person was expected to
become a member of the prosecution. Manual for Courts-Martial,
United States, paras. 6, 34 (1951 ed.)(1951 MCM). The 1951 MCM
added an expanded definition of the term “investigating officer”
for purposes of various disqualifications, including
disqualification of trial counsel. Id. at para. 64. The new
definition included: (1) Article 32 investigating officers; and
(2) “any other person who, as counsel for, or a member of, a
court of inquiry, or as an investigating officer or otherwise,
has conducted a personal investigation of a general matter
involving the particular offense.” Id. The 1951 MCM restricted
the reach of the new definition of “investigating officer” by
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United States v. Strother, No. 03-0655/MC
providing that the definition would not disqualify “a person
who, in the performance of his duties as counsel, has conducted
an investigation of a particular offense or a closely related
offense with a view towards prosecuting or defending it before a
court-martial,” except in circumstances addressed in other
specified portions of the 1951 MCM. Id.Our Court considered whether trial counsel should have been
disqualified under these provisions in several cases arising in
the years immediately following promulgation of the 1951 MCM.
United States v. Lee concluded that an officer’s informal
investigation prior to preferral of charges did not disqualify
that officer from serving as trial counsel in a special court-
martial. 1 C.M.A. 212, 218, 2 C.M.R. 118, 124 (1952). Lee
noted that there was a “distinctly arguable” interpretation of
the applicable statutes under which the disqualification of an
“investigating officer” only applied to an Article 32
investigating officer, but concluded that it was not necessary
to rely on the statutes because paragraph 64 of the 1951 MCM
employed a “broader view” of the term. Id. at 215, 2 C.M.R. at
121. The opinion concluded that an informal investigation
conducted to determine whether the facts warranted preferral of
charges did not transform counsel into an “investigating
officer” for purposes of the Code or the broader requirements of
the 1951 MCM. Id. at 218, 2 C.M.R. at 124. Accord United
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States v. Stringer, 4 C.M.A. 494, 16 C.M.R. 68 (1954); cf.
United States v. DeAngelis, 3 C.M.A. 298, 305, 12 C.M.R. 54, 61
(1953) (a staff judge advocate’s interactions with
investigators, in terms of consultation and advice, did not
transform the judge advocate into an “investigating officer”).
See also R.C.M. 303 (preliminary inquiry into reported
offenses). DeAngelis emphasized the critical role of judge
advocates in the administration of military justice and
discipline, adding that “it would be incongruous in the extreme
were we to assume that [a judge advocate] is unable to function
at all unless and until charges have been preferred and
investigated.” 3 C.M.A. at 305, 12 C.M.R. at 61. The opinion
added that participation by lawyers in pretrial matters helps to
“minimize[] the risk of error arising from faulty pretrial
investigations” and in reducing the number of “ill-founded
charges against those subject to military law.” Id., 12 C.M.R.
at 61.
Subsequent to these decisions, the pertinent provisions in
the 1951 MCM were retained, without substantial change, when a
revised edition of the MCM was issued in 1969. Manual for
Courts-Martial, United States, paras. 6a, 34a, 64 (rev. ed.
1969). The MCM was restructured completely in 1984 to adopt a
rule-based format, separating binding requirements from non-
binding guidance. See Manual for Courts-Martial, United States
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(2002 ed.)(2002 MCM), App. 21, Analysis of Rules for Courts-
Martial at A21-1 to A21-3 (history and composition of the 1984
MCM). The 1984 MCM adopted new rules regarding the term
“investigating officer” as well as disqualification of trial
counsel. These new rules remain in effect in the current
edition of the MCM, the 2002 MCM.
In contrast to the pre-1984 editions of the MCM, the 2002
MCM does not contain a general definition of the term
“investigating officer.” Instead, it uses the term
“investigating officer” in connection with specific rules.
R.C.M. 405, for example, implements the formal pretrial
investigation procedures required by Article 32. R.C.M.
405(d)(1) uses the term “investigating officer” to describe the
officer appointed under the rule to conduct the investigation.
The same provision also provides expressly that “[t]he
investigating officer is disqualified to act later in the same
case in any other capacity.” Id.
R.C.M. 912 governs challenges of panel members for cause.
Under R.C.M. 912(f)(1)(F), a challenge for cause must be granted
if the panel member “[h]as been an investigating officer as to
any offense charged.” The rule also includes a rule-specific
definition applicable to challenges of panel members for cause:
For purposes of this rule, “investigating
officer” includes any person who has
investigated charges under R.C.M. 405 [a
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United States v. Strother, No. 03-0655/MC
formal Article 32 investigation] and any
person who as counsel for a member of a
court of inquiry, or otherwise personally
has conducted an investigation of the
general matter involving the offenses
charged.
R.C.M. 912(i)(3).
By contrast, the rule governing qualification of counsel
simply notes in pertinent part that a person may not act as
trial counsel or assistant trial counsel “in any case in which
that person is or has been . . . [a]n investigating officer . .
. .” R.C.M. 502(d)(4). The procedure for disqualification of
counsel does not refer to specific criteria, but instead notes
generally that “[i]f it appears that any counsel may be
disqualified, the military judge shall decide the matter and
take appropriate action.” R.C.M. 901(d)(3).
In summary, the initial prohibition against an
investigating officer serving as trial counsel, which was
implemented in the 1949 MCM, used the term “investigating
officer” to describe the officer required to conduct an
“impartial” investigation prior to referral of charges to a
general court-martial -- the predecessor of today’s Article 32
officer. The 1951 MCM provided an expanded definition that
expressly included persons other than the Article 32
investigating officer. Our Court in Lee focused on the fact
that the definition in the 1951 MCM was broader than the
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United States v. Strother, No. 03-0655/MC
statutory term. 1 C.M.A. at 215, 2 C.M.R. at 121. The
President, in the 1951 MCM, exercised his authority to set forth
in the MCM broader rights than those established under the UCMJ.
See, e.g., United States v. Davis, 47 M.J. 484, 486 (C.M.A.
1998)(noting the authority of the President to do so unless such
action would clearly contradict the express language of the
UCMJ).
Having established, in paragraph 64 of the 1951 MCM, a
broader definition of “investigating officer” than required by
the UCMJ, the President was free in 1984 to take a more narrowly
tailored approach, so long as the MCM did not set forth a
provision contrary to or inconsistent with the UCMJ. See
Article 36, UCMJ, 10 U.S.C. § 836 (2000). We note that the
elimination or tailoring of a provision from the MCM does not
necessarily mean that the text must be interpreted in its
narrowest light, particularly if a broader interpretation is
supported by judicial interpretation of the UCMJ, military
custom, tradition, or parallel civilian practice. In the
present case, however, those factors are not present. For
purposes of disqualification of counsel, the President has
narrowed the term “investigating officer” to its original usage
– the disqualification of the officer who conducted the
“impartial” investigation under the predecessor to Article 32 --
and we conclude that there is no basis in law to impose a
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broader judicial construction. We also note that that this
appeal does not require us to address the question of whether
there otherwise might be grounds for disqualifying trial counsel
who, in the same case, served previously as a hearing officer
under a service-specific regulation requiring a degree of
neutrality similar to that of an “impartial” Article 32 officer.
See United States v. Mann, 50 M.J. 689, 702 (A.F. Ct. Crim. App.
1999)(noting possible distinction for circumstances involving
trial counsel’s prior participation in a case in a quasi-
judicial role).
In the case before us, trial counsel did not serve as the
Article 32 investigating officer, and Appellant has not
demonstrated that trial counsel’s activities so departed from
the normal role of a prosecutor as to make him a de facto
Article 32 “investigating officer.” Cf. United States v. Payne,
3 M.J. 354 (C.M.A. 1977) (impropriety of Article 32 officer
receiving ex parte advice from trial counsel). Appellant, at
trial, did not present testimony from either the Article 32
officer or the trial counsel. In the absence of such testimony,
and under the circumstances of this case, we decline to treat
Appellant’s speculation as to the nature of the interaction
between trial counsel and the Article 32 officer as sufficient
to demonstrate that trial counsel became a de facto Article 32
investigating officer. In that regard, it is also noteworthy
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United States v. Strother, No. 03-0655/MC
that Appellant challenged the validity of the Article 32
investigation on a variety of grounds, including the actions of
trial counsel, without calling either the Article 32 officer or
trial counsel as witnesses. The military judge denied the
defense motion, and Appellant has not challenged that ruling on
appeal. Likewise, although Appellant attempts to raise
discovery violations and selective prosecution as evidence of
trial counsel’s improper role as an investigating officer,
Appellant has not assigned issues of law in the present case
contending that there was error, much less prejudicial error,
with respect to discovery or selective prosecution.
IV. Conclusion
Appellant has not demonstrated that trial counsel was
disqualified as a matter of due process or as a result of prior
service in the same case as a statutory “investigating officer.”
The decision of the United States Navy-Marine Corps Court of
Criminal Appeals is affirmed.
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