United States v. Lee , 66 M.J. 387 ( 2008 )

UNITED STATES, Appellee
v.
Jonathan E. LEE, Captain
U.S. Marine Corps, Appellant
No. 07-0725
Crim. App. No. 200600543
United States Court of Appeals for the Armed Forces
Argued March 11, 2008
Decided June 13, 2008
BAKER, J., delivered the opinion of the Court, in which EFFRON,
C.J., and ERDMANN, J., joined. RYAN, J., filed a separate
dissenting opinion, in which STUCKY, J., joined.
Counsel
For Appellant: Eugene R. Fidell, Esq. (argued); Matthew S.
Freedus, Esq., Brent C. Harvey, Esq., and Lieutenant Brian D.
Korn, JAGC, USN (on brief).
For Appellee: Lieutenant Derek D. Butler, JAGC, USN (argued);
Commander Paul C. LeBlanc, JAGC, USN (on brief); Lieutenant
Justin E. Dunlap, JAGC, USN.
Military Judges: S. F. Day and J. M. Sankey
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Lee, No. 07-0725/MC
Judge BAKER delivered the opinion of the Court.
Appellant entered mixed pleas before a military judge
sitting as a general court-martial. After a trial on the
contested offenses, Appellant was convicted of three
specifications of burglary, conduct unbecoming of an officer and
a gentleman, three specifications of fraternization, and five
specifications of indecent assault, all in violation of Articles
129, 133, and 134, Uniform Code of Military Justice (UCMJ), 10
U.S.C. §§ 929, 933, 934 (2000), respectively. The adjudged and
approved sentence included a dismissal, confinement for three
years and forfeiture of all pay and allowances. The United
States Navy-Marine Corps Court of Criminal Appeals dismissed the
conduct unbecoming charge and the specification thereunder, and
one specification of indecent assault. United States v. Lee,
No. NMCCA 200600543, 2007 CCA LEXIS 233, at *24, 2007 WL
1890683, at *8 (N-M. Ct. Crim. App. June 26, 2007). After
reassessing in light of that action, the court affirmed the
sentence as approved by the convening authority. Id. at *24,
2007 WL 1890683, at *8. We granted review of Appellant’s
assigned issue: whether his detailed defense counsel’s failure
to disclose a conflict of interest resulted in an uninformed
selection of counsel.
The parties have briefed and argued the case from the
perspective of a declaration submitted by Appellant in the court
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below. In that declaration Appellant states that during the
representation, detailed counsel informed him that he would “be
wrapping up his defense cases and that his new duties would
entail prosecuting ‘minor offenses.’” Appellant suggests that
he acceded to this arrangement because his detailed counsel told
him there was no conflict of interest. Appellant also states
that after his trial, he learned that his detailed counsel had
actually been working as a prosecutor on another serious case
while simultaneously representing him. Moreover, in this other
case, his detailed counsel was working for the same trial
counsel prosecuting his case. In support of his argument,
Appellant references the book, Warlord: No Better Friend, No
Worse Enemy (2006), by Ilario Pantano with Malcolm McConnell,
recounting Pantano’s court-martial in detail.
The Government responds that even if Appellant’s
allegations are correct, Appellant has failed to show any
adverse effect on detailed counsel’s performance. As a result,
the Government concludes, Appellant was not deprived of counsel
for the purposes of the Sixth Amendment. In addition, during
all relevant times, Appellant was also represented by civilian
counsel of his choice, and he has made no claim of
ineffectiveness as to that counsel’s performance.
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ANALYSIS
“In all criminal prosecutions, the accused shall enjoy the
right . . . to have the Assistance of Counsel for his defence.”
U.S. Const. amend. VI; see also United States v. Cain, 59 M.J.
285, 294 (C.A.A.F. 2004). Case law identifies several elements
within this right, as applied in the civilian context. One
element of the Sixth Amendment right to counsel is “the right of
a defendant who does not require appointed counsel to choose who
will represent him.” United States v. Gonzalez-Lopez, 548 U.S.
140, 144 (2006). Further, counsel provided to or retained by
the accused must provide “reasonably effective assistance.”
Strickland v. Washington, 466 U.S. 668, 687 (1984). Third,
“[w]here a constitutional right to counsel exists . . . there is
a correlative right to representation that is free from
conflicts of interest.” Wood v. Georgia, 450 U.S. 261, 271
(1981). Finally, it follows that where assistance of counsel
has been denied entirely, “the likelihood that the verdict is
unreliable is so high that a case-by-case inquiry is
unnecessary.” Mickens v. Taylor, 535 U.S. 162, 166 (2001); see
generally Powell v. Alabama, 287 U.S. 45 (1932) (judgments
reversed in capital cases where trial court denied defendants
reasonable time to secure counsel).
An accused may waive his right to conflict-free counsel.
United States v. Davis, 3 M.J. 430, 433 n.16 (C.M.A. 1977).
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However, waivers must be voluntary, and they must be “‘knowing
intelligent acts done with sufficient awareness of the relevant
circumstances and likely consequences.’” Id. (quoting Brady v.
United States, 397 U.S. 742, 748 (1970)). Courts will “‘indulge
every reasonable presumption against the waiver’” of this right.
Id. (citations omitted).
The concerns attendant to counsel performing prosecutorial
duties while simultaneously representing an accused person at
court-martial are reflected in a longstanding opinion from the
Office of Legal Counsel within the Department of Justice, which
states among other things, that “it is considered unethical for
an active prosecutor to represent criminal defendants in his or
her own or another jurisdiction,” based inter alia on the
“‘subliminal or concealed’ influences on the attorney’s
loyalty.” 1 Op. Off. Legal Counsel 110, 112 (1977). These same
concerns are reflected within two opinions by the American Bar
Association (ABA) addressing military counsel. In an opinion
addressing the propriety of a military legal office providing
both trial counsel and defense counsel in the same case the ABA
stated:
Depending on whether a lawyer is cast in a defense or
prosecutorial role, he may be required to frame and
advocate interpretations of established rules of law
or procedure that are, or seem to be, poles apart. He
may be required to criticize police actions in one
case, then turn about to defend the same or similar
actions in a subsequent case where the facts may be,
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or seem to be, the same. He will deal frequently with
the same investigative or police personnel; he may
appear before the same [judges]. In the course of
this, the temptations may be great to mute the force
of advocacy, or just the handling of cases in subtle
ways.
ABA Comm. on Ethics and Prof’l Responsibility, Informal Op. 1235
(1972). A later ABA opinion states:
The Uniform Code of Military Justice (specifically
[Article 27, UCMJ] 10 U.S.C. § 827) and military court
opinions issued thereunder, as well as traditional
ethical concepts, have long recognized that a lawyer
should not serve as prosecutor and defense counsel,
investigator and defense counsel, defense counsel and
judge, or in any other combination of conflicting
roles in the same case. This is because a basic tenet
of an adversary system of justice is that a lawyer
should have undivided loyalty to his client and
because a fair system of justice requires that there
be no appearance of divided loyalty.
ABA Comm. on Ethics and Prof’l Responsibility, Informal Op. 1474
(1982).
In contrast to the apparent substantive clarity suggested
by the text above, case law varies on whether the simultaneous
representation of the United States and a defendant results in
per se prejudice or whether the defendant must at least show
that the conflict adversely affected his counsel’s performance.
Beaver v. Thompson, 93 F.3d 1186, 1193 (4th Cir. 1996) (per se
prejudice rule rejected in case where defense counsel was part-
time assistant prosecutor in neighboring county); Garcia v.
Bunnell, 33 F.3d 1193, 1198 & n.5 (9th Cir. 1994) (in case in
which defendant claimed defense counsel had simultaneously
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undertaken duties as a prosecutor, standard was, “‘a defendant
who shows that a conflict of interest actually affected the
adequacy of his representation need not demonstrate prejudice,’”
but suggested that had defendant timely objected, it would have
obviated need for such a showing) (citation omitted); accord
Goodson v. Peyton, 351 F.2d 905, 909 (4th Cir. 1965) (court-
appointed counsel was the Commonwealth’s Attorney for
neighboring county).
Not surprisingly, there are also few cases reaching this
Court on the issue of supervisory conflicts. United States v.
Nicholson, 15 M.J. 436, 438 (C.M.A. 1983) (rejecting per se
prejudice rule where trial counsel prepared fitness reports on
defense counsel); accord United States v. Hubbard, 20 C.M.A.
482, 484, 43 C.M.R. 322, 324 (1971) (where trial counsel was
endorsing official for defense counsel personnel evaluations).
NEED FOR REMAND IN THIS CASE
Appellant’s declaration implicates three related questions.
First, when, and under what circumstances, did defense counsel
serve as a trial counsel, and did military counsel labor under a
conflict of interest in representing Appellant under such
circumstances? Appellant indicates that he was aware that his
counsel would, at some point in time, be working as a
prosecutor. However, it is not clear whether Appellant was told
(or whether he understood) these prosecution duties would be
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undertaken during the defense representation or after it
terminated.
Second, if defense counsel had in fact begun duties as a
prosecutor, was defense counsel subject to the supervision of
trial counsel in Appellant’s case? Here, Appellant points to an
excerpt from the Pantano book, “facts” that are clearly not in
the record of trial and that have not been subject to
adversarial adjudication.
Third, whatever the underlying facts, did Appellant make an
informed decision to waive any conflict of interest based on the
actual facts at the time he consented to further representation?
Appellant’s declaration suggests that he may have had some
knowledge of his detailed counsel’s potential conflict, if any.
In the event Appellant did not knowingly waive a conflict of
interest, the question remains as to what showing must be made
for an accused to prevail on an issue of a conflicted counsel.
Based on the foregoing, it is necessary for us to remand
this case for further findings and conclusions of law.
DECISION
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is set aside. The record of trial is
returned to the Judge Advocate General of the Navy for remand to
an appropriate convening authority to order a factfinding
hearing pursuant to United States v. DuBay, 17 C.M.A. 147, 37
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C.M.R. 411 (1967). In conducting such a hearing, the military
judge should be guided, but not constrained, by the questions
contained in the Appendix to this opinion in gathering the facts
necessary to reach the conclusions of law required to address
the issues raised in this opinion. Afterwards, the case shall
be forwarded and reviewed in accordance with Article 66, UCMJ,
10 U.S.C. § 866 (2000).
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APPENDIX
The following factual issues are in need of resolution:
1. What are the circumstances surrounding the assignment of
detailed counsel as a trial counsel, including the date
such duties were to begin?
2. What consideration was given to the fact that counsel
still had active defense cases?
3. What “need” arose for the reassignment?
4. What was the full scope of detailed counsel’s actions as a
trial counsel during counsel’s representation of the
accused?
5. Was there, in fact, a supervisory relationship between
trial counsel and detailed counsel during counsel’s
representation of the accused?
6. What was the exact nature of any disclosures made to the
accused?
7. What was the accused’s understanding regarding these
disclosures?
8. What was civilian counsel’s role in the matter?
9. What effects on the representation can the accused point
to resulting from any claimed conflicts of interest on the
part of his detailed defense counsel?
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RYAN, Judge, with whom STUCKY, Judge, joins (dissenting):
This Court granted review of the decision of the United
States Navy-Marine Corps Court of Criminal Appeals on one issue
raised by Appellant: “Whether [detailed counsel’s] failure to
disclose his conflict of interest resulted in an uninformed and
invalid election of counsel.” Rather than answer this question,
which is directly controlled by Supreme Court precedent and not
an open issue, Cuyler v. Sullivan, 446 U.S. 335, 350 (1980)
(“[T]o demonstrate a violation of his Sixth Amendment rights, a
defendant must establish that an actual conflict of interest
adversely affected his lawyer’s performance.”), and Strickland
v. Washington, 466 U.S. 668, 692 (1984) (holding that defendant
must demonstrate both that counsel actively represented
conflicting interests and that an actual conflict of interest
adversely affected his lawyer’s performance to establish a Sixth
Amendment violation), the majority remands the case for
additional factfinding on questions related to the alleged
conflict and Appellant’s knowing waiver, if any, of any such
conflict.
Remand is unwarranted under the facts of this case.
Appellant fails to show, or even allege, prejudice or deficient
performance by either the potentially conflicted detailed
United States v. Lee, No. 07-0725/MC
counsel or his privately retained civilian counsel.1 Instead,
Appellant argued structural error resulting from an alleged
violation of the Sixth Amendment right to counsel of choice.
Based on this strategy, Appellant denied that any showing of
deficient performance was necessary.2
That is simply not the law. The Sixth Amendment grants
Appellant the right to “Assistance of Counsel for his defence.”
U.S. Const. amend. VI. Two aspects of this right are the right
to effective assistance of counsel, Strickland, 466 U.S. at 686,
and the right to counsel of choice with certain limitations,
United States v. Gonzalez-Lopez, 548 U.S. 140, 144, 151-52
(2006). They are different and separate aspects of the same
right, and alleged deprivations of each warrant distinct and
disparate analyses.
It is well settled that conflicts of interest are analyzed
under the “ineffective assistance of counsel” rubric, which
1
The performance of the civilian counsel is relevant for two
reasons. First, “[w]here an accused is represented by both
civilian counsel and detailed military counsel, the performance
of defense counsel is measured by the combined efforts of the
defense team as a whole.” United States v. Boone, 42 M.J. 308,
313 (C.A.A.F. 1995). Without evidence that Appellant’s defense
team, including both Appellant’s civilian counsel and detailed
counsel, acted deficiently, Appellant cannot establish
prejudice. Second, the impact of any deficient performance by
detailed counsel would be mitigated by the fact that civilian
counsel acted as lead counsel throughout Appellant’s trial.
2
At oral argument, counsel for Appellant admitted, “We have not
made a claim, because we do not need to make a claim, that there
was any deficiency in [detailed counsel’s] work.”
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requires a showing of prejudice and deficient performance,
rather than as “erroneous denial of counsel of choice,” which
constitutes structural error. Compare Cuyler, 446 U.S. at 348-
50 (setting forth test for ineffective assistance of counsel
where a conflict of interest is alleged), and Mickens v. Taylor,
535 U.S. 162, 171-73 (2002) (applying ineffective assistance of
counsel analysis in light of conflict of interest), with
Gonzalez-Lopez, 548 U.S. at 144-48 (analyzing the court’s
erroneous refusal to permit hired attorney to represent
defendant as denial of counsel of choice).
Appellant nonetheless argues that if he had been fully
informed of the detailed counsel’s potential conflict of
interest, he would have requested new counsel. Therefore,
Appellant argues, detailed counsel’s failure to disclose the
conflict rendered Appellant’s decision “uninformed and invalid”
and violated his right to choice of counsel.
No one, of course, would choose a conflicted or otherwise
ineffective attorney, and under this logic every instance of
conflict or deficient performance would constitute structural
error and warrant reversal. But it has never been the case that
the right to counsel of choice is violated by conflicted or
ineffective counsel. Violations of the Sixth Amendment right to
counsel of choice, and the attendant structural error and
automatic reversal, occur when there is an erroneous deprivation
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of a defendant’s request for the “counsel he believes to be
best,” the “counsel of his choosing.” Gonzalez-Lopez, 548 U.S.
at 146 & n.2 (holding that a trial court’s erroneous denial of
the defendant’s counsel’s application for admission pro hac vice
violated the defendant’s Sixth Amendment right to choice of
counsel and amounted to a structural error, requiring no showing
of prejudice).
This case presents different circumstances. At Appellant’s
arraignment, the military judge informed Appellant of his
counsel rights and confirmed that Appellant understood those
rights. Appellant elected to be represented by both the
detailed counsel and his civilian attorney and was so
represented at trial. Appellant admits that he was represented
by his counsel of choice, but argues that Gonzalez-Lopez
supports the argument that detailed counsel’s failure to
sufficiently disclose a potential conflict of interest
constitutes a violation of the right to choice of counsel.
Such an extension of Gonzales-Lopez is unsupported by
precedent, unwarranted by any language in Gonzales-Lopez, and
unnecessary. The Sixth Amendment already protects the
defendant’s right to counsel who owes the defendant “a duty of
loyalty, a duty to avoid conflicts of interest.” Strickland,
466 U.S. at 688. The Supreme Court explicitly provided for this
type of case, holding that prejudice may be presumed, when
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defendant’s counsel is burdened by an “actual conflict of
interest.” Id. at 692. But to establish an actual conflict of
interest, the defendant must demonstrate that his “counsel
‘actively represented conflicting interests’ and that ‘an actual
conflict of interest adversely affected his lawyer’s
performance.’” Id. (quoting Cuyler, 446 U.S. at 348, 350)
(emphasis added). The Supreme Court in no way suggested in its
Gonzalez-Lopez holding either that it intended to eviscerate its
established conflicts of interest jurisprudence or that the
right to counsel of choice is violated where a defendant gets
the lawyer he asked for, but post hoc, it is clear he either
should have or would have chosen differently.
The Supreme Court’s opinion in Mickens reaffirmed that
Cuyler and Strickland remain the appropriate tests for conflicts
of interest and that such conflicts do not constitute structural
error. See Mickens, 535 U.S. at 171-74 (rejecting petitioner’s
argument that trial court’s failure to inquire into a potential
conflict of interest about which it knew or should have known
relieved the defendant of the need to demonstrate that the
conflict adversely affected the defendant’s counsel’s
performance). The Court reiterated Cuyler’s holding that “‘an
actual conflict of interest’ mean[s] precisely a conflict that
affected counsel’s performance -- as opposed to a mere
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theoretical division of loyalties.” Mickens, 535 U.S. at 171
(citing Cuyler, 446 U.S. at 349-50) (emphasis in original).
The answer to the granted issue is apparent –- there was no
denial of the Sixth Amendment right to counsel of choice because
Appellant asked to be represented by detailed counsel and
civilian counsel and was so represented. To the extent the
alleged conflict of interest exists, it is relevant to the
detailed counsel’s duty to zealously advocate on behalf of
Appellant and raises an ineffective assistance of counsel issue
only. Where, as here, Appellant has not alleged any
deficiencies in his detailed counsel’s performance, it is
unnecessary to resolve the question whether defense counsel
actively represented conflicting interests because Appellant
cannot establish prejudice under Cuyler. Consequently, I
respectfully disagree that the Court cannot resolve the
ineffective assistant of counsel issue without remanding for
further findings and conclusions of law and would affirm the
ruling of the United States Navy-Marine Corps Court of Criminal
Appeals.3
3
Of course the circumstances alleged by Appellant, if true,
reflect a failure to adhere to ethics rules, and very poor
judgment by both the detailing authority and counsel. But “[a]n
error by counsel, even if professionally unreasonable, does not
warrant setting aside the judgment of a criminal proceeding if
the error had no effect on the judgment.” Strickland, 466 U.S.
at 691.
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