United States v. Watkins ( 2020 )

UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
R. Bronson WATKINS, Staff Sergeant
United States Marine Corps, Appellant
No. 19-0376
Crim. App. No. 201700246
Argued June 4, 2020—Decided September 2, 2020
Military Judge: Mark D. Sameit and Matthew J. Kent
For Appellant: Lieutenant Daniel E. Rosinski, JAGC, USN
(argued); Clifton E. Morgan III, JAGC, USN.
For Appellee: Lieutenant Commander Timothy C. Ceder,
JAGC, USN (argued); Lieutenant Colonel Nicholas Gan-
non, USMC, Lieutenant Joshua Fiveson, JAGC, USN, and
Brian K. Keller, Esq. (on brief); Colonel Mark K. Jamison,
USMC.
Judge SPARKS delivered the opinion of the Court, in
which Chief Judge STUCKY, Judge OHLSON, and Sen-
ior Judge RYAN, joined. Judge MAGGS filed a separate
dissenting opinion.
Judge SPARKS delivered the opinion of the Court.
A general court-martial convicted Appellant, contrary to
his pleas, of two specifications of failure to obey a lawful or-
der and one specification each of sexual abuse of a child and
obstruction of justice, in violation of Articles 92, 120b, and
134, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§§ 892, 920b, 934 (2012). Appellant was sentenced to con-
finement for five years, a dishonorable discharge, and reduc-
tion to grade E-1. The convening authority approved the
sentence as adjudged. The United States Navy-Marine
Corps Court of Criminal Appeals affirmed. United States v.
Watkins, No. NMCCA 201700246, 2019 CCA LEXIS 71, at
United States v. Watkins, No. 19-0376/MC
Opinion of the Court
*48–49, 2019 WL 937192, at *17 (N-M. Ct. Crim. App. Feb.
21, 2019) (unpublished).1
We granted review of three issues:
I. A conflict of interest exists where the interests
of an attorney and defendant diverge on a ma-
terial factual or legal issue, or a course of ac-
tion. Threats by regional trial counsel [RTC]
and a regional trial investigator towards civil-
ian defense counsel created a conflict of interest
between civilian counsel and Appellant. Did the
military judge err in denying civilian counsel’s
motion to withdraw?
II. The Sixth Amendment guarantees an accused
the right to retain counsel of his own choosing.
Before trial, and after his civilian counsel
moved to withdraw—citing a perceived conflict
of interest—Appellant asked to release his civil-
ian counsel and hire a different counsel. Did the
military judge err by denying this request?
III. Did the lower court err in ratifying the military
judge’s denial of Appellant’s request for conflict-
free counsel, where it: (A) found the request
was in “bad faith,” based on alleged misbehav-
ior by Appellant occurring before the RTC’s un-
expected threats; and, (B) treated the military
judge’s finding that Appellant’s request for
counsel was “opportunistic,” as a finding of fact
instead of a conclusion of law?
We hold that Appellant was denied his right to counsel of
his choice and we reverse.2
1 We note that the Court of Criminal Appeals agreed with the
parties that there was an error in the convening authority’s action
and, accordingly, directed that the “supplemental promulgating
order shall reflect that the members acquitted the appellant of the
language ‘influence the testimony of [C].’ ” 2019 CCA LEXIS 71, at
*29, 2019 WL 937192, at *17. Following its taking of this correc-
tive action, the Court of Criminal Appeals found “that no error
materially prejudicial to the substantial rights of the appellant
remain[ed].” Id., 2019 WL 93712, at *17.
2 Having decided this case on Issue II, it is unnecessary to ad-
dress Issues I and III.
2
United States v. Watkins, No. 19-0376/MC
Opinion of the Court
I. Background3
Appellant was charged with sexually abusing his nine-
year-old daughter, C, by touching her breasts and vaginal
area with his hands and penetrating C’s vulva with his fin-
gers. He was arraigned on July 1, 2016. During the period
leading up to the trial, Appellant’s daughter recanted her
allegations. Afterwards, the Government began experiencing
difficulties in locating and serving subpoenas on Appellant’s
wife and daughter.
At an Article 39(a), UCMJ, 10 U.S.C. § 839(a) (2012),
session held on what was to have been the first day of trial,
September 12, 2016, the Government detailed the numerous
problems it had encountered in its attempts to locate the
wife and daughter. Significantly, the Government’s investi-
gator testified, among other things, that he obtained the
family’s bank records and found that Appellant’s wife had
recently used a debit card to make a purchase at a San Die-
go bookstore. This purchase was significant to the investiga-
tor because the bookstore was “next door” to civilian defense
counsel’s office and the purchase had taken place on a day
when the investigator believed that Appellant had gone to
meet with civilian counsel at the office.
By the time of the hearing Appellant had retained Mr.
Bruce White as civilian counsel. In light of the investigator’s
testimony at the hearing, Mr. White apparently took excep-
tion to the insinuation, at least from his perspective, that
somehow he was complicit in assisting Appellant and his
wife in avoiding service of process. In his statement for the
record to the military judge he pointed out that he had only
met Appellant’s wife one time and that meeting had taken
place at her base residence.
At a later Article 39(a), UCMJ, session, the Government
returned to the subject of the proximity of the bookstore in
San Diego to Mr. White’s law office. The military judge ruled
that the fact that Appellant’s wife had been in a bookstore
3 This part of our opinion relies substantially on the very de-
tailed and helpful recitation of the case background in the lower
court’s opinion.
3
United States v. Watkins, No. 19-0376/MC
Opinion of the Court
near Mr. White’s office was not relevant. Nonetheless, the
Government persisted insisting that it was relevant because,
“it is where the accused could have potentially met with [his
wife].” The military judge, however, maintained his ruling.
After the military judge ruled, the regional trial counsel
for Camp Pendleton, Lieutenant Colonel (LtCol) Keane, who
was sitting behind the bar, directed trial counsel to ask for a
recess. When the military judge recessed the court, LtCol
Keane became engaged in an argument with civilian defense
counsel. Mr. White insisted that he had not been at his office
the day Appellant’s wife had been at the bookstore. LtCol
Keane told Mr. White, in a raised voice, that he didn’t care
and “it’s not over” or words to that effect. LtCol Keane testi-
fied further that he told Mr. White “something along the
lines of” Mr. White was “being shady.” This incident oc-
curred on a Thursday and the court-martial was not sched-
uled to reconvene until the following Monday. On Sunday,
Mr. White sent an email to the military judge informing him
that he had doubts about his ability to represent Appellant.
He wrote, “the Government’s improper actions combined
with LtCol Keane’s threat toward me have placed me in a
conflict position . . . . I discussed this generally with SSgt
Watkins today so that you can conduct a proper inquiry into
this issue tomorrow.” Mr. White added that if he must with-
draw, or if Appellant released him, “I plan to refund SSgt
Watkins’ entire fee so that he can quickly retain conflict free
counsel.”
The following day, Monday, Mr. White moved to with-
draw. He stated that the Government suspected him of
wrongdoing, and that he therefore had an interest that was
directly adverse to Appellant. He referenced LtCol Keane’s
“very loud” assertion that “[t]his isn’t over. Which in this
business, can only mean one thing . . . . I will be the next guy
that they are coming after.” The military judge asked if Mr.
White understood this to mean that he thought that LtCol
Keane intended to pursue a bar complaint, an ethical com-
plaint, or some other type of action against him, and wheth-
er that would shape the way in which he conducted the de-
fense. Mr. White answered, “[y]es Your Honor.” Mr. White
stated that he had “been virtually treated like a co-
conspirator.” Mr. White further complained that, in his view,
4
United States v. Watkins, No. 19-0376/MC
Opinion of the Court
the Government had repeatedly raised instances that insin-
uated he had been involved in the obstruction allegation. He
stated, “I have gotten to the point now that . . . I think I
have a direct conflict.”
After a recess, the military judge called LtCol Keane as a
witness on the motion to withdraw. He asked him what he
meant when he told Mr. White that it “wasn’t over.” LtCol
Keane testified he was referring to “where the last credit
card transaction for the wife of the accused was . . . which
was at a strip mall next to his office at the same time . . . the
accused was supposedly visiting, and shortly thereafter, she
fled the area and tried to hide from the service of process.”
LtCol Keane testified that he was neither pursuing nor con-
templating reporting Mr. White to the state bar or initiating
any action against him. Furthermore, he was unaware of
any part of the Government pursuing or contemplating re-
porting Mr. White to the state bar. The military judge’s
questioning proceeded as follows:
Q. Lieutenant Colonel Keane, after a session of
court last week, did you say something to Mr.
White to the effect of, “This ain’t over”?
A. Yes.
Q. Do you recall specifically what you said?
A. It was after he—as I was leaving the courtroom,
he said to me twice, “I wasn’t at my office that
day.” I said, “I don’t care.” He said, “I know you
don’t care.” And I said, “This—it’s not over,” or
something along the lines of that, or something
along the lines of “being shady.”
Q. Okay. So can you flesh out what you meant
when you said, “This ain’t over”?
A. Well, “This ain’t over” was the issue of where the
last credit card transaction for the wife of the ac-
cused was taken place [sic], which was at a strip
mall next to his office at the same time contem-
poraneously when the accused was supposedly
visiting; and shortly thereafter, she fled the area
and tried to hide from the service of process.
5
United States v. Watkins, No. 19-0376/MC
Opinion of the Court
Q. To your knowledge—well, do you believe Mr.
White was complicit in any of the misconduct
described on the charge sheet in this case?
A. I have no evidence that he was complicit.
Q. Do you believe he has otherwise engaged in mis-
conduct?
A. I have no evidence that he did.
Q. Do you believe he has otherwise engaged in un-
ethical behavior in this case?
A. I have no evidence to support that—I’m not
aware of any evidence.
Q. Is—are you currently pursuing or contemplating
any effort to report Mr. White to either of the
state bars of which he is a member?
A. No.
Q. Are you currently pursuing or otherwise con-
templating initiating or otherwise pursuing
criminal action against Mr. White?
A. No.
Q. To your knowledge, does any part of the gov-
ernment currently contemplate pursuing report-
ing Mr. White to either of the state bars of which
he is a member?
A. I’m not aware of any.
The military judge asked similar questions of the case
agent. The agent testified that she was unaware of any cur-
rent or planned investigation into Mr. White for obstruction
of justice.
The military judge asked Appellant who he wanted to
represent him. Appellant said that he wanted to be repre-
sented by his two detailed counsel and “another attorney
that I would like to bring onboard.” The military judge
pointed out that Appellant had hired Mr. White and asked
him if he had been satisfied with the services. Appellant an-
swered that he had been, “[f]or the most part.” The military
judge asked Appellant why he did not want Mr. White to
represent him. Appellant stated that he first thought about
6
United States v. Watkins, No. 19-0376/MC
Opinion of the Court
the possibility that Mr. White might be conflicted when the
Government investigator brought up the fact that Appel-
lant’s wife had visited the bookstore next to Mr. White’s of-
fice. He thought that Mr. White “became, in my opinion kind
of emotional . . . the focus was no longer on me in particular
at that time, and it was more on trying to clear his name. So
that made me very uncomfortable.” Then, “when Lieutenant
Colonel Keane made his—what I would consider a threat, I
guess, against . . . Mr. White, that just—for me, it solidified
the fact that it was about Mr. White as much as it was about
me.” The military judge asked Appellant if he was able to
effectively communicate with Mr. White. Appellant replied
no, because his communications were “overshadowed about .
. . how much priority of him [sic] trying to keep his name
clear . . . . I can’t sit here . . . thinking he could have done
something else, but he’s not going to do it because . . . of a
threat from the government.”
The military judge denied Mr. White’s motion to with-
draw. He found that no evidence tended to prove that Mr.
White was complicit in any charged misconduct, and that
neither LtCol Keane nor NCIS intended to take any action
against Mr. White. The military judge stated for the record
that he had observed Appellant and Mr. White communi-
cating cooperatively. The military judge also considered the
difficulties that the Government had incurred in securing
the presence of Appellant’s wife and daughter. These diffi-
culties, in his view, had delayed the trial for several months.
In his findings he also relied on evidence that Appellant had
searched the Internet for information on avoiding subpoe-
nas, extradition agreements and other matters suggesting
that he did not want his family to testify. He also relied on
the wife’s significant ties to Uganda and was not convinced
that Appellant’s wife and daughter would be available for
trial. Relying on the totality of the circumstances the mili-
tary judge found that the justifications for Mr. White’s with-
drawal and Appellant’s decision to hire a different attorney
were not supported by facts on the record. He ultimately
concluded that any arguments in favor of excusing Mr.
White were “opportunistic.”
7
United States v. Watkins, No. 19-0376/MC
Opinion of the Court
II. Discussion
Appellant argues that the military judge abused his dis-
cretion by not allowing him to dismiss his civilian counsel.
Appellant asserts that it was reasonable for him to decide he
should release civilian counsel after witnessing the Govern-
ment attack his civilian counsel, and observing trial counsel
persistently raise the implication that civilian defense coun-
sel was in some way complicit with an obstruction allegation
against Appellant. We agree.
The Sixth Amendment guarantees the right to counsel,
and within that, the right to choice of counsel for those who
hire their own counsel. United States v. Gonzalez-Lopez, 548
U.S. 140 (2006). “It commands, not that a trial be fair, but
that a particular guarantee of fairness be provided—to wit,
that the accused be defended by the counsel he believes to be
best.” Id. at 146. Despite adequate representation by coun-
sel, if it is not the accused’s counsel of choice and if he is er-
roneously prevented from being represented by the lawyer
he wants, then the right has been violated. Id. at 148. As a
result, the violation of the right to choice of counsel is not
subject to harmless error analysis. Id. at 150. “[E]rroneous
deprivation of the right to counsel of choice, ‘with conse-
quences that are necessarily unquantifiable and indetermi-
nate, unquestionably qualifies as ‘structural error.’ ” Id.
(quoting Sullivan v. Louisiana, 508 U.S. 275, 282 (1993)).
Harmless error analysis under such circumstances would be
a “speculative inquiry into what might have occurred in an
alternate universe.” Id. To compare two attorneys, one
whose services were denied, would require a court to specu-
late upon what different choices or different intangibles
might have been between the two. Id. at 151.
“Congress has provided members of the armed forces fac-
ing trial by general or special court-martial with counsel
rights broader than those available to their civilian counter-
parts.” United States v. Spriggs, 52 M.J. 235, 237 (C.A.A.F.
2000). An accused has the right to detailed military counsel,
military counsel of choice if reasonably available and, at his
own expense, civilian counsel of choice. Article 38(b), UCMJ,
10 U.S.C. § 838(b) (2012). Appellant’s right to civilian coun-
sel of choice is further protected under Rule for Courts-
Martial (R.C.M.) 506(c) (2016 ed.), which states that
8
United States v. Watkins, No. 19-0376/MC
Opinion of the Court
“[d]efense counsel may be excused only with the express
consent of the accused, or by the military judge upon appli-
cation for withdrawal by the defense counsel for good cause
shown.”4 Nevertheless, this right to civilian counsel of choice
“is not absolute and must be balanced against society’s in-
terest in the efficient and expeditious administration of jus-
tice.” United States v. Thomas, 22 M.J. 57, 59 (C.M.A. 1986)
(citation omitted). A trial court has “wide latitude in balanc-
ing the right to counsel of choice against the needs of fair-
ness, and against the demands of its calendar.” Gonzalez-
Lopez, 548 U.S. at 152 (citing Wheat v. United States, 486
U.S. 153, 163–64 (1988); Morris v. Slappy, 461 U.S. 1, 11–12
(1983)).
When an accused seeks to excuse and replace civilian
counsel, he also may implicitly be seeking a continuance in
order to procure replacement counsel. Cf. United States v.
Turner, 897 F.3d 1084, 1101 (9th Cir. 2018) (noting the po-
tential relationship between a request for continuance and a
motion to substitute counsel). A military judge should re-
quire the accused to explicitly address this issue on the rec-
ord. When an accused’s request to release and replace coun-
sel could create the need for a continuance, the factors an-
nounced in United States v. Miller, 47 M.J. 352, 358
(C.A.A.F. 1997), can guide the trial court in balancing the
accused’s fundamental right to counsel of choice, the “effi-
cient and expeditious administration of justice,” Thomas, 22
M.J. at 59, and the demands of the court’s calendar. Gonza-
lez-Lopez, 548 U.S. at 152. Principal among these in situa-
tions such as this are timing considerations—namely,
whether an accused’s request to release counsel requires a
continuance and, if so, what the length of such a continu-
ance might be.5 Other factors include surprise, nature of any
4 Further, the Navy’s Rules of Professional Conduct are clear
that “[a] client has a right to discharge a covered attorney at any
time, with or without cause.” Dep’t of the Navy, Instr. 5803.1E,
Professional Conduct of Attorneys Practicing Under the Cogni-
zance and Supervision of the Judge Advocate General Rule 1.16
cmt. 3(a) (Jan. 20, 2015).
5 The actual need for a continuance is less likely in the mili-
tary justice system than in the civilian justice system. At court-
9
United States v. Watkins, No. 19-0376/MC
Opinion of the Court
evidence involved, timeliness of the request, substitute tes-
timony or evidence, availability of witnesses or evidence re-
quested, prejudice to the opponent, whether the moving par-
ty has received prior continuances, good faith of the moving
party, use of reasonable diligence by the moving party, pos-
sible impact on the verdict, and prior notice. Miller, 47 M.J.
at 358.
We review the military judge’s resolution of this issue for
an abuse of discretion. United States v. Wiest, 59 M.J. 276,
279 (C.A.A.F. 2004); Miller, 47 M.J. at 358; Thomas, 22 M.J.
at 59. The military judge’s ruling appeared to rest upon two
basic conclusions: (1) his in-court observations of Appellant
effectively communicating with his counsel, and (2) his belief
that Appellant’s request to excuse Mr. White was an implicit
request for a continuance, and that this request was “oppor-
tunistic” and an obvious attempt to impede the prosecution
given the evidence of Appellant’s attempts to prevent his
wife and daughter from appearing for trial. Even if this were
true, the military judge did not balance the factors men-
tioned in Miller. In other words, he did not use them to bal-
ance the accused’s right to choice of counsel against the de-
mands of the court’s calendar and the concerns of fairness
and efficiency. Cf. Gonzalez-Lopez, 548 U.S. at 152; Thomas,
22 M.J. at 59.
The military judge seemed, for good reason, to be con-
cerned that the wife and daughter might not be available for
trial. Any frustration on the part of the military judge and
the Government was understandable. However, there was
no inquiry as to whether or not other means to preserve
their testimony might have been feasible, such as deposi-
tions under R.C.M. 702. Likewise, as for how long it might
have taken Appellant to retain new counsel, the military
judge never put this question to him.
martial, an accused who has hired a civilian defense counsel often
still receives representation from an assigned military defense
counsel who should be prepared to proceed to trial in a timely
manner. In this circumstance, an accused’s right to counsel under
the Sixth Amendment or Article 38, UCMJ, would likely not be
violated.
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United States v. Watkins, No. 19-0376/MC
Opinion of the Court
All of this together demonstrates that the military judge
failed to make the findings necessary to properly balance
Appellant’s right to counsel of his choice against the consid-
erations alluded to in Thomas, 22 M.J. at 59, and the de-
mands of the court’s calendar, Gonzalez-Lopez, 548 U.S. at
152. More is needed before an accused can be deprived of
this fundamental right.
Conclusion
The military judge erred by neither considering nor con-
ducting the proper balance of Appellant’s right to choice of
counsel against other important considerations. The conse-
quence is an abuse of discretion. The decision of the United
States Navy-Marine Corps Court of Criminal Appeals is re-
versed. The findings and sentence are set aside. The record
of trial is returned to the Judge Advocate General of the Na-
vy for submission to an appropriate convening authority. A
rehearing may be authorized.
11
United States v. Watkins, No. 19-0376/MC
Judge MAGGS, dissenting.
The military judge did not abuse his discretion when he
denied civilian defense counsel’s application to withdraw.
The military judge also did not abuse his discretion when he
declined to grant a continuance so that Appellant could sub-
stitute civilian defense counsel. Accordingly, I would answer
the assigned issues in the negative and would affirm the
judgment of the United States Navy-Marine Corps Court of
Criminal Appeals (NMCCA). I therefore respectfully dissent.
I. Assigned Issues II and III
I address assigned Issues II and III first.1 Appellant con-
tends that the military judge erred in denying his motion to
hire substitute civilian defense counsel because the Sixth
Amendment guarantees the accused the right to counsel of
his choice. I disagree. The military judge properly recognized
that while an accused has the right to choose his counsel,
“the accused’s ability to do so may be circumscribed . . . if the
accused is simply using the opportunity to impede the inves-
tigation or trial of the charges.” The military judge’s findings
of fact establish that is what happened here.
1 Assigned Issue II is:
The Sixth Amendment guarantees an accused the
right to retain counsel of his own choosing. Before
trial, and after his civilian counsel moved to with-
draw—citing a perceived conflict of interest—
Appellant asked to release his civilian counsel and
hire a different counsel. Did the military judge err
by denying this request?
Assigned Issue III is closely related:
Did the lower court err in ratifying the military
judge’s denial of Appellant’s request for conflict-free
counsel, where it: (a) found the request was in “bad
faith,” based on alleged misbehavior by Appellant
occurring before the [regional trial counsel’s] unex-
pected threats; and, (b) treated the military judge’s
finding that Appellant’s request for counsel was
“opportunistic,” as a finding of fact instead of a con-
clusion of law?
United States v. Watkins, 19-0376/MC
Judge MAGGS, dissenting
A. Background
On the first day scheduled for the trial, in accordance
with Rule for Courts-Martial (R.C.M.) 901(d)(4)(E), the mili-
tary judge asked Appellant to identify the counsel by whom
he wished to be represented. Appellant answered that he
wanted to be represented by his two detailed military de-
fense counsel, and added “and I have another attorney that I
would like to bring onboard.” The military judge responded
that Appellant had previously hired Mr. Bruce White to
serve as his civilian defense counsel and asked Appellant
whether he “wish[ed] to continue to retain the services of
Mr. White.” Appellant said that it was not his wish to do so.
Trial counsel responded by recognizing that Appellant
has a right to counsel of his choice but expressed concern
about delaying the trial. Trial counsel said:
If [Appellant] wishes to discharge his retained civil-
ian counsel, that is obviously within his right.
However, the government is prepared to begin trial
tomorrow with members and presentation of evi-
dence; and simply because the accused has a desire
to no longer utilize the services of Mr. White does
not change that. The government has gone to great
extents and lengths and expense to make all of the
arrangements necessary to begin trial.
The military judge then asked counsel for both sides if they
would like an opportunity to research and brief the issue of
severing Mr. White. Trial counsel answered:
Your Honor, the government’s interest in that re-
gard is maintaining the current trial dates. So only
if—and I don’t even know if that relief is being re-
quested—if any type of continuance or leave to pur-
sue another civilian counsel has been requested. So
in that regard, the government is interested in re-
searching and briefing the issue only if our current
trial dates are in jeopardy.
Trial counsel’s statements show there was no dispute that
Appellant had a right to discharge Mr. White or to hire an-
other civilian defense counsel if he so desired. The disa-
greement instead was about whether the military judge
should grant a continuance to allow Appellant to find a dif-
ferent attorney.
2
United States v. Watkins, 19-0376/MC
Judge MAGGS, dissenting
The military judge saw insufficient grounds for granting
a continuance and therefore denied Appellant’s motion. The
military judge explained:
The history of this case involves several continu-
ances; and with the accused being released from
pretrial confinement and then being placed back in
pretrial confinement months later. The history of
this case entails significant difficulty in securing
the presence of [witnesses] Mrs. Salome Watkins
and C.K.W.
In considering the totality of the circumstances, I
consider those difficulties in the context of the
Google searches on the accused’s phone regarding
obstruction of justice, avoiding subpoenas, and the
status of the extradition agreements of various
countries, particularly, in light of Mrs. Watkins’
status as an immigrant who still has significant in-
ternational family ties. The Court is not convinced
these witnesses will be available if this case were to
be continued.
In addition to these concerns, the military judge also
found that Appellant’s request to replace Mr. White with
new counsel was an insincere ploy made for the purpose of
delaying the trial. In his written findings of fact, the mili-
tary judge stated: “[T]he court finds that the accused’s at-
tempt to terminate his representation by Mr. White on the
morning of the first day of a trial evidences an obvious at-
tempt to further impede the prosecution of the case against
him.” The military judge further found:
While the accused has today, on the eve of trial, ex-
pressed a preference to hire a new civilian counsel
and while Mr. White has expressed a preference for
being released, the justification they offered [is] not
supported by the facts on the record. The Court has
found there is no actual conflict between Mr. White
and the government or Mr. White and his client,
nor do they show an irreconcilable conflict or
breakdown in communication between the accused
and his civilian counsel.
On the contrary, the arguments in support of ex-
cusing Mr. White on these facts strike the Court as
opportunistic.
Emphasis added.
3
United States v. Watkins, 19-0376/MC
Judge MAGGS, dissenting
B. Discussion
This Court held in United States v. Montoya that the ac-
cused has an “unfettered choice to select a civilian counsel at
any time during the trial” but that “the exercise of that right
cannot operate to unreasonably delay the progress of the tri-
al.” 13 M.J. 268, 274 (C.M.A. 1982). In other words, “[a]n ac-
cused can always discharge his attorney, but if he desires to
substitute another attorney for the one discharged, his right
is qualified in ‘that the request for substitution of counsel
cannot impede or unreasonably delay the proceedings.’ ” Id.
(quoting United States v. Jordan, 22 C.M.A. 164, 167, 46
C.M.R. 164, 167 (1973)). Without such a limitation on the
right to select counsel, the accused could delay a trial indefi-
nitely by repeatedly requesting continuances to seek differ-
ent attorneys. Applying the holding of Montoya to this case,
the question before this Court is not whether Appellant had
a right to substitute attorneys (that is, to release Mr. White
and to hire a different counsel), but instead whether the mil-
itary judge abused his discretion in denying a continuance.
In United States v. Miller, this Court identified a number
of factors relevant in determining whether a military judge
abused his or her discretion by denying a continuance to
allow an accused a reasonable opportunity to obtain civilian
counsel. 47 M.J. 352, 358 (C.A.A.F. 1997). These factors
include:
surprise, nature of any evidence involved,
timeliness of the request, substitute testimony or
evidence, availability of witness or evidence
requested, length of continuance, prejudice to
opponent, moving party received prior
continuances, good faith of moving party, use of
reasonable diligence by moving party, possible
impact on verdict, and prior notice.
Id. (quoting F. Gilligan & F. Lederer, Court–Martial Proce-
dure § 18–32.00, at 704 (1991) (footnotes omitted)).
I agree with the NMCCA’s extensive and careful analysis
of these factors, and its decision that the military judge did
not abuse his discretion. United States v. Watkins, No.
NMCCA 201700246, 2019 CCA LEXIS 71, at *24–32, 2019
WL 937192, *9–10 (N-M. Ct. Crim. App. Feb. 21, 2019). I es-
pecially approve of the NMCCA’s view that the most signifi-
4
United States v. Watkins, 19-0376/MC
Judge MAGGS, dissenting
cant Miller factor in this case was Appellant’s lack of good
faith. Id. at *32, 2019 WL 937192, at *11. As described
above, the military judge found that Appellant’s request to
substitute counsel was “opportunistic,” meaning that Appel-
lant did not make the request in good faith. I believe the
NMCCA properly treated this determination as a finding of
fact. See United States v. Palmer, 59 M.J. 362, 365 (C.A.A.F.
2004) (subjecting a hearing officer’s finding that the accused
did not act in good faith to clear error review); United States
v. Mitchell, 777 F.2d 248, 257 (5th Cir. 1985) (treating a dis-
trict court’s conclusion that a continuance for the purpose of
hiring counsel was requested “in bad faith and for the pur-
pose of delay” as a finding of fact). This Court is bound by
this finding of fact unless it is clearly erroneous. Palmer, 59
M.J. at 365. Here, I agree with the NMCCA that the mili-
tary judge’s finding of fact on this point was not clearly er-
roneous. I therefore would answer assigned Issue III in the
negative.
In my view, once the military judge determined that
Appellant’s request was not made in good faith, little further
inquiry into whether to grant a continuance was required.
The military judge could choose not to address other Miller
factors, including the possible length of a continuance or the
demands of the court’s calendar in denying a continuance,
on grounds that no length of continuance is warranted for a
request made in bad faith. This Court did not hold in Miller
that a military judge must consider and expressly weigh
each of the listed factors. Such a requirement would be
highly burdensome, often unnecessary, and inconsistent
with other precedent. See, e.g., United States v. Kinard, 21
C.M.A. 300, 306, 45 C.M.R. 74, 80 (1972) (holding that the
military judge did not abuse his discretion in not granting a
continuance for hiring new counsel based on a few key
factors, namely, “appellant’s precipitate and frequent
discharge of appointed counsel, his refusal to accept
assistance in obtaining civilian counsel, and his inability to
relate some time limit for the continuance”). The military
judge’s finding with respect to good faith, his concerns about
the availability of witnesses (even if these concerns might
have been mitigated), and the record of prior continuances
provided an ample basis for the military judge’s decision,
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United States v. Watkins, 19-0376/MC
Judge MAGGS, dissenting
from which it follows that he did not abuse his discretion in
denying the continuance. I therefore would resolve assigned
Issue II in the negative.
II. Civilian Defense Counsel’s Motion to Withdraw
Addressing assigned Issue I,2 Appellant argues that
threats by the regional trial counsel and a regional trial in-
vestigator towards Mr. White created a conflict of interest.
Appellant further contends that, in the light of this conflict
of interest, the military judge erred in denying Mr. White’s
request to withdraw. I disagree.
R.C.M. 506(c) provides, in relevant part, that “defense
counsel may be excused only with the express consent of the
accused, or by the military judge upon application for with-
drawal by the defense counsel for good cause shown.” In my
view, the military judge did not abuse his discretion in deny-
ing Mr. White’s application to withdraw under this rule be-
cause Mr. White did not contend that the Appellant had ex-
pressly consented to his withdrawal and because Mr. White
did not show good cause for withdrawal.
A. Express Consent
The NMCCA concluded that the military judge erred in
not allowing Mr. White to withdraw under R.C.M. 506(c) be-
cause Mr. White had Appellant’s “express consent” to with-
draw. Watkins, 2019 CCA LEXIS 71, at *19, 2019 WL
937192, at *6. The NMCCA further asserted that the Gov-
ernment had conceded that not allowing Mr. White to with-
draw on this ground was error. Id. at *19, 2019 WL 937192,
at *6. The NMCCA, however, determined that the error was
harmless because Mr. White could not identify any way in
2 Assigned Issue I is:
A conflict of interest exists where the interests of
an attorney and defendant diverge on a material
factual or legal issue, or a course of action. Threats
by regional trial counsel and a regional trial inves-
tigator towards civilian defense counsel created a
conflict of interest between civilian counsel and
Appellant. Did the military judge err in denying ci-
vilian counsel’s motion to withdraw?
6
United States v. Watkins, 19-0376/MC
Judge MAGGS, dissenting
which his representation prejudiced Appellant. The NMCCA
therefore denied relief. Id. at *19–23, 2019 WL 937192, at
*7–8.
Although I agree with the NMCCA’s conclusion that Ap-
pellant is not entitled to relief under R.C.M. 506(c), I disa-
gree with the NMCCA’s reasoning. A review of the record
reveals that when Mr. White applied for permission to with-
draw, he never argued that he should be allowed to with-
draw because Appellant had consented to his withdrawal.
Instead, what Mr. White argued was only that he had good
cause to withdraw because he had a conflict of interest.
Perhaps Mr. White did not argue that Appellant had
consented to withdraw because that argument would have
been unsuccessful. As discussed above, Appellant did not de-
sire simply to discharge Mr. White. Instead, as the military
judge correctly understood, Appellant was moving to substi-
tute a new attorney for Mr. White, which was a different
kind of action governed not by R.C.M. 506(c) but instead by
the rule expressed in Montoya that a substitution of counsel
cannot impede or unreasonably delay the proceedings. The
record does not support the proposition that Appellant gave
“express consent” to Mr. White to withdraw if Appellant
could not hire new civilian counsel.
In addition, the record does not support the NMCCA’s
assertion that the Government conceded that the military
judge violated R.C.M. 506(c) by not allowing Mr. White to
withdraw based on Appellant’s consent. The NMCCA cited
nothing to back up its determination that the issue was con-
ceded, and before this Court Appellant does not argue that it
was conceded. Accordingly, the only issue under this rule is
whether Mr. White showed good cause to withdraw.
B. Good Cause
Mr. White argued that he had good cause to withdraw
because he had a conflict of interest. Mr. White explained
that if he was somehow suspected of assisting in obstruction
of witnesses, he would be tempted to defend himself even
though the temptation might prejudice his client. After a
thorough consideration of the issue, the military judge disa-
greed. The military judge ruled that Mr. White did not have
an actual conflict of interest, and therefore concluded that
7
United States v. Watkins, 19-0376/MC
Judge MAGGS, dissenting
Mr. White had not shown good cause to withdraw under
R.C.M. 506(c).
Whether a conflict of interest exists and what effect any
conflict of interest has are questions that involve issues of
both fact and law. See United States v. Best, 61 M.J. 376, 381
(C.A.A.F. 2005). In addressing such questions, this Court
must accept findings of fact by the military judge unless
they are clearly erroneous. Id. In this case, the military
judge made the following finding of fact:
[T]he court finds there are no grounds for Mr.
White to believe that his representation of SSgt
Watkins in this case would be negatively [a]ffected
by his suspicion that the government might take
adverse action against him, since those suspicions
were shown to be unfounded and speculative in na-
ture. Accordingly, the court finds that there is not
good cause to permit Mr. White to withdraw from
his representation of the accused in this case.
This finding of fact by the military judge is not clearly
erroneous because it was supported by the testimony of the
regional trial counsel and the lead Naval Criminal Investi-
gative Services (NCIS) agent. In response to questions posed
by the military judge, the regional trial counsel testified that
he had no evidence that Mr. White “engaged in misconduct,”
“was complicit in any . . . misconduct,” or “engaged in uneth-
ical behavior.” He further testified that he was not “current-
ly pursuing or contemplating any effort to report Mr. White
to either of the state bars of which he is a member” or oth-
erwise pursuing criminal action against him. The lead NCIS
agent testified similarly.
Given this finding of fact, I agree with the military
judge’s conclusion that Mr. White did not have an actual
conflict of interest. For such a conflict to have existed in this
case, there must have been a “significant risk” that Mr.
White’s representation of Appellant could have been “mate-
rially limited by . . . a personal interest.” Dep’t of the Navy,
Instr. 5803.IE, Professional Conduct of Attorneys Practicing
Under the Cognizance and Supervision of the Judge Advo-
cate General Rule 1.7.a.(2), Encl. (1), at 39 (Jan. 20, 2015).
Because the military judge found that there was no intent
for adverse actions against Mr. White regarding any possible
8
United States v. Watkins, 19-0376/MC
Judge MAGGS, dissenting
involvement in the obstruction of justice charge, he did not
have a personal interest that posed a significant risk of ma-
terially limiting his representation of Appellant.
Appellant argues that this conclusion does not end the
inquiry because even when no actual conflict of interest ex-
ists, an attorney still might subjectively perceive the exist-
ence of a conflict. He asserts this perception potentially may
harm the attorney’s client. I agree with this point. As then-
Judge Sonia Sotomayor explained in Tueros v. Greiner: “Alt-
hough lacking an objective counterpart, a heartfelt belief on
the part of counsel that she owes a duty [to a person other
than the client] can wreak the same havoc on an effective
defense whether she is correct or mistaken in that belief.”
343 F.3d 587, 595 (2d Cir. 2003).
But a subjective belief that a conflict exists does not pre-
sent the kind of structural problem that an actual conflict
presents. As then-Judge Sotomayor further explained: “A
purely subjective conflict is . . . an attorney’s individual
shortcoming, flowing from an incorrect assessment of the
situation . . . . Purely subjective conflicts are, in fact, no
more than a polite way of saying personal mistakes.” Id. at
597. To be sure, a lawyer’s mistake about the existence of a
conflict could provide good cause if the mistake would ad-
versely affect the attorney’s representation. But following
thorough questioning of Mr. White, the military judge could
identify no such adverse effects in this case. The military
judge concluded: “When asked to articulate a specific man-
ner in which his representation of SSgt Watkins would be
diminished in this case, Mr. White was not able to cite any
actual situations that could arise where he would be unable
to provide effective and zealous representation for the ac-
cused.” The record confirms this conclusion. In addition,
while the Supreme Court in Holloway v. Arkansas noted
that an attorney is often in the best position to determine
whether a conflict exists, it did not remove the trial judge’s
authority to investigate and make the final determination.
435 U.S. 475, 485–87 (1978) (stating that the trial judge has
the ability to deal with counsel making motions for “dilatory
purposes” and to “explor[e] the adequacy of the basis of de-
fense counsel’s representations”). I therefore would hold that
9
United States v. Watkins, 19-0376/MC
Judge MAGGS, dissenting
the military judge did not abuse his discretion in denying
Mr. White’s request to withdraw.
III. Conclusion
For these reasons, I would affirm the judgment of the
NMCCA.
10