United States v. Gilmet ( 2023 )

This opinion is subject to revision before publication.
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Eric S. GILMET, Chief Hospital Corpsman
United States Navy, Appellant
No. 23-0010
Crim. App. No. 202200061
Argued April 18, 2023—Decided August 3, 2023
Military Judge: Hayes C. Larsen
For Appellant: Lieutenant Commander Kristen R. Brad-
ley, JAGC, USN (argued); Lieutenant Megan E. Horst,
JAGC, USN.
For Appellee: Captain Tyler W. Blair, USMC (argued);
Colonel Joseph M. Jennings, USMC, Lieutenant Gregory
A. Rustico, JAGC, USN, and Brian K. Keller, Esq.
Amici Curiae for Appellant: Colonel Michael C. Friess,
USAR, Colonel Jefferson E. McBride, USAF, Major David
L. Bosner, USAF, Captain Samantha P. Golseth, USAF,
Captain James C. Griffin, USAR, and Captain Justin L.
Watkins, USAR (on behalf of the United States Army De-
fense Appellate Division and the United States Air Force
Defense Appellate Division).
Amicus Curiae for Appellant: Philip D. Cave, Esq., Eu-
gene R. Fidell, Esq., Brenner M. Fissell, Esq., Jason S.
Grover, Esq., and Franklin D. Rosenblatt, Esq. (on behalf
of the National Institute for Military Justice).
Judge HARDY delivered the opinion of the Court, in
which Chief Judge OHLSON, Judge MAGGS, Judge
JOHNSON, and Senior Judge STUCKY joined.
_______________
United States v. Gilmet, No. 23-0010/NA
Opinion of the Court
Judge HARDY delivered the opinion of the Court.
On November 18, 2021, Colonel (Col) Shaw, who over-
saw the slating and assignment process for all Marine
Corps judge advocates (JAGs), held a meeting with Camp
Lejeune’s Defense Services Office. Appellant’s individual
military counsel, Captain (Capt) Thomas, was in attend-
ance. In response to a question from Capt Thomas, Col
Shaw made statements that caused Capt Thomas to be-
lieve his military career would be in jeopardy if he contin-
ued to represent Appellant. As a result, both Capt Thomas
and Appellant no longer believed that Capt Thomas could
adequately represent Appellant due to a conflict of interest.
On December 10, 2021, Appellant filed a motion to dis-
miss the charges against him for unlawful command influ-
ence (UCI), alleging that Col Shaw’s statements impermis-
sibly interfered with his right to counsel. The military
judge agreed and dismissed all charges and specifications
with prejudice. The Government filed an interlocutory ap-
peal under Article 62, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 862 (2018). The United States Navy-
Marine Corps Court of Criminal Appeals (NMCCA) re-
versed the military judge and Appellant appealed to this
Court.
Because the Government’s curative measures failed to
address the damage Col Shaw’s statements inflicted on Ap-
pellant’s relationship with his military counsel, we con-
clude that the Government failed to meet its burden of
proving beyond a reasonable doubt that UCI would not af-
fect the proceedings. We correspondingly find that Appel-
lant was prejudiced as a result of the violation of his Arti-
cle 38(b) right to counsel. 1 Accordingly, we reverse the
1 See 10 U.S.C. § 838(b) (2018) (granting courts-martial de-
fendants the right to detailed military defense counsel or to mil-
itary counsel of their own selection if that counsel is reasonably
available).
2
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Opinion of the Court
decision of the NMCCA and reinstate the military judge’s
decision to dismiss the case with prejudice. 2
I. Background
The Government charged Appellant with violating a
lawful order, involuntary manslaughter, negligent homi-
cide, and obstructing justice in violation of Articles 92, 119,
134, and 131b, UCMJ, 10 U.S.C. §§ 892, 919, 934, 931b
(2018). Appellant retained civilian defense counsel in Jan-
uary 2019. Appellant further requested that Capt Thomas
be assigned as his individual military counsel in March
2020. His request was approved, and Capt Thomas was de-
tailed as individual military counsel. Capt Riley was de-
tailed as Appellant’s second military counsel.
A. Col Shaw’s Meeting with Camp Lejeune’s
Defense Services Office
During his November 18, 2021, meeting at Camp
Lejeune, North Carolina, with the Marine Corps JAGs, Col
Shaw explained the impending creation of a new billet in
which a senior judge advocate, as opposed to a convening
authority, would be the referral authority for certain
crimes. In response to the explanation of the new billet,
Capt Thomas asked what would be done to protect the at-
torney acting as a convening authority from outside influ-
ences. To illustrate his point, Capt Thomas referenced the
existing measures that protect defense counsel from simi-
lar pressures.
In response, Col Shaw stated that defense attorneys
“may think they are shielded, but they are not protected.”
He continued, “[y]ou think you are protected but that is a
legal fiction,” or words to that effect. Col Shaw then
squared his shoulders to Capt Thomas and said “Capt
Thomas, I know who you are and what cases you are on,
2 Because we afford Appellant relief based on actual UCI, we
need not determine whether Col Shaw’s statements placed an
intolerable strain on the public’s perception of the military jus-
tice system or how recent amendments to Article 37, UCMJ, 10
U.S.C. § 837 (Supp. I 2019-2020), affect this Court’s apparent
UCI jurisprudence.
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Opinion of the Court
and you are not protected.” Finally, Col Shaw alluded to
the fact that the Marine Corps JAG community is small
and that superiors sitting on promotion boards will know
what “you did.” To illustrate his point, Col Shaw referenced
judge advocates who had served as defense counsel for ex-
tended periods of time who, in his view, should have been
promoted but were not.
Following the meeting, Capt Thomas believed that
continuing to represent Appellant would put his military
career in jeopardy. Although Capt Riley was not at the
meeting, after hearing about what Col Shaw said, he also
believed that he could no longer zealously represent
Appellant without putting his career in jeopardy. Capt
Thomas and Capt Riley shared their concerns with
Appellant, which caused him to doubt their loyalty to him
and his defense.
B. Appellant’s Motion to Dismiss for
Actual and Apparent UCI
On December 10, 2021, Appellant filed a motion to dis-
miss for actual and apparent UCI in which he alleged Col
Shaw’s statements prejudiced his attorney-client relation-
ship with Capt Thomas. Specifically, Appellant asserted
that Col Shaw’s statements created a conflict of interest
between Appellant and Capt Thomas whereby Capt
Thomas had to “choose between potential billet assign-
ments and promotion opportunities . . . and zealously rep-
resenting [Appellant].”
The Government responded by arguing that Appellant
failed to show some evidence of UCI and that, even if he
did, the Government met its burden of proving that Col
Shaw’s statements would not affect the proceedings. In
support of its argument, the Government pointed to several
facts that, in its view, demonstrated that Col Shaw’s com-
ments would not affect the proceedings.
The Government first noted two curative measures the
Marine Corps took in response to Col Shaw’s inappropriate
remarks. First, Major General (Maj Gen) Bligh, the Staff
Judge Advocate to the Commandant of the Marine Corps,
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Opinion of the Court
issued an affidavit stating that the Marine Corps does not
punish JAGs who serve in defense billets. And second, that
he permanently removed Col Shaw from his role overseeing
the slating process for Marine Corps JAGs. The Govern-
ment also pointed out three reasons why it believed that
Capt Thomas and Capt Riley’s fears about their careers
were unreasonable. The Government noted that: (1) there
are “substantially high percentages of O-5’s and O-6’s” who
have served in defense billets; (2) several members of the
Manpower Management Division and the Judge Advocate
Division submitted affidavits describing the promotion and
assignment process that indicated that service in defense
billets does not adversely affect the careers of JAGs; and
(3) Capt Thomas had been selected for a prestigious assign-
ment for his next billet notwithstanding his service as a
defense counsel.
C. The Article 39(a) Session
On December 21, 2021, the military judge held an Arti-
cle 39(a) 3 session to litigate Appellant’s motion to dismiss
and to determine whether Appellant or his military counsel
wished to sever the attorney-client relationship as a result
of the alleged conflict of interest. The military judge began
the Article 39(a) session by finding that Appellant met his
burden of presenting some evidence of UCI, thus shifting
the burden to the Government to prove that the UCI would
not affect the proceedings.
Then, before allowing the Government to present its
argument on whether the UCI would affect the
proceedings, the military judge addressed the alleged
conflict of interest between Appellant and his military
counsel. He asked both Capt Thomas and Capt Riley
whether they believed that a conflict still existed
regardless of the remedial actions taken by Maj Gen Bligh.
3 See 10 U.S.C. § 839(a) (2018) (authorizing the military
judge to hold proceedings outside the presence of the members
for certain purposes).
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Opinion of the Court
Both stated that they did, and both affirmed their desire to
withdraw from Appellant’s case.
Following his colloquy with defense counsel, the mili-
tary judge informed Appellant of his right to be repre-
sented by conflict-free counsel. He further explained that
Capt Thomas and Capt Riley could only be excused either
with Appellant’s consent or based on their motion to with-
draw for good cause shown. After taking a short recess to
allow Appellant to consult with conflict-free counsel, Ap-
pellant reluctantly consented to the withdrawal. As a re-
sult, the military judge granted Capt Thomas’s and Capt
Riley’s motions to withdraw and excused them before liti-
gating the remainder of the UCI issue. To allow the parties
additional time to research and brief the UCI issue, the
military judge concluded the Article 39(a) session and con-
tinued it a month later on January 20, 2022.
D. The Military Judge’s Order
On February 9, 2022, the military judge granted Appel-
lant’s motion and dismissed all charges and specifications
with prejudice. He explained that Col Shaw’s actions con-
stituted actual and apparent UCI, creating an “intolerable
tension and conflict between [Appellant] and his specifi-
cally requested military counsel.” He further found that the
Government’s curative measures failed to prove beyond a
reasonable doubt that the UCI would not affect the pro-
ceedings. Finally, the military judge held that Col Shaw’s
actions materially prejudiced Appellant’s right to counsel
and concluded, after considering a variety of remedies, that
dismissal with prejudice was the only appropriate relief.
The Government appealed the military judge’s order to
the NMCCA which reversed and remanded. Appellant ap-
pealed the NMCCA’s decision, and we granted review of
the following issue:
Whether the military judge erred when he found
the Government failed to prove that unlawful
command influence (1) would not affect the pro-
ceedings beyond a reasonable doubt, and (2) has
not placed an intolerable strain on the public’s
perception of the military justice system?
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United States v. Gilmet, 83 M.J. 251 (C.A.A.F. 2023) (order
granting review).
II. Discussion
This Court reviews allegations of UCI de novo. United
States v. Barry, 78 M.J. 70, 77 (C.A.A.F. 2018). We accept
as true the military judge’s findings of fact on a motion to
dismiss for UCI unless those findings are clearly errone-
ous. United States v. Proctor, 81 M.J. 250, 255 (C.A.A.F.
2021) (citing United States v. Stirewalt, 60 M.J. 297, 300
(C.A.A.F. 2004)).
Article 37(a)(3), UCMJ, prohibits, in relevant part, any
person subject to the UCMJ from “attempt[ing] to coerce,
or, by any unauthorized means, attempt[ing] to influence
the action of a court-martial.” 10 U.S.C. § 837(a)(3) (Supp. I
2019-2020). To establish a prima facie claim of actual UCI,
the accused bears the burden of presenting “some evidence”
of UCI—facts that if true, would constitute UCI. United
States v. Biagase, 50 M.J. 143, 150 (C.A.A.F. 1999)
(internal quotation marks omitted) (citation omitted).
Although this initial burden is low, the accused must
present more than mere allegations or speculation. Id.Once the accused satisfies his burden, the burden shifts to
the Government to prove beyond a reasonable doubt that
the UCI will not affect the proceedings. 4 Id. at 150-51.
A. Some Evidence
Prior to the Article 39(a) session, Appellant presented
evidence, in the form of affidavits, establishing what Col
Shaw said at the November 18, 2021, meeting with Camp
Lejeune’s Defense Services Office. The Government did not
contest the factual accuracy of Appellant’s representations
of Col Shaw’s statements, and it later conceded before the
lower court that Col Shaw’s statements constituted “some
4 In the alternative, the Government can also disprove the
predicate facts upon which the UCI allegation is based or per-
suade the Court that the facts do not constitute UCI. Biagase,
50 M.J. at 151. Neither of these methods of rebutting the ac-
cused’s prima facie case is at issue here.
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evidence” of UCI. Brief for Appellant at 40 n.3, United
States v. Gilmet, No. 202200061 (N-M. Ct. Crim. App. May
31, 2022). We agree with both parties that Appellant met
his burden of presenting “some evidence” of UCI. We there-
fore move on to whether the Government met its burden of
proving beyond a reasonable doubt that Col Shaw’s state-
ments would not affect the proceedings.
B. The UCI’s Effect on the Proceedings
The Government asserts that Appellant is not entitled
to relief for two reasons. First, the Government argues that
the military judge erred because, by excusing counsel
before it could put on argument regarding its curative
measures, he circumvented this Court’s established UCI
framework. Second, the Government claims that
notwithstanding the order in which the military judge
addressed the motions, it still met its burden because of the
alleged falsity of Col Shaw’s statements and the curative
measures that the Marine Corps took after Col Shaw made
his inappropriate comments. 5 We find both arguments
unpersuasive.
Rule for Courts-Martial (R.C.M.) 801(a)(3) (2019 ed.)
grants military judges the authority to “exercise reasona-
ble control over the proceedings.” This authority includes
control over “when, and in what order, motions will be liti-
gated.” R.C.M. 801(a)(3) Discussion. At the Article 39(a)
session in which Appellant’s motion to dismiss was liti-
gated, the military judge began by addressing the per-
ceived conflict of interest between Appellant and his mili-
tary counsel. The reason, he explained, was to determine
whether the curative measures that the Government intro-
duced in its response to the motion to dismiss mooted the
conflict issue. Appellant’s counsel stated that,
5 We note that the Government characterizes this second ar-
gument broadly as “curative measures.” Because we do not agree
that the facts presented by the Government to establish the fal-
sity of Col Shaw’s statements qualify as curative measures, we
distinguish between those facts and the actions taken by the Ma-
rine Corps in response to Col Shaw’s statements.
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Opinion of the Court
notwithstanding the Marine Corps’s response to Col
Shaw’s UCI—and after consulting the rules of professional
responsibility, their state bar licensing authorities, and
their supervisory attorney—they still believed that a con-
flict existed. In light of the continuing conflict, the military
judge informed Appellant of his right to be represented by
conflict-free counsel, which ultimately led to Appellant’s
consent to the withdrawal of his military counsel.
Contrary to the Government’s claim that the military
judge circumvented this Court’s established UCI frame-
work, we interpret the military judge’s decision to address
the conflict-of-interest issue at the outset as an attempt to
determine to what extent the UCI infected the proceedings.
Once he learned that Appellant’s military counsel still be-
lieved a conflict existed, it was within the military judge’s
discretion under R.C.M. 801(a)(3) to explore the conflict is-
sue to ensure that the proceedings did not continue until
Appellant obtained conflict-free counsel or consented to be-
ing represented by conflicted counsel. See United States v.
Murphy, 50 M.J. 4, 10 (C.A.A.F. 1998) (noting that military
judges have “a sua sponte duty to resolve conflict questions
on the record”). Although the military judge’s inquiry con-
cluded with the withdrawal of Appellant’s military counsel,
he did not abuse his discretion by fully resolving the con-
flict-of-interest issue before hearing argument from the
Government regarding whether it met its burden with re-
spect to the UCI.
We now turn to the Government’s attempt to demon-
strate that the UCI would not affect the proceedings and
hold that the Government failed to meet its burden. At trial
and before this Court, the Government pointed to the fol-
lowing facts to prove that the UCI would not taint the pro-
ceedings: (1) Maj Gen Bligh’s affidavit; (2) Col Shaw’s sus-
pension and permanent removal from the slating process
for Marine Corps JAGs; and (3) several facts that suppos-
edly undermine Capt Thomas and Capt Riley’s concerns.
All of this evidence, however, focused primarily on demon-
strating either the apparent falsity of Col Shaw’s state-
ments or the alleged unreasonableness of Appellant’s
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Opinion of the Court
counsels’ fears. It did nothing to address the damage that
Col Shaw’s statements had on Appellant’s relationship
with his military counsel.
1. Maj Gen Bligh’s Affidavit
Maj Gen Bligh’s affidavit—which we characterize
broadly as the command’s attempt to remedy the UCI—
asserted that “service as a defense counsel is vital to overall
mission success, and will in no way be detrimental to an
individual’s career.” This generic response to the miscon-
duct of a senior officer does not approach the type of cura-
tive measures from the command that this Court has found
sufficient in the past.
For example, in United States v. Rivers, we held that
the command’s remedial measures sufficiently cured the
UCI. 49 M.J. 434, 443 (C.A.A.F. 1998). In that case, the ap-
pellant, who was convicted of drug-related offenses, alleged
multiple instances of UCI. As relevant here, he alleged that
his battery commander, Capt Gillroy, prevented witnesses
from testifying on his behalf by discouraging fellow soldiers
from associating with those involved with drugs. Id. at 440.
In response, the government took a variety of corrective ac-
tions. Most notably, Capt Gillroy convened another battery
meeting at which he “retracted his prior remarks, apolo-
gized for having overstepped proper legal bounds, and as-
sured his soldiers that no adverse consequences would be-
fall any soldier who testified as a witness for an alleged
offender.” Id. Capt Gillroy’s battalion commander and the
division artillery commander attended the meeting—which
was recorded for any soldier who could not attend—and
personally reinforced Capt Gillroy’s comments. Id. At trial,
the military judge found that notwithstanding Capt Gill-
roy’s inappropriate comments, “ ‘no person . . . who ha[d]
been identified as a potential witness ha[d] refused to tes-
tify for the accused.’ ” Id. at 441 (alterations in original).
Here, unlike in Rivers, the command failed to take the
necessary steps to purge the effects of the UCI from Appel-
lant’s trial. First, there is no reason to believe that Maj Gen
Bligh’s affidavit would be seen by those present at Col
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Opinion of the Court
Shaw’s meeting. It was not produced until after Appellant
filed his motion to dismiss and nothing in the record sug-
gests that it was published or distributed to anyone at
Camp Lejeune. The record gives no indication that the af-
fidavit was anything more than a litigation tactic produced
in response to ongoing legal proceedings rather than an af-
firmative attempt to ensure that the military defense coun-
sel affected by Col Shaw’s statements were made aware of
the command’s disapproval. This stands in stark contrast
to the actions of the command in Rivers, which ensured
that every person who was present for Capt Gillroy’s inap-
propriate comments could hear—either in person or
through a recording—his retraction and apology.
Second, Col Shaw failed to take responsibility for his
own actions in response to his inappropriate remarks, and
Maj Gen Bligh failed to admonish him. In a signed affida-
vit, Col Shaw claimed that he did not know Capt Thomas,
nor did he recall speaking to him. This statement was later
contradicted by evidence that Col Shaw had texted another
officer about Capt Thomas and that he had requested in-
formation about Capt Thomas’s billet consideration. Fur-
ther, there is no evidence to suggest that Col Shaw volun-
teered to clarify his remarks to those present at the
meeting. There is similarly no evidence that Maj Gen
Bligh, or any of Col Shaw’s other superior officers, encour-
aged him to do so. Instead, Maj Gen Bligh merely stated
that “[Col] Shaw’s alleged comments do not reflect his
views or guidance.”
Unlike in Rivers, where the perpetrator of the UCI
personally disavowed the inappropriate remarks, here, Col
Shaw denied that his remarks were inappropriate and
dismissed concerns over his actions as “purely [a]
misunderstanding and speculative at best.” Col Shaw’s
response to his misconduct did nothing to mitigate the
effect of his comments on Appellant’s relationship with his
military counsel. If anything, Col Shaw’s actions undercut
the Government’s attempt to meet its burden rather than
support it.
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Third, we cannot ignore the findings of the military
judge. In Rivers, the military judge noted that every poten-
tial witness who could have refused to testify because of
Capt Gillroy’s comments opted to testify. But here, the mil-
itary judge found that both the relevant people who could
have been negatively impacted by Col Shaw’s statements—
Capt Thomas and Capt Riley—were. As discussed further
below, this finding is supported by the record and is not
clearly erroneous. See infra Part II.C.
2. Col Shaw’s Removal from the Slating Process
The Government’s assertion that the removal of Col
Shaw from the slating process for Marine Corps JAGs
mooted any conflict between Appellant and his military
counsel also misses the mark. Col Shaw never intimated
that he would personally derail the careers of military
defense counsel. Rather, he described a pervasive mindset
throughout the Marine Corps JAG community that causes
defense counsels’ careers to stall out because of their
service in defense billets. Removing Col Shaw from his
position did nothing to cure the perception that other
Marine Corps officers would punish military defense
counsel in the promotion process. As a result, it also failed
to assuage any concerns that Appellant or his counsel had
about their ability to zealously advocate for Appellant at
trial without fear of repercussions.
3. Facts That Allegedly Undermine
Capt Thomas’s and Capt Riley’s Fears
In addition to the active measures the Marine Corps
took to cure the UCI, the Government also points to three
facts that—at least in the Government’s view—demon-
strate that Capt Thomas and Capt Riley’s concerns about
any conflict of interest were unfounded. First, the Govern-
ment notes that there are “substantially high percentages
of O-5’s and O-6’s” in the Marine Corps JAG community
who have served in defense billets. Second, the Govern-
ment argues that several affidavits submitted by members
of the Manpower Management Division and the Judge Ad-
vocate Division describing the assignment and promotion
process indicated that there are no adverse consequences
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from spending time in a defense billet. And finally, the Gov-
ernment notes that—despite his service as a defense coun-
sel—Capt Thomas was selected for a prestigious and com-
petitive billet.
This part of the Government’s argument is perplexing.
Capt Thomas and Capt Riley expressly stated to the mili-
tary judge that despite the curative measures taken by
their command, they still believed that a conflict existed.
This was not just a reflection of their own personal feelings,
but was an informed view based on their consultation of
the rules of professional responsibility, their state bar li-
censing authorities, and their supervising attorney. Based
on this, the military judge found that Col Shaw’s remarks
created an “intolerable tension” between Appellant and his
military counsel. Nevertheless, the Government appears to
be arguing that it “cured” the UCI caused by Col Shaw’s
comments because Capt Thomas’s and Capt Riley’s con-
cerns about any conflict of interest were never justified in
the first place.
We do not find this argument persuasive. The first two
facts presented by the Government are so vague as to have
no bearing on this case. They do not address the specific
conflict perceived by Capt Thomas and Capt Riley in any
meaningful way. The third fact, while also unpersuasive,
merits further discussion. In the Government’s view, the
fact that Capt Thomas was selected for the billet through
an “exceptionally competitive process” proved that Capt
Thomas’s service as a defense counsel did not negatively
impact his career. What the Government fails to recognize
is that Capt Thomas’s next billet assignment is in no way
relevant to his relationship with Appellant.
Capt Thomas was selected for the prestigious billet be-
fore Col Shaw’s meeting with Camp Lejeune’s Defense Ser-
vices Office. Although he had already been selected, Capt
Thomas was not aware of his selection prior to Col Shaw’s
meeting. The billet assignment was not announced until
December 16, 2021, six days after Appellant filed the UCI
motion. The Government’s focus on Capt Thomas’s prestig-
ious billet assignment, therefore, did nothing to address
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the rift that had developed between Appellant and Capt
Thomas between the time Col Shaw made his inappropri-
ate remarks and the time that Appellant filed his motion
to dismiss.
Even if Capt Thomas had known about his assignment
before Col Shaw made his statements about defense coun-
sel service, that one-time assignment has little to do with
Capt Thomas’s fear that zealously representing Appel-
lant—and potentially successfully defending him—would
jeopardize future assignments and promotions.
In short, the curative measures and supporting facts on
which the Government relies fail to prove that the Govern-
ment cured the UCI because they are aimed at fixing (or
disproving) the wrong problem. The Government appears
to have introduced the affidavits and testimony from the
command for two reasons: (1) to prove that Col Shaw’s com-
ments were incorrect and unfounded; and (2) to demon-
strate that defense counsels’ belief that they were con-
flicted was unreasonable. But especially considering the
military judge’s finding that there was a conflict of interest,
the Government needed to prove beyond a reasonable
doubt that it had taken sufficient measures to ensure that
that conflict did not affect Appellant’s court-martial. Be-
cause the Government failed to address or remedy the bro-
ken relationship between Appellant and his military de-
fense counsel caused by the UCI, we conclude that the
Government failed to prove beyond a reasonable doubt that
UCI would not affect the proceedings.
C. Violation of Appellant’s Article 38(b) Rights
Congress has granted military accused the right to de-
tailed military counsel, military counsel of choice if reason-
ably available, and civilian counsel of choice at the ac-
cused’s own expense. Article 38(b), UCMJ. Once an
attorney-client relationship has been established, the ac-
cused is “absolutely entitled to retain [that relationship] in
the absence of demonstrated good cause.” United States v.
Baca, 27 M.J. 110, 119 (C.M.A. 1988). When government
actions frustrate the continuation of an established
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attorney-client relationship, this Court has held that the
accused’s Article 38(b) rights were violated as a result.
United States v. Eason, 21 C.M.A. 335, 338-39, 45 C.M.R.
109, 112-13 (1972).
Here, the military judge found that Appellant was pre-
sented with a Hobson’s choice and that he never would
have consented to the withdrawal of his military counsel
but for Col Shaw’s actions. He further found that Col
Shaw’s actions created an “intolerable tension” between
Appellant and his military counsel that required Appellant
to forego their services.
The military judge’s factual findings are supported by
the record. In the affidavit that he submitted to the mili-
tary judge, Appellant explained that his relationship with
Capt Thomas prior to November 2021 was one of “complete
trust.” He described Capt Thomas as “one of the hardest
working and most dedicated people [he had] ever met.” He
went on to note that Capt Thomas “fought for [him] at
every turn” and “made [him] feel that [his] case was the
most important one he had ever handled.” Appellant simi-
larly praised Capt Riley, describing him as an “enthusiastic
and dedicated attorney” for whom he had “developed a
great deal of trust.”
After Col Shaw’s remarks, however, Appellant noticed
that Capt Thomas and Capt Riley’s representation of him
changed. He ultimately concluded that while he wanted
Capt Thomas and Capt Riley to continue representing him,
“the influence from Col Shaw made this impossible.” The
perceived shift in Capt Thomas and Capt Riley’s zealous
representation of Appellant provides sufficient evidence to
support the military judge’s findings that Appellant would
not have consented to release of his military counsel absent
Col Shaw’s statements and that Appellant was required to
forego Capt Thomas’s and Capt Riley’s services as a result.
Accepting the military judge’s findings of fact as true,
we have no choice but to conclude that Appellant’s Arti-
cle 38(b) rights were violated. R.C.M. 505(d)(2)(B) specifies
the only ways in which an established attorney-client
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relationship may be severed. As relevant here, defense
counsel may be excused upon request of the accused or ap-
plication for withdrawal by defense counsel for good cause
shown. R.C.M. 505(d)(2)(B) (referencing R.C.M. 506(c)); see
also R.C.M. 506(c) (explaining that “defense counsel may
be excused only with the express consent of the accused, or
by the military judge upon application for withdrawal by
defense counsel for good cause shown”).
The Government argues that Appellant’s Article 38(b)
rights were not violated because he consented to the with-
drawal of his counsel. We disagree. The military judge, in
our view, properly determined that the Government’s im-
proper interference with Appellant’s established attorney-
client relationship compelled Appellant to choose between
waiving the conflict of interest and waiving his right to con-
tinued representation by his selected counsel. Although an
accused may waive the rights afforded by Article 38(b),
UCMJ, Appellant’s decision to allow his counsel to with-
draw under such pressure is not an “action . . . that can
fairly be construed as a voluntary waiver of the attorney-
client relationship.” United States v. Edwards, 9 M.J. 94,
95 (C.M.A. 1980).
We further hold that the Government’s impropriety ma-
terially prejudiced Appellant’s substantial rights. In Ea-
son, our predecessor Court found prejudice when govern-
ment action severed the appellant’s attorney-client
relationship. 21 C.M.A. at 338, 45 C.M.R. at 112. There, the
appellant committed crimes in Vietnam and established an
attorney-client relationship with Capt Provine. Id. at 335,
45 C.M.R. at 109. When the appellant’s case was trans-
ferred to the United States, the appellant requested that
Capt Provine be transferred so that he could continue his
representation. After the government refused to allow Capt
Provine to leave Vietnam, our predecessor Court found
prejudice because of “the government’s frustration of the
continuance of a proper attorney-client relationship.” Id. at
336, 338, 45 C.M.R. at 110, 112 (citation omitted).
While not all Article 38(b) violations will result in a
finding of prejudice, the character of the government action
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Opinion of the Court
in frustrating an existing attorney-client relationship is an
important consideration when conducting the prejudice
inquiry. See United States v. Hutchins, 69 M.J. 282, 291
(C.A.A.F. 2011) (declining to find prejudice and noting that
“the personnel action leading to the severance . . . resulted
from a request initiated by the assistant defense counsel,
not by the prosecution or the command”). Although the
Government did not actively restrict Capt Thomas and
Capt Riley from representing Appellant, its failure to
address the conflict of interest created by Col Shaw’s
comments prevented Capt Thomas and Capt Riley from
adequately representing Appellant. The result was the
same. The Government prejudiced Appellant’s Article 38
rights by creating the perception in the minds of
Appellant’s defense counsel that their future in the Marine
Corps would be jeopardized if they continued to zealously
advocate for Appellant. See Holloway v. Arkansas, 435 U.S.
475, 486 n.9 (1978) (explaining that “[w]hen a considered
representation regarding a conflict in clients’ interests
comes from an officer of the court, it should be given the
weight commensurate with the grave penalties risked for
misrepresentation”).
As such, we hold that Appellant was prejudiced by Col
Shaw’s improper interference with Appellant’s established
attorney-client relationship.
D. Remedy
At oral argument, the Government argued—for the first
time—that even if Appellant suffered prejudice to a sub-
stantial right, the military judge erred by dismissing Ap-
pellant’s case with prejudice instead of imposing some
lesser remedy. There may be merit to this argument, but
the trouble for the Government is that it never raised it
before doing so before this Court. We decline to entertain
the Government’s untimely argument in this appeal. See,
e.g., United States v. Muwwakkil, 74 M.J. 187, 191-92
(C.A.A.F. 2015) (declining to entertain an argument by the
government that it failed to raise below); Giordenello v.
United States, 357 U.S. 480, 488 (1958) (refusing to
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Opinion of the Court
entertain the government’s belated contentions not raised
in the lower courts).
III. Conclusion
The decision of the United States Navy-Marine Corps
Court of Criminal Appeals is reversed. The military judge
did not err when he found that the Government failed to
prove that UCI would not affect the proceedings beyond a
reasonable doubt. We therefore reinstate his decision to
dismiss the charges and specifications with prejudice.
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