United States v. Scott ( 2020 )

This opinion is subject to administrative correction before final disposition.
Before
CRISFIELD, STEPHENS, and LAWRENCE
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
William J. SCOTT
Staff Sergeant (E-6), U.S. Marine Corps
Appellant
No. 201900076
Decided: 31 August 2020
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judges:
Stephen C. Reyes (arraignment and motion)
Mark D. Sameit (motions and trial)
Sentence adjudged 16 November 2018 by a general court-martial con-
vened at Camp Foster, Okinawa, Japan, consisting of officer and en-
listed members. Sentence in the Entry of Judgment: confinement for 18
months, forfeiture of $1,638.00 per month for 18 months, reduction to
E-1, and a dishonorable discharge.
For Appellant:
Mr. William E. Cassara, Esq.
Lieutenant Michael W. Wester, JAGC, USN
For Appellee:
Major Kyle D. Meeder, USMC
Mr. Brian K. Keller, Esq.
_________________________
United States v. Scott, NMCCA No. 201900076
Opinion of the Court
This opinion does not serve as binding precedent but
may be cited as persuasive authority under
NMCCA Rule of Appellate Procedure 30.2.
_________________________
STEPHENS, Senior Judge:
Appellant was convicted, contrary to his pleas, of two specifications of at-
tempted sexual assault of a child and one specification of attempted sexual
abuse of a child, in violation of Article 80, Uniform Code of Military Justice
[UCMJ]. 1 The military judge merged the two specifications of attempted sexual
assault of a child for findings and sentencing.
Appellant asserts four assignments of error [AOEs], which we have renum-
bered: (1) the evidence is not factually sufficient because the Government did
not prove beyond a reasonable doubt that Appellant was not entrapped; (2) Ap-
pellant received ineffective assistance from his trial defense counsel [TDC]—
his civilian lead defense counsel, Mr. Charlie; 2 and his detailed military de-
fense counsel, Captain [Capt] Lima—and his substitute post-trial military
counsel, Capt Oscar; (3) Capt Lima was improperly excused at trial; and (4) the
charges of which he was convicted were unreasonably multiplied. We find no
prejudicial error and affirm. 3
I. BACKGROUND
Appellant was a 29-year-old Marine stationed at Camp Foster in Okinawa,
Japan. He joined a group chat entitled “Camp Foster Oki” on an instant mes-
saging platform. Within that group, the Naval Criminal Investigative Service
[NCIS] maintained a dormant account named “Marie,” bearing a profile picture
of a teenage girl. This account was monitored by Special Agent [SA] Kilo, who
played the role of a fictitious 14-year-old girl named “Marie” as part of a “to
catch a predator” sting operation. Appellant initiated contact with Marie by
1 10 U.S.C. § 880 (2012 & Supp. III 2016).
2 This and all other names, other than Appellant’s and those of the military judges,
are pseudonyms.
3 We have considered the fourth AOE and find it to be without merit. See United
States v. Matias, 25 M.J. 356, 363 (C.M.A. 1987), cert. denied, 485 U.S. 968 (1988).
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United States v. Scott, NMCCA No. 201900076
Opinion of the Court
sending her a private message, “Hey.” 4 In order to document the exchanges
between Marie and Appellant, SA Kilo captured screen images from the NCIS
tablet on which he communicated with Appellant. These screen-captured im-
ages overlapped, showing a continuous conversation with each image begin-
ning with the last line of the previous image. 5
Appellant and Marie chatted innocuously on two instances that day. The
next evening, Appellant re-initiated and asked, “Were you the only real one on
that group[?]” 6 Seven days later, Marie responded, “Haha,” and that she did
not know. 7 After Appellant asked Marie how she was doing, she responded,
“Good you[?]” Twenty minutes later, without a response from Appellant, Marie
told him, “I’m young just so ya know.” 8 Appellant acknowledged this without
asking her age.
The next day, Marie asked Appellant how old he was. After he answered,
she told him she was 13. 9 When he replied, “Oh no,” she said, “Sorry bye,” and
“You can block me if you want.” 10 He responded, “No it’s ok.” 11 From that point,
for the first time, they engaged in a contemporaneous back-and-forth conver-
4 Rawle at 278, 282; Pros. Ex. 1 at 3; Pros. Ex. 3 at 1. In a post-trial affidavit, Appellant
attests that he initially sent this message to the entire Camp Foster Oki group at 1238
on 2 May 2020, to which Marie responded, “Hi.” Declaration of Appellant of 6 Sep 2020.
However, this fact is directly controverted by Prosecution Exhibits 1 and 2, indicating
the initial message, “Hey,” sent on 2 May 2020 at 1238, was within a private chat
between Appellant and Marie, not to the Camp Foster Oki chat as a whole. Pursuant
to our Article 66 factual sufficiency review, we find the evidence proves beyond a rea-
sonable doubt that the message was sent directly to Marie; however, for the purpose
of resolving Appellant’s AOEs, we assume, arguendo, Appellant’s rendition of this fact
is true.
5 Prosecution Exhibit 3 shows certain messages were deleted from the NCIS tablet.
While it was not made clear at trial why or how some of these messages were deleted,
this fact, along with all messages—whether captured in Prosecution Exhibit 1 or noted
as “deleted” in Prosecution Exhibit 3—was presented to the members at trial.
6 Pros. Ex. 1 at 5.
7 Id. at 6.
8 Id. at 7.
9Having previously said Marie was 14, the NCIS special agent in this persona
caught his inconsistency and replied that she was days away from her 14th birthday.
10 Id. at 10.
11 Id.
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Opinion of the Court
sation. At one point they discussed their age difference, and there was a mis-
communication between the two:
Appellant: Lol. To bad ur a little to young for me. . . .
Marie: I don’t care about age [smiling and blushing emoji] But
yea totally
[Marie sent a photograph of a teenage girl in response
to Appellant’s request for one.]
Appellant: Lol 29 seems a little old?
Marie: Up to you we don’t need to talk yea
Marie: I’m open minded to talk to anyone. See ya!
Appellant: Ok that’s fine
Appellant: If I [sic] wanna talk u can hit me up
Marie: Oh wait I thought you were saying you didn’t want to
lmao
Appellant: No I do[n’]t mind 12
Following this exchange, Appellant mentioned that he and his wife were
separating, so he was on the messaging platform looking for “FWB” 13 and
asked if Marie knew any “older people.” 14 After Marie sent a negative response
and a photograph of a teenage girl with a sad face, he responded, “Wish u were
not so young [sad crying emoji].” 15 The following exchange then occurred:
Marie: Why
Appellant: I would come meet you
Marie: You want to?
Marie: Just my age is to young?
Appellant: Really?
Marie: No like I’m asking you? I’m saying like you want to but
your sketchy about me being almost 14?”
12 Id. at 19-22 (emphasis added).
13 Id. at 29 [friends with benefits].
14 Id. at 30.
15 Id. at 32.
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Opinion of the Court
Appellant: I would, how do I know ur won’t be the one to get me in
trouble [face with monocle emoji] 16
The two discussed the trouble they would both get into if they were caught,
but then Appellant asked where they would meet. When Marie suggested the
previous older man she was with “just came over to my house on nights my
mom was away,” he asked if she was busy “tonight or tomorrow.” 17 She asked
him what he would like to do, and he responded, “Lol please you lol.” 18 She
then generally discussed her sexual inexperience and asked him to elaborate
on how he planned to “please” her, at which point Appellant turned the con-
versation overtly and explicitly sexual in nature.
After they conversed about what they would do and whether she had any
female friends she could trust to invite over as well, they discussed the logistics
of meeting up. At 1556, Appellant told Marie he would come around 2045. She
told Appellant she would message him at 1900 to give him directions to her
house after she had an opportunity to confirm that her mother would not be
home. At 1918, Marie told Appellant she was home and available. He asked
her if he could see her at 2030, and she confirmed, providing the house address.
At about 2015, he arrived at the specified location. Once he stepped on the
property on his way to the front door, NCIS apprehended him.
II. DISCUSSION
A. The Evidence is Legally and Factually Sufficient
Appellant asserts that the evidence presented at trial was factually insuf-
ficient to overcome the defense of entrapment. Appellant alleges that his initial
message, “Hey,” was sent to the group as a whole, not solely the Marie profile.
In response, Marie initiated contact with him. After a week-long gap in com-
munication, Marie again initiated contact. Appellant further argues that be-
cause Marie repeatedly initiated contact, and because the Government did not
introduce sufficient evidence in rebuttal to demonstrate that the criminal de-
sign did not originate with the Government or that Appellant was predisposed
to commit the offense, the evidence is not factually sufficient to uphold his con-
viction. We are not convinced that Appellant was entrapped and find his con-
victions both legally and factually sufficient.
16 Id. at 33-34.
17 Id. at 38.
18 Id. at 39.
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Opinion of the Court
1. Test for legal and factual sufficiency
Article 66, UCMJ, requires us to conduct a de novo review and “affirm only
such findings of guilty” as we find are “correct in law and fact.” 19 The test for
legal sufficiency is “whether, considering the evidence in the light most favor-
able to the prosecution, a reasonable factfinder could have found all the essen-
tial elements beyond a reasonable doubt.” 20 When considering legal sufficiency,
we are “bound to draw every reasonable inference from the evidence of record
in favor of the prosecution.” 21
The test for factual sufficiency is “whether, after weighing the evidence in
the record of trial and making allowances for not having personally observed
the witnesses, [we] are . . . convinced of the [appellant’]s guilt beyond a reason-
able doubt.” 22 We are required to take “a fresh, impartial look at the evidence,”
and we need not give “deference to the decision of the trial court . . . beyond the
admonition in Article 66, UCMJ, to take into account the fact that the trial
court saw and heard the witnesses.” 23
Reasonable doubt “is not intended [to be] a fanciful or ingenious doubt or
conjecture, but an honest, conscientious doubt suggested by the material evi-
dence or lack of it in this case. . . . The proof must be such as to exclude not
every hypothesis or possibility of innocence, but every fair and rational hypoth-
esis except that of guilt.” 24
2. Defense of entrapment
Under Rule for Courts-Martial 916(g), “[i]t is a defense that the criminal
design or suggestion to commit the offense originated in the Government and
the accused had no predisposition to commit the offense.” Once the Defense
has met its burden of showing some evidence that a government agent origi-
nated the suggestion to commit an offense, “the burden then shifts to the Gov-
ernment to prove beyond a reasonable doubt that the criminal design did not
19 UCMJ art. 66.
20 United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987).
21 United States v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001).
22 Turner, 25 M.J. at 325.
23 United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002).
24 United States v. Loving, 41 M.J. 213, 281 (C.A.A.F. 1994).
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Opinion of the Court
originate with the Government or that the accused had a predisposition to com-
mit the offense, prior to first being approached by Government agents.” 25
Inducement occurs when the Government’s conduct gives rise to a “sub-
stantial risk that an undisposed person or otherwise law abiding citizen would
commit the offense. Inducement may take different forms, including pressure,
assurances that a person is not doing anything wrong, persuasion, fraudulent
representations, threats, coercive tactics, harassment, promises of reward, or
pleas based on need, sympathy, or friendship.” 26
The issue of predisposition is looked at through the eyes of a law abiding
person, or someone “who resists the temptations, which abound in our society
today, to commit crimes.” 27 “Simply because there has been government con-
tact is not enough to establish persuasion in the mind of an innocent individ-
ual.” 28 “When a person accepts a criminal offer without being offered extraor-
dinary inducements, he demonstrates his predisposition to commit the type of
crime involved.” 29
3. Appellant was not entrapped
Even if Marie initiated communication with Appellant and the entire crim-
inal scheme originated with the Government, the Government’s evidence pre-
sented at trial was sufficient to convince us, beyond a reasonable doubt, that
Appellant demonstrated a predisposition to commit the types of offenses for
which he was convicted.
A person with no predisposition to commit these offenses could have, and
indeed would have, easily cut-off communications with Marie once he learned
of her age. Within minutes of the start of their conversation, Marie informed
him she was 14. Later in their conversation, Appellant expressed his reluc-
tance about her age, “I wish u were not so young.” 30 When Marie asked “why,”
25 United States v. Whittle, 34 M.J. 206, 208 (C.M.A. 1992) (citations and internal
quotation marks omitted).
26 United States v. Howell, 36 M.J. 354, 359-60 (C.M.A. 1993).
27 Id. (quoting United States v. Evans, 924 F.2d 714 (7th Cir. 1991).
28 Whittle, 34 M.J. at 208.
29 Id. (emphasis added) (quoting Evans, 924 F.2d at 717).
30 Pros. Ex. 1 at 32.
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Opinion of the Court
he replied, “I would come meet you.” 31 But when Marie asked, “You want to?”
he immediately responded, “Really?” 32
Marie offered no extraordinary inducements. All she offered was the means
by which Appellant could achieve his criminal intent and a reassurance he
would not be caught. Appellant contemplated and conveyed the specific acts he
would perform on her and even attempted to get Marie to enlist one of her
friends to “have fun” with them. Once they had a plan to meet, he had a three-
hour window without communications, during which he could have reconsid-
ered. He chose to continue forward. Even if the criminal design originated with
the Government—which we seriously doubt—Appellant demonstrated a clear
predisposition to commit these offenses.
B. Ineffective Assistance of Counsel
Appellant asserts that his TDC were ineffective for three reasons:
(1) Mr. Charlie had a “fundamental lack of understanding of the technical as-
pects of the evidence” and failed to request expert assistance, 33 (2) Mr. Charlie
failed to review Defense exhibits before presenting them to the members, and
(3) neither of his TDC submitted a clemency request on his behalf.
We review claims of ineffective assistance of counsel de novo. 34 In Strick-
land v. Washington, 35 the Supreme Court laid out the test that guides our anal-
ysis. In order to prevail on such a claim, “an appellant must demonstrate both
(1) that [trial defense] counsel’s performance was deficient, and (2) that [the]
deficiency resulted in prejudice.” 36 Appellant bears the “burden of establishing
the truth of factual matters relevant to the claim.” 37 Only after an appellant
has met this burden and has demonstrated both deficiency and prejudice, can
we find in the appellant’s favor on an ineffective assistance of counsel claim.
31 Id.
32 Id. at 33.
33 Appellant’s Brief at 12.
34 United States v. Harpole, 77 M.J. 231, 236 (C.A.A.F. 2018).
35 466 U.S. 668 (1984).
36 United States v. Green, 68 M.J. 360, 361 (C.A.A.F. 2010) (citing Strickland, 466
U.S. at 687).
37 Denedo v. United States, 66 M.J. 114, 128 (C.A.A.F. 2008), aff’d, 556 U.S. 904
(2009).
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Opinion of the Court
1. Further fact-finding not required
After considering the record and Appellant’s affidavit, we must first deter-
mine if additional fact-finding is necessary to resolve Appellant’s claim of inef-
fective assistance of counsel. Applying factors described in United States v.
Ginn, 38 Appellant believes “further investigation would provide valuable infor-
mation for the Court in its assessment of the second prong of the Strickland
test.” 39 We disagree and conclude that additional fact-finding is unnecessary.
“If there is a factual dispute on a matter pertinent to [a] claim, the deter-
mination as to whether further fact-finding will be ordered is resolved under
[Ginn].” 40 However, no such hearing is necessary “if an appellate court can con-
clude that ‘the motion and the files and records of the case . . . conclusively
show that [an appellant] is entitled to no relief.’ ” 41 The six Ginn factors are as
follows:
First, if the facts alleged in the affidavit allege an error that
would not result in relief even if any factual dispute were re-
solved in appellant’s favor, the claim may be rejected on that ba-
sis.
Second, if the affidavit does not set forth specific facts but
consists instead of speculative or conclusory observations, the
claim may be rejected on that basis.
Third, if the affidavit is factually adequate on its face to state
a claim of legal error and the Government either does not contest
the relevant facts or offers an affidavit that expressly agrees
with those facts, the court can proceed to decide the legal issue
on the basis of those uncontroverted facts.
Fourth, if the affidavit is factually adequate on its face but
the appellate filings and the record as a whole ‘compellingly
demonstrate’ the improbability of those facts, the court may dis-
count those factual assertions and decide the legal issue.
Fifth, when an appellate claim of ineffective representation
contradicts a matter that is within the record of a guilty plea, an
appellate court may decide the issue on the basis of the appellate
38 47 M.J. 236 (C.A.A.F. 1997).
39 Appellant’s Brief at 26.
40 Denedo, 66 M.J. at 128.
41 Ginn, 47 M.J. at 244 (alterations in original) (citation omitted).
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Opinion of the Court
file and record (including the admissions made in the plea in-
quiry at trial and appellant’s expression of satisfaction with
counsel at trial) unless the appellant sets forth facts that would
rationally explain why he would have made such statements at
trial but not upon appeal.
Sixth, the Court of Criminal Appeals is required to order a
fact-finding hearing only when the above-stated circumstances
are not met. In such circumstances, the court must remand the
case to the trial level for a DuBay proceeding. During appellate
review of the DuBay proceeding, the court may exercise its Arti-
cle 66 fact-finding power and decide the legal issue. 42
Before us now, Appellant has submitted a declaration, making a number of
statements he believes are pertinent to his claim. We have reviewed his state-
ments and find that even assuming the facts to be as Appellant claims, he
would not be entitled to any relief. Therefore, no further fact finding is neces-
sary in order to resolve Appellant’s claims.
2. Appellant suffered no prejudice from any alleged deficiencies of TDC
The two-prong approach laid out in Strickland is not a sequential test. We
need not always determine “whether counsel’s performance was deficient be-
fore examining the prejudice suffered by the [appellant] as a result of the al-
leged deficiencies. If it is easier to dispose of an ineffectiveness claim on the
ground of lack of sufficient prejudice, . . . that course should be followed.” 43
Here we can dispose of this claim for lack of prejudice.
In light of our holding supra on the issues of entrapment and factual suffi-
ciency, Appellant’s first ground for complaint of ineffective assistance, not un-
derstanding the technical aspects of the evidence regarding entrapment, is
without merit. Aside from a barrage of speculation as to what an expert wit-
ness might have been able to do had he been called, Appellant claims the “de-
cision to forego expert assistance in digital forensics . . . greatly prejudiced
[him] in that it undercut his ability to present an entrapment defense.” 44 He
makes no additional concrete claims of prejudice suffered due to a lack of an
expert witness. Even assuming—contrary to the evidence—Appellant’s version
of events to be true, he suffered no prejudice by this alleged error. We also find
that even had the Defense presented enough evidence that messages had been
42 Ginn, 47 M.J. at 248.
43 Strickland, 466 U.S. at 689.
44 Appellant’s Brief at 20.
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Opinion of the Court
deleted so as to cause the military judge to exclude the conversation between
Appellant and Marie [Prosecution Exhibit 1], no evidence was presented to
show that Prosecution Exhibit 3 [the “Extraction Report” of the NCIS tablet
containing the conversations] was incomplete, and that exhibit alone would
have been sufficient to uphold Appellant’s conviction.
We therefore turn to Appellant’s remaining claims of ineffective assistance
and find he suffered insufficient, if any, prejudice. To demonstrate prejudice,
“[i]t is not enough for the defendant to show that the errors had some conceiv-
able effect on the outcome of the proceeding.” 45 Instead, “[t]he defendant must
show that there is a reasonable probability that but for counsel’s unprofes-
sional errors, the result of the proceeding would have been different. A reason-
able probability is probability sufficient to undermine confidence in the out-
come.” 46 When an appellant was actually or constructively denied assistance
of counsel altogether, or when counsel is burdened by an actual conflict of in-
terest (and actually represents those conflicting interests), we presume preju-
dice. 47 However, Appellant makes neither of these claims, and the record does
not support either.
The Defense offered Defense Exhibit I, Appellant’s video-recorded confes-
sion. The military judge admitted it, but only after ordering redaction to re-
move references to a polygraph examination and to Appellant’s prior “sexting.”
Before playing the video recording in open court for the members, Mr. Charlie
neglected to review the edited version. During playback, after noticing a refer-
ence to Appellant “struggling with a test” 48 and a reference to “sexting” 49 pre-
viously with a girl in South Carolina, Mr. Charlie interrupted and asked for an
opportunity to review Defense Exhibit I before continuing to play it for the
members.
Any deficiency by Mr. Charlie for failing to review Appellant’s videotaped
confession prior to publication did not prejudice Appellant. The brief reference
to “struggling with a test” that was left unredacted provided the members with
45 Strickland, 466 U.S. at 693.
46 Id.
47 Id. at 692.
48 Rawle at 501.
49 Id.
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Opinion of the Court
very little, if any, inflammatory material and would require extreme specula-
tion to deduce it was a polygraph. 50 The military judge noted that none of the
members reacted to the phrase “struggling with a test” and “no one brought
attention to it.” 51 This is insufficient to demonstrate prejudice, particularly
when coupled with the Government’s agreement not to mention the references
in argument and Mr. Charlie tactical decision not to ask for a limiting instruc-
tion so as not to draw attention to the matters.
Additionally, Appellant’s argument that the members may have inter-
preted the brief reference to sexting a “girl” in South Carolina to mean that she
was underage, thus undermining his entrapment defense, is insufficient to
demonstrate prejudice. First, we have resolved the issue of entrapment, with-
out regard to the reference to sexting, above—Appellant was not entrapped.
Furthermore, the conclusion suggested by Appellant requires significant spec-
ulation and certainly does not give rise to a “reasonable probability” of error
“sufficient to undermine confidence in the outcome.”
Most importantly, the evidence against Appellant was overwhelming. Ap-
pellant does not allege the improper reference to “sexting” or “struggling with
a test” prejudiced him in sentencing; he merely suggests it contributed to his
conviction. We are confident had these redactions been properly made, the out-
come would have remained the same. Appellant engaged in rather routine, if
sordid, misconduct. The chat history, with the explicit language explaining
what Appellant intended to do to Marie, was preserved and presented at trial
in multiple forms. Appellant made a lengthy confession to NCIS, which was
videotaped and presented at trial. The improper references to struggling with
a test and sexting did very little, if anything, to contribute to Appellant’s con-
viction.
Finally, Appellant claims his defense counsel were deficient in their post-
trial responsibilities. He states, “[Capt Lima] submitted a request to the Con-
vening Authority asking him to defer the adjudged and automatic reduction in
rank until Convening Authority’s Action” but “did not include a request to de-
fer either the adjudged or automatic forfeitures.” 52 After complaining about a
50 One of the special agents told Appellant during the interview, “You’re clearly
struggling on this test. And the reason why you’re struggling is because in your con-
versations with (other special agent) earlier, you weren’t completely forthcoming.” This
was not redacted and heard by the members. Def. Ex. I.
51 Rawle at 502.
52 Appellant’s Brief at 24.
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lack of communication from his counsel, Appellant requested and was granted
a substitute military counsel, Capt Oscar, to handle his post-trial matters.
Capt Oscar signed for the Staff Judge Advocate’s Recommendation and indi-
cated that he would submit a clemency request on Appellant’s behalf, but ulti-
mately did not do so. Appellant claims that this failure prejudiced him by “elim-
inating his opportunity to request further clemency for the benefit of his wife
and children.” 53 However, Appellant acknowledges that despite this failure to
request clemency, the convening authority granted deferral for the reduction
in rank and automatic forfeitures. It is mere speculation to suppose that the
convening authority would have awarded more clemency had it been re-
quested—such speculation is insufficient to demonstrate prejudice.
C. Excusal of Detailed Defense Counsel
1. Facts surrounding Captain Lima’s withdrawal
Capt Lima was detailed as Appellant’s military defense counsel. Appellant
subsequently consulted with and obtained Mr. Charlie as his lead TDC. On the
last day of trial on the merits at 0759, the military judge called the court to
order and stated on the record that Capt Lima’s “child had some health issues
last night,” and that “[h]e is attending to those, but we anticipate he will be
back when the members return at 0900.” 54 At that point, the military judge
reminded Appellant of his right to “have all of [his] lawyers present in all ses-
sions of court.” 55 After Appellant confirmed that he understood his right, the
military judge asked, “Are you willing to do this 39(a) session without [Capt
Lima] being present?” Appellant replied, “Yes, sir.” After quickly discussing a
few administrative matters, the court recessed at 0803.
At 0926, the court reconvened. The military judge stated:
[Captain Lima], unfortunately, is still not present. It appears
that he’s not going to be present, potentially for the entire rest
of the trial due to the nature of the emergency. Staff Sergeant, I
know I just discussed it with you, you obviously have the right
to have all your counsel present throughout the trial. Do you
53 Id. at 25.
54 Rawle at 488.
55 Id.
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Opinion of the Court
want to proceed with the rest of the trial on the merits without
[Capt Lima] being present? 56
Appellant replied, “Yes, Your Honor.” 57
The military judge then discussed the Defense request to postpone sentenc-
ing to the next day: “We discussed the way forward, defense indicated that
[Capt Lima] was planning on handling the sentencing portion of the trial.
Given that he likely won’t be back, defense asked that if there is a conviction in
this case that we postpone sentencing until tomorrow.” 58 He agreed that such a
request was “certainly . . . reasonable given the circumstances, and that he
would postpone the sentencing phase until the next day. 59 At no other point
did Appellant object or Mr. Charlie request additional time to prepare for sen-
tencing.
2. Appellant expressly consented to the withdrawal of Captain Lima
Appellant alleges that his defense counsel was excused by the military
judge without good cause shown on the record and without Appellant’s in-
formed express consent. When an accused’s case is referred to a general or spe-
cial court-martial, he is represented by a “statutorily qualified military defense
counsel, known as detailed military defense counsel.” 60 In addition to this de-
tailed counsel, an accused may choose to be represented by a civilian defense
counsel at no cost to the Government. 61 When this happens, the detailed mili-
tary counsel “shall act as associate counsel unless excused at the request of the
accused.” 62 The authority competent to detail such counsel may excuse a de-
tailed military counsel, among other reasons, “[u]pon request of the accused”
or “[f]or other good cause shown on the record.” 63 “ ‘[G]ood cause’ includes phys-
ical disability, military exigency, and other extraordinary circumstances which
render the member, counsel, or military judge unable to proceed with the court-
56 Id. at 491 (emphasis added).
57 Id.
58 Id. (emphasis added).
59 Id.
60 United States v. Hutchins, 69 M.J. 282, 284 (C.A.A.F. 2011) (citing UCMJ art.
27(a)(1), 10 U.S.C. § 827(a)(1) (2006)).
61 UCMJ art. 38(b)(2).
62 UCMJ art. 38(b)(4).
63 Rule for Courts-Martial [R.C.M.] 505(d)(2)(B).
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Opinion of the Court
martial within a reasonable time,” and “does not include temporary inconven-
iences which are incident to normal conditions of military life.” 64
There is no need to show good cause to withdraw as counsel in cases where
the detailed military defense counsel seeks to withdraw “with the express con-
sent of the accused.” 65 The record of trial makes it clear Appellant acquiesced
to Capt Lima’s withdrawal. In United States v. Hutchins, the Court of Appeals
for the Armed Forces [CAAF] found error when detailed military defense coun-
sel unilaterally withdrew due to the end of his active duty service. CAAF noted
that the military judge presumed counsel’s absolute unavailability, “pre-
sent[ing] the termination of the attorney-client relationship as an established
fact without ascertaining whether any consideration had been given to other
available options.” 66 That is not the case we are confronted with.
Each time the military judge received updated information on the availa-
bility of Capt Lima, the military judge reminded Appellant of his right to have
counsel present at all proceedings and asked if he wished to continue forward.
Appellant acknowledged his understanding of his rights and clearly stated that
he wished to press forward with Mr. Charlie and without Capt Lima. At no
point did the military judge receive or approve a request to withdraw; instead,
Appellant expressly consented to Capt Lima’s absence. Although initially his
absence was expected to be brief, shortly thereafter it became clear that he
would not return for the rest of trial. The fact that Mr. Charlie contemplated
needing more time to prepare for sentencing demonstrates the understanding
of all parties that Capt Lima would not return for the remainder of the trial—
on the merits or sentencing.
In United States v. Royer, 67 an unpublished case, we found the appellant
consented to his TDC’s withdrawal. When Royer pleaded guilty, the military
judge ordered a mental competency evaluation. In the ensuing two months be-
fore the court-martial reconvened, Royer’s TDC informed the trial counsel and
the military judge that he had a conflict of interest between Royer and another
client. The military judge informed Royer that his TDC was removed from the
case due to circumstances beyond Royer’s control. Later, on the record, the mil-
itary judge confirmed with Royer that he had enough time to discuss the case
64 R.C.M. 505(f).
65 R.C.M 506(c).
66 Hutchins, 69 M.J. at 289.
67 No. 200600530, 2007 CCA LEXIS 67 (N-M. Ct. Crim. App. 2007) (unpub. op.).
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United States v. Scott, NMCCA No. 201900076
Opinion of the Court
with his new TDC, that he felt comfortable with his new TDC, and that he did
not wish to be represented by any other attorney.
Here the military judge engaged in a similar colloquy with Appellant and
ascertained that Appellant was aware of his rights, and that he was comforta-
ble proceeding into sentencing without Capt Lima. 68 Under the circumstances
it seems very likely that if Appellant had answered differently, the military
judge would have granted a continuance. This record presents us with an in-
formed consent by Appellant to Capt Lima’s withdrawal.
3. Any error was harmless
Assuming, arguendo, that Appellant did not consent to Capt Lima’s with-
drawal, we would nonetheless decline to award relief in this case. 69 When an
appellant establishes that an error of law occurred during trial, the defense
must also show that the error produced material prejudice to the substantial
rights of the accused. 70 Because “[t]his case involves defense counsel’s im-
proper withdrawal from an attorney-client relationship but with assurance of
his client’s uninterrupted representation by another lawyer and followed by
the client’s subsequent knowing ratification of that withdrawal,” it is proper to
test for prejudice. 71
As in Hutchins, any error that exists in the excusal of Appellant’s detailed
military defense counsel merely involves “oversights and omissions in address-
ing the issue of severance.” 72 It does not involve governmental misconduct (or
any action whatsoever) or decisions by the military judge to deny relief re-
quested by the defense. 73 The military judge here, as in Hutchins, granted the
68The context in the colloquy concerning whether Capt Lima would not be present
for the “rest of the trial” appears to include sentencing, if necessary. It also appears
Mr. Charlie understood this, as did Appellant. Mr. Charlie requested, and received, a
one-day postponement to prepare for sentencing, due to Captain Lima’s absence for
the “rest of the trial.” R. at 491.
69 See United States v. Acton, 38 M.J. 330, 336-37 (C.M.A. 1993) (finding that de-
spite the improper unilateral withdrawal of detailed defense counsel, appellant could
not demonstrate prejudice).
70 UCMJ art. 59(a).
71Acton, 38 M.J. at 336 n.2. Although Appellant views this as structural error, we
decline to review this as such. His claim is that he was denied a statutory right to
detailed defense counsel; he was, however, afforded the counsel of his choosing.
72 Hutchins, 69 M.J. at 292.
73 See id.
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 United States v. Scott, NMCCA No. 201900076
Opinion of the Court
only defense request for continuance, and it would be mere speculation, unsup-
ported by the record, to presume an additional request for continuance would
have been denied. Because Appellant assented to the absence of Capt Lima, we
find this AOE to be without merit.
III. CONCLUSION
After careful consideration of the record and briefs of appellate counsel, we
have determined that the findings and sentence are correct in law and fact and
that no error materially prejudicial to Appellant’s substantial rights occurred.
UCMJ arts. 59, 66.
The findings and sentence are AFFIRMED.
Chief Judge Emeritus CRISFIELD and Judge LAWRENCE concur.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
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