United States v. Rhoades

UNITED STATES, Appellee
v.
Darnyell R. RHOADES, Specialist
U.S. Army, Appellant
No. 07-0173
Crim. App. No. 20040109
United States Court of Appeals for the Armed Forces
Argued October 17, 2007
Decided January 9, 2008
EFFRON, C.J., delivered the opinion of the Court, in which
BAKER, ERDMANN, STUCKY, and RYAN, JJ., joined.
Counsel
For Appellant: Major Sean F. Mangan (argued); Colonel
Christopher J. O’Brien and Lieutenant Colonel Steven C. Henricks
(on brief); Major Tyesha E. Lowery and Major Fansu Ku.
For Appellee: Captain Jaired D. Stallard (argued); Colonel John
W. Miller II, Major Elizabeth G. Marotta, and Captain Michael C.
Friess (on brief).
Military Judge: Mark P. Sposato
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Rhoades, No. 07-0173/AR
Chief Judge EFFRON delivered the opinion of the Court.
The present appeal concerns a general court-martial convened
at Fort Huachuca, Arizona. The court-martial, composed of
officer and enlisted members, convicted Appellant, contrary to
his pleas, of three specifications of willful disobedience of a
superior commissioned officer, in violation of Article 90,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 890 (2000).
The sentence adjudged by the court-martial included a bad-
conduct discharge, confinement for one year, and reduction to
the lowest enlisted grade. The convening authority approved
that portion of the sentence that provided for the bad-conduct
discharge, reduction to the lowest enlisted grade, and
confinement for eleven months. The United States Army Court of
Criminal Appeals affirmed. United States v. Rhoades, No. ARMY
20040109 (A. Ct. Crim. App. Nov. 16, 2006) (unpublished).
On Appellant’s petition, we granted review of the following
issue:
DID THE MILITARY JUDGE, IN GRANTING THE GOVERNMENT’S MOTION
TO DISQUALIFY APPELLANT’S CIVILIAN COUNSEL ON THE BASIS OF
AN ALLEGED VIOLATION OF THE ETHICS IN GOVERNMENT ACT (18
U.S.C. [§] 207(a)(2)), DENY THE APPELLANT HIS SIXTH
AMENDMENT RIGHT TO CIVILIAN COUNSEL OF HIS CHOICE?
For the reasons set forth below, we conclude that the
decision by the military judge to disqualify Appellant’s
civilian defense counsel did not violate Appellant’s right to
counsel of choice under the Sixth Amendment.
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I. BACKGROUND
Appellant, who faced a court-martial at Fort Huachuca,
retained Mr. R to serve as civilian defense counsel.
Immediately prior to entering private practice, Mr. R served as
an active-duty judge advocate at Fort Huachuca, including duty
as the Chief of Military Justice. In that position, Mr. R
supervised junior trial counsel and provided advice to military
commanders and agents of the Army’s Criminal Investigation
Division (CID).
A month after his release from active duty, Mr. R entered a
special appearance on behalf of Appellant. The Government moved
to disqualify Mr. R as counsel, focusing primarily on matters
concerning the CID investigation of Appellant during the period
in which Mr. R had served as a judge advocate. The military
judge granted the motion.
The granted issue raises the question of whether the
particular circumstances of Mr. R’s prior federal government
service, as set forth in section II, infra, provided a
sufficient basis for the military judge to disqualify Mr. R from
serving as Appellant’s defense counsel.
A. Selection and Disqualification of Counsel
The accused in a criminal proceeding has the right to “the
Assistance of Counsel for his defence.” U.S. Const. amend. VI.
Under the UCMJ, an accused has the right to representation by
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military counsel provided at no expense to the accused. Article
38(b)(3), UCMJ, 10 U.S.C. § 838(b)(3) (2000). The accused may
be represented by civilian counsel. See Article 38(b)(2),
(b)(4), UCMJ.
The right to counsel of choice under the Sixth Amendment,
as well as under the UCMJ, is not absolute. Wheat v. United
States, 486 U.S. 153, 159 (1988); United States v. Beckley, 55
M.J. 15, 23-24 (C.A.A.F. 2001). The “‘need for fair, efficient,
and orderly administration of justice’” may outweigh the
interest of the accused in being represented by counsel of
choice. United States v. Campbell, 491 F.3d 1306, 1310 (11th
Cir. 2007) (quoting United States v. Ross, 33 F.3d 1507, 1523
(11th Cir. 1994)); see also United States v. MacCulloch, 40 M.J.
236, 238-39 (C.M.A. 1994). For example, disqualification of a
defendant’s chosen counsel due to a “previous or ongoing
relationship with an opposing party, even when the opposing
party is the Government,” does not violate the Sixth Amendment.
Wheat, 486 U.S. at 159.
In the military justice system, a person serving as
civilian counsel must be a “member of the bar of a Federal court
or of the bar of the highest court of a State.” Rule for
Courts-Martial (R.C.M.) 502(d)(3)(A). Alternatively, a person
can serve as defense counsel if otherwise authorized to practice
law by a recognized licensing authority and determined to be
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qualified by the military judge. R.C.M. 502(d)(3)(B). Under
R.C.M. 502(d)(4), a person may not serve as defense counsel if
the person is or has been the accuser, an investigating officer,
a military judge, or a court-martial member, subject to express
waiver by the accused. In addition, “[n]o person who has acted
as counsel for a party may serve as counsel for an opposing
party in the same case.” Id.; see Article 27(a)(2), UCMJ, 10
U.S.C. § 827(a)(2) (2000). The disqualifications listed in
R.C.M. 502(d)(4) are not exclusive, and counsel may be
disqualified based upon otherwise applicable standards of
professional responsibility. See Beckley, 55 M.J. at 23-24; cf.
Wheat, 486 U.S. at 160 (“Federal courts have an independent
interest in ensuring that criminal trials are conducted within
the ethical standards of the profession and that legal
proceedings appear fair to all who observe them.”).
At the outset of the trial, defense counsel must advise the
court as to whether “counsel has acted in any matter which might
tend to disqualify the counsel.” R.C.M. 901(d)(2). Under
R.C.M. 901(d)(3), “[i]f it appears that any counsel may be
disqualified, the military judge shall decide the matter and
take appropriate action.”
The military judge must rule on a disqualification motion
prior to trial on the merits. Because it may be difficult at
that stage to assess with precision whether, or to what extent,
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the grounds for disqualification could affect the trial, the
military judge is afforded broad discretion in ruling on
disqualification motions. See Wheat, 486 U.S. at 162-63; United
States v. Sparks, 29 M.J. 52, 58-59 (C.M.A. 1989). Even when an
accused is willing to waive a disqualification, the military
judge has substantial latitude in deciding whether to accept the
waiver. Sparks, 29 M.J. at 58-59. The Supreme Court has held
that courts “must recognize a presumption in favor of [an
accused’s] counsel of choice, but that presumption may be
overcome not only by a demonstration of actual conflict but by a
showing of a serious potential for conflict.” Wheat, 486 U.S.
at 164.
B. Disqualification Based Upon Prior Government Service
In addition to the statutory and professional standards of
responsibility that apply expressly to attorneys, federal law
establishes limitations on representation that apply to
government personnel generally, including members of the armed
forces. These limitations, including post-government employment
restrictions, address situations in which Congress has
identified the potential for actual or apparent conflicts of
interest. See S. Rep. No. 95-170, at 32 (1977), reprinted in
1978 U.S.C.C.A.N. 4216, 4248.
Statutory post-government employment restrictions vary
considerably, depending on the nature of the issue, the level of
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the responsibility exercised during the person’s government
service, and the specific nature of the person’s involvement on
a given issue. See, e.g., 18 U.S.C. § 207(b) (2000) (one-year
post-government employment restriction on persons who
participated personally and substantially in certain trade or
treaty negotiations); § 207(c) (one-year post-government
employment restriction on certain agency communications by
designated senior executive branch personnel).
All executive branch officials, regardless of grade, are
subject to the restrictions in 18 U.S.C. § 207(a)(1), a criminal
statute, entitled “Permanent restrictions on representation on
particular matters.” Section 207(a)(1) prohibits a variety of
post-government employment activities, including making an
appearance before a court-martial, “in connection with a
particular matter . . . in which the person participated
personally and substantially” as a government official and
“which involved a specific party or specific parties at the time
of such participation.” 18 U.S.C. § 207(a)(1).
The present case involves 18 U.S.C. § 207(a)(2), entitled
“Two-year restrictions concerning particular matters under
official responsibility.” Section 207(a)(2) makes it a crime to
engage in certain post-government employment activities,
including an appearance before a court-martial, “in connection
with a particular matter” which the person “knows or reasonably
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should know was actually pending under his or her official
responsibility . . . within a period of 1 year before the
termination of his or her [government] service” and “which
involved a specific party or specific parties at the time it was
so pending.” 18 U.S.C. § 207(a)(2)(B)-(C).
The term “official responsibility” means “the direct
administrative or operating authority, whether intermediate or
final, and either exercisable alone or with others, and either
personally or through subordinates, to approve, disapprove, or
otherwise direct Government action.” 18 U.S.C. § 202(b) (2000).
According to the implementing regulations issued by the Office
of Government Ethics, the scope of an employee’s official
responsibility “is determined by those areas assigned by
statute, regulation, Executive Order, job description or
delegation of authority.” 5 C.F.R. § 2637.202(b)(2) (2007).
Under the regulations, a matter is “actually pending” once it is
“referred to or under consideration by persons within the
employee’s area of responsibility, not that it merely could have
been.” 5 C.F.R. § 2637.202(c).
II. THE MILITARY JUDGE’S DECISION TO DISQUALIFY
APPELLANT’S CIVILIAN DEFENSE COUNSEL
At trial, the prosecution moved to disqualify Mr. R from
serving as Appellant’s civilian defense counsel on the grounds
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that his participation would fall within the two-year
restriction of 18 U.S.C. § 207(a)(2). The prosecution contended
that the court-martial concerned a “particular matter” under the
statute that was “actually pending” under Mr. R’s official
responsibility during the one-year period prior to the
termination of his military service. The prosecution expressly
stated that for purposes of the motion, the Government did not
assert that Mr. R had participated “personally and
substantially” in the matter at issue in violation of the
permanent ban on representation under 18 U.S.C. § 207(a)(1).
In support of the motion, the prosecution submitted various
documents, including an affidavit from the staff judge advocate
at Fort Huachuca detailing then-Captain R’s duties as Chief of
Military Justice, an affidavit from a CID agent describing
interactions between CID agents and then-Captain R, and an
affidavit from the Ethics Counselor at Fort Huachuca describing
his review of Mr. R’s post-government employment situation in
connection with the current case.
Mr. R entered a special appearance to contest the
Government’s disqualification motion. He filed a response to
the motion and submitted an affidavit, describing his
responsibilities as Chief of Military Justice and his
involvement in the present case prior to the termination of his
military service. He also submitted a document signed by
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Appellant entitled “Waiver of Conflict of Interest” in which
Appellant requested representation by Mr. R and waived any
conflict.
The military judge conducted a pretrial session under
Article 39(a), UCMJ, 10 U.S.C. § 839(a) (2000), in which both
parties presented their views on the disqualification motion.
The military judge granted the motion and entered detailed
written findings of fact and conclusions of law.
In his findings of fact, the military judge found that Mr.
R’s job responsibilities as Chief of Military Justice included
supervising and training junior trial counsel, as well as
advising CID agents and military commanders on military justice
matters. In addition, the military judge found that the Fort
Huachuca CID office began investigating Appellant in April 2003
for numerous offenses, including larceny of government property,
an offense later referred against Appellant.
The military judge found that on June 13, 2003, a CID agent
sent a status report on the investigation to Appellant’s company
commander. Two days later, the company commander forwarded this
report to Mr. R and the trial counsel responsible for
Appellant’s company. In this e-mail, the company commander
wrote that he was seeking “advise [sic] on [Appellant’s] case.”
Mr. R then e-mailed the CID status report to the judge advocate
who was set to take over the Chief of Military Justice position
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on July 1, 2003. Mr. R advised the incoming Chief of Military
Justice to review the attached status report, and further
stated: “Note the confession. Advise you to test the quality
of the confession [before] making a recommendation.” The
military judge found that Mr. R’s message was directed
principally at the incoming chief but also was sent to
Appellant’s company commander and two trial counsel in the
Military Justice Division. Two weeks later, while Mr. R was on
terminal leave, a CID agent investigating additional allegations
against Appellant contacted Mr. R to discuss whether a
kidnapping charge could be brought against Appellant. The
military judge found that during this conversation, Mr. R
learned the general facts of the case and advised the agent on
the elements of kidnapping, an offense later referred against
Appellant.
The military judge concluded as a matter of law that 18
U.S.C. § 207(a)(2) prohibited Mr. R from representing Appellant
in the present case. The military judge noted Mr. R’s authority
as Chief of Military Justice, concluding that Mr. R was
performing his assigned responsibilities when he advised his
designated successor regarding Appellant’s confession and
discussed the elements of kidnapping with a CID agent. In that
context, the military judge found that Mr. R possessed official
responsibility over the Military Justice Division during CID’s
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active investigation of Appellant. The military judge also
observed that the Government had a substantial interest in
prohibiting conduct that could interfere with prosecutorial
discretion. In addition, the military judge concluded that
disqualifying Mr. R would not impermissibly infringe Appellant’s
Sixth Amendment right to counsel of choice.
III. DISCUSSION
We review a military judge’s decision on a motion to
disqualify counsel for an abuse of discretion. United States v.
Strother, 60 M.J. 476, 478 (C.A.A.F. 2005). The military
judge’s ruling will be overturned only if the findings of fact
are clearly erroneous or the decision is influenced by an
erroneous interpretation of the law. United States v.
Quintanilla, 63 M.J. 29, 35 (C.A.A.F. 2006). Appellant has not
demonstrated that the military judge’s findings of fact as to
the essential underlying events were clearly erroneous. The
primary disagreement between the parties is whether the military
judge erred in concluding that the facts provided an adequate
basis for finding under the statute that the “particular matter”
at issue in Appellant’s court-martial was “actually pending
under” Mr. R’s “official responsibility” as Chief of Military
Justice. See 18 U.S.C. § 207(a)(2)(B).
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In view of the broad discretion afforded a military judge
when acting on a pretrial disqualification motion, the military
judge is not required to determine whether there is proof beyond
a reasonable doubt that the attorney is guilty of a criminal
violation of 18 U.S.C. § 207(a)(2). We conclude that a record
that demonstrates a reasonable likelihood that counsel’s
representation would violate a statutory post-employment
restriction designed to protect the integrity of trial
proceedings is sufficient to show “a serious potential for
conflict” that may overcome the presumption in favor of the
accused’s counsel of choice. Wheat, 486 U.S. at 164. Under
such circumstances, the military judge has discretion to
disqualify counsel. See Campbell, 491 F.3d at 1310; In re Grand
Jury Subpoena Served Upon Doe, 781 F.2d 238, 250-51 (2d Cir.
1986) (recognizing that the right to counsel of choice can be
outweighed by an interest in the integrity of the judicial
system); cf. Wheat, 486 U.S. at 159 (stating that a trial judge
may refuse a defendant’s waiver of conflict-free representation
where defense counsel has a “previous or ongoing relationship
with an opposing party”); Kessenich v. Commodity Futures Trading
Comm’n, 684 F.2d 88, 99 (D.C. Cir. 1982) (observing, in a civil
case, that “the possibility that continued representation may be
illegal militates strongly in favor of disqualification in order
to maintain the integrity of this court’s processes”).
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In the present case, the military judge found that the
official responsibilities of Mr. R while in government service
included providing advice on pending cases to CID agents and to
other military attorneys. The military judge also found that
Mr. R provided such advice with respect to the investigation of
Appellant that led to the charges at issue in the present
appeal. These events took place within the statutory one-year
period before the termination of Mr. R’s military service, and
the court-martial occurred within the statutory two-year period
after the termination of his service. See 18 U.S.C.
§ 207(a)(2). These findings were sufficient to demonstrate a
reasonable likelihood that Mr. R’s representation of Appellant
at trial would violate a statute designed to protect the
integrity of government functions, including trial proceedings.
Therefore, Mr. R’s continued representation created “a serious
potential for conflict,” which provided a sufficient basis for
the military judge to refuse Appellant’s waiver of conflict-free
representation. Wheat, 486 U.S. at 164. Accordingly, the
decision by the military judge to disqualify counsel did not
constitute an abuse of discretion, and did not deprive Appellant
of his right to counsel of choice under the Sixth Amendment.
See id. at 159, 162-64.
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IV. DECISION
The decision of the United States Army Court of Criminal
Appeals is affirmed.
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