United States v. Hohman

UNITED STATES, Appellee
v.
Caleb P. HOHMAN, Sergeant
U.S. Marine Corps, Appellant
No. 11-6004
Crim. App. No. 201000563
United States Court of Appeals for the Armed Forces
Argued May 18, 2011
Decided May 31, 2011
PER CURIAM
Counsel
For Appellant: Lieutenant Michael R. Torrisi, JAGC, USN
(argued).
For Appellee: Lieutenant Kevin D. Shea, JAGC, USN (argued);
Colonel Louis J. Puleo, USMC, and Brian K. Keller, Esq.
Military Judge: Thomas J. Sanzi
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Hohman, No. 11-6004/MC
PER CURIAM:
The present case involves a government appeal of an
interlocutory ruling by the military judge abating the
proceedings in the court-martial of Sergeant Caleb P. Hohman.
See Article 62, Uniform Code of Military Justice (UCMJ), 10
U.S.C. § 862 (2006). The pending charges include violation of a
lawful general order, dereliction of duty, and involuntary
manslaughter in violation of Articles 92 and 119, UCMJ, 10
U.S.C. §§ 892, 919 (2006). The primary issue on appeal concerns
the status of Captain (Capt) Robert F. Muth, United States
Marine Corps Reserve, as detailed military defense counsel under
Articles 27 and 38(b)(3)(A), UCMJ, 10 U.S.C. §§ 827,
838(b)(3)(A)(2006).1
I.
On March 19, 2008, the convening authority referred charges
against Appellant for trial by general court-martial.
Throughout the ensuing proceedings, Mr. Joseph Low has
represented Appellant as civilian defense counsel. After a
series of detailed defense counsel had been detailed to the case
and released by Appellant, the Marine Corps assigned Capt Muth
1
See 70 M.J. 37 (C.A.A.F. 2011) (order granting petition for
review).
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United States v. Hohman, No. 11-6004/MC
on April 17, 2009, to serve as Appellant’s detailed military
defense counsel.
Capt Muth, who faced separation from active duty on October
1, 2009, submitted two administrative requests for extension of
active duty in order to continue his representation of
Appellant. The administrative authorities granted an extension
until December 1, 2009, but denied any further extension. Capt
Muth left active duty on December 1, 2009. Two days later, on
December 3, the Marine Corps assigned Capt L. T. Kunce to serve
as detailed military defense counsel.
Prior to his December 1, 2009, departure from active duty
and from his duties as detailed military defense counsel: (1)
Capt Muth did not seek the permission of the military judge to
withdraw from representation in the ongoing trial as required by
the applicable rules, see Dep’t of the Navy, Judge Advocate
General Instr. 5803.1.C, para. 16e(2) (Nov. 4, 2004); (2) the
defense team did not bring to the attention of the military
judge the details of Capt Muth’s request to remain on active
duty or the actions taken by administrative authorities in
response to that request; and (3) the defense team did not move
for relief in the form of a motion requesting that Capt Muth
remain a part of the defense team.2
2
The record reflects that on November 16, 2009, prior to the
termination of Capt Muth’s active service, the military judge
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United States v. Hohman, No. 11-6004/MC
On September 15, 2010, over nine months after Capt Muth’s
termination of active service, the military judge concluded that
the Marine Corps erroneously had severed the attorney-client
relationship without good cause, and that the appropriate remedy
required abatement of the proceedings pending restoration of
Capt Muth as detailed defense counsel. The Government filed an
interlocutory appeal, and the United States Navy-Marine Corps
Court of Criminal Appeals set aside the abatement order. No.
NMCCA 201000563, 2011 CCA LEXIS 14, at *10, 2011 WL 311041, at
*4 (N-M. Ct. Crim. App. Jan. 31, 2011) (unpublished). The
defense has asked this Court to reverse the decision of the
court below.
II.
The military judge erred in this case by not taking
appropriate action to address this matter prior to Capt Muth’s
departure from active duty on December 1, 2009. The Rules for
indicated that he was aware of Capt Muth’s impending departure
from active duty. The military judge stated that he wished to
discuss the matter with Appellant, but civilian defense counsel
interjected, requesting more time to discuss the matter with the
accused. The military judge granted this request and stated
that he would revisit the issue at a later hearing. The
military judge, however, did not revisit the issue prior to the
departure of Capt Muth from active duty on December 1, 2009, and
his replacement by Capt Kunce on December 3, 2009. There was no
further discussion on the record regarding Capt Muth’s departure
until April 6, 2010, four months after his departure from active
service.
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United States v. Hohman, No. 11-6004/MC
Courts-Martial (R.C.M.) provide specific options for severance
of the attorney-client relationship under R.C.M. 505(d)(2)(B)
and 506(c). United States v. Hutchins, 69 M.J. 282, 289
(C.A.A.F. 2011). Among those options, “defense counsel may be
excused ‘by the military judge upon application for withdrawal
by the defense counsel for good cause shown.’” Id. at 290(quoting R.C.M. 506(c)). Where the parties have indicated that
a defense member has been excused under R.C.M. 505(d)(2)(B),
“the military judge must ensure under R.C.M. 813(c) that: (1)
the record demonstrates that a competent detailing authority has
determined that good cause exists for excusing counsel; and (2)
that the record sets forth the basis for the good cause
determination.” Id. at 291. In the present case, the military
judge failed to place any of the approved reasons for severing
the attorney-client relationship on the record prior to the
departure of Capt Muth from active duty. We test such an error
for prejudice. Id. at 292.
We clarified in Hutchins that “[a]lthough separation from
active duty normally terminates representation, highly
contextual circumstances may warrant an exception from this
general guidance in a particular case.” Id. at 290-91. In this
case, Appellant has not demonstrated any circumstances that
would warrant an exception from the general guidance. Moreover,
under the specific circumstances of this case, including the
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United States v. Hohman, No. 11-6004/MC
responsibilities of Capt Muth in relation to the defense team,
Appellant has not established that the assignment of Capt Kunce
as detailed military defense counsel on December 3, 2009, was
insufficient to remedy the procedural error in the severance of
Capt Muth’s status as detailed military defense counsel on
December 1, 2009.
Accordingly, the judgment of the United States Navy-Marine
Corps Court of Criminal Appeals is affirmed. The case is
remanded to the Judge Advocate General of the Navy who shall
return the case to the military judge for further proceedings
consistent with this opinion.
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