United States v. Hanson

24 M.J. 377, 1987 CMA LEXIS 2963
CourtUnited States Court of Military Appeals
DecidedAugust 31, 1987
DocketNo. 55765; CM 447756
StatusPublished
Cited by21 cases

This text of 24 M.J. 377 (United States v. Hanson) is published on Counsel Stack Legal Research, covering United States Court of Military Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Hanson, 24 M.J. 377, 1987 CMA LEXIS 2963 (cma 1987).

Opinion

Opinion of the Court

SULLIVAN, Judge:

During August 1985, appellant was tried by a military judge sitting alone as a general court-martial at Boeblingen, Federal Republic of Germany. In accordance with Ms pleas, he was found guilty of one specifica[378]*378tion of wrongful distribution of lysergic acid diethylamide (LSD), in violation of Article -112a, Uniform Code of Military Justice, 10 U.S.C. § 912a. He was sentenced to bad-conduct discharge, 17 months’ confinement, and partial forfeitures. Pursuant to a pretrial agreement, the convening authority reduced the term of confinement to 12 months but otherwise approved the sentence. The Court of Military Review affirmed the findings and sentence in a short-form opinion.

We granted appellant’s petition for review, specifying the following issues:

I
WHETHER THE MILITARY JUDGE COULD ORDER THAT APPELLANT’S DEFENSE COUNSEL BE REMOVED AS DETAILED COUNSEL IN THE CASE.
II
WHETHER SUCH ACTIONS BY THE MILITARY JUDGE PLACED SUCH A CHILL UPON THE DEFENSE COUNSEL’S ABILITY TO ADEQUATELY REPRESENT APPELLANT THAT APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL.

We hold that the military judge’s actions in the present case were authorized and did not deny appellant effective assistance of counsel.

At trial, Captain Kastenbauer, as detailed counsel, entered pleas of guilty on appellant’s behalf. Appellant’s responses to the providence inquiry raised a question in the military judge’s mind as to whether he may have been entrapped. The judge asked Captain Kastenbauer whether he had discussed the possibility of this defense with appellant. Captain Kastenbauer informed the military judge that, although he had considered the defense, he had not fully discussed it with appellant. The following colloquy ensued:

MJ: Your pleas are not provident and they’re not accepted. The issue is entrapment.
DC: Your Honor—
MJ: Captain Kastenbauer, I’m not finished.
The facts as I have them, a person who never had any dealings at all with contraband was induced by a government agent to have dealings with contraband. I’m also inclined to view that your handling of the case thus far, Captain Kastenbauer, falls below the minimum essential standards necessary to an adequate defense and you are relieved as detailed defense counsel. Now, I’m not intending to sever the attorney-client relationship here, PFC Hanson. If you want to keep Captain Kastenbauer on the case, you talk that over with the new defense counsel that’s appointed for you and one will be appointed for you by the Trial Defense Service. So if you want to keep him on the case, you talk that over with your new defense counsel. I do not wish to separate you from the attorney-client relationship you already have. If you want to keep it, work it out and if you want to keep it and they say you can’t keep him on the case, you let me know about it the next time we come into court and I'll work it out. This is not a severance of the attorney-client relationship, but in your best interest, I want you to have another shot at detailed defense counsel.

(Emphasis added.)

Court reconvened about 10 days later. In the interim, Captain Warner, the senior defense counsel for the local office of the Army Trial Defense Service, detailed himself as lead counsel in the case. He appointed Captain Kastenbauer as assistant defense counsel. After appellant expressed his satisfaction with both counsel, he again entered pleas of guilty.

During the second providence inquiry, appellant repudiated his entrapment defense, admitted prior involvement with the drug scene in general, and distributing drugs to an informant in the instant transaction. Captain Warner assured the mili[379]*379tary judge that he had discussed the issue of entrapment with appellant and that both were satisfied that there was no basis for the defense.

Captain Kastenbauer actively participated in the remainder of the trial. During sentencing, he cross-examined government witnesses, presented several defense witnesses, and made the closing argument. After sentence was announced, the defense team informed the military judge that Captain Kastenbauer would be responsible for receipt of the record of trial and preparation of a response to the staff, judge advocate’s recommendation. The recommendation was served on Captain Kastenbauer, who submitted a detailed two-page reply.

To resolve the specified issues, we start with the axiom that an accused is entitled to effective legal representation at trial. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d. 674 (1984); United States v. Scott, 24 M.J. 186 (C.M.A.1987). Moreover, to a somewhat lesser extent, he is constitutionally entitled to counsel of his own selection. See generally Flanagan v. United States, 465 U.S. 259, 104 S.Ct. 1051, 79 L.Ed. 288 (1984); Morris v. Slappy, 461 U.S. 1, 103 S.Ct. 1610, 75 L.Ed.2d. 610 (1983); United States v. McFadden, 19 U.S.C.M.A. 412, 42 C.M.R. 14 (1970). Finally, we have recognized that a military accused’s right to counsel is broader than the right of his civilian counterpart. United States v. Gnibus, 21 M.J. 1, 8 (C.M.A.1985); United States v. Catt, 1 M.J. 41 (C.M.A.1975); Art. 38(b), UCMJ, 10 U.S.C. § 838(b).

This Court has also been extremely protective of the relationship between an accused and his detailed counsel. Once counsel has been detailed and an attorney-client relationship established, that relationship may only be severed for good cause shown. United States v. Gnibus, supra; United States v. Iverson, 5 M.J. 440 (C.M.A. 1978); cf. United States v. Saenz, 18 M.J. 327 (C.M.A. 1984). While there may be some tension between this right and the right to effective counsel, we need not resolve that conflict today.

It must first be noted that the military judge did not sever the attorney-client relationship between appellant and Captain Kastenbauer, who remained as associate counsel and participated in appellant’s defense in the subsequent sessions of trial. See generally United States v. McFadden, supra. His reduced status on the defense team is not a factor of constitutional proportion. See United States v. Tavolilla, 17 U.S.C.M.A. 395, 400, 38 C.M.R. 193, 198 (1968) . Therefore, we need only determine whether the judge’s assignment of additional counsel and his demotion of Captain Kastenbauer were authorized and whether these actions indirectly impaired the effectiveness of appellant’s legal representation at trial.

A military judge has considerable responsibility for the proper administration of military justice. See generally United States v. Thomas, 22 M.J. 57, 58-59 (C.M.A. 1986); United States v. Browers, 20 M.J. 356, 360-61 (C.M.A. 1985) (Cox, J., concurring).

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Bluebook (online)
24 M.J. 377, 1987 CMA LEXIS 2963, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-hanson-cma-1987.