United States v. Kelly

16 M.J. 244, 1983 CMA LEXIS 18176

• Court: United States Court of Military Appeals
• Decided: August 29, 1983
• Docket: No. 37,574; CGCM 9952
• Status: Published

Opinions

Opinion of the Court

EVERETT, Chief Judge:

Appellant’s activities as Housing Officer for the First Coast Guard District led to his being charged in 104 specifications with violations of 7 articles of the Uniform Code of Military Justice. As a result of the Article 32¹ investigation and the pretrial advice from the district legal officer, only 5 charges with a total of 45 specifications were referred for trial by the Commander, First Coast Guard District.² A general court-martial with members found appellant guilty of selling without proper authority a $100³ lawn mower owned by the United States; wrongfully appropriating a government pickup truck on two occasions; wrongfully obtaining the services of certain subordinates to perform personal tasks for appellant; and wrongfully soliciting an enlisted man to make a false official statement about rental of a truck, in violation of Articles 108,121, and 134, UCMJ, 10 U.S.C. §§ 908, 921, and 934, respectively. Kelly was sentenced to be reprimanded and to forfeit $200 pay per month for 3 months.

In view of the sentence imposed, only a summarized record of trial was prepared, as permitted by Article 54(a) of the Code, 10 U.S.C. § 854(a). Since the convening authority had granted immunity to a witness, the case was reviewed by a substitute convening authority — the Commander, Seventh Coast Guard District — whose legal officer prepared a lengthy review of the case. Despite extensive comments submitted by trial defense counsel pursuant to United States v. Goode, 1 M.J. 3 (C.M.A.1975), the substitute convening authority approved the findings and sentence.

The case was referred to the Coast Guard Court of Military Review for review pursuant to Article 69, UCMJ, 10 U.S.C. § 869; and that court affirmed the findings and sentence. 7 M.J. 681 (1979). Thereupon, the General Counsel of the Department of Transportation certified the case to our Court for review of this issue:

WAS THE COURT OF MILITARY REVIEW CORRECT IN DECIDING THAT THE GOVERNMENT COMPLIED WITH ARTICLES 27 AND 38(b) OF THE UCMJ BY ASCERTAINING THE DEFENDANT’S DESIRE FOR A PARTICULAR MILITARY DEFENSE COUNSEL AND THEN ASSIGNING THAT PARTICULAR COUNSEL TO FUNCTION AS BOTH DETAILED DEFENSE COUNSEL AND INDIVIDUAL MILITARY COUNSEL?

I

Our review of this case has been hindered in two ways. First, since the record of trial is summarized, some of the relevant facts are obscure. Secondly, the certified issue does not mesh with the facts of the case. Indeed, if that issue were answered in the abstract, the only answer that could be given under Articles 27 and 38(b) of the Code, 10 U.S.C. §§ 827 and 838(b), respectively— as they existed at the time of trial — would be in the negative. Article 38(b) contemplated that an accused might have both an individual military counsel and a detailed counsel, in which event the detailed counsel would “act as ... associate counsel.” See, e.g., United States v. Jordan, 22 U.S.C.M.A. 164, 46 C.M.R. 164 (1973). There was no provision under the Code or Manual for the same lawyer to serve simultaneously as “detailed” counsel and as individual military counsel.

The facts of this case, however, pose a different issue. On June 25,1976, appellant was informed that he was under investigation for suspected violations of the Uniform Code. Subsequently his office, apartment, personal gear locker, and other areas within his custody were searched. Then, on June 28,1976, he was relieved of his duties pending the outcome of the investigation.

According to a stipulation of fact later entered into at trial by the parties, on that same date Lieutenant Kenney, a Coast Guard lawyer in the First District Legal Office, was “made available as counsel for” appellant. The scope of Kenney’s representation is unclear from the record; but it at least included efforts during July 1976, to obtain return to appellant of a car and other items seized from him by the Coast Guard. Also, Kenney drafted a letter from appellant to the Commandant of the Coast Guard appealing the withholding of Kelly’s pending promotion.

After formal charges were preferred against appellant on September 10,1976, he requested that Commander F.W. White, a lawyer assigned to the Twelfth Coast Guard District Legal Office, represent him in the Article 32 investigation. White was made available for this purpose and served during the entire investigation. Meanwhile, on September 19, 1976, Lieutenant Kenney commenced 47 days of temporary duty at the Reserve Training Center, Yorktown, Virginia.

After the convening authority decided to proceed with the general court-martial, appellant wrote him on January 26,1977, concerning “Detailed Military Counsel; request for.” The letter states:

It is hereby requested that CDR Floyd W. White, Jr., 230 44 7688, USCG, be made available to act as my Detailed Military Counsel and represent me in my forthcoming General Court-Martial.

The background for this request is provided by a letter of February 7, 1977, from Lieutenant Kenney to the First District Legal Officer, wherein he states:

1. On 26 January 1977, I consulted with CW02 Vincent B. KELLY and advised him that I was proffered as his detailed military counsel in his forthcoming General Court-Martial in accordance with your oral advisement to me which was subsequently reflected on the 31 January 1977 legal docket. At that time, in compliance with Legal Office Memorandum 3-75, I advised CW02 KELLY of his rights as to detailed counsel within or without the District and also of his rights as regards individual military counsel. In addition, I advised CW02 KELLY of my perception of the state of the law relative to his rights to individual military counsel, detailed counsel, and individual civilian counsel.

2. My advice to CW02 KELLY was that, based on my understanding of the law, he was entitled to detailed counsel plus individual military counsel or individual civilian counsel, but not all three. Thereafter, I permitted CW02 KELLY to use my phone for purposes of contacting CDR WHITE, who had been his individual military counsel at the Article 32 Investigation, for purposes of obtaining his advice as to the advisability of accepting or rejecting myself for assignment as detailed counsel. Following his conversation with CDR WHITE, a conversation in which I also participated, CW02 KELLY elected to request that CDR WHITE be “detailed” as his counsel and it was my understanding that thereafter I would be requested for assignment as “assistant defense counsel.”

Thereafter — both before and at trial— Commander White insisted that, because of Lieutenant Kenney’s earlier involvement with appellant before charges were preferred, an attorney-client relationship was established which required that Kenney be detailed by the convening authority to represent appellant in any subsequent court-martial. Under this theory, since Commander White had been “detailed” as defense counsel by the orders which convened the general court-martial, the convening authority was obligated to appoint Lieutenant Kenney as an assistant defense counsel. From appellant’s premise that the attorney-client relationship with Kenney had been established and could not later be terminated by the convening authority without good cause, he reasoned that he was not required to request that Kenney be allowed to serve as his individual military counsel, pursuant to Article 38. Instead, he asserted that he was already entitled to Kenney’s services and he objected to the failure of the convening authority to detail Kenney as an assistant defense counsel.

II

We do not agree with this logic. For one thing, it is unclear from the record that the scope of Kenney’s representation of appellant was such as to establish the type of relationship which our Court had in mind in stating that an attorney-client relationship cannot be terminated by a convening authority without good cause. See United States v. Rachels, 6 M.J. 232, 234 (C.M.A.1979). Assuming, however, that good cause was required, the request by appellant that a different lawyer — Commander White — be appointed to represent him in the Article 32 investigation removed any further obligation, whatever its nature, for the convening authority to detail Kenney as a defense counsel.

Of course, we would be confronted with an entirely different problem if, after Kenney had represented him in July 1976, appellant had requested unsuccessfully that he serve as his counsel for purposes of the Article 32 investigation. In that instance, the earlier representation might be a significant factor to consider in determining whether Kenney was “reasonably available.” See Article 32(b).

Once Commander White had been chosen by appellant to represent him during the Article 32 investigation and had served in that capacity during the entire investigation, an attorney-client relationship had been established between Kelly and White that could not have been terminated without good cause. Under those circumstances, if the convening authority had detailed someone other than Commander White to serve as defense counsel for the trial, appellant could have requested his services under Article 38(b). If White had then been declared not “reasonably available” by his own commander, the Government would have had a difficult burden to bear in supporting that determination.

Faced with such prospects, the convening authority could have determined quite prudently that in the first instance he might as well “detail” Commander White as the defense counsel under Article 27(a). Certainly there is no bar under Article 27(a) to detailing as a defense counsel the military lawyer who has already represented an accused pursuant to Article 32(b). Indeed, it would seem logical to do this in most instances, for then the detailed counsel already would be familiar with the case.

As noted earlier, appellant specifically requested that Commander White be detailed to represent him. In detailing defense counsel to represent an accused in a general or special court-martial, a convening authority is under no obligation to consider the preferences of the accused. However, we cannot imagine how an accused can complain if his preferences are complied with. Thus, while the convening authority could properly have detailed White as the defense counsel for appellant’s general court-martial even without any request by appellant that he do so, the request provided an additional justification for the convening authority’s action.

According to Article 27(a), a convening authority of a general or special court-martial may detail such assistant trial counsel and defense counsel “as he considers appropriate.” To guide the convening authority in the exercise of his discretion in this regard, the Manual for Courts-Martial states:

In general, it is desirable that as many assistant defense counsel as assistant trial counsel be detailed, and that officers be detailed as assistant defense counsel and assistant trial counsel who have comparable military experience and legal qualifications.

Para. 6d, Manual for Courts-Martial, United States, 1969 (Revised edition). A single trial counsel was appointed to prosecute appellant; and so the failure of the convening authority to appoint Lieutenant Kenney as an assistant defense counsel did not violate the Manual’s intent.

If appellant had requested that Lieutenant Kenney be appointed to serve as his individual military counsel under Article 38(b), we again would be confronted with a different issue. In that event, Kenney’s commander — who in this instance was also the convening authority — would have determined whether the lawyer was “reasonably available.” Among the factors that might have related to this determination were Kenney’s previous familiarity with the case, his workload,' and the circumstance that his service as counsel would not require substantial travel on his part or expense to the Government. While Article 38(b), as it then existed, contemplated that the individual military counsel would be the lead counsel and the detailed counsel would serve as “associate counsel,” that relationship could be adjusted by the respective counsel in the best interests of their client. Certainly Commander White and Lieutenant Kenney would have been free to determine between themselves, with appellant’s consent, what would be their respective roles at trial.

If appellant had employed different tactics, perhaps he would have been provided by the convening authority with the services of both Commander White and Lieutenant Kenney. However, we must consider only the record before us, and on that basis we perceive no error or omission by the convening authority in providing counsel for Kelly. Moreover, in the present case we find no valid basis for complaint by appellant. He was supplied with a lawyer who — as is obvious even from the summarized record — defended him vigorously and skillfully. This attorney was from an entirely different command located in another part of the country. Therefore, he was not subject to any risk of command influence by the convening authority. While it might have been convenient for Commander White to have been provided the services of Lieutenant Kenney as “local counsel” in Boston, where the trial took place, the record contains no indication that the quality of the defense was impaired in any way because Commander White was assigned to a distant command. Indeed, in view of the vast number of charges that faced appellant at the outset and the ultimate outcome of the case, the results of the representation by Commander White might well be characterized as spectacular.

Accordingly, the decision of the United States Coast Guard Court of Military Review is affirmed.

Judge COOK concurs.

1 . UCMJ, 10 U.S.C. § 832.

2 . These specifications are set out in the 13 unnumbered pages of the summarized record between pages 3 and 4. The court-members were initially given 26 specifications to consider. See App.Ex. XXXIV. Of these, only 18 were submitted for findings, since motions for findings of not guilty were granted as to 5 others and the remaining 3 were withdrawn by trial counsel. Of the 19 referred specifications which were never submitted to the court-members, 6 were withdrawn and 13 were dismissed during pretrial sessions. General Court-Martial Order 4-77 dated December 12, 1977, erroneously sets out only the offenses listed in App.Ex. XXXIV. This order should have set out the 45 specifications referred to trial and the action taken as to each one. See Appendix 15, pages A15-1 and A15-2, Manual for Courts-Martial, United States, 1969 (Revised edition). The GCMO must be corrected to satisfy this requirement.

3 . GCMO 4-77 fails to reflect that in their findings as to specification 1 of Charge I the members excepted “$250.00” and substituted “$100.00.” (R. 76.) The court below directed that this omission be corrected. 7 M.J. 681, 684 (1979).