United States v. Province

45 M.J. 359
CourtCourt of Appeals for the Armed Forces
DecidedSeptember 30, 1997
DocketNo. 95-1107; Crim.App. No. 92-1495
StatusPublished
Cited by7 cases

This text of 45 M.J. 359 (United States v. Province) is published on Counsel Stack Legal Research, covering Court of Appeals for the Armed Forces primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Province, 45 M.J. 359 (Ark. 1997).

Opinion

Opinion of the Court

COX, Chief Judge:

Appellant was originally convicted, pursuant to his pleas, by a military judge sitting [360]*360alone as a special court-martial at Marine Corps Base, Quantieo, Virginia, of unauthorized absence (2 specifications), in violation of Article 86, Uniform Code of Military Justice, 10 USC § 886. He was sentenced to a bad-conduct discharge, confinement for 90 days, forfeiture of $100 pay per month for 4 months, and reduction to pay grade E-l. The convening authority approved the sentence but in clemency suspended all confinement in excess of 67 days for 12 months from the date of trial. On June 27, 1995, the Court of Criminal Appeals dismissed the first specification of unauthorized absence as not stating an offense and as being unlawfully modified after the statute of limitations had expired. That court affirmed the findings of guilty of the remaining specification of unauthorized absence and affirmed the original sentence. 42 MJ 821 (1995). We granted review on February 16, 1996, of three issues raised by appellate defense counsel.1

FACTS

On May 5, 1986, appellant began a period of unauthorized absence by failing to return from an authorized liberty period. On June 6, 1986, appellant’s command preferred a single charge and specification against appellant alleging unauthorized absence in violation of Article 86. Appellant ended the original unauthorized absence at 0335 hours on December 31, 1987, by voluntarily surrendering himself to military authorities in Norfolk, Virginia. The authorities there then issued appellant stragglers’ orders2 directing him to report to his original command in Quantieo, Virginia. Appellant acknowledged these orders, yet again failed to present himself to the ordered location on January 1,1988, thus beginning a second period of unauthorized absence almost immediately.

Appellant ultimately returned to the Pittsburgh, Pennsylvania, area where he was apprehended by civilian authorities after being stopped for a traffic violation. He was then turned over to the military by these civilian authorities.

On March 6,1992, the convening authority, then believing the absence to be one period, referred a single specification of unauthorized absence covering the period from 0531 hours, May 5, 1986, through February 24, 1992. During a pretrial meeting with his counsel, appellant gave the stragglers’ orders to his trial defense counsel. Trial defense counsel subsequently turned over a copy of the orders to trial counsel during pretrial negotiations, believing that this matter would come out during the providence inquiry and complicate the plea. See United States v. Francis, 15 MJ 424 (CMA 1983). Additionally, he hoped that appellant’s voluntary return on a previous occasion would serve as mitigation. Moreover, trial defense counsel asserted that he used this information during pretrial negotiations with the convening authority for a proposed administrative separation in lieu of trial, which was denied shortly [361]*361before trial.3

Trial counsel turned the orders over to the convening authority, who then referred an Additional Charge of unauthorized absence against appellant on March 27, 1992, the second Charge covering the period from January 1, 1988, to February 24, 1992. Appellant was tried on April 9,1992, 13 days after this Additional Charge was referred.

At trial, defense counsel made a motion to dismiss the original Charge and specification for failure to state an offense because the charge failed to state the words of criminality, “without authority.” The military judge denied that motion. At that time, trial defense counsel took a brief recess to consult with appellant and withdrew a second defense motion to suppress the entry of the stragglers’ orders into evidence.

The Court of Criminal Appeals subsequently dismissed the original Charge and specification, holding that the pen-and-ink change made at trial to include the words “without authority’ in the original charge created an amended specification barred by the statute of limitations. That court held that failure of the military judge to advise appellant of that fact and to obtain a waiver of the statute of limitations on the record required dismissal of the Charge and specification. 42 MJ at 825.

Discussion

We address three questions regarding disclosure of the “stragglers’ orders.” See n. 2, supra. First, whether the disclosure was a violation of Rule 1.6 of the ABA Model Rules of Professional Conduct,4 which prevents disclosure of information relating to the representation of a client. Second, whether disclosure of the document was required by Rule 3.4 of the Model Rules of Professional Conduct,5 which prevents a party from denying [362]*362or blocking another party’s access to evidence and material having potential evidentiary value. Third, whether trial defense counsel’s disclosure of this document to trial counsel in negotiations amounted to ineffective assistance of counsel.

I

We hold that disclosure of the stragglers’ orders to trial counsel did not violate Model Rule of Professional Conduct 1.6 because the disclosure was made to further effective representation. Rule 1.6(a) states in pertinent part, “A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation----” The record supports the conclusion that the client wanted to plead guilty to the unauthorized absences because no legal defense appeared to be viable, and the client desired to avoid as much confinement as possible. Pleading guilty under the circumstances was a much better alternative than contesting the case on the question of a change made before arraignment, attempting to invoke the statute of limitations, and appealing these questions while in the brig. Disclosure of this material in advance of the plea facilitated the result that appellant deemed desirable. There was no guarantee that if this information was withheld appellant would have received the windfall of no conviction whatsoever.6 Defense counsel, in disclosing this information, was acting in the best interests of his client and was attempting to secure the best result possible under the circumstances for a client who had been an unauthorized absentee for over 5 years, during both Operations Desert Shield and Desert Storm.

Additionally, the disclosure of the extremely brief break in time between unauthorized absences seemed to be a matter that was raised to facilitate acceptance of the plea in order to secure the benefits of the mitigating effects of a plea. Moreover, defense counsel states in his affidavit that he was attempting to persuade and bargain with the convening authority for an administrative discharge in lieu of trial. The disclosure of the stragglers’ orders was made in facilitation of representation, and defense counsel would be impliedly authorized to disclose this information for this purpose. We find no support for either side regarding whether appellant expressly consented to such a disclosure of this information. Lastly, this case was referred to a special court-martial where the sentence was limited by jurisdiction. See Art. 19, UCMJ, 10 USC § 819.

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Bluebook (online)
45 M.J. 359, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-province-armfor-1997.