United States v. Saenz

18 M.J. 327, 1984 CMA LEXIS 18679

• Court: United States Court of Military Appeals
• Decided: August 6, 1984
• Docket: No. 45185; ACM 23526
• Status: Published

Opinions

Opinion of the Court

COOK, Senior Judge:

Pursuant to his pleas, the accused was convicted by general court-martial, military judge alone, of wrongfully possessing 363 grams of marijuana, in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934. He was sentenced to a bad-conduct discharge, confinement at hard labor for 1 year, forfeiture of $200.00 pay per month for 10 months, and reduction to pay grade E-3. The convening authority approved the sentence as adjudged. The Court of Military Review affirmed the findings and sentence.

The issue in this case concerns the denial of accused’s request for individual defense counsel. 15 M.J. 332 (1983). The initial request came prior to the initiation of the Article 32 investigation. The accused requested Captain Denninghoff¹ 2to represent him “in all proceeding [sic] concerning the disposition of the charges against me” and gave these supporting reasons:

2. Captain Denninghoff has been my lawyer for over one year. He has advised me on numerous occasions in regard to divorce and family matters. He has also assisted me in preparing my tax forms in the past. Additionally I have spoken with him on several occasions concerning the allegations presently facing me.

3. Captain Denninghoff is a judge advocate. He was formally a member of the 18 CSG base legal office. He has been an area defense counsel in the past. He is qualified in accordance with Article 27(b) UCMJ [10 U.S.C. 827(b)] and Article 42(a) UCMJ [10 U.S.C. 842(a) ]. Captain Denninghoff is presently a member of 18 CSG, Kadena Air Base.

This request was denied by the Group Commander, who was the special court-martial convening authority, for three reasons:

a. First, Captain Denninghoff is no longer a judge advocate nor certified in accordance with Article 27(b), UCMJ. Your detailed defense counsel, Captain Gary L. Napier, is a judge advocate and appropriately certified.

b. Secondly, although Captain Denninghoff may have advised you on several personal civil problems and prepared your tax return, this advice does not establish a permanent and continuing attorney-client relationship for all matters which subsequently arise.

c. Third, Captain Denninghoff is my Executive Officer and is a key support figure in the operation of my office. His normal workload precludes him from accepting any further special duties.

At trial the accused renewed his request for Captain Denninghoff as individual counsel² and bolstered his original reasons with a document outlining the history of his requests and an offer of proof as to the expected testimony of Captain Denninghoff. The military judge, after expressing concern over conflict of interest by virtue of Captain Denninghoff s position as executive officer to the special court-martial convening authority, denied the request on the grounds that Captain Denninghoff was not reasonably available.³

There appears to be little doubt that the accused gave confidential information to Captain Denninghoff and that the latter assisted in the preparation of his defense. In other situations this might have been sufficient to create an attorney-client relationship which could be terminated only for good cause rather than non-availability. United States v. Rachels, 6 M.J. 232 (C.M.A. 1979); United States v. Eason, 21 U.S.C.M.A. 335, 45 C.M.R. 109 (1972). However, the panoply of facts here takes this case out of that rule. Although Captain Denninghoff was once a judge advocate and a certified defense counsel, he no longer served in that status. He was at all pertinent times a line officer serving an Air Force commander. The fact that he was also a member of the bar of Iowa at that point was irrelevant to his military duties. There must have been a military reason for Captain Denninghoff to give up his legal duties (and certification) to assume line duties. Consequently, he must be considered in terms of his assigned duties rather than as being an attorney-counsel.

Although the special court-martial convening authority did not convene the general court-martial which tried the accused, he was involved in investigating the charge and making recommendations as to its disposition. In view of his role as executive officer to that commander, Captain Denninghoff would have a conflict of interest if he had defended the accused. With the consent of both parties, this conflict could have been waived. Obviously the accused would have agreed to waive such a conflict. However, the Government had no obligation to similarly waive the conflict. While a relationship of attorney-client can only be severed “for good cause,” certainly this conflict constitutes “good cause” to refuse or deny the services of Captain Denninghoff as individual counsel. Thus, Saenz has no valid complaint for denial of the services of a lawyer who for ethical reasons would have been hampered in the scope of his representation.

We also have doubts as to whether the relationship between Saenz and Denninghoff can be characterized as that of attorney-client. Certainly such a relationship cannot be created unilaterally. There is a question as to whether such relationship could be created with Denninghoff in view of his duty assignment. Thus Denninghoff was treading a narrow ethical line when he undertook to assist the accused in his plea-bargaining attempts.

In either alternative, whether “good cause” existed to sever the relationship or whether such relationship was never properly created, there was no error in denying the services of Captain Denninghoff to the accused as individual counsel. We have examined the record of trial and find nothing wanting in the representation provided by the appointed defense counsel. Indeed, his vigorous presentation of mitigating evidence resulted in a sentence well beneath that set out in the pretrial agreement.⁴

Finding no error prejudicial to the substantial rights of the accused, we affirm the decision of the United States Air Force Court of Military Review.

Judge FLETCHER concurs.

1 . The accused pleaded guilty pursuant to a pretrial agreement containing the signature of Captain Napier as "Defense Counsel.” However, other evidence offered at trial indicated that Captain Denninghoff had discussions with the Chief of Military Justice for the special court-martial convening authority concerning "plea negotiations." Captain Napier served as defense counsel at the Article 32, Uniform Code of Military Justice, 10 U.S.C. § 832, investigation as well as at trial. There is no indication that Captain Denninghoff had such unique insight into the case that he would be "presumed to be the only source for the defense team who could accurately gauge the credibility and validity of evidence on matters relating to the events” of the offense. See United States v. Eason, 21 U.S.C.M.A. 335, 338, 45 C.M.R. 109, 112 (1972).

2 . We note that the accused did not appeal the original denial to "the next echelon of command” as provided for by paragraph 3-6.1(e), AFM 111-1.

3 . The military judge also made reference to 18 U.S.C. § 205 in support of his decision. This section provides in pertinent part:

Whoever, being an officer or employee of the United States in the executive, legislative, or judicial branch of the Government or in any agency of the United States, ... otherwise than in the proper discharge of his official duties—

acts as agent or attorney for anyone before any department, agency, court, court-martial, ... or any civil, military, or naval commission in connection with any proceeding, ... charge, accusation, arrest, or other particular matter in which the United States is a party or has a direct and substantial interest—

Shall be fined not more than $10,000 or imprisoned for not more than two years, or both.

This section would have prevented Captain Denninghoff from acting as accused’s counsel, unless he had specifically been made available for that purpose.

4 . The pretrial agreement limited punishment which could be approved to a bad-conduct discharge, confinement at hard labor for 18 months, reduction to the grade E-l, and forfeitures of two-thirds pay in the grade to which reduced and further provided that no fine would be approved and that equivalent punishments would not be applied to substitute punishment which would change the maximum amount of confinement or forfeitures.