United States v. Spriggs

48 M.J. 692, 1998 CCA LEXIS 225, 1998 WL 288720
CourtArmy Court of Criminal Appeals
DecidedJune 4, 1998
DocketARMY 9601685
StatusPublished
Cited by1 cases

This text of 48 M.J. 692 (United States v. Spriggs) is published on Counsel Stack Legal Research, covering Army Court of Criminal 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. Spriggs, 48 M.J. 692, 1998 CCA LEXIS 225, 1998 WL 288720 (acca 1998).

Opinion

OPINION OF THE COURT

CAIRNS, Judge:

A panel of officer and enlisted members convicted the appellant at a fully-contested general court-martial of dereliction of duty, distribution of marijuana (three specifications), adultery (two specifications), and solic[694]*694itation of another to distribute a controlled substance in violation of Articles 92, 112a, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 892, 912a, and 934 (1988)[hereinaf-ter UCMJ]. The convening authority approved the adjudged sentence consisting of a dishonorable discharge, confinement for fifteen years and six months, forfeiture of all pay and allowances, and reduction to Private El.

The appellant asserts two errors in his Article 66, UCMJ, appeal: (1) that the military judge erred when he denied the appellant’s request for individual military counsel (IMC) because the denial severed appellant’s attorney-client relationship with a former active duty judge advocate; and (2) that the sentence is inappropriately severe. After consideration of the record, briefs, and oral argument, we disagree with the assertions of error and affirm.

FACTS

On 23 May 1996, the appellant was apprehended and placed into pretrial confinement on charges of distributing marijuana. Captain Novak, an officer assigned to the U.S. Army Trial Defense Service, was detailed as appellant’s defense counsel and represented him at the pretrial confinement hearing conducted the following day. On 27 June 1996, the appellant requested the convening authority to make Captain Maus, a reserve judge advocate, available to represent him as IMC. In his written IMC request, the appellant asserted that he had an existing attorney-client relationship with Captain Maus, who had represented the appellant at a previous court-martial while Captain Maus was on active duty, in that “CPT Maus has spoke (sic) to [appellant] about this case, and represented him in a prior court-martial.” The staff judge advocate did not submit the IMC request to the convening authority, but rather returned it to the appellant’s detailed defense counsel, stating that Captain Maus had been released from active duty three days prior to the appellant’s request.

On 25 July 1996, during the initial Article 39(a), UCMJ, session of the appellant’s trial, when the military judge advised the appellant of his rights to counsel, the appellant requested to be represented by Captain Maus as his IMC, with Captain Novak retained as detailed counsel. The appellant told the military judge, “I’ve talked to [Captain Maus] before everything started. Once everything got kicked off, when I got my charges read, I basically talked to him on the telephone ... about representing me in this ease.”1 The appellant’s detailed defense counsel argued that the appellant had established an attorney-client relationship with Captain Maus regarding this case; however, he submitted no evidence to substantiate the claim. Without receiving any evidence on the issue, the military judge ascertained through the representations of the appellant and counsel that: Captain Maus had been on terminal leave when the appellant was apprehended and confined; Captain Maus had been released from active duty at the time the appellant executed his IMC request; Captain Maus had been assigned to Presidio of Monterey prior to his release from active duty; Captain Maus had represented the appellant at a previous court-martial; and Captain Maus had told appellant that he would represent him in this case “if he could.” The appellant did not assert that the government acted in bad faith by releasing Captain Maus from active duty in an effort to deprive him of his counsel of choice. After learning that Captain Maus was a member of the Individual Ready Reserve (IRR), the military judge ordered the government to process the IMC request in accordance with Army regulations2 by forwarding it to Captain Maus’ IRR commander.

The appropriate IRR commander subsequently denied the IMC request, concluding that Captain Maus was not reasonably available because he had repeatedly refused to volunteer for active duty for the purpose of representing the appellant. Captain Maus declined voluntary active duty orders because he had just begun his civilian employ[695]*695ment and was filling in for his superior, who was trying a capital murder case. In denying the IMC request, the commander explained that a member of the IRR may only be involuntarily recalled to active duty in time of war or national emergency. Although counsel and the military judge apparently concurred with this interpretation of law, none of the parties at trial recognized that 10 U.S.C. § 12801 authorizes involuntary activation of a reservist at any time, without a declaration of war or national emergency, for a period of fifteen days.

When the issues were next considered on the record, neither the counsel nor the military judge addressed severance of the attorney-client relationship. Instead, they litigated whether Captain Maus was reasonably available, given his reserve status and refusal to consent to reentry on active duty. The military judge denied the appellant’s motion to compel production of Captain Maus.

On appeal, the appellant submitted the following affidavit executed by Captain Maus:

On or about 23 May 1996, while I was on terminal leave and working in a law firm in El Paso, Texas, I spoke with [appellant] regarding legal issues he was facing and I gave him legal advice. In fact, I remember speaking with him prior to 23 May 1996, regarding his legal problems, but I don’t remember the exact dates.

LAW

In the military justice system, an accused has the right to be represented at a general or special court-martial by a detailed military counsel or military counsel of his own selection, if the individually-selected military counsel is reasonably available. The accused may also be represented by civilian counsel, if provided by him at no expense to the government. Article 38(b), UCMJ; Rule for Courts-Martial 506 [hereinafter R.C.M.]. The Manual for Courts-Martial lists those officers who are deemed not reasonably available because of their duty assignments and authorizes the Secretary concerned to promulgate additional rules governing reasonable availability.

In exercising that authority, the Secretary of the Army has set forth in AR 27-10, para. 5-7, guidance for making availability determinations. The regulation provides that, notwithstanding the availability of the requested counsel, “if an attorney-client relationship exists between the accused and the requested counsel regarding matters that relate solely to the charges in question, the requested counsel will ordinarily be considered available to act as individual military counsel.” AR 27-10, para. 5-7e.

The elements required to form an attorney-client relationship are set forth in cases concerning the closely-related issue of when communications are protected by the privilege arising from the attorney-client relationship. United States v. McCluskey, 20 C.M.R. 261, 1955 WL 3563 (C.M.A.1955); United States v. Kellum, 23 C.M.R. 882, 1957 WL 4604 (1957).

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Related

United States v. Spriggs
52 M.J. 235 (Court of Appeals for the Armed Forces, 2000)

Cite This Page — Counsel Stack

Bluebook (online)
48 M.J. 692, 1998 CCA LEXIS 225, 1998 WL 288720, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-spriggs-acca-1998.