United States v. Wiechmann

67 M.J. 456, 2009 CAAF LEXIS 741, 2009 WL 2004036
CourtCourt of Appeals for the Armed Forces
DecidedJuly 9, 2009
Docket09-0082/MC
StatusPublished
Cited by15 cases

This text of 67 M.J. 456 (United States v. Wiechmann) 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. Wiechmann, 67 M.J. 456, 2009 CAAF LEXIS 741, 2009 WL 2004036 (Ark. 2009).

Opinions

Chief Judge EFFRON

delivered the opinion of the Court.

A general court-martial composed of a military judge sitting alone convicted Appellant, pursuant to his pleas, of failing to obey a lawful order, making a false official statement, conduct unbecoming an officer, adultery, and obstructing justice, in violation of Articles 92, 107, 133, and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 892, 907, 933, 934 (2000). The sentence adjudged by the court-martial included dismissal and confinement for ninety days. Pursuant to the pretrial agreement, the convening authority suspended all punishment for twelve months from the date of trial. The United States Navy-Marine Corps Court of Criminal Appeals affirmed. United States v. Wiechmann, No. NMCCA 200700593, 2008 CCA LEXIS 298, 2008 WL 3540244 (N.M.Ct.Crim.App. Aug. 14, 2008) (unpublished).

On Appellant’s petition, we granted review of the following issue:

WHETHER APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO COUNSEL WHEN THE CONVENING AUTHORITY AND STAFF JUDGE ADVOCATE FAILED TO RECOGNIZE ONE OF HIS TWO DETAILED DEFENSE COUNSEL.

[458]*458For the reasons set forth below, we conclude that the convening authority erred in treating one of Appellant’s defense counsel as not properly detailed. Under the circumstances of this case, we further conclude that the error was harmless beyond a reasonable doubt.

I. BACKGROUND

A. DETAIL OF DEFENSE COUNSEL

The accused has the right to be represented by counsel during an investigation under Article 32, UCMJ, 10 U.S.C. § 832 (2000), and before a general or special court-martial. Article 38(b)(1), UCMJ, 10 U.S.C. § 838(b)(1) (2000). See U.S. Const, amend. VI; United States v. Davis, 60 M.J. 469, 473 (2005). In the military justice system, the right to counsel includes the right to counsel detailed under Article 27, UCMJ, 10 U.S.C. § 827 (2000). The right to the services of detailed counsel “is substantial, and extends to both the pretrial and the trial proceedings.” United States v. Tellier, 13 C.M.A. 323, 327, 32 C.M.R. 323, 327 (1962). See United States v. Eason, 21 C.M.A. 335, 337-39, 45 C.M.R. 109, 111-13 (1972).

Under Article 27(a)(1), UCMJ, the secretaries of the military departments prescribe regulations governing the detail of military counsel. Although the accused does not have the right to more than one detailed counsel, “the person authorized by regulations prescribed under section 827 of this title (Article 27) to detail counsel, in his sole discretion ... may detail additional military counsel as assistant defense counsel.” Article 38(b)(6), UCMJ, 10 U.S.C. § 838(b)(6) (2000).

The authority to assign detailed defense counsel to a particular case is vested in the official designated under departmental regulations, and the accused is not entitled to detailed counsel of choice under Article 27(a). Compare Article 38(b), UCMJ, 10 U.S.C. § 838(b) (2000) (setting forth the right to representation by civilian counsel if provided by the accused and the right to representation by military counsel selected by the accused if reasonably available under departmental regulations). Although the accused does not have the right to detailed counsel of choice, once counsel has been detailed under Article 27(a) and an attorney-client relationship has been established, the convening authority may not undermine that relationship. See Rule for Courts-Martial (R.C.M.) 505(d)(2); Eason, 21 C.M.A. at 339-40, 45 C.M.R. at 113-14. The responsibility for any changes in the assignment of detailed counsel is vested in the authority competent to detail such counsel under departmental regulations, not the convening authority, and may be exercised only for good cause shown on the record or under the other limited circumstances provided in R.C.M. 505(d)(2)(B).

In June 2006, Captain Snow, the senior defense counsel at Marine Corps Base Hawaii, learned of an impending Article 32 investigation into charges against Appellant. Captain Snow detailed himself as defense counsel and requested a continuance of the investigation, which was granted. At that time, Captain Snow, who had one month of experience as defense counsel, expressed through defense counsel channels his need for assistance, noting Appellant’s retirement-eligible status. Captain Snow began to explore the possibility that Appellant would request a specific individual military counsel at government expense or obtain civilian counsel at Appellant’s own expense. See Article 38(b)(2)-(3), UCMJ.

The chief defense counsel of the Marine Corps detailed Lieutenant Colonel (LtCol) Shelburne, a reservist, to serve as Appellant’s defense counsel, thereby providing Appellant with both Captain Snow and LtCol Shelburne as detailed defense counsel. The convening authority subsequently denied a defense request for funding of LtCol Shel-burne’s assignment, stating that he could “find no authority for the Chief Defense Counsel of the Marine Corps to detail LtCol Shelburne to this case.” LtCol Shelburne then requested a continuance of the Article 32 hearing, noting the funding issue. The convening authority responded that “LtCol Shelburne is not detailed as counsel and has no authority to act in this matter.”

[459]*459B. REPRESENTATION OF APPELLANT AT THE ARTICLE 32 HEARING AND PRIOR TO REFERRAL OF CHARGES

On July 24, 2006, LtCol Shelburne appeared at the Article 32 hearing, objecting to the proceeding on the grounds that efforts were underway to address the counsel issue. He also stated that he did not have adequate time to meet with Appellant or to prepare for the hearing. After consideration of a brief delay, the investigating officer decided to proceed, while permitting LtCol Shelburne to represent Appellant over objection by the Government’s representative. Following the hearing, LtCol Shelburne submitted objections to the investigating officer regarding the decision to proceed, as well as the decision to admit into evidence certain unsworn statements.

LtCol Shelburne and Captain Snow subsequently requested a meeting with the convening authority to propose a pretrial agreement package, which included a proposal for disposition under Article 15, UCMJ, 10 U.S.C. § 815 (2000) (nonjudicial punishment). The convening authority denied the request for the meeting and refused to accept the pretrial agreement package on the ground that LtCol Shelburne had not been properly detailed as defense counsel. After Captain Snow removed LtCol Shelburne’s name from the package, the convening authority accepted the paperwork for consideration.

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United States v. Wiechmann
67 M.J. 456 (Court of Appeals for the Armed Forces, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
67 M.J. 456, 2009 CAAF LEXIS 741, 2009 WL 2004036, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-wiechmann-armfor-2009.