United States v. Moss

UNITED STATES, Appellee

v.

Amanda N. MOSS, Private First Class
U.S. Army, Appellant

No. 13-0348

Crim. App. No. 20110337

United States Court of Appeals for the Armed Forces

Argued September 18, 2013

Decided January 27, 2014

ERDMANN, J., delivered the opinion of the court, in which STUCKY
and RYAN, JJ., joined. BAKER, C.J., filed a separate dissenting
opinion, in which EFFRON, S.J., joined.

Counsel

For Appellant: Captain Ian M. Guy (argued); Colonel Kevin M.
Boyle, Lieutenant Colonel Peter Kageleiry Jr., Lieutenant
Colonel Jonathan F. Potter, Major Jacob D. Bashore, and Major
Vincent T. Shuler (on brief); Colonel Patricia A. Ham.

For Appellee: Captain Sean P. Fitzgibbon (argued); Lieutenant
Colonel James L. Varley, Major Robert A. Rodrigues, and Captain
Steve T. Nam (on brief); Major Elisabeth A. Claus.

Military Judge: Tiernan P. Dolan

This opinion is subject to revision before final publication.
United States v. Moss, No. 13-0348/AR

Judge ERDMANN delivered the opinion of the court.

A panel of officers sitting as a special court-martial

convicted Private First Class Amanda Moss, in absentia and

contrary to her pleas, of one specification of desertion

terminated by apprehension in violation of Article 85, Uniform

Code of Military Justice (UCMJ), 10 U.S.C. § 885 (2012). The

panel sentenced Moss to reduction to E-1, forfeiture of $978.00

pay per month for twelve months, confinement for six months, and

a bad-conduct discharge. The convening authority approved the

adjudged sentence and credited Moss with eighteen days of

confinement against the sentence to confinement. The United

States Army Court of Criminal Appeals (ACCA) affirmed the

findings and sentence. United States v. Moss, No. ARMY

20110337, 2013 CCA LEXIS 15, at *18, 2013 WL 211255, at *6 (A.

Ct. Crim. App. Jan. 17, 2013).

An accused “has the ultimate authority to determine whether

to plead guilty, waive a jury, testify in his or her own behalf,

or take an appeal.” Florida v. Nixon, 543 U.S. 175, 187 (2004)

(internal quotation marks omitted). “[I]t is the appellant’s

decision whether to take an appeal to this Court . . . .”

United States v. Larneard, 3 M.J. 76, 82 (C.M.A. 1977). We

specified additional issues in this case to determine whether

Moss authorized the appeal to this court. We hold that since

the decision to appeal must be made by the appellant and because

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the record does not reflect that Moss authorized such an appeal,

the appeal must be dismissed.

Background

On August 26, 2007, Moss left her unit without authority

and remained absent for approximately three years. Following

her apprehension by civilian authorities, Moss was brought back

to Fort Stewart, Georgia, and charged with desertion. After

arraignment, but prior to trial on the merits, Moss absented

herself again and was ultimately tried in absentia at a special

court-martial. During the presentencing proceedings, Moss’s

trial defense counsel gave an unsworn statement on her behalf.

The unsworn statement informed the members that Moss had

absented herself to care for her aunt, VM, who was ill. On

rebuttal, however, the government called Moss’s father who

testified that Moss did not have an aunt with that name.

During pretrial preparation, Moss completed a “Post Trial

and Appellate Rights Advisement” in which she acknowledged that

if the sentence approved by the convening authority included a

punitive discharge or confinement for one year or more, her case

would be automatically reviewed by the ACCA. Moss also

requested representation before the ACCA by appellate defense

counsel appointed by the Judge Advocate General of the Army by

circling the word “do” in paragraph 13 of the rights advisement.

Since Moss’s approved sentence included a punitive discharge,

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United States v. Moss, No. 13-0348/AR

her case was automatically referred to the ACCA where she was

represented by appellate counsel.

Before the ACCA, Moss’s appellate defense counsel primarily

argued that Moss was denied her Sixth Amendment right to

effective assistance of counsel due to trial defense counsel’s

decision to give an unsworn statement on her behalf without her

permission. Appellate defense counsel also argued that trial

defense counsel’s decision to inform the members that Moss

absented herself to care for her aunt, only to have the

government rebut the very existence of the aunt, demonstrated

inadequate investigation of Moss’s presentencing case. Moss,

2913 CCA LEXIS 15, at *4-*5, 2013 WL 211255, at *2. Ultimately,

the ACCA held that trial defense counsel’s strategy in providing

the unsworn statement “was tactically sound and not

unreasonable” and therefore did not constitute ineffective

assistance of counsel under Strickland v. Washington, 466 U.S.

668 (1984). Moss, 2013 CCA LEXIS 15 at *16, 2013 WL 211255, at

*5 (internal quotation marks and citation omitted).

Following the ACCA’s decision, the ACCA Clerk’s Office

mailed a copy of the decision along with a cover letter to the

address that Moss had last provided. The letter stated, in

part:

This letter is notification of the decision of
the United States Army Court of Criminal Appeals and
informs you of your right to petition the United
States Court of Appeals for the Armed Forces for a

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United States v. Moss, No. 13-0348/AR

grant of review. The 60-day period within which you
may petition the Court of Appeals for the Armed Forces
begins on the day following the date this letter was
mailed to you.

If you select to petition the United States Court
of Appeals for the Armed Forces (CAAF), please sign
and date the five copies of DA Form 4918-R, which are
enclosed, and mail them to that Court in the envelope
provided. If you DO NOT select to petition CAAF, you
may request final action in your case by completing
the enclosed DA Form 4919-R and mail it directly to
your Appellate Defense Counsel. DO NOT do both.

The ACCA Clerk’s Office completed a Department of the Army (DA)

Form 4916-R (Certificate of Service/Attempted Service) which

indicated that the letter was returned as undeliverable.

On March 18, 2013, appellate defense counsel petitioned

this court for review of the ACCA decision. United States v.

Moss, 72 M.J. 161 (C.A.A.F. 2013) (docketing order). We granted

review of four issues that involve the unsworn statement made by

trial defense counsel.1 During oral argument the court asked the

1
We granted review of the following issues:

I. Whether Appellant was denied her Sixth Amendment
right to effective assistance of counsel where the
defense counsel made an unsworn statement on her
behalf when she was tried in absentia and there is
no evidence that she consented to the unsworn
statement.

II. Whether Appellant was deprived of her right to
conflict-free counsel when her defense counsel
made an unsworn statement without her consent and
subsequently invoked his Fifth Amendment rights
and failed to assert that Appellant was
prejudiced.

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United States v. Moss, No. 13-0348/AR

parties whether there was any evidence that Moss had authorized

the appeal to this court, as there was no indication in the

record that she had done so. Appellate defense counsel

acknowledged that Moss had not signed a specific authorization

for appeal to this court nor had he spoken to her and obtained a

verbal authorization to appeal on her behalf. Appellate defense

counsel argued that Moss’s completion of the “Post Trial and

Appellate Rights Advisement” constituted an implied

authorization for such an appeal, and, when combined with

counsel’s ethical duty of continued representation, he was

required to pursue the appeal before this court on Moss’s

behalf.

On September 20, 2013, we issued an order specifying and

requesting briefing on additional issues concerning the

authorization to appeal.2

III. Whether the military judge committed plain error
when he allowed the defense counsel to make an
unsworn statement on behalf of Appellant when she
was tried in absentia.

IV. Whether the military judge abused his discretion
when he found that there was no prejudice when
the defense counsel read an unsworn statement
without Appellant’s consent and then failed to
instruct the panel to disregard the unsworn
statement and Sergeant First Class M’s rebuttal
testimony.

United States v. Moss, 72 M.J. 407 (C.A.A.F. 2013) (order
granting review).
2
We specified the following issues:

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United States v. Moss, No. 13-0348/AR

Arguments of the Parties

Appellate defense counsel recognizes that the decision to

appeal is personal to an appellant but argues that the following

actions by Moss reflected her intent to have counsel seek relief

in all possible appellate forums: Moss requested assignment of

appellate defense counsel to represent her at the ACCA; she

signed the “Post Trial and Appellate Rights Advisement” which

referenced her right to appeal to this court; and she authorized

her trial defense counsel to file clemency matters in her

absence. Appellate defense counsel further argues that Moss

I. Whether the decision to appeal to this Court is a
personal decision of the Appellant, and if so, in
what manner may such a decision be made?

II. Whether there is any evidence in the record that
the Appellant has authorized an appeal to this
Court, and if there is no such authorization, is
there nonetheless a continuing duty to represent
the Appellant, and if so, from where does this
duty derive?

III. In circumstances where the Appellant cannot be
located during the time period available to file
a petition for grant of review at this Court,
what is the responsibility of appellate defense
counsel in the context of the statutory time
limit in Article 67, UCMJ, to file an appeal?

IV. Should this case be dismissed with prejudice
under the holding in United States v. Schreck, 10
M.J. 226 (C.M.A. 1981)?

United States v. Moss, __ M.J. __ (C.A.A.F. Sept. 20, 2013)

(supplemental order).

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United States v. Moss, No. 13-0348/AR

understood she had the same rights to counsel before this court

as she did at the ACCA and therefore, absent any indication that

she did not want representation at this court, it followed that

she wanted to be represented before this court by appointed

counsel. Appellate defense counsel concludes by asserting that

once he was appointed under Article 70, UCMJ, 10 U.S.C. § 870

(2012), he had a duty to continue representing Moss until the

attorney-client relationship was terminated. See Dep’t of the

Army, Reg. 27–10, Legal Services, Military Justice app. C, para.

C-3 a.(1), b.(1) (Oct. 3, 2011) [hereinafter AR 27-10, app. c].

Since Moss never terminated the relationship, his duty of

representation extended to all appellate proceedings under the

UCMJ. See Dep’t of the Army, Reg. 27-26, Legal Services, Rules

of Professional Conduct for Lawyers, R. 1.12, R. 1.16 (May 1,

1992). The government generally agrees with Moss’s position on

these issues.

Discussion

Whether the personal authorization of an appellant is

required to appeal to this court is a legal issue which we

review de novo. See United States v. Daly, 69 M.J. 485, 486

(C.A.A.F. 2011). Where, as here, all of the evidence relating

to the authorization issue is in the record and is not disputed,

the issue before the court “necessarily reduces to a question of

law.” See United States v. Lundy, 63 M.J. 299, 301 (C.A.A.F.

8
United States v. Moss, No. 13-0348/AR

2006). Both parties agree that the decision whether to take an

appeal to this court is personal to an appellant. Larneard, 3

M.J. at 82. The parties also agree that Moss’s completion of

the “Post Trial and Appellate Rights Advisement” reflected her

intent to appeal to this court and therefore constituted an

implied authorization to proceed with the appeal.

Article 67(a)(3) requires this court to review:

(3) all cases reviewed by a Court of Criminal Appeals
in which, upon petition of the accused and on good
cause shown, the Court of Appeals for the Armed Forces
has granted a review.

10 U.S.C. § 867 (2012) (emphasis added). This provision was

discussed in United States v. Rodriguez, 67 M.J. 110, 114-15

(C.A.A.F. 2009):

Pertinent to this case is subsection (a)(3) which
directs this court to review cases which have been
reviewed by a Court of Criminal Appeals and where
there is a “petition of the accused” and “good cause
shown.” The statute clearly establishes that both of
these predicates must exist before the congressional
mandate to review a case arises.

The threshold issue before this court is whether there is a

“petition of the accused” which was personally authorized by the

accused. The rights advisement was signed by Moss on April 14,

2011, three weeks prior to her trial and contained the following

pertinent provisions:

I am the accused whose name appears above. I certify
that my trial defense counsel has advised me of the
following post-trial and appellate rights in the event
that I am convicted of a violation of the Uniform Code
of Military Justice.

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United States v. Moss, No. 13-0348/AR

. . . .

4. If the convening authority approves an adjudged
punitive discharge (dismissal for officers; bad-
conduct or dishonorable discharge for enlisted
soldiers) or confinement for one year or longer, my
case will be automatically reviewed by the Army Court
of Criminal Appeals (ACCA). I am entitled to be
represented by counsel before such court. If I so
request, military counsel will be appointed to
represent me at no cost to me. If I so choose, I may
also be represented by civilian counsel at no expense
to the United States.

5. After the ACCA completes its review, I may
petition the United States Court of Appeals for the
Armed Forces (CAAF) to review my case. If that Court
grants my petition, I may request review by the
Supreme Court of the United States. I have the same
rights to counsel before those courts as I have before
the ACCA. If I am pending an approved dishonorable or
bad-conduct discharge it may only be ordered executed
after the completion of the appellate process in
accordance with Rule for Court-Martial 1209 [sic],
unless I waive appellate review.

. . . .

13. (Strike through inapplicable portion.) If
applicable, I (do) (do not) [Moss circled “do” and
struck through “do not”] want to be represented before
the Army Court of Criminal Appeals by Appellate
Defense Counsel appointed by the Judge Advocate
General (TJAG) of the Army. I understand that I may
contact my Appellate Defense Counsel by writing to
Defense Appellate Division, U.S. Army Legal Services
Agency (JALS-DA), 901 North Stuart Street, Arlington,
Virginia 22203-1837.

Ordinarily, “may” is a permissive rather than a mandatory

term. United States v. Rodgers, 461 U.S. 677, 706 (1983) (“The

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United States v. Moss, No. 13-0348/AR

word ‘may,’ . . . usually implies some degree of discretion.”).3

The rights advisement simply informed Moss that if her

conviction was affirmed by the ACCA, she had the discretion to

appeal to this court and the Supreme Court, and if she chose to

do so she had the same right to counsel before those courts as

she did before the ACCA. The language concerning a possible

appeal to this court was informative only, and Moss’s exercise

of her right to counsel before the ACCA cannot be construed to

authorize a subsequent appeal to either this court or the

Supreme Court.

The letter sent to Moss from the ACCA Clerk’s Office after

the issuance of the ACCA decision reinforces this conclusion.

The letter referenced and enclosed five copies of the DA Form

4918-R which is entitled “Petition for Grant of Review in the

United States Court of Appeals for the Armed Forces.” That form

provides:

TO THE JUDGES OF THE UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES:

1. I hereby petition the Court for review of my
conviction.

2. I understand that, unless I specifically request
the contrary, a military lawyer will be designated by
The Judge Advocate General to represent me free of

3
See also 10 U.S.C. 101(f)(2) (“‘may’ is used in a permissive
sense”); Rodriguez, 67 M.J. at 117 (Effron, C.J., dissenting)
(“[In Article 67(b)], Congress used permissive language: The
accused may petition . . . .”) (internal quotation marks
omitted)).

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United States v. Moss, No. 13-0348/AR

charge before the US Court of Appeals for the Armed
Forces.

SIGNED: _____________________

As noted earlier, the envelope containing the letter and

copies of the ACCA decision, DA Form 4917-R (“Advice as to

Appellate Rights”), DA Form 4918-R, and DA Form 4919-R was later

returned to the ACCA Clerk’s Office as undeliverable. Although

the government currently argues that Moss’s post-trial election

to have appellate defense counsel represent her before the ACCA

constituted an authorization to appeal to this court, the

instructions in the ACCA Clerk’s letter and the enclosed DA Form

4918-R are inconsistent with that position.

The parties also argue that appellate defense counsel had a

continuing duty to represent Moss until the attorney-client

relationship was severed. We agree that once an attorney-client

relationship is established it must continue until terminated.

See AR 27–10, app. C, para. C-3 a.(1) (stating that a duty of

continued representation exists until the attorney-client

relationship is terminated, counsel is reassigned, or the

appellate processes under the UCMJ are terminated). However,

the extent of appellate defense counsel’s duty to represent Moss

was predicated on her previously provided limited authority to

appeal only to the ACCA. If the accused is not available and

cannot be located within the time provided to file a petition

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United States v. Moss, No. 13-0348/AR

for review before this court, “the attorney can and should

proceed in accordance with the authority previously given by the

accused and file such proceedings as may be necessary to protect

the interests of his client.” Larneard, 3 M.J. at 82.

Paragraph 13 of the “Post Trial and Appellate Rights

Advisement,” where Moss indicated a desire to be represented by

appellate defense counsel, was, by its own terms, limited to

representation before the ACCA.4 Therefore, the attorney-client

relationship was limited to representation before the ACCA.

The issues raised in this appeal were brought on by both

Moss’s actions and inactions. She initially absented herself

for over three years, which led to the desertion charge. She

then chose to flee again prior to her trial, which resulted in

her being tried in absentia. In consulting with counsel prior

to trial, Moss was advised that if her sentence fell within the

jurisdiction of the ACCA, her case would automatically be

appealed to that court. With this information, Moss exercised

her right to counsel before that court. Following the decision

of the ACCA, the government provided Moss with the opportunity

to appeal to this court and the opportunity to have a military

lawyer designated to represent her. However, because Moss both

remained absent without authorization and failed to keep the

4
“If applicable, I (do) (do not) [Moss circled “do” and struck
through “do not”] want to be represented before the Army Court
of Criminal Appeals by Appellate Defense Counsel appointed by
The Judge Advocate General of the Army.”

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United States v. Moss, No. 13-0348/AR

Defense Appellate Division apprised of her current address, she

did not exercise that option. Accordingly, we hold that since

the decision to appeal to this court is personal to an

appellant, and because Moss did not authorize the appeal, this

court lacks statutory jurisdiction under Article 67(a)(3) and

the appeal must be dismissed. See Rodriguez, 67 M.J. at 114-15.

Given this holding, we need not address the remaining specified

issues or the granted issues.

Decision

The court’s order granting the petition for grant of

review is vacated, and the petition for grant of review is

dismissed.

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United States v. Moss, No. 13-0348/AR

BAKER, Chief Judge, with whom EFFRON, Senior Judge, joins

(dissenting):

The Court reaches for a jurisdictional issue the parties

did not raise or appeal and that we need not decide. In doing

so the majority reaches an erroneous conclusion that

dramatically curtails the jurisdiction of this Court to provide

appellate and civilian review of trials in absentia. Such

trials raise uncommon and complex Fifth and Sixth Amendment

issues as well as ethical challenges for defense counsel. These

are just the sort of issues that must be subject to appellate

review in a credible justice system and should be subject to a

uniform application of law between services and servicemembers.

The majority’s conclusion is also logically inconsistent,

permitting defense counsel to represent absent clients at trial

but not on appeal. This is not required by the law and it is

not fair. It is no surprise, then, that the Court’s decision

will overturn settled law and precedent dating to the advent of

the Uniform Code of Military Justice (UCMJ). Therefore, I

respectfully dissent.

In contrast to the majority, I would decide this case on

the basis for which it was originally granted and determine

whether defense counsel was ineffective and, if so, whether

Appellant was prejudiced under Strickland. Strickland v.

Washington, 466 U.S. 668 (1984). Indeed, the legal issues
United States v. Moss, No. 13-0348/AR

underlying this case underscore the very concerns I have with

the majority’s jurisdictional overreach: trial defense

counsel’s actions at trial proved problematic in the absence of

his client, which, on appeal, cast doubt on the legality of the

proceedings. Nothing in the UCMJ suggests that Congress, by

design or implication, established a system allowing

servicemembers to be tried in their absence yet denied civilian

appellate review because of that absence. Indeed, these cases

raise a host of effectiveness and ethical issues for counsel

that should be subject to appellate review in a credible system

of justice.

Discussion

In this case, the Court initially granted two issues raised

by Appellant. The first asserted ineffective assistance of

counsel after trial defense counsel delivered an unsworn

statement on Appellant’s behalf at the conclusion of her trial

in absentia. Appellant, then the accused, went absent without

leave (AWOL) before she was tried but after she was charged.

During this interim period, defense counsel and the accused

prepared an unsworn statement, which Appellant intended to give

to the members. But the context for making that unsworn

statement changed in a manner neither the accused nor trial

defense counsel had contemplated. Among other unexpected

developments, the accused’s own father testified in a manner

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United States v. Moss, No. 13-0348/AR

that undercut if not eviscerated her unsworn statement.

Presumably, this unfavorable turn of events would have warranted

at least reconsideration and revalidation of the earlier

decision to give an unsworn statement and, in particular, the

prior drafted unsworn statement. The second granted issue

raised a related matter regarding trial defense counsel’s

invocation of his right to silence when asked by the military

judge whether the absent accused had consented to his delivery

of the accused’s unsworn statement.

Against this backdrop, and following oral argument, this

Court specified a number of issues addressed to whether

Appellant had authorized an appeal to this Court and, in any

event, whether the “fugitive disentitlement doctrine” should

apply.1 Appellant responded: yes and no. On point one --

whether Appellant had authorized appeal to this Court -- the

Government agreed and noted “Appellant expressed her desire for

appellate representation before she went absent from these

proceedings.” However, on point two, the Government disagreed.

“Although appellant’s petition for review was lawfully before

this court, her continuing fugitive status should preclude her

from any relief from this court.” To emphasize, the Government

1
Under what has been labeled the “fugitive disentitlement
doctrine,” “an appellate court may dismiss the appeal of a
defendant who is a fugitive from justice during the pendency of
his appeal.” Ortega-Rodriguez v. United States, 507 U.S. 234,
239 (1993).
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United States v. Moss, No. 13-0348/AR

stated both that the case is lawfully before this Court and

“[a]ppellate defense counsel has a continuing duty to represent

appellant” and if the Appellant “cannot be located within the

statutory period to elect appeal to this court, appellate

defense counsel is responsible for preserving, to the extent

practicable under the law, appellant’s ability to invoke the

jurisdiction of this court upon her return.”

Nonetheless, a majority of this Court has determined not

only that it is impracticable for defense counsel to continue to

represent the client, but also that it falls outside our

jurisdiction to hear any case in which an appellate defense

counsel does not demonstrate the appellant personally requested

an appeal to this Court.

[T]he decision to appeal must be made by the appellant
and because the record does not reflect that Moss
authorized such an appeal, the appeal must be
dismissed.

United States v. Moss, __ M.J. __ (2–3).

[A]nd because Moss did not authorize the appeal, this
court lacks statutory jurisdiction under Article
67(a)(3) and the appeal must be dismissed.

Moss, __ M.J. __ (14).

the “Post Trial and Appellate Rights Advisement,”. . .
was, by its own terms, limited to representation
before the ACCA. Therefore, the attorney-client
relationship was limited to representation before the
ACCA.

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Moss, __ M.J. __ (13). Of course, this Court is not bound

by the parties’ agreement. Therefore, the problem is not

that the parties reached a different conclusion than the

majority; the problem is that each of these conclusions is

erroneous. They also undercut the purpose and intent of

the UCMJ, including one of the bedrocks of the military

justice system: the assignment of military defense counsel

to an accused free of charge all the way to the Supreme

Court.

First, the military justice system is predicated on the

principle of civilian oversight. This takes the form of

appellate review by this Court and potentially by the Supreme

Court. Civilian review is a sine qua non for the credibility of

the military justice system. The majority, however, has

determined that there should be no civilian review of trials

where an accused has absented himself prior to appeal before

this Court or the Supreme Court (unless, of course, for some

unfathomable reason the accused was to elect in writing to

appeal to this Court and perhaps the Supreme Court before being

tried and convicted at court-martial).

The law does not compel this result and has not for more

than sixty years of the UCMJ’s existence. Nor have there been

amendments to the UCMJ that would dictate a contrary result.

Moreover, unlike Rodriguez where a three-judge majority of this

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United States v. Moss, No. 13-0348/AR

Court decided to shed the jurisdiction this Court had exercised

consistently for the previous sixty years, the majority’s

decision here is not based on any language in the UCMJ. Compare

United States v. Rodriguez, 67 M.J. 110, 115 (C.A.A.F. 2009)

(“While the option of whether to petition or not petition the

court rests with the appellant (‘may’), Congress established

without qualification when such petitions must be filed. Under

the plain language of the statute, the petition must be filed

within the sixty-day statutory time limit.”). Further, the

majority’s analysis is contradictory and fails to recognize or

address the tension between the exercise of jurisdiction to

conduct trials in absentia and the asserted lack of jurisdiction

to permit appeals in absentia. The UCMJ contains no express

prohibition on the actions that a defense counsel may take on

behalf of a client to include representation during a trial in

absentia as well as an appeal. Nonetheless, the majority finds

that a trial in absentia with a defense counsel who is not

specifically authorized to represent the accused has

jurisdiction, but an appeal of that trial where an accused

cannot be shown to have authorized the appeal explicitly

deprives this Court of jurisdiction. I do not see how this

result is consistent, how it involves jurisdiction, or how it is

fair. But that is the result. A defense counsel can represent

an absent accused at trial but not on appeal.

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United States v. Moss, No. 13-0348/AR

Put another way: there is no express authority for defense

counsel to act for an accused who is not present. Indeed, there

is no express authority in the UCMJ for the accused to be tried

in absentia. On the contrary: Article 39(b), UCMJ, 10 U.S.C. §

839(b) (2012) expressly requires the “presence of the accused”

in all Article 39(a), UCMJ, sessions. Article 39(c), UCMJ,

requires that “all other proceedings” take place “in the

presence of the accused.” If, as the majority contends, the

references to the accused in Article 67, UCMJ, 10 U.S.C. § 867

(2012), are jurisdictional, why would the references to the

accused in Article 39(b), UCMJ, not establish a jurisdictional

prohibition against trial in absentia?

The point here is not that there is a prohibition against

trial in absentia. It is that the references to the accused in

Article 67, UCMJ, like the references to the accused in Article

39, UCMJ, must be read reasonably in light of the history and

purpose of the UCMJ. If the accused can be tried in absentia

under Article 39, UCMJ, then there is no statutory reason to

read Article 67, UCMJ, as prohibiting an appeal in absentia.

Article 67, UCMJ, and our rules heretofore have made this

clear. Article 67(b)(2), UCMJ, has two important provisions:

requirement for service of the Court of Criminal Appeals (CCA)

decision on appellate counsel and express provision for this

Court to act on a petition in accordance with our rules. The

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Court’s Rules of Practice and Procedure (e.g., Rule 20)

expressly recognize a petition filed by appellate defense

counsel as a separate channel of appeal. C.A.A.F. R. 20(b).

There is no statutory requirement that counsel’s submission be

accompanied by an authorization from the client, nor do the

rules require such a submission. How, then, can this be

jurisdictional? This is a jurisdictional invention of the

Court.

Moreover, by focusing exclusively on the culpability and

conduct of the accused and not on the credibility of the system

as a whole, the majority removes the prospect of civilian and

even military appellate review in that group of cases that is

arguably most suspect to abuse -- trials in absentia.2 Indeed,

trials in absentia are the sort of trials that undermine the

credibility of foreign military justice systems. These are also

just the sort of trials where civilian oversight of the U.S.

military justice system is important, as a matter of validation

and as a matter of credibility. In addition to raising

important questions involving the knowing and voluntary waiver

of an accused’s Fifth and Sixth Amendment rights, trials in

absentia raise a host of uncommon and complex ethical challenges

for defense counsel. What actions may or should defense counsel

2
For this same reason, I would not apply the fugitive
disentitlement doctrine under the circumstances of this case.

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take at trial without the informed consent of the client? See

Model Rules of Prof’l Conduct R. 1.4 (2013). What duties, if

any, does defense counsel have to seek a speedy trial, or in the

alternative, delay the start of a trial? Id.; Dep’t of the

Army, Reg. 27-26, Rules of Professional Conduct for Lawyers R.

3.2 (May 1, 1992). To what extent, if at all, can defense

counsel waive the attorney-client privilege? See United States

v. Marcum, 60 M.J. 198 (C.A.A.F. 2004); Military Rule of

Evidence (M.R.E.) 511. To what extent may defense counsel waive

an accused’s right to trial by members? When, and to what

extent, can defense counsel effectively represent a client when

the defendant is not present at trial?3 The majority opinion not

only fails to spot and address these issues by choosing to

curtail appellate review of in absentia trials, but it also

ensures the answers will vary from trial to trial and defense

counsel to defense counsel. That is not the uniform system

Congress envisioned or enacted.

Even more alarming, the effect of the majority’s decision

is to close the courtroom door not only to an accused who

intentionally absents himself, but also to military members who

are convicted at trial and subsequently cannot be located while

3
See Sarah C. Sykes, “Defense Counsel, Please Rise”: A
Comparative Analysis of Trial In Absentia, 216 Mil. L. Rev. 170
(2013).

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they are on appellate leave. We cannot put a number on the

potential pool of appellants that might fall into this category,

but we know it is a large number based on the number of cases

dismissed following Rodriguez.4

To avoid this risk -- not just of the AWOL appellant, but

the far more frequent appellant who cannot be located -- the

majority’s new rule will compel defense counsel to seek

authorization to appeal to the Courts of Criminal Appeal, this

Court, and the Supreme Court. Such an authorization will

neither be informed nor based on a particular decision of the

Court of Criminal Appeals. It will be defensive in nature to

ensure jurisdiction in the event of appeal. But of course,

having authorized an appeal, appellate defense counsel will be

bound to appeal. In short, authorization to appeal will be

given without specific input from an appellant, but based on the

risk that appellate defense counsel will not be able to locate

an appellant to authorize an appeal upon receipt of the CCA’s

decision. Nor will authorization to appeal be based on what is

actually decided at the CCA. For this same reason, defense and

appellate defense counsel who wish to avoid ineffective

assistance of counsel claims should also seek advance

authorization to appeal to the Supreme Court, without first

4
No doubt this Court has heard and decided many cases for which
the majority decides today this Court has never had
jurisdiction.
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knowing the outcome before the Criminal Court of Appeals or this

Court. As discussed above, this result is not required by the

UCMJ; it runs contrary to the UCMJ’s intent.

Finally, the majority’s adoption of a mechanical and

formalistic approach to determining whether an appellant has

authorized appeal before this Court unduly and impracticably

interferes with the attorney-client privilege. By requiring

appellate defense counsel to demonstrate that a client has

specifically authorized appeal to this Court, the majority

places appellate defense counsel between a rock and hard place.

Either the decision dictates the manner in which they

communicate with their client by compelling written evidence of

an appeal authorization or it will compel appellate counsel to

reveal verbal attorney-client communications in order to

demonstrate a personal decision by an appellant to appeal to a

specific court. Presumably, defense counsel will be compelled

to file an affidavit documenting such a client communication.

The majority does all this without even addressing or

explaining how a lawyer might fulfill his or her ethical duty to

represent clients zealously and diligently when the client

cannot be located, for whatever reason, to authorize an appeal

personally, and where the lawyer believes meritorious issues

warrant appeal.

For all these reasons, I respectfully dissent.

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