United States v. Wiechmann

UNITED STATES, Appellee

v.

Jeff R. WIECHMANN, Lieutenant Colonel
U.S. Marine Corps, Appellant

No. 09-0082
Crim. App. No. 200700593

United States Court of Appeals for the Armed Forces

Argued April 15, 2009

Decided July 9, 2009

EFFRON, C.J., delivered the opinion of the Court, in which
BAKER, ERDMANN, and STUCKY, JJ., joined. RYAN, J., filed a
separate opinion concurring in the judgment.

Counsel

For Appellant: Captain Kyle R. Kilian (argued).

For Appellee: Lieutenant Timothy H. Delgado (argued); Brian K.
Keller, Esq. (on brief).

Military Judge: Bruce D. Landrum

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Wiechmann, No. 09-0082/MC

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. August 14, 2008) (unpublished).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.

For 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.

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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

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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,

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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 Shelburne’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.”

B. 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

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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.

After the convening authority denied a further request from

LtCol Shelburne for a meeting, the convening authority met with

Captain Snow alone to discuss Appellant’s case and the request

for disposition under Article 15. The convening authority at

that time did not agree to enter into a pretrial agreement or

other disposition. On September 25, 2006, the convening

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authority referred the charges for trial by general court-

martial.

C. REPRESENTATION OF APPELLANT AT THE COURT-MARTIAL

After the charges were referred to trial, the military

judge initially assigned to the case conducted an informal

scheduling conference by telephone under R.C.M. 802. The

military judge denied Captain Snow’s request that the military

judge include LtCol Shelburne in the discussion and suggested

that Captain Snow submit a request for individual military

counsel if he wanted LtCol Shelburne to be recognized. The

defense filed a motion for appropriate relief requesting “that

the military judge deny the government motion to prevent LtCol

Shelburne from fulfilling his duties as detailed defense

counsel.”

Subsequently, a different military judge was assigned to

the case. At the opening session of Appellant’s court-martial,

the military judge made the standard inquiry of Appellant

regarding representation by counsel. Appellant noted that he

wished to be represented by LtCol Shelburne as lead detailed

defense counsel and by Captain Snow as assistant defense

counsel. After arraignment, the military judge heard the

parties’ arguments on the defense motion for appropriate relief.

The military judge granted the defense motion, ruling that

the applicable departmental regulations authorized the chief

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defense counsel of the Marine Corps to detail LtCol Shelburne as

defense counsel. The military judge also interpreted applicable

regulations as providing that LtCol Shelburne’s assignment would

be funded by Headquarters Marine Corps rather than by the

convening authority.

In a separate filing, the defense moved to dismiss the

charges based on allegations of unlawful command influence. In

addition, the defense moved for a new Article 32 investigation

on the ground that Appellant did not have the full assistance of

LtCol Shelburne during the Article 32 proceedings. The military

judge eventually denied both motions.

While these motions were pending, the convening authority

met with LtCol Shelburne on November 27, 2006, at the request of

defense counsel to discuss possible disposition through

nonjudicial punishment. LtCol Shelburne also entered into

negotiations with the convening authority and his

representatives about a possible pretrial agreement.

The convening authority and Appellant entered into a

pretrial agreement on January 8, 2007. Appellant agreed to

plead guilty to all charges except for one specification of

failing to obey a lawful general order, to waive any defect in

the Article 32, UCMJ, pretrial investigation, to waive the right

to a board of inquiry, and to submit a request for immediate

retirement at the grade of major. The convening authority

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agreed to suspend any confinement and punitive discharge

adjudged.

LtCol Shelburne represented Appellant at Appellant’s guilty

plea providence inquiry and at sentencing on January 10, 2007.

During the inquiry into the plea agreement, the military judge

explained that by pleading guilty, Appellant would forfeit the

right to appeal the military judge’s decisions on the previous

motions made in his case, except for the unlawful command

influence motion. Appellant agreed that he was voluntarily

waiving the right to appeal the prior motions. Appellant stated

that he freely and voluntarily agreed to each of the specially

negotiated provisions of the pretrial agreement. These

provisions included the waiver of any defect in the Article 32

investigation. The military judge told Appellant that the

waiver provision “might be superfluous in light of the fact that

the guilty plea waived the appeal of the motion. However, this

basically states your clear understanding and your waiver of any

defect that there might have been in that Article 32. Do you

understand that?” Appellant replied “Yes,” and he also replied

“Yes” when asked if it was his intention to waive any defect in

the Article 32 investigation.

Appellant confirmed that he was satisfied with his defense

counsels “in all respects” and that he had entered into the

pretrial agreement freely and voluntarily. Appellant replied

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“yes,” when asked whether he understood “each and every

provision” of the pretrial agreement. The military judge asked,

“Have you fully discussed this agreement with your counsel, and

are you satisfied that their advice has been in your best

interests?” Appellant replied “Yes.” The military judge

accepted Appellant’s pleas and convicted Appellant of the

offenses to which he entered guilty pleas.

D. CONSIDERATION BY THE COURT OF CRIMINAL APPEALS

Appellant alleged multiple assignments of error before the

Court of Criminal Appeals, including that the convening

authority’s refusal to recognize LtCol Shelburne as detailed

defense counsel prior to the military judge’s ruling on that

issue violated Appellant’s Sixth Amendment right to counsel and

improperly severed his attorney-client relationship with LtCol

Shelburne. Wiechmann, 2008 CCA LEXIS 298, at *1-*3, 2008 WL

3540244 at *1.

In the course of addressing these issues, the Court of

Criminal Appeals found that LtCol Shelburne had established an

attorney-client relationship with Appellant by the time of the

Article 32 investigation. Id. at *8, 2008 WL 3540244, at *3.

The court described the pretrial dispute about the validity of

LtCol Shelburne’s status as a “good faith” disagreement “over

how to interpret the detailing directives,” while noting that

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the convening authority’s initial refusal to recognize LtCol

Shelburne as detailed defense counsel “burdened his ability to

represent the appellant pretrial.” Id. at *9, 2008 WL 3540244,

at *3. The court concluded, however, that the convening

authority’s actions “were not so severe as to constitute a

severance of the attorney-client relationship, nor did they rise

to such a level as to deny appellant due process.” Id. at *5-

*9, 2008 WL 3540244, at *1-*3. The court added that Appellant

did not have the right to a pretrial meeting with the convening

authority, that he benefited from the advice of LtCol Shelburne,

and that Captain Snow served as a “conduit” to the convening

authority until LtCol Shelburne was recognized. Id. at *9, 2008

WL 3540244, at *3.

II. DISCUSSION

A. PRE-REFERRAL RESPONSIBILITIES OF THE CONVENING AUTHORITY

The granted issue asks whether the convening authority’s

refusal to treat LtCol Shelburne as detailed defense counsel

violated Appellant’s Sixth Amendment right to counsel. In

assessing whether there has been a Sixth Amendment violation, we

begin by considering the stage of the proceedings in which the

acts or omissions at issue occurred. In the present appeal, the

granted issue concerns the convening authority’s acts and

omissions during the pre-referral stage of the proceedings.

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Because a military judge is not appointed to conduct proceedings

until charges are referred to a court-martial, see Article

26(a), UCMJ, 10 U.S.C. § 826(a) (2000), the military justice

system does not have standing courts at the trial level to

address legal issues at the pre-referral stage. The convening

authority exercises responsibility for pretrial matters that

would otherwise be litigated before a judge in civilian

proceedings, including issues involving the conduct of

depositions, issuance of protective orders, availability of

government-funded experts, mental responsibility proceedings,

and questions concerning the validity of charges. See, e.g.,

Article 34, UCMJ, 10 U.S.C. § 834 (2000); R.C.M. 405(g)(6), 406,

407, 702(b), 703(d), 706(b)(1).

Pretrial agreements also implicate distinctive

responsibilities of the convening authority with respect to

court-martial proceedings. In the military justice system,

responsibility for the function of determining sentencing is

shared by the court-martial, see Article 51, UCMJ, 10 U.S.C. §

851 (2000) (governing the determination of the sentence by the

court-martial), and the convening authority, see Article 60,

UCMJ, 10 U.S.C. § 860 (2000) (providing the convening authority

with virtually unfettered discretion to modify the sentence so

long as the severity is not increased). As an incident of the

responsibility for sentencing, the convening authority may enter

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into a pretrial agreement that imposes a legal limitation on the

scope of the sentence. See R.C.M. 705(b)(2)(E). R.C.M. 705

underscores the vital role of counsel at the pretrial stage of

the proceedings: “Government representatives shall negotiate

with defense counsel unless the accused has waived the right to

counsel.” R.C.M. 705(d)(1). The rule further provides that a

pretrial agreement “shall be signed by the accused and defense

counsel, if any.” R.C.M. 705(d)(2).

B. NONRECOGNITION OF DETAILED DEFENSE COUNSEL
BY THE CONVENING AUTHORITY

A convening authority may not interfere with or impede an

attorney-client relationship established between an accused and

detailed defense counsel. See supra Part I.A. Although LtCol

Shelburne was detailed as Appellant’s defense counsel, the

convening authority declined to recognize LtCol Shelburne during

the Article 32 investigation period in which Appellant was

entitled to representation by detailed defense counsel under

Articles 32(b) and 38(b)(1), UCMJ, 10 U.S.C. §§ 832(b),

838(b)(1) (2000). The convening authority continued to do so

during initial pretrial agreement negotiations, a period in

which the Government was obligated to conduct any negotiations

with defense counsel. See R.C.M. 705(d)(1). After the

convening authority referred the case to trial, he persisted in

refusing to recognize LtCol Shelburne as Appellant’s counsel

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until that point in the court-martial proceedings when the

military judge ruled that LtCol Shelburne had been properly

detailed as defense counsel under Articles 27 and 38, UCMJ.

As noted in the previous section, the convening authority

exercises significant pretrial responsibilities in the

military’s criminal justice system. The responsibility for

detailing defense counsel, however, is not one of the duties

assigned to the convening authority by law. Although the UCMJ,

as originally enacted, authorized the convening authority to

detail counsel, Congress amended the statute in 1983 to provide

that the responsibility for detailing counsel would be exercised

by persons authorized to do so under departmental regulations.

Compare Act of May 5, 1950, Pub. L. No. 81-506, ch. 169, 64

Stat. 107, 117 (Article 27(a)), with Military Justice Act of

1983, Pub. L. No. 98-209, 97 Stat. 1393, 1394 (Article 27(a)).

See S. Rep. No. 98-53, at 13 (1983) (noting that “in addition to

removing . . . potential burdens, eliminating the requirement

for the convening authority to personally detail . . . counsel

will remove any hint or possibility of improper command

influence or control . . . .”). The regulations at issue in the

present case vested the responsibility for detailing counsel in

various department-level officers, not in the convening

authority. See Dep’t of the Navy, Marine Corps Order P5800.16A,

Marine Corps Manual for Legal Administration, para. 2002 (Aug.

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31, 1999); Dep't of the Navy, Judge Advocate General Instr.

5800.7D, Manual of the Judge Advocate General para. 0130 (Mar.

15, 2004).

In the present case, the convening authority, who did not

seek clarification of the department’s regulations from

officials at the departmental level, proceeded with the case

while declining to recognize LtCol Shelburne as Appellant’s

detailed defense counsel. Eventually, the military judge ruled

that LtCol Shelburne had been properly detailed as defense

counsel, effective as of the date of LtCol Shelburne’s initial

detail as Appellant’s defense counsel. As neither party has

challenged the military judge’s interpretation of departmental

regulations on appeal, we treat his ruling as the law of the

case. See United States v. Parker, 62 M.J. 459, 464 (C.A.A.F.

2006). In that context, the convening authority erred by

restricting the role of Appellant’s detailed defense counsel

during the pretrial proceedings, including the proceedings

concerning the Article 32 investigation and pretrial agreement

negotiations. In so doing, the convening authority improperly

interfered with the attorney-client relationship established at

the time of LtCol Shelburne’s initial detail as Appellant’s

defense counsel. These actions violated Appellant’s rights

under Article 27, UCMJ.

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C. LIMITATIONS ON PARTICIPATION OF DETAILED DEFENSE COUNSEL
IN THE PRETRIAL AND TRIAL PROCEEDINGS

Captain Snow, the first detailed defense counsel,

represented Appellant throughout the pretrial and trial

proceedings. LtCol Shelburne, the second detailed defense

counsel, participated in the Article 32 proceedings, submitted

comments to the Article 32 investigating officer, and assisted

Captain Snow in preparing the first pretrial packet for

submission to the convening authority. After the military

judge’s order that he was properly detailed, LtCol Shelburne

served as lead defense counsel, participating fully in the

negotiation of the plea agreement and subsequent trial and post-

trial proceedings.

LtCol Shelburne and Appellant had established an attorney-

client relationship by the time of the Article 32 investigation.

See Wiechmann, 2008 CCA LEXIS 298, at *8, 2008 WL 3540244, at

*3. In that context, the Court of Criminal Appeals observed

that the convening authority’s “initial refusal to recognize

LtCol Shelburne burdened [LtCol Shelburne’s] ability to

represent the appellant pretrial.” Id. at *9, 2008 WL 3540244,

at *3. We agree. The convening authority’s action burdened

LtCol Shelburne’s representation of Appellant in several

respects: (1) the Article 32 proceeding was conducted without a

full opportunity for LtCol Shelburne to prepare and participate;

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(2) LtCol Shelburne was excluded from pretrial disposition

negotiations that the Government conducted with Captain Snow,

the less experienced defense counsel; (3) LtCol Shelburne was

unable to represent Appellant in pretrial procedural matters,

such as in a scheduling conference or by requesting a

continuance. Under these circumstances, the Government’s

actions infringed Appellant’s right to the assistance of counsel

under Article 27 during pretrial proceedings before both the

convening authority and the military judge. See Tellier, 13

C.M.A. at 327, 32 C.M.R. at 327; Eason, 21 C.M.A. at 335-37, 45

C.M.R. at 109-11.

D. EVALUATION OF ERROR AND PREJUDICE

Having found a violation of Appellant’s statutory right to

counsel, we now turn to Appellant’s constitutional claims. When

a Sixth Amendment claim involves a governmental act or omission

affecting the right of an accused to the assistance of counsel,

we consider whether the infringement involves a structural error

-- an error so serious that no proof of prejudice is required --

or whether the error must be tested for prejudice. See United

States v. Brooks, 66 M.J. 221, 223-24 (C.A.A.F. 2008). Compare

Davis, 60 M.J. at 473 (discussing separate standards applicable

to claims of ineffective assistance of counsel). Structural

error exists when “a court is faced with ‘the difficulty of

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assessing the effect of the error’” or the error is so

fundamental that “harmlessness is irrelevant.” Brooks, 66 M.J.

at 224 (citing United States v. Gonzalez-Lopez, 548 U.S. 140,

149 n.4 (2006)).

As we noted in Brooks: “‘Structural errors involve errors

in the trial mechanism’ so serious that ‘a criminal trial cannot

reliably serve its function as a vehicle for determination of

guilt or innocence.’” 66 M.J. at 224 (quoting Arizona v.

Fulminante, 499 U.S. 279, 309-10 (1991)). We further noted that

“[t]here is a strong presumption that an error is not

structural.” 66 M.J. at 224 (citations and quotation marks

omitted).

In the present case, Appellant had the services of

qualified counsel, Captain Snow, throughout the proceedings.

Captain Snow had the assistance of LtCol Shelburne in addressing

pretrial matters. To the extent that the convening authority’s

restrictions on LtCol Shelburne adversely affected Appellant’s

rights during the Article 32 proceeding, Appellant subsequently

entered into a plea agreement -- with the assistance of LtCol

Shelburne -- that expressly waived any defects in the Article 32

proceeding. Likewise, to the extent that the convening

authority’s actions restricted Appellant’s rights during the

initial pretrial agreement negotiations, Appellant had the

benefit of LtCol Shelburne’s unrestricted assistance during the

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subsequent negotiations, completion of the agreement, entry of

pleas, and other trial and post-trial proceedings. Under these

circumstances, the initial restrictions did not significantly

affect “the framework within which the trial proceed[ed].” See

Gonzalez-Lopez, 548 U.S. at 148; Brooks, 66 M.J. at 224. The

convening authority’s actions in the present case do not

constitute the type of error that is incapable of assessment,

and the error is not so fundamental that harmlessness is

irrelevant. See Gonzalez-Lopez, 548 U.S. at 148-49; Brooks, 66

M.J. at 224. Under these circumstances, the deficiencies in the

present case do not amount to structural error.

Appellant contends that the infringement of his Sixth

Amendment rights, even if not structural error, constituted

prejudicial error. In particular, Appellant contends that the

infringement adversely affected Appellant’s rights during the

Article 32 proceeding and during the initial pretrial agreement

negotiations.

The infringement of Appellant’s rights in this case

constituted a trial error that can be “‘quantitatively assessed

in the context of other evidence.’” Gonzalez-Lopez, 548 U.S. at

148 (quoting Fulminante, 499 U.S. at 307-08). In that posture,

“we shall assume, without deciding, that the Sixth Amendment was

violated in the circumstances of this case.” United States v.

Morrison, 449 U.S. 361, 364 (1981). Assuming that the error is

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of constitutional dimension, we assess whether it was harmless

beyond a reasonable doubt. See United States v. Moran, 65 M.J.

178, 187 (C.A.A.F. 2007) (quoting Chapman v. California, 386

U.S. 18, 24 (1967)) (applying the harmless beyond a reasonable

doubt standard to certain constitutional errors).

As previously noted, after the military judge’s ruling at

the outset of the trial proceedings that confirmed LtCol

Shelburne’s status as lead detailed defense counsel, LtCol

Shelburne represented Appellant fully as lead defense counsel

throughout the trial and post-trial proceedings. Appellant,

with the assistance of LtCol Shelburne as lead counsel, entered

into a pretrial agreement that expressly waived any error in the

Article 32 investigation. Moreover, as lead counsel, LtCol

Shelburne had the opportunity to engage in negotiations with the

convening authority regarding the defense request for

nonjudicial disposition as well as the terms of the pretrial

agreement. Appellant has claimed no measurable prejudice from

the inability of LtCol Shelburne to participate in the initial

scheduling conference under R.C.M. 802, nor has Appellant

claimed that his plea was involuntary or that the providency

inquiry was otherwise deficient. Under these circumstances, we

conclude that the convening authority’s erroneous action with

respect to the status of LtCol Shelburne during the pretrial

proceedings was harmless beyond a reasonable doubt.

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III. CONCLUSION

The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.

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RYAN, Judge (concurring in the judgment):

I agree with the majority’s conclusion that “the convening

authority erred by restricting the role of Appellant’s detailed

defense counsel during the pretrial proceedings, including the

proceedings concerning the Article 32 investigation and pretrial

agreement negotiations.” United States v. Wiechmann, __ M.J.

__, __ (15) (C.A.A.F. 2009). I write separately because I do

not believe, as the majority opinion “‘assume[s] without

deciding,’” id. at __ (19-20) (quoting United States v.

Morrison, 449 U.S. 361, 364 (1981)), that the convening

authority’s refusal to recognize the power vested in and

exercised by the detailing authority by statute, see Article

38(b)(6), Uniform Code of Military Justice (UCMJ), 10 U.S.C. §

838 (2000) (providing that the detailing authority “in his sole

discretion” may choose to appoint a second defense counsel),

qualifies as constitutional error.

Because the Government does not challenge the conclusion by

the Court of Criminal Appeals that the convening authority’s

refusal to recognize Lieutenant Colonel (Lt. Col.) Shelburne

burdened his attempts to fully represent Appellant, I, like the

majority, accept that conclusion as the law of the case. United

States v. Parker, 62 M.J. 459, 464 (C.A.A.F. 2006) (“When a

party does not appeal a ruling, the ruling of the lower court

normally becomes the law of the case.”). But Appellant has
United States v. Wiechmann, No. 09-0082/MC

likewise not disputed that during all times in which Lt. Col.

Shelburne’s participation was limited, Appellant was fully

represented by Captain (Capt.) Snow. At oral argument,

Appellant conceded that Capt. Snow was competent and qualified

to be his defense counsel; that at all times he had effective

assistance of counsel; and that there was no instance in which

Capt. Snow’s representation was deficient. While I believe

reaching the constitutional issue at all to be unnecessary,

under the circumstances of this case there is no basis for even

suggesting that Appellant’s Sixth Amendment rights were violated

by the limitations placed on Lt. Col. Shelburne.

The Sixth Amendment guarantees that “‘[i]n all criminal

prosecutions, the accused shall . . . have the Assistance of

Counsel for his defence.’ The core of this right has

historically been, and remains today, ‘the opportunity for a

defendant to consult with an attorney and to have him

investigate the case and prepare a defense for trial.’” Kansas

v. Ventris, 129 S. Ct. 1841, 1844-45 (2009) (citation omitted)

(brackets and ellipsis in original). But “[n]ot every

restriction on counsel’s time or opportunity to investigate or

consult with his client or otherwise to prepare for trial

violates a defendant’s Sixth Amendment right to counsel.”

Morris v. Slappy, 461 U.S. 1, 11, 13-14 (1983) (finding there is

no Sixth Amendment right to “a meaningful attorney-client

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relationship” and that denial of a continuance to give an

attorney who was appointed to appellant’s case six days before

trial more time to prepare was not an abuse of discretion).

Further, as the majority acknowledges, a military accused has

neither the absolute right to detailed counsel of choice, nor

the right to the assistance of two counsel. Wiechmann, __ M.J.

at __ (3-4); see Article 38(b)(3)(B), UCMJ (“The accused may be

represented by military counsel of his own selection if that

counsel is reasonably available” as determined by applicable

service regulations); Article 38(b)(6), UCMJ (“The accused is

not entitled to be represented by more than one military

counsel.”).

The scenario in which a defendant has two attorneys and one

is prevented from participating in a particular stage of the

proceedings appears to be a rare subject of litigation in the

federal courts. One situation where it has arisen is when

defense counsel has requested a continuance to allow both

counsel to be present. On appeal, the reviewing courts have

applied an abuse of discretion standard without any mention of

the Sixth Amendment. United States v. Riccobene, 709 F.2d 214,

231 (3d Cir. 1983); United States v. McManaman, 653 F.2d 458,

460-61 (10th Cir. 1981). In both Riccobene and McManaman, the

court found no abuse of discretion both because the second and

participating attorney was qualified and competent to represent

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the accused and because there was no assertion that the

resulting representation was inadequate or ineffective. See

Riccobene, 709 F.2d at 231 (finding no abuse of discretion

because appellant’s “other attorney had the experience and

capability to represent” appellant and because appellant “d[id]

not claim [his] representation was in any way inadequate”);

McManaman, 653 F.2d at 460 (finding no abuse of discretion

because attorney who was available when the trial began was

competent and well-prepared and because “there [was] no real

suggestion that [appellant] did not receive the assistance of

competent counsel at his trial”). Similarly, in this case,

Appellant was at all times represented by at least one counsel

he conceded was competent, and there is no allegation of

ineffective representation at any stage of the proceedings.

Of course, the military right to counsel is broader than

the right to counsel guaranteed to civilians. See, e.g., United

States v. Johnson, 21 M.J. 211, 213 (C.M.A. 1986) (“[O]ur

starting premise is that Congress intended to bestow on

servicemembers a right to counsel unparalleled in civilian

criminal trials.”). But these broader rights are the creations

of statute and regulation, not of the Constitution. See id. at

213-15 (discussing rights guaranteed by Article 38, UCMJ);

United States v. Gnibus, 21 M.J. 1, 5-7 (C.M.A. 1985)

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(discussing history of right to counsel in the military as

defined by the UCMJ and its statutory predecessors).

Article 38(b)(6), UCMJ, provides that “the person

authorized under regulations prescribed under [Article 27, UCMJ,

10 U.S.C. § 827 (2000)] to detail counsel in his sole discretion

may detail additional military counsel” to an accused. I agree

that a convening authority who does not honor such an additional

detailing has erred. Once a defense counsel has been detailed

under Article 38, UCMJ, and an attorney-client relationship has

been established, only the detailing authority may sever that

relationship, and only then under limited circumstances. See

Rule for Courts-Martial (R.C.M.) 505(d)(2) (outlining

circumstances in which the detailing authority, not the

convening authority, may excuse or change defense counsel once

that counsel has formed an attorney-client relationship with the

accused).

However, under the facts of this case, I cannot agree with

the suggestion that this error could be a Sixth Amendment

violation or an infringement of “Appellant’s right to the

assistance of counsel under Article 27,” as the majority

concludes. Wiechmann, __ M.J. at __ (17, 19-20). The

majority’s suggestion that interference with one counsel while

Appellant was fully represented by a second competent counsel

could constitute a Sixth Amendment violation is both incorrect

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and an unnecessary assumption, given the statutory violation we

all agree exists. Nor do United States v. Eason, 21 C.M.A. 335,

45 C.M.R. 109 (1972), and United States v. Tellier, 13 C.M.A.

323, 32 C.M.R. 323 (1962), offer any support for a Sixth

Amendment inquiry: Neither case presented the issue of

severance of an attorney-client relationship in the context of

an Article 27, UCMJ, “assistance of counsel” or Sixth Amendment

claim. Instead, both cases were grounded in the statutory

question whether the appellant’s rights under Article 38, UCMJ,

had been violated. Eason, 21 C.M.A. at 339-40, 45 C.M.R. at

113-14 (upholding Court of Military Review conclusion that there

was prejudice in the government’s refusal to appoint appellant’s

personally selected military counsel in violation of Article 38,

UCMJ); Tellier, 13 C.M.A. at 326-28, 32 C.M.R. at 326-28

(emphasizing that precedent from the boards of review and “the

clear and unequivocal command of the statute’s language” lead to

the conclusion that “an accused is entitled as a matter of right

to the association of his appointed defense counsel with his

individually employed attorneys”).1

1
Of course, both cases were decided under a prior version of
Article 38, UCMJ, which was interpreted to establish a statutory
right to representation by two military counsel. See Article
38(b), UCMJ, 10 U.S.C. § 838(b) (1964) (“Should the accused have
counsel of his own selection, the defense counsel, and assistant
defense counsel, if any, who were detailed shall, if the accused
so desires, act as his associate counsel.”) (emphasis added). A
subsequent revision of Article 38, UCMJ, clarified the fact that

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In this case, the chief defense counsel of the Marine Corps

detailed an additional military counsel, Lt. Col. Shelburne, to

Appellant’s case. Because the convening authority declined to

accept this detailing as valid, he improperly refused to

recognize authority conferred solely on the detailing authority

by Article 38, UCMJ, and R.C.M. 505. As an error under the UCMJ

and the Rules for Courts-Martial, it should be assessed under

Article 59, UCMJ, 10 U.S.C. § 859 (2000), to determine whether

the error materially prejudiced Appellant’s “substantial

rights.”

For the same reasons cited by the majority in support of

its conclusion that the error was harmless beyond a reasonable

doubt, I agree that there was no material prejudice to

Appellant’s substantial rights. Wiechmann, __ M.J. at __ (19-

21). I respectfully concur in the judgment.

a military member is not entitled to two military counsel,
although the person authorized under the applicable service
regulations to detail counsel may detail a second military
counsel “in his sole discretion.” Military Justice Amendments
of 1981, Pub. L. No. 97-81, § 4(b), 95 Stat. 1085, 1088.

7