United States v. Newak

DECISION

HODGSON, Chief Judge:

Tried by general court-martial with the military judge sitting alone, the accused was convicted, despite her pleas, of wrongfully using, possessing and transferring marijuana, attempting to wrongfully possess and transfer a substance she believed to be amphetamines; sodomy, and conduct unbecoming an officer, in violation of Articles 80, 125, 133 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 880, 925, 933, 934. The approved sentence extends to a dismissal, forfeiture of all pay and allow*543anees, and confinement at hard labor for six years.

I

At the outset, we are faced with the assertion that the accused was deprived of effective assistance of counsel under the Sixth Amendment because her assigned military defense counsel, Captain S, worked against her interests. The record disclosed that the Area Defense Counsel (ADC) assigned to Griffiss Air Force Base, New York, also provides defense services1 to Hancock Field, New York, where the accused is assigned and where her trial took place. In the summer of 1981, Captain P was the ADC at Griffiss AFB and was appointed to represent the accused and Senior Airman Peelman, who were being investigated for alleged homosexual activities. During this same period Captain P was notified of his reassignment that fall, and told that Captain S, who was assigned to the Griffiss AFB legal office, was to be his replacement.

To insure an orderly changeover, Captain P took Captain S to Hancock Field and introduced him to the accused and later, in a separate interview, to Peelman. Captain P indicated to both individuals that he was leaving and that Captain S would be the new ADC. Captain P then discussed various aspects of each case with the parties concerned, with Captain S present; these interviews occurred in early September and were conducted at the Hancock Field legal office. At this time Captain S was still assigned to Griffiss AFB.

On approximately 20 October, Captain S became aware that his representation of both the accused and Peelman might result in a conflict of interest as the result of the government giving Peelman a grant of immunity.2 The subject was broached to him by the Staff Judge Advocate, Hancock Field. Upon learning of the grant, Captains P and S called the Chief Circuit Defense Counsel whose responsibility is the professional supervision of all Area Defense Counsel within the circuit. See United States v. Cahill, 3 M.J. 1030 (N.C.M.R.1977). The situation was outlined to him and he concluded that Captain S could not represent the accused; accordingly, a different ADC was appointed as her counsel. This attorney assisted in her defense at both the pretrial investigation and the trial itself; the accused also retained a civilian attorney as lead counsel. Captain S continued as counsel for Peelman. Subsequently, he also represented Airman Liles. Both Liles and Peelman testified against the accused under grants of immunity. Captain S admitted telling Liles and Peelman “to stay away from Newak because she’s going down the tubes.”

The rule that an attorney cannot represent conflicting interests is one that courts strictly enforce. United States v. Melton, 30 C.M.R. 796 (A.F.B.R.1960). Here, however, we note that the conflicting interests were identified early in the proceedings and a new attorney was appointed for the accused before charges were preferred. See People v. Davis, 210 Cal.App.2d 721, 26 Cal.Rptr. 903 (1962). We find it significant that Captain S did not represent the accused at either the pretrial investigation or at the trial itself. Cf. United States v. Davis, 3 M.J. 430 (C.M.A.1977) (defense counsel cross-examined a former client at trial).

Prior representation by defense counsel of a government witness against the accused does not by itself justify a conclusion that the accused was denied effective representation, particularly when that defense counsel does not represent the accused at trial. United States v. Lovett, 7 U.S.C.M.A. 704, 23 C.M.R. 168 (1957); United States v. Peebles, 2 M.J. 404 (A.C.M.R. 1975). It must also be shown that the accused was harmed by the relationship. *544United States v. Thornton, 8 U.S.C.M.A. 57, 23 (C.M.R. 1957).

The accused seeks to establish this harm by showing that Captain S was assigned to the Griffiss legal office at the time he entered into an attorney-client relationship with her. This, in her view, is sufficient to prove prejudice as it suggests that her assigned counsel had divided loyalties. We do not attach the same importance to this as does appellate defense counsel. The Griffiss legal office and the Hancock legal office are separate organizations in different chains of command.3 Griffiss legal office has absolutely no control over trials convened at Hancock Field. Thus, that Captain S was ostensibly still assigned to the Griffiss office when he spoke with the accused could not have influenced a trial at Hancock Field in any way.

Next, appellate counsel argues that the subsequent representation by Captain S of Peelman and Liles, who testified against the accused, shows that S had abandoned her while still her counsel. Finally, appellate counsel finds fault in the fact that both Captains S and P used the Hancock Field legal office to interview potential witnesses. This, she contends, is an unjustified casual approach to the confidentiality of the attorney-client relationship and indicative of the quality of the representation the accused received prior to charges being preferred. Both military counsel stated that this was done as a matter of convenience since Hancock Field had no ADC office.

These circumstances, in our opinion do not amount to ineffective representation. The accused was given different counsel when it became apparent that she, Peelman and Liles could not all be represented by Captain S. Again we note that this was accomplished early in the proceedings prior to the charges being preferred. We agree that Captain S was less than discreet when he later suggested that Peelman and Liles avoid the company of the accused “as she was going down the tubes,” but it is not contended that he induced them to testify falsely or divulged to them information given him in confidence by the accused. In short, we find the accused has suffered no prejudice. We conclude that Captain S adequately protected the confidences given him by the accused, and she was not denied effective assistance of counsel. Accord United States v. Barrois, 47 C.M.R. 169 (A.C.M.R.1973), see also United States v. Brooks, 2 M.J. 102 (C.M.A.1977).

II

The accused next contends that her conviction of attempting to wrongfully possess and transfer amphetamines cannot stand as the substance was in fact “over the counter” diet pills. (Specification 3 of Charge I and Specification of Charge II). Therefore, according to her, the crime charged is legally impossible. We disagree. To constitute an attempt to commit a crime there must be an intent to commit the crime, an overt act toward its commission, and its consummation must be apparently possible. Manual for Courts-Martial, United States, 1969 (Rev.), para. 159. The question of whether the accused attempted to possess or transfer an illicit drug does not depend upon the true nature of the substance involved. United States v. Dominguez, 7 U.S.C.M.A. 485, 22 C.M.R. 275 (1957). Here the record establishes that the accused thought the substance was amphetamine and therefore the commission of the offense was apparently possible. United States v. Foster, 14 M.J. 246 (C.M.A.1982). See generally, United States v. Bruce, 14 M.J. 254 (C.M.A.1982).

III

Finally, appellate counsel urges that the sentence was excessive and that confinement of any duration would be inappropriate. We cannot ignore that the accused, an officer, encouraged the use of marijuana and other illicit drugs among Air Force personnel, and committed numerous acts of sodomy with a female enlisted person. *545Upon consideration of the total record, we find the sentence entirely appropriate.

We have considered the remaining assigned error and have resolved it adversely to the accused. Accordingly, the findings of guilty and the sentence are

AFFIRMED.

. A full description of his duties is contained in Air Force Manual 111-1, Military Justice Guide, para. 13-2, 2 July 1973, Change 4 (13 May 1980).

. On 17 November 1981, Peelman was given a grant of immunity by the Commander, 9th Air Force.

. Griffiss Air Force Base is assigned to 8th Air Force, Strategic Air Command, while Hancock Field is assigned to 9th Air Force, Tactical Air Command.