UNITED STATES, Appellee
v.
Ramon S. GUTIERREZ, Jr., Private First Class
U.S. Army, Appellant
No. 01-0802
Crim. App. No. 9900509
United States Court of Appeals for the Armed Forces
Argued March 20, 2002
Decided August 8, 2002
CRAWFORD, C.J., delivered the opinion of the Court, in
which GIERKE, EFFRON, and BAKER, JJ., and SULLIVAN, S.J.,
joined.
Counsel
For Appellant: Captain Mary Catherine Vergona (argued);
Colonel Adele H. Odegard, Lieutenant Colonel E. Allen Chandler,
Jr., Major Imogene M. Jamison, and Captain Sean S. Park (on
brief).
For Appellee: Captain Christopher Graveline (argued); Colonel
Steven T. Salata and Major Margaret B. Baines (on brief);
Captain Paul T. Cygnarowicz.
Military Judge: Donna L. Wilkins
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Gutierrez, No. 01-0802/AR
Chief Judge CRAWFORD delivered the opinion of the Court.
Pursuant to his pleas, appellant was convicted of two
specifications of stealing a vehicle, robbery, two
specifications of conspiring to steal a vehicle, conspiring to
commit robbery, and receiving stolen property, in violation of
Articles 121, 122, 81, and 134, Uniform Code of Military Justice
(UCMJ), 10 USC §§ 921, 922, 881, and 934. The convening
authority approved the sentence of a dishonorable discharge,
five years’ confinement, total forfeitures, and reduction to the
lowest enlisted grade. The Court of Criminal Appeals affirmed
in a short form opinion. We granted review of the following
issues:
I. WHETHER APPELLANT IS ENTITLED TO A NEW REVIEW AND
ACTION BECAUSE THE STAFF JUDGE ADVOCATE WHO
PREPARED THE RECOMMENDATION AND ADDENDUM WAS
DISQUALIFIED AFTER SHE TESTIFIED AS A WITNESS
REGARDING A CONTESTED MATTER AND AFTER SHE SERVED
AS A TRIAL COUNSEL IN APPELLANT’S COURT-MARTIAL.
II. WHETHER THE STAFF JUDGE ADVOCATE IMPROPERLY
SUBMITTED NEW MATTERS TO THE CONVENING AUTHORITY
IN THE ADDENDUM TO HER POST-TRIAL RECOMMENDATION.
As to Issue I, we hold that the Staff Judge Advocate (SJA) was
disqualified. Given our resolution of Issue I, we need not
reach Issue II.
FACTS
Prior to his pleas, appellant made a motion to dismiss for
lack of a speedy trial. Major (MAJ) Laurel Wilkerson, the Chief
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United States v. Gutierrez, No. 01-0802/AR
of Military Justice at Fort Drum, testified as to the reasonable
diligence in bringing appellant’s case to trial. She testified
that when she finally notified appellant’s defense counsel, an
arrangement was made for an investigation under Article 32,
UCMJ, 10 USC § 832, “around the beginning of March.” Defense
counsel contradicted this testimony during argument on the
motion, stating “with absolute metaphysical certainty that there
wasn’t [coordination] with this defense counsel” during the
week, thereby disputing MAJ Wilkerson’s testimony about
coordination with defense counsel in the pending case.
MAJ Wilkerson’s testimony also was contradicted by a
stipulation of fact indicating that appellant’s defense counsel
was notified on February 18, 1999, that an Article 32
Investigating Officer had been appointed, and that the hearing
was set for February 20, 1999. Defense counsel contended at
trial that the purpose of the short-notice hearing was to force
the defense to assume legal responsibility for the Government’s
processing delays in bringing the case to trial. The judge
noted the contradiction in MAJ Wilkerson’s testimony, but the
motion to dismiss was denied and the trial proceeded with a
guilty plea.
While testifying about her pretrial efforts to ensure
appellant received a speedy trial, MAJ Wilkerson testified that
“we” (presumably government counsel) had to direct the Criminal
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United States v. Gutierrez, No. 01-0802/AR
Investigation Command’s (CID) investigation of appellant’s case.
She testified that she and her trial counsel were “just running
around with CID, making sure that we had the evidence we needed
to get [this] case[] together.”
At some point, MAJ Wilkerson became the SJA of Fort Drum
because part of the unit was deploying to Bosnia. In that
capacity, she prepared a post-trial recommendation for the
convening authority recommending approval of appellant’s court-
martial results. In response to MAJ Wilkerson’s recommendation,
the defense contended she was disqualified from making a
recommendation due to her testimony at appellant’s court-
martial. To this, MAJ Wilkerson responded in an addendum that
her testimony was merely “administrative in nature and
uncontroverted.” As a result, the convening authority accepted
her recommendation.
DISCUSSION
If an SJA testifies as a witness at a court-martial
concerning a contested matter, he or she may be disqualified
from thereafter serving as the SJA for the convening authority
in that case. RCM 1106(b) and Discussion, Manual for Courts-
Martial, United States (2000 ed.).* At the time of MAJ
Wilkerson’s testimony, this Court had left open the question of
*
This Manual provision is identical to the one in effect at the time of
appellant’s court-martial.
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whether a guilty plea waives a speedy trial issue. See, e.g.,
United States v. Birge, 52 MJ 209, 211 (1999)(citing earlier
cases holding there could not be a waiver and later cases
upholding a waiver). We are not resolving the waiver issue here
because it is not directly presented, but so long as that issue
remains unresolved, testimony on a contested speedy trial issue
involves testimony on an issue potentially subject to post-trial
review. Therefore, we hold that MAJ Wilkerson placed herself in
a position where she would be called upon as SJA to evaluate her
own testimony regarding the contested speedy trial issue,
thereby disqualifying her from serving as the reviewing SJA.
See United States v. Lynch, 39 MJ 223, 229 (CMA 1994) (“[W]here
a legitimate factual controversy exists between the [SJA] and
the defense counsel, the [SJA] must disqualify himself from
participating in the post-trial recommendation.”).
MAJ Wilkerson was disqualified because she assumed a
prosecutorial role in appellant’s case. Having actively
participated in the preparation of the case against appellant,
MAJ Wilkerson was not in a position objectively to evaluate the
fruits of her efforts. In United States v. Willis, 22 USCMA
112, 114, 46 CMR 112, 114 (1973), this Court held that general
advice to a trial counsel and investigator is not disqualifying.
However, this Court cautioned:
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[A] staff legal officer may become so deeply and
personally involved as to move from the role of
advis[o]r to the role of participant. Once he [or
she] acts in that capacity, he [or she] is
disqualified from later performing any inconsistent
function.
MAJ Wilkerson crossed the line from advisor to active
participant when she actively participated in a prosecutorial
capacity to orchestrate the timing of the Article 32
investigation to force the defense to assume responsibility for
the delay.
The decision of the United States Army Court of Criminal
Appeals and the action of the convening authority are set aside.
The record of trial is returned to the Judge Advocate General of
the Army for remand to a convening authority for a new post-
trial recommendation and action. Thereafter, Articles 66 and
67, UCMJ, 10 USC §§ 866 and 867, will apply.
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