Petition for Writ of Certiorari — Sparks v. United States

Supreme Court, U.S.

R 9 -8 06 FIL ED

* | now 22 1989

EPH F. SPANIOL, JR.

“

‘

eo. eo -

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

GARY D. SPARKS,

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

RICHARD F. O’HAIR

Colonel, Office of The Judge

Advocate General

Counsel of Record

LYNNE H. WETZELL

Major, Office of The Judge

Advocate General

United States Air Force

HQ USAF/JAJD

Bidg 5683

Bolling AFB, DC 20332-6128

(202) 767-1562

NOVEMBER 1989 Attorneys for Petitioner

QUESTION PRESENTED

Whether the petitioner was denied effective assistance

of counsel as provided by the Sixth Amendment to the

United States Constitution, as counsel was statutorily

barred from acting as defense counsel in this case.

(i)

TABLE OF CONTENTS

Page

OPINIONS BELOW = wits “ 1

SE ee ee ee 1

CONSTITUTIONAL AND REGULATORY PROVI-

SIONS INVOLVED ................. CERT RAS reer | 2

STATEMENT OF THE CASE Fa TTT 2

REASONS FOR GRANTING THE WRIT .................. 4

CONCLUSION OE a ed 7

APPENDIX A peace ma warey: la

APPENDIX B ES SAE Ba oC CCP OEE oerN 16a

TABLE OF AUTHORITIES

Cases:

Nix v. Whiteside, 106 S.Ct. 988 (1986) _....... 6

People v. Kester, 361 N.E. 2d 569 (Til. 1977) 6

Skelton v. State, 675 P.2d 671 (Okla. Crim. Ct.

App. 1983) ........ = 6

United States v. Catt. 1 MJ. 41 (C. M. A. 1975) os 5

United States v. Kitchin, 592 F.2d 900 (5th Cir.),

cert. denied, 449 U.S. 843 (1979) : 5

United States v. Sparks, 26 M.J. 676 (A.F.C.M.R.

| an NEE RD 2 OT © WCT O l

United States v. Sparks, 29 M.J. 52 (C.M.A.

1989) SO RY 1,5

United States v. Trafficante, 323 F.2d 639 (2nd

Ear £ SS Sane aE 5

Constitutional Provisions:

United States Constitution Amendment 6 ............. 2

Statutory Authorities:

10 U.S.C, § 832 (1982) . 2

10 U.S.C. § 834 (1982) 2

10 U.S.C. § 867(h) (Supp. III 1985) 1

28 U.S.C. § 1259(8) (Supp. ITI, 1985) 1

(iii)

iv

Uniform Code of Military Justice: Page

Article 27 (a) (2), U.C.M.J. (M.C.M. 1984) .............. 2,3, 4

Article 27 (b), U.C.M.J. (M.C.M. 1984) .....0..00000000.... 6

Article 32, UC.M.J. (M.C.M. 1984) .........00-0...

Article $32, U.C.M.J. (M.C.M. 1984) ........................... 2

Miscellaneous:

I a aes 4

BE RRR a a eC TEE Ne ™ 2

American Bar Association Code of Professional

Responsibility EC 4-5 and DR 4-101(B) (1980).. 4

Model Rules of Professional Conduct, Rules 1.6,

+. Be Bs: | = AACE en Pare TS 4,5

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

No.

GARY D. SPARKS,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

The petitioner, Gary D. Sparks, respectfully prays that

a writ of certiorari issue to review the judgment of the

United States Court of Military Appeals entered in his

case on September 26, 1989.

OPINIONS BELOW

The opinion of the United States Court of Military Ap-

peals is reported at 29 M.J. 52 (C.M.A. 1989) (Appen-

dix A). The opinion of the Air Force Court of Military

Review is reported at 26 M.J. 676 (A.F.C.M.R. 1988)

(Appendix B).

JURISDICTION

The jurisdiction of this Court is invoked under 10

U.S.C. § 867(h) (Supp. III 1985) and 28 U.S.C. § 1259

(3) (Supp. III 1985). The judgment of the Court of

Military Appeals was entered on September 26, 1989.

CONSTITUTIONAL AND

REGULATORY PROVISIONS INVOLVED

The Sixth Amendment provides:

In all criminal prosecutions, the accused shall enjoy

the right . . . to have the assistance of counsel for his

defense.

Article 27(a)(2) of the Uniform Code of Military

Justice, 10 U.S.C. § 834 (1982) provides:

. No person who has acted as investigating officer,

military judge, or court member in any case may

later act as trial counsel, assistant trial counsel, or

unless expressly requested by the accused, as defense

counsel or assistant or associate defense counsel in

the same case. No person who has acted for the

prosecution may later act in the same case for the

defense, nor may any person who has acted for the

defense act later in the same case for the prosecu-

tion.

STATEMENT OF THE CASE

Charges were preferred against petitioner on April 21,

1987. During the Article 32, U.C.M.J., 10 U.S.C. § 832,

investigation, he was represented by Captain Wells, the

local area defense counsel. Captain Herman served as

the government representative during that Article 32

hearing. As the government representative, he inter-

viewed the government witnesses, introduced these wit-

nesses at the Article 32 investigation, and elicited testi-

mony from them to support the government’s case against

petitioner. After the charges were referred to trial, Cap-

tain Herman served the charges on petitioner in his ca-

pacity as trial counsel. See, R.C.M. 602. On June 1,

1987, he endorsed a defense requested delay of the trial,

which was originally scheduled to begin June 3, 1987.

Subsequently, Captain Herman was transferred from the

base legal office at Nellis AFB, Nevada, to the area de-

fense counsel's office at that same base. Captain Wells,

the incumbent area defense counsel, was involved in sev-

——XTk enor

eral cases, one of which was petitioner’s. Although she

represented appellant at his Article 32 hearing, due to

her busy schedule, petitioner had been effectively without

counsel since the charges were preferred. He had re-

quested Independent Defense Counsel, but due to other

trial commitments by that counsel, the request was de-

nied.

Approximately two weeks before his trial date, peti-

tioner was offered Captain Herman as detailed defense

counsel. He agreed to his representation. An attorney-

client relationship was formed between them. At trial,

Captain Herman made a full disclosure as to his prior

participation on behalf of the prosecution. The military

judge questioned petitioner as to his desire to be repre-

sented by Captain Herman, to which petitioner responded,

he had “no problem with Captain Herman representing

[him].” After satisfying himself that petitioner wanted

to be represented by Captain Herman, he allowed Cap-

tain Herman to remain on the case.

A two-week continuance ensued. When the trial recon-

vened on August 10, 1987, a new military judge was de-

tailed to the trial. Again, petitioner was thoroughly ques-

tioned as to his desire to waive this statutory disqualifi-

cation and be represented by Captain Herman, to which

he responded, “I’m satisfied with retaining Captain Her-

man as my counsel.” Captain Herman then represented

appellant throughout the trial.

The Air Force Court of Military Review found that

under the language of Article 27(a) of the Uniform

Code of Military Justice, Captain Herman was statutor-

ily disqualified to represent the appellant. Nevertheless,

upon testing for prejudice, they found petitioner was not

prejudiced by Captain Herman’s representation. The

United States Court of Military Appeals also acknowl-

edged Captain Herman’s statutory disqualification, and

similarly found no prejudice in light of petitioner’s de-

4

sire to be represented by him after full disclosure and

inquiry by the military judge.

REASONS FOR GRANTING THE WRIT

Article 27, U.C.M.J., states:

No person who has acted as investigating officer,

military judge, or court member in any case may

act later as trial counsel, assistant trial counsel, or,

unless expressly requested by accused, as defense

counsel in the same case. (emphasis added).

It further directs that:

No person who has acted for the prosecution may

later act in the same case for the defense, nor may

any person who has acted for the defense act later

in the same case for the prosecution. (emphasis

added).

This same statutory disqualification is further elaborated

upon in R.C.M. 502(d) (4) wherein it states:

Disqualifications: No person shall act as trial coun-

sel or assistant trial counsel or, except when ex-

pressly requested by the accused, as defense counsel

or assistant defense counsel in any case in which the

person is or has been:

a. The accuser;

b. The investigating officer;

ce. A military judge; or

d. A member.

No person who has acted as counsel for a party

may serve as counsel for any opposing party in the

same case. (emphasis added).

This ineligibility accords fully with the ethics of the

legal profession. See, e.g., American Bar Association

Code of Professional Responsibility EC 4-5 and DR 4-

101(B) (1980); Model Rules of Professional Conduct,

——_—

5

Rules 1.6, 1.7, 1.9, 1.11 (1983); United States v. Catt,

1 M.J. 41 (C.M.A, 1975). The purpose of this prohibi-

tion is, obviously, to avoid a conflict of interest or the

appearance of such a conflict. As the Court of Military

Appeals stated, “Congress did not wish for information

received by a prosecutor in confidence in his capacity as

a representative of the Government to be revealed to an

adverse party; and it did not wish to have an accused

represented by an attorney who, because of his prior rep-

resentation of the Government in the same case, was

inhibited in the performance of his duties as a defense

counsel.” United States v. Sparks, 29 M.J. 52, 57 (C.M.A.

1989).

Allowing a defense counsel to represent 9” accused in

the very case he previously attempted to perfect against

the accused creates a situation replete with doubt as to

zealous representation. It is inherently prejudicial, both

to petitioner and the entire trial process. It is this in-

herent prejudice, which may never be brought to light,

that resulted in this statutory bar and condemnation by

our ethical standards. It is also the reason why an ac-

cused cannot waive the potential conflict, and why it is

inappropriate, not to mention impossible, for an appellate

court to test for prejudice. Simply stated, the trial judge

had no discretion to allow petitioner to be represented by

Captain Herman. His only option was to remove counsel

and insure petitioner was represented by other, non-

conflicted counsel.

This basic premise has been upheld by numerous courts,

holding that a criminal defense counsel must be disquali-

fied due entirely to the improper appearance of counsel’s

prior substantial responsibility while a government at-

torney in the same or similar matter, even though no

showing was made of an actual conflict of interest. See,

e.g., United States v. Trafficante, 323 F.2d 639 (2nd Cir. ‘

1974): United States v. Kitchin, 592 F.2d 900 (5th \

Cir.), cert. denied, 449 U.S. 843 (1979). One must look

EE

6

at this issue from a perspective of whether an accused

received his Sixth Amendment right to effective counsel.

To this concern, Justice Blackmun has noted that a crim-

inal defense “attorney who has previously represented

one of the state’s witnesses has a continuing obligation

to that former client not to reveal confidential informa-

tion received during the course of prior representation.

That continuing duty could conflict with his obligation to

his present client, the accused, to cross examine the state’s

witness zealously.” Nix v. Whiteside, 106 S.Ct. 988, 1006,

n.7 (1986) (Blackmun, J., concurring).

The Oklahoma Court of Criminal Appeals has con-

cluded that representation of a criminal by a former

prosecutor who has had some prosecutorial role in the

same case “creates a pervasive atmosphere of impropriety

which cannot be waived.” Skelton v. State, 675 P.2d 671

(Okla. Crim. Ct. App. 1983). The Illinois Supreme Court

has reached the same conclusion on similar appearance of

impropriety grounds, holding that “[t]he untenable sit-

uation which results for both the accused and [counsel]

in such instances is one which can and should be avoided

in the interest of the sound administration of justice.”

People v. Kester, 361 N.E. 2d 569, 572 (Ill. 1977).

It is apparent that Captain Herman could not remain

as defense counsel for the petitioner, nor could petitioner

waive the potential conflict of interest and inherent risks

therein. The inherent conflict of interest in Captain Her-

man’s representing petitioner, now responsible for dis-

proving the very case he previously attempted to prove, is

far too great. This is the prejudice which Congress in-

tended to avoid by creating the statutory bar in Article

27(b).

1In Kester, the guilty pleas were vacated and the case remanded

where the defense counsel had previously appeared in the same dur-

ing preliminary matters.

7

CONCLUSION

Captain Herman was statutorily barred from repre-

senting petitioner at this trial. The trial judge had no

discretion in this matter. It was error for him to allow

petitioner to waive this inherent conflict and elect to be

represented by Captain Herman. The Air Force Court

of Military Review and the United States Court of Mili-

tary Appeals erred in attempting to apply a test for

prejudice once such representation occurred. The ulti-

mate result was that petitioner was effectively denied his

Sixth Amendment right to assistance of counsel. There-

fore, his Petition for Writ of Certiorari should be

granted.

Respectfully submitted,

. RICHARD F. O’HAIR

Colonel, Office of The Judge

-Advocate General

Counsel of Record

LYNNE H. WETZELL

Major, Office of The Judge

Advocate General

United States Air Force

HQ USAF/JAJD

Bldg 5683

Bolling AFB, DC 20332-6128

(202) 767-1562

NOVEMBER 1989 Attorneys for Petitioner

APPENDICES

la

APPENDIX A

UNITED STATES COURT OF MILITARY APPEALS

No. 60760/AF

ACM 26433

UNITED STATES,

Appellee,

Vv.

GarRY D. SPARKS, Technical Sergeant, U.S. Air Force,

Appellant.

Sept. 26, 1989

For Appellant: Major Lynne H. Wetzell (argued),

Colonel Richard F. O’Hair (on brief).

For Appellee: Major Jeffrey H. Curtis (argued), Colo-

nel Joe R. Lamport and Lieutenant Colonel Robert E.

Giovagnoni (on brief).

Opinion of the Court

EVERETT, Chief Judge:

Sparks was tried by a general court-martial at Nellis

Air Force Base, Nevada, on a charge of wrongfully using

cocaine, in violation of Article 112a, Uniform Code of

Military Justice, 10 USC §912a. Contrary to his pleas,

he was found guilty by the court members and sentenced

to a bad-conduct discharge and reduction to Airman

Basic. This sentence was approved by the convening au-

thority; and the Court of Military Review affirmed the

findings and sentence. 26 MJ 676 (1988).

Subsequently, we granted review on these two issues:

2a

I

WHETHER THE MILITARY JUDGE ERRED BY

NOT DISQUALIFYING CAPTAIN HERMAN AS AP-

PELLANT’S TRIAL DEFENSE COUNSEL, AS CAP-

TAIN HERMAN WAS STATUTORILY BARRED

FROM ACTING AS DEFENSE COUNSEL IN THE

CASE.

II

WHETHER THE MILITARY JUDGE ERRED TO

THE SUBSTANTIAL PREJUDICE OF THE APPEL-

LANT BY INSTRUCTING THE COURT MEMBERS

THAT THEY SHOULD CONSIDER A PERMISSIBLE

PRESUMPION CONCERNING THE REGULARITY

IN THE HANDLING OF APPELLANT’S URINE

SAMPLE AT BOTH BROOKS AIR FORCE BASE AND

THE CENTER FOR HUMAN TOXICOLOGY.

I

A

The charge against Sparks was preferred on April 21,

1987; and during the Article 32, UCMJ, 10 USC § 832,

investigation, Sparks was represented by Captain Wells,

a local area defense counsel. Captain Herman served as

the government representative during the Article 32 hear-

ing, see RCM 405(d) (3) (A), Manual for Courts-Martial,

United States, 1984; and after the charges had been re-

ferred to trial on May 27, 1987, he served the charges

on appellant the next day in his capacity as trial counsel,

see RCM 602. On June 1, he endorsed a defense request

for delay of the trial, which had originally been scheduled

to commence on June 3. A few weeks later, Captain Her-

man was transferred from the legal office at Nellis Air

3a

Force Base and became one of the base’s area defense

counsel.'

Appellant requested that Captain Wise, a circuit de-

fense counsel, be assigned to represent him at trial; but

ultimately, because of other trial commitments, this re-

quest was denied by Captain Wise’s chief circuit defense

counsel. At some point, after he had been assigned to be

an area defense counsel, Captain Herman suggested that

he might take over either of two urinalysis cases that

Captain Wells was to be defending “back to back.” Ap-

pellant’s was one of those cases; and, ultimately, after

Sparks had ‘indicated” to Captain Herman “that. . . he

would be willing to use my services as his defense coun-

sel, .. . an attorney-client relationship” was formed be-

tween them.? Captain Herman made a full disclosure to

Sparks of his prior participation as the government rep-

resentative at the Article 32 hearing.

When trial began, Captain Herman advised the mili-

tary judge of his prior activity in behalf of the prosecu-

tion. This had included contacting a laboratory techni-

cian who was expected to be a witness at trial, and sev-

eral noncommissioned officers who were present at the

urinalysis-inspection test. Captain Herman had prepared

the necessary paperwork for the Article 32 hearing and

1 As we understand Air Force policy, frequently a military law-

yer who has served at a base legal office is assigned to be an area

defense counsel at that base; but rarely, if at all, is an area defense

counsel at a base later assigned to the base legal office.

2 As the Court of Military Review noted, the record of trial does

not contain details concerning the severance of appellant’s relation-

ship with Captain Wells. However, no issue was raised as to the

change of counsel; and the Court of Military Review was “con-

vinced that the appellant desired to be represented at trial by

Captain H[{erman], and by no one else. However, when changes in

counsel are made after formation of an attorney-client relationship,

that fact and the reason therefor should be clearly set forth on the

record.” 26 MJ 676, 677 n. 1 (1988).

a

had listened to testimony from witnesses. However, he

had not conversed with any forensic toxicologist.

After being fully informed of this prior participation

and being assured by Captain Herman that full disclosure

had been made to Sparks, the military judge then ques-

tioned appellant at length as to his wishes. Sparks af-

firmed to the military judge that he thought it was in his

best interest to be represented by Captain Herman; and,

when asked why, he responded:

Well, I’ve heard his testimony. And based upon his

testimony that I’ve heard during the Article 32 hear-

ing; and after the nonavailability of receiving an in-

dependent; and rather than things to go on as it was,

and we have talked extensively; the few times that

we have met together we’ve talked extensively about

the case and he seemed pretty knowledgeable about

the case itself as well as being pretty helpful to me

in making decisions that I wasn’t able to obtain since

21 April when my charges were preferred.

The following colloquy then ensued:

MJ: If you were to say to me today, “I would

like another defense counsel,” even if it’s an individ-

ually requested counsel from some place else; or per-

haps Captain Wise, because I understand he was not

available at the date of trial, he may be available

later on; if you were to say to me, “I would like Cap-

tain Wise,” then I will give you all the time that you

require, and we'll get Captain Wise and we'll make

him available for you, if at all possible. And if not,

Captain Wise we’ll try to get someone else for you.

This is a very serious problem because the law, and

the Congress, and the President who wrote the Man-

ual for Courts-Martial, is concerned that you may

not get fair or good representation because Captain

Herman has participated in the presentation of the

case against you.

5a

Now, do you understand that problem?

ACC: Yes, sir.

MJ: Do you want to stay with Herman, or would

you like me to go and get Wise for you?

ACC: Like I say, originally when I—when I first

—when I was first aware Captain Herman was area

defense counsel, my original request, when it was de-

nied—I wanted for him as well as an IDC to work

closely together on the case. If an independent is

brought in I would prefer that Captain Herman re-

main part of that.

MJ: Well, that’s not my question to you. My ques-

tion to you is, do you want Herman or do you want

someone else? Now Herman may be made available

to assist the independent counsel. If you recall when

I read you the rights, that if you are represented by

military counsel of your own selection, then you could

request that Captain Herman continue to represent

you. And the officer who detailed him would then

have the sole discretion to either grant or deny that

request. So it’s possible that Captain Herman could

continue on the case, but that would be up to his de-

tailing official, his boss.

My problem is, and my concern is, that if we go

forward today—if you want Captain Herman and

we go forward today, you know what situation you

are in, or if you want to wait and get Captain Wise

then we'll delay this trial for as long as it takes and

we'll get Captain Wise. Because all you have to do

is twitch and Herman’s off the case.

ACC: Yes, you Honor.

MJ: Because there is more than enough reasons

to take Captain Herman off this case. And the only

possible reason we could keep him on here is that

you really, really, really, really, really, really want

6a

him. Now, don’t feel bad about making Captain

Herman feel bad.

ACC: No, sir.

MJ: He doesn’t really count, you understand what

I mean?

ACC: More me than him.

MJ: That’s right. What's it going to be?

ACC: I have no problem with Captain Herman

representing me, sir, as long as we could—lI feel like

if there’s a little bit more time that we could spend

together in going over the case.

MJ: Do you want more time?

ACC: Yes, sir, I would.

After a recess of almost 4 weeks, trial resumed before

a different judge, who inquired again as to wether appel-

lant wished to be represented by Captain Herman. At

this time, the following colloquy took place:

MJ: Let me ask you, have you changed your opin-

ion regarding your request for Captain Herman,

given the fact that we’ve had a delay since the 15th

of July until the present date?

ACC: No, sir.

MJ: You’ve had plenty of time to think about it?

ACC: Yes, sir.

MJ: You've had plenty of time to contact Cap-

tain Wise or other counsel to act as independent

counsel for you?

ACC: Yes, sir.

MJ: Have you done so?

ACC: Not since the 15th, no, sir. I’m satisfied

with retaining Captain Herman as my counsel.

7a

MJ: All right. And you understood the purpose

of the discussion by Judge Howell, that there is, ap-

parently, a statutory prohibition against Captain

Herman sitting?

ACC: Yes, sir.

MJ: All right. In your view, you have formed an

attorney-client relationship with Captain Herman,

and you are prepared to proceed to trial with Cap-

tain Herman as your counsel at today’s hearing?

ACC: Yes, sir.

MJ: Do you have any questions about your rights

to counsel?

ACC: No, sir.

MJ: Captain Herman, are you prepared to ade

quately represent the accused in this hearing?

DC: I am, Your Honor.

MJ: All right. Thank you. Trial counsel, do you

wish to be heard before I make a determination?

TC: No, Your Honor.

MJ: For both counsel, and for you, Tech Ser-

geant Sparks, I am aware that there is a statutory

prohibition that could, in effect, prevent Captain

Herman’s serving as your defense counsel. However,

I think your constitutional rights to counsel of your

choice override any statutory prohibition. If you

assure me that you are satisfied with Captain Her-

man, and it is your wish that he represent you in

this proceeding, I am prepared to recognize him as

your counsel, even contrary to that statutory pro-

hibition.

ACC: Yes, sir.

MJ: That is your wish?

ACC: Yes, sir.

8a

The judge then allowed the trial to proceed with Cap-

tain Herman as defense counsel.

B

The members of the court were assembled and evidence

was presented concerning urine samples. Master Ser-

geant Martha Lynn testified that on December 18, 1986,

she had been first sergeant of the squadron to which

Sparks was assigned; and, pursuant to her unit’s urinaly-

sis program and procedures on which she was briefed

at the hospital laboratory, she had been “the monitor”

for obtaining urine specimens from “approximately 60”

members of her organization. She had “picked up the

bottles for the specimen”; placed labels on the bottles

with the name and social security number of the person

who was to give the specimen; had that person check

the information written on the label; and given the bot-

tle “‘to the observer.” She continued:

And the observer and the member went into the la-

trine, collected the urine sample, then they came out

again. The observer and the member would initial

the bottle, and then I would seal the bottle, have the

observer and the member to sign the urinalysis ledger,

verifying that information, that the specimen was

theirs, and that they observed them putting it, put-

ting the specimen into the bottle.

And, then, if it was any, if the member was taking

any type of medication or anything like that, any-

thing went, you know, happened that was of inci-

dent, that was of significance would be written in

the remarks section of the ledger. And then the per-

son was given their I.D. card, and they were told to

leave.

There had been no problem in collecting the urine speci-

men from Sparks, although he had to remain “in the

area . . . for a few hours before he provided a speci-

9a

men.” * On cross-examination, Master Sergeant Lynn

acknowledged that, although she “had monitored another

urinalysis, . . . the procedures were different than this.”

Also, the test had started 45 minutes late and urine had

been collected from 3 or 4 more members of the squadron

than had been required under the squadron’s “original

quo ”

Technical Sergeant Frank Vargas, who had been an

“lojbserver” for the urinalysis conducted on December

18, 1986, described the procedures he had employed “ev-

ery time”; and he identified the “particular bottle” in

which he had seen “the accused put his urine.” He had

watched the bottle “being sealed”; and had not “no-

tice[d] any problems or confusion when” he was “acting

as the observer.”

Technical Sergeant Thomas Wilhelmi testified that he

was the noncommissioned officer in charge of the labora-

tory at the base hospital and was “also the base drug

monitor.” He described the procedures for labeling and

initialing the bottles containing urine specimens and

stated that all samples collected on the base for urinaly-

sis were personally mailed either by himself or his ship-

ping clerk. He testified that he had received the bottle

containing appellant’s urine specimen and had personally

mailed it to Brooks Air Force Base by registered mail.

Next, Senior Airman Randolph Bennett testified that

his duties at Nellis Air Force Base included handling reg-

istered mail. He also identified a document which showed

that a package containing appellant’s urine specimen had

been sent by registered mail on December 22 and received

on December 29.

8 When Sparks was unable initially to provide a specimen, Master

Sergeant Lynn “collected the bottle back from the observer. I still

had his I.D. card. I placed the I.D. card and the bottle into the slot

in the box, and it remained there, in the box, until he was ready

to provide a specimen.”

10a

Dr. Naresh Jain, an expert in forensic toxicology, de-

scribed how cocaine may be ingested; what its effects are;

and by what scientific procedure it may be detected. He

was familiar with the Radioimmunoassay Test (RIA)

used at Brooks Air Force Base laboratory for testing

urine samples. He also knew the procedures and docu-

ments used at the Brooks laboratory in connection with

urine testing and the procedures employed for transmit-

ting samples found to be positive to the Center for

Human Toxicology in Salt Lake City, Utah, where they

would be further tested. He testified concerning the docu-

ments which purported to record the handling of the

specimen obtained from Sparks. Accordingly, the docu-

ments reflected that appellant’s sample had been found

positive when tested by the RIA and also when tested by

Gas Chromatography and Mass Spectrometry at Salt

Lake City.

Defense counsel questioned Dr. Jain at length about

the procedures that had been employed when appellant’s

urine specimen was tested at Brooks Air Force Base.

He also asked Dr. Jain about a study which tended to

indicate that “small, oral doses of cocaine’ could be in-

gested without being detected by the user and “may cause

positive urinalysis, positive urine results, test results for

at least 48 hours using routine detection methods.”

After the Government rested, the defense offered evi-

dence of appellant’s good character, testimony as to pos-

sible confusion in connection with obtaining the urine

sample from Sparks, and evidence apparently intended to

suggest that, if appellant had cocaine in his urine on

December 18, 1986, it was by reason of unknowing in-

gestion of the drug. Sparks himself testified and denied

taking cocaine. According to him, he had been shooting

pool in a bar a couple days before the urinalysis and had

been drinking beer under circumstances where, unwill-

ingly, he might have drunk from a glass or beer which

contained some cocaine.

NR a

lla

After all the evidence had been received, the military

judge reviewed proposed instructions with the counsel.

One of these instructions was to this effect:

As to the laboratories involved, both the USAF Drug

Testing Laboratory, at Brooks Air Force Base, and

the Center for Human Toxicology, at the University

of Utah, there is a permissible presumption that their

internal procedures, in the regular course of their

business, ensures the integrity of the chain of cus-

tody from the time they receive a sample for testing

until they render their report. You are not required

to presume internal regularity in the laboratories,

but you should consider this permissible presumption,

with due regard for all the evidence presented bear-

ing upon the chain of custody issue in this case.

No objection was expressed to this proposed instruction,

which subsequently was used by the military judge with

some variation (“that’? was changed to “in”; “ensures”

was changed to “‘to ensure”).

II

As appellate defense counsel emphasized, Article 27

(a) (2), UCMJ, 10 USC § 827(a) (2), provides:

No person who has acted for the prosecution may act

later in the same case for the defense, nor may any

person who has acted for the defense act later in

the same case for the prosecution.

See also RCM 502(d) (4).

Obviously the purpose of this prohibition is to avoid

a conflict of interest or the appearance of such a con-

flict. Congress did not wish for information received by

a prosecutor in confidence in his capacity as a representa-

tive of the Government to be revealed to an adverse

party; and it did not wish to have an accused represented

by an attorney who, because of his prior representation

12a

of the Government in the same case, was inhibited in the

performance of his duties as a defense counsel. Of course,

the ineligibility- prescribed by Article 27(a) (2) accords

fully with the ethics of the legal profession. See, e.g.,

American Bar Association Code of Professional Responsi-

bility EC 4-5 and DR 4-101(B) (1980); Model Rules of

Professional Conduct, Rules 1.6, 1.7, 1.9, 1.11 (1983);

United States v. Catt, 1 MJ 41 (CMA 1975).

However, not every error which concerns the appoint-

ment of court members or the referral of charges is “ju-

risdictional.” For example, in United States v. Blaylock,

15 MJ 190, 193 (CMA 1988), we concluded that, even

where a commander exercised command influence in vio-

lation of Article 37 of the Code, 10 USC § 887, the error

was not “jurisdictional.” In a similar vein, this Court

___ stated in Wright v. United States, 2 MJ 9, 11 (CMA

1976):

The rationale behind these separate lines of deci-

sions leads us to conclude that no jurisdictional sig-

nificance should be attached to Article 27 of the Uni-

form Code, as counsel merely augment the adjudicat-

ing tribunal and are not an integral part thereof.

Defects in the appointment of trial counsel, Article

27(a), UCMJ, or in the qualifications of trial coun-

sel, Article 27(b), UCMJ, are matters of procedure

to be tested for prejudice. Article 59(a), UCMJ.

In Wright, the Court was concerned with the qualifica-

tions of trial counsel; and a distinction might be drawn

here on the grounds that the qualifications of a defense

counsel involves the important constitutional right to the

assistance of counsel. However, if he makes an informed

choice to dispense with counsel, an accused may defend

himself. Faretta v. California, 422 U.S. 806, 95 S.Ct.

2525, 45 L.Ed.2d 562 (1975). Since an accused is con-

stitutionally free to dispense entirely with counsel, and

this right presumably supersedes even the provisions of

Article 27 of the Code as to appointment of defense coun-

13a

sel, we conclude that Captain Herman’s statutory ineligi-

bility could not deprive the general court-martial of juris-

diction.

Even though Captain Herman’s service as defense

counsel did not deprive the general court-martial of juris-

diction to try Sparks, it represents the obvious question

of whether appellant was prejudiced. In view of the

potential for prejudice when a defense counsel has di-

vided loyalties, we conclude that—without informed con-

sent by the accused—the prejudice is automatic. It is far

better to have a “bright-line” rule which avoids the ap-

pearance of evil than to undertake a detailed inquiry as

to prejudice whenever Article 27(a) (2) of the Code has

been violated.

If, however, an accused, after full disclosure and in-

quiry by the military judge, wishes to be represented by

a defense counsel who previously had acted for the prose-

cution, an accused has no complaint, so long as his chosen

counsel meets the customary standards of professional

competence.*

Two cautious military judges inquired carefully as to

the adequacy of the disclosure and as to appellant’s desire

to be represented by Captain Herman. From our exami-

nation of the record, it is clear that Captain Herman

defended Sparks with great skill. Indeed, Captain Her-

man’s familiarity with urinalysis—which he had acquired

as a prosecutor—stood him in good stead in defending

the accused. As far as we can determine, appellant made

a wise choice in seeking the services of this attorney.

4 If the defense counsel whom the accused has chosen is precluded

from using certain information or presenting certain evidence be-

cause it was acquired while he was acting for the prosecution and

if, before the accused gives his consent, the defense counsel has

disclosed that he would be limited in this manner in representing

the accused, the accused cannot complain that his attorney has

violated the accepted standards of practice.

l4a

Article 27(a) (2) creates a disqualification which can

be asserted not only by the defense but also by the Gov-

ernment; see also RCM 502(d) (4). No such assertion

was made by the Government—which apparently felt it

had a strong case and did not care who represented

Sparks. Of course, having secured a conviction, the Gov-

ernment is in no position to complain.

We should make clear, however, that—even though,

with appellant’s consent, the military judge was free to

allow him to be represented by Captain Herman—the

judge was not required to allow such representation. In

Wheat v. United States, 486 U.S. 153, 108 S.Ct. 1692,

100 L.Ed.2d 140 (1988), the Supreme Court held that,

despite a defendant’s willingness to be represented by an

attorney who was disqualified because of a conflict of

interest, the District Court did not have to allow such

representation. Similarly here, the military judge had

the discretion, with appellant’s consent and absent any

objection from the Government, to allow Captain Herman

to represent Sparks. However, the judge, if he had chosen

to do so, would have been equally free under these same

circumstances to prohibit Captain Herman from serving.

III

As recognized implicitly by Mil.R.Evid. 803(6), Man-

ual, supra, human experience teaches that the documents

and records compiled “in the course of a regularly con-

ducted business activity” tend to be trustworthy. In this

case, Doctor Jain had testified for the Government about

the procedures customarily followed in the drug-testing

laboratories at Brooks Air Force Base and at the Center

for Human Toxicology. The government evidence tended

to show that these procedures had been followed in ap-

pellant’s case.

The military judge’s instruction apparently was in-

tended to advise the court members that they could con-

sider the testimony about the internal procedures fol-

ee ee,

15a

lowed in these laboratories in deciding whether the Govern-

ment had established the chain of custody. This, of

course, related to the judge’s preceding instruction that

the court members must be satisfied beyond a reasonable

doubt not only as to the accuracy of the testing “but,

also, that it was, in fact, the accused’s urine which was

tested” and that “the process of establishing that a sam-

ple tested was that provided by the accused is often re-

ferred to as ‘chain of custody.’ ”

The instruction of which appellant now complains

should have been phrased in terms of “inference” rather

than “presumption.” However, the judge did explain that

the “presumption” was “permissible”; and defense coun-

sel did not complain of the instruction, either when it

was first proposed or after it had been given. Further-

more, the instruction concerned the internal procedures

followed at the drug-testing labs, rather than the proce-

dure employed in collecting the urine specimens in the

first instance—which the defense had claimed at trial

was irregular. We find no plain error in giving the

instruction; and so any issue with respect thereto has

been waived for appeal. RCM 920(f); United States v.

Fisher, 21 MJ 327 (SMA 1986).

IV

The decision of the United States Air Force Court of

Military Review is affirmed.

Judges COX and SULLIVAN concur.

16a

APPENDIX B

UNITED STATES AIR FORCE COURT OF

MILITARY REVIEW

UNITED STATES

We

Technical Sergeant GARY D. SPARKS, FR 283-54-7748

UNITED STATES AIR FORCE

ACM 26433

May 23, 1988

Sentence adjudged 11 August 1987 by GCM

convened at Nellis Air Force Base, Nevada.

Military Judges: John E. Howell and Harmon

O. Massey, Jr.

Approved Sentence: Bad conduct discharge, and

reduction to airman basic.

Appellate Counsel for the Appellant: Colonel Leo L.

Sergi and Captain Lynne H. Wetzell.

Appellate Counsel for the United States: Colonel Joe

R. Lamport, Lieutenant Colonel Morris A. Tanner, Jr.

and Captain Jeffrey H. Curtis.

Before

SESSOMS, LEWIS and BLOMMERS

Appellate Military Judges

DECISION

BLOMMERS, Judge:

The appellant stands convicted of use of cocaine after

the discovery of its metabolite, benzoylecgonine, during

urinalysis testing. The sentence, as adjudged by mem-

17a

bers and approved by the convening authority, is a bad

conduct discharge and reduction to airman basic (E-1).

The appellant now contends that his detailed trial de-

fense counsel was statutorily barred from acting as his

counsel.

The Charge and its Specification were preferred

against the appellant on 21 April 1987. Through com-

pletion of the Article 32 Investigation the appellant was

represented by Captain W., an area defense counsel as-

signed to Nellis Air Force Base, the situs of this trial

proceeding. The charges were referred to trial on 27

May 1987. Captain H. was detailed as Government Rep-

resentative during the Article 32 hearing (R.C.M. 405

(d) (3) (a)) and performed all duties normally associated

with that position. He also appears to have been detailed

as trial counsel for some period of time thereafter, since

he served the charges on the appellant on 28 May 1987

in that capacity (R.C.M. 602), and on 1 June indorsed

a defense request for delay of the trial originally sched-

uled to commence on 3 June. In late June or early July

1987, Captain H. was transferred from the base legal

office and became one of the base’s area defense counsel.

Shortly thereafter he was detailed to represent the appel-

lant, and did so throughout the trial. During the initial

session of the trial Captain H. brought his prior involve-

ment in the case to the attention of the military judge.

As to how it came about, Captain H. stated:

And knowing that I, at the end of June or the early

part of July, would be the area defense counsel, I

knew that I would no longer, most probably, be de-

tailed as trial counsel any further to the case.

I did not at that time understand—as I feel my per-

ception is now—that I would be barred from defend-

ing Sergeant Sparks.

With two urinalysis cases back to back that Captain

[W.] was to be defending, I offered my services that

etn

18a

I might take either one of those cases. She suggested

the case of—I’m not exactly sure how it was that

Sergeant Sparks’ case was suggested. He had in fact

requested independent defense counsel, . . . [a coun-

sel] from the Circuit, and that request was turned

down because of his unavailability, ....

That being the case, late, late in the week of, I be-

lieve, June 27 through July 3, . . . I was approached

by Sergeant Sparks who indicated to me that yes, he

would be willing to use my services as his defense

counsel.

That is the extent of the record as to the formation of

the attorney-client relationship between Captain H. and

the appellant and the severance of that relationship with

Captain W.'

Article 27(a) (2), U.C.M.J., provides:

No person who has acted as investigating officer,

military judge, or court member in any case may act

later as trial counsel, assistant trial counsel, or, un-

less expressly requested by the accused, as defense

counsel or assistant or associate defense counsel in

the same case. No person who has acted for the pros-

ecution may act later in the same case for the de-

1 The brevity of the record in this regard concerns us, although

it is not of consequence to resolution of the principal issue we will

be addressing. After the formation of an attorney-client relation-

ship, with an exception not applicable here, it may be severed only

upon express request of the accused or for other good cause shown

on the record. See generally R.C.M. 505(d)(2), 506(c), and

813(c). See also United States v. Timberlake, 22 U.S.C.M.A. 117,

4G C.M.R. 117 (1973); United States v. Massey, 14 U.S.C.M.A. 486,

34 C.M.R. 266 (1964). No issue has been raised as to the change

of counsel in this case, and we are convinced that the appellant

desired to be represented at trial by Captain H., and by no one else.

However, when changes in counsel are made after formation of an

attorney-client relationship, that fact and the reason therefor should

be clearly set forth on the record.

19a

fense, nor may any person who has acted for the de-

fense act later in the same case for the prosecution.

See also R.C.M. 502(d) (4); ABA Standards for Criminal

Justice, The Defense Function, Std. 4-3.5, and Commen-

tary at 4.44-4.45 (2d Ed. 1982 Supp., Vol. I). Further,

once an attorney-client relationship has been formed, an

attorney is bound by his professional duty not to divulge

information protected by the attorney-client privilege un-

der the law, or use such information to the disadvantage

of his client, be the client a government, a private entity

or individual person. ABA Code of Professional Respon-

sibility, EC 4-5 and DR 4-101. In general, these stand-

| ards are applicable to Air Force military justice proceed-

ings. Air Force Regulation 111-1, Military Justice Guide,

! para. 1-9 (1 August 1984). Elaborating upon the above

codal provision, paragraph 61f(4) of the Manual for

Courts-Martial, 1969 (Rev.), stated in part:

If it appears that any member of the defense has

previously acted in the same case for the prosecution,

he will be excused forthwith. If a member of the

defense is the accuser or has participated in the case

as an investigating officer, military judge, or court

member, he will be excused unless the accused ex-

pressly requests his services.

Under these provisions, it appears that a counsel who has

formed an attorney-client relationship with the govern-

ment would be statutorily barred per se from subse-

quently serving as defense counsel in the same case,

whereas one whose participation did not require forma-

tion of an attorney-client relationship, albeit technically

acting for the government, would be barred from subse-

quently serving as defense counsel unless “the accused

expressly requests his services.’”’ This analysis comports

with that of the Court of Military Appeals in United

States v. Catt, 1 M.J. 41 (C.M.A. 1975), the seminal

case interpreting the meaning of these provisions. In

Catt, a member of the defense team had previously as-

a

20a

sisted in the prepaartion of the pretrial advice to the

convening authority in the same case. His assistance ex-

tended only to summarizing the testimony of several wit-

nesses given at the Article 32 Investigation. The Court

found that this involvement did not establish an attorney-

client relationship between the counsel and the prosecution

which gave him special knowledge about the prosecution’s

ease. His prior involvement was certainly less than the

Article 32 investigator (who has a statutory duty to make

a recommendation for or against trial on the charges),

therefore he was not prohibited from serving as a defense

counsel if requested by the accused. The accused having

made such a request, removal of this counsel by the mili-

tary judge was reversible error. However, neither ap-

pellate counsel’s nor our research has disclosed a military

case which dealt with the precise issue we are facing in

this case: the continued representation of the appellant

by a counsel who had clearly formed an attorney-client

relationship for the prosecution. Cf., United States v.

Williams, 21 U.S.C.M.A. 459,54 C.M.R. 233 (1972); United

States v. Coleman, 19 U.S.C.M.A. 524, 42 C.M.R. 126

(1970); United States v. Green, 5 U.S.C.M.A. 610, 18

C.M.R. 234 (1955) (general prejudice found where coun-

sel appointed to represent the accused subsequently as-

sisted the prosecution).

Interestingly, the clearly prohibitive language contained

in the 1969 Manual, that a defense counsel who has pre-

viously acted “for the prosecution . . . will be excused

forthwith,” has not been carried over in the 1984 Manual,

either directly or by reference. However, the new Man-

ual’s drafters indicate that there are both waivable and

non-waivable disqualifications. R.C.M. 901(d) (3) pro

vides : “If it appears that any counsel may be disqualified

the military judge shall decide the matter and take ap-

propriate action.” The Discussion section under Rule 901

(d) states in part:

If the disqualification of trial or defense counsel

is one which the accused may waive, the accused

2la

should be so informed by the military judge, and

given the opportunity to decide whether to waive the

disqualification. In the case of defense counsel, if the

disqualification is not waivable or if the accused

elects not to waive the disqualification, the accused

should be informed of the choices available and given

the opportunity to exercise such options.

| If any counsel is disqualified, the military judge

| should ensure that the accused is not prejudiced by

) any actions of the disqualified counsel or any break

. in representation of the accused.

Disqualification of counsel is not a jurisdictional

defect; such error must be tested for prejudice. | Em-

phasis added. |

(No further guidance as to what these options might be

is given.) The statement that disqualification of counsel

is not jurisdictional is based upon case law. M.C.M.,

1984, App. 21, Analysis, at A21-45. In United States v.

Wright, 2 M.J. 9 (C.M.A. 1976), Chief Judge Fletcher,

speaking for a unanimous court, stated, “. . . that no

jurisdictional significance should be attached to Article

27 of the Uniform Code, as counsel merely augment

the adjudicating tribunal and are not an integral part

thereof.” Jd. at 11. The Court held that defects in either

the appointment or qualification of counsel are matters

of procedure to be tested for prejudice. Article 59(a),

U.C.M.J. See also United States v. Williams, supra;

United States v. Wilson, 2 M.J. 683 (A.F.C.M.R. 1976).

We choose to follow these precedents and the advisory

language contained in the Manual. But see United States

v. Coleman, supra, where the court reversed the convic-

tion because defense counsel was named in appointing

orders as trial counsel and the record contained no later

orders relieving him of that designation. This result was

reached despite the fact that the accused accepted the

officer in question as his counsel and the record estab-

heerlen

22a

lished that he had not in fact acted for the prosecution

or in any other prohibited capacity.

Suffice it to say that under the above quoted language

of Article 27(a) of the Uniform Code, Captain H. was

statutorily disqualified to represent the appellant. But

was the appellant in any way prejudiced? We find that

he was not. If there was any prejudice arising from this

attorney-client relationship, it flowed to the Government,

not the appellant. We reach this conclusion based upon

the following matters established in the record: (1) a

comprehensive inquiry into the situation made by two

military judges detailed to the case, including detailed

advice to the appellant about the problem and its rami-

fications; ? (2) the appellant’s express desire to be repre-

sénted by Captain H. even after a three-week continu-

ance in the proceedings during which he was advised to

think carefully about his choice of counsel and that sub-

stitute counsel would be provided if he so desired; and

(3) the tenacious representation provided by Captain H.

throughout the trial. See United States v. Davis, 3 M.J.

430 (C.M.A. 1977). We also note the lack of any objec-

tion by the Government as to Captain H. serving as de-

tailed defense counsel.

Indeed, as pointed out by appellate government coun-

sel, had the military judge barred Captain H. from rep-

resenting the appellant, we would now quite likely be fac-

ing a claim that his constitutional right to counsel had

been violated. See, e.g., United States v. Hanson, 24 M.J.

3877 (C.M.A. 1987) ; United States v. Herod, 21 M.J. 762

(A.F.C.M.R. 1986). Appellate government counsel also

note in their reply brief that:

... if an accused can waive his right to counsel and

represent himself upon a judge’s determination that

he is mentally competent and clearly expresses his

2 We commend both trial judges involved for their careful and

astute handling of this issue.

a

23a

desire to act as his own lawyer, United States v.

Mogavero, 20 M.J. 762 (A.F.C.M.R. 1985), it seems

absurd that he cannot waive a disqualifying conflict

and be represented by counsel of choice.

We find no fault in this logic.

While we find no basis to grant the relief requested

(that the findings and sentence be set aside), that does

not mean we look upon this situation with favor. As we

have pointed out, there are ethical as well as legal prob-

lems involved. The formation of attorney-client relation-

ships such as the one that occurred in this case easily

can, and should, be avoided.

We find the other asserted errors to be without merit.

See United States v. Ford, 23 M.J. 331 (C.M.A. 1987);

United States v. Harper, 22 M.J. 157 (C.M.A. 1986);

United States v. Fisher, 21 M.J. 327 (C.M.A. 1986) (re-

garding what constitutes plain error); United States v.

Strangstalien, 7 M.J. 225 (C.M.A. 1979); United States

v. Bassano, 23 M.J. 661 (A.F.C.M.R. 1986); R.C.M.

920(f). Accordingly, the findings and sentence are cor-

rect in law and fact and, on the basis of the entire rec-

ord, are

AFFIRMED.

Senior Judge SESSOMS and Judge LEWIS concur.

[SEAL]

OFFICIAL:

/s/ Pamela Howard

PAMELA HOWARD

Captain, USAF

Chief Commissioner

W ov. S&S. GOVERNMENT PRINTING OFFICE, 1989 252409 $2087