Petition for Writ of Certiorari — Hamilton v. United States

Supreme Court, U.8.

FILED

Y/Y 94 Q9BA4NOV 23 19%

No.

sn en oP cc rR a et pan

IN THE

Supreme Court of the United States

OCTOBER TERM, 1994

MAURICE HAMILTON,

Petitioner

Vv.

UNITED STATES OF AMERICA,

Repondent

Petition for a Writ of Certiorari to the

United States Court of Appeals for the Armed Forces

PETITION FOR WRIT OF CERTIORARI

JAY LINDSEY COHEN

Colonel, United States Air Force

Chief Appellate Defense Division

Counsel of Record

ROBERT E. WATSON

Captain, United States Air Force

Appellate Defense Counsel

Counsel for the Petitioner

Air Force Legal Services Agency

Appellate Defense Division

172 Luke Avenue, Suite 208

Bolling AFB, DC 20332-5113

November 1994 (202) 767-1562

QUESTION PRESENTED

Whether the denial of defense challenges for cause

against three court-members who had attorney/client rela-

tionships with the prosecutor deprived the petitioner of

his right to Due Process under the Fifth Amendment to

the Constitution.

(i)

TABLE OF CONTENTS

. Page

gE 1

a 2

CONSTITUTIONAL PROVISIONS INVOLVED........ 2

STATEMENT OF THE CASE ....000.0..020.2.22...cc0ccsseeseeees ’ 2

REASONS FOR GRANTING THE WRIT .................... 3

FET ne aT 7

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SE 13a

(iii)

iv

TABLE OF AUTHORITIES

MILITARY CASES: Page

United States v. Davenport, 17 M.J. 242 (C.M.A.

EE cc ccecisonscounince/ctccaseacenecence tus stceieea mab has aaa 4

United States v. Glenn, 25 M.J. 278 (C.M.A

| A RSS OIE ECT A TN ets RTE MICrN 4,6

United States v. Harris, 138 M.J. 288 (C.M.A

I iaiciinsninchscnchsiintacicieiadetanshatidiiaindiahialaMiadeibataatas tates 5, 6, 7

United States v. Ingham, 36 M.J. 990 (A.C.M.R

TR go cipccguiccoseeecesinbtctbcectuiactnasnceesduancciieoeliaascn acta tuaiaciaienis 5

United States. v. Lake, 36 M.J. 317 (C.M.A. 1993).. 5

United States v. Lopez, 35 M.J. 35 (C.M.A. 1992) .. 5

United States v. Laan, 22 M.J. 124 (C.M.A.

NSERC TE SER ROE Wo RPE Uae Ira bce nee eT 3

United States v. Porter, 17 M.J. 377 (C.M.A

SD n=. -c- ccna cosorpaeaiceeedcinaibidasanendiieaialadecnitdaadelabcaatiia 4, 5,6

United States v. Smart, 21 M.J. 15 (C.M.A. 1985).. 3

CONSTITUTIONAL PROVISIONS:

RR FRA eee eae rete Tern Tone 2,3, 7

Be NN ga ohschectntecanecemencesneicasimaierimccnasetion 3

STATUTES

10 U.S.C.A. § 867(a) (Supp. 1992) ......................------

28 U.S.C.A. § 1259(3) (Supp. 1992) ...................-...-.-

Art. 41, U.C.3ELd., 19 U.BA. GOG8 .........-..........----.-

Article 123a, U.C.M.J., 10 U.S.C. § 923a ..................-.

Article 25, U.C.M.J., 10 U.S.C. § 828 ..................--------

Article 36, U.C.M.J., 10 U.S.C. § 836 ...................-....--

wCwn fr NN

RULE FOR COURTS-MARTIAL:

R.C.M. 912(f) (1) (N) (MCM, Part II, 1984) ........ 3,4

In THE

Supreme Court of the United States

OCTOBER TERM, 199

No.

MAURICE HAMILTON,

is Petitioner

UNITED STATES OF AMERICA,

Repondent

Petition for a Writ of Certiorari to the

United States Court of Appeals for the Armed Forces

PETITION FOR WRIT OF CERTIORARI

The petitioner, Maurice Hamilton, respectfully prays

that a writ of certiorari issue to review the order and

judgement of the United States Court of Military Appeals

entered in his case on September-30;1+993,-

23/99

OPINIONS BELOW

The unpublished opinion of the United States Air \

Force Court of Military Review’ is located at Appendix

A. The order and judgement of the United States Court

of Military Appeals,’ No. 93-0654, slip op. (C.M.A. 2423

September 1994) is located at Appendix B.

1 The court has been subsequently renamed the United States

Air Force Court of Criminal Appeals.

2 The court has been subsequently renamed the United States

Court of Appeals for the Armed Forces.

2

JURISDICTION

The final order of the United States Court of Military

Appeals was entered on September 2%, 1994. The juris-

diction of this Court is invoked under 28 U.S.C.A.

§ 1259(3) (Supp. 1992) and 10 U.S.C.A. § 867(a)

(Supp. 1992).

CONSTITUTIONAL PROVISIONS INVOLVED

The Fifth Amendment of the Constitution of the

United States provides in relevant part:

No person shall be . . . deprived of life, liberty, or

property, without due process of law... .

STATEMENT OF THE CASE

The petitioner was charged, under five separate specifi-

cations, of uttering checks with intent to defraud in viola-

tion of Article 123a, U.C.M.J., 10 U.S.C. § 923a. Peti-

tioner entered not guilty pleas and elected trial before a

court-martial panel consisting of officer members.

During the voir dire of the court members, it became

clear that the Assistant Trial Counsel (hereinafter ATC)

had provided legal advice and counselling to no less than

three of the seven members on the court. (R. 82-131).

Lt Col Smith had obtained tax advice from the ATC rela-

tive to his personal finances and a rental property in

Texas. (R. 101-103). Captain Davis had similarly re-

ceived personal legal advice and had formed an opinion

about the professionalism and competence of the ATC.

(R. 119-120; 128-131). At first, Captain Davis indicated

that his contacts with the ATC had been minimal, but

later admitted that these contacts had, in fact, been far

more involved than he had originally intimated. (/d.).

Captain Walker had also seen the ATC for legal advice.

(R. 122-123). The confidential relationships established

between trial counsel and these three clients were so close

3

that he was not even able to discuss his involvement with

his own co-counsel. (R. 126-127).

Trial defense counsel’s challenges for cause against all

three were denied. (R. 126, 131). Upon denial of the

challenge by the military judge, the defense exercised its

peremptory challenge against Captain Walker. (R. 138).

A defense request for additional peremptory challenges

was denied.

REASONS FOR GRANTING THE WRIT

Unlike the Fifth Amendment to the Constitution re-

garding “presentment or indictment of a Grand Jury,” the

language of the Sixth Amendment does not expressly ex-

empt the “land or naval forces” from the right to trial “by

an impartial jury of the State and district wherein the

crime shall have been committed.” Nonetheless, the mili-

tary appellate courts have concluded that “courts-martial

have never been considered subject to the jury-trial de-

mands of the Constitution.” United States v. McClain,

22 M.J. 124, 128 (C.M.A. 1986). Instead, the courts

have held that “qualifications for service on courts-martial

have been prescribed by Congress in the exercise of its

power under Article I, § 8, cl. 14 of the Constitution.”

United States v. McClain, 22 M.J. at 128.

The qualifications established by Congress are set forth

in Article 25, U.C.M.J., 10 U.S.C. § 825. Further, the

President, pursuant to his powers under Article 36,

U.C.M.J., 10 U.S.C. § 836, has promulgated Rule for

Courts-Martial 912, which sets forth the procedures for

challenging court-martial members. Collectively, these

statutory and procedural rules create rights on behalf of

service members which are enforceable by the Due Proc-

ess clause of the Fifth Amendment to the Constitution.

Petitioner had an absolute right to be tried by an

impartial panel of members who would resolve his case

with a fair and open mind. United States v. Smart, 21

4

M.J. 15 (C.M.A. 1985); United States v. Davenport,

17 M.J. 242 (C.M.A. 1984). Court-martial members

must be persons whose impartiality is not reasonably

open to question and, because an accused in a military

court-martial has but one peremptory challenge to exer-

cise, challenges for cause must be liberally granted.

United States v. Glenn, 25 M.J. 278 (C.M.A. 1987);

Art. 41, UCMJ, 10 U.S.C. § 841 (1988). R.C.M. 912

(f)(1)(N) (MCM, Part II, 1984) provides that “[a]

member shall be excused for cause whenever it appears

that the member . . . [s]hould not sit as a member in

the interest of having the court-martial free from substan-

tial doubt as to legality, fairness, and impartiality.” (Em-

phasis added).

In the instant case, the ATC’s pre-existing attorney-

client relationships with three of the court members did

cast substantial doubt on the legality, fairness and impar-

tiality of this trial The Air Force Court of Military

Review, while noting “that all three [court members] had

previous attorney-client relationships with assistant trial

counsel,” held that the military judge did not abuse his

discretion in finding that the attorney-client relationships

constituted “mere isolated contact.” United States v.

Hamilton, unpub. op. at 3.

Challenges for cause based on the relationship be-

tween counsel and a member have been considered be-

fore by the military courts. In United States v. Porter,

17 M.J. 377 (C.M.A. 1984), defense counsel challenged

a member on the grounds that “he has some type of

personal relationship with Captain Franke who is the

trial counsel here, as he is—Captain Franke is his trial

counsel responsible for his squadron and he consults with

him, of course, concerning his cases.” Id. at 379. The

member also knew trial counsel because of their joint

participation in “Volks Marches and running.” Id. at

378. The United States Court of Military Appeals, in

' ey

5

affirming the decision of the Army Court of Military

Review, held:

In this case, the assertions against LTC Steele are

not of such significance that his positive assurances

that they would not affect his impartiality did not

suffice to remove any aspect of bias. Indeed, his

experiences are of a nature that they might have

been experienced by a significant element of the mili-

tary population (and potential court members). Un-

der such circumstances, we do not choose to extend

the concept of implied bias here.

Id. at 379-380. The Court of Military Appeals went on

to state that “[w]Je do not mean to foreclose entirely the

concept of implied bias. See United States v. Harris, 13

M.J. 288 (C.M.A. 1982). However, we prefer to reserve

the application of that doctrine to those situations where

there are implications of fifth or sixth amendment viola-

tions.” Id. at 380.

A professional relationship, such as a member of the

legal office providing advice to a commander as a com-

mander,’® is to be expected. Indeed the Court of Military

Appeals has found it “very significant that the com-

mander acted only after consulting the local SJA.” United

States v. Lopez, 35 M.J. 35 (C.M.A. 1992). Such

activity occurs routinely in order that commanders may

carry out their military duty. Such a professional rela-

tionship, by itself, is not a fertile ground for challenge.

See e.g., United States v. Lake, 36 M.J. 317, 322

(C.M.A. 1993) (member a company commander who

received legal advice from both trial and defense coun-

sel); United States v. Ingham, 36 M.J. 990, 994

(A.C.M.R. 1993) (member a special court-martial con-

vening authority who occasionally received legal advice

from the trial counsel ).

8 The term “commander” is not meant to imply that only com-

manders have professional relationships with military attorneys.

The term is used here solely as an example.

|

6

The appearance of fairness in the military justice sys-

tem is diminished, however, as the relationship moves

from the professional to the personal. By addressing the

relationship between the members and the ATC in terms

of “mere isolated contact,” the Air Force Court of Mili-

tary Review considered only the frequency or duration,

and not the scope, of the relationships. For example,

viewing the relationship in Porter, supra, from the per-

spective of scope, the relationship arising from participat-

ing in Volks Marches and running was shallow regardless

of the number of times it occurred. On the opposite

end of the “personal relationship” spectrum, the Court

of Military Appeals set aside the sentence in a case where

one of the court members was the sister-in-law to the

deputy staff judge advocate. United States v. Glenn, 25

M.J. 278 (C.M.A. 1987). it is the scope of the rela-

tionship, not just the frequency or duration, that creates

“an appearance of evil.” Harris, supra, 13 M.J. at 292.

The case sub judice, contrary to the opinion expressed

by the Court of Military Appeals, is a hybrid situation

where both professional and personal interests were in-

volved. While the three members sought the assistance

of ATC in his professional capacity as an attorney, that

assistance was with regards to personal legal problems.

When the counsel who presents the bulk of the prosecu-

tion’s case and argues the matter to the jury represents

those same members in their own legal matters, the obvi-

ous perception is that appellant is facing a “stacked

deck.”

It can hardly be gainsaid that the prosecution’s response

would have been the complete opposite had the jury been

comprised of the defense counsel’s former clients. This

petitioner was tried, convicted and sentenced by the pros-

ecutor’s clients. The appearance that the members were

unfairly allied with the government cast “substantial

doubt as to the legality, fairness and impartiality” of the

7

court-martial. As the Harris court noted, “where circum-

stances are present which raise ‘an appearance of evil’ in

the eyes of disinterested observers, mere declarations of

impartiality, no matter how sincere, are not sufficient by

themselves to insure legal propriety.” United States v.

Harris, 13 M.J. at 292.

CONCLUSION

It is fundamentally unfair, and thus a violation of the

Due Process Clause of the Fifth Amendment, io subject

a service member to trial before a court-martial panel

in which 3/7 of the members had entered into attorney/

client relationships with the prosecutor. By denying the

timely defense challenge for cause against these members,

the military judge foreclosed any possibility that the con-

Sstitutional error could be avoided. For all the reasons

stated, the petition for a writ of certiorari should be

granted.

Respectfully submitted,

JAY LINDSEY COHEN

Colonel, United States Air Force

Chief Appellate Defense Division

Counsel of Record

ROBERT E. WATSON

Captain, United States Air Force

Appellate Defense Counsel

Counsel for the Petitioner

Air Force Legal Services Agency

Appellate Defense Division

172 Luke Avenue, Suite 208

Bolling AFB, DC 20332-5113

November 1994 (202) 767-1562

APPENDICES

la

APPENDIX A

UNITED STATES COURT

OF MILITARY APPEALS

No. 93-0654/AF

CMR No. 28588

UNITED STATES,

y, Appellee

MAURICE HAMILTON,

Airman Basic, U. S. Air Force,

Appellant

Argued March 17, 1994

Decided Sep. 23, 1994

For Appellant: Captain Robert E. Watson (argued) ;

Colonel Jay L. Cohen (on brief); Colonel Terry J.

Woodhouse, Lieutenant Colonel Frank J. Spinner, Major

George F. May.

For Appellee: Captain Jane L. Harless (argued);

Colonel Jeffery T. Infelise and Lieutenant Colonel Thomas

E. Schlegel (on brief); Colonel Richard L. Purdon and

Captain Carlos L. McDade.

Military Judge: Dennis L. Olson

Opinion of the Court

WISS, Judge:

Appellant was tried by a general court-martial com-

posed of officer members at Soesterberg Air Base, The

2a

Netherlands, in January and February 1990. Contrary to

his pleas, he was found guilty of five specifications of

writing bad checks totalling in excess of $9300, in viola-

tion of Article 123a, Uniform Code of Military Justice,

10 USC § 923a. He was sentenced to a dishonorable dis-

charge, confinement for 24 months, and total forfeitures.

On May 4, 1990, the convening authority approved the

sentence as adjudged. The Court of Military Review af-

firmed in an unpublished opinion.

This Court granted review on the following issues:

I

WHETHER THE MILITARY JUDGE ERRED TO

THE SUBSTANTIAL PREJUDICE OF APPEL-

LANT BY DENYING APPELLANTS CHAL-

LENGES FOR CAUSE AGAINST THREE

COURT MEMBERS WHO HAD ATTORNEY/

CLIENT RELATIONSHIPS WITH THE ASSIST-

ANT TRIAL COUNSEL.

I |

WHETHER THE MILITARY JUDGE ERRED |

TO THE SUBSTANTIAL PREJUDICE OF AP-

PELLANT BY DENYING TRIAL DEFENSE |

COUNSEL’S MOTION FOR MISTRIAL OR MO-

TION TO DISQUALIFY ASSISTANT TRIAL

COUNSEL.

We hold that the military judge did not abuse his dis-

cretion in denying defense challenges for cause against

three members who had been past legal assistance clients

of the assistant trial counsel. Similarly, we hold that the

judge did not abuse his discretion in denying defense

motions for a mistrial and disqualification of the assistant

trial counsel who had an innocuous social conversation

with the court president, as the judge granted a defense

challenge for cause and removed the officer from the

panel.

3a

During voir dire, three members voluntarily disclosed

that Captain Copley, the assistant trial counsel, had pro-

vided legal assistance to them. Lieutenant Colonel (Lt

Col) Smith stated that Captain Copley had provided him

income tax advice regarding his personal finances and

rental property. Captain Davis stated that assistant trial

counsel had provided him legal assistance twice—drafting

a will and assisting with a personal matter concerning

some stateside correspondence relating to Captain Davis

and his wife. Captain Walker apparently had the most

professional contact with Captain Copley. Captain Copley

had written a letter relating to Captain Walker’s state tax

problem. Additionally, Captain Copley had advised Cap-

tain Walker on command military justice matters, but

none of the cases had involved financial irresponsibility

or bad-check offenses.

Each member freely disclosed these matters in response

to initial questions by trial counsel and brief follow-up

questions by the defense. As each matter of legal assist-

ance had been complete, none of the members had a con-

tinuing attorney-client relationship with assistant trial

counsel. Additionally, each member asserted that any

contact with assistant trial counsel did not cause the

member to view him as more “believable” or to “look

more favorably” on the prosecution.

Trial defense counsel challenged these three members

for cause “because of legal assistance provided them by

Captain Copley. . . .” Appellant asserted these members’

entrusting legal assistance matters to Captain Copley

would cause them to give assistant trial counsel’s argu-

ment “more credence.”

Initially, the military judge denied the defense chal-

lenge for cause, finding no “grounds for disqualification

based on the mere isolated contact they’ve had with assist-

ant trial counsel.” However, at the request of trial coun-

sel, the military judge recalled Captain Davis. At this

point Captain Davis disclosed that when assistant trial

4a

counsel had been the base tax advisor, Captain Davis’

wife had “worked as one of the tax assistants,” and her

work had brought her into contact with Captain Copley. ‘

Additionally, Captain Davis disclosed that Captain Copley

had provided tax advise to him and his wife regarding

a tax audit during the summer of 1988. Captain Davis

again stated that there was no continuing attorney client-

relationship and that he viewed assistant trial counsel “as

a competent attorney.” He reaffirmed that he did not

view assistant trial counsel as more believable and would

not favor the prosecution.

At this point the military judge again found that Cap-

tain Davis was neither biased nor prejudiced i favor of

assistant trial counsel and denied the defense challenge.

The defense then exercised a peremptory challenge against

Captain Walker; however, the military judge refused to

grant the defense additional peremptory challenges. The

trial began but a later development required the judge

again to address another but unrelated issue regarding the

court-martial service of the original president of the court.

On January 31, 1990, shortly before the conclusion of

the defense case on the merits, the court recessed for the

evening. During the overnight recess, assistant trial coun-

sel went to the officer’s club where he met Captain

Marlow, a reserve officer attached to the base legal office.

The two lawyers conversed with the base commander,

LtCol Smith, about legal matters unrelated to appellant’s

case. At some point, LtCol Modica, the president of

appellant’s court-martial, entered the club and sat at the

bar near assistant trial counsel and Captain Marlow.

Eventually, Colonel Smith, Captain Marlow, and assist-

ant trial counsel engaged Colonel Modica in conversation

that lasted between one to one and one-half hours.

There is no need to detail the full scope of this con-

versation that eventually covered a variety of legal topics

relating to military justice—for example, the duties of a

op . ~ \. i:

5a

traveling circuit counsel, licensing procedures for lawyers,

and legal ethics, including defense counsel’s ethical obliga-

tion when representing a client that counsel knows is

guilty. At one point Captain Marlow mentioned the

movie, “And Justice for All,” wherein a lawyer “declare[d]

in court that his client was guilty,” as an example of a

lawyer’s breach of client confidences that could “lead to

disciplinary action against” the lawyer. Appellant’s court

martial was not mentioned except for the duty stations

of the lawyers assigned to the case and the fact that LtCol

Smith’s wife was serving as a court member. There was

no discussion about other courts-martial or other trials.

Although assistant trial counsel was a limited participant

in the conservation, after about an hour, he became “un-

comfortable” with the conversation discussing attorneys

and left the club.

On the morning of February 1, 1990, assistant trial

counsel brought these matters to the attention of trial

counsel. Trial counsel immediately invited the military

judge’s attention to “a potential matter involving the

president of the court and . . . some conversations he

may have had last night.” The military judge convened

a session under Article 39(a), UCMJ, 10 USC § 839(a),

to explore this matter and to develop the factual predicate

on the record. Assistant trial counsel and Captain Marlow

each testified about their conversation with LtCol Modica.

Finally, the military judge and both counsel conducted

voir dire of LtCol Modica on the matter.

At the conclusion of the testimony, defense counsel

presented three independent and consecutive motions.

First, the defense moved for a mistrial. The military

judge denied this motion, stating simply that there was

no showing of “a manifest injustice committed” in the

proceedings. Second, defense counsel moved to disqualify

the assistant trial counsel from further participation in

this case because of his conversation with LtCol Modica.

6a

Defense counsel asserted that the defense specifically de-

sired LtCol Modica to remain on the panel. The military

judge denied this motion, also stating there was no

“srounds for disqualification” of assistant trial counsel.

Finally, the defense challenged LtCol Modica for cause,

asserting the conversation that included legal ethics

tainted the court president and created an appearance of

impropriety. Arguing that the events did not present

grounds for a causal challenge, trial counsel, nonetheless,

requested the judge to grant the challenge “in an abun-

dance of caution... .” Relying heavily on the govern-

ment request, the military judge granted the challenge for

cause, notwithstanding his finding no improper communi-

cation between assistant trial counsel and the president

of the court. The case then proceeded to its conclusion.’

The Court of Military Review concluded that the mili-

tary judge did not abuse his discretion in denying three

and granting only one of the defense challenges for cause

and in denying the motion for a mistrial. Unpub. op. at

4. However, the court did “urge counsel to be vigilant

in their efforts to avoid social contact with court members

while a court-martial is in progress. . . .” Unpub. op. at

4 n*. We agree with the Court of Military Review’s

decision and its sound admonition to counsel concerning

social contact with court members.

DISCUSSION

When a litigant challenges a member for cause on the

general ground of “having the court-martial free from

substantial doubt as to legality, fairness, and impartial-

ity,” pursuant to RCM 912(f)(1)(N), Manual for

1 With Lieutenant Colonel Modica excused, Lieutenant Colonel

Smith, the spouse of the base commander, became the president

of the court. As the base commander was not involved in appel-

lant’s chain of command or in any way with this court-martial,

both counsel declined the opportunity to voir dire LtCol Smith, and

there was no objection to her serving as president.

Ta

Courts-Martial, United States, 1984, the test for member

disqualification is “whether the member’s personal bias

is such that it will not yield to the evidence presented

and the judge’s instructions.” United States v. Reynolds,

23 MJ 292, 294 (CMA 1987). The burden of maintain-

ing the challenge belongs to the challenging party. RCM

912(f)(3). Based in part on considerations of the con-

vening authority's power to select members and each

party's having only a single peremptory challenge, this

Court has consistently applied the rule that challenges for

cause should be granted liberally. United States v. Glenn,

25 MJ 278, 279 (CMA 1987). This Court has re-

peatedly stated a clear-abuse-of-discretion-standard when

reviewing a military judge’s denial of a challenge for

cause. E.g., United States v. White, 36 MJ 284, 287

(CMA 1993); United States v. Reynolds, supra. This

position is consistent with the federal practice. S. Chil-

dress and M. Davis, Feedral Standards of Review § 4.09

at 4-63 (1992). The Supreme Court has stated:

The findings of the trial court upon that issue [chal-

lenges to jury] ought not to be set aside by a review-

ing court, unless the error is apparent .... It must

be made clearly to appear that upon the evidence

the court ought to have found the juror had formed

such an opinion that he could not in law be deemed

impartial. The case must be one in which it is mani-

fest the law left nothing to the “conscience or dis-

cretion” of the court.

Reynolds v. United States, 98 U.S. 145, 156 (1879).

Therefore, the military judge has broad discretion in this

matter, and this Court “will not overturn the military

judge’s determination not to grant a challenge except for

a clear abuse of discretion in applying the liberal-grant

mandate.” 36 MJ at 287.

Applying this standard here, the military judge’s ruling

denying the challenges for cause was not an abuse of

8a

discretion. The three members disclosed that they knew

the assistant trial counsel because he had provided legal

assistance to them. This professional relationship does

not constitute a per se ground for challenge. See United

States v. Lake, 36 MJ 317 (CMA 1993); United States

v. Porter, 17 MJ 377 (CMA 1984). Moreover, each

member’s association was further attenuated because the

member did not have a personal relationship with assist-

ant trial counsel. All members presented positive assur-

ances that their contact did not cause them to look more

favorably on the prosecution. While these claims of

impartiality are not conclusive, they nonetheless can carry

weight. United States v. Nigro, 28 MJ 415, 418 (CMA

1989); United States v. Heriot, 21 MJ 11 (CMA 1985).

As appellant failed to carry his burden of maintaining

the challenge for cause, the military judge could properly

deny them. See States v. Johnson, 31 MJ 117 (CMA

1990).

Similarly, the military judge did not abuse his discre-

tion in denying the defense motion for a mistrial follow-

ing assistant trial counsel’s social conversation with the

president of the court. As we have stated:

‘Declaration of a mistrial is a drastic remedy, and

such relief will be granted only to prevent a manifest

injustice against the accused.” United States v.

Rushatz, 31 MJ 450, 456 (CMA 1990). It is ap-

propriate only “whenever circumstances arise that

cast substantial doubt upon the fairness or impartial-

ity of the trial.” United States v. Waldron, 15

USCMA 628, 631, 36 CMR 126, 129 (1966). The

military judge’s decision regarding motions for a mis-

trial will be measured for abuse of discretion.

United States v. Dancy, 38 MJ 1, 6 (CMA 1993). The

Supreme Court has stated:

In a criminal case, any private communication,

contact, or tampering directly or indirectly, with a

9a

juror during a trial about the matter pending before

the jury is, for obvious reasons, deemed presump-

tively prejudicial, if not made in pursuance of known

rules of the courts and the instructions and direc-

tions of the court made during the trial, with full

knowledge of the parties. The presumption is not

conclusive, but the burden rests heavily upon the

Government to establish, after notice to and hearing

of the defendant, that such contact with the juror

was harmless to the defendant.

Remmer v. United States, 347 U.S. 227, 229 (1954).

Our Court immediately and expressly applied this prin-

ciple and stated, “The presumption must be rebutted by

a ‘clear and positive showing’ that the improper com-

munication from a third person or witness did not and

could not operate in any way to influence the decision.”

United States v. Adamiak, 4 USCMA 412, 418, 15 CMR

412, 418 (1954). More recently, this Court reaffirmed

this standard. United States v. Elmore, 33 MJ 387,

393-94 (CMA 1991), cert. denied, 112 S.Ct. 1938

(1992). Ultimately, the judge determines whether the

Government has rebutted the presumption of prejudice.

United States v. Adamiak, supra.

Of course, prohibiting private communication or con-

tact with a member applies to legal counsel. Ethical

standards state that it is unprofessional conduct for a

counsel to communicate privately with a member con-

cerning a case prior to or during trial except as permitted

by law. See, e.g., Rule 3.5(b), ABA Model Rules of

Professional Conduct (1989);? Standard 3-5.4(a), ABA

Standards for Criminal Justice: The Prosecution Func-

tion at 3-78 (1986); Standard. 4-7.3(a), ABA Standards

for Criminal Justice: The Defense Function at 4-83

2 This Court has adopted the Model Rules for its bar. Rule 15(a),

Rules of Practice and Procedure, United States Court of Military

Appeals, 88 MJ LXXXII.

10a

(1986).° A variety of courts have condemned improper

communication by a counsel with a juror. See e.g.,

United States v. Jean, 25 F.3d 588 (7th Cir. 1994);

Garden Grove School District of Orange County v. Hend-

ler, 403 P.2d 721, 723-24 (Cal. 1965); Hutchins v. State,

140 Ind. 78, 39 NE 243 (1894).

Recognizing that assistant trial counsel’s conversation

with the senior member was not “about the matter pend-

ing before the” court and, therefore, did not violate the

letter of law, it was contrary to the spirit of both legal

and ethical prohibitions against improper contact with a

member.* This Court has repeatedly recognized unavoid-

ability of inadvertent contact with members in the normal

course of military life. See, e.g., United States v.

Adamiak and United States v. Elmore, both supra. Here,

however, it was not the fact of the contact but its dura-

tion for over 1 hour and content that included general

3 At the time of appellant’s trial Air Force regulations adopted

the ABA Standards for Crimina] Justice and the 1969 ABA Code

(as revised) of Professional Responsibility, including the discipli-

nary rules, subject to consistency with the Uniform Code of Mili-

tary Justice and the Manual for Courts-Martial, United States,

1984 and applicable directives. Paras. 1-6 and 8-8, Air Force Regu-

lation (AFR) 111-1, Military Justice Guide (Change 2, 12 July

1989). Air Force TJAG Policy Letter 26 of October 22, 1992,

contains the current Rules of Professional Responsibility and USAF

Standards for the Administration of Criminal Justice. Rule 3.5 of

these Air Force Rules, with terminology modified to be consistent

with Air Force practice, is the same as Rule 3.5 of the ABA Model

Rules of Professional Conduct (1989).

4The operative disciplinary rule, DR 7-108(B), of the ABA

Code of Professional Responsibility, states in part:

During the trial of a case:

(1) A lawyer connected therewith shall not communicate with

or cause another to communicate with any member of the jury.

This rule was made applicable to Air Force lawyers pursuant to

paragraph 8-8, AFR 111-1, Military Justice Guide (Change 2, 12

July 1989).

lla

legal and military justice matters that plainly make this

conversation improper.

We must therefore look to the record to determine if

the Government carried its burden to make “a ‘clear and

positive showing’ that the improper communication from

a third person or witness did not and could not operate

in any way to influence the decision.” United States v.

Adamiak and United States v. Elmore, both supra (

MJ at (/1)). We evaluate this issue in light of the en-

tire record to determine whether the error deprived the

defendant of a fair trial. See Smith v. Phillips, 455 U.S.

209 (1982); United States v. Jean, supra. In looking

to the entire record, we consider the nature and serious-

ness of the prosecutorial misconduct, any curative actions

taken by the court, and the weight of the evidence against

the accused. See United States v. Simmons, 38 MJ 376

(CMA 1993), and United States v. Jean, supra.

Even though improper, the contact was neither inten-

tional nor egregious. Moreover, the prompt and respon-

sible action by trial counsel and the military judge in-

sured a complete record of this matter. Cf. United States

v. Martinez, 40 MJ 82, 83 (CMA 1994) (reversible

error for military judge’s failure to make a record of the

improper ex parte communication with a third-person).

Following assistant trial counsel’s reporting the im-

proper contact and communication to trial counsel who

promptly presented this matter to the military judge, the

military judge permitted a full inquiry into the matter.

Importantly, this inquiry established that assistant trial

counsel’s improper but inadvertent contact did not preju-

dice appellant or taint the proceedings. No information

regarding appellant’s case was discussed. We do not view

identification of the duty station of the counsel in the

case as a significant matter. Also, the military judge took

remedial action to remove even an appearance of impro-

priety when the judge granted the defense challenge for

12a

cause and excused LtCol Modica. Viewing the record

of the communication and the remedial action taken by

the military judge, we are confident that the presumption

of prejudice is overcome by “a ‘clear and positive show-

ing’ that the improper communication” did not in any

way influence or affect the fairness of the trial. The mili-

tary judge did not abuse his discretion in denying appel-

lant’s motion for a mistrial.

We must briefly address the judge’s decision not to

disqualify assistant trial defense counsel. RCM 901

(d)(3) vests the military judge with authority to decide

whether a counsel may be disqualified. According to the

Discussion to that Rule: “Counsel may be disqualified

because of lack of niecesary qualifications, or because of

duties or actions which are inconsistent with the role of

counsel. If it appears that any counsel may be disquali-

fied, the military judge should conduct an inquiry or

hearing.” This provision is a continuance of the long-

standing rule that misconduct is a basis for disqualifica-

tion. See para. 44b, Manual for Courts-Martial, United

States, 1951. In strict compliance with RCM 901(d)(3),

the military judge created a record of this matter. For

reasons previously cited, most significantly the inadvertent

nature of this social contact and the absence of discussion

regarding appellant’s case, we conclude the judge did not

abuse his discretion in denying the defense motion to

disqualify assistant trial counsel.

The decision of the United States Air Force Court of

Military Review is affirmed.

Chief Judge SULLIVAN and Judges COX, CRAW-

FORD, and GIERKE concur.

13a

APPENDIX B

UNITED STATES AIR FORCE

COURT OF MILITARY REVIEW

ACM 28588

17 December 1992

UNITED STATES

We

Airman Basic MAURICE HAMILTON,

FR410-13-2311

United States Air Force

Sentence adjudged 2 February 1990 by GCM

convened at Soesterberg Air Base, the Nether-

lands. Military Judge: Dennis L. Olson.

Approved sentence: Dishonorable discharge,

confinement for 24 months, and forfeiture of all

pay and allowances.

Appellate Counsel for the Appellant: Colonel Richard

F. O’Hair and Captain Michael D. Burt.

Appellate Counsel for the United States: Colonel Joe

R. Lamport, Colonel Robert E. Giovagnoni, Lieutenant

Colonel Brenda J. Hollis, and Captain David G. Nix.

Before

DIXON, McLAUTHLIN, and HEIMBURG

Appellate Military J udges

14a

OPINION OF THE COURT

DIXON, Chief Judge

Contrary to his pleas, appellant was convicted of five

specifications of writing bad checks totaling in excess of

$9300. He was sentenced by a general court-martial with

members to a dishonorable discharge, confinement for 24

months, and total forfeitures. The convening authority

approved the sentence as adjudged.

Appellant assigns three errors on appeal. He contends

the evidence was factually insufficient to convict. He also

asserts the military judge erred by refusing to compel testi-

mony by the trial counsel, by denying three challenges

for cause, by denying the defense motion for mistrial, and

by denying a defense motion in limine. Finally, he con-

tends the sentence adjudged was too severe. Finding no

basis for relief on any of the assigned errors, we affirm.

Appellant is a 28-year-old, single airman basic with

over 7 years of active service. In 1988, he was convicted

by a special court-martial for disobeying an order to pro-

vide a urine sample. In addition, he received two non-

judicial punishment actions during 1988, one for derelic-

tion of duty by falling asleep on his job and the other for

failing to go.

I. FACTUAL SUFFICIENCY

Between 12 September 1988 and 11 October 1988,

while stationed at Soesterberg Air Base in the Netherlands,

appellant negotiated 12 checks to Merchants National

Bank drawn on the Adrian State Bank of Adrian, Michi-

gan, in the amount of $5800. Ali 12 checks, when pre-

sented for payment, were returned for insufficient funds.

During this same period, he also negotiated to Merchants

National Bank seven drafts drawn upon the Lenco Ed

Credit Union in the amount of $3500. All seven drafts,

when presented for payment, were returned because the

15a

account was closed. Seven times during this check writing

spree, appellant cashed a $500 dollar check drawn on the

Adrian State Bank and a $500 draft drawn on Lenco

Ed Credit Union on the same day. Thereafter on 11

November 1988, appellant negotiated a check to Army,

Air Force Exchange Service (AAFES) Europe in the

amount of $80 drawn on the Adrian State Bank of

Adrian, Michigan. Upon presentment, this check was also

returned due to a closed account. Appellant failed to

make any restitution within 5 days of being notified the

checks and drafts mentioned above were returned for

nonpayment.

Appellant contends the evidence is insufficient to con-

vict because he believed he had an arrangement with

Adrian State Bank and Lenco Ed Credit Union to extend

credit covering him if the accounts were overdrawn. The

assistant manager of Lenco Ed Credit Union testified he

had previously agreed to cover some of the appellant’s

outstanding checks, but had instructed him not to write

any more checks. He rejected any suggestion that the

Credit Union agreed to cover the checks in question.

Similarly, an assistant vice president of Adrian State Bank

testified they had previously honored some checks written

by appellant despite a negative balance when there had

been problems with funds transfers. She testified the bank

had only received money order deposits from appellant

totaling $1400, an amount far short of what was required

to cover the numerous checks presented for payment.

The bank was forced to close appellant’s account. A re-

view of the evidence belies any claim that appellant had

an ongoing credit arrangement to cover the checks written

or that he had made arrangements to ensure an adequate

amount was deposited to cover the outstanding checks.

We are convinced that the evidence presented at trial is

factually sufficient to sustain appellant’s conviction.

United States v. Turner, 25 M.J. 324 (C.M.A. 1987).

16a

II. TRIAL COUNSEL AS DEFENSE WITNESS

Appellant contends the military judge erred by denying

the defense request to have the assistant trial counsel tes-

tify concerning the extent of his participation in the in-

vestigation conducted by Air Force Office of Special

Investigation (AFOSI) to ascertain what money orders

appellant may have purchased from American Express.

Part of appellant’s defense was that American Express

money orders were sent to maintain his accounts. Assist-

ant trial counsel accompanied an AFOSI agent on a visit

to the American Express office and helped compile a list

of money orders sold during a 4-month period. Although

the investigation failed to discover the money orders ap-

pellant claimed to have purchased, all of the money orders

that office issued were not researched. The investigation

was terminated when American Express advised it would

cost around $2000 to search all their records. After ex-

cusing the members and listening to assistant trial coun-

sel’s testimony concerning his involvement, the military

judge was not persuaded that his testimony was crucial

to appellant’s defense. Moreover, the appellant failed to

show why the OSI agent could not provide the same in-

formation. Accordingly, the judge denied the defense re-

quest to have the assistant trial counsel called as a wit-

ness. The right to call witnesses is not unlimited. R.C.M.

703 gives each party the right to call only those witnesses

that are relevant and necessary. We find no prejudice to

appellant in the military judge’s refusal to compel assistant

trial counsel’s testimony. Mil. R. Evid. 103.

Ill. CHALLENGES FOR CAUSE

Following an extensive voir dire, appellant challenged

three of the court members based upon revelations that

all three had previous attorney-client relationships with

assistant trial counsel through the rendering of personal

legal assistance. One member had consulted assistant

trial counsel to obtain tax advice relative to his personal

17a

finances and rental property. Another obtained a will

from assistant trial counsel and consulted with him about

a letter his wife received from the states. The third con-

sulted assistant trial counsel about a state tax matter and

assistant trial counsel had written a letter for him. None

of these court members had a continuing attorney-client

relationship with assistant trial counsel and each stated

that the prior associations would not have any effect on

them in their role as court members. The military judge

denied each of the challenges for cause, finding that the

mere isolated contact each of them had with assistant

trial counsel was not grounds for disqualification. See

R.C.M. 912(f)(1). The military judge’s determination

is entitled to great deference and will not be reversed

absent an abuse of discretion. United States v. Jobson,

31 M.J. 117 (C.M.A. 1990); United States v. Nigro,

28 M.J. 415 (C.M.A. 1989); United States v. Reynolds,

23 M.J. 292 (C.M.A. 1987); United States v. Sloan, 30

M.J. 741 (A.F.C.M.R. 1990). We find no abuse of dis-

cretion.

IV. MOTION FOR MISTRIAL

Appellant moved for a mistrial following disclosure

that assistant trial counsel engaged in social conversations

with the president of the court-martial during an over-

night recess. After trial proceedings concluded on 31 Jan-

uary 1990, assistant trial counsel went to the officer’s club

with a reserve officer attached to the Soesterberg base

legal office. While there, the reserve officer struck up a

conversation with the president of the court lasting be-

tween 142 and 2 hours. The conversation initially dealt

with environmental subjects but eventually covered a vari-

ety of topics, including the duties of a travelling circuit

counsel, licensing procedures for lawyers and legal ethics.

They also discussed a defense counsel’s ethical obligations

when representing a client known to be guilty. Also pres-

ent during this occasion was the base commander, who

was the husband of another member of the court. The

court-martial was not mentioned during the discussions in

18a

any way. Although assistant trial counsel was present

during a major portion of the discussions, his participation

was limited.

The military judge denied the motion for a mistrial

as well as a motion to disqualify the assistant trial coun-

sel. He did, however, grant a defense motion to excuse

the president of the court. We agree with the military

judge that the facts, as presented, did not establish that

a manifest injustice was committed.* Accordingly, we find

the denial of the mistrial motion was not an abuse of dis-

cretion. United States v. Rushatz, 31 M.J. 450 (C.M.A.

1990); United States v. Rebuck, 16 MJ. 555

(A.F.C.M.R. 1983).

V. MOTION IN LIMINE

At trial, appellant made a motion in limine in an at-

tempt to exclude evidence of his prior conviction as well

as any reference to his confinement resulting from that

conviction. The government argued the evidence which

appellant sought to exclude was relevant on the issue of

whether there was an intent to defraud. They intended

to present evidence that appellant was in post-trial con-

finement at Mannheim when some of the checks were

returned and one of the checks in question was written

while appellant was TDY to Hahn to visit with his first

trial defense counsel. The military judge agreed these

* Nevertheless, we urge counsel to be vigilant in their efforts to

avoid social contact with court members while a court-martial is

in progress. Although purely social contact like that which occurred

in this case will normally not be grounds for mistrial, such contact

can create an appearance of impropriety. Not surprisingly, we most

often see this appearance problem arising at the Officers’ Club. We

recognize the important role that officers’ clubs play in the social

life of Air Force officers at many installations and understand

casual contacts at club activities are often unavoidable. However,

we believe it is the responsibility of counsel to avoid the type of

extended contact that occurred in this instance.

19a

facts provided a relevant factual framework for the court

members’ assessment of the charges. Accordingly, he

denied the motion in limine. However, he did prohibit

the government from disclosing the specific charges which

resulted in appellant’s prior conviction. In making his

ruling, the military judge applied the R.C.M. 403 bal-

ancing test and determined the probative value was not

outweighed by its prejudicial effect. We find he did not

abuse his discretion. Mil. R. Evid. 404(b), United States

v. Hicks, 24 M.J. 3 (C.M.A. 1987); United States v.

Thomas, 11 M. J. 388 (C.M.A. 1981).

VI. CONCLUSION

Having examined the record of trial, the assigned

errors, and the government’s reply thereto, we conclude

the findings and sentence are correct in law and fact and

no error prejudicial to the substantial rights of the appel-

lant was committed. Accordingly, the findings of guilty

and the sentence are

AFFIRMED.

Senior Judge MCLAUTHLIN concurs.

Judge HEIMBURG did not participate.

[SEAL]

OFFICIAL

/s/ Naomi D. Allen

NAomMI D. ALLEN

TSgt, USAF

Chief Court Administrator, AFCMR

W 8. S. GOVERNMENT PRinTineG Orricz; 1994 383767 24003