Petition for Writ of Certiorari — Montanino v. United States

FILED.

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No.

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In THE

Supreme Court of the United States

OCTOBER TERM, 1994

WILLIAM MONTANINO, JR.,

Specialist, United States Army,

7 Petitioner

THE UNITED STATES OF AMERICA,

Respondent

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Armed Forces

PETITION FOR A WRIT OF CERTIORARI

STEPHEN D. SMITH

Colonel, Judge Advocate

General’s Corps (JA)

United States Army

Defense Appellate Division

5611 Columbia Pike

Falls Church, VA 22041

(703) 756-0580

Counsel of Record

and

JOHN T. RUCKER

Lieutenant Colonel, JA

United States Army

MICHAEL A. EGAN

Major, JA

United States Army

Roy H. HEwITr

Major, JA

United States Army

BLAIR M. JACOBS

Captain, JA

United States Army

QUESTION PRESENTED FOR REVIEW

Whether the rulings of the judge and the courts of

appeals required petitioner, who previously had formed an

attorney-client relationship with appointed counsel, to

make decisions concerning fundamental and constitutional

rights at a critical stage of trial without consultation with

or assistance from counsel?

(i)

TABLE OF CONTENTS

Page

TABLE, OF AUTHORITING. ..0....2..20...002:000<.:c.ccseccsoeeses iv

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IIT sanitectasshctictnctcnimninrssssciteneitercinemssenceognivvesonerwin 2

CONSTITUTIONAL PROVISIONS, STATUTES, AND

REGULATIONS INVOLVED ...............2---2---:---escseeeeee=s 2

STATEMENT OF THE CASE ...............-.....:0-----cceeceeesesee 3

REASONS FOR GRANTING THE WRIT ....................- 6

I. THE PORTION OF THE PRE-TRIAL HEAR-

ING WHICH EXTENDED BEYOND SPE-

CIALIST MONTANINO’S ELECTION OF

COUNSEL VIOLATED HIS CONSTITU-

TIONAL RIGHTS TO THE ASSISTANCE OF

COUNSEL AT CRITICAL STAGES OF PRO-

CII ecvecccctccccesecctsenssacositnsccsccccevsecrsesavsnsenscoseecs 7

Il. THE RULE ESTABLISHED BY THE COURT

OF MILITARY APPEALS DECISION IN THIS

CASE DEPRIVES DEFENDANTS OF THEIR

SIXTH AMENDMENT RIGHT TO EFFEC-

TIVE ASSISTANCE OF COUNSEL ................- 9

os scuntiiliaepiilinetenntpeneinnenaente 12

APPENDIX A

Opinion of the U.S. Court of Military Appeals—

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APPENDIX B

Opinion of the U.S. Army Court of Military Re-

a a cdmeneeensicoepebas 10a

APPENDIX C

Manual for Courts-Martial, United States, 1984,

Rule for Courts-Martial 707 -...............-22.2-..--.-----<.-- 15a

(iii)

iv

TABLE OF AUTHORITIES

Cases: Page

Brooks v. Tennessee, 406 U.S. 605 (1972) ............. 9

Coleman v. Alabama, 399 U.S. 1 (1970) ................. 8

Ferguson v. Georgia, 365 U.S. 570 (1961) .............. 9

Geders v. United States, 425 U.S. 80 (1976)........ passim

Hamilton v. Alabama, 368 U.S. 52 (1961) ............. 8

Herring v. New York, 422 U.S. 853 (1975) ........... 9

Johnson v. Zerbst, 304 U.S. 458 (19388) -................ 12

Powell v. Alabama, 287 U.S. 45 (1982) ................... 11

Strickland v. Washington, 466 U.S. 668 (1984).... 10, 11

United States v. Allen, 542 F.2d 680 (4th Cir.

1976), cert. denied, 430 U.S. 908 (1977) _......... 11

United States v. Conway, 632 F.2d 641 (5th Cir.

NAAM MINS Leptin Ee ae 11

United States v. Cronic, 466 U.S. 648 (1984)........ 7

United States v. Wade, 388 U.S. 218 (1967) ......... passim

L nited States Constitution and Federal Statutes:

United States Constitution, Amendment VI ..............

United States Constitution, Amendment XIV ...........

Uniform Code of Military Justice, 10 U.S.C. § 801

et seq.:

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Other Authorities:

Manual for Courts-Martial, United States, 1984,

Rule for Courts-Martial 707

. Cee.

In THE

Supreme Court of the Wuited States

OCTOBER TERM, 1994

No.

WILLIAM MONTANINO, JR.,

Specialist, United States Army,

: Petitioner

THE UNITED STATES OF AMERICA,

Respondent

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Armed Forces

PETITION FOR A WRIT OF CERTIORARI

The petitioner, William Montanino, Jr., respectfully

prays that a writ of certiorari issue to review the decision

of the United States Court of Military Appeals [now the

United States Court of Appeals for the Armed Forces]

entered in this proceeding.

OPINIONS BELOW

The opinion of the United States Court of Military

Appeals is reported at 40 M.J. 364 (C.M.A. 1994)

(Appendix A). The opinion of the United States Army

Court of Military Review is reported at 35 M.J. 565

(A.C.M.R. 1992) (Appendix B).

2

JURISDICTION

The judgment of the Court of Military Appeals was

entered on September 19, 1994, affirming petitioner’s con-

viction, dated April 1, 1991. The jurisdiction of this

Court is invoked under 28 U.S.C. § 1259(3) (Supp.

1992).

CONSTITUTIONAL PROVISIONS, STATUTES,

AND REGULATIONS INVOLVED

The Constitution of the United States provides in

pertinent part:

Amendment VI. In all criminal prosecutions, the

accused shall enjoy the right to a speedy and public

trial, by an impartial jury of the State or district

wherea the crime shall have been committed, which

district shall have been previously ascertained by

law; and to be informed of the nature and cause of

the accusation; to be confronted with the witnesses

against him; to have compulsory process for obtain-

ing witnesses in his favor; and to have the Assistance

of Counsel for his defence.

Amendment XIV, Section 1. All persons born or

naturalized in the United States, and subject to the

jurisdiction thereof, are citizens of the United States

and of the State wherein they reside. No State shall

make or enforce any law which shall abridge the

privileges or immunities of citizens of the United

States; nor shall any State deprive any person of

life, liberty, or property, without due process of law,

nor deny to any person within its jurisdiction the

equal protection of the laws.

The following provision of the Uniform Code of Mili-

tary Justice is involved in this case:

Article 39(a), UCMJ, 10 U.S.C. § 839(a). At any

time after the service of charges which have been

referred for trial to a court-martial composed of a

3

military judge and members, the military judge may,

subject to section 835 of this title (article 35), call

the court into session without the presence of the

members for the purpose of—

(1) hearing and determining motions raising de-

fenses or objections which are capable of determina-

tion without trial of the issues raised by a plea of

not guilty;

(2) hearing and ruling upon any matter which may

be ruled upon by the military judge under this chap-

ter, whether or not the matter is appropriate for later

consideration or decision by the members of the

court;

(3) if permitted by regulations of the Secretary con-

cerned, holding the arraignment and receiving the

pleas of the accused; and

(4) performing any other procedural function which

may be performed by the military judge under this

chapter or under rules prescribed pursuant to sec-

tion 836 of this title (article 36) and which does not

require the presence of the members of the court.

These proceedings shall be conducted in the presence

of the accused, the defense counsel, and the trial

counsel and shall be made part of the record. . ..

Manual for Courts-Martial, United States, 1984, Rule

for Courts-Martial 707, is set out in Appendix C.

STATEMENT OF THE CASE

On September 6, 1990, court-martial charges were pre-

ferred against Specialist Montanino for being absent with-

out leave and for committing larceny. Court-martial juris-

diction was invoked pursuant to Article 2, Uniform Code

of Military Justice [hereinafter UCMJ], 10 U.S.C. § 802.

Captain Seitsinger, a qualified and certified defense coun-

sel, was detailed by Captain Gregory Coe, the senior

defense counsel at Fort Drum, New York, to represent

4

petitioner at court-martial. Captain Seitsinger formed an

attorney-client relationship with Specialist Montanino; he

held numerous conferences with Specialist Montanino and

represented him at the preliminary hearing conducted on

September 26, 1990, pursuant to Article 32, UCMJ, 10

U.S.C. § 832.

On November 12, 1990, Captain Seitsinger was or-

dered to deploy to the Sinai, Egypt, as part of a Multi-

national Forces and Observers Task Force. (R. at 3.)

The charges against Specialist Montanino were referred to

trial by general court-martial on December 4, 1990.

On December 17, 1990, Specialist Montanino appeared

in court for a pre-trial hearing conducted under the aus-

pices of Article 39(a), UCMJ, 10 U.S.C. § 839(a).

Although Specialist Montanino had a statutory right to

counsel at the hearing pursuant to Article 39(a), UCMJ,

his appointed counsel was not present. Captain Coe was

present, but made it clear that he did not represent Spe-

cialist Montanino. (R. at 3.) After the judge advised

petitioner of his rights to counsel, Specialist Montanino

stated that he wanted Captain Seitsinger and nobody else

to serve as his defense counsel. (R. at 6.) Captain Coe

informed the judge that Captain Seitsinger was due back

from the Sinai during the first week of March, 1991. At

this pre-trial hearing at which petitioner had no counsel,

Specialist Montanino expressly stated in response to ques-

tioning by the judge that he was willing to wait until

March for Captain Seitsinger to return and for trial to

begin.

Captain Seitsinger returned from the Sinai, and peti-

tioner was arraigned on March 7, 1991. Following

arraignment, the defense moved to have the charges dis-

missed for lack of speedy trial required by Manual for

Courts-Martial, United States, 1984, Rule for Courts-

Martial [hereinafter R.C.M.] 707. A new judge, who had

not presided over the earlier pre-trial session, denied the

NM

5

motion, concluding that the delay from December 17,

1990, until March 7, 1991, was occasioned by the accused

because of his willingness to wait until Captain Seitsinger

returned from the Sinai.

In the military justice system, R.C.M. 707 requires

that, for speedy trial purposes, an accused be brought to

trial within 120 days after notice to the accused of pre-

ferral of charges. Rule for Courts-Martial 707(c), how-

ever, provides for certain periods to be excluded when

determining whether the 120 day period has expired.

Accordingly, at trial and on appeal, the key issue in this

case became whether the time period from December 17,

1990, through March 7, 1991, was excludable time. If

the period was attributable to the defense, it could be

excluded under R.C.M. 707(c) and the petitioner’s speedy

trial rights would not have been violated. However, if

this period of time was not excludable, the charges would

have to be dismissed because 182 days would have passed

from preferral of charges, September 6, 1990, until ar-

raignment, March 7, 1991.

On appeal, both the Army Court of Military Review

and the United States Court of Military Appeals agreed

with the military judge and ruled that the speedy trial

rights of petitioner were not violated because Specialist

Montanino affirmatively consented to the delay. The

Court of Military Appeals ruled that Specialist Montanino

could have protected his speedy trial rights at the pre-

trial hearing where he was unrepresented by counsel by

requesting “that his trial proceed in a timely fashion and

that he be represented by Captain Seitsinger”. United

States v. Montanino, 40 M.J. 364, 366 (C.M.A. 1994)

(emphasis added) (Appendix A). There is no mention

in the opinion or in the record in this case, however, of

how petitioner could have been aware that he could have

asserted both rights.

6

REASONS FOR GRANTING THE WRIT

The Court of Military Appeals has decided an im-

portant speedy trial issue at the expense of petitioner’s

constitutional right to counsel. The Court of Military

Appeals’ treatment of this constitutional issue conflicts with

prior judgments of this Court, with judgments of the

Courts of Appeals in almost every other circuit, and with

federal statute. The troubling aspect of the decision is

that it forces an accused, unrepresented by counsel at a

critical stage of trial, to make decisions which, in effect,

waive important rights. The Court of Military Appeals

has ruled that Specialist Montanino, a non-lawyer, could

protect his rights in this case by requesting that his trial

proceed in a timely fashion, despite the fact that Specialist

Montanino was never informed of this right and had no

access to counsel when making his decision. Furthermore,

the decision allows an uninformed accused to waive funda-

mental rights without consultation with counsel and with-

out waiving the right to counsel.

Two aspects of this decision directly contradict prior

judgments of this Court. First, Specialist Montanino was

required to appear without the assistance of counsel at

the pre-trial hearing. Such an appearance violates this

Court’s guidance that, under the Sixth Amendment, de-

fendants in criminal proceedings are entitled to the assist-

ance of counsel at all critical stages of the proceedings

against them, unless the right is waived. United States v.

Wade, 388 U.S. 218, 226 (1967). In this case, Specialist

Montanino appeared at the proceeding and never waived

his right to counsel.

Second, the opinion of the Court of Military Appeals

denied petitioner the “guiding hand of counsel” at a criti-

cal stage of the proceedings against him. Geders v. United

States, 425 U.S. 80 (1976). The Court of Military Ap-

peals foists upon Specialist Montanino the burden of

requesting that his trial proceed in a timely fashion, and

7

expects him, an unknowing accused, to make the request

at a hearing where he has no counsel.

Both aspects of the lower court’s decision are incon-

sistent with the Sixth Amendment of the Constitution.

In the mind of unrepresented Specialist Montanino, one

right (speedy trial) had to be surrendered in order to

procure the right to assistance of counsel. The option

posited by the Court of Military Appeals, requesting that

both rights be preserved, was simply unavailable to Spe-

cialist Montanino: he was ill-equipped to deal with the

complexities of the courtroom without his lawyer’s guid-

ance.

The Sixth Amendment guarantees each member of soci-

ety the guidance of counsel at all critical stages of a trial.

Accordingly, this Court should issue its writ and review

the holding of the Court of Military Appeals to review

not only the grave injustice done to Specialist Montanino,

but also to explain the major doctrinal lines that will

clarify prior holdings and affect future development.

I. THE PORTION OF THE PRE-TRIAL HEARING

WHICH EXTENDED BEYOND SPECIALIST MON-

TANINO’S ELECTION OF COUNSEL VIOLATED

HIS CONSTITUTIONAL RIGHTS TO THE ASSIST-

ANCE OF COUNSEL AT CRITICAL STAGES OF

PROCEEDINGS.

Under the Sixth Amendment, defendants in criminal

proceedings are entitled to the assistance of counsel at all

critical stages of the proceedings against them. United

States v. Cronic, 466 U.S. 648, 659 (1984); United

States v. Wade, 388 U.S. 218, 226 (1967). In Wade,

the Court explained that counsel’s presence was necessary

at any stage of the proceedings “where counsel’s absence

might derogate from the accused’s right to a fair trial.”

Wade, 388 U.S. at 226. Applying this test, the Court has

held that “critical stages” include pretrial hearings “where

8

certain rights may be sacrificed or lost.” Coleman v.

Alabama, 399 U.S. 1, 7 (1970) (citing Hamilton v.

Alabama, 368 U.S. 52, 54 (1961)).

The key analysis in determining whether a hearing is a

critical stage is “whether potential substantial prejudice to

defendant’s rights inheres in the . . . confrontation and

the ability of counsel to help avoid that prejudice.” Cole-

man, 399 U.S. at 9 (citing Wade, 388 U.S. at 227) (em-

phasis added). Exposing the facts of the present case to

this analysis reveals that the pretrial Article 39(a) session

was a critical stage in the proceedings.

Specialist Montanino concedes that the original intent

of the hearing, to address his right to counsel, was not

critical under the Coleman-Wade analysis. Once Special-

ist Montanino elected representation by Captain Seitsinger,

however, the hearing should have been terminated. Effec-

tively compelling Specialist Montanino to request a de-

fense delay and waive his speedy trial rights elevated the

hearing to a critical stage where the presence of counsel

was mandated. The unknowing waiver of petitioner’s

speedy trial rights indisputably would have been avoided

by the presence and advice of an attorney. Thus, because

a right was irretrievably lost by Specialist Montanino’s

responses at this hearing, it was a critical stage of trial

which required the presence of counsel. Hamilton, 368

USS. at 54.

Further, Article 39(a), 10 U.S.C. § 839(a), provides

that the presence of defense counsel is required, in order

for the hearing to be held. Therefore, once Specialist

Montanino elected to be represented by his appointed

counsel, Captain Seitsinger, that pretrial hearing should

have been terminated. To force Specialist Montanino to

continue in the hearing unrepresented, particularly given

the fact that Captain Seitsinger’s absence was caused by

order of the government, is contrary to statute and can-

not be condoned.

9

This Court has steadfastly found constitutional error

without any showing of prejudice where counsel was either

absent or completely prohibited from assisting an accused

during a critical stage of trial. See, e.g., Geders v. United

States, 425 U.S. 80 (1976); Herring v. New York, 422

U.S. 853 (1975); Brooks v. Tennessee, 406 U.S. 605

(1972); Ferguson v. Georgia, 365 U.S. 570 (1961).

Where, as here, important rights are forfeited by an un-

knowing defendant absent the assistance of knowledgeable

counsel, the result is the denial of a defendant’s right to

due process and right to assistance of counsel.

Specialist Montanino never waived his right to counsel

at this hearing; in fact, he invoked the right by informing

the judge that he already had an attorney-client relation-

ship with Captain Seitsinger and desired his representa-

tion. Once the request for counsel was made known, the

judge violated Specialist Montanino’s Sixth Amendment

and statutory rights by proceeding in the absence of coun-

sel. The judge had two choices, neither of which would

have violated petitioner’s constitutional rights: the judge

could have delayed any further proceedings immediately

after ascertaining Specialist Montanino desired counsel

who was absent, or the judge could have directed detail

of another counsel. Rather than choosing one of these

options, the judge continued into a critical stage of the

proceedings and secured what has heretofore been held

to be a waiver of petitioner’s right to a speedy trial under

the Manual for Courts-Martial.

Il. THE RULE ESTABLISHED BY THE COURT OF

MILITARY APPEALS DECISION IN THIS CASE

DEPRIVES DEFENDANTS OF THEIR SIXTH

AMENDMENT RIGHT TO EFFECTIVE ASSIST-

ANCE OF COUNSEL.

Under the logic of the Court of Military Appeals’ deci-

sion, an accused at a judicial hearing may be forced to

make decisions concerning fundamental rights without the

10

assistance of appointed counsel. This logic, however, is

contrary to the reasoning behind this Court’s opinion in

Geders v. United States, 425 U.S. 80 (1976), and Strick-

land v. Washington, 466 U.S. 668 (1984). In Geders, the

defense counsel and the defendant were given instructions

to not discuss “anything” about the case with one another

during an over-night recess. Jd. at 82-83. The Fifth Cir-

cuit affirmed. This Court unanimously reversed, holding

that the trial judge’s ruling deprived defendant of the

“guiding hand of counsel” at a critical point in the pro-

ceeding. Id. at 89. Because of the overriding importance

of the assistance of counsel to a criminal defendant, the

Court found the judge’s order could not be upheld. 7d.

at 91.

In Strickland, prior to addressing the proper standards

for measuring the quality of an attorney’s work, the Court

addressed governmental interference with the right to

counsel. The Court stated that the “[g]lovernment violates

the right to effective assistance when it interferes in cer-

tain ways with the ability of counsel to make decisions

about how to conduct the defense.” Strickland, 466 U.S.

at 686 (citations omitted). Applying this statement to the

facts in this case, the government violated Specialist

Montanino’s right to the effective assistance of counsel by

completely denying his lawyer the opportunity to conduct

his defense, and instead requiring petitioner to appear in

a judicial forum and make fundamental decisions about

his defense without the advice and assistance of counsel.

Particularly relevant to this issue is the reasoning be-

hind the Court’s decision in Geders. In discussing the

importance of the assistance of counsel, the Court noted:

Our cases recognize that the role of counsel is im-

portant precisely because ordinarily a defendant is

ill-equipped to understand and deal with the trial

process without a lawyer’s guidance. The right to

be heard would be, in many cases, of little avail if it

11

did not comprehend the right to be heard by counsel.

... [A defendant] is unfamiliar with the rules of evi-

dence. . . . He lacks both the skill and knowledge

adequately to prepare his defense, even though he

[may] have a perfect one. He requires the guiding

hand of counsel at every step in the proceedings

against him.

Geders, 425 U.S. at 88-89 (citing Powell v. Alabama,

287 U.S. 45, 68 (1932)). Consequently, the denial of

access to counsel violated the Sixth Amendment’s guar-

antee of effective assistance of counsel.

The message of Geders and subsequent cases which

have liberally construed it is clear: a trial court may not

restrict the function of counsel by placing a blanket pro-

hibition, no matter how brief, on attorney-client com-

munications during recesses at trial. For example, courts

have extended the holding to strike down orders restrict-

ing all discussion between attorney and client during a

one hour lunch recess, United States v. Conway, 632 F.2d

641 (Sth Cir. 1980), and during brief, routine recesses

during trial. United States v. Allen, 542 F.2d 630 (4th

Cir. 1976), cert. denied, 430 U.S. 908 (1977).

This line of analysis is conspicuously absent from the

Court of Military Appeals opinion in the present case.

Instead, the decision required petitioner to forego assist-

ance of counsel by forcing him to make an immediate

decision concerning his right to a speedy trial without

“the guiding hand of counsel.” Although this was not a

direct prohibition on communication as in Geders, the

interference with Sixth Amendment rights was equipotent.

Geders and Strickland are grounded in the important

role of counsel to a criminal defendant. The decision of

the Court of Military Appeals, that the ill-equipped peti-

tioner made a knowing and voluntary choice to waive his

rights to speedy trial, completely ignores the constitutional

legacy of Geders.

eS"

12

A defendant in a criminal case must often consult with

his attorney before making fundamental decisions at trial.

Geders, 425 U.S. at 88. In the present case, the prohibi-

tion on consultation was the requirement that Specialist

Montanino make a decision on his right to a timely trial

without consultation with his attorney who was in the

Sinai, Egypt. Specialist Montanino answered the judge’s

questions at the pre-trial hearing and thereby waived

an important right that could have required dismissal of

the charges against him. The denial of consultation be-

fore making this decision was a prohibition on attorney-

client contact during an important judicial hearing; as

such, the prohibition denied Specialist Montanino his

constitutionally assured effective assistance of counsel.

Accordingly, the Court of Military Appeals decision in

this case is inconsistent with the Sixth Amendment to the

Constitution.

CONCLUSION

The decision below, while novel in its reasoning, pre-

sents a substantial departure from clearly established law

construing a defendant’s rights under the Sixth Amend-

ment. The effect of the Court of Military Appeals’ deci-

sion is insidious: by forcing petitioner to participate and

make fundamental decisions in a critical stage of the pro-

ceedings against him, the Court of Military Appeals has

abrogated Specialist Montanino’s right to the effective as-

sistance of counsel. Moreover, the decision essentially

requires an accused to proceed in a pro se status without

requiring a waiver of assistance of counsel.

The decision and its ramifications clearly violate this

Court’s holdings in Johnson v. Zerbst, 304 U.S. 458

(1938) (defendant must provide “intelligent and com-

petent waiver” of right to counsel before being permitted

to proceed pro se), United States v. Wade and Geders v.

United States. The fundamental nature of the error in

this case strikes at the very heart of our adversary system.

13

This Petition for Writ of Certiorari should, therefore, be

granted.

Respectfully submitted,

STEPHEN D. SMITH

Colonel, Judge Advocate

General’s Corps (JA)

United States Army

Defense Appellate Division

5611 Columbia Pike

Falls Church, VA 22041

(703) 756-0580

Counsel of Record

and

JOHN T. RUCKER

Lieutenant Colonel, JA

United States Army

MICHAEL A. EGAN

Major, JA

United States Army

Roy H. HEwITtT

Major, JA

United States Army

BLAIR M. JACOBS

Captain, JA

United States Army

December 1994

APPENDICES

la

APPENDIX A

U.S. COURT OF MILITARY APPEALS

No. 93-0941

CMR No. 9100802

UNITED STATES,

Appellee,

Vv.

WILLIAM MONTANINO, JR.,

Specialist, U.S. Army,

Appellant.

Argued May 5, 1994

Decided Sept. 19, 1994

Opinion of the Court

COX, Judge:

A military judge sitting alone as a general court-martial

convicted appellant, pursuant to his pleas, of absence

without leave and wrongful appropriation of government

funds; and, contrary to his pleas, of larceny (two specifi-

cations), in violation of Articles 86 and 121, Uniform

Code of Military Justice, 10 USC §§ 886 and 921, re-

spectively. The approved sentence provides for a bad-

conduct discharge, confinement for 11 months, and re-

duction to the lowest enlisted grade. The Court of Mili-

tary Review affirmed the findings and sentence. 35 MJ

565 (1992). We granted review of the following issue:

2a

WHETHER THE MILITARY. JUDGE ERRED BY

NOT DISMISSING THE CASE AGAINST [AP-

PELLANT] BECAUSE HE WAS NOT BROUGHT |

TO TRIAL WITHIN 120 DAYS. |

On September 6, 1990, charges were preferred against |

appellant. Captain C, the senior defense counsel at Fort

Drum, New York, detailed Captain S to be appellant’s

defense counsel. After conducting “numerous confer-

ences” with appellant and representing him through the

investigation under Article 32, UCMJ, 10 USC § 832,

Captain S was assigned to temporary duty with the Multi-

national Force and Observers (MFO) in the Sinai Desert.

Captain S deployed to that assignment on November 12,

1990.

On December 17, 1990, a session under Article 39(a),

UCMJ, 10 USC § 839(a), was conducted for the pur-

pose of determining appellant’s choice of counsel. Cap-

tain C represented appellant at the hearing, but expressly

stated that he had not detailed himself as appellant’s de-

fense counsel. When questioned by the military judge as

to whom he wished to represent him at trial, appellant

responded, “Captain [S].” Captain C then informed the

court that Captain S was not scheduled to return from

the Sinai until March 1991. Upon questioning by the

military judge, appellant expressly stated he was willing

“to wait until March” to begin trial. The Government

argued against the delay, however, maintaining that it

was prepared to proceed to trial at that time. Accordingly,

the Government requested that the military judge declare

Captain S unavailable in accordance with Army Regula-

tion (AR) 27-10, and that substitute counsel be appointed

to represent appellant. The military judge denied the

Government’s request, stating:

[T]he U.S. government sent him there, and . . . can

bring him back. [UJntil the U.S. government makes

some effort to get him back and fails in that effort,

eee

3a

I’m not prepared to say that . . . [Captain S is] un-

available and that substitute counsel needs to be

appointed. . . . I’m not prepared to say that he’s

unavailable because I’m not sure anyone here has

told me that if requested, that he wouldn’t be re-

turned for whatever it takes to try the case... .

Although he saw no basis to appoint separate counsel,

the military judge concluded that the delay until March

was occasioned by the defense because of appellant’s will-

ingness to postpone the trial until Captain S returned

from the Sinai.

Captain S returned from the Sinai in late February

1991, and the trial resumed in early March, when appel-

lant was arraigned but did not enter pleas. At defense

request further proceedings were delayed until April 1,

1991, before a different military judge. At the April ses-

sion, Captain S moved to have the charges dismissed for

lack of speedy trial, pursuant to RCM 707, Manual for

Courts-Martial, United States, 1984. In denying appel-

lant’s motion, the new military judge stated:

It’s clear to me, abundantly, beyond reasonable

doubt that this was a defense delay in this case. The

initial assignment of the defense counsel to the Mon-

tanino case occurred before, according to the testi-

mony of Captain [C], occurred well before there

was any hint of a defense counsel having been—or

having had to go with the Force to the Sinai. The

selection, therefore, of Captain [S] to go to the Sinai,

knowing full well that he had undertaken active re-

sponsibility for—or even probable responsibility for

a potential GCM case, is a burden that must rest

with the Trial Defense Service.

The Trial Defense Service cannot abdicate its re-

sponsibility to its client simply by saying that they’ve

been assigned to Task Forces in the Sinai or sent

4a

overseas. And, in this case, the defense counsel

remained actively assigned to the U.S. Army Trial

Defense Service throughout that entire period, even

though he might have been attached to Task Force

2/14. And, I find it a very hard argument to believe,

and I do not accept it, that the Trial Defense Service

can simply say, “It’s a government responsibility to

bring this defense counsel back,” not taking any—

and then sitting back and reaping the benefits of

any possible delay in courts-martial cases.

* * *

Moreover, the accused on at least two separate

occasions, indicated that he wished to remain repre-

sented by Captain [S] and Captain [S] alone. And,

based upon those general findings, this delay is de-

fense delay.

Additionally, the military judge determined the delay

was excludable under RCM 707(c)(9) (Change 3), as

“delay for good cause” based on “unusual operational re-

quirements and military exigencies.”

The Gevernment bears the burden of bringing an ac-

cused to trial in a timely manner. United States v. Cook,

27 MJ 212, 215 (CMA 1988); RCM 707. Under the

version of RCM 707(a) in effect at the time of appellant’s

trial (Change 3), an accused had to be brought to trial

within 120 days of notice to the accused of preferral of

charges. This mandate is not without exception however.

The 120-day statutory period is tolled for “[a]ny period

of delay resulting from a delay in a proceeding or a con-

tinuance in the court-martial granted at the request or

with the consent of the defense.” RCM 707(c)(3). Fail-

ure by the Government to comply with the requirements

of RCM 707 “result{s] in dismissal of the affected

charges upon timely motion by the accused.” RCM

707 (e).

5a

The Court of Military Review found that the Govern-

ment did not present “sufficient facts” to enable that court

to determine “if the deployment” of Captain S “to the

Sinai qualified as an ‘unusual operational requirement’ or

‘military exigency.’” 35 MJ at 567. We have no quarrel

with that determination. Although the record suggests

that Captain S’s presence in the Sinai might have been

of an exigent nature, this was not conclusively estab-

lished. It is unclear whether Captain S could have re-

turned from the Sinai at an earlier date, had the request

been made to the proper authorities.

In any event, appellant explicitly agreed to postpone

his trial until March 1991, so he could retain Captain S

as his defense counsel. Despite this express waiver of his

regulatory, speedy-trial rights, appellant contends that the

3-month delay should not be slated as a defense delay

because he essentially “was given a Hobson’s choice:

either he could exercise his right to be represented by

detailed counsel with whom he had formed an attorney-

client relationship or he could assert his right to a speedy

trial, but not both.” Final Brief at 10-11.

In our view, appellant’s options were not so limited.

He could have requested that his trial proceed in a timely

fashion and that he be represented by Captain S. If this

had been the case, it would have been incumbent on the

Government to either effect Captain S’s timely return from

the Sinai or prove he was not “reasonably available” in

accordance with Article 38(b)(3)(B), UCMJ, 10 USC

§ 838(b)(3)(B).’ Because appellant voluntarily agreed

to the delay, however, the Government was not put to this

task. Accordingly, we hold the military judge was correct

in ruling the postponement was a defense delay and that

1 See also United States v. Hanson, 24 MJ 377, 379 (CMA 1987)

(“Once counsel has been detailed and an attorney-client relation-

ship established, that relationship may only be severed for good

cause shown.’’).

6a

appellant was not entitled to a dismissal of the charges

against him.*

The decision of the United States Army Court of Mili-

tary Review is affirmed.

2 We are concerned by the fact that appellant was not repre-

sented formally by counsel at the December 17 session under

Article 39(a). Uniform Code of Military Justice, 10 USC § 839(a).

We see no real reason why another member of the Trial Defense

Service could not actually participate in the decision whether to

go to trial. These are administrative matters which can be readily

handled by any competent lawyer.

Ta

Chief Judge SULLIVAN and Judges CRAWFORD

and GIERKE concur.

WISS, Judge (dissenting):

The majority does fine, in my view, until the penulti-

mate paragraph in which it holds to the ultimately de-

structive fire the feet of a lay defendant, unrepresented

by defense counsel, who had no earthly idea that he could

insist on both a speedy trial and representation by the de-

fense counsel with whom he had an existing attorney-client

relationship, Captain Seitsinger. In fact, I do not read

in the record at all any mention to appellant at the critical

session under Article 39(a), Uniform Code of Military

Justice, 10 USC § 839(a), on December 17, 1990, that

he had any sort of speedy-trial right—much less the par-

ticulars of that right and that a majority of this Court

years down the road might deem that he effectively had

waived it by saying he was willing to wait for Captain

Seitsinger to return to represent him. I have no idea how

the majority finds a knowing and intelligent waiver from

these facts.

Anyway, I am not at all sure that appellant lawfully

can be held to any purported “request” at that session,

given the absence from that session of his defense counsel

and the ambiguous-at-best status of Captain Coe. Article

39(a) specifically provides that proceedings under its pro-

visions “shall be conducted in the presence of the accused,

the defense counsel, and the trial counsel. . . .” Further,

RCM 803, Manual for Courts-Martial, United States,

1984, stipulates that sessions under Article 39(a) “shall

be conducted in the presence of the accused, defense

counsel, and trial counsel in accordance with RCM 804

and 805... .”

Finally, RCM 805(c) does permit a court-martial ses-

sion to proceed “[a]s long as at least one qualified counsel

for each party is present. ... An assistant counsel who

8a

lacks the qualifications necessary to serve as counsel for a

party may not act at a session in the absence of such

qualified counsel.” The Discussion following RCM 805

States:

Ordinarily, no court-martial proceeding should

take place if any defense or assistant defense counsel

is absent unless the accused expressly consents to the

absence. The military judge may, however, proceed

in the absence of one or more defense counsel, with-

out the consent of the accused, if the military judge

finds that, under the circumstances, a continuance is

not warranted and that the accused’s right to be ade-

quately represented would not be impaired.

Nothing in this record satisfies me that these provisions

were obeyed. In fact, the majority acknowledges in foot-

note 2 “that appellant was not represented formally by

counsel at the December 17 session under Article 39(a),

. .’ I am at a loss to understand how, legally or

logically, an unrepresented accused can be held to have

made a sensitive balance between competing legal rights

(and, indeed, to have recognized that they may not even

be competing).

This is not a case of sharp practice or questionable

maneuvering to “create” a defense objection through di-

lemma. Cf. United States v. Burris, 21 MJ 140 (CMA

1985). Neither is there any hint that defense counsel

was involved in any action that would mislead or in-

advertently deceive the Government into delaying the trial

to result in a violation of the speedy-trial requirements.

Cf. United States v. Givens, 30 MJ 294 (CMA 1990);

United States v. Carlisle, 25 MJ 426 (CMA 1988). Nor

is there evidence that appellant was asserting his right to

counsel as a ploy to convert a procedural protection into

a sword with which to attack the Government for failing

to bring him to trial timely. See United States v. King,

30 MJ 59 (CMA 1990); United States v. Cherok, 22 MJ

438 (CMA 1986).

9a

In fact, as the majority notes, ironically trial counsel

resisted delay to await Captain Seitsinger’s return; curi-

ously, the military judge chose to rely upon the uncoun-

seled and uninformed decision of appellant that he was

willing to wait. No mention was made, however, of how

to reconcile both of appellant’s rights—or even that he

had both rights.

On this bizarre record, I am unable to find defense

“waiver” or defense “request for delay” or whatever it is

that the majority latches onto, to the detriment of an

apparently sincere and unrepresented accused. Rules are

not made so that the defense can twist and manipulate

them to the point where justice is distorted; neither are

they made so that an unaware and unwary lay accused

can be tricked into forfeiting what then, at least, was an

important right to speedy trial. Cf. United States v.

Kossman, 38 M.J. 258, 262 (CMA 1993) (Wiss, J.,

dissenting).

10a

APPENDIX B

U.S. ARMY COURT OF MILITARY REVIEW

ACMR 9100802

UNITED STATES,

. Appellee,

SPECIALIST WILLIAM MONTANINO, JR.,

509-68-7024, United States Army,

Appellant.

31 July 1992

Before JOHNSON, WERNER, and GRAVELLE, Ap-

pellate Military Judges.

OPINION OF THE COURT

GRAVELLE, Judge:

Pursuant to mixed pleas, the appellant was found guilty

by a military judge sitting as a general court-martial of

unauthorized absence, wrongful appropriation, and two

specifications of larceny, in violation of Articles 86 and

121, Uniform Code of Military Justice, 10 U.S.C. §§ 886

and 921 (1982) [hereinafter UCMJ]. The convening au-

thority approved the adjudged sentence of a bad-conduct

discharge, confinement for eleven months, and reduction

to Private El.

The appellant asserts two errors on appeal. First, he

asserts that he was denied his right to a speedy trial under

R.C.M. 707? because he was not brought to trial within

120 days of notification of preferral of charges. Second,

he asserts that the evidence is legally and factually insuffi-

1 Manual for Courts-Martial, United States, 1984, Rule for

Courts-Martial 707 [hereafter R.C.M.].

heasseneneenesteameeneaeneneaa

lla

cient to support the findings of guilty of the two specifica-

tions of larceny. We disagree with both assertions.

Captain (CPT) S represented the appellant through

the Article 32, UCMJ, investigation and was then selected

by CPT C, the installation senior defense counsel, and by

the U.S. Army Trial Defense Service for temporary duty

in the Sinai Desert as part of the Multinational Forces and

Observers (MFO) task force. After CPT S had deployed

in November 1990, CPT C, while expressly not detailing

himself as the appellant’s defense counsel, represented the

appellant at an Article 39(a), UCMJ, session held in

December for the limited purpose of determining the ap-

pellant’s choice of counsel. At that session, the appellant

elected to be represented exclusively by CPT S, even after

learning that CPT S would not return until March 1991.

When asked specifically by the military judge if he was

willing to wait until March for CPT S, the appellant

answered in the affirmative. The trial counsel argued

against the delay and stated that he was ready to proceed

to trial at that time. The military judge ruled that the

delay until March was a defense delay.

When the trial resumed in April 1991 before a different

military judge and with CPT S as the appellant’s defense

counsel, CPT S moved for dismissal of charges for a

violation of the “120 day rule” of R.C.M. 707.2 After

hearing the testimony of CPT C the senior defense coun-

sel, regarding the detailing of CPT S to the MFO mission,

and after considerable finger-pointing as to whose respon-

sibility it was for returning the defense counsel to the

situs of trial, the military judge found that:

It’s clear to me, abundantly, beyond reasonable doubt

that this was a defense delay in this case. The initial

assigment [sic] of the defense counsel to the Mon-

tanino case occurred before, according to the testi-

2 There was a defense-requested delay between 17 March and

1 April. This defense delay is not in dispute in this case.

12a

mony of [CPT C, the senior defense counsel], oc-

curred well before there was any hint of a defense

counsel having been—or having had to go with the

Force to the Sinai. The selection, therefor [sic], of

[CPT S] to go to the Sinai, knowing full well that

he had undertaken active responsibility for—or even

probable responsibiliy for a potential GCM case, is

a burden that must rest with the Trial Defense

Service.

The Trial Defense Service cannot abdicate its re-

sponsibility to its client simply by saying that they’ve

been assigned to Task Force [sic] in the Sinai or

sent overseas. And, in this case, the defense counsel

remained actively assigned to the US Army Trial

Defense Service throughout that entire period, even

though he might have been attached to Task Force

2/14. And, I find it a very hard argument to be-

lieve, and I do not accept it, that the Trial Defense

Service can simply say, “It’s a government responsi-

bility to bring this defense counsel back,” not taking

any—and then sitting back and reaping the benefits

of any possible delay in courts-martial cases.

Moreover, the accused on at least two separate

occasions, indicated that he wished to remain repre-

sented by Captain [S] and Captain [S] alone. And,

based on those general findings, this delay is defense

delay.

Additionally, the military judge found that the delay

was excludable under R.C.M. 707(c)(9) as delay for

good cause based on unusual operational requirements

and military exigencies.

It is the government that bears the burden of bringing

an accused to trial in a timely manner. United States v.

Cook, 27 M.J. 212 (C.M.A.1988); R.C.M. 707. Under

the version of R.C.M. 707 in effect at the time of trial,

13a

an accused must be brought to trial within 120 days after

notification of preferral of charges. R.C.M. 707(a). Peri-

ods of time that may be excluded from the government’s

accountability under this rule include delays “in a pro-

ceeding or a continuance in the court-martial granted at

the request or with the consent of the defense.” R.C.M.

707(c)(3). Also excluded is “[a]ny other period of delay

for good cause, including unusual operational require-

ments and military exigencies.” R.C.M. 707(c)(9). Fail-

ure to comply with the speedy trial requirements of this

rule shall result in dismissal of the affected charges upon

timely motion by the accused. R.C.M. 707(e). Finally,

a violation of R.C.M. 707 may be waived by a failure of

the appellant to object at trial. R.C.M. 905(e).

At the outset, we note that the appellant’s pleas of

guilty to the unauthorized absence and the wrongful appro-

priation do not waive the speedy trial issue as to those

charges. See United States v. Davis, 29 C.M.R. 226

(C.M.A.1960); United States v. Lorenc, 30 M.J. 619

(N.M.C.M.R.), pet. denied, 32 M.J. 1 (C.M.A.1990);

United States v. Angel, 28 M.J. 600, 601 n. 1

(N.M.C.M.R.1989) (en banc); R.C.M. 905(e). Unlike

United States v. Sloan, 48 C.M.R. 211 (C.M.A.1974)

and United States v. Demmer, 24 M.J. 731 (A.C.M.R.

1987), the appellant raised the speedy trial issue at trial

as to all charges and specifications.

The government has not presented us with sufficient

facts for us to decide if the deployment of the defense

counsel to the Sinai qualified as an “unusual operational

requirement” or “military exigency.” See, e.g., United

States v. Wactor, 30 M.J. 821 (A.C.M.R.1990). There-

fore, we base our holding on R.C.M. 707(c)(3).

We find that the appellant, aware that CPT S would

probably not return until March, affirmatively consented

to the delay after the military judge found that the delay

would be a defense-requested delay. We hold that the

l4a

military judge did not err in ruling that the delay was a

defense delay and in denying the appellant’s motion for

dismissal of charges based on a violation of his regulatory

speedy trial rights.* The appellant’s first assertion of error

is therefore without merit.

The appellant also asserts that the evidence is legally

and factually insufficient to prove his guilt beyond a rea-

sonable doubt as to the two contested specifications of

larceny. The unrebutted evidence at trial showed that two

bank cards made out in the names of two soldiers in the

appellant’s unit were found among the appellant’s own

cards in a desk exclusively used by the appellant. The

cards were found during a legitimate inventory of the

appellant’s property while he was absent without leave.

The two soldiers whose names appeared on the cards

testified that they had opened bank accounts and had

asked for bank cards but had never received them. Fur-

ther, there was evidence that the appellant frequently

picked up the mail for his section. Utilizing the standards

for legal and factual sufficiency set out in Jackson v.

Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560

(1979) and United States v. Turner, 25 M.J. 324 (C.M.A.

1987), respectively, we find that the evidence circum-

stantially proves the appellant’s guilt beyond a reasonable

doubt.

The findings of guilty and the sentence are affirmed.

Senior Judge JOHNSON and Judge WERNER concur.

3 Because of our holding, it is unnecessary for us to determine

in this case the appropriateness, correctness or legal significance

of the military judge’s comments regarding the Trial Defense

Service’s responsibilities in selecting this particular defense coun-

sel for overseas deployment. We fully support the independent

military defense bar as it has evolved in the Army. However, with

that independence comes the responsibility of the Trial Defense

Service to insure that existing attorney-client relationships and

clients’ rights are not jeopardized by operational requirements.

15a

APPENDIX C

RULE FOR COURTS-MARTIAL 707

Rule 707. Speedy trial

(a) In general. The accused shall be brought to trial

within 120 days after the earlier of:

(1) Notice to the accused of preferral of charges under

R.C.M. 308; or

(2) The imposition of restraint under R.C.M. 304

(a) (2)-(4); or

(3) Entry on active duty under R.C.M. 204.

(b) Accountability.

(1) In general. The date on which the accused is

notified of the preferral of charges or the date on which

pretrial restraint is imposed shall not count for purpose

of computing the time under subsection (a) of this rule.

The date on which the accused is brought to trial shall

count.

(2) Inception. If charges are dismissed, if a mistrial

is granted, or—when no charges are pending—if the

accused is released from pretrial restraint for a significant

period, the time under this rule shall run only from the

date on which charges or restraint are reinstituted.

(3) Termination. An accused is brought to trial within

the meaning of this rule when:

(A) A plea of guilty is entered to an offense; or

(B) Presentation to the factfinder of evidence on

the merits begins.

(4) Multiple charges. When charges are preferred at

different times, the inception for each shall be determined

from the date on which the accused was notified of pre-

l6a

ferral or on which restraint was imposed on the basis of

that offense.

(c) Exclusions. The following periods shall be excluded

when determining whether the period in subsection (a)

of this rule has run—

(1) Any periods of delay resulting from other proceed-

ings in the case, including:

(A) Any examination into the mental capacity

or responsibility of the accused;

(B) Any hearing on the capacity of the accused

to stand trial and any time during which the

accused lacks capacity to stand trial;

(C) Any session on pretrial motions;

(D) Any appeal filed under R.C.M. 908 unless

it is determined that the appeal was filed

solely for the purpose of delay with the

knowledge that it was totally frivolous and

without merit; and

(E) Any petition for extraordinary relief by either

party.

(2) Any period of delay resulting from unavailability

of a military judge when the unavailability results from

extraordinary circumstances.

(3) Any period of delay resulting from a delay in a

proceeding or a continuance in the court-martial granted

at the request or with the consent of the defense.

(4) Any period of delay resulting from a failure of

the defense to provide notice, make a request, or submit

any matter in a omey manner as otherwise required by

this Manual.

(5) Any period of delay resulting from a delay in the

Aritcle 32 hearing or a continuance in the court-martial

at the request of the prosecution if:

17a

(A) The delay or continuance is granted because

of unavailability of substantial evidence rele-

vant and necessary to the prosecution’s case

when the Government has exercised due dili-

gence to obtain such evidence and there exists

at the time of the delay grounds to believe

that such evidence would be available within

a reasonable time; or

(B) The continuance is granted to allow the trial

counsel additional time to prepare the prose-

cution’s case and additional time is justified

because of the exceptional circumstances of

the case.

(6) Any period of delay resulting from the absence or

unavailability of the accused.

(7) Any reasonable period of delay when the accused

is joined for trial with a coaccused as to whom the time

for trial has not yet run and there is good cause for not

granting a severance.

(8) Any period of delay, not exceeding 60 days, occa-

sioned in processing and implementing a request pursuant

to R.C.M. 204 to order a member of a reserve component

to active duty for disciplinary action.

(9) Any other period of delay for good cause, in-

cluding unusual operational requirements and military

exigencies.

(d) Arrest or confinement. When the accused is in pre-

trial arrest or confinement under R.C.M. 304 or 305,

immediate steps shall be taken to bring the accused to

trial. No accused shall be held in pretrial arrest or con-

finement in excess of 90 days for the same or related

charges. Except for any periods under subsection (c) (7)

of this rule, the periods described in subsection (c) of

this rule shall be excluded for the purpose of computing

184

when 90 days has run. The military judge may, upon a

showing of extraordinary circumstances, extend the period

by 10 days.

(e) Remedy. Failure to comply with this rule shall result

in dismissal of the affected charges upon timely motion

by the accused.

HG. 8s GOVERNMENT PRinTiNGe OFFICE; 1994 364306 24004