                         UNITED STATES, Appellee

                                         v.

                       Jonathan E. LEE, Captain
                     U.S. Marine Corps, Appellant

                                  No. 07-0725

                        Crim. App. No. 200600543

       United States Court of Appeals for the Armed Forces

                          Argued March 11, 2008

                          Decided June 13, 2008

BAKER, J., delivered the opinion of the Court, in which EFFRON,
C.J., and ERDMANN, J., joined. RYAN, J., filed a separate
dissenting opinion, in which STUCKY, J., joined.


                                     Counsel


For Appellant: Eugene R. Fidell, Esq. (argued); Matthew S.
Freedus, Esq., Brent C. Harvey, Esq., and Lieutenant Brian D.
Korn, JAGC, USN (on brief).


For Appellee: Lieutenant Derek D. Butler, JAGC, USN (argued);
Commander Paul C. LeBlanc, JAGC, USN (on brief); Lieutenant
Justin E. Dunlap, JAGC, USN.



Military Judges:    S. F. Day and J. M. Sankey



            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Lee, No. 07-0725/MC


    Judge BAKER delivered the opinion of the Court.

    Appellant entered mixed pleas before a military judge

sitting as a general court-martial.    After a trial on the

contested offenses, Appellant was convicted of three

specifications of burglary, conduct unbecoming of an officer and

a gentleman, three specifications of fraternization, and five

specifications of indecent assault, all in violation of Articles

129, 133, and 134, Uniform Code of Military Justice (UCMJ), 10

U.S.C. §§ 929, 933, 934 (2000), respectively.   The adjudged and

approved sentence included a dismissal, confinement for three

years and forfeiture of all pay and allowances.    The United

States Navy-Marine Corps Court of Criminal Appeals dismissed the

conduct unbecoming charge and the specification thereunder, and

one specification of indecent assault.   United States v. Lee,

No. NMCCA 200600543, 2007 CCA LEXIS 233, at *24, 2007 WL

1890683, at *8 (N-M. Ct. Crim. App. June 26, 2007).    After

reassessing in light of that action, the court affirmed the

sentence as approved by the convening authority.   Id. at *24,

2007 WL 1890683, at *8.   We granted review of Appellant’s

assigned issue:   whether his detailed defense counsel’s failure

to disclose a conflict of interest resulted in an uninformed

selection of counsel.

     The parties have briefed and argued the case from the

perspective of a declaration submitted by Appellant in the court


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United States v. Lee, No. 07-0725/MC


below.   In that declaration Appellant states that during the

representation, detailed counsel informed him that he would “be

wrapping up his defense cases and that his new duties would

entail prosecuting ‘minor offenses.’”    Appellant suggests that

he acceded to this arrangement because his detailed counsel told

him there was no conflict of interest.   Appellant also states

that after his trial, he learned that his detailed counsel had

actually been working as a prosecutor on another serious case

while simultaneously representing him.   Moreover, in this other

case, his detailed counsel was working for the same trial

counsel prosecuting his case.   In support of his argument,

Appellant references the book, Warlord: No Better Friend, No

Worse Enemy (2006), by Ilario Pantano with Malcolm McConnell,

recounting Pantano’s court-martial in detail.

     The Government responds that even if Appellant’s

allegations are correct, Appellant has failed to show any

adverse effect on detailed counsel’s performance.    As a result,

the Government concludes, Appellant was not deprived of counsel

for the purposes of the Sixth Amendment.   In addition, during

all relevant times, Appellant was also represented by civilian

counsel of his choice, and he has made no claim of

ineffectiveness as to that counsel’s performance.




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                             ANALYSIS

     “In all criminal prosecutions, the accused shall enjoy the

right . . . to have the Assistance of Counsel for his defence.”

U.S. Const. amend. VI; see also United States v. Cain, 59 M.J.

285, 294 (C.A.A.F. 2004).   Case law identifies several elements

within this right, as applied in the civilian context.    One

element of the Sixth Amendment right to counsel is “the right of

a defendant who does not require appointed counsel to choose who

will represent him.”   United States v. Gonzalez-Lopez, 548 U.S.

140, 144 (2006).   Further, counsel provided to or retained by

the accused must provide “reasonably effective assistance.”

Strickland v. Washington, 466 U.S. 668, 687 (1984).    Third,

“[w]here a constitutional right to counsel exists . . . there is

a correlative right to representation that is free from

conflicts of interest.”   Wood v. Georgia, 450 U.S. 261, 271

(1981).   Finally, it follows that where assistance of counsel

has been denied entirely, “the likelihood that the verdict is

unreliable is so high that a case-by-case inquiry is

unnecessary.”   Mickens v. Taylor, 535 U.S. 162, 166 (2001); see

generally Powell v. Alabama, 287 U.S. 45 (1932) (judgments

reversed in capital cases where trial court denied defendants

reasonable time to secure counsel).

     An accused may waive his right to conflict-free counsel.

United States v. Davis, 3 M.J. 430, 433 n.16 (C.M.A. 1977).


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United States v. Lee, No. 07-0725/MC


However, waivers must be voluntary, and they must be “‘knowing

intelligent acts done with sufficient awareness of the relevant

circumstances and likely consequences.’”    Id. (quoting Brady v.

United States, 397 U.S. 742, 748 (1970)).    Courts will “‘indulge

every reasonable presumption against the waiver’” of this right.

Id. (citations omitted).

     The concerns attendant to counsel performing prosecutorial

duties while simultaneously representing an accused person at

court-martial are reflected in a longstanding opinion from the

Office of Legal Counsel within the Department of Justice, which

states among other things, that “it is considered unethical for

an active prosecutor to represent criminal defendants in his or

her own or another jurisdiction,” based inter alia on the

“‘subliminal or concealed’ influences on the attorney’s

loyalty.”   1 Op. Off. Legal Counsel 110, 112 (1977).   These same

concerns are reflected within two opinions by the American Bar

Association (ABA) addressing military counsel.   In an opinion

addressing the propriety of a military legal office providing

both trial counsel and defense counsel in the same case the ABA

stated:

     Depending on whether a lawyer is cast in a defense or
     prosecutorial role, he may be required to frame and
     advocate interpretations of established rules of law
     or procedure that are, or seem to be, poles apart. He
     may be required to criticize police actions in one
     case, then turn about to defend the same or similar
     actions in a subsequent case where the facts may be,


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United States v. Lee, No. 07-0725/MC


     or seem to be, the same. He will deal frequently with
     the same investigative or police personnel; he may
     appear before the same [judges]. In the course of
     this, the temptations may be great to mute the force
     of advocacy, or just the handling of cases in subtle
     ways.

ABA Comm. on Ethics and Prof’l Responsibility, Informal Op. 1235

(1972).   A later ABA opinion states:

     The Uniform Code of Military Justice (specifically
     [Article 27, UCMJ] 10 U.S.C. § 827) and military court
     opinions issued thereunder, as well as traditional
     ethical concepts, have long recognized that a lawyer
     should not serve as prosecutor and defense counsel,
     investigator and defense counsel, defense counsel and
     judge, or in any other combination of conflicting
     roles in the same case. This is because a basic tenet
     of an adversary system of justice is that a lawyer
     should have undivided loyalty to his client and
     because a fair system of justice requires that there
     be no appearance of divided loyalty.

ABA Comm. on Ethics and Prof’l Responsibility, Informal Op. 1474

(1982).

     In contrast to the apparent substantive clarity suggested

by the text above, case law varies on whether the simultaneous

representation of the United States and a defendant results in

per se prejudice or whether the defendant must at least show

that the conflict adversely affected his counsel’s performance.

Beaver v. Thompson, 93 F.3d 1186, 1193 (4th Cir. 1996) (per se

prejudice rule rejected in case where defense counsel was part-

time assistant prosecutor in neighboring county); Garcia v.

Bunnell, 33 F.3d 1193, 1198 & n.5 (9th Cir. 1994) (in case in

which defendant claimed defense counsel had simultaneously


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United States v. Lee, No. 07-0725/MC


undertaken duties as a prosecutor, standard was, “‘a defendant

who shows that a conflict of interest actually affected the

adequacy of his representation need not demonstrate prejudice,’”

but suggested that had defendant timely objected, it would have

obviated need for such a showing) (citation omitted); accord

Goodson v. Peyton, 351 F.2d 905, 909 (4th Cir. 1965) (court-

appointed counsel was the Commonwealth’s Attorney for

neighboring county).

     Not surprisingly, there are also few cases reaching this

Court on the issue of supervisory conflicts.   United States v.

Nicholson, 15 M.J. 436, 438 (C.M.A. 1983) (rejecting per se

prejudice rule where trial counsel prepared fitness reports on

defense counsel); accord United States v. Hubbard, 20 C.M.A.

482, 484, 43 C.M.R. 322, 324 (1971) (where trial counsel was

endorsing official for defense counsel personnel evaluations).

                   NEED FOR REMAND IN THIS CASE

     Appellant’s declaration implicates three related questions.

First, when, and under what circumstances, did defense counsel

serve as a trial counsel, and did military counsel labor under a

conflict of interest in representing Appellant under such

circumstances?   Appellant indicates that he was aware that his

counsel would, at some point in time, be working as a

prosecutor.   However, it is not clear whether Appellant was told

(or whether he understood) these prosecution duties would be


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United States v. Lee, No. 07-0725/MC


undertaken during the defense representation or after it

terminated.

     Second, if defense counsel had in fact begun duties as a

prosecutor, was defense counsel subject to the supervision of

trial counsel in Appellant’s case?   Here, Appellant points to an

excerpt from the Pantano book, “facts” that are clearly not in

the record of trial and that have not been subject to

adversarial adjudication.

     Third, whatever the underlying facts, did Appellant make an

informed decision to waive any conflict of interest based on the

actual facts at the time he consented to further representation?

     Appellant’s declaration suggests that he may have had some

knowledge of his detailed counsel’s potential conflict, if any.

In the event Appellant did not knowingly waive a conflict of

interest, the question remains as to what showing must be made

for an accused to prevail on an issue of a conflicted counsel.

     Based on the foregoing, it is necessary for us to remand

this case for further findings and conclusions of law.

                            DECISION

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is set aside.    The record of trial is

returned to the Judge Advocate General of the Navy for remand to

an appropriate convening authority to order a factfinding

hearing pursuant to United States v. DuBay, 17 C.M.A. 147, 37


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United States v. Lee, No. 07-0725/MC


C.M.R. 411 (1967).   In conducting such a hearing, the military

judge should be guided, but not constrained, by the questions

contained in the Appendix to this opinion in gathering the facts

necessary to reach the conclusions of law required to address

the issues raised in this opinion.   Afterwards, the case shall

be forwarded and reviewed in accordance with Article 66, UCMJ,

10 U.S.C. § 866 (2000).




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United States v. Lee, No. 07-0725/MC

                              APPENDIX

       The following factual issues are in need of resolution:

  1.    What are the circumstances surrounding the assignment of

        detailed counsel as a trial counsel, including the date

        such duties were to begin?

  2.    What consideration was given to the fact that counsel

        still had active defense cases?

  3.    What “need” arose for the reassignment?

  4.    What was the full scope of detailed counsel’s actions as a

        trial counsel during counsel’s representation of the

        accused?

  5.    Was there, in fact, a supervisory relationship between

        trial counsel and detailed counsel during counsel’s

        representation of the accused?

  6.    What was the exact nature of any disclosures made to the

        accused?

  7.    What was the accused’s understanding regarding these

        disclosures?

  8.    What was civilian counsel’s role in the matter?

  9.    What effects on the representation can the accused point

        to resulting from any claimed conflicts of interest on the

        part of his detailed defense counsel?




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United States v. Lee, No. 07-0725/MC


     RYAN, Judge, with whom STUCKY, Judge, joins (dissenting):

     This Court granted review of the decision of the United

States Navy-Marine Corps Court of Criminal Appeals on one issue

raised by Appellant:   “Whether [detailed counsel’s] failure to

disclose his conflict of interest resulted in an uninformed and

invalid election of counsel.”   Rather than answer this question,

which is directly controlled by Supreme Court precedent and not

an open issue, Cuyler v. Sullivan, 446 U.S. 335, 350 (1980)

(“[T]o demonstrate a violation of his Sixth Amendment rights, a

defendant must establish that an actual conflict of interest

adversely affected his lawyer’s performance.”), and Strickland

v. Washington, 466 U.S. 668, 692 (1984) (holding that defendant

must demonstrate both that counsel actively represented

conflicting interests and that an actual conflict of interest

adversely affected his lawyer’s performance to establish a Sixth

Amendment violation), the majority remands the case for

additional factfinding on questions related to the alleged

conflict and Appellant’s knowing waiver, if any, of any such

conflict.

     Remand is unwarranted under the facts of this case.

Appellant fails to show, or even allege, prejudice or deficient

performance by either the potentially conflicted detailed
United States v. Lee, No. 07-0725/MC


counsel or his privately retained civilian counsel.1      Instead,

Appellant argued structural error resulting from an alleged

violation of the Sixth Amendment right to counsel of choice.

Based on this strategy, Appellant denied that any showing of

deficient performance was necessary.2

     That is simply not the law.       The Sixth Amendment grants

Appellant the right to “Assistance of Counsel for his defence.”

U.S. Const. amend. VI.   Two aspects of this right are the right

to effective assistance of counsel, Strickland, 466 U.S. at 686,

and the right to counsel of choice with certain limitations,

United States v. Gonzalez-Lopez, 548 U.S. 140, 144, 151-52

(2006).   They are different and separate aspects of the same

right, and alleged deprivations of each warrant distinct and

disparate analyses.

     It is well settled that conflicts of interest are analyzed

under the “ineffective assistance of counsel” rubric, which


1
  The performance of the civilian counsel is relevant for two
reasons. First, “[w]here an accused is represented by both
civilian counsel and detailed military counsel, the performance
of defense counsel is measured by the combined efforts of the
defense team as a whole.” United States v. Boone, 42 M.J. 308,
313 (C.A.A.F. 1995). Without evidence that Appellant’s defense
team, including both Appellant’s civilian counsel and detailed
counsel, acted deficiently, Appellant cannot establish
prejudice. Second, the impact of any deficient performance by
detailed counsel would be mitigated by the fact that civilian
counsel acted as lead counsel throughout Appellant’s trial.
2
  At oral argument, counsel for Appellant admitted, “We have not
made a claim, because we do not need to make a claim, that there
was any deficiency in [detailed counsel’s] work.”

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United States v. Lee, No. 07-0725/MC


requires a showing of prejudice and deficient performance,

rather than as “erroneous denial of counsel of choice,” which

constitutes structural error.   Compare Cuyler, 446 U.S. at 348-

50 (setting forth test for ineffective assistance of counsel

where a conflict of interest is alleged), and Mickens v. Taylor,

535 U.S. 162, 171-73 (2002) (applying ineffective assistance of

counsel analysis in light of conflict of interest), with

Gonzalez-Lopez, 548 U.S. at 144-48 (analyzing the court’s

erroneous refusal to permit hired attorney to represent

defendant as denial of counsel of choice).

     Appellant nonetheless argues that if he had been fully

informed of the detailed counsel’s potential conflict of

interest, he would have requested new counsel.   Therefore,

Appellant argues, detailed counsel’s failure to disclose the

conflict rendered Appellant’s decision “uninformed and invalid”

and violated his right to choice of counsel.

     No one, of course, would choose a conflicted or otherwise

ineffective attorney, and under this logic every instance of

conflict or deficient performance would constitute structural

error and warrant reversal.   But it has never been the case that

the right to counsel of choice is violated by conflicted or

ineffective counsel.   Violations of the Sixth Amendment right to

counsel of choice, and the attendant structural error and

automatic reversal, occur when there is an erroneous deprivation


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United States v. Lee, No. 07-0725/MC


of a defendant’s request for the “counsel he believes to be

best,” the “counsel of his choosing.”   Gonzalez-Lopez, 548 U.S.

at 146 & n.2 (holding that a trial court’s erroneous denial of

the defendant’s counsel’s application for admission pro hac vice

violated the defendant’s Sixth Amendment right to choice of

counsel and amounted to a structural error, requiring no showing

of prejudice).

     This case presents different circumstances.   At Appellant’s

arraignment, the military judge informed Appellant of his

counsel rights and confirmed that Appellant understood those

rights.   Appellant elected to be represented by both the

detailed counsel and his civilian attorney and was so

represented at trial.   Appellant admits that he was represented

by his counsel of choice, but argues that Gonzalez-Lopez

supports the argument that detailed counsel’s failure to

sufficiently disclose a potential conflict of interest

constitutes a violation of the right to choice of counsel.

     Such an extension of Gonzales-Lopez is unsupported by

precedent, unwarranted by any language in Gonzales-Lopez, and

unnecessary.   The Sixth Amendment already protects the

defendant’s right to counsel who owes the defendant “a duty of

loyalty, a duty to avoid conflicts of interest.”   Strickland,

466 U.S. at 688.   The Supreme Court explicitly provided for this

type of case, holding that prejudice may be presumed, when


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United States v. Lee, No. 07-0725/MC


defendant’s counsel is burdened by an “actual conflict of

interest.”   Id. at 692.   But to establish an actual conflict of

interest, the defendant must demonstrate that his “counsel

‘actively represented conflicting interests’ and that ‘an actual

conflict of interest adversely affected his lawyer’s

performance.’”   Id. (quoting Cuyler, 446 U.S. at 348, 350)

(emphasis added).   The Supreme Court in no way suggested in its

Gonzalez-Lopez holding either that it intended to eviscerate its

established conflicts of interest jurisprudence or that the

right to counsel of choice is violated where a defendant gets

the lawyer he asked for, but post hoc, it is clear he either

should have or would have chosen differently.

     The Supreme Court’s opinion in Mickens reaffirmed that

Cuyler and Strickland remain the appropriate tests for conflicts

of interest and that such conflicts do not constitute structural

error.   See Mickens, 535 U.S. at 171-74 (rejecting petitioner’s

argument that trial court’s failure to inquire into a potential

conflict of interest about which it knew or should have known

relieved the defendant of the need to demonstrate that the

conflict adversely affected the defendant’s counsel’s

performance).    The Court reiterated Cuyler’s holding that “‘an

actual conflict of interest’ mean[s] precisely a conflict that

affected counsel’s performance -- as opposed to a mere




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United States v. Lee, No. 07-0725/MC


theoretical division of loyalties.”    Mickens, 535 U.S. at 171

(citing Cuyler, 446 U.S. at 349-50) (emphasis in original).

        The answer to the granted issue is apparent –- there was no

denial of the Sixth Amendment right to counsel of choice because

Appellant asked to be represented by detailed counsel and

civilian counsel and was so represented.    To the extent the

alleged conflict of interest exists, it is relevant to the

detailed counsel’s duty to zealously advocate on behalf of

Appellant and raises an ineffective assistance of counsel issue

only.    Where, as here, Appellant has not alleged any

deficiencies in his detailed counsel’s performance, it is

unnecessary to resolve the question whether defense counsel

actively represented conflicting interests because Appellant

cannot establish prejudice under Cuyler.     Consequently, I

respectfully disagree that the Court cannot resolve the

ineffective assistant of counsel issue without remanding for

further findings and conclusions of law and would affirm the

ruling of the United States Navy-Marine Corps Court of Criminal

Appeals.3



3
  Of course the circumstances alleged by Appellant, if true,
reflect a failure to adhere to ethics rules, and very poor
judgment by both the detailing authority and counsel. But “[a]n
error by counsel, even if professionally unreasonable, does not
warrant setting aside the judgment of a criminal proceeding if
the error had no effect on the judgment.” Strickland, 466 U.S.
at 691.

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