         U NITED S TATES N AVY –M ARINE C ORPS
             C OURT OF C RIMINAL A PPEALS
                       _________________________

                           No. 201600015
                       _________________________

                UNITED STATES OF AMERICA
                               Appellee
                                   v.

                       JAMES A. HALE III
               Staff Sergeant (E-6), U.S. Marine Corps
                              Appellant
                       _________________________

 Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judge: Lieutenant Colonel Eugene H. Robinson, Jr., USMC.
   Post-trial Article 39(a), UCMJ, Session Military Judge: Colonel James
                              Carberry, USMC.
 Convening Authority: Commanding General, Marine Corps Recruit
          Depot, Western Recruiting Region, San Diego, CA .
  Staff Judge Advocate’s Recommendation: Major Brett M. Wilson,
                                   USMC.
For Appellant: Gary Myers, Esq; Brian A. Pristera, Esq.; Lieutenant
   Christopher C. McMahon, JAGC, USN; Lieutenant Commander
                       Jeremy J. Wall, JAGC, USN.
For Appellee: Major Cory A. Carver, USMC; Lieutenant Commander
                    Justin C. Henderson, JAGC, USN.
                          _________________________

                        Decided 31 May 2017
                       _________________________

Before G LASER -A LLEN , MARKS, and FULTON, Appellate Military Judges
                         _________________________

                PUBLISHED OPINION OF THE COURT
                      _________________________


   FULTON, Judge:
   A general court-martial, consisting of members with enlisted
representation, convicted the appellant, contrary to his pleas, of two
                        United States v. Hale III, No. 201600015


specifications of rape and single specifications of violating a general order,
adultery, indecent language, wrongful use of a steroid, assault with a
dangerous weapon, and kidnapping in violation of Articles 92, 112a, 120, 128,
and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 892, 912a,
920, 928, and 934. The members sentenced the appellant to 26 years’
confinement, reduction to E-1, total forfeiture of pay and allowances, and a
dishonorable discharge. The convening authority approved the sentence as
adjudged.
   The appellant raises seven assignments of error:
   I. That the military judge erred by admitting evidence obtained after an
unlawful search of the appellant’s gym bag;
   II. That trial counsel’s attempt to intimidate detailed trial defense
counsel and improper arguments at trial amounted to prosecutorial
misconduct;
   III. That the appellant received ineffective assistance from his trial
defense counsel, who were laboring under a conflict of interest;
   IV. That his sentence to 26 years of confinement is inappropriately severe;
    V. That trial defense counsel initially detailed to the case were ineffective
in their representation during the defense counsel’s first site visit;
   VI. That the appellant was prejudiced when the military judge denied a
second site visit for his counsel; and,
   VII. That text messages were              improperly admitted    during the
presentencing case.
    We find merit in the appellant’s third assignment of error. We find that
his representation was adversely affected by a conflict of interest and that his
convictions should be set aside under Cuyler v. Sullivan.1
    Separately, we also find that the undisclosed conflicts of interest in this
case were stark, corrosive to the fairness of the proceedings, and resistant to
a standard prejudice analysis. On the basis of our review of the entire record,
we judge that the findings should not be approved.2
                                 I. BACKGROUND
A. Violation of a lawful general order
   In May 2011, the appellant was a staff sergeant in the Marine Corps
deployed to Afghanistan. While deployed, he began a sexual relationship with

   1   446 U.S. 335 (1980).
   2   Art. 66(c), UCMJ.


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                    United States v. Hale III, No. 201600015


another Marine, resulting in that Marine’s pregnancy. The sexual
relationship violated I Marine Expeditionary Force (Forward) General Order
1A, prohibiting sexual acts by Marines deployed to Afghanistan.
B. Assault with a dangerous weapon, rape, adultery, kidnapping,
indecent language, and wrongful use of steroids
    These offenses arose from an encounter between the appellant and SK, a
civilian in Anchorage, Alaska. The government alleged that the appellant
contacted SK and asked her to obtain prescription drugs for him. When he
thought that he had been shorted in the exchange, he pointed a pistol at SK,
drove her to a different part of Anchorage, forced her at gunpoint to perform
oral sex on him, and raped her.
    SK reported the assault to the Anchorage Police Department the next
day. The police used SK’s phone records to identify the appellant as a suspect
and arrested him at a local gym. Inside the appellant’s gym bag, the police
found evidence that led to the appellant’s conviction for wrongfully using
steroids.
                                II. ANALYSIS
    In his third assignment of error, the appellant alleges that his lead trial
defense counsel had a conflict of interest, and that his trial defense counsel
were ineffective. This assignment of error is factually related to his claim of
prosecutorial misconduct. Because we resolve this case on grounds of
ineffective assistance of counsel, we do not reach the issue of prosecutorial
misconduct or the other assigned errors. But trial counsel’s actions—and
defense counsel’s responses to them—are relevant to the appellant’s
ineffective assistance and conflict claims.
   The trial defense counsel were Marine Corps judge advocates stationed in
Southern California. The appellant was initially represented by two detailed
judge advocates: Major RP, the senior defense counsel, and Captain (Capt)
KC. The appellant requested Capt JS as individual military counsel. This
request was granted and the appellant excused Major RP from further
participation in the case. Capt KC became the lead defense counsel, and Capt
JS was the assistant defense counsel. The lead trial counsel during the trial
was Lieutenant Colonel (LtCol) CT, the Regional Trial Counsel and a recent
military judge at Camp Pendleton.
    Sometime after Capt KC began representing the appellant, but before the
beginning of the trial on the merits, Capt KC’s husband, Capt CC, became a
trial counsel within LtCol CT’s region and LtCol CT became Capt CC’s
reviewing officer (RO) for fitness report purposes. Capt KC did not inform the
appellant that her husband had become a trial counsel or that the lead
prosecutor in his case had become her husband’s RO. At the time of the


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                        United States v. Hale III, No. 201600015


appellant’s trial, Capt KC anticipated that she herself would become a trial
counsel within the region soon after the appellant’s trial. She did not disclose
this fact to the appellant, either.
    The Sixth Amendment entitles criminal defendants to representation that
does not fall “below an objective standard of reasonableness” in light of
“prevailing professional norms.”3 Not only is there a right to counsel, but
here is also a “correlative right to representation that is free from conflicts of
interest.”4
    In assessing an appellant’s claim that his counsel were ineffective,
appellate courts normally apply the two-pronged test announced in
Strickland v. Washington.5 In order to prevail, an appellant must
demonstrate that his counsel “made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed . . . by the Sixth Amendment. Second,
[he] must show that the deficient performance prejudiced the defense. This
requires showing that counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.”6
    When a claim of ineffective assistance of counsel stems from the
attorney’s conflict of interest, a reviewing court faces distinct analytical
challenges. Strickland recognized that conflicts of interest strike at the most
basic of counsel’s duties—the duty of loyalty—and that the prejudice accruing
from such a violation is hard to measure.7 This justifies, according to
Strickland, an exception to the usual prejudice analysis, substituting a “fairly
rigid rule of presumed prejudice for conflicts of interest.”8
A. Application of Cuyler v. Sullivan
   The case cited approvingly by the Strickland Court for the proposition
that courts should presume prejudice in conflict cases is Cuyler v. Sullivan.9
Cuyler looms large in every discussion of counsel conflicts in criminal cases,
and rates some discussion here. John Sullivan, the petitioner in Cuyler, was
one of three defendants accused of murdering the same victim. He accepted


   3 Strickland v. Washington, 466 U.S. 668, 688 (1984). See also United States v.
Knight, 53 M.J. 340, 342 (C.A.A.F. 2000) (citing United States v. Palenius, 2 M.J. 86
(C.M.A. 1977)).
   4   Wood v. Georgia, 450 U.S. 261, 271 (1981) (citations omitted).
   5   466 U.S. 668 (1984).
   6   Id. at 687.
   7   Id. at 692.
   8   Id.
   9   446 U.S. 335 (1980).


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                         United States v. Hale III, No. 201600015


representation from the same attorney representing the two alleged co-actors.
At trial, he did not object to the multiple representation and, since Sullivan
was the only defendant at his trial, nothing about the circumstances of the
case caused the trial court to inquire into potential conflicts.
    After Sullivan was convicted, he attacked his conviction under the rule
established by Holloway v. Arkansas. In Holloway, a trial court required a
single public defender to represent three co-defendants in a single trial. The
attorney objected, but the trial court did not appoint separate counsel or take
adequate steps to ensure conflict-free representation. The Supreme Court had
held in Holloway that where a trial court wrongly required a defendant to
accept multiple representation over his objection, prejudice is presumed. The
question in Cuyler, then, was whether that same presumption of prejudice
applied when the defendant did not object. The Supreme Court held that the
petitioner was entitled to a more limited presumption than was the petitioner
in Holloway. The Court held that where “his counsel actively represented
conflicting interests,” the petitioner need only show that the conflict
“adversely affected his lawyer’s performance.” Beyond this showing, however,
he “need not demonstrate prejudice in order to obtain relief.”10
   After Cuyler, courts of appeals applied Cuyler’s adverse-effect-on-
counsel’s-performance test ‘“unblinkingly’ to ‘all kinds of alleged attorney
ethical conflicts.”’11 Circuit courts applied the Cuyler test not only to conflict
cases involving concurrent representation of clients with conflicting interests,
but also to conflict cases involving consecutive representation12 and conflicts
between the client and the attorney’s own personal interests.13 Some courts,
however, questioned the broad application of the Cuyler test to conflict cases
not involving concurrent representation of multiple clients, reasoning that
not all conflicts of interest risk the same pernicious and hard-to-assess
prejudicial effect as concurrent representation cases.14 In this view, conflicts
in which counsel had not “actively represented conflicting interest”—
understood here to mean concurrent representation of conflicted clients—
were reviewed under Strickland’s more onerous second prong, requiring a




   10   Id. at 349-50.
   11 Mickens v. Taylor, 535 U.S. 162, 174 (2002) (quoting Beets v. Collins¸ 65 F.3d
1258, 1266 (5th Cir. 1995) (en banc)).
   12   See Perillo v. Johnson, 205 F.3d 775 (5th Cir. 2000).
   13   See United States v. Hearst, 638 F.2d 1190 (9th Cir. 1980).
   14   See e.g. Beets, 65 F.3d at 1270.


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                          United States v. Hale III, No. 201600015


reasonable probability that counsel’s performance affected the outcome of the
case.15
   1. The Supreme Court and Mickens v. Taylor
    The Supreme Court last took up the applicability of the Cuyler standard
in its 2002 case Mickens v. Taylor.16 The petitioner, Walter Mickens, was
convicted of murdering another man who, at the time of his murder, was
represented by the same attorney later appointed to represent Mickens.17 Not
only was Mickens represented by his victim’s lawyer, but the case came
before the same judge who had been assigned to his victim’s case.18 Counsel
did not disclose his prior representation of the victim and even though the
trial court had reason to know of the potential conflict, the judge did not
inquire into the matter.19 Then, as a habeas petitioner, Mickens claimed that
his counsel had suffered from an unobjected-to conflict of interest, and that
the trial court had not inquired into the conflict on the record.20 Mickens
argued that since the trial court had had reason to apprehend the potential
conflict, he should be entitled to Holloway’s more generous presumption of
prejudice and not be required to make any showing that the conflict
adversely affected his representation.
    The Supreme Court disagreed and applied Cuyler’s adverse-effect-on-
counsel test. But even as it applied Cuyler, the Supreme Court questioned its
application to conflicts of interest generally. In dicta, the Mickens Court
noted that the narrow question before it was whether Cuyler required an
appellant to demonstrate that a conflict affected his representation when the
trial court neglected to inquire into the potential conflict, but should have.
The Court questioned the assumption that all ineffective assistance of
counsel claims rooted in conflicts of interest should merely be examined for
an actual effect on counsel’s performance, rather than requiring a showing of
probable effect on the outcome of trial under Strickland.21 The Court noted
that the conflict in Cuyler—unlike the one it faced in Mickens—involved the
simultaneous representation of multiple criminal defendants. The Court
noted that it was this active representation of conflicting interests that had


   15   Id. at 1272-73.
   16   535 U.S. 162 (2002).
   17   Id. at 164-65.
   18   Id. at 165.
   19   Id. at 164-65.
   20   Id. at 164.
   21   Id. at 173-75.


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                       United States v. Hale III, No. 201600015


necessitated a presumption of prejudice in Cuyler.22 This meant, according to
the Mickens majority, the concurrent representation of clients with opposing
interests. The applicability of Cuyler’s limited presumption of prejudice to
cases involving successive representation—and, presumably, other types of
conflicts–remained “an open question.”23
   2. Federal circuit courts
   Since Mickens, federal circuit courts of appeals have disagreed over the
applicability of Cuyler to conflict cases not involving concurrent
representation. The disagreement comes down to a question of how broadly
courts should apply the Cuyler holding as interpreted in the following
passage from Strickland:
         In Cuyler v. Sullivan . . . the Court held that prejudice is
         presumed when counsel is burdened by an actual conflict of
         interest. In those circumstances, counsel breaches the duty of
         loyalty, perhaps the most basic of counsel’s duties. Moreover, it
         is difficult to measure the precise effect on the defense of
         representation corrupted by conflicting interests. Given the
         obligation of counsel to avoid conflicts of interest and the
         ability of trial courts to make early inquiry in certain situations
         likely to give rise to conflicts, it is reasonable for the criminal
         justice system to maintain a fairly rigid rule of presumed
         prejudice for conflicts of interest. Even so, the rule is not quite
         the per se rule of prejudice that exists for the Sixth Amendment
         claims mentioned above. Prejudice is presumed only if the
         defendant demonstrates that counsel “actively represented
         conflicting interests” and that “an actual conflict of interest
         adversely affected his lawyer’s performance.”24
    On one hand, the rationale for Cuyler’s limited presumption of prejudice
endorsed here by Strickland seems straightforward: actual conflicts represent
breaches in the basic duty of loyalty owed an accused. And it is this breach of
the basic duty of loyalty that makes prejudice difficult to assess and justifies
Cuyler’s limited presumption of prejudice. In this reading, Cuyler’s specific
wording requiring that counsel “actively represented conflicting interests”
simply reflects the specific circumstances of that case, in which the conflict at
issue happened to be one of concurrent multiple representation. What really


   22   Id. at 175.
   23   Id. at 176.
   24  Strickland, 466 U.S. at 692 (quoting Cuyler, 446 U.S. at 348, 350) (internal
citation omitted).


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                        United States v. Hale III, No. 201600015


matters is that an actual conflict of interest adversely affected counsel’s
representation. But if one reads Cuyler’s use of the expression “actively
represented conflicting interests” as an otherwise unexpressed limitation on
Cuyler’s application to cases involving concurrent representation of clients
with conflicting interests, then cases affected by other kinds of conflicts are
left to be tested for prejudice under Strickland’s more stringent second prong.
    The Fifth25 and Eighth26 Circuits had declined to apply Cuyler to other
types of conflicts even before Mickens. In Beets v. Collins, the Fifth Circuit
Court of Appeals explained that conflicts between counsel’s own interests and
a client’s are “virtually limitless” and “range from wholly benign to
devastating.”27 The varied and sometimes vague nature of self-interest-based
conflicts and their close relationship with questions of lawyer effectiveness,
argued the Beets court, make these conflicts different from concurrent
representation cases and inappropriate for analysis under Cuyler.28 The Beets
court found that only in concurrent representation cases do we know that
counsel must have breached the fundamental duty of loyalty. Where counsel
actively represents multiple clients in the same matter with opposing
interests, “the source and consequences of the ethical problems are
straightforward: ‘counsel represents two clients with competing interests and
is torn between two duties. Counsel can properly turn in no direction. He
must fail one or do nothing and fail both.’”29
   Since Mickens, the First,30 Second,31 Third,32 Fourth,33 Seventh,34 Ninth,35
and Tenth Circuits36 have applied Cuyler—or a slightly modified version of



   25   65 F.3d 1258, 1270 (5th Cir. 1995).
   26   See Caban v. United States, 281 F.3d 778, 781-83 (8th Cir. 2002).
   27   Beets, 65 F.3d at 1271 (citations omitted).
   28   Id.
   29 Id. at 1270 (quoting Beets v. Collins, 986 F.2d 1478, 1492 (5th Cir. 1993)
(Higginbotham, J., concurring).
   30 See United States v. Segarra-Rivera, 473 F.3d 381, 385 (1st Cir. 2007)
(addressing conflict between attorney’s personal interest and client’s interests).
   31  See LoCascio v. United States, 395 F.3d 51, 56 (2nd Cir. 2005) (addressing
conflict between attorney’s personal interest and client’s interests).
   32 See Chester v. Comm’r of Pa. Dep't of Corr., 598 Fed. Appx. 94, 105,
unpublished op. (3d Cir. 2015) (per curiam) (addressing conflict between attorney’s
personal interest and client’s interests).
   33 See Rubin v. Gee, 292 F.3d 396, 406 (4th Cir. 2002) (addressing conflict

between attorney’s personal interest and client’s interests).


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                        United States v. Hale III, No. 201600015


it—to conflict cases not involving concurrent representation of conflicted
clients. Courts in these circuits continue to adhere to a more purposive
understanding of Cuyler’s holding as endorsed by Strickland: that conflicts
represent breaches to the basic duty of loyalty owed a defendant, and that
because it is difficult to measure the effect of conflicts on counsel’s
representation, a presumption of prejudice is reasonable where a conflict
adversely affects counsel’s performance.37
    The Sixth38 and Eleventh39 Circuits have cited the Mickens dicta in their
refusals to grant habeas relief to petitioners. But the precedential value of
these cases is doubtful. These cases were decisions in habeas petitions in
which the petitioner had to show that his conviction was “contrary to, or an
unreasonable application of, clearly established Federal law, as determined
by the Supreme Court[.]”40 Even if a court thought that Cuyler should be
applied to conflict cases generally, it must be admitted that there is no
Supreme Court decision holding that prejudice must be presumed where the
attorney’s asserted conflict of interest does not arise from concurrent multiple
representations. The absence of Supreme Court precedent alone was
sufficient reason to deny the petition in these cases.
   3. Military courts
   The Court of Appeals for the Armed Forces (CAAF) has called for a “case-
by-case” determination of whether a conflict is so inimical to effective
representation as to be inherently prejudicial, or whether a potentially
conflicted counsel’s representation should be reviewed for specific prejudice.41
And when military courts have examined a conflicted counsel’s
representation for prejudice, they have not settled on an approach.



   34 See United States v. Lafuente, 426 F.3d 894, 898 (7th Cir. 2005) (addressing
successive representation of potentially conflicted clients).
   35See Campbell v. Rice, 408 F.3d 1166, 1170 (9th Cir. 2005) (addressing conflict
between attorney’s personal interest and client’s interests).
   36 See United States v. Flood, 713 F.3d 1281, 1286 fn1 (10th Cir. 2013) (applying
Cuyler to third-party fee arrangement).
   37   Strickland, 466 U.S. at 692.
   38Smith v. Hofbauer, 312 F.3d 809, 813, 817-18 (6th Cir. 2002). But see Rugiero v.
United States, 330 F. Supp. 2d 900, 905 (E.D. Mich. 2004) (applying Cuyler to conflict
between attorney’s personal interest and client’s interests).
   39   See Schwab v. Crosby, 451 F.3d 1308 (11th Cir. 2006).
   40   See 28 U.S.C. § 2254(d)(1) (2012).
   41   United States v. Saintaude, 61 M.J. 175, 179-80 (C.A.A.F. 2005).


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                          United States v. Hale III, No. 201600015


    The CAAF has held that some conflicts—including conflicts between a
client’s interest and his attorney’s—can be so inherently prejudicial that
courts will not require a specific showing of actual prejudice. In United States
v. Cain, the CAAF held that a coercive homosexual relationship between a
defense counsel and an enlisted client accused of forcible sodomy presented so
great a conflict between the client and the personal interests of the attorney
that prejudice should be presumed.42
    The CAAF has applied Strickland to cases in which an appellant has
alleged conflicts of interest. In United States v. Saintaude, the CAAF applied
the second prong of the Strickland test to determine that various “potential
conflicts” between the appellant and his civilian and military counsel did not
warrant reversal.43 In that case, the court found that none of the potential
conflicts had “developed into deficiencies so serious as to deprive him of a fair
trial, that is, a trial whose result was reliable.”44 Citing Cuyler, Mickens, and
Cain, the CAAF stated that outside of the multiple representation context,
most cases will require specifically tailored analysis in which the appellant
must demonstrate prejudice under Strickland.45
    But our superior court has also applied Cuyler’s adverse-effect-on-
counsel’s-performance test, both before and after the Supreme Court’s
cautionary dicta in Mickens. In United States v. Babbitt, a married civilian
defense counsel had sexual intercourse with the appellant the evening before
the last day of her trial.46 On appeal, the appellant argued that the sexual
relationship created a conflict of interest between her and her counsel, and
that prejudice should be presumed. The Court of Military Appeals declined to
conclusively presume prejudice, instead applying the Cuyler standard to a
case not involving either concurrent or serial representation of multiple
clients.47
   Since Mickens, the CAAF has applied Cuyler to a conflict case resembling
our own. In United States v. Lee, the CAAF considered the case of an officer
whose defense counsel assumed duties as a trial counsel during the course of
the appellant’s representation at trial.48 The majority in Lee determined

   42   59 M.J. 285, 295 (C.A.A.F. 2004).
   43   61 M.J. at 180.
   44   Id. (citation omitted)
   45   Id.
   46   26 M.J. 157 (C.M.A. 1988).
   47 Id. at 159. See also United States v. Smith, 36 M.J. 455, 457 (C.M.A. 1993)
(applying Cuyler test to conflict involving successive representation).
   48   66 M.J. 387 (C.A.A.F. 2008).


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                           United States v. Hale III, No. 201600015


further factfinding was required and ordered a DuBay hearing.49 Implicitly
endorsing the Cuyler standard, the court ordered the DuBay judge to
determine, among other things, “[w]hat effects on the representation can the
accused point to resulting from any claimed conflicts of interest on the part of
his detailed defense counsel.”50
    Although the Lee court divided 3-2 over whether to return the case for
further factfinding, both the majority and the dissent agreed that the Cuyler
standard was the relevant standard for determining whether the conflict was
prejudicial.51 In dissent, Judge Ryan, joined by Judge Stucky, expressly
endorsed the use of the Cuyler test for prejudice in conflict cases where the
conflict of interest does not rise to structural error:
         The Supreme Court explicitly provided for this type of case,
         holding that prejudice may be presumed, when defendant’s
         counsel is burdened by an actual conflict of interest. . . . 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.52
   Since Lee’s counsel had not shown that the conflict had affected his
counsel’s performance, it was not necessary, according to the dissent, to
resolve whether his counsel was actively representing conflicting interests.53
    We do not view the conflict in Lee as one presenting the same problems
associated with concurrent representation of conflicted clients. Lee’s counsel
transferred to the prosecution office during the course of Lee’s representation,
and his prosecutorial duties were supervised by the trial counsel in Lee’s
case.54 Unlike cases in which counsel simultaneously represent co-accuseds
with conflicting interests, it would have been possible for the counsel in Lee to
zealously represent that appellant and still zealously represent the
government while working for opposing counsel as trial counsel. The conflict
in Lee was, like the conflict here, between the client and the defense counsel’s




   49   United States v. DuBay, 37 C.M.R. 411 (C.M.A. 1967).
   50   Lee, 66 M.J. at 390.
   51   Id. at 390, 392.
   52 Id. at 392 (Ryan, J. dissenting) (citations and internal quotation marks
omitted) (emphasis in the original).
   53   Id.
   54   Id. at 388.


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                       United States v. Hale III, No. 201600015


personal interests. The CAAF’s use of the Cuyler test in that circumstance is
significant.
    Since Mickens, service courts have also used Cuyler in conflict cases not
involving concurrent representation. In United States v. Akbar, the Army
Court of Criminal Appeals adopted Cuyler’s framework in the context of
examining an alleged conflict between counsel’s interests and an appellant’s
(the appellant’s counsel was a professional acquaintance of one of the
appellant’s victims).55 We too have used Cuyler in cases not involving
simultaneous representation of clients with conflicting interests. In United
States v. Diaz, we addressed the successive representation of two clients, the
first of which might have been a sentencing witness against the second had
she been called by the government.56 We found that prejudice would be
assumed only if the appellant could show that counsel actively represented
conflicting interests and that a conflict of interest adversely affected counsel’s
performance.57
    Military practice can present distinct conflicts of interest. Apart from the
military precedent discussed above, there is another line of cases dealing
specifically with conflicts of interest that arise from senior-subordinate
relationships between trial counsel and defense counsel. Both before and
after Strickland, military courts have closely scrutinized conflicts arising
from military position or assignment and their potential effect on counsel
effectiveness.
    In United States v. Hubbard, the Court of Military Appeals declined to
find that a senior-subordinate relationship between trial and defense counsel
was prejudicial per se, but held that it “should be closely scrutinized for
possible prejudice to an accused[.]”58 Eleven years after Hubbard, the
American Bar Association’s Standing Committee on Ethics and Professional
Responsibility informally opined that, absent full disclosure of the conflict to
the client, “a military lawyer . . . should never voluntarily represent a client if
the lawyer has to oppose an officer who prepares efficiency reports on the
lawyer or otherwise has command authority over the lawyer.”59 Military

   55  United States v. Akbar, No. 20050514, 2012 CCA LEXIS 247, at *38-39, mem.
op. (A. Ct.Crim. App. 13 Jul 2012).
   5661 M.J. 594, 602 (N-M. Ct. Crim. App. 2005), aff’d, 64 M.J. 176 (C.A.A.F. 2006)
(summary disposition); see also United States v. Diaz, No. 200200374, 2004 CCA
LEXIS 127, at *13 unpublished op. (N-M. Ct. Crim. App. 2004).
   57   Id. at 602.
   58   43 C.M.R. 322, 324 (C.M.A. 1971).
   59American Bar Association’s Standing Committee on Ethics and Professional
Responsibility, Informal Opinion No. 1474 (1982).


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                           United States v. Hale III, No. 201600015


courts have adopted this position and accept that a senior-subordinate
relationship between trial and defense counsel presents a conflict of interest,
albeit one that the accused may waive.60
   In United States v. Whidbee, a case decided five years after Strickland,
the Coast Guard Court of Military Review addressed a conflict arising from a
senior-subordinate relationship between trial and defense counsel.61 That
court took a dim view of these conflicts: “the relationship here between
defense counsel and trial counsel is such that it always presents an actual
conflict of interest that is inherent and irrefutable.”62 Absent a waiver, that
court viewed prejudice as “conclusively presumed.”63 Since the government
could not meet its “very heavy burden” to establish that the conflict had been
waived, the Coast Guard court set the findings aside.64
    Of course, this line of cases is not directly applicable to the relationships
between counsel in this case. Capt KC was not herself serving as a trial
counsel, nor was she a subordinate of one. Capt KC’s conflicts were
attenuated by the fact that her position as a prosecutor was anticipated
rather than contemporaneous, and it was her spouse, not she personally, who
worked for the lead trial counsel. But the attenuated conflicts that she
faced—and failed to disclose to her client or the military judge—were
operationally similar to the ones at issue in Whidbee. Although we do not rely
on Whidbee and will not apply its conclusive presumption of prejudice, this
line of cases informs our approach. We are mindful that conflicts arising from
military command relationships can be highly prejudicial to the loyalty—and
the appearance of loyalty—that is owed an accused.
   We agree with the majority of the circuit courts of appeals, and will
evaluate this case under Cuyler. We hold that where an appellant
demonstrates that his counsel labored under an actual conflict of interest,
and where the conflict had an adverse effect on the counsel’s performance,
the appellant is entitled to a presumption of prejudice.
   A potential conflict of interest does not entitle an appellant to Cuyler’s
limited presumption of prejudice and, where no actual conflict exists,
counsel’s performance will be evaluated under Strickland’s familiar two-
pronged test.65 A potential conflict exists if the interests of an accused may

   60   See e.g. United States v. Nicholson, 15 M.J. 436 (C.M.A. 1983).
   61   28 M.J. 823 (C.G.C.M.R. 1989).
   62   Id. at 826.
   63   Id. at 830.
   64   Id. at 827, 830.
   65   See Blake v. United States, 723 F.3d 870, 880 (7th Cir. 2013).


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                        United States v. Hale III, No. 201600015


place the defense counsel under inconsistent duties at some time in the
future.66 We think this approach is the one that best reconciles the CAAF’s
approaches in both United States v. Saintaude and United States v. Lee. In
Saintaude, the defense counsels’ “potential conflicts” (the CAAF’s term)
consisted primarily of unsubstantiated accusations against counsel and
allegations that one civilian counsel’s friendship with a prior civilian defense
counsel made him reluctant to press the prior counsel for essential case
files.67 These were purely speculative allegations of conflict and warranted no
presumption of prejudice. An actual conflict is a necessary but insufficient
prerequisite to benefit from Cuyler’s limited presumption. A conflict of
interest is actual, as opposed to potential, when, during the course of the
representation, “the attorney’s and defendant’s interests diverge with respect
to a material factual or legal issue or to a course of action.”68
    In addition to an actual conflict, an appellant must also show that the
conflict of interest adversely affected counsel’s performance.69 This means
that an “actual lapse in representation” resulted from the conflict.70 An
adverse effect “cannot be presumed from the mere existence of a conflict of
interest.”71 To prove a lapse in representation, an appellant must show “that
some plausible alternative defense strategy or tactic might have been
pursued,” but was not, and that “the alternative defense was inherently in
conflict with or not undertaken due to the attorney’s other loyalties or
interests.”72 If an appellant shows that a conflict of interest existed and that
it adversely affected counsel’s performance, Strickland counsels a “fairly rigid
rule of presumed prejudice” and the appellant need not demonstrate a
reasonable probability that, but for the attorney’s conflict, the trial’s outcome
would have been different.73
   We believe that the logic of Strickland’s carve-out for conflict cases
applies equally to all cases in which there is an actual conflict of interest: “[I]t


   66  Ventry v. United States, 539 F.3d 102, 111 (2nd Cir. 2008) (quoting United
States v. Klitt, 156 F.3d 150, 153 n.3 (2d Cir. 1998)).
   67   61 M.J. at 180-81.
   68 United States v. Perez, 325 F.3d 115, 125, (2d Cir. 2003) (citation and internal

quotation marks omitted).
   69   Mickens, 535 U.S. at 171.
   70   Winkler v. Keane, 7 F.3d 304, 309, (2d Cir. 1993) (quoting Cuyler, 446 U.S. at
336).
   71   Rubin, 292 F.3d at 401 (citation omitted).
   72   Winkler, 7 F.3d at 309 (citations and internal quotation marks omitted).
   73   Strickland, 466 U.S. at 692.


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                        United States v. Hale III, No. 201600015


is difficult to measure the precise effect on the defense” when representation
is “corrupted by conflicting interests.”74 And a conflict that adversely affects a
counsel’s performance “calls into question the reliability of the proceeding
and represents a breakdown in the adversarial process fundamental to our
system of justice.”75
    We have considered the position of the minority of circuits that decline to
apply Cuyler in these cases. We agree that the potential for conflict between
counsel and clients is limitless, and that the range of possible consequences is
broad. Simple disagreements about tactics and unsubstantiated accusations
of unethical conduct, such as those the CAAF faced in Saintaude, are
appropriately addressed under the Strickland standard. But by requiring an
actual conflict that adversely affected counsel’s representation, we can be
certain that we are reserving Cuyler’s limited presumption for only those
cases in which the duty of loyalty has actually been breached. And it is this
breach of the fundamental duty of loyalty—and its deleterious, hard-to-
quantify effect on the reliability of the proceeding—that is the rationale for
the presumption in the first place.
B. Application of Cuyler’s first prong: Was there an actual conflict of
interest?
    Having decided to evaluate this case under Cuyler, we first must
determine whether Capt KC had an actual conflict of interest with the
appellant. Under the professional responsibility rules applicable to the
appellant’s defense counsel, a conflict of interest exists when there is a
significant risk that the representation will be materially limited by that
attorney’s personal interests.76 This general guidance is supplemented by
further, more specific guidance: Attorneys may not represent an accused and
serve as a prosecutor at the same time.77 Also, trial counsel may not
prosecute cases where he or she is the defense counsel’s immediate superior
and participates in the evaluation of the defense counsel.78 Of course, Capt
KC was not herself a trial counsel, nor was she trial counsel’s subordinate.
And LtCol CT presumably did not have any say in her officer evaluations at
that time.


   74   Id.
   75   Rubin, 292 F.3d at 402.
   76  See Dep’t of the Navy, Judge Advocate General Instruction 5803.1E
[hereinafter JAGINST 5803.1E], Professional Conduct of Attorneys Practicing under
the Cognizance and Supervision of the Judge Advocate General (2015), Rule 1.7a.
   77   See Lee, 66 M.J. at 388.
   78   Nicholson, 15 M.J. 436.


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                      United States v. Hale III, No. 201600015


    As for the senior-subordinate relationship between LtCol CT and Capt
KC’s husband, we are not inclined to automatically impute Capt KC’s
husband’s disqualification to Capt KC.79 Likewise, we distinguish between
the forbidden conflict, in which a defense counsel reports to an opposing trial
counsel as a military superior, and Capt KC’s circumstance in which she
merely believed that she would be transferred the prosecution office at a later
time. We find no authority that requires us to find a conflict of interest based
solely on Capt KC’s anticipated duties or her marriage to Capt CC.
    But even if we find that any one of Capt KC’s circumstances did not call
for her automatic disqualification, this finding does not mean that her
representation of the appellant was free from actual conflict. Comment (4) to
JAGINST 5803.1E, Rule 1.7 informs our analysis here: “Even where there is
no direct adverseness, a conflict of interest exists if there is a significant risk
that a covered attorney’s ability to consider, recommend, or carry out an
appropriate course of action for the client will be materially limited as a
result of the covered attorney’s other responsibilities or interests.” In
considering whether such a risk exists, it is appropriate to evaluate the
cumulative effect of all of the facts that could create a conflict of interest.
    The potential conflict of interest lay in Capt KC’s personal circumstances.
She anticipated becoming a trial counsel in LtCol CT’s region shortly after
the trial. She was also married to a current trial counsel in the region, which
meant that LtCol CT was her husband’s RO. Capt KC would have been wise
to disclose these circumstances to the appellant and to the military judge.
These circumstances, however, did not have to result in an actual conflict as
that term is understood in the context of a Cuyler analysis, or at least not a
conflict that ran afoul of Cuyler’s second prong. Had everyone involved
appreciated the precarious nature of Capt KC’s situation and taken care to
allow her complete freedom of action as a defense counsel, perhaps her
representation would not have been adversely affected.
    Unfortunately, that is not what happened. Instead, as the case wore on,
the vulnerabilities in this arrangement were—perhaps unintentionally—
exploited, and her representation was compromised. The facts that
aggravated the potential conflicts and made them actual arose both before
and during the trial, and both on and off the record. Individually, some of the
facts we describe below would not be sufficiently troubling to make the
potential conflicts in this case actual conflicts. But considering them


   79 See JAGINST 5803.1E, Rule 1.8.c.(d); see also Model Rules of Prof’l Conduct R.
1.7 comment. (2012) (“The disqualification arising from a close family relationship is
personal and ordinarily is not imputed to members of firms with whom the lawyers
are associated.”).


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                         United States v. Hale III, No. 201600015


collectively, it is our judgment that the defense in this case was laboring
under an actual conflict of interest.
    First, LtCol CT made it clear that he took personal offense at trial defense
counsel’s advocacy, and that he did not like the way defense counsel were
trying the case. We expect that trial counsel do not normally take defense
counsel’s tactics personally. In this case, LtCol CT did, and sometimes for no
apparent reason.
    Trial counsel’s reaction to the appellant’s motion to suppress evidence is
one example. The defense filed a motion to suppress evidence of steroid use
found in the appellant’s gym bag by the Anchorage police. During the
argument on the motion, defense counsel expressed skepticism about the
testimony of two civilian law enforcement officers who testified for the
government. LtCol CT reacted sharply, telling the military judge that he
wanted to address “a concern the government is continuing to see from the
defense.”80 He complained that “[t]he defense has just impugned the integrity
of two officers, in particularly [sic] a detective . . . . Unprofessional. I am
floored that I had to hear this come out of the mouth of an officer of this
Court.”81
    The motion was an appropriate one to bring. And we find nothing
surprising or remarkable about the way Capt KC or Capt JS questioned
witnesses or argued the motion. Even if defense counsel “impugned the
integrity of two [civilian law enforcement] officers,”82 as LtCol CT accused
them of doing, there would be nothing remarkable about it. The testimony of
law enforcement officers is not presumed to be beyond challenge. Had defense
counsel been able to pursue normal defense strategies without facing
personal condemnation from trial counsel, the potential conflicts in this case
might have not developed into actual ones. But in the face of unremarkable
defense motions practice, LtCol CT expressed shock and personal offense.
   Trial counsel also became upset after defense counsel sought to impeach
SK with evidence of a prior conviction under MILITARY RULE OF EVIDENCE
609, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.). LtCol CT
made the following comment about trial defense counsel’s advocacy:
         I think that in response to our last discussion on the [MIL. R.
         EVID.] 609, I was visibly upset. Although it’s not reflected in
         the record, and there has only been one other time in this case
         where I had to listen to [Capt JS] impugn the integrity of a

   80   Id.
   81   Record at 332.
   82   Id.


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                          United States v. Hale III, No. 201600015


         witness, I am now sitting here and listening to stuff that I do
         believe to be gross. This is a pattern within the circuit that has
         happened in the past four weeks . . . .83
    During arguments, LtCol CT referred to some of Capt KC’s argument as
“absurd” and, more troublingly, “disgusting.” He stated to the members that
one of her theories of the case was an “affront” to him and the trial team. We
find that LtCol CT’s expressions of great personal offense at the defense’s
conduct of the trial—some of which involved standard defense challenges to
the government’s evidence—tended to aggravate the potential conflicts in this
case.
    There were other, off-the-record comments as well. According to a post-
trial affidavit signed by Capt KC’s husband, Capt CC, the subject of this case
came up during an off-site training event. At the event, LtCol CT mentioned
to a third person in Capt CC’s presence that he had a case against Capt CC’s
wife. LtCol CT said to Capt CC, “I am not going to stop holding that against
you,” or words to that effect.84 Capt CC replied that LtCol CT should not say
things like that. According to Capt CC, LtCol CT asked why not, and Capt
CC answered that it could result in LtCol CT’s being removed from the case.
LtCol CT responded by saying that it would only get him removed if Capt CC
told his wife (Capt KC) about it.
   Capt CC thought that LtCol CT was joking when he said these things.
But he “decided it was prudent to write the comment down to protect
[himself] in the event [LtCol CT] was not joking.”85 Capt CC recorded the
exchange on notebook paper and then transferred the writing to a word
processing file. That night, Capt CC told his wife about the conversation, and
expressed concern about whether LtCol CT should be his reviewing officer.
    There are other examples of off-the-record exchanges that tended to
aggravate the potential conflict. One occurred after a motion session while
counsel were still in the courtroom. LtCol CT told Capt KC, “If [you] were
[your] husband, I would punch you in the face right now.”86 Another time,
while discussing a defense discovery request, LtCol CT told Capt JS, “If you
were my peer, I would have told you to f*** off.”87



   83   Id. at 867.
   84 Third Staff Judge Advocate’s Addendum, Enclosure (1), Affidavit of Capt CC of
9 Oct 2015 at ¶6 (hereinafter Affidavit of Capt CC).
   85   Id.
   86   Record at 1787.
   87   Id. at 1788. See also id. at 1723.


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                          United States v. Hale III, No. 201600015


    LtCol CT later testified that, while he had “no doubt that [he] likely said”
things like “[d]on’t make me punch you in the throat” to defense counsel, such
statements would have been for purposes of “levity,” and not for the purpose
of intimidating defense counsel.88 It is plausible that this explains some of the
remarks. Judge advocates sometimes talk this way when litigating a case—
perhaps even when they are not especially angry.89 Capt KC also tried to be
dismissive about the things LtCol CT said, agreeing with the statement of
trial defense counsel during the post-trial Article 39(a) session that, “I mean,
there is rough and tumble in two places: One, the Marine Corps; and, two, in
criminal litigation.”90 She testified that she resolved to not let anything LtCol
CT said affect the decisions she made in the case. But there is no doubt that
LtCol CT became angry with defense counsel. He testified to that fact, and
the record makes it plain. And LtCol CT’s remark about holding Capt KC’s
representation of the appellant against Capt CC, which we ordinarily might
dismiss as obviously jocular, was concerning enough under the circumstances
that Capt KC’s husband wrote it down to preserve it.
   If any doubt remained about whether the potential conflict posed by Capt
KC’s circumstances ripened into an actual conflict, it is resolved by two off-
the-record exchanges: one between LtCol CT and Capt KC, and one between
Capt KC and her husband.
    Capt KC visited LtCol CT’s temporary office in Anchorage shortly before
trial to discuss the government’s exhibits and witnesses. She told LtCol CT
that she would be objecting to some of his evidence and requiring him to lay a
foundation for a photographic lineup of the appellant. LtCol CT thought this
was not an appropriate approach. In the context of this discussion, LtCol CT
told Capt KC, “Remember, you’re coming back to the government sometime,”
or words to that effect.91
   After the meeting, Capt KC told Capt JS and the defense’s highly
qualified expert (DHQE) about this exchange. According to the DHQE, she
and Capt JS insisted to Capt KC that she make LtCol CT’s remark about
“coming back to the government” the subject of a motion. The DHQE thought
that the military judge should know about the remark, and she told Capt KC
that LtCol CT should be disqualified from participation in the case.

   88   Id. at 1854.
    89 Cf. United States v. Smith, 27 M.J. 242, 252 (C.M.A. 1988) (“I know that young

judge advocate officers love witty exchanges, practical jokes, and a sense of the
macabre in their humor; and normally little if any significance should be given use of
terms like ‘hardcore’ to categorize a potential court member.”) (Cox, J., concurring).
   90   Record at 1788.
   91   Id. at 1793.


                                           19
                        United States v. Hale III, No. 201600015


    Although the defense did not file any motions based on LtCol CT’s
comments to defense counsel, they did move to dismiss the specifications
involving SK for prosecutorial misconduct during trial. The motion was
denied by the military judge, and the appellant does not challenge that ruling
now. But the facts surrounding the motion, and the way it was litigated,
figure prominently in the appellant’s allegations of both prosecutorial
misconduct and ineffective assistance of counsel.
    The motion was based on interactions between SK and the government’s
highly qualified expert (GHQE), a civilian attorney who advised the trial
counsel and, in this case, served as a liaison between the uniformed trial
counsel and SK. The government was unsure of SK’s continued cooperation in
this case, and the GHQE established a personal relationship with SK
calculated to encourage her continued participation. The GHQE, who was co-
located with trial counsel at Camp Pendleton, exchanged frequent text
messages with SK, sometimes about personal matters unrelated to the case.
SK came to trust the GHQE and came to view her as a friend rather than a
member of the prosecution team. The relationship between the GHQE and
SK was personal enough that SK asked the GHQE for help obtaining Social
Security payments, which the GHQE provided.
    At one point in the texts, SK indicated that she was going to tell her
relatives not to answer calls from unknown numbers so that they would not
end up speaking to a defense counsel. SK said this because she was upset
with the nature of the questions the defense team was asking potential
witnesses. The GHQE told SK that they were dealing with the issue in court.
Capt KC met with the prosecutors to complain about the texts. She thought
that the GHQE had a duty to tell SK not to “obstruct justice”92 by telling her
relatives to not answer their phones, and this complaint formed the basis of
Capt KC’s motion to dismiss for prosecutorial misconduct.
    At some point after the DHQE and co-counsel urged her to bring LtCol
CT’s “coming back to the government” comment to the attention of the court,
and after her meeting with the prosecution regarding the text messages, Capt
KC had a phone conversation with her husband. She told him that she was
considering raising prosecutorial misconduct against the GHQE and LtCol
CT. During this conversation, Capt CC told Capt KC that “if she raised the
issue I would probably have to ask that someone other than [LtCol CT] serve
as my RO.”93 Capt CC did not want to take this step. Capt CC stated in his
affidavit that he was in a “difficult position” because “bringing the issue up
would amount to saying that [LtCol CT] did not have the ability to rank me


   92   Id. at 867.
   93   Affidavit of Capt CC of 9 Oct 2015 at ¶ 9.


                                            20
                           United States v. Hale III, No. 201600015


appropriately based on the poor relationship between him and my wife.”94 In
other words, Capt KC’s husband, who was LtCol CT’s subordinate for
evaluation purposes, discussed with Capt KC the negative ramifications to
him of a motion Capt KC might have filed on the appellant’s behalf. This
circumstance weighs heavily in favor of finding an actual conflict of interest
between Capt KC and the appellant.
   Based on the totality of circumstances, we conclude that Capt KC’s
representation was affected by an actual conflict of interest.
C. Application of Cuyler’s second prong: Was counsel’s performance
adversely affected by the conflict of interest?
   Next we must determine if the conflict of interest adversely affected
counsel’s performance. We conclude that it did.
    Many of the facts necessary to reach this conclusion were developed in a
post-trial Article 39(a) session ordered by the convening authority. The
appellant hired civilian counsel for this session, and his two uniformed trial
defense counsel, the DHQE, and LtCol CT were among the witnesses. The
post-trial Article 39(a) session developed evidence on the conflict of interest,
but it did not produce an explicit finding of fact on this issue. The military
judge made one finding of fact during the post-trial 39(a) hearing— that
LtCol CT had in fact reminded Capt KC that she was coming back to be a
trial counsel. The military judge found all of the witnesses credible, with the
exception of Capt JS, whose testimony is not significant to our determination
here. We also note that at the time of the Article 39(a) session, Capt KC had
apparently still not revealed, and did not reveal at the hearing, that she and
her husband had discussed her consideration of a prosecutorial misconduct
motion against LtCol CT and the professional ramifications of such a motion
on her husband. That even this important fact was not disclosed at the post-
trial Article 39(a) session causes us to doubt the utility of further factfinding
in this case.95 In oral argument, both the appellant and the government
stated that further factfinding was unnecessary.
   The civilian defense counsel examined Capt KC about her interactions
with the government and how the collective actions of LtCol CT affected her
representation. Capt KC admitted that her meeting with LtCol CT in which
he mentioned her return to the government left her feeling “scrutinized,”96


    94   Id. at ¶ 10.
    95 Cf. Lee, 70 M.J. at 538 (“. . . [T]he reluctance of the various participants to lay

bare the facts . . . cause[s] us to wonder whether the whole truth can ever be
known.”).
    96   Record at 1794.


                                            21
                       United States v. Hale III, No. 201600015


and she believed that LtCol CT had “personally attacked” her and Capt JS in
his response to the prosecutorial misconduct motion and during the closing
arguments. When asked if the government’s conduct affected her
representation, Capt KC answered tepidly. She acknowledged that her co-
counsel and the DHQE thought that she had been “compromised,” but
responded, “I would like to say that it didn’t have an effect. . . . I am of the
position that I represented my client to the best of my ability.”97 Finally, Capt
KC admitted that she did not tell the appellant about LtCol CT’s off-the-
record comments to her, nor did she tell him that she could move to disqualify
LtCol CT.
    The record convinces us that Capt KC’s representation was adversely
affected by the conflict of interest. The conflicts presented in this case were
obviously significant and upsetting to Capt KC. After Capt KC moved to
dismiss the charges involving SK because of the GHQE’s text messages,
LtCol CT—her prospective RO and her husband’s current RO—accused the
defense of unethical conduct. LtCol CT called the possibility that defense
counsel might be asking potential witnesses about evidence governed by MIL.
R. EVID. 412 and 513 “gross and cruel.”98 All this caused Capt KC to audibly
sob at counsel table, and she was unable to continue.
     Capt KC made several decisions about the appellant’s representation
that were against her client’s interest, against the advice of the DHQE, and
consistent with a concern for her and her husband’s situation. The DHQE
testified that she and Capt JS had urged Capt KC to make LtCol CT’s
remark about “coming back to the government” the subject of a motion. She
told Capt KC that LtCol CT should be removed from the case. Capt KC
refused to raise the issue, and ultimately Capt JS acceded to this decision.
According to the DHQE, Capt KC’s reason was that filing such a motion
would be inconsistent with the way things were done in the Marine Corps,
and that it would cause problems.
    Capt KC did argue that the GHQE had committed prosecutorial
misconduct, as she had told her husband she might. But her husband told her
that he would probably have to ask for another RO if she made the motion,
and she declined to raise the issue of LtCol CT’s conduct. Even absent a
finding of prosecutorial misconduct, the facts may have warranted
disqualifying LtCol CT from further participation in the case, given the
nature of the comments and the circumstances of Capt KC’s representation.
If nothing else, Capt KC could have simply notified her client and the court of
the comment. But in spite of the fact that the DHQE and her co-counsel


   97   Id. at 1796.
   98   Id. at 870.


                                        22
                          United States v. Hale III, No. 201600015


urged her to tell the court, Capt KS refused to inform the military judge or
her client about the comment.
    The DHQE also testified that she and Capt JS urged Capt KC to object
during trial counsel’s closing argument, but that Capt KS did not. The
DHQE’s conclusion was Capt KC had not objected because she had been
intimidated by the trial counsel. Some of this argument was plainly
objectionable. For example, LtCol CT argued that evidence that the appellant
used steroids tended to show that he had a criminal disposition:
         Now, you may not think that the use of steroids is that
         dramatic, is that appalling; it should be. You do know that it is
         punishable under the Uniform Code of Military Justice, and
         you do know there is extensive evidence that supports a
         conviction on that charge.
         But think back to my earlier theme. I know there may have
         been many that you have heard. But my concern—the
         government’s belief, that man seated over there is someone
         who lives above the law. And this is one nugget of proof, that
         he does believe that he is above the law. He is above the laws
         and values that govern and guide us all, whether it be in
         society or whether we are in the United States Marine Corps.99
The argument is obviously erroneous, yet Capt KC did not object. The DHQE
and her co-counsel urged her to object several times during LtCol CT’s initial
closing argument. We conclude that a reason that Capt KC ignored the
DHQE’s and Capt JS’s prompts to object was her conflict of interest.
    One of Capt KC’s most important duties in this case was to disclose the
circumstances of her representation to her client and to the court. Once the
court was on notice of the possible conflict and other aggravating
circumstances, the military judge would have been able to conduct an inquiry
into the nature of the conflict and seek either a knowing and intelligent
waiver of the right to conflict-free counsel from the appellant100 or disqualify
Capt KC (or LtCol CT) from further participation in the case.101



   99   Id. at 1421-22.
   100 United States v. Lee, 66 M.J. at 388 (stating that an accused may waive this
right to conflict-free counsel, but this must be done voluntarily and with “sufficient
awareness of the relevant circumstances and likely consequences” as to be knowing
and intelligent) (citations and internal quotation marks omitted); but see Wheat v.
United States, 486 U.S. 153, 163 (1988) (holding that the judge must be allowed
substantial latitude in refusing to accept an defendant’s waiver of a conflict of
interest “not only in those rare cases where an actual conflict may be demonstrated


                                           23
                      United States v. Hale III, No. 201600015


    We find that she did not fulfill this duty, and that one of the reasons for
that failure was the conflict of interest itself. Capt KC decided to tell no one—
apparently including her co-counsel—about the phone call in which her
husband directly discussed the consequences to him personally if Capt KC
filed a particular motion in the appellant’s case. At this point the conflict of
interest stood in sharp relief. She had an obligation to disclose the phone call
to her client and the military judge. She did not disclose it, and the call
apparently remained undisclosed even through her testimony at the post-
trial Article 39(a) session. Since her failure to disclose the phone call
persisted even through the post-trial session, she did not testify about why
she decided not to reveal the phone call to co-counsel, the client, or the
military judge. But it is inescapable that had she disclosed the phone call, her
husband would have found himself in the same “difficult position” he sought
to avoid. We conclude this was a factor in Capt KC’s failure to disclose this
important information to the client and the court.
    The fact that the assistant defense counsel, Capt JS, was not conflicted
does not change the fact that the appellant’s representation was adversely
affected by the conflict of interest. Capt JS accepted the lead counsel’s
decision to not file a prosecutorial misconduct motion or to notify the court
about trial counsel’s statements. Nor is there any evidence that he informed
the appellant about these issues.102 For this reason, we find that the conflict
affected the performance of the defense team, not just Capt KC.
   We conclude that Capt KC had an actual conflict of interest in this case.
We further conclude that the conflict adversely affected the appellant’s
representation. We therefore require no further showing of prejudice to
determine that the findings and sentence should be set aside.
D. Analysis under Article 66, UCMJ
   Even if we were to conclude that Cuyler’s presumption of prejudice did not
apply to this case, or that the appellant could not adequately prove prejudice,
we would still set aside the findings in this case, because they should not be
approved. Article 66, UCMJ, states that a service court of criminal appeals
“may affirm only such findings of guilty, and the sentence or such part or


before trial, but in the more common cases where a potential for conflict exists which
may or may not burgeon into an actual conflict as the trial progresses”).
   101RULE FOR COURT-MARTIAL 505(d)(2)(B), MANUAL FOR COURTS-MARTIAL,
UNITED STATES (2012 ed.); United States v. Spriggs, 52 M.J. 235, 240 (C.A.A.F. 2000).
   102  Cf. Lee, 70 M.J. at 540 (concluding that defense team as a whole could not be
evaluated where conflicted counsel did not adequately inform co-counsel about the
extent of the conflict, and co-counsel did not remedy conflict through disclosure to
client and military judge).


                                         24
                          United States v. Hale III, No. 201600015


amount of the sentence, as it finds correct in law and fact and determines, on
the basis of the entire record, should be approved.”103 Our superior court has
described this duty as an “awesome, plenary, de novo power of review,”104 and
likened service courts to “the proverbial 800-pound gorilla when it comes to
their ability to protect an accused.”105 “A clearer carte blanche to do justice
would be difficult to express.”106
   But “[t]here are some places where even ‘the proverbial 800-pound gorilla’
is not free to roam,” and our authority under Article 66 is not without
limits.107 In United States v. Nerad, the CAAF set the boundaries of our
authority to “do justice” under Article 66.108 We are not authorized to grant
clemency109 or set aside findings or sentences on equitable grounds.110 We
may not disapprove findings because we disagree with Congress’
determination that certain conduct should be criminalized.111 But Article 66
does grant us authority to determine whether we should approve a finding or
sentence even when application of a legal doctrine such as waiver or harmless
error would normally preclude action.112
    This brings us to our published case United States v. Lee, a case similar in
some ways to this one and decided shortly after Nerad.113 We have already
discussed the CAAF’s earlier opinion in that case, in which the detailed
defense counsel began performing trial counsel duties during the course of his
representation of the appellant. The CAAF ordered a DuBay hearing and
directed that we conduct a new review under Article 66. Our decision in Lee
was the result of that review.
   Much as we have done here, in Lee we reviewed the approaches courts
have used in conflict cases. We did not need to decide whether Cuyler or


   103   10 U.S.C. § 866(c).
   104   United States v. Cole, 31 M.J. 270, 272 (C.M.A. 1990).
   105   United States v. Parker, 36 M.J. 269, 271 (C.M.A. 1993).
   106   United States v. Claxton, 32 M.J. 159, 162 (C.M.A. 1991) (citations omitted).
   107   Parker, 36 M.J. at 273 (Wiss, J., concurring) (emphasis in the original).
   108 Nerad, 69 M.J. at 146 (quoting United States v. Boone, 49 M.J. 187, 192
(C.A.A.F. 1998)).
   109   Boone, 49 M.J. at 192.
   110   United States v. Quiroz, 55 M.J. 334, 338 (C.A.A.F. 2001).
   111   Nerad, 69 M.J. at 146.
   112   Id. at 146-47.
   113   70 M.J. 535.


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Strickland applied to ineffective assistance claims involving conflicts of
interest. We found that after the DuBay hearing, that appellant could not
meet his burden under either standard. Lee was unable to show that the
conflict affected his counsel’s performance (Cuyler) or that there was a
reasonable probability that the error affected the outcome of the proceeding
(Strickland). Therefore, we found that under either test, we would be obliged
to affirm the findings and sentence under Article 59, UCMJ.114 But we did not
end our analysis there.
    Although we found that the appellant could not show that his counsel’s
conflict adversely affected his representation, we determined that the
findings in that case should not be approved. We noted the difficulties the
hearing officer had in ascertaining from the counsel involved in the case what
the relevant facts were. Ultimately, we considered the command
relationships between counsel and the potential for conflict they introduced.
We found that “the system of identifying and resolving professional conflicts
of interest failed the appellant” in that case.115 We found that his counsel
“were laboring under a professional disability that [the appellant] did not
fully understand; it may be that his counsel themselves did not fully
understand the disability.”116 A troubling result of this failure was that no
counsel brought the issue of potential conflicts to the attention of the military
judge.117 Lee therefore “did not benefit from the sober and detached
perspective of the military judge whom our system empowers to hear and
resolve professional conflicts[.]”118 Finally, we considered the effect the facts
of that case would have on a member of the public’s confidence in the
proceeding and concluded that the findings should not be approved.119
    The conflict in the appellant’s case, although theoretically more
attenuated than the one in Lee, is more aggravated. There was no indication
in Lee that either the defense counsel or the trial counsel felt any actual
conflict concerning their roles. Most counsel in courts-martial do not take
disagreements arising during litigation personally. The conflict in Lee was
essentially a matter of malum prohibitum; it was a conflict because the rules
say it was. In reality, the counsel in Lee may well have felt no hesitation
about zealously advocating for his client’s interests.


   114   Lee, 70 M.J. at 539.
   115   Id. at 542.
   116   Id.
   117   Id. at 537-38.
   118   Id. at 542.
   119   Id.


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                         United States v. Hale III, No. 201600015


    In this case, an actual conflict is visible. It manifested in decisions Capt
KC made not to pursue a prosecutorial misconduct motion against LtCol CT
or to object to his closing argument, despite her co-counsel’s urging. It was
apparent when Capt KC wept at counsel table. It was perhaps most
prominent in Capt KC’s repeated efforts to minimize or ignore it. When the
DHQE told her that she should ask to have LtCol CT removed from the case,
Capt KC declined, telling them that she would instead make “absolutely
certain” that trial counsel’s statement did not affect her.120 She surely was
aware of it when her husband talked to her about the consequences to him if
she decided to raise a motion in the case.
    As in Lee, the counsel in this case failed to disclose the conflict to the
appellant. This appellant was actively involved in selecting his defense team.
He excused one detailed counsel, kept the other, and requested an individual
military counsel. After learning about the issues with his representation
during trial, he hired a civilian counsel for the post-trial Article 39(a) session.
He had a right to know about his attorney’s conflicts, and to weigh that
information as he evaluated his counsel’s decision making and performance.
The appellant, like the appellant in Lee, also had a right to “the sober and
detached perspective of the military judge whom our system empowers to
hear and resolve professional conflicts.”121 The appellant did not receive this;
his lead counsel’s reluctance to introduce the issue disinclined her to inform
him and the military judge.
    As was the case in Lee, we cannot find that the performance of un-
conflicted counsel cured the defects in representation.122 The post-trial Article
39(a) session reveals that the appellant’s co-counsel ultimately acceded to
Capt KC’s determinations about strategies during the trial. We note that
with respect to the un-objected-to argument, Capt JS did insert himself and
object to portions of the argument after the argument was over. By that time,
however, these efforts could not be particularly effective, and there seem to
have been no other efforts from any counsel on either side to inform the court
of the conflicts.
    In sum, this record presents a disturbing picture. A Marine was convicted
of serious offenses and sentenced to 26 years’ confinement. His lead counsel
opposed a more senior trial team led by the regional trial counsel who was
her husband’s reviewing officer; she herself anticipated becoming a trial
counsel in the region. Rather than inform her client and the military judge,


   120   Record at 1771-72; See also id. at 1732.
   121   Lee, 70 M.J. at 542.
   122   Cf. Boone, 42 M.J. at 313.


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                     United States v. Hale III, No. 201600015


the lead counsel kept this information to herself. Having committed to this
vulnerable arrangement, the defense team was personally and professionally
assailed by trial counsel—both on the record and off, and sometimes for
utterly unremarkable defense advocacy. When his counsel broke down on the
record at counsel table and was unable to continue, the appellant did not
know why the acrimony between his counsel and the government might be so
troubling to her. When his lead counsel resisted co-counsel’s and the DHQE’s
urges to object to argument, he did not know all of the potential reasons for
the refusal. He did not know lead counsel was resisting co-counsel’s and the
DHQE’s insistence that she bring a motion or at least alert the court to trial
counsel’s statement about her coming back to the government. Even if he
had, he would not have known why such a statement might be so significant.
And he did not know that his lead counsel was talking about a potential
motion with her trial counsel husband, and that her husband discussed the
consequences to him if she brought the motion. This fact was not even
disclosed at the post-trial 39(a) session at which the issue of conflicts was
addressed.
   The sepsis of undisclosed conflict in this case infects much of the record.
Even the post-trial Article 39(a) session did not convincingly diagnose the full
extent of the conflict or its prejudice. A member of the public fully informed of
the facts of this appellant’s representation would not have faith in the process
that led to these convictions. It is our judgment, based on the entire record,
that the findings and the sentence in this court-martial should not be
approved.
                               III. CONCLUSION
   The findings and sentence are set aside. A rehearing is authorized.
   Chief Judge GLASER-ALLEN and Senior Judge MARKS concur.
                                        For the Court




                                        R.H. TROIDL
                                        Clerk of Court




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