                         UNITED STATES, Appellee

                                         v.

                   Darnyell R. RHOADES, Specialist
                         U.S. Army, Appellant

                                  No. 07-0173
                         Crim. App. No. 20040109

       United States Court of Appeals for the Armed Forces

                         Argued October 17, 2007

                         Decided January 9, 2008


EFFRON, C.J., delivered the opinion of the Court, in which
BAKER, ERDMANN, STUCKY, and RYAN, JJ., joined.



                                     Counsel

For Appellant: Major Sean F. Mangan (argued); Colonel
Christopher J. O’Brien and Lieutenant Colonel Steven C. Henricks
(on brief); Major Tyesha E. Lowery and Major Fansu Ku.


For Appellee: Captain Jaired D. Stallard (argued); Colonel John
W. Miller II, Major Elizabeth G. Marotta, and Captain Michael C.
Friess (on brief).


Military Judge:    Mark P. Sposato




            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Rhoades, No. 07-0173/AR


    Chief Judge EFFRON delivered the opinion of the Court.

    The present appeal concerns a general court-martial convened

at Fort Huachuca, Arizona.   The court-martial, composed of

officer and enlisted members, convicted Appellant, contrary to

his pleas, of three specifications of willful disobedience of a

superior commissioned officer, in violation of Article 90,

Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 890 (2000).

The sentence adjudged by the court-martial included a bad-

conduct discharge, confinement for one year, and reduction to

the lowest enlisted grade.   The convening authority approved

that portion of the sentence that provided for the bad-conduct

discharge, reduction to the lowest enlisted grade, and

confinement for eleven months.   The United States Army Court of

Criminal Appeals affirmed.   United States v. Rhoades, No. ARMY

20040109 (A. Ct. Crim. App. Nov. 16, 2006) (unpublished).

     On Appellant’s petition, we granted review of the following

issue:

     DID THE MILITARY JUDGE, IN GRANTING THE GOVERNMENT’S MOTION
     TO DISQUALIFY APPELLANT’S CIVILIAN COUNSEL ON THE BASIS OF
     AN ALLEGED VIOLATION OF THE ETHICS IN GOVERNMENT ACT (18
     U.S.C. [§] 207(a)(2)), DENY THE APPELLANT HIS SIXTH
     AMENDMENT RIGHT TO CIVILIAN COUNSEL OF HIS CHOICE?

     For the reasons set forth below, we conclude that the

decision by the military judge to disqualify Appellant’s

civilian defense counsel did not violate Appellant’s right to

counsel of choice under the Sixth Amendment.


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United States v. Rhoades, No. 07-0173/AR


                            I.   BACKGROUND

     Appellant, who faced a court-martial at Fort Huachuca,

retained Mr. R to serve as civilian defense counsel.

Immediately prior to entering private practice, Mr. R served as

an active-duty judge advocate at Fort Huachuca, including duty

as the Chief of Military Justice.      In that position, Mr. R

supervised junior trial counsel and provided advice to military

commanders and agents of the Army’s Criminal Investigation

Division (CID).

     A month after his release from active duty, Mr. R entered a

special appearance on behalf of Appellant.      The Government moved

to disqualify Mr. R as counsel, focusing primarily on matters

concerning the CID investigation of Appellant during the period

in which Mr. R had served as a judge advocate.      The military

judge granted the motion.

     The granted issue raises the question of whether the

particular circumstances of Mr. R’s prior federal government

service, as set forth in section II, infra, provided a

sufficient basis for the military judge to disqualify Mr. R from

serving as Appellant’s defense counsel.

          A.   Selection and Disqualification of Counsel

     The accused in a criminal proceeding has the right to “the

Assistance of Counsel for his defence.”       U.S. Const. amend. VI.

Under the UCMJ, an accused has the right to representation by


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United States v. Rhoades, No. 07-0173/AR


military counsel provided at no expense to the accused.    Article

38(b)(3), UCMJ, 10 U.S.C. § 838(b)(3) (2000).   The accused may

be represented by civilian counsel.   See Article 38(b)(2),

(b)(4), UCMJ.

     The right to counsel of choice under the Sixth Amendment,

as well as under the UCMJ, is not absolute.   Wheat v. United

States, 486 U.S. 153, 159 (1988); United States v. Beckley, 55

M.J. 15, 23-24 (C.A.A.F. 2001).   The “‘need for fair, efficient,

and orderly administration of justice’” may outweigh the

interest of the accused in being represented by counsel of

choice.   United States v. Campbell, 491 F.3d 1306, 1310 (11th

Cir. 2007) (quoting United States v. Ross, 33 F.3d 1507, 1523

(11th Cir. 1994)); see also United States v. MacCulloch, 40 M.J.

236, 238-39 (C.M.A. 1994).   For example, disqualification of a

defendant’s chosen counsel due to a “previous or ongoing

relationship with an opposing party, even when the opposing

party is the Government,” does not violate the Sixth Amendment.

Wheat, 486 U.S. at 159.

     In the military justice system, a person serving as

civilian counsel must be a “member of the bar of a Federal court

or of the bar of the highest court of a State.”   Rule for

Courts-Martial (R.C.M.) 502(d)(3)(A).   Alternatively, a person

can serve as defense counsel if otherwise authorized to practice

law by a recognized licensing authority and determined to be


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United States v. Rhoades, No. 07-0173/AR


qualified by the military judge.       R.C.M. 502(d)(3)(B).   Under

R.C.M. 502(d)(4), a person may not serve as defense counsel if

the person is or has been the accuser, an investigating officer,

a military judge, or a court-martial member, subject to express

waiver by the accused.   In addition, “[n]o person who has acted

as counsel for a party may serve as counsel for an opposing

party in the same case.”    Id.; see Article 27(a)(2), UCMJ, 10

U.S.C. § 827(a)(2) (2000).   The disqualifications listed in

R.C.M. 502(d)(4) are not exclusive, and counsel may be

disqualified based upon otherwise applicable standards of

professional responsibility.    See Beckley, 55 M.J. at 23-24; cf.

Wheat, 486 U.S. at 160 (“Federal courts have an independent

interest in ensuring that criminal trials are conducted within

the ethical standards of the profession and that legal

proceedings appear fair to all who observe them.”).

     At the outset of the trial, defense counsel must advise the

court as to whether “counsel has acted in any matter which might

tend to disqualify the counsel.”       R.C.M. 901(d)(2).   Under

R.C.M. 901(d)(3), “[i]f it appears that any counsel may be

disqualified, the military judge shall decide the matter and

take appropriate action.”

     The military judge must rule on a disqualification motion

prior to trial on the merits.   Because it may be difficult at

that stage to assess with precision whether, or to what extent,


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United States v. Rhoades, No. 07-0173/AR


the grounds for disqualification could affect the trial, the

military judge is afforded broad discretion in ruling on

disqualification motions.   See Wheat, 486 U.S. at 162-63; United

States v. Sparks, 29 M.J. 52, 58-59 (C.M.A. 1989).    Even when an

accused is willing to waive a disqualification, the military

judge has substantial latitude in deciding whether to accept the

waiver.   Sparks, 29 M.J. at 58-59.   The Supreme Court has held

that courts “must recognize a presumption in favor of [an

accused’s] counsel of choice, but that presumption may be

overcome not only by a demonstration of actual conflict but by a

showing of a serious potential for conflict.”   Wheat, 486 U.S.

at 164.

    B.    Disqualification Based Upon Prior Government Service

     In addition to the statutory and professional standards of

responsibility that apply expressly to attorneys, federal law

establishes limitations on representation that apply to

government personnel generally, including members of the armed

forces.   These limitations, including post-government employment

restrictions, address situations in which Congress has

identified the potential for actual or apparent conflicts of

interest.   See S. Rep. No. 95-170, at 32 (1977), reprinted in

1978 U.S.C.C.A.N. 4216, 4248.

     Statutory post-government employment restrictions vary

considerably, depending on the nature of the issue, the level of


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United States v. Rhoades, No. 07-0173/AR


the responsibility exercised during the person’s government

service, and the specific nature of the person’s involvement on

a given issue.   See, e.g., 18 U.S.C. § 207(b) (2000) (one-year

post-government employment restriction on persons who

participated personally and substantially in certain trade or

treaty negotiations); § 207(c) (one-year post-government

employment restriction on certain agency communications by

designated senior executive branch personnel).

     All executive branch officials, regardless of grade, are

subject to the restrictions in 18 U.S.C. § 207(a)(1), a criminal

statute, entitled “Permanent restrictions on representation on

particular matters.”   Section 207(a)(1) prohibits a variety of

post-government employment activities, including making an

appearance before a court-martial, “in connection with a

particular matter . . . in which the person participated

personally and substantially” as a government official and

“which involved a specific party or specific parties at the time

of such participation.”   18 U.S.C. § 207(a)(1).

     The present case involves 18 U.S.C. § 207(a)(2), entitled

“Two-year restrictions concerning particular matters under

official responsibility.”   Section 207(a)(2) makes it a crime to

engage in certain post-government employment activities,

including an appearance before a court-martial, “in connection

with a particular matter” which the person “knows or reasonably


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United States v. Rhoades, No. 07-0173/AR


should know was actually pending under his or her official

responsibility . . . within a period of 1 year before the

termination of his or her [government] service” and “which

involved a specific party or specific parties at the time it was

so pending.”   18 U.S.C. § 207(a)(2)(B)-(C).

     The term “official responsibility” means “the direct

administrative or operating authority, whether intermediate or

final, and either exercisable alone or with others, and either

personally or through subordinates, to approve, disapprove, or

otherwise direct Government action.”   18 U.S.C. § 202(b) (2000).

According to the implementing regulations issued by the Office

of Government Ethics, the scope of an employee’s official

responsibility “is determined by those areas assigned by

statute, regulation, Executive Order, job description or

delegation of authority.”   5 C.F.R. § 2637.202(b)(2) (2007).

Under the regulations, a matter is “actually pending” once it is

“referred to or under consideration by persons within the

employee’s area of responsibility, not that it merely could have

been.”   5 C.F.R. § 2637.202(c).



         II.   THE MILITARY JUDGE’S DECISION TO DISQUALIFY
                 APPELLANT’S CIVILIAN DEFENSE COUNSEL

     At trial, the prosecution moved to disqualify Mr. R from

serving as Appellant’s civilian defense counsel on the grounds



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United States v. Rhoades, No. 07-0173/AR


that his participation would fall within the two-year

restriction of 18 U.S.C. § 207(a)(2).   The prosecution contended

that the court-martial concerned a “particular matter” under the

statute that was “actually pending” under Mr. R’s official

responsibility during the one-year period prior to the

termination of his military service.    The prosecution expressly

stated that for purposes of the motion, the Government did not

assert that Mr. R had participated “personally and

substantially” in the matter at issue in violation of the

permanent ban on representation under 18 U.S.C. § 207(a)(1).

     In support of the motion, the prosecution submitted various

documents, including an affidavit from the staff judge advocate

at Fort Huachuca detailing then-Captain R’s duties as Chief of

Military Justice, an affidavit from a CID agent describing

interactions between CID agents and then-Captain R, and an

affidavit from the Ethics Counselor at Fort Huachuca describing

his review of Mr. R’s post-government employment situation in

connection with the current case.

     Mr. R entered a special appearance to contest the

Government’s disqualification motion.   He filed a response to

the motion and submitted an affidavit, describing his

responsibilities as Chief of Military Justice and his

involvement in the present case prior to the termination of his

military service.   He also submitted a document signed by


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United States v. Rhoades, No. 07-0173/AR

Appellant entitled “Waiver of Conflict of Interest” in which

Appellant requested representation by Mr. R and waived any

conflict.

     The military judge conducted a pretrial session under

Article 39(a), UCMJ, 10 U.S.C. § 839(a) (2000), in which both

parties presented their views on the disqualification motion.

The military judge granted the motion and entered detailed

written findings of fact and conclusions of law.

     In his findings of fact, the military judge found that Mr.

R’s job responsibilities as Chief of Military Justice included

supervising and training junior trial counsel, as well as

advising CID agents and military commanders on military justice

matters.    In addition, the military judge found that the Fort

Huachuca CID office began investigating Appellant in April 2003

for numerous offenses, including larceny of government property,

an offense later referred against Appellant.

     The military judge found that on June 13, 2003, a CID agent

sent a status report on the investigation to Appellant’s company

commander.   Two days later, the company commander forwarded this

report to Mr. R and the trial counsel responsible for

Appellant’s company.   In this e-mail, the company commander

wrote that he was seeking “advise [sic] on [Appellant’s] case.”

Mr. R then e-mailed the CID status report to the judge advocate

who was set to take over the Chief of Military Justice position


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United States v. Rhoades, No. 07-0173/AR

on July 1, 2003.   Mr. R advised the incoming Chief of Military

Justice to review the attached status report, and further

stated:   “Note the confession.   Advise you to test the quality

of the confession [before] making a recommendation.”    The

military judge found that Mr. R’s message was directed

principally at the incoming chief but also was sent to

Appellant’s company commander and two trial counsel in the

Military Justice Division.   Two weeks later, while Mr. R was on

terminal leave, a CID agent investigating additional allegations

against Appellant contacted Mr. R to discuss whether a

kidnapping charge could be brought against Appellant.    The

military judge found that during this conversation, Mr. R

learned the general facts of the case and advised the agent on

the elements of kidnapping, an offense later referred against

Appellant.

     The military judge concluded as a matter of law that 18

U.S.C. § 207(a)(2) prohibited Mr. R from representing Appellant

in the present case.   The military judge noted Mr. R’s authority

as Chief of Military Justice, concluding that Mr. R was

performing his assigned responsibilities when he advised his

designated successor regarding Appellant’s confession and

discussed the elements of kidnapping with a CID agent.    In that

context, the military judge found that Mr. R possessed official

responsibility over the Military Justice Division during CID’s


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United States v. Rhoades, No. 07-0173/AR

active investigation of Appellant.    The military judge also

observed that the Government had a substantial interest in

prohibiting conduct that could interfere with prosecutorial

discretion.   In addition, the military judge concluded that

disqualifying Mr. R would not impermissibly infringe Appellant’s

Sixth Amendment right to counsel of choice.



                         III.   DISCUSSION

     We review a military judge’s decision on a motion to

disqualify counsel for an abuse of discretion.    United States v.

Strother, 60 M.J. 476, 478 (C.A.A.F. 2005).    The military

judge’s ruling will be overturned only if the findings of fact

are clearly erroneous or the decision is influenced by an

erroneous interpretation of the law.   United States v.

Quintanilla, 63 M.J. 29, 35 (C.A.A.F. 2006).     Appellant has not

demonstrated that the military judge’s findings of fact as to

the essential underlying events were clearly erroneous.    The

primary disagreement between the parties is whether the military

judge erred in concluding that the facts provided an adequate

basis for finding under the statute that the “particular matter”

at issue in Appellant’s court-martial was “actually pending

under” Mr. R’s “official responsibility” as Chief of Military

Justice.   See 18 U.S.C. § 207(a)(2)(B).




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United States v. Rhoades, No. 07-0173/AR

     In view of the broad discretion afforded a military judge

when acting on a pretrial disqualification motion, the military

judge is not required to determine whether there is proof beyond

a reasonable doubt that the attorney is guilty of a criminal

violation of 18 U.S.C. § 207(a)(2).   We conclude that a record

that demonstrates a reasonable likelihood that counsel’s

representation would violate a statutory post-employment

restriction designed to protect the integrity of trial

proceedings is sufficient to show “a serious potential for

conflict” that may overcome the presumption in favor of the

accused’s counsel of choice.   Wheat, 486 U.S. at 164.   Under

such circumstances, the military judge has discretion to

disqualify counsel.   See Campbell, 491 F.3d at 1310; In re Grand

Jury Subpoena Served Upon Doe, 781 F.2d 238, 250-51 (2d Cir.

1986) (recognizing that the right to counsel of choice can be

outweighed by an interest in the integrity of the judicial

system); cf. Wheat, 486 U.S. at 159 (stating that a trial judge

may refuse a defendant’s waiver of conflict-free representation

where defense counsel has a “previous or ongoing relationship

with an opposing party”); Kessenich v. Commodity Futures Trading

Comm’n, 684 F.2d 88, 99 (D.C. Cir. 1982) (observing, in a civil

case, that “the possibility that continued representation may be

illegal militates strongly in favor of disqualification in order

to maintain the integrity of this court’s processes”).


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United States v. Rhoades, No. 07-0173/AR

     In the present case, the military judge found that the

official responsibilities of Mr. R while in government service

included providing advice on pending cases to CID agents and to

other military attorneys.   The military judge also found that

Mr. R provided such advice with respect to the investigation of

Appellant that led to the charges at issue in the present

appeal.   These events took place within the statutory one-year

period before the termination of Mr. R’s military service, and

the court-martial occurred within the statutory two-year period

after the termination of his service.   See 18 U.S.C.

§ 207(a)(2).   These findings were sufficient to demonstrate a

reasonable likelihood that Mr. R’s representation of Appellant

at trial would violate a statute designed to protect the

integrity of government functions, including trial proceedings.

Therefore, Mr. R’s continued representation created “a serious

potential for conflict,” which provided a sufficient basis for

the military judge to refuse Appellant’s waiver of conflict-free

representation.   Wheat, 486 U.S. at 164.   Accordingly, the

decision by the military judge to disqualify counsel did not

constitute an abuse of discretion, and did not deprive Appellant

of his right to counsel of choice under the Sixth Amendment.

See id. at 159, 162-64.




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United States v. Rhoades, No. 07-0173/AR

                          IV.   DECISION

     The decision of the United States Army Court of Criminal

Appeals is affirmed.




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