                                    IN THE CASE OF


                             UNITED STATES, Appellee

                                            v.

                          Keith W. STROTHER, Corporal
                         U.S. Marine Corps, Appellant

                                      No. 03-0655
                            Crim. App. No. 200000050

       United States Court of Appeals for the Armed Forces

                             Argued October 20, 2004

                              Decided March 7, 2005

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


                                         Counsel


For Appellant: Lieutenant Brian L. Mizer, JAGC, USNR (argued);
Vaughan E. Taylor (on brief); Lieutenant Rebecca S. Snyder,
JAGC, USNR.

For Appellee: Lieutenant Donald L. Palmer, JAGC, USNR (argued);
Colonel William K. Lietzau, USMC (on brief); Colonel M.E.
Finnie, USMC, and Lieutenant Frank L. Gatto, JAGC, USN.


Military Judge:        P. J. Straub



        THIS   OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Strother, No. 03-0655/MC


     Judge EFFRON delivered the opinion of the Court.

      At a general court-martial composed of a military judge

sitting alone, Appellant was convicted, contrary to his pleas,

of an indecent act and endeavoring to impede an investigation,

in violation of Article 134, Uniform Code of Military Justice

(UCMJ), 10 U.S.C. § 934 (2000).   He was sentenced to a bad-

conduct discharge, confinement for 90 days, and reduction to E-

1.   The convening authority approved these results, and the

Court of Criminal Appeals affirmed in an unpublished opinion.

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

 issue:

            WHETHER THE LOWER COURT ERRED IN UPHOLDING
            THE MILITARY JUDGE’S DENIAL OF A DEFENSE
            MOTION TO REMOVE THE TRIAL COUNSEL, WHO HAD
            ACTED AS THE CASE INVESTIGATOR AND COMMAND
            LEGAL ADVISOR, WHILE IN THE POSITION OF
            STAFF JUDGE ADVOCATE.

For the reasons set forth below, we conclude that the military

judge properly rejected the motion to disqualify the trial

counsel, and we affirm.

                            I. BACKGROUND

                     A. THE PRELIMINARY INQUIRY

      Appellant, a corporal, attended a farewell party for a

sergeant in the unit, which was hosted by the departing member’s

roommate.   Within weeks thereafter, rumors circulated within the

command about inappropriate sexual activity at the party.    The



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United States v. Strother, No. 03-0655/MC


unit’s command sergeant major conducted an investigation and

concluded that the evidence was insufficient to warrant further

action.   He briefed the Deputy Commander, Chief of Staff, and

Staff Judge Advocate, all of whom agreed with his assessment of

the evidence.

     Subsequently, Major (Maj) Flexer was detailed to serve as

staff judge advocate for the command.   At some point, the

convening authority and Maj Flexer discussed the incident that

had been the subject of the prior investigation.   Maj Flexer

conducted a number of interviews.    He also inquired into the

availability of Lieutenant Colonel (LtCol) Harper, a reserve

officer and an attorney in civilian life, to conduct an inquiry.

LtCol Harper was ordered to conduct a preliminary inquiry, and

he discussed various aspects of the case with Maj Flexer,

including procedural matters, substantive issues, and

investigative options.   As a result of information obtained

during the preliminary inquiry, Appellant was confined, and Maj

Flexer represented the command during Appellant’s pretrial

confinement hearing.

     During the course of LtCol Harper’s preliminary inquiry, a

new Staff Judge Advocate, Colonel (Col) Nangle, was assigned to

the command, and Maj Flexer assumed other legal duties.




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United States v. Strother, No. 03-0655/MC


             B. THE ARTICLE 32 PRETRIAL INVESTIGATION

     After receiving LtCol Harper’s report, the convening

authority ordered a formal pretrial investigation under Article

32, UCMJ, 10 U.S.C. § 832 (2000), and appointed Maj Chenail as

the Article 32 Investigating Officer.   The convening authority

also designated Maj Flexer as the Counsel for the Government.

The Article 32 Investigating Officer conducted a hearing,

reviewed documentary evidence, and recommended referral of

charges against Appellant to a general court-martial.


                        C. TRIAL PROCEEDINGS

     The convening authority referred the charges to a general

court-martial.   Maj Flexer was detailed to serve as trial

counsel.   The defense moved to disqualify Maj Flexer because of

his previous participation in the investigatory stages, citing

Rule for Courts-Martial (R.C.M.) 502(d)(4), which states in

pertinent part that:

           No person shall act as trial counsel . . .
           in any case in which that person is or has
           been:
                 . . .

                 (B) An investigating officer; . . .

See also Article 27(a)(2), UCMJ, 10 U.S.C. § 827(a)(2)(2000).

The defense also cited Appellant’s due process right to a fair

trial.   See U.S. Const. amend. V.




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United States v. Strother, No. 03-0655/MC


     During argument on the motion, defense counsel asserted

that “the rules say that if a person has been an investigator in

the same case, he cannot be trial counsel.”   According to

defense counsel, Maj Flexer violated the rules by taking

statements, speaking to witnesses, arranging for witness travel,

and participating in the determination to reopen the

investigation.   Defense counsel relied on the record of the

Article 32 proceeding and presented testimony from LtCol Harper,

the officer who conducted the preliminary inquiry, concerning

his interaction with trial counsel.   The military judge denied

the motion, concluding that the trial counsel’s activity did not

constitute any “overstepping” of the rules.


                    D. APPELLATE CONSIDERATION

     Appellant contends in the present appeal that the military

judge erred in denying the motion to disqualify trial counsel.

According to Appellant, Maj Flexer was disqualified as a matter

of due process because his pretrial activities made him an

“interested party” who could not perform prosecutorial duties

with the requisite degree of neutrality.    In the alternative,

Appellant contends that Maj Flexer acted as an “investigating

officer” as that term is used in Article 27, thereby

disqualifying him from serving as trial counsel.   We review the

military judge’s ruling on a motion to disqualify counsel under



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United States v. Strother, No. 03-0655/MC


an abuse of discretion standard.       See United States v. Hamilton,

41 M.J. 22, 27 (C.M.A. 1994).



                         II. DUE PROCESS

     Appellant asserts Maj Flexer was an “interested party”

whose participation as a prosecutor violated Appellant’s due

process rights under the Supreme Court’s decisions in Young v.

United States ex rel. Vuitton et Fils S.A., 481 U.S. 787 (1987),

and Marshall v. Jerrico, 446 U.S. 238 (1980).      In support of his

contention, Appellant notes that Maj Flexer was responsible for

reviving a dormant investigation; he provided legal advice to

commanders and investigators during an earlier phase of the

case; he assisted in decisions leading to grants of immunity;

this was his “first big case for the command”; the pressure to

secure a conviction “must have been great,” particularly in view

of the grants of immunity to other persons whose culpability

arguably was greater; and his “performance at trial likely would

have been documented on his fitness evaluation reports.”


  A. DISQUALIFICATION OF A PROSECUTOR AS AN “INTERESTED PARTY”

     A prosecutor will be disqualified as an “interested party”

if the prosecutor has a financial or improper personal stake in

the outcome of the proceeding.   The Supreme Court in Young

addressed the propriety of appointing a private party’s lawyer



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United States v. Strother, No. 03-0655/MC


as the prosecuting attorney in a related contempt proceeding,

and held that “the beneficiary of a court order may not be

appointed to undertake contempt prosecutions for alleged

violations of that order.” 481 U.S. at 790.

     The Court emphasized that a prosecuting attorney:

           is the representative not of an ordinary
           party to a controversy, but of a sovereignty
           whose obligation to govern impartially is as
           compelling as its obligation to govern at
           all; and whose interest, therefore, in a
           criminal prosecution is not that it shall
           win a case, but that justice shall be done.
           As such, he is in a peculiar and very
           definite sense the servant of the law, the
           twofold aim of which is that guilt shall not
           escape nor innocence suffer.

Id. at 803 (quoting Berger v. United States, 295 U.S. 78, 88

(1935)).   The Court then noted that the distinctive role of the

prosecutor has been expressly recognized in the American Bar

Association’s Model Code of Professional Responsibility, Canon

7, Ethical Consideration 7-13 (1982).   See also Model Rules of

Prof’l Conduct R. 3.8 cmt. 1 (2004).

     The Court discussed the conflict of interest provisions

applicable to Department of Justice attorneys, including the

prohibition against simultaneously representing the Government

and a private party having a financial interest that could be

affected by a contempt proceeding.   Young, 481 U.S. at 803-04

(citations omitted).   The Court determined that similar

considerations should apply to a district court’s appointment of


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United States v. Strother, No. 03-0655/MC


a special prosecutor in a contempt proceeding.   Id. at 805-09.

The Court did not express a view as to whether the appointment

constituted a violation of the due process rights of the parties

to the contempt proceeding.   Id. at 809-10, 814-15.

     In Marshall v. Jerrico, the Supreme Court discussed

prosecutorial disqualification in both judicial and

administrative proceedings in the course of rejecting a due

process challenge to an administrative procedure.   446 U.S. at

242-43, 248-50.   Under the challenged procedure, the Department

of Labor imposed civil penalties for certain unlawful labor

practices, and used the proceeds to reimburse the Department for

the costs of determining violations and assessing penalties.

See id. at 239.   The Jerrico company contended that the

potential for reimbursement could distort the department’s

objectivity by creating an incentive for the assistant regional

administrator to assert and assess penalties.    Id. at 241.   This

procedure violated due process, Jerrico argued, citing the

practices struck down in Tumey v. Ohio, 273 U.S. 510 (1927)

(mayor’s salary tied to fines adjudicated by the mayor in a

judicial capacity), and Ward v. Village of Monroeville, 409 U.S.

57 (1972) (sums produced by mayor’s court accounted for a

substantial portion of the municipality’s revenue).    Jerrico,

446 U.S. at 241-42.




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United States v. Strother, No. 03-0655/MC


      The Court rejected the due process argument.   Id. at 243-

44.   The Court noted that Tumey and Ward both were based on the

requirement for an adjudication by an impartial tribunal,

whereas the functions performed by the assistant regional

administrator “resemble those of a prosecutor more closely than

those of a judge.”   Id. at 243.   According to the Court, the due

process limitations on “officials performing judicial or quasi-

judicial functions . . . are not applicable to those acting in a

prosecutorial or plaintiff-like capacity.”   Id. at 248.    The

Court added:

           Our legal system has traditionally accorded
           wide discretion to criminal prosecutors in
           the enforcement process . . . . Prosecutors
           need not be entirely neutral and detached[.]
           In an adversary system, they are necessarily
           permitted to be zealous in their enforcement
           of the law. The constitutional interests in
           accurate finding of facts and application of
           law, and in preserving a fair and open
           process for decision, are not to the same
           degree implicated if it is the prosecutor,
           and not the judge, who is offered an
           incentive for securing . . . penalties.

Id. at 248-49 (citations and internal quotation marks omitted).

The Court emphasized, however, that the differences between

prosecutors and judges did not foreclose judicial review of

prosecutorial activities:

                We do not suggest . . . that the Due
           Process Clause imposes no limits on the
           partisanship of . . . prosecutors.
           Prosecutors are also public officials; they
           too must serve the public interest. In


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United States v. Strother, No. 03-0655/MC


          appropriate circumstances the Court has made
          clear that traditions of prosecutorial
          discretion do not immunize from judicial
          scrutiny cases in which the enforcement
          decisions of an administrator were motivated
          by improper factors or were otherwise
          contrary to law.

Id. at 249 (citations omitted).    After noting the significant

burden of defending against a prosecution, the Court stated:

          A scheme injecting a personal interest,
          financial or otherwise, into the enforcement
          process may bring irrelevant or
          impermissible factors into the prosecutorial
          decision and in some contexts raise serious
          constitutional questions. But the strict
          requirements of neutrality cannot be the
          same for administrative prosecutors as for
          judges, whose duty it is to make the final
          decision and whose impartiality serves as
          the ultimate guarantee of a fair and
          meaningful proceeding in our constitutional
          regime.

Id. at 249-50 (citations omitted).

     The Court reviewed the administrative process at issue and

concluded that “the influence alleged to impose bias [was]

exceptionally remote.”   Id. at 250.   The Court observed that the

regional administrator did not have a personal financial

interest in the collection of penalties and that any

institutional benefit to the organization from the exercise of

prosecutorial discretion was dependent upon too many

contingencies.   Id. at 250-52.   In reaching this conclusion, the

Court declined to “say with precision what limits there might be

on a financial or personal interest of one who performs a


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United States v. Strother, No. 03-0655/MC


prosecutorial function . . . .”    Id. at 250 (footnote omitted).

The Court added: “In particular, we need not say whether

different considerations might be held to apply if the alleged

biasing influence contributed to prosecutions against particular

persons, rather than to a general zealousness in the enforcement

process.”    Id. at 250 n.12.


                     B. DISCUSSION -- DUE PROCESS

         The factors cited by Appellant, summarized at the outset

of Part II of this opinion, do not transform a prosecutor into

an “interested party” who must be disqualified as a matter of

due process.    The Supreme Court, in Young and Jerrico,

recognized that prosecutors are advisors and advocates for a

party.    Young, 481 U.S. at 802-03; Jerrico, 446 U.S. at 248-49.

As such, they need not maintain the degree of neutrality

required of judges.

     In civilian society, prosecutors routinely provide advice

and recommendations on the conduct of investigations, grants of

immunity, and charging decisions.      The fact that such decisions

later may be challenged at trial or on appeal does not

disqualify an attorney from serving as a prosecutor as a matter

of due process.    Likewise, a civilian prosecutor, whether

elected or appointed, inevitably faces the pressure of his or

her “first big case,” as well as the pressure generated when



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United States v. Strother, No. 03-0655/MC


advice provided in a pretrial setting comes under challenge at

trial.   Such pressures, which come with the territory inhabited

by prosecuting attorneys, do not transform a prosecutor into an

interested party.   Military prosecutors, like their civilian

counterparts, are obligated to deal with such pressures in the

context of the prosecutor’s responsibility to ensure both that

the guilty not escape and that the innocent not suffer.    See

Young, 481 U.S. at 803.

     Appellant also asserts that Maj Flexer had a conflict of

interest because he did not respond to defense discovery

requests in a manner that was timely or complete.   The defense

litigated the issue of discovery in connection with a motion to

reopen the Article 32 investigation, which was denied by the

military judge.   The defense has not asserted on appeal that the

military judge committed prejudicial error with respect to

discovery.   While it is possible that prosecutorial abuse of

discovery in another case would be so egregious as to

demonstrate impermissible bias requiring disqualification as a

matter of due process, see Jerrico, 446 U.S. at 250 n.12, this

is not such a case.   The interest of the trial counsel in the

present case did not approach the type of conflict or bias that

would have made him an “interested party” under Young and

Jerrico.




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United States v. Strother, No. 03-0655/MC


                  III. STATUTORY DISQUALIFICATION

     Appellant contends that even if Maj Flexer was not

disqualified as a matter of due process, he should have been

disqualified in the present case as an “investigating officer”

prohibited from serving as a trial counsel under Article

27(a)(2).   The statute provides in pertinent part that: “[n]o

person who has acted as investigating officer, military judge,

or court member in any case may act later as trial counsel . . .

. ” Id.


     In support of his contention that Maj Flexer was a

statutory “investigating officer” under Article 27, Appellant

notes that Maj Flexer engaged in a variety of activities more

characteristic of a police officer rather than a prosecutor.

According to Appellant, these activities resulted in selective

prosecution and evidence produced by use of questionable

investigative techniques.


 A. DEVELOPMENT OF THE “INVESTIGATING OFFICER” DISQUALIFICATION

     The prohibition on an “investigating officer” serving as a

prosecutor in courts-martial was first enacted in the 1948

legislation amending the Articles of War, popularly known as the

Elston Act.   Selective Service Act of 1948, Pub. L. No. 80-759,

§§ 201-46, 62 Stat. 604, 627-44 (1948) [hereinafter Elston Act].

As originally proposed, the provision was designed to ensure


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United States v. Strother, No. 03-0655/MC


that the position of “investigating officer” would not be filled

by a person having “the attitude of a prosecutor.”   See Hearings

on H.R. 2575 to Amend the Articles of War before Subcomm. No 11,

Legal, of the House Comm. on Armed Services, 80th Cong. 2036

(1947)(remarks of Rep. Charles H. Elston, Chairman, and

Brigadier General Hubert D. Hoover, Assistant Judge Advocate

General of the Army); H.R. Rep. No. 80-1034, at 2, 15, 18

(1947).

     The Elston Act contained two pertinent provisions.     The

first provision, Article of War 11, stated that “no person who

has acted as member, defense counsel, assistant defense counsel,

or investigating officer in any case shall subsequently act in

the same case as a member of the prosecution . . . .”   Elston

Act § 208.   The second provision, Article of War 46, stated that

“[n]o charge will be referred to a general court-martial for

trial until after a thorough and impartial investigation thereof

shall have been made,” and referred to the person conducting the

impartial proceeding as “the investigating officer.”    Elston Act

§ 222.

     In the aftermath of the 1948 legislation, the President

promulgated the Manual for Courts-Martial (MCM), U.S. Army, in

1949 (1949 MCM).   Paragraph 6 of the 1949 MCM, governing

appointment of the trial judge advocate (as the prosecutor was

then designated), mirrored the statutory disqualification of a


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United States v. Strother, No. 03-0655/MC


person who had served as investigating officer in the same case.

With respect to the appointment of a pretrial investigating

officer under Article of War 46, paragraph 35a of the 1949 MCM

provided:   “Neither the accuser nor any officer who is expected

to become a member of the prosecution or defense upon possible

trial of the case will be designated as investigating officer.”

Paragraph 41a, of the 1949 MCM, contained a parallel provision:

            The trial judge advocate must be fair and
            free from bias, prejudice, or hostility. If
            he has acted as a member of the court,
            defense counsel, assistant defense counsel,
            or investigating officer in any case he
            shall not subsequently act in the same case
            as trial judge advocate or assistant trial
            judge advocate.

Under these provisions, the term “investigating officer” in the

Articles of War and the 1949 MCM referred to a specific

statutory position, filled by a person required to conduct an

impartial investigation prior to referral of a case to a general

court-martial.   Because the trial counsel, an advocate for a

party, would have an institutional conflict, the statute and the

1949 MCM required the position to be filled by a person who

would not prosecute the case as trial counsel.

     The UCMJ, which replaced the Articles of War, as well as

the Articles for the Government of the Navy, was enacted in

1950, and took effect in 1951.   Act of May 5, 1950, Pub. L. No.

81-506, 64 Stat. 107 (1950).   The new legislation retained the



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United States v. Strother, No. 03-0655/MC


pertinent provisions of the Articles of War without substantive

change.   Article 32 continued the requirement for a “thorough

and impartial investigation” by an “investigating officer” prior

to referral of charges to a general court-martial.    Article

27(a) continued the limitation that “[n]o person who has acted

as investigating officer . . . in any case shall act

subsequently as trial counsel . . . in the same case.”    See H.R.

Rep. No. 81-491, at 18-20 (1949); S. Rep. No. 81-486, at 15-16

(1949).

     The 1951 edition of the MCM reflected the statutory

prohibition against appointing an investigating officer as trial

counsel and prohibited appointment of a person to serve as an

Article 32 Investigating Officer if the person was expected to

become a member of the prosecution.   Manual for Courts-Martial,

United States, paras. 6, 34 (1951 ed.)(1951 MCM).     The 1951 MCM

added an expanded definition of the term “investigating officer”

for purposes of various disqualifications, including

disqualification of trial counsel.    Id. at para. 64.   The new

definition included: (1) Article 32 investigating officers; and

(2) “any other person who, as counsel for, or a member of, a

court of inquiry, or as an investigating officer or otherwise,

has conducted a personal investigation of a general matter

involving the particular offense.”    Id.   The 1951 MCM restricted

the reach of the new definition of “investigating officer” by


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United States v. Strother, No. 03-0655/MC


providing that the definition would not disqualify “a person

who, in the performance of his duties as counsel, has conducted

an investigation of a particular offense or a closely related

offense with a view towards prosecuting or defending it before a

court-martial,” except in circumstances addressed in other

specified portions of the 1951 MCM.    Id.

       Our Court considered whether trial counsel should have been

disqualified under these provisions in several cases arising in

the years immediately following promulgation of the 1951 MCM.

United States v. Lee concluded that an officer’s informal

investigation prior to preferral of charges did not disqualify

that officer from serving as trial counsel in a special court-

martial.   1 C.M.A. 212, 218, 2 C.M.R. 118, 124 (1952).   Lee

noted that there was a “distinctly arguable” interpretation of

the applicable statutes under which the disqualification of an

“investigating officer” only applied to an Article 32

investigating officer, but concluded that it was not necessary

to rely on the statutes because paragraph 64 of the 1951 MCM

employed a “broader view” of the term.   Id. at 215, 2 C.M.R. at

121.   The opinion concluded that an informal investigation

conducted to determine whether the facts warranted preferral of

charges did not transform counsel into an “investigating

officer” for purposes of the Code or the broader requirements of

the 1951 MCM.    Id. at 218, 2 C.M.R. at 124.   Accord United


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United States v. Strother, No. 03-0655/MC


States v. Stringer, 4 C.M.A. 494, 16 C.M.R. 68 (1954); cf.

United States v. DeAngelis, 3 C.M.A. 298, 305, 12 C.M.R. 54, 61

(1953) (a staff judge advocate’s interactions with

investigators, in terms of consultation and advice, did not

transform the judge advocate into an “investigating officer”).

See also R.C.M. 303 (preliminary inquiry into reported

offenses).   DeAngelis emphasized the critical role of judge

advocates in the administration of military justice and

discipline, adding that “it would be incongruous in the extreme

were we to assume that [a judge advocate] is unable to function

at all unless and until charges have been preferred and

investigated.”   3 C.M.A. at 305, 12 C.M.R. at 61.   The opinion

added that participation by lawyers in pretrial matters helps to

“minimize[] the risk of error arising from faulty pretrial

investigations” and in reducing the number of “ill-founded

charges against those subject to military law.”   Id., 12 C.M.R.

at 61.

     Subsequent to these decisions, the pertinent provisions in

the 1951 MCM were retained, without substantial change, when a

revised edition of the MCM was issued in 1969.    Manual for

Courts-Martial, United States, paras. 6a, 34a, 64 (rev. ed.

1969).   The MCM was restructured completely in 1984 to adopt a

rule-based format, separating binding requirements from non-

binding guidance.   See Manual for Courts-Martial, United States


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United States v. Strother, No. 03-0655/MC


(2002 ed.)(2002 MCM), App. 21, Analysis of Rules for Courts-

Martial at A21-1 to A21-3 (history and composition of the 1984

MCM).   The 1984 MCM adopted new rules regarding the term

“investigating officer” as well as disqualification of trial

counsel.   These new rules remain in effect in the current

edition of the MCM, the 2002 MCM.

     In contrast to the pre-1984 editions of the MCM, the 2002

MCM does not contain a general definition of the term

“investigating officer.”   Instead, it uses the term

“investigating officer” in connection with specific rules.

R.C.M. 405, for example, implements the formal pretrial

investigation procedures required by Article 32.   R.C.M.

405(d)(1) uses the term “investigating officer” to describe the

officer appointed under the rule to conduct the investigation.

The same provision also provides expressly that “[t]he

investigating officer is disqualified to act later in the same

case in any other capacity.”   Id.

     R.C.M. 912 governs challenges of panel members for cause.

Under R.C.M. 912(f)(1)(F), a challenge for cause must be granted

if the panel member “[h]as been an investigating officer as to

any offense charged.”   The rule also includes a rule-specific

definition applicable to challenges of panel members for cause:

           For purposes of this rule, “investigating
           officer” includes any person who has
           investigated charges under R.C.M. 405 [a


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United States v. Strother, No. 03-0655/MC


            formal Article 32 investigation] and any
            person who as counsel for a member of a
            court of inquiry, or otherwise personally
            has conducted an investigation of the
            general matter involving the offenses
            charged.

R.C.M. 912(i)(3).

       By contrast, the rule governing qualification of counsel

simply notes in pertinent part that a person may not act as

trial counsel or assistant trial counsel “in any case in which

that person is or has been . . . [a]n investigating officer . .

. .”   R.C.M. 502(d)(4).   The procedure for disqualification of

counsel does not refer to specific criteria, but instead notes

generally that “[i]f it appears that any counsel may be

disqualified, the military judge shall decide the matter and

take appropriate action.”    R.C.M. 901(d)(3).

       In summary, the initial prohibition against an

investigating officer serving as trial counsel, which was

implemented in the 1949 MCM, used the term “investigating

officer” to describe the officer required to conduct an

“impartial” investigation prior to referral of charges to a

general court-martial -- the predecessor of today’s Article 32

officer.   The 1951 MCM provided an expanded definition that

expressly included persons other than the Article 32

investigating officer.     Our Court in Lee focused on the fact

that the definition in the 1951 MCM was broader than the



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United States v. Strother, No. 03-0655/MC


statutory term.   1 C.M.A. at 215, 2 C.M.R. at 121.   The

President, in the 1951 MCM, exercised his authority to set forth

in the MCM broader rights than those established under the UCMJ.

See, e.g., United States v. Davis, 47 M.J. 484, 486 (C.M.A.

1998)(noting the authority of the President to do so unless such

action would clearly contradict the express language of the

UCMJ).

     Having established, in paragraph 64 of the 1951 MCM, a

broader definition of “investigating officer” than required by

the UCMJ, the President was free in 1984 to take a more narrowly

tailored approach, so long as the MCM did not set forth a

provision contrary to or inconsistent with the UCMJ.    See

Article 36, UCMJ, 10 U.S.C. § 836 (2000).   We note that the

elimination or tailoring of a provision from the MCM does not

necessarily mean that the text must be interpreted in its

narrowest light, particularly if a broader interpretation is

supported by judicial interpretation of the UCMJ, military

custom, tradition, or parallel civilian practice.     In the

present case, however, those factors are not present.    For

purposes of disqualification of counsel, the President has

narrowed the term “investigating officer” to its original usage

– the disqualification of the officer who conducted the

“impartial” investigation under the predecessor to Article 32 --

and we conclude that there is no basis in law to impose a


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United States v. Strother, No. 03-0655/MC


broader judicial construction.   We also note that that this

appeal does not require us to address the question of whether

there otherwise might be grounds for disqualifying trial counsel

who, in the same case, served previously as a hearing officer

under a service-specific regulation requiring a degree of

neutrality similar to that of an “impartial” Article 32 officer.

See United States v. Mann, 50 M.J. 689, 702 (A.F. Ct. Crim. App.

1999)(noting possible distinction for circumstances involving

trial counsel’s prior participation in a case in a quasi-

judicial role).

     In the case before us, trial counsel did not serve as the

Article 32 investigating officer, and Appellant has not

demonstrated that trial counsel’s activities so departed from

the normal role of a prosecutor as to make him a de facto

Article 32 “investigating officer.”   Cf. United States v. Payne,

3 M.J. 354 (C.M.A. 1977) (impropriety of Article 32 officer

receiving ex parte advice from trial counsel).    Appellant, at

trial, did not present testimony from either the Article 32

officer or the trial counsel.    In the absence of such testimony,

and under the circumstances of this case, we decline to treat

Appellant’s speculation as to the nature of the interaction

between trial counsel and the Article 32 officer as sufficient

to demonstrate that trial counsel became a de facto Article 32

investigating officer.   In that regard, it is also noteworthy


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United States v. Strother, No. 03-0655/MC


that Appellant challenged the validity of the Article 32

investigation on a variety of grounds, including the actions of

trial counsel, without calling either the Article 32 officer or

trial counsel as witnesses.   The military judge denied the

defense motion, and Appellant has not challenged that ruling on

appeal.   Likewise, although Appellant attempts to raise

discovery violations and selective prosecution as evidence of

trial counsel’s improper role as an investigating officer,

Appellant has not assigned issues of law in the present case

contending that there was error, much less prejudicial error,

with respect to discovery or selective prosecution.



                          IV. Conclusion

     Appellant has not demonstrated that trial counsel was

disqualified as a matter of due process or as a result of prior

service in the same case as a statutory “investigating officer.”

The decision of the United States Navy-Marine Corps Court of

Criminal Appeals is affirmed.




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