                         UNITED STATES, Appellee

                                         v.

                       Caleb P. HOHMAN, Sergeant
                     U.S. Marine Corps, Appellant

                                  No. 11-6004
                        Crim. App. No. 201000563

       United States Court of Appeals for the Armed Forces

                            Argued May 18, 2011

                           Decided May 31, 2011


                                   PER CURIAM

                                     Counsel


For Appellant:    Lieutenant Michael R. Torrisi, JAGC, USN
(argued).


For Appellee: Lieutenant Kevin D. Shea, JAGC, USN (argued);
Colonel Louis J. Puleo, USMC, and Brian K. Keller, Esq.



Military Judge:    Thomas J. Sanzi




            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Hohman, No. 11-6004/MC


    PER CURIAM:

    The present case involves a government appeal of an

interlocutory ruling by the military judge abating the

proceedings in the court-martial of Sergeant Caleb P. Hohman.

See Article 62, Uniform Code of Military Justice (UCMJ), 10

U.S.C. § 862 (2006).   The pending charges include violation of a

lawful general order, dereliction of duty, and involuntary

manslaughter in violation of Articles 92 and 119, UCMJ, 10

U.S.C. §§ 892, 919 (2006).   The primary issue on appeal concerns

the status of Captain (Capt) Robert F. Muth, United States

Marine Corps Reserve, as detailed military defense counsel under

Articles 27 and 38(b)(3)(A), UCMJ, 10 U.S.C. §§ 827,

838(b)(3)(A)(2006).1



                                I.

     On March 19, 2008, the convening authority referred charges

against Appellant for trial by general court-martial.

Throughout the ensuing proceedings, Mr. Joseph Low has

represented Appellant as civilian defense counsel.   After a

series of detailed defense counsel had been detailed to the case

and released by Appellant, the Marine Corps assigned Capt Muth




1
 See 70 M.J. 37 (C.A.A.F. 2011) (order granting petition for
review).

                                 2
United States v. Hohman, No. 11-6004/MC


on April 17, 2009, to serve as Appellant’s detailed military

defense counsel.

     Capt Muth, who faced separation from active duty on October

1, 2009, submitted two administrative requests for extension of

active duty in order to continue his representation of

Appellant.   The administrative authorities granted an extension

until December 1, 2009, but denied any further extension.    Capt

Muth left active duty on December 1, 2009.   Two days later, on

December 3, the Marine Corps assigned Capt L. T. Kunce to serve

as detailed military defense counsel.

     Prior to his December 1, 2009, departure from active duty

and from his duties as detailed military defense counsel:    (1)

Capt Muth did not seek the permission of the military judge to

withdraw from representation in the ongoing trial as required by

the applicable rules, see Dep’t of the Navy, Judge Advocate

General Instr. 5803.1.C, para. 16e(2) (Nov. 4, 2004); (2) the

defense team did not bring to the attention of the military

judge the details of Capt Muth’s request to remain on active

duty or the actions taken by administrative authorities in

response to that request; and (3) the defense team did not move

for relief in the form of a motion requesting that Capt Muth

remain a part of the defense team.2


2
  The record reflects that on November 16, 2009, prior to the
termination of Capt Muth’s active service, the military judge

                                 3
United States v. Hohman, No. 11-6004/MC


     On September 15, 2010, over nine months after Capt Muth’s

termination of active service, the military judge concluded that

the Marine Corps erroneously had severed the attorney-client

relationship without good cause, and that the appropriate remedy

required abatement of the proceedings pending restoration of

Capt Muth as detailed defense counsel.    The Government filed an

interlocutory appeal, and the United States Navy-Marine Corps

Court of Criminal Appeals set aside the abatement order.   No.

NMCCA 201000563, 2011 CCA LEXIS 14, at *10, 2011 WL 311041, at

*4 (N-M. Ct. Crim. App. Jan. 31, 2011) (unpublished).   The

defense has asked this Court to reverse the decision of the

court below.



                               II.

     The military judge erred in this case by not taking

appropriate action to address this matter prior to Capt Muth’s

departure from active duty on December 1, 2009.   The Rules for


indicated that he was aware of Capt Muth’s impending departure
from active duty. The military judge stated that he wished to
discuss the matter with Appellant, but civilian defense counsel
interjected, requesting more time to discuss the matter with the
accused. The military judge granted this request and stated
that he would revisit the issue at a later hearing. The
military judge, however, did not revisit the issue prior to the
departure of Capt Muth from active duty on December 1, 2009, and
his replacement by Capt Kunce on December 3, 2009. There was no
further discussion on the record regarding Capt Muth’s departure
until April 6, 2010, four months after his departure from active
service.


                                4
United States v. Hohman, No. 11-6004/MC


Courts-Martial (R.C.M.) provide specific options for severance

of the attorney-client relationship under R.C.M. 505(d)(2)(B)

and 506(c).   United States v. Hutchins, 69 M.J. 282, 289

(C.A.A.F. 2011).   Among those options, “defense counsel may be

excused ‘by the military judge upon application for withdrawal

by the defense counsel for good cause shown.’”    Id. at 290

(quoting R.C.M. 506(c)).   Where the parties have indicated that

a defense member has been excused under R.C.M. 505(d)(2)(B),

“the military judge must ensure under R.C.M. 813(c) that:      (1)

the record demonstrates that a competent detailing authority has

determined that good cause exists for excusing counsel; and (2)

that the record sets forth the basis for the good cause

determination.”    Id. at 291.   In the present case, the military

judge failed to place any of the approved reasons for severing

the attorney-client relationship on the record prior to the

departure of Capt Muth from active duty.    We test such an error

for prejudice.    Id. at 292.

     We clarified in Hutchins that “[a]lthough separation from

active duty normally terminates representation, highly

contextual circumstances may warrant an exception from this

general guidance in a particular case.”    Id. at 290-91.   In this

case, Appellant has not demonstrated any circumstances that

would warrant an exception from the general guidance.    Moreover,

under the specific circumstances of this case, including the


                                   5
United States v. Hohman, No. 11-6004/MC


responsibilities of Capt Muth in relation to the defense team,

Appellant has not established that the assignment of Capt Kunce

as detailed military defense counsel on December 3, 2009, was

insufficient to remedy the procedural error in the severance of

Capt Muth’s status as detailed military defense counsel on

December 1, 2009.

     Accordingly, the judgment of the United States Navy-Marine

Corps Court of Criminal Appeals is affirmed.   The case is

remanded to the Judge Advocate General of the Navy who shall

return the case to the military judge for further proceedings

consistent with this opinion.




                                6
