                            UNITED STATES, Appellee

                                        v.

                       Christopher D. WIEST, Cadet
                        U.S. Air Force, Appellant


                                  No. 03-0106

                            Crim. App. No. 33964

       United States Court of Appeals for the Armed Forces


                       Argued       October 1, 2003

                       Decided      March 16, 2004


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


                                    Counsel

For Appellant: Mr. Frank J. Spinner, Esq. (argued); Colonel
Beverly B. Knott, Major Terry L. McElyea, Major Bryan A. Bonner,
and Captain Antony B. Kolenc (on brief).

For Appellee: Lieutenant Colonel Michael E. Savage (argued);
Colonel LeEllen Coacher (on brief); and Lieutenant Colonel Lance
B. Sigmon.

Military Judge: J. Jeremiah Mahoney




     THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Wiest, No. 03-0106/AF


     CRAWFORD, Chief Judge, delivered the opinion of the Court.

     Contrary to his pleas, Appellant, a cadet at the Air Force

Academy, was convicted by officer members of one specification

of Article 134, Uniform Code of Military Justice [hereinafter

UCMJ], 10 U.S.C. § 934 (2000), by damaging a computer, in

violation of 18 U.S.C. § 1030(A)(5)(B) (2000).1   He was sentenced

to a dismissal and total forfeitures.    The convening authority

approved the dismissal and partial forfeitures, and the Air

Force Court of Criminal Appeals affirmed the findings and

sentence.

     Because we hold the military judge abused his discretion in

refusing to grant a defense-requested continuance to obtain a

civilian lawyer (Issue I), we will not address the other granted

issues.2


1
 We heard oral argument in this case at Offutt Air Force Base,
Bellevue, Nebraska, on October 1, 2003, as part of "Project
Outreach." See United States v. Allen, 34 M.J. 228, 229 n.1
(C.M.A. 1992).
2
      II. WHETHER THE EVIDENCE IS LEGALLY SUFFICIENT
     TO SUSTAIN APPELLANT’S CONVICTION TO THE LESSER-
     INCLUDED OFFENSE OF 18 U.S.C. § 1030(A)(5)(B) FOR
     INTENTIONALLY ACCESSING A PROTECTED COMPUTER WITHOUT
     AUTHORIZATION AND RECKLESSLY CAUSING DAMAGE WHERE
     THERE IS NO EVIDENCE THAT APPELLANT’S ACCESS TO THE
     COMPUTER IN QUESTION ACTUALLY CAUSED THE DAMAGE
     ALLEGED BY THE PROSECUTION AND WHERE APPELLANT
     HONESTLY BELIEVED HIS ACCESS TO THE SYSTEM WAS
     AUTHORIZED.

     III. WHETHER THE MILITARY JUDGE ERRED IN INSTRUCTING
     THE MEMBERS ON THE LESSER-INCLUDED OFFENSE OF

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United States v. Wiest, No. 03-0106/AF


                              FACTS

      The Government contends that, contrary to the United

States Air Force Academy (USAFA) rules, Appellant attempted to

use his computer to access internet chat rooms.   To prevent such

communications, USAFA had previously developed a firewall as

part of the USAFA network.

     On February 2, 1999, defense counsel requested a new

investigation pursuant to Article 32, UCMJ, 10 U.S.C. § 832

(2000), arguing that the Government mistakenly told defense

counsel that logs describing individuals at USAFA who had

entered and exited the firewall did not exist.    In discussing

the motion, the judge made several comments concerning the

competency of the defense counsel for relying on the

Government’s assertion that these logs did not exist, and for

not independently investigating the existence of the logs.    When

discussing the reason for a new Article 32 investigation, the

judge criticized the attorneys as follows:

     Certainly as an attorney, one would expect to question
     why [the firewall logs] didn’t exist. Whether it was
     a routine matter or there was something about the


     SPECIFICATION 1 OF THE CHARGE WHERE HE FAILED TO
     INSTRUCT THE MEMBERS THAT THE UNAUTHORIZED ACCESS TO
     THE COMPUTER SYSTEM MUST HAVE BEEN INTENTIONAL.

     IV. WHETHER THE MILITARY JUDGE ERRED IN PROVIDING THE
     COURT MEMBERS A MISTAKE OF FACT INSTRUCTION WHICH
     REQUIRED THEM TO FIND THAT APPELLANT’S MISTAKE OF FACT
     WAS REASONABLE INSTEAD OF MERELY HONEST.


                                3
United States v. Wiest, No. 03-0106/AF


     particular logs from this occasion that somehow were
     lost or destroyed inadvertently . . . . We are just
     talking about testing the available evidence, which is
     the function of an advocate.


     In response to defense counsel’s explanation as to why the

motion was made months after the original Article 32

investigation, the judge stated, “but the thought never occurred

to you at that time to ask why [the logs] didn’t exist?”     “[I]f

you have an indication that the type of evidence that you are

looking for should be in existence, then I think as an attorney

you should be questioning why it is no longer in existence.”

The judge said defense counsel should not have accepted the

government representative’s statement that the logs did not

exist, and should have asked their own consultant rather than

relying on the Government representative.   The judge said

defense counsel should have assumed the records were always

present and “had been misinformed.”   Counsel responded that they

assumed the government was telling the truth.   The judge then

said, “a competent advocate assume[s] nothing.”   In response to

the judge’s continued questioning, the defense counsel stated:

“Again, if we were remiss and if I’m not a competent advocate

for not confirming that, I’ll take that hit.    But, it doesn’t

take anything away from the fact that [the Government] actually

knew the records existed . . . .”   Later, the defense admitted

they were “novices with computers” and dependent upon experts


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United States v. Wiest, No. 03-0106/AF


who thought the logs did not exist.   In denying the motion for a

new Article 32 investigation, the judge noted that the

“availability of the firewall logs, regardless of their

completeness, was unappreciated by both the prosecution and the

defense.”   He continued:

     The attorneys in this case were not by training or
     experience well-equipped to deal with the complex
     computer[-]related materials inherent in the alleged
     offenses . . . . [I]t is utterly confounding to the
     court the defense expert limited himself to stating
     requests to attorneys who were not equally qualified
     in the subject matter.

     After the judge denied the motion for a new Article 32

investigation, Appellant told the judge he believed his counsel

were ineffective at the original Article 32 investigation, and

therefore requested new defense counsel.   Appellant was then

told he had misunderstood the judge’s words; in not ordering a

new Article 32 investigation, the judge did not say that counsel

was ineffective.   Appellant disagreed, and personally addressed

the court as follows:   “Your Honor, in light of your statements

that my counsel were ineffective at my Article 32 hearing, as

well as throughout the proceedings leading up to this court-

martial, . . . I would like to fire both.”   The judge replied

again that Appellant had misunderstood his prior remarks, but

that because Appellant insisted on new counsel, replacement

counsel “must be available and prepared for trial on 8 March




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United States v. Wiest, No. 03-0106/AF


1999.”   The judge did not at this time release original defense

counsel.

     Appellant then requested representation by Major Theurer, a

defense counsel with a reputation as an expert in computer

matters, as an individual military defense counsel under Rule

for Courts-Martial 506(b)[hereinafter R.C.M.].   Although Major

Theurer’s superior approved the request, he was not available

for trial on March 8, prompting the judge to state that “if

Major Theurer is not available on the 8th of March, then he is

not available period.   The trial will proceed without him.”   On

February 10, Mr. Spinner, a civilian defense counsel, entered

his appearance on behalf of Appellant, but requested a delay

until April 19, because of his schedule.   On the same day, the

military judge faxed a response to Mr. Spinner, advising him

that the trial date was March 8 and, “If you wish to represent

the accused you need to be present and prepared on that date.”

He further advised Mr. Spinner, “If you cannot be available and

prepared on that [sic] 8 Mar 99, you are not reasonably

available and should not undertake this representation.”

Finally, he advised Mr. Spinner, “You should not count on any

further continuance being granted, and make your plans

accordingly for preparation or termination of your

representation.”




                                 6
United States v. Wiest, No. 03-0106/AF


      On February 12, the Government asked that the continuance

be denied because Appellant “is free to retain counsel . . . .

Given the amount of time that Cadet Wiest has had, and still

has, to obtain counsel that are available on 8 Mar 99, we

believe no continuances are necessary at this time.”    On the

same date, the judge denied the defense request for a

continuance.3

      Appellant asked for new military defense counsel on March

8.   Two new military defense counsel entered appearances for

Appellant and indicated they were ready to proceed.    Mr.

Spinner, who had also been retained as civilian counsel, was not

ready to begin because of other commitments.   At this session,

Appellant’s request to release prior military counsel was

granted, as was his request to be represented by new counsel,

without Mr. Spinner as civilian counsel.   The trial proceeded as

scheduled.

                            DISCUSSION

      The right to counsel is fundamental to our system of

justice.   United States v. Palenius, 2 M.J. 86 (C.M.A. 1977).

It should therefore be an unusual case, balancing all the

factors involved, when the judge denies an initial and timely


3
  We need not decide whether the trial judge was disqualified
under R.C.M. 902(b)(1), because he had “knowledge of disputed
evidentiary facts concerning” the availability of Mr. Spinner by
obtaining facts ex parte and not subject to judicial notice.

                                 7
United States v. Wiest, No. 03-0106/AF


request for a continuance in order to obtain civilian counsel,

particularly after the judge has criticized appointed military

counsel.   Indeed, we have noted that the right to civilian

counsel is a “most valuable right,” and that therefore a

continuance should be granted at least after initial requests

for such counsel have been made, and certainly in a case where

Appellant is unsure of his appointed military representation.

United States v. Kinard, 21 C.M.A. 300, 303, 45 C.M.R. 74, 77

(C.M.A. 1972)(citing United States v. Donohew, 18 C.M.A. 149, 39

C.M.R. 149 (C.M.A. 1969)); cf. Morris v. Slappy, 461 U.S. 1, 3-4

(1983)(citing Slappy v. Morris, 649 F.2d 718 (9th Cir. 1981)).

Accordingly, we hold that the military judge erred by exercising

an inelastic attitude in rescheduling Appellant’s trial, where

such request was predicated on the judge’s negative comments

about Appellant’s original military counsel and Appellant’s

subsequent selection of a new civilian counsel.

     Our standard of review in the case at bar is abuse of

discretion.   United States v. Weisbeck, 50 M.J. 461, 464-66

(C.A.A.F. 1999).   In determining whether the judge abused his

discretion, we consider the factors articulated in United States

v. Miller: “surprise, nature of any evidence involved,

timeliness of the request, substitute testimony or evidence,

availability of witness or evidence requested, length of

continuance, prejudice to opponent, moving party received prior


                                 8
United States v. Wiest, No. 03-0106/AF


continuances, good faith of moving party, use of reasonable

diligence by moving party, possible impact on verdict, and prior

notice.”   47 M.J. 352, 358 (C.A.A.F. 1997)(citation omitted).

See also United States v. Cokeley, 22 M.J. 225, 229-30 (C.M.A.

1986)(availability of witnesses); Kinard, 21 C.M.A. at 305, 45

C.M.R. at 79.

     As to surprise on February 10, Mr. Spinner requested a

continuance well before the March 8 trial date.   The request for

a continuance was based on unexpected events.   Here, Appellant

was clearly surprised by the harsh criticism of his counsel by

the military judge, and this factor weighed in favor of a

continuance.    As to timeliness, Mr. Spinner requested the

continuance as soon as he was retained, six days after the court

was recessed and well before the trial date.    He had made no

prior requests for continuance, nor was there any delay or bad

faith by Appellant as he contacted Mr. Spinner almost

immediately and Mr. Spinner promptly submitted his request for a

continuance.

     Because of the comments made by the judge concerning

Appellant’s representation at the Article 32 hearing, Appellant

requested the appointment of new military counsel and sought, in

addition, to retain civilian counsel.    Based on the record, this

request was not a surprise.   Appellant’s request for new counsel

was submitted shortly after the February 2 session pursuant to


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United States v. Wiest, No. 03-0106/AF


Article 39(a), UCMJ, 10 U.S.C. § 851(a) (2000).   The timing of

this request therefore allowed sufficient time to establish a

date when civilian counsel would be available to work within the

schedule of the witnesses, none of whom were outside the United

States.   Moreover, the Government did not establish a reason for

opposing Appellant’s request for a continuance, other than

noting that the witnesses were available on March 8, 1999.    Nor

did they establish an attempt by Appellant to “vex” the

Government, or show that witnesses would not be available at a

later date.   “Where a military judge denies a continuance

request made for the purpose of obtaining civilian counsel,

prejudice to the accused is likely.”   Miller, 47 M.J. at 359.

Given these circumstances, the military judge should have

granted the continuance, and therefore abused his discretion in

failing to do so.

                                DECISION

     The decision of the United States Air Force Court of

Criminal Appeals is reversed, the findings and the sentence are

set aside, and the record of trial is returned to the Judge

Advocate General for a further disposition not inconsistent with

this opinion.




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United States v. Wiest, No. 03-0106/AF

      ERDMANN, Judge (dissenting):

      I respectfully dissent.   I find no clear abuse of discretion

in the military judge’s refusal to grant a continuance and would

affirm the Air Force Court of Criminal Appeals (AFCCA) on Issue

I.1

      The majority decision concludes that it would be an unusual

case where a judge denies “an initial and timely request for a

continuance in order to obtain civilian counsel, particularly

after the judge has criticized appointed military counsel.”    The

majority opinion goes on to hold that the military judge erred by

exercising an “inelastic attitude” in rescheduling Wiest’s trial.

      This was not an initial request for continuance as the

military judge had already granted a 34-day continuance to allow

Wiest the opportunity to find available civilian counsel after he

“fired” his original military counsel.   Wiest had been detailed

two new military attorneys whom he accepted without reservation

and who effectively represented him throughout the trial.   The

record simply does not support either the conclusion that the

military judge was “inflexible” in regard to the second requested

continuance or that Wiest was prejudiced as a result of the

denial.




1
  Due to its disposition of Issue I, the majority opinion does
not address the remaining issues. I would affirm the AFCCA on
all issues.
United States v. Wiest, No. 030106/AF

Factual Background

     Charges were preferred against Wiest on July 27, 1998, and a

hearing pursuant to Article 32, Uniform Code of Military Justice

[UCMJ], 10 U.S.C. § 832 (2000), was scheduled for August 4, 1998.

As a result of a motion by Wiest to be represented by the circuit

defense counsel, the Article 32 hearing was delayed until

September 16.   Following the Article 32 hearing, charges were

referred on November 30, and the parties agreed upon a February

2, 1999 trial date.

     On February 2, all parties and witnesses were present and

prepared for trial at the U.S. Air Force Academy.   Before Wiest

entered his pleas, however, his defense attorneys made a motion

for a new Article 32 investigation.   The basis for the motion was

that during the first Article 32 hearing, the Government had

informed the Article 32 investigating officer and defense counsel

that certain firewall logs did not exist.   It was later

discovered by the defense that these logs did in fact exist.      The

defense argued that these logs were critical to their case and

that a new Article 32 investigation should be held.   Granting the

motion on the day of trial would have had the effect of vacating

the February 2 trial date.

     The military judge conducted a hearing on the motion and

pressed the defense as to why they had not earlier challenged the

Government’s assertion that the logs had been destroyed.    The

defense counsel responded that he believed that he could rely

upon the representations of the Government.   The military judge


                                 2
United States v. Wiest, No. 030106/AF

ultimately denied the motion for a new Article 32 investigation,

noting that the “availability of the firewall logs, regardless of

their completeness, was unappreciated by both the prosecution and

the defense.”

     After the military judge announced his decision, Wiest made

the following statement:

     Your Honor, in light of your statements that my counsel were
     ineffective at my Article 32 hearing, as well as throughout
     the proceedings leading up to this court-martial, at this
     time, I would like to fire them both.

The military judge responded that he did not think that he ever

used the term “ineffective” nor had he questioned the defense

attorneys’ effectiveness, and he thought that Wiest had

misunderstood his statements to the defense counsel.   In fact,

while the record reflects that the military judge did have a

spirited exchange with the defense counsel, he did not at any

time state that the defense attorneys were ineffective nor did

his ruling reflect any such conclusion.

     Nevertheless, over the next two days the military judge held

a series of hearings to determine the availability of new

military counsel for Wiest and a new trial date.   The trial

counsel consulted with their civilian and military witnesses and

requested a trial date of March 8.   During this period Wiest and

defense counsel were able to locate military counsel that would

be available for the March 8 trial date.   During a session

pursuant to Article 39(a), UCMJ, 10 U.S.C. § 839(a) (2000) on




                                3
United States v. Wiest, No. 030106/AF

February 4, 1999, the military judge emphasized to Wiest a

disinclination to grant a further continuance:

          I don’t control whether counsel is acceptable to
          you. I do, however, control when the trial
          proceeds. And, the trial is going to proceed on
          the 8th of March 1999, unless somebody convinces
          me otherwise by very strong and compelling
          evidence that it has to be delayed.

     On February 8, Wiest retained Frank J. Spinner, a civilian

attorney, to represent him in addition to his two detailed

military counsel.   Wiest retained Mr. Spinner even though he knew

Mr. Spinner would not be available on March 8 and was aware of

the judge’s disinclination to grant a further delay.   Mr. Spinner

formally entered his appearance as civilian counsel on February

10 and at that time requested that the trial be delayed for six

weeks until April 19 to accommodate his schedule.

     The military judge denied the request that same day, stating

that he had made clear to Wiest on the record on February 2 that

any replacement counsel must be available and prepared for trial

on March 8 and if Mr. Spinner could not be available and prepared

on that date then he was not reasonably available.   Trial counsel

also opposed the request, albeit two days later, on the grounds

that it was unnecessary because Wiest had, and still did have,

sufficient time to obtain civilian counsel who could be available

on March 8.   When the parties assembled for the court-martial on

March 8, Wiest renewed his request for a continuance on the

grounds that his civilian counsel was unable to attend the court-




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United States v. Wiest, No. 030106/AF

martial due to his scheduling conflict.2    That request was denied

as well.

     Prior to the beginning of trial on March 8, Wiest accepted

his two newly appointed military counsel without reservation and

at that time the military judge released Wiest’s original

military counsel.   The new military counsel represented Wiest

throughout the court-martial.   Wiest did not attempt to discharge

his second set of military counsel, did not express any

dissatisfaction with their performance and did not, at any stage,

raise any issue of ineffective assistance of counsel.    Indeed,

his military counsel succeeded in winning an acquittal on all but

one lesser-included offense.

Constitutional Right to Counsel of Choice

     While the Sixth Amendment guarantees the assistance of

counsel in all criminal prosecutions, it provides only a

qualified – not absolute – right to retain counsel of the

defendant’s own choosing:

           [T]he purpose of providing assistance of counsel
           is simply to ensure that criminal defendants
           receive a fair trial, and that in evaluating Sixth
           Amendment claims, the appropriate inquiry focuses
           on the adversarial process, not on the accused's
           relationship with his lawyer as such. Thus, while
           the right to select and be represented by one's
           preferred attorney is comprehended by the Sixth
           Amendment, the essential aim of the Amendment is
           to guarantee an effective advocate for each
           criminal defendant rather than to ensure that a
           defendant will inexorably be represented by the
           lawyer whom he prefers.

2
  Rather than actively seek alternative civilian counsel, Wiest
apparently elected to keep Mr. Spinner as his civilian defense
counsel in order to “preserve the issue for appellate purposes.”


                                 5
United States v. Wiest, No. 030106/AF


Wheat v. United States, 486 U.S. 153, 159 (1988)(citations

and internal quotation marks omitted).

       In reviewing the “adversarial process” in this case, I note

that Wiest had two competent, prepared advocates representing

him.   This is not a case in which the military judge’s action

resulted in the defendant being forced to trial with an

inadequately prepared attorney or no attorney at all.    As the

military judge pointed out, “not everyone can be represented by

F. Lee Bailey, Johnny Cochran, or even Mr. Frank Spinner.”

Notwithstanding the absence of Mr. Spinner, the fairness of the

adversarial process was preserved.    The parameters of the

constitutional right to counsel of choice were further clarified

in United States v. Hughey, 147 F.3d 423, 428 (5th Cir.

1998)(citations and internal quotation marks omitted):

       While we concur that trial lawyers are not for the most
       part fungible, the Sixth Amendment simply does not
       provide an inexorable right to representation by a
       criminal defendant’s preferred lawyer. Indeed, there
       is no constitutional right to representation by a
       particular attorney. The Sixth Amendment right to
       counsel of choice is limited, and protects only a
       paying defendant’s fair or reasonable opportunity to
       obtain counsel of the defendant’s choice.

       Wiest was afforded a fair and reasonable opportunity to

obtain civilian counsel of his own choosing.    On February 2, when

Wiest requested a change of counsel, the military judge granted

Wiest a 34-day continuance until March 8.    He even confirmed that

the date was firm two days later.     Thus, even from the more

conservative date of February 4, Wiest had 32 days to obtain



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United States v. Wiest, No. 030106/AF

counsel of his choosing.   Thirty-two days is reasonable enough

time to secure counsel.    See United States v. Carroll, 510 F.2d

507, 510 (5th Cir. 1992)(20 days “reasonable, even generous”);

see also Unger v. Sarafite, 376 U.S. 575, 590 (1964)(five days

“not a constitutionally inadequate time” to retain counsel).

     Most cases in this area address the situation where a

“replacement” attorney is sought, not an “additional” attorney as

in this case.   Few federal courts have considered an appellant’s

right to representation by multiple counsel.    Where that issue

has been addressed, courts have generally found no abuse of

discretion in the denial of a requested continuance when the

appellant was otherwise represented by qualified and competent

counsel.   See, e.g., United States v. Riccobene, 709 F.2d 214,

231 (3d Cir. 1983); United States v. McManaman, 653 F.2d 458, 460

(10th Cir. 1981).   The “burden [of scheduling trials] counsels

against continuances except for compelling reasons.”   Morris v.

Slappy, 461 U.S. 1, 11 (1983).   The court's schedule is a matter

of necessary discretion, and should generally not be subordinated

to the schedules of the lawyers that appear before it.3   Id.


3
 Lawyers, as officers of the court, should accept cases and
clients only to the extent that they are able to adequately
represent them. See generally ABA Standards for Criminal Justice
Prosecution Function and Defense Function 4-1.3(e)(3d ed.
1993)("Defense counsel should not carry a workload that, by
reason of its excessive size, interferes with the rendering of
quality representation, endangers the client's interest in the
speedy disposition of charges, or may lead to the breach of
professional obligations . . . ."); Model Rules of Prof’l Conduct
R. 1.7(b) (addressing a lawyer's duty to his client when his
representation may be limited by other considerations, including
his representation of another client). Part and parcel of these


                                  7
United States v. Wiest, No. 030106/AF

        A defendant's qualified right to counsel does not extend to

an inflexible insistence on a specific attorney who cannot comply

with the court's reasonable schedule.     Not only was Wiest

provided with two competent defense attorneys, but the March 8

trial date gave him almost five weeks to secure an additional

civilian attorney if he so chose.      This was not an unreasonably

short period of time.    Wiest’s second request for a continuance

of an additional six weeks to accommodate Mr. Spinner’s schedule

was simply unreasonable in light of the previous proceedings in

this case.    In addition, Wiest chose to continue with Mr. Spinner

rather than make timely efforts to secure other civilian counsel

in order to “preserve the issue for appellate purposes.”       Wiest

was effectively represented in the adversarial process and there

was no deprivation of the constitutional right to counsel.

Statutory Right to Counsel of Choice

        Article 38(b), UCMJ, 10 U.S.C. § 838(b) (2000), establishes

the right of an accused to representation in his defense.

Subparagraph (3) provides that an accused is entitled to detailed

military counsel or to military counsel of his choice if

reasonably available.    Subparagraph (2) provides that “[t]he

accused may be represented by civilian counsel if provided by

him.”    The right to counsel under Article 38(b) is, in

significant respects, broader than that of the Sixth Amendment.



obligations is the duty not to adopt a schedule that hampers the
administration of justice. See United States v. Hanhardt, 156 F.
Supp. 2d 988, 999–1000 (N.D. Ill. 2001).


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United States v. Wiest, No. 030106/AF

Article 38; United States v. Gnibus, 21 M.J. 1, 6 (C.M.A. 1985).

This additional breadth notwithstanding, the statutory right to

counsel of choice, including civilian counsel of choice, “is not

absolute and must be balanced against society’s interest in the

efficient and expeditious administration of justice.”    United

States v. Thomas, 22 M.J. 57, 59 (C.M.A. 1986)(citing Morris.)

     In Thomas this Court found no abuse of discretion in the

denial of an eight-day continuance where defendant had previously

been granted a twenty-day continuance and had been warned that a

second continuance would not be granted.    Id. at 59.   Although

civilian counsel failed to appear on the set trial date

apparently due to a medical emergency in his family, detailed

defense counsel ably represented defendant.   Similarly, in United

States v. Montoya, 13 M.J. 268, 274 (C.M.A. 1982), this Court

held that “the accused's unfettered choice to select a civilian

counsel at any time during the trial . . . cannot operate to

unreasonably delay the progress of the trial.”

     An accused can always discharge his attorney, but if he
     desires to substitute another attorney for the one
     discharged, his [Article 38(b)] right is qualified in
     "that the request for substitution of counsel cannot
     impede or unreasonably delay the proceedings.

Id. (quoting United States v. Jordan, 22 C.M.A. 164, 167, 46

C.M.R. 164, 167 (1973)).

     Generally, a military judge may grant a continuance whenever

fairness renders it appropriate to do so.   Article 40, UCMJ, 10

U.S.C. § 840 (2000); Rule for Courts-Martial 906(b)(1).    After an

accused has been given a fair or reasonable opportunity to obtain


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United States v. Wiest, No. 030106/AF

counsel of choice, the decision to grant or deny a continuance to

permit a further opportunity to do so rests within the broad

discretion of the trial court and, absent clear abuse, will not

be overturned.   Thomas, 22 M.J. at 59.

     In United States v. Miller, 47 M.J. 352 (C.A.A.F. 1997),

this Court applied eleven factors to be considered in evaluating

whether a military judge abused his discretion in denying a

motion for a continuance.   Id. at 358 (citing F. Gilligan & F.

Lederer, Court-Martial Procedure § 18-32.00 at 704 (1991)).       The

AFCCA made factual findings in regard to the applicable Miller

factors and held that the military judge’s denial of the

continuance was not an abuse of discretion.4   United States v.

Wiest, ACM 33964 (Sep. 24, 2002).    This Court is bound by the

lower court’s findings of fact unless they are clearly erroneous.

United States v. Benedict, 55 M.J. 451, 454 (C.A.A.F. 2001).

     The record in this case does not support the conclusion that

the military judge’s denial of the second requested continuance

was “clearly untenable and . . . deprive[d] a party of a

substantial right such as to amount to a denial of justice,”

which is the abuse of discretion standard for motions for

continuance.   Miller, 47 M.J. at 358 (citation and internal

quotation marks omitted).

No Showing of Prejudice


4
  The AFCCA weighed the following Miller factors: surprise,
length of continuance, prejudice, prior continuances, possible
impact on the verdict, good faith and reasonable diligence of
moving party, and prior notice. Wiest, ACM 33964 at 7–12.


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United States v. Wiest, No. 030106/AF

     Wiest argues that he was prejudiced because trial lawyers

are not fungible, and he therefore has the right to insist upon

Mr. Spinner's services.   Wiest misunderstands the scope of the

right to counsel of choice.   Although trial lawyers are not for

the most part fungible, the Sixth Amendment simply does not

provide an inexorable right to representation by a criminal

defendant's preferred lawyer.   Wheat, 486 U.S. at 159.     Moreover,

despite Mr. Spinner’s experience as a litigator, it is pure

speculation to conclude that he would have obtained a better

result for Wiest than the one Wiest received from his detailed

counsel.

     Where there is no prejudice there should be no reversal.      In

United States v. Kinard, this Court stated:

    Where no harmful consequence resulted from denial of a
    continuance, there is no ground for complaint, and where the
    withdrawing or discharged counsel was adequately replaced and
    the defense properly presented, it is generally held that
    refusal of a postponement was not prejudicial to the accused.

21 C.M.A. 300, 306, 45 C.M.R. 74, 82 (citations and internal

quotation marks omitted).   Likewise, in United States v.

Wellington, 58 M.J. 420, 425 (C.A.A.F. 2003), we stated:     “[W]e

need not decide if the military judge abused his discretion [by

denying a continuance request], because Appellant has not

established that he was prejudiced.”    Here, no harmful

consequence resulted:   Wiest was not forced to trial without

adequately prepared, competent counsel, much less without any

counsel at all.   Wiest has not offered any other facts that would




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United States v. Wiest, No. 030106/AF

support the conclusion that he was denied a fair trial.     As Wiest

was not prejudiced, any error must be deemed harmless.

Conclusion

     There was no deprivation of either Wiest’s Sixth Amendment

or Article 38(b) qualified right to counsel of choice.    Even if

we were to assume that the military judge’s comments to the

initial military counsel were inappropriate, that issue was

adequately remedied when Wiest secured two new military

attorneys.   He accepted these attorneys without reservation and

at no point has he complained of their competence or

representation.   In addition, Wiest was afforded a fair and

reasonable opportunity to procure his choice of civilian counsel

and was clearly on notice that he should find counsel who was

available on the selected date.    Instead, he knowingly selected

unavailable civilian counsel.

     The language utilized by the military judge when he

announced the rescheduled trial date5 does not reflect an

inflexible attitude towards further continuances – rather it

reflects a clear statement that further continuances would not be

allowed except for strong and compelling reasons.   I am reluctant

to find error where the military judge both allowed an




5
  “[T]he trial is going to proceed on the 8th of March unless
somebody convinces me otherwise by very strong and compelling
evidence that it has to be delayed.”


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United States v. Wiest, No. 030106/AF

objectively reasonable time for Wiest to secure additional

counsel and where he acted to ensure that Wiest would be

adequately represented by prepared and available counsel.    Given

the broad latitude of the court to control its scheduling, I find

no clear abuse of the military judge's discretion and no

deprivation of Wiest’s constitutional or statutory rights in the

denial of a continuance.

     Finally, it is a rare hearing indeed where a judge’s

comments cannot be construed by one party or another as being

“negative.”   Under the majority opinion, I fear that civilian

counsel will be able to “run” the court dockets based upon their

scheduling concerns rather than traditional concerns for the

sound administration of justice.

     I would therefore affirm the decision of the AFCCA.




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