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

                             No. 201700216
                         _________________________

                 UNITED STATES OF AMERICA
                                 Appellant
                                     v.

                         ARTEM V. KOKUEV
                    Private (E-1), U.S. Marine Corps
                                Appellee
                        _________________________

   Review of Government Appeal Pursuant to Article 62(b), UCMJ

          Military Judge: Major John L. Ferriter, USMC.
  Convening Authority: Commanding General, 3d Marine Aircraft
     Wing, Marine Corps Air Station Miramar, San Diego, CA
 For Appellant: Major Kelli A. O’Neil, USMC; Lieutenant Megan P.
                       Marinos, JAGC, USN
 For Appellee: Lieutenant Commander Jon T. Taylor, JAGC, USN.
                     _________________________

                        Decided 8 November 2017
                         _________________________

Before H UTCHISON , F ULTON , and S AYEGH , Appellate Military Judges
                        _________________________

                PUBLISHED OPINION OF THE COURT

                           _________________________

   HUTCHISON, Senior Judge:
    This case is before us on a government interlocutory appeal, pursuant to
Article 62, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 862, and
RULE FOR COURTS-MARTIAL (R.C.M.) 908, MANUAL FOR COURTS-MARTIAL,
UNITED STATES (2016 ed.). The appellee is charged with wrongful production,
distribution, and use of 3, 4-methylenedioxymethamphetamine (MDMA),
assault consummated by battery upon his wife, ZK, and communicating a
threat, in violations of Articles 112a, 128, and 134, UCMJ, 10 U.S.C. §§ 912a,
928, and 934.
                       United States v. Kokuev, 201700216


    This is the appellee’s second court-martial. At the first court-martial, the
appellee was convicted of breaking restriction, willfully violating a lawful
order, and wrongfully using cocaine and alprazolam. At that court-martial
the appellee was also charged with three other offenses—assault
consummated by a battery, and wrongfully using and manufacturing 3, 4-
methylenedioxyamphetamine (MDA). When the government learned that it
had erroneously charged the appellee with the use and manufacture of MDA
instead of MDMA, it withdrew and dismissed those three charges without
prejudice. The corrected MDMA offenses and the previously withdrawn and
dismissed assault consummated by a battery have now been referred to this
second court-martial.
   The government argues that the military judge erred by: (1) denying a
defense motion to sever the attorney-client relationship between the appellee
and his detailed defense counsel; and (2) denying the government’s request to
recall ZK as a witness.
   After carefully considering the record, the military judge’s findings of
essential facts and conclusions of law, and the submissions of the parties, we
conclude: (1) that we do not have jurisdiction to review the military judge’s
decision to deny severance of the appellee’s detailed defense counsel; and (2)
the military judge did not abuse his discretion in denying the government’s
request to recall ZK.
                               I. BACKGROUND
   The appellee is in pretrial confinement and is represented by three
counsel: Captain (Capt) RM, Capt JW, and civilian defense counsel (CDC) JS.
    In its case-in-chief, the government presented nine exhibits and called
eight witnesses, including ZK, who was called to provide evidence about the
battery charge. She testified that during a drug-and alcohol-fueled night in
the appellee’s barracks room, the appellee hit and pushed her after they got
into an argument. The government did not ask ZK any questions about the
appellee’s alleged manufacturing, distribution, or use of MDMA. On cross-
examination, Capt RM confronted ZK with questions about her own drug use,
whether she had used alcohol and drugs on the night of the alleged assault,
and her pending divorce from the appellee.
   Following ZK’s testimony, the government called its final two witnesses.
However, instead of resting, the trial counsel (TC) then requested an Article
39(a), UCMJ, session and informed the military judge (MJ) that he wanted to
recall ZK to testify about the appellee’s use, manufacture, and distribution of
MDMA. The TC indicated that he had just learned “ten minutes ago” that ZK
could testify to seeing the appellee “use and manufacture MDMA, and that




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                          United States v. Kokuev, 201700216


she would also see him go meet his friends.”1 The TC explained that following
ZK’s testimony he asked ZK’s Victim’s Legal Counsel whether ZK had ever
seen the appellee use, manufacture, or distribute MDMA. His inquiry was
prompted by a member’s question that the MJ declined to ask ZK, asking,
“before the night in the barracks, had you ever seen your husband do drugs
before?”2 The CDC objected to the TC’s request to recall ZK based on a lack of
notice, and because ZK had declined the defense’s requests for interviews.
    The MJ initially denied the government’s request to recall ZK and asked
if the government had any additional evidence to present. The government
asked for and was granted an overnight recess to review their evidence and
consult with supervisory counsel regarding recalling ZK.
     In an Article 39(a), UCMJ, session the next day, ZK testified that the
appellee used, manufactured, and distributed MDMA. She also testified that
she had not previously disclosed this information to Naval Criminal
Investigative Service investigators or to the prosecutors in either of her
husband’s courts-martial because she had been on good terms with the
appellee, he had asked her not to say anything, and she did not want to
provide incriminating evidence against him. She had agreed to testify only
about the battery charges, in which she was the victim, after being
subpoenaed. But after Capt RM cross-examined her and attacked her
credibility, ZK stated she felt “bad about lying anyway, so I’m not sure why
I’d protect somebody who doesn’t have any care for me in the world.”3
    Following ZK’s Article 39(a), UCMJ, testimony, the MJ granted the
government’s request to recall her to testify prior to resting their case. As a
result, the CDC informed the court that they would be requesting two
additional witnesses to rebut ZK’s testimony. One of the witnesses was CN, a
former Marine and former roommate of ZK. The MJ ordered the government
to subpoena CN.
    Capt RM had previously represented CN at CN’s court-martial. Upon
issuance of the subpoena, the CDC moved to sever Capt RM’s attorney-client
relationship with the appellee based on an actual conflict of interest. The
appellee opposed severing his attorney-client relationship with Capt RM. The
MJ ordered Capt RM to submit a sealed affidavit4 explaining the nature of
the conflict. Included with Capt RM’s affidavit was an affidavit from the
Marine Corps’ Defense Service Organization’s Highly Qualified Expert, KC.

   1   Record at 463.
   2   Id. at 441; Appellate Exhibit (AE) XXIX.
   3   Record at 479.
   4   AE L.


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                        United States v. Kokuev, 201700216


In his affidavit, Capt RM explained the nature of his conflict with CN, while
KC opined in her affidavit that a “personal conflict” existed and that it could
not be waived. She further stated that she participated in a conference call
with Capt RM and Capt RM’s state bar counsel, in which the state bar
counsel provided “substantially similar advice” with respect to Capt RM’s
conflict of interest.5 The court then held two closed ex-parte hearings with
Capt RM.
   Following the ex parte hearings, the MJ concluded that “there is not
currently an actual conflict of interest for [Capt RM] in this case” and denied
the motion to sever.6 The MJ went on to reconsider his ruling that ZK could
be recalled to testify. He conducted a balancing test pursuant to MILITARY
RULE OF EVIDENCE (MIL. R. EVID.) 403, MANUAL FOR COURTS-MARTIAL,
UNITED STATES (2016 ed.) and found that the circumstances of ZK’s belated
revelations so undercut ZK’s credibility as to make her testimony “minimally
probative,” and that there was “significant danger of confusion of the issues,
undue delay, and wasting of time if the government were permitted to recall
[ZK].”7
    Based on the information he received in the closed ex-parte proceedings,
the MJ found that recalling ZK would result in an actual conflict of interest
for defense counsel, and that this conflict would require Capt RM’s removal
from the case. This finding weighed heavily in the MJ’s MIL. R. EVID. 403
analysis. The MJ explained that the case had already experienced delays and
resultant scheduling issues arising from the government’s request to recall
ZK and that actually recalling her would “certainly result in further
confusion of the issues, more undue delay, and wasting of time.”8 Addressing
the effect of Capt RM’s potential excusal, the MJ noted that Capt RM was the
appellee’s original counsel, that he had delivered the opening statement, and
that he had “obviously been very involved” in the appellee’s representation,
that appellee opposed his removal, and that removal of Capt RM from the
case would be unfairly prejudicial to the appellee.9
    The MJ considered several different alternatives to prohibiting the
government from recalling ZK, including limiting the scope of her testimony,
or the scope of CN’s rebuttal testimony. Ultimately, however, the MJ found


   5   Id. at 5.
   6   Id. at 629.
   7   Id.
   8  Id. The delays associated with the consideration of ZK’s recall had already
resulted in the excusal of two court members.
   9   Id. at 629-30.


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                           United States v. Kokuev, 201700216


that permitting the government to recall ZK would likely result in an actual
conflict of interest for Capt RM, and that he would have to be excused from
the case. The MJ found that “[b]ased upon the late notice of this evidence, the
attendant delays that would ensue, and the significant negative impact on
the accused’s rights to counsel . . . it would be highly and unfairly prejudicial
to allow [ZK]’s testimony at this stage of the proceedings.” 10
                                    II. DISCUSSION
A. Jurisdiction
   Article 62, UCMJ, prescribes exacting circumstances under which the
government may appeal a ruling or order of the military judge:
             (a)(1) In a trial by court-martial in which a military judge
         presides and in which a punitive discharge may be adjudged,
         the United States may appeal the following . . . :
             ....
            (B) An order or ruling which excludes evidence that is
         substantial proof of a fact material in the proceeding (emphasis
         added).
    In defining the scope of our authority under Article 62, UCMJ, the Court
of Appeals for the Armed Forces (CAAF) has explained that “the pertinent
inquiry is not whether the court has issued a ruling on admissibility, but
instead whether the ruling at issue ‘in substance or in form’ has limited ‘the
pool of potential evidence that would be admissible.’” United States v.
Wuterich, 67 M.J. 63, 73 (C.A.A.F. 2008) (quoting United States v. Watson,
386 F.3d 304, 313 (1st Cir. 2004)). Not every decision that might have some
remote effect on the admissibility of evidence is subject to government appeal
pursuant to Article 62, UCMJ. Rather, interlocutory government appeals are
restricted “to those rulings that have a direct rather than incidental effect on
the exclusion of evidence.” Id. at 75 (emphasis added) (citation omitted); see
also United States v. Vargas, 74 M.J. 1, 7 (C.A.A.F. 2014) (“Simply put, the
question is one of incidental versus direct effect”).
    Relying on Vargas, the appellee argues that the MJ’s ruling denying the
government’s request to recall ZK was simply a “case management ruling[]
intended to protect the rights of an accused and ensure the effective
administration of justice,” and therefore, “not reviewable under Article 62,
UCMJ.”11 In Vargas, the government sought an overnight continuance to
allow their remaining out-of-area witnesses to arrive before proceeding with

   10   AE LVII at 11.
   11   Appellee’s Brief of 14 Sep 2017 at 12.


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                       United States v. Kokuev, 201700216


the remainder of the case-in-chief. The MJ denied the request. When the
government indicated they could not proceed without the remaining
witnesses, the MJ rested the government’s case. We granted the
government’s appeal, finding that the “trial judge’s ruling in denying the
brief recess so that witnesses scheduled to be heard the next day could testify
and then sua sponte resting the Government’s case, had the direct effect of
limiting the pool of potential evidence that would be admissible and
excluding evidence that was substantial proof of a material fact.” United
States v. Vargas, No. 201300426, 2014 CCA LEXIS 121, at *18, unpublished
op. (N-M. Ct. Crim. App. 28 Feb 2014) (citations and internal quotation
marks omitted). The CAAF reversed, holding that neither ruling by the
military judge had the direct effect of ‘“excluding evidence’ as that term is
used in Article 62, UCMJ.” United States v. Vargas, 74 M.J. 1, 7 (C.A.A.F.
2014). Rather, the MJ’s decisions were case management decisions that had
only incidental effect on the exclusion of evidence.
    The MJ’s ruling precluding ZK from testifying here is readily
distinguishable from the MJ’s ruling in Vargas. The CAAF recognized in
Vargas that “[t]he military judge did not make any ruling which held that the
government’s evidence was inadmissible nor did she indicate that she would
not allow the introduction of properly admissible evidence.” Vargas, 74 M.J.
at 7. Here, the MJ applied the MIL. R. EVID. 403 balancing test and
determined ZK’s proffered testimony was inadmissible. As a result, the MJ’s
decision had the direct effect of excluding ZK’s testimony that she observed
the appellee use and manufacture MDMA. We have jurisdiction to decide a
government appeal of this ruling.
    However, the MJ’s denial of the defense’s motion to excuse Capt RM was
not an order or ruling that excluded evidence. Nor was the exclusion of
evidence more than incidental to the MJ’s ruling. The MJ’s ruling on the
counsel disqualification issue did not address the admissibility of any
evidence. Rather, it was a determination on the part of the MJ that—as the
case stood at the time of the ruling—Capt RM’s representation was not
affected by an actual conflict of interest.
   In United States v. Browers, the Court of Military Appeals considered
whether the denial of a continuance requested so that the government could
obtain two witnesses constituted the exclusion of evidence. 20 M.J. 356
(C.M.A. 1986). That court reasoned that “[m]ost lawyers think of exclusion of
evidence as a ruling made at or before trial that certain testimony,
documentary evidence, or real evidence is inadmissible. . . . and we see no
reason to believe that Congress had any different intention in drafting Article
62(a)(1).” Id. at 360. Similar to both Vargas and Browers, the MJ’s
determination, here, that Capt RM did not yet have a conflict of interest was


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                       United States v. Kokuev, 201700216


not a ruling that excluded evidence. This ruling does not satisfy the
jurisdictional requirements of Article 62(a)(1), UCMJ.
    Nevertheless, the appropriateness of the MJ’s ruling on the defense
motion to sever is not entirely irrelevant to our determination of whether the
MJ erred by denying the government’s request to recall ZK. We review a MJ’s
ruling to exclude evidence for an abuse of discretion. United States v. Diaz, 69
M.J. 127, 131 (C.A.A.F. 2010). “A military judge abuses his discretion when
his findings of fact are clearly erroneous, the court’s decision is influenced by
an erroneous view of the law, or the military judge’s decision on the issue at
hand is outside the range of choices reasonably arising from the applicable
facts and the law. United States v. Miller, 66 M.J. 306, 307 (C.A.A.F. 2008)
(citations omitted). Thus, to the extent the MJ’s decision to exclude evidence
depends on a clearly erroneous finding of fact or an erroneous view of the law,
we will consider such an error in our determination of whether the MJ
abused his discretion in excluding evidence.
B. Analysis
   1. Standard of review
   In reviewing an interlocutory appeal by the government, we “may act only
with respect to matters of law[.]” Art. 62(b), UCMJ; R.C.M. 908(c)(2). We are,
therefore, “bound by the military judge’s factual determinations unless they
are unsupported by the record or clearly erroneous” and we lack the
“authority to find facts in addition to those found by the military judge.”
United States v. Gore, 60 M.J. 178, 185 (C.A.A.F. 2004). “We conduct a de
novo review of [the military judge’s] conclusions of law.” United States v.
Stevenson, 52 M.J. 504, 505 (N-M. Ct. Crim. App. 1999), rev’d on other
grounds, 53 M.J. 257 (C.A.A.F. 2000); see also United States v. Greene, 56
M.J. 817, 822 (N-M. Ct. Crim. App. 2002).
   2. Scope of MIL. R. EVID. 403
   MIL. R. EVID. 403 states:
       The military judge may exclude relevant evidence if its
       probative value is substantially outweighed by a danger of one
       or more of the following: unfair prejudice, confusing the issues,
       misleading the members, undue delay, wasting time, or
       needlessly presenting cumulative evidence.
   The appellant argues that the MJ erred in denying the government’s
request to recall ZK by misapplying MIL. R. EVID. 403. Specifically, the
government contends that no military case law analyzing MIL. R. EVID. 403
has concluded that “potential or actual conflicts of interest involving the right




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                           United States v. Kokuev, 201700216


to counsel” satisfy the rule’s prejudice prong.12 The proper construction of a
military rule of evidence is a question of law we review de novo. LRM v.
Kastenberg, 72 M.J. 364, 369 (C.A.A.F. 2013) (citing United States v.
Matthews, 68 M.J. 29, 35-36 (C.A.A.F. 2009); United States v. Lopez de
Victoria, 66 M.J. 67, 73 (C.A.A.F. 2008)). Therefore, we must determine, as a
matter of law, whether “unfair prejudice” within the context of MIL. R. EVID.
403 can include the harm associated with severing an accused’s attorney-
client relationship.
    The appellant points out that in United States v. Collier, the CAAF
concluded that the term “‘unfair prejudice’ in the context of [MIL. R. EVID.]
403 ‘speaks to the capacity of some concededly relevant evidence to lure the
factfinder into declaring guilt on a ground different from proof specific to the
offense charged.’” 67 M.J. 347, 354 (C.A.A.F. 2009) (citing Old Chief v. United
States, 519 U.S. 172, 180 (1997)) (emphasis in original). The CAAF went on to
explain that MIL. R. EVID. 403 “addresses prejudice to the integrity of the
trial process, not prejudice to a particular party or witness.” Id.; but see
United States v. Bess, 75 M.J. 70, 77 (C.A.A.F. 2016) (citing MIL. R. EVID. 403
and admonishing courts-martial to implement procedures for the production
of evidence requested by members during deliberations “to ensure that no
unfair prejudice is afforded to either party.”) (emphasis added).
    Collier and the majority of cases analyzing MIL. R. EVID. 403’s unfair
prejudice prong do so in the context of admitting or excluding otherwise
relevant but inflammatory impeachment or propensity evidence, or evidence
of uncharged misconduct.13 Collier and Old Chief, while clearly binding
precedent, simply did not contemplate a scenario in which the government
would seek to introduce, near the end of trial, newly discovered evidence that
has the potential to create a disqualifying conflict of interest for a criminal
defendant’s long-time detailed defense counsel.
   Although no military appellate court has examined the relationship
between the admission of relevant evidence and its potential prejudice to an
accused’s attorney-client relationship, at least one federal circuit court has.
In United States v. Messino, the Seventh Circuit Court of Appeals asked


   12   Appellant’s Brief of 23 Aug 17 at 23.
   13 See e.g. Collier, 67 M.J. at 354-55 (holding the MJ erred in excluding cross-
examination questions regarding the appellant’s homosexual relationship with the
government’s main witness); United States v. Reynolds, 29 M.J. 105, 111 (C.M.A.
1989) (establishing a three-part test for admissibility of uncharged misconduct and
holding “[i]n order to be admissible, the evidence . . . must be carefully balanced to
insure that ‘its probative value’ is not ‘substantially outweighed by the danger of
unfair prejudice.’”) (quoting MIL. R. EVID. 403).


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                           United States v. Kokuev, 201700216


whether a district court may ever exclude relevant testimony to resolve a
conflict of interest. 181 F.3d 826, 829 (7th Cir. 1999). The court answered
affirmatively, first noting, that under FEDERAL RULE OF EVIDENCE (FED. R.
EVID.) 403, “district judges are clearly vested with some discretion to exclude
evidence.” Id. Next, citing FEDERAL RULE OF CRIMINAL PROCEDURE (FED. R.
CRIM. PROC.) 44(c) (giving trial judges the discretion to fashion remedies
arising from joint representation), and Wheat v. United States, 486 U.S. 153,
163 (1988) (permitting trial judges to disqualify attorneys despite a waiver of
conflict), the Court observed that district court judges are “given broad
discretion to fashion remedies to avoid conflicts of interest.” Messino, 181
F.3d at 830 (citations omitted). Given a district court judge’s broad discretion
to both exclude relevant evidence and to remedy conflicts, the Seventh Circuit
concluded that it was appropriate “on rare occasions” for a district court to
“exclude evidence to resolve a conflict of interest.” Id. “Without precisely
delineating the scope of a district court’s discretion” to exclude relevant to
resolve a conflict of interest, the Seventh Circuit noted that a balancing of the
kind contemplated in FED. R. EVID. 403 was appropriate. Id. Specifically, “the
probative value of the evidence must be weighed against the negative
consequences of admitting the evidence.” Id.; see also United States v.
Gearhart, 576 F.3d 459, 464 (7th Cir. 2009) (“[W]e have held that the
introduction of evidence that would generate a conflict of interest is subject to
analysis under Rule 403 of the FEDERAL RULES OF EVIDENCE”) (citing
Messino, 181 F.3d at 830).
    Finally, the Seventh Circuit has also recognized that “disqualification of
[defense] counsel” implicates matters of constitutional import; specifically in
Gearhart, the Sixth Amendment right to counsel of choice. See Gearhart, 576
F.3d at 464 (“disqualification of a defendant’s counsel of choice can in
principle pose a Sixth Amendment problem.”) (citations and internal
quotation marks omitted).
    We find the Seventh Circuit’s rationale persuasive. First, like district
court judges, military judges have broad discretion to remedy conflicts of
interest. Indeed, the language from FED. R. CRIM. PROC. 44(c)—relied on by
the Messino court—granting district court judges the discretion to remedy
conflicts arising from joint representation is nearly identical to the language
of R.C.M. 901(d)(4)(D), which governs military judges under similar
circumstances.14 Likewise, military courts have applied Wheat and held that


   14   FED. R. CRIM. PROC. 44(c)(2) states:
         Court’s Responsibilities in Cases of Joint Representation. The court
         must promptly inquire about the propriety of joint representation and
         must personally advise each defendant of the right to the effective
         assistance of counsel, including separate representation. Unless there


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                          United States v. Kokuev, 201700216


military judges have discretion to disqualify counsel when there is “a serious
potential for conflict.” United States v. Rhoades, 65 M.J. 393, 397 (C.A.A.F.
2008) (citations and internal quotation marks omitted). Recently, we
recognized that “[t]he military judge must be allowed substantial latitude” in
addressing conflicts of interest “‘not only in those rare cases where an actual
conflict may be demonstrated before trial, but in the more common cases
where a potential for conflict exists which may or may not burgeon into an
actual conflict as the trial progresses.’” United States v. Betancourt, No.
201500400, 2017 CCA LEXIS 386, at *40, unpublished op. (N-M. Ct. Crim.
App. 6 Jun 2017) (quoting Wheat, 486 U.S. at 163).
    Second, MIL. R. OF EVID. 403 is identical to its federal counterpart and,
therefore, it too “delineate[s] a zone of discretion within which judges may
exclude evidence.” Messino, 181 F.3d at 829-30. Finally, much like the
appellant’s Sixth Amendment right to counsel of choice in Gearhart, Private
Kokuev, while not threatened with the loss of counsel of choice, does have the
statutory “right to representation by military counsel provided at no
expense[.]” Rhoades, 65 M.J. at 394 (citing Art. 38(b)(3), UCMJ, 10 U.S.C. §
838(b)(3) (2000)). Moreover, the fact that the appellee has a second military
counsel does not ameliorate the appellee’s potential loss of Capt RM, because
“continuation of an established attorney-client relationship is fundamental in
the military justice system.” United States v. Baca, 27 M.J. 110, 118 (C.M.A.
1988) (emphasis added) (citing United States v. Palenius, 2 M.J. 86 (C.M.A.
1977)).
   In sum, the same factors present in Messino and Gearhart that led the
Seventh Circuit to adopt the FED. R. EVID. 403 balancing test are present
here and we adopt the Seventh Circuit’s reasoning.15 Therefore, we hold that



        is good cause to believe that no conflict of interest is likely to arise,
        the court must take appropriate measures to protect each defendant’s
        right to counsel.
   Similarly, R.C.M. 901(d)(4)(D) directs the military judge to:
        Promptly inquire, whenever two or more accused in a joint or common
        trial are represented by the same detailed or individual military or
        civilian counsel, or by civilian counsel who are associated in the
        practice of law, with respect to such joint representation and shall
        personally advise each accused of the right to effective assistance of
        counsel, including separate representation. Unless it appears that
        there is good cause to believe no conflict of interest is likely to arise,
        the military judge shall take appropriate measures to protect each
        accused’s right to counsel[.]
   15 While not specifically adopting the FED. R. EVID. 403 balancing test, other
courts of appeal have “adopted a balancing test when the government seeks to


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                             United States v. Kokuev, 201700216


in conducting his MIL. R. EVID. 403 balancing test, the MJ properly
considered, as part of his analysis of unfair prejudice, the “negative
consequences” that would follow for the appellee and his attorney-client
relationship with Capt RM. In so holding, we are mindful that the Military
Rules of Evidence “should be construed so as to administer every proceeding
fairly, eliminate unjustifiable expense and delay, and promote the
development of evidence law, to the end of ascertaining the truth and
securing a just determination.”16 A narrow reading of “unfair prejudice”
which leaves no room for an MJ to exclude minimally probative evidence that
has the potential to impact an accused’s constitutional right to counsel, does
little to promote the development of evidence law, and endangers the goal of
securing a just result.
   Of course, even if the prejudice associated with removing counsel from a
case is a proper matter for the MJ to have considered in his balancing test, it
may still be possible that the MJ abused his discretion in applying MIL. R.
EVID. 403. Therefore, we next examine the MJ’s application of the 403
balancing test to the facts presented here.
   3. Application of MIL. R. EVID. 403
    As we noted previously, the MJ’s decision to deny the government’s
request to recall ZK was precipitated by the conflict of interest ZK’s
testimony would pose for the appellee’s detailed defense counsel. If that
decision was error, then the MJ’s ultimate decision to deny the government’s
request to recall ZK would be an abuse of discretion. As a result, we first
examine the MJ’s ruling denying the defense motion to sever Capt RM’s
attorney-client relationship with the appellee.17



introduce evidence that would create a conflict of interest for the defendant’s
attorney.” Gearhart, 576 F.3d at 464 (citations omitted). See United States v. James,
708 F.2d 40, 45 (2d Cir. 1983) (“[I]nterests of the government . . . and the public
weigh more heavily here” than interests of defendants in maintaining counsel of
choice); United States v. Garcia, 517 F.2d 272, 273 (5th Cir. 1975) (“[R]esolution of
the problem requires a cautious and sensitive consideration and balancing of
individual constitutional protections, public policy and public interest in the
administration of justice, and basic concepts of fundamental fairness”).
   16   MIL. R. EVID. 102.
    17 As we noted supra, Article 62, UCMJ, does not grant this court jurisdiction to

review the MJ’s decision denying severance of the attorney-client relationship. Our
analysis of that decision is included here solely to determine whether the MJ’s
corresponding decision to deny the government’s request to recall ZK—a ruling that
is subject to review under Article 62, UCMJ—was informed by an erroneous view of
the law. Miller, 66 M.J. at 307.


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                         United States v. Kokuev, 201700216


    We review a military judge’s decision whether to disqualify a defense
counsel based upon a conflict of interest for an abuse of discretion. United
States v. Odom, 53 M.J. 526, 531 (N-M. Ct. Crim. App. 2000) (citing Wheat,
486 U.S. at 163-64). Whether an actual conflict of interest exists is a mixed
question of law and fact requiring our de novo review. United States v. Smith,
44 M.J. 459, 460 (C.A.A.F. 1996). R.C.M. 505 and 506 discuss circumstances
under which an established attorney-client relationship between an accused
and a defense counsel may be severed. Specifically, R.C.M. 506(c) authorizes
the excusal of a defense counsel “by the military judge upon application for
withdrawal by the defense counsel for good cause shown.” This court has
recognized that “good cause” includes instances where there is a conflict of
interest or breach of ethical duties. See Wuterich v. United States, No.
200800183, 2011 CCA LEXIS 148, at *6, unpublished op. (N-M. Ct. Crim.
App. 25 Aug 2011) (“Counsel may be disqualified if a party-litigant brings an
issue of conflict of interest or breach of ethical duties to the attention of the
court.”) (citing United States v. Humpherys, 57 M.J. 83, 88 (C.A.A.F. 2002)).
   Judge Advocate General Instruction (JAGINST) 5803.1E, Rule 1.7
governs conflicts of interest for attorneys practicing within the Navy and
Marine Corps. Rule 1.7(a) states, in relevant part:
         . . . a covered attorney shall not represent a client if the
         representation of that client involves a concurrent conflict of
         interest. A concurrent conflict of interest exists if: (1) the
         representation of one client will be directly adverse to another
         client; or (2) there is significant risk that the representation of
         one or more clients will be materially limited by the covered
         attorney’s responsibilities to another client, a former client or a
         third person or by a personal interest of the covered attorney.18
    Without revealing the facts or analysis giving rise to Capt RM’s potential
conflict of interest—which remain under seal—we conclude, following our de
novo review, that no actual conflict of interest currently exists between Capt
RM and CN. In reaching his findings of fact, the MJ examined extensively
both Capt RM and Ms. KC, considered their affidavits, and correctly analyzed
the rules of professional conduct. The MJ’s findings of fact establish that
Capt RM’s attorney-client relationship with CN had ceased and that Capt
RM believed, after discussion with his supervisory counsel, KC, and his state
bar, that no actual conflict would exist if ZK was not recalled to testify. We
find that military judge’s findings of fact are supported by the record and not
clearly erroneous. Rhoades, 65 M.J. at 397. Accordingly, we concur with the
MJ’s conclusion that the potential conflict had not ripened into an actual


   18   JAGINST 5803.1E (20 Jan 2015) at 35.


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                         United States v. Kokuev, 201700216


conflict of interest. Consequently, we find no abuse of discretion in the MJ’s
decision to deny the defense motion to sever Capt RM’s attorney-client
relationship with the appellee. See United States v. Barnes, 63 M.J. 563, 566
(A.F. Ct. Crim. App. 2006) (“Severing an attorney-client relationship because
of something that might happen in the future is generally not a good idea.”)
(citing United States v. Smith, 35 M.J. 138, 141 (C.M.A. 1992)).
    Turning finally to the MJ’s denial of the government’s request to recall
ZK, we review a military judge’s decision to exclude evidence for an abuse of
discretion. United States v. Diaz, 69 M.J. 127, 131 (C.A.A.F. 2010). “The
abuse of discretion standard is a strict one, calling for more than a mere
difference of opinion. The challenged action must be ‘arbitrary, fanciful,
clearly unreasonable, or clearly erroneous.’” United States v. Lloyd, 69 M.J.
95, 99 (C.A.A.F. 2010) (quoting United States v. McElhaney, 54 M.J. 120, 130
(C.A.A.F. 2000)). Therefore, a military judge has wide discretion in
determining the admissibility of evidence, and a decision to admit or exclude
evidence based on MIL. R. EVID. 403 is within the sound discretion of the trial
judge. United States v. Smith, 52 M.J. 337, 344 (C.A.A.F. 2000). Appellate
courts give a military judge “more deference if [he] properly conducts the
balancing test and articulates [his] reasoning on the record.” United States v.
Carter, 74 M.J. 204, 207 (C.A.A.F. 2015) (citation omitted); see also United
States v. Flesher, 73 M.J. 303, 312 (C.A.A.F. 2014) (“[W]here the military
judge places on the record his analysis and application of the law to the facts,
deference is clearly warranted” (citations and internal quotation marks
omitted)). Therefore, a military judge who conducted a proper balancing test
under MIL. R. EVID. 403 will not be overturned absent a clear abuse of
discretion. United States v. Stephens, 67 M.J. 233, 235 (C.A.A.F. 2009).
    Here, the MJ placed his MIL. R. EVID. 403 analysis on the record; we
therefore accord him appropriate deference. First, the MJ determined that
the evidence sought to be introduced by the government—ZK’s testimony—
was “minimally probative based upon the circumstances of when she
disclosed the information . . . and the anticipated cross-examination” by the
defense.19 The cross-examination would almost certainly focus on the fact
that ZK had not previously disclosed, when asked, any knowledge of the
appellee’s involvement with MDMA and only brought up this new evidence
after having her credibility attacked on the witness stand. The MJ correctly
pointed out that “prior to learning of this potential testimony 10 minutes
before they were otherwise planning to rest, the [g]overnment had presented
what it otherwise deemed to be the best case it had available to them after




   19   Record at 629.


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                            United States v. Kokuev, 201700216


more than a year of investigation and months of preparation for trial.”20 As a
result, the MJ concluded that when assessed within the context of the rest of
the government’s case, the “net gain” from the inclusion of ZK’s testimony to
the government’s “overall presentation of evidence [would] be minimal.”21
    Conversely, the MJ found that if he permitted ZK to be recalled, Capt RM
would have an actual conflict of interest and “would likely need to be excused
from further representation of the accused.”22 The MJ noted that Capt RM
was the appellee’s primary military defense counsel, the longest tenured of
the appellee’s counsel, and had made significant contributions to the
defense’s preparation and presentation of the case. Specifically, Capt RM
delivered the defense’s opening statement to the members and conducted the
cross-examination of ZK during her initial testimony. The MJ concluded that
recalling ZK, and thereby requiring the excusal of Capt RM, would
“significantly prejudice” the appellee.
    As we noted supra, in conducting his MIL. R. EVID. 403 balancing the MJ
considered a range of alternatives to prohibiting the government from
recalling ZK. However, the MJ concluded that limiting the scope of either
ZK’s testimony or CN’s rebuttal testimony would only “lead to more
uncertainty regarding the possible manner[] in which the remainder of the . .
. trial could play out; many of which would continue to implicate a[n] . . .
actual conflict of interest for [Capt RM].”23
    The appellant argues that even applying the Seventh Circuit’s 403
balancing test, the MJ still abused his discretion by denying the request to
recall ZK. The appellant correctly points out that in Messino, after first
finding district courts can consider the prejudice to an accused’s right to
counsel in conducting their 403 analysis, that court, nonetheless, found the
district court judge abused his discretion in excluding relevant witness
testimony despite the “serious conflict of interest issues” such testimony
would present for the accused’s defense counsel. Messino, 181 F.3d at 828.
The Seventh Circuit held that it was “undisputed” that the excluded witness’s
testimony “would be highly probative.” Id. at 830. Conversely, the court found
that the prejudice to the accused of a possibly “less effective,” but adequate




   20   AE LVII at 10.
   21 Id. We acknowledge that in forming his conclusion regarding the relative
strength of the evidence, the MJ was able to observe ZK and hear her proffered
testimony during the Article 39(a), UCMJ, session.
   22   Record at 629-30.
   23   Id. at 629.


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                           United States v. Kokuev, 201700216


representation, was “regrettable” and an “inconvenience” but did not
outweigh the probative value of the witness’s testimony. Id. at 831.
    There are stark differences, however, between the facts of Messino and
the case before us. Most importantly, in Messino the government’s
interlocutory appeal challenged a pretrial order that excluded a witness’s
testimony. Although, presumably, Messino’s attorney had done considerable
pretrial work on behalf of his client, the trial had not yet started. The
prejudice resulting from disqualification of counsel at that early stage is
markedly different than disqualification after members have been empaneled
and the government has presented nearly the entirety of its case-in-chief. The
fact that Capt RM had already made significant contributions to the
appellee’s defense during the trial distinguishes this case from Messino.24
    Having concluded that the MJ did not labor under an erroneous view of
the law regarding the scope of “unfair prejudice,” and recognizing that the MJ
“has a range of choices and will not be reversed so long as the decision
remains within that range,” Gore, 60 M.J. at 187, we hold that the MJ’s
ruling denying the government’s request to recall ZK was not beyond the
range of reasonable decisions, and that he did not, therefore, abuse his
discretion.
    Even assuming the MJ, and by extension this court, erred in extending
the Seventh Circuit’s 403 analysis of “unfair prejudice” to include the harm
associated with severing an accused’s attorney-client relationship, we would
still deny the government’s appeal. The MJ also concluded that the probative
value of ZK’s testimony was substantially outweighed by the dangers of
undue delay and wasting time. The MJ noted the issues caused by the delays
to date—including the loss of two members—and concluded that permitting
the government to recall ZK “would lead to an unquantifiable number of
subsequent delays to the proceedings that could last for significant,
unpredictable, and unknown periods of time.”25 Indeed, ZK had already
testified at length and the government had prepared its case for over a year.
Permitting the government to recall ZK based upon new-found information
near the close of the government’s case would necessarily put the appellee in
the undesirable position of either seeking a continuance in order to interview
ZK and prepare cross-examination on her new testimony—thereby extending


   24  We also note during the appeal of Gearhart’s conviction, the Seventh Circuit
upheld a district court’s ruling that disqualified a defense counsel after conducting a
FED. R. EVID. 403 balancing test. Gearhart, 576 F.3d at 463-65. Like Messino, the
district court judge’s ruling (in this case disqualifying counsel) occurred prior to the
beginning of trial, before any evidence was presented.
   25   AE LVII at 9 (citation omitted).


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                       United States v. Kokuev, 201700216


his lengthy pretrial confinement—or to forego such preparation to hasten the
conclusion of his trial. Finally, the MJ appropriately concluded that recalling
ZK would very likely require additional litigation surrounding Capt RM’s
continued representation of the appellee, which would further delay the
proceedings. Therefore, we also conclude that the MJ did not abuse his
discretion in determining that the probative value of ZK’s testimony was
substantially outweighed by the dangers of undue delay and wasting time.
                              III. CONCLUSION
    The appeal is denied. The stay of proceedings is lifted. The record of trial
is returned to the Judge Advocate General for transmittal to the convening
authority.
   Judge FULTON and Judge SAYEGH concur.
                                       For the Court




                                       R.H. TROIDL
                                       Clerk of Court




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