In an unpublished decision in United States v. Marsh, No. 38688 (A.F. Ct. Crim. App, Apr. 19, 2016) (link to slip op.), a three-judge panel of the Air Force CCA rejects an appellant’s claim that the military judge should have sua sponte recused herself because of her hostility toward his civilian defense counsel. Specifically, the appellant asserted that:

the military judge took a hostile tone toward his civilian defense counsel, especially when compared to her discussions with the trial counsel. Appellant bases his assertion on the military judge electing to hold his civilian defense counsel in contempt, while not taking a similar action against the trial counsel.

Slip op. at 3 (emphasis added). The civilian counsel is not identified in the CCA’s opinion and no punishment was imposed in connection with the finding.

The contempt finding was based on the civilian counsel’s failure to abide by court-ordered milestones. Trial counsel also failed to follow the milestones, but the military judge found that the trial counsel’s failure was negligent while the civilian counsel’s failure was willful. The CCA’s opinion notes numerous such failures, but the following was likely the basis for the contempt finding:

After Appellant pleaded guilty to some of the alleged misconduct, the Government attempted to prove up the remaining offenses involving violations of a general regulation. After the Government rested, the civilian defense counsel made several motions, to include challenging the wording of the specifications and arguing that the duties imposed by the regulation were unconstitutionally vague.

There was nothing apparent in either of these motions that suggested why the Defense was unable to provide earlier notice to the court. When asked about this by the military judge, the civilian defense counsel responded that he did not comply with the deadlines because he believed that doing so would be harmful to Appellant by providing the Government an opportunity to remedy the error.

Slip op. at 4-5. The opinion does not explain how the appellant might have been prejudiced by the timely filing of a motion (and I’m having a hard time imagining it).

The CCA finds no error because “the military judge explained, and the record supported, why the military judge elected to pursue contempt proceedings against the civilian defense counsel but not the trial counsel.” Slip op. at 5.

Notably, this issue was raised personally by the appellant and for the first time on appeal. “Failure of the defense to challenge the impartiality of a military judge may permit an inference that the defense believed the military judge remained impartial.” United States v. Burton, 52 M.J. 223, 226 (C.A.A.F. 2000).

21 Responses to “An appellant challenges a military judge’s decision to hold civilian defense counsel (but not trial counsel) in contempt”

  1. Tami a/k/a Princess Leia says:

    Were the CDC’s “untimely” motions centered around dismissal for failure to state an offense?  If so, then I’m not understanding the contempt, defense gets to raise the issue ANY time before the end of trial.  Ergo not untimely.  I would’ve done the same thing, waiting until after the government starts presenting its case results in jeopardy attaching.  Oh wait, I have done that.  :)  Actually I moved for a finding of not guilty, the MJ granted a motion to dismiss.

  2. Zachary D Spilman says:

    Jeopardy doesn’t attach if the specification fails to state an offense.

  3. Philip Cave says:

    TakaLeia/  I had to read this language multiple times from the AFCCA opinion.

    arguing that the duties imposed by the regulation were unconstitutionally vague. 

    If the CDC was making a motion to dismiss for failure to state an offense, then the motion is nonwaivable, may be raised at any time, and like you I have timed such motions.  So did the MJ and AFCCA construe this as a waivable motion–apparently so?
    If this was a waivable motion, then 

    civilian defense counsel repeatedly failed to submit motions in a timely manner.

    “Repeatedly” being the operative word.

  4. Zachary D Spilman says:

    A vagueness challenge to the regulation is different from failure to state an offense. But I think you’re right that the repeated late motions were the trigger.

  5. stewie says:

    Jeopardy doesn’t attach ZS but timing still matters.
    Do it early enough say prior to referral, and they fix it quite easily.
    Do it post referral but before trial, and it’s still fixed without too much difficulty.
    Do it after the start of trial and now the government is going to need to do a whole ‘nother trial on just that specification.
    The smartest thing might be to wait until after findings…if the panel acquits, you say nothing…if the panel convicts, you raise the issue.
    Having said that, as everyone has noted, the vagueness stuff is a completely different thing. I don’t think the DC was blameless here.  I’m not sure contempt proceedings were necessary, but maybe this is a DC that has a pattern of doing this that this MJ had seen before? I can think of one civilian DC who practices routinely in a certain jurisdiction for over a decade now who pretty much ignores rulings and timelines routinely.

  6. Joseph Wilkinson says:

    My reading of Rule 3.4(d) of the Model Rules of Professional Conduct (and also of the Army Rules of Professional Conduct) is that we are not allowed to disobey a judge’s orders (including his scheduling order) in order to rob the other side of a chance to remedy an error.  If this lawyer was doing that brazenly, contempt is the least of what he deserved.

  7. Joseph Wilkinson says:

    errr, 3.4(c), not (d).

  8. Tami a/k/a Princess Leia says:

    My motion was related to the preemption doctrine.  Client charged w/ “aggravated incest” in violation of Colorado law for having sex w/ 16 yo stepdaughter, when conduct would’ve qualified as “indecent acts” with an adult under Article 120.  Motion for finding of NG was based on impossibility of gov’t being able to prove stepdaughter was a “child” under UCMJ.  Could’ve also raised a MTD for failure to state an offense based on preemption, but a successful motion for a finding of not guilty can’t be appealed. 
    MTD for failure to state an offense can be made any time before the end of trial.  Therefore, if made at some point during the trial, it can’t be untimely.  And waiting until after the gov’t has presented evidence makes it a lot harder for them to start over from scratch.  So I hope MTD for failure to state an offense wasn’t included in the “repeated failure to make motions in a timely manner.”  I agree a challenge to the constitutionality or claim of vagueness needs to be made IAW the MJ’s schedule.

  9. Joseph Wilkinson says:

    There’s more than one kind of “untimely.”   There’s “untimely” in the sense of “you waive the right if you don’t make it before this time” (per the constitution or the R.C.M.).  Then there’s “untimely” in the sense of, “you violated the judge’s scheduling order.”  The judge is quite rightly going to write his scheduling order to avoid that kind of “gotcha!”…which leads to unnecessary retrials, or away from the “just determination of every proceeding.”
    Now if the lawyer deliberately disobeys the judge’s scheduling order, precisely so that the opposing party won’t have information he needs to fix a problem on time, he hasn’t waived the client’s rights wrt the specification…but he has “knowingly disobeyed an obligation to an opposing party and counsel under the rules of a tribunal” (in this case the judge’s scheduling order, which required him to notify the opposing counsel of the issue before a certain date).  This is forbidden by AR 27-26, Rule 3.4(c) (there’s also broader language in Rule 3.4(c) of the Model Rules).   Thus, the judge’s proper response isn’t to “deny the motion”….which isn’t untimely in the first sense…but to punish the lawyer by means of contempt, and maybe also mention it to his bar association. 
    “I got a better result for my client that way!” is, and should be, no defense. 

  10. Joseph Wilkinson says:

    Daaaaang….I should remember that pasting in language has very strange consequences here….I beg everyone’s pardon and hope the site owners have a way to remove that giant expanse of white space. 

  11. Dew_Process says:

    There is a better way to handle this type of scenario.  When a MJ issues such a “Scheduling Order” that unequivocally states that “all pretrial motions shall be filed by (date), absent further leave of court. . . .” the Defense can and should file an objection noting that a MTD for failure to state an offense can be raised at any time, and so to that extent the Order is ultra vires without saying anything more. Most reasonable MJ’s will accept that once you point it out to them.

  12. Joseph Wilkinson says:

    At the very least that satisfies Rule 3.4(c), which makes an exception for “an open refusal based on an assertion that no valid obligation exists” (i.e., you are challenging the judge’s authority to issue the scheduling order at all, and you are doing it timely, with notice to the other party and a chance to litigate it).  You’re basically telling the judge he doesn’t have the right to set those deadlines, and litigating the issue openly if necessary.
    I think he does have the right, in keeping with R.C.M. 801 and 102; and it’s the kind of reason he’s been given the contempt power in Article 48.  But I’m not aware that’s been litigated yet.  I hope judges won’t back down from that all the time, because these “gotcha!” tactics don’t serve the purposes or fit the construction of R.C.M. 102, and MJ’s should have the power to curtail them.

  13. Zachary D Spilman says:

    A local rule of practice can’t conflict with a provision in the Manual for Courts-Martial. United States v. Williams, 23 M.J. 362, 366 (C.M.A. 1987); United States v. Kelson, 3 M.J. 139, 141 (C.M.A. 1977). Scheduling orders are nice, Joseph Wilkinson, but they don’t change Presidentially-prescribed deadlines. 

    As has been noted, a motion to dismiss for failure to state an offense is a nonwaivable motion that shall be granted at any stage of the proceedings. See R.C.M. 907(b)(1)(B). Even the proposed amendment to the Manual for Courts-Martial that will make such a motion waivable, see 81 Fed. Reg. 15,272, 15,274 (Mar. 22, 2016), will preserve the language that permits it to be made any time “before the final adjournment of the court-martial,” R.C.M. 907(b)(2). So, assuming that one of the tardy motions was a motion to dismiss for failure to state an offense, that was no basis for the finding of contempt.

  14. Joseph Wilkinson says:

    907 says the grounds for dismissal are nonwaivable (i.e., the judge can’t refuse to grant the dismissal based on how late it’s filed).  It does not say that the judge can’t insist on an earlier date, and punish the lawyers (as opposed to refusing to dismiss) if they break his deadline on purpose.  
    I don’t think I can properly use my government-provided research accounts to access those cases for a discussion like this; do you know if they’re free online somewhere?  I should like to see if they address the second point as opposed to the first.

  15. Zachary D Spilman says:

    You’re an active duty judge advocate worried about using your government-provided research account to improve your knowledge of military justice?

    It’s nonsensical to say that a judge can punish an attorney for filing a motion at a time when relief must be granted. 

    In Kelson the C.M.A. considered Rule 34 of the then-existing Uniform Rules of Practice before Army Courts-Martial, which stated that:

    As soon as practicable after service of charges, and prior to the expiration of the time period prescribed in Rule 33, a defense counsel who wishes to present a motion or other pleading will prepare and furnish to the trial counsel, with a copy to the trial judge, a Motions and Hearings Checklist (fig. H-1), accompanied by any written motions or other pleadings. . . . Motions or other pleadings which are prescribed to be considered by a trial judge at a preliminary hearing which are not presented in accordance with this rule will not be entertained at a preliminary hearing or during the trial proper except for good cause shown.

    3 M.J. at 140. The defense moved to dismiss a charge for multiplicity, but the judge refused to hear the motion because it wasn’t submitted in advance of the preliminary hearing. The C.M.A. reversed:

    Appellant submits that rule 34 is contrary to his right to raise motions as set forth by the Uniform Code of Military Justice and the Manual for Courts-Martial, United States, 1969 (Rev.). The Government concedes rule 34 established a condition precedent to appellant’s right to raise motions and is inconsistent with a procedural rule set forth in the Manual. We agree.

    3 M.J. at 140 (emphasis added). And while Kelson pre-dates the modern MCM and Rules for Courts-Martial, the court’s reasoning is perfectly straightforward:

    Although the Manual contains several provisions as to which the President has permitted supplementation by the Secretary concerned, the applicable provision as to when motions must be submitted contains no clause permitting supplementation. We are not informed of, and find no delegation of authority in a different place or forum. Accordingly, we are obliged to conclude there has been no delegation of authority to the Secretary of the Army as to the matter in question. Therefore, not only is rule 34 inconsistent with the Manual but it has not been promulgated by proper authority.

    3 M.J. at 141. See also R.C.M. 801(a)(c) (“subject to the code and this Manual, [the military judge shall] exercise reasonable control over the proceedings. . . ” (emphasis added)). 

    Williams, however, does involve the modern Rules.

    A similar Rule 34 was at issue in Williams (though this one only a local rule rather than a uniform rule), requiring that all motions be served on opposing counsel at least five days before trial. A the arraignment in Williams the defense moved to suppress statements made by the accused for lack of a proper rights warning. The defense had not given advance notice of the motion as required by the local rule. The military judge applied the local rule, refused to hear the motion, and considered the issue waived. 

    The C.M.A. reversed:

    Mil.R.Evid. 304 (d)(2) provides that “[m]otions to suppress” an accused’s statements “shall be made by the defense prior to submission of a plea.” Absent such a motion, “the defense may not raise the issue at a later time except as permitted by the military judge for good cause shown”; and “[f]ailure to so move … constitutes a waiver of the objection.” The Rule of Practice in the Army Judiciary’s Fifth Circuit–the local rule with which we are now concerned–adds an additional requirement–namely, that the defense serve the motion on the Government “at least 5 working days before trial” and provide a copy thereof to the judge.

    Certainly, there are some advantages to the establishment of such a requirement. Delays and continuances in Article 39(a) sessions and in trials can be minimized or completely avoided. However laudable these objectives may be, they do not permit overriding Rules prescribed by the President in the Manual for Courts-Martial. In Mil.R.Evid. 304 (d)(2), he imposed only the requirement that a motion to suppress be made “prior to submission of a plea.” Appellant complied with this requirement. Imposition of a duty to file the motion at an even earlier time is in conflict with the Manual. Accordingly, the military judge erred in refusing to consider the merits of defense objections to reception of evidence concerning the statements.

    Of course, our conclusion as to this local Rule of Practice does not mean that all local rules are invalid. We only have before us a Rule which we have determined conflicts with a provision of the Manual for Courts-Martial–just as was true of the rule held invalid in Kelson.

    23 M.J. at 366 (emphasis added).

  16. Joseph Wilkinson says:

    First, thank you for the extra exposition.  I consider this a special favor you did to me, since you would’ve been perfectly right to say, “read them yourself when you find them,” and stop there.
    You’re an active duty judge advocate worried about using your government-provided research account to improve your knowledge of military justice?
    Precisely. (I’m an activated reservist, but six of one, half a dozen of the other.)   My reading of the contract language — it’s at the link on JAGCNET — is that you can’t use the accounts for “personal enrichment” but only for duty assignments; and while I am grateful for the education, I am not working on any such issue right now.
    It’s nonsensical to say that a judge can punish an attorney for filing a motion at a time when relief must be granted.
    This is where I part company with you, and thanks to your kindness in summarizing the cases for me, I see Kelson and Williams do not address this issue.  
    This is why: 801(a)(3) says that “[s]ubject to the code and these Rules,” a judge may “exercise reasonable control over the proceedings to promote the purposes of these rules and this Manual.”  Rule 102(a) explains that the “purpose of the rules” is a “just determination of every proceeding” and Rule 102(b) says the rules are to be construed in such a way as to “secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and delay.” 
    A scheduling order, if the deadlines are reasonable, carries out those purposes.   Now, as the lawyer admitted in OP case (and as some of our commenters have agreed), the entire purpose of the “gotcha!” tactic is to (1) avoid the just determination of proceedings (by getting the Government to give up a charge, so it won’t be decided on the merits), or (2) to create unjustifiable expense and delay (by forcing them to do a new trial, after everyone’s gone to the trouble of getting everything in place for the first one).  
    801 does include the words “subject to the Code and these rules,” which create an argument the other way, but since Rule 102(b) is the rule of construction, I think the other reading is the stronger one.   Which, if I’m right, means that the judge still has to consider the late motion on its merits, but can punish the lawyer if he defies the order on purpose, especially in the brazen way that led to the OP.  (But not if he does what DP recommends, and makes an open and honest challenge to the scheduling order up front.) 
    In this particular case it’s not clear that the challenge to the wording really was “failure to state a claim,” and there was at least one other late motion as well, so that Kelson and Williams wouldn’t save the lawyer even if I’m wrong; but I am interested in the general rule as well.

  17. Philip Cave says:


    I don’t think I can properly use my government-provided research accounts to access those cases for a discussion like this[.]

    Should a supervisor seek to caution for researching the cases cited in this particular post and thread–for example–cite them to the following.
    Rule 1.1, ABA Model Rules.
    Each of the Service RPR are based on the ABA Model Rules.
    Comment 8 to the Rule states:
    Maintaining Competence

    [8]  To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.

    I don’t know why, but I’m going to assume you are AF.  AF Rule 1.1 merely states:

    A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for representation.

    And is unhelpful, IMHO, because it arguably limits you to work on a particular case.  So, compare the Navy Rule.

    A covered attorney shall provide competent, diligent, and prompt representation to a client. Competent representation requires the legal knowledge, skill, access to evidence, thoroughness, and expeditious preparation reasonably necessary for representation. Initial determinations as to competence of a covered USG attorney for a particular assignment shall be made by a supervising attorney before case or issue assignments; however, assigned attorneys may consult with supervisors concerning competence in a particular case. 

    And Comment a.(3) to that Rule.

    (3) Maintaining Competence. To maintain the requisite knowledge and skill, a covered attorney should engage in continuing study and education. 

    The Army is similar to the Navy.  Maintaining competence then is an official duty.  As a judge advocate you might expect to encounter situations like Sterling while serving as a TC, DC, SJA, BJA, CJA, MJ.  I would have no trouble arguing that engaging in professional discussions on CAAFLog or similar situations and reading the underlying support to the discussions is a relevant exercise in maintaining competence.  When you retire you will find that it actually costs money to do this because you don’t get a military waiver or access to the free training.  So enjoy your free opportunities to get regular CLE, even if done through self study.
    As an experienced practitioner, I frequently consult CAAFLog when working on issues.  You may not always agree with what is said, but the postings and comments can be a starting point or stimulus for thought (well OK, not all, but . . . . at that point you just turn on the BS meter).

  18. stewie says:

    I actually tell my subordinates to monitor caaflog once a week. It allows them to stay abreast of the latest criminal law issues.
    As for the idea that you’ve broken PR rules by timing your motions? I say baloney, and I’d like to see someone raise with my state bar that I have violated PR by timely filing my motions according to the actual rules rather than a MJ’s timeline. I’d welcome such a thing.  I get why MJs set timelines, and often it’s wise to follow them, particularly for young DC. But sometimes, it’s wiser and better for your client to stick to the actual deadlines set out in the RCMs vice the MJ’s timelines.

  19. k fischer says:


    I can think of one civilian DC who practices routinely in a certain jurisdiction for over a decade now who pretty much ignores rulings and timelines routinely.

    Stewie, I’ve only been out for a little less than a decade.  And, I can’t recall ever ignoring rulings or time hacks.
    I had this issue pop up with a certain MJ, whom I respect immensely, who sua sponte addressed this issue prior to trial, after he noticed it while he was drafting the panel instructions on the charge.  The Government left out a critical element, i.e. the overt act in a conspiracy charge, and I told him that I could have waited until after findings to bring it up, although I did move to dismiss the charge based on US v. McGlothlen with a motion prior to trial.  Without missing a beat, he said, “Counsel, I’m not sure you’d want to do that” or words to that effect.  The charge was dismissed the charge and the Government did not re-prefer. 
    I thought it was a good strategy.  I don’t see why the defense can’t have a good gotcha moment every now and then.  But, I would probably comply with the rule if I actually see the error.  I was duly impressed that he was drafting the instructions prior to trial.

  20. stewie says:

    kf, I don’t know anyone on here personally on the CDC side, so it wasn’t in reference to anyone here. And I’m not one to disparage CDCs as a general rule. Most of them are prior JAGs, and heck I hope to be one some day.
    This guy is just…special.

  21. Joseph Wilkinson says:

    Philip Cave — Thank you.  My concern wasn’t with my own ethical obligations, but with the Army’s contracts with Lexis and Westlaw.  Per the Lexis link at JAGCNET: “Use of LexisNexis is limited to the performance of your official duties in support of military legal mission. Under no circumstances is personal use, civilian practice, or personal professional development permissible.”   The Westlaw link (back when I went through JAGCNET for that) said basically the same thing.  
    No one has objected to me reading or commenting at CAAFLog (during lunch break or after work anyway; and I don’t comment on issues too close to my current work), but actually using my government-provided Lexis/Westlaw accounts to read cases to understand an argument here…one that has nothing to do with my current duty…that, I think, goes beyond what the government has paid for.