CAAFlog » September 2013 Term » United States v. Lee

To paraphrase T.S. Eliot, this is the way United States v. Lee ends, not with a bang, but a waiver. Ok, that may be a little dramatic, but you get the point. On March 7, 2014, CAAF decided the Marine Corps case of United States v. Lee, No. 07-0725/MC, 73 M.J. 166 (CAAFlog case page) (link to slip op.).  In a unanimous decision, the Court held that the Appellant “waived any speedy appellate review claim relating to the post-trial period preceding the rehearing, including any prejudice from the additional time spent on the Texas Public Sex Offender Registry prior to the waiver,” and that “the remaining 141-day period of review between the sentencing portion of Appellant’s rehearing and the convening authority’s action did not amount to a due process violation.” Slip op. at 2.

The granted issue in this case was whether the NMCCA erred in finding no Due Process violation where 2,500 days elapsed between sentencing and removal of Appellant’s name from the Texas Sex Offender Registry. Slip op. at 2. Before reaching the substance of the granted issue, the Court had to determine whether the Appellant waived review of the delay in the granted issue when he pleaded guilty to new charges after his case was overturned by NMCCA. Because CAAF resolves the threshold question of waiver in favor of the Government, they do not reach the main issues presented by the bulk of the delay.

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Audio of today’s oral arguments at CAAF is available at the following links (note: links were reversed, but thanks to a reader tip they are now fixed):

United States v. Talkington, No. 13-0601/AF (CAAFlog case page): Link to argument audio

United States v. Lee, No. 07-0725/MC (CAAFlog case page): Link to argument audio

CAAF will hear oral argument in the case of United States v. Lee, No. 07-0725/MC (CAAFlog case page), on Tuesday, December 17, 2013. The court will consider a single issue:

 Whether the Court of Criminal Appeals erred in finding no Due Process violation where 2,500 days elapsed between sentencing and removal of appellant’s name from the Texas sex offender registry.

The facts of this case are likely well known to most regular readers of this site; however, I’ll provide a refresher/consolidated summary.  Appellant was convicted in 2005 by a military judge sitting as a general court-martial, after mixed pleas, of three specifications of burglary, one specification of conduct unbecoming an officer and a gentleman, and five specifications of indecent assault in violation of Articles 129, 133 and 134, UCMJ, respectively. He was sentenced to confinement for three years, forfeiture of all pay and allowances, and a dismissal.

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On Tuesday CAAF granted review and ordered briefs in six five cases:

No. 07-0725/MC.  U.S. v. Jonathan E. LEE.  CCA 200600543.  Review granted on the following issue:

WHETHER THE COURT OF CRIMINAL APPEALS ERRED IN FINDING NO DUE PROCESS VIOLATION WHERE 2,500 DAYS ELAPSED BETWEEN SENTENCING AND REMOVAL OF APPELLANT’S NAME FROM THE TEXAS SEX OFFENDER REGISTRY.

Lee is a long-running Marine Corps case (and is seen by many as the precipitating event for the creation of the Marine Corps Defense Services Organization due to a conflict of interest issue that was the topic of this McClatchy article). Normally I don’t create a case page until I write an argument preview, but we’ve covered the Lee case extensively, so it gets a case page now (CAAFlog case page). See the case page for links to the long appellate history.

No. 13-0442/MC.  U.S. v. Charles C. HORNBACK.  CCA 201200241.  Review granted on the following issue:

WHETHER THE UNITED STATES NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED IN FINDING NO MATERIAL PREJUDICE TO APPELLANT’S SUBSTANTIAL RIGHT TO A FAIR TRIAL AFTER IT ASSUMED, WITHOUT DECIDING, THAT TRIAL COUNSEL’S ACTIONS AMOUNTED TO MISCONDUCT, AND WHETHER THE MILITARY JUDGE’S CURATIVE INSTRUCTIONS SUFFICIENTLY ADDRESSED THE CUMULATIVE NATURE OF SUCH CONDUCT AS WELL AS ANY CORRESPONDING PREJUDICE IN LIGHT OF THE FACTORS IDENTIFIED IN UNITED STATES v. FLETCHER, 62 M.J. 175 (C.A.A.F. 2005).

The NMCCA’s opinion in Hornback is here.

No. 13-0522/AF.  U.S. v. David J.A. GUTIERREZ.  CCA 37913.  Review granted on the following issues:

I. WHETHER THE EVIDENCE WAS LEGALLY INSUFFICIENT TO FIND BEYOND A REASONABLE DOUBT THAT APPELLANT COMMITTED ASSAULT LIKELY TO RESULT IN RIEVOUS BODILY HARM.

II. WHETHER THE EVIDENCE WAS LEGALLY SUFFICIENT TO FIND BEYOND A REASONABLE DOUBT THAT APPELLANT COMMITTED ADULTERY.

The AFCCA’s opinion in Gutierrez is here.

No. 13-0565/AR.  U.S. v. Christopher R. KEARNS.  CCA 20110348.  Review granted on the following issue:

WHETHER THE EVIDENCE WAS LEGALLY SUFFICIENT TO PROVE THAT APPELLANT HAD THE INTENT TO ENGAGE IN CRIMINAL SEXUAL CONDUCT WITH KO, A MINOR, WHEN HE FACILITATED KO’S TRAVEL IN INTERSTATE COMMERCE AND WAS FOUND GUILTY IN SPECIFICATION 1 OF CHARGE III OF VIOLATING 18 U.S.C. SECTION 2423(a).

The Army CCA’s published opinion in Kearns (72 M.J. 586) is here.

No. 13-0601/AF.  U.S. v. Korey J. TALKINGTON.  CCA 37785.  Review granted on the following issue:

WHETHER THE MILITARY JUDGE ERRED BY INSTRUCTING THE MEMBERS THAT CONSIDERATION OF SEX OFFENDER REGISTRATION IS “NOT A MATTER BEFORE THEM” AND “FRAUGHT WITH PROBLEMS.”

The Air Force CCA’s opinion in Talkington is here.

We’re fallen woefully behind in our coverage of published CCA opinions.  That’s one of the perils of a blog run by volunteers, most of whom are litigators in their day jobs.  While we never synopsized a host of recent published CCA opinions, including several ACCA opinions released in December, I’ll note the two most recent published CCA opinions.

NMCCA’s opinion in United States v. Lee, __ M.J. __, No.  200600543 (N-M. Ct. Crim. App. Feb. 21, 2013), first considers whether NMCCA retains jurisdiction where the sentence upon remand from an earlier NMCCA decision was subjurisdictional.  A similar issue recently arose in a couple of AFCCA cases.  Yes, holds NMCCA (as did AFCCA).

Once this court acquires jurisdiction, “no action by a lower court or convening authority will diminish it.”  United States v. Johnson III, 45 M.J. 88, 90 (C.A.A.F. 1996) (quoting United States v. Boudreaux, 35 M.J. 291, 295 (C.M.A. 1992)). Our appellate jurisdiction granted by Article 66 applies to, “appeal, new trial, sentence rehearing, and new review and action by the convening authority.” United States v. Davis, 63 M.J. 171, 177 (C.A.A.F. 2006). “Once jurisdiction is acquired pursuant to Article 66, the Court of Military Review has a statutory duty to review the case to completion unless the accused has waived his right to appeal or withdrawn it.” Boudreaux v. United States Navy-Marine Corps Court of Military Review, 28 M.J. 181, 182 (C.M.A. 1989).

Lee featured the odd wrinkle that upon remand, and pursuant to a PTA, a new charge was substituted for the original charges, all of which were withdrawn and dismissed.  The court observed that “the CA referred the revised additional charge and specifications to the same court-martial as the charges for which we authorized a rehearing.  . . .  This did not create a new trial on new charges before a new court-martial.”

Having determined that it possessed jurisdiction, NMCCA affirmed the findings and sentence, rejecting a due process challenge to the length of the appellate proceedings.  Chief Judge Perlak wrote for a unanimous panel.

[Disclosure:  I was counsel on an amicus brief during an earlier appeal in Lee.]

Also this week, ACCA issued a published opinion in United States v. Baxter, __ M.J. __, No. ARMY 20100487 (A. Ct. Crim. App. Feb. 20, 2013).  ACCA held that the facts of the case did not raise a reasonable and honest mistake of fact instruction as to the charged sex offenses.  If the alleged victim’s testimony was credited, the acts were nonconsensual.  If the accused’s account was credited the acts were consensual.  Neither scenario presented the possibility that the accused misperceived the alleged victim’s willingness to engage in the charged acts.  Judge Moran wrote for a unanimous panel.

Today, for the second day in a row, the Judge Advocate General of the Air Force has recertified a case to CAAF.  The recertified issue in United States v. Humphries, No. 10-5004/AF, is:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED IN FINDING APPELLEE’S SENTENCE INAPPROPRIATELY SEVERE UNDER HTE UNIQUE CIRCUMSTANCES OF THIS CASE AND ERRED IN AN ATTEMPT AT EXERCISING APPELLATE CLEMENCY BY REMANDING THE CASE TO THE CONVENING AUTHORITY WITH INSTRUCTIONS THAT THE CONVENING AUTHORITY MAY APPRVE AN ADJUDGED SENTENCE NO GREATER THAN A SUSPENDED BAD CONDUCT DISCHARGE AND A REDUCTION TO THE GRADE OF E-1.

AFCCA’s latest opinion in the case is available here.

Also today, Code 46 filed notice with CAAF that the Judge Advocate General of the Navy chose not to certify the case of United States v. Lee to CAAF.  Code 46 had previously sought and received an extension of time for the Judge Advocate General to decide whether to certify the case.  NMCCA’s published decision in the case is available here.

McClatchy continued its focus on military justice matters today with this article , focusing on the Lee case, about cases in which conflicts of interest have arisen during servicemembers’ representation by Marine Corps defense counsel. The Lee opinion is available here.  The Kabul Klipper posted his thoughts about Lee here.

UPDATE:  A mistake we noted in the original report has now been corrected.  The article originally reported that “[t]he military has until Friday to decide whether it will prosecute Lee again.” Friday is actually the extended deadline for the Judge Advocate General of the Navy to file a certificate for review if he chooses to do so.  See United States v. Lee, __ M.J. __, No. 11-5006/MC (C.A.A.F. Aug. 26, 2011) (order).  The article now accurately states:  “The military has until Friday to decide whether it will file a request for review by a higher appellate court.”

United States v. Lee is an interesting and thoughtfully presented opinion, and worth the read.  Colonel Sullivan’s summary hits the substantive points, but some of the comments got me thinking.

I agree with the court that the counsel in this case should have discussed the conflict issue with the client.  But I’m not as far out on the “outrage” spectrum as the commentators about the prospect of the defense counsel taking the remnants of his docket with him down the hall to the trial shop.

Both the opinion and the comments bring to mind any number of military justice idiosyncrasies that a would be unacceptable anywhere else in lawyerdom.  Stewie, the 2L off the street wouldn’t answer a hypothetical about juror selection the same way Article 25 does, either.

I suspect that the Marine Corps officer in charge of this legal shop thought that the counsel involved were sufficiently professional–and honorable–to zealously fulfill their roles without fear of causing or suffering professional repercussions as a result of their performance.  Our system has a history of relying on the professionalism and restraint of its participants–even non-lawyer participants–where only structural protections would be acceptable in the civilian system.

I’m reminded of Justice Scalia’s discussion of our method of detailing military judges in his concurrence in Weiss v. United States.   The appellants in Weiss urged that the UCMJ’s protection of military judges from adverse actions based on the exercise of their judicial function was an inadequate substitute for an independent judiciary not subject to evaluation and detailing by the JAG.  Justice Scalia found that our history didn’t support the notion that all of our practices have to pass the civilian sniff test:

 [N]o one can suppose that similar protections against improper influence would suffice to validate a state criminal law system in which felonies were tried by judges serving at the pleasure of the Executive. I am confident that we would not be satisfied with mere formal prohibitions in the civilian context, but would hold that due process demands the structural protection of tenure in office, which has been provided in England since 1700, was provided in almost all the former English colonies from the time of the Revolution, and is provided in all the States today. (It is noteworthy that one of the grievances recited against King George III in the Declaration of Independence was that “[h]e has made Judges dependent on his Will alone, for the tenure of their offices.”)

Weiss v. United States, 510 U.S. 163, 198-99 (Scalia, J., concurring) (citations omitted) (emphasis and second alteration in the original).

So I’m not joining the commentariat’s collective facepalm.  Sometimes nonstructural safeguards–even ones that primarily function by relying on the honor and integrity of the system’s participants–are sufficient in our system. It was a mistake to not discuss the matter with the client.  But maybe someday this same opinion gets written about our practice of assigning counsel out of the same command to conflict cases.  Or having convening authorities pick members.  I see Lee more as evidence of a continued trend away from reliance on people and their integrity and toward process and structure.  Neither approach is perfect.

NMCCA today released its published opinion in United States v. Lee, __ M.J. __, No. 200600543 (N-M. Ct. Crim. App. July 28, 2011).  The case isn’t yet on NMCCA’s website, so we’ve uploaded it here.

Capt Lee was represented by both a civilian defense counsel and a Marine Corps captain — Capt Reh — as detailed defense counsel.  Soon after charges were referred against Capt Lee, Capt Reh had transitioned to the trial shop.  During the litigation of Capt Lee’s case, which featured mixed pleas, his trial defense counsel’s reporting senior was the same TC who was prosecuting Capt Lee. Capt Lee was never informed that Capt Reh worked directly for the prosecutor in his case.  Nor was Capt Lee told that his detailed defense counsel was working with the trial counsel to prosecute a high-visibility homicide case contemporaneously with his court-martial.

NMCCA found that the extent of the trial defense counsel’s conflict was unknown to Capt Lee and his civilian counsel.  The opinion noted, “with some disbelief and disapproval, that none of the counsel involved brought this potential problem to the attention of the military judge, the independent person in the best position to gather facts and to make rulings in the interest of justice.”  Id., slip op. at 5 (internal citation omitted).  The court continued, “The record reveals a troubling lack of transparency before the tribunal and an even more troubling failure to recognize the conflicts, real or perceived, occasioned by Capt Reh’s assignment as a direct subordinate of the prosecutor in this case.”  Id.

NMCCA concluded that Capt Lee didn’t have a viable IAC claim.  Id., slip op. at 6.  The court also concluded that there was no demonstration of prejudice, thereby precluding reversal on conflict grounds.  Id., slip op. at 6-7.   The court also declined to find structural error, citing CAAF’s Hutchins decision.  See id., slip op. at 7-8.  Nevertheless, NMCCA ordered relief, relying on its Article 66(c) mandate to do justice.  NMCCA declined to approve the findings or sentence.  It authorized a rehearing on the findings.

NMCCA explained:

We . . .  focus[] on the chain-of-command relationship between the uniformed defense counsel, Capt Reh, and the prosecutor in this case, Maj Keane, and the failure of any attorney, either within the defense technical chain or the prosecution technical chain, to bring the matter to the attention of the military judge for discussion on the record.  Taking that approach  . . . leads us to our conclusion to afford relief to the appellant under Article 66, UCMJ.

Id., slip op. at 8.

NMCCA emphasized that Capt Reh wasn’t disqualified from serving as Capt Lee’s defense counsel.  Id.  But in this case, the accused never made an “intelligent decision to waive conflict-free counsel” because he received insufficient information about Capt Reh’s new duties to allow him to do so.  To avoid a repetition of what occurred here, NMCCA announced this requirement:

[W]hen a defense counsel is assigned duties that place him in the rating chain of the trial counsel, defense counsel must advise the client and any co-counsel of the potential conflicting interests and then arrange for the client to be advised by a disinterested party as to the necessity for a waiver.  Defense counsel must notify the military judge of the potential conflict; failing that, trial counsel, as an officer of the court, must do so.  Only when the military judge is satisfied that the client understands the right to conflict-free counsel and waives any disability may the trial progress; however, in the interests of justice, the military judge may consider other remedies such as disqualification of the trial counsel from further participation, or alteration of the rating chain of the defense counsel.

Id., slip op. at 10.

While the holding was case-specific, the opinion was sharply critical of “business as usual” shifts of counsel between trial shops and defense shops in Marine Corps legal offices.

Regarding its exercise of its Article 66 powers, NMCCA explained:

[I]t is occasionally necessary to “apply needed prohylaxis” in cases, such as the one before us, where application of the ineffective assitance of counsel test is inadequate to assure vindication of an accused service member’s rights to counsel and to military due process.

. . . .

We are bound to conclude that the system of identifying and resolving professional conflicts of interests failed the appellant in this case.  We find that his guilty pleas were improvident as they were made without a clear understanding of the burden under which his counselors labored when advising him to enter these pleas as part of the overall trial strategy.

We find that the appellant futher did not knowingly or intelligently waive conflict-free counsel for the trial on the merits.  We are unable to conclude, however, for reasons discussed above, whether this legal error materially prejudiced the appellant’s substantial rights.  Ordinarily, then, we would be compelled to affirm the findings on the contested charges under Article 59.

As we noted previously, however, the system failed this appellant.  His counsel were laboring under a professional disability that he did not fully understand; it may be that his counsel themselves did not fully understand the disability.  With the passage of time, moreover, Capt Reh became more fully ensconced in the prosecution function as his remaining defense cases were resolved.  The appellant did not benefit from the sober and detached perspective of the military judge whom our system empowers to hear and resolve professional conflicts — as all counsel connected with this litigation failed to inform the trial judge of the inherent conflict in this case.  The result of a trial in which the uniformed defense counsel is simultaneously working as a prosecutor under the officer who prosecuted the appellant might not appear to the general public to be “fair”.

Employing, therefore, our “awesome, plenary, de novo power of review,” United States v. Cole, 31 M.J. 270, 272 (C.M.A. 1990), it is our judgment, based on the entire record, that the findings and the sentence in this court-martial should not be approved.

Id., slip op. at 11.

Senior Judge Booker wrote for a unanimous panel.

One notable aspect of this case for military appellate wonks is that the most recent appeal was argued by a uniformed attorney who is not assigned to Code 45 — Col John Baker, the Chief Defense Counsel of the Marine Corps.

[Disclosure:  I was one of the counsel on the Air Force Appellate Defense Division’s amicus brief in support of the appellant.]

Audio of NMCCA’s latest very interesting oral arugment in United States v. Lee, No. NMCCA 20060543, is now available here.

Audio of NMCCA’s oral argument in United States v. Lee is now available here.

When we last visited United States v. Lee, CAAF was remanding the case for a DuBay hearing to look into potential conflicts arising from a Marine judge advocate’s simultaneous service as a defense counsel in Capt Lee’s case and a trial counsel serving under Capt Lee’s prosecutor in other cases.  United States v. Lee, 66 M.J. 387 (C.A.A.F. 2008).

After a DuBay hearing was held 12-13 January and 13 February 2009, the case returned to NMCCA.  In an unpublished opinion issue today, NMCCA kick the case back for another DuBay hearing.  United States v. Lee, No. NMCCA 200600543 (N-M. Ct. Crim. App. Nov. 10, 2009).  Senior Judge Vincent wrote for a unanimous panel.  I’ve posted a copy here.

While the court found a specific problem with the DuBay hearing’s handling of one of the questions it was supposed to address, the principal holding is that the military judge who conducted the DuBay hearing erred by denying a challenge for cause lodged against him.  NMCCA concluded that the DuBay hearing’s military judge “possess[ed]personal knowledge as to evidentiary facts in dispute during the DuBay hearing,” thus requiring his disqualification.  Id., slip op. at 6.

Here’s a link to the audio of NMCCA’s oral argument in United States v. Lee.

CAAF split 3-2 today, ruling that a possible conflict of interest by a trial defense counsel’s overlapping assignments as a DC and a TC required additional factfinding. United States v. Lee, __ M.J. ___, No. 07-0725/MC (C.A.A.F. June 13, 2008). Judge Baker wrote for the majority joined by Chief Judge Effron and Judge Erdmann. Judge Ryan wrote for the dissent joined by Judge Stucky.

While Capt Lee knew that his TDC was prosecuting some “minor offenses” as a TC while he was finishing up his assignment in defense, Capt Lee stated that only after he was tried and convicted did he learn “that his detailed counsel had actually been working as a prosecutor on another serious case while simultaneously representing him. Moreover, in this other case, his detailed counsel was working for the same trial counsel prosecuting his case.” Id., slip op. at 3. Capt Lee was simultaneously represented by a retained civilian counsel.

The majority observed that “case law varies on whether the simultaneous representation of the United States and a defendant results in per se prejudice or whether the defendant must at least show that the conflict adversely effected his counsel’s performance.” Id., slip op. at 6.

It doesn’t appear that CAAF takes either side in that legal dispute. Instead, the court concluded that “it is necessary for us to remand this case for further findings and conclusions of law.” Id., slip op. at 8. In an appendix, CAAF set out nine factual issues that should be resolved at a DuBay hearing. See id., slip op. at 10.

The dissent cast the case as an inquiry into whether “an actual conflict of interest adversely affected [Capt Lee’s] lawyer’s performance.” Dissent at 1 (quoting Cuyler v. Sullivan, 446 U.S. 335, 350 (1980)). The dissent concluded that a remand for further inquiry concerning the military defense counsel’s potential conflict is unnecessary because “Appellant fails to show, or even allege, prejudice or deficient performance by either the potentially conflicted detailed counsel or his privately retained civilian counsel.” Dissent at 1-2. The dissent also relied on the Supreme Court’s opinion in Mickens v. Taylor, 535 U.S. 162 (2002), for the proposition that an actual conflict of interest occurs only where a conflict “affect[s] counsel’s performance” rather than simply suggesting a “theoretical division of loyalties.” Dissent at 5-6. The dissent concluded, “Where, as here, Appellant has not alleged any deficiencies in his detailed counsel’s performance, it is unnecessary to resolve the question whether defense counsel actively represented conflicting interests because Appellant cannot establish prejudice under Cuyler.” Id. at 6.

CAAF granted review of another interesting issue today: “WHETHER CAPT [R]’S FAILURE TO DISCLOSE HIS CONFLICT OF INTEREST RESULTED IN AN UNINFORMED AND INVALID ELECTION OF COUNSEL.” United States v. Lee, __ M.J. ___, No. 07-0725/MC (C.A.A.F. Nov. 20, 2007). Captain Lee’s appellate defense counsel who obtained the grant is Eugene Fidell the Sagacious.

The Navy-Marine Corps Court’s unpublished opinion, which is quite interesting, is here. United States v. Lee, NMCCA 200600543 (N-M. Ct. Crim. App. June 26, 2007). Here is the opinion’s discussion of the conflict issue:

Conflict of Interest of Trial Defense Counsel

The appellant contends that his military trial defense counsel failed to disclose a conflict of interest in acting as a prosecutor in another case at the time of the appellant’s trial. He urges us to set aside the findings and sentence on the basis that this situation resulted in an invalid election of counsel by the appellant. We disagree and decline to grant the requested relief.

Facts

The appellant contends that his military trial defense counsel, Capt Reh, failed to disclose that while the appellant’s trial was in progress, he was also serving as assistant trial counsel in a prosecution for which the lead prosecutor was the trial counsel in the appellant’s case, Maj Keane. The appellant claims that the two counsel worked together as prosecutors in an Article 32, UCMJ, proceeding the week before the appellant’s trial. The appellant alleges that he did not learn of this situation until after his court-marital proceedings were completed. The appellant concedes that Capt Reh informed him in February 2005 that Capt Reh would be prosecuting minor offenses involving drugs and unauthorized absences as he transitioned off of active duty. The appellant also concedes that, based on this disclosure, he agreed that Capt Reh should continue to represent him. The appellant was also represented by civilian counsel throughout the proceedings.

Law

A military accused is guaranteed the right to effective assistance of counsel under the Sixth Amendment and Article 27, UCMJ. United States v. Fluellen, 40 M.J. 96, 98 (C.M.A. 1994). This right includes the right to counsel free from conflicts of interest. United States v. Carter, 40 M.J. 102, 105 (C.M.A. 1994). To demonstrate a Sixth Amendment violation, the appellant must establish (1) an actual conflict of interest, and (2) that this conflict adversely affected his lawyer’s performance. United States v. McClain, 50 M.J. 483, 488 (C.A.A.F. 1999).

Analysis

We find this assignment of error to be without merit. We find no actual conflict of interest in this case. The appellant acknowledges that Capt Reh advised that he would be prosecuting cases at the same time he was representing the appellant. Following this disclosure, the appellant decided that he wanted Capt Reh to continue to represent him, along with civilian counsel. The mere fact that Capt Reh ultimately worked as a trial counsel on a different case with the trial counsel on appellant’s case does not by itself create an actual conflict of interest. Moreover, the appellant fails to identify any connection between the fact that Capt Reh and Maj Keane worked together as prosecutors on a completely unrelated case and the representation he received at his court-martial. To the contrary, all evidence in the record indicates that the appellant received excellent representation from his civilian and military trial defense counsel throughout the court-martial process. Additionally, the appellant’s civilian counsel was the lead counsel throughout the appellant’s trial.

The appellant urges us to apply an “inherent prejudice” standard to his case. Certain cases involving concurrent representation of multiple clients have been treated as inherently prejudicial. See Cuyler v. Sullivan, 446 U.S. 335, 348-49 (1980). Also, in United States v. Cain, 59 M.J. 285, 295 (C.A.A.F. 2004), our superior court found that the situation in that case was inherently prejudicial because it involved “an attorney’s abuse of a military office, a violation of the duty of loyalty, fraternization, and repeated commission of the same criminal offense for which the attorney’s client was on trial,” all of which was left unexplained as a result of defense counsel’s suicide. Cain advised, however, that “most cases will require specifically tailored analyses in which the appellant must demonstrate both the deficiency and prejudice under the standards set by Strickland.” 59 M.J. at 294. We find that the application of an inherent prejudice standard to this case is clearly not warranted under existing case law. United States v. Nicholson, 15 M.J. 436, 438 (C.M.A. 1983); United States v. Hubbard, 43 C.M.R. 322, 325 (C.M.A. 1971); see Cain, 59 M.J. at 294.

Conclusion

Because the appellant has failed to establish the existence of any actual conflict of interest and failed to show that the alleged conflict adversely affected his military trial defense counsel’s performance, we find no merit in this assignment of error.