United States v. Webb, 201500292

Background

Appellant (Navy) faced administrative separation and NJP after two positive cocaine urinalyses in 2014; DSO Pacific detailed LT H (Navy JAG) on 1 Dec 2014 to assist with separation processing.
LT H advised the appellant, prepared for possible administrative separation board, and the appellant waived the board on LT H's suggestion.
LT H detached from DSO Pacific on 1 Apr 2015 and reported to the Office of the Judge Advocate General (Code 20) in early April; DSO Pacific then detailed LT M to represent the appellant at court-martial.
Charges were preferred on 2 Apr 2015; appellant requested LT H as IMC on 14 Apr 2015. The AJAG (LT H’s commander for IMC purposes) denied the IMC request because LT H was assigned to OJAG and not reasonably available.
Appellant moved to challenge the denial and claimed an ongoing attorney-client relationship with LT H; the military judge found LT H’s representation had been limited to separation matters and no attorney-client relationship extended to the court-martial.
Convening authority withdrew the drug-use specifications that had formed the basis for LT H’s prior representation; the court affirmed findings and sentence after concluding no reversible error.

Issues

Issue	Appellant's Argument	Government's Argument	Held
Whether an attorney-client relationship existed between appellant and LT H as to charges at court-martial	LT H had an ongoing relationship that extended from separation counseling to the charges, so he was the appellant's IMC	LT H's representation was limited to administrative separation/NJP matters; he was not authorized or detailed for courts-martial and did not engage in pretrial strategy for these charges	No attorney-client relationship for the court-martial existed (mil. judge findings not clearly erroneous)
Whether termination/severance of any attorney-client relationship denied due process	Severing LT H deprived appellant of chosen counsel and due process	No relationship to sever; DSO Pacific properly detailed alternate counsel (LT M) ensuring representation	No improper severance; no due-process violation found
Whether AJAG abused discretion by denying IMC request for LT H	Denial was erroneous because LT H was the appellant's counsel and thus should be reasonably available	RCM/JAGMAN exclude OJAG staff from "reasonably available"; AJAG correctly denied request after finding no relevant attorney-client relationship	AJAG did not abuse discretion in denying IMC request
Whether any error was prejudicial requiring relief	Denial and/or severance prejudiced appellant's rights at trial	Convening authority withdrew charges central to LT H's prior representation, and appellant had alternate counsel; any error harmless	No material prejudice; findings and sentence affirmed

Key Cases Cited

United States v. Spriggs, 52 M.J. 235 (C.A.A.F.) (defendant must show bilateral understanding and active attorney engagement to establish IMC-related attorney-client relationship)
United States v. Hutchins, 69 M.J. 282 (C.A.A.F.) (discusses termination of counsel and when change of counsel requires good cause)