UNITED STATES, Appellee 

v. 

Jeff R. WIECHMANN, Lieutenant Colonel 

U.S. Marine Corps, Appellant 

No. 09-0082 

Crim. App. No. 200700593 

United States Court of Appeals for the Armed Forces

Argued April 15, 2009 

Decided July 9, 2009 

EFFRON, C.J., delivered the opinion of the Court, in which 

BAKER, ERDMANN, and STUCKY, JJ., joined. RYAN, J., filed a 

separate opinion concurring in the judgment. 

Counsel

For Appellant: Captain Kyle R. Kilian (argued). 

For Appellee: Lieutenant Timothy H. Delgado (argued); Brian K. 

Keller, Esq. (on brief). 

Military Judge: Bruce D. Landrum 

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION. 
United States v. Wiechmann, No. 09-0082/MC 

2

Chief Judge EFFRON delivered the opinion of the Court. 

A general court-martial composed of a military judge sitting 

alone convicted Appellant, pursuant to his pleas, of failing to 

obey a lawful order, making a false official statement, conduct 

unbecoming an officer, adultery, and obstructing justice, in 

violation of Articles 92, 107, 133, and 134, Uniform Code of 

Military Justice (UCMJ), 10 U.S.C. §§ 892, 907, 933, 934 (2000). 

The sentence adjudged by the court-martial included dismissal 

and confinement for ninety days. Pursuant to the pretrial 

agreement, the convening authority suspended all punishment for 

twelve months from the date of trial. The United States NavyMarine Corps Court of Criminal Appeals affirmed. United States 

v. Wiechmann, No. NMCCA 200700593, 2008 CCA LEXIS 298, 2008 WL 

3540244 (N-M. Ct. Crim. App. August 14, 2008) (unpublished). 

On Appellant’s petition, we granted review of the following 

issue: 

WHETHER APPELLANT WAS DENIED HIS SIXTH 

AMENDMENT RIGHT TO COUNSEL WHEN THE 

CONVENING AUTHORITY AND STAFF JUDGE ADVOCATE 

FAILED TO RECOGNIZE ONE OF HIS TWO DETAILED 

DEFENSE COUNSEL. 

 For the reasons set forth below, we conclude that the 

convening authority erred in treating one of Appellant’s defense 

counsel as not properly detailed. Under the circumstances of 

this case, we further conclude that the error was harmless 

beyond a reasonable doubt. 
United States v. Wiechmann, No. 09-0082/MC 

3

I. BACKGROUND 

A. DETAIL OF DEFENSE COUNSEL 

The accused has the right to be represented by counsel 

during an investigation under Article 32, UCMJ, 10 U.S.C. § 832 

(2000), and before a general or special court-martial. Article 

38(b)(1), UCMJ, 10 U.S.C. § 838(b)(1) (2000). See U.S. Const. 

amend. VI; United States v. Davis, 60 M.J. 469, 473 (2005). In 

the military justice system, the right to counsel includes the 

right to counsel detailed under Article 27, UCMJ, 10 U.S.C. § 

827 (2000). The right to the services of detailed counsel “is 

substantial, and extends to both the pretrial and the trial 

proceedings.” United States v. Tellier, 13 C.M.A. 323, 327, 32 

C.M.R. 323, 327 (1962). See United States v. Eason, 21 C.M.A. 

335, 337-39, 45 C.M.R. 109, 111-13 (1972). 

Under Article 27(a)(1), UCMJ, the secretaries of the 

military departments prescribe regulations governing the detail 

of military counsel. Although the accused does not have the 

right to more than one detailed counsel, “the person authorized 

by regulations prescribed under section 827 of this title 

(Article 27) to detail counsel, in his sole discretion . . . may 

detail additional military counsel as assistant defense 

counsel.” Article 38(b)(6), UCMJ, 10 U.S.C. § 838(b)(6) (2000). 

 The authority to assign detailed defense counsel to a 

particular case is vested in the official designated under 
United States v. Wiechmann, No. 09-0082/MC 

4

departmental regulations, and the accused is not entitled to 

detailed counsel of choice under Article 27(a). Compare Article 

38(b), UCMJ, 10 U.S.C. § 838(b) (2000) (setting forth the right 

to representation by civilian counsel if provided by the accused 

and the right to representation by military counsel selected by 

the accused if reasonably available under departmental 

regulations). Although the accused does not have the right to 

detailed counsel of choice, once counsel has been detailed under 

Article 27(a) and an attorney-client relationship has been 

established, the convening authority may not undermine that 

relationship. See Rule for Courts-Martial (R.C.M.) 505(d)(2); 

Eason, 21 C.M.A. at 339-40, 45 C.M.R. at 113-14. The 

responsibility for any changes in the assignment of detailed 

counsel is vested in the authority competent to detail such 

counsel under departmental regulations, not the convening 

authority, and may be exercised only for good cause shown on the 

record or under the other limited circumstances provided in 

R.C.M. 505(d)(2)(B). 

 In June 2006, Captain Snow, the senior defense counsel at 

Marine Corps Base Hawaii, learned of an impending Article 32 

investigation into charges against Appellant. Captain Snow 

detailed himself as defense counsel and requested a continuance 

of the investigation, which was granted. At that time, Captain 

Snow, who had one month of experience as defense counsel, 
United States v. Wiechmann, No. 09-0082/MC 

5

expressed through defense counsel channels his need for 

assistance, noting Appellant’s retirement-eligible status. 

Captain Snow began to explore the possibility that Appellant 

would request a specific individual military counsel at 

government expense or obtain civilian counsel at Appellant’s own 

expense. See Article 38(b)(2)-(3), UCMJ. 

The chief defense counsel of the Marine Corps detailed 

Lieutenant Colonel (LtCol) Shelburne, a reservist, to serve as 

Appellant’s defense counsel, thereby providing Appellant with 

both Captain Snow and LtCol Shelburne as detailed defense 

counsel. The convening authority subsequently denied a defense 

request for funding of LtCol Shelburne’s assignment, stating 

that he could “find no authority for the Chief Defense Counsel 

of the Marine Corps to detail LtCol Shelburne to this case.” 

LtCol Shelburne then requested a continuance of the Article 32 

hearing, noting the funding issue. The convening authority 

responded that “LtCol Shelburne is not detailed as counsel and 

has no authority to act in this matter.” 

B. REPRESENTATION OF APPELLANT AT THE ARTICLE 32 HEARING 

AND PRIOR TO REFERRAL OF CHARGES 

On July 24, 2006, LtCol Shelburne appeared at the Article 

32 hearing, objecting to the proceeding on the grounds that 

efforts were underway to address the counsel issue. He also 

stated that he did not have adequate time to meet with Appellant 
United States v. Wiechmann, No. 09-0082/MC 

6

or to prepare for the hearing. After consideration of a brief 

delay, the investigating officer decided to proceed, while 

permitting LtCol Shelburne to represent Appellant over objection 

by the Government’s representative. Following the hearing, 

LtCol Shelburne submitted objections to the investigating 

officer regarding the decision to proceed, as well as the 

decision to admit into evidence certain unsworn statements. 

LtCol Shelburne and Captain Snow subsequently requested a 

meeting with the convening authority to propose a pretrial 

agreement package, which included a proposal for disposition 

under Article 15, UCMJ, 10 U.S.C. § 815 (2000) (nonjudicial 

punishment). The convening authority denied the request for the 

meeting and refused to accept the pretrial agreement package on 

the ground that LtCol Shelburne had not been properly detailed 

as defense counsel. After Captain Snow removed LtCol 

Shelburne’s name from the package, the convening authority 

accepted the paperwork for consideration. 

After the convening authority denied a further request from 

LtCol Shelburne for a meeting, the convening authority met with 

Captain Snow alone to discuss Appellant’s case and the request 

for disposition under Article 15. The convening authority at 

that time did not agree to enter into a pretrial agreement or 

other disposition. On September 25, 2006, the convening 
United States v. Wiechmann, No. 09-0082/MC 

7

authority referred the charges for trial by general courtmartial. 

C. REPRESENTATION OF APPELLANT AT THE COURT-MARTIAL 

After the charges were referred to trial, the military 

judge initially assigned to the case conducted an informal 

scheduling conference by telephone under R.C.M. 802. The 

military judge denied Captain Snow’s request that the military 

judge include LtCol Shelburne in the discussion and suggested 

that Captain Snow submit a request for individual military 

counsel if he wanted LtCol Shelburne to be recognized. The 

defense filed a motion for appropriate relief requesting “that 

the military judge deny the government motion to prevent LtCol 

Shelburne from fulfilling his duties as detailed defense 

counsel.” 

Subsequently, a different military judge was assigned to 

the case. At the opening session of Appellant’s court-martial, 

the military judge made the standard inquiry of Appellant 

regarding representation by counsel. Appellant noted that he 

wished to be represented by LtCol Shelburne as lead detailed 

defense counsel and by Captain Snow as assistant defense 

counsel. After arraignment, the military judge heard the 

parties’ arguments on the defense motion for appropriate relief. 

The military judge granted the defense motion, ruling that 

the applicable departmental regulations authorized the chief 
United States v. Wiechmann, No. 09-0082/MC 

8

defense counsel of the Marine Corps to detail LtCol Shelburne as 

defense counsel. The military judge also interpreted applicable 

regulations as providing that LtCol Shelburne’s assignment would 

be funded by Headquarters Marine Corps rather than by the 

convening authority. 

In a separate filing, the defense moved to dismiss the 

charges based on allegations of unlawful command influence. In 

addition, the defense moved for a new Article 32 investigation 

on the ground that Appellant did not have the full assistance of 

LtCol Shelburne during the Article 32 proceedings. The military 

judge eventually denied both motions. 

While these motions were pending, the convening authority 

met with LtCol Shelburne on November 27, 2006, at the request of 

defense counsel to discuss possible disposition through 

nonjudicial punishment. LtCol Shelburne also entered into 

negotiations with the convening authority and his 

representatives about a possible pretrial agreement. 

 The convening authority and Appellant entered into a 

pretrial agreement on January 8, 2007. Appellant agreed to 

plead guilty to all charges except for one specification of 

failing to obey a lawful general order, to waive any defect in 

the Article 32, UCMJ, pretrial investigation, to waive the right 

to a board of inquiry, and to submit a request for immediate 

retirement at the grade of major. The convening authority 
United States v. Wiechmann, No. 09-0082/MC 

9

agreed to suspend any confinement and punitive discharge 

adjudged. 

LtCol Shelburne represented Appellant at Appellant’s guilty 

plea providence inquiry and at sentencing on January 10, 2007. 

During the inquiry into the plea agreement, the military judge 

explained that by pleading guilty, Appellant would forfeit the 

right to appeal the military judge’s decisions on the previous 

motions made in his case, except for the unlawful command 

influence motion. Appellant agreed that he was voluntarily 

waiving the right to appeal the prior motions. Appellant stated 

that he freely and voluntarily agreed to each of the specially 

negotiated provisions of the pretrial agreement. These 

provisions included the waiver of any defect in the Article 32 

investigation. The military judge told Appellant that the 

waiver provision “might be superfluous in light of the fact that 

the guilty plea waived the appeal of the motion. However, this 

basically states your clear understanding and your waiver of any 

defect that there might have been in that Article 32. Do you 

understand that?” Appellant replied “Yes,” and he also replied 

“Yes” when asked if it was his intention to waive any defect in 

the Article 32 investigation. 

Appellant confirmed that he was satisfied with his defense 

counsels “in all respects” and that he had entered into the 

pretrial agreement freely and voluntarily. Appellant replied 
United States v. Wiechmann, No. 09-0082/MC 

10

“yes,” when asked whether he understood “each and every 

provision” of the pretrial agreement. The military judge asked, 

“Have you fully discussed this agreement with your counsel, and 

are you satisfied that their advice has been in your best 

interests?” Appellant replied “Yes.” The military judge 

accepted Appellant’s pleas and convicted Appellant of the 

offenses to which he entered guilty pleas. 

D. CONSIDERATION BY THE COURT OF CRIMINAL APPEALS 

 Appellant alleged multiple assignments of error before the 

Court of Criminal Appeals, including that the convening 

authority’s refusal to recognize LtCol Shelburne as detailed 

defense counsel prior to the military judge’s ruling on that 

issue violated Appellant’s Sixth Amendment right to counsel and 

improperly severed his attorney-client relationship with LtCol 

Shelburne. Wiechmann, 2008 CCA LEXIS 298, at *1-*3, 2008 WL 

3540244 at *1. 

In the course of addressing these issues, the Court of 

Criminal Appeals found that LtCol Shelburne had established an 

attorney-client relationship with Appellant by the time of the 

Article 32 investigation. Id. at *8, 2008 WL 3540244, at *3. 

The court described the pretrial dispute about the validity of 

LtCol Shelburne’s status as a “good faith” disagreement “over 

how to interpret the detailing directives,” while noting that 
United States v. Wiechmann, No. 09-0082/MC 

11

the convening authority’s initial refusal to recognize LtCol 

Shelburne as detailed defense counsel “burdened his ability to 

represent the appellant pretrial.” Id. at *9, 2008 WL 3540244, 

at *3. The court concluded, however, that the convening 

authority’s actions “were not so severe as to constitute a 

severance of the attorney-client relationship, nor did they rise 

to such a level as to deny appellant due process.” Id. at *5-

*9, 2008 WL 3540244, at *1-*3. The court added that Appellant 

did not have the right to a pretrial meeting with the convening 

authority, that he benefited from the advice of LtCol Shelburne, 

and that Captain Snow served as a “conduit” to the convening 

authority until LtCol Shelburne was recognized. Id. at *9, 2008 

WL 3540244, at *3. 

II. DISCUSSION 

A. PRE-REFERRAL RESPONSIBILITIES OF THE CONVENING AUTHORITY 

 The granted issue asks whether the convening authority’s 

refusal to treat LtCol Shelburne as detailed defense counsel 

violated Appellant’s Sixth Amendment right to counsel. In 

assessing whether there has been a Sixth Amendment violation, we 

begin by considering the stage of the proceedings in which the 

acts or omissions at issue occurred. In the present appeal, the 

granted issue concerns the convening authority’s acts and 

omissions during the pre-referral stage of the proceedings. 
United States v. Wiechmann, No. 09-0082/MC 

12

Because a military judge is not appointed to conduct proceedings 

until charges are referred to a court-martial, see Article 

26(a), UCMJ, 10 U.S.C. § 826(a) (2000), the military justice 

system does not have standing courts at the trial level to 

address legal issues at the pre-referral stage. The convening 

authority exercises responsibility for pretrial matters that 

would otherwise be litigated before a judge in civilian 

proceedings, including issues involving the conduct of 

depositions, issuance of protective orders, availability of 

government-funded experts, mental responsibility proceedings, 

and questions concerning the validity of charges. See, e.g., 

Article 34, UCMJ, 10 U.S.C. § 834 (2000); R.C.M. 405(g)(6), 406, 

407, 702(b), 703(d), 706(b)(1). 

Pretrial agreements also implicate distinctive 

responsibilities of the convening authority with respect to 

court-martial proceedings. In the military justice system, 

responsibility for the function of determining sentencing is 

shared by the court-martial, see Article 51, UCMJ, 10 U.S.C. § 

851 (2000) (governing the determination of the sentence by the 

court-martial), and the convening authority, see Article 60, 

UCMJ, 10 U.S.C. § 860 (2000) (providing the convening authority 

with virtually unfettered discretion to modify the sentence so 

long as the severity is not increased). As an incident of the 

responsibility for sentencing, the convening authority may enter 
United States v. Wiechmann, No. 09-0082/MC 

13

into a pretrial agreement that imposes a legal limitation on the 

scope of the sentence. See R.C.M. 705(b)(2)(E). R.C.M. 705 

underscores the vital role of counsel at the pretrial stage of 

the proceedings: “Government representatives shall negotiate 

with defense counsel unless the accused has waived the right to 

counsel.” R.C.M. 705(d)(1). The rule further provides that a 

pretrial agreement “shall be signed by the accused and defense 

counsel, if any.” R.C.M. 705(d)(2). 

B. NONRECOGNITION OF DETAILED DEFENSE COUNSEL 

BY THE CONVENING AUTHORITY 

 A convening authority may not interfere with or impede an 

attorney-client relationship established between an accused and 

detailed defense counsel. See supra Part I.A. Although LtCol 

Shelburne was detailed as Appellant’s defense counsel, the 

convening authority declined to recognize LtCol Shelburne during 

the Article 32 investigation period in which Appellant was 

entitled to representation by detailed defense counsel under 

Articles 32(b) and 38(b)(1), UCMJ, 10 U.S.C. §§ 832(b), 

838(b)(1) (2000). The convening authority continued to do so 

during initial pretrial agreement negotiations, a period in 

which the Government was obligated to conduct any negotiations 

with defense counsel. See R.C.M. 705(d)(1). After the 

convening authority referred the case to trial, he persisted in 

refusing to recognize LtCol Shelburne as Appellant’s counsel 
United States v. Wiechmann, No. 09-0082/MC 

14

until that point in the court-martial proceedings when the 

military judge ruled that LtCol Shelburne had been properly 

detailed as defense counsel under Articles 27 and 38, UCMJ. 

As noted in the previous section, the convening authority 

exercises significant pretrial responsibilities in the 

military’s criminal justice system. The responsibility for 

detailing defense counsel, however, is not one of the duties 

assigned to the convening authority by law. Although the UCMJ, 

as originally enacted, authorized the convening authority to 

detail counsel, Congress amended the statute in 1983 to provide 

that the responsibility for detailing counsel would be exercised 

by persons authorized to do so under departmental regulations. 

Compare Act of May 5, 1950, Pub. L. No. 81-506, ch. 169, 64 

Stat. 107, 117 (Article 27(a)), with Military Justice Act of 

1983, Pub. L. No. 98-209, 97 Stat. 1393, 1394 (Article 27(a)). 

See S. Rep. No. 98-53, at 13 (1983) (noting that “in addition to 

removing . . . potential burdens, eliminating the requirement 

for the convening authority to personally detail . . . counsel 

will remove any hint or possibility of improper command 

influence or control . . . .”). The regulations at issue in the 

present case vested the responsibility for detailing counsel in 

various department-level officers, not in the convening 

authority. See Dep’t of the Navy, Marine Corps Order P5800.16A, 

Marine Corps Manual for Legal Administration, para. 2002 (Aug. 
United States v. Wiechmann, No. 09-0082/MC 

15

31, 1999); Dep't of the Navy, Judge Advocate General Instr. 

5800.7D, Manual of the Judge Advocate General para. 0130 (Mar. 

15, 2004). 

In the present case, the convening authority, who did not 

seek clarification of the department’s regulations from 

officials at the departmental level, proceeded with the case 

while declining to recognize LtCol Shelburne as Appellant’s 

detailed defense counsel. Eventually, the military judge ruled 

that LtCol Shelburne had been properly detailed as defense 

counsel, effective as of the date of LtCol Shelburne’s initial 

detail as Appellant’s defense counsel. As neither party has 

challenged the military judge’s interpretation of departmental 

regulations on appeal, we treat his ruling as the law of the 

case. See United States v. Parker, 62 M.J. 459, 464 (C.A.A.F. 

2006). In that context, the convening authority erred by 

restricting the role of Appellant’s detailed defense counsel 

during the pretrial proceedings, including the proceedings 

concerning the Article 32 investigation and pretrial agreement 

negotiations. In so doing, the convening authority improperly 

interfered with the attorney-client relationship established at 

the time of LtCol Shelburne’s initial detail as Appellant’s 

defense counsel. These actions violated Appellant’s rights 

under Article 27, UCMJ. 
United States v. Wiechmann, No. 09-0082/MC 

16

C. LIMITATIONS ON PARTICIPATION OF DETAILED DEFENSE COUNSEL 

IN THE PRETRIAL AND TRIAL PROCEEDINGS 

Captain Snow, the first detailed defense counsel, 

represented Appellant throughout the pretrial and trial 

proceedings. LtCol Shelburne, the second detailed defense 

counsel, participated in the Article 32 proceedings, submitted 

comments to the Article 32 investigating officer, and assisted 

Captain Snow in preparing the first pretrial packet for 

submission to the convening authority. After the military 

judge’s order that he was properly detailed, LtCol Shelburne 

served as lead defense counsel, participating fully in the 

negotiation of the plea agreement and subsequent trial and posttrial proceedings. 

LtCol Shelburne and Appellant had established an attorneyclient relationship by the time of the Article 32 investigation. 

See Wiechmann, 2008 CCA LEXIS 298, at *8, 2008 WL 3540244, at 

*3. In that context, the Court of Criminal Appeals observed 

that the convening authority’s “initial refusal to recognize 

LtCol Shelburne burdened [LtCol Shelburne’s] ability to 

represent the appellant pretrial.” Id. at *9, 2008 WL 3540244, 

at *3. We agree. The convening authority’s action burdened 

LtCol Shelburne’s representation of Appellant in several 

respects: (1) the Article 32 proceeding was conducted without a 

full opportunity for LtCol Shelburne to prepare and participate; 
United States v. Wiechmann, No. 09-0082/MC 

17

(2) LtCol Shelburne was excluded from pretrial disposition 

negotiations that the Government conducted with Captain Snow, 

the less experienced defense counsel; (3) LtCol Shelburne was 

unable to represent Appellant in pretrial procedural matters, 

such as in a scheduling conference or by requesting a 

continuance. Under these circumstances, the Government’s 

actions infringed Appellant’s right to the assistance of counsel 

under Article 27 during pretrial proceedings before both the 

convening authority and the military judge. See Tellier, 13 

C.M.A. at 327, 32 C.M.R. at 327; Eason, 21 C.M.A. at 335-37, 45 

C.M.R. at 109-11. 

D. EVALUATION OF ERROR AND PREJUDICE 

Having found a violation of Appellant’s statutory right to 

counsel, we now turn to Appellant’s constitutional claims. When 

a Sixth Amendment claim involves a governmental act or omission 

affecting the right of an accused to the assistance of counsel, 

we consider whether the infringement involves a structural error 

-- an error so serious that no proof of prejudice is required -- 

or whether the error must be tested for prejudice. See United 

States v. Brooks, 66 M.J. 221, 223-24 (C.A.A.F. 2008). Compare

Davis, 60 M.J. at 473 (discussing separate standards applicable 

to claims of ineffective assistance of counsel). Structural 

error exists when “a court is faced with ‘the difficulty of 
United States v. Wiechmann, No. 09-0082/MC 

18

assessing the effect of the error’” or the error is so 

fundamental that “harmlessness is irrelevant.” Brooks, 66 M.J. 

at 224 (citing United States v. Gonzalez-Lopez, 548 U.S. 140, 

149 n.4 (2006)). 

As we noted in Brooks: “‘Structural errors involve errors 

in the trial mechanism’ so serious that ‘a criminal trial cannot 

reliably serve its function as a vehicle for determination of 

guilt or innocence.’” 66 M.J. at 224 (quoting Arizona v. 

Fulminante, 499 U.S. 279, 309-10 (1991)). We further noted that 

“[t]here is a strong presumption that an error is not 

structural.” 66 M.J. at 224 (citations and quotation marks 

omitted). 

In the present case, Appellant had the services of 

qualified counsel, Captain Snow, throughout the proceedings. 

Captain Snow had the assistance of LtCol Shelburne in addressing 

pretrial matters. To the extent that the convening authority’s 

restrictions on LtCol Shelburne adversely affected Appellant’s 

rights during the Article 32 proceeding, Appellant subsequently 

entered into a plea agreement -- with the assistance of LtCol 

Shelburne -- that expressly waived any defects in the Article 32 

proceeding. Likewise, to the extent that the convening 

authority’s actions restricted Appellant’s rights during the 

initial pretrial agreement negotiations, Appellant had the 

benefit of LtCol Shelburne’s unrestricted assistance during the 
United States v. Wiechmann, No. 09-0082/MC 

19

subsequent negotiations, completion of the agreement, entry of 

pleas, and other trial and post-trial proceedings. Under these 

circumstances, the initial restrictions did not significantly 

affect “the framework within which the trial proceed[ed].” See

Gonzalez-Lopez, 548 U.S. at 148; Brooks, 66 M.J. at 224. The 

convening authority’s actions in the present case do not 

constitute the type of error that is incapable of assessment, 

and the error is not so fundamental that harmlessness is 

irrelevant. See Gonzalez-Lopez, 548 U.S. at 148-49; Brooks, 66 

M.J. at 224. Under these circumstances, the deficiencies in the 

present case do not amount to structural error. 

Appellant contends that the infringement of his Sixth 

Amendment rights, even if not structural error, constituted 

prejudicial error. In particular, Appellant contends that the 

infringement adversely affected Appellant’s rights during the 

Article 32 proceeding and during the initial pretrial agreement 

negotiations. 

The infringement of Appellant’s rights in this case 

constituted a trial error that can be “‘quantitatively assessed 

in the context of other evidence.’” Gonzalez-Lopez, 548 U.S. at 

148 (quoting Fulminante, 499 U.S. at 307-08). In that posture, 

“we shall assume, without deciding, that the Sixth Amendment was 

violated in the circumstances of this case.” United States v. 

Morrison, 449 U.S. 361, 364 (1981). Assuming that the error is 
United States v. Wiechmann, No. 09-0082/MC 

20

of constitutional dimension, we assess whether it was harmless 

beyond a reasonable doubt. See United States v. Moran, 65 M.J. 

178, 187 (C.A.A.F. 2007) (quoting Chapman v. California, 386 

U.S. 18, 24 (1967)) (applying the harmless beyond a reasonable 

doubt standard to certain constitutional errors). 

As previously noted, after the military judge’s ruling at 

the outset of the trial proceedings that confirmed LtCol 

Shelburne’s status as lead detailed defense counsel, LtCol 

Shelburne represented Appellant fully as lead defense counsel 

throughout the trial and post-trial proceedings. Appellant, 

with the assistance of LtCol Shelburne as lead counsel, entered 

into a pretrial agreement that expressly waived any error in the 

Article 32 investigation. Moreover, as lead counsel, LtCol 

Shelburne had the opportunity to engage in negotiations with the 

convening authority regarding the defense request for 

nonjudicial disposition as well as the terms of the pretrial 

agreement. Appellant has claimed no measurable prejudice from 

the inability of LtCol Shelburne to participate in the initial 

scheduling conference under R.C.M. 802, nor has Appellant 

claimed that his plea was involuntary or that the providency 

inquiry was otherwise deficient. Under these circumstances, we 

conclude that the convening authority’s erroneous action with 

respect to the status of LtCol Shelburne during the pretrial 

proceedings was harmless beyond a reasonable doubt. 
United States v. Wiechmann, No. 09-0082/MC 

21

III. CONCLUSION 

The decision of the United States Navy-Marine Corps Court 

of Criminal Appeals is affirmed. 
United States v. Wiechmann, No. 09-0082/MC 

 RYAN, Judge (concurring in the judgment): 

 I agree with the majority’s conclusion that “the convening 

authority erred by restricting the role of Appellant’s detailed 

defense counsel during the pretrial proceedings, including the 

proceedings concerning the Article 32 investigation and pretrial 

agreement negotiations.” United States v. Wiechmann, __ M.J. 

__, __ (15) (C.A.A.F. 2009). I write separately because I do 

not believe, as the majority opinion “‘assume[s] without 

deciding,’” id. at __ (19-20) (quoting United States v. 

Morrison, 449 U.S. 361, 364 (1981)), that the convening 

authority’s refusal to recognize the power vested in and 

exercised by the detailing authority by statute, see Article 

38(b)(6), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 

838 (2000) (providing that the detailing authority “in his sole 

discretion” may choose to appoint a second defense counsel), 

qualifies as constitutional error. 

 Because the Government does not challenge the conclusion by 

the Court of Criminal Appeals that the convening authority’s 

refusal to recognize Lieutenant Colonel (Lt. Col.) Shelburne 

burdened his attempts to fully represent Appellant, I, like the 

majority, accept that conclusion as the law of the case. United 

States v. Parker, 62 M.J. 459, 464 (C.A.A.F. 2006) (“When a 

party does not appeal a ruling, the ruling of the lower court 

normally becomes the law of the case.”). But Appellant has 
United States v. Wiechmann, No. 09-0082/MC 

2

likewise not disputed that during all times in which Lt. Col. 

Shelburne’s participation was limited, Appellant was fully 

represented by Captain (Capt.) Snow. At oral argument, 

Appellant conceded that Capt. Snow was competent and qualified 

to be his defense counsel; that at all times he had effective 

assistance of counsel; and that there was no instance in which 

Capt. Snow’s representation was deficient. While I believe 

reaching the constitutional issue at all to be unnecessary, 

under the circumstances of this case there is no basis for even 

suggesting that Appellant’s Sixth Amendment rights were violated 

by the limitations placed on Lt. Col. Shelburne. 

 The Sixth Amendment guarantees that “‘[i]n all criminal 

prosecutions, the accused shall . . . have the Assistance of 

Counsel for his defence.’ The core of this right has 

historically been, and remains today, ‘the opportunity for a 

defendant to consult with an attorney and to have him 

investigate the case and prepare a defense for trial.’” Kansas 

v. Ventris, 129 S. Ct. 1841, 1844-45 (2009) (citation omitted) 

(brackets and ellipsis in original). But “[n]ot every 

restriction on counsel’s time or opportunity to investigate or 

consult with his client or otherwise to prepare for trial 

violates a defendant’s Sixth Amendment right to counsel.” 

Morris v. Slappy, 461 U.S. 1, 11, 13-14 (1983) (finding there is 

no Sixth Amendment right to “a meaningful attorney-client 
United States v. Wiechmann, No. 09-0082/MC 

3

relationship” and that denial of a continuance to give an 

attorney who was appointed to appellant’s case six days before 

trial more time to prepare was not an abuse of discretion). 

Further, as the majority acknowledges, a military accused has 

neither the absolute right to detailed counsel of choice, nor 

the right to the assistance of two counsel. Wiechmann, __ M.J. 

at __ (3-4); see Article 38(b)(3)(B), UCMJ (“The accused may be 

represented by military counsel of his own selection if that 

counsel is reasonably available” as determined by applicable 

service regulations); Article 38(b)(6), UCMJ (“The accused is 

not entitled to be represented by more than one military 

counsel.”). 

 The scenario in which a defendant has two attorneys and one 

is prevented from participating in a particular stage of the 

proceedings appears to be a rare subject of litigation in the 

federal courts. One situation where it has arisen is when 

defense counsel has requested a continuance to allow both 

counsel to be present. On appeal, the reviewing courts have 

applied an abuse of discretion standard without any mention of 

the Sixth Amendment. United States v. Riccobene, 709 F.2d 214, 

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

460-61 (10th Cir. 1981). In both Riccobene and McManaman, the 

court found no abuse of discretion both because the second and 

participating attorney was qualified and competent to represent 
United States v. Wiechmann, No. 09-0082/MC 

4

the accused and because there was no assertion that the 

resulting representation was inadequate or ineffective. See

Riccobene, 709 F.2d at 231 (finding no abuse of discretion 

because appellant’s “other attorney had the experience and 

capability to represent” appellant and because appellant “d[id] 

not claim [his] representation was in any way inadequate”); 

McManaman, 653 F.2d at 460 (finding no abuse of discretion 

because attorney who was available when the trial began was 

competent and well-prepared and because “there [was] no real 

suggestion that [appellant] did not receive the assistance of 

competent counsel at his trial”). Similarly, in this case, 

Appellant was at all times represented by at least one counsel 

he conceded was competent, and there is no allegation of 

ineffective representation at any stage of the proceedings. 

 Of course, the military right to counsel is broader than 

the right to counsel guaranteed to civilians. See, e.g., United 

States v. Johnson, 21 M.J. 211, 213 (C.M.A. 1986) (“[O]ur 

starting premise is that Congress intended to bestow on 

servicemembers a right to counsel unparalleled in civilian 

criminal trials.”). But these broader rights are the creations 

of statute and regulation, not of the Constitution. See id. at 

213-15 (discussing rights guaranteed by Article 38, UCMJ); 

United States v. Gnibus, 21 M.J. 1, 5-7 (C.M.A. 1985) 
United States v. Wiechmann, No. 09-0082/MC 

5

(discussing history of right to counsel in the military as 

defined by the UCMJ and its statutory predecessors). 

Article 38(b)(6), UCMJ, provides that “the person 

authorized under regulations prescribed under [Article 27, UCMJ, 

10 U.S.C. § 827 (2000)] to detail counsel in his sole discretion 

may detail additional military counsel” to an accused. I agree 

that a convening authority who does not honor such an additional 

detailing has erred. Once a defense counsel has been detailed 

under Article 38, UCMJ, and an attorney-client relationship has 

been established, only the detailing authority may sever that 

relationship, and only then under limited circumstances. See

Rule for Courts-Martial (R.C.M.) 505(d)(2) (outlining 

circumstances in which the detailing authority, not the 

convening authority, may excuse or change defense counsel once 

that counsel has formed an attorney-client relationship with the 

accused). 

However, under the facts of this case, I cannot agree with 

the suggestion that this error could be a Sixth Amendment 

violation or an infringement of “Appellant’s right to the 

assistance of counsel under Article 27,” as the majority 

concludes. Wiechmann, __ M.J. at __ (17, 19-20). The 

majority’s suggestion that interference with one counsel while 

Appellant was fully represented by a second competent counsel 

could constitute a Sixth Amendment violation is both incorrect 
United States v. Wiechmann, No. 09-0082/MC 

6

and an unnecessary assumption, given the statutory violation we 

all agree exists. Nor do United States v. Eason, 21 C.M.A. 335, 

45 C.M.R. 109 (1972), and United States v. Tellier, 13 C.M.A. 

323, 32 C.M.R. 323 (1962), offer any support for a Sixth 

Amendment inquiry: Neither case presented the issue of 

severance of an attorney-client relationship in the context of 

an Article 27, UCMJ, “assistance of counsel” or Sixth Amendment 

claim. Instead, both cases were grounded in the statutory 

question whether the appellant’s rights under Article 38, UCMJ, 

had been violated. Eason, 21 C.M.A. at 339-40, 45 C.M.R. at 

113-14 (upholding Court of Military Review conclusion that there 

was prejudice in the government’s refusal to appoint appellant’s 

personally selected military counsel in violation of Article 38, 

UCMJ); Tellier, 13 C.M.A. at 326-28, 32 C.M.R. at 326-28 

(emphasizing that precedent from the boards of review and “the 

clear and unequivocal command of the statute’s language” lead to 

the conclusion that “an accused is entitled as a matter of right 

to the association of his appointed defense counsel with his 

individually employed attorneys”).1

 

 

1

 Of course, both cases were decided under a prior version of 

Article 38, UCMJ, which was interpreted to establish a statutory 

right to representation by two military counsel. See Article 

38(b), UCMJ, 10 U.S.C. § 838(b) (1964) (“Should the accused have 

counsel of his own selection, the defense counsel, and assistant 

defense counsel, if any, who were detailed shall, if the accused 

so desires, act as his associate counsel.”) (emphasis added). A 

subsequent revision of Article 38, UCMJ, clarified the fact that 
United States v. Wiechmann, No. 09-0082/MC 

7

 In this case, the chief defense counsel of the Marine Corps 

detailed an additional military counsel, Lt. Col. Shelburne, to 

Appellant’s case. Because the convening authority declined to 

accept this detailing as valid, he improperly refused to 

recognize authority conferred solely on the detailing authority 

by Article 38, UCMJ, and R.C.M. 505. As an error under the UCMJ 

and the Rules for Courts-Martial, it should be assessed under 

Article 59, UCMJ, 10 U.S.C. § 859 (2000), to determine whether 

the error materially prejudiced Appellant’s “substantial 

rights.” 

 For the same reasons cited by the majority in support of 

its conclusion that the error was harmless beyond a reasonable 

doubt, I agree that there was no material prejudice to 

Appellant’s substantial rights. Wiechmann, __ M.J. at __ (19-

21). I respectfully concur in the judgment. 

 

a military member is not entitled to two military counsel, 

although the person authorized under the applicable service 

regulations to detail counsel may detail a second military 

counsel “in his sole discretion.” Military Justice Amendments 

of 1981, Pub. L. No. 97-81, § 4(b), 95 Stat. 1085, 1088.