UNITED STATES NAVY–MARINE CORPS

COURT OF CRIMINAL APPEALS

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No. 201600149

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UNITED STATES OF AMERICA

Appellee

v.

WYATT L. QUALLS

Private (E-1), U.S. Marine Corps

Appellant

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Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judge: Lieutenant Colonel David M. Jones, USMC.

For Appellant: Commander Brian L. Mizer, JAGC, USN.

For Appellee: Commander Serajul F. Ali, JAGC, USN; 

Lieutenant James M. Belforti, JAGC, USN.

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Decided 20 December 2016

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Before MARKS, FULTON, and GLASER-ALLEN, Appellate Military Judges

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This opinion does not serve as binding precedent, but may be cited 

as persuasive authority under NMCCA Rule of Practice and 

Procedure 18.2.

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PER CURIAM: 

A military judge sitting as a special court-martial convicted the appellant, 

in accordance with his pleas, of unauthorized absence, wrongful use of heroin, 

three specifications of larceny, housebreaking, and unlawfully breaking into a 

motor vehicle in violation of Articles 86, 112a, 121, 130, and 134, Uniform 

Code of Military Justice (UCMJ), 10 U.S.C. §§ 886, 912a, 921, 930, and 934. 

The military judge sentenced the appellant to nine months’ confinement, 

forfeiture of $1,000.00 pay per month for twelve months, and a bad-conduct 

discharge (BCD). The convening authority (CA) approved the sentence as

adjudged and, pursuant to a pretrial agreement (PTA), the CA suspended all 

confinement in excess of 29 days (time served). 
United States v. Qualls, No. 201600149

2

In his sole assignment of error, the appellant argues that his trial defense 

counsel (TDC) improperly disclosed privileged communications to the CA that 

expressed his desire not to remain in the Marine Corps and not to pursue 

clemency. He contends that informing the CA of his desires before action had 

been taken on the court-martial sentence prejudiced his full and fair 

clemency consideration by the CA. We disagree, find no prejudicial error, and 

affirm.

I. BACKGROUND

After being prescribed hydrocodone for an injury, the appellant became 

dependent on the medication and ultimately addicted to heroin. This 

addiction led to criminal behavior, including a pattern of theft to fund his 

drug habit. 

During a RULE FOR COURTS-MARTIAL (R.C.M.) 8021 conference the day of 

trial,

2 the TDC advised the military judge of the existence of a Blunk letter.3

The military judge summarized this R.C.M. 802 conference and requested the 

letter be attached to the record as an appellate exhibit—without objection 

from TDC or the appellant.4 The Blunk letter was addressed to “Case File,” 

and the subject was “MEMORANDUM OF CERTAIN INSTRUCTIONS TO 

MY DETAILED DEFENSE COUNSEL.”5 The letter explained that the 

appellant was: 1) aware of the negative consequences of a BCD, 2) that his 

defense counsel’s advice was to avoid the BCD if possible, and 3) that the 

appellant’s: 

[m]ain concern is minimizing as much as possible the potential 

confinement I may receive as part of a sentence, and [my 

counsel] has negotiated a pretrial agreement on my behalf that 

will accomplish this goal if I receive a BCD. Consequently, I 

have directed him not to put on any evidence in this case that 

may tend to prevent me from receiving a BCD.6 

The Blunk letter also noted that the appellant understood his rights to 

submit matters in clemency, and “[b]ecause I do not desire to remain in the 

Marine Corps, I also do not desire to pursue any type of post-trial clemency. 

 

1 MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.).

2 21 Dec 2015.

3 See United States v. Blunk, 37 C.M.R. 422 (C.M.A. 1967).

4 Record at 19.

5 Appellate Exhibit (AE) VI at 1.

6 Id.
United States v. Qualls, No. 201600149

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Consequently, I am directing [my counsel] not to submit clemency matters on 

my behalf after my court-martial.”7

In sentencing, the TDC presented only the appellant’s unsworn 

statement. While the appellant did not directly request a BCD from the 

military judge, when asked by TDC about his future plans, he replied: 

Short-term goals is [sic] I want to help my family out, help my 

dad out. I’m going to start doing taxidermy work, get my 

certification in taxidermy, and also help my dad out over a 

period of time. And work on getting my electrical license. And 

hopefully, one day, being able to take over his business, along 

with my little brother, sir.8

Trial counsel (TC) then argued for the special court-martial maximum 

punishment. In response, TDC disagreed, contending: 

An appropriate punishment, sir, is allowing him to go back to 

his family, to go away from his command, so that he can go 

away from the Marine Corps, away from these negative 

influences here in Charleston, here in Beaufort, go back to his 

family so that he can start putting things back together. So 

that he could start, once again, on the road to recovery. So that 

he can pick up the ashes of this failure and start again.9

In exchange for his guilty pleas, the appellant’s PTA provided, in part, 

that while any punitive discharge, confinement, and rank reduction may be 

approved as adjudged, “if a punitive discharge is adjudged and I request 

voluntary appellate leave by close of business on the date of trial of the 

sentence being adjudged, all confinement in excess of time served will be 

suspended for the period of confinement served plus twelve (12) months 

thereafter[.]”10 Per the appellant’s wishes, the TDC did not submit matters in 

clemency in his case.11

II. DISCUSSION

Trial defense attorneys are required to “safeguard the confidentiality of 

their clients’ privileged communications unless disclosure is authorized, e.g., 

the client specifically authorizes disclosure, or a client attacks the 

effectiveness of his or her attorney, thus waiving the privilege.” United States 

 

7 Id. at 1-2.

8 Record at 101.

9 Id. at 104

10 AE V at 1 (emphasis added).

11 AE VI at 2.
United States v. Qualls, No. 201600149

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v. Danley, 70 M.J. 556, 558 (N-M. Ct. Crim. App. 2011) (citing United States 

v. Williams, 57 M.J. 581, 583 (N-M. Ct. Crim. App. 2002); see also Blunk, 37 

C.M.R. at 425. This safeguarding includes preventing unauthorized

disclosure of certain client letters, often referred to in the sea services as 

“Blunk” letters, which explain that the attorney advised against pursuing a 

punitive discharge or electing not to submit matters in clemency. Danley, 70 

M.J. at 558.

The appellant argues that his TDC improperly disclosed privileged 

communications by informing the CA about his desire to leave the Marine 

Corps and not submit clemency matters. However, here the appellant never 

explicitly alleges the disclosure was made without his authorization, and in 

fact he was present in court when the letter was attached to the record.12

Therefore, while this court has repeatedly held, as recently as in Williams

and Danley, that such matters should not be disclosed,

13 on these facts, there 

is no basis to find the disclosure was unauthorized and thus made 

erroneously. See, e.g.; United States v. Ginn, 47 M.J. 236, 240, 248 (C.A.A.F. 

1997) (refusing to “invalidate [the appellant’s] guilty plea on the basis of posttrial speculation,” even when the appellant had submitted an affidavit in 

support of his ineffective assistance of counsel claim); United States v. 

Starling, 58 M.J. 620, 622-23 (N-M. Ct. Crim. App. 2003) (holding that “bare 

allegations” of “inadequate representation for failure to exercise . . . post-trial 

rights” are not “seriously entertained” by this court, “without the submission 

of an affidavit by the appellant stating how counsel’s inaction contrasted with 

his wishes”).

Even assuming the disclosure was error, we find the appellant suffered no 

prejudice. See United States v. Chatman, 46 M.J. 321, 323 (C.A.A.F. 1997).

The appellant relies heavily on the Danley case in arguing prejudicial error, 

but that case is distinguishable from the facts before us. In Danley, the 

government conceded the error and the court found that but for the 

unauthorized disclosure of the Blunk letter, the CA would not have been 

aware of the appellant’s secret desire to separate from the service. Danley, 70 

M.J. at 556, 560-61. This was true because the TDC specifically argued

against a BCD at trial. Id. at 557. Here there was no such incongruity. The

appellant’s desire to leave the Marine Corps was evident to the CA 

throughout the record, from the appellant’s unsworn statement, the TDC’s 

sentencing argument, and the PTA itself, which provided the appellant his 

 

12 Nor is there an affidavit from the appellant alleging unauthorized disclosure or 

that he no longer desires the BCD he sought at trial. 

13 “We emphasize once again, as we did in Williams, ‘defense counsel should not 

place such information before the court-martial, the staff judge advocate, or the 

convening authority.’” Danley, 70 M.J. at 558 (citing Williams, 57 M.J. at 583.)
United States v. Qualls, No. 201600149

5

desired “time-served deal” only if a BCD was adjudged. Therefore, the Blunk

letter did not provide any new—or prejudicial—information to the CA. 

Further, as the government properly asserts, “[t]he disclosure of the 

Blunk letter—whether authorized or not—could not have jeopardized the 

appellant’s chances of having the [CA] set aside his punitive discharge, given 

the [CA’s] inability to grant that type of relief.”

14 Likewise, we are confident 

that regardless of the disclosure, the CA would not have disapproved a BCD

in the context of this case, given his conscious choice not to do so in the 

PTA.15 Therefore, any error in the disclosure was harmless.

III. CONCLUSION

The findings and sentence as approved by the CA are affirmed.

For the Court

R.H. TROIDL

Clerk of Court 

 

14 Answer on Behalf of Appellee of 1 Sep 2016 at 9. The National Defense 

Authorization Act for Fiscal Year 2014, Pub. L. No. 113-66, 127 Stat. 672 (2013), 

amended Article 60(c)(4), UCMJ, reducing the CA’s ability to effect sentences in cases 

with crimes committed on or after 24 June 2014, except for those involving only the 

most minor of offenses.

15 See United States v. Kruse, __ M.J. __, No. 201600101, 2016 CCA LEXIS 650, 

at *8-10 (N-M. Ct. Crim. App. 3 Nov 2016) (holding such an action by the CA to be 

ultra vires). With no prosecutor’s letter documenting the appellant’s cooperation in 

another case, the CA’s clemency powers here included only disapproval, 

commutation, or suspension of the forfeiture. Art. 60, UCMJ; Exec. Order. No. 

13,696, 80 Fed. Reg. 35, 783, 35,812-13 (22 Jun 2015). The appellant does not 

contend his trial defense attorney was ineffective for not requesting such relief, and 

we find no basis to conclude that failure to do so was legal error on this record. See

United States v. Ouillette, No. 201600075, 2016 CCA LEXIS 481, unpublished op. (NM. Ct. Crim. App. 16 Aug 2016).