UNITED STATES NAVY–MARINE CORPS

COURT OF CRIMINAL APPEALS

_________________________

No. 201700216

_________________________

UNITED STATES OF AMERICA

Appellant

v.

ARTEM V. KOKUEV

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

Appellee

_________________________

Review of Government Appeal Pursuant to Article 62(b), UCMJ

Military Judge: Major John L. Ferriter, USMC.

Convening Authority: Commanding General, 3d Marine Aircraft 

Wing, Marine Corps Air Station Miramar, San Diego, CA

For Appellant: Major Kelli A. O’Neil, USMC; Lieutenant Megan P. 

Marinos, JAGC, USN

For Appellee: Lieutenant Commander Jon T. Taylor, JAGC, USN. 

_________________________

Decided 8 November 2017

_________________________

Before HUTCHISON, FULTON, and SAYEGH, Appellate Military Judges

_________________________

PUBLISHED OPINION OF THE COURT

_________________________

HUTCHISON, Senior Judge:

This case is before us on a government interlocutory appeal, pursuant to 

Article 62, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 862, and 

RULE FOR COURTS-MARTIAL (R.C.M.) 908, MANUAL FOR COURTS-MARTIAL, 

UNITED STATES (2016 ed.). The appellee is charged with wrongful production, 

distribution, and use of 3, 4-methylenedioxymethamphetamine (MDMA), 

assault consummated by battery upon his wife, ZK, and communicating a 

threat, in violations of Articles 112a, 128, and 134, UCMJ, 10 U.S.C. §§ 912a, 

928, and 934. 
United States v. Kokuev, 201700216

2 

This is the appellee’s second court-martial. At the first court-martial, the 

appellee was convicted of breaking restriction, willfully violating a lawful 

order, and wrongfully using cocaine and alprazolam. At that court-martial 

the appellee was also charged with three other offenses—assault 

consummated by a battery, and wrongfully using and manufacturing 3, 4-

methylenedioxyamphetamine (MDA). When the government learned that it 

had erroneously charged the appellee with the use and manufacture of MDA 

instead of MDMA, it withdrew and dismissed those three charges without 

prejudice. The corrected MDMA offenses and the previously withdrawn and 

dismissed assault consummated by a battery have now been referred to this 

second court-martial. 

The government argues that the military judge erred by: (1) denying a 

defense motion to sever the attorney-client relationship between the appellee 

and his detailed defense counsel; and (2) denying the government’s request to 

recall ZK as a witness. 

After carefully considering the record, the military judge’s findings of 

essential facts and conclusions of law, and the submissions of the parties, we 

conclude: (1) that we do not have jurisdiction to review the military judge’s 

decision to deny severance of the appellee’s detailed defense counsel; and (2) 

the military judge did not abuse his discretion in denying the government’s

request to recall ZK. 

I. BACKGROUND

The appellee is in pretrial confinement and is represented by three 

counsel: Captain (Capt) RM, Capt JW, and civilian defense counsel (CDC) JS. 

In its case-in-chief, the government presented nine exhibits and called 

eight witnesses, including ZK, who was called to provide evidence about the 

battery charge. She testified that during a drug-and alcohol-fueled night in 

the appellee’s barracks room, the appellee hit and pushed her after they got 

into an argument. The government did not ask ZK any questions about the 

appellee’s alleged manufacturing, distribution, or use of MDMA. On crossexamination, Capt RM confronted ZK with questions about her own drug use, 

whether she had used alcohol and drugs on the night of the alleged assault, 

and her pending divorce from the appellee. 

Following ZK’s testimony, the government called its final two witnesses. 

However, instead of resting, the trial counsel (TC) then requested an Article 

39(a), UCMJ, session and informed the military judge (MJ) that he wanted to 

recall ZK to testify about the appellee’s use, manufacture, and distribution of 

MDMA. The TC indicated that he had just learned “ten minutes ago” that ZK 

could testify to seeing the appellee “use and manufacture MDMA, and that 
United States v. Kokuev, 201700216

3

she would also see him go meet his friends.”1 The TC explained that following 

ZK’s testimony he asked ZK’s Victim’s Legal Counsel whether ZK had ever 

seen the appellee use, manufacture, or distribute MDMA. His inquiry was 

prompted by a member’s question that the MJ declined to ask ZK, asking, 

“before the night in the barracks, had you ever seen your husband do drugs 

before?”2 The CDC objected to the TC’s request to recall ZK based on a lack of 

notice, and because ZK had declined the defense’s requests for interviews.

The MJ initially denied the government’s request to recall ZK and asked 

if the government had any additional evidence to present. The government 

asked for and was granted an overnight recess to review their evidence and 

consult with supervisory counsel regarding recalling ZK.

In an Article 39(a), UCMJ, session the next day, ZK testified that the 

appellee used, manufactured, and distributed MDMA. She also testified that 

she had not previously disclosed this information to Naval Criminal 

Investigative Service investigators or to the prosecutors in either of her 

husband’s courts-martial because she had been on good terms with the 

appellee, he had asked her not to say anything, and she did not want to 

provide incriminating evidence against him. She had agreed to testify only 

about the battery charges, in which she was the victim, after being 

subpoenaed. But after Capt RM cross-examined her and attacked her 

credibility, ZK stated she felt “bad about lying anyway, so I’m not sure why 

I’d protect somebody who doesn’t have any care for me in the world.”3

Following ZK’s Article 39(a), UCMJ, testimony, the MJ granted the 

government’s request to recall her to testify prior to resting their case. As a 

result, the CDC informed the court that they would be requesting two 

additional witnesses to rebut ZK’s testimony. One of the witnesses was CN, a 

former Marine and former roommate of ZK. The MJ ordered the government 

to subpoena CN.

Capt RM had previously represented CN at CN’s court-martial. Upon 

issuance of the subpoena, the CDC moved to sever Capt RM’s attorney-client 

relationship with the appellee based on an actual conflict of interest. The 

appellee opposed severing his attorney-client relationship with Capt RM. The 

MJ ordered Capt RM to submit a sealed affidavit4 explaining the nature of 

the conflict. Included with Capt RM’s affidavit was an affidavit from the 

Marine Corps’ Defense Service Organization’s Highly Qualified Expert, KC. 

 

1 Record at 463.

2 Id. at 441; Appellate Exhibit (AE) XXIX.

3 Record at 479.

4 AE L.
United States v. Kokuev, 201700216

4

In his affidavit, Capt RM explained the nature of his conflict with CN, while

KC opined in her affidavit that a “personal conflict” existed and that it could 

not be waived. She further stated that she participated in a conference call 

with Capt RM and Capt RM’s state bar counsel, in which the state bar 

counsel provided “substantially similar advice” with respect to Capt RM’s

conflict of interest.5 The court then held two closed ex-parte hearings with 

Capt RM.

Following the ex parte hearings, the MJ concluded that “there is not 

currently an actual conflict of interest for [Capt RM] in this case” and denied 

the motion to sever.6 The MJ went on to reconsider his ruling that ZK could

be recalled to testify. He conducted a balancing test pursuant to MILITARY 

RULE OF EVIDENCE (MIL. R. EVID.) 403, MANUAL FOR COURTS-MARTIAL,

UNITED STATES (2016 ed.) and found that the circumstances of ZK’s belated 

revelations so undercut ZK’s credibility as to make her testimony “minimally 

probative,” and that there was “significant danger of confusion of the issues, 

undue delay, and wasting of time if the government were permitted to recall 

[ZK].”

7

Based on the information he received in the closed ex-parte proceedings, 

the MJ found that recalling ZK would result in an actual conflict of interest 

for defense counsel, and that this conflict would require Capt RM’s removal 

from the case. This finding weighed heavily in the MJ’s MIL. R. EVID. 403 

analysis. The MJ explained that the case had already experienced delays and 

resultant scheduling issues arising from the government’s request to recall 

ZK and that actually recalling her would “certainly result in further 

confusion of the issues, more undue delay, and wasting of time.”8 Addressing 

the effect of Capt RM’s potential excusal, the MJ noted that Capt RM was the 

appellee’s original counsel, that he had delivered the opening statement, and 

that he had “obviously been very involved” in the appellee’s representation, 

that appellee opposed his removal, and that removal of Capt RM from the 

case would be unfairly prejudicial to the appellee.

9

The MJ considered several different alternatives to prohibiting the 

government from recalling ZK, including limiting the scope of her testimony, 

or the scope of CN’s rebuttal testimony. Ultimately, however, the MJ found 

 

5 Id. at 5.

6 Id. at 629.

7 Id.

8 Id. The delays associated with the consideration of ZK’s recall had already 

resulted in the excusal of two court members.

9 Id. at 629-30.
United States v. Kokuev, 201700216

5

that permitting the government to recall ZK would likely result in an actual 

conflict of interest for Capt RM, and that he would have to be excused from 

the case. The MJ found that “[b]ased upon the late notice of this evidence, the 

attendant delays that would ensue, and the significant negative impact on 

the accused’s rights to counsel . . . it would be highly and unfairly prejudicial 

to allow [ZK]’s testimony at this stage of the proceedings.” 10

II. DISCUSSION

A. Jurisdiction

Article 62, UCMJ, prescribes exacting circumstances under which the 

government may appeal a ruling or order of the military judge:

(a)(1) In a trial by court-martial in which a military judge 

presides and in which a punitive discharge may be adjudged, 

the United States may appeal the following . . . :

. . . .

(B) An order or ruling which excludes evidence that is 

substantial proof of a fact material in the proceeding (emphasis 

added).

In defining the scope of our authority under Article 62, UCMJ, the Court 

of Appeals for the Armed Forces (CAAF) has explained that “the pertinent 

inquiry is not whether the court has issued a ruling on admissibility, but 

instead whether the ruling at issue ‘in substance or in form’ has limited ‘the 

pool of potential evidence that would be admissible.’” United States v. 

Wuterich, 67 M.J. 63, 73 (C.A.A.F. 2008) (quoting United States v. Watson, 

386 F.3d 304, 313 (1st Cir. 2004)). Not every decision that might have some

remote effect on the admissibility of evidence is subject to government appeal 

pursuant to Article 62, UCMJ. Rather, interlocutory government appeals are 

restricted “to those rulings that have a direct rather than incidental effect on 

the exclusion of evidence.” Id. at 75 (emphasis added) (citation omitted); see 

also United States v. Vargas, 74 M.J. 1, 7 (C.A.A.F. 2014) (“Simply put, the 

question is one of incidental versus direct effect”).

Relying on Vargas, the appellee argues that the MJ’s ruling denying the 

government’s request to recall ZK was simply a “case management ruling[] 

intended to protect the rights of an accused and ensure the effective 

administration of justice,” and therefore, “not reviewable under Article 62, 

UCMJ.”11 In Vargas, the government sought an overnight continuance to

allow their remaining out-of-area witnesses to arrive before proceeding with 

 

10 AE LVII at 11.

11 Appellee’s Brief of 14 Sep 2017 at 12.
United States v. Kokuev, 201700216

6

the remainder of the case-in-chief. The MJ denied the request. When the 

government indicated they could not proceed without the remaining 

witnesses, the MJ rested the government’s case. We granted the 

government’s appeal, finding that the “trial judge’s ruling in denying the 

brief recess so that witnesses scheduled to be heard the next day could testify 

and then sua sponte resting the Government’s case, had the direct effect of 

limiting the pool of potential evidence that would be admissible and 

excluding evidence that was substantial proof of a material fact.” United 

States v. Vargas, No. 201300426, 2014 CCA LEXIS 121, at *18, unpublished 

op. (N-M. Ct. Crim. App. 28 Feb 2014) (citations and internal quotation 

marks omitted). The CAAF reversed, holding that neither ruling by the 

military judge had the direct effect of ‘“excluding evidence’ as that term is 

used in Article 62, UCMJ.” United States v. Vargas, 74 M.J. 1, 7 (C.A.A.F.

2014). Rather, the MJ’s decisions were case management decisions that had 

only incidental effect on the exclusion of evidence.

The MJ’s ruling precluding ZK from testifying here is readily 

distinguishable from the MJ’s ruling in Vargas. The CAAF recognized in 

Vargas that “[t]he military judge did not make any ruling which held that the 

government’s evidence was inadmissible nor did she indicate that she would 

not allow the introduction of properly admissible evidence.” Vargas, 74 M.J. 

at 7. Here, the MJ applied the MIL. R. EVID. 403 balancing test and

determined ZK’s proffered testimony was inadmissible. As a result, the MJ’s 

decision had the direct effect of excluding ZK’s testimony that she observed

the appellee use and manufacture MDMA. We have jurisdiction to decide a 

government appeal of this ruling.

However, the MJ’s denial of the defense’s motion to excuse Capt RM was 

not an order or ruling that excluded evidence. Nor was the exclusion of 

evidence more than incidental to the MJ’s ruling. The MJ’s ruling on the 

counsel disqualification issue did not address the admissibility of any 

evidence. Rather, it was a determination on the part of the MJ that—as the 

case stood at the time of the ruling—Capt RM’s representation was not 

affected by an actual conflict of interest. 

In United States v. Browers, the Court of Military Appeals considered 

whether the denial of a continuance requested so that the government could 

obtain two witnesses constituted the exclusion of evidence. 20 M.J. 356

(C.M.A. 1986). That court reasoned that “[m]ost lawyers think of exclusion of 

evidence as a ruling made at or before trial that certain testimony, 

documentary evidence, or real evidence is inadmissible. . . . and we see no 

reason to believe that Congress had any different intention in drafting Article 

62(a)(1).” Id. at 360. Similar to both Vargas and Browers, the MJ’s 

determination, here, that Capt RM did not yet have a conflict of interest was
United States v. Kokuev, 201700216

7

not a ruling that excluded evidence. This ruling does not satisfy the

jurisdictional requirements of Article 62(a)(1), UCMJ.

Nevertheless, the appropriateness of the MJ’s ruling on the defense 

motion to sever is not entirely irrelevant to our determination of whether the 

MJ erred by denying the government’s request to recall ZK. We review a MJ’s 

ruling to exclude evidence for an abuse of discretion. United States v. Diaz, 69 

M.J. 127, 131 (C.A.A.F. 2010). “A military judge abuses his discretion when 

his findings of fact are clearly erroneous, the court’s decision is influenced by 

an erroneous view of the law, or the military judge’s decision on the issue at 

hand is outside the range of choices reasonably arising from the applicable 

facts and the law. United States v. Miller, 66 M.J. 306, 307 (C.A.A.F. 2008)

(citations omitted). Thus, to the extent the MJ’s decision to exclude evidence 

depends on a clearly erroneous finding of fact or an erroneous view of the law, 

we will consider such an error in our determination of whether the MJ 

abused his discretion in excluding evidence.

B. Analysis 

1. Standard of review

In reviewing an interlocutory appeal by the government, we “may act only 

with respect to matters of law[.]” Art. 62(b), UCMJ; R.C.M. 908(c)(2). We are,

therefore, “bound by the military judge’s factual determinations unless they 

are unsupported by the record or clearly erroneous” and we lack the 

“authority to find facts in addition to those found by the military judge.”

United States v. Gore, 60 M.J. 178, 185 (C.A.A.F. 2004). “We conduct a de 

novo review of [the military judge’s] conclusions of law.” United States v. 

Stevenson, 52 M.J. 504, 505 (N-M. Ct. Crim. App. 1999), rev’d on other 

grounds, 53 M.J. 257 (C.A.A.F. 2000); see also United States v. Greene, 56 

M.J. 817, 822 (N-M. Ct. Crim. App. 2002).

2. Scope of MIL. R. EVID. 403

MIL. R. EVID. 403 states:

The military judge may exclude relevant evidence if its 

probative value is substantially outweighed by a danger of one 

or more of the following: unfair prejudice, confusing the issues, 

misleading the members, undue delay, wasting time, or 

needlessly presenting cumulative evidence. 

The appellant argues that the MJ erred in denying the government’s 

request to recall ZK by misapplying MIL. R. EVID. 403. Specifically, the 

government contends that no military case law analyzing MIL. R. EVID. 403 

has concluded that “potential or actual conflicts of interest involving the right 
United States v. Kokuev, 201700216

8

to counsel” satisfy the rule’s prejudice prong.12 The proper construction of a 

military rule of evidence is a question of law we review de novo. LRM v. 

Kastenberg, 72 M.J. 364, 369 (C.A.A.F. 2013) (citing United States v. 

Matthews, 68 M.J. 29, 35-36 (C.A.A.F. 2009); United States v. Lopez de 

Victoria, 66 M.J. 67, 73 (C.A.A.F. 2008)). Therefore, we must determine, as a

matter of law, whether “unfair prejudice” within the context of MIL. R. EVID.

403 can include the harm associated with severing an accused’s attorneyclient relationship.

The appellant points out that in United States v. Collier, the CAAF 

concluded that the term “‘unfair prejudice’ in the context of [MIL. R. EVID.]

403 ‘speaks to the capacity of some concededly relevant evidence to lure the 

factfinder into declaring guilt on a ground different from proof specific to the 

offense charged.’” 67 M.J. 347, 354 (C.A.A.F. 2009) (citing Old Chief v. United 

States, 519 U.S. 172, 180 (1997)) (emphasis in original). The CAAF went on to 

explain that MIL. R. EVID. 403 “addresses prejudice to the integrity of the 

trial process, not prejudice to a particular party or witness.” Id.; but see 

United States v. Bess, 75 M.J. 70, 77 (C.A.A.F. 2016) (citing MIL. R. EVID. 403 

and admonishing courts-martial to implement procedures for the production 

of evidence requested by members during deliberations “to ensure that no 

unfair prejudice is afforded to either party.”) (emphasis added).

Collier and the majority of cases analyzing MIL. R. EVID. 403’s unfair 

prejudice prong do so in the context of admitting or excluding otherwise 

relevant but inflammatory impeachment or propensity evidence, or evidence 

of uncharged misconduct.

13 Collier and Old Chief, while clearly binding 

precedent, simply did not contemplate a scenario in which the government 

would seek to introduce, near the end of trial, newly discovered evidence that 

has the potential to create a disqualifying conflict of interest for a criminal 

defendant’s long-time detailed defense counsel. 

Although no military appellate court has examined the relationship 

between the admission of relevant evidence and its potential prejudice to an 

accused’s attorney-client relationship, at least one federal circuit court has. 

In United States v. Messino, the Seventh Circuit Court of Appeals asked

 

12 Appellant’s Brief of 23 Aug 17 at 23.

13 See e.g. Collier, 67 M.J. at 354-55 (holding the MJ erred in excluding crossexamination questions regarding the appellant’s homosexual relationship with the 

government’s main witness); United States v. Reynolds, 29 M.J. 105, 111 (C.M.A. 

1989) (establishing a three-part test for admissibility of uncharged misconduct and 

holding “[i]n order to be admissible, the evidence . . . must be carefully balanced to 

insure that ‘its probative value’ is not ‘substantially outweighed by the danger of 

unfair prejudice.’”) (quoting MIL. R. EVID. 403).
United States v. Kokuev, 201700216

9

whether a district court may ever exclude relevant testimony to resolve a

conflict of interest. 181 F.3d 826, 829 (7th Cir. 1999). The court answered 

affirmatively, first noting, that under FEDERAL RULE OF EVIDENCE (FED. R.

EVID.) 403, “district judges are clearly vested with some discretion to exclude 

evidence.” Id. Next, citing FEDERAL RULE OF CRIMINAL PROCEDURE (FED. R.

CRIM. PROC.) 44(c) (giving trial judges the discretion to fashion remedies 

arising from joint representation), and Wheat v. United States, 486 U.S. 153, 

163 (1988) (permitting trial judges to disqualify attorneys despite a waiver of 

conflict), the Court observed that district court judges are “given broad 

discretion to fashion remedies to avoid conflicts of interest.” Messino, 181 

F.3d at 830 (citations omitted). Given a district court judge’s broad discretion 

to both exclude relevant evidence and to remedy conflicts, the Seventh Circuit 

concluded that it was appropriate “on rare occasions” for a district court to 

“exclude evidence to resolve a conflict of interest.” Id. “Without precisely 

delineating the scope of a district court’s discretion” to exclude relevant to 

resolve a conflict of interest, the Seventh Circuit noted that a balancing of the 

kind contemplated in FED. R. EVID. 403 was appropriate. Id. Specifically, “the 

probative value of the evidence must be weighed against the negative 

consequences of admitting the evidence.” Id.; see also United States v. 

Gearhart, 576 F.3d 459, 464 (7th Cir. 2009) (“[W]e have held that the 

introduction of evidence that would generate a conflict of interest is subject to 

analysis under Rule 403 of the FEDERAL RULES OF EVIDENCE”) (citing 

Messino, 181 F.3d at 830).

Finally, the Seventh Circuit has also recognized that “disqualification of 

[defense] counsel” implicates matters of constitutional import; specifically in 

Gearhart, the Sixth Amendment right to counsel of choice. See Gearhart, 576 

F.3d at 464 (“disqualification of a defendant’s counsel of choice can in 

principle pose a Sixth Amendment problem.”) (citations and internal 

quotation marks omitted). 

We find the Seventh Circuit’s rationale persuasive. First, like district 

court judges, military judges have broad discretion to remedy conflicts of 

interest. Indeed, the language from FED. R. CRIM. PROC. 44(c)—relied on by 

the Messino court—granting district court judges the discretion to remedy 

conflicts arising from joint representation is nearly identical to the language 

of R.C.M. 901(d)(4)(D), which governs military judges under similar 

circumstances.14 Likewise, military courts have applied Wheat and held that 

 

14 FED. R. CRIM. PROC. 44(c)(2) states: 

Court’s Responsibilities in Cases of Joint Representation. The court 

must promptly inquire about the propriety of joint representation and 

must personally advise each defendant of the right to the effective 

assistance of counsel, including separate representation. Unless there 
United States v. Kokuev, 201700216

10

military judges have discretion to disqualify counsel when there is “a serious 

potential for conflict.” United States v. Rhoades, 65 M.J. 393, 397 (C.A.A.F. 

2008) (citations and internal quotation marks omitted). Recently, we 

recognized that “[t]he military judge must be allowed substantial latitude” in 

addressing conflicts of interest “‘not only in those rare cases where an actual 

conflict may be demonstrated before trial, but in the more common cases 

where a potential for conflict exists which may or may not burgeon into an 

actual conflict as the trial progresses.’” United States v. Betancourt, No. 

201500400, 2017 CCA LEXIS 386, at *40, unpublished op. (N-M. Ct. Crim. 

App. 6 Jun 2017) (quoting Wheat, 486 U.S. at 163).

Second, MIL. R. OF EVID. 403 is identical to its federal counterpart and, 

therefore, it too “delineate[s] a zone of discretion within which judges may 

exclude evidence.” Messino, 181 F.3d at 829-30. Finally, much like the

appellant’s Sixth Amendment right to counsel of choice in Gearhart, Private 

Kokuev, while not threatened with the loss of counsel of choice, does have the 

statutory “right to representation by military counsel provided at no 

expense[.]” Rhoades, 65 M.J. at 394 (citing Art. 38(b)(3), UCMJ, 10 U.S.C. § 

838(b)(3) (2000)). Moreover, the fact that the appellee has a second military 

counsel does not ameliorate the appellee’s potential loss of Capt RM, because 

“continuation of an established attorney-client relationship is fundamental in 

the military justice system.” United States v. Baca, 27 M.J. 110, 118 (C.M.A. 

1988) (emphasis added) (citing United States v. Palenius, 2 M.J. 86 (C.M.A. 

1977)).

In sum, the same factors present in Messino and Gearhart that led the

Seventh Circuit to adopt the FED. R. EVID. 403 balancing test are present 

here and we adopt the Seventh Circuit’s reasoning.

15 Therefore, we hold that

 

is good cause to believe that no conflict of interest is likely to arise, 

the court must take appropriate measures to protect each defendant’s 

right to counsel.

Similarly, R.C.M. 901(d)(4)(D) directs the military judge to:

Promptly inquire, whenever two or more accused in a joint or common 

trial are represented by the same detailed or individual military or 

civilian counsel, or by civilian counsel who are associated in the 

practice of law, with respect to such joint representation and shall 

personally advise each accused of the right to effective assistance of 

counsel, including separate representation. Unless it appears that 

there is good cause to believe no conflict of interest is likely to arise, 

the military judge shall take appropriate measures to protect each 

accused’s right to counsel[.] 

15 While not specifically adopting the FED. R. EVID. 403 balancing test, other 

courts of appeal have “adopted a balancing test when the government seeks to 
United States v. Kokuev, 201700216

11

in conducting his MIL. R. EVID. 403 balancing test, the MJ properly 

considered, as part of his analysis of unfair prejudice, the “negative 

consequences” that would follow for the appellee and his attorney-client

relationship with Capt RM. In so holding, we are mindful that the Military 

Rules of Evidence “should be construed so as to administer every proceeding 

fairly, eliminate unjustifiable expense and delay, and promote the 

development of evidence law, to the end of ascertaining the truth and 

securing a just determination.”

16 A narrow reading of “unfair prejudice”

which leaves no room for an MJ to exclude minimally probative evidence that 

has the potential to impact an accused’s constitutional right to counsel, does 

little to promote the development of evidence law, and endangers the goal of 

securing a just result.

Of course, even if the prejudice associated with removing counsel from a 

case is a proper matter for the MJ to have considered in his balancing test, it 

may still be possible that the MJ abused his discretion in applying MIL. R.

EVID. 403. Therefore, we next examine the MJ’s application of the 403 

balancing test to the facts presented here. 

3. Application of MIL. R. EVID. 403

As we noted previously, the MJ’s decision to deny the government’s 

request to recall ZK was precipitated by the conflict of interest ZK’s 

testimony would pose for the appellee’s detailed defense counsel. If that 

decision was error, then the MJ’s ultimate decision to deny the government’s 

request to recall ZK would be an abuse of discretion. As a result, we first 

examine the MJ’s ruling denying the defense motion to sever Capt RM’s 

attorney-client relationship with the appellee.17

 

introduce evidence that would create a conflict of interest for the defendant’s 

attorney.” Gearhart, 576 F.3d at 464 (citations omitted). See United States v. James, 

708 F.2d 40, 45 (2d Cir. 1983) (“[I]nterests of the government . . . and the public 

weigh more heavily here” than interests of defendants in maintaining counsel of 

choice); United States v. Garcia, 517 F.2d 272, 273 (5th Cir. 1975) (“[R]esolution of 

the problem requires a cautious and sensitive consideration and balancing of 

individual constitutional protections, public policy and public interest in the 

administration of justice, and basic concepts of fundamental fairness”).

16 MIL. R. EVID. 102.

17 As we noted supra, Article 62, UCMJ, does not grant this court jurisdiction to 

review the MJ’s decision denying severance of the attorney-client relationship. Our 

analysis of that decision is included here solely to determine whether the MJ’s 

corresponding decision to deny the government’s request to recall ZK—a ruling that 

is subject to review under Article 62, UCMJ—was informed by an erroneous view of 

the law. Miller, 66 M.J. at 307. 
United States v. Kokuev, 201700216

12

We review a military judge’s decision whether to disqualify a defense 

counsel based upon a conflict of interest for an abuse of discretion. United 

States v. Odom, 53 M.J. 526, 531 (N-M. Ct. Crim. App. 2000) (citing Wheat,

486 U.S. at 163-64). Whether an actual conflict of interest exists is a mixed 

question of law and fact requiring our de novo review. United States v. Smith,

44 M.J. 459, 460 (C.A.A.F. 1996). R.C.M. 505 and 506 discuss circumstances 

under which an established attorney-client relationship between an accused 

and a defense counsel may be severed. Specifically, R.C.M. 506(c) authorizes 

the excusal of a defense counsel “by the military judge upon application for 

withdrawal by the defense counsel for good cause shown.” This court has 

recognized that “good cause” includes instances where there is a conflict of 

interest or breach of ethical duties. See Wuterich v. United States, No. 

200800183, 2011 CCA LEXIS 148, at *6, unpublished op. (N-M. Ct. Crim. 

App. 25 Aug 2011) (“Counsel may be disqualified if a party-litigant brings an 

issue of conflict of interest or breach of ethical duties to the attention of the 

court.”) (citing United States v. Humpherys, 57 M.J. 83, 88 (C.A.A.F. 2002)). 

Judge Advocate General Instruction (JAGINST) 5803.1E, Rule 1.7 

governs conflicts of interest for attorneys practicing within the Navy and 

Marine Corps. Rule 1.7(a) states, in relevant part:

. . . a covered attorney shall not represent a client if the 

representation of that client involves a concurrent conflict of 

interest. A concurrent conflict of interest exists if: (1) the 

representation of one client will be directly adverse to another 

client; or (2) there is significant risk that the representation of 

one or more clients will be materially limited by the covered 

attorney’s responsibilities to another client, a former client or a 

third person or by a personal interest of the covered attorney.18

Without revealing the facts or analysis giving rise to Capt RM’s potential 

conflict of interest—which remain under seal—we conclude, following our de 

novo review, that no actual conflict of interest currently exists between Capt 

RM and CN. In reaching his findings of fact, the MJ examined extensively 

both Capt RM and Ms. KC, considered their affidavits, and correctly analyzed

the rules of professional conduct. The MJ’s findings of fact establish that 

Capt RM’s attorney-client relationship with CN had ceased and that Capt 

RM believed, after discussion with his supervisory counsel, KC, and his state 

bar, that no actual conflict would exist if ZK was not recalled to testify. We 

find that military judge’s findings of fact are supported by the record and not 

clearly erroneous. Rhoades, 65 M.J. at 397. Accordingly, we concur with the

MJ’s conclusion that the potential conflict had not ripened into an actual 

 

18 JAGINST 5803.1E (20 Jan 2015) at 35.
United States v. Kokuev, 201700216

13

conflict of interest. Consequently, we find no abuse of discretion in the MJ’s

decision to deny the defense motion to sever Capt RM’s attorney-client 

relationship with the appellee. See United States v. Barnes, 63 M.J. 563, 566 

(A.F. Ct. Crim. App. 2006) (“Severing an attorney-client relationship because 

of something that might happen in the future is generally not a good idea.”) 

(citing United States v. Smith, 35 M.J. 138, 141 (C.M.A. 1992)).

Turning finally to the MJ’s denial of the government’s request to recall 

ZK, we review a military judge’s decision to exclude evidence for an abuse of 

discretion. United States v. Diaz, 69 M.J. 127, 131 (C.A.A.F. 2010). “The 

abuse of discretion standard is a strict one, calling for more than a mere 

difference of opinion. The challenged action must be ‘arbitrary, fanciful, 

clearly unreasonable, or clearly erroneous.’” United States v. Lloyd, 69 M.J. 

95, 99 (C.A.A.F. 2010) (quoting United States v. McElhaney, 54 M.J. 120, 130 

(C.A.A.F. 2000)). Therefore, a military judge has wide discretion in 

determining the admissibility of evidence, and a decision to admit or exclude 

evidence based on MIL. R. EVID. 403 is within the sound discretion of the trial 

judge. United States v. Smith, 52 M.J. 337, 344 (C.A.A.F. 2000). Appellate 

courts give a military judge “more deference if [he] properly conducts the 

balancing test and articulates [his] reasoning on the record.” United States v. 

Carter, 74 M.J. 204, 207 (C.A.A.F. 2015) (citation omitted); see also United 

States v. Flesher, 73 M.J. 303, 312 (C.A.A.F. 2014) (“[W]here the military 

judge places on the record his analysis and application of the law to the facts, 

deference is clearly warranted” (citations and internal quotation marks 

omitted)). Therefore, a military judge who conducted a proper balancing test 

under MIL. R. EVID. 403 will not be overturned absent a clear abuse of 

discretion. United States v. Stephens, 67 M.J. 233, 235 (C.A.A.F. 2009).

Here, the MJ placed his MIL. R. EVID. 403 analysis on the record; we 

therefore accord him appropriate deference. First, the MJ determined that 

the evidence sought to be introduced by the government—ZK’s testimony—

was “minimally probative based upon the circumstances of when she 

disclosed the information . . . and the anticipated cross-examination” by the 

defense.

19 The cross-examination would almost certainly focus on the fact 

that ZK had not previously disclosed, when asked, any knowledge of the 

appellee’s involvement with MDMA and only brought up this new evidence 

after having her credibility attacked on the witness stand. The MJ correctly 

pointed out that “prior to learning of this potential testimony 10 minutes 

before they were otherwise planning to rest, the [g]overnment had presented 

what it otherwise deemed to be the best case it had available to them after 

 

19 Record at 629.
United States v. Kokuev, 201700216

14

more than a year of investigation and months of preparation for trial.”20 As a

result, the MJ concluded that when assessed within the context of the rest of 

the government’s case, the “net gain” from the inclusion of ZK’s testimony to 

the government’s “overall presentation of evidence [would] be minimal.”21 

Conversely, the MJ found that if he permitted ZK to be recalled, Capt RM

would have an actual conflict of interest and “would likely need to be excused 

from further representation of the accused.”22 The MJ noted that Capt RM

was the appellee’s primary military defense counsel, the longest tenured of 

the appellee’s counsel, and had made significant contributions to the 

defense’s preparation and presentation of the case. Specifically, Capt RM 

delivered the defense’s opening statement to the members and conducted the 

cross-examination of ZK during her initial testimony. The MJ concluded that 

recalling ZK, and thereby requiring the excusal of Capt RM, would 

“significantly prejudice” the appellee.

As we noted supra, in conducting his MIL. R. EVID. 403 balancing the MJ 

considered a range of alternatives to prohibiting the government from 

recalling ZK. However, the MJ concluded that limiting the scope of either 

ZK’s testimony or CN’s rebuttal testimony would only “lead to more 

uncertainty regarding the possible manner[] in which the remainder of the . . 

. trial could play out; many of which would continue to implicate a[n] . . .

actual conflict of interest for [Capt RM].”23

The appellant argues that even applying the Seventh Circuit’s 403 

balancing test, the MJ still abused his discretion by denying the request to 

recall ZK. The appellant correctly points out that in Messino, after first 

finding district courts can consider the prejudice to an accused’s right to 

counsel in conducting their 403 analysis, that court, nonetheless, found the 

district court judge abused his discretion in excluding relevant witness 

testimony despite the “serious conflict of interest issues” such testimony 

would present for the accused’s defense counsel. Messino, 181 F.3d at 828.

The Seventh Circuit held that it was “undisputed” that the excluded witness’s 

testimony “would be highly probative.” Id. at 830. Conversely, the court found

that the prejudice to the accused of a possibly “less effective,” but adequate 

 

20 AE LVII at 10.

21 Id. We acknowledge that in forming his conclusion regarding the relative 

strength of the evidence, the MJ was able to observe ZK and hear her proffered 

testimony during the Article 39(a), UCMJ, session.

22 Record at 629-30.

23 Id. at 629.
United States v. Kokuev, 201700216

15

representation, was “regrettable” and an “inconvenience” but did not 

outweigh the probative value of the witness’s testimony. Id. at 831.

There are stark differences, however, between the facts of Messino and 

the case before us. Most importantly, in Messino the government’s 

interlocutory appeal challenged a pretrial order that excluded a witness’s 

testimony. Although, presumably, Messino’s attorney had done considerable 

pretrial work on behalf of his client, the trial had not yet started. The 

prejudice resulting from disqualification of counsel at that early stage is 

markedly different than disqualification after members have been empaneled 

and the government has presented nearly the entirety of its case-in-chief. The 

fact that Capt RM had already made significant contributions to the 

appellee’s defense during the trial distinguishes this case from Messino.

24

Having concluded that the MJ did not labor under an erroneous view of 

the law regarding the scope of “unfair prejudice,” and recognizing that the MJ 

“has a range of choices and will not be reversed so long as the decision 

remains within that range,” Gore, 60 M.J. at 187, we hold that the MJ’s

ruling denying the government’s request to recall ZK was not beyond the

range of reasonable decisions, and that he did not, therefore, abuse his 

discretion. 

Even assuming the MJ, and by extension this court, erred in extending 

the Seventh Circuit’s 403 analysis of “unfair prejudice” to include the harm 

associated with severing an accused’s attorney-client relationship, we would 

still deny the government’s appeal. The MJ also concluded that the probative 

value of ZK’s testimony was substantially outweighed by the dangers of 

undue delay and wasting time. The MJ noted the issues caused by the delays 

to date—including the loss of two members—and concluded that permitting 

the government to recall ZK “would lead to an unquantifiable number of 

subsequent delays to the proceedings that could last for significant, 

unpredictable, and unknown periods of time.”25 Indeed, ZK had already 

testified at length and the government had prepared its case for over a year. 

Permitting the government to recall ZK based upon new-found information 

near the close of the government’s case would necessarily put the appellee in 

the undesirable position of either seeking a continuance in order to interview 

ZK and prepare cross-examination on her new testimony—thereby extending 

 

24 We also note during the appeal of Gearhart’s conviction, the Seventh Circuit 

upheld a district court’s ruling that disqualified a defense counsel after conducting a 

FED. R. EVID. 403 balancing test. Gearhart, 576 F.3d at 463-65. Like Messino, the 

district court judge’s ruling (in this case disqualifying counsel) occurred prior to the 

beginning of trial, before any evidence was presented. 

25 AE LVII at 9 (citation omitted).
United States v. Kokuev, 201700216

16

his lengthy pretrial confinement—or to forego such preparation to hasten the

conclusion of his trial. Finally, the MJ appropriately concluded that recalling 

ZK would very likely require additional litigation surrounding Capt RM’s 

continued representation of the appellee, which would further delay the 

proceedings. Therefore, we also conclude that the MJ did not abuse his 

discretion in determining that the probative value of ZK’s testimony was 

substantially outweighed by the dangers of undue delay and wasting time.

III. CONCLUSION

The appeal is denied. The stay of proceedings is lifted. The record of trial 

is returned to the Judge Advocate General for transmittal to the convening 

authority. 

Judge FULTON and Judge SAYEGH concur.

For the Court

R.H. TROIDL

Clerk of Court