This opinion is subject to administrative correction before final disposition.

Before 

CRISFIELD, STEPHENS, and LAWRENCE

Appellate Military Judges

_________________________

UNITED STATES

Appellee

v.

William J. SCOTT

Staff Sergeant (E-6), U.S. Marine Corps

Appellant

No. 201900076

Decided: 31 August 2020

Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judges:

Stephen C. Reyes (arraignment and motion)

Mark D. Sameit (motions and trial)

Sentence adjudged 16 November 2018 by a general court-martial convened at Camp Foster, Okinawa, Japan, consisting of officer and enlisted members. Sentence in the Entry of Judgment: confinement for 18 

months, forfeiture of $1,638.00 per month for 18 months, reduction to 

E-1, and a dishonorable discharge.

For Appellant: 

Mr. William E. Cassara, Esq.

Lieutenant Michael W. Wester, JAGC, USN

For Appellee: 

Major Kyle D. Meeder, USMC

Mr. Brian K. Keller, Esq.

_________________________
United States v. Scott, NMCCA No. 201900076

Opinion of the Court

2

This opinion does not serve as binding precedent but 

may be cited as persuasive authority under 

NMCCA Rule of Appellate Procedure 30.2.

_________________________

STEPHENS, Senior Judge:

Appellant was convicted, contrary to his pleas, of two specifications of attempted sexual assault of a child and one specification of attempted sexual 

abuse of a child, in violation of Article 80, Uniform Code of Military Justice 

[UCMJ].1 The military judge merged the two specifications of attempted sexual 

assault of a child for findings and sentencing. 

Appellant asserts four assignments of error [AOEs], which we have renumbered: (1) the evidence is not factually sufficient because the Government did 

not prove beyond a reasonable doubt that Appellant was not entrapped; (2) Appellant received ineffective assistance from his trial defense counsel [TDC]—

his civilian lead defense counsel, Mr. Charlie;2 and his detailed military defense counsel, Captain [Capt] Lima—and his substitute post-trial military 

counsel, Capt Oscar; (3) Capt Lima was improperly excused at trial; and (4) the 

charges of which he was convicted were unreasonably multiplied. We find no 

prejudicial error and affirm.3

I. BACKGROUND

Appellant was a 29-year-old Marine stationed at Camp Foster in Okinawa, 

Japan. He joined a group chat entitled “Camp Foster Oki” on an instant messaging platform. Within that group, the Naval Criminal Investigative Service 

[NCIS] maintained a dormant account named “Marie,” bearing a profile picture 

of a teenage girl. This account was monitored by Special Agent [SA] Kilo, who 

played the role of a fictitious 14-year-old girl named “Marie” as part of a “to 

catch a predator” sting operation. Appellant initiated contact with Marie by 

 

1 10 U.S.C. § 880 (2012 & Supp. III 2016).

2 This and all other names, other than Appellant’s and those of the military judges, 

are pseudonyms. 

3 We have considered the fourth AOE and find it to be without merit. See United 

States v. Matias, 25 M.J. 356, 363 (C.M.A. 1987), cert. denied, 485 U.S. 968 (1988).
United States v. Scott, NMCCA No. 201900076

Opinion of the Court

3

sending her a private message, “Hey.”4 In order to document the exchanges 

between Marie and Appellant, SA Kilo captured screen images from the NCIS 

tablet on which he communicated with Appellant. These screen-captured images overlapped, showing a continuous conversation with each image beginning with the last line of the previous image.5

Appellant and Marie chatted innocuously on two instances that day. The 

next evening, Appellant re-initiated and asked, “Were you the only real one on 

that group[?]”6 Seven days later, Marie responded, “Haha,” and that she did 

not know.7 After Appellant asked Marie how she was doing, she responded, 

“Good you[?]” Twenty minutes later, without a response from Appellant, Marie

told him, “I’m young just so ya know.”8 Appellant acknowledged this without 

asking her age. 

The next day, Marie asked Appellant how old he was. After he answered, 

she told him she was 13.9 When he replied, “Oh no,” she said, “Sorry bye,” and 

“You can block me if you want.”10 He responded, “No it’s ok.”11 From that point, 

for the first time, they engaged in a contemporaneous back-and-forth conver-

 

4 R. at 278, 282; Pros. Ex. 1 at 3; Pros. Ex. 3 at 1. In a post-trial affidavit, Appellant 

attests that he initially sent this message to the entire Camp Foster Oki group at 1238 

on 2 May 2020, to which Marie responded, “Hi.” Declaration of Appellant of 6 Sep 2020. 

However, this fact is directly controverted by Prosecution Exhibits 1 and 2, indicating 

the initial message, “Hey,” sent on 2 May 2020 at 1238, was within a private chat 

between Appellant and Marie, not to the Camp Foster Oki chat as a whole. Pursuant 

to our Article 66 factual sufficiency review, we find the evidence proves beyond a reasonable doubt that the message was sent directly to Marie; however, for the purpose

of resolving Appellant’s AOEs, we assume, arguendo, Appellant’s rendition of this fact 

is true. 

5 Prosecution Exhibit 3 shows certain messages were deleted from the NCIS tablet. 

While it was not made clear at trial why or how some of these messages were deleted, 

this fact, along with all messages—whether captured in Prosecution Exhibit 1 or noted 

as “deleted” in Prosecution Exhibit 3—was presented to the members at trial. 

6 Pros. Ex. 1 at 5. 

7 Id. at 6. 

8 Id. at 7. 

9 Having previously said Marie was 14, the NCIS special agent in this persona 

caught his inconsistency and replied that she was days away from her 14th birthday.

10 Id. at 10.

11 Id. 
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4

sation. At one point they discussed their age difference, and there was a miscommunication between the two:

Appellant: Lol. To bad ur a little to young for me. . . .

Marie: I don’t care about age [smiling and blushing emoji] But 

yea totally

[Marie sent a photograph of a teenage girl in response 

to Appellant’s request for one.]

Appellant: Lol 29 seems a little old?

Marie: Up to you we don’t need to talk yea

Marie: I’m open minded to talk to anyone. See ya!

Appellant: Ok that’s fine

Appellant: If I [sic] wanna talk u can hit me up

Marie: Oh wait I thought you were saying you didn’t want to 

lmao

Appellant: No I do[n’]t mind12

Following this exchange, Appellant mentioned that he and his wife were

separating, so he was on the messaging platform looking for “FWB”13 and 

asked if Marie knew any “older people.”14 After Marie sent a negative response 

and a photograph of a teenage girl with a sad face, he responded, “Wish u were 

not so young [sad crying emoji].”15 The following exchange then occurred:

Marie: Why

Appellant: I would come meet you

Marie: You want to? 

Marie: Just my age is to young?

Appellant: Really?

Marie: No like I’m asking you? I’m saying like you want to but 

your sketchy about me being almost 14?”

 

12 Id. at 19-22 (emphasis added).

13 Id. at 29 [friends with benefits].

14 Id. at 30. 

15 Id. at 32.
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5

Appellant: I would, how do I know ur won’t be the one to get me in 

trouble [face with monocle emoji]16

The two discussed the trouble they would both get into if they were caught, 

but then Appellant asked where they would meet. When Marie suggested the 

previous older man she was with “just came over to my house on nights my 

mom was away,” he asked if she was busy “tonight or tomorrow.”17 She asked 

him what he would like to do, and he responded, “Lol please you lol.”18 She 

then generally discussed her sexual inexperience and asked him to elaborate 

on how he planned to “please” her, at which point Appellant turned the conversation overtly and explicitly sexual in nature. 

After they conversed about what they would do and whether she had any 

female friends she could trust to invite over as well, they discussed the logistics 

of meeting up. At 1556, Appellant told Marie he would come around 2045. She 

told Appellant she would message him at 1900 to give him directions to her 

house after she had an opportunity to confirm that her mother would not be 

home. At 1918, Marie told Appellant she was home and available. He asked 

her if he could see her at 2030, and she confirmed, providing the house address. 

At about 2015, he arrived at the specified location. Once he stepped on the 

property on his way to the front door, NCIS apprehended him. 

II. DISCUSSION

A. The Evidence is Legally and Factually Sufficient

Appellant asserts that the evidence presented at trial was factually insufficient to overcome the defense of entrapment. Appellant alleges that his initial 

message, “Hey,” was sent to the group as a whole, not solely the Marie profile. 

In response, Marie initiated contact with him. After a week-long gap in communication, Marie again initiated contact. Appellant further argues that because Marie repeatedly initiated contact, and because the Government did not 

introduce sufficient evidence in rebuttal to demonstrate that the criminal design did not originate with the Government or that Appellant was predisposed 

to commit the offense, the evidence is not factually sufficient to uphold his conviction. We are not convinced that Appellant was entrapped and find his convictions both legally and factually sufficient.

 

16 Id. at 33-34.

17 Id. at 38.

18 Id. at 39. 
United States v. Scott, NMCCA No. 201900076

Opinion of the Court

6

1. Test for legal and factual sufficiency

Article 66, UCMJ, requires us to conduct a de novo review and “affirm only 

such findings of guilty” as we find are “correct in law and fact.”19 The test for 

legal sufficiency is “whether, considering the evidence in the light most favorable to the prosecution, a reasonable factfinder could have found all the essential elements beyond a reasonable doubt.”20 When considering legal sufficiency, 

we are “bound to draw every reasonable inference from the evidence of record 

in favor of the prosecution.”21

The test for factual sufficiency is “whether, after weighing the evidence in 

the record of trial and making allowances for not having personally observed 

the witnesses, [we] are . . . convinced of the [appellant’]s guilt beyond a reasonable doubt.”22 We are required to take “a fresh, impartial look at the evidence,” 

and we need not give “deference to the decision of the trial court . . . beyond the 

admonition in Article 66, UCMJ, to take into account the fact that the trial 

court saw and heard the witnesses.”23

Reasonable doubt “is not intended [to be] a fanciful or ingenious doubt or 

conjecture, but an honest, conscientious doubt suggested by the material evidence or lack of it in this case. . . . The proof must be such as to exclude not 

every hypothesis or possibility of innocence, but every fair and rational hypothesis except that of guilt.”24

2. Defense of entrapment

Under Rule for Courts-Martial 916(g), “[i]t is a defense that the criminal 

design or suggestion to commit the offense originated in the Government and

the accused had no predisposition to commit the offense.” Once the Defense 

has met its burden of showing some evidence that a government agent originated the suggestion to commit an offense, “the burden then shifts to the Government to prove beyond a reasonable doubt that the criminal design did not 

 

19 UCMJ art. 66. 

20 United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987).

21 United States v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001).

22 Turner, 25 M.J. at 325.

23 United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002).

24 United States v. Loving, 41 M.J. 213, 281 (C.A.A.F. 1994).
United States v. Scott, NMCCA No. 201900076

Opinion of the Court

7

originate with the Government or that the accused had a predisposition to commit the offense, prior to first being approached by Government agents.”25

Inducement occurs when the Government’s conduct gives rise to a “substantial risk that an undisposed person or otherwise law abiding citizen would 

commit the offense. Inducement may take different forms, including pressure, 

assurances that a person is not doing anything wrong, persuasion, fraudulent 

representations, threats, coercive tactics, harassment, promises of reward, or 

pleas based on need, sympathy, or friendship.”26

The issue of predisposition is looked at through the eyes of a law abiding 

person, or someone “who resists the temptations, which abound in our society 

today, to commit crimes.”27 “Simply because there has been government contact is not enough to establish persuasion in the mind of an innocent individual.”28 “When a person accepts a criminal offer without being offered extraordinary inducements, he demonstrates his predisposition to commit the type of 

crime involved.”29

3. Appellant was not entrapped

Even if Marie initiated communication with Appellant and the entire criminal scheme originated with the Government, the Government’s evidence presented at trial was sufficient to convince us, beyond a reasonable doubt, that 

Appellant demonstrated a predisposition to commit the types of offenses for 

which he was convicted.

A person with no predisposition to commit these offenses could have, and 

indeed would have, easily cut-off communications with Marie once he learned

of her age. Within minutes of the start of their conversation, Marie informed

him she was 14. Later in their conversation, Appellant expressed his reluctance about her age, “I wish u were not so young.”30 When Marie asked “why,” 

 

25 United States v. Whittle, 34 M.J. 206, 208 (C.M.A. 1992) (citations and internal 

quotation marks omitted). 

26 United States v. Howell, 36 M.J. 354, 359-60 (C.M.A. 1993).

27 Id. (quoting United States v. Evans, 924 F.2d 714 (7th Cir. 1991).

28 Whittle, 34 M.J. at 208.

29 Id. (emphasis added) (quoting Evans, 924 F.2d at 717).

30 Pros. Ex. 1 at 32.
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Opinion of the Court

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he replied, “I would come meet you.”31 But when Marie asked, “You want to?” 

he immediately responded, “Really?”32

Marie offered no extraordinary inducements. All she offered was the means 

by which Appellant could achieve his criminal intent and a reassurance he 

would not be caught. Appellant contemplated and conveyed the specific acts he 

would perform on her and even attempted to get Marie to enlist one of her 

friends to “have fun” with them. Once they had a plan to meet, he had a threehour window without communications, during which he could have reconsidered. He chose to continue forward. Even if the criminal design originated with 

the Government—which we seriously doubt—Appellant demonstrated a clear 

predisposition to commit these offenses. 

B. Ineffective Assistance of Counsel

Appellant asserts that his TDC were ineffective for three reasons: 

(1) Mr. Charlie had a “fundamental lack of understanding of the technical aspects of the evidence” and failed to request expert assistance,33 (2) Mr. Charlie

failed to review Defense exhibits before presenting them to the members, and 

(3) neither of his TDC submitted a clemency request on his behalf.

We review claims of ineffective assistance of counsel de novo.34 In Strickland v. Washington,35 the Supreme Court laid out the test that guides our analysis. In order to prevail on such a claim, “an appellant must demonstrate both 

(1) that [trial defense] counsel’s performance was deficient, and (2) that [the] 

deficiency resulted in prejudice.”36 Appellant bears the “burden of establishing 

the truth of factual matters relevant to the claim.”37 Only after an appellant 

has met this burden and has demonstrated both deficiency and prejudice, can 

we find in the appellant’s favor on an ineffective assistance of counsel claim.

 

31 Id. 

32 Id. at 33. 

33 Appellant’s Brief at 12.

34 United States v. Harpole, 77 M.J. 231, 236 (C.A.A.F. 2018).

35 466 U.S. 668 (1984).

36 United States v. Green, 68 M.J. 360, 361 (C.A.A.F. 2010) (citing Strickland, 466 

U.S. at 687).

37 Denedo v. United States, 66 M.J. 114, 128 (C.A.A.F. 2008), aff’d, 556 U.S. 904 

(2009).
United States v. Scott, NMCCA No. 201900076

Opinion of the Court

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1. Further fact-finding not required

After considering the record and Appellant’s affidavit, we must first determine if additional fact-finding is necessary to resolve Appellant’s claim of ineffective assistance of counsel. Applying factors described in United States v. 

Ginn,38 Appellant believes “further investigation would provide valuable information for the Court in its assessment of the second prong of the Strickland 

test.”39 We disagree and conclude that additional fact-finding is unnecessary.

“If there is a factual dispute on a matter pertinent to [a] claim, the determination as to whether further fact-finding will be ordered is resolved under 

[Ginn].”40 However, no such hearing is necessary “if an appellate court can conclude that ‘the motion and the files and records of the case . . . conclusively 

show that [an appellant] is entitled to no relief.’ ”41 The six Ginn factors are as 

follows:

First, if the facts alleged in the affidavit allege an error that 

would not result in relief even if any factual dispute were resolved in appellant’s favor, the claim may be rejected on that basis.

Second, if the affidavit does not set forth specific facts but 

consists instead of speculative or conclusory observations, the 

claim may be rejected on that basis.

Third, if the affidavit is factually adequate on its face to state 

a claim of legal error and the Government either does not contest 

the relevant facts or offers an affidavit that expressly agrees 

with those facts, the court can proceed to decide the legal issue 

on the basis of those uncontroverted facts.

Fourth, if the affidavit is factually adequate on its face but 

the appellate filings and the record as a whole ‘compellingly 

demonstrate’ the improbability of those facts, the court may discount those factual assertions and decide the legal issue.

Fifth, when an appellate claim of ineffective representation 

contradicts a matter that is within the record of a guilty plea, an 

appellate court may decide the issue on the basis of the appellate 

 

38 47 M.J. 236 (C.A.A.F. 1997).

39 Appellant’s Brief at 26.

40 Denedo, 66 M.J. at 128.

41 Ginn, 47 M.J. at 244 (alterations in original) (citation omitted).
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Opinion of the Court

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file and record (including the admissions made in the plea inquiry at trial and appellant’s expression of satisfaction with 

counsel at trial) unless the appellant sets forth facts that would 

rationally explain why he would have made such statements at 

trial but not upon appeal.

Sixth, the Court of Criminal Appeals is required to order a 

fact-finding hearing only when the above-stated circumstances 

are not met. In such circumstances, the court must remand the 

case to the trial level for a DuBay proceeding. During appellate 

review of the DuBay proceeding, the court may exercise its Article 66 fact-finding power and decide the legal issue.42

Before us now, Appellant has submitted a declaration, making a number of 

statements he believes are pertinent to his claim. We have reviewed his statements and find that even assuming the facts to be as Appellant claims, he 

would not be entitled to any relief. Therefore, no further fact finding is necessary in order to resolve Appellant’s claims.

2. Appellant suffered no prejudice from any alleged deficiencies of TDC

The two-prong approach laid out in Strickland is not a sequential test. We 

need not always determine “whether counsel’s performance was deficient before examining the prejudice suffered by the [appellant] as a result of the alleged deficiencies. If it is easier to dispose of an ineffectiveness claim on the 

ground of lack of sufficient prejudice, . . . that course should be followed.”43

Here we can dispose of this claim for lack of prejudice.

In light of our holding supra on the issues of entrapment and factual sufficiency, Appellant’s first ground for complaint of ineffective assistance, not understanding the technical aspects of the evidence regarding entrapment, is

without merit. Aside from a barrage of speculation as to what an expert witness might have been able to do had he been called, Appellant claims the “decision to forego expert assistance in digital forensics . . . greatly prejudiced 

[him] in that it undercut his ability to present an entrapment defense.”44 He 

makes no additional concrete claims of prejudice suffered due to a lack of an 

expert witness. Even assuming—contrary to the evidence—Appellant’s version 

of events to be true, he suffered no prejudice by this alleged error. We also find 

that even had the Defense presented enough evidence that messages had been 

 

42 Ginn, 47 M.J. at 248.

43 Strickland, 466 U.S. at 689.

44 Appellant’s Brief at 20.
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deleted so as to cause the military judge to exclude the conversation between 

Appellant and Marie [Prosecution Exhibit 1], no evidence was presented to 

show that Prosecution Exhibit 3 [the “Extraction Report” of the NCIS tablet 

containing the conversations] was incomplete, and that exhibit alone would 

have been sufficient to uphold Appellant’s conviction.

We therefore turn to Appellant’s remaining claims of ineffective assistance 

and find he suffered insufficient, if any, prejudice. To demonstrate prejudice,

“[i]t is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.”45 Instead, “[t]he defendant must 

show that there is a reasonable probability that but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is probability sufficient to undermine confidence in the outcome.”46 When an appellant was actually or constructively denied assistance 

of counsel altogether, or when counsel is burdened by an actual conflict of interest (and actually represents those conflicting interests), we presume prejudice.47 However, Appellant makes neither of these claims, and the record does 

not support either. 

The Defense offered Defense Exhibit I, Appellant’s video-recorded confession. The military judge admitted it, but only after ordering redaction to remove references to a polygraph examination and to Appellant’s prior “sexting.” 

Before playing the video recording in open court for the members, Mr. Charlie 

neglected to review the edited version. During playback, after noticing a reference to Appellant “struggling with a test”48 and a reference to “sexting”49 previously with a girl in South Carolina, Mr. Charlie interrupted and asked for an 

opportunity to review Defense Exhibit I before continuing to play it for the 

members.

Any deficiency by Mr. Charlie for failing to review Appellant’s videotaped 

confession prior to publication did not prejudice Appellant. The brief reference 

to “struggling with a test” that was left unredacted provided the members with 

 

45 Strickland, 466 U.S. at 693.

46 Id.

47 Id. at 692.

48 R. at 501.

49 Id.
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very little, if any, inflammatory material and would require extreme speculation to deduce it was a polygraph.50 The military judge noted that none of the 

members reacted to the phrase “struggling with a test” and “no one brought 

attention to it.”51 This is insufficient to demonstrate prejudice, particularly 

when coupled with the Government’s agreement not to mention the references 

in argument and Mr. Charlie tactical decision not to ask for a limiting instruction so as not to draw attention to the matters.

Additionally, Appellant’s argument that the members may have interpreted the brief reference to sexting a “girl” in South Carolina to mean that she 

was underage, thus undermining his entrapment defense, is insufficient to 

demonstrate prejudice. First, we have resolved the issue of entrapment, without regard to the reference to sexting, above—Appellant was not entrapped. 

Furthermore, the conclusion suggested by Appellant requires significant speculation and certainly does not give rise to a “reasonable probability” of error 

“sufficient to undermine confidence in the outcome.”

Most importantly, the evidence against Appellant was overwhelming. Appellant does not allege the improper reference to “sexting” or “struggling with 

a test” prejudiced him in sentencing; he merely suggests it contributed to his 

conviction. We are confident had these redactions been properly made, the outcome would have remained the same. Appellant engaged in rather routine, if 

sordid, misconduct. The chat history, with the explicit language explaining 

what Appellant intended to do to Marie, was preserved and presented at trial 

in multiple forms. Appellant made a lengthy confession to NCIS, which was 

videotaped and presented at trial. The improper references to struggling with 

a test and sexting did very little, if anything, to contribute to Appellant’s conviction. 

Finally, Appellant claims his defense counsel were deficient in their posttrial responsibilities. He states, “[Capt Lima] submitted a request to the Convening Authority asking him to defer the adjudged and automatic reduction in 

rank until Convening Authority’s Action” but “did not include a request to defer either the adjudged or automatic forfeitures.”52 After complaining about a 

 

50 One of the special agents told Appellant during the interview, “You’re clearly 

struggling on this test. And the reason why you’re struggling is because in your conversations with (other special agent) earlier, you weren’t completely forthcoming.” This 

was not redacted and heard by the members. Def. Ex. I.

51 R. at 502.

52 Appellant’s Brief at 24. 
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13

lack of communication from his counsel, Appellant requested and was granted 

a substitute military counsel, Capt Oscar, to handle his post-trial matters. 

Capt Oscar signed for the Staff Judge Advocate’s Recommendation and indicated that he would submit a clemency request on Appellant’s behalf, but ultimately did not do so. Appellant claims that this failure prejudiced him by “eliminating his opportunity to request further clemency for the benefit of his wife 

and children.”53 However, Appellant acknowledges that despite this failure to 

request clemency, the convening authority granted deferral for the reduction 

in rank and automatic forfeitures. It is mere speculation to suppose that the 

convening authority would have awarded more clemency had it been requested—such speculation is insufficient to demonstrate prejudice. 

C. Excusal of Detailed Defense Counsel

1. Facts surrounding Captain Lima’s withdrawal

Capt Lima was detailed as Appellant’s military defense counsel. Appellant

subsequently consulted with and obtained Mr. Charlie as his lead TDC. On the 

last day of trial on the merits at 0759, the military judge called the court to 

order and stated on the record that Capt Lima’s “child had some health issues 

last night,” and that “[h]e is attending to those, but we anticipate he will be 

back when the members return at 0900.”54 At that point, the military judge 

reminded Appellant of his right to “have all of [his] lawyers present in all sessions of court.”55 After Appellant confirmed that he understood his right, the 

military judge asked, “Are you willing to do this 39(a) session without [Capt 

Lima] being present?” Appellant replied, “Yes, sir.” After quickly discussing a 

few administrative matters, the court recessed at 0803.

At 0926, the court reconvened. The military judge stated: 

[Captain Lima], unfortunately, is still not present. It appears 

that he’s not going to be present, potentially for the entire rest 

of the trial due to the nature of the emergency. Staff Sergeant, I 

know I just discussed it with you, you obviously have the right 

to have all your counsel present throughout the trial. Do you 

 

53 Id. at 25. 

54 R. at 488.

55 Id.
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Opinion of the Court

14

want to proceed with the rest of the trial on the merits without 

[Capt Lima] being present?56

Appellant replied, “Yes, Your Honor.”57

The military judge then discussed the Defense request to postpone sentencing to the next day: “We discussed the way forward, defense indicated that 

[Capt Lima] was planning on handling the sentencing portion of the trial. 

Given that he likely won’t be back, defense asked that if there is a conviction in 

this case that we postpone sentencing until tomorrow.”58 He agreed that such a 

request was “certainly . . . reasonable given the circumstances, and that he 

would postpone the sentencing phase until the next day.59 At no other point 

did Appellant object or Mr. Charlie request additional time to prepare for sentencing. 

2. Appellant expressly consented to the withdrawal of Captain Lima

Appellant alleges that his defense counsel was excused by the military 

judge without good cause shown on the record and without Appellant’s informed express consent. When an accused’s case is referred to a general or special court-martial, he is represented by a “statutorily qualified military defense 

counsel, known as detailed military defense counsel.”60 In addition to this detailed counsel, an accused may choose to be represented by a civilian defense 

counsel at no cost to the Government.61 When this happens, the detailed military counsel “shall act as associate counsel unless excused at the request of the 

accused.”62 The authority competent to detail such counsel may excuse a detailed military counsel, among other reasons, “[u]pon request of the accused” 

or “[f]or other good cause shown on the record.”63 “ ‘[G]ood cause’ includes physical disability, military exigency, and other extraordinary circumstances which 

render the member, counsel, or military judge unable to proceed with the court-

 

56 Id. at 491 (emphasis added). 

57 Id.

58 Id. (emphasis added). 

59 Id.

60 United States v. Hutchins, 69 M.J. 282, 284 (C.A.A.F. 2011) (citing UCMJ art. 

27(a)(1), 10 U.S.C. § 827(a)(1) (2006)).

61 UCMJ art. 38(b)(2).

62 UCMJ art. 38(b)(4).

63 Rule for Courts-Martial [R.C.M.] 505(d)(2)(B).
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15

martial within a reasonable time,” and “does not include temporary inconveniences which are incident to normal conditions of military life.”64

There is no need to show good cause to withdraw as counsel in cases where

the detailed military defense counsel seeks to withdraw “with the express consent of the accused.”65 The record of trial makes it clear Appellant acquiesced 

to Capt Lima’s withdrawal. In United States v. Hutchins, the Court of Appeals 

for the Armed Forces [CAAF] found error when detailed military defense counsel unilaterally withdrew due to the end of his active duty service. CAAF noted 

that the military judge presumed counsel’s absolute unavailability, “present[ing] the termination of the attorney-client relationship as an established 

fact without ascertaining whether any consideration had been given to other 

available options.”66 That is not the case we are confronted with. 

Each time the military judge received updated information on the availability of Capt Lima, the military judge reminded Appellant of his right to have 

counsel present at all proceedings and asked if he wished to continue forward. 

Appellant acknowledged his understanding of his rights and clearly stated that 

he wished to press forward with Mr. Charlie and without Capt Lima. At no 

point did the military judge receive or approve a request to withdraw; instead, 

Appellant expressly consented to Capt Lima’s absence. Although initially his 

absence was expected to be brief, shortly thereafter it became clear that he 

would not return for the rest of trial. The fact that Mr. Charlie contemplated 

needing more time to prepare for sentencing demonstrates the understanding 

of all parties that Capt Lima would not return for the remainder of the trial—

on the merits or sentencing.

In United States v. Royer,67 an unpublished case, we found the appellant 

consented to his TDC’s withdrawal. When Royer pleaded guilty, the military 

judge ordered a mental competency evaluation. In the ensuing two months before the court-martial reconvened, Royer’s TDC informed the trial counsel and 

the military judge that he had a conflict of interest between Royer and another 

client. The military judge informed Royer that his TDC was removed from the 

case due to circumstances beyond Royer’s control. Later, on the record, the military judge confirmed with Royer that he had enough time to discuss the case 

 

64 R.C.M. 505(f).

65 R.C.M 506(c).

66 Hutchins, 69 M.J. at 289.

67 No. 200600530, 2007 CCA LEXIS 67 (N-M. Ct. Crim. App. 2007) (unpub. op.).
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16

with his new TDC, that he felt comfortable with his new TDC, and that he did 

not wish to be represented by any other attorney.

Here the military judge engaged in a similar colloquy with Appellant and 

ascertained that Appellant was aware of his rights, and that he was comfortable proceeding into sentencing without Capt Lima.68 Under the circumstances 

it seems very likely that if Appellant had answered differently, the military 

judge would have granted a continuance. This record presents us with an informed consent by Appellant to Capt Lima’s withdrawal.

3. Any error was harmless

Assuming, arguendo, that Appellant did not consent to Capt Lima’s withdrawal, we would nonetheless decline to award relief in this case.69 When an 

appellant establishes that an error of law occurred during trial, the defense 

must also show that the error produced material prejudice to the substantial 

rights of the accused.70 Because “[t]his case involves defense counsel’s improper withdrawal from an attorney-client relationship but with assurance of 

his client’s uninterrupted representation by another lawyer and followed by 

the client’s subsequent knowing ratification of that withdrawal,” it is proper to 

test for prejudice.71

As in Hutchins, any error that exists in the excusal of Appellant’s detailed 

military defense counsel merely involves “oversights and omissions in addressing the issue of severance.”72 It does not involve governmental misconduct (or 

any action whatsoever) or decisions by the military judge to deny relief requested by the defense.73 The military judge here, as in Hutchins, granted the 

 

68 The context in the colloquy concerning whether Capt Lima would not be present 

for the “rest of the trial” appears to include sentencing, if necessary. It also appears 

Mr. Charlie understood this, as did Appellant. Mr. Charlie requested, and received, a 

one-day postponement to prepare for sentencing, due to Captain Lima’s absence for 

the “rest of the trial.” R. at 491.

69 See United States v. Acton, 38 M.J. 330, 336-37 (C.M.A. 1993) (finding that despite the improper unilateral withdrawal of detailed defense counsel, appellant could 

not demonstrate prejudice).

70 UCMJ art. 59(a). 

71 Acton, 38 M.J. at 336 n.2. Although Appellant views this as structural error, we 

decline to review this as such. His claim is that he was denied a statutory right to 

detailed defense counsel; he was, however, afforded the counsel of his choosing. 

72 Hutchins, 69 M.J. at 292.

73 See id.
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17

only defense request for continuance, and it would be mere speculation, unsupported by the record, to presume an additional request for continuance would 

have been denied. Because Appellant assented to the absence of Capt Lima, we 

find this AOE to be without merit. 

III. CONCLUSION

After careful consideration of the record and briefs of appellate counsel, we 

have determined that the findings and sentence are correct in law and fact and 

that no error materially prejudicial to Appellant’s substantial rights occurred. 

UCMJ arts. 59, 66.

The findings and sentence are AFFIRMED.

Chief Judge Emeritus CRISFIELD and Judge LAWRENCE concur.

FOR THE COURT:

RODGER A. DREW, JR.

Clerk of Court