UNITED STATES, Appellee 

v. 

Christopher D. WIEST, Cadet 

U.S. Air Force, Appellant 

No. 03-0106 

Crim. App. No. 33964 

United States Court of Appeals for the Armed Forces 

 Argued October 1, 2003 

 Decided March 16, 2004 

CRAWFORD, C.J., delivered the opinion of the Court, in 

which GIERKE, EFFRON, and BAKER, JJ., joined. ERDMANN, J., 

filed a dissenting opinion. 

Counsel 

For Appellant: Mr. Frank J. Spinner, Esq. (argued); Colonel 

Beverly B. Knott, Major Terry L. McElyea, Major Bryan A. Bonner, 

and Captain Antony B. Kolenc (on brief). 

For Appellee: Lieutenant Colonel Michael E. Savage (argued); 

Colonel LeEllen Coacher (on brief); and Lieutenant Colonel Lance 

B. Sigmon. 

Military Judge: J. Jeremiah Mahoney 

THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.

 
United States v. Wiest, No. 03-0106/AF 

2

CRAWFORD, Chief Judge, delivered the opinion of the Court. 

 Contrary to his pleas, Appellant, a cadet at the Air Force 

Academy, was convicted by officer members of one specification 

of Article 134, Uniform Code of Military Justice [hereinafter 

UCMJ], 10 U.S.C. § 934 (2000), by damaging a computer, in 

violation of 18 U.S.C. § 1030(A)(5)(B) (2000).1

 He was sentenced 

to a dismissal and total forfeitures. The convening authority 

approved the dismissal and partial forfeitures, and the Air 

Force Court of Criminal Appeals affirmed the findings and 

sentence. 

 Because we hold the military judge abused his discretion in 

refusing to grant a defense-requested continuance to obtain a 

civilian lawyer (Issue I), we will not address the other granted 

issues.2

 

1 We heard oral argument in this case at Offutt Air Force Base, 

Bellevue, Nebraska, on October 1, 2003, as part of "Project 

Outreach." See United States v. Allen, 34 M.J. 228, 229 n.1 

(C.M.A. 1992). 

2

 II. WHETHER THE EVIDENCE IS LEGALLY SUFFICIENT 

TO SUSTAIN APPELLANT’S CONVICTION TO THE LESSERINCLUDED OFFENSE OF 18 U.S.C. § 1030(A)(5)(B) FOR 

INTENTIONALLY ACCESSING A PROTECTED COMPUTER WITHOUT 

AUTHORIZATION AND RECKLESSLY CAUSING DAMAGE WHERE 

THERE IS NO EVIDENCE THAT APPELLANT’S ACCESS TO THE 

COMPUTER IN QUESTION ACTUALLY CAUSED THE DAMAGE 

ALLEGED BY THE PROSECUTION AND WHERE APPELLANT 

HONESTLY BELIEVED HIS ACCESS TO THE SYSTEM WAS 

AUTHORIZED. 

III. WHETHER THE MILITARY JUDGE ERRED IN INSTRUCTING 

THE MEMBERS ON THE LESSER-INCLUDED OFFENSE OF 
United States v. Wiest, No. 03-0106/AF 

3

FACTS 

 The Government contends that, contrary to the United 

States Air Force Academy (USAFA) rules, Appellant attempted to 

use his computer to access internet chat rooms. To prevent such 

communications, USAFA had previously developed a firewall as 

part of the USAFA network. 

 On February 2, 1999, defense counsel requested a new 

investigation pursuant to Article 32, UCMJ, 10 U.S.C. § 832 

(2000), arguing that the Government mistakenly told defense 

counsel that logs describing individuals at USAFA who had 

entered and exited the firewall did not exist. In discussing 

the motion, the judge made several comments concerning the 

competency of the defense counsel for relying on the 

Government’s assertion that these logs did not exist, and for 

not independently investigating the existence of the logs. When 

discussing the reason for a new Article 32 investigation, the 

judge criticized the attorneys as follows: 

 Certainly as an attorney, one would expect to question 

why [the firewall logs] didn’t exist. Whether it was 

a routine matter or there was something about the 

 

SPECIFICATION 1 OF THE CHARGE WHERE HE FAILED TO 

INSTRUCT THE MEMBERS THAT THE UNAUTHORIZED ACCESS TO 

THE COMPUTER SYSTEM MUST HAVE BEEN INTENTIONAL. 

IV. WHETHER THE MILITARY JUDGE ERRED IN PROVIDING THE 

COURT MEMBERS A MISTAKE OF FACT INSTRUCTION WHICH 

REQUIRED THEM TO FIND THAT APPELLANT’S MISTAKE OF FACT 

WAS REASONABLE INSTEAD OF MERELY HONEST. 
United States v. Wiest, No. 03-0106/AF 

4

particular logs from this occasion that somehow were 

lost or destroyed inadvertently . . . . We are just 

talking about testing the available evidence, which is 

the function of an advocate. 

In response to defense counsel’s explanation as to why the 

motion was made months after the original Article 32 

investigation, the judge stated, “but the thought never occurred 

to you at that time to ask why [the logs] didn’t exist?” “[I]f 

you have an indication that the type of evidence that you are 

looking for should be in existence, then I think as an attorney 

you should be questioning why it is no longer in existence.” 

The judge said defense counsel should not have accepted the 

government representative’s statement that the logs did not 

exist, and should have asked their own consultant rather than 

relying on the Government representative. The judge said 

defense counsel should have assumed the records were always 

present and “had been misinformed.” Counsel responded that they 

assumed the government was telling the truth. The judge then 

said, “a competent advocate assume[s] nothing.” In response to 

the judge’s continued questioning, the defense counsel stated: 

“Again, if we were remiss and if I’m not a competent advocate 

for not confirming that, I’ll take that hit. But, it doesn’t 

take anything away from the fact that [the Government] actually 

knew the records existed . . . .” Later, the defense admitted 

they were “novices with computers” and dependent upon experts 
United States v. Wiest, No. 03-0106/AF 

5

who thought the logs did not exist. In denying the motion for a 

new Article 32 investigation, the judge noted that the 

“availability of the firewall logs, regardless of their 

completeness, was unappreciated by both the prosecution and the 

defense.” He continued: 

The attorneys in this case were not by training or 

experience well-equipped to deal with the complex 

computer[-]related materials inherent in the alleged 

offenses . . . . [I]t is utterly confounding to the 

court the defense expert limited himself to stating 

requests to attorneys who were not equally qualified 

in the subject matter. 

 After the judge denied the motion for a new Article 32 

investigation, Appellant told the judge he believed his counsel 

were ineffective at the original Article 32 investigation, and 

therefore requested new defense counsel. Appellant was then 

told he had misunderstood the judge’s words; in not ordering a 

new Article 32 investigation, the judge did not say that counsel 

was ineffective. Appellant disagreed, and personally addressed 

the court as follows: “Your Honor, in light of your statements 

that my counsel were ineffective at my Article 32 hearing, as 

well as throughout the proceedings leading up to this courtmartial, . . . I would like to fire both.” The judge replied 

again that Appellant had misunderstood his prior remarks, but 

that because Appellant insisted on new counsel, replacement 

counsel “must be available and prepared for trial on 8 March 
United States v. Wiest, No. 03-0106/AF 

6

1999.” The judge did not at this time release original defense 

counsel. 

Appellant then requested representation by Major Theurer, a 

defense counsel with a reputation as an expert in computer 

matters, as an individual military defense counsel under Rule 

for Courts-Martial 506(b)[hereinafter R.C.M.]. Although Major 

Theurer’s superior approved the request, he was not available 

for trial on March 8, prompting the judge to state that “if 

Major Theurer is not available on the 8th of March, then he is 

not available period. The trial will proceed without him.” On 

February 10, Mr. Spinner, a civilian defense counsel, entered 

his appearance on behalf of Appellant, but requested a delay 

until April 19, because of his schedule. On the same day, the 

military judge faxed a response to Mr. Spinner, advising him 

that the trial date was March 8 and, “If you wish to represent 

the accused you need to be present and prepared on that date.” 

He further advised Mr. Spinner, “If you cannot be available and 

prepared on that [sic] 8 Mar 99, you are not reasonably 

available and should not undertake this representation.” 

Finally, he advised Mr. Spinner, “You should not count on any 

further continuance being granted, and make your plans 

accordingly for preparation or termination of your 

representation.” 
United States v. Wiest, No. 03-0106/AF 

7

 On February 12, the Government asked that the continuance 

be denied because Appellant “is free to retain counsel . . . . 

Given the amount of time that Cadet Wiest has had, and still 

has, to obtain counsel that are available on 8 Mar 99, we 

believe no continuances are necessary at this time.” On the 

same date, the judge denied the defense request for a 

continuance.3

Appellant asked for new military defense counsel on March 

8. Two new military defense counsel entered appearances for 

Appellant and indicated they were ready to proceed. Mr. 

Spinner, who had also been retained as civilian counsel, was not 

ready to begin because of other commitments. At this session, 

Appellant’s request to release prior military counsel was 

granted, as was his request to be represented by new counsel, 

without Mr. Spinner as civilian counsel. The trial proceeded as 

scheduled. 

DISCUSSION 

The right to counsel is fundamental to our system of 

justice. United States v. Palenius, 2 M.J. 86 (C.M.A. 1977). 

It should therefore be an unusual case, balancing all the 

factors involved, when the judge denies an initial and timely 

 

3

 We need not decide whether the trial judge was disqualified 

under R.C.M. 902(b)(1), because he had “knowledge of disputed 

evidentiary facts concerning” the availability of Mr. Spinner by 

obtaining facts ex parte and not subject to judicial notice. 
United States v. Wiest, No. 03-0106/AF 

8

request for a continuance in order to obtain civilian counsel, 

particularly after the judge has criticized appointed military 

counsel. Indeed, we have noted that the right to civilian 

counsel is a “most valuable right,” and that therefore a 

continuance should be granted at least after initial requests 

for such counsel have been made, and certainly in a case where 

Appellant is unsure of his appointed military representation. 

United States v. Kinard, 21 C.M.A. 300, 303, 45 C.M.R. 74, 77 

(C.M.A. 1972)(citing United States v. Donohew, 18 C.M.A. 149, 39 

C.M.R. 149 (C.M.A. 1969)); cf. Morris v. Slappy, 461 U.S. 1, 3-4 

(1983)(citing Slappy v. Morris, 649 F.2d 718 (9th Cir. 1981)). 

Accordingly, we hold that the military judge erred by exercising 

an inelastic attitude in rescheduling Appellant’s trial, where 

such request was predicated on the judge’s negative comments 

about Appellant’s original military counsel and Appellant’s 

subsequent selection of a new civilian counsel. 

Our standard of review in the case at bar is abuse of 

discretion. United States v. Weisbeck, 50 M.J. 461, 464-66 

(C.A.A.F. 1999). In determining whether the judge abused his 

discretion, we consider the factors articulated in United States 

v. Miller: “surprise, nature of any evidence involved, 

timeliness of the request, substitute testimony or evidence, 

availability of witness or evidence requested, length of 

continuance, prejudice to opponent, moving party received prior 
United States v. Wiest, No. 03-0106/AF 

9

continuances, good faith of moving party, use of reasonable 

diligence by moving party, possible impact on verdict, and prior 

notice.” 47 M.J. 352, 358 (C.A.A.F. 1997)(citation omitted). 

See also United States v. Cokeley, 22 M.J. 225, 229-30 (C.M.A. 

1986)(availability of witnesses); Kinard, 21 C.M.A. at 305, 45 

C.M.R. at 79. 

As to surprise on February 10, Mr. Spinner requested a 

continuance well before the March 8 trial date. The request for 

a continuance was based on unexpected events. Here, Appellant 

was clearly surprised by the harsh criticism of his counsel by 

the military judge, and this factor weighed in favor of a 

continuance. As to timeliness, Mr. Spinner requested the 

continuance as soon as he was retained, six days after the court 

was recessed and well before the trial date. He had made no 

prior requests for continuance, nor was there any delay or bad 

faith by Appellant as he contacted Mr. Spinner almost 

immediately and Mr. Spinner promptly submitted his request for a 

continuance. 

Because of the comments made by the judge concerning 

Appellant’s representation at the Article 32 hearing, Appellant 

requested the appointment of new military counsel and sought, in 

addition, to retain civilian counsel. Based on the record, this 

request was not a surprise. Appellant’s request for new counsel 

was submitted shortly after the February 2 session pursuant to 
United States v. Wiest, No. 03-0106/AF 

10

Article 39(a), UCMJ, 10 U.S.C. § 851(a) (2000). The timing of 

this request therefore allowed sufficient time to establish a 

date when civilian counsel would be available to work within the 

schedule of the witnesses, none of whom were outside the United 

States. Moreover, the Government did not establish a reason for 

opposing Appellant’s request for a continuance, other than 

noting that the witnesses were available on March 8, 1999. Nor 

did they establish an attempt by Appellant to “vex” the 

Government, or show that witnesses would not be available at a 

later date. “Where a military judge denies a continuance 

request made for the purpose of obtaining civilian counsel, 

prejudice to the accused is likely.” Miller, 47 M.J. at 359. 

Given these circumstances, the military judge should have 

granted the continuance, and therefore abused his discretion in 

failing to do so. 

DECISION

 The decision of the United States Air Force Court of 

Criminal Appeals is reversed, the findings and the sentence are 

set aside, and the record of trial is returned to the Judge 

Advocate General for a further disposition not inconsistent with 

this opinion. 
United States v. Wiest, No. 03-0106/AF 

ERDMANN, Judge (dissenting): 

I respectfully dissent. I find no clear abuse of discretion 

in the military judge’s refusal to grant a continuance and would 

affirm the Air Force Court of Criminal Appeals (AFCCA) on Issue 

I.1 

The majority decision concludes that it would be an unusual 

case where a judge denies “an initial and timely request for a 

continuance in order to obtain civilian counsel, particularly 

after the judge has criticized appointed military counsel.” The 

majority opinion goes on to hold that the military judge erred by 

exercising an “inelastic attitude” in rescheduling Wiest’s trial. 

This was not an initial request for continuance as the 

military judge had already granted a 34-day continuance to allow 

Wiest the opportunity to find available civilian counsel after he 

“fired” his original military counsel. Wiest had been detailed 

two new military attorneys whom he accepted without reservation 

and who effectively represented him throughout the trial. The 

record simply does not support either the conclusion that the 

military judge was “inflexible” in regard to the second requested 

continuance or that Wiest was prejudiced as a result of the 

denial. 

 

1

 Due to its disposition of Issue I, the majority opinion does 

not address the remaining issues. I would affirm the AFCCA on 

all issues. 
United States v. Wiest, No. 030106/AF 

2

Factual Background

Charges were preferred against Wiest on July 27, 1998, and a 

hearing pursuant to Article 32, Uniform Code of Military Justice 

[UCMJ], 10 U.S.C. § 832 (2000), was scheduled for August 4, 1998. 

As a result of a motion by Wiest to be represented by the circuit 

defense counsel, the Article 32 hearing was delayed until 

September 16. Following the Article 32 hearing, charges were 

referred on November 30, and the parties agreed upon a February 

2, 1999 trial date. 

On February 2, all parties and witnesses were present and 

prepared for trial at the U.S. Air Force Academy. Before Wiest 

entered his pleas, however, his defense attorneys made a motion 

for a new Article 32 investigation. The basis for the motion was 

that during the first Article 32 hearing, the Government had 

informed the Article 32 investigating officer and defense counsel 

that certain firewall logs did not exist. It was later 

discovered by the defense that these logs did in fact exist. The 

defense argued that these logs were critical to their case and 

that a new Article 32 investigation should be held. Granting the 

motion on the day of trial would have had the effect of vacating 

the February 2 trial date. 

The military judge conducted a hearing on the motion and 

pressed the defense as to why they had not earlier challenged the 

Government’s assertion that the logs had been destroyed. The 

defense counsel responded that he believed that he could rely 

upon the representations of the Government. The military judge 
United States v. Wiest, No. 030106/AF 

3

ultimately denied the motion for a new Article 32 investigation, 

noting that the “availability of the firewall logs, regardless of 

their completeness, was unappreciated by both the prosecution and 

the defense.” 

After the military judge announced his decision, Wiest made 

the following statement: 

Your Honor, in light of your statements that my counsel were 

ineffective at my Article 32 hearing, as well as throughout 

the proceedings leading up to this court-martial, at this 

time, I would like to fire them both. 

The military judge responded that he did not think that he ever 

used the term “ineffective” nor had he questioned the defense 

attorneys’ effectiveness, and he thought that Wiest had 

misunderstood his statements to the defense counsel. In fact, 

while the record reflects that the military judge did have a 

spirited exchange with the defense counsel, he did not at any 

time state that the defense attorneys were ineffective nor did 

his ruling reflect any such conclusion. 

Nevertheless, over the next two days the military judge held 

a series of hearings to determine the availability of new 

military counsel for Wiest and a new trial date. The trial 

counsel consulted with their civilian and military witnesses and 

requested a trial date of March 8. During this period Wiest and 

defense counsel were able to locate military counsel that would 

be available for the March 8 trial date. During a session 

pursuant to Article 39(a), UCMJ, 10 U.S.C. § 839(a) (2000) on 
United States v. Wiest, No. 030106/AF 

4

February 4, 1999, the military judge emphasized to Wiest a 

disinclination to grant a further continuance: 

I don’t control whether counsel is acceptable to 

you. I do, however, control when the trial 

proceeds. And, the trial is going to proceed on 

the 8th of March 1999, unless somebody convinces 

me otherwise by very strong and compelling 

evidence that it has to be delayed. 

On February 8, Wiest retained Frank J. Spinner, a civilian 

attorney, to represent him in addition to his two detailed 

military counsel. Wiest retained Mr. Spinner even though he knew 

Mr. Spinner would not be available on March 8 and was aware of 

the judge’s disinclination to grant a further delay. Mr. Spinner 

formally entered his appearance as civilian counsel on February 

10 and at that time requested that the trial be delayed for six 

weeks until April 19 to accommodate his schedule. 

The military judge denied the request that same day, stating 

that he had made clear to Wiest on the record on February 2 that 

any replacement counsel must be available and prepared for trial 

on March 8 and if Mr. Spinner could not be available and prepared 

on that date then he was not reasonably available. Trial counsel 

also opposed the request, albeit two days later, on the grounds 

that it was unnecessary because Wiest had, and still did have, 

sufficient time to obtain civilian counsel who could be available 

on March 8. When the parties assembled for the court-martial on 

March 8, Wiest renewed his request for a continuance on the 

grounds that his civilian counsel was unable to attend the court-
United States v. Wiest, No. 030106/AF 

5

martial due to his scheduling conflict.2 That request was denied 

as well. 

Prior to the beginning of trial on March 8, Wiest accepted 

his two newly appointed military counsel without reservation and 

at that time the military judge released Wiest’s original 

military counsel. The new military counsel represented Wiest 

throughout the court-martial. Wiest did not attempt to discharge 

his second set of military counsel, did not express any 

dissatisfaction with their performance and did not, at any stage, 

raise any issue of ineffective assistance of counsel. Indeed, 

his military counsel succeeded in winning an acquittal on all but 

one lesser-included offense. 

Constitutional Right to Counsel of Choice

While the Sixth Amendment guarantees the assistance of 

counsel in all criminal prosecutions, it provides only a 

qualified – not absolute – right to retain counsel of the 

defendant’s own choosing: 

[T]he purpose of providing assistance of counsel 

is simply to ensure that criminal defendants 

receive a fair trial, and that in evaluating Sixth 

Amendment claims, the appropriate inquiry focuses 

on the adversarial process, not on the accused's 

relationship with his lawyer as such. Thus, while 

the right to select and be represented by one's 

preferred attorney is comprehended by the Sixth 

Amendment, the essential aim of the Amendment is 

to guarantee an effective advocate for each 

criminal defendant rather than to ensure that a 

defendant will inexorably be represented by the 

lawyer whom he prefers. 

 

2

 Rather than actively seek alternative civilian counsel, Wiest 

apparently elected to keep Mr. Spinner as his civilian defense 

counsel in order to “preserve the issue for appellate purposes.” 
United States v. Wiest, No. 030106/AF 

6

Wheat v. United States, 486 U.S. 153, 159 (1988)(citations 

and internal quotation marks omitted). 

In reviewing the “adversarial process” in this case, I note 

that Wiest had two competent, prepared advocates representing 

him. This is not a case in which the military judge’s action 

resulted in the defendant being forced to trial with an 

inadequately prepared attorney or no attorney at all. As the 

military judge pointed out, “not everyone can be represented by 

F. Lee Bailey, Johnny Cochran, or even Mr. Frank Spinner.” 

Notwithstanding the absence of Mr. Spinner, the fairness of the 

adversarial process was preserved. The parameters of the 

constitutional right to counsel of choice were further clarified 

in United States v. Hughey, 147 F.3d 423, 428 (5th Cir. 

1998)(citations and internal quotation marks omitted): 

While we concur that trial lawyers are not for the most 

part fungible, the Sixth Amendment simply does not 

provide an inexorable right to representation by a 

criminal defendant’s preferred lawyer. Indeed, there 

is no constitutional right to representation by a 

particular attorney. The Sixth Amendment right to 

counsel of choice is limited, and protects only a 

paying defendant’s fair or reasonable opportunity to 

obtain counsel of the defendant’s choice. 

Wiest was afforded a fair and reasonable opportunity to 

obtain civilian counsel of his own choosing. On February 2, when 

Wiest requested a change of counsel, the military judge granted 

Wiest a 34-day continuance until March 8. He even confirmed that 

the date was firm two days later. Thus, even from the more 

conservative date of February 4, Wiest had 32 days to obtain 
United States v. Wiest, No. 030106/AF 

7

counsel of his choosing. Thirty-two days is reasonable enough 

time to secure counsel. See United States v. Carroll, 510 F.2d 

507, 510 (5th Cir. 1992)(20 days “reasonable, even generous”); 

see also Unger v. Sarafite, 376 U.S. 575, 590 (1964)(five days 

“not a constitutionally inadequate time” to retain counsel). 

Most cases in this area address the situation where a 

“replacement” attorney is sought, not an “additional” attorney as 

in this case. Few federal courts have considered an appellant’s 

right to representation by multiple counsel. Where that issue 

has been addressed, courts have generally found no abuse of 

discretion in the denial of a requested continuance when the 

appellant was otherwise represented by qualified and competent 

counsel. See, e.g., United States v. Riccobene, 709 F.2d 214, 

231 (3d Cir. 1983); United States v. McManaman, 653 F.2d 458, 460 

(10th Cir. 1981). The “burden [of scheduling trials] counsels 

against continuances except for compelling reasons.” Morris v. 

Slappy, 461 U.S. 1, 11 (1983). The court's schedule is a matter 

of necessary discretion, and should generally not be subordinated 

to the schedules of the lawyers that appear before it.3

 Id.

 

3

Lawyers, as officers of the court, should accept cases and 

clients only to the extent that they are able to adequately 

represent them. See generally ABA Standards for Criminal Justice 

Prosecution Function and Defense Function 4-1.3(e)(3d ed. 

1993)("Defense counsel should not carry a workload that, by 

reason of its excessive size, interferes with the rendering of 

quality representation, endangers the client's interest in the 

speedy disposition of charges, or may lead to the breach of 

professional obligations . . . ."); Model Rules of Prof’l Conduct 

R. 1.7(b) (addressing a lawyer's duty to his client when his 

representation may be limited by other considerations, including 

his representation of another client). Part and parcel of these 
United States v. Wiest, No. 030106/AF 

8

A defendant's qualified right to counsel does not extend to 

an inflexible insistence on a specific attorney who cannot comply 

with the court's reasonable schedule. Not only was Wiest 

provided with two competent defense attorneys, but the March 8 

trial date gave him almost five weeks to secure an additional 

civilian attorney if he so chose. This was not an unreasonably 

short period of time. Wiest’s second request for a continuance 

of an additional six weeks to accommodate Mr. Spinner’s schedule 

was simply unreasonable in light of the previous proceedings in 

this case. In addition, Wiest chose to continue with Mr. Spinner 

rather than make timely efforts to secure other civilian counsel 

in order to “preserve the issue for appellate purposes.” Wiest 

was effectively represented in the adversarial process and there 

was no deprivation of the constitutional right to counsel. 

Statutory Right to Counsel of Choice

Article 38(b), UCMJ, 10 U.S.C. § 838(b) (2000), establishes 

the right of an accused to representation in his defense. 

Subparagraph (3) provides that an accused is entitled to detailed 

military counsel or to military counsel of his choice if 

reasonably available. Subparagraph (2) provides that “[t]he 

accused may be represented by civilian counsel if provided by 

him.” The right to counsel under Article 38(b) is, in 

significant respects, broader than that of the Sixth Amendment. 

 

obligations is the duty not to adopt a schedule that hampers the 

administration of justice. See United States v. Hanhardt, 156 F. 

Supp. 2d 988, 999–1000 (N.D. Ill. 2001). 
United States v. Wiest, No. 030106/AF 

9

Article 38; United States v. Gnibus, 21 M.J. 1, 6 (C.M.A. 1985). 

This additional breadth notwithstanding, the statutory right to 

counsel of choice, including civilian counsel of choice, “is not 

absolute and must be balanced against society’s interest in the 

efficient and expeditious administration of justice.” United 

States v. Thomas, 22 M.J. 57, 59 (C.M.A. 1986)(citing Morris.) 

In Thomas this Court found no abuse of discretion in the 

denial of an eight-day continuance where defendant had previously 

been granted a twenty-day continuance and had been warned that a 

second continuance would not be granted. Id. at 59. Although 

civilian counsel failed to appear on the set trial date 

apparently due to a medical emergency in his family, detailed 

defense counsel ably represented defendant. Similarly, in United 

States v. Montoya, 13 M.J. 268, 274 (C.M.A. 1982), this Court 

held that “the accused's unfettered choice to select a civilian 

counsel at any time during the trial . . . cannot operate to 

unreasonably delay the progress of the trial.” 

An accused can always discharge his attorney, but if he 

desires to substitute another attorney for the one 

discharged, his [Article 38(b)] right is qualified in 

"that the request for substitution of counsel cannot 

impede or unreasonably delay the proceedings. 

Id. (quoting United States v. Jordan, 22 C.M.A. 164, 167, 46 

C.M.R. 164, 167 (1973)). 

Generally, a military judge may grant a continuance whenever 

fairness renders it appropriate to do so. Article 40, UCMJ, 10 

U.S.C. § 840 (2000); Rule for Courts-Martial 906(b)(1). After an 

accused has been given a fair or reasonable opportunity to obtain 
United States v. Wiest, No. 030106/AF 

10

counsel of choice, the decision to grant or deny a continuance to 

permit a further opportunity to do so rests within the broad 

discretion of the trial court and, absent clear abuse, will not 

be overturned. Thomas, 22 M.J. at 59. 

In United States v. Miller, 47 M.J. 352 (C.A.A.F. 1997), 

this Court applied eleven factors to be considered in evaluating 

whether a military judge abused his discretion in denying a 

motion for a continuance. Id. at 358 (citing F. Gilligan & F. 

Lederer, Court-Martial Procedure § 18-32.00 at 704 (1991)). The 

AFCCA made factual findings in regard to the applicable Miller

factors and held that the military judge’s denial of the 

continuance was not an abuse of discretion.4 United States v. 

Wiest, ACM 33964 (Sep. 24, 2002). This Court is bound by the 

lower court’s findings of fact unless they are clearly erroneous. 

United States v. Benedict, 55 M.J. 451, 454 (C.A.A.F. 2001). 

The record in this case does not support the conclusion that 

the military judge’s denial of the second requested continuance 

was “clearly untenable and . . . deprive[d] a party of a 

substantial right such as to amount to a denial of justice,” 

which is the abuse of discretion standard for motions for 

continuance. Miller, 47 M.J. at 358 (citation and internal 

quotation marks omitted). 

No Showing of Prejudice

 

4

 The AFCCA weighed the following Miller factors: surprise, 

length of continuance, prejudice, prior continuances, possible 

impact on the verdict, good faith and reasonable diligence of 

moving party, and prior notice. Wiest, ACM 33964 at 7–12. 
United States v. Wiest, No. 030106/AF 

11

Wiest argues that he was prejudiced because trial lawyers 

are not fungible, and he therefore has the right to insist upon 

Mr. Spinner's services. Wiest misunderstands the scope of the 

right to counsel of choice. Although trial lawyers are not for 

the most part fungible, the Sixth Amendment simply does not 

provide an inexorable right to representation by a criminal 

defendant's preferred lawyer. Wheat, 486 U.S. at 159. Moreover, 

despite Mr. Spinner’s experience as a litigator, it is pure 

speculation to conclude that he would have obtained a better 

result for Wiest than the one Wiest received from his detailed 

counsel. 

Where there is no prejudice there should be no reversal. In 

United States v. Kinard, this Court stated: 

Where no harmful consequence resulted from denial of a 

continuance, there is no ground for complaint, and where the 

withdrawing or discharged counsel was adequately replaced and 

the defense properly presented, it is generally held that 

refusal of a postponement was not prejudicial to the accused. 

21 C.M.A. 300, 306, 45 C.M.R. 74, 82 (citations and internal 

quotation marks omitted). Likewise, in United States v. 

Wellington, 58 M.J. 420, 425 (C.A.A.F. 2003), we stated: “[W]e 

need not decide if the military judge abused his discretion [by 

denying a continuance request], because Appellant has not 

established that he was prejudiced.” Here, no harmful 

consequence resulted: Wiest was not forced to trial without 

adequately prepared, competent counsel, much less without any 

counsel at all. Wiest has not offered any other facts that would 
United States v. Wiest, No. 030106/AF 

12

support the conclusion that he was denied a fair trial. As Wiest 

was not prejudiced, any error must be deemed harmless. 

Conclusion

There was no deprivation of either Wiest’s Sixth Amendment 

or Article 38(b) qualified right to counsel of choice. Even if 

we were to assume that the military judge’s comments to the 

initial military counsel were inappropriate, that issue was 

adequately remedied when Wiest secured two new military 

attorneys. He accepted these attorneys without reservation and 

at no point has he complained of their competence or 

representation. In addition, Wiest was afforded a fair and 

reasonable opportunity to procure his choice of civilian counsel 

and was clearly on notice that he should find counsel who was 

available on the selected date. Instead, he knowingly selected 

unavailable civilian counsel. 

The language utilized by the military judge when he 

announced the rescheduled trial date5

 does not reflect an 

inflexible attitude towards further continuances – rather it 

reflects a clear statement that further continuances would not be 

allowed except for strong and compelling reasons. I am reluctant 

to find error where the military judge both allowed an 

 

5

 “[T]he trial is going to proceed on the 8th of March unless 

somebody convinces me otherwise by very strong and compelling 

evidence that it has to be delayed.” 
United States v. Wiest, No. 030106/AF 

13

objectively reasonable time for Wiest to secure additional 

counsel and where he acted to ensure that Wiest would be 

adequately represented by prepared and available counsel. Given 

the broad latitude of the court to control its scheduling, I find 

no clear abuse of the military judge's discretion and no 

deprivation of Wiest’s constitutional or statutory rights in the 

denial of a continuance. 

Finally, it is a rare hearing indeed where a judge’s 

comments cannot be construed by one party or another as being 

“negative.” Under the majority opinion, I fear that civilian 

counsel will be able to “run” the court dockets based upon their 

scheduling concerns rather than traditional concerns for the 

sound administration of justice. 

I would therefore affirm the decision of the AFCCA.