Thursday, April 03, 2008

Army DAD files cert petition in Rhoades

Army DAD has filed a cert petition seeking review of United States v. Rhoades, 65 M.J. 393 (C.A.A.F. 2008). Rhoades v. United States, No. 07-1248. Here's the QP:

Whether the Court of Appeals for the Armed Forces properly held that a military judge, in granting a government motion to disqualify petitioner's civilian counsel on the basis of an alleged violation of the 18 U.S.C. § 207(a)(2), did not deny petitioner his Sixth Amendment right to civilian counsel of his choice.


Anonymous said...

This seems like a guaranteed grant to me. I hope Army DAD is ready for the big show...and I'm not talking about the WWE wrestler who recently fought Floyd Merriweather...but Army DAD should be ready for him, too...just in case.

Cloudesley Shovell said...

Out of curiosity, I looked up 18 USC 207. It and the associated statutes are not a model of clear drafting. I wondered whether a military officer is an "officer or employee of the executive branch of the United States (including any independent agency of the United States)."

There is no doubt that a military officer is an officer of the United States, but does a military officer fall within the much narrower language in 18 USC 207, particularly when Congress could have made thing clear by simply including "active duty military officer" in the statute.

18 USC 202, definitions, doesn't help much. 202(a), appears to exclude part-time military reserve officers from the definition of "officer or employee of the executive branch", which would seem to mean that regular active duty officers are included in the definition only by negative implication.

CAAF dodged that whole issue by just assuming that the attorney in question was covered. So much for the rule of lenity and the strict construction of criminal statutes. Why should this case be any different?

In any case, given that this was not an actual criminal prosecution, and given that the standard of review was abuse of discretion, and given that there have been several other cases disqualifying former gov't attorneys from representing clients citing 18 USC 207, and especially given the facts, the military judge did not abuse his discretion, ACCA was correct, and CAAF was correct.

Phil Cave said...

Cert. denied.

DB Cooper said...

The best candidate for certiorari is Denedo v. US. That is the one case where CAAF has arguably thumbed their nose at Supreme Court precedent, to wit: Clinton v. Goldsmith.

John O'Connor said...

D.B. Cooper arises from the wildernmess of rural Washington state with bthe correct answer. Yes on Denedo, no on Rhoades.