IN THE CASE OF


                             UNITED STATES, Appellee

                                            v.

                             Billy E. CAIN, Sergeant
                               U.S. Army, Appellant

                                      No. 03-0212
                             Crim. App. No. 9800797

       United States Court of Appeals for the Armed Forces

                             Argued October 22, 2003

                             Decided March 19, 2004

     EFFRON, J., delivered the opinion of the Court, in which
GIERKE, BAKER, and ERDMANN, JJ., joined. CRAWFORD, C.J., filed
a dissenting opinion.



                                         Counsel

For Appellant: Captain Rob W. MacDonald (argued); Colonel
    Robert Teetsel, Lieutenant Colonel Mark Tellitocci, and
    Major Allyson G. Lambert (on brief); Lieutenant Colonel E.
    Allen Chandler, Jr., Major Imogene M. Jamison, and Captain
    Mary E. Card.

For Appellee: Captain Edward E. Wiggers (argued); Colonel
    Lauren B. Leeker, Lieutenant Colonel Margaret B. Baines, and
    Major Natalie A. Kolb (on brief).



Military Judge:        J. J. Smith




        THIS   OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Cain, No. 03-0212/AR


    Judge EFFRON delivered the opinion of the Court.

    At a general court-martial composed of a military judge

sitting alone, Appellant was convicted, pursuant to his pleas,

of indecent assault (two specifications), in violation of

Article 134, Uniform Code of Military Justice [hereinafter

UCMJ], 10 U.S.C. § 934 (2000).   He was sentenced to a

dishonorable discharge, confinement for five years, forfeiture

of all pay and allowances, and reduction to Private E-1.

Pursuant to a pretrial agreement, the convening authority

approved a sentence providing for a dishonorable discharge, 24

months’ confinement, forfeiture of all pay and allowances, and

reduction to Private E-1.   The Court of Criminal Appeals

affirmed.   United States v. Cain, 

(A. Ct. Crim. App.

2002).

    On Appellant’s petition, we granted review of the following

issues:

     I.     WHETHER APPELLANT WAS DENIED THE FUNDAMENTAL
            RIGHT TO CONFLICT FREE AND EFFECTIVE
            ASSISTANCE OF COUNSEL WHEN THE LEAD DEFENSE
            COUNSEL AND APPELLANT ENGAGED IN A SECRETIVE
            HOMOSEXUAL RELATIONSHIP.

     II.    WHETHER THE ARMY COURT OF CRIMINAL APPEALS
            ERRED WHEN IT DETERMINED THAT APPELLANT’S
            SEXUAL RELATIONSHIP WITH HIS LEAD DEFENSE
            COUNSEL DID NOT CREATE A CONFLICT OF INTEREST
            DENYING APPELLANT EFFECTIVE ASSISTANCE OF
            COUNSEL.




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United States v. Cain, No. 03-0212/AR


     For the reasons set forth below, we conclude that Appellant

did not receive effective assistance of counsel and reverse.

                           I. BACKGROUND

                   A. COURT-MARTIAL PROCEEDINGS

1.   Assignment of defense counsel to represent Appellant

     In October 1997, Appellant was charged with three

specifications of forcible sodomy under Article 125, UCMJ, 10

U.S.C. § 925 (2000).   The charges alleged that the offenses

occurred between 1993 and 1995.

     At the time of the first charged offense, Appellant was

assigned to the Reserve Officer Training Corps (ROTC) Department

at Norwich University in Vermont.     The alleged victim was a male

non-ROTC student at Norwich University.    At the time of the

second and third charged offenses, Appellant was serving at ROTC

1st Brigade Headquarters at Fort Devens, Massachusetts.     The

alleged victims were male civilians unconnected with Norwich

University or the Army.

     The military justice chain of command over Appellant

included his brigade commander at Fort Devens, the summary

court-martial convening authority; the Commander of the 1st

Region (ROTC) at Fort Bragg, North Carolina, the special court-

martial convening authority; and the Commander of the XVIII

Airborne Corps at Fort Bragg, the general court-martial

convening authority.


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United States v. Cain, No. 03-0212/AR


    Civilian authorities began an investigation into similar

charges in 1995.   The brigade commander at Fort Devens, who

informed his superiors at Fort Bragg of these matters, decided

to let civilian authorities take the lead.    The civilian

authorities dismissed the charges in the spring of 1996, and the

Army permitted Appellant to reenlist shortly thereafter.

    Subsequent to Appellant’s reenlistment, a new brigade

commander was assigned to Fort Devens.   The ensuing year was

marked by growing tension between Appellant and the command,

exacerbated by Appellant’s allegations that the brigade

commander and his executive officer were involved in sexual

improprieties.

    After Appellant submitted his allegations against the

commander and executive officer, military authorities decided to

reopen the investigation into the charges against Appellant that

had been dismissed by civilian authorities.   In the meantime,

the brigade commander was relieved, but the renewed

investigation into Appellant’s activities continued apace.

Charges were preferred against Appellant on October 15, 1997,

and forwarded to the special court-martial convening authority

at Fort Bragg.

    The special court-martial convening authority appointed an

investigating officer under Article 32, UCMJ, 10 U.S.C. § 832

(2000), to look into the allegations.    The Article 32 hearing


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United States v. Cain, No. 03-0212/AR


was conducted at Fort Devens.   Because Fort Devens did not have

a trial defense office, the responsibility for detailing counsel

to represent Appellant at the Article 32 hearing was exercised

by Major S, the senior defense counsel at Fort Bragg.   Major S

assigned himself to represent Appellant during the Article 32

proceedings.   The Article 32 proceedings and subsequent review

by the chain of command resulted in referral of the charges on

December 18, 1997, for trial by a general court-martial.

     In January 1998, Appellant was assigned temporarily to Fort

Bragg for the duration of the trial.    During pretrial sessions

in January, Appellant agreed to be represented at trial by Major

S, adding that he was pursuing the possibility of representation

by civilian counsel.    He expressed concern with the large

caseload facing defense counsel at Fort Bragg and the impact

that it might have on his representation.   He requested

assignment of an additional counsel to assist Major S, noting

that the prosecution already had two attorneys assigned to the

case.   In February, Major S detailed Captain L as assistant

defense counsel and informed the military judge that Appellant

would not be represented by civilian defense counsel.   Appellant

confirmed these arrangements on the record.

2.   Pretrial motions

     In February and March, the defense filed two motions to

dismiss the case on procedural grounds.   The first challenged


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United States v. Cain, No. 03-0212/AR


the delay in bringing the case to trial.   See U.S. Const. amend.

V (due process) and Rule for Courts-Martial 907 [hereinafter

R.C.M.] (speedy trial).   The military judge denied the motion.

The defense filed a petition for extraordinary relief in the

United States Army Court of Criminal Appeals on the same

grounds, which was denied without prejudice to consideration of

the matter during further proceedings.

     The second motion alleged selective prosecution in

violation of Appellant’s due process and equal protection

rights.   See U.S. Const. amend. V.   The motion noted that

civilian authorities had dismissed the underlying charges

against Appellant; that military officials knew of the charges

when Appellant was permitted to reenlist in April 1996; that the

charges were resurrected because the command believed that

Appellant was homosexual; and that the charges were filed in

retaliation for Appellant’s “whistleblower” complaint against

the command.   The military judge denied the motion.

3.   The plea agreement

     In mid-May, the defense entered into negotiations with the

Government, which resulted in a pretrial agreement.    Appellant

agreed to plead guilty to two specifications of indecent assault

in lieu of two of the forcible sodomy specifications.   The

convening authority agreed to direct the trial counsel to

dismiss the remaining forcible sodomy specification and to


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United States v. Cain, No. 03-0212/AR


disapprove any sentence greater than a dishonorable discharge,

24 months’ confinement, forfeiture of all pay and allowances,

and reduction to Private E-1.

     At a court-martial session on June 2, Appellant entered

pleas consistent with the pretrial agreement.     The military

judge conducted a detailed inquiry into the providence of

Appellant’s pleas.   After concluding that the pleas were

provident, the military judge entered findings consistent with

those pleas, and sentenced him to a dishonorable discharge,

confinement for five years, forfeiture of all pay and

allowances, and reduction to Private E-1.



                     B. POST-TRIAL DEVELOPMENTS

1.   Defense counsel's suicide

     Two weeks after trial, a senior officer in the Army Trial

Defense Service (TDS) visited Fort Bragg to investigate a

professional conduct complaint that had been lodged against

Major S.   The complaint involved a matter distinct from his

representation of Appellant.    Major S, who was on leave in

Chicago with his wife and son in preparation for an expected

reassignment to Germany, returned to Fort Bragg alone to address

the allegations.   His reassignment had been tentatively placed

on hold pending the results of the investigation.




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United States v. Cain, No. 03-0212/AR


    Prior to meeting with Major S, the senior TDS officer

visited the Staff Judge Advocate (SJA) of the XVIII Airborne

Corps.    The SJA showed the senior TDS officer a letter that had

been sent to the convening authority by Appellant's parents.

The letter, dated four days after the conclusion of trial,

alleged that Major S had pressured the Appellant for sexual

favors.

    During a June 18 meeting with the senior TDS officer, Major

S asked if there were potential delays that might affect his

reassignment.   In response, the senior TDS officer informed

Major S of the allegations made by Appellant’s parents.     Major

S, who was upset, denied the allegations.   He expressed concern

that a long delay could cause the cancellation of his

reassignment to Germany, but he appeared to be resigned to the

fact that the matter could not be resolved on the spot by the

senior TDS officer.

    Early the next morning, Major S took his own life.    In a

package of materials prepared for his personal attorney, Major S

left a tape recording made shortly before his death.    Although

the recording did not provide detailed information about his

relationship with Appellant or his conduct as lead defense

counsel, it contained the following statements:

            I fully deny that I ever forcibly had sex
            with [Appellant] . . . .



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United States v. Cain, No. 03-0212/AR


             . . . .

             My suicide is not an admission of guilt . . . .

             . . . .

             I want you to know that my death is not an
             admission of any of the charges against me . . .

             . . . .

             Concerning [Appellant’s] parents'
             allegation, that I forced their son to have
             sex with me, the allegation is
             preposterous . . . .


2.   Assignment of a new defense counsel and the request for a
post-trial inquiry

        In July, the assistant defense counsel, Captain L,

determined that he should disqualify himself from further

representation of Appellant so that counsel not connected with

Fort Bragg could represent Appellant during post-trial

proceedings.    On July 23, Captain H was detailed as Appellant’s

new defense counsel.    On July 29, Captain L, although no longer

representing the Appellant, signed the record of trial, which

was authenticated on the same day by the military judge.

    On July 30, the acting SJA prepared the post-trial

recommendation to the convening authority required by R.C.M.

1106.    The recommendation proposed approval of the adjudged

sentence as modified by the pretrial agreement.    The

recommendation did not discuss the allegations made by

Appellant’s parents, the suicide of Major S, or any other


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United States v. Cain, No. 03-0212/AR


intervening events.   Pursuant to R.C.M. 1106(f), the

recommendation was served on Appellant and Captain H.    The

defense then requested, and was granted, an extension of time to

file post-trial matters.

    On September 11, 1998, Captain H submitted a discovery

request for information concerning the representation of

Appellant by Major S and his subsequent suicide.   In the

alternative, defense counsel requested an in camera inspection

of evidence pertaining to that information by the military

judge.   The request was denied on September 16 on the grounds

that Appellant was not entitled to post-trial discovery and that

the military judge’s authority to act on the case ended upon

authentication of the record of trial.

    Defense counsel filed another request on September 28,

asking the convening authority to refer the matter to the

military judge for a post-trial session under Article 39(a),

UCMJ, 10 U.S.C. § 839(a)(2000).    See R.C.M. 1102(d).   The

defense asserted that an inquiry by the military judge on the

record was necessary to determine whether Appellant had been

denied his right to effective assistance of counsel in light of

alleged improper activities by Major S.   In an analysis prepared

for the convening authority, the SJA noted that the defense team

had secured a favorable outcome for Appellant, that the asserted

improper relationship had not created an actual conflict of


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United States v. Cain, No. 03-0212/AR


interest, and that a post-trial hearing would not serve any

useful purpose in the absence of specific allegations by the

defense of ineffective representation.   In accordance with his

SJA’s recommendation, the convening authority rejected the

request for further proceedings before the military judge on

November 2.

    On December 8, the defense submitted a post-trial memorandum

under R.C.M. 1105 and 1106(f) for consideration by the convening

authority.    The memorandum emphasized the defense's continuing

objection to the Government's refusal to release information

regarding the events surrounding Major S's suicide.   In

addition, the defense contended that Appellant had not received

effective assistance of counsel and that the deficiencies in

representation rendered his guilty pleas improvident.   The

defense asked the convening authority to order a new trial.    In

addition, the defense proposed three alternative remedies: (1)

issuance of an administrative discharge of Appellant in lieu of

approval of the court-martial proceedings; (2) referral of the

matter for review by the military judge in a post-trial session

under Article 39(a); or (3) clemency through a reduction in

sentence to time served, emphasizing a post-trial diagnosis of

Appellant as HIV-positive.

    The SJA advised the convening authority that the allegations

of legal error were without merit and that the case did not


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United States v. Cain, No. 03-0212/AR


warrant either corrective action or clemency.    On December 11,

the convening authority adopted the SJA’s recommendations and

approved the sentence as modified by the pretrial agreement.


3.      The order for an evidentiary hearing

     Over the next two years, Appellant continued to challenge

the representation he had received at trial.    On October 26,

2000, the Army Court of Criminal Appeals ordered an evidentiary

hearing pursuant to United States v. DuBay, 

, 

(1967).    The DuBay hearing was held on May 14, 2001.

The following section summarizes information from the DuBay

proceedings and from the record of trial concerning the

relationship between Major S and Appellant.


             C. THE PERSONAL AND PROFESSIONAL RELATIONSHIP
                     BETWEEN MAJOR S AND APPELLANT

1.      The sexual relationship

     Before he assigned himself to represent Appellant, Major S

was aware of Appellant’s homosexuality.    According to Appellant,

Major S had assisted him on another matter six years earlier.

The assistant defense counsel at trial, Captain L, testified at

the DuBay hearing that it was not unusual for Major S to involve

himself in a case of this type because Major S was very

interested in cases involving sexual misconduct or sex of any

kind.



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United States v. Cain, No. 03-0212/AR


     Major S initiated a sexual relationship with Appellant at

the very outset of their attorney-client relationship in the

present case.   In the fall of 1998, Appellant traveled to Fort

Bragg for their initial meeting.     On the evening that Appellant

arrived at Fort Bragg, Major S made sexual advances, which

Appellant regarded as unwelcome and inappropriate.    In December,

when Major S came to Fort Devens for Appellant’s Article 32

hearing, he made further sexual advances, which led to acts of

oral and anal sodomy between Major S and Appellant.

     Subsequent to referral of charges for trial by general

court-martial, Appellant learned that he was being transferred

temporarily to Fort Bragg in January 1998 at the behest of Major

S.   While at Fort Bragg, Appellant worked as an enlisted clerk-

typist at the TDS office under the supervision of Major S.     He

worked on the cases of other service members, as well as on his

own, and also provided assistance to the ROTC program office.

     In addition to his official duties, Appellant performed

errands for Major S and frequently drove him to and from his

home.   On more than one occasion, they engaged in sexual

activity during these drives.   Another sexual encounter occurred

in the TDS office.   Although the military judge presiding at the

DuBay hearing expressed skepticism as to some of Appellant’s

testimony, he nonetheless concluded that Major S engaged in six




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United States v. Cain, No. 03-0212/AR


or seven acts of sodomy with Appellant during the period in

which he served as counsel in the present case.

     Major S did not manifest his homosexual activity to his

colleagues.   At the DuBay hearing, the judge advocate who served

as trial counsel at Appellant’s court-martial characterized

Major S as “one of the last people I would think” was a

homosexual.   The assistant trial counsel at Appellant’s court-

martial described Major S as “a man’s man” who “during the

course of plea negotiations, . . . described . . .   homosexual

behavior in a less than favorable light . . . .”   The assistant

trial counsel added that “if you were to have asked that

question at any point during the course of this, or any other

case, . . .   I probably would’ve laughed you out of the room.”

2.   The professional relationship

      The DuBay record and the record of trial reflect various

statements made by Appellant prior to adjudication of findings

and sentence in which he expressed satisfaction with Major S as

his attorney, often speaking in highly complimentary terms.

When he approached Captain L in January to request his

assistance with the case, Appellant said that Major S was doing

a “great job.”   Later, Captain L recalled that Appellant had

stated “that he was very grateful for the work [Major S] and I

were doing and that he was very happy with us.”    When asked by




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United States v. Cain, No. 03-0212/AR


the military judge during the providence inquiry whether he was

satisfied with his attorneys, he responded in the affirmative.

     The information developed in the DuBay proceeding, however,

indicates that Appellant had significant misgivings about Major

S throughout the court-martial process.   Early in December 1997,

Appellant contacted Mr. C, who worked on the staff of an

organization providing assistance to service members affected by

military policies related to homosexuality.   Because the

organization did not directly represent persons before courts-

martial, Mr. C referred Appellant to a civilian lawyer, Attorney

W.   Mr. C also contacted Attorney W directly and advised her

that Appellant appeared to be “distraught about the nature of

his relationship” with Major S.    Mr. C also told Attorney W that

when he suggested to Appellant that he report his concerns about

Major S to the appropriate authorities, Appellant “expressed

great fear of potential consequences should he expose Major

[S’s] misconduct.”

     Appellant contacted Attorney W per Mr. C’s recommendation.

Attorney W did not discuss the underlying court-martial charges

with Appellant, confining the conversation to “the problem in

his relationship with defense counsel, Major [S].”   According to

Attorney W, Appellant “was extremely tentative in tone, his

voice quavered, and he rambled.    He described himself as

frightened and depressed.”


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United States v. Cain, No. 03-0212/AR


    Appellant told Attorney W that Major S had a reputation as

“an extremely talented defense attorney.”     Appellant “believed

that no one but Major [S] could help him be exonerated by the

court.”   Appellant added that Major S had told him that he

“would receive a very long prison sentence if he, Major [S],

were not his defense counsel.”

    According to Attorney W, Appellant was torn by conflicting

emotions.   On the one hand, the sexual relationship initiated by

Major S, who was married and had a son, “caused him a great deal

of distress, anxiety, and fear.”      On the other hand, “he was

fearful of discontinuing the sexual relationship or reporting it

because of his entrenched belief that he would spend a lengthy

time in prison without Major [S] as his defense attorney.”

    Attorney W informed Appellant that Major S’s actions were

“unethical and illegal” and that the sexual contact “was

potentially criminal under Articles 125 or 134 . . . , whether

related to sodomy or indecent acts.”     She expressed concern

“that this improper relationship could impair [Major S’s]

objectivity with regard to his representation” of Appellant.

    Appellant “continued to plead that he believed that he would

be unable to ‘survive’ this court without the assistance of

Major [S] and that he would simply find himself with inferior

counsel were he to report Major [S].”     Attorney W attempted to

convince Appellant that he should seek new counsel, even if he


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United States v. Cain, No. 03-0212/AR


did not report the misconduct of Major S to the authorities, but

Appellant declined this advice.    Appellant “reiterat[ed] his

complete trust and dependence on [Major S’s] legal skills, [and]

he informed [Attorney W] that he did not believe he could take

the risk of abandoning his [defense] counsel.”    According to

Attorney W, “[i]t was apparent to me from my own experience as

counsel and my conversation with him that he was incapable of

rejecting [Major S’s] professional services or his inappropriate

advances because of the deep need of [Appellant] to believe his

defense counsel could ‘save’ him.”

    Subsequent to his contact with Attorney W in December,

Appellant expressed concern about his representation during the

initial pretrial sessions of his court-martial.   At the first

pretrial session on January 15 -- well after Major S initiated

sexual activity with Appellant -- the military judge provided

Appellant with the standard advice as to his counsel rights, and

inquired as to who would represent him.   Appellant responded:

          I would like to retain Major [S]; but, due
          to the serious[ness] of the charges, I also
          -- I am new to the area, like I said. I
          just -- I just got here basically -- here
          this morning; and, if I had the means --
          that I’d also like to pursue a civilian
          counsel and have that right to look for that
          civilian counsel. Like I said, I am not
          from here. I am not familiar with the area
          or the legal people who are out there. So, I
          would like to retain, at the time being,
          Major [S], but I want the election to seek
          out legal, civilian counsel.


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United States v. Cain, No. 03-0212/AR


He then focused on the fact that the prosecution had assigned

two judge advocates to the case:

          If -- if -- if the government also has two -
          - two prosecutors, I would ask that -- I’ve
          seen the case load, sir. I have some
          concerns that the defense counsel here on --
          on Bragg -- being short the assigned
          attorneys that they have present -- I would
          -- I do not feel that I would get the full
          benefit of a -- of a government defense,
          with this case load. This is a [sic]
          serious charges; and if this is being the
          case, Major [S] -- I know he is overloaded.
          I -- like I said, I may be from
          Massachusetts, but I’ve seen the case load
          that this office has. I don’t think that,
          at this time, that with Major [S’s] case
          load or the trial defense, with the shortage
          of attorneys they do have present to help
          with my defense, that I would get that full
          benefit of the government providing that
          defense.

The military judge responded:

          Well, I can assure you that you would get a
          first class representation from the defense
          office here at Fort Bragg. I’ve been a
          military judge here now since last July and
          I’ve seen most of the attorneys who work for
          the trial defense service here at Fort Bragg
          in trial many times. They’re very good at
          what they do and they are very
          conscientious; and, there is no question in
          my mind that you would get a first class
          representation. However, as I read you your
          rights, you’re free to go search for a
          civilian attorney that you’ll pay for
          yourself . . . .


The military judge then directed Major S to assist Appellant in

finding a civilian counsel.



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United States v. Cain, No. 03-0212/AR


    Shortly thereafter, Major S met with a civilian lawyer,

Attorney T, to discuss an unrelated case.    Major S asked

Attorney T if he would consider talking to Appellant.    According

to Attorney T, Major S stated that the case was “enormously

complicated,” adding that he needed “extra help,” particularly

in terms of investigating events in New England, as well as with

negotiations with the convening authority aimed at having the

charges dropped based upon unlawful command influence.

     Attorney T met with Appellant on the evening of January 21

to discuss representation of Appellant at his court-martial.

After obtaining assurances from Attorney T that any discussions

preliminary to forming such an attorney-client relationship

would be confidential, Appellant told the attorney that Major S

had initiated a homosexual relationship with him shortly after

Major S became his defense counsel.   Attorney T told Appellant

that the relationship was unethical, and that he would insist

that the relationship cease if he became Appellant’s counsel.

Appellant responded that Major S was working hard and doing well

with the case, and that although Major S was not his “type,” the

homosexual relationship had not become so burdensome that

Appellant felt the need to terminate it.

    Attorney T raised the possibility of disclosing the details

of the illegal relationship to military officials with a view

towards obtaining a dismissal of the case.   Appellant responded


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United States v. Cain, No. 03-0212/AR


that he did not want to anger Major S or affect his career, and

emphasized the confidential nature of the information.

    During further discussions the next day, Attorney T

reiterated his view that the actions of Major S were unethical.

He added that he could take the case only if Major S was removed

from the defense team.   According to the attorney, Appellant was

anxious to ensure that he not tell anyone, including Major S,

that Appellant had divulged the homosexual nature of the

relationship.    Attorney T maintained the confidence of their

preliminary discussions, and did not represent Appellant at his

court-martial.

    As the case moved towards trial on the merits in the spring

of 1998, Appellant told a fellow soldier that “he was upset over

the way his case was being handled” and revealed that Major S

had required sexual favors of him.    When asked why he did not

get another attorney, he replied that “he was between a rock and

hard place . . .   [He] was not happy with [Major S], but he had

gone so far with [Major S] that he could not turn back.”      His

former roommate, in whom he also confided, described him as

“distraught” and fearful of retaliation or additional charges if

he revealed that he had been pressured into a sexual

relationship.    Appellant’s mother gave a similar account.

     Appellant consistently maintained to his defense team that

he would not plead guilty to forcible sodomy.   He asserted that


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United States v. Cain, No. 03-0212/AR


he had not engaged in any non-consensual sexual activity with

the alleged victims.   Major S believed that the allegations of

forcible sodomy were false and also was inclined to view the

case as a matter of consensual sodomy.    His investigation of the

case led him to conclude that there were substantial grounds for

contesting the charges, taking the position that the evidence

was stale, the victims had credibility problems, and there was

evidence of improper bias by the command in terms of retaliation

against Appellant for whistleblower activities.   Until shortly

before the case was resolved, he appeared intent on contesting

all charges.    As noted in Section 

, the defense

twice sought dismissal of the charges on procedural grounds,

which were rejected by the military judge.

    In May of 1998, Captain L told Major S and Appellant that he

viewed the prosecution as having a strong case, and he

recommended that the defense initiate discussions with a view

towards obtaining a pretrial agreement.   Major S by then had

alienated the prosecution to the point that he was not in a

position to conduct such negotiations, so he delegated the task

to Captain L.   After a week of negotiations, the parties reached

an agreement, and Appellant entered his guilty pleas to two

specifications of indecent assault.

    The military judge presiding over the DuBay proceedings

found that there had been a sexual relationship between Major S


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United States v. Cain, No. 03-0212/AR


and Appellant throughout the period of representation.    The

military judge concluded that the relationship was not coerced,

that it played no role in Appellant’s decision to enter guilty

pleas, and that it did not create a conflict of interest.   The

military judge also concluded that the defense team provided

Appellant with effective counsel in terms of filing motions that

challenged the government’s case, advising the Appellant about

the state of the evidence, and negotiating a favorable pretrial

agreement.   The Court of Criminal Appeals, which agreed with

these conclusions, also concluded that Appellant waived any

conflict of interest when he declined to follow the

recommendation of two separate civilian attorneys to sever his

relationship with Major S.



                             II. DISCUSSION

     A. POTENTIAL CRIMINAL AND ADMINISTRATIVE ACTIONS RESULTING
      FROM THE CONDUCT BETWEEN THE ATTORNEY AND HIS CLIENT

     Major S, the attorney, engaged in a course of conduct with

Appellant, his client, which exposed both of them to the

possibility of prosecution, conviction, and substantial

confinement for the military crimes of fraternization and

sodomy.   An officer who violates the custom of the armed forces

against fraternization with an enlisted person may receive a

sentence that includes confinement for two years, a punitive



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United States v. Cain, No. 03-0212/AR


separation, and forfeiture of all pay and allowances.            See

Article 134; Manual for Courts-Martial, United States (2002 ed.)

[hereinafter MCM], Part IV, para. 83.(e).          Officers and enlisted

members who engage in sodomy, even if not forcible, may receive

a sentence for each offense that includes five years

confinement, a punitive separation, and forfeiture of all pay

and allowances.     Article 125; MCM, Part IV, para. 51.e.1

     Fraternization and sodomy are not minor or obscure matters.

The policies of the armed forces on both fraternization and

homosexuality have been the subject of significant litigation

and public controversy in recent years.          See, e.g., David S.

Jonas, Fraternization: Time For A Rational Department Of Defense

Standard, 135 Mil. L. Rev. 37 (1992); Jeffrey S. Davis, Military

Policy toward Homosexuals: Scientific, Historical, and Legal

Perspectives, 131 Mil. L. Rev. 55 (1991).          Less than five years

before Appellant's trial -- while both Major S and Appellant

were members of the Army -- the executive and legislative

branches of government engaged in a highly publicized review of

the policies pertaining to homosexuality in the armed forces.

See National Defense Authorization Act for Fiscal Year 1994,



1
  A constitutional challenge to sodomy as a criminal offense in the military
is currently before this Court in another case, United States v. Marcum, 

(C.A.A.F. 2003)(pet. granted), and we express no opinion at this
time as to whether such a challenge would or should prevail. Our discussion
of the potential penalties for sodomy in the current case reflects the
provisions of the MCM in effect at the time of trial.


                                     23
United States v. Cain, No. 03-0212/AR


Pub. L. No. 103-160, § 571(a)(1), 107 Stat. 1670 (codified at 10

U.S.C. § 654); H.R. Rep. No. 103-200, at 286 (1993); S. Rep. No.

103-112, at 263 (1993).   This debate culminated in the passage

of legislation, signed into law by the President, which declares

that “[t]he presence in the armed forces of persons who

demonstrate a propensity or intent to engage in homosexual acts

would create an unacceptable risk to the high standards of

morale, good order and discipline, and unit cohesion that are

the essence of military capability.”    10 U.S.C. § 654(a)(15).

The legislation mandates discharge of any service member who has

engaged in a homosexual act, subject to narrowly drawn

exceptions.   

  As a result, even if not

prosecuted for sodomy in a court-martial, the conduct initiated

by Major S exposed him and Appellant to administrative

proceedings that could have resulted in involuntary termination

for homosexuality.   Moreover, Major S would have faced the

possibility of a discharge for soliciting and committing

homosexual acts “with a subordinate in circumstances that

violate customary military superior-subordinate relationship.”

Dep’t of the Army Regulation (AR) 600-8-24, Officer Transfers

and Discharges (Feb. 3, 2003) para. 4-22h(3)(current version

substantively identical to the version in effect at trial).




                                 24
United States v. Cain, No. 03-0212/AR


                     B. ETHICAL CONSIDERATIONS

     In addition to potential criminal or administrative action

for misconduct as an Army officer, Major S engaged in conduct

that subjected him to the possibility of additional disciplinary

action for violation of the ethical rules applicable to

attorneys in the Army.   Rule 1.7(b) of the Army Rules of

Professional Conduct for Lawyers prohibits representational

conflicts of interest, specifying that “[a] lawyer shall not

represent a client if the representation of that client may be

materially limited . . . by the lawyer’s own interests . . . ."

AR 27-26, Army Rules of Professional Conduct, Appendix B (May 1,

1992).   Rule 1.2(d) states that “[a] lawyer shall not counsel a

client to engage, or assist a client, in conduct that the lawyer

knows is criminal or fraudulent.”    

sexual activity between attorneys and

clients, civilian jurisdictions have taken a variety of

positions on whether there should be a complete prohibition

during an ongoing attorney-client relationship, or whether

sexual activity should be prohibited only in specified

circumstances.   See, e.g., Abed Awad, Attorney-Client Sexual

Relations, 22 J. Legal Prof. 131 (1998).   The Army has endorsed

the views of the American Bar Association Standing Committee on

Ethics and Professional Responsibility, as expressed in Formal

Opinion 92-364 (1992) [hereinafter ABA Formal Op. 92-364].    See


                                25
United States v. Cain, No. 03-0212/AR


Army Office of the Judge Advocate General Standards of Conduct

Office, Professional Responsibility Notes, 1993 Army Law. 48

(August 1993)(quoting ABA Formal Op. 92-364 in full).       The ABA

opinion observed that sexual relations between an attorney and

client --

             may involve unfair exploitation of the
             lawyer’s fiduciary position and presents a
             significant danger that the lawyer’s ability
             to represent the client adequately may be
             impaired . . . . The roles of lover and
             lawyer are potentially conflicting ones as
             the emotional involvement that is fostered
             by a sexual relationship has the potential
             to undercut the objective detachment that is
             often demanded for adequate representation.

ABA opinion also observed that --

             the client may not feel free to rebuff
             unwanted sexual advances because of fear
             that such a rejection will either reduce the
             lawyer’s ardor for the client’s cause or,
             worse yet, require finding a new lawyer,
             causing the client to lose the time and
             money that has already been invested in the
             present representation and possibly damaging
             the client’s legal position.

Colorado v. Good, 

, 104 (Colo. 1995)

(quoting ABA Formal Op. 92-364); see also Restatement (Third) of

Law Governing Lawyers, § 16, Comment e (2000)("A lawyer may not

. . . enter a sexual relationship with a client when that would

undermine the client’s case, abuse the client’s dependence on the

lawyer, or create risk to the lawyer’s independent judgment . . .

.")


                                  26
United States v. Cain, No. 03-0212/AR



    C. THE IMPACT OF CRIMINAL CONDUCT AND ETHICAL VIOLATIONS
                    ON THE CONSTITUTIONAL RIGHT
                TO EFFECTIVE ASSISTANCE OF COUNSEL


    Members of the armed forces facing criminal charges, like

their civilian counterparts, have a constitutional right to

effective assistance of counsel.       U.S. Const. amend VI.   Our

Court reviews claims of ineffective assistance of counsel de

novo.    United States v. Key, 

, 249 (C.A.A.F.

2002)(applying the two-prong test established by the Supreme

Court in Strickland v. Washington, 

, 687 (1984):

“First, the defendant must show that counsel’s performance was

deficient. . . .    Second, the defendant must show that the

deficient performance prejudiced the defense.”).

        An attorney's violation of the canons of legal ethics does

not necessarily render the attorney's assistance ineffective.

Nix v. Whiteside, 

, 165 (1986).       In some

circumstances, the "high probability of prejudice" and the

"difficulty of proving that prejudice" require the application

of a rule that the conduct is inherently prejudicial.       See

Mickens v. Taylor, 

, 175-76 (2002)(citing Cuyler v.

Sullivan, 

, 348-49 (1980); Holloway v. Arkansas, 

, 490-91 (1978)(cases involving multiple concurrent

representation)).    The Court emphasized in Mickens, however,

that “[n]ot all attorney conflicts present comparable


                                  27
United States v. Cain, No. 03-0212/AR


difficulties,” and that most cases will require specifically

tailored analyses in which the appellant must demonstrate both

the deficiency and prejudice under the standards set by

.

     When an attorney has engaged in criminal misconduct similar

to the conduct at issue in Appellant’s trial, the federal courts

have taken different approaches on the question of whether there

is inherent prejudice or whether prejudice must be specifically

demonstrated.    Compare United States v. Cancilla, 

(2d. Cir. 1984)(not requiring a demonstration of specific

prejudice) with Cerro v. United States, 

(7th Cir.

1989)(requiring the presence of specific facts to trigger a

finding of prejudice); cf. Government of the Virgin Islands v.

Zepp, 

, 136 (3d. Cir. 1984)(“[I]t is unrealistic for

this court to assume that Zepp’s attorney vigorously pursued his

client’s best interest entirely free from the influence of his

concern to avoid his own incrimination.”).

    In United States v. Babbitt, 

(C.M.A. 1988), our

Court considered the impact on the effective assistance of

counsel in a case where a male civilian defense attorney engaged

in a consensual sexual act with his female military client

during the evening before the final day of her trial.   In those

circumstances, our Court declined to hold that every sexual

relationship between an attorney and client necessarily creates


                                  28
United States v. Cain, No. 03-0212/AR


a conflict of interest that violates a client's Sixth Amendment

right to the effective assistance of counsel.   

THE COMBINATION OF POTENTIAL CRIMINAL LIABILITY
                     AND ETHICAL MISCONDUCT

    The appeal before us presents a case of first impression,

with no direct counterpart in civilian law.   The case involves a

volatile mixture of sex and crime in the context of the

military's treatment of fraternization and sodomy as criminal

offenses.

    Defense counsel’s conduct with his client placed both the

attorney and client at the risk of criminal prosecution for

violating the very article of the UCMJ, Article 125, that was

the subject of the present case.    Well before the onset of

trial, Major S repeatedly placed himself at risk of severe

personal and professional consequences, including the

possibility of confinement by court-martial, administrative

termination of his military career, and professional discipline.

The extraordinary pressure under which he labored during his

representation of Appellant is underscored tragically by the

fact that he took his own life less than a day after he was

informed that his superiors had learned of his personal

relationship with Appellant.




                               29
United States v. Cain, No. 03-0212/AR


     Because of counsel’s suicide, we do not have the benefit of

any testimony that he might have provided as to what

consideration he gave potential defense strategies in this case.

In the absence of such testimony, we consider the case from the

perspective of a military defense counsel caught between the

conflicting pressures generated by his own sexual misconduct and

his professional responsibilities.   By his actions, counsel

placed himself and his client in a position where testimony by

the client entailed significant risks.   Any exploration into

Appellant’s conduct would have raised the possibility that the

prosecution would have endeavored through cross-examination or

rebuttal to elicit evidence of similar sexual misconduct.   This

would have created the potential for exposing counsel’s sexual

misconduct with Appellant.

     In those circumstances, defense counsel faced a conflict

between his personal interests and his responsibility to give

thoughtful, dispassionate consideration and advice concerning

the range of options facing the defense.   We do not know whether

the defense counsel in this case rejected any specific option on

the grounds that it was not in his client’s best interest, or

because it was not in his own best interest.   We do know that

when confronted about the sexual misconduct with his client, it

was only a matter of hours before he took his own life.




                               30
United States v. Cain, No. 03-0212/AR


       The uniquely proscribed relationship before us was

inherently prejudicial and created a per se conflict of interest

in counsel’s representation of the Appellant.   The facts of this

case are distinguishable from the limited, consensual

relationship between a civilian counsel and his client that we

considered in Babbitt, where we declined to find such a per se

.   Here, we confront a course of

conduct involving an attorney’s abuse of a military office, a

violation of the duty of loyalty, fraternization, and repeated

commission of the same criminal offense for which the attorney’s

client was on trial.   All of this is left unexplained due to the

attorney’s untimely death.   As stated by the Second Circuit in

Cancilla, the conflict created by this conduct was “real, not

simply possible” and “so threatening as to justify a presumption

that the adequacy of representation was 

.

       The problems flowing from the conduct of Major S are not

overcome in this case by actions of the assistant defense

counsel, Captain L, who negotiated the pretrial agreement.

Major S was the experienced, lead counsel in the case.

Appellant relied on Major S and was entitled to the benefit of

conflict-free advice from Major S about the range of

alternatives before him.   He did not receive that advice.




                                 31
United States v. Cain, No. 03-0212/AR


      With respect to waiver, we note that the court below relied

on Appellant's discussions with two civilian lawyers, Attorney W

and Attorney T, in concluding that he waived any objection to

Major S as his counsel.   Both attorneys advised him to sever the

relationship because the behavior of Major S was unethical.

Neither attorney, however, provided him with a detailed

explanation of the relationship between the merits of the case

and the attorney’s ethical obligations.    Both focused on the

matter from the attorney’s perspective, not the client’s

perspective.   Attorney W declined to discuss the substance of

the charges with Appellant, and Attorney T focused primarily on

the fact that he would not take the case if Major S remained on

it.   We do not fault either attorney for not engaging in a

detailed discussion with Appellant of the impact of any

unethical behavior by Appellant on the merits of his case.    In

both cases, the discussions between the apparently distraught

Appellant and the cautious lawyers simply did not advance to the

point of forming an attorney-client relationship with respect to

the charged offenses.   Appellant's conversations with the two

civilian attorneys in this case did not involve the type of

informed discussion of the specific pitfalls of retaining Major

S that would demonstrate a knowing, intelligent waiver of the

right to effective assistance of counsel.   See United States v.

Henry, 

, 237 (C.A.A.F. 1995).


                                32
United States v. Cain, No. 03-0212/AR




                             DECISION

     The decision of the United States Army Court of Criminal

Appeals is reversed.   The findings of guilty and sentence are

set aside.   The record of trial is returned to the Judge

Advocate General of the Army.   A rehearing may be ordered.




                                33
United States v. Cain, No. 03-0212/AR


     CRAWFORD, Chief Judge (dissenting):

     I respectfully dissent from the majority’s creation of a

per se rule of ineffectiveness that is contrary to Supreme Court

precedent.   Mickens v Taylor, 

, 172-73 (2002)

(noting that because there is no rule of per se ineffectiveness,

an appellant must demonstrate that “conflict significantly

affected counsel’s performance”).   But cf. Nixon v. Florida, 

(Fla. 2003)(defendant’s acquiescence in defense

counsel’s strategy which was the functional equivalent of a

guilty plea, regardless of its wisdom, was held to be per se

ineffectiveness), cert. granted, 

(March 1,

2004).   This Court is, and should be, deeply concerned about an

accused’s right to effective assistance of counsel and a fair

trial.   Nevertheless, to determine whether counsel has rendered

ineffective assistance to an accused, we are bound by our own

and Supreme Court precedent.   This precedent dictates that

ineffective assistance requires both deficient performance and

prejudice.   Because Appellant has demonstrated no prejudice in

this case, I respectfully dissent from the lead opinion.

     “In reviewing claims of ineffective assistance of counsel

based on deficient representation, we must apply the two-prong

test articulated by the Supreme Court in Strickland v.

Washington, 

(1984).”   United States v. Babbitt, 

, 158 (C.M.A. 1988).
United States v. Cain, No. 03-0212/AR


     First, the defendant must show that counsel's
     performance was deficient. This requires showing that
     counsel made errors so serious that counsel was not
     functioning as the “counsel” guaranteed the defendant
     by the Sixth Amendment. Second, the defendant must
     show that the deficient performance prejudiced the
     defense. This requires showing that counsel's errors
     were so serious as to deprive the defendant of a fair
     trial, a trial whose result is reliable.

(emphasis added).    The Court added

that “if it is easier to dispose of an ineffectiveness claim on

the ground of lack of sufficient prejudice, which we expect will

often be so, that course should be followed.”    

added).

     The type of conflict presented in this case is not unique

to the military.    In fact, there have been many federal cases

addressing ineffectiveness where the client and attorney were

allegedly involved in a related criminal endeavor.   See, e.g.,

United States v. Cancilla, 

(2d Cir. 1984)(attorney

participated with client’s coconspirators in crime similar to

client’s); United States v. Briguglio, 

(3d Cir.

1982)(attorney under investigation by United States Attorney’s

Office prosecuting client).   To assess ineffectiveness in these

cases, the courts have rejected a per se rule and, instead, have

examined the record to determine if there was prejudice.      Unlike

the instant case, in none of the federal cases was there the

mitigating presence of an independent counsel, or a guilty plea




                                  2
United States v. Cain, No. 03-0212/AR


tested through the extensive providence inquiry required in

military practice.

     Appellant in the case at bar has failed to demonstrate any

prejudice.   Despite his admission of guilt to the charge of

indecent assault, Appellant availed himself of a pretrial

agreement which reduced the charges and limited the duration of

the adjudged confinement.   Indeed, Major S’s representation

successfully gave Appellant the benefit of his bargain and, as

the lower court noted, “it is difficult to imagine what more

[the defense] could have done on [Appellant’s] behalf to produce

a more favorable result.”   United States v. Cain, 

,

739 (A. Ct. Crim. App. 2002).   In addition, the pretrial

agreement which dictated the outcome of the case was negotiated

by Captain L, who was unaffected by Appellant’s relationship

with Major S.   The mitigating presence of an independent third

party counsel who reviewed and endorsed the vehicle which

secured Appellant’s fate at trial renders prejudice simply

untenable.   In sum, given the absence of any prejudice in this

case, there simply cannot have been ineffective assistance.

     Moreover, this Court has repeatedly emphasized the military

judge’s obligation to ensure that guilty pleas are voluntary and

pretrial agreements are well understood.   Rule for Courts-

Martial 910.    See, e.g., United States v. King, 

(C.M.A. 1977)(holding that the military judge must confirm at


                                  3
United States v. Cain, No. 03-0212/AR


trial that the written plea agreement encompasses both parties’

understanding of the meaning and effect of the plea bargain).

Indeed, “[t]he military justice system imposes even stricter

standards on military judges with regards to guilty pleas than

those imposed on federal civilian judges.”   United States v.

Perron, 

, 81 (C.A.A.F. 2003).   Only after meeting this

stringent prerequisite may a military judge pronounce the

binding effect of the pretrial agreement on both parties.

United States v. Lanzer, 

, 62 (C.M.A. 1977)(noting that

pretrial agreements will be strictly enforced where the

intention of the parties at the time of the agreement is clear).

This Court’s exacting standards in this regard prompted the

Judicial Conference of the United States to recommend that other

federal courts require its judges to conduct a similar inquiry

into plea agreements.   Judicial Conference of the United States

Committee on Rules of Practice and Procedure, Report of the

Advisory Committee on Criminal Rules, 65 Crim. L. Rep. (BNA) 140

(May 5, 1999).

     The detailed providence inquiry in this case, informed by

Appellant’s binding stipulation of fact, is abundantly clear

that Appellant knowingly and willingly pleaded guilty to the

charged offense, knowingly and willingly entered the pretrial

agreement, and was indeed satisfied with the assistance of

counsel that accompanied his decision to plead guilty and enter


                                 4
United States v. Cain, No. 03-0212/AR


the pretrial agreement.   See United States v. Redlinski, 

, 119 (C.A.A.F. 2003)(noting that this Court considers the

context of the entire record to determine whether a plea was

provident).   The military judge questioned Appellant, in

pertinent part, as follows:

          MJ: Anyone force you to enter into this
     agreement?

          ACC: No, Your Honor.

          . . . .

          MJ: Anyone made any promises to you that aren’t
     written into this agreement in an attempt to get you
     to plead guilty?

          ACC: No, Your Honor.

          . . . .

          MJ: . . . Paragraph 4 [of the pretrial agreement]
     says that the offer to plead guilty originated with
     you; and, that no person made any attempt to force or
     coerce you into making this offer. That just means it
     was your idea. Was it?

          ACC: Yes, it was, Your Honor.

          . . . .

          MJ: Have you had enough time to discuss this
     agreement with both of your defense counsel?

          ACC: I have, Your Honor.

          MJ: Are you satisfied with their advice regarding
     this pretrial agreement?

          ACC: I am, Your Honor.

          MJ: And, again, I ask you, did you enter into the
     agreement of your own free will?


                                   5
United States v. Cain, No. 03-0212/AR



          ACC: I did, Your Honor.

          MJ: Did anybody force you to do this?

          ACC: No, Your Honor.

          . . . .

          MJ: You fully understand all of the terms and
     conditions [of the pretrial agreement] and how they
     are going to affect your case?

          ACC: I do, Your Honor.

          . . . .

          MJ: Are you satisfied [with your defense
     counsels’] advice with regard to your case?

          ACC: I am, Your Honor.

          MJ: Satisfied with them as your defense counsel?

          ACC: Yes, Your Honor.

          MJ: Are you pleading guilty voluntarily and of
     your own free will?

          ACC: I am, Your Honor.

          MJ: Anyone made any threat or tried in any way to
     force you to plead guilty?

          ACC: No, Your Honor.

          . . . .

          MJ: Sergeant Cain, I find that your plea of
     guilty is made voluntarily and with full knowledge of
     its meaning and effect.

          I further find that you have knowingly,
     intelligently and consciously waived your rights
     against self-incrimination, to a trial of the facts by
     a court-martial and to be confronted by the witnesses
     against you.


                                   6
United States v. Cain, No. 03-0212/AR



           Accordingly, your plea of guilty is provident.
      It is accepted.

Given this Court’s longstanding efforts to ensure that guilty

pleas are sincere and voluntary, and that only legitimate,

mutually-selected pretrial agreements are put into effect, this

Court is remiss to reverse Appellant’s conviction – and in so

doing negate his accepted guilty plea and rescind his binding

pretrial agreement – in the absence of any prejudice.

      Finally, even if Appellant had suffered prejudice, he

affirmatively waived his right to conflict-free representation

when he freely and deliberately entered into a relationship with

his defense counsel.   See United States v. Mezzanatto, 

, 201 (1995)(establishing that an appellant may waive many of

the most fundamental constitutional rights).   “The determination

of whether there has been an intelligent waiver . . . [depends]

upon the particular facts and circumstances surrounding that

case, including the background, experience, and conduct of the

accused.”   Johnson v. Zerbst, 

, 464 (1938).    The

lower court made extensive findings of fact regarding the

consensual, informed, and deliberate nature of Appellant’s

relationship with Major S:

  •   Appellant was 33-years-old, a sergeant with more than
      12 years of service, with a GT score of 112 and a two-
      year associate’s degree.




                                 7
United States v. Cain, No. 03-0212/AR


  •   Appellant told several people that he continued the
      relationship only because he wanted defense counsel to
      continue to represent him. Appellant considered
      defense counsel to be an “excellent, dynamic, and
      aggressive” attorney, and believed that because
      counsel was gay, like Appellant, counsel would fight
      even harder on Appellant’s behalf. Appellant believed
      Major S was the best military defense counsel
      available.

  •   Appellant never told defense counsel that he had any
      reservations about their relationship. Appellant
      testified at the hearing pursuant to United States v.
      DuBay, 

, 

(1967), “[N]ot
      once did I protest what he was doing to me or what he
      had me do to him.”

.   There was no doubt that Appellant wanted

Major S to defend him, and did what he felt was necessary to

secure Major S’s “excellent, dynamic, and aggressive”

representation.   

what he was doing

when he made his choice.”   

short, through his

calculated involvement with his defense counsel, Appellant

waived his right to conflict-free representation.

      For these reasons, I respectfully dissent from the lead

opinion.




                                  8