Petition for Writ of Certiorari — Matthew P. Leipart, Petitioner v. United States
Supreme Court briefDec 23, 2024
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UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Matthew P. LEIPART, Technical Sergeant
United States Air Force, Appellant
No. 23-0163
Crim. App. No. 39711
Misc. Dkt. No. 2021-03
Argued January 24, 2024—Decided August 1, 2024
Military Judges: Jefferson B. Brown (arraignment
and motions hearing), Joseph S. Imburgia (trial), and
Christina M. Jimenez (DuBay hearing)
For Appellant: Captain Samantha M.
Castanien (argued); Major David L. Bosner and
Megan P. Marinos, Esq. (on brief); Lieutenant
Colonel Allen S. Abrams.
For Appellee: Captain Kate E. Lee (argued);
Colonel Matthew D. Talcott, Lieutenant Colonel
James P. Ferrell, and Mary Ellen Payne, Esq.
(on brief); Major Zachary T. West.
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Judge SPARKS delivered the opinion of the
Court, in which Judge MAGGS and Judge
HARDY joined. Chief Judge OHLSON filed a
separate opinion concurring in the judgment, in
which Judge JOHNSON joined.
_______________
Judge SPARKS delivered the opinion of the Court.
A general court-martial composed of a military
judge sitting alone convicted Appellant, pursuant to
his pleas, of one specification of aggravated assault,
two specifications of assault consummated by a
battery, and two specifications of wrongfully
communicating threats in violation of Articles 128 and
134, Uniform Code of Military Justice (UCMJ), 10
U.S.C. §§ 928, 934. Contrary to his pleas, Appellant
was convicted of two specifications of sexual assault in
violation of Article 120, UCMJ, 10 U.S.C. § 920.1 The
adjudged and approved sentence provided for a
reduction to E-1, twenty-one years of confinement,
forfeiture of all pay and allowances, and a reprimand.
The United States Air Force Court of Criminal
Appeals affirmed the findings and sentence as
approved by the convening authority. United States v.
Leipart, No. ACM 39711, Misc. Dkt. No. 2021-03, 2023
CCA LEXIS 39, at *2, *88, 2023 WL 415990, at *1, *28
(A.F. Ct. Crim. App. Jan. 26, 2023) (unpublished).
We granted review of the following two issues:
1 The military judge acquitted Appellant of one specification of
communicating a threat, two specifications of sexual assault, and
one specification of the lesser included offense of attempted
sexual assault.
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I. Whether
trial defense counsel were
ineffective for, inter alia, allowing the
military judge to consider Appellant’s guilty
plea when determining whether Appellant
was guilty of the litigated offenses.
II. Whether the trial counsel’s “clear error” in
findings argument—leveraging Appellant’s
guilty plea to prove his guilt of the litigated
offenses—was
harmless
beyond
a
reasonable doubt.
United States v. Leipart, 83 M.J. 448 (C.A.A.F. 2023)
(order granting review).
For Issue I, we conclude that trial defense counsel’s
performance was not deficient. For Issue II, we
conclude that trial counsel’s statements amounted to
plain, obvious error, but the error was harmless
beyond a reasonable doubt.
I. Background
In January 2016, Appellant and KC met on an
online dating site. At the time, Appellant was
stationed in Missouri, and KC was a lawyer living in
Perth, Australia. In March 2016, KC flew to the
United States to visit Appellant, during which time
she became pregnant with their child. After
approximately two weeks, KC returned to Australia.
In May 2016, KC visited Appellant a second time
in Missouri and stayed until July 2016. In August
2016, KC returned to Missouri for a third time. In
November 2016, KC gave birth to their son in
Missouri. In December 2016, Appellant, KC, and their
son flew to Australia together. Appellant returned to
the United States in January 2017, while KC and
their son remained in Australia.
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In May 2017, Appellant visited KC in Australia.
While in Australia, Appellant physically assaulted KC
by grabbing and choking her with his hand and arm,
holding a screwdriver at her neck, and striking her on
the head with his hand. Appellant also threatened KC
with physical injury approximately twenty times. In
June 2017, Appellant returned to the United States.
In early August 2017, KC reported the physical
assaults to the Australian police. Later that month,
the Air Force Office of Special Investigations (OSI)
called KC regarding Appellant, and she again
reported the physical assaults that had occurred in
Australia. In September 2017, during an interview
with OSI, KC disclosed that Appellant had sexually
assaulted her several times over the course of their
relationship.
At trial, Appellant faced five specifications of
sexual assault, two specifications of assault
consummated by a battery, one specification of
aggravated assault, and three specifications of
communicating a threat. Appellant pled not guilty to
the three specifications of sexual assault and two
specifications of communicating a threat. Appellant
pled guilty to grabbing and choking KC with his hand
and arm, to holding a screwdriver to her neck, to
striking her on the head with his hand, and to
threatening to injure her.
After the providence inquiry, the military judge
accepted Appellant’s pleas. The parties then began the
litigated proceedings and gave opening statements.
During the defense’s opening statement, civilian trial
defense counsel, Mr. DC, stated:
Now by 15 August, OSI is going to be
involved and [KC’s] story is going to take some
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more turns. She’s going to tell OSI, specifically,
that there was never any abuse in Missouri.
The very first time OSI talks to her, in their
efforts to be thorough, they ask her some
detailed questions and she’s going to tell them,
very specifically, [hand pounded on the table]
and clearly, there was never any abuse in
Missouri. Now that’s relevant, obviously, to the
Additional Charge I, as four of the sexual
assault allegations supposedly occurred in
Missouri. In that first statement to OSI, she’s
not going to report any sexual assaults, at all.
Now at this point, we’re literally three— she’s
had three interactions with law enforcement, at
this point—a lawyer. Now then, I will note, in
fairness, that the 15 August statement did in
fact include statements that essentially covered
the charges subject to the mixed guilty plea, for
the most part. Okay.
....
. . . we’re going to ask you at the end of this
particular case to enter a not guilty finding as
to the remaining charges and specifications.
Thank you.
After Mr. DC concluded his opening statement, he
had the following colloquy with the military judge:
MJ2: Thank you.
Defense, putting back on my judge hat—
[DC:] Yes, sir.
MJ2: —you had mentioned—
....
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MJ2: But you had mentioned in your opening
statement about the mixed pleas, the
guilty pleas, and one of the questions I
was going to ask you, regardless of that,
is your position—from the defense
team—on consideration, or the factfinder being aware that there has been
previous guilty pleas? I think your
opening statement probably answered
the question, because now you’ve alerted
to me in your opening statement. But, I
still want to give you the opportunity to
bring that up.
[DC:] Yeah, I think in a mixed plea in front of
a panel type fact-finder, sometimes we
would have the optionality of certainly
disclosing to the members the existence
of the plea. I thought that it was
appropriate in the opening statement
here, because you’re going to hear prior
inconsistent
statements
in
impeachment, based on the 15 August
statement to Ms. [KC]. And in that
particular statement, the reference in
opening statement was, she talks about
the content of the mixed plea, but not
these
additional
charges
and
specifications. So to the extent, I wasn’t
necessarily asking you to, as the factfinder, to necessarily consider that mixed
plea. But, I was alerting you to the fact
of what you’re going to hear on the crossexamination, if she made statements
that are similar to that. I hope that
answers your question, sir.
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MJ2: It does.
[DC:] I’m not trying to be nonresponsive.
MJ2: No, that’s responsive.
[DC:] Okay.
MJ2: That answers the question. Anything
else on that issue from you the
government?
CTCl: No, Your Honor, I was going to ask the
Court the same question, so thank you.
MJ2: So we’re operating in a world where I'm
aware of the previous guilty plea?
[DC:] Of course, sir; yes.
MJ2: I mean, obviously I am as the judge but
even as the fact-finder now—
[DC:] Yes, sir.
MJ2: —I’m aware of it.
[DC:] Then obviously, I certainly appreciate
your
thoroughness
in
compartmentalizing
your
various
functions here, but I agree that we’re in
that universe now.
During the Government’s closing argument on the
merits, without objection, trial counsel argued:
The defense counsel asked you to operate in
this world where you know that he pled guilty
to a number of offenses. So right now, I want to
talk about how that goes towards the victim’s
credibility, because as you’re standing here
operating in this world where he has admitted
to crimes against Ms. [KC], the government
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believes you can use that in assessing her
credibility on the stand. Whether or not she’s
telling the truth for the 120 offenses.
So you know that she’s telling the truth
when she says the accused threatened her. You
know that, Your Honor. Undeniable. You know
that she’s telling the truth about her being
choked by the accused. Undeniable. You know
that she’s telling the truth about her being
threatened with a screwdriver. That is
undeniable. You know she’s telling the truth
about being hit in the back of the head by the
accused. You can’t deny it. You know that even
after she sat right where she’s sitting right now,
and heard the accused plead guilty, she still
continued to testify—but she could have left.
....
She had to get up here and talk about sex,
unwanted sex from the accused in front of a
room of strangers. She didn’t have to. No one
was forcing her to and that of itself, Your
Honor, is obviously not a sole indicator of
whether or not she’s telling the truth or not but
taken into consideration that she knows the
accused has already pled guilty to a number of
offenses, that gives her more motivation to drop
out, if she was telling—if she was lying, but she
didn’t.
....
Your Honor, it’s the government’s position
that you really have to find her to be an evil
person if you think she’s going to come here and
testify and lie about someone raping her. I
mean, because that’s what an evil person does.
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That she had such motivation to lie about being
raped, but not lie about the other charges that
the accused has pled guilty to. And so, when
defense is asking you or pushing forth this
theory that she’s a liar. They’re really saying
she’s a partial liar—that she’s lied about some
things, but not lied about others. And that
makes it even more difficult for you when you’re
looking at her saying, “Okay. You’re a liar.
Well, did you lie about this, but why would you
lie about that?”
After trial, the lower court ordered a post-trial
hearing pursuant to United States v. DuBay, 17
C.M.A. 147, 37 C.M.R. 411 (1967), to answer, inter
alia, whether trial defense counsel was ineffective by
allowing the military judge to consider Appellant’s
guilty plea. United States v. Leipart, No. ACM 39711,
Misc. Dkt. No. 2021-03, 2021 CCA LEXIS 595, at *35, 2021 WL 5113965, at *2 (A.F. Ct. Crim. App. June
14, 2021) (order). In his declaration Mr. DC stated:
There is no indication the Military Judge
used the providence inquiry for any improper
basis. I do not believe there was uncharged
misconduct in the providence inquiry. There
may have been alternative theories for the
admissibility of many aspects of the providence
inquiry. The purpose of the mixed plea was
because the evidence on those specifications
was uncontroverted and to obtain credibility
with the military judge. Permitting the judge to
consider [Appellant’s] testimony for any proper
purpose he desired seemed in [Appellant’s] best
interest.
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Leipart, 2023 CCA LEXIS 39, at *32-33, 2023 WL
415990, at *11 (alterations in original).
During the DuBay hearing, “Mr. DC conceded that
if he had the situation to do over again, he ‘probably’
would not make the same decision.” Id. at *33, 2023
WL 415990, at *11. Detailed counsel Captain CB
“stated that he was not part of any prior discussion
regarding the military judge’s awareness of the guilty
plea, and that he was ‘confused’ by Mr. DC’s
agreement to it because it ‘immediately corroborated’
KC.” Id. at *34, 2023 WL 415990, at *11. Appellant’s
other civilian trial defense counsel, Mr. JC, “recalled
having a pretrial conversation with Mr. DC about the
military judge’s awareness of the guilty plea during
findings, but otherwise provided little information on
the subject.” Id. at *34, 2023 WL 415990, at *11.
At the lower court, Appellant argued that Mr. DC’s
agreement for the military judge “to ‘consider’ his
guilty pleas as the trier of fact was ‘patently
erroneous’ and without any useful purpose for the
[d]efense.” Id. at *32, 2023 WL 415990, at *11.
Appellant contended that he was “prejudiced because
the guilty plea corroborated KC’s allegations
regarding the Article 128 and 134, UCMJ, offenses,
and thereby tended to enhance her credibility as to the
litigated specifications.” Id. at *32 , 2023 WL 415990,
at *11. Notably, the lower court observed:
On appeal, and at the DuBay hearing, the
Defense repeatedly referred to Mr. DC having
allowed the trial judge to “consider” Appellant’s
guilty plea and providence inquiry during
findings. However—notwithstanding that Mr.
DC, to an extent, and Capt CB, to a greater
extent, appear to have accepted Appellant’s
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characterization— the record does not indicate
that, at the time, Mr. DC agreed the trial judge
would “consider” the guilty plea, nor is that
what the trial judge proposed to do. Instead, the
trial judge indicated that he would be “aware”
of the guilty plea, not that he would consider or
use the guilty plea during his deliberation on
findings. This distinction is significant.
Id. at *34-35, 2023 WL 415990, at *11. Ultimately, the
lower court concluded:
Although we perceive a reasonable argument
that Mr. DC’s action did not fall measurably
below the expected standard, given the weak
defense trial counsel offered in their
declarations and at the DuBay hearing for their
performance in this regard, we decline to decide
whether that performance was constitutionally
deficient. Instead, we hold Appellant has failed
to demonstrate a reasonable probability of a
more favorable result in the absence of any such
deficiency, given the absence of evidence that
the trial judge misused Appellant’s guilty pleas.
Id. at *37, 2023 WL 415990, at *13.
II. Analysis
A. Ineffective Assistance of Counsel
The first assigned issue asks whether Appellant’s
defense counsel provided ineffective assistance by
allowing the military judge to consider Appellant’s
guilty plea. We review de novo allegations of
ineffective assistance of counsel. United States v.
Gooch, 69 M.J. 353, 362 (C.A.A.F. 2011) (citing United
States v. Mazza, 67 M.J. 470, 474 (C.A.A.F. 2009)). To
establish that ineffective assistance of counsel
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occurred, an appellant must prove both that the
defense counsel’s performance was deficient, and that
the deficiency caused prejudice. United States v.
Captain, 75 M.J. 99, 103 (C.A.A.F. 2016) (citing
Strickland v. Washington, 466 U.S. 668, 698 (1984)).
With respect to the first prong of this test, courts
“must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable
professional assistance”; and “[a]s to the second prong,
a challenger must demonstrate a reasonable
probability that, but for counsel’s [deficient
performance] the result of the proceeding would have
been different.” Id. (second alteration in original)
(internal quotation marks omitted) (quoting
Strickland, 466 U.S. at 689, 694). Further, a military
judge is presumed to know the law and apply it
correctly, absent clear evidence to the contrary.
United States v. Erickson, 65 M.J. 221, 225 (C.A.A.F.
2007).
In United States v. Flores, 69 M.J. 366, 368
(C.A.A.F. 2011), the appellant pleaded guilty to two
specifications but pleaded not guilty to four other
unrelated specifications. After the military judge
accepted the guilty pleas, the government moved
forward to prove those four specifications. Id. at 369.
The military judge convicted the appellant of those
specifications. Id. at 368. In her closing argument on
the merits, the trial counsel made two comments
about what the appellant told the military judge
during the earlier providence inquiry. Id. at 369-71.
The trial counsel specifically referred to the
statements made by the appellant during the plea
inquiry and argued that those statements reinforced
the credibility of a key government witness.
Concluding that the trial counsel erred, we held that
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“[a] guilty plea and related statements to one offense
cannot be admitted to prove any element of a separate
offense.” Id. at 369. Moreover, a military judge “must
not later rely on those statements as proof of a
separate offense.” Id. at 369-70. “To do so would
compel an accused to incriminate herself in the
separate criminal proceeding.” Id. at 370.
Appellant’s underlying contention is that Mr. DC,
by allowing the military judge to consider his guilty
pleas when deliberating on the findings, usurped his
right to remain silent as to the contested offenses.
Although our review for allegations of ineffective
assistance of counsel is de novo, we agree with the
lower court’s well-reasoned analysis:
Absent clear evidence to the contrary, a
military judge is presumed to know and to
follow the law. Erickson, 65 M.J. at 225. We find
no clear evidence to the contrary in this record.
At no point did the trial judge indicate he would
consider or use either the guilty plea itself or
Appellant’s providence inquiry during the
contested portion of the trial. On the contrary,
the trial judge had advised Appellant he would
not do so.
Notwithstanding trial defense counsel’s
posttrial statements, at the time, Mr. DC
indicated that he “wasn’t necessarily asking
[the trial judge] to, as the fact-finder, to
necessarily consider that mixed plea.” Instead,
Mr. DC referenced the fact that, in a mixed-plea
case with court members, the military judge
would typically ask the defense whether the
accused wanted the members to be “informed”
of the guilty pleas. See Department of the Army
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Pamphlet 27-9, Military Judges’ Benchbook
(Benchbook), ¶ 2-5-4 (10 Sep. 2014). The
purpose of such information is not, of course,
that the court members should use the fact of
the guilty plea as evidence for their findings as
to contested offenses. In Appellant’s case, as
Mr. DC explained at the time, the evident
purpose of allowing the trial judge to be “aware”
of the mixed plea was simply to help orient the
trial judge, as factfinder, to how the expected
evidence related to both the contested and
uncontested specifications, as described in the
Defense’s opening statement. Had the trial
judge not clarified that he was “aware” of the
guilty plea in his role as factfinder, such
references to the “mixed pleas”—whether by
the Defense or the Government—could be
objectionable references to matters not in
evidence and not reasonably anticipated to be
entered into evidence. Mr. DC trusted that the
trial judge would not use this information
“inappropriately,” and there is no clear
indication the trial judge did misuse it.
Leipart, 2023 CCA LEXIS 39, at *36-38, 2023 WL
415990, at *12 (alteration in original).
We are ultimately not persuaded that Mr. DC’s
performance was deficient. Importantly, the record
does not indicate that Mr. DC agreed that the military
judge would consider the guilty plea, nor is that what
the military judge stated he would do. As Mr. DC
explained at the time, the purpose of allowing the
military judge to be “aware” of the mixed plea was to
help familiarize the military judge, as factfinder, to
how the expected evidence related to both the
contested and uncontested specifications, as described
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in the defense’s opening statement. There is no
indication in the record that Mr. DC was allowing the
military judge to use Appellant’s guilty plea and
related statements to prove any element of the
contested offenses. The fact that the military judge
was aware of the mixed plea does not implicate the
concerns we addressed in Flores. Under these facts,
we conclude that the trial defense counsel’s
performance was not deficient.
B. Improper Argument
At the lower court, Appellant argued, in relevant
part, that trial counsel’s closing argument was
improper because it requested that the military judge
inappropriately use Appellant’s prior guilty pleas to
find him guilty of the sexual assault charges. Id. at
*69-70, 2023 WL 415990, at *23. The lower court
agreed, finding that trial counsel clearly erred by
using Appellant’s guilty plea and providence inquiry
to bolster the Government’s argument that Appellant
was guilty of the contested sexual offense. Id. at *70,
2023 WL 415990, at *23. However, the lower court
found Appellant was not prejudiced because there was
no clear evidence that the military judge improperly
considered trial counsel’s argument. Id. at *71-74,
2023 WL 415990, at *24. On appeal to this Court,
Appellant agrees with the lower court’s finding of
clear error but contends that the lower court
incorrectly found the error was harmless beyond a
reasonable doubt.
“We review prosecutorial misconduct and
improper argument de novo and where . . . no objection
is made, we review for plain error.” United States v.
Voorhees, 79 M.J. 5, 9 (C.A.A.F. 2019) (citing United
States v. Andrews, 77 M.J. 393, 398 (C.A.A.F. 2018)).
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Under plain error review, the appellant bears the
burden to demonstrate error that is clear or obvious
and results in material prejudice to his substantial
rights. United States v. Knapp, 73 M.J. 33, 36
(C.A.A.F. 2014). “[W]here a forfeited constitutional
error was clear or obvious, ‘material prejudice’ is
assessed using the ‘harmless beyond a reasonable
doubt’ standard . . . .” United States v. Tovarchavez, 78
M.J. 458, 460 (C.A.A.F. 2019) (citations omitted).
“That standard is met where a court is confident that
there was no reasonable possibility that the error
might have contributed to the conviction.” Id. (citation
omitted).
“Improper argument is one facet of prosecutorial
misconduct.” United States v. Sewell, 76 M.J. 14, 18
(C.A.A.F. 2017) (citation omitted). “Prosecutorial
misconduct occurs when trial counsel ‘overstep[s] the
bounds of that propriety and fairness which should
characterize the conduct of such an officer in the
prosecution of a criminal offense.’ ” United States v.
Hornback, 73 M.J. 155, 159 (C.A.A.F. 2014)
(alteration in original) (quoting United States v.
Fletcher, 62 M.J. 175, 178 (C.A.A.F. 2005)).
The Fifth Amendment guarantees that “[n]o
person . . . shall be compelled in any criminal case to
be a witness against himself.” U.S. Const. amend. V.
“In a guilty plea context, a military judge who has
advised an accused that she is waiving her right
against self-incrimination only to those offenses to
which she is pleading guilty cannot later rely on those
statements as proof of a separate offense.” Flores, 69
M.J. at 368. Neither the guilty plea itself nor any
related statements as to one offense may be “admitted
to prove any element of a separate offense.” Id. at 369.
“To do so would compel an accused to incriminate
17a
herself in the separate criminal proceeding.” Id. at
370.
We agree with Appellant that trial counsel
committed a clear error when he used Appellant's
guilty plea and providence inquiry to bolster the
Government’s argument that Appellant was guilty of
the contested sexual offenses. Trial counsel appears to
have relied on the defense’s agreement that the trial
participants were “operating in a world” where the
military judge was “aware” of the guilty pleas. But the
defense’s agreement that the military judge was
aware of the guilty pleas was not an agreement that
the Government could use Appellant’s guilty plea and
his sworn statement during the providence inquiry as
evidence of his guilt.
Due to the constitutional dimensions of trial
counsel’s error, we test for harmless beyond a
reasonable doubt. The Government argues that the
error was harmless beyond a reasonable doubt due to
the presumption that the military judges are
presumed to know the law and follow it absent clear
evidence to the contrary. Specifically, the Government
argues that there is no evidence that trial counsel’s
reference to Appellant’s guilty pleas caused the
military judge to use the guilty pleas for an improper
purpose.
In United States v. Hukill, 76 M.J. 219, 220
(C.A.A.F. 2017), we held that whether considered by
members or a military judge, evidence of a charged
offense, of which an accused is presumed innocent,
cannot be used as propensity evidence in support of a
companion charged offense. Because there were
constitutional dimensions at play, the erroneous
admittance of evidence was tested for prejudice under
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the harmless beyond a reasonable doubt standard. Id.
at 222. In that case, like the instant case, the
government argued “that the error was harmless
beyond a reasonable doubt due to the presumption
that military judges are presumed to know the law
and follow it absent clear evidence to the contrary.” Id.
However, the presumption was not helpful to the
government in Hukill because the common
understanding of the law was that charged
misconduct could be used as propensity evidence. Id.
We cautioned that “[t]he presumption that the
military judge knows and follows the law is only as
valid as the law itself.” Id. at 223.
Unlike in Hukill, here there is no indication that
the military judge misunderstood the law. Flores
clearly prohibited the type of arguments made by trial
counsel. Nothing in the record suggests the military
judge was unaware of Flores or unwilling to follow it.
Although trial counsel made various misstatements,
we cannot presume the military judge adopted trial
counsel’s view of the law. There is no evidence of error
on the part of the military judge, to whom the
presumption attaches. In fact, the military judge’s
mixed findings on the contested sexual assault
offenses suggest that the military judge thoroughly
analyzed the evidence for each offense.
We hold that the presumption that the military
judge knew and correctly followed the law was not
rebutted in this case by the military judge’s silence in
a military judge-alone trial. The misstatements by the
trial counsel are not imputed to the military judge,
absent evidence the military judge adopted the
rationale of the misstatements. Accordingly, there is
no reasonable possibility that the error might have
contributed to Appellant’s conviction.
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III. Judgment
The decision of the United States Air Force Court
of Criminal Appeals is affirmed.
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Chief Judge OHLSON, with whom Judge
JOHNSON joins, concurring in the judgment.
For the reasons cited below, I concur in the
judgment of the Court.1
Issue I: Ineffective Assistance of Counsel
The first granted issue asks “[w]hether trial
defense counsel were ineffective for, inter alia,
allowing the military judge to consider Appellant’s
guilty plea when determining whether Appellant was
guilty of the litigated offenses.” United States v.
Leipart, 83 M.J. 448 (C.A.A.F. 2023) (order granting
review). As can be seen, the language of this granted
issue squarely focuses on whether defense counsel
erred by “allowing” the military judge to “consider”
during the contested phase of the court-martial
proceedings the admissions Appellant previously had
made during the providence inquiry. And yet,
Appellant now seeks to argue that trial defense
counsel were also ineffective because they failed to
object to trial counsel’s slides during findings
argument and failed to object to trial counsel’s “clearly
improper” findings argument. As is evident, however,
the latter two arguments are outside the scope of the
granted issue.
In order to ensure that a claim of error lies within
the scope of an issue, an appellant must raise it with
a reasonable degree of specificity based on the wording
of that issue. Any notion that the phrase “inter alia”—
which Appellant inserted into the issue statement—
necessarily serves to later open the door to other,
unreferenced arguments is mistaken. And in the
instant case, there is no reason for this Court to
1 I adopt the facts as laid out by the majority opinion.
21a
exercise its discretion and consider the additional two
arguments raised by Appellant. See, e.g., United
States v. Pyron, 83 M.J. 59, 63 n.2 (C.A.A.F. 2023)
(declining to “weigh in on [a] matter” outside of the
scope of the granted issue). Accordingly, only
Appellant’s argument pertaining to the effect his prior
guilty pleas had on the contested charges merits our
review.
Upon engaging in an analysis of the issue
presented, a preliminary point must be addressed.
Specifically, the language of Issue I asserts that trial
defense counsel allowed the military judge to
“consider” Appellant’s prior guilty pleas. However,
during the exchange between civilian defense counsel
and the military judge, the issue was whether the
military judge—in his role as the factfinder for the
contested charges—should be deemed “aware of” the
prior guilty pleas:
[Military Trial Judge (MJ2)]: But you had
mentioned in your opening statement about the
mixed pleas, the guilty pleas, and one of the
questions I was going to ask you, regardless of
that, is your position—from the defense team—
on consideration, or the fact-finder being aware
that there has been previous guilty pleas? . . .
[Civilian Defense Counsel (CivDC1)]: . . . I
wasn’t necessarily asking you to, as the
factfinder, to necessarily consider that mixed
plea. . . .
....
MJ2: So we’re operating in a world where
I’m aware of the previous guilty pleas?
CivDC1: Of course, sir; yes.
22a
MJ2: . . . [E]ven as the factfinder. . . .
....
MJ2: . . . I’m aware of it.
(Emphasis added.) This point is not a mere matter
of technical precision. If the military judge had used
the word “consider,” Appellant perhaps would have a
stronger argument that civilian trial counsel was
authorizing—and even encouraging—the military
judge to use the facts elicited during the providence
inquiry when deciding whether the elements of the
contested offenses had been met. That approach
would be a matter of grave concern. Compare United
States v. Flores, 69 M.J. 366, 368 (C.A.A.F. 2011) (“[A]
military judge who has advised an accused that she is
waiving her right against self-incrimination only to
those offenses to which she is pleading guilty cannot
later rely on those statements as proof of a separate
offense.”), with United States v. Kaiser, 58 M.J. 146,
148-49 (C.A.A.F. 2003) (stating the factfinder should
not be notified of an accused’s guilty pleas “[i]n the
absence of a specific request by the accused”), and
United States v. Rivera, 23 M.J. 89, 96 (C.M.A. 1986)
(same), and R.C.M. 913(a) Discussion (2016 ed.)
(same).
I concede that this point is complicated by the
DuBay2 military judge’s finding which conspicuously
uses the word “consider” rather than the phrase
“aware of.” But, as indicated above, the actual record
of trial is clear on this point and the contemporaneous
record is the preferred source for determining what
civilian defense counsel’s position was at the time of
United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411
(1967).
2
23a
trial and what the military judge’s state of mind was
at the time of findings. Moreover, the United States
Air Force Court of Criminal Appeals (CCA) made a
finding that supersedes the finding of the DuBay
military judge. Namely, the CCA made a factual
finding that “the trial judge indicated that he would
be ‘aware’ of the guilty plea, not that he would
consider or use the guilty plea during his deliberations
on findings.” United States v. Leipart, No. ACM 39711,
Misc. Dkt. No. 2021-03, 2023 CCA LEXIS 39, at *34,
2023 WL 415990, at *11 (A.F. Ct. Crim. App. Jan. 26,
2023) (unpublished). This finding by the CCA is not
clearly erroneous and thus controls. See United States
v. Tollinchi, 54 M.J. 80, 82 (C.A.A.F. 2000) (“We will
not overturn findings of fact by a Court of Criminal
Appeals unless they are clearly erroneous or
unsupported by the record.”).
Turning to the gravamen of the granted issue, this
Court “recognize[s] that trial defense counsel’s
performance is presumed to be competent.” United
States v. Harpole, 77 M.J. 231, 237 (C.A.A.F. 2018).
An appellant may overcome this presumption if he
satisfies his burden by first demonstrating that his
allegation about his counsel’s conduct is accurate and,
if so, by then showing that “there [is no] reasonable
explanation for counsel’s actions” and these actions
“fall measurably below the performance . . . [ordinarily
expected] of fallible lawyers.” United States v. Gooch,
69 M.J. 353, 362 (C.A.A.F. 2011) (second and third
alterations in original) (internal quotation marks
omitted) (quoting United States v. Polk, 32 M.J. 150,
153 (C.M.A.1991)). For the reasons stated below, I
conclude that Appellant cannot succeed on his
ineffective assistance of counsel claim because there
was a “reasonable explanation” for counsel’s decision
24a
to make the military judge, as the factfinder, “aware
of” Appellant’s guilty pleas, such that the civilian
defense counsel’s performance was not deficient.
Therefore, no further analysis of this issue is required.
See United States v. Captain, 75 M.J. 99, 103 (C.A.A.F.
2016) (indicating that ineffective assistance of counsel
claims can be disposed of based on the deficient
performance prong).
At the outset of my analysis, I acknowledge that
civilian defense counsel (1) did not place specified
limitations on how the military judge should employ
his awareness of Appellant’s prior guilty pleas; (2)
conceded in his DuBay testimony that upon reflection
he “probably” would not have taken the same
approach; and (3) did not consult with other counsel—
or with Appellant—before asking the military judge to
be aware of the guilty pleas. However, these three
points do not warrant a finding of deficient
performance.
In regard to the first point, there is no indication
in the record that civilian defense counsel erroneously
intended for the military judge to consider Appellant’s
admissions during the providence inquiry as evidence
supporting an element of the contested charges.
Instead, counsel only asked the military judge to be
“aware of” Appellant’s guilty pleas. Importantly,
civilian defense counsel had no reason to believe that
the military judge would use his “awareness of” the
prior guilty pleas in an improper manner. Indeed, the
counsel knew that the military judge seemed
meticulously mindful of his distinct role during each
phase of the proceedings. Therefore, the civilian
defense counsel was not required to place specified
limitations on how the military judge should employ
his awareness of Appellant’s prior guilty pleas.
25a
In regard to the second point, the mere fact that
civilian defense counsel subsequently questioned
whether he should have taken this approach at trial
carries very little weight in an ineffective assistance
of counsel context. The full benefit of hindsight,
whereby counsel now knows that his trial strategy
was unsuccessful, can affect perceptions. See
Strickland v. Washington, 466 U.S. 668, 689 (1984)
(“A fair assessment of attorney performance requires
that every effort be made to eliminate the distorting
effects of hindsight, to reconstruct the circumstances
of counsel’s challenged conduct, and to evaluate the
conduct from counsel’s perspective at the time.”);
United States v. Mazza, 67 M.J. 470, 474 (C.A.A.F.
2009) (“We are not to assess counsel’s actions through
the distortion of hindsight . . . .”).
And in regard to the third point, there is some
indication in the record that the two civilian defense
counsel had at least briefly conferred about this
general topic. But regardless, Appellant has not cited
any statute or case law that requires one counsel who
is arguing a point to obtain the agreement of fellow
counsel about how best to proceed. Moreover,
Appellant cannot prevail solely because civilian
defense counsel failed to consult with Appellant
himself before counsel took the approach now at issue
in this appeal. Simply stated, Appellant’s
constitutional right to silence was not at issue in this
case. That is because civilian defense counsel did not
advocate for any statements made by Appellant
during the providence inquiry to be used against
Appellant as evidence of guilt. Moreover, there is no
evidence in the record that the military judge
improperly used these statements in that manner.
Therefore, the decision to pursue the “awareness
26a
approach” rested within the sound discretion of
defense counsel and Appellant’s acquiescence was not
required. See McCoy v. Louisiana, 584 U.S. 414, 422
(2018) (contrasting between the decisions that are
“the lawyer’s province” and those an accused must
personally make, including “whether to plead guilty,
waive the right to a jury trial, testify in one’s own
behalf, . . . forgo an appeal,” and “[a]utonomy to decide
that the objective of the defense is to assert
innocence”); see also Rivera, 23 M.J. at 96 (“[A]
military judge certainly should not presume that an
accused is willing to have this potentially damaging
information as to a guilty plea brought to the
members’ attention unless, in fact, the accused or his
counsel has given some specific indication to this
effect.” (emphasis added)).
The key question then is whether civilian defense
counsel had a reasonable explanation for his actions
at the time of trial such that counsel’s conduct was not
deficient. I conclude that he did. To begin with, the
record before us indicates that civilian defense counsel
concluded that this particular military judge would
properly handle his “awareness of” the prior guilty
pleas. Next, by acknowledging the obvious and being
reasonable in his approach, civilian defense counsel
wanted to cultivate “goodwill” with the military judge
which would redound to the benefit of his client. See
Rivera, 23 M.J. at 96 (discussing one rationale for an
accused to inform the factfinder of his guilty pleas was
to prevent the factfinder from feeling “duped”). And
finally, it was “reasonable” for civilian defense counsel
to take the tack of arguing that Appellant had
demonstrated through the prior guilty pleas that he
was willing to accept responsibility for those offenses
which he actually committed, and that he was
27a
pleading not guilty to the remaining offenses because
he was, in fact, innocent of those charges. See id. at
95-96 (discussing another rationale to inform the
factfinder of an accused’s guilty pleas as “counsel
wish[ing] to argue that the accused was perfectly
willing to plead guilty to the crimes of which he, in
fact, was guilty, but that he has pleaded not guilty to
the remaining charges because he is innocent
thereof”).
For all these reasons, I conclude that there was no
ineffective assistance of counsel in this case.
Issue II: Improper Argument
The second granted issue asks “[w]hether the trial
counsel’s ‘clear error’ in findings argument—
leveraging Appellant’s guilty plea to prove his guilt of
the litigated offenses—was harmless beyond a
reasonable doubt.” Leipart, 83 M.J. at 448. Consistent
with the phrasing of this issue statement, I conclude
that trial counsel did indeed commit clear error when
he used Appellant’s admissions during the providence
inquiry to argue that Appellant was guilty of the
contested charges.
Civilian defense counsel’s decision to have the
military judge be aware of the prior guilty pleas did
not extend to authorizing the military judge to use
those guilty pleas and related admissions as evidence
of Appellant’s guilt to the other offenses. And yet, trial
counsel argued during findings that “the
[G]overnment believes [the military judge should] use
[Appellant’s guilty pleas] in assessing [the victim’s]
credibility on the stand.”3 If the military judge had
3 For instance, trial counsel implicated Appellant’s guilty
pleas when counsel said that the military judge “kn[e]w for a fact
28a
used the guilty plea inquiry in this manner, it would
have violated Appellant’s presumption of innocence as
well as his Fifth Amendment right against selfincrimination. See Flores, 69 M.J. at 369-70 (To “later
rely on [the providence inquiry] statements as proof of
a separate offense . . . would compel an accused to
incriminate [himself] in the separate criminal
proceeding.” (citation omitted)); Kaiser, 58 M.J. at 150
(notifying the factfinder of guilty pleas “implicates the
presumption of innocence”). Thus, the trial counsel’s
conduct constituted “clear error.” See Flores, 69 M.J.
at 370 (stating that “the direct reference made by trial
counsel to a statement made by [the accused] at the
providence inquiry” was error that was “plain and
obvious”).
Because this type of error is of constitutional
magnitude, the Government bears the burden in the
plain error context of demonstrating that the error
was harmless beyond a reasonable doubt. See United
States v. Palacios Cueto, 82 M.J. 323, 334 (C.A.A.F.
2022) (citing United States v. Tovarchavez, 78 M.J.
458, 460 (C.A.A.F. 2019)).4 In evaluating prejudice,
this Court considers such factors as “ ‘(1) the severity
of the misconduct, (2) the measures adopted to cure
the misconduct, . . . (3) the weight of the evidence
supporting the conviction,’ ” Andrews, 77 M.J. at 402
[the victim was] telling the truth about X, Y, and Z. So that
increases her credibility automatically.” (Internal quotation
marks omitted.)
The Government argues that Tovarchavez should be
overruled. In my view, the Government did not meet its
“substantial burden of persuasion” to overrule this case because
it failed to evaluate each stare decisis factor. United States v.
Andrews, 77 M.J. 393, 399 (C.A.A.F. 2018) (citation omitted)
(internal quotation marks omitted).
4
29a
(quoting United States v. Fletcher, 62 M.J. 175, 184
(C.A.A.F. 2005)), and (4) “the lack of defense
objection,” United States v. Carpenter, 51 M.J. 393,
397 (C.A.A.F. 1999).
Although I view it as a close call, I conclude that
the Government has met its burden when evaluating
these factors. In terms of the first factor, I note that
trial counsel’s conduct was only moderately severe
because the reason for the erroneous reference to
Appellant’s guilty pleas originated from civilian
defense counsel’s request that the military judge be
“aware of” the pleas, which apparently was somewhat
confusing for all of the participants.5 In terms of the
5 The Government contends that this confusion invited trial
counsel’s response during findings argument such that there was
no plain error. Indeed, this Court has recognized: “[T]he
Government is permitted to make ‘a fair response’ to claims made
by the defense, even when a Fifth Amendment right is at stake.”
United States v. Gilley, 56 M.J. 113, 120 (C.A.A.F. 2001) (quoting
United States v. Robinson, 485 U.S. 25, 32 (1988)). “Under the
‘invited response’ or ‘invited reply’ doctrine, the prosecution is
not prohibited from offering a comment that provides a fair
response to claims made by the defense.” United States v. Carter,
61 M.J. 30, 33 (C.A.A.F. 2005) (citations omitted); Gilley, 56 M.J.
at 121 (“In reviewing whether an appellant was deprived of a fair
trial by such comments, the question an appellate court must
resolve is whether, viewed within the context of the entire trial,
. . . defense counsel’s comments ‘clearly invited the reply.’”
(citation omitted)). Here, the Government claims that the
defense opened the door to trial counsel’s use of the providence
inquiry and guilty pleas by referring to them in the opening
statement, asking the military judge to be aware of them, and by
cross-examining the victim on her statements that formed the
basis for the guilty plea offenses in order to challenge her
credibility. Viewed in context, the Government contends that
trial counsel’s use of the providence inquiry statements and
guilty pleas to rehabilitate the victim’s credibility was a fair
response to the defense’s strategic use of the evidence. While the
30a
third factor, the evidence in support of the convictions
was not particularly compelling. See Leipart, 2023
CCA LEXIS 39, at *74, 2023 WL 415990, at *24
(stating “the evidence in favor of conviction was not
overwhelming”). Thus, this factor weighs in favor of
Appellant. And in terms of the fourth factor,
Appellant’s trial defense counsel did not object to trial
counsel’s erroneous argument, which “is ‘some
measure of the minimal impact’ of a prosecutor’s
improper comment.” Carpenter, 51 M.J. at 397
(quoting United States v. Nelson, 1 M.J. 235, 238 n.6
(C.M.A. 1975)).
The key to the resolution of this issue therefore lies
with the second factor. It must be noted, however, that
in military judge-alone trials, the question of whether
any measures were adopted to cure the misconduct
“adds little to the [prejudice] analysis.” United States
v. Erickson, 65 M.J. 221, 224 (C.A.A.F. 2007). Of
course, this Court has often stated that “[m]ilitary
judges are presumed to know the law[,] . . . to follow it
absent clear evidence to the contrary,” and “to
distinguish between proper and improper . . .
arguments.” Id. at 225. Nevertheless, the
presumption that a military judge knows the law is
not dispositive of the prejudice issue in a case such as
this one. Instead, the fact that there was a bench trial
merely serves as an additional point to weigh in the
course of assessing the issue of prejudice. See id. at
224-25.6
Government makes some strong points, I choose to resolve this
issue on other grounds.
6 In the court-martial panel context, there is a presumption
that members follow military judges’ instructions. United States
v. Norwood, 81 M.J. 12, 20 (C.A.A.F. 2021). Importantly,
31a
The record causes me to conclude that it is
appropriate in this case to invoke the presumption
that the military judge knew the law and followed it.
And as a result, I presume that the military judge was
able to distinguish between proper and improper
argument here, and thus, contrary to trial counsel’s
clearly erroneous argument, did not use Appellant’s
statements during the providence inquiry as evidence
to prove any element of the contested offenses. See id.
at 225.
In support of this position, I note that the military
judge made it repeatedly clear on the record that he
was only going to deem himself “aware of” the prior
guilty pleas. He never said that he would “consider”
those pleas in the course of the contested proceedings.
Further, there is no evidence in the record that the
military judge was confused or mistaken about the
practical application of Appellant’s Fifth Amendment
rights in this context. And finally, the fact that the
military judge found Appellant not guilty of certain
offenses demonstrates that he did not adopt the trial
counsel’s expansive argument that because
Appellant’s own words during the providence inquiry
however, this Court has acknowledged that a trial counsel’s
conduct may be “so prejudicial that the curative instructions
were inadequate.” United States v. Short, 77 M.J. 148, 151
(C.A.A.F. 2018); see also Donnelly v. DeChristoforo, 416 U.S. 637,
644 (1974) (observing that “some occurrences at trial may be too
clearly prejudicial for such a curative instruction to mitigate
their effect”); United States v. Crutchfield, 26 F.3d 1098, 1103
(11th Cir. 1994) (“When [prosecutorial misconduct] permeate[s]
a trial to such a degree as occurred in this case, we do not believe
that instructions from the bench are sufficient to offset the
certain prejudicial effect suffered by the accused.”). As Erickson,
65 M.J. at 224, demonstrates, this same exception applies to the
presumption that miliary judges follow the law.
32a
verified the victim’s credibility, the victim must
automatically be believed in regard to all of her
allegations. See United States v. Sewell, 76 M.J. 14, 19
(C.A.A.F. 2017) (“The panel’s mixed findings further
reassure us that the members weighed the evidence
at trial and independently assessed Appellant’s guilt
without regard to trial counsel’s arguments.”).
When weighing these various factors for
evaluating prejudice, the presumption that the
military judge knew and applied the law tips the scale
in the Government’s favor. Accordingly, I conclude
that the Government has demonstrated that the trial
counsel’s clear error during findings argument was
harmless beyond a reasonable doubt.
Conclusion
As the discussion above demonstrates, I believe
that Appellant cannot prevail on either of the granted
issues, and therefore I would affirm the decision of the
United States Air Force Court of Criminal Appeals.
Because the majority opinion reaches the same result,
I concur in the judgment.
33a
UNITED STATES AIR FORCE COURT OF
CRIMINAL APPEALS
________________________
No. ACM 39711
Misc. Dkt. No. 2021-03
________________________
UNITED STATES
Appellee
v.
Matthew P. LEIPART
Technical Sergeant (E-6), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial
Judiciary
Review for Petition for New Trial Pursuant to Article
73, UCMJ
Decided 26 January 2023
________________________
Military Judge: Jefferson B. Brown (arraignment and
motions hearing); Joseph S. Imburgia (trial);
Christina M. Jimenez (DuBay hearing).
Approved
sentence:
Dishonorable
discharge,
confinement for 21 years, forfeiture of all pay and
allowances, reduction to E-1, and a reprimand.
Sentence adjudged 29 November 2018 by GCM
convened at Whiteman Air Force Base, Missouri.
34a
For Appellant: Major David L. Bosner, USAF; Mark
C. Bruegger, Esquire; Andrew Cherkasky, Esquire;
Catherine M. Cherkasky, Esquire.
For Appellee: Lieutenant Colonel Thomas J. Alford,
USAF; Lieutenant Colonel Charles B. Dunn, USAF;
Lieutenant Colonel Matthew J. Neil, USAF;
Lieutenant Colonel Dayle P. Percle, USAF; Major
John P. Patera, USAF; Major Brittany M. Speirs,
USAF; Mary Ellen Payne, Esquire.
Before JOHNSON, POSCH,
Appellate Military Judges.
and
CADOTTE,
Chief Judge JOHNSON delivered the opinion of the
court, in which Senior Judge POSCH joined. Judge
CADOTTE filed a separate dissenting opinion.
________________________
This is an unpublished opinion and, as such,
does not serve as precedent under AFCCA Rule
of Practice and Procedure 30.4.
________________________
JOHNSON, Chief Judge:
A general court-martial composed of a military
judge alone found Appellant1 guilty, in accordance
with his pleas, of one specification of aggravated
assault, two specifications of assault consummated by
a battery, and two specifications of wrongfully
1 The Appellant in United States v. Leipart, ACM No. 39711, also
has a petition for a new trial before this court, United States v.
Leipart, Misc. Dkt. No. 2021-03. The two matters are
substantially intertwined, and we address them together in this
opinion. For simplicity, we will refer to Appellant/Petitioner as
“Appellant.”
35a
communicating threats in violation of Articles 128 and
134, Uniform Code of Military Justice (UCMJ), 10
U.S.C. §§ 928, 934.2,3 Contrary to Appellant’s pleas,
the military judge found Appellant guilty of two
specifications of sexual assault in violation of Article
120, UCMJ, 10 U.S.C. § 920.4 The military judge
sentenced Appellant to a dishonorable discharge,
confinement for 21 years, forfeiture of all pay and
allowances, reduction to the grade of E-1, and a
reprimand. The convening authority approved the
adjudged sentence.
Appellant initially raised nine issues on appeal: (1)
whether his convictions for sexual assault are legally
and factually sufficient; (2) whether trial counsel’s
closing argument improperly shifted the burden of
proof; (3) whether Appellant’s sentence is
inappropriately severe; (4) whether the provision of an
erroneous personal data sheet to the convening
authority warrants a new opportunity for Appellant to
request clemency; (5) whether Appellant is entitled to
sentence relief due to unreasonable post-trial delay;
2 Unless otherwise indicated, all references to the UCMJ and
Rules for Courts-Martial are to the Manual for Courts-Martial,
United States (2016 ed.).
3 Appellant was charged with two specifications of wrongfully
communicating threats on divers occasions. Appellant pleaded
guilty to one of these specifications as charged, but excepted the
words “on divers occasions” from his guilty plea to the other
specification and pleaded not guilty to the excepted language.
The Government did not attempt to prove the excepted language.
The military judge found Appellant guilty in accordance with his
pleas and not guilty of the excepted language.
4 The military judge found Appellant not guilty of three other
specifications of sexual assault and one specification of
wrongfully communicating a threat.
36a
(6) whether Appellant’s guilty pleas were involuntary;
(7) whether Appellant’s sentence is inappropriately
severe in comparison to closely related cases; (8)
whether Appellant received ineffective assistance of
counsel in several respects; and (9) whether
Appellant’s mandatory dishonorable discharge is
unconstitutional.5 While Appellant’s case was pending
review at this court, Appellant submitted a petition
for a new trial pursuant to Article 73, UCMJ, 10
U.S.C. § 873, on the grounds of newly discovered
evidence and that the named victim, KC, committed
fraud on the court-martial.
This court returned the record to The Judge
Advocate General and ordered a post-trial hearing in
accordance with United States v. DuBay, 37 C.M.R.
411, 413 (C.M.A. 1967) (per curiam), to answer a
number of specified questions. See United States v.
Leipart, No. ACM 39711, Misc. Dkt. No. 2021-03, 2021
CCA LEXIS 595 (A.F. Ct. Crim. App. 14 Jun. 2021)
(order). After some delay, the hearing was held at Fort
Leavenworth, Kansas, and the record—including the
transcript and exhibits from the DuBay proceedings—
was returned to this court. Appellant subsequently
asserted nine additional assignments of error arising
from the DuBay hearing: (10) and (11) address
whether the military judge at the DuBay hearing
(DuBay judge) erred in her findings of fact in two
respects; (12) whether trial defense counsel were
ineffective in allowing the military judge who presided
at the trial (trial judge) to “consider” Appellant’s
guilty plea for purposes of findings; (13) whether the
DuBay judge erred by failing to disclose her
5 Appellant personally raised issues (6), (7), (8), and (9) pursuant
to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
37a
participation in an upcoming “high profile case” in
which one of the trial defense counsel was also
involved; (14) whether the Government committed a
prejudicial discovery violation; (15) whether
Appellant was denied the right to due process because
military courts lack subpoena power in Australia; (16)
whether trial defense counsel were ineffective in
failing to impeach KC’s credibility; (17) whether KC’s
lack of credibility in her testimony at the DuBay
hearing demonstrates Appellant’s convictions for
sexual assault were legally and factually insufficient;
and (18) whether Appellant is entitled to relief for
unreasonable appellate delay arising from the DuBay
hearing.6 Appellant subsequently moved to submit a
further assignment of error, which this court allowed
over the Government’s opposition: (19) whether
Appellant was deprived of the right to a unanimous
verdict guaranteed by the Sixth Amendment,7 the
Fifth Amendment’s8 Due Process Clause, and the
Fifth Amendment right to equal protection.9
We have carefully considered issues (4), (9), (13),
(14), (15), and (19) and find they do not require
discussion or warrant relief. See United States v.
Matias, 25 M.J. 356, 361 (C.M.A. 1987). With regard
to the remaining assignments of error and the petition
for a new trial, we have consolidated our analysis of
several separately raised but closely related issues in
We have renumbered these additional issues for clarity.
Appellant personally raised issues (13), (14), (15), (16), (17), and
(18) pursuant to Grostefon, 12 M.J. at 431.
6
7 U.S. CONST. amend. VI.
8 U.S. CONST. amend. V.
9 We have renumbered this issue, which Appellant personally
raised pursuant to Grostefon, 12 M.J. at 431.
38a
our opinion below. We find no error materially
prejudicial to Appellant’s substantial rights and a new
trial is not warranted, and we affirm the findings and
sentence.
I. BACKGROUND
A. Events in Missouri
In January 2016, KC—an Australian citizen and
lawyer who lived in the vicinity of Perth, Australia—
met Appellant through an online dating website. At
the time, KC was separated from her then-husband
JH, also an Australian lawyer, and was in the process
of obtaining a divorce. Appellant was a divorced father
of three stationed at Whiteman Air Force Base (AFB),
Missouri.
KC
and
Appellant
soon
began
communicating daily. In March 2016, KC traveled to
the United States to meet Appellant and stayed with
him at his home in Sedalia, Missouri, for “two to three
weeks.” KC then returned to Perth; soon after she left
Missouri, KC discovered she had become pregnant.
KC informed Appellant of her pregnancy and they
made plans to become a family. KC returned to
Missouri in May 2016 and stayed until approximately
July 2016 before she returned to Australia prior to the
expiration of her visa. KC returned to Missouri in
August 2016 to stay with Appellant again and
remained until December 2016. KC and Appellant
were married in Missouri in September 2016, and
their son ML was born prematurely in Missouri in
November 2016. KC returned to Australia with ML in
December 2016; Appellant accompanied them to
Australia and remained there for approximately two
weeks before he returned to Missouri.
At Appellant’s trial, KC described four alleged
instances of sexual assault that Appellant committed
39a
against her in 2016 while she was in Missouri. KC
testified the first of these instances occurred during
her second stay in Missouri between May and July
2016. KC testified that as she was preparing to get
dressed after a shower, Appellant sexually assaulted
her in his bedroom by penetrating her vagina with his
penis without her consent. The trial judge found
Appellant not guilty of this alleged sexual assault.
KC described a second alleged sexual assault that
occurred in August or September 2016. KC testified
that as she and Appellant were in his bedroom and
preparing to go out, Appellant began grabbing her
breasts. Appellant then pushed her face-down onto
the bed. Despite KC repeatedly telling him “no” and
crying, Appellant penetrated her vagina with his
penis without her consent. KC testified that although
the sexual assault was very painful, afterwards she
“pretended like it didn’t happen,” and they went out
together as planned. The trial judge found Appellant
guilty of this sexual assault.
KC described a third alleged sexual assault that
occurred in September or October of 2016. KC testified
she was in the kitchen in Appellant’s home when
Appellant entered the room and abruptly “shoved”
three of his fingers in her vagina. KC asked Appellant
what he was doing, and Appellant stopped and walked
away. The trial judge found Appellant not guilty of
this alleged sexual assault.
KC testified a fourth alleged sexual assault
occurred in approximately October 2016. KC and
Appellant had gone to a medical appointment to check
on the progress of KC’s pregnancy. When they
returned to Appellant’s home, Appellant pushed her
onto the bed. KC, who felt sore in her vaginal area
40a
after the appointment, protested and told Appellant
“no.” According to KC, Appellant responded to the
effect that he was “entitled to have sex with [her]”
because she was his wife. Appellant then pulled KC’s
pants off, pushed her on her back, held her legs up,
and penetrated her vagina with his penis. KC testified
that, despite the fact KC was crying and told
Appellant to stop and that he was hurting her,
Appellant “went quite hard and fast, until he
ejaculated.” Afterward, KC experienced bleeding from
her vagina. The trial judge found Appellant guilty of
this sexual assault.
B. Events in Australia
KC did not report these alleged sexual assaults to
anyone before she returned to Australia in December
2016. Despite these incidents, KC had a general plan
with Appellant to remain married and eventually
reunite as a family. However, according to KC their
relationship worsened as 2017 progressed. KC had
stopped working as an attorney in May 2016 after she
became pregnant. KC had paid for her own airline
tickets to and from the United States, but when she
returned to Australia she was largely dependent on
her mother and public assistance for support.
Appellant sent KC significant amounts of money to
help support her and their son ML, but over time
Appellant became increasingly resentful of how KC
used the money. In addition, according to Appellant’s
statements during his guilty plea inquiry, he became
suspicious that KC was “cheating” on him and that
she wanted to end the marriage.
Appellant returned to Australia in May 2017 and
stayed with KC and KC’s mother for approximately
three weeks. It was during this general time frame
41a
that the assaults and most of the wrongful threats to
which Appellant pleaded guilty occurred. KC secretly
made audio recordings of several incidents during
which Appellant was verbally or physically abusive
toward her. Later at Appellant’s court-martial, during
the trial judge’s guilty plea inquiry, Appellant
admitted that while he was with KC in Australia, he
threatened her more than 20 times, including threats
to kill her, “choke” her, and break her bones.
Appellant also threatened KC with violence if she did
not repay him the money he had given her. Appellant
also acknowledged a separately charged threat that
occurred by phone just before he traveled to Australia
in May 2017; he admitted on that occasion he told KC,
“[f]or all I know you’re f[**]king screwing around, and
messaging other people, that’s why, [KC], when I get
out there, I’m going to disfigure you, so that nobody
wants you.” Appellant admitted to the trial judge that
by “disfigure” he meant to damage KC’s physical
appearance “so no guy ever wants [her and] so she
can’t have any more children.” Appellant also
admitted to “choking”10 KC in Australia by putting his
hand and his arm around her neck on two separate
occasions, and to striking KC in the head as they were
traveling together in a car. In addition, on one
10 Appellant was charged with, pleaded guilty to, and described
to the military judge “unlawfully grab[bing] and chok[ing] [KC]
with his hand and his arm” on “divers occasions.” Counsel for the
parties informed the military judge they agreed the specification
covered two such incidents, one during which Appellant put his
hand around KC’s neck and one during which he put his arm
around her neck. We note Appellant’s actions might be more
aptly described as “strangling” KC rather than “choking” her;
nevertheless, we find Appellant’s guilty plea was provident and
his convictions for assaulting KC with his hand and arm legally
sufficient.
42a
occasion in Australia Appellant held the point of a
screwdriver to KC’s neck as he was “yelling” at her
that “she better tell [him] everything . . . that she did
[wrong] to [him] during the relationship.”
At trial, KC testified that Appellant attempted to
sexually assault her in Australia in May 2017. KC
described being with Appellant in a bedroom in her
mother’s home in Perth when he pushed her onto the
bed and attempted to pull her pants down. KC resisted
by holding her pants up and telling him “no.”
According to KC, on this occasion Appellant desisted
before he removed her pants; she thought this might
have been because Appellant heard KC’s mother in
the adjoining room. The trial judge granted a defense
motion for a finding of not guilty pursuant to Rule for
Courts-Martial (R.C.M.) 917 with respect to the
charged sexual assault, and the trial judge entered a
finding of not guilty with respect to the lesser included
offense of attempted sexual assault in violation of
Article 80, UCMJ, 10 U.S.C. § 880.
After Appellant returned to Missouri, he and KC
continued to argue about money and other topics.
However, KC also sent Appellant “naked” images of
herself and text messages that were complimentary of
Appellant; KC later explained at trial she did so
because Appellant instructed her to. At some point
between May and July 2017, KC decided to divorce
Appellant. On 31 July 2017, KC informed Appellant
that she wanted full custody of ML and offered to
forego any financial support from Appellant if he
would relinquish his “rights.” Appellant did not accept
this proposal and accused KC of “kidnapping” ML.
The following day, 1 August 2017, KC went to the
Australian police with her mother and reported that
43a
Appellant had threatened and assaulted her in the
past, and that she was afraid he would return to
Australia to harm her because he had threatened to
do so. KC described threats and physical assaults by
Appellant between May and July 2017, but she did not
report any sexual assaults or attempted sexual
assaults at that time.
C. Investigation and Court-Martial
After KC made her initial report to the Australian
police, in August 2017 KC’s mother used the
Whiteman AFB public website to send a message to
the Air Force public affairs office to report Appellant
had physically assaulted KC in Australia. Public
affairs referred the report to security forces. As a
result, Investigator JM with security forces
interviewed KC by telephone in August 2017.11 The
purpose of the interview was to gather more
information about the physical assault KC’s mother
had reported. KC did not inform Investigator JM of
any sexual assault or attempted sexual assault during
the 15 August 2017 interview.
Although the exact circumstances are not clear
from the evidence at trial, at some point the Air Force
Office of Special Investigations (AFOSI) became
involved in the investigation of Appellant. KC
provided the AFOSI several recordings she had made
of Appellant threatening or assaulting her. In
September 2017, AFOSI agents at Whiteman AFB
interviewed KC in Australia by a recorded video call.
Prompted by comments Appellant made in one of the
audio recordings KC had provided, approximately 40
11 At the time of Appellant’s trial, Investigator JM had separated
from the Air Force and was employed as a civilian police officer.
44a
minutes into the interview Special Agent (SA) TK
asked a question to the effect of whether Appellant
had committed any sexual offense against KC. KC
responded that the Australian police had not asked
her that directly, and estimated there were
approximately ten occasions when KC did not want to
have sexual intercourse and Appellant had “just done
it.” She told SA TK she could not specifically recall
every instance, but she generally described the May
2017 incident in Australia, described above, and four
other occasions in Missouri. At the conclusion of the
interview KC agreed to prepare a written statement
for the AFOSI. KC eventually provided a signed,
sworn statement dated 3 January 2018.
On 30 March 2018, the convening authority
referred the charges and specifications for trial by
general court-martial. An arraignment and
preliminary motions hearing was held on 2 July 2018,
and Appellant’s trial and sentencing took place 27–29
November 2018.
D. Proceedings in Australia Related to KC’s
Practice of Law
Throughout her relationship with Appellant, KC
had been undergoing scrutiny by the Western
Australia Legal Profession Complaints Committee
(LPCC) regarding three matters related to her
practice of law. Two of these matters related to
complaints from former clients regarding KC’s
representation as a criminal defense attorney
between 2013 and 2015. The third related to KC’s
involvement with a former police detective, CC, who
had unlawfully accessed confidential police records to
provide information to KC between 2008 and 2013. CC
was investigated by a body known as the Corruption
45a
and Crime Commission (CCC). As a result of the CCC
investigation, in July 2015, CC was sentenced to nine
months in confinement pursuant to a guilty plea.
Although KC provided testimony and documents
during the investigation of CC, KC herself was not
charged nor the subject of a criminal investigation.
On 9 December 2015, an LPCC complaints officer
notified KC by letter that she would be investigated
for her conduct related to CC’s unlawful access of
restricted information. As noted above, KC ceased
practicing law after she became pregnant, but
retained her status as an attorney. The LPCC
completed its investigations of KC by September 2017
and referred the matters to an administrative
proceeding known as the State Administrative
Tribunal (SAT). The SAT formally initiated
proceedings in May 2018. On 6 September 2018, KC
participated in mediation with the LPCC in an
attempt to resolve the matters pending before the
SAT. As a result, KC and the LPCC reached an
agreement that KC would not seek to renew her local
practicing certificate before 30 June 2019. However,
the substantive proceedings before the SAT remained
open at that time and were still open at the time of
Appellant’s trial in late November 2018.
Relevant post-trial developments with respect to
the SAT proceedings are described below in additional
background related to Appellant’s petition for a new
trial.
46a
II. DISCUSSION
A. Legal and Factual Sufficiency of Sexual
Assault Convictions
1. Law
We review issues of legal and factual sufficiency de
novo. United States v. Washington, 57 M.J. 394, 399
(C.A.A.F. 2002) (citation omitted). “Our assessment of
legal and factual sufficiency is limited to the evidence
produced at trial.” United States v. Rodela, 82 M.J.
521, 525 (A.F. Ct. Crim. App. 2021) (citation omitted),
rev. denied, 82 M.J. 312 (C.A.A.F. 2022).
“The test for legal sufficiency is whether, after
viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a
reasonable doubt.” United States v. Robinson, 77 M.J.
294, 297–98 (C.A.A.F. 2018) (internal quotation
marks and citation omitted). “[T]he term ‘reasonable
doubt’ does not mean that the evidence must be free
from any conflict . . . .” United States v. King, 78 M.J.
218, 221 (C.A.A.F. 2019) (citation omitted). Moreover,
“an accused can properly be convicted of a sexual
offense on the word of a single victim alone.” United
States v. Prasad, 80 M.J. 23, 31 (C.A.A.F. 2020). “[I]n
resolving questions of legal sufficiency, we are bound
to draw every reasonable inference from the evidence
of record in favor of the prosecution.” United States v.
Barner, 56 M.J. 131, 134 (C.A.A.F. 2001) (citations
omitted). Thus, “[t]he standard for legal sufficiency
involves a very low threshold to sustain a conviction.”
King, 78 M.J. at 221 (alteration in original) (citation
omitted).
“The test for factual sufficiency is ‘whether, after
weighing the evidence in the record of trial and
47a
making allowances for not having personally observed
the witnesses, [we are] convinced of the [appellant]’s
guilt beyond a reasonable doubt.’” Rodela, 82 M.J. at
525 (second alteration in original) (quoting United
States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987)). “In
conducting this unique appellate role, we take ‘a fresh,
impartial look at the evidence,’ applying ‘neither a
presumption of innocence nor a presumption of guilt’
to ‘make [our] own independent determination as to
whether the evidence constitutes proof of each
required element beyond a reasonable doubt.’” United
States v. Wheeler, 76 M.J. 564, 568 (A.F. Ct. Crim.
App. 2017) (alteration in original) (quoting
Washington, 57 M.J. at 399), aff’d, 77 M.J. 289
(C.A.A.F. 2018).
Appellant’s convictions for sexual assault in
violation of Article 120, UCMJ, required the
Government to prove: (1) that at or near the locations
alleged, on or about the dates alleged, Appellant
committed a sexual act upon KC by penetrating her
vulva with his penis; and (2) that Appellant did so by
causing bodily harm, to wit: penetrating KC’s vulva
with his penis without her consent. See Manual for
Courts-Martial, United States (2016 ed.), pt. IV, ¶
45.b.(3)(b). “‘[B]odily harm’ means any offensive
touching of another, however slight, including any
nonconsensual sexual act . . . .” Article 120(g)(3),
UCMJ, 10 U.S.C. § 920(g)(3).
2. Analysis
The Government introduced sufficient evidence for
a rational factfinder to find Appellant guilty beyond a
reasonable doubt of both sexual assaults of which he
was convicted. With regard to the August/September
2016 incident in Appellant’s bedroom, KC testified she
was getting dressed as they prepared to go out
48a
together when Appellant began grabbing her breasts.
Appellant then pushed her onto the bed face-down.
KC did not want to engage in sexual intercourse, and
when she protested Appellant became “angry” and
pushed her face into the bed. Despite KC repeatedly
telling Appellant “no” and crying “hard,” Appellant
penetrated her vagina with his penis until he
ejaculated. With regard to the October 2016 incident,
KC testified she and Appellant returned to
Appellant’s house from a medical appointment when
he pushed her onto the bed. When KC asked Appellant
what he was doing and told him “no,” Appellant
responded to the effect that he was “entitled” and it
was his “right” to have sex with her. Appellant pulled
her pants off, pushed her legs up, and penetrated her
vagina with his penis “quite hard and fast.” KC
testified it was “quite painful,” and she cried, told
Appellant he was hurting her, and asked him to stop.
However, Appellant continued until he ejaculated.
Based on KC’s testimony, the trial judge could find
beyond a reasonable doubt on each occasion Appellant
penetrated KC’s vulva with his penis by causing
bodily harm, specifically by penetrating her vulva
without her consent.
As at trial, Appellant raises several arguments as
to why KC’s testimony regarding the sexual assaults
was not credible. We address the most significant of
these in turn.
a. KC’s Delayed Reporting of the Sexual
Assaults
First, Appellant notes that during KC’s first two
reports to law enforcement—to the Australian police
and to Investigator JM—she did not allege Appellant
sexually assaulted her. It was not until during the
49a
AFOSI interview when SA TK specifically asked KC
about possible sexual offenses that KC reported
sexual assaults. As at trial, Appellant puts particular
emphasis on Defense Exhibit A, a printed “Detected
Incidents Report” created by the Western Australia
Police during or after her report to them on 1 August
2017. The report has a number of fields for data entry,
including a field titled “Account” where KC and
Appellant’s relationship is summarized and which
includes allegations of verbal and physical abuse and
threats by Appellant against KC. Other fields on the
form reflected that KC reported being afraid
Appellant would kill or injure her, and that she and
Appellant had been separated for two months.
However, a field titled “Sexualised Behaviour”
contains a “No” response to the question, “Does the
Perpetrator do/say/threaten things of a sexual nature
that makes the Victim feel bad or physically hurts the
Victim in some way?” Appellant contends this report
indicates KC not only did not report sexual assault to
the Australian police, but “likely” affirmatively denied
sexual assault.
However, a rational factfinder could reasonably
discount this argument. The trial judge could have
credited KC’s explanation that she did not report the
sexual offenses to law enforcement earlier because she
found it humiliating to talk about, and because the
motivation for her to go to the police was her fear for
her physical safety in light of Appellant’s recent
physical abuse in May 2017 and Appellant’s threats to
return to Australia to kill or injure her. Moreover, KC
explained that she considered the physical assaults—
particularly Appellant threatening her with a
screwdriver and holding it to her neck while he
interrogated her and demanded repayment of his
50a
money—to be Appellant’s most serious crime. The
trial judge may have further noted that when SA TK
sua sponte prompted KC regarding the possibility of
sexual assaults, KC was able to identify multiple
distinct instances on which Appellant allegedly
performed sexual acts on KC without her consent. The
Defense entered the video recording of KC’s AFOSI
interview in its entirety into evidence; we have
reviewed it and find KC’s statements therein to be
generally credible.
Furthermore, specifically with regard to the
“Detected Incidents Report,” the trial judge may have
reasonably credited KC’s testimony that the
Australian police did not directly ask her whether
Appellant had ever sexually assaulted her. The report
is not a statement per se; it was not created nor
signed, much less sworn to, by KC. Essentially it
appears to be an electronic form filled in by a police
officer based on the information KC provided; thus,
the trial judge could reasonably conclude the
“Sexualised Behaviour” field was marked “No”
because KC simply had not reported such information
on that occasion, not because she affirmatively denied
it. Moreover, even if the trial judge believed it was
possible KC actually denied sexual offenses on that
occasion, he might reasonably conclude such a denial
at that point did not materially undermine the
credibility of her trial testimony in light of the totality
of the evidence and circumstances.
b. Motive to Fabricate
Appellant contends the child custody dispute over
ML that had developed by the end of July 2017
provided KC a strong motive to fabricate the sexual
assault allegations. As described above, by that point
51a
KC had informed Appellant she wanted a divorce and
offered to relinquish any claim to financial support
provided Appellant surrender his “rights” regarding
ML; for his part, Appellant accused KC of
“kidnapping” their son. However, a rational factfinder
might have found the manner in which the sexual
assault allegations emerged undermined this defense
argument. KC did not initially accuse Appellant of any
sexual offense. Instead, she reported his threats and
physical assaults which caused her to fear for her
safety, and of which she had audio-recorded evidence.
The sexual assault allegations emerged during her
interview with AFOSI only because SA TK specifically
asked KC about any sexual offenses after SA TK
heard Appellant refer to having forced himself on KC
in one of the audio recordings. The trial judge could
reasonably conclude these circumstances indicated it
was not KC’s plan to use false allegations of sexual
assault in any child custody dispute.
c. KC’s Continuation of the Relationship
Appellant contends it is not credible that KC would
have paid thousands of dollars to return to the United
States and paid for Appellant to travel to Australia
with her and ML if, as she testified, Appellant began
sexually assaulting her during her second trip to
Missouri from May to July 2016. However, in general,
a rational factfinder—applying their common sense
and knowledge of the ways of the world—could
reasonably conclude KC’s decision to continue her
relationship with Appellant despite occasional
instances of sexual abuse by her intimate
partner/spouse was believable. KC testified that in the
early stages of their relationship and marriage
Appellant was not always abusive toward her, and
that she preferred to act as though the sexual assaults
52a
had not occurred because she wanted to form a family
with Appellant and ML.
Similarly, the trial judge could reasonably
conclude KC’s acknowledgment that she sent
Appellant complimentary messages and “naked”
images of herself in June 2017 after Appellant had
returned to the United States did not materially
undermine her testimony regarding the sexual
assaults. KC explained that she sent these messages
and images because Appellant instructed her to do so,
because he said it was “what a good wife would do.”
The trial judge could reasonably credit KC’s
explanation and discount these communications,
which came after Appellant’s physical assaults in May
2017 and amidst ongoing threats from Appellant.
d. Inability to Specify Dates
Appellant contends KC’s inability to identify
specific dates on which the alleged sexual assaults
occurred undermines her credibility. Although KC
could offer only a general time frame for when each
assault occurred, in her descriptions she associated
each assault with particular circumstances—such as
getting dressed in preparation for going out together,
or having just returned from a medical appointment,
or being in an advanced stage of pregnancy which
made the penetration particularly awkward and
painful. A rational factfinder could conclude that KC,
who was intent on continuing the relationship despite
the sexual assaults, would not have made any effort to
memorialize them. Instead, the trial judge could
reasonably have found persuasive KC’s ability to
recall the circumstances of each incident rather than
recite specific dates.
53a
3. Conclusion as to Legal and Factual
Sufficiency
Having given full consideration to these and other
arguments raised by Appellant, and drawing every
reasonable inference from the evidence of record in
favor of the Government, we conclude the evidence
was legally sufficient to support Appellant’s sexual
assault convictions. Additionally, having weighed the
evidence in the record of trial, and having made
allowances for the fact that the trial judge personally
observed the witnesses and we did not, we also find
the evidence factually sufficient.
B. Ineffective Assistance of Counsel
Appellant contends his trial defense counsel were
ineffective in multiple respects, including: (1) allowing
the military judge to “consider” Appellant’s guilty
pleas with regard to the litigated sexual assault
specifications; (2) failing to use certain electronic
media to impeach KC’s trial testimony; and (3) failing
to use the 9 December 2015 letter from the LPCC
complaints officer to KC to impeach KC’s trial
testimony.12,13 We address each contention below.
12 Appellant also asserts trial defense counsel were ineffective for
failing to interview certain potential witnesses. Trial defense
counsel responded to these assertions in their declarations and
their DuBay hearing testimony. We find this particular assertion
of ineffective assistance does not require discussion or warrant
relief. See Matias, 25 M.J. at 361. To the extent Appellant’s
declaration also suggests trial defense counsel rendered
ineffective assistance in advising him to plead guilty to the
Article 128 and 134, UCMJ, offenses, we similarly find this
contention does not require discussion or relief. See id.
With the exception of the trial judge’s consideration of
Appellant’s guilty pleas, Appellant personally asserts these
13
54a
1. Additional Background
a. Trial Judge’s Awareness of Guilty Plea
As noted above, Appellant pleaded guilty to one
specification of aggravated assault against KC, two
specifications of assault consummated by a battery
against KC, and two specifications of wrongfully
communicating threats to KC in violation of Articles
128 and 134, UCMJ. Before the trial judge inquired
into the providence of Appellant’s guilty pleas, he
advised Appellant that by pleading guilty Appellant
would give up three important rights, including the
right against self-incrimination. However, the trial
judge further explained Appellant would give up these
rights “only with respect to those offenses to which
[Appellant] pled guilty. [Appellant] still ha[d] the
rights with respect to the other offenses.”
During the Defense’s opening statement, civilian
trial defense counsel (Mr. DC) at certain points briefly
referred to the fact that Appellant had entered “mixed
pleas” and the military judge had “already heard some
[information] from the [p]rovidence inquiry . . . .” After
Mr. DC concluded his opening statement, he had the
following colloquy with the trial judge:
[Trial Judge]: But you had mentioned in your
opening statement about the mixed pleas, the
guilty pleas, and one of the questions I was
going to ask you, regardless of that, is your
position -- from the defense team -- on
consideration, or the fact-finder being aware
that there has been previous guilty pleas? I
think your opening statement probably
ineffective assistance claims pursuant to Grostefon, 12 M.J. at
431.
55a
answered the question, because now you’ve
alerted to me in your opening statement. But, I
still want to give you the opportunity to bring
that up.
[Mr. DC]: Yeah, I think in a mixed plea in front
of a panel type fact-finder, sometimes we would
have the optionality of certainly disclosing to
the members the existence of the plea. I
thought that it was appropriate in the opening
statement here, because you’re going to hear
prior inconsistent statements in impeachment,
based on the 15 August statement to [sic] [KC].
And in that particular statement, the reference
in opening statement was, she talks about the
content of the mixed plea, but not these
additional charges and specifications. So to the
extent, I wasn’t necessarily asking you to, as the
fact-finder, to necessarily consider that mixed
plea. But, I was alerting you to the fact of what
you’re going to hear on the cross-examination, if
she made statements that are similar to that. I
hope that answers your question, sir.
[Trial Judge]: It does.
[Mr. DC]: I’m not trying to be nonresponsive.
[Trial Judge]: No, that’s responsive.
[Mr. DC]: Okay.
[Trial Judge]: That answers the question.
Anything else on that issue from you the
[G]overnment?
[Trial Counsel]: No, Your Honor, I was going to
ask the Court the same question, so thank you.
56a
[Trial Judge]: So we’re operating in a world
where I’m aware of the previous guilty plea?
[Mr. DC]: Of course, sir; yes.
[Trial Judge]: I mean, obviously I am as the
judge but even as the fact-finder now -[Mr. DC]: Yes, sir.
[Trial Judge]: -- I’m aware of it.
[Mr. DC]: Then obviously, I certainly appreciate
your thoroughness in compartmentalizing your
various functions here, but I agree that we’re in
that universe now.
(Emphasis added).
During trial counsel’s argument on findings he
noted, “The defense counsel asked you to operate in
this world where you know that [Appellant] pled
guilty to a number of offenses.” Trial counsel argued
this knowledge showed that KC had been truthful
when she alleged Appellant had assaulted and
threatened her. Trial counsel contended the
confirmation that KC had been truthful with respect
to these uncontested offenses tended to enhance her
credibility regarding the litigated sexual assault
specifications.14
As noted above, the military judge entered mixed
findings as to the litigated specifications, ultimately
finding Appellant guilty of two specifications of sexual
assault and acquitting him of three specifications of
sexual assault.
We describe trial counsel’s argument in more detail in our
analysis of the Government’s closing argument, infra.
14
57a
b. Digital Evidence in the Possession of the
Defense
On appeal, Appellant submitted a declaration to
this court in which he asserted, inter alia, trial
defense counsel failed to make effective use of certain
digital evidence to impeach KC’s testimony regarding
the alleged sexual assaults. Appellant stated that
before trial, at his own expense, he employed an
expert in digital forensics to extract “hundreds of
messages between himself and [KC], none of which
referenced sexual assault.” Appellant stated that he
provided trial defense counsel two disk drives each
containing many thousands of files related to such
messages.
Appellant stated the first drive contained
approximately 10,000 files including messages dated
after KC alleged Appellant had assaulted her. These
included messages stating that KC loved and missed
Appellant, and some contained “sexually charged”
language and pictures. According to Appellant, some
messages addressed finances and that Appellant
questioned how KC spent money he sent her.
Appellant further stated he had an email from KC to
CC, the former Australian police detective, in which
KC asked CC if it was “possible” for him to “grab” a
“police report form” for her. Appellant states trial
defense counsel “did not use hardly any” of the
material from this drive, although he also concedes
Mr. JC’s cross-examination of KC “utilized some of the
information from this drive.” Appellant attached to
his declaration a “sample” of the text messages, as
well as a copy of the email between KC and CC and a
copy of the 9 December 2015 letter from the LPCC
complaints officer to KC.
58a
Appellant asserted the second drive contained
approximately 20,000 files related to messages
between Appellant and KC “sent around [the time of]
the alleged incidents” of sexual assault. Appellant
asserted these messages included no allegations by
KC that Appellant had “forced her to do anything
against her will,” and instead included messages in
which KC was affectionate and called him a good
husband. Appellant contended there were also
messages discussing his “PTSD,” which Appellant
now considers evidence that KC was “probing [him]
for information.” Appellant asserted trial defense
counsel did not use any information from this drive.
He further contended they did not return the drive to
him and it is “apparently gone;” Appellant did not
attach any sample messages from this drive to his
declaration.
This court ordered responsive declarations from
Appellant’s three trial defense counsel, and received
such declarations from Mr. DC and Captain (Capt)
CB.15 In addition, all three trial defense counsel
testified at the DuBay hearing. Relevant portions of
their responses to Appellant’s claims of ineffective
assistance are discussed in our analysis below.
2. Law
The Sixth Amendment guarantees an accused the
right to effective assistance of counsel. United States
v. Gilley, 56 M.J. 113, 124 (C.A.A.F. 2001). In
assessing the effectiveness of counsel, we apply the
standard set out in Strickland v. Washington, 466
15 The DuBay hearing also explored the circumstances of Mr. JC’s
failure to respond to the court’s order, which are unnecessary to
describe for purposes of this opinion.
59a
U.S. 668, 687 (1984), and begin with the presumption
of competence announced in United States v. Cronic,
466 U.S. 648, 658 (1984). See Gilley, 56 M.J. at 124
(citation omitted). We will not second-guess
reasonable strategic or tactical decisions by trial
defense counsel. United States v. Mazza, 67 M.J. 470,
475 (C.A.A.F. 2009) (citation omitted). We review
allegations of ineffective assistance de novo. United
States v. Gooch, 69 M.J. 353, 362 (C.A.A.F. 2011)
(citing Mazza, 67 M.J. at 474).
We utilize the following three-part test to
determine whether the presumption of competence
has been overcome: (1) are the appellant’s allegations
true, and if so, “is there a reasonable explanation for
counsel’s actions;” (2) if the allegations are true, did
trial defense counsel’s level of advocacy “fall
measurably below the performance . . . [ordinarily
expected] of fallible lawyers;” and (3) if trial defense
counsel were ineffective, is there “a reasonable
probability that, absent the errors,” there would have
been a different result? Id. (alteration and omission in
original) (quoting United States v. Polk, 32 M.J. 150,
153 (C.M.A. 1991)).
The burden is on the appellant to demonstrate
both deficient performance and prejudice. United
States v. Datavs, 71 M.J. 420, 424 (C.A.A.F. 2012)
(citation omitted). “[C]ourts ‘must indulge a strong
presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance.’” Id.
(quoting Strickland, 466 U.S. at 689). With respect to
prejudice, a “reasonable probability” of a different
result is “a probability sufficient to undermine
confidence in the outcome” of the trial. Id. (quoting
Strickland, 466 U.S. at 694).
60a
In a court-martial where the accused has pleaded
guilty to some but not all of the charged offenses,
neither the guilty plea itself nor any related
statements as to one offense may be “admitted to
prove any element of a separate offense.” United
States v. Flores, 69 M.J. 366, 369 (C.A.A.F. 2011). A
military judge is “presumed to know the law and to
follow it absent clear evidence to the contrary.” United
States v. Erickson, 65 M.J. 221, 225 (C.A.A.F. 2007)
(citation omitted).
3. Analysis
a. Allowing the Trial Judge to be Aware of
the Guilty Pleas
Appellant asserts Mr. DC’s agreement to allow the
trial judge to “consider” his guilty pleas as the trier of
fact was “patently erroneous” and without any useful
purpose for the Defense. Moreover, Appellant
contends he was significantly prejudiced because the
guilty pleas corroborated KC’s allegations regarding
the Article 128 and 134, UCMJ, offenses, and thereby
tended to enhance KC’s credibility as to the litigated
specifications.
In his declaration Mr. DC stated:
There is no indication the Military Judge used
the providence inquiry for any improper basis.
I do not believe there was uncharged
misconduct in the providence inquiry. There
may have been alternative theories for the
admissibility of many aspects of the providence
inquiry. The purpose of the mixed plea was
because the evidence on those specifications
was uncontroverted and to obtain credibility
with the military judge. Permitting the judge to
consider [Appellant’s] testimony for any proper
61a
purpose he desired seemed in [Appellant’s] best
interest.
During the DuBay hearing, Mr. DC further explained
that based on prior experience he had “very positive
opinions” of the trial judge, he wanted to maintain
“credibility” with the trial judge, and he had no doubt
the trial judge would use the information
“appropriately.” However, Mr. DC agreed with
appellate defense counsel’s assertion that Mr. DC had
“allow[ed] the judge to consider that Care inquiry
[with] no limitations on how he is to consider that . . .
.” Mr. DC conceded that if he had the situation to do
over again, he “probably” would not make the same
decision. For his part, Capt CB stated that he was not
part of any prior discussion regarding the trial judge’s
awareness of the guilty plea, and that he was
“confused” by Mr. DC’s agreement to it because it
“immediately corroborated” KC. Appellant’s other
civilian trial defense counsel, Mr. JC, recalled having
a pretrial conversation with Mr. DC about the
military judge’s awareness of the guilty plea during
findings, but otherwise provided little information on
the subject.
In order to properly analyze Appellant’s claim of
ineffective assistance, we must focus on the record
rather than Appellant’s characterization of the record.
On appeal, and at the DuBay hearing, the Defense
repeatedly referred to Mr. DC having allowed the trial
judge to “consider” Appellant’s guilty plea and
providence inquiry during findings. However—
notwithstanding that Mr. DC, to an extent, and Capt
CB, to a greater extent, appear to have accepted
Appellant’s characterization—the record does not
indicate that, at the time, Mr. DC agreed the trial
judge would “consider” the guilty plea, nor is that
62a
what the trial judge proposed to do. Instead, the trial
judge indicated that he would be “aware” of the guilty
plea, not that he would consider or use the guilty plea
during his deliberations on findings. This distinction
is significant.
Our superior court has explained that using
Appellant’s guilty plea or providence inquiry as
evidence with regard to a contested offense would be
wholly improper and facially a violation of Appellant’s
Fifth Amendment rights. In Flores, the United States
Court of Appeals for the Armed Forces (CAAF)
explained that “[i]n a guilty plea context, a military
judge who has advised an accused that she is waiving
her right against self-incrimination only to those
offenses to which she is pleading guilty cannot later
rely on those statements as proof of a separate
offense.” 69 M.J. at 368 (citation omitted). Neither the
guilty plea itself nor any related statements as to one
offense may be “admitted to prove any element of a
separate offense.” Id. at 369. “To do so would compel
an accused to incriminate herself in the separate
criminal proceeding,” id. at 370, as well as undermine
the providence of the guilty plea.
As in Flores, in the instant case the trial judge
advised Appellant that he had waived his right
against self-incrimination only as to the offenses to
which he pleaded guilty. We do not hold that the fact
of a guilty plea and finding may never be mentioned
during the contested portion of the trial. However, we
interpret Flores to prohibit a military judge who has
so advised an accused from then using the guilty plea
63a
or inquiry to bolster a witness’s credibility with
respect to a separate contested charge.16
Absent clear evidence to the contrary, a military
judge is presumed to know and to follow the law.
Erickson, 65 M.J. at 225. We find no clear evidence to
the contrary in this record. At no point did the trial
judge indicate he would consider or use either the
guilty plea itself or Appellant’s providence inquiry
during the contested portion of the trial. On the
contrary, the trial judge had advised Appellant he
would not do so.
Notwithstanding trial defense counsel’s post-trial
statements, at the time, Mr. DC indicated that he
“wasn’t necessarily asking [the trial judge] to, as the
fact-finder, to necessarily consider that mixed plea.”
Instead, Mr. DC referenced the fact that, in a mixedplea case with court members, the military judge
would typically ask the defense whether the accused
wanted the members to be “informed” of the guilty
pleas. See Department of the Army Pamphlet 27-9,
Military Judges’ Benchbook (Benchbook), ¶ 2-5-4 (10
16 Additionally, we do not hold that an accused may never agree
to the use of his providence inquiry during findings. If an accused
did agree, however, in circumstances such as these, at a
minimum the military judge would have to reopen the Care
inquiry and explain to the accused that—contrary to the military
judge’s prior specific advice to the accused—the defense had now
proposed the inquiry would potentially be used to prove elements
of separate offenses. See United States v. Resch, 65 M.J. 233, 237
(C.A.A.F. 2007) (“Military law imposes an independent
obligation on the military judge to ensure that the accused
understands what he gives up because of his plea and the
accused's consent to do so must be ascertained.”).
64a
Sep. 2014).17 The purpose of such information is not,
of course, that the court members should use the fact
of the guilty plea as evidence for their findings as to
contested offenses. In Appellant’s case, as Mr. DC
explained at the time, the evident purpose of allowing
the trial judge to be “aware” of the mixed plea was
simply to help orient the trial judge, as factfinder, to
how the expected evidence related to both the
contested and uncontested specifications, as described
in the Defense’s opening statement. Had the trial
judge not clarified that he was “aware” of the guilty
plea in his role as factfinder, such references to the
“mixed pleas”—whether by the Defense or the
Government—could be objectionable references to
matters not in evidence and not reasonably
anticipated to be entered into evidence. Mr. DC
trusted that the trial judge would not use this
information “inappropriately,” and there is no clear
indication the trial judge did misuse it.18
17 If the defense requested that the court members be informed
of the guilty pleas, the version of the Benchbook in use at the time
of Appellant’s trial provided the following model instruction:
The court is advised that findings by the court members
will not be required regarding the charge(s) and
specification(s) of which the accused has already been
found guilty pursuant to (his) (her) plea. I inquired into
the providence of the plea(s) of guilty, found (it) (them) to
be provident, accepted (it) (them), and entered findings
of guilty. Findings will be required, however, as to the
charge(s) and specifications(s) to which the accused has
pled not guilty.
Benchbook, ¶ 2-5-4 (10 Sep. 2014).
In contrast, as discussed infra, trial counsel did use this
information inappropriately in the Government’s closing
argument.
18
65a
Appellant bears the burden to demonstrate both
deficient performance and prejudice. Datavs, 71 M.J.
at 424. Although we perceive a reasonable argument
that Mr. DC’s action did not fall measurably below the
expected standard, given the weak defense trial
defense counsel offered in their declarations and at
the DuBay hearing for their performance in this
regard, we decline to decide whether that performance
was constitutionally deficient. Instead, we hold
Appellant has failed to demonstrate a reasonable
probability of a more favorable result in the absence
of any such deficiency, given the absence of evidence
that the trial judge misused Appellant’s guilty pleas.
Accordingly, we are not persuaded Appellant is
entitled to relief.
b. Failing to Use Electronic Media to
Impeach KC
With regard to Appellant’s contention that the
Defense did not make adequate use of the Appellant’s
digital extraction of his cell phone data to impeach
KC, trial defense counsel collectively offered several
explanations through their declarations and DuBay
hearing testimony. First, as Appellant himself
concedes, Mr. JC did draw upon information from one
of the extractions during his cross-examination and
elicited favorable testimony as a result. For example,
KC conceded that she sent Appellant complimentary
messages and “naked” images of herself even after
Appellant had threatened and assaulted her in
Australia in May 2017. Because KC admitted to
sending positive messages to Appellant even after all
of the charged offenses, trial defense counsel deemed
it unnecessary to attempt to impeach her with specific
messages from the extraction. In addition, trial
defense counsel were concerned that if they directly
66a
used parts of the extraction at trial, they would have
to disclose portions of the extraction to the
Government. In Mr. DC’s words, the extracted
messages were overall “definitely a mixed bag;” as Mr.
JC put it, for every message that “reflected poorly” on
KC, as many messages or more reflected poorly on
Appellant.
Accordingly, we find Appellant has failed to
demonstrate trial defense counsel’s performance was
outside the “wide range of reasonable professional
assistance.” Datavs, 71 M.J. at 424 (citation omitted).
Mr. JC was able to elicit the essence of the favorable
testimony contained in the extractions—that KC
continued to send flattering and sexually charged
messages to Appellant even after the alleged offenses
occurred—without resorting to the messages
themselves. Accordingly, trial defense counsel could
reasonably conclude, as a matter of tactics, that
attempting to use specific messages was unnecessary
and entailed risks of disclosing additional information
to the Government.
Additionally, assuming for purposes of analysis
that the failure to make greater use of the extracted
messages was deficient, we find Appellant has failed
to demonstrate material prejudice. The sample
messages attached to Appellant’s declaration add
little to the concessions KC made on crossexamination. Moreover, these messages are not
inconsistent with KC’s testimony that at the time the
sexual assaults occurred, she essentially chose to act
as if the assaults had not happened because she still
hoped to build a family with Appellant. Therefore, it
is unsurprising that she would not have sent
Appellant text messages accusing him of sexual
assault. Accordingly, we find no prospect of a
67a
reasonable probability that their introduction would
have produced a more favorable result for Appellant.
c. Failing to Use the 2015 LPCC Letter to
Impeach KC
Appellant contends trial defense counsel were
ineffective by failing to use the 9 December 2015 letter
from the LPCC complaints officer to KC to impeach
testimony in which she denied “being investigated” by
the LPCC. The letter in question advised KC that the
LPCC was “investigating [her] conduct” related to
CC’s unlawful access of restricted police information.
Appellant cites the following colloquy from Mr. JC’s
cross-examination of KC at Appellant’s November
2018 trial:
Q. Are you currently still being investigated by
the Legal Board for your actions regarding
[CC], the detective who went to prison?
A. I’m not being investigated. I’ve been asked to
explain my conduct, as anyone would who had
been going -- gone through something like this.
And I am explaining my conduct, I’m defending
-- because I didn’t do anything wrong. There
has been no file determination.
At the DuBay hearing, Mr. JC testified that to the
best of his recollection the ethical inquiries regarding
KC were “closed” as of the date of Appellant’s trial. He
recalled that there had been “some findings against
[KC]” regarding her “maturity [and] some subject
matter issues . . . but nothing that went to her
credibility [as] a witness in that court-martial.” Mr.
JC further testified he believed he had seen a copy of
the 9 December 2015 LPCC letter before trial. When
appellate defense counsel posited, “[a]t trial [KC]
claimed that she had not been put under investigation
68a
by the CCC or the LPCC,” and asked, “Why wouldn’t
you have used documentation to prove that she was
lying before the Court about that very matter?” Mr.
JC responded that he could not answer the question
because he could not “remember the colloquy of trial.”
He further explained he did not “remember having
made that error,” but he was “not saying [he] didn’t
make it.”
We are not persuaded Appellant has demonstrated
deficient performance. Once again, it is important to
examine the record rather than characterizations of
the record. The portion of KC’s testimony Appellant
cites does not deny she was ever under investigation
by the LPCC with regard to CC. Rather, KC testified
that she was “not being investigated.” As the DuBay
judge subsequently found, as of the date of Appellant’s
trial in November 2018, KC’s statement was literally
true. The LPCC investigation had closed more than a
year earlier, and the matter had been referred to the
SAT for resolution by a separate administrative
process.
Thus, “confronting” KC with the 9 December 2015
LPCC letter would not have exposed false testimony
by KC. The most one might reasonably expect is that
it would have led KC to have to clarify that there had
been an investigation in the past and the matter was
currently the subject of SAT proceedings, and the
Defense could attempt to use that clarification to
portray her original answer as, if not false,
misleading. However, we are not persuaded the value
of such evidence would have been more than
negligible. Although KC denied she was currently
being investigated, her answers acknowledged there
was an ongoing inquiry of some sort in which she was
“defending” her conduct. These acknowledgments
69a
blunt the suggestion that KC was attempting to
materially mislead the trial judge.
Accordingly, we conclude Appellant has failed to
meet his burden that Mr. JC’s failure to use the LPCC
letter to impeach KC’s testimony constituted deficient
performance. Furthermore, for similar reasons,
assuming for purposes of analysis trial defense
counsel’s performance was deficient, Appellant has
failed to demonstrate a reasonable probability of a
more favorable result. As explained above, the record
indicates confronting KC with the letter would not
have exposed false testimony or materially affected
the trial judge’s assessment of KC’s credibility.
C. Voluntariness of Appellant’s Guilty Plea
1. Additional Background
Appellant has provided a declaration to this court
in which he asserts, inter alia, that he had intended to
plead not guilty to all the charges and specifications,
but that his trial civilian defense counsel compelled
him to plead guilty to the Article 128 and 134, UCMJ,
offenses. Appellant acknowledges he “did not act
appropriately with [KC] on numerous occasions,” but
that “many” of the recordings she made of the charged
threats and assaults were created after KC provoked
him or were otherwise “taken out of context.”
Appellant states he “also wanted to explore whether
[his]
mental
health
issues”—specifically
posttraumatic stress disorder (PTSD) and Tourette’s
Syndrome—“affected [his] actions.” Appellant states
he did not know whether he would be convicted, but
he at least wanted to plead not guilty, and he initially
believed his trial defense counsel were “on the same
page.”
70a
However, Appellant explains: “[A]bout four days
prior to trial, Mr. [JC] tells me I had to plead guilty [to
the assault and communicating a threat specifications
involving KC]. He said he couldn’t explain the
recordings and if I didn’t plead guilty, I would be
imprisoned for life.” Appellant states at that point he
felt he had no choice but to follow Mr. JC’s advice
because he had already spent a great deal of money
for his civilian attorneys, he did not believe he could
get another continuance or find new civilian counsel
at that point, and he did not want to proceed with his
military counsel alone.
On Appellant’s behalf, trial defense counsel
entered unconditional guilty pleas to one specification
of aggravated assault and two specifications of assault
consummated by a battery in violation of Article 128,
UCMJ, and two specifications of wrongfully
communicating threats in violation of Article 134,
UCMJ. There was no pretrial agreement or
stipulation of fact. The military judge conducted an
inquiry into the providence of Appellant’s pleas to
each specification, including having Appellant explain
in his own words why Appellant believed he was guilty
of each offense. Appellant told the military judge he
had enough time to discuss the case with his trial
defense counsel and that he was satisfied with their
advice. He further stated he was pleading guilty
voluntarily and no one had “made any threat or forced
[Appellant] in any way to get [him] to plead guilty.”
2. Law
We review a military judge’s decision to accept an
accused’s guilty plea for an abuse of discretion. United
States v. Riley, 72 M.J. 115, 119 (C.A.A.F. 2013) (citing
United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F.
71a
2008)). “An abuse of discretion occurs when there is
‘something in the record of trial, with regard to the
factual basis or the law, that would raise a substantial
question regarding the appellant’s guilty plea.’” Id.
(quoting Inabinette, 66 M.J. at 322).
“The military judge must ensure there is a basis in
law and fact to support the plea to the offense
charged.” United States v. Soto, 69 M.J. 304, 307
(C.A.A.F. 2011) (citing Inabinette, 66 M.J. at 321–22)
(additional citation omitted). “A plea is provident so
long as [the a]ppellant was ‘convinced of, and [was]
able to describe, all of the facts necessary to establish
[his] guilt.’” United States v. Murphy, 74 M.J. 302, 308
(C.A.A.F. 2015) (second and third alterations in
original) (quoting United States v. O’Connor, 58 M.J.
450, 453 (C.A.A.F. 2003)). “This court must find ‘a
substantial conflict between the plea and the
accused’s statements or other evidence’ in order to set
aside a guilty plea. The ‘mere possibility’ of a conflict
is not sufficient.” United States v. Watson, 71 M.J. 54,
58 (C.A.A.F. 2012) (quoting United States v. Garcia,
44 M.J. 496, 498 (C.A.A.F. 1996)).
3. Analysis
To the extent Appellant’s assertions regarding the
voluntariness of his guilty pleas impugn the
performance of his trial defense counsel, we have
considered them as part of our analysis above of
Appellant’s claims of ineffective assistance of counsel.
However, we have separately assessed whether the
trial judge abused his discretion in accepting the
guilty pleas that Appellant now asserts were
involuntary.
Appellant acknowledges he “went through the
guilty plea inquiry and answered the judge’s
72a
questions.” He does not now assert the military
judge’s inquiry was deficient with respect to any of the
elements of the various offenses or any potential
defenses. Among other admissions, Appellant agreed
that he was not acting in defense of himself or anyone
else when he committed the assaults. He told the
military judge his various threats to KC had no
justification or excuse, and that a bystander who
heard them would have believed he had intended to
carry them out. Before the military judge, Appellant
disavowed that his trial defense counsel or anyone
else had compelled him to plead guilty against his will.
Appellant has not identified any substantial conflict
between his pleas of guilty and his statements to the
military judge or any other evidence presented at his
court-martial. Accordingly, we find the trial judge did
not abuse his discretion by accepting Appellant’s pleas
of guilty.
D. Petition for New Trial
1. Additional Background
At trial, Mr. JC cross-examined KC regarding her
practice of law in Australia. Mr. JC elicited that as of
2015, two complaints made by former clients against
KC were “being investigated” and were “still
unresolved.” The following colloquy ensued:
Q. -- you had reason to become somewhat
infamous in the legal community before
meeting [Appellant]. Is that correct?
A. I wouldn’t say that.
Q. Okay. There was a potential criminal
proceeding against you.
A. There was never a criminal proceeding
against me.
73a
Q. The question was, potential. You were being
investigated?
A. There was never a criminal investigation
against me.
Q. Okay. Ma’am, did a detective, [CC], go to
prison for handing you -- giving you some sort
of confidential documents that he wasn’t
supposed to give you?
A. Yes.
Q. Okay. Were you in the newspapers on a
regular basis based upon [CC] having given you
some documents in Perth?
A. No.
Q. Were you in the newspapers for this issue?
A. I was on what -- maybe once or twice.
Q. Did the Australian authorities consider for
some time whether or not you should be
indicted along with [CC]?
A. No. I was never criminally investigated.
Never.
Q. Are you currently still being investigated by
the Legal Board for your actions regarding
[CC], the detective who went to prison?
A. I’m not being investigated. I’ve been asked to
explain my conduct, as anyone would who had
been going -- gone through something like this.
And I am explaining my conduct, I’m defending
-- because I didn’t do anything wrong. There
has been no file determination.
....
74a
A. If I had done something wrong I would have
been charged. And that’s what my husband
[JH] said to the media, and that’s what Triple
C said. If I had done something wrong, they
would have charged me.
....
Q. You had professional problems in Australia?
A. I didn’t have professional problems. I was
clearly -Q. -- Your reputation in Australia as a lawyer
was damaged both by your marriage to [JH]
and your interactions with [CC]. Isn’t that true?
A. That’s incorrect.
Mr. JC then moved on to other topics.
Appellant’s petition for a new trial asserts KC lied
in her testimony quoted above in several respects,
including: (1) denying that she was being investigated
by the legal board for her conduct with CC or was
having “professional problems;” (2) denying that she
had been criminally investigated for her conduct with
CC; and (3) denying that she had done “anything
wrong.” Appellant attached three documents to his
petition which, he asserts, demonstrate KC
committed fraud upon the court-martial.
The first attached document is a record of a May
2019 order from the State Administrative Tribunal
(SAT) addressing the matters referred by the LPCC
against KC. The order stated that the LPCC and KC
had in “February 2019 agreed the terms upon which
the proceedings could be settled,” and had agreed to
certain “facts.” The SAT found KC engaged in
professional misconduct in her actions with CC by
75a
recklessly accepting restricted material from a police
computer system, by disclosing privileged or
confidential information to CC, and by failing to
immediately return to the police certain material she
received from CC. The SAT also found KC committed
professional misconduct in her representation of the
two former clients who had made complaints against
her. The order further stated KC was not to be granted
a local practicing certificate before 30 June 2019, in
accordance with an “in principle” agreement the
LPCC and KC reached in early September 2018, the
signing of which was delayed until February 2019 by
“unrelated external factors affecting the practitioner
[KC].” The SAT order permitted KC to obtain a
practice certificate on or after 30 June 2019 provided
she met certain conditions, including inter alia
remedial training and practicing under the
supervision of an experienced attorney for a period of
time.
The second attached document is an excerpt of an
LPCC report, which included a summary of the
findings the SAT made with respect to KC, who is
identified by name, and the penalties imposed. The
substance of the report information specific to KC is
from the May 2019 SAT order, as described above.
The third attached document is a printed version
of an online article from a Western Australia
publication about KC’s involvement with CC and
dated July 2014. The article states the CCC “defended
its decision not to charge” KC, “saying there was
insufficient evidence to pursue a case against her.”
After receiving the petition and a response brief
from the Government, this court ordered a DuBay
hearing, cited supra. The order specified 11 questions
76a
to be answered by the DuBay judge, primarily related
to the claims Appellant set forth in his petition for a
new trial, along with some matters related to
Appellant’s claims of ineffective assistance of counsel
as described above. After some delay, the DuBay judge
conducted a hearing at which she received
documentary evidence from the parties and heard
testimony from all three of Appellant’s trial defense
counsel and from KC. In pertinent part, KC testified
that her trial testimony was not inaccurate. She
explained that although she provided evidence during
the investigation of CC, she was not the subject of the
CCC’s investigation because that organization
investigated public figures such as police officers, not
private attorneys. KC also testified that at the time of
her trial testimony in November 2018, she was not
being investigated by the LPCC because its
investigation had already concluded prior to the
referral to the SAT. She further explained that at the
time of her trial testimony she believed she had done
nothing wrong with respect to CC, and she continued
to believe that was true. KC testified she felt
compelled to agree to the facts recited in the May 2019
SAT order on the advice of her attorney in order to
preserve her ability to practice law, notwithstanding
her prior firm intention to contest the allegations. KC
explained that the SAT order’s reference to an
agreement “in principle” in September 2018 referred
to KC’s agreement not to seek a new local practicing
certificate before 30 June 2019, pending the outcome
of the SAT proceedings, rather than any agreement in
September 2018 that she had committed professional
misconduct.
During the DuBay hearing, trial defense counsel
were asked whether they were aware of the July 2014
77a
online article attached to the petition for a new trial.
Mr. DC testified he had seen it before Appellant’s
trial. Mr. JC testified he could not remember if he had
seen it before the trial. Capt CB testified that during
his trial preparation he had seen at least one online
article about KC and “what had happened in Western
Australia,” but he did not specify whether it was the
same article attached to the petition.
After the hearing, the DuBay judge issued her
findings of fact and conclusions of law. Notably, the
DuBay judge’s findings included the following:
KC testified credibly, albeit nonresponsive at
times.
....
Prior to trial, trial defense counsel was [sic]
aware of news articles related to [ ] CC and KC
(either attachment 3 [to the petition] or
something similar to attachment 3) . . . .
....
[ ] KC did not reach an in principle agreement
to settle professional misconduct proceedings
with the [LPCC] prior to Appellant’s trial. . . .
[T]he [LPCC] had not yet provided an assertion
of facts upon which she could agree or dispute.
KC reached an in principle agreement not to
seek renewal of her local practicing certificate
before 30 June 2019 with the Legal Practice
Board. . . .
[ ] Yes, KC testified truthfully, in that she
believed she had done nothing wrong in
matters pertaining to [CC]. . . . Her testimony
78a
was consistent with her position in the ongoing
mediation with the [LPCC] at that time.
....
[ ] Yes, KC was truthful when she answered
“no, I was never criminally investigated.
Never.” . . .
....
[ ] Yes, KC’s testimony was truthful when she
answered “I’m not being investigated[.”] The
[LPCC] had ceased its investigation into KC,
pertaining to [ ] CC, before Appellant’s trial.
[ ] No, KC did not commit perjury in her
testimony or otherwise commit fraud up-on [sic]
the court-martial. KC’s testimony was
unresponsive but literally true.
2. Law
A petitioner may petition for a new trial “on the
grounds of newly discovered evidence or fraud on the
court.” Article 73, UCMJ, 10 U.S.C. § 873. A petition
for a new trial does not proceed through the usual
appellate process. See id.; United States v. Brooks, 49
M.J. 64, 68 (C.A.A.F. 1998). Instead, it is submitted to
The Judge Advocate General, who acts on the petition
unless the case is pending before an appellate court,
in which case he refers the petition to the appellate
court where the case is pending. R.C.M. 1210(a), (e).
A new trial shall not be granted on the grounds
of newly discovered evidence unless the petition
shows that:
(A) The evidence was discovered after the trial;
79a
(B) The evidence is not such that it would have
been discovered by the petitioner at the time of
trial in the exercise of due diligence; and
(C) The newly discovered evidence, if considered
by a court-martial in the light of all other
pertinent evidence, would probably produce a
substantially more favorable result for the
accused.
R.C.M. 1210(f)(2). “No fraud on the court-martial
warrants a new trial unless it had a substantial
contributing effect on a finding of guilty or the
sentence adjudged.” R.C.M. 1210(f)(3). Examples of
fraud on a court-martial that may warrant granting a
new trial include, inter alia, “confessed or proved
perjury in testimony . . . which clearly had a
substantial contributing effect on a finding of guilty
and without which there probably would not have
been a finding of guilty.” R.C.M. 1210(f)(3),
Discussion.
A military judge’s findings of fact at a DuBay
hearing are reviewed for clear error. United States v.
Wean, 45 M.J. 461, 463 (C.A.A.F. 1997) (citations
omitted). A military judge’s “finding of fact is clearly
erroneous when there is no evidence to support the
finding . . . or when, ‘although there is evidence to
support it, the reviewing court on the entire evidence
is left with the definite and firm conviction that a
mistake has been committed.’” United States v.
Criswell, 78 M.J. 136, 141 (C.A.A.F. 2018) (quoting
United States v. Martin, 56 M.J. 97, 106 (C.A.A.F.
2001)) (additional citation omitted). A military judge’s
“[c]redibility determinations are ‘entitled to great
deference on appeal and will not be reversed absent a
clear abuse of discretion.’” United States v.
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Hernandez, 81 M.J. 432, 442 (C.A.A.F. 2021) (quoting
United States v. Reynolds, 23 M.J. 292, 294 (C.M.A.
1987)) (additional citation omitted). An abuse of
discretion occurs when a military judge’s decision is
based on clearly erroneous findings of fact or incorrect
conclusions of law. Id. at 437 (citing United States v.
Erikson, 76 M.J. 231, 234 (C.A.A.F. 2017)).
“[R]equests for a new trial . . . are generally
disfavored, and are granted only if a manifest
injustice would result absent a new trial . . . .” United
States v. Hull, 70 M.J. 145, 152 (C.A.A.F. 2011)
(quoting United States v. Williams, 37 M.J. 352, 356
(C.M.A. 1993)).
3. Analysis
The DuBay judge’s findings of fact19—unless
clearly erroneous—would lead us to the conclusion
that Appellant is not entitled to a new trial on the
basis of fraud on the court. The DuBay judge found KC
testified credibly at the hearing when she asserted she
testified truthfully at Appellant’s trial and explained
her trial testimony. The DuBay judge specifically
found KC testified truthfully when she asserted she
had done nothing wrong in relation to CC, in that she
believed what she was saying. The DuBay judge also
specifically found KC testified truthfully that KC
herself had not been criminally investigated, in that
there was no evidence KC was the focus of the CCC or
any other organization conducting a criminal
investigation; and that KC testified truthfully she was
not being “investigated” as of the time of Appellant’s
19 For purposes of our analysis, we consider the military judge’s
determination as to whether a witness testified truthfully to be
a finding of fact, whereas whether a witness committed perjury
or fraud is a conclusion of law.
81a
trial, because at that point the LPCC had already
concluded its investigation into KC’s professional
behavior and referred the matter to the SAT. It is
likely that had trial defense counsel phrased his crossexamination questions differently, or asked different
or additional questions, the Defense could have
elicited different or additional answers from KC.
However, as the DuBay judge put it, KC’s testimony
in response to the questions asked was “unresponsive”
at times, “but literally true.”
The DuBay proceedings also undermine newly
discovered evidence as a basis for a new trial. The
DuBay judge found trial defense counsel were aware
before trial of the July 2014 article attached to the
petition for a new trial, or aware of an article
substantially similar to it, and the record clearly
supports this finding. Therefore, the information
therein was neither discovered only after trial, nor
undiscoverable by trial defense counsel before trial in
the exercise of due diligence. In contrast, the May
2019 SAT order and the LPCC report were new
evidence, and not previously discoverable, in that they
did not exist at the time of Appellant’s trial. However,
although this information regarding the resolution of
the professional complaints against KC raised
questions which led to the DuBay hearing, in light of
the DuBay proceedings this information would not
have led to a substantially more favorable result for
Appellant at trial. As found by the DuBay judge, these
documents did not reveal any perjury or other fraud
on the court by KC, who continued to believe in the
truth of her answers. The SAT order and LPCC report
essentially documented future events that had not
come to pass as of the time of Appellant’s trial—that
is, the negotiated resolution of the SAT proceedings.
82a
Thus, trial defense counsel could not have used these
nonexistent future developments at trial in November
2018. Assuming arguendo trial defense counsel could
have questioned KC about these developments, we are
not persuaded that a new trial is warranted. The
adverse information about KC’s performance as a
relatively junior attorney in Australia did not
evidently rise to the level of criminal behavior. It did
not, moreover, bar KC’s continued practice as an
attorney after additional training and a period of
supervision. At the same time, such conduct only
peripherally related—at best—to the offenses charged
against Appellant, it was not such compelling
material that it would have “probably produce[d] a
substantially more favorable result,” and its absence
from trial did not result in “manifest injustice” to
Appellant. R.C.M. 1210(f)(2); Hull, 70 M.J. at 152
(citation omitted).
Appellant attacks the DuBay judge’s findings and
conclusions in several respects. We address his most
significant arguments below.
Appellant contends the record indicates KC lied
about the LPCC investigation in multiple ways during
her testimony. First, Appellant cites from a different
portion of KC’s cross-examination than the one cited
above to contend KC did lie to the effect that she had
not been “investigated.” The relevant colloquy
between trial defense counsel and KC is set forth
below:
Q. By 2015 how many people had made
complaints that were being investigated about
you?
A. By 2015?
Q. Correct.
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A. I had two.
Q. Now aside from -A. -- But it’s -Q. -- your marital difficulties and the legal
investigations, in regards to your law license -A. -- They weren’t -- excuse me, sir, they are not
in regards to my law license, there were
complaints made by someone who was
aggrieved -Q. -- That were being an [sic] investigated.
A. It’s not investigated. It is I’m given the
opportunity to respond. They may not go for -Q. -- So, those were still unresolved in 2015,
correct? Because there are still a couple of them
that are unresolved now, right?
A. Yes.
Q. Okay. I just -- we’ll move on from that.
We find Appellant’s argument on this point
uncompelling. Although KC may have contested the
term “investigated,” her testimony was not
substantially misleading. She agreed that two of her
former clients had made complaints against her,
which she had been asked to respond to, and which
remained unresolved as of the time of Appellant’s
trial. So far as the record discloses, this information
was substantially accurate. Moreover, a fair
interpretation of trial defense counsel’s question is
that KC was asked whether the complaints had been
investigated as of 2015, and that KC responded that
as of 2015 she had been asked to respond to the
84a
complaints, but the matter had not been formally
“investigated.”20
Appellant contends KC lied when she testified that
she did not have professional problems and that her
“reputation in Australia as a lawyer” had not been
“damaged both by [her] marriage to [JH] and [her]
interactions with [CC].” However, the terms
“problems” and “reputation” both lack clear definition
in this context and are open to subjective
interpretation. Moreover, as of the time of Appellant’s
trial, KC had not received any adverse determination
from the SAT. Moreover, the record does not indicate
the complaints by two of KC’s former clients were
widely known at that point such that they caused KC
any “professional problems.” With respect to how KC’s
interactions with CC had affected her reputation as a
lawyer, other than the online article from more than
four years earlier reporting that KC would not be
prosecuted, the record does not indicate what KC’s
reputation as a lawyer was as of November 2018. We
might expect the subsequent findings in May 2019
that KC had engaged in professional misconduct, as
reflected in the SAT order and LPCC report, resulting
in certain penalties, represented a “professional
problem” and negatively affected her reputation as a
lawyer to some extent. However, as of the time KC
testified at Appellant’s trial, those findings and
penalties had not come to pass.
For similar reasons, we are not persuaded by Appellant’s
argument that KC lied when she testified the “investigations”
were “not in regards to [her] law license.” A fair interpretation of
the record indicates KC meant that as of 2015, there was no
investigation per se regarding the former clients’ complaints,
much less an investigation regarding her law license.
20
85a
Appellant contends the DuBay judge’s general
finding of fact that “KC testified credibly” was clearly
erroneous. However, we find nothing in the record to
overcome the “great deference” to which this finding
is entitled. Hernandez, 81 M.J. at 442 (citation
omitted). For example, we are not persuaded the
record indicates any admitted or clear contradictions
in KC’s testimony. KC’s answers were at times
unclear or confusing due in part to the wording or
focus of particular questions she was asked, to the
distinctions she often sought to make in her answers,
and to the unresponsive nature of some of her
testimony. However, these are not necessarily
hallmarks of non-credible testimony.
Appellant contends the negotiated agreement
between KC and the LPCC reflected in the May 2019
SAT order contradicts significant portions of KC’s
testimony. We agree that, on the surface, the
concessions KC apparently made after Appellant’s
trial reflected in the order are at odds with some of her
testimony. However, the DuBay judge could
reasonably credit KC’s testimony that as of November
2018 she intended to contest these matters, and that
she only later agreed to a negotiated settlement on the
advice of her counsel—contrary to her actual beliefs—
in order to secure a relatively favorable resolution and
preserve her ability to practice law. Whatever an
observer might think of KC’s willingness to purport to
agree to findings contrary to her actual beliefs, the
DuBay judge could reasonably conclude that decision
does not demonstrate her prior trial testimony was
fraudulent. Even if we accept for purposes of
argument that in 2019 KC came to believe that her
actions were at least in part improper, that does not
86a
establish that she lied at Appellant’s trial in
November 2018.
Appellant contends the DuBay judge applied an
overly restrictive definition of “fraud,” and essentially
focused only on whether KC had committed perjury.
Appellant suggests that by focusing on whether KC’s
testimony was “literally true,” the DuBay judge
overlooked whether KC intentionally misled the
court-martial without lying. We accept the proposition
that “fraud” includes other methods besides perjury
by which a witness may intentionally deceive the
court; for instance, the Discussion to R.C.M. 1210(f)(3)
provides the additional example of “forgery of
documentary evidence which clearly had a substantial
contributing effect on a finding of guilty.” However, we
are not persuaded this observation impugns the
DuBay judge’s findings and conclusions from the
hearing. Although KC often, and at times
unresponsively, resisted trial defense counsel’s
attempts to characterize events or circumstances in
particular ways, and arguably drew certain fine
distinctions in her testimony, we are not persuaded
Appellant has demonstrated KC intentionally misled
the court-martial or that the DuBay judge’s finding of
no perjury or other fraud was clearly incorrect.
For the foregoing reasons, we conclude Appellant
has failed to demonstrate he is entitled to a new trial
on the basis of either fraud on the court or newly
discovered evidence.
E. Trial Counsel’s Closing Argument
1. Additional Background
Prior to inquiring into the providence of
Appellant’s guilty pleas to the Article 128 and 134,
UCMJ, offenses, the trial judge advised Appellant
87a
that by pleading guilty Appellant would give up “three
important rights[,] [b]ut . . . only with respect to those
offenses to which [he] pled guilty. [He] still ha[s] the
rights with respect to the other offenses. . . . First, [he]
g[a]ve up the right against self-incrimination; that is,
the right to say nothing at all.” Appellant
acknowledged that he understood.
As described above in relation to Appellant’s
assertions of ineffective assistance of counsel, during
the Defense’s opening statement regarding the
litigated Article 120, UCMJ, specifications, Mr. DC
referred to Appellant’s guilty pleas and providence
inquiry. At the conclusion of the opening statement,
the trial judge asked Mr. DC whether the trial judge
as trier-of-fact was “operating in a world where [he
was] aware of the previous guilty plea.” Mr. DC agreed
that for purposes of fact-finding, the trial judge would
be “aware of it.”
Trial counsel’s closing argument included the
following comments:
The defense counsel asked you to operate in
this world where you know that he pled guilty
to a number of offenses. So right now, I want to
talk about how that goes towards the victim’s
credibility, because as you’re standing here
operating in this world where he has admitted
to crimes against [KC], the [G]overnment
believes you can use that in assessing her
credibility on the stand. Whether or not she’s
telling the truth for the [Article] 120[, UCMJ,]
offenses.
So you know that she’s telling the truth when
she says the accused threatened her. You know
that, Your Honor. Undeniable. You know that
88a
she’s telling the truth about her being choked
by the accused. Undeniable. You know that
she’s telling the truth about her being
threatened with a screwdriver. That is
undeniable. You know she’s telling the truth
about being hit in the back of the head by the
accused. You can’t deny it. You know that even
after she sat right where she’s sitting right now,
and heard the accused plead guilty, she still
continued to testify -- but she could have left.
She could have went back to Australia. She
could have returned to see her son who she is
away from for the first time in her life. . . . She
could have threw her arms up and said, “You
know what? He pled guilty. I’m a lawyer. I
know what that means. He’s has [sic] a
conviction, I’m getting out of town,” but she
didn’t. She still came and testified. . . .
....
Your Honor, it’s the [G]overnment’s position
that you really have to find her to be an evil
person if you think she’s going to come here and
testify and lie about someone raping [sic][21]
her. I mean, because that’s what an evil person
does. That she had such motivation to lie about
being raped [sic], but not lie about the other
charges that the accused has pled guilty to. And
so, when [D]efense is asking you or pushing
forth this theory that she’s a liar. They’re really
saying she’s a partial liar -- that she’s lied about
some things, but not lied about others. And that
21 Appellant was charged with sexual assault against KC, not
rape.
89a
makes it even more difficult for you when you’re
looking at her saying, “Okay. You’re a liar.
Well, did you lie about this, but why would you
lie about that?”22
Trial defense counsel did not object to these
comments.
2. Law
“We review prosecutorial misconduct and
improper argument de novo and where . . . no objection
is made, we review for plain error.” United States v.
Voorhees, 79 M.J. 5, 9 (C.A.A.F. 2019) (citing United
States v. Andrews, 77 M.J. 393, 398 (C.A.A.F. 2018)).
Under plain error review, the appellant bears the
burden to demonstrate error that is clear or obvious
and results in material prejudice to his substantial
rights. United States v. Knapp, 73 M.J. 33, 36
(C.A.A.F. 2014) (citation omitted). “[W]here a forfeited
constitutional error was clear or obvious, ‘material
prejudice’ is assessed using the ‘harmless beyond a
reasonable doubt’ standard . . . .” United States v.
Tovarchavez, 78 M.J. 458, 460 (C.A.A.F. 2019)
(citations omitted). “That standard is met where a
court is confident that there was no reasonable
possibility that the error might have contributed to
the conviction.” Id. (citation omitted).
“Improper argument is one facet of prosecutorial
misconduct.” United States v. Sewell, 76 M.J. 14, 18
(C.A.A.F. 2017) (citation omitted). “Prosecutorial
22 Trial counsel supplemented his argument with 23 slides. One
of these slides listed factors that trial counsel contended
enhanced KC’s credibility, including inter alia that KC was
“telling the truth” in her AFOSI interview about “threats,” “being
choked,” “being threatened with a screwdriver,” and being “hit in
the back of the head.” Another slide simply stated “[KC] is Evil.”
90a
misconduct occurs when trial counsel ‘overstep[s] the
bounds of that propriety and fairness which should
characterize the conduct of such an officer in the
prosecution of a criminal offense.’” United States v.
Hornback, 73 M.J. 155, 159 (C.A.A.F. 2014)
(alteration in original) (quoting United States v.
Fletcher, 62 M.J. 175, 178 (C.A.A.F. 2005)). Such
conduct “can be generally defined as action or inaction
by a prosecutor in violation of some legal norm or
standard, [for example] a constitutional provision, a
statute, a Manual rule, or an applicable professional
ethics canon.” Andrews, 77 M.J. at 402 (quoting
United States v. Meek, 44 M.J. 1, 5 (C.A.A.F. 1996)).
“[T]rial counsel may ‘argue the evidence of record, as
well as all reasonable inferences fairly derived from
such evidence.’” United States v. Halpin, 71 M.J. 477,
479 (C.A.A.F. 2013) (quoting United States v. Baer, 53
M.J. 235, 237 (C.A.A.F. 2000)). “A prosecutorial
comment must be examined in light of its context
within the entire court-martial.” United States v.
Carter, 61 M.J. 30, 33 (C.A.A.F. 2005) (citation
omitted).
“No person . . . shall be compelled in any criminal
case to be a witness against himself . . . .” U.S. CONST.
amend. V. “In a guilty plea context, a military judge
who has advised an accused that she is waiving her
right against self-incrimination only to those offenses
to which she is pleading guilty cannot later rely on
those statements as proof of a separate offense.”
Flores, 69 M.J. at 368 (C.A.A.F. 2011). Neither the
guilty plea itself nor any related statements as to one
offense may be “admitted to prove any element of a
separate offense.” Id. at 369. “To do so would compel
an accused to incriminate herself in the separate
criminal proceeding.” Id. at 370.
91a
We assess prejudice by considering whether the
trial counsel’s comments were so damaging that we
cannot be confident the appellant was convicted on the
basis of the evidence alone. See Halpin, 71 M.J. at 480;
Fletcher, 62 M.J. at 184. In assessing prejudice from
improper argument, we balance three factors: (1) the
severity of the misconduct; (2) the measures, if any,
adopted to cure the misconduct; and (3) the weight of
the evidence supporting the conviction or sentence, as
applicable. See Halpin, 71 M.J. at 480; Fletcher, 62
M.J. at 184. “[T]he lack of a defense objection is ‘some
measure of the minimal impact of a prosecutor’s
improper comment.’” Gilley, 56 M.J. at 123 (quoting
United States v. Carpenter, 51 M.J. 393, 397 (C.A.A.F.
1999)).
3. Analysis
Appellant essentially contends the portion of trial
counsel’s closing argument quoted above was
improper in two respects: (1) it “request[ed] that the
military judge improperly use [Appellant’s] prior
guilty pleas to find him guilty of the sexual assault
charges;” and (2) “the Government argued the only
way for the military judge to acquit [Appellant] would
be if the military judge made an affirmative finding
that [KC] was an ‘evil person.’”23 We consider each
contention in turn. Because trial defense counsel did
not object, we review for plain error.
23 Appellant also contends trial counsel’s argument improperly
shifted the burden of proof, but we find this aspect of his
argument does not require distinct analysis. See Matias, 25 M.J.
at 361.
92a
a. References to Appellant’s Guilty Pleas
We agree with Appellant that trial counsel
committed a clear error when he used Appellant’s
guilty pleas and providence inquiry to bolster his
argument that Appellant was guilty of the contested
sexual offenses. Trial counsel relied on the Defense’s
agreement that the trial participants were “operating
in a world” where the trial judge was “aware” of the
guilty pleas. However, the Defense’s agreement that
the military judge was aware of the guilty pleas was
not an agreement that the Government could use
Appellant’s guilty pleas and his sworn statements
during the providence inquiry as evidence of his guilt.
Cf. Benchbook, ¶ 2-5-4 (noting that in a mixed plea
case before members, the accused has the option to
request the members be informed of the guilty pleas).
Using Appellant’s guilty plea inquiry in this way
would have, in effect, compelled Appellant to
incriminate himself in the trial in a manner contrary
to the military judge’s explanations to Appellant and
to the protections of the Fifth Amendment, and for
which purpose Appellant never explicitly agreed. See
Flores, 69 M.J. at 368–70.
However, we find Appellant is not entitled to relief
in this military judge-alone trial. Due to the
constitutional dimensions of trial counsel’s error, we
test for harmlessness beyond a reasonable doubt.
Tovarchavez, 78 M.J. at 460. Considering that
Appellant was tried by a military judge, and
considering the record as a whole, we conclude this
standard of harmlessness has been met. A military
judge is “presumed to know the law and to follow it
absent clear evidence to the contrary,” and to
“distinguish between proper and improper”
arguments. Erickson, 65 M.J. at 225 (citation
93a
omitted). This presumption holds even where the
military judge does not specifically note the argument
is improper or state that he will not consider it. Id. On
this record, we find no clear evidence the trial judge
might have improperly considered trial counsel’s
argument. As indicated above, we find the military
judge’s clarification that as the trier-of-fact he was
“aware” of the guilty pleas—echoing the procedure set
forth in the Benchbook for a members trial in a mixedpleas case—is no indication that he intended to apply
Appellant’s guilty plea inquiry to his deliberations on
findings. Moreover, in general Appellant’s courtmartial was a well-tried case by the military judge,
and we have identified no material errors on his part,
much less any that would specifically call into
question his understanding of the Fifth Amendment
and proper use of Appellant’s guilty pleas, as the
CAAF explained over a decade ago in Flores. We
further note the trial judge’s mixed findings on the
contested sexual assault offenses suggest that, rather
than being persuaded by Appellant’s wholesale
arguments, the trial judge carefully parsed the
evidence for each offense. Moreover, the absence of an
objection is some evidence the Defense did not
perceive a significant error.
We have considered the three Fletcher factors, and
although they do not overwhelmingly favor the
Government, because the law presumes trial counsel’s
improper argument did not influence the trial judge’s
verdict, we are nevertheless satisfied the error was
harmless beyond a reasonable doubt.24
The Government contends, inter alia, trial defense counsel
invited trial counsel’s argument by referring to Appellant’s guilty
pleas and providence inquiry in its opening statement. See
24
94a
b. Comments as to Whether KC would have
to be “Evil”
We find trial counsel’s comment that the trial
judge would “have to find [KC] to be an evil person” to
conclude that she lied in her testimony that she was
“raped” was not plain or obvious error. Trial counsel
was commenting on the evidence—specifically KC’s
testimony—and arguably reasonable inferences
therefrom. Trial counsel did not argue the military
judge would have to find KC was “evil” in order to
acquit Appellant of sexual assault. Rather, trial
counsel specifically associated the “evil” with the
notion that KC had “lied” under oath about the alleged
sexual assaults. If the military judge believed KC had
lied, that is, knowingly falsely testified that Appellant
sexually assaulted her, that would be an illegal act on
her part and at least arguably an “evil” one. Certainly,
our conclusion that trial counsel’s comment was not
plainly or obviously erroneous is not an indorsement;
whether his argument was wise or effective is a
separate question.
Assuming for purposes of argument that trial
counsel’s comment was plainly erroneous, we further
conclude Appellant was not prejudiced. Although the
evidence in favor of conviction was not overwhelming,
it was an isolated comment in a lengthy closing
argument, and the Defense’s failure to object suggests
its lack of significance. Most significantly, Appellant
was tried by a military judge who is presumed to know
United States v. Raya, 45 M.J. 251, 254 (C.A.A.F. 1996) (citation
omitted) (“Invited error does not provide a basis for relief.”). We
are not persuaded but, in light of our conclusion the error was
harmless beyond a reasonable doubt, we decline to specifically
address the Government’s argument.
95a
the law and disregard improper arguments absent
clear evidence to the contrary. Erickson, 65 M.J. at
225 (citation omitted). Similar to our analysis above,
we find nothing in the record to suggest the military
judge would have improperly considered trial
counsel’s “evil” comment. Accordingly, we are
confident Appellant was convicted on the basis of the
evidence alone. See Fletcher, 62 M.J. at 184
F. Sentence Severity
1. Law
We review issues of sentence appropriateness de
novo. United States v. Lane, 64 M.J. 1, 2 (C.A.A.F.
2006) (citing United States v. Cole, 31 M.J. 270, 272
(C.M.A. 1990)). We may affirm only as much of the
sentence as we find correct in law and fact and
determine should be approved on the basis of the
entire record. Article 66(d), UCMJ, 10 U.S.C. § 866(d).
“We assess sentence appropriateness by considering
the particular appellant, the nature and seriousness
of the offense[s], the appellant’s record of service, and
all matters contained in the record of trial.” United
States v. Sauk, 74 M.J. 594, 606 (A.F. Ct. Crim. App.
2015) (en banc) (per curiam) (alteration in original)
(citing United States v. Anderson, 67 M.J. 703, 705
(A.F. Ct. Crim. App. 2009) (per curiam)). Our sentence
appropriateness review includes “considerations of
uniformity and evenhandedness of sentencing
decisions.” United States v. Sothen, 54 M.J. 294, 296
(C.A.A.F. 2001) (citations omitted). Although we have
“broad discretionary power to review sentence
appropriateness,” United States v. Kelly, 77 M.J. 404,
405 (C.A.A.F. 2018), we have no authority to grant
mercy, United States v. Nerad, 69 M.J. 138, 146
(C.A.A.F. 2010).
96a
Courts of Criminal Appeals (CCAs) are “not
required . . . to engage in sentence comparison with
specific [other] cases ‘except in those rare instances in
which sentence appropriateness can be fairly
determined only by reference to disparate sentences
adjudged in closely related cases.’” United States v.
Lacy, 50 M.J. 286, 288 (C.A.A.F. 1999) (quoting
United States v. Ballard, 20 M.J. 282, 283 (C.M.A.
1985)). Cases are “closely related” when, for example,
they involve “coactors involved in a common crime,
servicemembers involved in a common or parallel
scheme, or some other direct nexus between the
servicemembers whose sentences are sought to be
compared.” Id. “[A]n appellant bears the burden of
demonstrating that any cited cases are ‘closely
related’ to his or her case and that the sentences are
‘highly disparate.’ If the appellant meets that burden
. . . then the Government must show that there is a
rational basis for the disparity.” Id.
A CCA may compare an appellant’s case to other
non-“closely related” cases in order to assess the
propriety of the sentence, although it is not required
to do so. United States v. Wacha, 55 M.J. 266, 267
(C.A.A.F. 2001). However, unless the cases are closely
related, “[t]he appropriateness of a sentence generally
should be determined without reference or
comparison to sentences in other cases.” United States
v. LeBlanc, 74 M.J. 650, 659 (A.F. Ct. Crim. App.
2015) (en banc) (citing Ballard, 20 M.J. at 283).
2. Analysis
Appellant contends his sentence to confinement for
21 years in inappropriately severe in light of
“numerous mitigating factors,” and that this court
should “provide him sentence relief of at least 15
97a
years.” In addition, Appellant personally asserts this
court should compare his sentence to the sentences in
11 other cases involving sexual assault as reflected in
unpublished opinions this court issued between 2002
and 2017.
With respect to comparing Appellant’s sentence
with those in other specific cases, Appellant has not
attempted to demonstrate any of those cases have a
“direct nexus” or are in any other way closely related
to his own. See Lacy, 50 M.J. at 288. We find,
moreover, Appellant has not demonstrated that an
exception to the general rule against directly
comparing sentences in non-closely related cases
should apply here. See LeBlanc, 74 M.J. at 659.
Accordingly, we decline to engage in such
comparisons.
Turning to the evidence and unsworn statements
in the instant case, Appellant asserts several
mitigating circumstances. He points to his
“unblemished” 19-year record of duty performance
and absence of prior criminal history. He emphasizes
tragedies in his personal life that have negatively
affected his mental health. Appellant also cites other
mental health concerns including PTSD, flashbacks,
and Tourette’s Syndrome. Appellant also cites the
“Forensic Psychological Evaluation Risk Assessment”
report created by Dr. JF, the Defense’s clinical and
forensic psychologist, which was admitted as a
defense exhibit; according to the report, Appellant
“presents as a low-risk offender relevant to sexual
violence.”
Although we acknowledge the arguably mitigating
circumstances Appellant cites, we are not persuaded
his sentence to 21 years in confinement is
98a
inappropriately severe. Appellant sexually assaulted
KC twice while she was pregnant, disregarding her
crying and pleading for him to stop. He threatened her
with physical violence many times, including threats
to kill her or disfigure her face. These threats were
made more credible and disturbing by Appellant’s
repeated physical violence toward KC, including
strangling her on two separate occasions, striking her
on the head, and putting the point of a screwdriver to
her neck. Appellant does not contend, and the record
does not indicate, that he was in any way not
responsible for his crimes against KC. Appellant faced
a maximum potential term of 70 years in confinement,
in addition to reduction in rank, total forfeitures, and
the mandatory dishonorable discharge. The
mitigating circumstances Appellant cites were all
presented to the military judge, who we may presume
took them into account in arriving at the adjudged
sentence. Having given individualized consideration
to Appellant, the nature and seriousness of the
offenses, Appellant’s record of service, and all other
matters contained in the record of trial, we conclude
Appellant’s sentence, although severe, is not
inappropriately so.
G. Post-Trial and Appellate Delay
1. Additional Background
Appellant was sentenced on 29 November 2018.
After Appellant’s trial, the court reporter prioritized
transcribing two other courts-martial that had taken
place before Appellant’s. In January 2019, the court
reporter requested transcription assistance, and she
received a total of five days of such assistance from
two other court reporters. The original court reporter
did not begin transcribing the proceedings of
99a
Appellant’s trial herself until 25 February 2019. She
forwarded the transcripts to the arraignment judge
and trial judge on 14 April 2019, and the base legal
office received the record of trial authentications from
both military judges on 19 April 2019. Appellant’s
area defense counsel25 received the staff judge
advocate recommendation on 29 April 2019 and
Appellant received it on 1 May 2019. Appellant’s area
defense counsel submitted clemency matters to the
convening authority on 29 May 2019 after he obtained
an extension of time in which to file. The convening
authority took action on 31 May 2019, 183 days after
Appellant was sentenced.
The record of trial was docketed with this court 19
days later, on 19 June 2019. Appellant submitted his
original assignments of error to this court on 6 June
2020 after obtaining ten enlargements of time. With
the court’s permission, Appellant submitted a
supplement to his assignments of error on 15 July
2020 and did not submit his declaration in support of
his assignments of error until 20 July 2020. On 27
July 2020, the Government moved to compel
declarations from trial defense counsel responsive to
Appellant’s ineffective assistance of counsel claims;
this court granted the motion on 6 August 2020. The
Government timely submitted its original answer
brief on 17 September 2020. Appellant filed his reply
brief with this court on 8 October 2020 after
requesting
and
being
granted
additional
enlargements of time.
25 Instead of Capt CB, a different military defense counsel was
assigned to assist Appellant with post-trial matters due to
Appellant’s claims that his trial defense team had been
ineffective.
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On 26 April 2021, while Appellant’s case was
pending review at this court, Appellant submitted the
petition for a new trial on the basis of fraud on the
court-martial and newly discovered evidence, as
analyzed above. On 14 June 2021, this court returned
the record of trial to The Judge Advocate General for
the DuBay hearing. After two delays, related in part
to the question of whether KC would be required to
travel to the United States for the hearing during the
COVID-19 pandemic,26 the DuBay hearing ultimately
took place on 5 and 6 April 2022. The DuBay judge
entered her written findings of fact and conclusions of
law on 12 April 2022, the court reporter certified the
transcript on 3 June 2022, and the record was redocketed with this court on 8 July 2022.
Appellant submitted his post-DuBay hearing
assignments of error on 30 August 2022. On 28
September 2022, Appellant moved for leave to file a
supplemental assignment of error and to attach a
declaration from Appellant in support of the
supplemental assignment of error; over the
Government’s opposition, this court granted these
motions on 5 and 6 October 2022. The Government
submitted its answer to Appellant’s post-DuBay brief
on 11 October 2022, and its answer to Appellant’s
supplemental assignment of error on 14 October 2022.
2. Law
“[C]onvicted servicemembers have a due process
right to timely review and appeal of courts-martial
convictions.” United States v. Moreno, 63 M.J. 129,
135 (C.A.A.F. 2006) (citations omitted). We review de
26 See In re KC, Misc. Dkt. No. 2021-06, 2021 CCA LEXIS 593
(A.F. Ct. Crim. App. 9 Nov. 2021) (order).
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novo an appellant’s entitlement to relief for post-trial
delay. Id. at 135 (citations omitted). In Moreno, the
CAAF established a presumption of facially
unreasonable delay when the convening authority
does not take action on the sentence within 120 days
of sentencing, when the record of trial is not docketed
with the CCA within 30 days of action, or when the
CCA has not rendered a decision within 18 months of
docketing. Id. at 142; cf. United States v. Livak, 80
M.J. 631, 633 (A.F. Ct. Crim. App. 2020) (applying
Moreno in the context of new post-trial procedures
applicable to cases referred to trial on or after 1
January 2019).
Where there is such a facially unreasonable delay,
we examine the four factors set forth in Barker v.
Wingo, 407 U.S. 514, 530 (1972): “(1) the length of the
delay; (2) the reasons for the delay; (3) the appellant’s
assertion of the right to timely review and appeal; and
(4) prejudice [to the appellant].” Moreno, 63 M.J. at
135 (citations omitted). The CAAF identified three
types of cognizable prejudice for purposes of an
appellant’s due process right to timely post-trial
review:
(1)
oppressive
incarceration;
(2)
“particularized” anxiety and concern “that is
distinguishable f
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