Appendix — Craig v. United States (No. 06-802)
Supreme Court brief2006
Ask Donna
What actually matters in this document.
Text
06-8020EC11 2006
No. ___OEIGE OF THE CLERK
Jn The
Supreme Court of the Anited States
MICHAEL F. CRAIG, ET AL.,
Petitioners,
V.
UNITED STATES OF AMERICA,
Responaent.
On Petition for a Writ of Certiorari to the
United States Court of Appeals for the Armed Forces
APPENDIX TO THE
PETITION FOR A WRIT OF CERTIORARI
RICHARD D. BELLISS ROLANDO R. SANCHEZ
DARRIN W. MACKINNON Major, U. S. Marine Corps
RICHARD H. MCWILLIAMS Counsel of Record
BRIAN L. MIZER
STEPHEN C. REYES Navy-Marine Corps
JEFFREY S. STEPHENS Appellate Review Activity
ANTHONY S. YIM 1014 N Street, S.E.
Military Defense Counsel Bldg. 200. Suite 200
Attornevs for Petitioners Washington, D.C. 20374
(202) 685-7390
TABLE OF CONTENTS
For each Petitioner the Order of the Court of Appeals
for the Armed Forces is followed by the opinion of the
Navy-Marine Corps Court of Criminal Appeals.
Page
Appendix A (Craig, No. 05-0278/MC) ............::.ece- la
Appendix B (Craig, CCA No. 200301772)................ 3a
Appendix C (Boles, No. 06-0275/MC) .........:seeeeeees 6a
Appendix D (Boles, CCA No. 200102155)................ 8a
Appendix E (Bricker, No. 05-0709/MC)..............064. 14a
Appendix F (Bricker, CCA No. 200001970) ........... l6a
Appendix G (Diaz, No. 05-0500/NA).............::se0ee 26a
Appendix H (Diaz, CCA No. 200200374) .............. 28a
Appendix I (Duran, No. 06-0408/NA) .............::e00 84a
Appendix J (Duran, CCA No. 200000781).............. 86a -
(1)
Appendix K (Durfee, No. 06-0109/NA)............:c0008 98a
Appendix L (Durfee, CCA No. 9901453).............. 10la
Appendix M (Forney, No. 04-0604/NA).............4.. 118a
Appendix N (Forney, CCA No. 200001573) ......... 1204
Appendix O (Francois, No. 05-0478).............:0008 127a
Appendix P (Francois, CCA No. 200101967)... 129a
Appendix Q (Gaines, No. 06-0127/NA)..............0+ 132a
Appendix R (Gaines, CCA No. 200300828).......... 134a
Appendix S (Gilmore, No. 06-0321/MC)............... 155a
Appendix T (Gilmore, CCA No. 200401 106)........ 157a
Appendix U (Harris, No. 06-0704)............ccceceeeeeee 162a
Appendix V (Harris, CCA No. 200500448)........... 164a
Appendix W (Humphrey, No. 05-0552/MC)......... 174a
Appendix X (Humphrey, CCA No. 200200787)....176a
ill
Appendix Y (Jenkins, No. 03-0473/NA)............04. 182a
Appendix Z (Jenkins, CCA No. 200101151)......... 184a
Appendix AA (Johnson II, No. 05-0634/MC)........ 220a
Appendix BB (Johnson II, CCA No. 200200401) .222a
Appendix CC (Kamely, No. 06-0417) .............0..... 228a
Appendix DD (Kamely, CCA No. 200201248).....230a
Appendix EE (Leger II, No. 06-0536/MC)............ 240a
Appendix FF (Leger II], CCA No. 200401098)......242a
Appendix GG (Lucas, No. 06-0004/MC)............... 25la
Appendix HH (Lucas, CCA No. 200300760) ........ 253a
Appendix II (McClelland, No. 06-0440/NA)......... 283a
Appendix JJ (McClelland, CCA No. 200101300)..285a
Appendix KK (Owens, No. ()5-0694/NA)...........-- 295a
Appendix LL (Owens, CCA \No. 200100297)........ 297a
piateieieieinieieaeee
a
iV
Page
_ Appendix MM (Phillips, No. 06-0306/MC)........... 322a
Appendix NN (Phillips, CCA No. 200300969)......324a
Appendix OO (Pritchett, No. 05-741/NA)............. 344a
Appendix PP (Pritchett, CCA No. 9601212)......... 346a
Appendix QQ (Ruggs, No. 05-0421/NA)............... 359a
Appendix RR (Ruggs, CCA No. 200301267)........ 36la
Appendix SS (Shiloh, No. 06-0034/NA)................ 370a
Appendix TT (Shiloh, CCA No. 200101238)........372a
Appendix UU (Spencer, No. 06-0052/NA)............. 387a
Appendix VV (Spencer, CCA No. 200401948).....389a
Appendix WW (Szymczyk, No. 05-0697/MC)......392a
Appendix XX (Szymezyk, CCA No. 20000718) ...394a
Appendix YY (Thompson, No. 04-0372/MC) ....... 410a
Appendix ZZ (Thompson, CCA No. 200101956)..412a
Appendix AAA (Tilman, No. 05-0353/NA).......... 427a
Appendix BBB (Tilman, CCA No. 200100193)....429a
Appendix FFF (Williams, CCA No. 200202264) ..455a
Appendix GGG (Statutory Language).................... 476a
la
Appendix A
UNITED STATES, Appellee
Vv.
Michael F. CRAIG, Staff Sergeant (E-6), U.S. Marine
Corps, Appellant
No. 05-0278/MC
UNITED STATES COURT OF APPEALS FOR
THE ARMED FORCES
Crim. App. Dkt. No. 200301772
~ September 11, 2006, Ordered
Counsel for Appellant: Captain Rolando R. Sanchez,
USMC.
Counsel for Appellee: LT Kathleen Helmann, JAGC,
USNR.
On consideration of the granted and specified issues, in
light of United States v. Moreno, 63 M.J. 129 (C.A.A.F.
2006), and United States v. Allison, 63 M.J. 365
(C.A.A.F. 2006), assuming that the Appellant was
denied his due process right to speedy post-trial review
_and appeal, that error was harmless beyond a reasonable
\doubt. Accordingly, it is, by the Court, this 11™ day of
September, 2006,
2a
ORDERED:
That the decision of the United States Navy-Marine
Corps Court of Criminal Appeals is affirmed.
For the Court,*
/s/ William A. DeCicco
Clerk of the Court
* CRAWFORD, Judge (concurring in the result):
I concur in the result in this case but disassociate
myself from the reasoning in United States v.
Moreno, 63 M.J. 129, 144 (C.A.A.F. 2006)
(Crawford, J., concurring in part and dissenting in
part), and United States v. Allison, 63 M.J. 365, 371
(C.A.A.F. 2006) (Crawford, J., concurring in part
and in the result).
3a
Appendix B
IN THE U.S. NAVY-
MARINE CORPS COURT OF CRIMINAL APPEALS
WASHINGTON NAVY YARD
WASHINGTON, D.C.
BEFORE
W.L. RITTER C.L. SCOVEL M.J. SUSZAN
UNITED STATES ;
Vv.
Michael F. CRAIG
Staff Sergeant (E-6), U.S. Marine Corps
NMCCA 200301772 Decided 7 December 2004
Sentence adjudged 9 January 2001. Military Judge: S.A.
Folsom. Review pursuant to Article 66(c), UCMJ, of
General Court-Martial convened by Commanding
General, Ist FSSG, MarForPac, Camp Pendleton, CA.
LCDR MARY MCALEVY, JAGC, USNR, Appellate
Defense Counsel
Maj J.ED CHRISTIANSEN, USMC, Appellate Defense
Counsel
LT KATHLEEN HELMANN, JAGC, USNR, Appellate
4a
Government Counsel
AS AN UNPUBLISHED DECISION, THIS OPINION
DOES NOT SERVE AS PRECEDENT.
PER CURIAM:
We have examined the record of trial, the appellant's
assignment of error concerning post-trial processing
delay, and the Government’s response. We conclude
that the findings and sentence are correct in law and fact
and that no error materially prejudicial to the substantial
rights of the appellant was committed. See Articles
59(a) and 66(c), Uniform Code of Military Justice, 10
U.S.C. §§ 859(a) and 866(c).
We are cognizant of this court's power under Article
66(c), UCMJ, to grant sentence relief for excessive post-
trial delay even in the absence of actual prejudice. See
United States v. Tardif, 57 M.J. 219, 224 (C.A.A.F.
2002). Assuming the post-trial delay in this case is
excessive, we do not find any prejudice or other harm to
the appellant resulting from it, nor do we conclude that it
affects the "findings and sentence [that] ‘should be
approved,’ based on all the facts and circumstances
Sa
reflected in the record." Jd. (emphasis added). We
therefore decline to grant relief on this basis, and affirm
the findings of guilty and sentence, as approved by the
convening authority.
For the Court
R.H. TROIDL
Clerk of Court
6a
Appendix C
UNITED STATES, Appellee
v.
Cameron D. BOLES
Lance Corporal (E-3), U.S. Marine Corps
No. 06-0275/MC
UNITED STATES COURT OF APPEALS FOR
THE ARMED FORCES
Crim. App. Dkt. No. 200102155
September 19, 2006, Ordered
Counsel for Appellant: LCDR Jason Grover, JAGC,
USN.
Counsel for Appellee: LT Craig A. Poulson, JAGC,
USNR.
On consideration of the petition for granted of review of
the decision of the United States Navy-Marine Corps
Court of Criminal Appeals, and in light of United States
v. Moreno, 63 M.J. 129 (C.A.A.F. 2006), and United
States v. Allison, 63 M.J. 365 (C.A.A.F. 2006), assuming
that Appellant was denied his due process right to
speedy post-trial review and appeal, that error was
Ta
harmless beyond a reasonable dowst. Accordingly, it is,
by the Court, this 19" day of September, 2006,
ORDERED:
That said petition is hereby granted; and
That the decision of the United States Navy-Marine
Corps Court of Criminal Appeals is affirmed.
For the Court,*
/s/ William A. DeCicco
Clerk of the Court
CRAWFORD, Judge (concurring in the result):
I concur in the result in this case but disassociate
myself from the reasoning in United States v.
Moreno, 63 MJ. 129, 144 (C.A.A.F. 2006)
(Crawford, J., concurring in part and dissenting in
part), and United States v. Allison, 63 M.J. 365, 371
(C.A 4.F. 2006) (Crawford, J., concurring in part
and in the result).
8a
Appendix D
IN THE U.S. NAVY-
MARINE CORPS COURT OF CRIMINAL APPEALS
WASHINGTON NAVY YARD
WASHINGTON, D.C.
BEFORE
C.L. CARVER D.A. WAGNER R.W. REDCLIFF
UNITED STATES
v.
Cameron D. BOLES
Lance Corporal (E-3), U.S. Marine Corps
NMCCA 200102155 Decided 26 May 2005
Sentence adjudged 19 October 2000. Military Judge:
F.A. Delzompo. Review pursuant to Article 66(c),
UCMJ, of General Court-Martial convened by
Commanding General, 3d Marine Aircraft Wing, MCAS
Miramar, San Diego, CA.
LT JASON GROVER, JAGC, USN, Appellate Defense
Counsel
LT FRANK GATTO, JAGC, USNR, Appellate
Government Counsel
9a
AS AN UNPUBLISHED DECISION, THIS OPINION
DOES NOT SERVE AS PRECEDENT.
PER CURIAM:
A general court-martial composed of officer and enlisted
members convicted the appellant, contrary to his pleas,
of conspiracy to commit rape and rape. Additionally, the
appellant was convicted, consistent with his pleas, of
making a false official statement. The appellant's
offenses violated Articles 81, 107, and 120, Uniform
Code of Military Justice, 10 U.S.C. §§ 881, 907, and
920. The appellant was sentenced to confinement for 2
years, total forfeiture of pay and allowances, reduction to
pay grade E-l, and a dishonorable discharge. The
convening authority approved the sentence as adjudged.
There was no pretrial agreement.
We have carefully examined the record of trial and the
appellant’s two assignments of error contending that he
was denied his right to a speedy trial because the
Government delayed in serving preferred charges upon
him and that he was prejudiced by post-trial processing
delay. We have also considered the Government’s
response.
We conclude that the findings and sentence are correct
in law and fact and that no error materially prejudicial to
the substantial nghts of the appellant was committed.
See Articles 59(a) and 66(c), UCMJ.
10a
Speedy Trial
The appellant contends that he was denied his right to a
speedy trial under Article 10, UCMJ, when 20 days
passed between preferral and service of the charge upon
him and 26 days passed to correct a procedural error.
The appellant argues that he was prejudiced by this
pretrial delay because he was placed in special quarters
and was unable to "exercise and fell out of shape."
Appellant's Brief of 21 Nov 2003 at 6. As a result, the
appellant asserts that his ability to pursue a good military
character defense was adversely impacted. Jd. at 7. We
disagree.
Once an accused is placed in pretrial confinement,
immediate measures must be taken to notify him of the
charges against him and either bring him to trial or
dismiss the charges. Art. 10, UCMJ. Although the
government is required to exercise reasonable diligence
in bringing an accused to trial, proof of constant motion
is unnecessary. Unite States v. Kossman, 38 M.J. 258,
262 (C.M.A. 1993). On appellate review, we give
substantial deference to the factual findings of the
military judge. See United States v. Doty, 51 M.J. 464,
465 (C.A.A.F. 1999). We are required to consider: (1)
the length of the delay; (2) the reasons for the delay; (3)
the assertion of the right to speedy trial; and (4) the
existence of prejudice. See United States v. Birge, 52
M.J. 209, 212 (C.A.A.F. 1999)(quoting Barker v.
Wingo, 407 U.S. 514, 530 (1972). We should also
consider such factors as: (1) did the appellant enter
pleas of guilty, and if so, was it pursuant to a pretrial
11
agreement; (2) was credit awarded for pretrial trial
conferment on the sentence; \(3) was the Government
guilty of bad faith in creating the delay; and (4) did the
appellant suffer any ‘prejudice|to the preparation of his
case as a result of the delay. /
Applying these factors, we find no speedy trial violation
pursuant to Article 10, UCMJ.| We begin by noting that
the complained of 46-day delay was minimal and that the
appellant received appropriate credit for all the pre-trial
confinement he served. Additionally, although the —
appellant requested to be released from pretrial
confinement, he made no specific request for a speedy
trial prior to arraignment. We also find that “there is no
evidence of willful or malicious conduct on the part of
the Government to create the delay”. Birge, 52 M.J. at
212. Finally, we find no specific disadvantage or
prejudice to the appellant's trial preparation resulting |
from the delay in serving preferred charges upon him or
in correcting a referral error.
Having carefully examined the record of trial, including
the extensively litigated pretrial motion, we hold that the
military judge’s findings are supported by the record and
adopt them as our own. Appellate Exhibits VI, X;
Record at 135-43. We also concur with his conclusion
that the Government acted with “reasonable diligence”
in bringing the appellant to trial. See Kossman, 38 M.J.
at 262. Thus, this assignment of error is without merit.
12a
Post-Trial Processing Delay |
The appellant also contends that he was denied speedy
post-trial review of his conviction because 458 days
passed before the record of trial was docketed with this
Court. As a result, he requests that we disapprove his
dishonorable discharge and substitute a bad-conduct
discharge. We decline to do so.
In determining if post-trial delay violates the appellant’s
due process rights, we consider four factors: (1) the
length of the delay, (2) the reasons for the delay, (3) the
appellant’s assertion of the right to a timely appeal, and
(4) prejudice to the appellant. United States v. Jones, _
M.J. — (C.A.A.F. May 10, 2005)(citing Barker v.
Wingo, 407 U.S. at 530). If the length of the delay itself
is not unreasonable, there is no need for further inquiry.
If, however, we conclude that the length of the delay is
“facially unreasonable,” we must balance the length of
the delay with the other three factors. Jones, slip. op, at
8. Moreover, in extreme cases, the delay itself may
“give rise to a strong presumption of evidentiary
prejudice.” /d., slip op. at 9.
Here, there was a delay of 458 days from the date of
sentence to the date the six volume record of trial was
docketed with this court for review. We find that the
unexplained delay alone is facially unreasonable,
triggering a due process review. Since there are no
explanations for the delay in the record, we look to the
third and fourth factors. We find no assertion of the
right to a timely appeal, nor do we find any claim or
13a
evidence of prejudice. Thus, we conclude that there has
been no due process violation due to the post-trial delay.
We are also aware of our authority to grant relief under
Article 66, Uniform Code of Military Justice, 10 U.S.C.
§§ 866, but we decline to do so. Jd.; United States v.
Oestmann, _M.J.__ (C.A.A.F. May 10, 2005); United
States v. Toohey, 60 M.J. 100 (C.A.A.F. 2004); Diaz v.
Judge Advocate General of the Navy, 59 M.J. 34, 37
(C.A.A.F..2003); United States v. Tardif, 57 M.J. 219,
224 (C.A.A.F. 2002).
Conclusion
Accordingly, the findings of guilty and the sentence, as
approved by the convening authority, are affirmed.
For the Court
R.H. TROIDL
Clerk of Court
14a
Appendix E
UNITED STATES, Appellee
v.
Charles M. BRICKER, Aviation Machinist’s Mate
First Class (E-6), United States Navy, Appellant
No. 05-0709/NA
UNITED STATES COURT OF APPEALS FOR
THE ARMED FORCES
Crim. App. Dkt. No. 200001970
September 11, 2006, Ordered
Counsel for Appellant: Captain Rolando R. Sanchez,
USMC.
Counsel for Appellee: Captain Roger E. Mattioli,
USMC.
On consideration of the specified issue, in light of
United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006),
and United States v. Allison, 63 M.J. 365 (C.A.A.F.
2006), assuming that the Appellant was denied his due
process right to speedy post-trial review and appeal, that
error was harmless beyond a reasonable doubt.
Accordingly, it is, by the Court, this 11" day of
September, 2006,
15a
ORDERED:
That the decision of the United States Navy-Marine
Corps Court of Criminal Appeals is affirmed.
For the Court,*
/s/ William A. DeCicco
Clerk of the Court
* CRAWFORD, Judge (concurring in the result):
I concur in the result in this case but disassociate
myself from the reasoning in United States v.
Moreno, 63 MJ. 129, 144 (C.A.A.F. 2006)
(Crawford, J., concurring in part and dissenting in
part), and United States v. Allison, 63 M.J. 365, 371
(C.A.A.F. 2006) (Crawford, J., concurring in part
and in the result).
l6a
Appendix F
UNITED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
_ BEFORE
Charles Wm. DORMAN, C.A. PRICE, R.C.
HARRIS.
UNITED STATES
v.
Charles M. BRICKER, Aviation Machinist’s Mate
First Class (E-6), United States Navy, Appellant
NMCCA 200001970 Decided 27 June 2005
Sentence adjudged 29 June 2000.
Military Judge: D.M. White.
Review pursuant to Article 66(c), UCMJ, of General
Court-Martial convened by Commander, Navy Region
Northwest, Silverdale, WA.
MAJ PHILLIP D. SANCHEZ, USMC, Appellate
Defense Counsel.
CAPTAIN ROLANDO R. SANCHEZ, USMC,
Appellate Defense Counsel.
17a
MAJ RAYMOND E. BEAL II, USMC, Appellate
Government Counsel.
AS AN UNPUBLISHED DECISION, THIS OPINION
DOES NOT SERVE AS PRECEDENT.
HARRIS, Judge:
The appellant was tried by a general court-martial
composed of a military judge, sitting alone. Contrary to
his pleas, the appellant was convicted of committing an
indecent act with a child under the age of 16 years, in
violation of Article 134, Uniform Code of Muitary
Justice, 10 U.S.C. § 934. The appellant was sentenced to
confinement for 18 months and a bad-conduct discharge.
The military judge recommended that the convening
authority suspend the bad-conduct discharge and
confinement in excess of 5 months for 3 years and, if
requested, defer and suspend’ automatic forfeitures. The
convening authority approved the adjudged sentence
and, except for the bad-conduct discharge, ordered the
punishment executed.
After carefully considering the record of trial, the
appellant's three assignments of error, and the
Government's response, we conclude that the findings
and the sentence are correct in law and fact and that no
l
We presume that the military judge misspoke,
intending to say, "waive," since automatic forfeitures
cannot be suspended. United States v. Emminizer, 56
M.J. 441, 443 (C.A.A.F. 2002).
18a
error materially prejudicial to the substantial rights of the
appellant was committed. Arts. 59(a) and 66(c), UCMJ.
Sufficiency of Evidence
In the appellant's first assignment of error, he asserts that
the Government failed to offer factually and legally
sufficient evidence to prove that the appellant had any
indecent intent towards the victim. The appellant avers
that this court should set aside his conviction. We
disagree.
This court has an independent statutory obligation to
review each case de novo for legal and factual
sufficiency, and may substitute its own judgment for that
of the trial court. See Art. 66(c), UCMJ; United States v.
Turner, 25 M.J. 324, 324-25 (C.M.A. 1987). The test for
legal sufficiency is whether, considering the evidence in
the light most favorable to the prosecution, a reasonable
fact-finder could have found that all the essential
elements were proven beyond a reasonable doubt.
United States v. Reed, 54 M.J. 37, 41 (C.A.A.F.
2000)(citing Jackson v. Virginia, 443 U.S. 307, 319, 61
L. Ed. 2d 560, 99 S. Ct. 2781 (1979)). The test for
factual sufficiency is whether, after weighing the
evidence in the record of trial and making allowances for
not having personally observed the witnesses, this court
is convinced of the appellant's guilt beyond a reasonable
doubt. Reed, 54 M.j. at 41; Turner, 25 M.J. at 325; see
Art. 66(c), UCMJ. In exercising the duty imposed by this
"awesome, plenary power," United States v. Cole, 31
M.J. 270, 272 (C.M.A. 1990), this court may judge the
19a
credibility of witnesses, determine controverted
questions of fact, and substitute its judgment for that of
the military judge or court-martial members. Art. 66(c),
UCM].
To support a conviction for committing an indecent act
with a child under the age of 16 years, the Government
must establish the following five elements beyond a
reasonable doubt:
(1) That the [service member] committed a certain act
upon or with the body of a certain person;
(2) That the person was under the age of 16 years and
not the spouse of the [service member]:
(3) That the act of the [service member] was indecent;
(4) That the [service member] committed the act with
intent to arouse, appeal to, or gratify the lust, passions,
or sexual desires of the [service member], the victim, or
both; and
(5) That, under the circumstances, the conduct of the
[service member] was to the prejudice of good order and
discipline in the armed forces or was of a nature to bring
discredit upon the armed forces.
MANUAL FOR COURTS-MARTIAL, UNITED
STATES (1998 ed.), Part IV, P 87b(1).
We have carefully examined all of the evidence admitted
20a
on the merits. We conclude that the evidence is both
legally and factually sufficient on each and every
element of the offense of committing an indecent act
with a child under the age of 16 years. We are therefore
convinced, beyond a reasonable doubt, that the appellant
is guilty of this offense. As such, we decline to grant
relief.
Ineffective Assistance of Counsel
In the appellant's second assignment of error, he asserts
that he was denied his Sixth Amendment right under the
U.S. Constitution to effective assistance of counsel when
his trial defense counsel failed to call witnesses during
sentencing and failed to present financial impact
evidence regarding his potential loss of retirement
benefits. The appellant avers that this court should set
aside his sentence and remand his case for a new
sentencing hearing. We disagree.
A military accused enjoys the mght to effective
assistance of counsel in sentencing hearings. See United
States v. Alves, 53 M.J. 286, 289 (C.A.A.F. 2000). To
prevail on such a claim, however, an accused must
satisfy the two-prong test established in Strickland v.
Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 104
S. Ct. 2052 (1984), and demonstrate: (1) "a deficiency in
counsel's performance that is 'so serious that counsel was
not functioning as the "counsel" guaranteed the
defendant by the Sixth Amendment’; and (2) that the
deficient performance prejudiced the defense [through]
errors . . . SO serious as to deprive the defendant of a fair
2la
trial, a trial whose result is reliable." See Alves, 53 M.J.
at 289; United States v. Scott, 24 M.J. 186, 188 (C.M.A.
1987). :
- Under the deficiency prong, "the competence of counsel
is presumed.” Scott, 24 M.J. at 188. This presumption is
overcome if the counsel's performance falls "below an
objective standard of reasonableness.” Strickland, 466
U.S. at 688. Reasonableness is "evaluated from counsel's
perspective at the time of the alleged error and in light of
all the circumstances." Scott, 24 M.J. at 188.
At the time of trial, the appellant had 17 years of service
in the Navy. The appellant insists that his trial defense
counsel was constitutionally ineffective when he failed
to investigate and present the economic impact a
punitive discharge would have on the appellant after 17
years of military service, and failed to call sufficient
witnesses to testify for him. Specifically, the appellant
insists that his trial defense counsel was constitutionally
deficient in that he failed to present sufficient evidence
of rehabilitation, mitigation, and extenuation.
To determine whether the "presumption of competence
has been overcome," our superior court has outlined a
three-part inquiry:
(1) Are appellant's allegations true; if so, “is there a
reasonable explanation for counsel's actions?"
(2) If the allegations are true, did defense counsel's level
of advocacy fall "measurably below the performance
(ordinarily expected) of fallible lawyers?" and
22a
(3) If a defense counsel was ineffective, is there a
"reasonable probability that, absent the errors," there
would have been a different result.
United States v. Gilley, 56 M.J. 113, 124 (C.A.A.F.
2001) (quoting United States v. Polk, 32 M.J. 150, 153
(C.M.A. 1991), appeal after remand aff'd, 59 M.J. 245
(C.A.A.F. 2004). Applying this test, we are of the
opinion that the appellant has not overcome the
presumption of competence.
The appellant contends that his trial defense counsel
"failed to present mitigation evidence concerning the
financial impact caused by a bad[-]conduct discharge."
Appellant's Brief of 30 Apr 2004 at 13. The appellant
relies on United States v. Greaves, 46 M.J. 133, 138
(C.A.A.F. 1997)(concluding that loss of retirement pay
is the "critical" factor for determining the appropriate
sentence). However, the appellant's assertion has failed
to rebut the strong presumption of competency attached
to his trial defense counsel's representation.
First, the appellant has failed to show that the military
judge did not consider evidence of the potential loss of
future potential retirement benefits during his sentencing
case. The appellant was nearly 3 years away from
retirement at the time of his court-martial. Therefore,
regardless of the outcome of the appellant's court-
martial, the potential benefits of future retirement were
not guaranteed. Further, a military judge can be
presumed to be aware that retirement entails substantial
monetary benefits. As such, we find no prejudice in the
appellant's case despite the omission.
23a
With regard to the appellant's attack on his trial defense
counsel's presentation of a sentencing case, that attack is
not well-taken. In fact, his trial defense counsel put on a
considerable sentencing case on the appellant's behalf.
Further, the appellant has failed to identify the witnesses,
i.e., military character witnesses he would have called
concerning his good military character or what their
testimony would have been, what other evidence he
would have provided through written statements, and
why he did not present these matters in addition to those
he presented to the convening authority before he took
his action.
We conclude that the appellant has failed to overcome
the presumption that his trial defense counsel provided
competent assistance and, further, has failed to show
there is a reasonable probability that, absent the alleged
errors, "there would have been a different result." Gilley
56 M.J. at 124. As such, we decline to grant relief.
Sentence Appropriateness
In the appellant's third assignment of error, he asserts
that his sentence, which includes an unsuspended bad-
conduct discharge, 1s inappropriately severe given the
nature of the offense and the character of the offender.
The appellant avers that this court should set aside the
bad-conduct discharge. We disagree.
A court-martial is free to impose: any legal sentence it
deems appropriate. United States v. Turner, 14 C.M.A.
435, 34 C.M.R. 215, 217 (C.M.A. 1964); RULE FOR
24a
COURTS-MARTIAL 1002, MANUAL FOR COURTS-
MARTIAL, UNITED STATES (2002 ed.). On review, a
court of criminal appeals "may affirm only such findings
of guilty and the sentence or such part or amount of the
sentence as it finds correct in law and fact and
determines, on the basis of the entire record, should be
approved.” Art. 66(c), UCMJ. Further, courts of criminal
appeal are tasked with determining sentence
appropriateness vice granting clemency. United States v.
Healy, 26 M.J. 394, 395-96 (C.M.A. 1988); R.C.M.
1107(b). Clemency, which involves bestowing mercy, is
the prerogative of the convening authority. An
appropriate sentence results from an "individualized
consideration" based on "the nature and seriousness of
the offense and the character of the offender." United
States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982)
(quoting United States v. Mamaluy, 10 C.M.A. 102, 27
C.M.R. 176, 180-81 (C.M.A. 1959)).
The record of trial well-supports the appropriateness of
the appellant's sentence. We are confident that the
appellant received the individualized
consideration required based on the seriousness of his
offense and the nature of his character -- that is all that
the law requires. The appellant's assignment of error
amounts to nothing more than a request for clemency,
which is the prerogative of the convening authority.
Healy, 26 M.J. at 395-96; R.C.M. 1107(b). In this
regard, the convening authority considered the
appellant's request for clemency before taking action on
the appellant's case. As such, we decline to grant relief.
25a
Conclusion
Accordingly, we affirm the findings and the sentence, as
approved by the convening authority.
Chief Judge DORMAN and Senior Judge PRICE
concur.
26a
Appendix G
UNITED STATES, Appellee
V.
Salvador DIAZ
Chief Fire Controlman (E-7), U.S. Navy
No. 05-0500/NA
UNITED STATES COURT OF APPEALS FOR
THE ARMED FORCES
Crim. App. Dkt. No. 200200374
September 11, 2006, Ordered
Counsel for Appellant: LT Stephen C. Reyes, JAGC,
USNR.
Counsel for Appellee: MAJ Kevin C. Harris, USMC.
On consideration of the granted issue, in light of United
States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006), and
United States v. Allison, 63 M.J. 365 (C.A.A.F. 2006),
assuming that Appellant was denied his due process
right to speedy post-trial review and appeal, that error
was harmless beyond a reasonable doubt. Accordingly,
it is, by the Court, this 11" day of September, 2006,
27a
ORDERED:
That the decision of the United States Navy-Marine
Corps Court of Criminal Appeals is affirmed.
\
For the Court,*
/s/ William A. DeCicco
Clerk of the Court
* CRAWFORD, Judge (concurring in the result):
I concur in the result in this case but disassociate
myself from the reasoning in United States _v.
Moreno, 63 M.J. 129, 144 (C.A.A.F. 2006)
(Crawford, J., concurring in part and dissenting in
part), and United States v. Allison, 63 M.J. 365, 371
(C.A.A.F. 2006) (Crawford, J., concurring in part
and in the result).
28a
Appendix H
IN THE U.S. NAVY-
MARINE CORPS COURT OF CRIMINAL APPEALS
WASHINGTON NAVY YARD
WASHINGTON, D.C.
BEFORE
Charles Wm.
DORMAN C.L. SCOVEL M.J. SUSZAN
UNITED STATES
v.
Salvador DIAZ
Chief Fire Controlman (E-7), U.S. Navy
NMCCA 200200374
Sentence adjudged 1 December 2000. Military Judge:
E.W. Loughran. Review pursuant to Article 66(c),
UCMJ, of General Court-Martial convened by
Commander, Navy Region Northeast,
Naval Submarine Base New London, Groton, CT.
LT COLIN KISOR, JAGC, USNR, Appellate Defense
Counsel .
29a
LT FRANK GATTO, JAGC, USNR, Appellate
_ Government Counsel
Maj KEVIN C. HARRIS, USMC, Appellate
Government Counsel
DORMAN, Chief Judge:
The appellant was tried before a general court-martial
composed of officer and enlisted members. Contrary to
his pleas, the appellant was convicted of three
specifications of raping his 12-year-old daughter, and
two specifications of indecent acts upon her. The
appellant’s crimes violated Articles 120 and 134,
Uniforin Code of Military Justice, 10 U.S.C. §§ 920 and
934. The adjudged and approved sentence consists of a
dishonorable discharge, confinement for 9 years,
forfeiture of all pay and allowances, and reduction to pay
grade E-1.
On 10 June 2004, we issued a decision in this case. In
that decision, we determined that the evidence of record
was both legally and factually sufficient to support the
appellant’s conviction of all offenses of which he had
been found guilty. We, however, were unable to resolve
an issue raised by the appellant concerning conflict of
counsel. We thus returned the record of trial to the
Judge Advocate General of the Navy, authorizing a
hearing under United States v. DuBay, 37 C.M.R. 411
(C.M.A. 1967), to answer specific questions concerning
the conflict of counsel issue. That hearing was
conducted on 29 and 30 July 2004, and the case has now
been returned to this court for completion of appellate
30a
review pursuant to Article 66(c), UCMJ.
We have reviewed the record of trial and the appellant’s
eighteen assignments of error (AOE) raised by the
appellate defense counsel, which are as follows:
I. APPELLANT’S SIXTH
AMENDMENT RIGHT TO
CONFLICT-FREE COUNSEL
WAS VIOLATED WHEN THE
MILITARY JUDGE ALLOWED,
WITHOUT OBTAINING A
VALID WAIVER BY APPELL-
ANT, THE DETAILED DEFENSE
COUNSEL TO REPRESENT
APPELLANT DESPITE HIS IN-
FORMING THE COURT OF A
CONFLICT OF INTEREST
AFFECTING THE REPRESENT-
ATION.
Il. APPELLANT DID NOT
RECEIVE EFFECTIVE ASSIST-
ANCE OF COUNSEL BECAUSE
HIS DEFENSE COUNSEL
INTRODUCED NO EVIDENCE
AS TO APPELLANT’S GOOD
MILITARY CHARACTER.
Ill. THE MILITARY JUDGE
ERRED IN ALLOWING THE
GOVERNMENT TO SELECT
3la
WHICH ONE OF THE RELE-
VANT AND NECESSARY
DEFENSE WITNESSES WOULD
NOT BE PRODUCED BASED ON
THE COST OF PRODUCTION.
IV. THE MILITARY JUDGE
ABUSED HIS DISCRETION IN
DENYING THE DEFENSE
CHALLENGE OF LT MCGEE
FOR CAUSE.
V. THE MILITARY JUDGE
ABUSED HIS DISCRETION IN
DENYING THE DEFENSE
CHALLENGE OF SENIOR CHIEF
LASHER FOR CAUSE.
VI. THE MILITARY JUDGE
ABUSED HIS DISCRETION IN
DENYING THE DEFENSE
CHALLENGE OF SENIOR CHIEF
DEAN FOR CAUSE.
Vil. THE MILITARY JUDGE
ABUSED HIS DISCRETION IN
PERMITTING THE GOVERN-
MENT TO _ PRESENT _IR-
RELEVANT AND CONFUSING
EXPERT TESTIMONY IN
ORDER TO RECOVER FROM
THE DAMAGING AND FACT-
32a
UALLY ERRONEOUS TESTI-
MONY OF ITS OWN WITNESS.
Vill. THE MILITARY JUDGE
ABUSED HIS DISCRETION IN
NOT ALLOWING THE
DEFENSE COUNSEL TO
IMPEACH EMILY DIAZ WITH
HER PRIOR INCONSISTENT
STATEMENT.
IX. THE MILITARY JUDGE
ERRED IN DECLINING TO
INSTRUCT THE MEMBERS
THAT APPELLANT’S
CHARACTER FOR’ TRUTH-
FULNESS COULD BE CON-
SIDERED BY THE MEMBERS
IN DETERMINING HIS INNO-
CENCE TO THE - RAPE
CHARGE.
X. APPELLANT’S STATUTORY
AND CONSTITUTIONAL
RIGHTS TO SPEEDY APPELL-
ATE REVIEW WERE VIO-
LATED IN THIS CASE.
XI. THE GOVERNMENT
FAILED TO PROVE THE CRIME
OF RAPE BEYOND A REASON-
33a
ABLE DOUBT.
XIl. THE WITHDRAWAL OF
THE CHARGES FROM A
SPECIAL COURT-MARTIAL
AND REFERRAL OF _ THE
CHARGES TO A GENERAL
COURT-MARTIAL WITHOUT
AN EXPLANATION VIOLATED
R.C.M. 604.
XIll. THE CONVENING
AUTHORITY IMPROPERLY RE-
FERRED THE CHARGES TO A
GENERAL COURT-MARTIAL.
XIV. THE ARTICLE 32
INVESTIGATION CONDUCTED
IN THIS CASE WAS FATALLY
DEFICIENT AND THE CHAR-
GES WERE REFERRED TO A
GENERAL COURT-MARTIAL
NOTWITHSTANDING APPELL-
ANT’S TIMELY DEMAND FOR
A PROPER’ ARTICLE 32
INVESTIGATION.
XV. APPELLANT WAS DENIED
DUE PROCESS OF LAW IN
VIOLATION OF THE FIFTH
AMENDMENT OF THE UNITED
STATES CONSTITUTION —IN
34a
THAT HE WAS TRIED BY A
PANEL OF FEWER’ THAN
TWELVE MEMBERS.
XVI. ARTICLE 52, UCM, IS
UNCONSTITUTIONAL AS AP-
PLIED TO APPELLANT’S CASE
IN THAT IT ONLY REQUIRED
CONCURRENCE OF TWO-
THIRDS OF THE MEMBERS TO
CONVICT APPELLANT.
XVII. APPELLANT DID NOT
RECEIVE EFFECTIVE ASSIST-
ANCE OF COUNSEL
THROUGHOUT THE COURT-
MARTIAL PROCESS.
XVIII. THE MILITARY JUDGE
ABUSED HIS DISCRETION IN
PREVENTING THE PROPER
CROSS-EXAMINATION OF
NCIS AGENT DEGNAN.
Appellant’s Brief of 16 Oct 2003 at ii and iii. We have
also considered the Government's response, the Reply
Brief filed by the appellate defense counsel, as well as
the Appellant's Supplemental Reply Brief submitted pro
se pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982). Additionally, we have reviewed the
pleadings submitted by both the appellant and
Governenent after completion of the DuBay hearing, as
35a
well as the record of that hearing. Following our
thorough review of all these materials, we conclude that
the findings and sentence are correct in law and fact, and
that no error materially prejudicial to the substantial
rights of the appellant was committed. See Arts. 59(a)
and 66(c), UCMJ.
Statement of Facts
At the time of trial the appellant was a 47-year-old chief
petty officer with over 20 years in the Navy. The victim
in this case is his natural daughter, who was born in
October 1985. She provided the principal evidence
against the appellant. She testified that the appellant
began to sexually abuse her in March 1998, when the
family was living in Pemberton, NJ, and continued until
just before she reported the abuse in July 1999. At that
time the family had moved to government quarters
aboard Naval Weapons Station (NWS), Earle, NJ. The
appellant had been married to the victim's mother, but
they divorced after the mother abandoned the family.
The abuse began in the family's two-story home in
Pemberton. Prior to the abuse, the victim had been
sharing a room with one of her older sisters. When
another sister moved out of the house, the victim moved
into a downstairs bedroom located across from the
appellant's bedroom. The victim would frequently sleep
in the same bed with the appellant. The first incident
occurred on one such evening. The victim testified that
she believed the appellant thought she was sleeping
when he put his arm around her and felt her body
36a
through her clothes. He then put his hand inside her
clothes and rubbed her vagina for about 10 minutes.
They did not discuss what had happened. She also
testified that after this incident the appellant repeated the
same sort of conduct about every other night. She began
to spend more nights in her own room. Although the
appellant kept his clothes on during these touchings, the
victim could tell that he was aroused because she could
feel his erect penis against her leg. This activity
continued until the victim told her aunt, the appellant's
sister, that the appellant had been touching her
inappropriately. The aunt let the victim go home with
the appellant on the same evening that the victim had
reported the abuse to her. At that time, the appellant told
the victim that if she wanted him to stop touching her,
all she needed to do was to tell him. The victim
responded, telling the appellant to stop, and the touching
ceased until after the family moved to NWS Earle.
The appellant, the victim, and one other sibling moved
to NWS Earle in March 1999, and the appellant began to
touch the victim again, this time rubbing her breasts. At
one point the appellant told the victim that he was doing
this to keep her away from boys. He explained that if he
took care of her at home she would not go looking for
boys at school or on the streets. She also testified that
the touching escalated to sexual intercourse at Earle.
She testified that the appellant had sexual intercourse
with her three times in the quarters at Earle, twice in the
appellant's bedroom and once in the living room. The
victim was scared, confused, and embarrassed. They did
not talk about what happened. All sexual activity
37a
between the two of them stopped after the victim walked
to the medical clinic on base and reported the appellant's
actions.
The appellant testified on his own behalf. During his
testimox1y he admitted that he had fondled the victim’s
breasts and had digitally penetrated her vagina. He also
acknow!edged that the touching could have occurred as
often as twice a week. He further testified that he did
not do this to satisfy his sexual desires, but rather
because he believed that the victim was becoming
sexually promiscuous. The appellant denied having had
sexual intercourse with his daughter. On questioning by
the court members, the appellant testified, "I felt, if my
daughter learned the nght approach to sex with me, it
was much more efficient than learning it from some kid
on the street, that I knew, . . . just wanted to have
another benchmark on his bedpost or something.”
Record at 747. He also testified that he did not explain
to his daughter why he was touching her, but that he told
her, "[w]hat I’m doing is wrong. It's against the law, but
I want you to understand that this is being done, so you
don't get involved with other children of your age.” /d.
a3). .
Sufficiency of the Evidence
In the appellant's eleventh AOE, he asserts that the
evidence is insufficient to prove that he raped his
daughter. We have once again carefully considered this
issue, as well as the sufficiency of evidence with respect
to the allegations that the appellant committed indecent
38a
acts upon his daughter. The test for legal sufficiency is
well-known. It requires this court to review the evidence
in the light most favorable to the Government. In doing
so, if any rational trier of fact could have found the
essential elements of the crime beyond a reasonable
doubt, the evidence is legally sufficient. United States v.
Turner, 25 M.J. 324 (C.M.A. 1987)(citing Jackson v.
Virginia, 443 U.S. 307, 319 (1979). Without question,
with regard to the three specifications of rape and the
two specifications of indecent assault, that standard is
met.
The test for factual sufficiency is more favorable to the
appellant. It requires this court to be convinced of the
appellant’s guilt beyond a reasonable doubt, after
weighing the evidence in the record of trial and making
allowances for not having personally observed the
witnesses. Turner, 25 M.J. at 325. Reasonable doubt,
however, does not mean the evidence must be free from
conflict. United States v. Lips, 22 M.J. 679, 684
(A.F.C.M.R. 1986)(citing United States v. Steward, 18
M.J. 506, 508 (A.F.C.M.R. 1984)). "[T]he factfinders
may believe one part of a witness' testimony and
disbelieve another." United States v. Harris, 8 M.J. 52,
59 (C.M.A. 1979). So too may we.
In resolving the question of factual sufficiency, we have
carefully reviewed the record of trial, but have given no
deference to the factual determinations made at the trial
level. Based on that review, we are convinced beyond a
reasonable doubt of the appellant’s guilt of the charged
offenses. We find the testimony of the victim to be
39a
credible and consistent. While true that the victim gave
differing versions of the appellant's culpability prior to
reporting his criminal conduct to authorities, she had a
reasonable explanation for her earlier "stories."
Furthermore, her testimony concerning the indecent acts
is generally corroborated by the appellant's own
testimony. Although the appellant asserts that when he
touched the victim's breasts and penetrated her vagina
with his fingers he had no intent to gratify his sexual
desires, and although he presented character evidence
that he is a truthful person, we find the appellant’s
testimony disingenuous and unworthy of belief.
Furthermore, we credit the testimony of the victim in
this case, and we find that the evidence of record is both
legally and factually sufficient to support the appellarit’s
conviction on all charges and specifications.
Conflict of Interest/Effective Assistance of Counsel
In the appellant’s first AOE and in his briefs filed after
the DuBay hearing, the appellant argues that he was
denied his Sixth Amendment night to be represented by
attorneys who did not labor under a conflict of interest.
In the appellant’s second and seventeenth AOE’s, he
alleges that he was denied effective assistance of
counsel. Additionally, the appellant himself raises issues
of the adequacy of his representation in his pro se filing
of 19 December 2003. In that filing the appellant
specifically alleges that his attorneys were inadequately
prepared to defend him.
At the first Article 39(a), UCMJ, session of the
40a
appellant's court-martial, the trial defense counsel
informed the military judge of a potential conflict of
interest in the case. During pretrial discovery the
Government provided to the appellant information
suggesting that the appellant assaulted a female petty
officer, Petty Officer F. The trial defense counsel
informed the military judge that he had represented Petty
Officer F on unrelated charges at her own court-martial,
and that he was concerned the Government might
attempt to offer evidence of the alleged assault if the
appellant were to introduce evidence of good military
character. The trial defense counsel also informed the
military judge that if the Government was unwilling to
agree not to use that evidence his client would “in all
likelihood" dismiss the detailed defense counsel as well
as the assistant defense counsel, who also was involved
with Petty Officer F's court-martial. No ruling was made
concerning the issue during that session of the trial.
At a subsequent Article 39(a), UCMJ, session, the
Government raised a motion in limine seeking to have
the military judge find that the detailed defense counsel
did not have a conflict of interest. In answering the
Government’s motion, the appellant submitted an
affidavit stating that:
I am extremely concerned that my
‘counsel feel unable to adequately
represent me regarding any issues
that involve the alleged assault of
[Petty Officer F]. I know that I face
severe punishment including life in
4la
prison if convicted. I do not want
to be represented by lawyers who
do not believe they can do their best
job because of a conflict of interest.
Appellate Exhibit XIV. In litigating this motion, the
Government made clear that if the appellant called
witnesses to testify that he had good military character, it
would ask the witnesses if they were aware that the
appellant had assaulted Petty Officer F. The military
judge found that the Government had a good faith basis
for asking this question, that it could not offer extrinsic
evidence to prove that the assault took place, and that
Petty Officer F was not going to testify. The
Government also indicated that it intended to ask good
military character witnesses if they were aware the
appellant had injured one of his other daughters and told
her to lie about how she had been injured when she went
to the hospital seeking medical treatment for the injury.
While the military judge did not state whether he
believed there to be an actual a possible conflict of
interest, he did state that he would permit the
Government to ask defense character witnesses if they
were aware that the appellant had assaulted Petty Officer
F. Record at 43. With that ruling, the trial defense
counsel informed the military judge that he would advise
the appellant "of his right to dismiss us and request
individual military counsel... ." /d. at 45. The military
judge also advised the appellant of his right to request
individual military counsel (IMC) to avoid any perceived
conflict, and told the appellant that he needed to advise
42a
the military judge the next day if he wanted IMC. /d. at
45-47. The military judge also stated that he found the
conflict "to be kind of [an] extraneous issue," id. at 45,
and that it was “fairly minimal," id: at 48. This Article
39(a), UCMJ, session ended on 30 October 2000. When
the court-martial reconvened on 27 November 2000, the
appellant did not raise the conflict of interest issue. It
did, however, come up again.
Just prior to the members being instructed on findings,
the appellant addressed the military judge concerning the
fact that no evidence of his good military character had
_been presented. A fairly lengthy discussion ensued. /d.
at 785-800. During this dialogue the military judge
explained to the appellant that his counsel had tactical
reasons for the way they handled the issue of good
military character. The appellant specifically stated that
he did not agree with their decision, noting his concern
throughout the court-martial that evidence of his good
military character was not introduced into evidence. The
dialogue concluded with the military judge telling the
appellant that he would not be allowed to represent
himself, or to question witnesses on his own. The
military judge then asked the defense if they wanted to
either reopen their case to present the evidence or reopen
to allow the appellant to retake the stand. The defense
declined both offers. Jd. at 801. .
In our decision of 10 June 2004 we expressed our
concern about the failure of the two trial defense counsel
to introduce evidence of the appellant’s good military
character. We also found that the record failed to
43a
provide sufficient information for us to determine
whether his attorneys had labored under a conflict of
interest that adversely impacted their ability to provide
the appellant with effective representation. To address
these issues we authorized a DuBay hearing, specifically
asking the military judge conducting the hearing to
address the following issues:
(1) whether there was an actual
conflict of interest in the appellant's
court-martial; (2) if there was an
actual conflict of interest, whether it
adversely affected counsel's
representation of the appellant --
focusing on the question of why no
evidence of the appellant's good
military character was presented
during the findings stage of the
appellant's trial; and (3) if there was
an actual conflict of interest,
whether the appellant intended to
waive the conflict.
United States v. Diaz, No. 200200374, unpublished op.
(N.M.Ct.Crim.App. 10 June 2004) at 7 (emphasis in
original). ;
Following a two-day fact-finding DuBay hearing, the
military judge found that the appeliant’s trial defense
counsel had a "legitimate tactical reason . . . not to call
good military character witnesses on the merits."
Essential Findings of Fact and Ruling dated 24 Sep 2004
44a
at 5. The military judge also found that "[t]here was no
actual conflict of interest in appellant’s court-martial."
Id. (emphasis in original).
In the case before us, we were initially concerned by the
absence of evidence of good military character on the
merits. This concern was heightened by the comments
of the two trial defense counsel and the appellant
contained in the record of trial, and the failure of the
military judge to adequately resolve the issue. Those
issues and concerns have now been resolved. We have
carefully reviewed the thorough DuBay hearing
conducted in this case. During that hearing, both of the
appellant’s trial defense counsel were called as witnesses
and asked to explain their trial strategy and tactics and
their view of the conflict of interest issue. In essence,
both counsel testified that the potential conflict of
interest involving Petty Officer F resolved itself when
the military judge ruled that the Government would not
be allowed to present extrinsic evidence concerning the
appellant’s alleged assault upon Petty Officer F. They
also testified that their decision not to present evidence
of good military character was to prevent the
Government from asking those witnesses if they had
heard about the appellant’s alleged assault upon one of
his other daughters. In his post-DuBay pleadings, the
appellant challenges the findings of fact of the military
judge, alleging that the military judge abused his
discretion in believing the testimonies of the two tnial
defense counsel.
The law is quite clear as to the standard of review we
45a
must apply concerning this issue. "A military judge’s
fact-finding is reviewed under a clearly erroneous
standard, and his conclusions of law are reviewed de
novo." United States v. Khamsouk, 57 M.J. 282, 286
(C.A.A.F. 2002)(citing United States v. Monroe, 52 M.J.
326, 330 (C.A.A.F. 2000)); see also United States v.
Anderson, 55 M.J. 198, 201 (C.A.A.F. 2001)(concerning
issue of effective assistance of counsel); United States v.
Spriggs, 52 M.J. 235, 244 (C.A.A.F. 2000)(concerning
whether an attorney-client relationship had been
severed);- United States v. Argo, 46 M.J. 454, 457
(C.A.A.F. 1997)(concerning issues of prosecutorial
misconduct); United States v. Wean, 45 M.J. 461, 463
(C.A.A.F. 1997)(concerning determination regarding the
effectiveness of counsel). Our superior court has also
said that the findings of fact of a military judge are to be
given "substantial deference and will be reversed only
for clear error." United States v. Edmond, 41 M.J- 419,
420 (C.A.A.F. 1995)(quoting United States v. Taylor,
487 U.S. 326, 337 (1988)). In reviewing questions of
fact, we are to "review the evidence ‘in the light most
favorable to the Government’. . . ." United States v.
Richter, 51 M.J. 213, 221 (C.A.A.F. 1999)(quoting
United States v. Kitts, 43 M.J. 23, 27-28 (C.A.A.F.
1995)). Finally, we note that just as the military judge is
evaluating evidence when considering the question of
guilt or innocence, when resolving any factual issue the
military judge must be able to "believe one part of a
witness’ testimony and disbelieve another." Harris, 8
M.J. at 59.
The substantive law is also clear. A military accused has
46a
a constitutional right to the effective assistance of
counsel. Included within that mght is the right to an
attorney who is not encumbered by a conflict of interest
with other clients. United States v. Henry, 50 M.J. 647,
651 (N.M.Ct.Cnm.App. 1999)(citing United States v.
Carter, 40 M.J. 102, 105 (C.M.A. 1994)). But even in
cases where a single attorney is representing individuals
charged with the same crime, that fact alone does not
necessarily give rise to a conflict of interest. Cuyler v.
Sullivan, 446 U.S. 335, 348 (1980). In cases of
"multiple representation," while it is not necessary to
demonstrate prejudice in order to obtain relief, an
appellant must demonstrate that he objected at trial and
that the "conflict of interest actually affected the
adequacy of his representation. .. ." /d. at 348-50.
Prejudice is presumed "only if tke defendant
demonstrates that counsel ‘actively represented
conflicting interests’ and that ‘an actual conflict of
interest adversely affected his lawyer's performance."
Burger v. Kemp, 483 U.S. 776, 783 (1987)(quoting
Strickland v. Washington, 466 U.S. 668, 692 (1984)). In
Mickens v. Taylor, 535 U.S. 162, 175 (2002), the
Supreme Court once again noted that a defendant is not
entitled to relief until he "shows that his counsel actively
represented conflicting interests’. . . ." (quoting Sullivan,
446 U.S. at 350)(emphasis in original). The Court also
cautioned against an “unblinking" application of the
Sullivan presumption of prejudice standard in all conflict
of interest cases. /d. at 174.
Our superior court has stated that in resolving conflict of
interest issues there are four questions that must be
47a
examined. "Was there [successive] representation? If
so, did it give rise to an actual conflict of interest? If so,
did appellant knowingly and intelligently waive his right
to conflict-free counsel? If not, did the conflict have no
adverse effect on counsel's representation of appellant?"
United States v. Smith, 44 M.J. 459, 460 (C.A.A.F.
1996)(citing United States v. Smith, 36 M.J. 455, 457
(C.M.A. 1993)). In answering these questions, we give
deference to the findings of fact reached by the military
judge following the DuBay hearing. We give deference
to those findings because, following our examination of
the verbatim record of the DuBay hearing, we conclude
that the findings of fact are not clearly erroneous and are
supported by the record. While the appellant asserts that
there are some inconsistencies in the testimonies of the
two trial defense counsel at the DuBay hearing when
compared to statements they made during the appellant’s
court-martial, given the lapse of time between the two
hearings, some inconsistencies would be expected. A
military judge is routinely called upon to resolve
inconsistencies in testimony when making findings of
fact and/or decisions of guilt or innocence. See Harris,
8 M.J. at 59. While the appellant may disagree with the
findings of fact, the inconsistencies in testimony with
those findings do not render the findings of fact an abuse
of discretion. We adopt the findings of fact issued by
the military judge on 24 September 2004 as our own.
We also hold that none of the alleged inconsistencies in
the statements of counsel are material to resolution of
this case.
We then look to the findings of fact to answer the four
48a
questions posed in Smith. First, there was successive
representation in this case. LT Attanasio, the appellant’s
lead defense counsel, represented Petty Officer F at an
earlier court-martial. While the appellant’s court-martial
was pending, Petty Officer F made allegations that the
appellant had assaulted her. LT Attanasio was
concerned that the appellant might be charged with that
assault, and he readily recognized the potential for a
conflict of interest. Thus, in the sense that LT Attanasio
had represented Petty Officer F and was then faced with
the possibility of representing the appellant in a case
where Petty Officer F may be called as a witness against
the appellant there was successive representation.
Second, this successive representation did not give rise
to an actual conflict of interest because the appellant was
never charged with the assault upon Petty Officer F, and
because LT Attanasio was never placed in a position
where he had to represent the interests of one client over
the other. Third, it is clear from the record that the
appellant did not waive any conflict of interest that his
defense team may have had to deal with concerning
Petty Officer F. But, since there was no actual conflict,
waiver is of no consequence. Finally, the potential
conflict had no adverse effect on the representation
provided to the appellant by his defense team. As they
explained during the DuBay hearing, even if they were
not faced with the Petty Officer F assault, they would
not have presented evidence of good military character
for tactical reasons, because they did not want the
Government to be able to ask those character witnesses
if they were aware that the appellant had assaulted one
of his other daughters.
Following our review of the facts and our application of
the controlling case law, we conclude that there was no
actual conflict of interest in this case. We also conclude
that the potential for a conflict of interest did not
adversely affect the representation the appellant received
from LT Attanasio or from LT Eberting, the assistant
defense counsel. In light of these conclusions, it is not
necessary to discuss or resolve issues concerning what
advice the appellant was provided by his defense counsel
concerning this issue, or what steps the counsel took to
avoid the conflict. We note, however, that the military
judge provided extensive advice to the appellant on the
record concerning his right to conflict-free counsel.
Were we to grant relief to the appellant on the basis of
the illusory conflict of interest in this case, we would
engage in the “unblinking" application of the Sullivan
presumption of prejudice standard in all conflict of
interest cases. Mickens, 535 U.S. at 174. We will not
apply the standard in this manner.
The appellant also asserts that he was denied effective
assistance of counsel. He specifically alleges that the
_ failure of his counsel to present evidence of good
military character on the merits deprived him of effective
representation. He further alleges that his counsel were
not adequately familiar with the facts of the case, did not
adequately investigate and interview potential witnesses,
and did not adequately cross-examine the victim.
Appellant’s Brief at 12-15, 48-50, and Appellant’s Pro
Se Supplemental Reply Brief of 19 Dec 2003 at 11-14.
50a
In Strickland v. Washington, 466 U.S. 668 (1984), the
Supreme Court set forth the standard for reviewing
claims of ineffective assistance of trial defense counsel
on appeal. The Court declared that:
A convicted defendant's claim that
counsel's assistance was _ so
defective as to require reversal of a
conviction . . . has two components.
First, the defendant must show that
counsel's performance was
deficient. This requires showing
that counsel made errors so serious
that counsel was not functioning as
the "counsel" guaranteed the
defendant by the Sixth Amendment.
Second, the defendant must show
that the deficient performance
prejudiced the defense. This
requires showing that counsel's
errors were so serious as to deprive
the defendant of a fair trial, a trial
whose result is reliable. Unless a
defendant makes both showings, it
cannot be said that the conviction . .
. resulted from a breakdown in the
adversary process that renders the
result unreliable.
Id. at 687. These standards are equally applicable before
this court. United States v. Scott, 24 M.J. 186, 188
(C.M.A. 1987). Moreover, in Strickland, the Supreme
Court reasoned that:
Judicial scrutiny of counsel's
performance must be highly
deferential. It is all too tempting
for a defendant to second-guess
counsel's assistance after conviction
or adverse sentence, and it is all too
easy for “a court, examining
counsel's defense after it has proved
unsuccessful, to conclude that a
particular act or omission of
counsel was unreasonable.
466 U.S. at 689. We review allegations of ineffective
assistance of counsel de novo. United States v.
McClain, 50 M.J. 483, 487 (C.A.A.F. 1999)(citing
Wean, 45 M.J. at 463).
In order to show ineffective assistance of trial defense
counsel, an appellant "must surmount a very high
hurdle." United States v. Smith, 48 M.J. 136, 137
(C.A.A.F. 1998)(quoting United States v. Moulton, 47
M.J. 227, 229 (C.A.A.F. 1997)). When viewing tactical
decisions by trial defense counsel, the test is whether
such tactics -were unreasonable under prevailing
professional norms. United States v. Quick, 59 M.J.
383, 386 (C.A.A.F. 2004). It is strongly presumed that
trial defense counsel is competent in the performance of
representational duties. Scott, 24 M.J. at 188. To rebut
the presumption of competence of trial defense counsel,
the appellant is required to point to specific errors
52a
committed by his trial defense counsel, which, under
_ prevailing professional norms, were unreasonable. /d.
(citing United States v. Cronic, 466 U.S. 648 (1984)).
Further, the appellant must establish a factual foundation
for a claim that his trial defense counsel’s representation
was ineffective. United States v. Grigoruk, 52 M.J. 312,
315 (C.A.A.F. 2000). An appellant’s "[s]weeping,
generalized accusations will not suffice." /d. (citing
Moulton, 47 M.J. at 229).
"Acts or omissions that fall within a broad range of
reasonable approaches do not constitute a deficiency."
United States v. Dewrell, 55 M.J. 131, 133 (C.A.A.F.
2001). We "strongly presume that [trial defense]
counsel has provided ‘adequate assistance." United
States v. Russell, 48 MJ. 139, 140 (C.A.A.F.
1998)(quoting Strickland, 466 U.S. at 690). The
appellant cannot overcome this presumption unless he
can show that, absent the ineffective assistance of his
trial defense counsel, there would have been a
reasonable doubt respecting guilt. United States v. Polk,
32 M.J. 150, 153 (C.M.A. 1991)
(citing Scott, 24 M.J. at 189).
Our superior court has held that trial defense "[c]ounsel
have a duty to perform a reasonable investigation or
make a determination that an avenue of investigation is
unnecessary." United States v. Sales, 56 M.J. 255, 258
(C.A.A.F. 2002)(citing United States v. Brownfield, 52
M.J. 40, 42 (C.A.A.F. 1999)). Further, "[w]e do not
look at the success of a... tnrial theory, but rather
whether [trial defense] counsel made an objectively
53a
reasonable choice in strategy from the alternatives
available at the time." Dewrell, 55 M.J. at 136 (quoting
United States v. Hughes, 48 MJ. 700, 718
(A.F.Ct.Crim.App. 1998)).
This court need not reach the question of deficient
representation if we can first determine a lack of
prejudice. United States v. Quick, 59 M.J. 383, 386
(C.A.A.F. 2004)(citing Strickland, 466 U.S. at 697);
United States v. Adams, 59 M.J. 367, 371 (C.A.A-F.
2004)(citing Strickland, 466 U.S. at 697). in order to
constitute prejudicial error, the appellant’s trial defense
counsel's deficient performance must render the result of
the proceeding "unreliable" or "fundamentally unfair."
See United States v. Ingham, 42 M.J. 218, 223 (C.A.A.F.
1995)(quoting Lockhart v. Fretwell, 506 U.S. 364, 372
(1993)).
We need not speculate as to why the trial defense team
did not offer evidence of the appellant’s good military
character. As a result of the DuBay hearing, they have
told us. Faced with the admissions the appellant had
made to the criminal investigators, the trial defense team
made a tactical decision to try to convince the members
that the appellant was a truthful person -— that he was
believable. They did not believe it to be in the best
interest of their client to allow the Government to inject
information into the record concerning the appellant’s
prior assault -- though not sexual in nature -- upon one
of his other daughters. Had they offered evidence of
good military character, the Government could have
challenged the opinions of those witnesses by asking
54a
them if they knew the appellant had injured one of his
other daughters by assaulting her. See United States v.
Pruitt, 46 M.J. 148 (C.A.A.F. 1997). We will not
second-guess those tactical decisions. United States v.
Morgan, 37 M.J. 407, 410 (C.M.A. 1993)(citing United
States v. Rivas, 3 M.J. 282, 289 (C.M.A. 1977)).
Concerning the appellant’s allegations that his counsel
failed to adequately investigate his case, we have
absolutely no evidence before us to suggest that either of
the appellant’s trial defense counsel failed to properly
investigate the case. In light of the presumption of
competence, as well as our evaluation of the trial
performance of his counsel, we find that the appellant
has failed to overcome the high burden to challenge the
effectiveness of his representation on those grounds.
Regarding the fact that his attorneys did not present
evidence that the appellant did not rape or abuse his
oldest daughter, we are unconvinced of the relevance of
that "evidence." We note, however, that the appellant
himself implicitly raised this issue when he testified that
he started touching the victim because he did not want
her to become promiscuous like his ci/est daughter.
Record at 734.
We have considered the appellant’s arguments
concerning the adequacy of his representation. We find
that the appellant has failed to meet his burden in
demonstrating that he was denied effective
representation. But, even if there were shortcomings in
the representation, we would not grant relief because we -
conclude that even if his counsel had done all the things
55a
the appellant wanted them to do, the results of the trial
would have been the same. The appellant’s explanation
of why he was regularly touching his daughter’s breasts
and vagina is so incredible that we are convinced beyond
a reasonable doubt that no amount of good military
character evidence, no additional investigation, no
testimonials from other family members that the
~ appellant did not sexually abuse or rape them, would
have changed the outcome of this case. Without
question, the appellant was afforded a fair court-martial,
the results of which are reliable.
In conclusion, we do not find deficient representation by
trial defense counsel under the Strickland standards. To
the contrary, the trial defense team effectively
represented the appellant at trial on all charges. To the
extent that the trial defense team did not meet the
appellant’s standards, we find no prejudice.
Challenge for Cause
Subsequent to voir dire, the appellant challenged three
members of the panel for cause, LT McGee, Senior
Chief Lasher, and Senior Chief Déan. The military
judge denied all three challenges. The appellant then ©
exercised a peremptory challenge in a manner that
preserved the issue for appellate review. See United
States v. Jobson, 31 M.J. 117, 120 (C.M.A. 1990); RULE
FOR COURTS-MARTIAL 912(f)(4), MANUAL FOR
COURTS-MARTIAL, UNITED STATES (2000 ed). In
AOE’s IV, V, and VI, the appellant argues that the
military judge erred in denying his challenges for cause
56a
against these three members. We find no merit in these
arguments.
For purposes of clarity, we include the relevant portion
of the record of trial.
MJ: Defense Counsel, any
challenges for cause?
DC: Yes, sir. We have three
challenges for-cause. First, sir, we
challenge Lieutenant McGee, due to
her background as a SAVI, Family
Advocacy. She’s had extensive
dealings in the area of sexual
complaints. It is impossible to
predict what preconception she
brings in. Merely ‘cause a member
mimics the correct answer, sir, does
not relieve the challenge. We have
an appearance problem here, too,
with someone who has such a long
history of--her duties, actually,
involve these various types of
allegations.
MJ: Okay. Do you want me to rule
on--Trial Counsel, what’s your
response?
TC: Sir, Lieutenant McGee made
clear, with her answers, that she
S7a
doesn’t consider an allegation to be
any more than an allegation. As she
said, "There’s always a truth behind
it." I think--I think that cuts both
ways of the defense’s statement.
But, I don’t think anything from her
answers would give credence to
that statement. Basically, she’s
made quite clear, over and over
again, that nothing with her
experience as a SAVI, is going to
influence her either way here.
She’s seen cases that are
unsubstantiated, and we don’t even
know, maybe she hasn’t seen any
cases that were substantiated. I
think she’s pretty clear that she has
an open mind in this position here.
MJ: Okay. I understand the
government’s position. What is—
what is your next challenge for
cause?
DC: So, the court’s going to rule at
the end, sir?
MJ: Yes.
DC: The next challenge for cause
is Senior Chief Lasher. He
previously served as a Chief
58a
Master-at-Arms, in a law
enforcement capacity. Addi-
tionally, his answers were hesitant
during the--during the voir dire,
particularly with respect to
punishment considerations, with
respect to the elements. We believe
that, both, actual and implied bias
exists here, Your Honor. And,
given the liberal grant mandate,
Your Honor, the court should
certainly dismiss him.
MJ: I understand. Trial Counsel?
TC: Sir, I don’t think we can look
into hesitation before an answer as
an implied bias. I mean, there’s
some pretty technical legal
questions that were being asked of
the Senior Chief, and
understandably, he would be
nervous. He sat there and he
thought his answer out, and then he
gave his answer. That doesn’t
mean he didn’t necessarily agree
with what he was saying, or giving
a canned answer, a “canned
answer.” I just thought he took a
minute, gathered his thoughts and
he gave his answer. I don’t think
any inference can be drawn from
59a
the fact that there is a hesitation.
As far as him being a former
master-at-arms, he made it quite
clear that there was nothing there
that was going to affect his ability
to judge the evidence in this case
fairly and impartially. To be quite
honest, there wasn’t anything of
substance, in his experience, other
than the fact that he did serve as a
prior master-at-arms. So, I don’t
think that’s any grounds for cause
to--to strike the member from the
jury.
MJ: Very well. I understand that.
Your third, Lieutenant Attanasio?
DC: Yes. Senior Chief Dean. Sir,
he was--additionally, we would--he
was hesitant in his manner, in his
answers to questions. Again,
particularly, on the elements
questions, which are central to the
defense. And, because of that we,
again, we believe an actual and
implied bias does exist.
And, again, Your Honor,
with respect to all three challenges
we--we request the court to
consider them within the strong
60a
case laws’ liberal grant mandate.
Thank you, sir.
MJ: Okay. Members--I realize |
wrote down--I realize I wrote down
on--for the wrong--but Senior
Chief--Senior Chief Dean, sat at
this end, was the individual who--
said his wife was--okay--again,
could you go over Senior Chief
Dean again? Again, I apologize. I
just--because I wrote it down in the
wrong space, but I----
DC: Yes, sir. 7
MJ: I entered Senior Chief Paul in
Deans’---- —
DC: Yes, sir. The court’s correct.
Senior Chief Dean was, in fact, the
individual whose ex-wife’s sister
was raped and murdered.
MJ: Tell me, again, what is the
basis for----
DC: Well, Your Honor, certainly,
that is, obviously a traumatic crime.
Rape occurred in his family
history. We believe, in addition to
that, that he was hesitant in manner,
6la
and his answers to, particularly, the
elements questions, were troubling,
due to his hesitation. And, of
course, Your Honor, again, as the
court mentions, he has a specific
family history of a rape and murder.
MJ: Okay. Trial Counsel?
TC: Sir, with respect to the
individual he knew, who was raped
and murdered, it wasn’t a family
member at the time. He really
didn’t know her; it was right when
him and his wife started dating.
This was several years ago. He
made absolutely no indication that
this--that incident’s going to affect
him in anyway in judging the
evidence in this case. And, to be
quite honest, the only thing defense
counsel mentioned, the first time,
was that he was hesitant in his
answers.
—
Getting to that point, again,
the fact that he was hesitant in his
answers doesn’t mean anything. It
was quite confusing. Actually, the
military judge had to step in and
explain some of the questions that
were being asked to the Senior
62a
Chief. The fact that he hesitated a
second, again, can mean he was
gathering his thoughts, in
answering the question. There’s
nothing at all, given from his
answers, that could, even if you’re
reading between the lines, that
would suggest that he’s going to be
anything but fair and impartial in
this case.
MJ: Okay. I understand. Any other
challenges by the defense?
DC: No other challenges for cause,
Your Honor.
MJ: Okay. Your challenges for all
three are denied. Individually,
Lieutenant McGee, I understand
she--she did say she had worked for
SAVI and Family Advocacy, but I
found her answers to be honest, and
she seemed very forthright in her
answers, as far as not considering
that when determining the facts of
this case. I believe she can be a--a
fair--] don’t believe she has any
actual or implied bias.
Regarding Senior Chief
Lasher and Senior Chief Dean, I did
63a
find that, from viewing both, I did
not notice any--if there was any--
any hesitancy in answering any of
the questions, | did not take that as-
-I did not see in them that any--
where that was meant that they
were reluctant to follow the law or
reluctant to answer questions.
Simply, I took it as them
considering--thinking about the
question that was given and
answering the question as honestly
as they can. I found their demeanor
to be appropriate.
Regarding Senior Chief
Lasher and his billet as—so--
frankly, I found their test--as far as
the way they answered questions,
did not give me any pause at all.
The other two issues, then,
were regarding Senior Chief Lasher
and_ his--his duties as a Chief
Master-at-Arms. Because of the
fact that--that’s denied. He said he-
-indicated that he would view the
evidence as--as presented to him,
and he would not give any law
enforcement agent any additional
credibility. I also considered the
fact that he never, personally,
64a
investigated any sexual assault type
charges.
And, regarding Senior Chief~
Dean, I found that-I’ve found no
actual bias. I was, frankly a little
_ concerned about the two rapes.
But, I find they were—they
happened so long ago, and not to a
current family member. His ex-
wife indicated--his one ex-wife
indicated she was raped when she
was younger. Did not seem to--
Senior Chief Dean did not seem to
be--have any difficulty with that, in
his statements. And, his answers to
“questions seemed forthright. And,
the fact that his ex-wife’s sister was
raped and murdered in 1980, he did
not know her very well, if at all.
He’s no longer married to her. He
wasn’t married to his ex-wife at the
time, and did not--he did not know
the girl very well at all. So, I
considered that, also. And, for
those reasons, the challenges for
cause are denied.
Record at 364-70.
We turn then to whether the military judge correctly
denied the defense’s challenges for cause against LT
6Sa
McGee, Senior Chief Lasher, and Senior Chief Dean.
Our review of the voir dire of these members suggests
that the only possible basis for causal challenge here is
R.C.M. 912(f)(1)(N), which provides that "[a] member
shall be excused for cause whenever it appears that the
member . . . [s]hould not sit as a member in the interest
of having the court-martial free from substantial doubt as
to legality, fairness, and impartiality. R.C.M. 912(f)
(1)(N). Our superior court has outlined the law
applicable to such situations and the appropriate
application of this rule.
R.C.M. 912(f)(1)(N) encompasses
"both actual bias and implied bias."
R.C.M.-912(f}(3) provides: "The
burden of establishing that grounds
for a challenge exist is upon the
party making the _ challenge."
Military judges should be "liberal in
granting challenges for cause."
"The test for actual bias [in each
case] is whether any bias ‘is such
that it will not yield to the evidence
presented and _ the judge's
instructidns."" "Actual bias is
reviewed" subjectively, "through
the eyes of the military judge or the
court members."
Actual bias is a question of fact.
Accordingly, the military judge is
66a
given great deference on issues of
actual bias, recognizing that he or
she "has observed the demeanor of
the" challenged party. "We will not
overturn the military judge's” denial
of a challenge unless there is "a
clear abuse of discretion in applying
the liberal-grant mandate."
On the other hand, implied bias is
"viewed through the eyes of the
public.” "The focus ‘is on the
perception or appearance of fairness
of the military justice system.”
There is implied bias "when ‘most
people in the same position would
be prejudiced." We give the
“military judge less deference on
questions of implied bias. On the
other hand, we recognize that, when
there is no actual bias, "implied bias
should be invoked rarely."
United States v. Warden, 51 M.J. 78, 81-82 (C.A.A.F.
1999)(citations omitted)(alteration in original); see also
United States v. Wiesen, 56 M.J. 172 (C.A.A.F. 2001).
We must first determine whether the challenge is based
upon actual or implied bias. Actual bias is a credibility
issue and great deference is given to the determination of - ~
the military judge. United States v. Daulton, 45 M.J.
212, 217 (C.A.A.F. 1996). "The test for actual bias is
67a
whether any bias ‘is such that it will not yield to the
evidence presented and the judge's instructions." United
States v. Napoleon, 46 M.J. 279, 283 (C.A.A.F.
1997)(quoting United States v. Reynolds, 23 M.J. 292,
294 (C.M.A. 1987)). Implied bias, however, is viewed
objectively, through the eyes of the public. /d. The
focus is on the appearance of fairness. /d. Given the
responses of LT McGee, Senior Chief Lasher, and
Senior Chief Dean during voir dire, we see no issue of
actual bias in this case. We will therefore apply the
more demanding objective standard concerning implied
bias. We recognize that "(t]he burden of establishing
that grounds for a challenge exist is upon the party
making the challenge." R.C.M. 912(f)(3).
In applying the more demanding standard-affording the
military judge less deference than we would in a case of
actual bias--we have reviewed the findings of the
military judge and adopt them as our own. We conclude
that the military judge did not err in denying the
appellant's causal challenges against LT McGee, Senior
Chief Lasher, or Senior Chief Dean. We reach this
conclusion primarily upon our own review of the voir
dire of these three members, and arrive at the same
findings as the trial judge. Record at pages 369-70.
Accordingly, we reject the appellant’s fourth through
sixth AOE’s.
Instructions — Character for Truthfulness
In the appellant’s ninth AOE, he alleges that the military
judge erred when he refused to give a defense-requested
68a
instruction that the appellant’s character for truthfulness
could, in and of itself, give rise to reasonable doubt.
Having evaluated this argument in the context of the
evidence presented, as well as the appellant’s alleged
crimes, we conclude that the military judge did not err in
refusing to give the requested instruction.
During the appellant’s case-in-chief the defense
presented the testimony of at least five witnesses who
testified that the appellant was a truthful person. The
appellant also presented evidence that the victim was not
truthful. Based upon the evidence of his truthfulness,
the appellant requested that standard instruction 7-8-1
from the Military Judge’s Bench Book, Dept. of the
Army Pamphlet 27-9 (Ch. 1, 30 Jan 1998), be given to
the members. Specifically, the appellant focused on that
portion of the instruction that said, "to show the
probability of his innocence, the defense has produced
evidence of the accused’s character for truthfulness.
Evidence of the accused’s character for truthfulness may
be sufficient to cause a reasonable doubt as to his guilt."
Record at 778. The military judge refused to give that
instruction. He explained his decision.
MJ: Okay. I understand. Here’s
why I’m not giving that instruction.
I believe that instruction goes
towards--as a--when the character is
an issue as a defense. For instance,
good military character as a defense
to--that the accused committed the
crime; honesty as a defense that the
69a
\
accused may have _ stolen
something; peacefulness, . . . as to
whether the accused assaulted -
somebody; and--and truthfulness, as
to whether he, possibly on a false
official statement-type of charge.
So, I believe that goes to--to a
defense, as opposed to what the
purpose that the evidence came in,
and that was to show that the
accused owas credible and
believable, and that he should be
believed under oath, in either, his
testimony in court or his prior
statement to the NCIS, would be
believed under oath. ‘
Id. at 779.
Rather than giving the defense-requested instruction, the
military judge gave the following instruction concerning
evidence of the appellant’s truthfulness. "Now, evidence
has been received as to the accused’s good character for
truthfulness. You may consider this evidence in
determining the accused’s believability." /d. at 833. He
immediately followed that with an_ instruction
conceming the victim’s credibility. "Evidence has been
received as to [the victim’s] bad character for
truthfulness. | You may consider this evidence in
determining her believability." Jd.
A military judge is required to give the court-martial
70a
members “appropriate instructions” on findings. R.C.M.
920(a). This court examines-a military judge’s refusal
to give a defense-requested instruction under a clear
abuse of discretion standard. United States v. Maxwell,
45 M.J. 406, 424 (C.A.A.F. 1996)(citing United States v.
Damatta-Olivera, 37 M.J. 474, 478 (C.M.A. 1993)).
When determining whether a military judge properly
exercised discretion in refusing to give a defense-
requested instruction, we "examine the instructions as a
whole to determine if they sufficiently cover the issues
in the case and focus on the facts presented by the
evidence." Maxwell, 45 M.J. at 424 (quoting United
States v. Snow, 82 F.3d 935, 938-39 (10th Cir. 1996).
The question of whether a court-martial was properly
instructed is a question of law, which we review de
novo. Id. This court’s standard for the adequacy of
instructions is "whether the instructions as a whole
provide meaningful legal principles for the court-
martial's consideration." United States v. Peszynski, 40
M.J. 874, 882 (N.M.C.M.R. 1994)(citing United States
v. Truman, 42 C.M.R. 106, 109 (C.M.A. 1970)).
Finally, our superior court has held that a military
judge’s denial of a defense-requested instruction is error
where: "(1) the requested instruction is correct; (2) ‘it is
not substantially covered in the main charge; and (3) it is
on such a vital point in the case that the failure to give it
deprived defendant of a defense or seriously impaired its
effective presentation.”" United States v. Poole, 47 M.J.
17, 19 (C.A.A.F. 1997)(quoting Damatta-Olivera, 37
M.J. at 478).
We recognize the general principle, as did the tnal
Tla
judge, that character evidence alone may be sufficient to
give rise to reasonable doubt. See United States v.
Court, 24 M.J. 11 (C.M.A. 1987).- We, however, hold
that there was no instructional error in this case for three
reasons. First the requested instruction was not legally
correct. "[I}]n legal principle, character evidence as to
truthfulness -- unlike other types of character evidence --
does not bear directly on guilt or innocence unless it is,
in a particular case, a ‘pertinent trait’, say; in a
prosecution for false official statement.” United States
v. - Yarborough, 18 MJ. 452, 457 (C.M.A.
1984)(emphasis in original)(citations omitted). Here,
the evidence of the appellant’s truthfulness was clearly
offered to bolster his credibility, and not as a pertinent
character trait under MILITARY RULE OF EVIDENCE
404(a)(1), MANUAL FOR COURTS-MARTIAL, UNITED
STATES (2000 ed.). Second, the issue of the appellant’s
credibility was adequately covered in the instructions
given by the military judge, and was directly juxtaposed
to instructions concerning the evidence of the victim’s
bad character for truthfulness. Finally, the instructions
did not deprive or impair appellant’s ability to
effectively argue the credibility issues to the members. -
Thus, the military judge did not abuse his discretion
when he did not give the defense-requested instruction.
Pretrial Issues
In AOE XII the appellant argues that the findings and
sentence should be set aside because the charges had
been originally referred to a special court-martial, and
because the record does not contain an explanation of
72a
why the charges were withdrawn and re-referred to a
general court-martial. In AOE XIII the appellant asserts
that the charges against him were not properly referred
to trial. He alleges that there is a fatal jurisdictional flaw
in the referral of the charges against him because the
charges he actually faced at this court-martial were re-
preferred after the conclusion of the Article 32, UCMJ,
investigation. In AOE XIV the appellant alleges that the
Article 32, UCMJ, investigation was fatally defective,
primarily because numerous civilian witnesses did not
testify at the investigation. These three assignments of
error were submitted pursuant to Grostefon. Appellant’s
Brief at 38-45. We have examined the appellant’s
claims, and find no basis upon which to grant relief.
With respect to AOE XII, we apply waiver. The
appellant did not raise this issue at trial where it could
have been easily resolved. See generally United States
v. Richter, 51 M.J. 213, 224 (C.A.A.F. 1999)(holding
that such issues are waived if not raised at trial). Since
there is no requirement that the convening authority
document his decision in any particular form, United
States v. Williams, 55 M.J. 302, 305 (C.A.A.F. 2001), if —
the appellant had raised the issue at trial an oral
explanation of the withdrawal and re-referral could have
been provided in the record of trial. Jd. ~
With respect to AOEs XIII and XIV, we initially note
that we have previously considered the substance of
these issues and resolved them against the appellant in
Diaz v. United States, 54 M.J. 880 (N.M.Ct.Crim.App.
2000). Although that case was brought by the appellant
73a
seeking an extraordinary writ, in which our standard of
review is decidedly different than it is now, we rejected
the substance of the appellant’s argument in that
decision. For the same reasons we relied upon in that
decision, we conclude that the military judge did not
abuse his discretion in denying the appellant’s request
for a new Article 32, UCMJ, investigation. /d. at 883.
Furthermore, Article 32(e), UCMJ, specifically states
that the failure to follow the requirements of Article 32,
UCMJ, "does not constitute jurisdictional error." See
Frage v. Moriarty, 27 M.J. 341, 343 (C.M.A. 1988).
We conclude that the appellant’s substantial rights were
not materially prejudiced by the manner in which the
appellant’s Article 32, UCMJ, investigation was
conducted, the manner in which the charges upon which
he stood trial were preferred and referred to court-
martial, or by the military judge’s denial of the
appellant’s request for a new Article 32, UCMJ,
investigation.
Testimonial Evidence
The appellant has raised three separate AOEs in which
he alleges that the military judge erred by his decisions
to either admit or exclude evidence. With respect to
these AOEs, the same standard of review applies. A
military judge’s decision to admit or exclude evidence is
reviewed for an abuse of discretion. United States v.
McCollum, 58 M.J. 323, 335 (C.A.A.F. 2003)(citing
United States v. McElhaney, 54 M.J. 120, 132 (C.A.A.F.
2000)). "A military judge abuses his discretion when his
findings of fact are clearly erroneous, when he is
74a
~ incorrect about the applicable law, or when he
improperly applies the law." United States v. Roberts,
59 M.J. 323, 326 (C.A.A.F. 2004). We conclude that the
military judge did not abuse his discretion in any of
these three issues raised by the appellant. Furthermore,
even if the military judge’s rulings in each of these three
instances were incorrect, there is no showing that the
error materially prejudiced a substantial right of the
appellant. United States v. Reist, 50 M.J. 108, 110
(C.A.A.F. 1999)(citing Art. 59(a), UCMJ). We,
therefore, decline to grant relief.
A. Expert Witness.
In AOE VII the appellant contends that the military
judge erred in allowing the Government to present the
expert testimony of Dr. Kahn. The appellant asserts that
the Government called this witness to try to repair
damage to its case when the victim’s mother testified
that medical records showed that the victim had engaged
in sexual intercourse. Appellant’s Brief at 26-27. The
appellant now argues that the military judge erred in
admitting the expert testimony of Dr. Kahn because the
"testimony could not, in any way, help the members
understand the medical evidence (as there was none) or
determine any fact in issue and could only serve to
confuse them with respect -to the significance of
inconclusive evidence." Jd. at 28. The appellant also
attacks the credentials of Dr. Kahn as an expert witness.
Appellant’s Supplemental Reply Brief at 3-4.
We find no abuse of discretion, nor do we find
75a
prejudice. First, we note that the military judge admitted
the evidence because the appellant raised the issue
during his cross-examination of the victim’s mother.
Record at 528. Second, we reject the appellant’s
premise that the testimony was not helpful. In fact, we
find that it was helpful in this case. The absence of
physical findings of sexual abuse in a medical evaluation
of a potential victim of child sexual abuse or rape could
easily lead to the conclusion that no abuse occurred. Dr.
Kahn was able to explain to the members that the
absence of physical findings in such examinations is not
inconsistent with sexual abuse or rape of a child. Thus,
the absence of physical findings does not necessarily
mean that the abuse or rape did not occur. Third, while
the military judge may have had misgivings about the
helpfulness of Dr. Kahn’s testimony, in retrospect, we
find that it was highly helpful. Thus, the testimony was
admissible. United States v. Meeks, 35 M.J. 64, 68
(C.M.A. 1992). Finally, we find that Dr. Kahn was
adequately qualified to render an opinion as an expert in
"child sex assault." Record at 530-39.
B. Impeachment.
In AOE VIII the appellant alleges that the military judge
erred when he refused to allow the appellant to impeach
the victim’s sister with a prior inconsistent statement.
The appellant called the victim’s sister as a witness.
During that testimony the following exchange occurred:
Q. [B]ased on your opinion as [the
victim’s]} sister, living in the same
76a
house with her your whole life, do
you believe [she] is a_ truthful
person?
A. At times. But--she wouldn’t lie
about something like this, but we
all do tell little white lies, at times,
but in this case---
Q. Do you remember--I’m sorry,
go ahead.
A. But, in this case, I don’t think
she would lie.
Q. Do you remember when I talked
to you, way back when, when I
came to your house--—
MJ: Okay, Where you going with
this?
DC: Well, she said [the victim] has
a tendency to lie, then, sir. I’m
trying to establish that.
MJ: I’m not going to go in to that.
DC: Well, sir, she’s made an
untru: statement. The jury’s
entitleu to know. She said that [the
victim] has a tendency to lie.
T7a
ATC: Your Honor, if we’re going
to argue that objection, please, can
we excuse the members?
MJ: Yes. Members?
BAILIFF: All rise.
[All persons did as directed and the
members withdrew from __ the
courtroom. |
Record at 653-54. Thereafter the military judge
explained his ruling to the defense counsel. In essence,
he ruled that the appellant could ask the witness her
opinion as to the victim’s character for truthfulness, but
he could not impeach the witness because she may have
said the victim had a tendency to lie. The military judge
explained that stating that someone had a tendency to lie
is not the same thing as one’s opinion as to truthfulness.
Id. at 656. The military judge ruled that the appellant
could ask the witness if she believed the "[victim] is an
untruthful person." Jd. at 659. The appellant did not ask
the question. The appellant now asserts that this
exchange prevented him from impeaching the witness
with a prior inconsistent statement.
We conclude that the military judge did not abuse his
discretion in this ruling. Not only do we review a
military judge’s decision to exclude evidence for an
abuse of discretion, but a "military judge has
78a
considerable discretion to determine if trial testimony is
inconsistent with earlier assertions and to determine both
admissibility and use of prior statements." Damatta-
Olivera, 37 M.J. at 478. Here when the witness was
asked if she believed that the victim was truthful, her
immediate response was not "yes," but rather, "at times."
Record at 653. The military judge concluded that the
witness’ earlier statement that the victim had a tendency
to lie was not inconsistent with the witness’ testimony.
We concur.
In AOE XVIII, submitted pursuant to Grostefon, the
appellant makes the same argument with respect to
Naval Criminal Investigative Service (NCIS) Special
Agent (SA) Degnan. He argues that he was prevented
from impeaching SA Degnan with a prior inconsistent
statement. In this instance, the Government called SA
Degnan. During cross-examination he testified that the
only evidence against Chief Diaz as to the rape
specification was the word of the victim. /d. at 601.
Appellant’s counsel sought to press the point, asking,
"[t]here’s no physical evidence in this case, correct?"
SA Degnan responded that he did not know if there was
medical evidence because he was not a medical officer.
Id.
The defense counsel then attempted to impeach SA
Degnan with his prior inconsistent testimony at the
Article 32, UCMJ, investigation in which he answered
"no" to an almost identical question. /d. at 602. The
government objected, and the military judge ruled in an
Article 39(a), UCMJ, session, "I’m not going to even let
79a
you go into prior inconsistent statements regarding the--
regarding the medical evidence. He’s already testified
that he’s not a doctor, and you already have out that the
medical evidence showed nothing." Jd. at 604. We
note, however, that the defense counsel actually used the ©
same prior inconsistent statement to impeach the witness
over exactly the same issue only moments before. /d. at
600-01. Given the context in which this exchange
between the defense counsel and SA Degnan occurred, ©
we find no abuse of discretion.
Furthermore, even if the military judge erred when he
denied the appellant the opportunity to impeach the
victim’s sister and SA Degnan through the use of prior
inconsistent statements, the error did not result in
material prejudice to the appellant’s substantial rights.
~ Reist, 50 M.J. at 110 (citing Art. 59(a), UCMJ). With -
respect to the victim’s sister, she testified that the victim
was truthful at times. Other witnesses testified as to the
victim’s poor character for truthfulness, and during
instructions on findings the military judge highlighted
that fact to the members. With respect to SA Degnan, as
noted above, he was impeached by his prior statement.
C. Defense Requested Witnesses.
In AOE III, the appellant alleges that the military judge
erred when he allowed the Government to select which
defense-requested witnesses it would produce at
Government expense. Prior to trial, the appellant sought
the production of nine witnesses to testify as to the
appellant’s good military character. Appellate Exhibit
80a
XXVII. When the Government denied those witnesses
the appellant raised the issue before the military judge.
The military judge, having determined that the appellant
could introduce evidence of good military character,
asked the defense to prioritize the requested witnesses.
The defense provided the following prioritization: 1.
CW04 Horton; 2. LT Hernandez; 3. CDR McGettigan;
4. CWO DeBold; 5. LT Miller; 6. Mr. Lamb; 7. YN1
Torres-Leon; 8. Mr. Zins; and 9. CAPT Spicer. Record
at 133-34. The military judge then ruled as follows:
Here’s what I’m going to do. I’m
going to order the production of
four of the witnesses. And, what
Pil do is, I will permit the
government to make—deny one of
the four, based purely on the
expense. In other words, if the
government says we don’t want to
bring in the witness’ from
Yokosuka, because it will cost a lot
of money, Ill permit you to make
that one, based purely upon—after
that, I would ask you to go down—
and I’m not saying you should deny
Lieutenant Hernandez, but I would
ask you to go down the—go down,
by the defense’s preference, and |
will, however, permit, if there is
a[n] operational requirement as to
why a witness—an operational—
sometimes it’s not even operational,
- 8la
it’s a personal—a witness has a—his
wife is sick, or expecting a baby or
something, Ill permit you to go on
to the next one, if you have a good
basis for that. I’m going to give the
government one, probably the
[inaudible]--or just because it’s a
long way for the witness to come
and for the expense. Frankly,
defense, I gave you--I weighed it
and rather than--I kind of gave the--
I’ve given to the government, in my
mind, I believe I’ve given you an
extra one, to make up for them
being able to choose. So you can
approve three and give the other
ones--let you deal with the other
one however you want. But, I’m
giving the government a little
something, because I am giving you
something in return.
Record at 134-35. The appellant did not object to this
ruling. Additionally, the appellant did not offer evidence
of good military character on the merits. During
sentencing, the appellant presented the testimonies of
Mr. Horton, CDR McGettigan, LT Miller, and Mr. Zins,
and affidavits from LT Hernandez, CWO2 DeBold,
Chief Lamb, and CAPT Spicer.
Without question, the ruling of the military judge lacks
clarity. We are not exactly sure what the ruling means.
82a
It seems, however, that he told the Government to
produce four witnesses, that the Government could deny
one witness of the four proposed by the appellant, but
four witnesses would be produced. We conclude that
the issue was waived by the appellant’s failure to object
to the procedure. See generally United States v. Ruth,
46 M.J. 1, 2 (C.A.A.F. 1997). Furthermore, since the
appellant did not introduce evidence of good military
character on the merits, we discern no material prejudice
to the appellant’s substantial rights that flowed from the
military judge’s ruling. Reist, 50 M.J. at 119 (citing Art.
59(a), UCM)J).
Speedy Review
In the appellant’s tenth AOE, he asserts that he has been
denied his statutory and constitutional right to a speedy
review of his case. As relief he requests that the
findings and sentence be set aside, or that he be granted
two days sentencing credit for every one day he served
in post-trial confinement between 1 December 2000 and
5 August 2003. We decline to grant relief. 3
We are cognizant of this court's power under Article
66(c), UCMJ, to grant relief for excessive post-trial
delay even-in the absence of actual prejudice. See
United States v. Tardif, 57 M.J. 219, 224 (C.A.A.F.
2002). We are also cognizant of the post-trial timeline
of this case and the holding of our superior court in Diaz
v. Judge Advocate General of the Navy, 59 M.J. 34
(C.A.A.F. 2003). We have fully complied with the
Decision and Order in that case. /d. at 40.
83a
While we do not condone the post-trial delay in this
case, we do not find that the delay affected the "findings
and sentence [that] 'should be approved,' based on ail the
facts and circumstances reflected in the record... ."
Tardif, 57 M.J. at 224. In deciding that this case is not
one in which relief should be granted as a result of post-
trial delay, we have considered the fact that in our
detailed review of the appellant’s record of trial and
upon consideration of all of the post-trial pleadings, we
have found no errors that materially prejudiced any of
the appellant’s substantial nghts. The appellant would
be granted a windfall were we to afford him relief simply
because of the period of time it took to review the
lengthy record of trial and consider the appellant’s
numerous appellate issues.
Conclusion
We have considered the remaining assignments of error .
and concluded they are without merit. Accordingly, we
affirm the findings and sentence as approved by the
convening authority.
Judge SCOVEL and Judge SUSZAN concur.
For the Court
R.H. TROIDL
Clerk of Court
84a
Appendix I
UNITED STATES, Appellee
V.
Leonard Y. DURAN Hull Maintenance Technician
Second Class (E-5), U.S. Navy, Appellant
No. 06-0408/NA
UNITED STATES COURT OF APPEALS FOR
THE ARMED FORCES
Crim. App. Dkt. No. 200000781
October 18, 2006, Ordered
Counsel for Appellant: LT Richard H. McWilliams,
JAGC, USNR.
Counsel for Appellee: LT Craig A. Poulson, JAGC,
USNR. :
On consideration of the petition for granted of review of
the decision of the United States Navy-Marine Corps
Court of Criminal Appeals, and in light of United States
v. Moreno, 63 M.J. 129 (C.A.A.F. 2006), and United
States v. Allison, 63 M.J. 365 (C.A.A.F. 2006), assuming
that Appellant was denied his due process nght to
speedy post-trial review and appeal, we conclude that
any error in that regard was harmless beyond a
reasonable doubt. Accordingly, it is, by the Court, this
18" day of October, 2006,
85a
ORDERED:
That said petition is hereby granted; and
That the decision of the United States Navy-Marine
Corps Court of Criminal Appeals is affirmed.
For the Court,
/s/ William A. DeCicco
Clerk of the Court
—
86a
Appendix J
IN THE U.S. NAVY-
MARINE CORPS COURT OF CRIMINAL APPEALS
WASHINGTON NAVY YARD
‘WASHINGTON, D.C.
BEFORE
‘C.L. CARVER D.A. WAGNER R.W. REDCLIFF
UNITED STATES
V.
Leonard Y. DURAN
Hull Maintenance Technician Second Class (E-S),
U.S. Navy
NMCCA 20000078 1 Decided 22 June 2005
Sentence adjudged 6 January 2000. Military Judge:
D.M. White. Review pursuant to Article 66(c), UCMJ,
of General Court-Martial convened by Commander,
Navy Region Northwest, Silverdale, WA.
LT ROBERT SALYER, JAGC, USNR, Appellate
Defense Counsel. _
JOSEPH W. KASTL, Civilian Appellate Counsel.
87a
LT R.S. SNYDER, JAGC, USNR, Appellate Defense
Counsel.
LT STEVE CRASS, JAGC, USNR, ~ Appellate
Government Counsel
LT C.J. GRAMICCIONI, JAGC, USNR, Appellate
Government Counsel
REDCLIFF, Judge:
A military judge sitting as a general court-martial
convicted the appellant, contrary to his pleas, of indecent
acts and liberties with a child, in violation of Article
134, Uniform Code of Military Justice, 10 U.S.C. § 934.
The military judge sentenced the appellant to a
dishonorable discharge, confinement for 3 years, and
reduction to pay grade E-1, recommending that the
convening authority suspend all confinement in excess
of 27 months contingent upon the appellant's successful
treatment as a sexual offender. The military judge also
recommended that the convening authority defer and
waive automatic forfeitures. The convening authority
approved the sentence as adjudged. There was no
pretrial agreement.
We have carefully considered the record of trial, the
appellant’s assignments of error contending that the
evidence is legally and factually insufficient, and that he
was denied effective assistance of counsel (submitted
pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982)). We have also considered the
Government’s response. We conclude that the findings
88a
and sentence are correct in law and fact and that no error
materially prejudicial to the substantial rights of the
appellant was committed. Arts. 59(a) and 66(c), UCMJ.
Sufficiency of Evidence -- Indecent Acts
In his first assignment of error, the appellant contends
that the Government failed to prove beyond a reasonable
doubt that he committed indecent acts upon "KK"
because her testimony was unreliable and
uncorroborated. The appellant avers that this court
should disapprove the findings of guilty to the Charge
and its sole specification. We decline to do so.
The appellant was charged with and found guilty of
indecent acts and liberties with a child on one occasion
in April 1999. The evidence of indecent acts consists of
KK's trial testimony that she knew the appellant because
his wife provided care to KK’'s ailing grandmother. KK
stated that she occasionally went to the appellant's home
to play with his 2-year old grandson. It was on one such
visit that the indecent acts occurred when KK slept at the
appellant's residence. KK testified that she took a
shower and then went to bed after watching television.
As she slept, the appellant entered the bedroom and put
her hand on his erect penis. KK pretended to be asleep
and pulled her hand away. Record at 162. The appellant
again placed her hand on his penis, and KK rolled onto
her side. The appellant then pushed KK over and rubbed
outside and inside her "private" area. He then "poked"
her vagina with his finger. /d. at 163-64. She heard a
"bang" and the appellant left the room, returning 5-10
89a
seconds later to ask her "what's wrong." /d. at 166. At
the time of the incident, KK was age 9 and not married
to the appellant.
KK further testified that she did not yell when the
appellant touched her or report his misconduct
immediately thereafter because she was afraid of the
appellant. Record at 167. On the day following the
incident, however, KK went to church with the appellant
and played basketball with him. /d. at 169. She
explained her continued contact with the appellant,
stating that she felt “stuck" at the appellant's home. /d.
at 167. Later, the appellant invited her to return the
following weekend, but she "made up excuses" not to do
so. KK further testified that she was afraid that the
appellant "would do something even worse to [her]." /d.
at 170.
Afterwards, KK confided in her girlfriend as to what had
happened at the appellant's home, and her girlfriend told
KK that she would tell her parents if KK did not. KK
then told her older brother (and later, her school
guidance counselor) what had occurred with the
appellant. Record at 172.
To support its case, the Government also called Special
Agent "M" from the Naval Criminal Investigative
Service (NCIS). Special Agent M testified that he
observed KK's interview with local child protective
service (CPS) personnel and subsequently set up, and
recorded, a phone conversation between KK and the
appellant. Although the appellant did not admit
90a
culpability during the phone conversation, the appellant
did ask KK if she had already told her mom what had
happened. He also suggested that KK only talk about it
in front of him and his wife. /d. at 215, 241.
Mrs. "AK", the victim's step-mother, testified that KK's
older brother told her that she needed to speak to KK but
didn't indicate why. Initially, KK did not want to talk to
Mrs. AK but then told her what had happened. KK
appeared "very upset" as she related the incident.
Record at 223-24. However, Mrs. AK conceded that KK
had lied in the past and had continued lying to cover up
her lie. /d. at 229.
The defense vigorously cross-examined KK and sought
to discredit her by highlighting inconsistencies in her
testimony concerning details of the incident. These
inconsistencies included KK’s initial statement to CPS in
which vaginal penetration is not discussed, as well as
how the appellant and KK were clothed and positioned
at the time of the incident.
The defense also presented evidence on the merits by
calling the appellant's wife, "Mrs. SD," who testified that
she had been employed by KK's family until the alleged
incident. She testified that she is a light sleeper and
knows when the appellant gets up and gets back into
their bed. On the night of the incident, Mrs. SD testified
that the appellant never left their bed. Record at 251-52.
On the next day, she testified that everyone got up at
about 8 a.m. and went to church. Mrs. SD didn't notice
anything unusual about KK. /d. at 256-58. She also
Ila
testified that KK disliked the appellant because he
disapproved of KK's brother and her brother's friends.
Id. at 263, 275-6.
The appellant took the stand in his own defense and
testified that the alleged incident never happened. The
appellant further testified that he occasionally
disciplined KK and her brother when they gave his wife
(Mrs. SD) a hard time. Record at 300. He described
KK as “hard-headed" and manipulative. He also
described a confrontation he had with KK’'s brother's
friends because he heard them talking about drugs.
In recounting the events on the night of the alleged
incident, the appellant stated that KK went to bed first.
He asserted that he never got out of bed that evening
after KK went to sleep. Record 304. The next morning,
he noticed no change in KK's personality, and they spent
the day playing basketball, as they had done many times
before. /d. at 305.
The appellant next explained his phone conversation
with KK that was recorded by NCIS. He testified that
he had been working the night before the call and was
tired. He further testified that he was both "surprised"
and "concerned" when he received the call. He
explained that he wanted to talk to KK about the
allegations with her parents and his wife present.
Record at 311-12. He adarnantly denied touching KK
inappropriately, "[a]s God as my witness." /d. at 312.
Finally, the appellant admitted he had _ received
nonjudicial punishment for fraud, explaining that he
92a
didn't know his divorce was final while he continued to
receive housing allowances. On cross-examination, the
appellant also admitted that he previously had money
problems and had written checks that bounced.
The elements of the appellant's offense are as follows:
(1) That the accused committed a certain
act upon or with the body of a certain
person;
(2) That the person was under 16 years of
age and not the spouse of the accused;
(3) That the act of the accused was
indecent;
(4) That the accused committed the act
with intent to arouse, appeal to, or gratify
the lust, passions, or sexual desires of the
accused, victim, or both; and,
(5) That, under the circumstances, the
conduct of the accused was to the
prejudice of good order and discipline in
the armed forces or was of a nature to
bring discredit upon the armed forces.
MANUAL FOR COURTS-MARTIAL, UNITED STATES (1998
ed.), Part IV, ¥ 87b(1). -
We begin by noting that "[t]he test for factual
93a
sufficiency ‘is whether, after weighing the evidence in
the record of trial and making allowances for not having
personally observed the witnesses,’ [this] court ‘is
convinced of the [appellant’s] guilt beyond a reasonable
doubt." United States v. Reed, 54 M.J. 37, 41 (C.A.A.F.
2000)(quoting United States v. Turner, 25 M.J. 324, 325
(C.M.A. 1987)); see Art. 66(c), UCMJ. Reasonable
doubt does not require that the evidence presented be
free from conflict. United States v. Lips, 22 M.J. 679,
684 (A.F.C.M.R. 1986). Further, this court may believe
one part of a witness’ testimony and disbelieve other
aspects of his or her testimony. United States v. Harris,
8 M.J. 52, 59 (C.M.A. 1979). Our task here is to
determine whether KK's testimony and its corroborating
evidence were sufficient to convict the appellant.
We have carefully considered the evidence presented at
trial, keeping in mind that the fact-finder saw and heard
all the witnesses. Art. 66(c), UCMJ; United States v.
Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). The
appellant’s allegations regarding KK's credibility and
possible motive to fabricate were fully developed at trial
and ably argued before the trial court. After careful
review of the record, we find that KK’s testimony was
credible and partially corroborated by the other evidence
adduced at trial. We further find that the appellant's acts
were both prejudicial to good order and discipline and of
a nature to bring discredit upon the armed forces. We
have no difficulty concluding that a reasonable fact-
finder could find the appellant guilty of indecent acts
and liberties with a child. We conclude that the
evidence presented was both legally and factually
94a
sufficient to sustain the appellant's conviction. We are
also convinced beyond a reasonable doubt of the
appellant’s guilt. We, therefore, decline to grant the
requested relief.
Effective Assistance of Counsel
The appellant also asserts that he was denied ithe
effective assistance of counsel because his trial defense
team was deficient in several aspects of their
investigation and trial strategy.’ We find no deficient
performance by counsel.
The U.S. Supreme Court has articulated two prongs that
an appellate court must find before concluding that relief
is required for ineffective assistance of counsel --
' The appellant cites 24 areas of concern regarding the
performance of his trial defense counsel team and raises
"20 Disturbing Questions" in a 27-page affidavit dated
21 Feb 2001. In this affidavit, the appellant alludes to
his defense team's inexperience, purported lack of a trial
strategy or "solid trial plan,” no real investigation,” his
inadequate preparation for cross-examination, their
imprudent forum election advice, and other performance
shortfalls. As discussed further above, we find no merit
in these complaints.
95a
deficient performance and prejudice. See Strickland v.
Washington, 466 U.S. 668, 687 (1984). The proper
standard for attorney performance is that of reasonably
effective assistance. /d. Counsel is strongly presumed
to have rendered adequate assistance and made all
significant decisions in the exercise of reasonable
professional judgment. Jd. This Constitutional standard
applies equally to military cases. See United States v.
Scott, 24 M.J. 186, 187 (C.M.A. 1987). The Strickland
two-part test applies to guilty pleas and sentencing
hearings that may have been undermined by ineffective
assistance of counsel. See United States v. Alves, 53
M.J. 286, 289 (C.A.A.F. 2000)(citing Hill v. Lockhart,
474 U.S. 52, 58 (1985)). In order to show ineffective
assistance, however, an appellant must surmount a very
high hurdle. See United States v. Moulton, 47 M.J. 227,
229 (C.A.A.F. 1997). Here, the appellant falls short of
the mark. :
Trial defense counsel have a duty to perform a
reasonable investigation or make a determination that an
avenue of investigation is unnecessary. See United
States v. Sales, 56 M.J. 255, 258 (C.A.A.F.. 2002);
United States v. Brownfield, 52 M.J. 40, 42 (C.A.A.F.
1999). We do not look at the success of a trial theory,
but rather whether counsel made an objectively
reasonable choice in strategy from the alternatives
available at the time. See United States v. Dewrell, 55
M.J. 131, 136 (C.A.A.F. 2001).
Here, the appellant's assertions of ineffective assistance
of counsel constitute nothing more than bare allegations
96a
concerning counsels' perceived omissions, supported
only by his own self-serving affidavit. See United States
v. Ginn, 47 M.J. 236, 248 (C.A.A.F. 1997). We will not
presume that counsel did not investigate or research
potential avenues of defense, particularly where the
appellant indicated his satisfaction with counsel several
times during the proceedings. As to the issue of forum
election, the appellant himself chose trial by military
judge alone after being appropriately informed of his
forum election rights by the military judge. As to the
issue of lack of trial plan, it is abundantly clear from the
record that the trial defense team aggressively pursued a
strategy designed to discredit the Government's
complaining witness and undermine her accusations of
abuse. As to the decision to call or not call certain
witnesses, those decisions are tactical decisions within
the professional judgment of the counsel that we will not
"second guess" absent compelling circumstances. As to
the issue of preparation of the appellant for cross-
examination, the appellant's testimony was clear and
ably presented. That he did not have "all the answers" to
hard questions posed by the Government counsel is more
likely a product of the crucible of cross-examination
rather than inadequate preparation by his own counsel.
Finally, we note that the appellant's trial defense team
presented a strong case on the merits, especially in
challenging the Government's evidence and in obtaining
a judicial view of the crime scene to place the evidence
in proper context, as well as in providing significant
extenuation and mitigation evidence, resulting in a
sentence to confinement considerably less than the
statutory maximum punishment.
97a
Simply put, we find that the appellant's numerous
contentions of ineffective assistance of counsel are
nothing more than "buyer's remorse” arising from his
subsequent conviction and punishment rather than
deficiencies of criminal defense representation. Thus,
we hold that the appellant has not met his burden in
demonstrating ineffective assistance of counsel and
decline to grant relief on this basis.
Conclusion ‘i
Accordingly, the findings and sentence, as approved by
the convening authority, are affirmed.
Senior Judge CARVER and Judge WAGNER concur.
For the Court
R.H. TROIDL
Clerk of Court
98a
Appendix K
UNITED STATES, Appellee
v.
Christopher B. DURFEE, Builder Second Class (E-5),
U.S. Navy, Appellant
No. 06-0109/NA
UNITED STATES COURT OF APPEALS FOR
THE ARMED FORCES
Crim. App. Dkt. No. 9901453
September 11, 2006, Ordered
Counsel for Appellant: LT. Richard H. McWilliams,
JAGC, USNR.
Counsel for Appellee: LT Mark H. Herrington, JAGC,
USNR.
On consideration of the granted issue, in light of United
States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006), and
United States v. Allison, 63 M.J. 365 (C.A.A.F. 2006),
assuming that Appellant was denied his due process
right to speedy post-trial review and appeal, that error
was harmless beyond a _ reasonable doubt. On
consideration of the specified issue, the United States
99a
Navy-Marine Corps Court of Criminal Appeals erred in
affirming “two-thirds pay per month for any period of
remaining active service after the date of trial.” See
Rule for Courts-Martial 1003(b)(2). However, because
Appellant did not receive any adjudged confinement and
was on appellate leave in a no-pay status after trial, that
error is harmless. We will remedy that error in our
decretal paragraph. Accordingly, it is, by the Court, this
11" day of September, 2006,
ORDERED:
That the decision of the United States Navy-Marine
Corps Court of Criminal Appeals is affirmed as to
findings and only so much of the sentence as includes a
bad-conduct discharge and reduction to E-l. The
remainder of the sentence is set aside and dismissed.
For the Court,*
/s/ William A. DeCicco
Clerk of the Court
* CRAWFORD, Judge (concurring in the result):
I concur in the result in this case but disassociate
myself from the reasoning in United States v.
Moreno, 63 M.J. 129, 144 (C.A.A.F. 2006)
(Crawford, J., concurring in part and dissenting in
part), and United States v. Allison, 63 M.J. 365, 371
100a
(C.A.A.F. 2006) (Crawford, J., concurring in part
and in the result).
10la
Appendix L
IN THE U.S. NAVY-
MARINE CORPS COURT OF CRIMINAL APPEALS
WASHINGTON NAVY YARD
WASHINGTON, D.C.
BEFORE
C.L. CARVER W.L. RITTER J.F. FELTHAM
UNITED STATES
v.
Christopher B. DURFEE
Builder Second Class (E-5), U.S. Navy
NMCCA 9901453 Decided 15 September 2005
Sentence adjudged 8 July 1998. Military Judge: K.A.
Krantz. Review pursuant to Article 66(c), UCMJ, of
General Court-Martial convened by Commander, Naval
Base, Jacksonville, FL.
LT M.J. NAVARRE, JAGC, USNR, Appellate Defense
Counsel
LT J.R. GOODMAN, JAGC, USNR, Appellate Defense
Counsel
LT CLARICE JULKA, JAGC, USNR, Appellate
102a
Government Counsel
Capt GLEN HINES, USMC, Appellate Government
Counsel
AS AN UNPUBLISHED DECISION, THIS OPINION
DOES NOT SERVE AS PRECEDENT.
RITTER, Senior Judge:
The appellant was tried by a general court-martial
composed of officer and enlisted members. Contrary to
his pleas, the appellant was convicted of forcible
sodomy, assault, committing an indecent act, and receipt
of obscene materials, in violation of Articles 125, 128
and 134, Uniform Code of Military Justice, 10 U.S.C. §§
925, 928 and 934. The members sentenced the appellant
to total forfeitures, reduction to pay grade E-1, and a
bad-conduct discharge. The convening authority
approved the findings and sentence.
The appellant contends: (1) the charges of forcible
sodomy, assault, and committing an indecent act
constitute an unreasonable multiplication of charges; (2)
the evidence is insufficient to sustain his convictions for
forcible sodomy, assault and committing an indecent act
against his ex-wife, and for receiving obscene material
on his home computer; (3) the members were incorrectly
instructed to apply a “local community standard” in
determining the obscene nature of material received over
the internet; and (4) even if the “local community
standard” was proper, the members in the appellant’s
103a
case were not qualified to determine that standard for the
Miami, Florida, area when appellant’s court-martial
convened in Jacksonville, Florida.
We have examined the record of trial, the appellant’s
brief and assignment of errors, his supplemental
assignment of error, and the Government’s answers to
both pleadings. With the exceptions noted below, we
conclude that the findings and sentence are correct in
law and fact and that no error materially prejudicial to
the substantial nghts of the appellant was committed.
Arts. 59(a) and 66(c), UCMJ.
Unreasonable Multiplication of Charges
In his first assignment of error the appellant asserts that
Specification 1 of Charge III (forcible sodomy),
Specification | of Charge IV (assault) and Specification
1 of Charge V (indecent act) represent an unreasonable
multiplication of charges.' At trial the appellant made a
motion to dismiss the above-listed specifications as
multiplicious, arguing that the assault and indecent act
were both lesser included offenses of the forcible
sodomy offense. See Record at 67-72; Appellate Exhibit
' These offenses were originally numbered as Charge VI,
Specification 2 (forcible sodomy), the sole specification
under Additional Charge I (assault), and Charge VIII,
Specification 1 (indecent act). After certain
specifications were combined or dismissed on motion,
the offenses were renumbered as they appear in
Appellate Exhibit LXI.
104a
XXI. On appeal, the appellant uses the doctrine of
unreasonable multiplication of charges in arguing for the
same remedy. We agree with the appellant's original
contention at trial, and find the assault and indecent acts
offenses to be multiplicious with the forcible sodomy
offense. 3
1. Facts
The appellant's marriage with his wife of five months
had become strained, and the appellant had begun
talking about divorce. One evening, after the appellant
had been using his computer, he came into the bedroom
of their trailer home, where his wife, S, was lying face
down on the bed, in her pajamas. The appellant went
into the bathroom, got some kind of cream, and came
over to the bed. S noticed he already had an erection.
The appellant straddled S, held her arms behind her back
with his left hand, and rested his legs on top of hers. S
tried to move, but could not. He pulled her pajamas off
and rubbed the cream on her buttocks in the vicinity of
her anus. He reached into her anus with two fingers, and
S said "Stop, this hurts a lot." The appellant then took
his fingers out and penetrated her anus with his penis.
After a few minutes the appellant stopped, and S went
into the bathroom to clean up. Showing her husband the
blood on the towel she used to clean up, S said, "Chris,
look at this; look what you did.” The appellant replied, "
If you were relaxed, that wouldn't have happened."
Their relationship became more strained from that point
on, and § left their home in Florida to return to her
10Sa
parents’ home in Puerto Rico six days later.
2. Analysis
Specifications are multiplicious for findings if each
alleges the same offense, or if one offense is necessarily
included in the other. RULE FOR COURTS-MARTIAL
907(b)(3)(B), MANUAL FOR COURTS-MARTIAE (1998
ed.), Discussion. “A _ specification may also be
multiplicious with another if they describe substantially
the same misconduct in two different ways.” Jd.
The elements of the offense of forcible sodomy are: (1)
that the accused engage in unnatural carnal copulation
with a certain other person; and (2) that the act was done
by force and without the consent of the other person.
The force element present in the sodomy charge requires
both an overt act of force and the victim’s lack of
consent. Under the facts of this case, the appellant's act
of straddling S and holding her arms back while forcibly
inserting his penis clearly serves both as the overt act for
forcible sodomy and as the basis for the assault charge.
See e.g. United States v. Britton, 47 M.J. 195 (C.A.A.F.
1997). We have no difficulty concluding that the assault
charge », a lesser included offense of the forcible
sodomy charge, and is therefore multiplicious for
findings.
The multiplicity issue regarding the appellant's
conviction for committing an indecent act is less clear.
Forcible sodomy and indecent acts are separate crimes,
as they each require proof of an element not required to
106a
prove the other. See United States v. Frelix-Vann, 55
M.J. 329, 331-32 (C.A.A.F. 2001); United States v.
Teters, 37 M.J. 370, 377 (C.M.A. 1993). In this case,
the two charges involve separate acts, in which the
appellant employed different parts of his body. Had the
facts of this case indicated that one of the appellant's
goals in straddling his wife and holding her arms behind
her back was to insert his fingers into S' anus, we would
have no difficulty in affirming his convictions for both
indecent act and forcible sodomy. See United States v.
Neblock, 45 M.J. 191, 198 (C.A.A.F. 1996)(stating "*[I]f
successive impulses are separately given, even though all
unite in swelling a common stream of action, separate
indictments lie.’" (citation omitted)).
However, under the particular facts of this case, we are
convinced that the appellant inserted his fingers into S'
anus only to facilitate the insertion of his penis. S'
testimony strongly suggests that the appellant inserted
his fingers only long enough for her to react with a brief
complaint before he proceeded to insert his penis.
Record at 609. Since we are persuaded that the indecent
act was only a means to another end — sodomy — we find
that the appellant's insertion of his two fingers was part
of the force used to commit forcible sodomy. As such, it
is a lesser included offense of the latter offense, and
must be set aside and dismissed.
Our holding moots the appellant's claim that the three
charges and specifications constituted an unreasonable .
multiplication of charges. See United States v. Quiroz,
57 M.J. 583, 585-86 (N.M.Ct.Crim.App. 2002)(en
107a
banc), aff'd, 58 M.J 183 (C.A.A.F. 2002)(summary
disposition). We will take remedial action in our
decretal paragraph, below.
Sufficiency of Evidence
Forcible Sodomy
The appellant also, challenges his conviction for forcible
sodomy on the basis that his wife's testimony was
unreliable, thus rendering the evidence factually and
legally insufficient. We disagree.
The test for legal sufficiency is whether, considering the
evidence in the light most favorable to the Government,
any rational fact finder could have found that all the
necessary elements of the offense beyond a reasonable
doubt. United States v. Turner, 25 M.J. 324, 325
(C.M.A. 1987)(citing Jackson v. Virginia, 443 U.S. 307,
319 (1979)). The test for factual sufficiency is whether,
after weighing all the evidence in the record of trial and
making allowances for not having personally observed
the witnesses, this court is convinced of the appellant's
guilt beyond a reasonable doubt. Turner, 25 M.J. at 325.
However, reasonable doubt does not mean that the
evidence must be free of conflict. United States v. Reed,
51 M.J. 229, 562 (N.M.Ct.Crim.App. 1997), aff'd, 54
M.J. 37 (C.A.A.F. 2000). A fact-finder may believe one
part of a witness’ testimony and disbelieve another.
United States v. Lepresti, 52 M.J. 644, 648
(N.M.Ct.Crim.App. 1999).
108a
Our task is to determine whether the testimony of the
appellant’s ex-wife alone was sufficient to convict the
appellant. While the appellant’s allegations regarding
his ex-wife’s credibility and possible prior inconsistent
statements were developed at trial and ably argued to the
court, our own review of the record convinces us that a
rational fact-finder could find S' testimony credible. We
therefore find the evidence legally sufficient as to the
charge of forcible sodomy.
Moreover, we are convinced of the appellant's guilt on
this charge beyond a reasonable doubt. S testified in
graphic detail concerning the appellant’s acts in forcibly
sodomizing her. We are convinced from our review of
the record that most of the discrepancies in S' testimony
are attributable to the fact that she could not speak
English. She had difficulty expressing herself at trial
even though she testified through an interpreter. She
stated she had similar difficulty being understood during
the investigation of the appellant's offenses. Finally, we
find her testimony more credible than the only evidence
directly rebutting it. That came from Special Agent
(SA) Washington of the Naval Criminal Investigative
Service (NCIS), who testified that the appellant, in an
unsworn oral statement, admitted to massaging his wife
with skin cream on the external portion of her anus and
to consensual sex on the night in question, but denied
committing anal sodomy. We thus find the evidence
both legally and factually sufficient to support the
finding of guilt for committing forcible sodomy.
109a
Receiving Obscene Materials
The appellant next contends that the evidence is legally
and factually insufficient to support his conviction for
receiving obscene materials. We disagree.
1. Facts
Shortly after he separated from S, the appellant began
living with Ms. B. The difficulties in his relationship
with Ms. B served as the basis for a number of charges
of which the appellant was acquitted. These included a
charge of rape that allegedly occurred on | June 1996.
On 3 June 1996, at Ms. B's insistence, the appellant
moved out of their apartment. When Ms. B returned to
her home after a work-related interview, the appellant
was still in the process of moving out. At that point, he
had removed from the apartment and placed on either a
truck or U-Haul trailer almost all of Ms. B's personal
property. This property included six or seven
computers, most of which Ms. B used for her personal
computer business. After arguing with the appellant,
Ms. B called the police and, at their direction, the
appellant unloaded and returned some of the items,
including electronic equipment for which he did not
have a receipt. He returned his personal computer, and
kept the others.
The next day, 4 June 1996, Ms. B called the NCIS and
left a message, seeking their assistance to_ensure the
appellant left her alone. She then went to a state victim
assistance office and applied for a restraining order
110a
against the appellant. After returning home, she
received a phone call from the appellant, in which he
threatened to break her legs if she told anyone what was
on his computer. Since the appellant had taken all of the
computer monitors, power cords, keyboards, and
associated equipment, Ms. B went out and purchased
these items so as to examine the computer, in an effort to
ascertain the reason for the appellant's threatening phone
call.2 Reviewing the computer's files, she found the
photographs that were the basis for the charge of
receiving obscene matters.
SA Washington met Ms. B at her apartment on 10 June
1996 to discuss her allegations of sexual assault. She
took the opportunity to inform him that there were both
adult and child pornographic images on the appellant’s
computer, and suggested he take it. SA Washington told
Ms. B that he would not confiscate the computer that
day, but would return to take her written statement and
would retrieve the computer at that time. He returned
and took custody of the computer on 21 June 1996.
2 Ms. B also testified to a secondary motive for
examining the computer. She stated that the appellant
had threatened to report her to Microsoft Corporation for
pirating software. Since the appellant had taken all of
her business records when he moved out, she also
searched the computer in hopes of finding electronic
proof of the purchase certificates for the software she
used in her computer business. Record at 762.
Illa
2. Analysis
The appellant contends that since Ms. B was a trained
computer technician and had sole access to the
appellant's computer after he moved out of the
apartment, she must have put the obscene material onto
his computer. He also suggests that because he was
found not guilty of all the other charges that involved
Ms. B as a victim, her testimony is inherently unreliable
and therefore, we should not affirm any conviction based
on Ms. B's testimony. We disagree with both
contentions.
The appellant was convicted under Article 134, UCMJ,
of violating 18 U.S.C. § 1462. This section of the
United States Code prohibits the importation,
transportation or receipt of obscene matters. To sustain
the appellant’s conviction under this section, the
Government must establish the following elements
beyond a reasonable doubt:
(1) That during the period | January 1994 to 2]
June 1996, the appellant knowingly and
unlawfully received from the mail or an
interactive computer service, several visual
depictions;
(2) That the depictions portrayed defecation,
homosexual sodomy and masochism’; and
> The appellant was charged with receiving visual
depictions of bestiality as well, but the members found
him guilty of the specification after excepting the word
l1l2a
(3) That the depictions were obscene, lewd and
lascivious.
18 U.S.C. § 1462; Record at 1040-41.
After carefully reviewing the record, we have no
difficulty concluding that a rational factfinder could find
the appellant guilty of this offense. Moreover, we are
convinced beyond a reasonable doubt of the appellant's
guilt, based on a combination of Ms. B's testimony and
other evidence admitted at trial.
In unrebutted testimony, Ms. B stated that she first
contacted the NCIS before she even examined the
computer. She did so for essentially the same reason
that she went to the state victim assistance office
immediately after calling NCIS; that is, she was seeking
help to keep the appellant away from her. Upon her
return from the victim assistance office, she received a
telephone call from the appellant, threatening to "break
her legs" if she told anyone what was on the computer.
Only then did she purchase the necessary computer
equipment to review the files on the appellant's
computer, and discovered the obscene matter.
Other evidence supports the appellant's conviction on
this offense. Sergeant Reddish, a friend of the appellant,
testified that the appellant had in the past provided him
computer disks that contained adult pornographic
images. The NCIS computer analysis expert, Ms.
_
"bestiality."
li3a
Fugere, testified that the obscene photographs that were
the basis for the charged offense were contained on the
computer’s “c” drive, which also included material such
as a Seabee emblem, designating the appellant’s Naval
community, and transcripts of chat room conversations
in which he participated. Finally, we are cognizant of
the fact that the members viewed the witnesses and,
although they acquitted the appellant of numerous
offenses relating to Ms. B, they found her testimony
credible enough on this point to find him guilty of this
offense beyond a reasonable doubt. We are convinced
of the appellant's guilt by the same standard, and thus
find the evidence both legally and factually sufficient as
to this offense.
Standard for Determining Obscenity
The appellant contends that the military judge erred in
instructing the members as to the proper standard for
determining whether the materials found on _ the
appellant’s computer were obscene. Although he agreed
at trial that a "local community standard" should be used,
he now argues that the proper standard should have
reflected the entire internet community. In a separate
assignment of error, he contends that even if a local
community standard was proper, the court-martial that
was convened in Jacksonville, Florida, was not qualified
to determine obscenity by the community standard for
South Florida. We find that both arguments were
waived at trial.
In Miller v. California, 413 U.S. 15, 24 (1973), the
114a
United States Supreme Court established a three-step
analysis for determining whether material may be
deemed obscene: |
(a) Whether the average person, applying
contemporary community standards would find that the
work, taken as a whole, appeals to the prurient interest;
(b) Whether the work depicts or describes, in a
patently offensive way, sexual conduct specifically
defined by the applicable state law; and
(c) Whether the work, taken as a whole, lacks
serious literary, artistic, political, or scientific value.
The propriety of instructions given by the military judge
is reviewed de novo. United States v. Simpson, 56 M.J.
462, 465 (C.A.A.F. 2002); United States v. Quintanilla,
56 M.J. 37, 83 (C.A.A.F. 2001). A failure to object to
an instruction prior to commencement of deliberations
waives the objection in the absence of plain error.
R.C.M. 920(f); see United States v. Grier, 53 M.J. 30,
34 (C.A.A.F. 2000); United States v. Cooper, 51 M.J.
247, 252 (C.A.A.F. 1999). The burden is on the
appellant to establish plain error. Simpson, 56 M.J. at
465. In order for there to be plain error, (1) there must
be an error; (2) the error must be clear and obvious; and
(3) the error must affect the substantial nghts of the
appellant. Grier, 53 M.J. at 34 (citing United States v.
Powell, 49 M.J. 460, 463 (C.A.A.F. 1998)). Military
courts are further constrained by Article 59(a), UCMGJ, in
that they may reverse for legal error only if it "materially
11Sa
prejudices the substantial rights of the accused." See
Powell, 49 M.J. at 465. The waiver rule of R.C.M.
920(f) reflects a determination by the President that “tan
attorney may make tactical decisions at trial which,
though they may have turned out to be unsuccessful,
should not be second-guessed in appellate review.”
United States v. Smith, 50 M.J. 451, 455 (C.A.A.F.
1999).
The appellant, through counsel, requested that the
members be instructed to use the community standards
of South Florida to determine whether the photographs
were obscene. While the case law is not firmly settled as
to what community standard should be used, we are
confident the local community standard used in this case
is not inconsistent with the Supreme Court's guidance in
Miller v. California. \n any case, the appellant has not
demonstrated that this instruction was in_ error.
Although he now argues for an internet-wide community
standard, some military and federal district courts that
have considered this issue have rejected an “internet-
wide” or “cyber-standard” as a specific community for
determining community standards of obscenity. See
United States v. Gallo, 53 MJ. 556, 568
(A.F.Ct.Crim.App. 2000); United States v. Thomas, 74
F.3d 701 (6th Cir. 1996). The appellant has failed to
demonstrate clear error in the military judge's
instruction. We thus find no plain error, and conclude
that the issue was waived.
Likewise, the appellant did not argue at trial that the
court-martial members were unqualified to apply the
116a
South Florida local community standard. Nor has he
demonstrated in his pleadings that they were in fact
unqualified to implement the standard that he proposed
they use. We thus find no clear error. In the absence of
plain error, this issue was also waived. See R.C.M.
801(g).
Assuming arguendo these issues had not been waived
and that error occured, we find no prejudice. The
appellant has not articulated any prejudice, and having
reviewed the photographs ourselves, this court cannot
imagine any reasonable community standard by which
they would not be deemed "obscene, lewd or lascivious"
by the criteria set forth in Miller v. California.
Accordingly any error was harmless.
Forfeiture of Pay
As a final matter, although it was not assigned as error,
we note that the convening authority erred in approving
the adjudged total forfeitures despite the fact that no
confinement was adjudged. A service member cannot be
required to forfeit more than two-thirds pay while on
active duty and not serving confinement. United States
v. Warner, 25 M.J. 64, 67 (C.M.A. 1987); see also
R.C.M. 1107(d)(2), Discussion. The appellant has not
contended, let alone demonstrated, that he was deprived
of more than two-thirds pay for any period of time
following his court-martial. However, we will eliminate
any potential prejudice in our decretal paragraph.
117a
Conclusion
Accordingly, the court sets aside and dismisses the
findings of guilty under Specification | of Charge IV
and Specification 1 of Charge V. In light of our finding
that both of these specifications were multiplicious for
findings with Specification 1 of Charge III, we have
reassessed the sentence in accordance with United States
v. Cook, 48 M.J. 434, 437-38 (C.A.A.F. 1998), United
States v. Peoples, 29 M.J. 426, 427-29 (C.M.A. 1990),
and United States v. Sales, 22 M.J. 305, 307-08 (C.M.A.
1986). Upon reassessment, the court finds the sentence,
as modified to avoid excessive forfeitures, appropriate
for the remaining offenses and this offender.
We therefore affirm the findings only as to Charge III,
Specification 1, and Charge V, Specification 7, as
approved by the convening authority, and only so much
of the sentence as provides for reduction to pay grade E-
1, forfeiture of two-thirds pay per month for any period
of remaining active service after the date of trial, and a
bad-conduct discharge.
Senior Judge CARVER and Judge FELTHAM concur.
For the Court
R.H. TROIDL
Clerk of Court
118a
Appendix M
UNITED STATES, Appellee
V.
Tyrone J. FORNEY, Machinist's Mate Second Class
(E-5), U.S. Navy, Appellant
No. 04-0604/NA
UNITED STATES COURT OF APPEALS FOR
THE ARMED FORCES
Crim. App. Dkt. No. 200001573
September 11, 2006, Ordered
Counsel for Appellant: Captain James Valentine,
USMC.
Counsel for Appellee: LTCol Raymond E. Beal, II,
USMC.
On consideration of the specified issue, in light of
United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006),
and United States v. Allison, 63 M.J. 365 (C.A.A-F.
2006), assuming that the Appellant was denied his due
process right to speedy post-trial review and appeal, that
error was harmless beyond a reasonable doubt.
119a
Accordingly, it is, by the Court, this 11" day of
September, 2006,
ORDERED:
That the decision of the United States Navy-Marine
Corps Court of Criminal Appeals is affirmed.
For the Court,*
/s/ Williant A. DeCicco
Clerk of the Court
* CRAWFORD, Judge (concurring in the result):
1 concur in the result in this case but disassociate
myself from the reasoning in United States v. Moreno,
63 M.J. 129, 144 (C.A.A.F. 2006) (Crawford, J.,
concurring in part and dissenting in part), and United
States v. Allison, 63 M.J. 365, 371 (C.A.A.F. 2006)
(Crawford, J., concurring in part and in the result).
120a
Appendix N
IN THE U.S. NAVY-
MARINE CORPS COURT OF CRIMINAL APPEALS
WASHINGTON NAVY YARD
WASHINGTON, D.C.
BEFORE
CHARLES Wm.
DORMAN M.J. SUSZAN R.C. HARRIS
UNITED STATES
v.
Tyrone J. FORNEY
Machinist's Mate Second Class (E-5), U.S. Navy
NMCCA 200001573 Decided 12 November 2003
Sentence adjudged 21 April 2000. Military Judge: J.P.
Winthrop. Review pursuant to Article 66(c), UCMJ, of
General Court-Martial convened by Commander, Naval
Air Force, United States Atlantic Fleet, Norfolk, VA.
Capt PHILLIP D. SANCHEZ, USMC, Appellate
Defense Counsel
I2la
LT C.C. BURRIS, JAGC, USNR, Appellate
Government Counsel
AS AN UNPUBLISHED DECISION, THIS OPINION
DOES NOT SERVE AS PRECEDENT.
PER CURIAM:
A military judge, sitting as a general court-martial,
convicted the appellant, pursuant to his pleas, of rape of
a child (two specifications), in violation of Article 120,
Uniform Code of Military Justice, 10 U.S.C. § 920. The
appellant was sentenced to confinement for 16 -years,
reduction to pay grade E-l, and a dishonorable
discharge. The convening authority approved the
adjudged sentence and, pursuant to a pretrial agreement,
suspended confinement in excess of 15 years for 20
years. f
After carefully considering the record of trial, the
appellant’s three assignments of error, and the
Government’s response, we conclude that the findings
and sentence are correct in law and fact and that no error
materially prejudicial to the substantial nghts of the
appellant was committed. Arts. 59(a) and 66(c), UCMJ.
Sentencing Deliberations
In the appellant’s first assignment of error, he contends
that the military judge erred by deliberating for a mere
seventy-two minutes despite receiving nine defense
exhibits, consisting of 115 pages, two hours of
122a
testimony from five witnesses and lengthy counsel
argument, creating both actual unfairness and the
appearance of unfairness in the court-martial. The
appellant avers that this court should return his case to
the convening authority for a rehearing on sentence or,
in the alternative, approve only so much of the sentence
as provides for confinement for seven to ten years,
reduction to pay grade E-1, and a bad-conduct discharge.
We disagree.
In the appellant’s second assignment of error, he
contends that the military judge erred by disregarding his
excellent military character as evidence in mitigation.
The appellant avers that this court should return his case
to the convening authority for a rehearing on sentence
or, in the alternative, approve only so much of the
sentence as provides for confinement for seven to ten
years, reduction to pay grade E-1, and a bad-conduct
discharge. We disagree.
Neither the UCMJ nor the Manual for Courts-Martial
requires the fact-finder to deliberate for any particular
length of time, whether it is on findings or sentence.
United States v. Lentz, 54 MJ. 818, 821
(N.M.Ct.Crim.App. 2001)(citing United States v. Pena,
11 M.J. 509, 510 (N.M.C.M.R. 1981)). Therefore, we
presume that there is no actual unfairness or any
appearance of unfairness in the appellant’s case based on
the length of time of deliberation. The military judge,
who enjoys the presumption of knowing and properly
applying the law, heard all of the evidence and argument
of counsel before deliberating for seventy-two minutes
123a
on the sentence. The appellant has not convinced this
court that this was unfair or even appeared unfair. See
Lentz, 54 M.J. at 821.
Further, as in Lentz, the appellant has failed to present
any evidence that the military judge was biased in his
case. Instead, he relies solely on the length of the
military judge’s deliberation. Appellant’s Brief of 31
Jan 2003 at 4-7. Without more, the appellant’s argument
is not well taken. Accordingly, we decline to grant
relief.
As addressed above, we presume that there is no actual
unfairness or any appearance of unfairness in the
appellant’s case based on the length of time of
deliberation by the military judge. However, as a matter
of course, if a military judge were to refuse to adequately
consider the matters presented by an accused during the
sentencing phase of the court-martial, then that judge
could be challexged as having an inelastic attitude
toward sentencing. See United States v. Weathersby, 48
M.J. 668, 673 (Army Ct.Crim.App. 1998). After review
of the entire record, we see no evidence of the military
judge having disregarded the appellant’s excellent
military character as evidence in mitigation. As such,
we decline to grant relief.
Sentence Appropriateness
In the appellant’s third assignment of error, he contends
that the nature of the offenses and his character do not
warrant imposition of sixteen years confinement and a
124a
dishonorable discharge. The 2ppellant avers that this
court should approve only so much of the sentence as
provides for confinement for seven to ten years,
reduction to pay grade E-1, and a bad-conduct discharge.
We disagree.
A court-martial may impose any legal sentence it deems
appropriate. United States v. Turner, 14 C.M.A. 435,
437, 34 C.M.R. 215, 217 (1964); RULE FOR COURTS-
MARTIAL 1002, MANUAL FOR COURTS-MARTIAL,
UNITED STATES (2000 ed.). On review, a military court
of criminal appeals “may affirm only such findings of
guilty and the sentence or such part or amount of the
sentence, as it finds correct in law and fact and
determines, on the basis of the entire record, should be ~
approved.” Art. 66(c), UCM). Sentence
appropriateness involves the judicial function of
assuring that justice is done and that the accused gets the _
punishment he deserves. United States v. Healy, 26 M.J.
394, 395 (C.M.A. 1988). An appropriate sentence
results from an individualized consideration based upon
the nature and seriousness of the offense and the
character of the offender. United States v. Rojas, 15
M.J. 902, 919 (N.M.C.M.R. 1983)(citing United States
v. Snelling, 14 M.J. 267 (C.M.A. 1982)) aff'd, 20 M.J.
330 (C.M.A. 1985). Military courts of criminal appeals
are tasked with determinmg sentence appropriateness, as
opposed to bestowing clemency, which is_ the
prerogative of the convening authority. Healy, 26 M.J.
at 395; R.C.M. 1107. A sentence should not be
disturbed on appeal unless the harshness of the sentence
is so disproportionate as to cry out for sentence
125a
equalization. United States v. Usry, 9 M.J. 701, 704
(N.C.M.R. 1980). -
The Supreme Court of the United States stated in Coker
v. Georgia, 433 U.S. 584, 598 (1977), that “[rJape is
without doubt deserving of serious punishment[.]”
Further, the Court of Appeals for the Armed Forces has
also recognized rape as a serious crime. United States v.
Reist, 50 M.J. 108, 110 (C.A.A.F. 1999); United States
v. Hudson, 46 M.J. 226, 228 (C.A.A.F. 1997). Also, our
superior court has recognized the aggravating nature of
criminal conduct involving noncommissioned officers.
United States v. Thompson, 22 M.J. 40, 41 (C.M.A.
1986)(noting that noncommissioned officers by virtue of
their rank and authority have the responsibility to
maintain high personal standards).
The appellant was convicted of raping his own niece on
two separate occasions. After reviewing the entire
record, we find that the sentence is appropriate for this
offender and his offenses. Healy, 26 M.J. at 395-96;
Snelling, 14 M.J. at 268. As stich, granting sentence
relief at this point would be to engage in clemency, a
prerogative reserved for the convening authority. Healy,
26 M.J. at 395-96.
126a
Conclusion
Accordingly, the findings and the sentence, as approved
by the convening authority, are affirmed.
For the Court
R.H. TROIDL
Clerk of Court
127a
Appendix O
UNITED STATES, Appellee
v.
Vincent FRANCOIS
Ship's Serviceman Third Class (E-4), U.S. Navy,
Appellant
No. 05-0478
UNITED STATES COURT OF APPEALS FOR
THE ARMED FORCES
Crim. App. Dkt. No. 200101967
September 11, 2006, Ordered
Counsel for Appellant: LT Anthony Yim, JAGC, USNR.
Counsel for Appellee: LT Mark H. Herrington, JAGC,
USNR.
On consideration of the granted issue, in light of United
States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006), and
United States _v. Rodriguez-Rivera, 63 M.J.. 372
(C.A.A.F. 2006), we conclude that Appellant was denied
his due process right to speedy post-trial review and
appeal, that the error was not harmless beyond a
reasonable doubt, but that “to fashion relief that would
128a
be actual and meaningful in this case would be
disproportionate to the possible harm generated from the
delay.” Jd. at 386. Accordingly, it is, by the Court, this
11" day of September, 2006,
ORDERED:
That the decision of the United States Navy-Marine
Corps Court of Criminal Appeals is affirmed.
For the Court,*
/s/ William A. DeCicco
Clerk of the Court
* CRAWFORD, Judge (concurring in the result):
1 concur in the result in this case but disassociate
myself from the reasoning in United States v. Moreno,
63 M.J. 129, 144 (C.A.A.F. 2006) (Crawford, J.,
concurring in part and dissenting in part), and United
States _v. Allison, 63 M.J. 365, 371 (C.A.A.F. 2006)
(Crawford, J., concurring in part and in the result).
129a
Appendix P
IN THE U.S. NAVY-
MARINE CORPS COURT OF CRIMINAL APPEALS
WASHINGTON NAVY YARD
WASHINGTON, D.C.
BEFORE
C.L. CARVER D.A. WAGNER R.W. REDCLIFF
UNITED STATES
v.
Vincent FRANCOIS
Ship's Serviceman Third Class (E-4), U.S. Navy
NMCCA 200101967 Decided 14 March 2005
Sentence adjudged 16 February 2001. Military Judge:
J.W. Rolph. Review pursuant to Article 66(c), UCMJ, of
General Court-Martial convened by Commander, Navy
Region Mid-Atlantic, Norfolk, VA.
LCDR E.J. MCDONALD, JAGC, USN, Appellate
Defense Counsel
LT KYLE KNEESE, JAGC, USNR, Appellate Defense
Counsel
130a
LT CHRISTOPHER BURRIS, JAGC, USNR, Appellate
Government Counsel
LCDR TIMOTHY CURLEY, JAGC, USNR, Appellate
Government Counsel
PER CURIAM:
We have examined the record of trial, the assignment of
error that the appellant served unlawful confinement,
and the Government's response. We conclude that the
findings and sentence are correct in law and fact and that
no error materially prejudicial to the substantial nghts of
the appellant was committed. See Articles 59(a) and
66(c), Uniform Code of Military Justice, 10 U.S.C. §§
859(a) and 866(c).
The military judge sentenced the appellant to a
dishonorable discharge, confinement for 16 months, and
reduction to pay grade E-1, but recommended that the
convening authority (CA) suspend confinement in
excess of 6 months. There was no pretrial agreement.
In response to the staff judge advocate’s
recommendation to affirm the sentence as adjudged, the
trial defense counsel requested that the CA follow the
military judge’s recommendation. Seven months after
trial, the CA approved the sentence, but suspended
confinement in excess of 11 months. The appeliant was
released from confinement 2 days after the CA’s action.
But, since the appellant was credited with 119 days of
pretrial confinement, he actually served 11 days more
than he should have. Automatic forfeitures and the
l3la
adjudged reduction in grade were deferred until the
CA’s action. The appellant requests that the
dishonorable discharge be remitted to a bad-conduct
discharge.
It is unfortunate that the appellant served additional
confinement as a result of clemency by the CA. But,
under the circumstances, and finding no evidence of bad
faith by the Government, we decline to grant relief. See
United States v. Spaustat, 57 M.J. 256 (C.A.A.F. 2002);
United States v. Yunk, 53 M.J. 145 (C.A.A.F. 2000);
“United States v. Rosendahl, 53 M.J. 344 (C.A.A.F.
2000); United States v. Kinzer, 56 MJ. 74L.
(N.M.Ct.Crim.App. 2002).
Accordingly, the findings of guilty and the sentence, as
approved by the convening authority, are affirm
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.