          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                        UNITED STATES

                                                    v.

                              Staff Sergeant JUAN J. BASABE
                                   United States Air Force

                                             ACM 38277

                                         19 February 2014

         Sentence adjudged 15 November 2012 by GCM convened at Joint Base
         McGuire-Dix-Lakehurst, New Jersey. Military Judge: Lynn Schmidt
         (sitting alone).

         Approved Sentence: Dishonorable discharge, confinement for 42 months,
         forfeiture of all pay and allowances, and reduction to E-1.

         Appellate Counsel for the Appellant: Major Zaven T. Saroyan.

         Appellate Counsel for the United States: Colonel Don M. Christensen;
         Lieutenant Colonel C. Taylor Smith; Major Rhea A. Lagano; Major Brian
         C. Mason; and Gerald R. Bruce, Esquire.

                                                 Before

                          ROAN, MARKSTEINER, and SANTORO
                                Appellate Military Judges

                                   OPINION OF THE COURT

                   This opinion is subject to editorial correction before final release.



SANTORO, Judge:

       A military judge sitting as a general court-martial convicted the appellant,
consistent with his pleas, of three specifications of wrongful possession of images of
children engaged in sexually-explicit conduct, in violation of Article 134, UCMJ,
10 U.S.C. § 934. The court-martial sentenced him to a dishonorable discharge,
confinement for 4 years, forfeiture of all pay and allowances, and reduction to E-1.
Pursuant to the terms of a pretrial agreement, the convening authority reduced the term of
confinement to 42 months, but otherwise approved the adjudged sentence. Before us, the
appellant asserts: (1) His confinement in the same pod as foreign nationals violated
Article 12, UCMJ, 10 U.S.C. § 812; and (2) He received ineffective assistance of counsel
when his counsel failed to advise him of his rights under Article 12, UCMJ, and Article
138, UCMJ, 10 U.S.C. § 938, despite trial defense counsel’s knowledge of military
members being confined with foreign nationals.

                                                  Background

        Following his conviction, the appellant was housed in the Monmouth County
Correctional Institution (MCCI) in Freehold, New Jersey, pursuant to an agreement
between the Department of Defense and local officials. He was in the MCCI for almost a
month, from 15 November 2012 to 12 December 2012, until his transfer out of that
facility to the Miramar Naval Brig. During the time he was housed at the MCCI, the
appellant made no complaints either to the military or prison staff that he was housed
with foreign nationals.

       The appellant submitted his Rule for Courts-Martial 1105 clemency matters on
12 January 2013, after he had been transferred out of MCCI. His clemency submission
made no mention of being housed with foreign nationals and no complaint at all about the
conditions of his confinement.

       For the first time on appeal, in a 29 April 2013 affidavit, the appellant stated that
while at MCCI he was housed with inmates who were not United States citizens. He
concluded the inmates were foreign nationals based on the inmates’ statements to him
that they were Mexicans who were going to be deported. The appellant’s affidavit
further stated that a prison official told his appellate defense counsel that Immigration
and Customs Enforcement (ICE) detainees1 were segregated from the general population.
Despite the prison’s separate housing rules, the appellant concluded that the two
Mexicans with whom he was allegedly confined were nonetheless ICE detainees who had
been moved into the “work pod” because of their willingness to work.

       In support of his ineffective assistance of counsel claim, the appellant’s affidavit
stated that he “has been made aware” that his trial defense counsel, Captain (Capt) RC,
knew there was an “ongoing problem with MCCI confining military members with
foreign nationals.” In support of that belief the appellant offers a 19 March 2013 e-mail
message from Capt RC to his appellate defense counsel that reads in pertinent part: “I
have heard clients complain that they do house aliens out there alongside the military
inmates; however, I did not receive any such complaint from [the appellant].”



1
  Immigration and Customs Enforcement (ICE), an agency within the Department of Homeland Security, houses
detainees in local jails and other contracted facilities while they are in immigration proceedings or awaiting their
removal from the United States.


                                                         2                                             ACM 38277
        We ordered Capt RC to submit an affidavit addressing these issues. Capt RC
stated he first became aware of allegations that foreign nationals might be housed with
military inmates near the end of December 2012 or early January 2013, after the
appellant had been transferred out of the facility. That allegation involved a different
client and a pod other than the one in which the appellant had been housed and was never
confirmed.

       Capt RC also stated it was his standard practice to tell clients to contact him if they
are housed in a civilian confinement facility alongside foreign nationals. He specifically
recalled telling the appellant that he needed to have money with him when he went into
confinement so that he could purchase a telephone card to call his attorney if necessary.
Finally, Capt RC stated the appellant never complained of or suggested that he was being
housed with foreign nationals.

                               Violation of Article 12, UCMJ

       The Government argues that because a term of the appellant’s pretrial agreement
was that he waive all waivable motions, we should find that he has waived judicial
review of this issue. We easily reject that position. Waiver is the intentional
relinquishment or abandonment of a known right. United States v. Olano, 507 U.S. 725,
733 (1993). We find nothing in the record to suggest that at the time he entered his guilty
plea, the appellant knew that he might be housed in civilian confinement alongside
foreign nationals and prospectively waived his right to seek redress of a statutory
violation that had not yet been committed. See generally United States v. McFayden,
51 M.J. 289 (C.A.A.F. 1999) (in an Article 13, UCMJ, 10 U.S.C. § 813, context, waiver
will be operative only after judicial inquiry surrounding the conditions of confinement
and accused’s understanding of the potential remedy available).

       We review de novo the question of whether an appellant’s post-trial confinement
violates Article 12, UCMJ. United States v. Wise, 64 M.J. 468, 473-74 (C.A.A.F. 2007).
Article 12, UCMJ, states: “No member of the armed forces may be placed in
confinement in immediate association with enemy prisoners or other foreign nationals not
members of the armed forces.” The “immediate association” language means that
military members can be confined in the same jail or brig as a foreign national, but they
have to be segregated into different cells. Wise, 64 M.J. at 475.

        In addition, “‘[A] prisoner must seek administrative relief prior to invoking
judicial intervention’ to redress concerns regarding post-trial confinement conditions.”
Id. at 471 (quoting United States v. White, 54 M.J. 469, 472 (C.A.A.F. 2001)). See also
United States v. Miller, 46 M.J. 248, 250 (C.A.A.F. 1997); United States v. Coffey,
38 M.J. 290, 291 (C.M.A. 1993). The purpose of this requirement is to promote the
“resolution of grievances at the lowest possible level and [to ensure] that an adequate
record has been developed to aid appellate review.” Wise, 64 M.J. at 471 (quoting Miller,


                                              3                                    ACM 38277
46 M.J. at 250) (brackets omitted). “Since a prime purpose of ensuring administrative
exhaustion is the prompt amelioration of a prisoner’s conditions of confinement, courts
have required that these complaints be made while an appellant is incarcerated.” Wise,
64 M.J. at 471. “Exhaustion requires [the a]ppellant to demonstrate that two paths of
redress have been attempted, each without satisfactory result.” Id. The appellant “must
show that absent some unusual or egregious circumstance he has exhausted the prisoner-
grievance system in his [confinement] facility and that he has petitioned for relief under
Article 138[, UCMJ, 10 U.S.C. § 938].”2 Id. (quoting White, 54 M.J. at 472) (internal
quotation marks and alterations omitted).

       It is not disputed that the appellant failed to exhaust available administrative
remedies that might have triggered an investigation into his allegation in a timely manner.
For example, the appellant failed to file an Article 138, UCMJ, complaint; failed to
submit a complaint with the Inspector General; failed to file a grievance with the
confinement facility; and failed to inform his chain of command or his trial defense
counsel about his situation. In fact, the appellant waited over four months after his
transfer out of the MCCI to file an affidavit raising the issue.

        The appellant asks that we excuse his failure to exhaust administrative remedies
because his “imminent transfer to a military confinement facility would have undermined
the utility of any attempt to seek redress” through normal processes. That argument may
have been more persuasive had the appellant claimed that his comingling occurred during
only his final day(s) at the MCCI. However, his affidavit generally suggests he was
comingled, and he requests credit, for the entire 27 days he was at the MCCI. Moreover,
there is no evidence to suggest the appellant knew he would be moved to Miramar or
when such a transfer would take place. Finally, this argument is inconsistent with the
appellant’s statement that the reason he did not complain was because he did not know
about the existence of Article 12, UCMJ, not that he had insufficient time in which to do
so. On the evidence before us, we find no “unusual or egregious circumstance[s]” to
excuse the appellant’s failure to pursue available administrative remedies. See Wise,
64 M.J. at 471. We therefore conclude the appellant is barred from pursuing his claim.




2
    Article 138, UCMJ, 10 U.S.C. § 938, states:

           Any member of the armed forces who believes himself wronged by his commanding officer, and
           who, upon due application to that commanding officer, is refused redress, may complain to any
           superior commissioned officer, who shall forward the complaint to the officer exercising general
           court-martial jurisdiction over the officer against whom it is made. The officer exercising general
           court-martial jurisdiction shall examine into the complaint and take proper measures for redressing
           the wrong complained of; and he shall, as soon as possible, send to the Secretary concerned a true
           statement of that complaint, with the proceedings had thereon.



                                                           4                                              ACM 38277
                             Ineffective Assistance of Counsel

       The appellant next argues he was denied his Sixth Amendment3 right to effective
assistance of counsel because his trial defense counsel failed to advise him about
Article 12, UCMJ, or the process for resolving an Article 12, UCMJ, violation.

        This Court reviews claims of ineffective assistance of counsel de novo.
United States v. Tippit, 65 M.J. 69, 76 (C.A.A.F. 2007) (citing United States v. Perez,
64 M.J. 239, 243 (C.A.A.F. 2006)). When reviewing such claims, we follow the two-part
test outlined by the United States Supreme Court in Strickland v. Washington,
466 U.S. 668, 687 (1984), where the appellant must 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) the deficient
performance prejudiced the defense through errors “so serious as to deprive the defendant
of a fair trial, a trial whose result is reliable.”

        The deficiency prong requires the appellant to show his defense counsel’s
performance “fell below an objective standard of reasonableness,” according to the
prevailing standards of the profession. Id. at 688. The prejudice prong requires the
appellant to show a “reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Id. at 694. In doing so, the
appellant “must surmount a very high hurdle.” Perez, 64 M.J. at 243 (quoting
United States v. Alves, 53 M.J. 286, 289 (C.A.A.F. 2000)) (internal quotation marks
omitted). This is because counsel is presumed competent in the performance of their
representational duties. United States v. Anderson, 55 M.J. 198, 201 (C.A.A.F. 2001).
Thus, judicial scrutiny of a defense counsel’s performance must be “highly deferential
and should not be colored by the distorting effects of hindsight.” Alves, 53 M.J. at 289
(citing Strickland, 466 U.S. at 689). We will not second-guess a trial defense counsel’s
strategic or tactical decisions. United States v. Morgan, 37 M.J. 407, 410 (C.M.A. 1993).
“The reasonableness of counsel’s performance is to be evaluated from counsel’s
perspective at the time of the alleged error and in light of all the circumstances.”
United States v. Scott, 24 M.J. 186, 188 (C.M.A. 1987) (citation omitted).

       “[T]he defense bears the burden of establishing the truth of the factual allegations
that would provide the basis for finding deficient performance.” Tippit, 65 M.J. at 76.
See also United States v. Polk, 32 M.J. 150, 153 (C.M.A. 1991) (“Counsel . . . has a duty
to make reasonable investigations to determine what the true facts are.”). When there is a
factual dispute, appellate courts determine whether further factfinding is required under
United States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997). We may decide a factual dispute
without further factfinding when the “appellate filings and the record as a whole


3
    U.S. CONST. amend. VI.


                                             5                                   ACM 38277
‘compellingly demonstrate’ the improbability” of the facts alleged by the appellant. Id. at
248.

        Capt RC’s unrebutted affidavit states that he only became aware of allegations of
comingling at MCCI after the appellant had been transferred to the Miramar brig.
Therefore, we must consider whether, in the absence of information that might suggest a
heightened duty to advise, Capt RC’s performance was deficient as defined by the first
Strickland prong. While we find Captain RC’s affidavit more credible on this point than
the appellant’s, we will assume arguendo that the appellant was not advised of the
requirements of Article 12, UCMJ, before he was placed in confinement. We have
previously declined to require that trial defense counsel advise all clients who are
sentenced to confinement about the parameters of Article 12, UCMJ. United States v.
McPherson, 72 M.J. 862, 871 (A.F. Ct. Crim. App. 2013). We see nothing in the facts of
this case that compels a contrary result.

       The appellant has not met his burden under the first prong of Strickland, that is, he
has not established the truth of the factual allegations underlying his claim that Capt RC’s
performance as trial defense counsel was deficient. See Strickland, 466 U.S. at 687. We
conclude Capt RC effectively represented the appellant before, during, and after his
court-martial.

                                        Conclusion

       The approved findings and sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of the appellant occurred. Articles 59(a)
and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c); United States v. Reed, 54 M.J. 37, 41
(C.A.A.F. 2000). Accordingly, the approved findings and sentence are

                                       AFFIRMED.



              FOR THE COURT


              STEVEN LUCAS
              Clerk of the Court




                                             6                                    ACM 38277
