                         UNITED STATES, Appellee

                                         v.

              Rafael A. PEREZ, Sergeant First Class
                       U.S. Army, Appellant

                                  No. 05-0565
                          Crim. App. No. 9900680

       United States Court of Appeals for the Armed Forces

                        Argued November 14, 2006

                       Decided December 28, 2006

EFFRON, C.J., delivered the opinion of the Court, in which BAKER
and ERDMANN, JJ., joined.

STUCKY and RYAN, JJ., did not participate.


                                     Counsel


For Appellant: Frank J. Spinner, Esq. (argued); Major Billy B.
Ruhling II and Captain Eric D. Noble (on brief).


For Appellee: Captain Magdalena A. Acevedo (argued); Lieutenant
Colonel Mary M. Foreman, Lieutenant Colonel Natalie A. Kolb and
Major William J. Nelson (on brief).


Military Judges:    John P. Galligan and Stephen R. Henley



            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Perez, No. 05-0565/AR



    Chief Judge EFFRON delivered the opinion of the Court.

    A general court-martial composed of a military judge sitting

alone, convicted Appellant, contrary to his pleas, of two

specifications of rape, two specifications of forcible sodomy,

indecent acts with a child under the age of fourteen, and

indecent acts with a child under the age of ten, in violation of

Articles 120, 125, and 134, Uniform Code of Military Justice

(UCMJ), 10 U.S.C. §§ 920, 925, 934 (2000).   The adjudged and

approved sentence included a dishonorable discharge, confinement

for twenty-seven years, and reduction to the lowest enlisted

grade.

    The Army Court of Criminal Appeals reviewed the case on two

separate occasions.   In the initial review, the court determined

that the staff judge advocate’s post-trial recommendation to the

convening authority was defective, set aside the convening

authority’s action, and returned the case for a new

recommendation and action.   United States v. Perez, No. ARMY

9900680, slip op. at 4 (A. Ct. Crim. App. Oct. 14, 2003); see

Article 60, UCMJ, 10 U.S.C. § 860 (2000); Rules for Courts-

Martial (R.C.M.) 1106, 1107.

    Following preparation of a new recommendation, the convening

authority approved the sentence adjudged at trial.    In its

second review of the case, the Court of Criminal Appeals



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United States v. Perez, No. 05-0565/AR


affirmed the findings and sentence in an unpublished opinion.

United States v. Perez, No. ARMY 9900680, slip op. at 4 (A. Ct.

Crim. App. Apr. 25, 2005).

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

issue:

     WHETHER APPELLANT RECEIVED INEFFECTIVE ASSISTANCE
     OF COUNSEL IN THAT HIS DEFENSE COUNSEL CALLED THE
     VICTIM AS A WITNESS; ACKNOWLEDGED CREDIBILITY;
     CONCEDED THAT APPELLANT COMMITTED INTERCOURSE,
     INDECENT ACTS AND SODOMY; FAILED TO CALL
     FAVORABLE SENTENCING WITNESSES; AND FAILED TO
     OBTAIN FAVORABLE CLEMENCY MATTERS FOR
     PRESENTATION TO THE CONVENING AUTHORITY.

     Appellant contends that his civilian defense counsel was

ineffective in three respects:   (1) calling the victim as a

witness who provided damaging testimony; (2) failing to call

additional witnesses during sentencing; and (3) failing to

contact Appellant prior to making defense counsel’s post-trial

clemency submission to the convening authority.    For the reasons

set forth below, we affirm.



                          I.   BACKGROUND

                  A.   STATEMENTS PRIOR TO TRIAL

     When Appellant’s stepdaughter was a teenager, she told her

mother that she had been abused sexually by Appellant.    Her

mother brought her to the Army’s Criminal Investigation Division

(CID) at Fort Hood, Texas, where she provided a written



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statement describing sexual abuse over an eight-year period.    In

the statement, Appellant’s stepdaughter said that when she was

five or six years old, Appellant engaged in various acts of oral

sodomy and sexual abuse with her at Fort Leonard Wood, Missouri.

The statement described further sexual abuse, including rape, at

Fort Wainwright, Alaska, when she was between ten and twelve

years old.   Subsequently, the family moved to Fort Hood.

According to the stepdaughter, Appellant engaged in multiple

incidents of sexual abuse with her at Fort Hood, which continued

into the month in which she made the statement.   She estimated

that Appellant had engaged in sexual activity with her several

hundred times over the eight-year period, including sexual

intercourse up to five times a week at Fort Hood.

     During the ensuing investigation, Appellant provided a

statement to the CID in which he admitted engaging in sexual

intercourse with his stepdaughter on three occasions, one

incident of oral sodomy, and several incidents of inappropriate

touching.    The investigation resulted in charges against

Appellant consisting of three specifications of indecent acts

with a child, three specifications of forcible sodomy on a child

on multiple occasions, and two specifications of rape on

multiple occasions.




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United States v. Perez, No. 05-0565/AR


       B.    CONSIDERATION OF THE CHARGED OFFENSES AT TRIAL

     At trial, the prosecution called the stepdaughter as a

witness during the Government’s case-in-chief.    Under direct

examination, she said that she could not remember providing a

statement to the CID, and that she could not recall any of the

events described in the statement.    Over defense objections, the

military judge admitted into evidence both the stepdaughter’s

pretrial statement and Appellant’s incriminating statement to

the CID.    The prosecution also presented evidence that Appellant

had admitted to a nurse that he had sexually abused his

stepdaughter.   The admissibility of these matters is not at

issue under the grant of review in the present case.

     During the defense case-in-chief, the stepdaughter

testified as a defense witness.   In contrast to her inability to

recall information during her earlier appearance as a Government

witness, she provided specific details as a defense witness.

Her testimony as a defense witness at trial presented a

significantly different picture of the scope of sexual activity

than she presented in her pretrial statement.

     In response to defense counsel’s questions, she disavowed

significant portions of her pretrial statement.   She testified

that at Fort Leonard Wood there had been no sexual intercourse,

although there had been other sexual touching and oral sodomy;

that at Fort Hood, there had been only one instance of sexual


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United States v. Perez, No. 05-0565/AR


intercourse, and no incidents of oral sodomy that she could

recall; and that she had not told the CID that she and Appellant

had engaged in sexual intercourse five times a week, as claimed

in her written statement, but that the agents led her to those

statements through their questioning.

      Defense counsel’s closing argument focused on the contrast

between the stepdaughter’s testimony in court and her pretrial

statement.   The argument sought to convince the military judge,

as factfinder, that the sexual abuse was not as extensive as the

Government alleged.

     The military judge found Appellant not guilty of a number

of the charged offenses, including the allegation of indecent

acts with a child at Fort Hood and the allegation of forcible

sodomy at Fort Hood.   He found Appellant not guilty of

committing rape at Fort Hood “on diverse occasions,” finding him

guilty of only one incident of rape at Fort Hood.   He convicted

Appellant of the remaining charges and specifications, making

minor modifications in the wording to conform to the testimony

at trial.


                          C.   SENTENCING

     The defense sentencing case consisted of Appellant’s

unsworn statement and testimony from his stepdaughter and wife.

After defense counsel told the military judge that he had no



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additional sentencing evidence, the military judge questioned

Appellant as to whether there were any other matters that he

should consider.   Appellant confirmed that there were no other

witnesses or documentary evidence that he wanted to bring before

the military judge.

     In the course of his closing statement on sentencing,

defense counsel asked the military judge to consider the earlier

testimony by First Sergeant KW, a Government witness during the

findings portion of the trial.   Defense counsel noted that First

Sergeant KW had testified about Appellant “being a good soldier,

one of the best he ever saw.”

     During the Government’s case-in-chief, First Sergeant KW

had testified that he considered Appellant “to be a top-notch

noncommissioned officer, highly dedicated, strong, strong

leadership style”; that Appellant was “[o]utstanding” in terms

of leadership, professionalism, and handling stress; and that on

a scale of one to ten, he would rate Appellant at “a 9 and a

half or 10.”   The Government, in its closing argument,

acknowledged that Appellant is “a good soldier” and that “he’s

done magnificent things in his career.”

     Appellant faced a maximum sentence that could have included

life in prison.    The sentence imposed by the military judge

included twenty-seven years of confinement.




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United States v. Perez, No. 05-0565/AR


                    D.   POST-TRIAL PROCEEDINGS

1.   The first clemency request

      Following trial, defense counsel requested deferral of

forfeitures and reduction in grade pending the convening

authority’s action so that Appellant could provide financial

support for his family during that period.     The convening

authority granted the request, subject to Appellant providing

the funds directly to his family.      Defense counsel also provided

a clemency submission to the convening authority, asking the

convening authority to disapprove the punitive separation and

limit confinement to no more than ten years.      The convening

authority did not grant clemency, and approved the sentence as

adjudged.

2.   The second clemency request

      During the initial review of this case, the Army Court of

Criminal Appeals set aside the convening authority’s action and

ordered a new staff judge advocate’s post-trial recommendation

and convening authority’s action, based upon errors not at issue

in the present appeal.   During the new proceedings before the

convening authority, Appellant obtained representation by a new

defense team, consisting of both civilian defense counsel and

military defense counsel who had not participated in the

original proceedings.    Defense counsel submitted a new clemency

packet to the convening authority, urging consideration of legal


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errors at trial as well as numerous clemency matters.    The

clemency request included, among other things, Appellant’s legal

brief to the Army Court of Criminal Appeals, Appellant’s letter

to the convening authority, ten award citations, twenty-one

enlisted evaluation reports, twelve positive inmate evaluation

reports, and numerous positive letters from various people,

including the chaplain at the United States Disciplinary

Barracks, his work supervisor in prison, and Appellant’s

civilian pastor.    The staff judge advocate prepared a new

recommendation to the convening authority, recommending approval

of the adjudged sentence without modification.

     The convening authority approved the adjudged sentence

without modification and the Court of Criminal Appeals affirmed

the findings of guilty and the sentence.



              II.   INEFFECTIVE ASSISTANCE OF COUNSEL

     A defendant who claims ineffective assistance of counsel

“must surmount a very high hurdle.”    United States v. Alves, 53

M.J. 286, 289 (C.A.A.F. 2000) (citations and quotation marks

omitted).   Judicial scrutiny of a defense counsel’s performance

must be “highly deferential and should not be colored by the

distorting effects of hindsight.”     Id. (citing Strickland v.

Washington, 466 U.S. 668, 689 (1984)).     To overcome the

presumption of competence, an appellant must satisfy the two-


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United States v. Perez, No. 05-0565/AR

part test set forth in Strickland 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 trial, a trial whose

result is reliable.’”   United States v. Moulton, 47 M.J. 227,

229 (C.A.A.F. 1997) (quoting Strickland, 466 U.S. at 687).

As a general matter, “‘[t]his Court will not second-guess the

strategic or tactical decisions made at trial by defense

counsel.’”   United States v. Anderson, 55 M.J. 198, 202

(C.A.A.F. 2001) (quoting United States v. Morgan, 37 M.J. 407,

410 (C.M.A. 1993)).

     [A] court must indulge a strong presumption that
     counsel’s conduct falls within the wide range of
     reasonable professional assistance; that is, the
     defendant must overcome the presumption that,
     under the circumstances, the challenged action
     might be considered sound trial strategy. There
     are countless ways to provide effective
     assistance in any given case. Even the best
     criminal defense attorneys would not defend a
     particular client in the same way.

Strickland, 466 U.S. at 689 (citations and quotation marks

omitted).

     In cases involving attacks on defense counsel’s trial

tactics, an appellant must show specific defects in counsel’s

performance that were “unreasonable under prevailing



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United States v. Perez, No. 05-0565/AR

professional norms.”      United States v. Quick, 59 M.J. 383, 386

(C.A.A.F. 2004) (citation and quotation marks omitted).        An

appellant must also show prejudice.      Strickland, 466 U.S. at

687.   The test for prejudice is whether there is a reasonable

probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.      Id.     We

consider whether counsel was ineffective and whether any errors

were prejudicial under a de novo standard of review.      Anderson,

55 M.J. at 201.



                            III.   DISCUSSION

                     A.    TESTIMONY BY THE VICTIM

       Appellant contends that his defense counsel’s decision to

call the stepdaughter as a defense witness constituted

ineffective assistance of counsel.       A decision by trial defense

counsel to call the victim as a witness entails risks that must

be assessed under the particular circumstances of each case.

       In the present case, defense counsel acted in light of a

prosecution case that included:      (1) the victim’s pretrial

statement alleging extensive sexual misconduct; (2) Appellant’s

statement to the CID that he had engaged in sexual misconduct

with his stepdaughter; and (3) Appellant’s incriminating

admissions to a nurse.     Under defense counsel’s direct

examination, the stepdaughter testified that the sexual activity


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United States v. Perez, No. 05-0565/AR

was not as frequent or as extensive as described in her

statement to the CID.   See supra Part I.B.     The decision by the

military judge to find Appellant not guilty of certain offenses

and to modify others directly reflects the testimony presented

by the stepdaughter at trial.    See id.     Under these

circumstances, we conclude that Appellant has not demonstrated

that defense counsel was ineffective under the first prong of

Strickland.


                          B.    SENTENCING

     Appellant contends that defense counsel was ineffective in

not recalling First Sergeant KW to testify on his behalf during

the sentencing hearing.   He also contends that he provided

defense counsel with a list of military officers,

noncommissioned officers and members of his church who would

have testified on his behalf on sentencing, and that defense

counsel failed to contact any of these individuals.

     With respect to First Sergeant KW, we note that defense

counsel’s sentencing argument expressly referenced the “good

soldier” testimony that the witness had provided during the

findings portion of trial.     Moreover, by referring to earlier

testimony rather than recalling the witness, the defense was

able to avoid the risk of cross-examination.      Under the




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United States v. Perez, No. 05-0565/AR

circumstances of this case, the decision to reference, rather

than repeat, the earlier testimony was not ineffective.

     We shall assume, without deciding, that Appellant provided

defense counsel with the list of witnesses described in his

affidavit, and that defense counsel was deficient for not

contacting those witnesses.   See Alves, 53 M.J. at 289-90.

Appellant has not provided any specificity as to what those

witnesses would have said if they had been called to testify at

trial.   In that posture, Appellant has not demonstrated

prejudice under the second prong of Strickland.      See Moulton, 47

M.J. at 229.


                  C.   POST-TRIAL CLEMENCY MATTERS

     Appellant contends that during the initial post-trial

process, the defense counsel did not consult with him and did

not return his phone calls.   According to Appellant, he was

attempting to contact defense counsel in order to put counsel in

touch with individuals who would have submitted letters in

support of his clemency request.      Appellant further contends

that the clemency request did not represent his views or

desires.

     We shall assume, without deciding, that defense counsel

failed to consult with Appellant before submitting a clemency

petition, and that such performance was deficient under the



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first prong of Strickland.     See United States v. Lee, 52 M.J.

51, 52 (C.A.A.F. 1999); United States v. Hood, 47 M.J. 95, 97

(C.A.A.F. 1997).   Appellant, however, has not provided specific

information about what he or others would have submitted.     In

the absence of such information, Appellant has not demonstrated

prejudice under Strickland.     Moulton, 47 M.J. at 229.   Moreover,

Appellant has not demonstrated any prejudice in light of the

decision by the Army Court of Criminal Appeals to set aside the

first convening authority’s action and return his case for a new

action -- the very relief he would have been given had the Court

of Criminal Appeals determined that the first action was tainted

by ineffective assistance of counsel.    In the second clemency

petition, Appellant, in coordination with his new military and

civilian defense counsel, provided the convening authority with

extensive documentation of his successful military career and

many positive letters from family and prison officials.     No

further relief is warranted.



                          IV.   CONCLUSION

     The decision of the United States Army Court of Criminal

Appeals is affirmed.




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