              U NITED S TATES AIR F ORCE
             C OURT OF C RIMINAL APPEALS
                          ________________________

                               No. ACM 38874
                          ________________________

                            UNITED STATES
                                Appellee
                                      v.
                         Daniel V. ROBLERO
             Staff Sergeant (E-5), U.S. Air Force, Appellant
                          ________________________

        Appeal from the United States Air Force Trial Judiciary
                        Decided 17 February 2017
                          ________________________

Military Judge: Gregory O. Friedland.
Approved sentence: Dishonorable discharge, forfeiture of $1,031.00 pay
per month until the execution of the punitive discharge, reduction to
E-1, and a reprimand. Sentence adjudged 24 April 2015 by GCM con-
vened at Joint Base Pearl Harbor-Hickam, Hawaii.
For Appellant: Captain Patricia Encarnación Miranda, USAF.
For Appellee: Major Meredith L. Steer, USAF; Gerald R. Bruce, Es-
quire.
Before DREW, J. BROWN, and MINK, Appellate Military Judges.
Chief Judge DREW delivered the opinion of the court, in which Senior
Judge J. BROWN and Judge MINK joined.
                          ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 18.4.
                          ________________________

DREW, Chief Judge:
   At a general court-martial composed of officer and enlisted members,
Appellant was convicted, contrary to his pleas, of two specifications of sexual
assault by causing bodily harm in violation of Article 120(b), Uniform Code of
                    United States v. Roblero, No. ACM 38874


Military Justice (UCMJ), 10 U.S.C. § 920(b), and sentenced to a dishonorable
discharge, total forfeitures, reduction to E-1, and a reprimand. The convening
authority reduced the forfeitures to $1,031.00 pay per month until execution
of the punitive discharge and otherwise approved the sentence as adjudged.
    Appellant raises several assignments of error on appeal: (1) whether the
evidence is factually sufficient; (2) whether the military judge erred in giving
the Air Force Trial Judiciary mandated reasonable doubt instruction; 1
(3) whether Appellant’s right to due process of law during sentencing was vio-
lated when the court-martial considered an unsworn statement from the vic-
tim; 2 and (4) whether Appellant’s right to due process of law was violated
when he was tried by a panel that was not required to be unanimous in their
verdict. Further, Appellant requested this court consider several additional
assignments of error, pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982). We combine and discuss three of them below: whether trial
defense counsel provided ineffective assistance of counsel. Having considered
the remainder, we find they do not merit either relief or further analysis
here. See United States v. Matias, 25 M.J. 356, 363 (C.M.A. 1987). While we
do find error in the way the military judge handled the victim’s unsworn
statement, as to all issues, we find no error materially prejudicial to a sub-
stantial right of Appellant and thus affirm the findings and sentence.

                                  I. BACKGROUND
   Appellant and the victim, Staff Sergeant (SSgt) RC, were both assigned to
the 747th Communications Squadron, Joint Base Pearl Harbor-Hickam,
Hawaii. Beginning in early July 2014, they began spending off-duty time
with each other in group activities and communicated through social media.
On Saturday morning, 12 July 2014, SSgt RC drove Appellant, Airman First
Class (A1C) JB, and herself to Hanauma Bay, Hawaii, where they went
snorkeling and spent some time on the beach. Appellant and SSgt RC
eventually began kissing on the beach. They made plans for dinner later in
the evening and after lunch SSgt RC drove the three of them back to their

1 Consistent with the recently-decided United States v. McClour, No. 16-0455, 2017
CAAF LEXIS 51 (C.A.A.F. 24 Jan. 2017), we find that, absent objection at trial, the
instruction did not constitute plain error.
2 Appellant refers to the victim as the “complaining witness.” Article 6b, UCMJ, 10
U.S.C. § 806b, the legal basis for the victim’s right to be reasonably heard during the
sentencing hearing, uses the term “victim.” While we can understand—given his plea
and posture on appeal—why Appellant would prefer a less conclusory term, we use
the statutory term without intending it to connote any conclusions on our part.




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                  United States v. Roblero, No. ACM 38874


respective quarters. While being dropped off at his residence, Appellant
asked SSgt RC if he could come over before dinner. She told him that she was
planning on taking a nap before dinner, but that she would think about it
and let him know. After dropping A1C JB back at the base, SSgt RC
contacted Appellant to let him know that he could come over to her
apartment, but that she was still planning on taking a nap.
    When Appellant arrived at SSgt RC’s apartment, she met him at the door
in short shorts and a tank top. They sat in her living room for a short time
until SSgt RC said that she still wanted to take a nap but offered to watch a
movie with Appellant on her bed until she fell asleep. She let Appellant pick
out a movie (because she didn’t anticipate that she’d be awake for the whole
movie) and they went into her bedroom to watch it. They put the movie on
and lay down on SSgt RC’s California king-size bed.
   After a short period of watching the movie, Appellant leaned toward SSgt
RC and she leaned toward him and they began consensually kissing. When
Appellant started to be more sexually aggressive, SSgt RC asked him to stop
and she rolled over to her side and they continued watching the movie.
Minutes later they began kissing again, followed by Appellant becoming more
sexually forward and once again he backed off when she told him to stop. At
one point, Appellant pulled SSgt RC on top of him (which she considered a
“smooth move” on his part) and then he reached behind her and unclasped
her bra. SSgt RC immediately got up, snapped her bra back together, and
announced that her clothes were going to remain on, but she also said that
she was still okay with kissing.
    They resumed kissing and Appellant eventually slipped his hand down
the back of SSgt RC’s shorts. She pulled his hand out and reminded him that
he would be leaving town in a couple of days for a two-week trip (during
which he would see his estranged long-distance girlfriend) and she told him
that if their relationship was going anywhere he could wait until after he got
back. Appellant eventually rolled on top of SSgt RC and put one hand under
her buttocks and put his other hand up her shorts and penetrated her vulva
with his fingers. Upon penetration, SSgt RC then “froze” and laid lifeless,
though she continued to protest verbally with requests to “please stop, please
wait.” Appellant then put his penis inside her vulva and began having sexual
intercourse with her. As he was having sexual intercourse with her, he told
her that “it felt so good.” SSgt RC started crying. Appellant continued sexual
intercourse until he ejaculated, at which point he asked her if she was crying.
   SSgt RC slid out from under Appellant and went into the bathroom and
remained there for some time while she cleaned herself up with sanitary
wipes. When she came out of the bathroom, Appellant was still in her apart-
ment, sitting on the couch. She didn’t ask Appellant to leave, but instead put

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                  United States v. Roblero, No. ACM 38874


on a video in the living room, which they watched on the couch together. Ap-
pellant asked to stay the night, but she said he could only stay another 30
minutes and he eventually left around 8:30 p.m.
    As soon as Appellant left, SSgt RC called her wingman, a male platonic
friend, and asked if she could come over and stay the night in his guest room
(something he had made a standing offer to SSgt RC and some of his other
friends). Her wingman agreed and she stayed at his apartment Saturday
night and all day Sunday before returning to her apartment. When she got
home, SSgt RC made up the futon in her guest room and slept there, because
she couldn’t bring herself to sleep on her bed. The next day, Monday, she
called her supervisor and asked how to contact a chaplain. Concerned for her
well-being, her supervisor went over to her apartment with some others in
her chain of command and they ultimately took SSgt RC to the hospital
where she asked to be tested for pregnancy and any sexually transmitted dis-
eases. The next day, Tuesday, she made a restricted report of sexual assault.
   A couple of weeks later, SSgt RC converted her report to unrestricted
when she learned that Appellant was going to be moved into her duty section.
She broke down crying and eventually told her supervisor (after speaking
with her victim advocate) that Appellant had sexually assaulted her and she
would not be able to work in the same duty section with him. After she filed
her unrestricted report and with AFOSI’s assistance, SSgt RC made a pretext
phone call to Appellant and engaged in pretext Facebook communications
with him. In one of the pretext Facebook communications, SSgt RC texted
Appellant “I had a great time that day and even when you got back to the
house, but it just seemed like you forced me to be intimate when I wasn’t
ready yet.” Appellant responded, “And i regret that, and if i can erase that
part it would have been the best day i’ve had in years….”

                               II. DISCUSSION
A. Factual Sufficiency
   We review issues of factual sufficiency de novo. Article 66(c), UCMJ, 10
U.S.C. § 866(c); United States v. Washington, 57 M.J. 394, 399 (C.A.A.F.
2002). Our assessment of factual sufficiency is limited to the evidence pro-
duced at trial. United States v. Dykes, 38 M.J. 270, 272 (C.M.A. 1993).
    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, [we are] convinced of the [appellant]’s guilt beyond a reasona-
ble doubt.” United States v. Reed, 54 M.J. 37, 41 (C.A.A.F. 2000); United
States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987).. In conducting this unique
appellate role, we take “a fresh, impartial look at the evidence,” applying


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                  United States v. Roblero, No. ACM 38874


“neither a presumption of innocence nor a presumption of guilt” to “make
[our] own independent determination as to whether the evidence constitutes
proof of each required element beyond a reasonable doubt.” Washington, 57
M.J. at 399.
    Specification 1 of the Charge alleges Appellant committed sexual assault
by causing bodily harm in violation of Article 120(b), UCMJ. To sustain a
conviction for this specification of sexual assault, the prosecution was re-
quired to prove: (1) that Appellant committed a sexual act upon SSgt RC, to
wit: penetrating SSgt RC’s vulva with his penis; and (2) that Appellant did so
by causing bodily harm to SSgt RC to wit: lying on top of SSgt RC’s body
while holding her buttocks and penetrating her vulva with his penis without
her consent. See Department of the Army Pamphlet 27-9 (DA Pam 27-9), Mil-
itary Judges’ Benchbook, ¶ 3–45–14.c. (10 Sep 2014).
    Specification 2 of the Charge alleges Appellant committed sexual assault
by causing bodily harm in violation of Article 120(b), UCMJ. To sustain a
conviction for this specification of sexual assault, the prosecution was re-
quired to prove: (1) that Appellant committed a sexual act upon SSgt RC, to
wit: penetrating SSgt RC’s vulva with his fingers; and (2) that Appellant did
so by causing bodily harm to SSgt RC to wit: lying on top of SSgt RC’s body
while holding her buttocks and penetrating her vulva with his fingers with
an intent to gratify his sexual desire and without her consent.
    The Government had the burden to prove beyond a reasonable doubt that
SSgt RC did not consent to the sexual act and the military judge provided the
following definitions at trial regarding consent:
       “Consent” means a freely given agreement to the conduct at is-
       sue by a competent person. An expression of lack of consent
       through words or conduct means there is no consent. Lack of
       verbal or physical resistance or submission resulting from the
       use of force, threat of force, or placing another person in fear
       does not constitute consent. A current or previous dating or so-
       cial or sexual relationship by itself or the manner of dress of
       the person involved with the accused in the conduct at issue
       shall not constitute consent.
       Lack of consent may be inferred based on the circumstances.
       All the surrounding circumstances are to be considered in de-
       termining whether a person gave consent, or whether a person
       did not resist or ceased to resist only because of another per-
       son’s actions.
   Similarly, the Government was required to prove beyond a reasonable
doubt that Appellant did not have a reasonable mistake of fact defense as to


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                   United States v. Roblero, No. ACM 38874


whether SSgt RC consented to the sexual acts. As part of the instruction con-
cerning the defense of mistake of fact, the military judge stated:
       Mistake of fact as to consent is a defense to those charged of-
       fenses. “Mistake of fact as to consent” means the accused held,
       as a result of ignorance or mistake, an incorrect belief that the
       other person consented to the sexual conduct as alleged. The
       ignorance or mistake must have existed in the mind of the ac-
       cused and must have been reasonable under all circumstances.
       To be reasonable, the ignorance or mistake must have been
       based on information, or lack of it, that would indicate to a rea-
       sonable person that the other person consented. Additionally,
       ignorance or mistake cannot be based on the negligent failure
       to discover the true facts. “Negligence” is the absence of due
       care. “Due care” is what a reasonably careful person would do
       under the same or similar circumstances.
    The defense of mistake of fact as to consent has both subjective and objec-
tive elements. United States v. Paige, 67 M.J. 442, 455 (C.A.A.F. 2009) (“[T]he
mistake of fact defense requires a subjective, as well as objective, belief that
[the victim] consented to the sexual intercourse . . . .”); United States v. Jones,
49 M.J. 85, 91 (C.A.A.F. 1998) (“[A] mistake-of-fact defense to a charge of
rape requires that a mistake as to consent be both honest and reasonable.”)
(quoting United States v. Willis, 41 M.J. 435, 438 (C.A.A.F. 1995)); Rule for
Courts-Martial (R.C.M.) 916(j)(1) (“[T]he ignorance or mistake must have ex-
isted in the mind of the accused and must have been reasonable under all the
circumstances.”).
    Appellant does not dispute that he engaged in the sexual activity in the
specifications. Rather, his position at trial and on appeal is that either SSgt
RC consented to the activity or, if she did not, he was reasonably mistaken
about her lack of consent. The vast majority of the evidence supporting the
convictions of both sexual assault specifications came from SSgt RC’s testi-
mony. Her testimony made it clear that she was by no means opposed to
some contact with Appellant of a sexual nature. She willingly engaged in
kissing him on the beach in the morning and while on her bed later that day.
Even after Appellant unclasped her bra in her bedroom, something she did
not want, she continued to willingly engage in kissing him after telling him
that her clothes were to remain on. However, her willingness to engage in
some minor sexual activity does not mean that she necessarily consented to
all sexual activity.
    SSgt RC’s testimony indicated that she was at times sending mixed sig-
nals to Appellant that might have caused some confusion in his mind at dif-
ferent times during the evening. Regardless, her testimony also conclusively

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                  United States v. Roblero, No. ACM 38874


establishes that she clearly manifested her non-consent to Appellant after he
penetrated her vulva with his fingers. Despite this, Appellant continued to
penetrate her vulva with his fingers, and then—over her protests—pene-
trated her vulva with his penis. Notwithstanding the extensive argument by
trial defense counsel that SSgt RC actually consented to the sexual inter-
course, this case comes down to a determination by the fact-finder as to
whether Appellant was reasonably mistaken that SSgt RC was consenting to
all of his acts, including his penetrating her vulva with his fingers and penis.
    While SSgt RC’s actions could have indicated potential willingness to en-
gage in sexual intercourse, her repeated unequivocal verbal statements for
Appellant to “stop” and “wait,” as well as her crying once Appellant inserted
his penis into her vulva clearly negated any reasonable belief that she was
consenting to Appellant’s actions.
    Cases such as these are very difficult for factfinders. However, SSgt RC’s
testimony was not the only evidence that Appellant was not reasonably mis-
taken about her lack of consent. His statements during the pretext phone call
and pretext Facebook communications corroborate SSgt RC’s testimony that
she told him she was not consenting and, more importantly, that he knowing-
ly forced her to be intimate.
   Having reviewed the entire record of trial and making allowances for not
personally observing the witnesses, we are convinced of Appellant’s guilt be-
yond a reasonable doubt.
B. Victim’s Unsworn Statement
    Appellant asserts his right to due process of law was violated when, over
defense objection, the military judge permitted SSgt RC to provide a written
and oral unsworn statement to the court members. While we conclude that
the military judge abused his discretion in permitting SSgt RC to make a rec-
ommendation for a specific sentence, Appellant was not prejudiced by the er-
ror.
    At trial, Appellant objected to two aspects of SSgt RC’s unsworn state-
ment: that a written copy of the unsworn statement was provided to the court
members (in addition to the oral presentation) and to the substance of the
statement’s final paragraph:
       During the pretext phone call, I had asked him if he would get
       help, and he told me no, that getting help was stupid. But he
       needs it. He needs help. Throughout this process, I’ve learned
       that there is a 24 month Sex Offender Treatment Programs
       [sic] offered at some confinement facilities, but only the long
       term ones. It is my hope that SSgt Roblero will get into one of
       these programs and get the help he needs. However, I’ve also

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                       United States v. Roblero, No. ACM 38874


          learned that because people can get “good time credit” while
          they are in jail, the only way for him to complete this program
          is for him to spend a minimum of 3 and a half years in con-
          finement. Anything less than 3 and a half years will not allow
          him the amount of time needed to finish the treatment pro-
          gram. Without being able to complete this program, I don’t be-
          lieve he would be able to receive the help he needs. . . . I don’t
          want anyone to feel the way I have felt, but I do want to make
          sure he doesn’t do this to anyone else and he gets the help he
          needs.
    The military judge was clearly concerned about the language above and
stated as much on the record. 3 However, notwithstanding his expressed belief
that information was “completely improper, and I would not allow it,” he nev-
ertheless permitted SSgt RC to provide the information to the court members
anyway. The military judge erred to the extent that he believed he was pow-
erless to prohibit admission of inadmissible information in the victim’s un-
sworn statement.
  The National Defense Authorization Act for Fiscal Year 2014 (FY 2014
NDAA) 4 added Article 6b to the UCMJ, based on the Crime Victims’ Rights

3   In his discussion with the Special Victim’s Counsel (SVC), the military judge stated:
          Now, I’ll ask [SVC], I have read the proposed unsworn statement. I
          have paid particular attention to the last paragraph. Now, the rules
          regarding an unsworn statement given by the accused, that says gen-
          erally it is considered unrestricted. But case law tells us it is not
          wholly unrestricted. And I know we’re venturing into new territory
          here, in the military courts, and we’re relying on the federal courts to
          give us guidance to follow along. And so the same rules would seem to
          apply that the victim’s unsworn statement is generally considered
          unrestricted but not wholly unrestricted. And so, the matters in the
          last paragraph would not be allowed to be testified to by a witness
          taking the stand. Completely improper, and I would not allow it. Giv-
          en that fact and the possibility that this last paragraph could cause
          any reviewing authority in this particular case, because of the change
          in the law, is going to be an automatic appeal to the Air Force court
          and possibly up to the Court of Appeals for the Armed Forces, they
          could look at this and say we’re setting aside the sentence because of
          these comments and then, we’re back here all over again and then
          your client has the option of doing this all over again. I just want to
          make that clear on the record that that’s a possibility by including
          this paragraph in the unsworn statement.
4   Pub. L. No. 11333, § 1701(b)(2)(A) (2013).




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                  United States v. Roblero, No. ACM 38874


Act (CVRA), 18 U.S.C § 3771. Article 6b gives a victim the “right to be rea-
sonably heard at . . . [a] sentencing hearing relating to the offense.” Article
6b(a)(4)(B), 10 U.S.C. § 806b(a)(4)(B). However, the President did not prom-
ulgate R.C.M. 1001A, providing guidance on how to implement Article
6b(a)(4)(B), until after Appellant’s trial, on 17 June 2015. R.C.M. 1001A(c)
now indicates that the contents of a victim’s unsworn statement is limited to
victim impact and matters in mitigation. R.C.M. 1001A(e) also now expressly
permits a victim to make an unsworn statement orally, in writing, or both.
   We review a military judge’s admission or exclusion of evidence, including
sentencing evidence, for an abuse of discretion. United States v. Stephens, 67
M.J. 233, 235 (C.A.A.F. 2009) (citing United States v. Manns, 54 M.J. 164,
166 (C.A.A.F. 2000)). The admission of evidence in aggravation during sen-
tencing is controlled by R.C.M. 1001(b)(4), which states:
       The trial counsel may present evidence as to any aggravating
       circumstances directly relating to or resulting from the offenses
       of which the accused has been found guilty. Evidence in aggra-
       vation includes, but is not limited to, evidence of financial, so-
       cial, psychological, and medical impact on or cost to any person
       or entity who was the victim of an offense committed by the ac-
       cused . . . .
    Furthermore, sentencing evidence is subject to the requirements of Mili-
tary Rule of Evidence (Mil. R. Evid.) 403. United States v. Hursey, 55 M.J. 34,
36 (C.A.A.F. 2001) (citing United States v. Rust, 41 M.J. 472, 478 (C.A.A.F.
1995)). When the military judge conducts a proper balancing test under Mil.
R. Evid. 403 on the record, the ruling will not be overturned absent a clear
abuse of discretion; the ruling of a military judge who fails to do so will re-
ceive correspondingly less deference. Hursey, 55 M.J. at 36; Manns, 54 M.J.
at 166. The military judge in this case did not conduct a Mil. R. Evid. 403
balancing test on the record.
    We find that the military judge did not abuse his discretion in permitting
SSgt RC to provide her unsworn statement both orally and in a writing, a
mode now specifically authorized by the President. However, we find that the
military judge abused his discretion in permitting SSgt RC to present the fi-
nal paragraph of her statement (both in its oral and written form). Other
than a single sentence omitted from the quotation above, the paragraph was,
as the military judge put it, “completely improper.” It did not constitute vic-
tim impact information and was not otherwise permitted under the Rules for
Court-Martial or the Uniform Code of Military Justice.
   Article 6b is not a blanket authorization for a victim to state to the sen-
tencing authority whatever he or she might desire. “The right to be reasona-


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                     United States v. Roblero, No. ACM 38874


bly heard at . . . a sentencing hearing” does not transform the sentencing
hearing into an open forum to express statements that are not otherwise
permissible under R.C.M. 1001. R.C.M. 1001A(c) now limits a victim’s un-
sworn statement to victim impact and matters in mitigation, but it did not
apply at the time of Appellant’s trial. Prior to the promulgation of R.C.M.
1001A(c), SSgt RC’s unsworn statement arguably could have properly gone
into other aggravation matters and, with a proper foundation, Appellant’s
rehabilitative potential. However, there was no foundation provided for SSgt
RC to provide an opinion regarding Appellant’s need for “help” or suitability
for sex offender treatment. Moreover, her recommendation for a particular
sentence was clearly improper. See United States v. Ohrt, 28 M.J. 301, 303
(C.M.A. 1989).
    Having found error, we must determine whether Appellant was preju-
diced. The test for prejudice is whether the error substantially influenced the
adjudged sentence. United States v. Sanders, 67 M.J. 344, 346 (C.A.A.F.
2009); United States v. Griggs, 61 M.J. 402, 410 (C.A.A.F. 2005); United
States v. Boyd, 55 M.J. 217, 221 (C.A.A.F. 2001). Because the erroneously
permitted statements advocated for “a minimum of 3 and a half years in con-
finement,” we are convinced that Appellant, who was sentenced to no con-
finement, was not prejudiced by the military judge’s error.
C. Composition of the Court-Martial
    The constitutionality of an act of Congress is a question of law that appel-
late courts review de novo. United States v. Ali, 71 M.J. 256, 265 (C.A.A.F.
2012).
    Appellant argues that having a nine 5-member panel that is not required
to produce a unanimous verdict is unconstitutional. In doing so, he acknowl-
edges that the decision by this court of United States v. Spear, No. ACM
38537, 2015 CCA LEXIS 310 (A.F. Ct. Crim. App. 30 Jul 2015) (unpub. op.),
pet. denied, 75 M.J. 50 (C.A.A.F. 2015), addressed this very issue and was de-
cided contrary to Appellant’s position. Appellant requests we re-examine this
issue.
  Appellant’s argument in this case focuses on due process under the Fifth
Amendment, 6 but cites the Supreme Court decisions in United States v.


5 Appellant’s panel initially consisted of nine members, but one was excused during
the trial, resulting in eight members participating in determining the court’s findings
and sentence.
6   U.S. CONST. amend. V.




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                     United States v. Roblero, No. ACM 38874


Ballew, 435 U.S. 223 (1978), Burch v. Louisiana, 441 U.S. 130 (1979), and
McDonald v. City of Chicago, 561 U.S. 742 (2010), all of which are founded
upon the Sixth Amendment. 7 Our superior court has repeatedly held that the
Sixth Amendment rights regarding a jury trial do not apply to courts-martial.
See, e.g., United States v. Easton, 71 M.J. 168, 175 (C.A.A.F. 2012) (citing Ex
parte Quirin, 317 U.S. 1, 39 (1942)); United States v. Leonard, 63 M.J. 398,
399 (C.A.A.F. 2006); United States v. Wiesen, 57 M.J. 48, 50 (C.A.A.F. 2002);
United States v. Curtis, 32 M.J. 252, 267–68 (C.M.A. 1991) (rejecting a simi-
lar argument to Appellant’s within the context of a death penalty case); and
United States v. McClain, 22 M.J. 124, 128 (C.M.A. 1986).
    In addition to arguing that a trial by jury of less than six members vio-
lates the Sixth Amendment (even though he was tried by eight court mem-
bers), Appellant cites no case law supporting his position that this case
should be treated differently than every other general court-martial tried
since 31 May 1951, when the Uniform Code of Military Justice and the Man-
ual for Courts-Martial went into effect.
    As this court opined in Spear, “[j]udicial deference is ‘at its apogee’ when
an appellant is challenging the authority of Congress to govern military af-
fairs. It is the appellant’s heavy burden to demonstrate that Congress’ de-
terminations about panel size and unanimity should not be followed.” Spear,
2015 CCA LEXIS 310, at *5 (citations omitted). We find the analysis of Spear
persuasive. As in Spear, Appellant here has failed to meet his heavy burden
to demonstrate that Congress’ determinations should not be followed.
D. Ineffective Assistance of Counsel
   Pursuant to Grostefon, Appellant asserts that his trial defense counsel
provided ineffective assistance of counsel by withdrawing their motion for a
mistrial, failing to move to compel production of the victim’s journal and text
messages, and failing to interview the victim before trial. Appellant’s trial
defense counsel provided declarations addressing the allegations raised by
Appellant in his assignments of error and supporting declaration.
    We review claims of ineffective assistance of counsel de novo, applying the
two-part test outlined by the Supreme Court in Strickland v. Washington,
466 U.S. 668, 687 (1984). See also United States v. Tippit, 65 M.J. 69, 76
(C.A.A.F. 2007). Under that test, “in order to prevail on a claim of ineffective
assistance of counsel, an appellant must demonstrate both (1) that his coun-
sel’s performance was deficient, and (2) that this deficiency resulted in preju-


7   U.S. CONST. amend. VI.




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                   United States v. Roblero, No. ACM 38874


dice.” United States v. Green, 68 M.J. 360, 361 (citing Strickland, 466 U.S. at
687; United States v. Mazza, 67 M.J. 470, 474 (C.A.A.F. 2009)).
   The deficiency prong requires Appellant to show his counsel’s perfor-
mance fell below an objective standard of reasonableness, according to the
prevailing standards of the profession. Strickland, 466 U.S. at 688. To deter-
mine whether the presumption of competence has been overcome as alleged
by an appellant, we examine whether there is a reasonable explanation for
counsel’s actions and whether defense counsel’s level of advocacy fell measur-
ably below the performance ordinarily expected of fallible lawyers. United
States v. Gooch, 69 M.J. 353, 362 (C.A.A.F. 2011).
    The prejudice prong requires Appellant to show a “reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694. In doing so, Appel-
lant “must surmount a very high hurdle.” United States v. Moulton, 47 M.J.
227, 229 (C.A.A.F. 1997) (citing Strickland, 466 U.S. at 689). This is because
counsel is presumed competent in the performance of his or her representa-
tional 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.”
United States v. Alves, 53 M.J. 286, 289 (C.A.A.F. 2000) (citing Moulton, 47
M.J. at 229).
    “[Appellant] bears the burden of establishing the truth of the factual alle-
gations that would provide the basis for finding deficient performance.” Tip-
pit, 65 M.J. at 76 (citing United States v. Polk, 32 M.J. 150, 153 (C.M.A.
1991)). The factual basis supporting Appellant’s allegations of legal error are
uncontroverted. Instead, the resolution of Appellant’s claims turn on the rea-
soning behind the tactical and strategic litigation decisions made by trial de-
fense counsel in this case.
    Trial defense counsel’s declarations and the record of trial conclusively es-
tablish that trial defense counsel made the motion for mistrial during the tes-
timony of SSgt RC when it initially appeared that the Government had failed
to produce some of her text messages. While arguing the motion, trial defense
counsel realized that the prosecution had never seen the text messages and
government investigators were no longer in possession of them. Sensing that
the military judge was prepared to order SSgt RC to make them available
and fearing that their contents would be more damaging to Appellant’s case
than to the prosecution’s, trial defense counsel made a tactical decision to
withdraw the motion. For the same reason, trial defense counsel did not pur-
sue production of SSgt RC’s journal, which she had thus far refused to pro-
vide to the Government. These decisions, in a case in which Appellant strong-
ly asserted that the victim’s account was uncorroborated, was objectively rea-

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                  United States v. Roblero, No. ACM 38874


sonable. Contemporaneous text messages corroborating SSgt RC’s trial tes-
timony would have seriously undermined Appellant’s trial strategy.
    Regarding trial defense counsel not interviewing SSgt RC before trial,
they made the tactical decision that nothing would be gained by doing so,
other than to prepare her for their lengthy trial cross-examination. This stra-
tegic decision was based primarily on the fact that trial defense counsel fully
questioned SSgt RC during the Article 32 hearing and was provided a verba-
tim transcript of her Article 32 testimony. They felt fully armed with all the
ammunition they needed to question her in a professional and effective man-
ner at trial. Based on our review of trial defense counsel’s extensive cross-
examination of the victim during her day and one-half long trial testimony,
we are satisfied that Appellant has failed to overcome the presumption that
his trial defense counsel were competent and provided him effective assis-
tance of counsel.

                              III. CONCLUSION
    The approved findings and sentence are correct in law and fact, and no
error materially prejudicial to the substantial rights of Appellant occurred.
Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the
findings and the sentence are AFFIRMED.


                 FOR THE COURT



                 KURT J. BRUBAKER
                 Clerk of the Court




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