UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                            KERN, ALDYKIEWICZ, and MARTIN
                                Appellate Military Judges

                            UNITED STATES, Appellee
                                          v.
                       Private First Class AMANDA N. MOSS
                           United States Army, Appellant

                                     ARMY 20110337

                Headquarters, 3d Infantry Division and Fort Stewart
                         Tiernan P. Dolan, Military Judge
            Colonel Jonathan C. Guden, Staff Judge Advocate (pre-trial)
            Colonel Randall J. Bagwell, Staff Judge Advocate (post-trial)


For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Jacob D. Bashore, JA; Captain Ian M. Guy, JA (on brief &
supplemental brief).

For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Robert A. Rodrigues,
JA; Captain Steve T. Nam, JA (on brief)


                                      17 January 2013

                                -------------------------------
                                 MEMORANDUM OPINION
                                -------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

MARTIN, Judge:

       A panel of officers sitting as a special court-martial convicted appellant, in
absentia, of desertion in violation of Article 85, Uniform Code of Military Justice,
10 U.S.C. § 885 (2006) [hereinafter UCMJ]. The panel sentenced appellant to a bad-
conduct discharge, confinement for six months, forfeiture of $978.00 pay per month
for 12 months, and reduction to the grade of E-1. The convening authority approved
the sentence as adjudged and credited the appellant with eighteen days of
confinement against the sentence to confinement. Appellant’s case is now before us
for review pursuant to Article 66, UCMJ.

      This case involves the propriety of giving an unsworn statement on behalf of
an accused being tried in absentia. Appellate defense counsel raise a total of four
assignments of error related to the unsworn statement given by appellant’s trial
MOSS—ARMY 20110337

defense counsel during presentencing. Primarily, appellate defense counsel claim
that appellant was denied her Sixth Amendment right to effective assistance of
counsel, due to both the decision to give an unsworn statement and the content of the
statement given. Our resolution of this issue obviates the need to address the
additional allegations raised as assignments of error. 1

                                  BACKGROUND

                          Trial and Post-Trial Proceedings

        After being absent for almost three years, appellant was apprehended and
returned to her unit at Fort Stewart, Georgia. Upon her return to military control,
appellant made several sworn and unsworn statements regarding the mitigating
reasons for her long absence. Captain (CPT) AS was appellant’s assigned defense
counsel, and he worked with PFC Moss to prepare for her pending court-martial.
Approximately two weeks before her scheduled trial date, appellant again absented
herself from her unit. The court-martial then proceeded in her absence. After
appellant was convicted of desertion, CPT AS read an unsworn statement to the
panel on appellant’s behalf during presentencing. The unsworn statement focused
almost exclusively on the reasons why appellant was absent from her unit for almost
three years. Reading the statement in the first person, CPT AS stated that appellant
left in order to care for her “aunt,” Ms. VM, who had essentially raised appellant
and was suffering from various serious physical illnesses and mental health issues
making her unable to care for herself.

       In rebuttal, the government called appellant’s father, Sergeant First Class
(SFC) DM. Sergeant First Class DM testified that neither he nor his wife had a
sister named Ms. VM and that he and his wife had raised appellant. On cross-
examination, SFC DM admitted that he had heard of situations where close family
friends were sometimes referred to as an “aunt,” but also testified that he was not
aware of a close family friend named Ms. VM.




1
  We find the additional assignments of error—that the military judge abused his
discretion by allowing the unsworn statement, that the military judge erred by not
instructing the jury to disregard the unsworn statement (and related rebuttal
testimony), and that appellant was deprived of her right to conflict-free counsel
when her trial defense counsel subsequently invoked his Fifth Amendment rights
after being questioned by the military judge about the unsworn statement—to be
without merit.




                                          2
MOSS—ARMY 20110337

       During their presentencing argument, both government counsel and CPT AS
referenced Ms. VM. The trial counsel argued that appellant invented the story about
having an “aunt” named Ms. VM to reduce her culpability. The trial counsel further
argued that the testimony from appellant’s father, SFC DM, demonstrated that
appellant’s explanation for being absent was false. Despite SFC DM’s testimony to
the contrary, CPT AS argued that, while not excused, appellant’s absence was
mitigated by her actions to care for her ailing, beloved aunt. Captain AS repeated
this theme in appellant’s post-trial matters to the convening authority, requesting
clemency on appellant’s behalf.

                               Appellate Proceedings

      Before this court, appellate defense counsel argue, inter alia, that the record
does not contain any evidence that CPT AS was authorized to provide an unsworn
statement on appellant’s behalf. Furthermore, appellate defense counsel aver that
the content of the unsworn statement—regarding the existence of Ms. VM, which
was rebutted by appellant’s father—indicates CPT AS did not adequately investigate
appellant’s presentencing case. Appellant did not file a supporting affidavit.

       After reviewing the record and appellate defense counsel’s allegations of
ineffectiveness, this court concluded that appellant’s allegations, “if unrebutted,
would overcome the presumption of competence” of defense counsel. United States
v. Lewis, 42 M.J. 1, 6 (C.A.A.F. 1995). Consequently, we ordered CPT AS to
provide an affidavit addressing whether or not appellant authorized him to make an
unsworn statement on her behalf prior to her absence at the court-martial. We also
directed CPT AS to detail his investigation regarding Ms. VM; to describe any
interviews conducted with appellant’s father, SFC DM; and to discuss the reasons he
decided upon the content and use of the unsworn statement, especially in light of
SFC DM’s disavowal of any person named Ms. VM.

       In response to this court’s order, CPT AS provided an affidavit and numerous
supporting documents, to include witness interview notes, a memorandum for record,
and supporting emails. In his affidavit, CPT AS stated that he and appellant
“extensively discussed presenting an unsworn statement at trial,” and that the “chief
evidence PFC Moss desired to present in extenuation and mitigation was the reason
for which she was absent during the duration alleged in the charged offense—
namely, that she was caring for Ms. [VM], to whom she referred as her aunt, and
who was seriously ill.” This was the same explanation for her absence that she had
previously provided upon her return to military control, and was consistent with
statements she made to her command. Captain AS further stated that appellant “was
insistent in presenting this evidence, and wanted to do so in large part through an
unsworn statement,” which appellant practiced with CPT AS.




                                          3
MOSS—ARMY 20110337

        Captain AS also stated that he confirmed the existence of Ms. VM, primarily
through a separate witness, Ms. DC, who was very close to both appellant and Ms.
VM. “Ms. [DC] confirmed the story and further described the infirmities of Ms.
[VM], whom she knew personally, as well as the relationship between PFC Moss and
Ms. [VM].” Captain AS was unable to reach Ms. VM personally. In the days before
trial, however, CPT AS received further confirmation of the existence and condition
of Ms. VM through government counsel. Pursuant to the request for defense
witnesses, government counsel worked with the federal marshals to secure the
presence of both Ms. DC and Ms. VM at the court-martial. The federal marshals’
investigation revealed that, in fact, Ms. VM did exist and that she suffered from
severe physical and mental health conditions. While confirming her existence, the
federal marshals were unable to locate and serve a subpoena on Ms. VM prior to
trial.

       Finally, CPT AS stated that he interviewed appellant’s father, SFC DM, and
questioned him about Ms. VM. During CPT AS’s interview of him, SFC DM,
consistent with his later sworn testimony, professed no knowledge of any person
named Ms. VM. Despite this fact, Captain AS nonetheless decided to use the
evidence: “The evidence regarding PFC Moss caring for Ms. [VM] was the strongest
extenuation and mitigation evidence that was presented at trial, and I did not and do
not feel that SFC [DM]’s testimony denying knowledge of Ms. [VM] outweighed it
to the degree that I should decline to argue it to the panel in my presentencing
argument.” Furthermore, during his pre-trial witness interview, SFC DM admitted
to CPT AS that during different periods of her life, he had lost contact with his
daughter.

                             LAW AND DISCUSSION

      The Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), set out
a two-prong test for ineffective assistance of counsel:

         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.

Id. at 687. See United States v. Green, 68 M.J. 360 (C.A.A.F. 2010);
United States v. Wean, 45 M.J. 461, 463 (C.A.A.F. 1997); United States
v. Polk, 32 M.J. 150, 153 (C.M.A. 1991).



                                         4
MOSS—ARMY 20110337

       In analyzing CPT AS’s performance in the case at hand, we have before us the
record of trial, and CPT AS’s affidavit with supporting documents—this is not a
case of competing affidavits. See United States v. Ginn, 47 M.J. 236 (C.A.A.F.
1997). Although our initial review of the record of trial and appellant’s assignments
of error raised concerns that CPT AS’s performance was inadequate, upon
examination of CPT AS’s affidavit and supporting information, we do not find
defense counsel’s performance deficient under the first prong of Strickland.

          Decision to Provide an Unsworn Statement on Appellant’s Behalf

      In United States v. Marcum, our superior concluded the “decision to make an
unsworn statement is personal to the accused.” United States v. Marcum, 60 M.J.
198, 209 (C.A.A.F. 2004). The court further explained that “if an accused is absent
without leave his right to make an unsworn statement is forfeited unless prior to his
absence he authorized his counsel to make a specific statement on his behalf.” Id. at
210. Indeed, there are several pitfalls involved with giving an unsworn statement
when a client is not present for trial. See, e.g., Id. at 209 (holding that the defense
counsel’s unsworn statement rendered on the appellant’s behalf disclosed
confidential communications and constituted deficient performance); United States
v. Brewer, ARMY 20040625, 2008 WL 8104044, at *3 n.2 (Army Ct. Crim. App. 28
Aug. 2008) (finding that the defense counsel’s use of a draft unsworn statement on
the appellant’s behalf was without appellant’s express consent and therefore
erroneous).

       In this case, CPT AS’s affidavit and notes convince us that CPT AS did not
err by providing an unsworn statement. Instead, we find that appellant impliedly
consented to CPT AS giving an unsworn statement on her behalf. Captain AS and
appellant discussed the contents of the unsworn statement, appellant’s desire to give
an unsworn statement, and they even practiced delivering an unsworn statement.
Additionally, the close proximity of what turned out to be the last pre-trial
preparation meeting—fifteen days before the date of the original trial date—reflects
the fact that the parties were in the final stages of trial preparation. Therefore, we
conclude that CPT AS was not deficient in giving an unsworn statement on
appellant’s behalf.

                Decision to Use Mitigating Facts Regarding Ms. VM

       Next, we review CPT AS’s decision regarding the contents of the unsworn
statement he ultimately delivered. Initially, we note that, unlike the unsworn
statement delivered by the counsel in Marcum, there was no disclosure of
confidential communications in this case. All the information provided by CPT AS
in the unsworn statement essentially reflected previous sworn statements appellant
provided to her unit upon her return to military control. Thus, the issue is simply



                                           5
MOSS—ARMY 20110337

whether CPT AS was ineffective in deciding what information to include in the
unsworn statement. “In weighing such matters, we must give deference to counsel’s
tactical judgment and not substitute our view with the benefit of hindsight.” United
States v. Stephenson, 33 M.J. 79, 82 (C.M.A. 1991) (quoting United States v. Bono,
26 M.J. 240, 242 (C.M.A. 1988) (citing Strickland, 466 U.S. at 689; United States v.
DeCoster, 624 F.2d 196, 208 (D.C. Cir. 1976) (en banc) (plurality opinion))).
Moreover, “heavy deference is given to trial defense counsel’s judgments, and this
Court presumes counsel’s conduct falls within the wide range of reasonable
professional assistance.” United States v. Morgan, 37 M.J. 407, 410 (C.M.A. 1993)
(citing Strickland, 466 U.S. at 689).

       Before this court, appellate defense counsel claim that CPT AS’s performance
fell below an objective standard of reasonableness when he argued that appellant’s
absence was mitigated by her care of her ailing “aunt,” Ms. VM, and persisted with
this argument after rebuttal testimony by SFC DM that the family did not have an
aunt by that name. Specifically, appellate defense counsel argue that CPT AS did
not properly “fact check or investigate the contents of the statement that he
presented to the panel.” However, we conclude that CPT AS conducted a reasonable
investigation. First, CPT AS specifically discussed with appellant the propriety of
including information about Ms. VM in the unsworn statement. Next, CPT AS
confirmed the existence of Ms. VM and her illness by interviewing a close friend of
appellant’s, Ms DC. In the days before trial, the subpoena process initiated by
federal marshals established the existence and condition of Ms. VM. Finally, CPT
AS interviewed appellant’s father, SFC DM, and asked him about Ms. VM. From
this investigation, CPT AS was in a position to make an informed, tactical decision
about the contents of the unsworn statement.

       In this case, we conclude that CPT AS’s decision to include information about
Ms. VM in the unsworn statement does not fall outside the range of reasonable
professional assistance. Although SFC DM did not know Ms. VM, and could
therefore potentially give unfavorable testimony, CPT AS made the tactical decision
to present the mitigation evidence about Ms. VM after a thorough investigation.
Moreover, CPT AS cross-examined SFC DM about the extent of his knowledge, so
as to improve the quality of the mitigation evidence. For example, although not
fully developed on the record, SFC DM testified that appellant had some problems
with her mother and lived outside the home at a young age. He also admitted that he
lost touch with appellant for several years. Finally, SFC DM testified that he was
familiar with the practice of referring to a friend of the family as an “aunt.”

      In retrospect, some may argue that if the trial defense counsel intended to rely
so heavily on appellant’s relationship with and care for Ms. VM in extenuation, he
should have elicited more evidence from appellant’s father and others that would
have provided more support for that theory. However, by all accounts, the defense



                                          6
MOSS—ARMY 20110337

counsel was in a challenging position. Ms. DC, who could verify the existence of
Ms. VM, had proven to be a difficult witness, indicating an unwillingness to testify
in appellant’s case notwithstanding having been subpoenaed. 2 Sergeant First Class
DM was one of the few defense witnesses, and while CPT AS challenged him on his
understanding of appellant’s living situation during cross-examination, he could not
completely undermine his own witness’s credibility without weakening the defense
case. In his post-trial affidavit, defense counsel explained his trial strategy as one
where he sought to provide as much favorable information as possible to help
explain his client’s absence, while limiting exposure to the more damaging facts
surrounding appellant’s behavior. 3 Captain AS accomplished this strategy by
offering an unsworn statement and by controlling the extent of the testimony he
elicited from appellant’s father. As the Supreme Court noted, “strategic choices
made after thorough investigation of law and facts relevant to plausible options are
virtually unchallengeable.” Strickland, 466 U.S. at 690.

       Ultimately, we conclude that CPT AS’s strategy “was tactically sound and not
unreasonable.” Stephenson, 33 M.J. at 82. Accordingly, defense appellate counsels’
claim that the trial defense counsel acted unreasonably by continuing to rely on the
theory that extenuating facts surrounded appellant’s absence, despite rebuttal
testimony to the contrary, does not reach the level of seriously deficient performance
contemplated by Strickland.

2
  While Ms DC confirmed the existence and medical condition of Ms. VM as well as
appellant’s care for Ms. VM, Ms. DC was a challenging witness. CPT AS struggled
to keep in regular contact with Ms. DC and when the federal marshals served the
subpoena for the court-martial, she became very agitated with CPT AS and refused
to appear for trial. CPT AS made the tactical decision to not force her to appear,
anticipating that she would be an adverse witness.
3
  The affidavit and accompanying notes of CPT AS show that he attempted to
carefully navigate the potential minefield of appellant’s complicated home and
personal life. For example, he tried to highlight appellant’s rehabilitative potential
through testimony by her father, further bolstered by the fact that he was an active
duty SFC. At the same time, CPT AS sought to limit testimony by SFC DM that
would reveal some additional difficult circumstances during her childhood that
might reflect poorly on his client. Additionally, CPT AS successfully limited the
disclosure of some of the more damaging information surrounding appellant’s arrest
that terminated her absence. Specifically, that she had been arrested for simple
battery and family violence for physically assaulting Ms. DC, the same Ms. DC that
was an important witness in this case. She pleaded nolo contendere and served
twenty days in county jail for these offenses.




                                           7
MOSS—ARMY 20110337

             Decision to Use Mitigating Facts in Post-Trial Submission

       Finally, we review defense counsel’s decision to continue to rely on the same
facts in appellant’s post-trial submission despite the government’s clear challenge to
the veracity of that information. Generally, “[w]e will not second-guess the
strategic or tactical decisions made at trial by defense counsel.” United States v.
Rivas, 3 M.J. 282, 289 (C.M.A. 1977). Here, defense counsel clearly articulated a
reasonable basis for his decision to maintain his adherence to the extenuating
matters surrounding appellant’s prolonged absence. Captain AS continued to try to
contact appellant during this period but was unsuccessful. He also demonstrated due
diligence in pursuing letters of support from appellant’s father and several soldiers
from her unit. Ultimately, everyone he contacted declined to provide further
assistance, so he was left with limited options. Captain AS chose to continue with
the same explanation for appellant’s absence, anticipating that the theory might
garner clemency for his client from the convening authority. Although unsuccessful,
this tactic was sensible given the limiting circumstances of the case.

                                     Conclusion

       The record reflects that the trial defense counsel was very diligent in every
phase of this case—from pretrial investigation, to the pre-trial motions, to his
advocacy throughout the court-martial, to his post-trial efforts on behalf of his
client. Although some may question his tactical decisions, there is clear evidence
here that CPT AS made those choices after thorough investigation and preparation,
and his actions were reasonable in light of the situation in which he found himself.
We therefore find that under the unique circumstances of this case, defense
counsel’s performance was not deficient.

        Assuming arguendo that CPT AS’s performance was deficient and he made
errors so serious that he was not functioning as “counsel” guaranteed by the Sixth
Amendment, we do not find that his errors were so serious as to deprive appellant of
a fair trial. Appellant was found guilty of desertion terminated by apprehension.
She was gone for almost three years, and during her absence, she missed her unit’s
deployment. This court regularly reviews sentences related to this type of offense,
and we find that the adjudged sentence was very consistent with similarly situated
cases. Appellant has not shown that if deficient, that defense counsel’s performance
prejudiced the defense.

                                     DECISION

      Upon review of the entire record, to include defense counsel’s affidavit and
supporting documents, we do not find the performance of appellant’s defense
counsel to be deficient. As such, we need not address appellant’s remaining



                                          8
MOSS—ARMY 20110337

assignments of error. We hold appellant received effective assistance of counsel,
and the findings of guilt and the sentence as approved by the convening authority
correct in law and fact. Accordingly, the findings of guilty and the sentence are
AFFIRMED.

      Senior Judge KERN and Judge ALDYKIEWICZ concur.



                                       FOR
                                        FORTHE
                                            THECOURT:
                                                COURT:




                                        MALCOLM H. SQUIRES, JR.
                                       MALCOLM     H. SQUIRES, JR
                                        Clerk of Court
                                       Clerk of Court




                                         9
