        ****CORRECTED COPY – DESTROY ALL OTHERS****


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

                              No. ACM 38971
                          ________________________

                            UNITED STATES
                                Appellee
                                      v.
                         William E. SMITH
            Master Sergeant (E-7), U.S. Air Force, Appellant
                          ________________________

        Appeal from the United States Air Force Trial Judiciary
                           Decided 15 May 2017
                          ________________________

Military Judge: Brendon K. Tukey.
Approved sentence: Bad-conduct discharge, confinement for 6 months,
reduction to E-3, and a reprimand. Sentence adjudged 21 August 2015
by GCM convened at Luke Air Force Base, Arizona.
For Appellant: Major Johnathan D. Legg, USAF; Ernesto Gapasin, Es-
quire.
For Appellee: Major Meredith L. Steer, USAF; Gerald R. Bruce, Esquire.
Before J. BROWN, SANTORO, and MINK, Appellate Military Judges.
Judge SANTORO 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    This is an unpublished opinion and, as such, does not serve as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.
                         ________________________
SANTORO, Judge:
   At a general court-martial, a military judge accepted Appellant’s guilty
plea to misusing his government travel card (GTC), in violation of Article 92,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 892. Contrary to his
                        United States v. Smith, No. ACM 38971


pleas, officer members convicted Appellant of attempting to and intentionally
exposing his genitalia to, and maltreating, Airman First Class (A1C) AH, in
violation of Articles 80, 93, and 120c, UCMJ, 10 U.S.C. §§ 880, 893, 920c. 1 The
adjudged and approved sentence was a bad-conduct discharge, confinement for
six months, reduction to E-3, and a reprimand.
      Appellant’s brief identifies five assignments of error:
          I. WHETHER APPELLANT’S AREA DEFENSE COUNSEL
             (ADC) WERE INEFFECTIVE WHEN THEY FAILED TO
             CALL WITNESSES WHO WOULD HAVE REVEALED A
             LACK OF CREDIBILITY ON THE PART OF AH.
          II. WHETHER APPELLANT’S ADC WERE INEFFECTIVE
              WHEN THEY WROTE APPELLANT’S UNSWORN STATE-
              MENT AND HAD HIM CONCEDE GUILT AGAINST AP-
              PELLANT’S DIRECTION.
          III. WHETHER APPELLANT’S ADC WERE INEFFECTIVE
               WHEN THEY FAILED TO PROPERLY PREPARE FOR
               PRESENTENCING AND DID NOT INCLUDE RELEVANT
               MITIGATION EVIDENCE.
          IV. WHETHER THE MILITARY JUDGE ERRED WHEN HE
              DENIED THE ADMISSION OF TEXT MESSAGES BE-
              TWEEN APPELLANT AND AH WHICH DID NOT RE-
              FLECT SEXUALLY CHARGED CONTENT AND THERE-
              FORE REBUTTED AH’S TESTIMONY.
          V. WHETHER APPELLANT’S CONVICTION FOR SEXUAL
             ASSAULT IS LEGALLY AND FACTUALLY SUFFICIENT.
   This court’s rules of practice require that each error for which appellate
review is sought must be separately set forth. A.F. CT. CRIM. APP. RULE 15(a).
Although Appellant’s civilian counsel specifically set forth the five errors noted
above, his meandering brief is peppered with claimed errors and irregularities
that are not related to the five assigned errors. 2 His failure to comply with this




1 Appellant was acquitted of sexually assaulting A1C AH by touching her buttocks
through her clothing.
2   Appellant’s military counsel did not sign this brief.




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                     United States v. Smith, No. ACM 38971


court’s rules waives consideration of those alleged errors not set forth with
specificity. 3

                                  I. BACKGROUND
    Appellant, the unit superintendent and acting first sergeant, attempted to
develop an inappropriate relationship with A1C AH, a member of his 20-mili-
tary member squadron. He intentionally exposed his genitalia to her on one
occasion, attempted to do so on a second occasion, made sexually-suggestive
comments to her, and touched her inappropriately on multiple occasions. He
also improperly used his GTC on multiple occasions to pay for personal ex-
penses while he was not on official travel.

                                   II. DISCUSSION
A. Ineffective Assistance of Counsel
    The first three assignments of error claim that trial defense counsel were
ineffective in various ways. Appellant submitted an affidavit supporting his
claims. 4 We ordered his trial defense counsel to submit affidavits in response.
     To establish ineffective assistance of counsel, Appellant “must demonstrate
both (1) that his counsel’s performance was deficient, and (2) that this defi-
ciency resulted in prejudice.” United States v. Green, 68 M.J. 360, 361 (C.A.A.F.
2010) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). Under the
first prong, Appellant has the burden to show that his “counsel’s performance
fell below an objective standard of reasonableness—that counsel was not func-
tioning as counsel within the meaning of the Sixth Amendment.” United States
v. Edmond, 63 M.J. 343, 351 (C.A.A.F. 2006) (quoting United States v. Davis,
60 M.J. 469, 473 (C.A.A.F. 2005)). The question is, therefore, “did the level of
advocacy ‘fall[] measurably below the performance . . . [ordinarily expected] of
fallible lawyers?’” United States v. Haney, 64 M.J. 101, 106 (C.A.A.F. 2006)
(quoting United States v. Polk, 32 M.J. 150, 153 (C.M.A. 1991)) (alterations in
original). Under the second prong, the deficient performance must prejudice
the accused through errors “so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable.” United States v. Tippit, 65 M.J. 69, 76




3 Despite Appellant’s counsel’s failure to comply with our briefing rules, we have con-
sidered the entire record of trial, including those issues Appellant mentions in passing.
We decline to discuss them separately as we conclude that they warrant no relief. See
United States v. Matias, 25 M.J. 356, 363 (C.M.A. 1987).
4Much like his counsel’s brief, Appellant’s affidavit attacks virtually every aspect of
his relationship with his counsel and the conduct of the trial.


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                   United States v. Smith, No. ACM 38971


(C.A.A.F. 2007) (quoting Strickland, 466 U.S. at 687). Counsel is presumed
competent until proven otherwise. Strickland, 466 U.S. at 689.
   1. Failure to call witness to attack A1C AH’s credibility
    Appellant claims his counsel were ineffective by failing to call Major (Maj)
QN and Ms. GG as witnesses during the defense case-in-chief. Although his
brief claims that Maj QN “could have provided testimony that would have cre-
ated doubt as to AH’s rendition of the time line,” Appellant has submitted no
evidence from which we could draw that conclusion. Appellant submitted noth-
ing from Maj QN and his own affidavit on this point states only that “[t]he
timeframe and the place of the alleged incident was impossible with the testi-
mony of my supervisor, Maj [QN],” and that he “would have created doubt as
to AH’s time line of events.”
    Appellant’s proffer of what Ms. GG would have said is equally sparse. His
brief asserts that Ms. GG would have been able to rebut the testimony of a
government witness who heard A1C AH crying in Appellant’s office by testify-
ing that “she never heard anyone crying.”
    Maj MB, Appellant’s senior defense counsel, flatly denied that Appellant
gave him a list of witnesses “before, during, or after the trial,” but noted that
Appellant did provide the defense paralegal with a list of witnesses for sen-
tencing. Maj MB also outlined the defense team’s belief that they called suffi-
cient witnesses to impeach A1C AH and also their concern that certain wit-
nesses might open the door to evidence that Appellant had made similar sex-
ually-inappropriate comments to other subordinate Airmen, information they
successfully moved to exclude from trial.
    Mr. (then-Captain) MS, Appellant’s area defense counsel, also submitted
an affidavit detailing his pre-trial preparation. Although Mr. MS did not di-
rectly address Appellant’s contention that he asked his attorneys to contact
Maj QN and Ms. GG, he stated that the defense team interviewed over 13 wit-
nesses, including Appellant’s co-workers, and visited the office in which some
of the criminal conduct was alleged to have occurred. Mr. MS noted that their
investigation led to the discovery of several witnesses who believed A1C AH
was an untruthful person. The Defense called three to testify at trial about
A1C AH’s character and/or reputation for being untruthful. They also called
other witnesses to describe the physical layout of the squadron offices in an
attempt to undermine A1C AH’s credibility. Finally, Mr. MS stated that Ap-
pellant provided a list of sentencing witnesses to the defense paralegal.
    Appellant has failed to meet his burden to establish that his counsel were
ineffective by failing to have Maj QN and Ms. GG testify. He has failed to “es-
tablish[] a foundation for his claim by demonstrating that specific individuals
would have provided the court with specific testimony.” United States v.


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                   United States v. Smith, No. ACM 38971


Moulton, 47 M.J. 227, 229 (C.A.A.F. 1997). He has made no claim that he could
not have obtained affidavits from these potential witnesses in conjunction with
his appeal or asked for judicial assistance in that regard. “In the absence of
such information or some explanation as to why it could not be obtained, it
would be inappropriate under Strickland for this Court to presume counsel's
ineffectiveness for failing to call witnesses.” Id.
   Moreover, trial defense counsel did call witnesses who directly attacked
A1C AH’s credibility. Seven witnesses testified in the Defense case-in-chief and
each one of them challenged some aspect of A1C AH’s testimony. Four of the
seven testified that, in their opinion, A1C AH was an untruthful person. Even
assuming as true the very limited facts in Appellant’s affidavit, we would be
hard-pressed to conclude that Maj QN and Ms. GG’s testimony would have
been anything but cumulative.
   2. The unsworn statement
    Appellant next contends that his counsel wrote and delivered his unsworn
statement against his wishes, and in doing so conceded his guilt. With respect
to this claim, Appellant’s affidavit states:
       I did not agree with what was written which is why my ADC
       read it. The unsworn statement that was shown to me on the day
       of sentencing was not mine and it was not one that I drafted. I
       also never wanted to concede guilt to the charges we fought in
       court. [The ADC] read the unsworn statement and conceded
       guilt against my wishes.
    The record of trial reflects that prior to delivering an oral unsworn state-
ment on Appellant’s behalf, his defense counsel stated, “Members this is an
obviously stressful time for Master Sergeant Smith so he asked that I stand up
here for him and make this statement.” Counsel then read a statement on Ap-
pellant’s behalf. Appellant, sitting at counsel table, voiced no objection when
this occurred.
    Neither in his brief nor in his affidavit does Appellant identify any portion
of the statement that he contends conceded guilt. As a threshold matter, we
note that Appellant did plead guilty to misusing his GTC so not only would
some concession of guilt not be inconsistent with his trial strategy, his admis-
sion of guilt was also already known to the court members.
    Moreover, we see nothing in the oral unsworn statement that concedes his
guilt. The statement, in its entirety, was
       Good afternoon. Thank you all for being here and taking time
       out of your busy schedules. The most important thing in my life
       is my family; my wife E[] and my three children, W[], E[] and


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                    United States v. Smith, No. ACM 38971


       E[]. I’m a man and I have failings and shortcomings but I do love
       my family with all my heart. Thank you E[] for standing with
       me for these last two years as we’ve lived with this over our
       heads. You have been my peace and clarity throughout this pro-
       cess. To my kids who aren’t here today, I love you. You inspire
       me every day that you wake up. I pray that you grow up to be
       strong, wise and loving men and women. I will always be proud
       of you and will always love you. I’ve learned many lessons from
       this experience and I respect the decision that you have made
       today. I know that I will have to live with this for the rest of my
       life. The hardest part is knowing that I might not be able to be
       there for some of my children’s lives from now on because I may
       have to register as a sex offender depending on where I live. As
       a registered sex offender I won’t be able to coach E[] and E[] as
       they grow up the way I have with W[]. Those experiences with
       W[] have been some of the best of my life and I’ll miss making
       these memories with my younger kids. I ask that you not dis-
       charge me so that I’m allowed to retire soon. No matter what you
       decide, I promise that I will continue to grow from this and will
       be a better airman, husband and father.
    Appellant’s second claim, that the oral unsworn statement was not his, is
equally without merit. We first note that there is no requirement that an ac-
cused draft his own statement without the assistance of counsel; to the con-
trary, defense counsel frequently assist a non-legally trained accused to shape
a statement that will be most effective in extenuation and mitigation. There-
fore, the true question is: did Appellant intend to adopt the contents of his
statement as his own, or did his counsel present the statement without his
authorization?
    Trial defense counsels’ affidavits are clear, consistent, and credible and un-
equivocally state that after Appellant became emotional hearing his wife tes-
tify, he asked that his defense counsel read the statement on his behalf. Appel-
lant’s own affidavit concedes that his wife became distraught while testifying.
    Trial defense counsels’ affidavits are supported by, and Appellant’s under-
mined by, the contents of a two-page written statement which both Appellant
and his appellate defense counsel concede was written by Appellant himself.
That written unsworn statement described his relationship with his wife and
children in nearly identical terms as the oral unsworn statement. The written
unsworn statement concludes:
       I know that as a result of this conviction, I’ll likely have to reg-
       ister as a sex-offender in many states. This will prevent me from
       coaching E[]’s and E[]’s youth sports teams, as I always did for

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                   United States v. Smith, No. ACM 38971


       W[]. I won’t get to spend the valuable time with my kids that
       means so much to me.
       I also know that even if I don’t receive a Bad Conduct Discharge,
       I’ll still be administratively discharged from the AF. Either way,
       my almost 20 year career is over. I’ve been in the Air Force for
       nearly 18 years now—it’s been not only my career, but my life as
       well. I ask that you please not punitively discharge me from the
       Air Force that I’ve served for nearly my entire adult life. My fam-
       ily relies on me, and I need to be there to provide for them.
       Thank you very much for your attention during the trial this
       week. I believe I received a fair trial from you. I pray that the
       Air Force still has faith in me, just as I have faith that any deci-
       sion the Air Force makes will be the right one.
   The record does not support Appellant’s claim that the oral unsworn state-
ment conceded guilt or that his counsel did not have his authorization to pre-
sent it to the members. Even assuming defense counsel did not have Appel-
lant’s consent, we see no possible prejudice as Appellant’s written unsworn was
not materially different from the statement made on his behalf by his counsel.
   3. Failure to prepare for sentencing and failure to present evidence
   in mitigation
    Appellant’s final claim that his counsel were ineffective asserts that they
did not prepare for his sentencing case because the only witness they called on
his behalf in sentencing was his wife. He asserts that he told his defense coun-
sel to contact Maj QN, SrA MH, and TSgt AC, all of whom, he says, would have
testified on his behalf in sentencing. Appellant’s affidavit is silent on what
these three witnesses would have said had they testified, nor did he submit
affidavits from them or explain why he could not.
    In addition to the affidavits submitted by trial defense counsel, the Govern-
ment also submitted an affidavit from the paralegal, Technical Sergeant (TSgt)
SF, who assisted them. TSgt SF said that he personally contacted potential
character witnesses from a list Appellant provided. TSgt SF summarized his
interaction with these potential witnesses:
       Interviews with these individuals revealed that then-MSgt
       Smith was not well respected as a leader and [senior non-com-
       missioned officer]. Most of these witnesses refused to provide a
       character letter or testify in court on his behalf. Further, several
       of these individuals revealed information during these inter-
       views that would have damaged our defense . . . had they testi-
       fied.



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                     United States v. Smith, No. ACM 38971


   By failing to provide the specific testimony that these individuals would
have provided, Appellant has not met his burden under Moulton. Moreover,
the unrebutted evidence is that the Defense team did, in fact, contact Appel-
lant’s prospective witnesses, none of whom would have supported his case. He
has thus failed to establish that his counsel were ineffective.
B. Exclusion of Text Messages
    During the findings case, A1C AH testified that she and Appellant occa-
sionally exchanged text messages. There was no claim by either side that the
text messages were relevant to the charges in this case. A member of the court-
martial asked for a copy of the text messages. Trial defense counsel objected
and asked that the military judge decline to admit the text messages. The mil-
itary judge sustained the objection and excluded the text messages.
    Appellant’s counsel now contends that the military judge erred and in doing
so avers that the trial counsel objected to the messages’ admission. However,
the record of trial indicates that the military judge sustained trial defense
counsel’s objection, not the trial counsel’s objection. Appellant cannot claim er-
ror on appeal when the military judge did as he asked at trial. United States v.
Ahern, __ M.J. __, No. 17-0032/AR, 2017 CAAF LEXIS 292, at *7 (C.A.A.F. 20
Apr. 2017) (citing United States v. Campos, 67 M.J. 330, 332 (C.A.A.F. 2009)).
C. Factual and Legal Sufficiency
    Appellant’s final assignment of error contends that his conviction for sexual
assault is factually and legally insufficient. Appellant was found not guilty of
this offense, leaving nothing about this specification for our review. 5




5 As noted above, Appellant’s brief repeatedly injected assertions that were irrelevant
to the assignments of error in which they were included. Much of Appellant’s argument
about factual and legal sufficiency attacks A1C AH’s credibility generally. We have
reviewed the entire record of trial, paying particular attention to Appellant’s argu-
ments, and conclude that the evidence was both legally and factually sufficient to sus-
tain his convictions. United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987) (factual
sufficiency established if we are convinced of Appellant’s guilt beyond a reasonable
doubt); United States v. Reed, 54 M.J. 37, 41 (C.A.A.F. 2000) (legal sufficiency estab-
lished if rational trier of fact could have found all essential elements proven beyond a
reasonable doubt).




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                    United States v. Smith, No. ACM 38971


                                III. CONCLUSION
    The findings of guilt and the sentence are correct in law and fact and no
error materially prejudicial to the substantial rights of Appellant occurred. Ar-
ticles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the find-
ings and sentence are AFFIRMED. 6


                  FOR THE COURT



                  KURT J. BRUBAKER
                  Clerk of the Court




6 The court-martial order (CMO) fails to reflect the military judge’s finding of not
guilty, pursuant to Rule for Courts-Martial 917, to a portion of the Specification of
Charge V. The CMO also erroneously omits words from the specifications of Charges
IV and V. We direct completion of a corrected CMO.


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