                        UNITED STATES, Appellee

                                     V.

                   Sean G. GRIGORUK, Staff Sergeant
                         U.S. Army, Appellant


                               No. 98-1089


                         Crim. App. No. 9600949



       United States Court of Appeals for the Armed Forces

                        Argued November 28, 2001

                       Decided February 15, 2002

    GIERKE, J., delivered the opinion of the Court, in which
           CRAWFORD, C.J., EFFRON and BAKER, JJ., and
                     SULLIVAN, S.J., joined.

                                  Counsel
For Appellant: Karen L. Hecker (argued); Colonel Adele H.
   Odegard (on brief); Eugene R. Fidell and Captain Steven P.
   Haight.

For Appellee: Captain Karen J. Borgerding (argued); Colonel
   Steven T. Salata, Lieutenant Colonel Denise R. Lind, and
   Major Margaret B. Baines (on brief).

Military Judge:    Robert F. Holland


  This opinion is subject to editorial correction before final publication.
United States v. Grigoruk, No. 98-1089/AR


      Judge GIERKE delivered the opinion of the Court.

      A general court-martial composed of officer and enlisted

members convicted appellant, contrary to his pleas, of multiple

sexual offenses (rape, forcible sodomy, and committing indecent

acts) with a child under the age of sixteen, in violation of

Articles 120, 125, and 134, Uniform Code of Military Justice, 10

USC §§ 920, 925, and 934, respectively.          The adjudged and

approved sentence provides for a dishonorable discharge,

confinement for twenty years, total forfeitures, and reduction to

the lowest enlisted grade.       The Court of Criminal Appeals has

twice affirmed the findings and sentence in unpublished opinions.

Before this Court, appellant contends that his trial defense

counsel provided ineffective assistance.          For the reasons set out

below, we affirm.


                      Trial and Appellate History
    Appellant’s stepdaughter accused him of child sexual abuse,

beginning when she was four years old and continuing for several

years, until she told a babysitter about it.          The victim was nine
years old at the time of appellant’s court-martial.          Appellant

testified and denied committing the offenses.          There was no

direct medical evidence to support the victim’s accusation, but

the prosecution presented a stipulation of the expected testimony

of Dr. Deborah Bryant, who examined the victim and opined that a

normal, genital-rectal examination does not necessarily mean that

a child has not been abused.

      The court-martial was essentially a credibility contest

between appellant and the child.          Prior to the trial on the



                                      2
United States v. Grigoruk, No. 98-1089/AR


merits, the military judge granted a defense request for funds to

hire Dr. Ralph Underwager or a suitable substitute as an expert

witness.    Dr. Underwager had not examined the victim, but he was

expected to testify, in response to hypothetical questions, as

follows:

      (1) A conflicted family environment, particularly divorce,
      and separation from parents may influence a child to
      fabricate stories of abuse;

      (2) Children are more suggestible than adults, and frequent,
      repeated questioning of children can actually teach or
      reinforce a false story; and

      (3) The initial assumptions of a child interviewer are a
      powerful determinant of what the child reports at the
      interview.

Despite this favorable ruling, the trial defense counsel did not

present any expert testimony at trial.

      On initial review, this Court granted review of two issues:

      I. WHETHER TRIAL DEFENSE COUNSEL PROVIDED INEFFECTIVE
      ASSISTANCE OF COUNSEL WHEN HE FAILED TO (1) CALL AN EXPERT
      WITNESS WHO WOULD PROVIDE CREDIBLE EVIDENCE THAT SUPPORTED
      THE DEFENSE’S THEORY OF THE CASE; (2) CROSS-EXAMINE A NUMBER
      OF WITNESSES REGARDING PERTINENT FACTS IN DISPUTE; AND (3)
      STIPULATED TO DAMNING EVIDENCE.

      II. WHETHER THE REVIEWING COURT CONDUCTED MEANINGFUL
      APPELLATE REVIEW WHEN IT FAILED TO ORDER TRIAL DEFENSE
      COUNSEL TO SUBMIT AN AFFIDAVIT WHEN A VIABLE CLAIM FOR
      INEFFECTIVE ASSISTANCE OF COUNSEL HAD BEEN RAISED.

This Court held that appellant had met the threshold for further

inquiry concerning his claim of ineffective assistance of

counsel.    The court below was directed to request an affidavit

from trial defense counsel explaining why Dr. Underwager or any

other expert was not called to challenge the victim’s

credibility.    The court below was further directed to obtain

additional evidence if necessary, conduct any factfinding

consistent with United States v. Ginn, 47 MJ 236 (1997), and


                                      3
United States v. Grigoruk, No. 98-1089/AR


reconsider appellant’s claim of ineffective assistance.         52 MJ

312, 315-16 (2000).

        Trial defense counsel submitted an affidavit in which he

recited that his initial decision to request Dr. Underwager was

on recommendation of another lawyer.         He obtained some written

information from Dr. Underwager to support his request for

funding to hire him.        He found the information “very basic, but

helpful.”      He used the information “to develop witness questions,

organize [his] argument, and generally support the theory of the

case.”     In his affidavit, trial defense counsel states that,

after speaking with Dr. Underwager “on more than one occasion,”

he became concerned about Dr. Underwager’s references to “false

claims” and the “documents” he carried to rebut them.

        Trial defense counsel’s decision to seek an expert was “in

large measure” to counter the anticipated testimony of the

Government’s expert, Mr. Richard Pitcock, a psychological

examiner who interviewed and evaluated the victim.         Mr. Pitcock

testified at the pretrial investigation1 that the victim “had age
inappropriate knowledge of sexual activities.”
        At a pretrial motion hearing, the prosecution informed the

military judge that “if this court’s ruling, concerning Doctor

Underwager, is triggered by our proffer or intent to call Mr.

Pitcock, the Government would state that it would not call Mr.

Pitcock in that event.”         The prosecution proffered that if Mr.

Pitcock testified, his testimony would be limited to stating that

he gave the victim various tests and that “she’s a child of


1
    See Art. 32, UCMJ, 10 USC § 832.



                                       4
United States v. Grigoruk, No. 98-1089/AR


normal intellect and normal ability to recall and understand

events.”    The prosecution also indicated that it would offer the

victim’s statements to Mr. Pitcock.         Finally, the prosecution

indicated that Mr. Pitcock might testify in rebuttal, “depending

on how the case -- the defense case came out.”

      After the motions hearing, the prosecution agreed to

stipulate to the testimony of Dr. Bryant, who had conducted the

genital-rectal examination of the victim.         In his affidavit,

trial defense counsel explains, “At that point, any tactical need

to balance their expert’s testimony at trial was gone.”         When the

case ultimately was tried on the merits, the prosecution did not

call any experts to testify in person.

      The prosecutor also showed trial defense counsel “a detailed

format for attacking Dr. Underwager.”         Trial defense counsel

recites in his affidavit that, “by that time, [he] had pretty

much already decided against using him.”         He recites further that

he was concerned with the court members thinking he was “trying

to pass off a ‘quack’ on them.” Finally, trial defense counsel

explains that “[t]he potential danger of having to litigate Dr.

Underwager’s credibility or having another expert open the door

for Mr. Pitcock’s appearance far outweighed the foreseeable

impact of the granted testimony, the substance of which I argued

to the panel anyway.”

      After considering trial defense counsel’s affidavit and

determining that no additional factfinding hearing was necessary,

the court below concluded, in an unpublished opinion, that trial

defense counsel had established reasonable, tactical and

strategic reasons for forgoing the testimony of Dr. Underwager or


                                      5
United States v. Grigoruk, No. 98-1089/AR


any other expert.     Appellant again petitioned this Court for

review, and we granted review of the following issue:

      WHETHER TRIAL DEFENSE COUNSEL PROVIDED INEFFECTIVE
      ASSISTANCE OF COUNSEL WHEN THEY FAILED TO EMPLOY A REPUTABLE
      EXPERT TO CONSULT WITH THEM ON THE CASE AND TO PROVIDE
      CREDIBLE EVIDENCE THAT SUPPORTED THE DEFENSE’S THEORY OF THE
      CASE, WHICH MANDATES THAT THIS COURT SET ASIDE APPELLANT’S
      CONVICTION.

In this second review of appellant’s claim of ineffective

assistance of counsel, he has broadened his attack on trial

defense counsel, adding an allegation that he failed to employ a

reputable expert for consultation.

                                 Discussion
      We review issues of ineffective assistance of counsel de

novo.   United States v. Wean, 45 MJ 461, 463 (1997).    On

appellate review, there is a “strong presumption” that counsel

was competent.     Strickland v. Washington, 466 U.S. 668, 689

(1984).   This Court applies the following three-pronged test to

determine if the presumption of competence has been overcome:

            (1) Are appellant’s allegations true; if so, “is there
            a reasonable explanation for counsel’s actions?”;

            (2) If the allegations are true, did defense counsel’s
            level of advocacy fall “measurably below the
            performance . . . [ordinarily expected] of fallible
            lawyers?”; and

            (3) If defense counsel was ineffective, is there a
            “reasonable probability that, absent the errors,” there
            would have been a different result?

United States v. Polk, 32 MJ 150, 153 (CMA 1991).

      Applying this test, we hold that trial defense counsel was

not ineffective.     Trial defense counsel did not elaborate on Dr.

Underwager’s reference to “false claims” and his rebuttal

“documents.”    Likewise, he did not describe the prosecution’s



                                      6
United States v. Grigoruk, No. 98-1089/AR


plan to discredit Dr. Underwager.           Nevertheless, trial defense

counsel’s concerns about litigating Dr. Underwager’s credibility

as a witness were not unfounded.

      In Underwager v. Salter, 22 F.3d 730 (1994), the Seventh

Circuit rejected Dr. Underwager’s appeal from an adverse summary

judgment against him in a defamation lawsuit.            Dr. Underwager

sued the authors of an article in the Journal of the American

Medical Association (JAMA) criticizing his work.            The Seventh

Circuit observed that “Underwager’s approach has failed to carry

the medical profession, but it has endeared him to defense

lawyers.”    Id. at 732.    The court summarized an interview on a
television program, “60 Minutes Australia,” in which the JAMA

reviewer mentioned Dr. Underwager’s view that ninety percent of

all accusations of child molestation are unfounded and

characterized it as “gobbledygook.”           Id.2   The court’s opinion

also recites, “Underwager served on the board of the False Memory

Syndrome Foundation until resigning after being quoted as telling

a Dutch journal that sex with children is a ‘responsible choice

for the individual.’”      Id. at 734; see also Commonwealth v.
Perkins, 658 N.E.2d 975, 978 (Mass.App.Ct. 1995) (holding that it

was not improper to impeach Dr. Underwager by referring to his

statements endorsing pedophilia as an “acceptable and reasonable

lifestyle”); State v. Swan, 790 P.2d 610, 632 (Wash. 1990)

(Supreme Court of Washington upheld trial court’s ruling that Dr.

Underwager’s proffered testimony was not based on independent



2
  This comment resulted in another defamation action, which also was summarily
resolved against Dr. Underwager. See Underwager v. Channel 9 Australia, 69
F.3d 361 (9th Cir. 1995).


                                      7
United States v. Grigoruk, No. 98-1089/AR


research, but was undertaken at the behest of the insurance

industry for use in civil claims for child sexual abuse, and that

the record “does not sufficiently establish the reliability of

the expert’s methodology, factors, or the principles which he

proposed to use in his testimony.”).

      The record before us demonstrates that trial defense counsel

sought an expert to counter anticipated government experts.            He

contacted Dr. Underwager on the recommendation of a colleague.

He obtained written information from Dr. Underwager as the basis

for his request to the military judge.          He found Dr. Underwager’s

written information “very basic, but helpful.”          He also talked to

Dr. Underwager on the telephone and used the information obtained

from Dr. Underwager to prepare for trial.

      Trial defense counsel concluded that he might not need Dr.

Underwager to testify as an expert after the Government decided

not to present expert testimony.          He concluded, based on his

review of the prosecution’s plan of attack, that Dr. Underwager’s

credibility would be heavily attacked, and that the credibility

of the defense case might be undermined if the defense was

perceived as using a “quack” as an expert.          Based on all these

factors, trial defense counsel decided not to use Dr. Underwager

as an expert witness.      We hold that there was a reasonable

explanation for this action.

      Regarding the failure of trial defense counsel to request

another suitable expert witness, we note that, even though over

five years have passed since appellant’s conviction, and his case

has worked its way up the appellate chain twice, neither

appellant nor his counsel have demonstrated that any other expert


                                      8
United States v. Grigoruk, No. 98-1089/AR


could have provided expert testimony sufficient to raise the

reasonable probability of a more favorable result.       Cf. United

States v. McAllister, 55 MJ 270 (2001) (defense informed military

judge that requested expert could not provide needed assistance

and identified another expert who could).

      Regarding trial defense counsel’s failure to employ another

expert for consultation, his affidavit states that he talked with

Dr. Underwager and obtained helpful information, which he used to

develop his trial strategy.       Appellant has not asserted or

demonstrated that what Dr. Underwager told trial defense counsel

was incorrect or deficient, nor has appellant identified any

other consultant, by name or qualifications, who should have been

consulted.

      Based on this appellate record, we hold that appellant has

not overcome the strong presumption of competence.       He has not

demonstrated that trial defense counsel’s performance was

“outside the wide range of professionally competent assistance.”

Strickland, 466 U.S. at 690.
                                  Decision
      The decision of the United States Army Court of Criminal

Appeals is affirmed.




                                      9
