UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                           Before
                               MULLIGAN, FEBBO, and WOLFE
                                  Appellate Military Judges

                              UNITED STATES, Appellee
                                           v.
                            Sergeant RAYMOND P. PASAY
                             United States Army, Appellant

                                        ARMY 20140930

                       Headquarters, 1st Cavalry Division
               Rebecca K. Connally, Military Judge (arraignment)
                     Wade N. Faulkner, Military Judge (trial)
  Lieutenant Colonel James D. Levine, II, Acting Staff Judge Advocate (pretrial)
        Colonel Alison C. Martin, Staff Judge Advocate (recommendation)
  Lieutenant Colonel Michael D. Jones, Acting Staff Judge Advocate (addendum)

For Appellant: Lieutenant Colonel Melissa R. Covolesky, JA; Major Christopher D.
Coleman, JA; Captain Joshua G. Grubaugh, JA (on brief); Major Christopher D.
Coleman, JA; Captain Joshua G. Grubaugh, JA (on reply brief); Lieutenant Colonel
Christopher D. Carrier, JA; Captain Joshua G. Grubaugh, JA (on supplemental
brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III,
JA; Major Melissa Dasgupta Smith, JA; Captain Christopher A. Clausen, JA (on
brief).

                                         31 August 2017
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                    MEMORANDUM OPINION ON RECONSIDERATION
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  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

WOLFE, Judge:

       In this decision, prompted by appellant’s motion to reconsider, we: A) further
explain our rationale for not adopting a vertical imputation theory of acting as
counsel within Rule for Courts-Martial [hereinafter R.C.M.] 902(b), explain that the
military judge did not act as counsel in this case in his former role as chief of justice
(CoJ), and determine that even if the military judge had previously performed the
actual duties of a disqualifying position in the instant case that any such structural
PASAY—ARMY 20140930

error can be and was waived; B) further detail our decisions on appellant’s
ineffective assistance of counsel claims; and C) determine pursuant to our Article
66(c), Uniform Code of Military Justice [hereinafter UCMJ], authority that
appellant’s sentence of 51 years of confinement is too severe and reduce the term of
confinement to 45 years. We also adopt our previous finding and rationale that the
evidence was factually insufficient to support appellant’s conviction for
Specification 12 of Charge I, rape, and affirm only a finding of guilty to the lesser-
included offense of sexual assault by bodily harm.

                                  BACKGROUND

       Appellant, Sergeant (SGT) Raymond Pasay, appealed his conviction for the
rape and sexual abuse of his daughter, AM. A military judge sitting as a general
court-martial, convicted appellant of two specifications of abusive sexual contact
with a child, two specifications of aggravated sexual abuse of a child, two
specifications of aggravated sexual assault of a child, indecent act, rape, and
production of child pornography in violation of Articles 120 and 134, UCMJ, 10
U.S.C. §§ 920, 934 (2006 & Supp. IV; 2012).

       The military judge sentenced appellant to a dishonorable discharge,
confinement for fifty-one years, forfeiture of all pay and allowances, and reduction
to the grade of E-1. The military judge also credited appellant with fifty-one days of
confinement credit against the term of confinement. The convening authority
credited appellant with fifty-one days of confinement credit and approved as much
of the adjudged sentence as provided for a dishonorable discharge, confinement for
fifty-one years, and reduction to the grade of E-1.

       Of appellant’s five original assignments of error, we provided a detailed
discussion of the issues regarding ambiguous findings, disqualification of the
military judge, and ineffective assistance of counsel. United States v. Pasay, ARMY
20140930, 2017 CCA LEXIS 268 (Army Ct. Crim. App. 19 Apr. 2017); See also
United States v. Walters, 58 M.J. 391 (C.A.A.F. 2003). While we determined that
the findings were unambiguous, we also found the evidence factually insufficient to
support appellant’s conviction for Specification 12 of Charge I, rape. We did not
otherwise discuss appellant’s claims that the remaining specifications were factually
and legally insufficient as we found the evidence supporting the other specifications
to be sufficient. We also did not address in depth appellant’s claim that he was
entitled to sentencing relief because it took 276 days to conduct post-trial
processing. We found no due process violation and did not find the sentence to be
inappropriate notwithstanding the time it took to prepare appellant’s case for
convening authority action. Lastly, we found the matters submitted personally by
appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), were
                                           2
PASAY—ARMY 20140930

either duplicative of the assigned errors or did not merit individual discussion or
relief. We adopt these holdings and their rationale.
       Appellant moved this Court to reconsider two aspects of our previous
decision. First, appellant asks us to relook at whether the military judge, Lieutenant
Colonel (LTC) Wade Faulkner, had previously acted “as counsel” in the same case.
Appellant asks us to reconsider our decision not to adopt the vertical imputation
theory of resolving when a military judge has previously acted as counsel. Second,
appellant asks us to reconsider our decision on whether appellant’s trial team was
ineffective in how they handled the disclosure and admission of a Facebook
conversation. We granted appellant’s motion in order to clarify aspects of and
correct errors in our earlier opinion. 1

                                LAW AND DISCUSSION

                            A. Conflict of the Military Judge

       Appellant asks us to set aside the findings because the military judge in the
case had previously acted as counsel. Here, the military judge disclosed to appellant
that he previously had served as the CoJ for III Corps. He also disclosed his
forwarding to the trial counsel an email about the case. Appellant did not question
or challenge the military judge. Affidavits from appellant’s trial defense attorneys
indicate that they were well aware of his prior service as the CoJ and tactically
decided to proceed with LTC Faulkner rather than risk trial by a panel or one of the
other two judges located at Fort Hood. Indeed, this tactical decision was based in
part on the military counsel’s assessment of a previous “favorable” case where Judge
Faulkner had also previously served as the CoJ. Appellant then specifically
requested to be tried by Judge Faulkner alone.

       Appellant argues on appeal that the military judge acted as counsel under two
theories. First, appellant argues that we should adopt the vertical imputation theory
and impute to the military judge all the actions of his subordinates when he was the
CoJ. Second, appellant argues that there is sufficient evidence in the appellate
record for us to find that the military judge had acted as counsel in his own capacity.

1. Acting “As Counsel” Under R.C.M. 902(b) does not Require Vertical Imputation

      In our previous opinion we rejected appellant’s invitation to apply the vertical
imputation theory to determine when a military judge has previously acted as

1
    The court did not adopt appellant’s suggestion to take the case en banc.

                                             3
PASAY—ARMY 20140930

counsel. In general, the theory imputes the actions of subordinates to their superiors
to determine whether a military judge had previously acted “as counsel.” We
rejected this suggestion for several reasons. First, we noted that our superior court
had specifically declined to adopt the theory in United States v. Jones, 55 M.J. 317
(C.A.A.F. 2001). Appellant correctly notes in his motion for reconsideration that
the United States Court of Appeals for the Armed Forces (CAAF) did not reject the
theory outright and left the door open for adopting the theory in the future. Id. at
321. Second, we noted the structural differences between federal courts and courts-
martial. Specifically, we noted that the clarity and efficiency that the vertical
imputation theory provided when applied to courts with strict geographic borders
and limited personnel turnover would be difficult to obtain in our more distributed
system of military justice. Third, we noted that even if we declined to read the
vertical imputation theory into R.C.M. 902(b)’s prohibition on acting “as counsel”
the general conflict rule contained in R.C.M. 902(a) would still be applicable.

       In the motion for reconsideration appellant argues that this case is
distinguishable from Jones and that “different facts could make for a different
result.” If appellant means that a court should determine whether the vertical
imputation theory should be applied on a case-by-case basis, we disagree. If this
court were to adopt the vertical imputation theory we would apply it to all Army
cases under all circumstances. The advantage of appellant’s proposal is the
simplicity of a bright-line prophylactic rule. It avoids the fact-intensive question of
whether a supervising attorney “acted” in a case. Had the rule been in effect, for
example, we never would have had the series of cases involving the potential
conflicts of LTC Faulkner. That is a notable advantage. However, such a benefit is
only obtainable if, ex ante, military judges know that all their subordinates’ actions
are imputed to themselves when determining whether there is a conflict. It would
make little sense to determine whether the vertical imputation theory would apply on
an after-the-fact case-by-case basis on appeal.

       This is also why we suggested that the vertical imputation theory would be
difficult (but not impossible) to adopt. Within the Judge Advocate General’s Corps,
field grade officers usually change positions every two years or less. With no set
geographic jurisdictional boundaries, all supervising attorneys would need to keep
track of every case that any subordinate (and subordinate’s subordinates) had
touched. This would be more difficult if, as appellant argues in this case, cases were
imputed to attorneys and their supervisors when they were still in the investigative
stage. Applied to organizations that have no geographical or unit-based limitation,
such as the attorneys in the Trial Defense Service (TDS) and the Trial and Defense
Counsel Assistance Programs (TCAP & DCAP), the vertical imputation theory
would be even more difficult. As the Chief and Deputy of the Trial Defense Service
                                           4
PASAY—ARMY 20140930

supervise one or more attorneys in virtually every court-martial, they could not
pragmatically later serve as military judges, even in cases they had never heard of,
discussed, or acted upon.

       This is why we said in our initial opinion that adopting the vertical imputation
theory would be “blazing new appellate ground.” Such a rule, although not strictly
requiring such a result, at least for pragmatic reasons, would reach deep into the
selection and assignment of military judges throughout the Army. Such a rule would
also likely prevent actual, perceived, and potential conflicts in future cases. To
appellant’s point, this case and the other cases regarding LTC Faulkner weigh in
favor of such an adoption, at least assuming that the list of cases touched by
subordinates can be accurately determined and not become a matter of appellate
“gotcha.” Again, this is the problem of applying the doctrine to a system of justice
that exercises jurisdiction “in all places.” See Article 5, UCMJ.

       One more point gives us caution. As a prophylactic rule, the vertical
imputation theory is necessarily overbroad. That is, it would include in its orbit
instances where supervising attorneys did not, in fact, ever act as counsel. Again,
the benefit of such a rule is simplicity and clarity. However, this requires reading
the rule to require something that both R.C.M. 902(a) and (b) by their plain language
do not require. See Jones, 55 M.J. at 321 (Baker, J., concurring) (noting the
statutory language of section (a) adopts a reasonable-person test rather than a strict-
appearance standard). Although the military justice system has numerous examples
of similar prophylactic provisions, they generally have their origins in a pre-Clinton
v. Goldsmith, 526 U.S. 529 (1999), view of Article I court authority.

              2. LTC Faulkner did not Individually Act “As Counsel”

      Appellant also argues that even if we do not adopt the vertical imputation
theory there is sufficient evidence in the appellate record that LTC Faulkner acted as
counsel. While appellant points to no direct evidence, other than the one forwarded
email we addressed in our earlier opinion, appellant argues that “normal practices”
of LTC Faulkner and a “presumption [that] LTC Faulkner competently supervised
subordinate counsel” is a sufficient factual basis to support the conclusion that he
had acted “as counsel.”

       The affidavits on appeal establish that while LTC Faulkner was serving as the
CoJ there was little forward movement in the investigation into appellant. Appellant
himself swears in an affidavit submitted with his Grostefon matters that the
investigation was “dropped” in “[e]arly 2012.” This is also consistent with the
affidavits from the trial counsels who were covering appellant’s investigation. They
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PASAY—ARMY 20140930

described a case that did not move forward for two years after the completion of the
Army Criminal Investigative Command investigation, was not included in any of the
documents used to track cases, and for which the office did not even maintain a
casefile. Lieutenant Colonel Faulkner stated in his affidavit that this case was not
on his tracker and that “I do not believe that I ever discussed this case with any trial
counsel, law enforcement official, or anyone else while I was the chief of justice. . .
.” Thus, the affidavits support that this was not a typical case in which LTC
Faulkner’s “normal practices” could arguably create an inference of actual
supervisory authority.

       However, let us assume that LTC Faulkner did discuss the case with trial
counsel despite the lack of memory of any such conversation by any participant. In
United States v. Gutierrez, 57 M.J. 148, 149-50 (C.A.A.F. 2002) our superior court
“held that general advice to a trial counsel and investigator is not disqualifying.” A
person is disqualified from a position if they “performed the duties of a
disqualifying position.” United States v. Stefan, 69 M.J. 256, 258 (C.A.A.F. 2010).
According to the logic of Stefan, mere advice to the trial counsel would not
constitute as having acted as counsel.

       However, both of these cases involved the disqualification of the Staff Judge
Advocate which is perhaps a fundamentally different question than the
disqualification of the military judge. Additionally, the CAAF’s treatment of Stefan
indicates that they thought any error in violating Article 6(c), UCMJ, was not a
structural error, whereas the Supreme Court recently held in Williams v.
Pennsylvania, when a judge earlier had significant, personal involvement as a
prosecutor in a critical decision regarding a defendant’s case such an error is
structural. 136 S. Ct. 1899, 1905, 1909 (2016). 2

         3. Structural Error can be Waived and Here any Error was Waived

      Assuming LTC Faulkner had acted as counsel and such an error is structural,
we nonetheless address whether appellant is entitled to relief. Appellant asserts the

2
  We recognize there may be a difference between the standards of recusal under
R.C.M. 902 and the constitutional requirement of recusal at issue in Williams.
However, we need not decide whether such a difference exists as we hold that even a
constitutional requirement of recusal may be waived. As discussed in our initial
opinion in this case, Williams involved a preserved challenge of recusal and found
that had the appellant in Williams done nothing, while having full knowledge of the
chief judge’s prior involvement in the case, it is far from clear the Supreme Court
would have still held that appellant was entitled to relief.

                                           6
PASAY—ARMY 20140930

error in this case was structural because R.C.M. 902(e) provides that the military
judge may not accept an accused’s waiver of an R.C.M. 902(b) conflict. 3

       Appellant argues that therefore the error is “unwaivable” and we must set
aside the findings. 4 We do not agree with appellant’s analysis because even
structural errors are subject to the doctrine of waiver. See Weaver v. Massachusetts,
582 U.S. ____ (2017).

       As an initial matter, R.C.M. 902(e) is a limitation on the authority of the trial
judge to “accept” waiver. However, whether an accused has waived an issue for
appeal is a question of law we review de novo. See United States v. Ahern, 76 M.J.
194, 197 (C.A.A.F. 2017)(citing United States v. Rosenthal, 62 M.J. 261, 262
(C.A.A.F. 2005)). “Whether a particular right is waivable; whether the defendant
must participate personally in the waiver; whether certain procedures are required
for waiver; and whether the defendant's choice must be particularly informed or
voluntary, all depend on the right at stake.” Id. (citing United States v. Girouard, 70
M.J. 5, 10 (C.A.A.F. 2011) (quoting Olano, 507 U.S. at 733)).

       Here the right at stake involves both R.C.M. 902 and the constitutional
provisions of due process. Yet, the Supreme Court clarified just this term that even
structural error of a constitutional dimension may be waived. See Weaver, 582 U.S.
at ____. Rather than being a class of defects that is inherently “unwaivable,” the
structural nature of an error simply means that a particular deficiency is not
amenable to a prejudice analysis. In the class of structural error, while prejudice is
presumed, this says nothing of whether or not the error occurred or has been waived.

       Even structural error is subject to waiver. “No procedural principle is more
familiar to this Court than that a constitutional right may be forfeited in criminal as
well as civil cases by the failure to make timely assertion of the right before a

3
 In our initial opinion we mistakenly stated that appellant had not asserted that any
error was structural error.
4
  The rule does not quite say that the issue is “unwaivable” although we ourselves
used that term in our initial opinion. The provision in R.C.M. 902(e) states that the
military judge shall not “accept” a waiver. This is a different turn of phrase than is
used in other provisions in the Manual for Courts-Martial. See e.g. R.C.M.
907(b)(1) (“nonwaivable grounds” for dismissal). Perhaps there is a legal difference
between “accepting” a waiver of an issue and the issue being “unwaivable.” If there
is a difference, it would matter in a case where appellant waives the issue and the
military judge mistakenly accepts the waiver. We do not find it necessary to decide
this issue.
                                            7
PASAY—ARMY 20140930

tribunal having jurisdiction to determine it.” Yakus v. United States, 321 U.S. 414,
444, (1944). “Forfeiture is ‘not a mere technicality and is essential to the orderly
administration of justice.’” Freytag v. Commissioner, 501 U.S. 868, 895 (1991)
(Scalia, J. concurring and quoting 9 C. Wright & A. Miller, Federal Practice and
Procedure § 2472, p. 455 (1971)). Justice Scalia went on to say “[s]everal recent
opinions flatly contradict petitioners’ blanket assertion that structural claims cannot
be waived.” Id. To that point, the Supreme Court has stated that “[t]here is much to
be gained by inducing the objection to be made at the trial court level, where (among
other things) the error can often be remedied.” Puckett v. United States, 556 U.S.
129, 130 (2009).

       Indeed, many federal courts have interpreted the Supreme Court’s decision in
Johnson v. United States, 520 U.S. 461, 467 (1997), as providing that structural
error can be waived and forfeited. In Johnson the court determined a plain error
review was appropriate even assuming the underlying error was “structural.” See
e.g. United States v. Robinson, 275 F.3d 371, 383 n.4 (4th Cir. 2001); Dean v.
Woods, No. 2:15-cv-13911, 2016 U.S. Dist. LEXIS 117137 (E.D. Mich. Aug. 31,
2016).

       The CAAF has generally applied the Supreme Court’s interpretation of
structural error. See e.g. United States v. Wiechmann, 67 M.J. 456 (C.A.A.F. 2009);
United States v. Brooks, 66 M.J. 221, 223-24 (C.A.A.F. 2008); United States v.
Upham, 66 M.J. 83 (C.A.A.F. 2008). 5 In Upham, the CAAF stated “[w]e apply the
Supreme Court’s structural error analysis, requiring mandatory reversal, when the
error affects ‘the framework within which the trial proceeds, rather than simply an
error in the trial process itself.’” 66 M.J. at 86 (citing Arizona v. Fulminante, 499
U.S. 279, 310 (1991)).

      However, the requirement for mandatory reversal is limited to instances of
“preserved error.” In cases of preserved error, if prejudice is presumed there is
nothing left to decide. Error + prejudice = reversal. Judge Goldsmith interpreted
and explained Johnson as follows:

             Although structural errors are per se reversible and not
             subject to harmless error review, such errors are
             nevertheless subject to the general rules of waiver,
             forfeiture, and default.

5
 In Weichmann, Brooks, and Upham the C.A.A.F. adopted Supreme Court analysis
for structural error, but in each case did not actually find structural error.

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PASAY—ARMY 20140930

Porter v. Tribley, No. 14-CV-10171, 2014 U.S. Dist. LEXIS 162935, at *9 (E.D.
Mich. Nov. 21, 2014); See also United States v. Suescun, 237 F.3d 1284, 1288 n.12
(11th Cir. 2001) (Structural defects do not absolve a defendant’s waiver of a defense
or objection.); Durr v. McLaren, No. 15-1346, 2015 U.S. App. LEXIS 15871, at *3
(6th Cir. Aug. 28, 2015) (“although the violation of the right to a public trial is a
structural error not subject to harmless-error review, the right may nevertheless be
waived.”); United States v. Christi, 682 F.3d 138, 142-43 (1st Cir. 2012) (“The
structural character means only that if Christi could now raise the issue he would not
need to show any particular prejudice if otherwise entitled to relief.”); United States
v. Kieffer, 681 F.3d 1143, 1158 (10th Cir. 2012) (“Under either plain or structural
error analysis, “[f]irst, there must be an error or defect—some sort of ‘deviation
from a legal rule’—that has not been . . . affirmatively waived.”); Brown v. Gibson,
7 F. App’x 894, 910 n.10 (10th Cir. 2001) (“Because Mr. Brown knowingly,
voluntarily and intelligently waived his right to be present, we do not address his
claim of structural error.”); Johnson v. Bauman, No. 2:14-CV-10976, 2016 U.S.
Dist. LEXIS 141046, at *17 (E.D. Mich. Oct. 12, 2016); but see United States v.
Nelson, 277 F.3d 164, 206 (2d Cir. 2002) (when juror is actually biased and is
initially challenged, subsequent waiver may be invalid).

      Consider, for example, United States v. Robinson where the Fourth Circuit
addressed forfeiture in the context of structural error:

             Robinson asserts that plain error review does not apply
             because a violation of § 3005 is a structural defect. We
             disagree. Even if a violation of § 3005 is a structural
             defect, cf. Boone, 245 F.3d at 361 n.8 (noting that a
             violation of § 3005 is not amenable to harmless-error
             analysis), it is well settled in this circuit that plain error
             review applies to forfeited structural errors. See, e.g.,
             United States v. David, 83 F.3d 638, 647-48 (4th Cir.
             1996) (applying plain error analysis to forfeited structural
             error).

275 F.3d 371, 383 n.4 (4th Cir. 2001).

       Finally, after appellant submitted his request for reconsideration, the Supreme
Court again weighed in on the issue of structural error. In Weaver v. Massachusetts,
the Court emphasized the important distinction between preserved and unpreserved
structural error:

             If an objection is made at trial and the issue is raised on
             direct appeal, the defendant generally is entitled to
                                           9
PASAY—ARMY 20140930

             “automatic reversal” regardless of the error’s actual
             “effect on the outcome.” Neder v. United States, 527 U.S.
             1, 7. If, however, the defendant does not preserve a
             structural error on direct review but raises it later in the
             context of an ineffective-assistance claim, the defendant
             generally bears the burden to show deficient performance
             and that the attorney’s error “prejudiced the defense.”
             Strickland v. Washington, 466 U. S. 668, 687. To
             demonstrate prejudice in most cases, the defendant must
             show “a reasonable probability that . . . the result of the
             proceeding would have been different” but for attorney
             error. Id., at 694.

582 U.S. at ____. As the Weaver Court makes clear, had the defendant in that case
preserved the structural error at trial his conviction would have been overturned.
Instead, the Weaver Court affirmed. While the Court’s opinion in Weaver was self-
limited to the narrow structural error caused by the denial of the right to a public
trial, the reasoning is consistent with how federal courts have interpreted Johnson
applying waiver and forfeiture within a structural error context.

       Accordingly, even assuming there was a violation of R.C.M. 902(b), and even
further assuming that any such error was structural, we would still find appellant has
waived the error. Appellant walked into this issue with his eyes wide open.
Appellant’s counsel were well aware of LTC Faulkner’s prior duties as the CoJ even
before trial. LTC Faulkner then disclosed and discussed this issue with appellant
and his counsel. Appellant had no objection to LTC Faulkner and then later
affirmatively and personally requested to be tried by LTC Faulkner. The record
establishes appellant’s waiver was both knowing and tactical.

       Based on the colloquy with the military judge, the affirmative disclaimer of
any challenge to the military judge, and a specific request to be tried by this
particular military judge, appellant waived any error in the military judge sitting on
the case.

                         B. Ineffective Assistance of Counsel

      At appellant’s request we also reconsider our previous decision regarding
appellant’s claim of ineffective assistance of counsel. The difficulty of appellant’s
burden to establish ineffective of assistance of counsel – and it is his burden – was
summarized by the Supreme Court as follows:


                                          10
PASAY—ARMY 20140930

             Surmounting Strickland’s high bar is never an easy task.
             An ineffective-assistance claim can function as a way to
             escape rules of waiver and forfeiture and raise issues not
             presented at trial, and so the Strickland standard must be
             applied with scrupulous care, lest intrusive post-trial
             inquiry threaten the integrity of the very adversary process
             the right to counsel is meant to serve. Even under de novo
             review, the standard for judging counsel’s representation
             is a most deferential one. Unlike a later reviewing court,
             the attorney observed the relevant proceedings, knew of
             materials outside the record, and interacted with the client,
             with opposing counsel, and with the judge. It is all too
             tempting to second-guess counsel’s assistance after
             conviction or adverse sentence. The question is whether an
             attorney’s representation amounted to incompetence under
             prevailing professional norms, not whether it deviated
             from best practices or most common custom.

Harrington v. Richter, 562 U.S. 86, 105 (2011) (internal quotations and citations
omitted). 6

       Finally, Richter reemphasized that our task is an “objective” inquiry into the
tactical decisions of the trial attorney. Strickland “calls for an inquiry into the
objective reasonableness of counsel’s performance, not counsel’s subjective state of
mind.” Id., at 110. Thus while a counsel’s subjective explanations for their
decisions are relevant, they are not controlling.

       Appellant’s brief alleges several instances where he asserts ineffective
assistance through both a diligent and studious examination of the record of trial. In
the end, however, we find appellant has fallen short of demonstrating that his
civilian and military defense counsel were constitutionally infirm. We apply the
“strong presumption” of competence and ignore the temptation to review appellant’s
claims of deficient performance with the benefit of appellate hindsight. Strickland v
Washington, 466 U.S. 668, 687 (1984). We address each complaint in turn.




6
  Harrington v. Richter involves application of Strickland through the lens of the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) within the context
of federal collateral review of a state criminal conviction. We see those portions of
the opinion addressing AEDPA, to include the “doubly” deferential standard of
review, to be inapplicable to an IAC claim reviewed by this Court on direct appeal.

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PASAY—ARMY 20140930

                               1. “Failing to Prepare”

       Appellant alleges that his civilian counsel failed to prepare for trial by: 1) not
interviewing the alleged victim pretrial; 2) not printing out evidence pretrial; and 3)
not interviewing a government expert pretrial.

       First, appellant claims his counsel provided ineffective assistance of counsel
when they failed to interview the complaining witness. Contemporaneous statements
in the record of trial as well as the unrebutted post-trial affidavits establish that the
complaining witness was a reluctant participant in the trial and refused to be
interviewed despite counsel’s efforts. We find no deficient performance as counsel
cannot compel a pretrial interview. See United States v. Guardado, 75 M.J. 889, 904
(Army Ct. Crim. App. 2016) (pet. granted on other grounds by United States v.
Guardado, No. 17-0167/AR, ARMY 20140715 (C.A.A.F. 3 March 2017) (order)).

       Second, appellant argues that his counsel offered him poor advice when they
recommended he waive the Article 32 preliminary hearing. Appellant states that
“[o]ne must wonder what legitimate rationale defense counsel can offer for this
decision. . . .” The post-trial affidavits as well as contemporaneously written
memorandums for record establish that the defense reasonably believed there was a
likelihood that AM would not appear at trial. Accordingly, the defense feared that
her Article 32 testimony could be admitted against appellant if AM was declared
unavailable. Also, the defense anticipated that the government would prefer
additional charges against appellant if they proceeded with the Article 32 hearing.
The record likewise had a detailed colloquy between the military judge and appellant
regarding his decision to waive the hearing. We find neither deficient performance
nor prejudice.

      Third, appellant claims that his counsel failed to print exculpatory Facebook
messages between appellant and the alleged victim (“AM”) before trial. Appellant
agrees the messages were printed during a break in the trial. Accordingly, we see no
prejudice from the failure to print out the messages before trial when they were
eventually printed. 7

       Fourth, appellant alleges that his counsel failed to conduct a pretrial interview
of a government expert witness. The record indicates that the expert witness was
unavailable for consultation until a government contract was finalized. We find no
prejudice as defense counsel asked for and received a mid-trial recess in order to
interview the expert.

7
 We address separately appellant’s claim that portions of the messages should have
been introduced as exculpatory evidence and that other portions should not have
been turned over to the government.

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PASAY—ARMY 20140930

                                2. Failing to Object

      Appellant alleges numerous instances where he now claims his counsel should
have objected to trial testimony.

      First, appellant claims that the defense should have objected to the hearsay
statements of Ms. Robles. Appellant claims the government did not lay a hearsay
exception foundation when Ms. Robles repeated AM’s statements that appellant had
sexually abused her. We find appellant’s assertion to be meritless.

       Ms. Robles testified that AM appeared at her screen door knocking softly.
She described AM as having “dirt on her, up her legs and her hair was a mess and
she was just like hysterical, crying when I opened the door.” Ms. Robles testified
she asked AM several questions about how she was and where she had been but AM
“was just crying and crying.” The government then elicited that Ms. Robles had
never seen AM ever like this before. Only then did the government ask Ms. Robles
to repeat what AM had told her. Ms. Robles further testified that AM remained in
the same emotional state while recounting that appellant had abused her.

       The government had clearly attempted to lay the foundation for the “excited
utterance” exception to the hearsay rule. See Military Rule of Evidence [hereinafter
Mil. R. Evid.] 803(2). While the temporal proximity of the abuse to the “excited
utterance” was not developed we do not find deficient performance. Assuming there
were grounds to object to the testimony as hearsay, any objection would have both
highlighted the issue to the fact-finder and invited the trial counsel to lay a deeper
foundation which may have only given the testimony additional weight.

       To establish deficient performance it is not enough to demonstrate that no
objection was made at the trial level. Appellant must also show that there is no
objectively sound reason to not object. To establish prejudice, appellant must show
both that the objection would have been sustained if made and that there is a
reasonable probability that the results of the trial would have been different if the
objection was sustained. Appellant has not met his burden on either prong.

      Second, appellant argues that his counsel failed to object when Ms. Robles’
mother, Ms. Woodby, was asked to provide improper character evidence about AM.
Ms. Woodby was asked whether AM was a happy or sad child. Ms. Woodby
answered that she “[n]ever saw her smile.” Appellant complains that this was
improper character evidence. Appellant does not articulate any specific prejudice
from this testimony. Given the alleged error was not objecting to rather innocuous
testimony, we do not find deficient performance. We also find appellant has failed
to meet his burden of establishing any prejudice.



                                          13
PASAY—ARMY 20140930

       Third, appellant argues that his counsel should have objected to Ms.
Woodby’s testimony regarding AM’s desire to talk to only female police officers.
Ms. Woodby testified that upon hearing the allegations of abuse she called the
military police. She further explained that she and her husband did not allow anyone
into the house until female police officers arrived. Appellant argues to us that the
“testimony was irrelevant.” To the contrary, we find the testimony relevant under
Mil. R. Evid. 401 and therefore do not find appellant has met his burden of
establishing deficient performance. We do not address whether the testimony was
improper hearsay under Mil. R. Evid. 801 or whether the testimony would have been
objectionable under Mil. R. Evid. 403. We also do not find prejudice.

       Fourth, appellant claims his counsel should have objected to portions of AM’s
testimony that anticipated the questions that she would be asked during cross-
examination. The government’s questions were designed to rebut a defense
“transference” strategy, allegations of recent fabrication, and frontloaded
explanations for prior inconsistent statements. Appellant does not argue to us that
the testimony would not eventually be admissible, just that it was prematurely raised
during direct examination. We do not find deficient performance when counsel offer
no objection to testimony which they anticipate will eventually be admissible after
cross-examination. The decision to object to such testimony is within the range of
decisions that competent counsel may make. We also find no prejudice to appellant
from the premature admission of testimony on direct examination that would have
been admissible during re-direct examination.

       Fifth, appellant argues that AM testified to instances of uncharged
misconduct. Appellant cites AM’s testimony that appellant had masturbated in front
of her. Appellant correctly asserts that there was no objection to this testimony.
However, it is entirely unclear whether the testimony was inadmissible. Appellant
does not claim that the government failed to provide notice under Mil. R. Evid.
404(b). Nor does appellant explain to us why the testimony would not meet the
requirements for admissibility under that same rule. Additionally, given AM’s
extensive testimony on charged instances of abuse it is unclear why this testimony
would have had a reasonable likelihood of changing the result in a case that turned
on credibility. Accordingly, we find appellant has not met his burden of establishing
either deficient performance or prejudice.

       Sixth, appellant claims that his counsel failed to object when AM and the trial
counsel used “conclusory” terms such as “rape” and sexual assault. Appellant cites
as an example the trial counsel’s question “And can you tell us of the next instance
you remember of Sergeant Pasay raping you?” While we would agree that a military
judge would be within his or her discretion to direct the trial counsel to rephrase the
question upon an objection, it is not clear that such a direction would be required.
AM had explained her definition of “rape” as penetration which provided context to
the question, especially as appellant’s offenses involved sexual acts with a child who
                                          14
PASAY—ARMY 20140930

could not consent as a matter of law. In this trial by military judge alone we see no
deficient performance or prejudice in failing to object to the trial counsel’s use of
language.

                           3. Failing to Introduce Evidence

       Appellant asserts that his trial defense counsel erred in failing to introduce
certain evidence. We address each in turn.

       First, appellant asserts that his counsel erred when they failed to provide
notice of their intent to introduce evidence under the residual hearsay rule. See Mil.
R. Evid. 807. The defense attempted to introduce a Red Cross message appellant
received while deployed. When the government objected that the message contained
hearsay, the defense attempted to introduce the message under the residual hearsay
rule. As the defense had not provided the notice required by Mil. R. Evid. 807 the
military judge sustained the government’s objection. We find no prejudice for
several reasons. First, the message was not otherwise admissible as residual
hearsay. Thus, even had the defense provided notice the message would have still
not met the requirements under Mil. R. Evid. 807. 8 Second, appellant testified to
having received the Red Cross message. Third, AM’s mother testified she sent
appellant a Red Cross message. Finally, appellant does not explain to us the
prejudice to appellant’s case when the message was not admitted. 9



8
 Appellant does not assert his counsel should have tried to self-authenticate the Red
Cross message as a business record. See Mil. R. Evid. 902(11) and 803(6).
9
  During the course of our Article 66, UCMJ, review we of course conduct a de novo
review of the record. Having conducted such a review, we are aware of how the Red
Cross message fits into the trial and we do not independently find prejudice.
However, appellant’s burden to establish ineffective assistance of counsel requires
him to connect these dots; not rely on us to connect them for him. Otherwise, there
would be no meaning to placing the burden on appellant. If failing to admit the Red
Cross message constitutes ineffective assistance of counsel, appellant must connect
the evidence to a defense or an element of the offense in a manner where we can find
a substantial likelihood that the admission of the evidence would alter a finding.
When the evidence is relevant to some specifications, but not others, this needs to be
explained. Establishing deficient performance does not itself establish prejudice.
To paraphrase the Supreme Court in Puckett v. United States, that would be simply
an ipse dixit recasting of the deficient performance as the prejudice. “Any trial error
can be said to [be prejudicial] if the harm is defined as “being convicted at a trial
tainted with [fill-in-the-blank] error.” 556 U.S. at 142.

                                           15
PASAY—ARMY 20140930

        Second, appellant argues that his defense counsel were ineffective when they
failed to cross examine AM on inconsistent statements. Specifically, appellant
points to AM’s testimony that the abuse began after her ninth birthday. Appellant
notes that a defense expert testified that he read a law enforcement report in which
AM had stated the abuse began when she was eleven years old. Similarly, AM
testified that appellant had started raping her (i.e. penetrative acts) when she was
thirteen but appellant claims that she told police that it had begun when she was
eleven. Given that appellant’s counsel cross-examined AM on numerous
inconsistent statements, that such cross-examination would have opened the door to
AM perhaps discussing additional allegations of abuse, we see no deficient
performance or prejudice in not cross-examining AM on this matter.

       Third, appellant argues that his defense counsel failed to introduce extrinsic
evidence of AM’s prior inconsistent statements. The defense counsel cross-
examined AM on her inconsistent statements as to whether appellant had filmed her
with a laptop computer or a digital camera. Appellant argues that the defense should
have called “the witness who AM allegedly made these inconsistent statements to. . .
.” Appellant does not tell us who this witness is or what they would have testified
about. Additionally, appellant does not address whether it would have been
permissible to introduce extrinsic evidence of such a prior inconsistent statement.
See Mil. R. Evid. 613(b); United States v. Loving, 41 M.J. 213, 245 (C.A.A.F. 1994)
(Extrinsic evidence must relate to a “material issue” in the case”).

       Fourth, appellant argues that his defense team should have called Ms.
Poorman as a witness. Appellant claims that Ms. Poorman “could have testified
[appellant’s ex-wife] had a motive to fabricate her testimony, and should have
impeached [her] testimony that the family did not have money trouble.” In an
affidavit submitted on appeal by appellant, Ms. Poorman states that appellant’s ex-
wife was very angry that appellant had remarried and that upon finding out that his
new wife was pregnant she “cried and was very upset about the entire situation.”
She also states appellant’s ex-wife would threaten to “destroy his career” whenever
she was mad at appellant. She states that the Pasay family had serious financial
problems. 10 However, Ms. Poorman also states that when telephoned by the defense
a few days before trial she told the defense counsel she could not attend the trial.

      In an affidavit, the lead defense counsel defense stated that he did not call Ms.
Poorman because her testimony was cumulative with her husband’s testimony who
was a “much better and more credible witness.” He explained that he assessed SSG
Poorman as the more credible witness. He feared Ms. Poorman would be impeached

10
  Ms. Poorman does not state whether she has any personal knowledge of the Pasay
family finances or whether she would be repeating hearsay. Mil. R. Evid. 602. See
United States v. Cade, 75 M.J. 923 (Army Ct. Crim. App. 2016).

                                          16
PASAY—ARMY 20140930

because her previously close relationship with appellant’s ex-wife ended over a
dispute about money. In reply, appellant argues that “just because the government
will argue a witness is biased does not mean the witness should not be called.” True
enough. However, the hind-sight judging of tactical decisions is exactly what we are
not supposed to do when evaluating a claim of ineffective assistance of counsel. 11
While appellant clearly now disagrees with the decision not to call Ms. Poorman,
this tactical call did not amount to a constitutional deprivation.

                             4. The Facebook messages

       Appellant assigns to us on appeal that his counsel were ineffective in their
handling of a Facebook conversation. During trial appellant’s civilian defense
counsel stated he needed a recess in order to print this conversation and to provide it
to the government. 12 The conversation was marked but not admitted.

        The exhibit is a seven-page printout of a Facebook conversation between
appellant and AM that happened between 5 January 2012 and 9 January 2012. The
first six pages are generally favorable to appellant as AM appears to talk lovingly
with him and argues in favor of moving closer to where he lives. On page six, AM
tells appellant “&& It would just be so much easier if we were closer.” Less than
seven hours later, on page seven of the exhibit, appellant responds that if AM ends
up homeless or in trouble “I know im the last person u want to live with but if things
go bad there u [and AM’s brother] r always my kids n my door is always open for u
two..i love u. . . .”

       Appellant argues that his counsel was ineffective for not admitting the first
six pages of the conversation. Appellant also argues that his counsel was ineffective
for providing the government with the seventh page. In our initial opinion we
described this as illogical, but perhaps too quickly. We therefore provide additional
explanation below.

11
  We would note that the defense team initially requested the production of Ms.
Poorman as a witness but the request was denied as evidenced by an attachment to
App. Ex. V. The defense filed a motion to compel, but focused their motion on
witnesses other than Ms. Poorman.
12
  Appellant avers that the government only became aware of the conversation
because his counsel printed the conversation on the trial counsel’s computers after
printing attempts at the defense counsel’s office and at a Kinko’s had failed. As
appellant’s counsel stated on the record that he intended to provide the conversation
to the government we do not think it important who printed what on which computer.
Ultimately, it is the civilian defense attorney’s decision to provide the government
with information that we are concerned about; not how he effectuated that decision.

                                          17
PASAY—ARMY 20140930

                a. Providing the Government with the Seventh Page

      Appellant claims his counsel should not have provided the seventh page to the
government as that page was inculpatory. During cross-examination appellant
agreed that he had told AM that he was the last person she would want to live with.

        As an initial matter, although not addressed by any party, it would appear that
if the defense had introduced the first six pages of the Facebook conversation — as
appellant asserts they should have done – the government “may require the
introduction, at that time, or any other part – or any other writing or recorded
statement - that in fairness ought to be considered at the same time.” Mil. R. Evid.
106. Additionally, Mil. R. Evid. 613 requires that when a witness is examined about
a prior statement the offering party “must, on request, show it or disclose its
contents to an adverse party’s attorney.” Thus it is far from clear to us how
appellant would not have had to turn over the seventh page in any event. However,
it is not necessary for us to determine decisively whether these rules would have
ultimately required the seventh page to be provided to the government. All we need
to determine is whether the defense team’s decision to provide all seven pages to the
government was within the range of objectively reasonable competent decisions. It
was.

       On appeal, the government responds that the whole conversation should have
been turned over in discovery, thus there was not error. Rule for Court-Martial
701(b)(1)(A) requires the defense to provide the government with all signed
statements of witnesses listed by the defense. Appellant had “adopted” the
government’s witness list and requested the production of all witnesses listed by the
government. See (App. Ex. V, Witness Request, 21 July 2014; Witness Request
Addendum, 23 July 2014). Accordingly, by placing AM on the defense witness list,
the defense was required to turn over all signed statements by AM, possibly
including the Facebook conversation. 13 Additionally, R.C.M. 701(b)(3) requires
defense disclosure of all documents the defense intends to introduce. If the defense
should have admitted the Facebook conversation, as appellant claims on appeal, it
would need to be disclosed pretrial. Given their pretrial obligations we see no
deficient performance in turning over the seventh page. 14

13
  We do not decide whether a Facebook message sent by a unique account holder is
a “signed” statement for purposes of R.C.M. 701. Rather, our inquiry is limited to
whether counsel acted within a broad range of competent performance.
14
  What the defense team could not do is fail to provide discovery as required by
R.C.M. 701, disclose and introduce the first six pages mid-trial, and then hope that
because of the surprise disclosure the government would be caught off guard and fail
to discover that there was a seventh page. Framed more appropriately for the issue
before us, a decision not to engage in such a course of conduct is one a competent
counsel may make.
                                          18
PASAY—ARMY 20140930

       Appellant replies that the defense was not obligated to turn over the seventh
page in discovery, in part, because “the government has the same access to this
evidence.” Appellant cites to United States v. Province, 45 M.J. 359, 361-363
(C.A.A.F. 1996), to support his position that there is no need to disclose to the
government what the government already has. Province stands for the proposition
that a defense attorney need not provide the government with the government’s own
files. Its application to evidence obtainable from witnesses, as appellant argues,
would violate R.C.M. 701. However, this is all beside the point.

       Appellant argues to us that there was no need to disclose the seventh page
because the government already had access to the seventh page. It therefore
necessarily follows that appellant was not prejudiced when his counsel gave the
government something to which they already had access. Put differently, if the
defense counsel need not have turned over a document because they reasonably
believed the government already had access to it, it is also not deficient performance
to provide a document the counsel could reasonably believe the government already
had.

        Finally, we would note that it is clear from the print out of the sixth page that
the conversation continued onto a seventh page. Had appellant’s counsel done as he
now asserts and only provided the first six pages to the government, any observant
trial counsel would have noticed the omission. Even if R.C.M. 701, Mil. R. Evid.
106, or Mil. R. Evid. 613 would not have compelled the defense to turn over the
seventh page, it is reasonable that AM could have provided the government with the
seventh page, as appellant himself admits on appeal.

                        b. Failure to Admit the First Six Pages

        Appellant argues that his counsel were ineffective when they did not admit the
first six pages of a Facebook conversation. As discussed above, in the first six
pages AM talks favorably about living closer to appellant; a view that is inconsistent
with her allegations of abuse.

       During the cross-examination the defense counsel asked AM about this
conversation. AM stated she did not remember the Facebook conversation. Asked
specific questions, AM denied reaching out to appellant “to try to convince him to
come and live again with him in Texas.” She admitted sending appellant messages
saying that she loved him. She said she didn’t believe she had asked appellant to
convince her mother to live with him in Texas. She then agreed that she had told
appellant how much she missed him. AM’s trial testimony is consistent with parts
of the Facebook conversation and inconsistent with others. 15

15
  In our initial opinion we mischaracterized her testimony as having agreed with all
of the questions.
                                          19
PASAY—ARMY 20140930

       Appellant faces several hurdles in arguing that it was ineffective not to admit
the first six pages of the Facebook conversation.

       First, during re-direct examination appellant was handed a copy of the
Facebook conversation and asked to read it to himself. His defense counsel then
asked appellant about the conversation. The government objected. The defense
counsel explained that “[t]his goes to a prior inconsistent statement, some of the
things [AM] was cross-examined on. She denied wanting to come back and live with
him, and she also denied having messaging with him at all.” The military judge
overruled the trial counsel’s objection and appellant testified that AM had told him
how much she missed appellant and how she and her brother wanted to come back
and live with appellant. In other words, although the exhibit itself was not admitted
through appellant’s testimony, extrinsic evidence of AM’s prior inconsistent
statements was admitted as evidence.

       Second, appellant argues that the Facebook conversation should have been
admitted as substantive evidence, but appellant has not explained why the exhibit is
not hearsay. In the conversation AM states that she loves appellant and wants to
live closer to him, apparently offered for the purpose of informing the factfinder that
AM loved appellant and wanted to live closer to him. If there is an applicable
hearsay exception appellant does not point us to it.

       Third, offered as prior inconsistent statements of AM (i.e. not substantive
evidence) it is extrinsic evidence of prior inconsistent statement. See Mil. R. Evid.
613. Accordingly, the statement must be “material” to be admitted. Loving, 41 M.J.
at 245. While a statement where AM had denied being abused would be material,
not every statement that is arguably inconsistent with trial testimony is material.
Additionally, prior to admitting the exhibit the defense would have been required to
provide AM the opportunity to “explain or deny” the statement. Mil. R. Evid. 613.
Additionally, the government would have been required to have the opportunity to
examine AM about the statement. Id. While it is possible that the defense counsel’s
brief cross-examination met this requirement, it is also possible that the military
judge would have required additional foundation before allowing the defense to
introduce extrinsic evidence of a prior consistent statement to show that it was
material and to provide AM with the opportunity to further explain the statement.

       Fourth, although neither party has expressed concern about the documents
provenance, even on appeal, no one has authenticated the exhibit. As AM testified
she did not remember the conversation, it is far from clear that she could have
authenticated the exhibit. While appellant discusses the Facebook conversation in
his affidavit he does not authenticate it. To prove on appeal that it was ineffective
not to admit a document at trial appellant must at least demonstrate that the
document was in fact admissible.


                                          20
PASAY—ARMY 20140930

       Finally, within the context of the entire trial, and notwithstanding our
extensive discussion, the Facebook conversation was relevant, but not substantially
so. The first six pages were not significantly helpful and the seventh page was not
very incriminating. In a child sex abuse case, it is not particularly exculpating that
the child sometimes discusses her alleged abuser in positive terms. AM admitted as
much when she admitted on cross-examination that she told appellant she loved him
and missed him. But nor was is it significantly incriminating that appellant admitted
on the seventh page that he had told AM that he was the last person with whom she
would want to live. Appellant’s defense was not painting a portrait of familial
harmony. Indeed, on redirect appellant was asked to explain his message to AM. He
explained that at the time he sent the message AM had already accused him of abuse.
It was not disputed that the Pasay family had fractured.

                            C. Sentence Appropriateness

       Although not specifically raised by appellant in his motion for
reconsideration, we considered anew whether appellant’s sentence of fifty-one years
of confinement is too severe. Although not dispositive, the severity of this term of
confinement is underscored by the government’s request of thirty-seven years
confinement. After reviewing the record, to include the matters submitted by
appellant pursuant to R.C.M. 1105 and the issues raised by appellant in Grostefon,
we find that a sentence that provides for a dishonorable discharge, confinement for
forty-five years, forfeiture of all pay and allowances, and reduction to the grade of
E-1 appropriately punishes appellant for his crimes. Our resolution of this issue
should not be interpreted as diminishing the severity of appellant’s acts or as
minimizing the harm he caused to AM, but rather reflects our assessment of the
evidence in light of the nature of the offenses and the Wheeler factors. Dep’t of
Army, Pam. 27-9, Legal Services: Military Judges’ Benchbook, para 2-5-23 (10
Sept. 2014); See also United States v. Wheeler, 17 U.S.C.M.A. 274, 38 C.M.R. 72
(1967).

                                  CONCLUSION

        Based on the adopted analysis of factual sufficiency of our original opinion,
the court affirms only so much of the finding of guilty of Specification 12 of Charge
I as finds the appellant:

             Did, at or near Killeen, Texas, between on or about 28
             June 2012 and on or about 1 September 2012, commit a
             sexual act upon AM, to wit: penetrating with his penis,
             the vulva of AM, by causing bodily harm to AM.



                                         21
PASAY—ARMY 20140930

       The remaining findings of guilty are AFFIRMED. After considering the
entire record, the court affirms only so much of the sentence as provides for a
dishonorable discharge, confinement for 45 years, forfeiture of all pay and
allowances, and reduction to the grade of E-1. All rights, privileges, and property,
of which appellant has been deprived by virtue of that portion of the findings set
aside by our decision, are ordered restored.

      Senior Judge MULLIGAN and Judge FEBBO concur.

                                           FOR THE COURT:
                                           FOR THE  COURT:




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




                                          22
