           U NITED S TATES N AVY –M ARINE C ORPS
               C OURT OF C RIMINAL A PPEALS
                           _________________________

                               No. 201400321
                           _________________________

                    UNITED STATES OF AMERICA
                             Appellee
                                        v.
                        Martin S. ANDERSON
             Chief Electronics Technician (E-7), U.S. Navy
                               Appellant
                        _________________________

 Appeal from the United States Navy-Marine Corps Trial Judiciary
         Military Judge: Captain Robert Blazewick, JAGC, USN.
       DuBay Hearing Judge: Captain Robert J. Crow, JAGC, USN.
       For Appellant: Lieutenant R. Andrew Austria, JAGC, USN.
              For Appellee: Major Kelli A. O’Neil, USMC;
              Lieutenant Allyson L. Breech, JAGC, USN.
                        _________________________
                         Decided 2 November 2018
                          _________________________
                   Before HUTCHISON, FULTON, and PRICE, 1
                        Appellate Military Judges
                         _________________________
   This opinion does not serve as binding precedent but may be cit-
ed as persuasive authority under NMCCA Rule of Practice and Pro-
cedure 18.2.
   HUTCHISON, Senior Judge:
    A military judge sitting as a general court-martial convicted the appel-
lant, contrary to his pleas, of one specification of sexual assault in violation of
Article 120, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920 (2012
ed.), but acquitted him of another specification of sexual assault and of a sin-


   1  Senior Judge Price took final action in this case prior to detaching from the
court.
                     United States v. Anderson, No. 201400321


gle specification of aggravated assault in violation of Article 128, UCMJ. The
military judge sentenced the appellant to 14 months’ confinement, reduction
to paygrade E-4, and a dishonorable discharge. The convening authority (CA)
approved the sentence and, with the exception of the punitive discharge, or-
dered it executed.
   The appellant initially raised four assignments of error (AOEs): (1) the ev-
idence was factually insufficient; (2) the military judge erred in denying a
second defense character witness; (3) the staff judge advocate (SJA) erred by
advising the CA that he could not consider a clemency letter from the appel-
lant’s command master chief; and (4) the appellant was denied the effective
assistance of counsel by his trial defense counsel, LT JB.
    On 4 August 2015, we set aside the CA’s action and returned the record to
the Judge Advocate General for remand to an appropriate convening authori-
ty for new post-trial processing.
    On 23 February 2016, the CA again approved the findings and sentence
as adjudged. The appellant filed a supplemental brief and raised three addi-
tional AOEs: (5) the appellant’s due process right to speedy post-trial pro-
cessing was violated; (6) the SJA improperly applied the provisions of Execu-
tive Order (E.O.) 13669 during the appellant’s post-trial processing; 2 and
(7) the White House injected unlawful command influence into the case by
referring a letter from the complaining witness to the appellant’s command.
    After twice requiring LT JB to submit affidavits answering questions
raised by the appellant, we granted the appellant’s motion for a Dubay 3 hear-
ing and returned the record to the Judge Advocate General. 4
    Following the Dubay hearing, the military judge made findings of fact and
conclusions of law, returned the record to this court, and we granted the ap-
pellant’s request to file two supplemental AOEs: (8) the appellant’s due pro-
cess right to timely review of his appeal had been denied; and (9) the appel-
lant is entitled to meaningful relief even without a showing of prejudice when
there is unreasonable post-trial delay. 5
   Having reviewed the record of trial, the record of the Dubay proceeding,
and the pleadings of the parties, we conclude that the appellant received inef-


   2   E.O. 13669 updated the Rules for Courts-Martial.
   3   See United States v. Dubay, 37 C.M.R. 411 (U.S.C.M.A. 1967).
   4 NMCCA Order of 28 Dec 16. We denied a government motion to reconsider en
banc our decision to order a Dubay hearing. See NMCCA Order of 7 Feb 17.
   5   For continuity, we have renumbered the appellant’s supplemental AOEs.



                                            2
                       United States v. Anderson, No. 201400321


fective assistance of counsel. Accordingly, we set aside the findings and sen-
tence. 6
                                 I. BACKGROUND
    The appellant and AA were married in 2004, and had two children to-
gether. By February 2013, however, their marriage was in trouble. On the
night of 1 February 2013, after the appellant and AA got into an argument,
the appellant retrieved a handgun, loaded it, placed it to his head, and said
he wanted to kill himself. Base police responded to the appellant’s on-base
residence, confiscated the gun, and removed him from the home. The appel-
lant was admitted to a behavioral health center for treatment.
    On 6 March 2013, AA filed for divorce and shortly thereafter made the al-
legations giving rise to the appellant’s referred court-martial charges.
A. Trial
    The appellant was charged with two specifications of sexual assault for
having sex with AA when she was incapable of consenting due to impairment
by the medically-prescribed sleep aid, Ambien. Specification 1 alleged that
the appellant sexually assaulted AA “at or near Honolulu, Hawaii, on divers
occasions between on or about 28 June 2012 and on or about 30 June
2012[.]” 7 Similarly, specification 2 alleged that he sexually assaulted AA “at
or [near] Charleston, South Carolina, on divers occasions between on or about
30 June 2012 and on or about 1 February 2013[.]” 8 In addition, the appellant
was charged with a single specification of aggravated assault—by pointing a
loaded firearm at AA—during his suicidal ideation on the night of 1 February
2013.
    AA testified that she was prescribed Ambien because she was experienc-
ing stress and had difficulty sleeping. She explained that after she took Am-
bien, she was “completely out . . . you could probably set off a bomb next to
[her] and [she] wouldn’t even hear it”; and that she was unable to understand
her surroundings or make conscious decisions. 9 AA further testified that she
told the appellant not to have sex with her after she had taken Ambien. Nev-
ertheless, she would often “briefly” be awakened “with [the appellant] on top
of [her]” having sex with her. 10 Although she would try to “push him off” she


   6   Our disposition renders the remaining AOEs moot.
   7   Charge Sheet.
   8   Id.
   9   Record at 75.
   10   Id. at 80.



                                           3
                         United States v. Anderson, No. 201400321


was unable to do so because he was “too strong,” and would eventually fall
back asleep due to the effects of Ambien. 11 AA testified that she knew the
sexual assaults occurred during the two-day charged period in Hawaii be-
cause she remembered that the sexual assaults happened after a doctor’s ap-
pointment she had on 28 June 2012—a pain management appointment she
“had waited six months to get”—and before they transferred from Hawaii on
30 June 2012. 12 According to AA, after she moved with the appellant to
Charleston, the appellant sexually assaulted her “probably a dozen” more
times. 13 Finally, AA testified that while she was trying to talk the appellant
out of killing himself on the night of 1 February 2013 the appellant pointed
the gun at her.
    Besides AA’s testimony, the only other government evidence presented at
trial was the testimony of the appellant’s aunt. The appellant’s aunt testified
about an uncharged incident during a 2009 visit she had with the appellant
and AA in Connecticut. She explained that one night while playing video
games with the appellant after AA had gone to bed, the appellant told her
“I’m going to go upstairs and take advantage of my wife. . . . The Ambien
ought to have kicked in by now . . . .”14 The appellant’s aunt further testified
that after going upstairs she heard a “scared” female voice coming from the
appellant’s bedroom. 15 When she knocked and asked the appellant if every-
thing was alright, the appellant responded, “[e]verything is okay. . . .” 16 The
military judged admitted the aunt’s testimony to show the appellant’s motive,
opportunity, intent, and lack of mistake under MILITARY RULE OF EVIDENCE
(MIL. R. EVID.) 404(b), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012
ed.). 17
    The appellant called one witness, Chief CE, his friend and co-worker.
Chief CE testified that in his opinion AA was untruthful and had a reputa-
tion within the appellant’s command for being untruthful. LT JB attempted
to call Ms. E—Chief CE’s wife—to testify telephonically. The trial counsel ob-
jected, pointing out that the defense did not seek Ms. E’s production and had
provided no notice to the government that Ms. E would testify telephonically.


   11   Id. at 81
   12   Id.
   13   Id. at 82.
   14   Id. at 115-16.
   15   Id. at 118.
   16   Id. at 120.
   17   See Appellate Exhibit (AE) XXVII at 3.



                                             4
                     United States v. Anderson, No. 201400321


The military judge sustained the government’s objection, ruling that Ms. E’s
testimony was not relevant and necessary as it would be cumulative with
that of Chief CE’s, and that LT JB had failed to show good cause why Ms. E’s
telephonic testimony should be allowed in contravention of the court’s rules,
which required counsel to file a motion requesting the use of remote live tes-
timony.
   Ultimately, the military judge acquitted the appellant of the Hawaii sex-
ual assault specification and of the aggravated assault charge, but convicted
him of sexually assaulting AA on divers occasions at or near Charleston. Pur-
suant to RULE FOR COURTS-MARTIAL (R.C.M.) 918(b), MANUAL FOR COURTS-
MARTIAL, UNITED STATES (2102 ed.), the military judge issued special find-
ings concluding that:
    1. After AA takes Ambien, “[s]he does not know what is going on, cannot
make any conscious decisions, and is unable to let anyone know of her choic-
es”; 18
  2. AA and the appellant discussed on several occasions the effect that
Ambien had on AA;
   3. AA asked the appellant on numerous occasions to “not have sex with
her while she was on Ambien as she would like to remember it”; 19
   4. AA is sure she never consented to sexual acts while on Ambien; and
    5. AA was “able to do things seemingly inconsistent with being incapaci-
tated. She was able to make purchases on-line . . . as well as purchased some
apps on her phone” but had no memory of these activities. 20
B. Allegations of ineffective assistance of counsel
   Along with his initial brief before this court, the appellant submitted a
declaration made under penalty of perjury alleging that LT JB failed to use
evidence he provided her and failed to call additional witnesses in his de-
fense. 21
   After we remanded the case for new post-trial processing, the appellant—
with new counsel—submitted matters in clemency, also alleging that LT JB



   18   AE XXXVII at 2.
   19   Id.
   20   Id. at 3.
   21 See Appellant’s Brief of 6 Apr 15 at Appendix 4 (Declaration of Appellant of 3
Apr 15).



                                           5
                       United States v. Anderson, No. 201400321


was ineffective. 22 In a sworn affidavit submitted to the CA, the appellant as-
serted that although he asked LT JB to contact his civilian divorce attorney
because the attorney had useful information, she never did so. In addition,
the appellant submitted an affidavit from the civilian attorney in which the
attorney stated that he was never contacted by LT JB, but that if she had
contacted him, he would have been able to provide her with evidence that AA
made “numerous misrepresentations under oath” during the course of the di-
vorce and custody proceedings. 23 Further, he asserted that AA was also the
subject of a criminal contempt hearing that could have had a “significant im-
pact on the court-martial.” 24
    Finally, the appellant’s second clemency submission also included a tran-
script of a South Carolina family court proceeding and a Goose Creek, South
Carolina, police department identity theft report alleging AA opened a credit
card in the appellant’s name. Both the family court proceeding transcript and
the police report were completed before the appellant’s court-martial. The
appellant forwarded the police report to LT JB prior to his court-martial, and
the divorce proceeding transcript was in the possession of the appellant’s ci-
vilian attorney. The appellant claims LT JB could have, but did not, use this
material at his court-martial.
                                     II. DISCUSSION
A. Law
    We review claims of ineffective assistance of counsel de novo. United
States v. Harpole, 77 M.J. 231, 236 (C.A.A.F. 2018). The Sixth Amendment
entitles criminal defendants to representation that does not fall “below an
objective standard of reasonableness” in light of “prevailing professional
norms.” Strickland v. Washington, 466 U.S. 668, 688 (1984). In order to pre-
vail on a claim of ineffective assistance of counsel, an appellant must demon-
strate both (1) that his counsel’s performance was deficient, and (2) that this
deficiency resulted in prejudice. Id. at 687.
    With respect to Strickland’s first prong, counsel are presumed to be com-
petent and our inquiry into an attorney’s representation is “highly deferen-
tial[.]” Id. at 689. We employ “a strong presumption that counsel’s conduct
falls within the wide range of professionally competent assistance.” Id. The
appellant has the heavy burden of establishing a factual foundation for a
claim of ineffective representation. United States v. Grigoruk, 52 M.J. 312,


   22   See Clemency letter of 4 Jan 16.
   23   Id. at enclosure (2) ¶ 20; Affidavit of Civilian Attorney at 3.
   24   Id.



                                                6
                   United States v. Anderson, No. 201400321


315 (C.A.A.F. 2000). In order to show prejudice under Strickland, “[t]he de-
fendant must show that there is a reasonable probability that, but for coun-
sel’s unprofessional errors, the result of the proceeding would have been dif-
ferent. A reasonable probability is a probability sufficient to undermine con-
fidence in the outcome.” 466 U.S. at 694. “Moreover, a verdict or conclusion
only weakly supported by the record is more likely to have been affected by
errors than one with overwhelming record support.” Id. at 696.
    We will not second-guess strategic or tactical decisions made by the trial
defense counsel unless the appellant can show specific defects in counsel’s
performance that were unreasonable under prevailing professional norms.
United States v. Mazza, 67 M.J. 470, 475 (C.A.A.F. 2009). However, a defense
counsel “must perform a reasonable investigation, or make a reasonable deci-
sion that an avenue of investigation is unnecessary.” United States v. Brown-
field, 52 M.J. 40, 42 (C.A.A.F. 1999); see also Strickland, 466 U.S. at 691 (de-
fense counsel have “a duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations unnecessary.”).
Strategic or tactical decisions made “after thorough investigation of law and
facts relevant to plausible options are virtually unchallengeable.” Id. at 690.
But “strategic choices made after less than complete investigation are rea-
sonable only to the extent that reasonable professional judgments support
the limitations on investigation.” Loving v. United States, 64 M.J. 132, 142
(C.A.A.F. 2006) (internal citations and quotation marks omitted). To deter-
mine whether an investigation was thorough, “we address not what is pru-
dent or appropriate, but only what is constitutionally compelled.” United
States v. Akbar, 74 M.J. 364, 380 (C.A.A.F. 2015) (internal citations and quo-
tation marks omitted). The critical question, therefore, is “whether counsel
made a good faith and substantive effort” to identify the witnesses and in-
formation necessary to reasonably inform their strategic and tactical deci-
sions. Id. at 381. Thus, a decision by the trial defense counsel not to investi-
gate will be assessed for reasonableness. Loving, 64 M.J. at 143.
    Finally, we apply a three-part test to determine whether 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 ad-
       vocacy “fall measurably below the performance . . . [ordinarily
       expected] of fallible lawyers”?
       3. If defense counsel was ineffective, is there “a reasonable
       probability that, absent the errors,” there would have been a
       different result?



                                         7
                        United States v. Anderson, No. 201400321


United States v. Gooch, 69 M.J. 353, 362 (C.A.A.F. 2011) (quoting United
States v. Polk, 32 M.J. 150, 153 (C.M.A. 1991)) (alterations in original).
    Turning to the case before us, we review the Dubay judge’s findings of fact
“under a clearly erroneous standard.” United States v. Wean, 45 M.J. 461, 463
(C.A.A.F. 1997). We find support in the record for the Dubay judge’s findings
and conclude that they are not clearly erroneous. We next address—through
the prism of Strickland and Gooch—those claims that we find constitute defi-
cient performance of counsel.
B. Deficient performance
    1. Failure to conduct a proper investigation and adequately prepare for
trial
         a. Failure to interview potential witnesses
    During the course of his court-martial, the appellant was embroiled in a
highly contentious divorce and custody battle with AA in state court. The di-
vorce case and the timing and substance of AA’s allegations against the ap-
pellant were inextricably linked. During the ongoing divorce and custody liti-
gation, AA testified under oath before a family court judge and made state-
ments to the court related to her marriage and the alleged sexual abuse. In a
pleading filed in his divorce case, the appellant alleged that AA was involved
in an extramarital affair with Petty Officer TF. 25 The appellant sent a copy of
this pleading to LT JB the same day it was filed. Petty Officer TF lived next
door to Ms. DT. When interviewed in connection with AA’s allegations, Ms.
DT told Naval Criminal Investigative Service (NCIS) investigators that Petty
Officer TF told her that “he was in love with [AA] and that they had been in-
timate.” 26 Ms. DT also said that Petty Officer TF—aware that Ms. DT was
going to be interviewed by NCIS about the appellant’s case—instructed her
not to “bring up anything that [was] not necessary.” 27 Petty Officer TF re-
minded Ms. DT “that the main focus of the investigation is on [AA’s] husband
for domestic and sexual assault.” 28
   Ms. DT also contacted the appellant’s command ombudsman 29 stating
that she would like to talk to someone at the command because she was


   25   AE III-D at 21-22.
   26   AE IV-D at 1.
   27   Id.
   28   Id. at 1-2.
   29 “The command ombudsman is a volunteer who . . . supports the command mis-
sion by providing communications, outreach, resource referral, information, and ad-



                                           8
                        United States v. Anderson, No. 201400321


caught in “the middle of the whole situation between [Petty Officer TF and
his wife] and [the appellant and AA] . . . and is tired of hearing [Petty Officer
TF] and [AA] laugh and plot together, and the wrong people take the
blame.” 30 Ms. DT also shared with the ombudsman that Petty Officer TF
came by her house after she was interviewed by NCIS and that “she ha[d]
more information she would like to share with the command.” 31 Ms. DT’s
NCIS interview and the email she sent to the command ombudsman were
provided to LT JB in discovery.
    LT JB never contacted either Ms. DT or Petty Officer TF. Nor did LT JB
seek to introduce evidence of AA’s alleged adulterous affair with Petty Officer
TF under Military Rule of Evidence 412’s “constitutionally required excep-
tion, which . . . permits the admission of ‘evidence the exclusion of which
would violate the constitutional rights of the accused.’” United States v. Gad-
dis, 70 M.J. 248, 252 (C.A.A.F. 2011) (quoting MIL. R. EVID. 412(b)(1)(C)). 32
Whether such evidence would have ultimately been admitted by the military
judge, we cannot say. Indeed, the military judge denied a previous defense
MIL. R. EVID. 412 motion involving an alleged affair between AA and Petty
Officer TF’s wife. 33 It is not clear from the Dubay record, however, that LT JB
understood or remembered that her original MIL. R. EVID. 412 motion—and
the military judge’s ruling—dealt with allegations of an adulterous affair
with Petty Officer TF’s wife and not Petty Officer TF. Indeed, it appears from


vocacy to and for command families.” OPNAV Instruction 1750.1G CH-2, “Navy Fam-
ily Ombudsman Program” of 2 Sep 14 at 3.
    30   AE V-D at 1.
    31   Id.
    32 See also United States v. Ellerbock, 70 M.J. 314 (C.A.A.F. 2011) (Evidence of
the victim’s extramarital affair, where evidence tended to show that the victim had a
motive to fabricate the sexual assault allegations, was constitutionally required un-
der MIL. R. EVID. 412(b)(1)(C), because exclusion of such evidence vitiated the appel-
lant’s Sixth Amendment right to cross-examine witnesses).
    33 See AE V. LT JB argued that evidence of the alleged adulterous relationship
with Petty Officer TF’s wife was relevant to show that AA had lied when she submit-
ted answers to a family court interrogatory denying any adulterous relationship. The
military judge concluded, however, that such evidence was not relevant, material, or
vital to the defense. According to the military judge, the fact that AA lied in a plead-
ing to another court, if true, was relevant to her truthfulness, but the fact that the lie
was about an adulterous relationship was not. The military judge disallowed presen-
tation of the underlying alleged adulterous relationship, but ruled that he would
permit trial defense counsel to ask AA whether she lied in interrogatories relating to
divorce proceedings. He based his ruling on a MIL. R. EVID. 403 balancing test, con-
sidering the conflicting evidence on the underlying alleged affair. AE XXV at 4.



                                              9
                    United States v. Anderson, No. 201400321


the Dubay record, that LT JB believed she had moved the court to admit evi-
dence of an alleged affair between AA and Petty Officer TF, when she had
not. 34 Regardless, LT JB never used any of the information contained in
Ms. DT’s statement or in the ombudsman email.
    In United States v. Gibson, 51 M.J. 198 (C.A.A.F. 1999), the Court of Ap-
peals for the Armed Forces (CAAF) concluded that a trial defense team’s fail-
ure to investigate information in a police report strongly suggesting that the
complaining witness was not credible “was deficient within the meaning of
the first prong of Strickland.” Id. at 202. The CAAF reasoned that the “fail-
ure to investigate was not a tactical decision,” but rather, “a serious oversight
caused by their failure to carefully read the final [police] report.” Id. Like the
trial defense team in Gibson, LT JB did not make an informed strategic or
tactical decision to forego investigating Ms. DT’s statements or AA’s alleged
affair with Petty Officer TF. Rather, her failure was the result of inadvert-
ence and inattention. LT JB was apparently laboring under the mistaken be-
lief that she had already sought and been denied permission to explore AA’s
alleged relationship with Petty Officer TF.
    We do not speculate whether the military judge would have admitted evi-
dence of AA’s alleged affair with Petty Officer TF. But certainly a “reasonably
competent attorney would have realized that pursuing these leads was neces-
sary to making an informed choice among possible defenses[.]” Loving, 64
M.J. at 142 (quoting Wiggins v. Smith, 539 U.S. 510, 525 (2003)). LT JB had
a duty to “perform a reasonable investigation” into Ms. DT’s statements and
AA’s alleged affair with Petty Officer TF, or to “make a reasonable decision
that [such] an . . . investigation [was] unnecessary.” Brownfield, 52 M.J. at
42. She did neither and as a result her performance was deficient.
        b. Failure to contact the appellant’s civilian attorney
   More than simply failing to interview potential witnesses, LT JB failed to
contact the appellant’s civilian divorce attorney. The appellant told LT JB
about the nature of the divorce and custody proceedings. He asked LT JB to
contact his civilian divorce attorney and provided LT JB with the contact in-
formation for his civilian divorce attorney. LT JB failed to ever contact him.
Had she done so, the appellant’s civilian divorce attorney could have provided


   34  See Dubay Record at 190 (discussing which motions she filed, “Yeah, I mean,
Article 412 motion for, you know, [AA’s] relationship with Petty Officer [TF].”);
Dubay Record at 206 (“Q: [Y]ou made a tactical decision not to use [the NCIS state-
ment from Ms. DT] . . .? A: Well, not only that, but I couldn’t use it. The judge pre-
vented me from asking questions about the relationship between . . . Petty Officer
[TF] and AA[.]”).



                                           10
                       United States v. Anderson, No. 201400321


LT JB with information and evidence that she could have used at the appel-
lant’s court-martial to challenge AA’s credibility and impeach her in-court
testimony.
    Notably, had LT JB contacted the appellant’s civilian attorney, the attor-
ney would have provided LT JB with a transcript from a 12 December 2013
family court hearing, in which AA allegedly made numerous false statements
under oath. 35 The civil proceeding was a “rule to show cause” hearing to con-
sider whether AA violated a family court temporary consent order by posting
defaming information about the appellant on social media. During her testi-
mony at that hearing, AA admitted to posting the material but made several
dubious claims that the posts were not about the appellant.
     This “show cause” hearing was continued, with the expectation that the
parties would reach a divorce and custody settlement. When no settlement
was reached, AA was once again ordered to appear in family court on 17 April
2014 to face potential contempt proceedings for both violating the family
court’s temporary consent order—that was the subject of the previous “rule to
show cause” hearing—and for the dubious claims she made under oath at
that previous hearing. 36 The appellant provided LT JB notice of the 17 April
2014 hearing and LT JB successfully sought a continuance of the appellant’s
court-martial from its original 7 April 2014 trial date to 12 May 2014, argu-
ing:
             The alleged victim is facing the very real likelihood of being
         placed into custody for lying to the civilian court in South Caro-
         lina and violating a court order, which she allegedly has done
         on divers occasions. . . . [T]his evidence goes directly to the ve-
         racity of the alleged victim and could be used in cross-
         examination at trial. 37
    However, on 9 April 2014, AA’s attorney notified the family court judge
via email that AA would not be able to appear at the 17 April 2014 family
court hearing because she had surgery scheduled that day. 38 The judge, ap-
parently wary that AA was simply trying to avoid appearing, responded that




   35   See Clemency letter of 4 Jan 16 at enclosure (7); Dubay Record at 123.
   36 See AE XII-Dubay (AE XII-D) at 31 (Dubay Hearing Findings of Fact and Con-
clusions of Law); AE XXIII at 3-4.
   37   AE XIX at 3.
   38   See AE VI-D at 2.



                                             11
                     United States v. Anderson, No. 201400321


he required an affidavit from AA’s physician. 39 The appellant forwarded this
email exchange between AA’s attorney and the civilian judge to LT JB on 12
April 2014—a month before his court-martial was set to begin. Although LT
JB testified during the Dubay proceeding that she read the email, she also
testified that she “wasn’t aware of the contempt hearing,” and admits she did
not reach out to the appellant’s civilian attorney. 40 LT JB’s testimony demon-
strates that she either did not understand the nature and significance of the
family court hearing, did not remember that this was the same family court
“show cause” hearing that provided the impetus for her previous continuance
request, or that she simply chose to ignore it. Inexplicably, LT JB never fol-
lowed up with anyone to ask when the new hearing was scheduled. In short,
LT JB clearly understood the importance of moving the appellant’s court-
martial to follow the contempt proceedings in family court. She requested and
received a continuance on this basis. Yet when the family court hearing was
rescheduled to take place after the appellant’s court-martial, LT JB took no
further action. She neither investigated the underlying facts that apparently
led the family court judge to question AA’s veracity, nor did she seek an addi-
tional continuance of the court-martial.
    Had LT JB simply discussed the civil proceedings with the appellant’s ci-
vilian attorney, she would have learned when AA’s new family court hearing
was scheduled and she could have then sought another continuance to delay
the court-martial until after the family court hearing was completed. 41 Had
she done so, the results of that hearing could have been useful to further im-
peach AA’s credibility—just as LT JB had originally successfully argued in
her prior motion for a continuance.




   39 Id. “In light of the concerns about forgery, I am going to require an affidavit
from the physician that the surgery cannot be delayed, the next available date for the
surgery if it is delayed and that [AA] will suffer irreparable harm from the delay of
the surgery to the next available date.”
   40   Dubay Record at 226 (emphasis added).
   41 In addition, LT JB had successfully moved the court-martial to compel produc-
tion of AA’s phone records. When the court-martial convened on 12 May 2014, the
government had not yet received the records. Although the military judge stated he
would continue the court-martial until the records were produced, LT JB ultimately
decided to forego the phone records and proceed to trial because both she and the ap-
pellant did not want further delay. So even if the military judge refused to grant an-
other continuance based solely on the rescheduled family court hearing, LT JB would
have been able to leverage the government’s failure to produce AA’s phone records in
seeking a continuance.



                                           12
                   United States v. Anderson, No. 201400321


    Applying the first two prongs of Gooch, we conclude that there is no rea-
sonable explanation for LT JB’s failure to contact the appellant’s civilian at-
torney or to otherwise investigate the circumstances behind the rescheduling
of the family court hearing to consider whether AA had violated the court’s
order and provided false testimony under oath. As a result, her advocacy fell
measurably below the performance expected of fallible counsel. We make this
determination in light of LT JB’s asserted defense theory that AA, motivated
by a contentious divorce and custody battle, fabricated her allegations
against the appellant to gain an advantage in those proceedings. AA made a
delayed allegation of repeated sexual abuse, for which there was no corrobo-
rating physical evidence and no confession by the appellant. AA’s credibility
was, therefore, the central issue in the case.
    Like her failure to interview Ms. DT or Petty Officer TF, we find that
LT JB’s failure to contact the appellant’s civilian attorney—especially after
the appellant notified her via email that AA was seeking to reschedule a
hearing that would examine whether or not she had violated a court’s order
and provided false testimony to that court—is similar. LT JB did not make a
tactical decision to forego contacting him. Rather, as in Gibson, LT JB’s fail-
ure to contact the appellant’s civilian attorney was, in our view, at best a se-
rious oversight. Aware that AA was facing a contempt proceeding and poten-
tial incarceration for lying to a civilian court, LT JB failed to investigate the
factual basis for that hearing, and proceeded in her representation of the ap-
pellant without this potentially devastating impeachment evidence.
       c. Failure to contact and interview the NCIS agent
    Upon reporting her allegations, AA provided a seven-page written state-
ment to NCIS. In that statement, she never alleged the appellant used force
against her during the alleged sexual assaults. Nor did she state she ever
physically resisted. AA testified differently during the Article 32, UCMJ, pre-
liminary hearing, claiming that she had, in fact, told the NCIS agent the ap-
pellant used force against her and that she resisted him. She further testified
that the NCIS agent told her those statements weren’t relevant.
   Despite the apparent inconsistency between AA’s NCIS statement and
her sworn testimony at the preliminary hearing, LT JB never interviewed the
NCIS agent who investigated AA’s allegations. Further, she never sought his
production for trial and did not call him as a witness at the court-martial.
Based on AA’s testimony during the Article 32, UCMJ, preliminary hearing,
LT JB had reason to believe the NCIS agent’s testimony would show AA pro-
vided false testimony during the Article 32, UCMJ, preliminary hearing
and—if she testified consistently with her preliminary hearing testimony—
would likely do so again at trial.



                                         13
                         United States v. Anderson, No. 201400321


    Indeed, at trial, AA did testify consistent with her preliminary hearing
testimony. She again claimed she told the investigating agent that the appel-
lant used force against her, that she resisted, and that the agent told her
those facts were not “relevant” and omitted them from her statement. 42 Spe-
cifically, AA testified at the court-martial that she would awaken from her
Ambien-induced sleep while the appellant was having sex with her, that she
would try to push him off of her, but that she was unable to do so because the
appellant pinned her down and was too strong for her.
   LT JB attempted to impeach AA with statements she made to the investi-
gating agent that were inconsistent with her statements at trial. LT JB
pointed to the seven-page written statement AA provided to the investigating
agent:
             [LT JB]: You never said that to NCIS?
             [AA]: Yes, I did.
             [LT JB]: Do you recall your statement to NCIS?
             [AA]: Yeah.
             ....
             [LT JB]: Nowhere in that entire statement do you ever say
         that [the appellant] would pin you down or that you attempted
         to push him off.
             [AA] Because they told me it wasn’t relevant. 43
    Although AA’s responses to these questions should not have been unantic-
ipated, because LT JB had not interviewed the investigating agent, and did
not request the investigating agent be produced for trial, LT JB was left pow-
erless to perfect the impeachment by proving AA twice lied under oath. At no
time during trial did LT JB ask to call the investigating agent via telephone.
She did not ask the trial counsel to stipulate to the investigating agent’s ex-
pected testimony. She did not ask for a continuance to attempt to interview
the investigating agent.
    While the record does not reveal what the NCIS agent’s testimony would
have been, we agree with the Dubay judge’s conclusion that AA’s “asser-
tion”—that the NCIS agent told her the appellant’s use of force and her at-
tempts to push him off were not relevant—“is so incredible on its face that it



   42   Record at 102.
   43   Id. at 101-02.



                                           14
                          United States v. Anderson, No. 201400321


impacts [AA’s] credibility.” 44 Thus, to the extent the defense’s theory was to
cast AA as a liar, LT JB should have been prepared to introduce evidence
that AA demonstrably lied under oath during the Article 32, UCMJ, prelimi-
nary hearing and at the court-martial. 45 Such perfected impeachment could
have changed the outcome of the trial. Although LT JB did try to impeach AA
with the prior inconsistent statement, having an impeachment witness—the
investigating agent—to directly contradict AA’s in-court testimony that “they
told me it wasn’t relevant,” would have been a prudent decision. 46
   Although LT JB attempted to frame her decision not to call the investigat-
ing agent as a tactical decision, this explanation does not comport with the
timeline of events. LT JB’s failure to adequately prepare a defense left her
with little option to call the investigating agent at trial.
    During the Dubay hearing, LT JB testified that after reading AA’s NCIS
interview, she emailed the investigating agent, who by that time had de-
ployed to Iraq, and asked how they could best communicate. The agent re-
sponded and indicated that email would be best. However, after sending the
agent a number of questions and multiple unsuccessful attempts to get him
to respond, LT JB did not list him as a witness or seek to have him produced.
   During the Dubay hearing, LT JB explained her rationale for not calling
the investigating agent to testify:
             Based on the in-court demeanor of both the military judge
          and [AA], and my reexamining [AA] on that particular state-
          ment, I did not think the military judge found [AA’s] statement
          to be credible, and [because the investigating agent] was in
          Baghdad, I did not call him to testify to impeach [AA’s] state-
          ment. 47
   “A trial defense counsel’s decision on whether to call a witness is a tactical
decision,” Akbar, 74 M.J. at 390 (citations omitted), and tactical decisions
made by counsel will not generally be second-guessed on appeal. Mazza, 67


    44   AE XII-D at 28.
    45 Impeachment would likely have been proper under MIL. R. EVID. 608(b) for the
apparent lie under oath during the Article 32, UCMJ, preliminary hearing, as a prior
inconsistent statement (failing to allege force and resistance in her initial report) and
proper impeachment by contradiction (provided the investigating agent could testify
that AA never alleged force or that she resisted in her interview and that he denied
telling AA to omit these statements because they were not “relevant”).
    46   Record at 102.
    47   Affidavit of LT JB of 22 Dec 16 at 4.



                                                 15
                        United States v. Anderson, No. 201400321


M.J. at 475. As we noted earlier, however, tactical decisions made after “less
than [a] complete investigation are reasonable only to the extent that reason-
able professional judgments support the limitations on investigation.” Loving,
64 M.J. at 142 (internal citations and quotation marks omitted).
    Here, LT JB’s pre-trial preparation was deficient long before AA testified
at trial. Discovery and witness production requests were due prior to trial
and LT JB never requested that the investigating agent be produced. Moreo-
ver, LT JB had never talked to the investigating agent. Preparation had to
have come before the 12 May 2014 trial date and certainly before LT JB’s in-
court observation that the military judge’s “demeanor” indicated to her that
he did not find AA’s testimony credible. Although we recognize that the in-
vestigating agent was less than cooperative and failed to answer LT JB’s e-
mailed questions, 48 LT JB did not attempt to use any other reasonable
means—the trial counsel, the NCIS chain of command, or the military
judge—to compel the investigating agent’s response to the defense questions
or to submit to an interview.
    By resting her case without presenting any evidence to contradict AA’s
testimony on critical inconsistencies in her claims on the most serious charg-
es in the case, LT JB left untouched a critical avenue of impeachment. In-
deed, if the investigating agent had testified that AA never claimed that the
appellant used force to pin her down, that AA never claimed she physically
resisted, that he never told AA that force was not relevant, and that he never
told AA to omit any reference to the appellant using force from her state-
ment, this evidence would have directly refuted AA’s in-court testimony and
would have permitted LT JB to forcefully argue that AA twice perjured her-
self on the witness stand. Such evidence could have made a significant differ-
ence to the military judge when he assessed AA’s credibility—which was par-
amount in this case given the lack of corroborating evidence. We conclude LT
JB’s pre-trial preparation here fell “measurably below the performance ordi-
narily expected of fallible lawyers[.]” Gooch, 69 M.J. at 362.
    2. Failure to effectively impeach AA
   Prior to his court-martial, the appellant forwarded LT JB a Goose Creek,
South Carolina, police report indicating that AA was arrested for identity
fraud on 4 April 2014, after allegedly attempting to open a credit card in the
appellant’s name. 49 The Goose Creek Police Department determined that the

    48 See Dubay Record at 116 (“I try to avoid speaking to defense counsel pretrial.”);
Id. at 119 (“[MJ]: So if I were a defense attorney and I left you a message to return
my call, would you return my call? [the investigating agent]: No, sir, I would not.”).
    49   See Clemency letter of 4 Jan 16 at enclosure (5.c.).



                                               16
                      United States v. Anderson, No. 201400321


application for credit came from an IP address issued to AA, and located at
AA’s address. AA denied the allegations to the police, asserting improbably
that the appellant had possibly hacked into her home wireless network and
“done it himself in order to get back at her.” 50 Alternatively, AA theorized
that she had filled out an application in her husband’s name after taking
Ambien, and did not remember doing it. In a subsequent phone conversation
with the Goose Creek Police Department, AA provided yet another alterna-
tive, explaining that one of the appellant’s friends—who resided in Louisi-
ana—“would be able to hack into a computer.” 51
    This evidence suggests AA committed a crime of dishonesty; that she
committed that crime against the appellant; that she was confronted by po-
lice and falsely denied that crime; that she falsely accused her husband of the
very crime she was accused of committing; and that she blamed her actions
on her use of Ambien. That AA gave three different, implausible explanations
further undercuts her credibility and further suggests she committed identity
fraud against the appellant. These facts could have been used to devastating
effect against AA to establish her untruthfulness and bias against the appel-
lant. 52
    LT JB never questioned AA about these allegations or otherwise sought to
call the interviewing detective as evidence of bias pursuant to MIL. R. EVID.
608(c). 53 Despite the damaging evidence developed by the Goose Creek Police
Department that AA committed identity fraud, and AA’s dubious explanation
that the appellant or a friend of his “hacked” into her home wireless network,
LT JB’s only questions related to the Goose Creek investigation concerned
the side effects of Ambien and AA’s assertion that she might have filled out
the credit application after having taken the drug. LT JB’s failure to fully de-
velop these allegations against AA and to effectively impeach her with this




   50   Id. at Bates No. 00363.
   51 Id. Goose Creek police contacted the friend, who explained that he was not a
hacker, “wouldn’t know how to hack into a wireless network,” and had only been to
South Carolina once in April 2013. Id. at Bates No. 00364.
   52 It is not for this court to say whether AA committed this offense, and the court
does not draw this conclusion. However, the record shows trial defense counsel had a
good faith basis to pursue relevant and admissible lines of inquiry, which the trial
defense counsel failed to pursue.
   53 “Bias, prejudice, or any motive to misrepresent may be shown to impeach the
witness either by examination of the witness or by evidence otherwise adduced.” MIL.
R. EVID. 608(c).



                                           17
                   United States v. Anderson, No. 201400321


information falls “measurably below the performance ordinarily expected of
fallible lawyers[.]” Gooch, 69 M.J. at 362.
C. Prejudice
   Having found that LT JB’s representation of the appellant was deficient,
we next test for prejudice. That is, is there a “reasonable probability that, ab-
sent the errors,” there would have been a different result. Polk, 32 M.J. at
153 (citations omitted).
   1. Cumulative error
    In United States v. Dollente, 45 M.J. 234 (C.A.A.F. 1996), the CAAF found
that a combination of evidentiary errors cumulatively affected the case and
prejudiced the appellant. The court explained: “although individually each
error in this case does not warrant reversal, the combined effect of these . . .
errors was so prejudicial so as to strike at the fundamental fairness of the
trial.” Id. at 236 (internal citation and quotation marks omitted). While Dol-
lente did not involve allegations of ineffective assistance of counsel, the CAAF
has found that it is appropriate “to consider whether defense counsel’s con-
duct of the trial as a whole might have been defective within the meaning of
Strickland, even though individual oversights or mistakes standing alone
might not satisfy Strickland.” Loving, 41 M.J. at 252 (internal citation omit-
ted).
   2. Analysis
    This was a close case. The government’s proof relied almost exclusively on
the credibility of AA. Thus, any evidence, either admitted extrinsically or
used to impeach AA’s testimony, was pivotal to an effective defense. LT JB’s
failure to properly investigate and pursue evidence beneficial to the appel-
lant’s defense—whether from Ms. DT, Petty Officer TF, the appellant’s civil-
ian attorney, the investigating NCIS agent, or the Goose Creek Police De-
partment—“cannot be viewed as harmless, non-prejudicial error.” Gibson, 51
M.J. at 201.
    Indeed, had LT JB simply established communication with and coordi-
nated her efforts with the appellant’s civilian divorce attorney, as the appel-
lant repeatedly requested, LT JB would likely have been able to continue the
court-martial until such time that the civilian family court proceedings—
where AA was facing potential contempt charges—were completed. She could
have then used the results of those proceedings and any testimony from AA
to impeach her at the court-martial. Likewise, evidence from the Goose Creek
Police Department would have severely undermined AA’s credibility, and tes-
timony from the investigating agent would have likely proved that AA lied
under oath at the preliminary hearing and court-martial.



                                         18
                      United States v. Anderson, No. 201400321


   The government argues that even assuming LT JB had pursued all of the
evidence that might have impacted AA’s credibility, “none of the witnesses or
evidence” would have rebutted the appellant’s aunt’s testimony admitted un-
der MIL. R. EVID. 404(b) to show the appellant’s motive, plan, or intent. 54
    The MIL. R. EVID. 404(b) testimony regarding the 2009 Connecticut inci-
dent, as described by the appellant’s aunt, was equally relevant to the allega-
tions that the appellant sexually assaulted AA in Hawaii, and yet the mili-
tary judge acquitted the appellant of that specification. Despite AA’s testimo-
ny that the appellant had sex with her after she had taken Ambien during
the charged timeframe—after her long-awaited doctor’s appointment on 28
Jun 2012 and before she and the appellant transferred on 30 June 2012—the
military judge was not convinced beyond a reasonable doubt of the appel-
lant’s guilt. So, although we agree the MIL. R. EVID. 404(b) testimony was
important to the government’s case, AA’s credibility was paramount as she
provided the only direct evidence of the charged offenses. There were no other
witnesses, no medical evidence, and no admissions or other statements from
the appellant. The government’s case rested predominately upon the credibil-
ity of AA’s testimony.
    AA’s credibility was already in question after LT JB effectively impeached
her regarding her allegations that the appellant pointed a gun at her during
his suicidal ideation. The military judge acquitted the appellant of aggravat-
ed assault. The two acquittals in this case reveal the vital role AA’s credibil-
ity played in the military judge’s findings. To be sure, in finding the appellant
guilty, the military judge specifically concluded that AA “never consented to
sex acts while on Ambien,” that AA told the appellant “to not have sex with
her while she was on Ambien,” and that AA and the appellant discussed the
effects of Ambien on several occasions. 55 All of these findings—based solely on
AA’s testimony—were critically important to the military judge’s guilty find-
ing. A reasonably thorough investigation by LT JB during her pretrial prepa-
ration would have garnered even more evidence to further erode AA’s credi-
bility.
   Although any one of LT JB’s errors, standing alone, may not clear the
high hurdle established in Strickland, their cumulative effect “undermine[s]
our confidence in the outcome.” Strickland, 466 U.S. at 694. Given that the
military judge’s finding of guilty was only “weakly supported by the record[,]”
we find that there is a reasonable probability that any further erosion of AA’s
credibility through competent investigation and cross-examination would


   54   Appellee’s Supplemental Answer of 12 Apr 18 at 16.
   55   AE XXXVIII at 3.



                                            19
                  United States v. Anderson, No. 201400321


have changed the result of the court-martial. Id. at 696. Accordingly, we con-
clude that the appellant was not afforded effective assistance of counsel as
guaranteed by the Sixth Amendment.
                              III. CONCLUSION
   The findings and sentence are set aside, and the record is returned to the
Judge Advocate General of the Navy for remand to an appropriate CA with
authority to order a rehearing.
   Senior Judge FULTON and Senior Judge PRICE concur.


                                   FOR THE COURT




                                   RODGER A. DREW, JR.
                                   Clerk of Court




                                       20
