UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                            BURTON, HAGLER, and FLEMING
                               Appellate Military Judges

                            UNITED STATES, Appellee
                                         v.
                       Private First Class NOAH A. YUSUFI
                          United States Army, Appellant

                                   ARMY 20170453

                             Headquarters, Fort Carson
                         Tiernan P. Dolan, Military Judge
                   Colonel Gregg A. Engler, Staff Judge Advocate


For Appellant: Major Todd W. Simpson, JA; Captain Augustus Turner, JA (on
brief).

For Appellee: Lieutenant Colonel Eric K. Stafford, JA; Major Lily C. Geyer, JA (on
brief).


                                    11 January 2019

                               ---------------------------------
                               SUMMARY DISPOSITION
                               ---------------------------------

Per Curiam:

       A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of two specifications of sexual assault, one specification of
abusive sexual contact, and one specification of negligent discharge of a firearm, in
violation of Articles 120 and 134, Uniform Code of Military Justice, 10 U.S.C. §§
920, 934 (2012) [hereinafter UCMJ]. The convening authority approved the
adjudged sentence of a dishonorable discharge and confinement for eighteen months.

       The case is before this court for review under Article 66, UCMJ. Appellant
personally asserts several errors, inter alia, pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982). Two of these assertions warrant brief discussion, but
not relief. 



 We have also considered the two assigned errors in appellant’s brief, neither of
which warrant discussion or relief.
YUSUFI—ARMY 20170453

        First, appellant asserts that his trial defense counsel were ineffective because
they: (1) did not immediately alert the military judge of an alleged violation of his
sequestration order by witnesses and victims, (2) did not recall and confront PV2 SC
to impeach her credibility, (3) conceded the admissibility of DW’s reaction to his
shotgun in closing argument, (4) did not provide evidence in the post-trial 39(a)
hearing request, (5) did not object to the admissibility of his shotgun, and (6) did not
elicit evidence that appellant provided oral sex to PV2 SC. For several reasons, we
find these assertions do not warrant relief.

       For example, several of appellant’s allegations reference tactical decisions
specifically reserved for defense counsel. “As the Supreme Court has emphasized, a
reviewing court ‘must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.’” United States v.
Tippit, 65 M.J. 69, 76 (C.A.A.F. 2007) (quoting Strickland v. Washington, 466 U.S.
668, 689 (1984)).

       Furthermore, “we need not determine whether any of the alleged errors [in
counsel’s performance] establish[] constitutional deficiencies under the first prong
of Strickland . . . [if] any such errors would not have been prejudicial under the high
hurdle established by the second prong of Strickland.” Id. (citation omitted)
(alterations in original). At a minimum, several of appellant’s assertions fall into
this category, as we find there was no reasonable probability that, absent the alleged
errors, the result would have been different. See United States v. Datavs, 71 M.J.
420, 424 (C.A.A.F. 2012). As one example, the military judge stated he would
“treat the defense recitation of fact [in the post-trial 39(a) request] as being factual;
the court does so arguendo in the absence of any evidence submitted by the
defense.” This factual adoption undercuts any argument of prejudice.

       For the alleged sequestration violation, we note the defense counsel stated in
an affidavit that she “informed the Government counsel,” who subsequently “stated
they would admonish the witnesses.” We do not find deficient performance, much
less prejudice, based on the defense counsel’s actions.

       Overall, upon our review of the entire record of trial in conjunction with the
additional documents submitted on appeal, we disagree with each assertion of
ineffective assistance of counsel and further conclude an evidentiary hearing is not
warranted under United States v. DuBay, 17 U.S.C.M.A. 147, 37 C.M.R. 411 (1967).

       Second, appellant alleges that the record of trial was incomplete because the
military judge’s ruling in reference to a post-trial 39(a) session was not included.
However, as part of another filing, appellant submitted a sworn affidavit from his
trial defense counsel that included the “Government Response to Defense Motion for
Post-Trial 39(a)” and the “Court Ruling on the Motion for Post-Trial 39(a).” The
trial defense counsel’s affidavit asserted, under penalty of perjury, that the attached
documents “are true and accurate copies pertinent to this issue and they have been

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YUSUFI—ARMY 20170453

maintained in the ordinary course of business by me and the Ft. Carson Trial
Defense Office.” Under such circumstances, we believe no further remedial action
is required. We have considered the military judge’s ruling as part of our Article
66(c) review and conclude appellant is not entitled to any relief.

                                  CONCLUSION

      Upon consideration of the entire record, the findings of guilty and the
sentence are AFFIRMED.

                                          FOR THE
                                          FOR THE COURT:
                                                  COURT:




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




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