                                    IN THE CASE OF


                             UNITED STATES, Appellee

                                             v.

               Jacques SAINTAUDE Jr., Private First Class
                          U.S. Army, Appellant

                                      No. 04-0178
                              Crim. App. No. 9801647

       United States Court of Appeals for the Armed Forces

                             Argued January 26, 2005

                              Decided June 23, 2005

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

                                         Counsel

For Appellant: Mary T. Hall, Esq., (argued); Captain Eilin J.
Chiang and Captain Karen W. Riddle (on brief); Colonel Robert D.
Teetsel, Lieutenant Colonel Mark Tellitocci, and Major Allyson
G. Lambert.

For Appellee: Captain Edward E. Wiggers (argued); Colonel
Steven T. Salata, Lieutenant Colonel Mark L. Johnson, Major
Natalie A. Kolb, and Captain Janine P. Felsman (on brief).

Military Judges: Richard J. Hough (trial) and Donna L. Wilkins
(sentence rehearing)




        THIS   OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION .
United States v. Saintaude, No. 04-0178/AR



     Judge EFFRON delivered the opinion of the Court.

     At a general court-martial composed of officer members,

Appellant was convicted, contrary to his pleas, of rape, robbery

(two specifications), adultery, and communication of a threat

(three specifications), in violation of Articles 120, 122, and

134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 920,

922, 934 (2000).   He was sentenced to a dishonorable discharge,

confinement for forty-eight years, forfeiture of all pay and

allowances, and reduction to the grade of E-1.   The convening

authority approved these results and credited Appellant with 194

days of confinement for pretrial confinement served.    The United

States Army Court of Criminal Appeals set aside the three

specifications of communicating a threat, and affirmed the

remaining findings.   The court also concluded that Appellant’s

trial defense counsel provided ineffective assistance during

sentencing, and ordered a rehearing on the sentence.    United

States v. Saintaude, 56 M.J. 888 (A. Ct. Crim. App. 2002).

     At the rehearing, a panel consisting of officers and

enlisted members sentenced Appellant to a dishonorable

discharge, confinement for thirty-five years, forfeiture of all

pay and allowances, and reduction to the grade of E-1.   The

convening authority approved the sentence and credited Appellant

with 1,615 days of presentence confinement credit and 196 days



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United States v. Saintaude, No. 04-0178/AR


of administrative credit for illegal presentence confinement.

The Court of Criminal Appeals affirmed in an unpublished

opinion.   United States v. Saintaude, Army 9801647 (A. Ct. Crim.

App. Oct. 15, 2003).

     On Appellant’s petition, we granted review of the following

issues, which primarily concern the findings phase of

Appellant’s initial court-martial:

           I.    WHETHER APPELLANT WAS DEPRIVED OF HIS RIGHT
                 TO CONFLICT-FREE COUNSEL WHEN ALL FIVE OF
                 HIS COUNSEL LABORED UNDER MENTALLY-
                 COMPETING PERSONAL INTERESTS.

           II.   WHETHER APPELLANT RECEIVED INEFFECTIVE
                 ASSISTANCE OF COUNSEL ON THE MERITS
                 WHEN HIS COUNSEL FAILED TO PREPARE AND
                 EXECUTE A REASONABLE DEFENSE STRATEGY,
                 INCLUDING FAILURE TO USE CRITICAL
                 IMPEACHMENT EVIDENCE, AND WHEN HIS
                 MILITARY COUNSEL FAILED TO ADVISE
                 APPELLANT THAT HE BELIEVED THAT
                 CIVILIAN COUNSEL WAS INCOMPETENT,
                 INEFFECTIVE, AND UNPROFESSIONAL.

     We shall first consider Issue I, Appellant’s contention

that the personal interests of his attorneys conflicted with

their duty of professional loyalty to their client.   We shall

then turn to Issue II, in which Appellant alleges specific

deficiencies in the performance of the various attorneys who

represented him before and during trial.   For the reasons set

forth below, we conclude that neither the alleged conflicts of

interest nor the alleged defects in performance of counsel




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United States v. Saintaude, No. 04-0178/AR


resulted in prejudicial error, and we affirm.   See Strickland v.

Washington, 466 U.S. 668, 686, 694 (1984).



                             I. BACKGROUND

     From the time Appellant was charged until the beginning of

the trial on the merits, Appellant was represented by a number

of different attorneys, at different times, in various

combinations.   The relationships among counsel, and between

counsel and Appellant, were not always harmonious.

     A. Representation in the separate military and civilian
                           proceedings

     Initially, Appellant faced separate civilian charges and

military criminal charges.    In the civilian proceedings, brought

by Colorado state authorities, he was represented by two

civilian attorneys, Mr. HG and Ms. C.    The civilian charges,

which consisted of two robbery specifications, alleged that

Appellant robbed two 7-Eleven convenience stores while

pretending to be concealing a firearm.

     In the military proceedings, Appellant was represented

initially by Captain (CPT) L, who withdrew from the case because

he previously represented one of the alleged victims.    CPT L was

replaced by CPT RB.   The military charges consisted of rape,

adultery, and three specifications of the communication of a

threat.



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United States v. Saintaude, No. 04-0178/AR




        B. Representation in the exclusive military proceedings

        After civilian authorities relinquished jurisdiction over

the two robbery charges, Appellant retained Mr. HG and Ms. C to

represent him in the military proceedings.    Appellant continued

to retain CPT RB as his military counsel.    In addition, CPT MC,

a defense attorney stationed at Fort Leavenworth, Kansas, was

eventually detailed as an assistant defense counsel at CPT RB’s

request.

   C.    The prosecution’s motion to disqualify civilian counsel

        At the initial pretrial session under Article 39(a), UCMJ,

10 U.S.C. § 839(a) (2000), the prosecution moved to disqualify

the civilian defense counsel, Mr. HG, based on allegations that

he had attempted to bribe a prosecution witness.    The

prosecution also recommended disqualification of the other

civilian counsel, Ms. C, who was engaged to Mr. HG and shared

his law practice.     In a subsequent investigation, the Army

determined that the bribery allegations against Mr. HG were

unsupported.

                 D.   Replacement of civilian counsel

        At the next Article 39(a) session, while the prosecution’s

disqualification motion was pending, the two civilian counsel

moved to withdraw from representing Appellant.    They also

identified Mr. D, who was present as a spectator in the


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United States v. Saintaude, No. 04-0178/AR


courtroom, as the attorney who would replace them as Appellant’s

civilian counsel.   After determining that Appellant agreed to

the withdrawal of his civilian defense counsel, and that he

intended to retain Mr. D, the military judge granted the motion

by Mr. HG and Ms. C to withdraw.

           E.   Defense request to remove military counsel

     At the same session, Appellant asked the military judge to

remove his military defense counsel, CPT RB, based on

Appellant’s assertion that CPT RB had revealed confidences to

the prosecution.    The military judge declined the request,

noting that CPT RB was needed as a liaison between the new

civilian defense counsel, Mr. D, and the remaining military

defense counsel, CPT MC, neither of whom were located in the

Fort Carson area.   The military judge added, however, that he

would reconsider Appellant’s request to remove CPT RB after the

other counsel had an opportunity to prepare for trial.    In a

subsequent proceeding, at the outset of the trial on the merits,

the military judge specifically addressed the issue of whether

Appellant wanted CPT RB to serve as his military defense

counsel.   Appellant responded that he wanted to retain CPT RB.

The Army conducted a separate investigation into the allegation

that CPT RB improperly revealed defense confidences and

concluded that the allegation was unfounded.




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United States v. Saintaude, No. 04-0178/AR


           F.      Disagreements regarding trial strategy

      During preparations for trial, the relationship between

CPT MC and Mr. D deteriorated to the point where CPT MC filed a

memorandum with the Regional Defense Counsel asserting that Mr.

D was “incompetent and intend[ed]to represent the accused in a

manner that [was] ineffective and unprofessional.”    The

memorandum primarily criticized Mr. D’s intent to focus on what

CPT MC viewed as unsubstantiated allegations of unlawful command

influence and command-level drug abuse.    CPT MC stated that the

unlawful command influence allegation initially was raised by

Mr. HG, who apparently claimed that there was a conspiracy to

frame Appellant.    CPT MC added that Mr. D improperly accepted

the assertion that the entire case was infected with unlawful

command influence without ascertaining the facts or considering

the relevant principles of law.    CPT MC stated that he

repeatedly told Mr. D that he did not agree with his assessment

and repeatedly tried to focus Mr. D away from the conspiracy and

onto the relevant issues of the case.    CPT MC viewed the

unlawful command influence strategy as being dictated by Mr. D’s

friendship with the prior defense counsel, Mr. HG.

     The memorandum also criticized Mr. D for delays in

obtaining relevant files from Mr. HG.    CPT MC attributed the

delay to Mr. D’s unwillingness to press the issue in light of

his friendship with Mr. HG.    According to CPT MC, Mr. D’s


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United States v. Saintaude, No. 04-0178/AR


representation was marred by an inability to address the

conflict between the duties to his client and his desire to

vindicate his friend, Mr. HG.

        The memorandum also expressed CPT MC’s concern that Mr. D’s

performance reflected unfamiliarity with the military and

military justice system.    CPT MC stated he “repeatedly explained

to [Mr. D] the procedure for obtaining expert assistance[,]” yet

Mr. D failed “to acknowledge the necessary steps that needed to

be taken to secure expert assistance.”    He also mentioned that

Mr. D previously had been suspended from the practice of law

based upon substance abuse and that CPT MC had heard unfavorable

comments from a public defender familiar with Mr. D’s practice.

CPT MC concluded his memorandum with the notation:    “I do not

believe my efforts to focus [Mr. D] on the relevant issues of

the case have been successful or will be successful in the

future . . . . I believe further participation in this case

could jeopardize CPT [RB’s] and my good standing to practice

law.”

        CPT MC asked the regional defense counsel to arrange either

for the decertification of Mr. D or to permit the military

defense counsel to withdraw from the case.    The record does not

reflect what action, if any, the regional defense counsel took

in response to CPT MC’s memorandum.




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United States v. Saintaude, No. 04-0178/AR


     Ultimately, Mr. D was not decertified; neither CPT MC nor

CPT RB asked the military judge for permission to withdraw; nor

did they bring any of these matters to the attention of the

military judge or Appellant.   The defense obtained expert

assistance; Mr. HC transmitted the requested files to the

defense; and the defense did not file any motions regarding

unlawful command influence or command-level drug abuse.



    G.   Evidence on the merits presented by the prosecution

     During Appellant’s trial, the prosecution introduced

evidence concerning two convenience store robberies that

occurred on the same day, each committed by a male pretending to

have a concealed firearm.   The prosecution presented evidence

that each of the robberies was committed by Appellant, including

recorded surveillance videos and the testimony of employees

working at the convenience stores at the time of the robberies.

Additionally, Private (PVT) D, a fellow servicemember and friend

of Appellant, identified the robbery perpetrator in the

surveillance videos as Appellant.    PVT D also stated that the

person in the videos was wearing a jacket he had loaned to

Appellant.

     With respect to the rape charge, the prosecution presented

the testimony of Ms. P, who provided details of the charged

offense and identified Appellant as the perpetrator.   Ms. P


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United States v. Saintaude, No. 04-0178/AR


testified that she received a call from a man who said that he

was from her husband’s unit.   Shortly thereafter, the man came

to her apartment and said that Ms. P’s husband had spoken to him

about needing automobile insurance.    During their conversation,

she became uncomfortable with the situation and asked him to

leave.    He refused and raped her while her five-month old son

was nearby.   In the course of leaving the apartment, he told her

that if she reported the incident her husband would lose his job

and she would lose her family.    The sexual assault nurse who

examined Ms. P testified that the results of the examination

were consistent with rape.

       A friend of Ms. P, who lived in the same apartment complex,

provided testimony of a similar incident on the same day.     She

testified that a man called her, identified himself as from her

husband’s unit, and then came to her apartment.   She did not let

him in.    Later in the day, while at a gas station, a man

approached her and said that he had been at her apartment

earlier.   She subsequently reported the incident to the police,

provided a description of the man similar to the description

given to the police by Ms. P, and identified Appellant as this

man.

       A DNA expert testified that there was a positive match

between Appellant’s DNA and the sperm extracted from Ms. P

during her sexual assault exam.    The expert stated that a


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United States v. Saintaude, No. 04-0178/AR


positive match between the two samples would only occur in “1 in

4 million 500 thousand African-Americans; 1 in 5 million 300

thousand Caucasians; and 1 in 1 million 900 thousand

Southwestern Hispanics.”

                H.   The defense position on the merits

        The defense endeavored to convince the court-martial that

Appellant was not the perpetrator of the robberies or of the

rape.    The defense raised the possibility that another soldier

from Appellant’s unit, Private First Class JJ -- who bore a

strong resemblance to Appellant -- committed the crimes.     The

defense also offered an alibi defense through the testimony of a

coworker that Appellant was at work at the time Ms. P was raped.

        The defense challenged the reliability of the evidence

identifying Appellant as the perpetrator of the charged crimes.

The defense sought to undermine the testimony of the convenience

store employees on the grounds that their identification

testimony was biased and tainted.      The defense challenged the

identifications of Appellant by Ms. P and her friend on grounds

that the photo lineup was biased and the identifications were

tainted by the discussion of the lineup between Ms. P and her

friend.    The defense also sought to demonstrate that Ms. P’s

identification was further tainted by a discussion that she had

with her husband regarding Appellant’s presence in the lineup.




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United States v. Saintaude, No. 04-0178/AR


     The defense challenged the testimony of PVT D, who had

identified Appellant on the convenience store’s surveillance

videotapes.   According to the defense, PVT D was biased, and was

trying to protect himself from prosecution.     The defense noted

that PVT D had tested positive for cocaine, and, at one point,

had been considered a suspect for the charges facing Appellant.

     The defense also challenged the DNA evidence, focusing on

Appellant’s origins in the Virgin Islands.      According to the

defense, the DNA database maintained by the FBI did not provide

an accurate basis for matching the DNA of Appellant because

Appellant came from a subpopulation not proportionately

represented in the database.



                      II. CONFLICTS OF INTEREST

                        A. Standard of review

     In the first granted issue, Appellant asserts that his

attorneys labored under conflicts of interest, and that these

conflicts resulted in the denial of his constitutional right to

the effective assistance of counsel.   U.S. Const. amend. VI.      In

particular, Appellant claims his counsel had the following

conflicts:    CPT RB leaked confidential defense information; Mr.

HG and Ms. C were more concerned with allegations of bribery

than with his case; CPT MC placed his concern for his license

over his loyalty to Appellant; and Mr. D placed his friendship


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United States v. Saintaude, No. 04-0178/AR


with Mr. HG and Ms. C over his duty to Appellant.   We review

such claims de novo.   See United States v. Key, 57 M.J. 246, 249

(C.A.A.F. 2002).

       An appellant “who seeks to relitigate a trial by claiming

ineffective assistance of counsel must surmount a very high

hurdle.”   United States v. Moulton, 47 M.J. 227, 229 (C.A.A.F.

1997).   Such an appellant must demonstrate:   (1) a deficiency in

counsel’s performance that is “so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant by the

Sixth Amendment”; and (2) that the “deficient performance

prejudiced the defense . . . [through] errors . . . so serious

as to deprive the defendant of a fair trial, a trial whose

result is reliable.”   Id. at 229 (quoting Strickland, 466 U.S.

at 687).   If we conclude that any error would not have been

prejudicial under the second prong of Strickland, we need not

ascertain the validity of the allegations or grade the quality

of counsel’s performance under the first prong.   466 U.S. at

697.   See also United States v. McConnell, 55 M.J. 479, 481

(C.A.A.F. 2001).

       Conflicts of interest, like other actions by an attorney

that contravene the canons of legal ethics, do not necessarily

demonstrate prejudice under the second prong of Strickland.       See

Mickens v. Taylor, 535 U.S. 162, 175-76 (2002); Nix v.

Whiteside, 475 U.S. 157, 165 (1986).    Although cases involving


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United States v. Saintaude, No. 04-0178/AR


concurrent representation of multiple clients have been treated

as inherently prejudicial, see Cuyler v. Sullivan, 446 U.S. 335,

348-49 (1980), “‘not all attorney conflicts present comparable

difficulties,’ and . . . most cases will require specifically

tailored analyses in which the appellant must demonstrate both

the deficiency and prejudice under the standards set by

Strickland.”   United States v. Cain, 59 M.J. 285, 294 (C.A.A.F.

2004) (quoting Mickens, 535 U.S. at 175-76).

     Appellate courts have applied varying approaches to the

question of whether a conflict of interest should be viewed as

inherently prejudicial if the conflict does not involve multiple

representation.   Compare United States v. Hearst, 638 F.2d 1190,

1193 (9th Cir. 1980) (applying an inherent prejudice standard to

a conflict arising outside a multiple representation situation),

with Beets v. Sullivan, 65 F.3d 1258, 1265-66 (5th Cir. 1995)

(applying the Strickland standard to a conflict arising outside

the multiple representation situation).   Under our precedents,

the question of whether there is inherent prejudice in a

conflict between the self-interest of an attorney and the

interests of the client must be assessed on a case-by-case

basis.   In United States v. Babbitt, 26 M.J. 157 (C.M.A. 1988),

for example, we concluded that a conflict involving sexual

relations during trial between a male civilian attorney and his




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United States v. Saintaude, No. 04-0178/AR


married female military client should be tested for actual

prejudice, and we determined that there was no prejudice.

     In Cain, 59 M.J. at 295, we focused on the specific

circumstances of the case -- a homosexual relationship between a

military attorney and a military client, “involving an

attorney’s abuse of a military office, a violation of the duty

of loyalty, fraternization, and repeated commission of the same

criminal offense for which the attorney’s client was on trial,”

all of which was left unexplained as a result of defense

counsel’s suicide, which occurred shortly after being questioned

about these matters by a superior.    In light of those factors,

we concluded that “[t]he uniquely proscribed relationship before

us was inherently prejudicial and created a per se conflict of

interest . . . .”   Id.   The present case does not involve the

unusual combination of factors that led us to determine in Cain

that the conflicts were inherently prejudicial.   Under these

circumstances, we conclude that the present case should be

reviewed for specific prejudice under Strickland.

                B. Potential conflicts of interest

     Appellant has identified a number of potential conflicts

between the self-interests of his attorneys and his interests as

their client.   Under Strickland, identification of a potential

deficiency is not sufficient.   To surmount the high hurdle

presented by the second prong of Strickland, an appellant must


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United States v. Saintaude, No. 04-0178/AR


demonstrate specific prejudice.    In the present case, Appellant

has not done so because he has not demonstrated that any of the

potential conflicts described below developed into deficiencies

so serious as to deprive him of a fair trial, that is, a trial

whose result was reliable.   See Strickland, 466 U.S. at 687.

1.   CPT RB

     Appellant originally moved to remove CPT RB based on a

belief that she had revealed confidences in Appellant’s case to

trial counsel.   According to Appellant, CPT RB was conflicted

because the accused thought she had committed an ethics

violation.    Prior to trial on the merits, however, Appellant

decided not to pursue this course of action, and affirmatively

advised the military judge that he wished to retain CPT RB as

counsel.   A subsequent Army investigation found that the

allegation of improper disclosure was unsupported.   The results

of that investigation, which have not been challenged by

Appellant, are consistent with Appellant’s decision to retain

CPT RB as counsel.

2.   Mr. HG and Ms. C

     Appellant contends that Mr. HG and Ms. C were conflicted as

a result of the allegation that Mr. HG had attempted to bribe a

witness.   After the Government made the allegation, however,

both counsel withdrew from Appellant’s representation.    The

allegation against Mr. HG subsequently was found to be


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United States v. Saintaude, No. 04-0178/AR


unsupported.    Mr. HG and Ms. C did not abandon Appellant, but

instead assisted him in obtaining new civilian counsel, Mr. D.

At that time, Appellant was represented by two military counsel,

CPT RB and CPT MC, as well as having a new civilian defense

counsel recommended by Mr. HG and Ms. C.

3.      CPT MC -- Trial strategy

        Relying on a pretrial memorandum sent by CPT MC to the

Regional Defense Counsel, Appellant contends that CPT MC’s

interest in his professional standing conflicted with his duty

of loyalty to Appellant.    Appellant also contends that CPT MC

violated his duty of loyalty by not informing Appellant of these

concerns.    In the memorandum, CPT MC requested the

decertification of Mr. D and asserted that his reputation would

suffer from association with Mr. D.     The primary substantive

issue in the memorandum concerned CPT MC’s assertion that Mr. D

intended to pursue an unsubstantiated allegation of unlawful

command influence.    At trial, however, the defense did not raise

the issue of unlawful command influence, focusing instead on the

merits of the prosecution case.     These circumstances indicate

that the concerns of CPT MC were resolved prior to trial.      The

record does not otherwise demonstrate that CPT MC was

unsuccessful in properly focusing the efforts of the defense

team.    Absent evidence demonstrating that he was unable to

resolve his initial concerns about Mr. D, CPT MC was not


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United States v. Saintaude, No. 04-0178/AR


obligated to communicate those initial concerns to Appellant.

See Dep’t of Army, Military Justice, Army Reg. 27-10 app. C-2

b.(3) (Apr. 27, 2005) (indicating that military counsel is

obligated to only inform the client of problems with civilian

counsel’s tactics only if the problems cannot first be resolved

between counsel).



4.   CPT MC -- Information about Mr. D

     Appellant also notes that CPT MC did not inform him of the

concern, raised in CPT MC’s letter to the Regional Defense

Counsel, that Mr. D’s license to practice law previously had

been suspended.   At the time of trial, however, Mr. D was

licensed to practice law.   Appellant does not identify a

specific obligation on the part of co-counsel to inform a client

about a past disciplinary action against the lead counsel who,

at the time of trial, was licensed to practice law.   Even if CPT

MC had been under such an obligation, Appellant has not

identified the details of the past disciplinary action against

Mr. D.   As such, we have nothing more than speculation as to the

impact that any such information might have had on Appellant’s

rights under Strickland.

5.   Mr. D

     Appellant contends that Mr. D faced a conflict between his

friendship with Appellant’s prior counsel, Mr. HG, and his duty


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of loyalty to Appellant.   In particular, Appellant claims that

Mr. D was reluctant to press Mr. HG for files necessary to

prepare for trial motions because of their friendship.    The

record, however, reflects that the documents were turned over to

the defense counsel, and that pertinent motions were filed and

argued by the defense at trial.    Even assuming that there was

some delay in obtaining the records, whether as a result of Mr.

D’s reluctance or for some other reason, Appellant has not

demonstrated that any such delay had any effect on the trial

proceedings.



          III. ISSUES CONCERNING PERFORMANCE OF COUNSEL

     Aside from the concerns related to potential conflicts of

interest, Appellant alleges a number of deficiencies in the

performance of his attorneys.   We review these contentions under

the Strickland test, discussed in Section II.B., supra.      When

we apply Strickland to the alleged deficiencies in performance,

we ask the following questions:

     1. Are the allegations made by appellant true; and,
     if they are, is there a reasonable explanation for
     counsel′s actions in the defense of the case?

     2. If they are true, did the level of advocacy
     “fall[] measurably below the performance . . .
     [ordinarily expected] of fallible lawyers”?

     3. If ineffective assistance of counsel is found to
     exist, “is . . . there . . . a reasonable probability



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United States v. Saintaude, No. 04-0178/AR


     that, absent the errors, the factfinder would have
     had a reasonable doubt respecting guilt?”

McConnell, 55 M.J. at 481 (quoting United States v. Polk, 32

M.J. 150, 153 (C.M.A. 1991)).

     In this appeal, Appellant identifies a number of specific

problems with the performance of his counsel.    First, Appellant

contends that his military counsel were deficient in not

bringing to his attention their concerns about the manner in

which Mr. D performed his duties as counsel.    We have addressed

this matter in Section II, supra.

     Second, Appellant contends that Mr. D was unfamiliar with

military practice, which led to difficulties in presenting

motions, preserving challenges, compiling witness lists,

addressing Military Rule of Evidence 412, providing notice of an

alibi defense, obtaining expert witnesses, and participating in

sidebar conferences.    Appellant’s contention consists of a list

of alleged deficiencies and he does not detail how these matters

relate to the substantive issues at trial.

     Third, Appellant contends that defense counsel erroneously

opened the door to negative testimony during the cross-

examination of PVT D.   During the prosecution’s case-in-chief,

PVT D testified in connection with the rape charge, stating that

Appellant often used a fake name.     The testimony of PVT D aided

the prosecution by corroborating the assertions of Ms. P and Ms.



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United States v. Saintaude, No. 04-0178/AR


H, who testified that Appellant used a false name during his

initial contact with them on the day of the rape.    During cross-

examination, defense counsel attempted to impeach PVT D by

showing that he had a motive to lie so he could avoid

prosecution for drug abuse.   In response to this line of

questioning, the prosecution during redirect examination

elicited testimony from PVT D that his cooperation with the

Government did not stem from potential drug charges, but because

Appellant’s former counsel had tried to bribe him.   Appellant

contends that this negative testimony emerged because defense

counsel erroneously opened the door during cross-examination of

PVT D about his motives.   In addition, Appellant contends that

his counsel erred by asking a question which led PVT D to state

that one of the false names used by Appellant was “Mike

Robinson,” which enabled the prosecution to link PVT D’s

testimony to Ms. P and Ms. H’s statements that Appellant had

used a similar fake name during his encounters with them.

     Fourth, Appellant contends that his counsel failed to

exploit inconsistencies between Ms. P’s testimony at trial and

her pretrial statements.   At trial, Ms. P testified that the

rape occurred in front of the TV in the living room and that her

assailant unbuttoned his pants.    Appellant contends that defense

counsel could have cast doubt on her testimony by questioning

her about pretrial statements in which she said that the rape


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United States v. Saintaude, No. 04-0178/AR


occurred in the bedroom and that her assailant had unzipped his

pants.

     Fifth, Appellant contends that his counsel erred by not

asking the husband of Ms. P to testify as to her character for

untruthfulness.   Appellant also asserts that the defense could

have more aggressively exploited the husband’s testimony that he

had an advance view of the photo lineup and discussed it with

her before she identified Appellant.

     The Government takes the position that the defense team

prevailed on a variety of motions, offered an aggressive defense

both through cross-examination and direct presentation of

witnesses, made reasonable strategic choices regarding the

examination of PVT D, Ms. P, and her husband, that any alleged

deficiencies involved evidence that was peripheral or

cumulative, and that any other deficiencies were not outside the

range of performance covered by either the first or second prong

of Strickland.

     The primary evidence against Appellant consisted of the

forensic evidence matching his DNA to the sperm extracted from

Ms. P during her sexual assault exam.   According to the

prosecution’s expert witness, this match would occur only in 1

in 4,500,000 African-Americans; 1 in 5,300,000 Caucasians; and 1

in 1,900,000 Southwestern Hispanics.    In addition, the

prosecution connected Appellant to the convenience store


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United States v. Saintaude, No. 04-0178/AR


robberies through direct testimony and the video surveillance

tapes.   Appellant has not demonstrated that any of the

deficiencies raised in this appeal would have altered the

powerful import of the DNA and identification evidence in

establishing Appellant’s guilt.    Under these circumstances, we

need not determine whether any of the alleged errors established

constitutional deficiencies under the first prong of Strickland,

because any such errors would not have been prejudicial under

the high hurdle established by the second prong of Strickland.



                          IV. CONCLUSION

     The decision of the United States Army Court of Criminal

Appeals is affirmed.




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