                        UNITED STATES, Appellee

                                     V.

                        Nura L. SALES, Sergeant
                          U.S. Army, Appellant


                               No. 00-0577


                         Crim. App. No. 9602005



       United States Court of Appeals for the Armed Forces

                         Argued October 3, 2001

                        Decided January 24, 2002

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

                                  Counsel

For Appellant: Captain Mary C. Vergona (argued); Colonel Adele
   H. Odegard, Lieutenant Colonel David A. Mayfield, Major
   Jonathan F. Potter, and Captain David S. Hurt (on brief);
   Lieutenant Colonel E. A. Chandler, Jr.
For Appellee: Captain Jennifer A. Parker (argued); Colonel David
   L. Hayden, Lieutenant Colonel Edith M. Rob, and Major Anthony
   P. Nicastro (on brief).

Military Judge:    Kenneth D. Pangburn


  This opinion is subject to editorial correction before final publication.
United States v. Sales, No. 00-0577/AR


        Judge GIERKE delivered the opinion of the Court.

        A military judge sitting as a special court-martial

convicted appellant, contrary to his pleas, of wrongful use of

cocaine, in violation of Article 112a, Uniform Code of Military

Justice, 10 USC § 912a.       The adjudged and approved sentence

provides for a bad-conduct discharge, forfeiture of $300.00 pay

per month for six months, and reduction to the lowest enlisted

grade.     The Court of Criminal Appeals affirmed the findings and

sentence in an unpublished opinion.

        This Court granted review of the following issue:

        WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED TO THE
        MATERIAL PREJUDICE OF APPELLANT’S SUBSTANTIAL RIGHTS IN
        REFUSING TO ORDER A DUBAY HEARING TO RESOLVE THE FACTUAL
        CONFLICT BETWEEN AFFIDAVITS CONCERNING APPELLANT’S CLAIM OF
        INEFFECTIVE ASSISTANCE OF COUNSEL.

For the reasons set out below, we set aside the decision of the

Court of Criminal Appeals and remand for further factfinding.∗

                            Factual Background

        At the time of trial, appellant was a Sergeant (E-5) with

almost ten years of service.        The charges were based on a

positive urinalysis.      Appellant was offered nonjudicial

punishment and demanded trial by court-martial.        See Art. 15(a),
UCMJ, 10 USC § 815(a).



∗
    This Court also granted review of the following issue:

        WHETHER THE EVIDENCE IS LEGALLY INSUFFICIENT TO PROVE BEYOND
        A REASONABLE DOUBT THAT APPELLANT WRONGFULLY USED COCAINE.

In light of our resolution of the issue regarding ineffective
assistance of counsel, this issue is dismissed without prejudice
to appellant’s right to raise it again during the normal course
of appellate review.



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United States v. Sales, No. 00-0577/AR


      Both civilian and military counsel represented appellant at

his court-martial.      Four senior noncommissioned officers

testified for the defense.       They all testified that appellant was

a good soldier; that he was an upbeat, energetic person; and that

he was devoted to physical fitness.

      Appellant’s sister testified that appellant’s Uncle Bernard

was well known among the family members as a cocaine user who

attempted to conceal his cocaine use from his family by mixing it

in his drinks.     She testified that Uncle Bernard hosted a family

fish fry during the weekend of August 24, 1996, in connection

with the funeral of appellant’s grandfather.             Appellant’s

urinalysis sample was collected three days later.             (R. 106-116)

      Appellant’s sister testified that at the fish fry, she

observed Uncle Bernard fixing drinks from the back of his car and

serving them to everyone.       On the following morning, appellant

was “all jittery,” vomiting, and suffering from diarrhea.

Appellant’s sister also testified that appellant is a truthful

person; that he witnessed the detrimental effects of drugs on

other members of the family; and that using drugs was not

consistent with what she knew about her brother.

      Appellant unequivocally denied that he knowingly used

cocaine.    He testified that he watched friends and relatives

destroy their lives by using drugs.             He testified that he is an

avid weight lifter, and that he is very concerned about his

physical fitness and appearance.             He testified about Uncle

Bernard’s drug use and his practice of concealing his drug use

from family members by mixing cocaine in his drinks.             He




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United States v. Sales, No. 00-0577/AR


testified that he felt sick after attending the family gathering

hosted by Uncle Bernard.

      On cross-examination, appellant admitted that he did not

actually see Uncle Bernard put cocaine in his drink, but he

insisted, “I know my uncle.”        On redirect, appellant testified

that he confronted Uncle Bernard, and his fears were confirmed.

Appellant attempted to testify that Uncle Bernard admitted

putting cocaine in his drink, but the military judge sustained a

prosecution objection to that testimony.

      Sixteen months after his court-martial, appellant submitted

an affidavit to the Court of Criminal Appeals, asserting that he

told his civilian counsel that Uncle Bernard admitted putting

cocaine in his drink.      Appellant asserted that his counsel did

not contact Uncle Bernard, and that whenever appellant asked his

counsel if he contacted Uncle Bernard, his counsel always said no

one answered the telephone at Uncle Bernard’s house.

      Appellant also submitted an affidavit from Uncle Bernard,

who asserted that he was willing to testify that he spiked a

drink with cocaine and appellant accidentally consumed it.        Uncle

Bernard asserted that no one contacted him before trial, that his

telephone was in working order, and that he would have testified

for appellant if he had been contacted.

      Appellant’s civilian counsel submitted a responding

affidavit, asserting that he contacted Uncle Bernard, but Uncle

Bernard denied spiking appellant’s drink and refused to testify.

Counsel further asserted that, even if Uncle Bernard had been

willing to testify, he would not have called him as a defense

witness.    He explained:


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United States v. Sales, No. 00-0577/AR


            The testimony of this witness was not merely unhelpful
            to the defense case, but extremely damaging. Indeed,
            compelling this witness to testify would have all but
            guaranteed an allegation of ineffective assistance and
            justified a grievance and subsequent investigation by
            my state bar.


      Appellant asserts that his counsel’s statement that Uncle

Bernard refused to corroborate his testimony is a lie, because

his counsel never spoke to Uncle Bernard.       The affidavits are in

direct conflict on two issues: (1) whether civilian counsel

contacted Uncle Bernard; and (2) whether Uncle Bernard was

willing to testify that he spiked appellant’s drink.

      The court below resolved the issues against appellant

without ordering a factfinding hearing.       The court concluded,

citing United States v. Ginn, 47 MJ 236, 248 (1997), and United
States v. McGill, 11 F.3rd 223, 226 (1st Cir. 1993), that a

factfinding hearing was not necessary.

                                 Discussion

      Appellant has the burden of overcoming the presumption that

his counsel was competent.       Strickland v. Washington, 466 U.S.

668, 687-89 (1984).      This Court has adopted a three-pronged test
to determine if the presumption of competence has been overcome:

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




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United States v. Sales, No. 00-0577/AR


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

citations omitted).      Counsel have a duty to perform a reasonable

investigation or make a determination that an avenue of

investigation is unnecessary.        United States v. Brownfield, 52 MJ

40, 42 (1999).

      In United States v. Ginn, supra, this Court set out six

principles for determining whether a factfinding hearing is

required to resolve conflicting posttrial affidavits regarding

allegations of ineffective assistance of counsel:

            First, if the facts alleged in the affidavit allege an
            error that would not result in relief even if any
            factual dispute were resolved in appellant’s favor, the
            claim may be rejected on that basis.

            Second, if the affidavit does not set forth specific
            facts but consists instead of speculative or conclusory
            observations, the claim may be rejected on that basis.

            Third, if the affidavit is factually adequate on its
            face to state a claim of legal error and the Government
            either does not contest the relevant facts or offers an
            affidavit that expressly agrees with those facts, the
            court can proceed to decide the legal issue on the
            basis of those uncontroverted facts.

            Fourth, if the affidavit is factually adequate on its
            face but the appellate filings and the record as a
            whole “compellingly demonstrate” the improbability of
            those facts, the court may discount those factual
            assertions and decide the legal issue.

            Fifth, when an appellate claim of ineffective
            representation contradicts a matter that is within the
            record of a guilty plea, an appellate court may decide
            the issue on the basis of the appellate file and record
            . . . unless the appellant sets forth facts that would
            rationally explain why he would have made such
            statements at trial but not upon appeal.

            Sixth, the Court of Criminal Appeals is required to
            order a factfinding hearing only when the above-stated
            circumstances are not met.




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United States v. Sales, No. 00-0577/AR


The Court of Criminal Appeals determined that a factfinding

hearing was not required in this case under the first, second,

fourth, and sixth Ginn principles.

      The ultimate question whether there was ineffective

assistance of counsel is a question of law that we review de

novo.   United States v. Wiley, 47 MJ 158, 159 (1997).      Because

the Ginn principles ensure a reliable factual predicate for our

de novo review of allegations of ineffective assistance of

counsel, we will also review de novo the issue whether the lower
court correctly applied those principles.      See United States v.

Griffin, 50 MJ 278, 284 (1999) (de novo review of issue whether

military judge properly applied Daubert framework to ensure that

scientific evidence was reliable).

      We hold that the court below erred by not ordering a

factfinding hearing.      With respect to the first Ginn principle,

we believe there is a reasonable probability that there would

have been a different result if the factual conflicts among the

affidavits were resolved in appellant’s favor.      See Strickland v.

Washington, supra at 694.       With respect to the second principle,
the affidavits from appellant and Uncle Bernard do not set out

“speculative or conclusory observations.”      Instead, they set

forth two specific facts: (1) counsel did not contact Uncle

Bernard; and (2) Uncle Bernard would have supported appellant’s

claim of innocent ingestion by admitting that he spiked

appellant’s drink.      With respect to the fourth principle, the

appellate filings and the record as a whole do not “compellingly

demonstrate” the improbability of the facts asserted by appellant

and Uncle Bernard.      Accordingly, under the sixth principle, the


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United States v. Sales, No. 00-0577/AR


Court of Criminal Appeals was required to order a factfinding

hearing.

                                  Decision

      The decision of the United States Army Court of Criminal

Appeals is set aside.      The record of trial is returned to the

Judge Advocate General of the Army for submission to a convening

authority for a factfinding hearing on appellant’s claim of

ineffective assistance of counsel under United States v. DuBay,

17 USCMA 147, 37 CMR 411 (1967).             If a factfinding hearing is

impracticable, the convening authority may set aside the findings

and sentence and order a rehearing or dismiss the charges.             If a

factfinding hearing is conducted, the record of trial, including

the factfinding hearing, will then be transmitted to the Court of

Criminal Appeals for review under Article 66, UCMJ, 10 USC § 866.

Thereafter, Article 67, UCMJ, 10 USC § 867, shall apply.




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United States v. Sales, No. 00-0577


       BAKER, Judge, with whom CRAWFORD, Chief Judge, joins

(dissenting):

       I disagree with the majority’s application of United

States v. Ginn, 47 MJ 236 (1997).    Although the affidavits

in question pose an apparent factual conflict – a battle of

affidavits – appellant’s affidavits are improbable, if not

incredible.    Therefore, applying the fourth Ginn exception,

a DuBay hearing is not warranted to resolve appellant’s

ineffective assistance of counsel claim.

       In Ginn, this Court concluded that the service

appellate court erred by exercising its factfinding power

to resolve a conflict between post-trial affidavits from

the parties.    However, the Court also concluded that a

post-trial hearing “is not required in any case simply

because an affidavit is submitted by an appellant.”     Id. at

248.    In particular, the Court enunciated six principles

for determining when apparently conflicting affidavits

warrant a factfinding hearing, including the fourth

principle, which states:

       Fourth, if the affidavit is factually adequate on its
       face but the appellate filings and the record as a
       whole “compellingly demonstrate” the improbability of
       those facts, the court may discount those factual
       assertions and decide the legal issue.

Id.




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United States v. Sales, No. 00-0577


     That is what the service appellate court correctly did

in this case, finding that “[i]t is plain from the 10

November 1996 ‘supplemental notice’ that the civilian

defense counsel was aware of ‘Uncle Bernard’s’ key role in

the innocent ingestion defense, aware of the means of

reaching him, and yet plainly had decided to frame the

defense without ‘Uncle Bernard’s’ participation.”    Unpub.

op. at 8.   As a result, the Court of Criminal Appeals went

on to apply Strickland to appellant’s allegation of

ineffective assistance of counsel.    The court found that

defense counsel had made reasonable, tactical choices under

the circumstances of appellant’s case, citing to defense

counsel’s affidavit, which states:

     Tactically, even if ‘Uncle Bernard’ wanted to testify
     on Sergeant Sales [sic] behalf, I would not have
     called him as a witness. The testimony of this
     witness was not merely unhelpful to the defense case,
     but extremely damaging. Indeed, compelling this
     witness to testify would have all but guaranteed an
     allegation of ineffective assistance. . . .

     The majority argues that two areas of affidavit

conflict warrant resolution in a DuBay hearing.    First,

whether counsel contacted Mr. Zimmerman (Uncle Bernard).

Second, whether Mr. Zimmerman was “willing to testify that




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United States v. Sales, No. 00-0577


he spiked appellant’s drink.”*         _ MJ at (5).   Reviewing this

case de novo (see United States v. Wiley, 47 MJ 158, 159

(1997)), in my view, the appellate filings and record as a

whole compellingly demonstrate the improbability of

appellant’s position on these points.

      First, appellant’s affidavit makes clear, as did his

trial testimony, that he was in touch with his uncle prior

to the trial.     And yet, Mr. Zimmerman asserts: “If Ray’s

lawyer had called and talked to me and informed me when and

where the trial was, I would have come and told the truth.”

It is improbable to suggest that a willing Mr. Zimmerman

was prepared to testify and exonerate appellant, but for

want of a phone call from defense counsel he did not do so,

when appellant himself was in contact with Mr. Zimmerman

and surely knew the when and where of his own trial.

      Second, it is equally improbable, given the purported

nature of Mr. Zimmerman’s testimony, that appellant would

sit through his trial, and, in fact, testify to the

military judge (with hearsay objection) that Mr. Zimmerman

“admitted to putting coke . . .,” without protesting the




*
 At trial, appellant testified that he called his uncle “to find out and
he admitted that he had been putting coke . . . ,” at which point an
objection cut off appellant’s statement. In his post-trial affidavit,
Mr. Zimmerman states that he would have testified he “gave [appellant]
the wrong cup.”


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United States v. Sales, No. 00-0577


absence of his uncle at trial.    Mr. Zimmerman did not slip

past this trial; he was the focal point of the trial.

     Third, it is incredible that if Mr. Zimmerman was

willing to testify and appellant had requested that his

counsel call Mr. Zimmerman, appellant would wait until

sixteen months after his conviction to raise such a

fundamental issue.

     Requiring a hearing in such a context sets the DuBay

bar too low, even as the standard for succeeding on an

ineffective assistance claim remains very high under

Strickland.   In Dubay itself, the Court concluded that it

was the nature of the conflict in question relating to

command control that made a fact-finding hearing necessary.

17 USCMA 147, 149, 37 CMR 411, 413 (1967) (“In the nature

of things, command control is scarcely ever apparent on the

face of the record, and, where the facts are in dispute,

appellate bodies in the past have had to resort to the

unsatisfactory alternative of settling the issue on the

basis of ex parte affidavits[.]”).    In other words, DuBay

hearings are not automatic or default remedies for issues

raised post-trial.

     To be clear, I agree with the premise behind DuBay.

The adversarial process, with its cross-examination and

demeanor observation, is a better factfinding instrument


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United States v. Sales, No. 00-0577


than appellate review of affidavits.    I also believe that

as a general matter, the interests of justice are better

served by erring on the side of additional factfinding

rather than on the side of judicial economy.    But there

must be structure and discipline to the process, which Ginn

seeks to establish, so that courts-martial do not

automatically move from findings, to sentencing, to a post-

trial DuBay inquiry into counsel’s management of the

defense.    Using the “Uncle Bernard standard,” it does not

strike me as particularly hard to generate battling

affidavits on appeal.   In a case involving more than one

actor, might not the second actor be willing to assert,

after the fact, that he was willing to exonerate the

accused if only he had been called?

     For the reasons stated above, I believe the record

compellingly demonstrates the improbability of appellant’s

facts.   The Court of Criminal Appeals was correct to

proceed to the underlying issue of ineffective assistance

of counsel and, applying a de novo standard of review at

this level, correct to not second guess defense counsel’s

decision not to call Mr. Zimmerman for the tactical reasons

readily apparent in all that was said about Mr. Zimmerman

at trial.

     Therefore, I respectfully dissent.


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