UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                          KERN, ALDYKIEWICZ, and MARTIN
                              Appellate Military Judges

                           UNITED STATES, Appellee
                                       v.
                        Private E2 ZAKARIA H. LOUTFI
                         United States Army, Appellant

                                   ARMY 20100489

                              Headquarters, Fort Bliss
                        Michael J. Hargis, Military Judge
            Colonel Michael J. Benjamin, Staff Judge Advocate (pretrial)
             Colonel Francis P. King, Staff Judge Advocate (post-trial)


For Appellant: Lieutenant Colonel Imogene M. Jamison, JA; Major Jacob D.
Bashore, JA; Captain John L. Schriver, JA (on brief).

For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Robert A. Rodrigues,
JA; Captain Sasha N. Rutizer, JA (on brief).


                                   31 January 2013
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                               SUMMARY DISPOSITION
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MARTIN, Judge:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his plea, of one specification of wrongfully using marijuana, in violation
of Article 112a, Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §
912a (2006). Contrary to his pleas, a general court-martial composed of officer
members found appellant guilty of one specification of abusive sexual contact, and
one specification of furnishing alcohol to a minor in violation of Articles 120 and
134, UCMJ, 10 U.S.C. §§ 920, 934 (2006 & Supp. II 2008). The panel sentenced
appellant to a bad-conduct discharge, confinement for five years, forfeiture of all
pay and allowances, and reduction to the grade of E-1. The convening authority
approved the adjudged sentence and credited appellant with five days of confinement
credit against the sentence to confinement.
LOUTFI—ARMY 20100489

       Appellant alleges that his defense counsel, Captains (CPTs) JG and JM were
ineffective for pursuing and maintaining a consent defense and mistake of fact as to
consent defense where appellant, who testified in his defense, denied that the
charged sexual contact ever occurred. As a result, appellant claims that he was
prejudiced in his defense. We disagree.

                                  BACKGROUND

        At the time of the offense, appellant and the victim, Private (PVT) A-N, had
recently completed training at Fort Benning and were in-processing into their first
unit located at Fort Bliss, Texas. The two spent time together during the day and
later began drinking alcohol in appellant’s barrack’s room. Appellant was twenty-
nine years old, and PVT A-N was nineteen years old. Appellant was housed in a
trailer with three separate bedrooms and there were two other soldiers living in the
trailer at the time of the offense. After spending time with appellant, PVT A-N left
for several hours to go to a strip club with several other newly arrived soldiers.
There was undisputed evidence that PVT A-N was intoxicated, but there was dispute
as to his level of intoxication.

       After leaving the club, PVT A-N asked the driver to drop him off at
appellant’s room. Private A-N testified that he was very distraught about a recent
break up with a girlfriend back home. He testified that appellant convinced him it
was time to go to sleep and put him in appellant’s bed. Private A-N testified that he
woke up face down on the bed, naked from the waist down, with appellant on top of
him, and felt pain and pressure in his anus. Private A-N jumped up, yelled and
cursed at appellant, and got dressed and left the room. Private A-N testified that he
walked to his own barracks room (about one mile away), grabbed his knife, and
returned to appellant’s room because he intended to kill him. He called several
other soldiers who intercepted PVT A-N and called the staff duty non-commissioned
officer.

        The foregoing events formed the basis of the abusive sexual contact charge,
and during his court-martial, appellant testified on the merits. His version of the
events generally matched PVT A-N’s up to the point of the assault. Appellant
testified that after PVT A-N returned to his room, the two engaged in mutual,
consensual kissing and fondling. Appellant further testified that he was unable to
get an erection, and the two just fell asleep. He was, therefore, surprised when PVT
A-N woke up angry and stormed out of the room. Appellant testified that the
abusive sexual contact simply never occurred.

       After the incident, PVT A-N was taken to the hospital where he made an
allegation of sexual assault and was examined and treated by a Sexual Assault Nurse
Examiner (SANE). The SANE testified that PVT A-N had injuries to his anus that
were consistent with penetration or attempted penetration. The same SANE later



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LOUTFI—ARMY 20100489

collected evidence on appellant, who told her that he had consensual sex. DNA
evidence taken from the victim and appellant showed that there was mixed DNA
from both appellant and the victim found on the inside panel of the shorts worn by
appellant. The forensic DNA examiner also found PVT A-N’s semen and sperm on
the outside of his own pants, but could not specify how long the semen and sperm
had been there. A forensic toxicologist testified that PVT A-N’s blood alcohol
content (BAC) was approximately 0.16, or twice the legal driving limit, at the time
of the assault.

                              LAW AND DISCUSION

       The Sixth Amendment guarantees an accused the right to the effective
assistance of counsel. U.S. C ONST . amend. VI; United States v. Gooch, 69 M.J. 353,
361 (C.A.A.F. 2011) (citing United States v. Gilley, 56 M.J. 113, 124 (C.A.A.F.
2001)). We review de novo claims that an appellant did not receive the effective
assistance of counsel. United States v. Mazza, 67 M.J. 470, 474 (C.A.A.F. 2009).
“In assessing the effectiveness of counsel we apply the standard set forth in
Strickland v. Washington, 466 U.S. 668, 687 (1984), and begin with the presumption
of competence announced in United States v. Cronic, 466 U.S. 648, 658 (1984).”
Gooch, 69 M.J. at 361. To overcome the presumption of competence, the Strickland
standard requires appellant to demonstrate “both (1) that his counsel’s performance
was deficient, and (2) that this deficiency resulted in prejudice.” United States v.
Green, 68 M.J. 360, 361 (C.A.A.F. 2010) (citing Strickland, 466 U.S. at 687).

       This Court applies a three-part test to determine whether the presumption of
competence has been overcome: (1) “Are the allegations true, and, if so, is there any
reasonable explanation for counsel’s actions?”; (2) “If the allegations are true, did
counsel’s performance fall measurably below expected standards?”; and (3) “Is there
a reasonable probability that, absent the errors, there would have been a different
outcome?” United States v. Polk, 32 M.J. 150, 153 (C.M.A. 1991).

       Generally, “[w]e will not second-guess the strategic or tactical decisions
made at trial by defense counsel . . . .” United States v. Rivas, 3 M.J. 282, 289
(C.M.A. 1977). Moreover, “heavy deference is given to trial defense counsel's
judgments, and this Court presumes counsel's conduct falls within the wide range of
reasonable professional assistance.” United States v. Morgan, 37 M.J. 407, 410
(C.M.A. 1993) (citing Strickland, 466 U.S. at 689). See also United States v.
Stephenson, 33 M.J. 79, 82 (C.M.A. 1991).

       In this case, appellant alleges that his defense counsel was ineffective for
using the same defense theory throughout all phases of the trial—namely, that
appellant and PVT A-N both had too much to drink and engaged in limited touching,
kissing and fondling, before passing out. Furthermore, when PVT A-N woke up in
appellant’s room, he was embarrassed by what had transpired, was concerned that



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LOUTFI—ARMY 20100489

the other soldiers may have been aware of the sexual activity, and made a false
allegation against appellant as a cover story.

       A complete review of the record reveals that the defense counsel pursued a
viable theory given the weight and nature of the evidence as well as appellant’s
decision to testify. Throughout his opening statement, his direct and cross-
examinations of witnesses, and his closing argument, the defense counsel never
conceded the facts supporting abusive sexual contact, contrary to appellant’s
allegation of ineffectiveness. Instead, he underscored the evidence that supported
the theory that PVT A-N was drinking but not drunk, and that appellant had not
supplied him the alcohol. The defense counsel elicited testimony that PVT A-N
asked the driver to drop him off at appellant’s room after a night at the club, and
then engaged in consensual touching and kissing with appellant before passing out.
Through cross-examination, defense counsel also tried to minimize damaging
testimony provided by the SANE and the forensic DNA examiner. Appellant’s
testimony tracked with defense counsel’s approach. While appellant did report to
the SANE that he had engaged in “consensual sex” with PVT A-N, appellant
explained that he was referring to the kissing and fondling, and not to the actions
that were reflected in the abusive sexual contact charge. The defense counsel
highlighted the fact that the discovery of PVT A-N’s own semen on his own pants
supported appellant’s account of consensual fondling. Finally, when the parties
discussed potential instructions with the military judge, the defense counsel
conceded that appellant’s testimony effectively denied the charge, and that the
instructions of consent and mistake of fact as to consent, simply were not raised by
the evidence.

       Defense counsel sought every opportunity to attempt to discredit PVT A-N
and his version of events, and was able to demonstrate that PVT A-N possessed, at
the very least, a motive to fabricate. Although appellant was ultimately convicted of
the charged offenses and received a significant sentence, the outcome, alone, does
not overcome the presumption of competence afforded to defense counsel.
Strickland, 466 U.S. at 698. Ultimately, we conclude that defense counsel’s strategy
“was tactically sound and not unreasonable” under the totality of the circumstances.
Stephenson, 33 M.J. at 82.

        We therefore conclude that “[a]ppellant has not overcome the presumption
that it was a reasonable strategic decision, under the circumstances of this case and
prevailing professional norms . . .” for the defense counsel to employ a defense
approach that argued some of the activity was consensual, but denied that the actual
charged activity occurred. Mazza, 67 M.J. at 475. “Because Appellant has not
satisfied the first Strickland prong, we need not address the second prong” of
prejudice. Id. at 476.




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LOUTFI—ARMY 20100489

                                  CONCLUSION

      On consideration of the entire record, the assigned error, and the matters
personally raised by appellant pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982), we find appellant’s arguments to be without merit. We hold the
findings of guilty and the sentence as approved by the convening authority correct in
law and fact. Accordingly, the findings of guilty and the sentence are AFFIRMED.

      Senior Judge KERN and Judge ALDYKIEWICZ concur.


                                       FOR
                                        FOR THE
                                            THE COURT:
                                                COURT:




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




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