UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                            Before
                                MULLIGAN, FEBBO, and WOLFE
                                   Appellate Military Judges

                                UNITED STATES, Appellee
                                             v.
                              Sergeant RAYMOND P. PASAY
                               United States Army, Appellant

                                        ARMY 20140930

                         Headquarters, 1st Cavalry Division
                 Rebecca K. Connally, Military Judge (arraignment)
                       Wade N. Faulkner, Military Judge (trial)
    Lieutenant Colonel James D. Levine, II, Acting Staff Judge Advocate (pretrial)
          Colonel Alison C. Martin, Staff Judge Advocate (recommendation)
    Lieutenant Colonel Michael D. Jones, Acting Staff Judge Advocate (addendum)

For Appellant: Lieutenant Colonel Melissa R. Covolesky, JA; Major Christopher D.
Coleman, JA; Captain Joshua G. Grubaugh, JA (on brief); Major Christopher D.
Coleman, JA; Captain Joshua G. Grubaugh, JA (on reply brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III,
JA; Major Melissa Dasgupta Smith, JA; Captain Christopher A. Clausen, JA (on
brief).


                                          19 April 2017

                                   ----------------------------------
                                    MEMORANDUM OPINION
                                   ----------------------------------

    This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

WOLFE, Judge:

      Appellant, Sergeant (SGT) Raymond Pasay, appeals his conviction for the
rape and sexual abuse of his daughter, AM. 1 Of appellant’s five assignments of

1
 Appellant was convicted of two specifications of abusive sexual contact with a
child, two specifications of aggravated sexual abuse of a child, two specifications of
aggravated sexual assault of a child, indecent act, rape, and production of child
pornography in violation of Articles 120 and 134, Uniform Code of Military Justice,
10 U.S.C. §§ 920, 934 (2006 & Supp. IV; 2012) [hereinafter UCMJ].
PASAY—ARMY 20140930

error, three merit detailed discussion. Although we find one specification to be
factually insufficient, we do not otherwise discuss appellant’s claims that the
remaining specifications are factually and legally insufficient. 2 The military judge
sentenced appellant to a dishonorable discharge, confinement for fifty-one years,
forfeiture of all pay and allowances, and reduction to the grade of E-1. The military
judge also credited appellant with fifty-one days of confinement credit against the
term of confinement. The convening authority credited appellant with fifty-one days
of confinement credit and approved as much of the adjudged sentence as provided
for a dishonorable discharge, confinement for fifty-one years, and reduction to the
grade of E-1.

       We first address appellant’s concerns that we have an issue under United
States v. Walters, 58 M.J. 391 (C.A.A.F. 2003). In announcing findings for two
specifications, the military judge excepted out the words “on divers occasions”
without explanation. Next, we address appellant’s allegation that the military judge
should have disqualified himself because appellant alleges he had previously acted
“as counsel” in the case. Finally, we address appellant’s claim that his civilian
defense counsel and detailed defense counsel provided ineffective assistance. 3

                                    DISCUSSION

                A. Ambiguous Findings and United States v. Walters

       Appellant was convicted of nine specifications. Two of those specifications
(Specifications 2 and 12 of Charge I) alleged appellant acted “on divers occasions.”
For both specifications, the military judge excepted out the words “on divers
occasions.” That is, the military judge found appellant guilty of the offense on a
single occasion and acquitted appellant of all other occasions. As the military judge
did not explain his findings, this presents us on appeal with the question of whether
we can determine what conduct formed the basis of appellant’s guilty finding.

      The reasoning behind this dilemma is well-settled and is discussed in depth in
our superior court’s decision in Walters. If the findings are ambiguous, we cannot


2
  We do not address in depth appellant’s claim that he is entitled to sentencing relief
because it took 276 days to conduct post-trial processing. We find no due process
violation and do not find the sentence to be inappropriate notwithstanding the time it
took to prepare appellant’s case for convening authority action.
3
 The matters submitted personally by appellant pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982) are either duplicative of the assigned errors
or do not merit individual discussion or relief.

                                           2
PASAY—ARMY 20140930

perform our duties under Article 66(c), UCMJ, and the specifications must be set
aside with prejudice. 4

        As an initial matter, we note Specifications 1 and 13 of Charge I were
alternative charges to the conduct alleged in Specifications 2 and 12 of Charge I.
The government conceded the specifications were charged in the alternative. At
trial, appellant moved to dismiss the specifications as unreasonably multiplied. Rule
for Courts-Martial [hereinafter R.C.M.] 906(b)(12) provides for appropriate relief
when specifications are unreasonably multiplied for sentencing. R.C.M. 907
instructs on motions to dismiss. R.C.M. 917 allows for the military judge to enter a
finding of not guilty based on the insufficiency of the evidence.

       Here, the military judge stated his intent to enter a not guilty finding to solve
an issue of unreasonable multiplication of charges issue–regardless of the
sufficiency of the evidence. In other words, even assuming the government proved
the specifications beyond a reasonable doubt, the military judge stated he would find
appellant not guilty of the specifications. And, indeed, appellant was found not
guilty of Specifications 1 and 13 of Charge I. Accordingly, we cannot resolve the
Walters issue in this case by looking to the alternative charges.

                                     1. Forfeiture

       While Walters was decided well-over a decade ago, we are unaware of a case
that addresses whether a Walters issue is forfeited by the failure to raise the issue to
the trial judge. In other words, when presented with ambiguous findings, must an
accused raise the issue to the military judge in order to preserve the issue for

4
  It is curious that the government persists in using the words “on divers occasions”
in charging decisions after the Court of Appeals for the Armed Force’s (CAAF)
decision in Walters. “Divers” is an archaic way of stating “two or more.” See Dep’t
of Army, Pam. 27-9, Legal Services: Military Judges Benchbook [hereinafter
Benchbook ] , para. 7-25 (1 Jan. 2010) (defining “divers”). As the CAAF made clear
in United States v. Rodriguez, the Walters issue is only triggered when the accused
is acquitted of certain language by exceptions. 66 M.J. 201, 204-05 (C.A.A.F.
2008). In that case, the CAAF refused to extend Walters to circumstances where it
may be unclear which instances formed the basis of the court-martial’s findings, but
where the findings did not include findings by exceptions. Id. If the government
charged the language “one or more” instead of “two or more,” the Walters issue
would be eliminated, the amount of admissible evidence would be the same, and the
accused would continue to receive notice and double jeopardy protection of the
charges he is facing. To the extent that charging “one or more” presents disjunctive
charging, it is a problem already present when the government charges the conduct
happened on “divers” or “two or more” occasions.

                                           3
PASAY—ARMY 20140930

appeal? If forfeiture does not apply, then appellant is under no obligation to raise
the issue to the trial judge, and is in fact highly incentivized to do nothing. Put
differently, is a Walters issue a bipartite failure of the trial counsel and the military
judge, or a tripartite failure also involving the defense counsel?

       Absent plain error, an accused forfeits error–even constitutional error–by
failing to object at trial. See e.g. United States v. Carpenter, 51 M.J. 393, 396
(C.A.A.F. 1999); United States v. Powell, 49 M.J. 460, 463 (C.A.A.F. 1998). The
plain error doctrine incentivizes parties to raise allegations of error at the trial level
where it can be most easily corrected. Here, as we discuss below, appellant’s claims
turn on how plain and obvious it was that there was evidence of more than one
offense.

       Nonetheless, we infer from our superior court’s treatment of previous cases
that forfeiture is inappropriate when considering a Walters issue. Accordingly, we
assume without deciding that forfeiture does not apply.

                                 2. Standard of Review
       On appeal, a Walters issue may only be resolved if the record “clearly put the
accused and the reviewing courts on notice of what conduct served as the basis for
the findings.” Walters, 58 M.J. at 396. In United States v. Ross, our superior court
made clear the standard of review is one of legal sufficiency. 68 M.J. 415, 418
(C.A.A.F. 2010) (“[T]he Government could nevertheless prevail were we to conclude
that the evidence was legally insufficient to show that Appellant was guilty” of more
than one offense).

       Accordingly, we are required to dismiss the specification with prejudice if
there is legally sufficient evidence that he committed more than one offense.
Whereas if there is only legally sufficient evidence to support one instance, we
affirm appellant’s conviction.

      Thus the topsy-turvy nature of this appeal and the briefs filed by the parties.
The government argues there is clearly evidence appellant only committed the
offense on just one occasion. Appellant, by contrast, argues there is evidence he
committed multiple offenses. Alice has passed through the looking glass.

                              3. Specification 2 of Charge I

       The government charged appellant with multiple specifications based on the
location of the offense, the time of the offense, and the nature of the sexual conduct.
Specification 2 of Charge I alleged that at or near Killeen, Texas, between about 1
March 2008 and 8 June 2008, appellant touched AM’s breast on divers occasions.


                                            4
PASAY—ARMY 20140930

The military judge found appellant guilty only after excepting out the words “on
divers occasions.”

      The only evidence regarding the touching of AM’s breast in the relevant time
frame in Killeen, TX was as follows:

             Q. I want to take you to the hotel room, [AM]. Can you
             tell me did Sergeant Pasay ever touch you somewhere on
             your body during the time you stayed in this hotel?

             A. Yes.

             Q. Please describe what happened?

             A. I don’t remember the general time. I remember a
             specific time that I can think of. I was laying on the end
             of the bed and they were--my mom and Sergeant Pasay . . .
             and I felt a hand come over and try to grope my breast.

      After asking a series of questions that identified the hand as being appellant’s
and clarifying that her breast was grabbed under her clothing, the trial counsel
continued:

             Q. And [AM], was that the only time that you recall
             someone touching you in the hotel room?

             A. I know that there were more times after that, but I can’t
             think of any more specific times.

       We find this evidence legally insufficient to support a finding that appellant
touched AM’s breast on more than one occasion. Had appellant been convicted of
the offense as charged, we would be required as a matter of law to except out the
language “on divers occasions.” AM’s testimony that she “knows” someone touched
her on other occasions, but cannot actually testify to the other occasions because of
a lack of memory, is legally insufficient to support the conclusion that appellant
touched her breast more than once. No reasonable fact finder could convict
appellant of touching AM’s breast on more than one occasion based on this
testimony.

                           4. Specification 12 of Charge I

      In June 2012, AM had turned sixteen years old–the age of consent under the
UCMJ. Accordingly, specifications that alleged appellant had sexual intercourse
with AM after June of 2012 included an element of force or threats.
                                          5
PASAY—ARMY 20140930

        Specification 12 of Charge I alleged that at or near Killeen, Texas, between
about 28 June 2012 and 1 September 2012, appellant raped AM by force on divers
occasions. Again, the military judge excepted out the words “on divers occasions.”
AM’s testimony on direct-examination was that during the relevant time period,
appellant had raped her. However, other than the conclusory statement, she never
testified about what appellant did that constituted rape. The key portions of her
direct exam were as follows:

               Q. And [AM], can you tell us did anything happen with
               you and Sergeant Pasay when you stayed with him that
               summer?

               A. Yes.

               Q. And can you tell us what happened?

               A. He raped me.

               ...

               Q. Okay, and so [AM], can you tell us where he raped
               you?

               A. He would make up reasons why he needed to leave the
               house and he would make me go with him, and he would
               take me to his apartment in Cove. 5

               Q. And what would happen when you came to this
               apartment?

               A. He would make me take off my clothes.

               ...

               Q. After you took your clothes off, can you tell us what
               would happen?

               A. He’d penetrate me.

               Q. And [AM], can you tell us where he would penetrate
               you on your body?

5
    Copperas Cove, Texas is next to Killeen, Texas.

                                            6
PASAY—ARMY 20140930


             A. On my vagina.

             Q. And what part of his body did he use?
             A. His penis.

             Q. And [AM], can you tell us how many times this
             happened?

             A. Almost every day.

       On review, we find her initial direct testimony was legally insufficient to
establish that appellant had raped her “almost every day.” While AM’s testimony is
legally sufficient to establish that she had sexual intercourse with appellant multiple
times during the charged time frame, there is no evidence that appellant used force.
Force is defined as the use of a weapon, the use of physical strength or violence
sufficient to overcome resistance, or inflicting physical harm sufficient to coerce or
compel submission. UCMJ, art. 120(g)(5). There simply was no testimony about
the key element of force.

      Perhaps sensing the lack of evidence, the trial counsel returned to this topic
on redirect:

             Q. During that period of time when you lived with him,
             were there ever any times that you tried to physically
             resist or tell him no when he would take you to this
             apartment?

             A. There was one time [emphasis added] where [M] and
             my brothers had went to the pool and to do laundry . . .
             and he brought me into their bedroom and made me lay on
             the floor, and he got on top of me, and he asked if he
             could choke me and I said no, so he put his hand around
             my neck and said that he wasn’t going to squeeze, he just
             wanted to put his hand on my neck.

             Q. And can you tell--Did he actually do that?

             A. Yes.
             ...

             Q. When he put his hand around your neck, what did you
             feel?


                                           7
PASAY—ARMY 20140930

             A. I just felt scared.

             Q. And did he squeeze his hand on your neck at all?

             A. At that time, no.

             Q. Was there anything else happening when he put his
             hand around your neck?

             A. Yeah. He penetrated me.

             Q. . . . And [AM], during the time that you lived with him
             in that summer, were there ever any other times that he put
             his hands on your neck?

             A. No ma’am.

       This redirect-examination provided legally sufficient evidence of only a
single occasion of rape. Accordingly, we do not find the findings to be ambiguous.

                5. Factual Sufficiency of Specification 12 of Charge I

       The unambiguous findings allow us to conduct our review under Article 66(c),
UCMJ. See Walters, 58 M.J. at 395. We address the issue of factual sufficiency
here as it directly borrows from our immediate prior discussion regarding the legal
sufficiency of the evidence. Having now conducted a factual sufficiency review, we
find the evidence factually insufficient to support appellant’s conviction for rape.
United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). 6

6
  With regards to the remaining specifications, giving no deference to the findings of
the trial court, but recognizing that the court-martial had the ability to see and hear
the evidence, we find the evidence to be factually sufficient. See United States v.
Davis, 75 M.J. 537, 546 (Army Ct. Crim. App. 2015) (“[T]he degree to which we
‘recognize’ or give deference to the trial court’s ability to see and hear the witnesses
will often depend on the degree to which the credibility of the witness is at issue.”).
Additionally, appellant testified in this case. In United States v. Pleasant, 71 M.J.
709, 713 (Army Ct. Crim. App. 2012) we stated an accused “testifies at his own
peril” and adopted the logic of the United States Court of Appeals for the Eleventh
Circuit:
             “Most important, a statement by a defendant, if
             disbelieved by the jury, may be considered as substantive
             evidence of the defendant’s guilt. By ‘substantive’ we
                                                                         (continued . . .)

                                           8
PASAY—ARMY 20140930

       As related above, when asked if appellant ever “squeezed” her neck AM
answered, “At that time, no.” There are two possible interpretations to her
testimony. The first is that appellant did not initially use force, violence, or inflict
physical harm but did so only later during the sexual intercourse. The second, is
that appellant may have squeezed her neck during a subsequent assault or not at all.
Both interpretations are reasonable readings of the record. Reading the entire
testimony in context, the former is the more likely given AM’s later testimony that
this was the only time appellant placed his hand on her neck. What is missing from
the government’s case, however, is the follow-up question that would have
definitively answered the question beyond a reasonable doubt.

       Article 66(c), UCMJ, requires us to set aside a specification when we are not
personally convinced of the appellant’s guilt beyond a reasonable doubt. Of course,
we were not present at trial. Accordingly, this unusual appellate requirement comes
with the admonition that we recognize the trial court’s superior position in seeing
and hearing the witnesses. Id. Here, even with such recognition, Article 66(c),
UCMJ, compels us to find the evidence of rape to be factually insufficient.
Accordingly, we will set aside appellant’s conviction to rape in our decretal
paragraph and affirm only a finding of guilty to the lesser-included offense of sexual
assault by bodily harm.

                       B. Disqualification of the Military Judge

       Appellant was assigned to a subordinate unit of III Corps. The military judge
in this case, Lieutenant Colonel (LTC) Wade Faulkner, had served as the chief of
justice (CoJ) of III Corps before becoming a military judge. Lieutenant Colonel
Faulkner’s time as CoJ overlapped with the time appellant’s case was being
investigated by Army Criminal Investigation Command (CID). Appellant now
asserts LTC Faulkner had previously acted “as counsel” in the case, and was
therefore disqualified from serving as the military judge.

(. . . continued)
               mean evidence adduced for the purpose of proving a fact
               in issue as opposed to evidence given for the purpose of
               discrediting a witness (i.e., showing that he is unworthy of
               belief), or of corroborating his testimony. . . . when a
               defendant chooses to testify, he runs the risk that if
               disbelieved the jury might conclude the opposite of his
               testimony is true.”
United States v. Williams, 390 F.3d. 1319, 1325 (11th Cir. 2004) (quoting United
States v. Brown, 53 F.3d 312, 314 (11th Cir. 1995)). An accused’s testimony that
the stoplight was red, if incredulous, can be considered as positive evidence the light
was in fact green.
                                            9
PASAY—ARMY 20140930

       A military judge shall disqualify himself or herself when the military judge
has acted “as counsel” in the case. R.C.M. 902(b)(2). Military judges must also
recuse themselves when they have “forwarded the charges in the case with a
personal recommendation as to disposition.” R.C.M. 902(b)(3).

       Prior to arraignment, the military judge disclosed to the parties his prior
duties as CoJ. He gave a somewhat detailed explanation of his duties as CoJ. With
regards to appellant’s case, he stated he had no recollection of ever hearing about
the case, discussing the case, or otherwise being involved in the case. He further
stated he did an email search and found one relevant email. Judge Faulkner further
disclosed that he forwarded the email to two trial counsel. Neither party asked any
questions of Judge Faulkner. Neither party challenged Judge Faulkner. Appellant
elected to be tried by Judge Faulkner alone. On appeal, it is the forwarding of this
email that appellant alleges constituted Judge Faulkner as having acted “as counsel.”

       The email’s subject line was “FW: Report of Investigation Status ROI [##]”.
The entire contents of the email was “Report of Investigation Status ROI [##] has
been approved.” The status report was included as an attachment, and contained a
brief summary of the investigation status. Lieutenant Colonel Faulkner forwarded
the email to two trial counsel, Captain (CPT) BG and Mrs. AF, who was a captain at
the time, without comment. 7

                               1. Post-trial Affidavits

      The parties have supplemented the record with affidavits from LTC (ret.)
Faulkner, the two trial counsel who were responsible for the case pre-preferral, and
both defense counsel. We briefly summarize the affidavits from all five individuals.

                   a. LTC Faulkner (Former CoJ/Miltiary Judge)

       Lieutenant Colonel Faulkner restated his duties and responsibilities as the III
Corps CoJ. He also restated that he had no memory of discussing the case or even
forwarding the email in question. He further stated he kept a copy of the tracker he
used as the III Corps CoJ. The investigation of SGT Pasay was not listed on the
tracker. Lieutenant Colonel Faulkner stated he could not explain why it was not on
the tracker.

7
  For reference, we provide the following dates: The charges alleged appellant’s
offenses happened between March 2008 and September 2012. Charges were
preferred in January 2013 and referred on November 2013. Appellant was arraigned
in May 2014. Lieutenant Colonel Faulkner was the CoJ of III Corps from June 2011
to July 2013. The email in question was sent to LTC Faulkner on 12 September
2011 and forwarded to the trial counsel without comment six minutes after it was
received.
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PASAY—ARMY 20140930

                         b. CPT BG (Former Trial Counsel)

       Captain BG was the trial counsel covering appellant’s unit from July 2010
until March 2012. He swore he had no recollection of receiving the email in
question or any having any substantive discussions with LTC Faulkner about the
case. He stated trial counsel generally opined on probable cause without discussing
the issue with LTC Faulkner. He could not recall why it took two years after CID
completed its investigation to prefer charges against appellant.

                         c. Mrs. AF (Former Trial Counsel)

       Mrs. AF took over from CPT BG in April of 2012. She swore that when she
took over, there was “no mention of the Pasay case. It was not on any of my slide
decks. I didn’t brief anyone about it. I didn’t have a case file in my office.” She
further explained that the case had not been pursued because the Army had been
unable to find AM and her mother. She stated that just before she left Fort Hood in
June of 2013, because of a happenstance inquiry, she directed a paralegal to try to
locate AM. Her paralegal subsequently located AM, thereby reenergizing the case
and leading to appellant’s subsequent prosecution and conviction. She does not
recall ever briefing LTC Faulkner on this update.

                        d. Mr. JJ (Civilian Defense Counsel)

        As appellant alleged his counsel were ineffective, Mr. JJ submitted an
affidavit. Mr. JJ stated after considering the option of a panel and trial by other
judges, he advised appellant that LTC Faulkner was appellant’s “best option for a
fair trial.” He stated he specifically advised appellant that Judge Faulkner had been
the CoJ “during the time the case was initially investigated, opined on, and closed
out.” He stated he discussed it with appellant again leading up to the trial, and
appellant “expressed no concern at all.”

                           e. Major DB (Defense counsel)

       Major (MAJ) DB similarly provided an affidavit to respond to the allegation
of ineffective assistance. She stated she had explained to appellant her experience
in trying “many types of cases” in front of Judge Faulkner, to include allegations of
sexual assault, and that she had received positive results. She further explained to
appellant her knowledge of LTC Faulkner’s prior assignment as the III Corps CoJ.
Major DB told appellant of the two prior cases she had where LTC Faulkner’s time
as a CoJ had overlapped with his judicial duties, and her assessment that LTC
Faulkner was a fair and moderate judge. She specifically advised appellant that LTC
Faulkner was preferable to the other two judges who would likely preside over the
case at Fort Hood.


                                         11
PASAY—ARMY 20140930

                              2. Waiver and Forfeiture

       When a military judge has previously acted “as counsel” in the same case,
R.C.M. 902(e) provides that the military judge shall not accept any waiver by the
parties of the disqualification. That is, the disqualification is “unwaivable.”
Appellant asserts that because a waiver cannot be accepted, the fact that appellant
did not object to LTC Faulkner’s prior service as CoJ is of no consequence. We
disagree.

       Our superior court’s decision in United States v. Jones, 55 M.J. 317 (C.A.A.F.
2001) is perhaps the closest case on point. In that case, a judge on the Navy-Marine
Court of Criminal Appeals had previously served as the chief of the government
appellate division. Id. at 318. While the case was docketed with the court, the
government appellate counsel filed routine motions on the case. Id. By the time all
the briefs were filed, the same person who served as the head of the government
appellate division during the filing of the motions was now an appellate judge
deciding the case. Id.

      Critical to the CAAF’s decision in Jones was that the appellant had not
objected to the judge. Id. at 320. Accordingly, the court applied a plain error test.
Id. The court found it was not plain error when the judge did not sua sponte recuse
himself. Id. at 321.

       Of course, Jones involved the potential disqualification of an appellate judge.
Here, by contrast, we address the alleged disqualification of a trial judge. While the
principles and interests are the same, governing rules do not necessarily follow.
However, we are confident that plain error is also the appropriate test in this case.
The only authority the CAAF cited for applying the plain error test in Jones was
United States v. Schrieber, 599 F.2d 534, 536 (3rd. Cir. 2001), a case involving the
alleged disqualification of a trial judge.

       Moreover, the CAAF’s decision in Jones was consistent with the United
States Supreme Court’s subsequent case of Williams v. Pennsylvania, 136 S. Ct.
1899 (2016). In Williams, the appellant specifically filed a motion asking the chief
judge of the appellate court to recuse himself because of his prior service as the
district attorney who had authorized seeking the death penalty in his case. Had the
appellant in Williams done nothing, while having full knowledge of the chief judge’s
prior involvement in the case, it is far from clear the Supreme Court would have still
held the appellant was entitled to relief.

       Finally, we note that the CAAF’s decision in Jones is consistent with the
requirement of Article 59(a), UCMJ. Absent structural error, which appellant does
not assert applies, we cannot reverse a finding based on an error of law unless we
find material prejudice to one of appellant’s substantial rights. When, as the
                                          12
PASAY—ARMY 20140930

unrebutted affidavits indicate, appellant knowingly and tactically selected to be tried
by Judge Faulkner, we cannot find prejudice to appellant when he got exactly what
he wanted.

                            3. Vertical Imputation Theory

       Before addressing whether Judge Faulkner acted “as counsel,” we first
address an issue raised by appellant. In his brief, appellant asks us to apply the
vertical imputation theory. Under this theory, the actions of subordinates acting as
counsel are attributed to superiors. In other words, if any subordinate acted “as
counsel” in a case then the superior would likewise be considered to have acted “as
counsel.” In this case, this would mean when a subordinate trial counsel offered an
opinion as to probable cause, that action would be imputed to the CoJ.

       However, in the only CAAF case to discuss the vertical imputation theory, the
court rejected it. Jones 55 M.J. at 320-21. Admittedly, the court’s rejection was not
categorical. However, the facts of Jones and this case are sufficiently similar that
we decline appellant’s invitation to blaze new appellate ground and adopt the
vertical imputation theory when our superior court specifically declined to do so in
Jones. 8

       Additionally, R.C.M. 902(a) requires a military judge to recuse himself or
herself anytime the judge’s “impartiality might be reasonably questioned.” That is,
R.C.M. 902(a) adequately requires recusal under circumstances where the military
judge did not directly act as counsel but, because of a senior-subordinate
relationship, a reasonable person might question their fairness. In light of R.C.M.
902(a), adopting the vertical imputation theory to R.C.M. 902(b) as appellant
requests would have two effects.

        First, it would prohibit a military judge from presiding over a case where the
judge’s impartiality could not be reasonably questioned under R.C.M. 902(a). That
is, the only times R.C.M. 902(a) does not overlap with R.C.M. 902(b) is when, under
the circumstances, the military judge’s impartiality is not in question.


8
  The CAAF’s decision in Jones discussed the federal circuits’ different approaches
to determining judicial disqualification when a former U.S. Attorney is invested as a
federal district court judge. 55 M.J. at 319-20. In cases where jurisdictions are
clearly delineated by geography and where personnel are relatively stationary, the
vertical imputation theory at least has the benefit of clarity. Applied to the Army, in
which judge advocates are routinely reassigned every two years and often switch
between government, defense, and judicial positions, the benefits are not as clear
and the administrative burden may be significant.

                                          13
PASAY—ARMY 20140930

       Second, by expanding the scope of R.C.M. 902(b), a potential disqualification
that an accused could have waived under R.C.M. 902(a) would now be unwaivable.
See R.C.M. 902(e). While such a reading would expand the opportunity for an
appellant to claim error on appeal, it would come at the expense of banning the
accused’s ability to tactically waive issues at trial.

                      4. Did LTC Faulkner Act “As Counsel”

       Based on the record on appeal, we hold that LTC Faulkner did not act as
counsel in this case prior to becoming a military judge. The record on appeal
establishes the only involvement by LTC Faulkner in this case as the CoJ was the
forwarding of an email, without comment, six minutes after it was received.

       In Williams, the United States Supreme Court stated that due process requires
the recusal of a judge when the judge previously “made a critical decision” in the
case. In that case, the “critical decision” was to authorize the government to seek
the death penalty. Here, by contrast, it is unclear that LTC Faulkner made any
decision about this case as CoJ, let alone one that was “critical.”

       However, even assuming that LTC Faulkner’s action in forwarding an email
was sufficient for him to be acting “as counsel,” we fail to find plain error. Such a
conclusion is not plain and obvious. Moreover, it is hard to articulate a substantial
prejudice to appellant when the unrebutted affidavits of his counsel indicate that
both counsel and appellant wanted LTC Faulkner to preside as the military judge in
his case. The affidavits attest that there were three military judges at Fort Hood.
The tactical assessment of the defense team was that LTC Faulkner was preferable to
either of the two other military judges. Additionally, appellant did not merely
acquiesce in LTC Faulkner sitting as military judge–he specifically requested it.
Pursuant to Article 16(1)(B), UCMJ, appellant personally requested to be tried by
LTC Faulkner. Appellant therefore appears to have invited the very error he now
requests relief from on appeal.

                        C. Ineffective Assistance of Counsel

       Appellant claims his counsel was ineffective at trial in five areas. First by
failing to interview AM and her mother before appellant’s court-martial. Second, by
advising him to waive the Article 32, UCMJ, investigation. Third, by allegedly
providing the government with inculpatory evidence. Fourth, by failing to introduce
exculpatory evidence. Finally, by failing to adequately object to inadmissible
evidence.

      To establish ineffective assistance of counsel, an appellant must demonstrate
both “(1) that his counsel’s performance was deficient, and (2) that this deficiency


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resulted in prejudice.” United States v. McIntosh, 74 M.J. 294, 295 (C.A.A.F. 2015)
(citation and internal quotation marks omitted).

       We address each allegation of deficient performance in turn. As we do not
find deficient performance, we do not address prejudice. 9

                              1. Interview of witnesses

       Appellant’s counsel did not interview AM or her mother before trial.
Undoubtedly, these were the two most important witnesses for the government.
However, the record of trial and the post-trial affidavits submitted by counsel make
clear, the failure to interview the witnesses was not for a lack of trying. AM and her
mother refused to be interviewed. As we stated in United States v. Guardado:

             Article 46, UCMJ governs compulsory process in courts-
             martial and states that “[p]rocess issued in court-martial
             cases to compel witnesses to appear and testify and to
             compel the production of other evidence shall be similar
             to that which courts of the United States having criminal
             jurisdiction may lawfully issue . . . .” 10 U.S.C. § 846
             (2012) (emphasis added). In other words, by its own
             terms compulsory process is limited to producing
             witnesses to “appear and testify” and does not include a
             requirement that the witness first agree to be interviewed.
             Additionally, a military court cannot exercise greater
             authority in this area than the “courts of the United
             States.”

             While Article 46, UCMJ, also states the “trial counsel, the
             defense counsel, and the court-martial shall have equal
             opportunity to obtain witnesses and other evidence” we do
             not believe this can serve as a basis to compel interviews.
             First, the language specifically limits itself to the ability
             to “obtain witnesses.” Second, the provisions in Article

9
  Broadly speaking, appellant does not address the prejudice prong in his brief.
While appellant explains why he believes his civilian defense counsel was deficient,
there is no substantial attempt to link this to a prejudicial effect at the trial. For
example, while appellant alleges that his counsel should have interviewed witnesses,
he does not explain to us (as is his burden) what the interviews would have
accomplished, or how they may have altered the course of the trial. It may be
deficient to not try to interview an important witness pretrial, but it is only
ineffective if that interview would have revealed something of consequence.

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             46, UCMJ, apply equally to the trial counsel, the defense
             counsel, and the court-martial. That is, whatever the
             parties’ rights under the first phrase of Article 46, it is
             shared by the panel members. See UCMJ, art. 16, 10
             U.S.C. § 816 (2012) (definition of a court-martial). While
             the court-martial may obtain witnesses to testify, the panel
             members cannot conduct pretrial interviews of witnesses.

             ...

             The counsel, like the military judge, lack the authority to
             compel a civilian’s cooperation in pretrial interviews. A
             witness may refuse to be interviewed notwithstanding a
             counsel’s desperate pleas. Absent compulsory process, a
             witness maintains the free will to determine the degree to
             which he or she voluntarily participates in the court-
             martial.

75 M.J. 889, 904 (Army Ct. Crim. App. 2016) (pet. granted on other grounds by
United States v. Guardado, No. 17-0167/AR, ARMY 20140715 (C.A.A.F. 3 March
2017) (order)). As we find no authority for a defense counsel to compel the
cooperation of an unwilling witness to be interviewed, we cannot find counsel’s
performance was deficient.

                      2. Waiver of the Article 32 Investigation

       Appellant next asserts his counsel were deficient when they advised him to
waive the Article 32 investigation. The affidavits submitted by counsel adequately
establish this advice was based on two concerns. First, counsel feared that at an
Article 32 investigation appellant would face the additional charge of obstruction of
justice stemming from his alleged disposal of a laptop computer. Second, counsel
believed there was a very good chance AM would not be available to testify at trial.
AM had been a reluctant government witness and the government had at one point
been unable to locate her. If AM testified at the Article 32 hearing, because her
testimony would be preserved under oath, her Article 32 testimony could be
introduced in court. See Mil. R. Evid. 804(b)(1) (hearsay exception for prior
testimony of an unavailable witness). Appellant’s military defense counsel
submitted, as an attachment to her affidavit, a memorandum for record that
contemporaneously documents these concerns and the discussions with appellant.
Finally, the colloquy between appellant and the military judge compellingly
demonstrates that appellant’s waiver was voluntary.




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PASAY—ARMY 20140930

               3. Providing Inculpatory Evidence to the Government

       In the midst of trial, the defense asked for a one-hour recess so they could, in
part, print a Facebook text conversation between appellant and AM. Defense
counsel stated they needed to print the conversation to use “in cross-examination of
[the next] witness” and to make sure “the government gets them.” The defense’s
cross-examination of AM included getting her to admit the favorable things she had
said about appellant in the conversation. As AM readily admitted the statements, the
printout of the conversation was not used for impeachment.

       To briefly summarize, the Facebook conversation is a discussion about where
AM and her mother should live. In general, the conversation is friendly and
favorable to appellant as AM seeks appellant’s advice about how to convince her
mother not to move to the east coast. AM also expresses a desire to live close to
appellant. However, the conversation does include the admission of appellant that
“if things go bad” with AM’s mom and “you guys [become] homeless,” AM could
live with appellant even though “i know im the last person u want to live with.”

       The government marked the text exchange and used it in their cross-
examination of appellant. The government did not admit the evidence. Appellant
now claims the government became aware of the conversation only because
appellant’s counsel used a prosecution printer to print out the exchange. We find no
deficient performance.

                    4. Failure to Introduce Exculpatory Evidence

        As just discussed, appellant alleged his counsel were ineffective when they
allegedly gave the trial counsel a copy of the Facebook conversation. Appellant also
alleges his counsel were ineffective for not introducing into evidence this same
Facebook conversation. That is, appellant argues–with regards to the same piece of
evidence–that his counsel were ineffective in providing it to the government because
it is clearly inculpatory and that counsel were ineffective for not introducing the
conversation because it is exculpatory. We need not further explain the illogic of
this argument.

                             5. Evidentiary deficiencies

       Appellant combs the record and lists numerous evidentiary objections or
decisions by counsel he alleges constitute deficient performance. The alleged
deficiencies include hearsay objections not made, prior consistent statements that
were made before the defense raised the issue of recent fabrication, and similar
issues. The issues defy easy summarization. However, having reviewed each issue,
given the strong presumption that counsel are competent, and the requirement that
our scrutiny of the performance by counsel be “highly deferential,” we do not find
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deficient performance. Strickland v. Washington, 466 U.S. 668, 689 (1984). Even
more clearly, we also do not find that appellant has met his burden of establishing
prejudice.

       We “do not assess trial defense counsel’s performance through the prism of
appellate hindsight and then apply our subjective view of how we think defense
counsel should have conducted the trial.” United States v. Akbar, 74 M.J. 364, 386
(C.A.A.F. 2015). Gambles may not pay out, a defense strategy may fall flat, and
decisions earnestly made may look unwise once one has the benefit of knowing the
verdict. To be sure, a witness’s answer to a question may be hearsay. But trials are
fluid events. Counsel must weigh the benefit of an objection against the risk of the
opposing counsel’s response and the change in the trial’s trajectory. Counsel at trial
are not reading a cold transcript. They see and hear the witnesses, and they can
observe the effect of the testimony on the fact finder. Often, a trial has a feel to
those in the courtroom that will not be adequately reflected in the transcribed record.
Whether to object to testimony is not merely a matter of evidentiary rules.
Objections may highlight evidence a counsel assesses is best left without emphasis.
And, objections allow the opposing party to respond. There is little to be gained by
objecting to hearsay if the government’s response is to lay a foundation for an
exception that bolsters the weight of the evidence.

                                   CONCLUSION

      The court affirms only so much of the finding of guilty of Specification 12 of
Charge I as finds the appellant:

             Did, at or near Killeen, Texas, between on or about 28
             June 2012 and on or about 1 September 2012, commit a
             sexual act upon AM, to wit: penetrating with his penis,
             the vulva of AM, by causing bodily harm to AM.

The remaining findings of guilty are AFFIRMED.

       We are able to reassess the sentence on the basis of the error noted and do so
after conducting a thorough analysis of the totality of circumstances presented by
appellant’s case and in accordance with the principles articulated by our superior
court in United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013) and
United States v. Sales, 22 M.J. 305 (C.M.A. 1986). We are confident that based on
the entire record and appellant’s course of conduct, the military judge would have
imposed a sentence of at least that which was adjudged, and accordingly we
AFFIRM the sentence.




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PASAY—ARMY 20140930

      We find this reassessed sentence is not only purged of any error but is also
appropriate. All rights, privileges, and property, of which appellant has been
deprived by virtue of that portion of the findings set aside by our decision, are
ordered restored.

      Senior Judge MULLIGAN and Judge FEBBO concur.

                                          FOR THE COURT:
                                          FOR THE COURT:



                                          JOHN P. TAITT
                                          JOHN
                                          Deputy P. TAITT
                                                 Clerk of Court
                                          Deputy Clerk of Court




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