UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                           Before
                              COOK, CAMPANELLA, and HAIGHT
                                  Appellate Military Judges

                               UNITED STATES, Appellee
                                           v.
                           Specialist MARVIN L. MAYBERRY
                             United States Army, Appellant

                                       ARMY 20110486

                     Headquarters, Fort George G. Meade (trial)
     Headquarters, Combined Arms Center and Fort Leavenworth (DuBay hearing)
                       Denise R. Lind, Military Judge (trial)
                  G. Bret Batdorff, Military Judge (DuBay hearing)
        Lieutenant Colonel Elizabeth G. Marotta, Staff Judge Advocate (trial)
      Lieutenant Colonel Luisa Santiago, Staff Judge Advocate (DuBay hearing)


For Appellant: Major Vincent T. Shuler, JA; Captain Ian M. Guy, JA (on reply
brief); Colonel Patricia A. Ham, JA; Major Jacob D. Bashore, JA; Captain Ian M.
Guy, JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Captain Sean Fitzgibbon, JA (on brief).

                                          27 June 2014
                                   ---------------------------------
                                   MEMORANDUM OPINION
                                   ---------------------------------

    This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

CAMPANELLA, Judge:

       A panel composed of officer and enlisted members sitting as a general court-
martial convicted appellant, contrary to his pleas, of aggravated sexual contact,
forcible sodomy, assault consummated by battery, and communicating a threat, in
violation of Articles 120, 125, 128 and 134 of the Uniform Code of Military Justice,
10 U.S.C. §§ 920, 925, 928 and 934 (2006 & Supp. III 2010) [hereinafter UCMJ]. 1

1
 The panel found appellant not guilty of kidnapping, in violation of Article 134.
Also, after findings, the military judge dismissed specifications of aggravated sexual
contact, assault consummated by battery, and assault with intent to commit sodomy,
all of which appellant was convicted, as an unreasonable multiplication of charges.
MAYBERRY—ARMY 20110486


The panel sentenced appellant to a dishonorable discharge, confinement for five
years, forfeiture of all pay and allowances, and reduction to the grade of E-1. At
action, the convening authority disapproved the communicating a threat conviction
and approved the remaining findings of guilty. The convening authority approved
only so much of the sentence as provided for a dishonorable discharge, confinement
for fifty-four months, forfeiture of all pay and allowances, and reduction to the
grade of E-1.

       This case is before us for review under Article 66, UCMJ. Appellant raises
two assignments of error, one of which merits discussion but no relief. The
remaining assignment of error and those matters personally raised by appellant
pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982) are without
merit.

       Appellant asserts that his defense counsel were constitutionally ineffective
during the findings and presentencing portions of his court-martial by failing to
investigate, prepare, and present defense and mitigation evidence.

       On 26 September 2013, this court ordered a DuBay hearing to determine
additional facts and circumstances surrounding trial defense counsel’s investigation,
preparation, and presentation of defense and mitigation evidence on behalf of
appellant. The DuBay hearing concluded 28 April 2014.

       Based on the record before us, we do not find defense counsel’s performance
constitutionally deficient.

                                 BACKGROUND

       Appellant met BR on a dating website. They exchanged messages for a few
weeks before arranging a meeting at a bar. During the course of their date, they
socialized, drank alcohol, and mingled. At one point, appellant heatedly argued with
and used threatening language towards a male friend who indicated that he was
interested in dating BR if appellant was not.

      At the end of the evening, BR rode back to Fort Meade with appellant in his
vehicle. Outside his barracks, appellant and BR socialized with others and
eventually went to appellant’s room to watch a movie. Once in the room, both
changed into more comfortable clothes, lay on appellant’s bed, and began watching a
movie. After a short period, BR turned away from appellant to go to sleep.
Appellant turned BR over, threatened her, forced her to touch his penis with her
hand, and forced her to perform oral sodomy on him. Appellant then ejaculated on
BR’s chest.

      In its case-in-chief, the government presented strong victim testimony as well
as appellant’s statement to CID corroborating in large measure the victim’s account
provided to law enforcement and attested to at trial. Defense responded in its case

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MAYBERRY—ARMY 20110486


on the merits by putting forward a “good soldier” defense consisting of two
witnesses who testified about appellant’s good military character and good duty
performance: a Lieutenant Colonel who supervised appellant for five months while
deployed, and a Staff Sergeant who supervised and knew appellant for almost two
years in garrison. Ultimately, appellant was convicted of forcible sodomy,
aggravated sexual contact, assault consummated by battery, and communicating a
threat. 2

      During the presentencing phase of the trial, defense counsel called the
Lieutenant Colonel who previously testified in support of appellant on the merits.
Appellant’s wife and mother also provided testimony, and appellant provided an
unsworn statement. The panel sentenced appellant to a dishonorable discharge,
confinement for five years, forfeiture of all pay and allowances, and reduction to the
grade of E-1.

      For post-trial clemency matters, appellant was represented by new defense
counsel. Appellant’s new attorney provided substantial post-trial matters pursuant
to Rules for Courts-Martial [hereinafter R.C.M.] 1105 and 1106. Appellant’s
submission specifically addressed the alleged ineffectiveness of his defense counsel,
including their failure to investigate and failure to present defense, extenuation, and
mitigation evidence. The matters included forty-three character letters written by
both military members and civilians on behalf of appellant to support this argument.

      The staff judge advocate (SJA) revised her post-trial advice to the convening
authority and recommended an additional three-month reduction in confinement. 3
The convening authority approved the recommended fifty-four months of
confinement.

      Prior to trial, appellant provided his defense counsel with a list of fifteen
witnesses willing to testify on his behalf. Appellant now complains that these
witnesses were either not contacted by counsel or not called as witnesses during his
court-martial.




2
 The panel also convicted appellant of the three previously noted additional
offenses that were dismissed by the military judge after findings.
3
  Prior to appellant’s post-trial clemency submission, the servicing SJA
recommended to the convening authority that the Article 134 offense of
communicating a threat be dismissed for failing to state the terminal element in
accordance with our superior court’s holding in United States v. Fosler, 70 M.J. 225
(C.A.A.F. 2011). She also recommended the sentence be reassessed based on
disapproval of the Article 134 offense and the confinement period be reduced to
fifty-seven months.

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MAYBERRY—ARMY 20110486


                                    DISCUSSION

       To establish ineffective assistance of counsel, appellant “bears the h e a v y
burden” of satisfying the two-part test that: “the performance of his counsel was
deficient and that he was prejudiced thereby.” United States v. Weathersby , 48 M.J.
668, 670 (Army Ct. Crim. App. 1998) (citing Strickland v. Washington, 466 U.S. 668
(1984); United States v. Scott, 24 M.J. 186 (C.M.A. 1987)). Regarding the first
prong, counsel is presumed competent; thus, appellant “must rebut the presumption
by pointing out specific errors made by his defense counsel which were
unreasonable under prevailing professional norms.” Weathersby, 48 M.J. at 670
(citing United States v. Cronic, 466 U.S. 648 (1984)).

             Judicial scrutiny of counsel’s performance must be highly
             deferential. It is all too tempting for a defendant to
             second-guess counsel’s assistance after conviction or
             adverse sentence, and it is all too easy for a court,
             examining counsel’s defense after it has proved
             unsuccessful, to conclude that a particular act or omission
             of counsel was unreasonable.         A fair assessment of
             attorney performance requires that every effort be made to
             eliminate the distorting effects of hindsight, to reconstruct
             the circumstances of counsel’s challenged conduct, and to
             evaluate the conduct from counsel’s perspective at the
             time. Because of the difficulties inherent in making the
             evaluation, [an appellate] court must indulge a strong
             presumption that a defense counsel’s conduct falls within
             the wide range of reasonable professional assistance; that
             is, [an appellant] must overcome the presumption that,
             under the circumstances, the challenged action “might be
             considered sound trial strategy.” There are countless ways
             to provide effective assistance in any given case. Even
             the best criminal defense attorneys would not defend a
             particular client the same way.

Strickland, 466 U.S. at 689 (citations omitted).

       “Thus, a court deciding an ineffectiveness claim must judge the
reasonableness of counsel’s challenged conduct on the facts of the particular case,
viewed as of the time of counsel's conduct.” Id. at 690. “[S]trategic choices made
after thorough investigation of law and facts relevant to plausible options are
virtually unchallengeable; and strategic choices made after less than complete
investigation are reasonable precisely to the extent that reasonable professional
judgments support the limitations on investigation.” Id. at 690-691.
      To establish prejudice and meet the second prong, appellant must show
“counsel’s errors were so serious as to deprive the accused of a fair trial, a trial
whose result is reliable.” Weathersby, 48 M.J. at 670. This requires appellant to

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show that the errors had more than “some conceivable effect” on the proceedings,
but appellant “need not show that counsel’s deficient conduct more likely than not
altered the outcome in the case.” Strickland, 466 U.S. at 693.

       In this case, appellant provided his defense counsel a list of fifteen potential
witnesses. Defense counsel’s strategy, as agreed upon by appellant, was to establish
a “good soldier” defense through military witnesses who supervised appellant and
were senior to him. 4 This eliminated the majority of the individuals on appellant’s
list. Defense counsel also excluded two potential character witnesses who had
committed misconduct and would not have been ideal character witnesses. Only one
additional witness who fit into the defense’s criteria was not called as a defense
witness. However, this witness had only supervised appellant for a few months. In
sum, the defense’s approach and reasoning in having only two military witnesses
testify was not ineffective and, based on the record before us, was reasonable. 5

       Even assuming defense counsel’s approach was deficient, appellant also fails
to demonstrate that counsel’s errors were so serious as to deprive him of a fair trial.
There is no reasonable probability of a different outcome if additional “good
soldier” witnesses appeared at trial on the merits. Further, with regard to
sentencing, the convening authority adequately addressed any possible prejudice
appellant may have suffered. See United States v. Bono, 26 M.J. 240, 242-43
(C.M.A. 1988).

       Although we find counsel in this case were not constitutionally ineffective in
accordance with Strickland, we have serious concerns regarding the apparent failure
of defense counsel to oversee a paralegal under their supervision who was tasked to
interview witnesses on behalf of counsel. Rule 5.3(b) of the Rules of Professional
Conduct for Lawyers obligates judge advocates (JA) to oversee the duty performance
of paralegals to ensure all activities are consistent with the Rules of Professional
Conduct and requires, at a minimum, that JAs provide adequate instruction when
assigning projects, monitor the progress of those projects, and review them when
complete. Army Reg. 27-26, Rules of Professional Conduct for Lawyers, Rule 5.3
(Responsibilities Regarding Nonlawyer Assistants) (1 May 1992). Judge advocates
cannot delegate responsibility for interviewing witnesses to a paralegal without
adequate oversight. In this case, defense counsel did not provide that oversight or
follow-up with their paralegal regarding the interviews she was tasked to conduct
4
 In his findings of fact following the DuBay hearing, the military judge found that
“appellant agreed to the use of a good-soldier defense [but] . . . did not agree,
however, to only using two witnesses to support the good-soldier defense.”
5
 Appellant also raises the issue of a lack of evidence presented regarding character
for peacefulness. We find that defense counsel’s tactical decision not to put into
play appellant’s “reputation for peacefulness” well-reasoned in light of his
admissions to criminal investigators, as well as his aggressive behavior both at the
bar on the night in question and on previous occasions.


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MAYBERRY—ARMY 20110486


with potential defense witnesses. Counsel are cautioned to exercise appropriate
vigilance in this area. While in this case the overall performance of defense counsel
was not ineffective despite this failure, under other circumstances, this failure could
have led to a different conclusion.

                                   CONCLUSION

      On consideration of the entire record, including consideration of the issues
personally specified by the appellant, the findings of guilty and the sentence are
AFFIRMED.

      Senior Judge COOK and Judge HAIGHT concur.


                                        FOR
                                        FOR THE
                                            THE COURT:
                                                COURT:




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




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