   United States Navy-Marine Corps
       Court of Criminal Appeals
                     _________________________

                       UNITED STATES
                           Appellee

                                 v.

                    R. Bronson WATKINS
             Staff Sergeant (E-6), U.S. Marine Corps
                            Appellant

                         No. 201700246

 Appeal from the United States Navy-Marine Corps Trial Judiciary.
      Argued: 20 December 2018—Decided: 21 February 2019.
                          Military Judge:
            Lieutenant Colonel Matthew J. Kent, USMC.
Sentence adjudged on 27 March 2017 by a general court-martial panel
consisting of officer and enlisted members. Sentence approved by the
convening authority: reduction to E-1, confinement for 5 years, and a
dishonorable discharge.
                          For Appellant:
        Lieutenant Daniel E. Rosinski, JAGC, USN (argued).
                           For Appellee:
         Lieutenant George R. Lewis, JAGC, USN (argued);
              Major Kelli A. O’Neil, USMC (on brief).
                     _________________________

     This opinion does not serve as binding precedent, but
          may be cited as persuasive authority under
           NMCCA Rule of Appellate Procedure 30.2.
                     _________________________

          Before WOODARD, FULTON, and CRISFIELD,
                   Appellate Military Judges
                      United States v. Watkins, No. 201700246


   Senior Judge FULTON delivered the opinion of the Court, in which
   Chief Judge WOODARD and Judge CRISFIELD joined.

FULTON, Senior Judge:
    A general court-martial convicted the appellant, contrary to his pleas, of
two specifications of failure to obey a lawful order and one specification each
of sexual abuse of a child and obstructing justice, in violation of Articles 92,
120b, and 134, Uniform Code of Military Justice (UCMJ). 1 The appellant’s
counsel raises seven assignments of error. We specified an additional issue,
and we have combined and reordered the alleged errors as follows:
         I. The appellant’s civilian defense counsel labored under an
            actual conflict of interest, and the military judge erroneous-
            ly denied his motion to withdraw;
        II. The military judge violated the appellant’s right to be rep-
            resented by counsel of his choice;
       III. The military judge erred by admitting a forensic interview
            of the victim under the residual hearsay exception;
        IV. The evidence that the appellant committed a lewd act upon
            his daughter is factually insufficient;
         V. The military judge’s instructions on obstructing justice
            were erroneous, and the appellant’s counsel were ineffective
            for failing to object to them;
        VI. The evidence that the appellant obstructed justice is legally
            and factually insufficient;
       VII. The convening authority’s action fails to accurately reflect
            the findings of the appellant’s court-martial.
    The appellant raises two additional assignments of error personally under
United States v. Grostefon, 2 which we have considered and find to be without
merit. 3 We find that the convening authority’s action does fail to accurately
reflect the findings of the court-martial, and we order appropriate relief.
Finding no other prejudicial error, we affirm.




   1   10 U.S.C. §§ 892, 920b, and 934 (2016).
   2   12 M.J. 431 (C.M.A. 1982).
   3   See United States v. Clifton, 35 M.J. 79, 81 (C.M.A. 1992).


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                  United States v. Watkins, No. 201700246


                              I. BACKGROUND

    The appellant was convicted of sexually abusing his nine-year-old daugh-
ter, CKW, by touching her breasts and vaginal area with his hands. In Janu-
ary 2016 CKW told her mother (the appellant’s wife), that the appellant had
sexually abused her that evening. The appellant’s wife began to cry and the
appellant immediately left the home. He sent apologetic texts to his wife, say-
ing that he deserved to die and that that CKW would be better off without
him. We he returned home, his wife threatened him with divorce. He re-
sponded by putting his wife’s prescription pain medication in his mouth and
threatened to swallow it.
    The appellant’s wife immediately reported CKW’s allegations to law en-
forcement. A social worker visited the home the next day and took reports
from the appellant’s wife and daughter. A few days later, a forensic inter-
viewer interviewed CKW, and CKW reluctantly told the interviewer that her
father had touched her inappropriately more than once. The appellant’s
command issued the appellant a military protective order directing him to
have no contact with his family—an order the appellant repeatedly violated.
Sometime after the forensic interview, the appellant’s wife and daughter
stopped cooperating with the government and attempted to avoid being
served with subpoenas.
    The appellant’s theory at trial was that his daughter had found him look-
ing at pornography on a computer and, worried that this might cause a prob-
lem in her parents’ marriage, made up an allegation of sexual abuse so that
her parents would have to talk to one another and not get divorced.
   Additional facts necessary to the resolution of particular assignments of
error are included in the discussion.

                              II. DISCUSSION

A. Conflict of Interest and Choice of Counsel
    The appellant was represented by a civilian defense counsel, retired Ma-
rine Corps judge advocate Mr. W. After an angry off-the-record exchange be-
tween Mr. W and the Regional Trial Counsel, LtCol K, Mr. W moved to with-
draw from the case and the appellant stated that he no longer wished to be
represented by Mr. W. The military judge did not permit Mr. W to withdraw,
and the appellant claims on appeal that Mr. W was encumbered by a conflict
of interest. We specified the related issue of whether the military judge’s de-
nial of Mr. W’s motion to withdraw violated the appellant’s right to be repre-
sented by counsel of his choice. We conclude that Mr. W did not have a con-




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                   United States v. Watkins, No. 201700246


flict of interest, and that the military judge did not erroneously deprive the
appellant of his right to be represented by the counsel of his choice.

   1. Facts related to counsel issues
    Shortly after CKW’s allegations were reported to law enforcement offi-
cials, the government referred charges to a general court-martial alleging
that the appellant sexually abused CKW. The appellant was arraigned on 1
July 2016, and Mr. W entered his appearance on 12 July 2016. He asked for
and received a short continuance. The military judge scheduled trial for 12
September 2016.
    On 2 September 2016, CKW sent a letter to the government claiming that
she had fabricated the allegations against her father. This prompted the gov-
ernment to file a number of motions, and the military judge continued the
trial an additional day in order to litigate the motions. With trial approach-
ing, the government went to great lengths to locate and subpoena the appel-
lant’s wife. On 6 September, seven days before the appellant’s trial was to
begin, the appellant’s wife and two daughters vacated their on-base housing
and moved into a hotel, where they stayed for four days while the govern-
ment tried to locate them. Ignoring his military protective order, the appel-
lant visited his family at the hotel. In spite of this contact with her husband
days before his scheduled court-martial, the appellant’s wife denied knowing
that the appellant’s trial was scheduled to start on 12 September. She also
denied being aware of the government’s attempts to contact her. Three days
before the appellant’s court-martial was to begin, the appellant’s wife and
children moved again. The appellant’s wife, who was from Uganda, had a
Ugandan friend whose family lived in a Los Angeles apartment. The appel-
lant’s wife and two daughters shared the apartment with this family.
     At the motion session held on what was to have been the first day of trial,
the government reported to the military judge that they could not locate the
appellant’s wife or CKW. An investigator had delivered subpoenas to the fam-
ily’s home, called, sent texts, and asked neighbors where the family might be.
The investigator even attempted to serve the subpoena by text message, tak-
ing a picture of the subpoena and sending it to the appellant’s wife’s cell
phone.
   The investigator obtained the family’s bank records and found that the
appellant’s wife had recently used a debit card to make a purchase at a San
Diego bookstore. This purchase was significant to the investigator because
the bookstore was “next door” to Mr. W’s law office, and the purchase had




                                        4
                     United States v. Watkins, No. 201700246


taken place on a day when the investigator believed that the appellant had
been to the office to meet with Mr. W. 4
    The investigator also thought it significant that about $22,000 had recent-
ly been deposited into a bank account accessible to the appellant’s wife. A
neighbor had informed him that the appellant’s wife had expressed an inter-
est in returning to Africa if she could afford to. Arguing that the appellant’s
wife was actively trying to avoid service, the government moved for a writ of
attachment.
    The military judge agreed that the appellant’s wife was avoiding service,
but noted that a writ of attachment could not be issued until a witness who
had been personally served failed to appear for trial. He found that service by
cell phone text message did not meet the personal service requirement. The
military judge therefore denied the government’s motion for a writ of attach-
ment.
    In the face of the investigator’s testimony concerning his law office, Mr. W
took the opportunity, both on cross-examination and during argument, to ad-
dress the suggestion that he was in any way to blame for the government’s
difficulty with serving the appellant’s wife. He pointed out that he had only
met the appellant’s wife one time, and that that meeting took place at her on-
base residence. He further stated that he rarely went to his office and usually
met with clients on base. The trial counsel’s interpretation was that while
this evidence might implicate the appellant, he did not believe that it impli-
cated Mr. W. And the military judge stated that he did not suspect that
Mr. W was involved in any conspiracy to keep the appellant’s wife beyond the
government’s reach.
    Unable to produce the appellant’s wife and CKW, the government moved
for a continuance. The parties agreed to delay the trial for about four months,
to January 2017.
    Meanwhile, the appellant’s wife had moved into her Ugandan friend’s
apartment three days before the appellant’s scheduled court-martial, and she
told her hosts that she and her daughters would be staying for one week. Af-
ter the appellant’s trial was continued from September to January, however,
one week became four months. At least one adult in the host family under-
stood that she was there to avoid a subpoena. During the continuance, the
appellant repeatedly violated his military protective order by visiting his
family.




   4   Appellate Exhibit (AE) XL at 13.


                                          5
                        United States v. Watkins, No. 201700246


     Eventually the investigators learned where the appellant’s wife was stay-
ing and personally served her with a subpoena. Shortly thereafter, investiga-
tors learned that the appellant had been violating his military protective or-
der. The government apprehended the appellant and searched his car and
two cell phones. A search of the appellant’s browser history revealed that the
appellant had searched the internet using search terms such as “dodging be-
ing served a subpoena;” “If I avoid a subpoena but am aware they are trying;”
and “if I avoid receiving a subpoena is that obstruction of justice.” After the
government investigator sent a text to the appellant’s wife with the picture of
the subpoena, the appellant searched “subpoena a witness via text.” 5 The ap-
pellant had also been researching whether Uganda had an extradition treaty
with the United States and how to tell if one is on the government’s no-fly
list. The government was also able to obtain a video recording of the appel-
lant meeting his wife at the hotel where his family had stayed days before
moving in with the Ugandan family. The government ordered the appellant
into pretrial confinement, where he remained until trial.
    Now in possession of evidence that the appellant had committed addition-
al offenses, the government dismissed the appellant’s original charges and
preferred new ones reflecting both sexual abuse of CKW as well as violations
of the military protective order and obstructing justice. The new charges were
referred to a general court-martial.
    Since the appellant’s original charges had been dismissed, the appellant’s
wife no longer had to comply with the subpoena. About a week after being
served in Los Angeles, the appellant’s family moved yet again, this time to
Mississippi to stay with the appellant’s parents. Again a government investi-
gator tracked them down and traveled to Mississippi to serve new subpoenas
for the pretrial motions hearing and the trial on the merits.
    At a motions hearing for the newly referred charges, the government re-
turned to the subject of Mr. W’s law office, and its proximity to the book store
where the appellant’s wife had used her debit card. The military judge as-
serted that the fact that the appellant’s wife had been in a bookstore near
Mr. W’s office was not relevant, and ruled that neither government counsel
nor testifying agents could refer to that fact. But the government insisted it
was relevant because, “it is where the accused could have potentially met
with [his wife] and in the same vicinity of where he did meet with her later.” 6
The military judge asked if the government had any evidence that the appel-




   5   Prosecution Exhibit (PE) 10.
   6   Record at 183.


                                          6
                         United States v. Watkins, No. 201700246


lant had been there at the same time. The government did not, and the mili-
tary judge persisted in his ruling.
    After the military judge maintained his ruling on this matter, the Region-
al Trial Counsel for Camp Pendleton, LtCol K, who was sitting behind the
bar, told trial counsel to ask for a recess. When the military judge recessed
the court, LtCol K began to argue with the civilian defense counsel. Mr. W
insisted that he had not been at his office the day the appellant’s wife had
been at the book store. LtCol K told Mr. W, in a raised voice, that he “didn’t
care;” that “this whole thing is shady;” and that “this isn’t over” or words to
that effect. 7
    When court resumed, the parties litigated the government’s search of the
appellant’s cell phones. The defense argued that government’s search of the
appellant’s phone was too broad, and that government agents took too little
care to ensure that the search did not intrude on communications between
the appellant and his attorneys. The defense argued that the search had left
attorney-client correspondence in the form of text messages in the govern-
ment’s possession.
    The motions hearing and LtCol K’s heated off-the-record discussion with
Mr. W took place on a Thursday, with trial on the merits scheduled to begin
the following Monday. On Sunday, Mr. W sent an email to the military judge
informing him that he had doubts about his ability to represent the appel-
lant. He wrote that “the Government’s improper actions combined with LtCol
[K’s] threat toward me have placed me in a conflict posture. . . . I discussed
this generally with SSgt Watkins today so that you can conduct a proper in-
quiry into this issue tomorrow.” 8 Mr. W added that if he must withdraw, or if
the appellant released him, “I plan to refund SSgt Watkins’ entire fee so that
he can quickly retain conflict-free counsel.” 9
   On the morning of the first day scheduled for trial, Mr. W moved to with-
draw. He stated that the government suspected him of wrongdoing, and that
he therefore had an interest that was directly adverse to the appellant. He
recalled LtCol K’s “very loud” assertion that “‘[t]his isn’t over,’ which in this
business, can only mean one thing[,] . . . I will be the next guy that they are
coming after.” 10 The military judge asked if Mr. W understood this to mean
that he thought that LtCol K intended “to pursue a bar complaint or an ethi-



   7   Record at 185, 249.
   8   Appellate Exhibit (AE) LXV.
   9   Id.
   10   Record at 238.


                                           7
                         United States v. Watkins, No. 201700246


cal complaint or some other type of action against you, and that will shape
the way in which you conduct the defense?” 11 Mr. W answered, “Yes, your
Honor.” 12 Aside from LtCol K’s words, Mr. W argued that he had “been virtu-
ally treated like a co-conspirator.” 13 Mr. W complained that “[the govern-
ment] repeatedly brought up the references to my being involved in the ob-
struction allegation, the changing of the testimony. . . . I have gotten to the
point now that—especially that the texts are in the . . . government’s hands,
where I think I have a direct conflict.” 14
    After a lengthy recess, the military judge called LtCol K as a witness on
the motion to withdraw. He asked him what he meant when he told Mr. W
that it “wasn’t over.” LtCol K testified that he was referring to “where the
last credit card transaction for the wife of the accused was . . . which was at a
strip mall next to his office at the same time . . . when the accused was sup-
posedly visiting; and shortly thereafter, she fled the area and tried to hide
from the service of process.”15 The remainder of the military judge’s direct
examination follows:
            MJ: To your knowledge—well, do you believe Mr. [W] was
         complicit in any of the misconduct described on the charge
         sheet in this case?
              LtCol K: I have no evidence that he was complicit.
             Q. Do you believe he has otherwise engaged in misconduct
         in this case?
            A: I have no evidence to support that—I’m not aware of any
         evidence.
            Q: Do you believe he has otherwise engaged in unethical
         behavior in this case?
            A: I have no evidence to support that—I’m not aware of any
         evidence.
             Q: Is—are you currently pursuing or contemplating any ef-
         fort to report Mr. [W] to either of the state bars of which he is a
         member?



   11   Id. at 239.
   12   Id.
   13   Record at 236.
   14   Id.
   15   Record at 250.


                                           8
                         United States v. Watkins, No. 201700246


              A: No.
             Q: Are you currently pursuing or otherwise contemplating
         initiating or otherwise pursuing criminal action against
         Mr. [W]?
              A: No.
             Q: To your knowledge, does any part of the government cur-
         rently contemplate pursuing reporting Mr. [W] to either of the
         state bars of which he is a member?
              A: I’m not aware of any. 16
   After LtCol K’s testimony the military judge called the lead Naval Crimi-
nal Investigative Service (NCIS) agent on the case. The military judge asked
similar questions of the agent. The agent testified that she was unaware of
any current or planned investigation into Mr. W for obstruction of justice.
She also testified that she had not seen any messages between the appellant
and his counsel during her review of the appellant’s seized cell phone.
    Mr. W argued that his interests were inversely related to the appellant’s;
“The more liable I am, the less liable he is, and vice versa. . . . I feel conflicted
Your Honor.” 17 Mr. W stated that the conflict between the appellant and his
own interests were similar to one created by dual representation: “I view my-
self as the other client in this scenario. So could I represent myself? . . . I
would ask myself as an attorney, could I represent . . . the lead civilian coun-
sel on this matter and the client, Staff Sergeant Watkins, if I was hired by
both parties?” 18
    Following argument, the military judge asked the appellant who he want-
ed to represent him. The appellant said that he wanted to be represented by
his two detailed counsel and “another attorney that I would like to bring
onboard.” 19 The military judge pointed out that the appellant had hired
Mr. W, and asked if he had been satisfied with his services. The appellant
answered that he had been, “for the most part.” 20 The military judge asked




   16   Record at 250.
   17   Record at 264.
   18   Id.
   19   Record at 267.
   20   Id.


                                            9
                         United States v. Watkins, No. 201700246


the appellant if it was his wish to continue to be represented by Mr. W. The
appellant answered, “No, sir, it is not.” 21
    The military judge asked the appellant why he did not want Mr. W to rep-
resent him. The appellant stated that he first thought about the possibility
that Mr. W might be conflicted when the government investigator brought up
the fact that the appellant’s wife had visited the book store next to Mr. W’s
office. The appellant thought that Mr. W “became, in my opinion, kind of,
emotional . . . the focus was no longer on me in particular at that time, and it
was more on trying to clear his name. So that made me very uncomforta-
ble.” 22 Then, “when Lieutenant Colonel [K] made his—what I would consider
a threat, I guess, against . . . Mr. [W], that just—for me, it solidified the fact
that it was about Mr. [W] as much as it was about me.” 23 The military judge
asked the appellant if he was able to effectively communicate with Mr. W.
The appellant said no; his communications were “overshadowed about . . .
how much priority of him [sic] trying to keep his name clear. . . . I just can’t
sit here thinking he could have done something else, but he’s not going to do
it because . . . of a threat from the government.”24
    The military judge denied Mr. W’s motion to withdraw. He found that no
evidence tended to prove that Mr. W was complicit in any charged miscon-
duct, and that neither LtCol K nor NCIS intended to take any action against
Mr. W. He reported that he had observed the appellant and Mr. W communi-
cating in “a manner that is cooperative and unhampered by animosity.” 25 The
military judge also considered the difficulties that the government had had in
securing the presence of the appellant’s wife and daughter. These difficulties
had already delayed trial for several months. And he viewed these difficulties
in the context of the evidence that the appellant had searched the internet for
information on avoiding subpoenas, extradition agreements, and other mat-
ters suggesting that he did not want his family to testify. Considering these
searches and the appellant’s wife’s lack of cooperation and significant ties to
Uganda, the military judge was “unconvinced” that the appellant’s wife and
daughter would be available if he were to continue the case. 26




   21   Id.
   22   Record at 268-69.
   23   Id. at 269.
   24   Id.
   25   Record at 275.
   26   Id.


                                           10
                      United States v. Watkins, No. 201700246


    Taking into consideration “the totality of the circumstances,” 27 he found
that there was no conflict of interest between Mr. W and the appellant. Even
though Mr. W had asked to withdraw, and even though the appellant “had
expressed a preference to hire a new civilian counsel,” the military judge
found that the offered justifications were “not supported by facts on the rec-
ord.” He went on to find that the arguments in favor of excusing Mr. W were
“opportunistic.” 28 Based on these findings, the military judge denied the ap-
pellant’s motion to excuse Mr. W.
    The trial on the merits began the next day. Mr. W participated substan-
tially in the trial, conducting both cross- and direct examinations of the ap-
pellant’s wife and the closing argument.

   2. Analysis of the military judge’s ruling on Mr. W’s motion to withdraw
   The appellant claims that the military judge abused his discretion by
denying Mr. W’s motion to withdraw for a conflict of interest. A military
judge abuses his discretion when his findings of fact are clearly erroneous,
when he is incorrect about the applicable law, or when he improperly applies
the law. 29
    The military judge correctly identified the Rule for Courts-Martial
(R.C.M.) applicable to motions to withdraw, R.C.M. 506(c). 30 But he erred by
finding that Mr. W had to demonstrate good cause to withdraw. R.C.M. 506(c)
states that “[e]xcept as otherwise provided . . . defense counsel may be ex-
cused only with the express consent of the accused or by the military judge
upon application for withdrawal by the defense counsel for good cause
shown.” 31 The plain language of the rule makes clear that the requirement
for good cause applies to a defense counsel’s application to withdraw when
such motion is made without the consent of the accused—not when counsel
has the accused’s permission to withdraw. The government concedes that this
was error. For reasons discussed below, however, we find that this error did
not prejudice the appellant.




   27   Id.
   28   Id. at 276.
   29   United States v. Roberts, 59 M.J. 323, 326 (C.A.A.F. 2004).
   30See RULE FOR COURTS-MARTIAL 506(c), MANUAL FOR COURTS-MARTIAL, UNITED
STATES (2016 ed.) (MCM).
   31   Id.


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                          United States v. Watkins, No. 201700246


          a. Did Mr. W have a conflict of interest?
   Having erroneously decided that R.C.M. 506(c) required a showing of good
cause, the military judge further erred by applying the standard announced
by the Supreme Court in Cuyler v. Sullivan32 for determining whether a de-
fense counsel’s representation would be hampered by a conflict of interest.
    In Cuyler, the petitioner, John Sullivan, was one of three defendants
charged with murdering the same victim. Sullivan accepted representation
from the same counsel as the other defendants but was tried separately.
Since neither he nor his counsel brought the potential conflict of interest to
the court’s attention, the trial court had no opportunity to address the ques-
tion of whether Sullivan’s representation was hampered by a conflict of inter-
est. On appeal, Sullivan claimed that he had received ineffective assistance of
counsel because of a conflict of interest. 33 The Supreme Court held that “[i]n
order to establish a violation of the Sixth Amendment, a defendant who
raised no objection at trial must demonstrate that an actual conflict of inter-
est adversely affected his lawyer’s performance.” 34
    The Cuyler test is necessarily retrospective. It asks appellate courts to
look back at a trial and determine from the record whether an undisclosed
conflict of interest adversely affected a lawyer’s representation. Here, Mr. W
did disclose his perceived conflict before trial and moved to withdraw. The
military judge’s attempt to apply Cuyler prospectively makes no sense. He
could not have known before trial whether a conflict had affected Mr. W’s rep-
resentation at trial. Where counsel objects to a conflict of interest before trial,
courts need not search for prejudice. 35 If Mr. W had had a conflict of interest
with the appellant, excusal would have been the only appropriate remedy.
   We find, however, that the appellant was not prejudiced by the erroneous
application of Cuyler because Mr. W did not have a conflict of interest with
the appellant. The professional responsibilities of attorneys practicing before
military courts in the Department of the Navy are governed by JAGINST



    32   446 U.S. 335 (1980).
    33   Id. at 337-41.
    34   Id. at 348 (emphasis added).
    35Holloway v. Arkansas, 435 U.S. 475, 490 (1978) (“A rule requiring a defendant
to show that a conflict of interests—which he and his counsel tried to avoid by timely
objections to the joint representation—prejudiced him in some specific fashion would
not be susceptible of intelligent, even-handed application.”); see also Commonwealth
v. Duffy, 394 A.2d 965, 967 (Pa. 1978) (“If a conflict of interest, i.e., a conflict between
counsel’s and his client’s interests, is here established, we believe relief must be
granted without regard to a showing of harm.”).


                                            12
                      United States v. Watkins, No. 201700246


5803.1E. 36 Regarding conflicts of interest, Rule 1.7 of this instruction forbids
covered attorneys from representing a client if there is a significant risk that
the representation will be materially limited by a personal interest of the at-
torney. Comment 4 to the rule further explains that the critical questions are
the likelihood that a difference in interests will eventuate and, if it does,
whether it will materially interfere with the attorney’s independent profes-
sional judgment.
    The military judge correctly identified this rule as pertinent to the first
half of the Cuyler test, found the necessary facts, and applied the facts to the
rule. He heard evidence about LtCol K’s angry off-the-record exchange with
Mr. W and found that he had in fact made the statements described above.
But the military judge accepted LtCol K’s later testimony that he had no evi-
dence that Mr. W had committed misconduct, and no plans to pursue any le-
gal or professional sanctions against him. The military judge similarly ac-
cepted the testimony of the lead NCIS agent that she had no evidence that
Mr. W had committed a crime, and that she had no plan to investigate Mr. W.
Although this contradicted the Regional Trial Counsel’s ill-considered off-the-
record words, we review the military judge’s findings under the deferential
clearly-erroneous standard. The testimony provides some support for the mil-
itary judge’s findings of fact, and we will not disturb them.
     Having accepting the military judge’s finding that Mr. W was not sus-
pected of participating in any misconduct and not the subject of any govern-
ment investigation, we are left to conclude that Mr. W did not have any con-
flict of interest that should have precluded his representation of the appel-
lant. We have considered his statements made during the Article 39(a) ses-
sion held to address the conflict issue, and given them their appropriate
weight. We recognize that statements of counsel concerning potential con-
flicts are “virtually made under oath” and are entitled to deference. 37 But
while Mr. W was emphatic about his subjective sense that the representation
involved a conflict, he was, after having been given many opportunities, una-
ble to articulate a course of action that was foreclosed to the appellant by vir-
tue of his representation. We find that Mr. W’s subjective sense of conflict
does not by itself create a conflict of interest that should have precluded his
participation in this case. 38



   36   Judge Advocate General Instruction 5803.1E (20 Jan 2015).
   37   Holloway at 486 (quoting State v. Brazile, 75 So.2d, 856, 861 (La. 1954)).
   38 Cf Tueros v. Greiner, 343 F.3d 587, 597 (2d Cir. 2003) (determination of wheth-
er a conflict of interest exists turns on analysis of “actual duties” rather than an at-
torney’s subjective sense of conflict) (per Sotomayor, J.).


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                      United States v. Watkins, No. 201700246


    In view of the military judge’s findings of fact and our application of those
facts to the correct law, we find that the military judge’s legal errors did not
prejudice the appellant and that the military judge’s conclusion that Mr. W’s
representation was not hindered by a conflict of interest was correct.

         b. Choice of counsel
   Even if the military judge correctly found that no conflict existed between
the appellant and Mr. W, we must still determine whether the military
judge’s ruling erroneously deprived the appellant of his right to be represent-
ed by counsel of his choice.
    A criminal defendant has a constitutional right, within limits, to be repre-
sented by counsel of his or her choice. 39 The right to counsel of choice also in-
cludes the right of a defendant to fire his retained counsel for any reason or
for no reason. 40 The right is circumscribed, however, in several respects. A
defendant’s choice of counsel can be overcome by other conflicting interests,
including a trial court’s interest in reasonably managing its calendar. 41 We
review a military judge’s decision to deny an accused’s request to be repre-
sented by counsel of his or her choice for an abuse of discretion. 42
    The appellant stated both that he did not want to be represented by
Mr. W and that he wished to be represented by a different civilian counsel. Of
course, the military judge could have granted the appellant’s request to re-
lease Mr. W and denied his request to obtain new civilian counsel. The mili-
tary judge, however, treated the appellant’s desires regarding counsel as a
request for a continuance to substitute one retained counsel for another. The
appellant, both at trial and now on appeal, seems to agree with the military
judge’s unspoken framing of the issue. As a result, both parties agree that the
military judge’s decision to deny the appellant’s request should be considered
using the factors set forth by the Court of Appeals for the Armed Forces
(CAAF) in United States v. Miller. 43
   In Miller, the CAAF articulated twelve factors relevant to a military
judge’s consideration of a continuance request. Those factors include “sur-



   39   Wheat v. United States, 486 U.S. 153, 159 (1988).
   40   United States v. Rivera-Corona, 618 F.3d 976, 980 (9th Cir. 2010).
   41 United States v. Gonzalez-Lopez, 548 U.S. 140, 152 (“We have recognized a trial
court’s wide latitude in balancing the right to counsel of choice against . . . the de-
mands of its calendar.” (citing Morris v. Slappy, 461 U.S. 1, 11-12 (1983))).
   42   United States v. Wiest, 59 M.J. 276, 279 (C.A.A.F. 2004).
   43   United States v. Miller, 47 M.J. 352 (C.A.A.F. 1997).


                                            14
                   United States v. Watkins, No. 201700246


prise, nature of any evidence involved, timeliness of the request, substitute
testimony or evidence, availability of witness or evidence requested, length of
continuance, prejudice to opponent, whether the moving party received prior
continuances, good faith of moving party, use of reasonable diligence by mov-
ing party, possible impact on verdict, and prior notice.” 44 The continuance in
Miller had been sought to allow that appellant to obtain civilian counsel, and
the Miller court identified five of the twelve factors as relevant to its review
of the military judge’s denial in that case.
    While both parties agree that Miller applies, an actual application of the
Miller factors to this case is not straightforward. The appellant did not explic-
itly ask for a continuance of any length. The military judge simply denied
Mr. W’s motion to withdraw. There having been no request for a continuance,
the military judge did not apply the Miller factors on the record. Neverthe-
less, we have considered the denial under Miller and conclude that the mili-
tary judge did not abuse his discretion.
   We find the following Miller factors to be relevant:
    (1) Surprise: The appellant claimed that he wanted new civilian counsel
because LtCol K’s off-the-record exchange with Mr. W, which the appellant
took to be a threat, caused the appellant to believe that Mr. W should not
represent him. The appellant could not have known LtCol K would threaten
his civilian counsel.
   (2) Timeliness of the request: LtCol K’s angry exchange with Mr. W took
place on Thursday. Mr. W moved to withdraw the following Monday, which
was to have been the first day of trial. To the extent LtCol K’s conduct was
the inspiration for the motion, the motion was timely.
    (3) Prejudice to the opponent: The government argued that it had already
caused members and witnesses—some of whom had traveled great distances
at government expense—to travel to the trial. We appreciate that this repre-
sents real cost and inconvenience to the government and that a continuance
would have placed a significant burden on witnesses. Nevertheless, these do
not amount to prejudice to the government’s case. 45 We give this factor little
weight.




   44 Id. at 358 (quoting F. Gilligan and F. Lederer, COURT MARTIAL PROCEDURE §
18-32.00 at 704 (1991).
   45 See United States v. Fiorito, No. 20080535, 2011 CCA Lexis 50, at 14 (A. Ct.
Crim. App. 3 Mar. 2011) (unpub. op) (personal inconvenience and hardship experi-
enced by witnesses because of delay do not constitute prejudice to the government).


                                        15
                         United States v. Watkins, No. 201700246


    (4) Earlier continuances: The appellant had requested only a short con-
tinuance after retaining Mr. W before the first charges were dismissed. Fol-
lowing referral of the second set of charges, the appellant did not request any
continuances. The government had required a lengthy continuance when they
were unable to produce the appellant’s wife and daughter. The military judge
found, however, that the appellant was at least partially responsible for the
delay, citing the “context of the Google searches on the accused’s phone re-
garding obstruction of justice, avoiding subpoenas, and the status of the ex-
tradition agreements of various countries.” 46 As there is some support for this
finding, we will not disturb it. And we find that the appellant’s role in neces-
sitating the earlier four-month continuance in this case can be fairly consid-
ered under this factor. We give it great weight.
    (5) Availability of witnesses: The military judge had doubts that the ap-
pellant’s wife and daughter would be available at a later time. These doubts
were not unreasonable in light of the appellant’s internet search history and
the government’s difficulty in locating and personally serving the appellant’s
wife. This factor favors the military judge’s ruling.
    (6) Good faith of the moving party: The military judge’s ruling on the mo-
tion to withdraw turned on his determination that the appellant’s request
was not made in good faith. We also believe that this is the most important
factor of our analysis. This factor, in turn, depends on the military judge’s
finding of fact concerning what motivated the appellant’s request.
   Even if Mr. W did not have an actual conflict of interest that prevented
him from representing the appellant, a request to change counsel might still
have been made in good faith. The appellant had heard the trial counsel’s su-
pervisor clash with and arguably threaten his civilian counsel. He heard his
counsel argue to the military judge that he was disabled from adequately
representing the appellant because his counsel’s interests conflicted with his
own. Mr. W even stated that if he were permitted to withdraw he would re-
turn his fee to the appellant so that he could secure new counsel. It would be
unsurprising for an accused in this position to decide he wanted new counsel.
These are circumstances that would tend to support a finding that the appel-
lant’s request was in good faith.
   These same circumstances make this case appear similar to the CAAF’s
decision in United States v. Wiest. 47 In Wiest, an accused sought to fire his
counsel and obtain civilian counsel after the military judge criticized his
counsel’s performance and questioned their competence during a pretrial ses-


   46   Record at 275.
   47   59 M.J. 276 (C.A.A.F. 2004).


                                           16
                         United States v. Watkins, No. 201700246


sion. 48 Writing for the court, Chief Judge Crawford (the author judge in Mil-
ler) applied the Miller factors and found that the military judge had abused
his discretion by denying the request. The CAAF found it significant that
Wiest’s dissatisfaction with his counsel arose from the military judge’s criti-
cism of them. Considering the factor of surprise under Miller, the CAAF
found that the “[a]ppellant was clearly surprised by the harsh criticism of his
counsel by the military judge, and this factor weighed in favor of a continu-
ance.” 49 As to timeliness, the CAAF noted that the requested civilian counsel
requested the continuance as soon as he was retained, only six days after the
judge’s criticism. 50
   In the face of these circumstances the military judge in Wiest erred by
taking an “inelastic” approach to that appellant’s request for a continuance. 51
The CAAF noted that “[i]t should therefore be an unusual case, balancing all
the factors involved, when the judge denies an initial and timely request for a
continuance in order to obtain civilian counsel, particularly after the judge
has criticized appointed military counsel.” 52
    Like the appellant in Wiest, the appellant here expressed his desire to
change counsel shortly after an even more surprising event—an apparent
threat directed at Mr. W by LtCol K. Likewise, the military judge’s approach
to a continuance in this case seems inelastic; the judge denied the motion to
withdraw without even learning how long the proposed continuance was to
have been. If the appellant’s request for new counsel were in fact a good-faith
request to change civilian counsel resulting from LtCol K’s exchange with
Mr. W, we would find that the military judge’s denial of the request was an
abuse of his discretion under Wiest.
    Rather than finding that the request had been made in good faith, howev-
er, the military judge found that the request was “opportunistic” 53 and “an
obvious attempt to further impede the prosecution of the case against him.” 54
The military judge did not elaborate on this point but, taking his ruling as a
whole, we understand this finding to mean that the appellant saw LtCol K’s
loss of composure as an opportunity to stall the trial in the hope that his wife


   48   Id. at 277-78.
   49   Id. at 279.
   50   Id. at 278.
   51   Id.
   52   Id.
   53   Record at 276.
   54   AE LXVI at 10.


                                           17
                         United States v. Watkins, No. 201700246


and daughter would not appear at a later date. The military judge’s conclu-
sion that the appellant’s request was motivated by opportunism rather than
LtCol K’s conduct is a finding of fact. Although the record contains contradic-
tory evidence on this point, we review the military judge’s findings of fact for
clear error. There is some circumstantial support for this finding in the rec-
ord. The appellant’s internet search history revealed that he did not want his
wife and daughter to show up for trial. He seemed to be interested in having
them go to a country from which they could not be made to attend his trial.
The appellant’s wife and daughter had stopped cooperating with the govern-
ment and had become difficult to find. Based upon the record, we find that
the military judge’s finding that the appellant’s request was motivated by his
desire to stall his trial was not clearly erroneous.
    The military judge’s finding that the appellant’s request to change counsel
was an opportunistic attempt to stall his trial distinguishes this case from
Wiest. In our judgment, the finding of bad faith swamps the rest of the Miller
factors and is the most significant factor in our conclusion that the military
judge did not abuse his discretion by denying Mr. W’s motion to withdraw.

B. Hearsay
   The appellant argues that the military judge erred by admitting a video
recording of CKW’s forensic interview under the residual hearsay rule. We
disagree.

   1. Facts related to the forensic interview
    The day after the appellant allegedly assaulted his daughter, CKW, a so-
cial worker from Child Protective Services came to the family’s home and
talked to CKW for “five to ten minutes.” 55 Three days later CKW participated
in a forensic interview conducted by Ms. CM.
    Ms. CM testified for the government, laying the foundation for the admis-
sion of CKW’s forensic interview. Ms. CM testified to her substantial training
and experience with conducting forensic interviews. She described her meth-
ods and discussed the desirability of asking non-leading questions. The tech-
niques she described in her testimony are reflected in the recorded interview.
    Although Ms. CM sought to use non-leading questions and nudge the con-
versation to relevant topics, CKW was not inclined to talk about the allega-
tions she had first made four nights earlier. Ultimately, after over 20 minutes
of unsuccessfully approaching the topic obliquely, Ms. CM asked more direct-
ly about the alleged abuse. CKW’s demeanor changed abruptly.



   55   Record at 531.


                                           18
                        United States v. Watkins, No. 201700246


    CKW knew that her allegations had created problems for her family. As of
the forensic interview, she knew that “they might take our money away,” 56
and that her father’s retirement was in jeopardy. She knew that she and her
family “may never be able to see Daddy again;” that her mother “might have
to be a single mother;” and that these things made her feel “not very good.” 57
She said that her sister missed her father, and she knew that her father
might have to be incarcerated.
   In spite of her trepidation, CKW admitted that her father had touched her
“breasts” and “sexual areas.” 58 She poignantly described having her father
apologize to her for touching her, and how once she had told her father to
have “self-control.” 59 She said her father had coached her to stop him from
touching her because he didn’t want to touch her, but “he just did.”60
   The appellant objected to the admission of the forensic interview, and the
judge overruled the objection, admitting it under the residual exception to
hearsay.

   2. The residual hearsay exception
    Even when an out-of-court statement fails to qualify for one of the specific
exceptions to the general prohibition against hearsay, it may nevertheless be
admitted if it satisfies the residual exception found in MIL. R. EVID. 807. That
rule provides for the admission of out-of-court statements for which the pro-
ponent provides notice before trial and four criteria are met:
             (1) the statement has equivalent [to other hearsay excep-
         tions] circumstantial guarantees of trustworthiness;
              (2) it is offered as evidence of a material fact;
            (3) it is more probative on the point for which it is offered
         than any other evidence that the proponent can obtain through
         reasonable efforts; and
            (4) admitting it will best serve the purposes of these rules
         and the interests of justice. 61




   56   AE V at 19:09.
   57   Id. at 20:18.
   58   Id. at 26:50.
   59   Id. at 33:00.
   60   Id. at 36:20.
   61   MIL. R. EVID. 807(a)(1)-(4).


                                           19
                      United States v. Watkins, No. 201700246


    We review a military judge’s decision to admit evidence for an abuse of
discretion. 62
    The military judge made essential findings of fact and conclusions of law
supporting his decision to admit the forensic interview addressing these cri-
teria. 63

         a. Circumstances guaranteeing trustworthiness
    The military judge found that CKW’s statement had equivalent guaran-
tees of trustworthiness. In deciding this factor he considered several subfac-
tors, including CKW’s mental state, the statement’s spontaneity, whether the
statement was elicited by suggestive methods, the degree to which the state-
ment is corroborated, CKW’s age, and the circumstances under which the
statement was made. 64
    The military judge found that CKW’s state of mind supported admission.
He found, based on her expressed concerns about what was happening to her
family, that CKW believed that implicating her father in sexual abuse was
against her interests. This finding is well supported in the record and partic-
ularly by our own observation of the forensic interview. It is clear to us that
CKW was not anxious to tell the forensic interviewer that her father had
touched her inappropriately. The appellant argues that this finding does not
concern CKW’s mental state and, even if it did, the military judge failed to
reconcile the finding with CKW’s testimony that she made up the accusation
after she caught her father looking at pornography so her parents would have
to talk to each other. We disagree with these arguments. We think that the
military judge appropriately considered CKW’s motivation to not disclose her
father’s sexual abuse when considering this factor. And we also find, as the
military judge (and the members) implicitly found, that CKW’s nonsensical
story about her purported motive to fabricate her abuse allegation is properly
dismissed as implausible.
   CKW’s out-of-court statements in the forensic interview were not sponta-
neous. They were elicited by the interviewer’s questions. But Ms. CM was an
experienced interviewer, having conducted over 3,000 forensic interviews.
And, while she did not elicit spontaneous statements about the alleged abuse,
her questions were as open-ended as possible given CKW’s obvious reluctance




   62   United States v. Czachorowski, 66 M.J. 432, 434 (C.A.A.F. 2008).
   63   AE LXVIII.
   64   See United States v. Donaldson, 58 M.J. 477, 488 (C.A.A.F. 2003).


                                           20
                      United States v. Watkins, No. 201700246


to discuss them at all. Ms. CM’s questions did not suggest that either an ac-
cusation or a denial was the desired answer.
    Overall, we find that the military judge’s finding—that the out-of-court
statement has guarantees of trustworthiness equal to those found in the
enumerated hearsay exceptions—to be well-founded.

         b. The evidence is offered as proof of a material fact
    This factor is not reasonably in dispute. CKW’s statement concerned, in
relevant part, the appellant’s sexual abuse of her as charged by the govern-
ment.

      c. The evidence is more probative on the point for which it is offered
than any other evidence the government could reasonably obtain
    CKW was available to—and did—testify at the appellant’s court-martial.
Nevertheless, the military judge found her forensic interview to be more pro-
bative on the point for which it was offered than her in-court testimony. Ar-
guably, CKW’s in-court denial that the appellant sexually abused her is more
probative on the general question of whether she was sexually abused than
her unsworn, out-of-court statements. In Mitchell v. Hoke, the prosecution
introduced a witness’s out-of-court identification of the defendant as a partic-
ipant in a robbery. 65 The witness was available to testify, but would have re-
canted his out-of-court identification on the stand. 66 The Court of Appeals for
the Second Circuit held that the witness’s out-of-court identification “can
hardly be said to be of ‘high probative value’ in light of his later denial of
Mitchell’s participation in the robbery.” 67 But the CAAF has held that in the
context of witness recantations, out-of-court statements can be the most pro-
bative evidence available to the proponent seeking to prove the truth of the
prior statement. 68 Under this view, we agree with the military judge that the
forensic interview was the most probative evidence available to the govern-
ment to show the truth of CKW’s prior statement—that the appellant sexual-
ly abused her.




   65   See Mitchell v. Hoke, 930 F.2d 1, 1-2 (2d Cir. 1991).
   66   Id. at 3.
   67   Id.
   68 See e.g. United States v. Pollard, 38 M.J. 41, 49 (C.A.A.F. 1993); United States
v. Hyder, 47 M.J. 46 (C.A.A.F. 1997) (allowing prior statement of a recanting witness
under the residual hearsay exception).


                                            21
                      United States v. Watkins, No. 201700246


       d. Admitting the interview best serves the purposes of the rules and
the interests of justice
    The military judge found that the purpose of the rules and the interests of
justice were best served by admission of the forensic interview. Relying on
the appellant’s internet search history, the military judge found that the ac-
cused had been attempting to subvert justice and that CKW’s recantation
was the product of her mother and father’s influence. He found that preclud-
ing the statements would amount to an unjust windfall to the appellant. We
also think that the interests of justice are served by admitting the evidence
where the appellant had violated his military protective order many times
and had taken an interest in preventing CKW’s testimony from ever occur-
ring.
   The military judge applied the correct law and his findings of law and fact
are adequately supported. We find that he did not abuse his discretion by
admitting CKW’s forensic interview under MIL. R. EVID. 807.

C. Factual Sufficiency of Conviction for Committing a Lewd Act Up-
on a Child
    The appellant claims that his conviction for sexually abusing CKW (Addi-
tional Charge I, Specification 2) is factually insufficient. We disagree.
    We review the factual sufficiency of evidence de novo. 69 We determine the
factual sufficiency of a conviction by asking whether, after weighing the evi-
dence in the record of trial and making allowances for not having personally
observed the witnesses, we are convinced of an appellant’s guilt beyond a
reasonable doubt. 70 This means conducting “a fresh, impartial look at the ev-
idence, giving no deference to the decision of the trial court on factual suffi-
ciency beyond the admonition in Article 66(c), UCMJ, to take into account the
fact that the trial court saw and heard the witnesses.” 71
    We are persuaded beyond a reasonable doubt that the appellant sexually
abused CKW. First, CKW’s forensic interview is compelling. As discussed
above, CKW seemed reluctant to admit that she had been sexually abused by
her father. She knew her father was at risk of incarceration and the loss of
his retirement and, in the absence of her father and his financial support, her
mother would have to support herself and the family on her own. She per-




   69   United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002).
   70   United States v. Turner, 25 M.J. 324, 326 (C.M.A. 1987).
   71   Washington, 57 M.J. at 399.


                                           22
                         United States v. Watkins, No. 201700246


ceived her allegations to be against her and her family’s interests. This
makes them credible.
    The appellant asks us to accept as reasonable CKW’s later claim that she
fabricated the allegation because she found her father looking at pornogra-
phy. In this account, CKW was angry with her father for looking at pornog-
raphy, and afraid her parents would get a divorce. In her mind, if she told her
mother that her father had sexually abused her, “[her] mom and dad would
talk out whatever happened and everything would be okay again.” 72 This ac-
count makes no sense, even to a nine-year-old child. The members rejected
this explanation, as do we.
    CKW’s allegations in the forensic interview were corroborated by evidence
tending to show the appellant’s consciousness of guilt. A search of the appel-
lant’s car at the time of his apprehension revealed three books on the topic of
caring for sexually abused children, including the titles Caring for Sexually
Abused Children; Helping Your Children Recover from Sexual Abuse; and
How Long Does it Hurt? The appellant’s actions at the time of the offense are
even more incriminating. After CKW told the appellant’s wife that the appel-
lant had abused her, the appellant’s wife started to cry and the appellant left
the house. The appellant threatened suicide and made a suicidal gesture by
putting his wife’s prescription pain medicine in his mouth. He sent farewell
texts to his wife apologizing, telling her the family is better off without him,
praying that God would forgive him, and that he deserved death. The appel-
lant argued that he was a devout Baptist, and that he was reacting to having
been caught looking at pornography on the computer. We find this explana-
tion implausible. We are personally convinced of appellant’s guilt beyond a
reasonable doubt.

D. The Members’ Instructions On Obstruction of Justice and Related
Claim of Ineffective Assistance of Counsel
    The appellant was convicted of obstructing justice, an offense delineated
by the President in the Manual for Courts-Martial as a violation of Article
134, UCMJ. 73 Specifically, the members found that he endeavored to impede
trial on his initial charges by wrongfully tampering with CKW. The appellant
now claims that the military judge committed plain error by failing to provide
the members with accurate instructions on this offense. Specifically, the ap-
pellant claims that the military judge’s definition of tamper was so broad that
it exposed the appellant to liability for uncharged offenses. We disagree.



   72   Record at 652.
   73   Part IV, ¶96, MCM.


                                           23
                      United States v. Watkins, No. 201700246


    Whether the military judge properly instructed the members is a question
of law we review de novo. Military judges must give instructions that provide
necessary guideposts for informed deliberation on the guilt or innocence of
the accused. 74 When, as here, an appellant fails to object to an instruction at
trial, we review the instruction for plain error. 75 Plain error requires an ap-
pellant to demonstrate that: (1) there was error; (2) the error was plain or ob-
vious; and (3) the error materially prejudiced a substantial right of the ac-
cused. 76
    The military judge instructed the members that to convict the appellant
of obstruction, the government needed to prove four elements: first, that the
appellant wrongfully did a certain act—specifically that he tampered with
CKW; second, the tampering pertained to his own legal case while he had
reason to believe that there were or would be criminal proceedings pending;
third, that the acts were done with the intent to impede a trial by court-
martial or influence the testimony of CKW; and fourth, that the conduct was
to the prejudice of the armed forces and of a nature to bring discredit upon
the armed forces. These instructions correctly set forth the elements of the
offense as alleged in the specification.
   At trial counsel’s suggestion, the military judge defined tamper by borrow-
ing from the definition found in 18 U.S.C. §1512 (2016), which proscribes
tampering with witnesses and evidence. Because this section covers tamper-
ing with both witnesses and evidence, the members heard an expansive and
repetitive definition:
             The term “tamper” means that the evidence supports a find-
         ing that the accused knowingly used intimidation, threatened
         or corruptly persuaded C.K.W., or attempted to do so, or en-
         gaged in misleading conduct towards another person with the
         intent to influence, delay, or prevent the testimony of C.K.W. in
         an official proceeding; cause or induce C.K.W. to withhold tes-
         timony or withhold a record, document, or other object from an
         official proceeding; alter, destroy, mutilate, or conceal an object
         with intent to impair the object’s integrity or availability for
         use in an official proceeding; evade legal process summoning



   74   United States v. Killion, 75 M.J. 209, 211 (C.A.A.F. 2016).
   75   United States v. Payne, 73 M.J. 19, 22-23 (C.A.A.F. 2014).
   76  United States v. Girouard, 70 M.J. 5, 11 (C.A.A.F. 2011) (holding that where an
erroneous instruction implicated a constitutional issue and where the error was obvi-
ous, the appellant must also suffer prejudice to a substantial right in order to pre-
vail).


                                            24
                     United States v. Watkins, No. 201700246


         that person to appear as a witness, or to produce a record, doc-
         ument, or other object in an official proceeding; be absent from
         an official proceeding to which such person has been sum-
         moned by legal process; or hinder, delay, or prevent the com-
         munication to a law enforcement officer or judge of the United
         States of information relating to the commission or possible
         commission of a federal offense or a violation of conditions of
         probation, supervised release, parole, or release pending judi-
         cial proceedings.
             The term “tamper” may also mean that the accused corrupt-
         ly altered, destroyed, mutilated, or concealed a record, docu-
         ment, or other object, or attempted to do so, with the intent to
         impair the object’s integrity or availability for use in an official
         proceeding; or otherwise obstructed, influenced, or impeded
         any official proceeding, or attempted to do so. 77
    The appellant claims that this expansive definition was erroneous be-
cause it includes elements from three separate federal criminal offenses, and
that this exposed the appellant to liability for offenses of which he had no no-
tice. In particular, the appellant complains that the instruction exposed him
to conviction for destroying or altering evidence, obstructing a proceeding, or
misleading someone other than CKW. The appellant also claims that the def-
inition permitted the members to convict the appellant for ordinary, innocent
conduct that might have had the effect of delaying the proceeding or altering
CKW’s testimony. 78
   We find no plain error. We agree that the definition of tamper used by the
military judge encompassed a broader range of conduct than that which the
government alleged in the specification and proved at trial. But the use of
broad definitions in the context of explaining a specification to members is
not uncommon. Here, the specification and the military judge’s description of
the elements sufficiently narrowed the scope of conduct for which the mem-
bers could have convicted the appellant.
   The appellant also claims that this definition of tamper created a risk that
the members convicted the appellant for innocent conduct. 79 Again, we find


   77   Record at 757-58.
   78   See Arthur Anderson LLP v. United States, 544 U.S. 696 (2005).
   79  See United States v. Fosler, 70 M.J. 225, 230-231 (C.A.A.F. 2001) (“‘Wrongfully’
is a word of criminality and, though our case law has been at times unclear, words of
criminality speak to mens rea and the lack of a defense or justification.”) (internal
citation omitted).


                                          25
                      United States v. Watkins, No. 201700246


no plain error. The members were instructed that the appellant’s act had to
be wrongful, a term that ordinarily protects an accused from liability for in-
nocent conduct. Taken as a whole, the instructions provided sufficient guide-
posts to the members’ deliberations. While the military judge’s definition of
tamper might have been more narrowly tailored to the appellant’s alleged
conduct, we do not find it to be erroneous in the context of the other instruc-
tions pertaining to this specification.
    In addition to claiming that the military judge committed plain error in
his instructions, the appellant argues that his counsel were ineffective by fail-
ing to object to them. As we have found that the instructions were not errone-
ous, we similarly find that the appellant’s counsel were not ineffective for not
objecting to them.

E. Legal and Factual Sufficiency of the Appellant’s Conviction for
Obstructing Justice
    The appellant argues that that his conviction for obstruction of justice is
legally and factually insufficient because the government adduced no evi-
dence that he wrongfully tampered with CKW. We review questions of legal
and factual sufficiency de novo. 80 The test for legal sufficiency is “whether,
considering the evidence in the light most favorable to the prosecution, a rea-
sonable fact finder could have found all the essential elements beyond a rea-
sonable doubt.” 81 In weighing questions of legal sufficiency, the court is
“bound to draw every reasonable inference from the evidence of record in fa-
vor of the prosecution.” 82 The test for factual sufficiency is “whether, after
weighing the evidence in the record of trial and making allowances for not
having personally observed the witnesses” we are “convinced of the accused’s
guilt beyond a reasonable doubt.” 83
   The elements of obstructing justice are as follows:
             (1) That the accused wrongfully did a certain act;
            (2) That the accused did so in the case of a certain person
         against whom the accused had reason to believe there were or
         would be criminal proceedings pending;




   80   Washington, 57 M.J. at 399.
   81   United States v. Humpherys, 57 M.J. 83, 94 (C.A.A.F. 2002) (citations omitted).
   82   United States v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001) (citations omitted).
   83   United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987).


                                            26
                     United States v. Watkins, No. 201700246


            (3) That the act was done with the intent to influence, im-
         pede, or otherwise obstruct the due administration of justice;
         and
            (4) That, under the circumstances, the conduct of the ac-
         cused was to the prejudice of good order and discipline in the
         armed forces or was of a nature to bring discredit upon the
         armed forces. 84
   The appellant’s web searches, which included “dodging being served a
subpoena,” prove that he was motivated to prevent members of his family
from testifying at his court-martial. Knowing that the government was at-
tempting to serve his wife with a subpoena, he researched the hotel where his
family hid from government agents attempting to serve the subpoena. The
appellant even violated his military protective order by visiting them in their
hiding place shortly before his scheduled court-martial.
    This is strong circumstantial evidence that the appellant wrongfully did a
certain act, specifically that he tampered with CKW as that term was ex-
plained by the military judge. The timing of these web searches and acts
makes it clear he did these acts in order to obstruct his own court-martial,
which he knew was scheduled to take place within days of these acts. And we
are convinced that this conduct was prejudicial to good order and discipline in
the armed forces and was of a nature to bring discredit upon the armed forc-
es.
    We find that a reasonable trier of fact could have found that the govern-
ment proved every element of this offense beyond a reasonable doubt. And,
having considered the record for ourselves, we are also convinced of the ap-
pellant’s guilt beyond a reasonable doubt.

F. Error in the Convening Authority’s Action
    The appellant contends, and the government concedes, that the convening
authority’s action is erroneous because it fails to reflect the members’ excep-
tions in their findings as to the sole specification under Additional Charge III.
We agree, and we direct corrective action in our decretal paragraph.

                                    III. CONCLUSION

   The supplemental promulgating order shall reflect that the members ac-
quitted the appellant of the language “influence the testimony of C.K.W.” Fol-
lowing our corrective action, we find that no error materially prejudicial to


   84   See Part IV, ¶96.b., MCM.


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                  United States v. Watkins, No. 201700246


the substantial rights of the appellant remains. Arts. 59(a) and 66(c), UCMJ.
Accordingly, the findings and the sentence are AFFIRMED.
   Chief Judge WOODARD and Judge CRISFIELD concur.


                               FOR THE COURT:




                               RODGER A. DREW, JR.
                               Clerk of Court




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