              UNITED STATES NAVY-MARINE CORPS
                 COURT OF CRIMINAL APPEALS
                      WASHINGTON, D.C.

                                Before
           F.D. MITCHELL, K.J. BRUBAKER, M.C. HOLIFIELD
                      Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                        AMBER N. BASARES
                  SERGEANT (E-5), U.S. MARINE CORPS

                            NMCCA 201400278
                        SPECIAL COURT-MARTIAL

Sentence Adjudged: 26 March 2014.
Military Judge: LtCol E.A. Harvey, USMC.
Convening Authority: Commanding Officer, Wounded Warrior
Battalion (West), Wounded Warrior Regiment, Camp Pendleton,
CA.
Staff Judge Advocate's Recommendation: Maj T.H. Campbell,
USMC.
For Appellant: CAPT Tierney M. Carlos, JAGC, USN; Capt
Michael Magee, USMC.
For Appellee: LT Jetti Gibson, JAGC, USN; Capt Cory A.
Carver, USMC.

                            11 August 2015

     ---------------------------------------------------
                     OPINION OF THE COURT
     ---------------------------------------------------

THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

PER CURIAM:

     A special court-martial consisting of members with enlisted
representation convicted the appellant, contrary to her pleas,
of two specifications of submitting a false official record, one
specification of making a false official statement, one
specification of bribery, and two specifications of
solicitation, in violation of Articles 107 and 134, Uniform Code
of Military Justice, 10 U.S.C. §§ 907 and 934. The members
sentenced the appellant to a bad-conduct discharge and a
reduction to the lowest enlisted pay grade. The convening
authority (CA) approved the sentence as adjudged and, except for
the punitive discharge, ordered the sentence executed.
     The appellant now alleges two assignments of error (AOE):
(1) that she was denied effective assistance of counsel as
guaranteed by the Sixth Amendment; and, (2) that the military
judge abused her discretion by allowing the members to consider
evidence during the sentencing phase of the trial which should
have been excluded.
     After reviewing the record of trial and the pleadings of
the parties, we determine the findings and approved sentence to
be correct in law and fact. We also find that no errors
materially prejudicial to the substantial rights of the
appellant occurred. Arts. 59 (a) and 66(c), UCMJ.
                         Factual Summary
     On 5 June 2013, the appellant, a sergeant (Sgt) in the
Marine Corps, turned in her physical fitness test (PFT) results
which indicated that Staff Sergeant (SSgt) Abner administered
the test to her. When SSgt Roman and First Sergeant (1stSgt)
Dempsey reviewed the document, SSgt Roman noted that the
handwriting was not that of SSgt Abner and that SSgt Abner was
also on leave on the date listed on the document. After
confirming that SSgt Abner had not administered the PFT to the
appellant, 1stSgt Dempsey called her into his office to ask
about the apparent discrepancies in the report. The appellant
responded that it was actually Sgt K who ran the PFT for her and
that he forgot to substitute his name for that of Sgt Abner on
the PFT report. The appellant was not informed of her Article
31(b) rights during this meeting.
     Following the meeting, the appellant contacted Sgt K and
asked to meet him at a nearby grocery store to discuss an
undisclosed matter. When they met, the appellant offered Sgt K
$100.00 to tell 1stSgt Dempsey that he administered the PFT to
her. Sgt K refused to assist the appellant, and told her that
he would consider her request a momentary lapse in judgment,
rather than report her up the chain of command. 1



1
    Record at 107.


                                2
     The appellant then asked a friend, Sgt Jasso, to call
1stSgt Dempsey and pretend to be Sgt K. Sgt Jasso made the call
and, pretending to be Sgt K, told 1stSgt Dempsey that he ran the
test for the appellant. Unbeknownst to the appellant and Sgt
Jasso, SSgt Roman had already emailed Sgt K to inquire into the
appellant’s PFT. Sergeant K later replied via email that he had
not run the test. 2 Confused by the email response, 1stSgt
Dempsey called Sgt K into his office and read him his Article
31(b) rights before questioning him. Sgt K confirmed that he
did not run the PFT for the appellant and that he had not called
stating otherwise. 3
     The appellant was then called in a second time by 1stSgt
Dempsey and this time was read her Article 31(b) rights. After
waiving her rights, the appellant maintained that Sgt K ran her
PFT, and added that Sgt K refused to submit the results unless
she had sex with him. In September 2013, she filed an Inspector
General (IG) complaint, asserting misconduct by six Marines,
three of whom were scheduled to testify against her: 1stSgt
Dempsey, SSgt Abner, and SSgt Sanchez. The appellant was
ultimately found guilty of all charges and specifications.
     During the presentencing hearing, without objection by the
defense, the trial counsel offered evidence of the appellant’s
false accusation that Sgt K had demanded sex from her before he
would submit her PFT results. At the behest of the trial
counsel, over objection by the defense, the military judge took
judicial notice of the definition and maximum punishment of
attempted sexual assault in aggravation to show the reckless
nature of her accusation. The trial counsel referenced the
accusation in his sentencing argument without objection by the
defense. 4
     Additional facts necessary to resolve the assigned errors
are included herein.
                     Ineffective Assistance of Counsel

     The appellant’s first AOE alleges three bases for her claim
of ineffective assistance of counsel:
        (1) failure to make a motion to suppress the statement
        she made to 1stSgt Dempsey when she was questioned


2
    Id. at 129.
3
    Id. at 109.
4
    Id. at 232-34.
                                     3
     about the signature on the PFT report without having
     received an Article 31(b) rights advisement;
     (2) failure to elicit testimony from a defense witness
     to discredit the testimony of a key Government
     witness; and,
     (3) failure to cross-examine witnesses on their bias
     against her.
The appellant asserts that the combination of these errors was
prejudicial in that they deprived her of her Sixth Amendment
right to effective assistance of counsel. We disagree. We do
not find that the allegations amount to ineffective assistance
of counsel, or that the appellant’s case was materially
prejudiced.
     We review “the questions of deficient performance and
prejudice de novo.” United States v. Gutierrez, 66 M.J. 329,
330-31 (C.A.A.F. 2008) (citations omitted). “In order to
prevail on a claim of ineffective assistance of counsel, an
appellant must demonstrate both (1) that his counsel’s
performance was deficient, and (2) that this deficiency resulted
in prejudice.” United States v. Green, 68 M.J. 360, 361
(C.A.A.F. 2010) (citations omitted); see also Strickland v.
Washington, 466 U.S. 668, 688 (1984) (finding that the Sixth
Amendment entitles criminal defendants to representation that
does not fall “below an objective standard of reasonableness” in
light of “prevailing professional norms.”). In order to
establish prejudice, “[t]he defendant must show that there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.
See id.
     Counsel are presumed to be competent, and therefore, our
inquiry into an attorney’s representation must be “highly
deferential” to the attorney’s performance and employ “a strong
presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance.” Id. at 689; see also
United States v. Cronic, 466 U.S. 648, 658 (1984).   Generally,
strategic or tactical decisions made by a trial defense counsel
will only be challenged on appeal if the appellant shows
specific defects in counsel’s performance that were unreasonable
under prevailing professional norms. United States v. Mazza, 67
M.J. 470, 475 (C.A.A.F. 2009). The appellant has the burden of
establishing a factual foundation of ineffective representation,

                                4
which requires a specific statement of the errors or deficient
performance supported by evidence and facts; bare allegations
based on speculation, conjecture, and conclusory comments will
not suffice. United States v. Grigoruk, 52 M.J. 312, 315
(C.A.A.F. 2000); see also United States v. Jones, 39 M.J. 815,
818 (A.C.M.R. 1994).
     In examining the effectiveness of counsel’s assistance, we
review counsel’s performance applying the following test: (1) is
there a reasonable explanation for counsel’s actions; (2) did
counsel’s level of advocacy fell measurably below the ordinary
standard of competence; and, (3) is there is a reasonable
probability that absent the errors, the outcome would have
differed. United States v. Polk, 32 M.J. 150, 153 (C.M.A. 1991)
Failure to File Motion to Suppress
     The appellant alleges multiple instances of conduct or
omissions that undermined her right to effective assistance of
counsel and thereby, prejudiced her case. She begins by
asserting that the trial defense counsel should have made a
motion to suppress her statement to 1stSgt Dempsey alleging that
Sgt K ran her PFT on the grounds that it was inadmissible
because 1stSgt Dempsey did not advise her of her Article 31(b)
rights before asking her questions about the PFT form.
     In the case where the deficiency alleged is a failure to
raise a motion, we first evaluate the likelihood of that
motion’s success before moving on to the question of impact on
the trial. In this case, the appellant has failed to show a
reasonable likelihood of success in prevailing on a motion to
suppress her statement and we therefore find that she has not
met her burden or demonstrated prejudice. See United States v.
McConnell, 55 M.J. 479, 482 (C.A.A.F. 2001).
     The Court of Appeals for the Armed Forces has declared that
Article 31(b) warnings are only required when (1) the person
being interrogated is a suspect at the time of questioning, and
(2) the person conducting the questioning is participating or
could reasonably be considered to be participating in an
official law enforcement or disciplinary investigation or
inquiry. United States v. Swift, 53 M.J. 439, 446 (C.A.A.F.
2000); see also United States v. Jones, 73 M.J 357, 361
(C.A.A.F. 2014). Any questioning of a suspect by a military
superior in his or her chain of command will create a “strong
presumption” that the questioning was for disciplinary
purposes.” Swift, 53 M.J. at 448 (citing United States v. Good,
32 M.J. 105, 108 (C.M.A. 1991)). To evaluate the merit of a

                                5
motion to suppress, we examine all the facts and circumstances
at the time of the questioning. These questions we determine de
novo. Jones, 73 M.J. at 361.
     In the case sub judice, 1stSgt Dempsey, while reconciling
the PFT reports, became aware of a discrepancy on the
appellant’s PFT report as it was prepared by someone other than
Sgt Abner. In an attempt to reconcile this discrepancy, 1stSgt
Dempsey questioned the appellant as to who administered her PFT.
1stSgt Dempsey testified that when he questioned the appellant
about her PFT report he did not suspect her of forging the
document and went on to say that he had no reason to question
her integrity at the time. 5 Based upon the facts on this record,
we find that at the time the appellant was questioned regarding
her June 2013 PFT report she was not suspected of an offense and
therefore no Article 31(b) warnings were required.
     We additionally find that the record does not support the
appellant’s contention that 1stSgt Dempsey was, or could
reasonably be considered to be, acting in a disciplinary
capacity when he questioned the appellant concerning the June
2013 PFT report. Although he was the First Sergeant of the unit
and was therefore in a superior position to the appellant, the
record suggests that he was acting in an administrative capacity
and was merely attempting to rectify a discrepancy he noticed on
the appellant’s PFT form. 6 Since 1stSgt Dempsey was not acting
in a disciplinary or law enforcement capacity, Article 31(b)
warnings were not required.
     Accordingly, the appellant has not carried her burden of
demonstrating that the trial defense counsel’s performance was
deficient. Furthermore, even if we were to find otherwise, we
find that the appellant has failed to meet her burden to
demonstrate prejudice within the meaning of Strickland.
Failure to Discredit Sgt K
     We find the appellant’s next contention likewise to be
without merit. During the trial, the military judge instructed
the trial defense counsel not to discuss the previous sexual
harassment claim raised by a different female Marine against Sgt
K during trial as such was inadmissible under the rules of
evidence. 7 Accordingly, the trial defense counsel complied with

5
    Record at 125.
6
    Id.
7
    Id. at 114-15.
                                6
the military judge’s order. Trial defense counsel’s alleged
failure to adequately examine the witness on this issue was not
a result of incompetence or neglect, but a matter of complying
with the judge’s direction. We find no error here by the trial
defense counsel. Furthermore, the appellant did not show how
counsel’s inaction in this area prejudiced her. The appellant
fails both prongs of the Strickland test, and therefore, we find
no ineffective assistance of counsel regarding the second
allegation. 8
Failure to Cross-Examine Witnesses Based Upon Bias
     Finally, the appellant alleges error in the trial defense
counsel’s decision not to cross-examine three Government
witnesses regarding purported biases towards the appellant.
During the trial, the defense counsel did not cross-examine
1stSgt Dempsey, SSgt Abner, or SSgt Sanchez regarding their
possible prejudice against the appellant arising from the IG
complaint she had filed against them. The trial defense counsel
told the appellant that he did not question one of the witnesses
about the IG complaint because he believed that bringing it up
was irrelevant to the court-martial. 9 Given the nature of the
charges and facts of the case, it was tactically prudent to not
raise what would have likely been viewed as a self-serving
complaint. It is well-established in case law that courts
should not second-guess counselors’ strategic decisions, barring
plain error. See Strickland, 466 U.S. at 681. We do not find
the tactical reason to not question these witnesses to be
deficient performance or plain error. Accordingly, we find this
argument to be without merit.

                             Abuse of Discretion
      In her second AOE, the appellant alleges an abuse of
judicial discretion in the trial judge’s decision to admit
sentencing evidence without conducting a balancing test in
accordance with MILITARY RULE OF EVIDENCE 403, MANUAL FOR COURTS-MARTIAL,
UNITED STATES (2012 ed.). During the presentencing hearing, the
military judge took judicial notice of the definition of sexual
assault and the maximum punishment of attempted sexual assault;
allowed the Government to elicit evidence as to the impact that
a sexual assault conviction could have had on Sgt Koenig;
allowed the Government to argue that the appellant falsely


8
  Although the appellant does not challenge the military judge’s ruling, we
find that it was not an abuse of discretion.
9
    Defense Brief of 21 Nov 2014, Appendix 1 at 2.
                                        7
accused Sgt Koenig of sexual assault; and, instructed the
members that they should consider this evidence in sentencing.
     The abuse of discretion standard is a strict one, calling
for more than a mere difference of opinion. The challenged
action must be arbitrary, fanciful, clearly unreasonable, or
clearly erroneous. United States v. Solomon, 72 M.J. 176, 179
(C.A.A.F. 2013); see also United States v. White, 69 M.J. 236,
239 (C.A.A.F. 2010). If the court finds the military judge
abused his discretion, it then reviews the prejudicial effect of
the ruling de novo. White, 69 M.J. at 239.
     When a military judge conducts a proper balancing test
under MIL. R. EVID. 403, the evidentiary ruling will not be
overturned unless there is a clear abuse of discretion.
Solomon, 72 M.J. at 180. Military judges receive less deference
if “they fail to articulate their balancing analysis on the
record.” See United States v. Hursey, 55 M.J. 34, 36 (C.A.A.F.
2001) (quoting United States v. Manns, 54 M.J. 164, 166
(C.A.A.F. 2000)).
     Assuming without deciding that the military judge erred, we
do not find that the appellant has adequately demonstrated that
any error prejudiced her case. The maximum allowable punishment
faced by the appellant was the jurisdictional limit of a special
court-martial. The Government asked the members for a sentence
of sixty days’ confinement, a bad-conduct discharge, and a
reduction from E-5 to E-1. The appellant received a bad-conduct
discharge and a reduction from E-5 to E-1; she was not sentenced
to confinement. Considering that the appellant was found guilty
of both charges and all six specifications, and adjudged a
sentence that differed substantially and favorably from both the
maximum possible punishment and that asked by the Government, we
find that any error that may have occurred was harmless and did
not prejudice the outcome. Art. 59(a), UCMJ.


                           Conclusion

     The findings of guilty and the sentence as approved by the
CA are affirmed.

                                For the Court



                                R.H. TROIDL
                                Clerk of Court
                                8
