                       UNITED STATES, Appellee

                                    V.

               John A. ANDERSON, Jr., Staff Sergeant
                     U.S. Air Force, Appellant


                              No. 00-0518


                         Crim. App. No. 33456



       United States Court of Appeals for the Armed Forces

                       Argued January 10, 2001

                        Decided June 29, 2001

    GIERKE, J., delivered the opinion of the Court, in which
       CRAWFORD, C.J., and EFFRON and BAKER, JJ., joined.
            SULLIVAN, J., filed a dissenting opinion.

                                 Counsel

For Appellant: Marcus J. Williams (argued); Colonel James R.
   Wise, Lieutenant Colonel Timothy W. Murphy, and Captain Karen
   L. Hecker (on brief); Captain Michael J. Apol.

For Appellee: Captain Christa S. Cothrel (argued); Colonel
   Anthony P. Dattilo and Major Lance B. Sigmon (on brief);
   Lieutenant Colonel Ronald A. Rodgers, Major Mitchel Neurock,
   and Captain James C. Fraser.

Military Judge:   Michael J. Rollinger


    This opinion is subject to editorial correction before publication.
United States v. Anderson, No. 00-00518/AF


      Judge GIERKE delivered the opinion of the Court.

      A general court-martial composed of officer and enlisted

members convicted appellant, contrary to his pleas, of committing

indecent acts with his 13-year-old daughter (2 specifications),

in violation of Article 134, Uniform Code of Military Justice, 10

USC § 934.    In addition, he was acquitted of two specifications

alleging that he attempted to rape his daughter, in violation of

Article 80, UCMJ, 10 USC § 880, and one specification alleging

that he raped his daughter, in violation of Article 120, UCMJ, 10

USC § 920, but he was found guilty of committing indecent acts in

violation of Article 134, as lesser-included offenses of the two

attempted rapes and the rape.        The adjudged and approved sentence

provides for a dishonorable discharge, confinement for 9 years,

and reduction to the lowest enlisted grade.       Automatic

forfeitures were waived for 6 months in accordance with Article

58b, UCMJ, 10 USC § 858b.       The Court of Criminal Appeals affirmed

the findings and sentence in an unpublished opinion.

      This Court granted review of the following issue:

      WHETHER APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO
      EFFECTIVE ASSISTANCE OF COUNSEL BECAUSE: (1) DEFENSE
      COUNSEL FAILED TO INVESTIGATE HIS CASE AND ADEQUATELY
      PRESENT HIS DEFENSE AT TRIAL, AND (2) DEFENSE COUNSEL
      REPEATEDLY CONCEDED HIS GUILT TO THE COURT.


For the reasons set out below, we remand the case for further

proceedings.

                            Factual Background
      At the time of trial, appellant was a married, 34-year-

old staff sergeant with four children: a 13-year-old daughter,

BJA, two 11-year-old boys, and a 6-year-old boy.       In April 1998,



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United States v. Anderson, No. 00-00518/AF


while on a church-sponsored trip to Mexico, BJA told a church

official that appellant had been touching her inappropriately.

The church official suggested that BJA attend a church workshop

on forgiveness.     BJA attended the workshop and then talked to a

church counselor.     After BJA returned to her home at McChord Air

Force Base, Washington, the church pastor reported BJA’s

accusations to her mother.       BJA was then interviewed by an agent

of the Office of Special Investigations (OSI).        She told the OSI

agent that several times a year for about 3 years, appellant

touched her inappropriately.        At trial, she testified that

appellant touched her much more frequently than she first

reported, two or three times a week, and that he forced her to

touch his genitals.      She also testified that on two occasions,

appellant attempted to have intercourse with her, and that on one

occasion, he penetrated her.

       BJA admitted that she initially did not tell the OSI

everything because she “didn’t think they needed to know any

more.”    She hoped that appellant “would admit that he did it and

get help.”    At trial, she admitted testifying during the Article

32∗ investigation that she did not remember the “three rapes”

until 3 weeks before the Article 32 hearing. She testified at the

Article 32 hearing that she “started having bad dreams about it”

and then “started remembering more stuff that happened.”

       The defense attempted to show that BJA’s accusations were

intended to “get even” with appellant because he refused to allow

her to date a 16-year-old boy.        BJA denied telling her brother


∗
    Uniform Code of Military Justice, 10 USC § 832.


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United States v. Anderson, No. 00-00518/AF


that she would “get even” with appellant.          BJA’s mother denied

telling a neighbor, Sergeant First Class (SFC) Martin Boylan,

that BJA had threatened to “get even” with appellant.

      Appellant testified at trial and denied all the allegations.

His testimony consisted solely of “No, Sir” responses to a brief

series of leading, factual questions from his defense counsel.

During closing arguments on the merits, defense counsel

paraphrased a quotation from Sophocles as follows: “[T]here is a

point beyond when even justice becomes unjust.          And to find Staff

Sergeant John A. Anderson, Jr., guilty under the facts and

circumstances of this case would amount to just such a point.”

During his sentencing argument, defense counsel asked the
rhetorical question, “Can this person rehabilitate? . . . [Y]es,

John Anderson can rehabilitate. . . . His offenses are only very

recent.”

      The defense was assisted at trial by Dr. Bruce Ebert, a

board-certified, clinical and forensic psychologist and a lawyer

licensed to practice in California.          Dr. Ebert advised the

defense on trial tactics and observed the testimony of BJA at
trial.

      Before the court below and now this Court, appellant

contends that his trial defense counsel were ineffective.            Among

his allegations, appellant states that 4 months before the trial,

he told his counsel that BJA told her brother she was going to

“get” appellant, but that his counsel never discussed this matter

with him again.     The court below admitted an affidavit from SFC

Boylan, appellant’s former neighbor who had since retired from

active duty, stating that Mrs. Anderson told him BJA threatened


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United States v. Anderson, No. 00-00518/AF


to “get” appellant because he would not allow her to see her

boyfriend.    SFC Boylan also stated that he told appellant’s

defense counsel about Mrs. Anderson’s comment and volunteered to

testify about it, but he was never asked to testify.

      The court below also admitted an affidavit from Dr. Ebert,

in which he stated that the church group to which BJA first

complained “has been described as extremely fundamentalist and

charismatic to such a degree as to have similarities with a

cult.”    Dr. Ebert stated that he suspected “the counselor used

some quasi-hypnotic techniques” that caused BJA to make her

complaints.    Dr. Ebert believed that further investigation of

these techniques, as well as the circumstances of BJA’s

complaint, was warranted.

      Dr. Ebert stated that “it was critically important for [him]

to conduct an interview with [BJA],” but “[a]pparently, she

refused to speak to [him] or with any member of the defense.”         He

opined that “[a] psychological examination of [BJA] by an

independent expert such as [Dr. Ebert] may have been extremely

valuable[.]”

      After receiving Dr. Ebert’s affidavit, the court below

ordered Captains (Capts) Hockaday and Davis, appellant’s trial

defense counsel, to respond.        In his affidavit, Capt Hockaday

stated:

            Although Dr. Ebert states in his affidavit that he
            believed that BJA refused to speak with him or any
            member of the defense, we told Dr. Ebert of the results
            of our interview with her the week before the trial.
            In any event, Dr. Ebert was also told of the difficulty
            we had experienced in obtaining an interview with BJA,
            and that she had been made available for interviews
            only after the possibility of a subpoena was raised.



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United States v. Anderson, No. 00-00518/AF


            . . . . At no time did Dr. Ebert advise us that he
            should personally interview BJA, perform a
            psychological evaluation of BJA, personally interview
            the church counselor or investigate the church further.
            Dr. Ebert advised that he should not be called as a
            witness. Had Dr. Ebert provided the advice he
            discusses in his affidavit, we would have taken steps
            to follow that advice.

      Capt Davis’s affidavit stated that he and Capt Hockaday

interviewed BJA’s brother on August 20, 1998, 4 days before

trial, but that the brother did not support appellant’s claim

that BJA threatened to “get” him.            Capt Davis also asserted that

“the defense was not authorized to compel a psychological

examination of BJA” because the prosecution did not intend to put

BJA’s mental state in issue.        Regarding the importance of having

a psychological examination of BJA, Capt Davis stated:

            Dr. Ebert informed us that his review of the
            information forwarded to him revealed no evidence
            inconsistent with the allegations, except for one
            statement by BJA in the Article 32 report regarding
            remembering the alleged rape in a dream . . . .
            Subsequent to BJA’s direct examination, defense counsel
            once again consulted with Dr. Ebert, since he was
            present during BJA’s testimony on direct, to determine
            whether he had any strategical suggestions. He
            informed us that he did not believe we had any real
            basis to attack BJA’s testimony from a psychological
            standpoint, and that therefore, his testimony would
            probably not assist our defense. At that point, we
            agreed with Dr. Ebert and did not pursue any possible
            psychological issues regarding BJA or call Dr. Ebert as
            a witness.

      Appellant tendered a second affidavit from Dr. Ebert to the

court below in response to the affidavits of Capt Hockaday and

Capt Davis, but the court refused to admit Dr. Ebert’s second

affidavit.    Appellant submitted the affidavit to this Court, and

we admitted it.     Dr. Ebert’s second affidavit responded to Capt

Hockaday’s statement that Dr. Ebert did not recommend he

interview BJA and perform a psychological evaluation, and did not


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United States v. Anderson, No. 00-00518/AF


recommend interviewing the church counselor or investigating the

church.   Dr. Ebert responded by saying Capt Hockaday’s statement

“is simply false.”      Dr. Ebert also stated that he “specifically

requested information on the alleged victim’s church and the

specifics of the events surrounding the alleged victim’s

disclosure made during her trip to Mexico.”

                                 Discussion

      Appellant contends that his counsel were ineffective because

they (1) did not interview BJA’s brother in a timely manner

before he “forgot” about BJA’s threats to retaliate against

appellant or was influenced by others to change his story; (2)

did not investigate the circumstances of BJA’s initial

accusations against appellant; (3) did not make reasonable

efforts to permit Dr. Ebert to interview, test, and evaluate BJA

before trial; (4) did not call SFC Boylan as a witness to

contradict BJA and Mrs. Anderson; and (5) improperly conceded

appellant’s guilt in argument.

      To prevail on a claim of ineffectiveness of counsel, an

appellant must show that counsel’s performance was deficient and

that the deficient performance prejudiced the defense.

Strickland v. Washington, 466 U.S. 668, 687 (1984).     Counsel are
presumed competent.      To overcome this presumption, an appellant

must show that counsel made specific errors that were

unreasonable under prevailing professional norms.     Id. at 688-90;

see also United States v. Cronic, 466 U.S. 648 (1984).

      In United States v. Polk, 32 MJ 150, 153 (CMA 1991), this

Court adopted a three-pronged test to determine if the

presumption of competence has been overcome:


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United States v. Anderson, No. 00-00518/AF


      (1) Are appellant’s allegations true; if so, “is there a

reasonable explanation for counsel’s actions[?]”;

      (2) If the allegations are true, did defense counsel’s level

of advocacy fall “measurably below the performance . . .

[ordinarily expected] of fallible lawyers[?]”; and

      (3) If defense counsel were ineffective, is there “a

reasonable probability that, absent the errors,” there would have

been a different result?

      Ineffectiveness of counsel is a mixed question of law and

fact.   Factual findings are reviewed under a clearly-erroneous

standard of review, but the ultimate determinations whether

counsel were ineffective and whether their errors were

prejudicial are reviewed de novo.            United States v. Wean, 45 MJ

461, 463 (1997).

      Appellant’s first three claims are founded on the failure to

investigate.    “[A] particular decision not to investigate must be

directly assessed for reasonableness in all the circumstances,

applying a heavy measure of deference to counsel’s judgments.”

Strickland, supra at 691.
      In addition, appellant’s third claim involves the

opportunity for Dr. Ebert to interview, test, and evaluate BJA.

In United States v. Owen, 24 MJ 390, 395 (CMA 1987), this Court

opined that a military judge lacks “inherent power” to compel a

victim to undergo nonconsensual examination.           This Court noted,

however, that a military judge and a trial counsel can use “the

persuasive powers of [their] office[s] . . . to secure the

witness’ consent” to such examination.           Id.




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United States v. Anderson, No. 00-00518/AF


      Appellant’s fourth claim concerns his counsel’s failure to

present the testimony of SFC Boylan.         The affidavits of defense

counsel did not address this issue.          This Court “will not second-

guess the strategic or tactical decisions made at trial by

defense counsel.”     United States v. Morgan, 37 MJ 407, 410 (CMA

1993).    “On the other hand, where it is not apparent what

decisions were made or even that a strategic or tactical decision

was made, further inquiry may be required.”         United States v.

Grigoruk, 52 MJ 312, 315 (2000).
      Appellant’s final claim is that his counsel improperly

conceded his guilt.      An unequivocal concession of guilt can so

undermine the adversarial process as to obviate the need for a

separate showing of prejudice.        United States v. Swanson, 943

F.2d 1070, 1074 (9th Cir. 1991), citing Cronic, supra.         This

Court discussed concessions of guilt during sentencing arguments

in Wean, 45 MJ at 464, cited by appellant.         In Wean, this Court

opined:

            [D]efense counsel should not concede an accused’s guilt
            during sentencing, not only because this can serve to
            anger the panel members, but also because defense
            counsel may be able to argue for reconsideration of the
            findings before announcement of the sentence.

Wean is of limited applicability to appellant’s case, however,

because it was premised on RCM 924(a), Manual for Courts-Martial,

United States (1994 ed.).       The version of RCM 924(a) in effect at

the time of appellant’s trial did not permit court members to

reconsider findings after they are announced.         See 45 MJ at 464

n. 4; RCM 924(a), Manual for Courts-Martial, United States (1998

& 2000 eds.).




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United States v. Anderson, No. 00-00518/AF


      In United States v. Ginn, 47 MJ 236, 248 (1997), this Court

held that conflicting affidavits on an issue of ineffectiveness

of counsel may not be resolved without a factfinding hearing,

unless (1) the facts alleged by the appellant would not result in

relief even if true; (2) the appellant does not assert specific

facts but only speculative or conclusory observations; (3) the

appellant’s factual assertions are not contested; (4) the record

as a whole “compellingly demonstrate[s]” the improbability of the

facts asserted by the appellant; or (5) the appellant’s factual

assertions contradict statements made by the appellant on the

record and the appellant does not “rationally explain why he

would have made such statements at trial but not upon appeal.”

                                Conclusions
      Applying the principles set out in Ginn, we conclude that a

factfinding hearing is required to resolve the factual conflicts

between Dr. Ebert’s two affidavits and the affidavits of Capts

Hockaday and Davis.

      Appellant’s trial defense counsel appear to concede the

wisdom and necessity of investigating the circumstances of BJA’s
initial accusations, commenting that if Dr. Ebert had suggested

it, they would have done it.        The court members obviously had

some concerns about BJA’s credibility, acquitting appellant of

the two attempted rapes and one consummated rape.        We conclude

that further inquiry is required to determine the adequacy of

trial defense counsel’s pretrial investigation of the

circumstances of BJA’s accusations against appellant.

      The apparent conflict between SFC Boylan’s affidavit and

Mrs. Anderson’s in-court testimony may be relevant to the defense


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United States v. Anderson, No. 00-00518/AF


theory that BJA’s accusations grew in response to encouragement

by her mother, friends, and counselors.          Defense counsel have not

had an opportunity to articulate a tactical reason not to call

SFC Boylan as a defense witness.           Further inquiry will give them

such an opportunity.

      Capt Davis stated that the defense interviewed BJA’s brother

shortly before trial, but he did not explain why the brother was

not interviewed earlier, at a time more immediate to the events

in question.    Further factual inquiry and an opportunity for

defense counsel to explain their pretrial strategy is required.

      Defense counsel’s impression that they could not compel BJA

to submit to psychological testing begs the question whether she

would have submitted voluntarily or whether the use of

“persuasive” measures by the military judge or trial counsel

recognized in Owen, supra, could have produced the same result.
Further inquiry is needed into the likelihood that Dr. Ebert

could have interviewed and evaluated BJA and obtained evidence

favorable to appellant.

      Defense counsel’s arguments on findings and sentence are
susceptible of being interpreted as concessions, but they are not

the obvious concessions of the sort that were condemned in

Swanson, supra.     In our view, the cumulative effect of these

arguments warrants further evaluation after the factual issues

are resolved.

                                  Decision

      The decision of the United States Air Force Court of

Criminal Appeals is set aside.        The record of trial is returned

to the Judge Advocate General of the Air Force for remand to a


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United States v. Anderson, No. 00-00518/AF


convening authority to conduct a factfinding hearing in

accordance with United States v. DuBay, 17 USCMA 147, 37 CMR 411

(1967).   The factfinding hearing should address: (1) the factual

conflicts between the affidavits of Dr. Ebert and those of trial

defense counsel; (2) the adequacy of trial defense counsel’s

pretrial investigation of the circumstances of BJA’s accusations

against appellant, including the delay in interviewing BJA’s

brother until the eve of trial; (3) the reasons for not

presenting the testimony of SFC Boylan; and (4) the circumstances

under which Dr. Ebert could have evaluated BJA and the potential

results of such an evaluation.        The record of trial, including

the factfinding hearing, will then be transmitted to the Court of

Criminal Appeals, which will reconsider appellant’s claims of

ineffective representation, including his claim that defense

counsel conceded his guilt.       Thereafter, Article 67, UCMJ, 10 USC

§ 867, will apply.




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United States v. Anderson, 00-0518/AF



    SULLIVAN, Judge (dissenting):

    I agree with the decision of this Court in United States v.

Ginn, 47 MJ 236 (1997).    However, I do not agree that Ginn

requires a remand for a Dubay hearing in this case.    The

majority’s failure to particularly explain why the legal

principles it cites and the facts it relies on justify a remand

under Ginn leaves me unpersuaded that relief is warranted.

Accordingly, I dissent.



    Turning to the posttrial affidavits in this case, I note that

there is no dispute that defense counsel did not interview the

alleged victim’s brother, J, until 4 days before trial.

Moreover, it is not disputed that 4 months prior to trial,

appellant told defense counsel that the alleged victim made

certain statements to her brother.    Finally, it is not disputed

that the brother eventually denied knowledge of such statements

by the alleged victim.    However, it is utter speculation that

over the 4-month period, J forgot that his sister made statements

threatening to get even with appellant for not letting her date

an older boy.   A claim of ineffective assistance of counsel

cannot rest on speculation.    See United States v. Ginn, supra at

248 (Second Principle:    “[I]f the affidavit does not set forth

specific facts but consists instead of speculative or conclusory

observations, the claim may be rejected on that basis.”).
United States v. Anderson, No. 00-0518/AF

   I turn next to the decision of defense counsel not to call

SFC Boylan to testify that the victim’s mother said the victim

said she wanted to get appellant for not letting her date an

older boy.   There is no factual dispute on this point.   The

evidence, however, could only be used for impeachment of the

mother, who was not a witness to the charged offenses.    In any

event, the victim in her testimony admitted being mad at

appellant because he did not permit her to date an older boy.

See United States v. Ginn, supra at 248 (First Principle:       “[I]f

the facts alleged in the affidavit allege an error that would not

result in relief even if any factual dispute were resolved in

appellant’s favor, the claim may be rejected on this basis.”).



    The remaining reason the majority remands this case is

because of a posttrial conflict in the affidavits of a defense

expert and defense counsel.   Doctor Ebert asserts that he

requested defense counsel allow him to interview the alleged

victim for evidence of psychological manipulation by her church

or family.   Defense counsel asserts that Dr. Ebert did not make

such a request and ruled out such manipulation by the church

where she revealed her prior abuse by appellant.   Clearly, this

is a factual dispute, and it might have some bearing on an




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United States v. Anderson, No. 00-0518/AF

important issue in this case, i.e., the credibility of the
                  1
alleged victim.       However, the resolution of this dispute in

appellant’s favor would not entitle appellant to relief.       Even

Dr. Ebert asserts that the alleged victim’s mother would not make

her available for a psychological interview by him unless

required by law to do so.     See United States v. Ginn, supra at

239.



    Finally, in this case, it was not ineffective assistance of

counsel for defense counsel to fail to request that trial counsel

and the trial judge urge the alleged victim to voluntarily submit

to a defense psychological examination.       Cf. United States v.

Owen, 24 MJ 390, 395 (CMA 1987).       There is no dispute in this

case that defense counsel did not ask these officers to urge the

victim to take such an examination.       However, there is also no

dispute that the victim’s mother would not allow such an

examination unless legally coerced.       In my view, the law does not

require the doing of futile acts.

1
   Doctor Ebert’s testimony that in his opinion, the alleged
victim was being psychologically manipulated to make false
allegations against appellant might be objectionable on the basis
that he was improperly serving as a validator or human lie
detector. See United States v. Armstrong, 53 MJ 76, 80-81
(2000); cf. United States v. Wright, 53 MJ 476, 485 (2000).




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