UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                      Before
                          TOZZI, CELTNIEKS, and BURTON
                             Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                          Specialist MACK R. GOSS III
                          United States Army, Appellant

                                  ARMY 20150024

                             Headquarters, Fort Bliss
       Michael J. Hargis, Military Judge (arraignment & post-trial hearing)
      Timothy P. Hayes, Jr., Military Judge (pretrial motions hearing & trial)
           Colonel Karen H. Carlisle, Staff Judge Advocate (pretrial)
           Colonel Charles C. Poché, Staff Judge Advocate (post-trial)

For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Captain Heather L.
Tregle, JA; Captain Matthew D. Bernstein, JA (on brief).

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


                                  16 February 2017

                              ---------------------------------
                              SUMMARY DISPOSITION
                              ---------------------------------

Per Curiam:

       Pursuant to his pleas, a military judge sitting as a general court-martial
convicted appellant of one specification of violating a lawful general order and one
specification of wrongfully engaging in sexual behavior in violation of Articles 92
and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 892, 934 (2012)
[hereinafter UCMJ]. Contrary to his plea, a panel composed of officer and enlisted
members sitting as a general court-martial convicted appellant of one specification
of aggravated sexual contact in violation of Article 120, UCMJ. The panel
sentenced appellant to a bad-conduct discharge, confinement for 179 days, forfeiture
of all pay and allowances, and reduction to the grade of E-1. * The convening

*
  The panel recommended appellant’s confinement be deferred “until after [his]
father’s funeral” and the forfeited pay and allowances “be directed to [his]
dependents[.]”
GOSS—ARMY 20150024

authority approved the sentence as adjudged, approved 7 days of confinement credit,
deferred the sentence to confinement for 14 days, deferred the adjudged forfeitures
until action, and waived automatic forfeitures for 165 days.

       This case is now before us pursuant to Article 66, UCMJ. Appellant raises
four assigned errors, one of which requires discussion but no relief. We also find
the matters raised personally by appellant pursuant to United States v. Grostefon, 12
M.J. 431 (C.M.A. 1982), have no merit.

                                  BACKGROUND

      On 21 November 2013, on Bagram Airfield, Afghanistan, appellant
wrongfully consumed alcohol in violation of a lawful general order. Afterwards,
Sergeant (SGT) McFadden drove a Light Medium Tactical Vehicle (LMTV), with
appellant and Corporal (CPL) PF as passengers, from the Morale, Welfare, and
Recreation facility to the barracks. When they arrived at the barracks,
SGT McFadden parked the LMTV. Appellant and SGT McFadden then engaged in
various sexual acts with CPL PF. At trial, CPL PF testified the sexual acts with
appellant and SGT McFadden were accomplished by unlawful force and without her
consent.

       On 14 January 2015, appellant was found guilty of and sentenced for, inter
alia, aggravated sexual contact against CPL PF. The next day, appellant gave his
defense counsel a print copy of an electronic message posted on Twitter that
appeared to be from CPL PF. The Twitter message was posted on “5:05 PM – 14 Jan
2015” and read, “I lied and ruined a life today . . . Sorry but him or me LOL!!!!!”

       On 21 January 2015, appellant’s defense counsel moved the trial court for a
mistrial based on the Twitter message. The government opposed the motion,
challenging the authenticity of the Twitter message. In a judicial conference
pursuant to Rule for Courts-Martial 802, the military judge instructed the trial and
defense counsel to provide a list of witnesses that could establish or disprove the
authenticity of the Twitter message.

       Sometime later, the military judge scheduled an Article 39(a), UCMJ, post-
trial hearing for 28 September 2015 to hear testimony from any available witnesses
regarding the authenticity of the Twitter message. In a judicial conference three
days before the hearing, the defense counsel requested a delay to allow time for a
limited forensic examination of the electronic devices appellant purportedly used to
view and print the Twitter message. The military judge denied the delay request,
explaining he intended to hear testimony from the available witnesses before
deciding whether to grant appellant additional time for discovery. At the hearing,
however, defense counsel informed the military judge that appellant wanted to
withdraw his motion for a mistrial. The military judge questioned appellant
extensively about his understanding of the meaning and effect of withdrawing his

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GOSS—ARMY 20150024

motion for a mistrial. The military judge also explained the potential benefits to
appellant if his motion was granted. This explanation specifically referenced the
positive effect of the Twitter message, if authenticated, as follows: “And I’m sure
that your counsel explained to you that if that were true, if that [Twitter message]
were true, [that] certainly would be a basis for either a mistrial or a new trial.”
After reiterating the purpose of the post-trial hearing was to hear available testimony
before deciding whether to grant defense counsel’s request for additional time for
discovery, the military judge concluded by inquiring into the voluntariness of
appellant’s desire to withdraw his motion for a mistrial.

       During the entire inquiry, appellant assured the military judge he understood
the meaning and effect of withdrawing his motion for a mistrial. Appellant affirmed
his decision was voluntary and made with full knowledge of the potential benefits he
would lose. Accordingly, the military judge granted appellant’s request to withdraw
his motion for a mistrial.

       On appeal, appellant asserts as one of his assigned errors that he received
ineffective assistance from his defense counsel. Supporting this claim, appellant
submitted a sworn affidavit maintaining CPL PF posted the Twitter message, but
alleging:

             [he] was told the morning of the [post-trial hearing] the
             severity of [his wife’s pregnancy] complications and that
             [he] needed to get back to South Carolina to be with her.
             [Appellant] told [his] defense counsel and no efforts were
             made to reschedule the [hearing]. It was [appellant’s]
             understanding the military judge did not want to delay the
             [hearing] and [he] was forced to waive the [hearing] and
             motion for a mistrial to be home with [his] wife.

Appellant did not allege any other deficiencies in his defense counsel’s performance.
Upon order from this court, defense counsel submitted affidavits describing their
requests to delay the post-trial hearing, which the military judge denied.

                             LAW AND DISCUSSION

       The Sixth Amendment guarantees an accused the right to the effective
assistance of counsel. United States v. Gooch, 69 M.J. 353, 361 (C.A.A.F. 2011)
(citing United States v. Gilley, 56 M.J. 113, 124 (C.A.A.F. 2001)). To establish that
his counsel was ineffective, “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, 361-62 (C.A.A.F. 2010) (citing
Strickland v. Washington, 466 U.S. 668, 687 (1984)). We review both prongs of the
Strickland test de novo. United States v. Mazza, 67 M.J. 470, 474 (C.A.A.F. 2009)
(citing United States v. Anderson, 55 M.J. 198, 201 (C.A.A.F. 2001)).

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GOSS—ARMY 20150024

      “On appellate review, there is a ‘strong presumption’ that counsel was
competent.” United States v. Grigoruk, 56 M.J. 304, 306-07 (C.A.A.F. 2002)
(quoting Strickland, 466 U.S. at 689). To overcome this presumption, an appellant
“bears the burden of establishing the truth of the factual allegations that would
provide the basis for finding deficient performance.” United States v. Tippit, 65
M.J. 69, 76 (C.A.A.F. 2007) (citing United States v. Polk, 32 M.J. 150, 153 (C.M.A.
1991)).

       As a threshold matter, because appellant and defense counsel filed conflicting
affidavits, we look to whether additional factfinding is required at a post-trial
evidentiary hearing. See United States v. Ginn, 47 M.J. 236, 248 (C.A.A.F. 1997)
(establishing several factors which determine whether an evidentiary hearing is
warranted). Under the first Ginn factor, no factfinding hearing is required if “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[.]” Id. Under the fourth Ginn
factor, no factfinding hearing is required “if the affidavit is factually adequate on its
face but the appellate filings and the record as a whole ‘compellingly demonstrate’
the improbability of those facts[.]” Id.

       Based upon our review of appellant’s claim, defense counsel’s affidavits, and
the matters contained in the record, we can resolve this issue without ordering
additional factfinding. Starting with the fourth Ginn factor, the record compellingly
demonstrates the factual assertion in appellant’s affidavit—that his defense counsel
made “no efforts” to delay his hearing—is false. At the post-trial hearing, the
military judge acknowledged the “[d]efense [counsel] requested a continuance” so
appellant’s electronic devices could be forensically examined. The military judge,
however, denied the request because he “felt it was time to get on the record . . . as
opposed to continuing to leave it to counsel to try to resolve and get all the evidence
in one place.” The military judge also explained to appellant he intended to
reconsider the delay request after hearing from the available witnesses about the
authenticity of the Twitter message. The record of the post-trial hearing leaves no
doubt that appellant’s defense counsel requested a delay in the proceedings.

       Moreover, applying the first Ginn factor, we conclude the facts alleged in
appellant’s affidavit would not result in relief even if any factual dispute were
resolved in his favor. Id. Even if we read the factual assertion in appellant’s
affidavit to mean his defense counsel made no efforts during the hearing to request a
delay based on alternative grounds (i.e., his wife’s medical condition), he still
would not be entitled to relief. It is unlikely the military judge would have delayed
the post-trial hearing if, as in this case, granting the delay would not have expedited
appellant’s return home. Based on the short notice of the medical issues, the earliest
return travel the government could arrange for appellant was for two days after the
scheduled hearing. Under these circumstances, it is doubtful the military judge
would have delayed the hearing. Therefore, appellant has failed to prove deficient


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GOSS—ARMY 20150024

performance on the part of his defense counsel and, even assuming deficient
performance, has failed to demonstrate prejudice.

                                  CONCLUSION

      Upon consideration of the entire record, the findings of guilty and the
sentence as approved by the convening authority are AFFIRMED.

                                           FOR
                                           FOR THE
                                               THE COURT:
                                                   COURT:




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




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