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 

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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 

2 

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, posttrial 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 
GOSS—ARMY 20150024 

3 

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)). 
GOSS—ARMY 20150024 

4 

“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 
GOSS—ARMY 20150024 

5 

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 THE COURT: 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: