UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

MULLIGAN, FEBBO, and WOLFE 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Sergeant RAYMOND P. PASAY 

United States Army, Appellant 

ARMY 20140930 

Headquarters, 1st Cavalry Division 

Rebecca K. Connally, Military Judge (arraignment) 

Wade N. Faulkner, Military Judge (trial) 

Lieutenant Colonel James D. Levine, II, Acting Staff Judge Advocate (pretrial) 

Colonel Alison C. Martin, Staff Judge Advocate (recommendation) 

Lieutenant Colonel Michael D. Jones, Acting Staff Judge Advocate (addendum) 

For Appellant: Lieutenant Colonel Melissa R. Covolesky, JA; Major Christopher D. 

Coleman, JA; Captain Joshua G. Grubaugh, JA (on brief); Major Christopher D. 

Coleman, JA; Captain Joshua G. Grubaugh, JA (on reply brief). 

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III, 

JA; Major Melissa Dasgupta Smith, JA; Captain Christopher A. Clausen, JA (on 

brief). 

19 April 2017 

---------------------------------- 

MEMORANDUM OPINION 

---------------------------------- 

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent. 

WOLFE, Judge: 

Appellant, Sergeant (SGT) Raymond Pasay, appeals his conviction for the 

rape and sexual abuse of his daughter, AM.1

 Of appellant’s five assignments of 

 

1

 Appellant was convicted of two specifications of abusive sexual contact with a 

child, two specifications of aggravated sexual abuse of a child, two specifications of 

aggravated sexual assault of a child, indecent act, rape, and production of child 

pornography in violation of Articles 120 and 134, Uniform Code of Military Justice, 

10 U.S.C. §§ 920, 934 (2006 & Supp. IV; 2012) [hereinafter UCMJ]. 
PASAY—ARMY 20140930 

2 

error, three merit detailed discussion. Although we find one specification to be 

factually insufficient, we do not otherwise discuss appellant’s claims that the 

remaining specifications are factually and legally insufficient.2 The military judge 

sentenced appellant to a dishonorable discharge, confinement for fifty-one years, 

forfeiture of all pay and allowances, and reduction to the grade of E-1. The military 

judge also credited appellant with fifty-one days of confinement credit against the 

term of confinement. The convening authority credited appellant with fifty-one days 

of confinement credit and approved as much of the adjudged sentence as provided 

for a dishonorable discharge, confinement for fifty-one years, and reduction to the 

grade of E-1. 

We first address appellant’s concerns that we have an issue under United 

States v. Walters, 58 M.J. 391 (C.A.A.F. 2003). In announcing findings for two 

specifications, the military judge excepted out the words “on divers occasions” 

without explanation. Next, we address appellant’s allegation that the military judge 

should have disqualified himself because appellant alleges he had previously acted 

“as counsel” in the case. Finally, we address appellant’s claim that his civilian 

defense counsel and detailed defense counsel provided ineffective assistance.3

DISCUSSION 

A. Ambiguous Findings and United States v. Walters 

Appellant was convicted of nine specifications. Two of those specifications 

(Specifications 2 and 12 of Charge I) alleged appellant acted “on divers occasions.” 

For both specifications, the military judge excepted out the words “on divers 

occasions.” That is, the military judge found appellant guilty of the offense on a 

single occasion and acquitted appellant of all other occasions. As the military judge 

did not explain his findings, this presents us on appeal with the question of whether 

we can determine what conduct formed the basis of appellant’s guilty finding. 

The reasoning behind this dilemma is well-settled and is discussed in depth in 

our superior court’s decision in Walters. If the findings are ambiguous, we cannot 

 

2

 We do not address in depth appellant’s claim that he is entitled to sentencing relief 

because it took 276 days to conduct post-trial processing. We find no due process 

violation and do not find the sentence to be inappropriate notwithstanding the time it 

took to prepare appellant’s case for convening authority action. 

3

 The matters submitted personally by appellant pursuant to United States v. 

Grostefon, 12 M.J. 431 (C.M.A. 1982) are either duplicative of the assigned errors 

or do not merit individual discussion or relief. 
PASAY—ARMY 20140930 

3 

perform our duties under Article 66(c), UCMJ, and the specifications must be set 

aside with prejudice.4

As an initial matter, we note Specifications 1 and 13 of Charge I were 

alternative charges to the conduct alleged in Specifications 2 and 12 of Charge I. 

The government conceded the specifications were charged in the alternative. At 

trial, appellant moved to dismiss the specifications as unreasonably multiplied. Rule 

for Courts-Martial [hereinafter R.C.M.] 906(b)(12) provides for appropriate relief 

when specifications are unreasonably multiplied for sentencing. R.C.M. 907 

instructs on motions to dismiss. R.C.M. 917 allows for the military judge to enter a 

finding of not guilty based on the insufficiency of the evidence. 

Here, the military judge stated his intent to enter a not guilty finding to solve 

an issue of unreasonable multiplication of charges issue–regardless of the 

sufficiency of the evidence. In other words, even assuming the government proved 

the specifications beyond a reasonable doubt, the military judge stated he would find 

appellant not guilty of the specifications. And, indeed, appellant was found not 

guilty of Specifications 1 and 13 of Charge I. Accordingly, we cannot resolve the 

Walters issue in this case by looking to the alternative charges. 

1. Forfeiture 

While Walters was decided well-over a decade ago, we are unaware of a case 

that addresses whether a Walters issue is forfeited by the failure to raise the issue to 

the trial judge. In other words, when presented with ambiguous findings, must an 

accused raise the issue to the military judge in order to preserve the issue for 

 

4

 It is curious that the government persists in using the words “on divers occasions” 

in charging decisions after the Court of Appeals for the Armed Force’s (CAAF) 

decision in Walters. “Divers” is an archaic way of stating “two or more.” See Dep’t 

of Army, Pam. 27-9, Legal Services: Military Judges Benchbook [hereinafter 

Benchbook], para. 7-25 (1 Jan. 2010) (defining “divers”). As the CAAF made clear 

in United States v. Rodriguez, the Walters issue is only triggered when the accused 

is acquitted of certain language by exceptions. 66 M.J. 201, 204-05 (C.A.A.F. 

2008). In that case, the CAAF refused to extend Walters to circumstances where it 

may be unclear which instances formed the basis of the court-martial’s findings, but 

where the findings did not include findings by exceptions. Id. If the government 

charged the language “one or more” instead of “two or more,” the Walters issue 

would be eliminated, the amount of admissible evidence would be the same, and the 

accused would continue to receive notice and double jeopardy protection of the 

charges he is facing. To the extent that charging “one or more” presents disjunctive 

charging, it is a problem already present when the government charges the conduct 

happened on “divers” or “two or more” occasions. 
PASAY—ARMY 20140930 

4 

appeal? If forfeiture does not apply, then appellant is under no obligation to raise 

the issue to the trial judge, and is in fact highly incentivized to do nothing. Put 

differently, is a Walters issue a bipartite failure of the trial counsel and the military 

judge, or a tripartite failure also involving the defense counsel? 

Absent plain error, an accused forfeits error–even constitutional error–by 

failing to object at trial. See e.g. United States v. Carpenter, 51 M.J. 393, 396 

(C.A.A.F. 1999); United States v. Powell, 49 M.J. 460, 463 (C.A.A.F. 1998). The 

plain error doctrine incentivizes parties to raise allegations of error at the trial level 

where it can be most easily corrected. Here, as we discuss below, appellant’s claims 

turn on how plain and obvious it was that there was evidence of more than one 

offense. 

Nonetheless, we infer from our superior court’s treatment of previous cases 

that forfeiture is inappropriate when considering a Walters issue. Accordingly, we 

assume without deciding that forfeiture does not apply. 

2. Standard of Review 

On appeal, a Walters issue may only be resolved if the record “clearly put the 

accused and the reviewing courts on notice of what conduct served as the basis for 

the findings.” Walters, 58 M.J. at 396. In United States v. Ross, our superior court 

made clear the standard of review is one of legal sufficiency. 68 M.J. 415, 418 

(C.A.A.F. 2010) (“[T]he Government could nevertheless prevail were we to conclude 

that the evidence was legally insufficient to show that Appellant was guilty” of more 

than one offense). 

Accordingly, we are required to dismiss the specification with prejudice if 

there is legally sufficient evidence that he committed more than one offense. 

Whereas if there is only legally sufficient evidence to support one instance, we 

affirm appellant’s conviction. 

Thus the topsy-turvy nature of this appeal and the briefs filed by the parties. 

The government argues there is clearly evidence appellant only committed the 

offense on just one occasion. Appellant, by contrast, argues there is evidence he 

committed multiple offenses. Alice has passed through the looking glass. 

3. Specification 2 of Charge I 

The government charged appellant with multiple specifications based on the 

location of the offense, the time of the offense, and the nature of the sexual conduct. 

Specification 2 of Charge I alleged that at or near Killeen, Texas, between about 1 

March 2008 and 8 June 2008, appellant touched AM’s breast on divers occasions. 
PASAY—ARMY 20140930 

5 

The military judge found appellant guilty only after excepting out the words “on 

divers occasions.” 

The only evidence regarding the touching of AM’s breast in the relevant time 

frame in Killeen, TX was as follows: 

Q. I want to take you to the hotel room, [AM]. Can you 

tell me did Sergeant Pasay ever touch you somewhere on 

your body during the time you stayed in this hotel? 

A. Yes. 

Q. Please describe what happened? 

A. I don’t remember the general time. I remember a 

specific time that I can think of. I was laying on the end 

of the bed and they were--my mom and Sergeant Pasay . . . 

and I felt a hand come over and try to grope my breast. 

After asking a series of questions that identified the hand as being appellant’s 

and clarifying that her breast was grabbed under her clothing, the trial counsel 

continued: 

Q. And [AM], was that the only time that you recall 

someone touching you in the hotel room? 

A. I know that there were more times after that, but I can’t 

think of any more specific times. 

We find this evidence legally insufficient to support a finding that appellant 

touched AM’s breast on more than one occasion. Had appellant been convicted of 

the offense as charged, we would be required as a matter of law to except out the 

language “on divers occasions.” AM’s testimony that she “knows” someone touched 

her on other occasions, but cannot actually testify to the other occasions because of 

a lack of memory, is legally insufficient to support the conclusion that appellant 

touched her breast more than once. No reasonable fact finder could convict 

appellant of touching AM’s breast on more than one occasion based on this 

testimony. 

4. Specification 12 of Charge I 

In June 2012, AM had turned sixteen years old–the age of consent under the 

UCMJ. Accordingly, specifications that alleged appellant had sexual intercourse 

with AM after June of 2012 included an element of force or threats. 
PASAY—ARMY 20140930 

6 

Specification 12 of Charge I alleged that at or near Killeen, Texas, between 

about 28 June 2012 and 1 September 2012, appellant raped AM by force on divers 

occasions. Again, the military judge excepted out the words “on divers occasions.” 

AM’s testimony on direct-examination was that during the relevant time period, 

appellant had raped her. However, other than the conclusory statement, she never 

testified about what appellant did that constituted rape. The key portions of her 

direct exam were as follows: 

Q. And [AM], can you tell us did anything happen with 

you and Sergeant Pasay when you stayed with him that 

summer? 

A. Yes. 

Q. And can you tell us what happened? 

A. He raped me. 

. . . 

Q. Okay, and so [AM], can you tell us where he raped 

you? 

A. He would make up reasons why he needed to leave the 

house and he would make me go with him, and he would 

take me to his apartment in Cove.5

Q. And what would happen when you came to this 

apartment? 

A. He would make me take off my clothes. 

. . . 

Q. After you took your clothes off, can you tell us what 

would happen? 

A. He’d penetrate me. 

Q. And [AM], can you tell us where he would penetrate 

you on your body? 

 

5

 Copperas Cove, Texas is next to Killeen, Texas. 
PASAY—ARMY 20140930 

7 

A. On my vagina. 

Q. And what part of his body did he use? 

A. His penis. 

Q. And [AM], can you tell us how many times this 

happened? 

A. Almost every day. 

On review, we find her initial direct testimony was legally insufficient to 

establish that appellant had raped her “almost every day.” While AM’s testimony is 

legally sufficient to establish that she had sexual intercourse with appellant multiple 

times during the charged time frame, there is no evidence that appellant used force. 

Force is defined as the use of a weapon, the use of physical strength or violence 

sufficient to overcome resistance, or inflicting physical harm sufficient to coerce or 

compel submission. UCMJ, art. 120(g)(5). There simply was no testimony about 

the key element of force. 

Perhaps sensing the lack of evidence, the trial counsel returned to this topic 

on redirect: 

Q. During that period of time when you lived with him, 

were there ever any times that you tried to physically 

resist or tell him no when he would take you to this 

apartment? 

A. There was one time [emphasis added] where [M] and 

my brothers had went to the pool and to do laundry . . . 

and he brought me into their bedroom and made me lay on 

the floor, and he got on top of me, and he asked if he 

could choke me and I said no, so he put his hand around 

my neck and said that he wasn’t going to squeeze, he just 

wanted to put his hand on my neck. 

Q. And can you tell--Did he actually do that? 

A. Yes. 

. . . 

Q. When he put his hand around your neck, what did you 

feel? 
PASAY—ARMY 20140930 

8 

A. I just felt scared. 

Q. And did he squeeze his hand on your neck at all? 

A. At that time, no. 

Q. Was there anything else happening when he put his 

hand around your neck? 

A. Yeah. He penetrated me. 

Q. . . . And [AM], during the time that you lived with him 

in that summer, were there ever any other times that he put 

his hands on your neck? 

A. No ma’am. 

This redirect-examination provided legally sufficient evidence of only a 

single occasion of rape. Accordingly, we do not find the findings to be ambiguous. 

5. Factual Sufficiency of Specification 12 of Charge I 

The unambiguous findings allow us to conduct our review under Article 66(c), 

UCMJ. See Walters, 58 M.J. at 395. We address the issue of factual sufficiency 

here as it directly borrows from our immediate prior discussion regarding the legal 

sufficiency of the evidence. Having now conducted a factual sufficiency review, we 

find the evidence factually insufficient to support appellant’s conviction for rape. 

United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002).

6

 

6

 With regards to the remaining specifications, giving no deference to the findings of 

the trial court, but recognizing that the court-martial had the ability to see and hear 

the evidence, we find the evidence to be factually sufficient. See United States v. 

Davis, 75 M.J. 537, 546 (Army Ct. Crim. App. 2015) (“[T]he degree to which we 

‘recognize’ or give deference to the trial court’s ability to see and hear the witnesses 

will often depend on the degree to which the credibility of the witness is at issue.”). 

Additionally, appellant testified in this case. In United States v. Pleasant, 71 M.J. 

709, 713 (Army Ct. Crim. App. 2012) we stated an accused “testifies at his own 

peril” and adopted the logic of the United States Court of Appeals for the Eleventh 

Circuit: 

“Most important, a statement by a defendant, if 

disbelieved by the jury, may be considered as substantive 

evidence of the defendant’s guilt. By ‘substantive’ we 

(continued . . .) 
PASAY—ARMY 20140930 

9 

As related above, when asked if appellant ever “squeezed” her neck AM 

answered, “At that time, no.” There are two possible interpretations to her 

testimony. The first is that appellant did not initially use force, violence, or inflict 

physical harm but did so only later during the sexual intercourse. The second, is 

that appellant may have squeezed her neck during a subsequent assault or not at all. 

Both interpretations are reasonable readings of the record. Reading the entire 

testimony in context, the former is the more likely given AM’s later testimony that 

this was the only time appellant placed his hand on her neck. What is missing from 

the government’s case, however, is the follow-up question that would have 

definitively answered the question beyond a reasonable doubt. 

Article 66(c), UCMJ, requires us to set aside a specification when we are not 

personally convinced of the appellant’s guilt beyond a reasonable doubt. Of course, 

we were not present at trial. Accordingly, this unusual appellate requirement comes 

with the admonition that we recognize the trial court’s superior position in seeing 

and hearing the witnesses. Id. Here, even with such recognition, Article 66(c), 

UCMJ, compels us to find the evidence of rape to be factually insufficient. 

Accordingly, we will set aside appellant’s conviction to rape in our decretal 

paragraph and affirm only a finding of guilty to the lesser-included offense of sexual 

assault by bodily harm. 

B. Disqualification of the Military Judge 

Appellant was assigned to a subordinate unit of III Corps. The military judge 

in this case, Lieutenant Colonel (LTC) Wade Faulkner, had served as the chief of 

justice (CoJ) of III Corps before becoming a military judge. Lieutenant Colonel 

Faulkner’s time as CoJ overlapped with the time appellant’s case was being 

investigated by Army Criminal Investigation Command (CID). Appellant now 

asserts LTC Faulkner had previously acted “as counsel” in the case, and was 

therefore disqualified from serving as the military judge. 

 

(. . . continued) 

mean evidence adduced for the purpose of proving a fact 

in issue as opposed to evidence given for the purpose of 

discrediting a witness (i.e., showing that he is unworthy of 

belief), or of corroborating his testimony. . . . when a 

defendant chooses to testify, he runs the risk that if 

disbelieved the jury might conclude the opposite of his 

testimony is true.” 

United States v. Williams, 390 F.3d. 1319, 1325 (11th Cir. 2004) (quoting United 

States v. Brown, 53 F.3d 312, 314 (11th Cir. 1995)). An accused’s testimony that 

the stoplight was red, if incredulous, can be considered as positive evidence the light 

was in fact green. 
PASAY—ARMY 20140930 

10 

A military judge shall disqualify himself or herself when the military judge 

has acted “as counsel” in the case. R.C.M. 902(b)(2). Military judges must also 

recuse themselves when they have “forwarded the charges in the case with a 

personal recommendation as to disposition.” R.C.M. 902(b)(3). 

Prior to arraignment, the military judge disclosed to the parties his prior 

duties as CoJ. He gave a somewhat detailed explanation of his duties as CoJ. With 

regards to appellant’s case, he stated he had no recollection of ever hearing about 

the case, discussing the case, or otherwise being involved in the case. He further 

stated he did an email search and found one relevant email. Judge Faulkner further 

disclosed that he forwarded the email to two trial counsel. Neither party asked any 

questions of Judge Faulkner. Neither party challenged Judge Faulkner. Appellant 

elected to be tried by Judge Faulkner alone. On appeal, it is the forwarding of this 

email that appellant alleges constituted Judge Faulkner as having acted “as counsel.” 

The email’s subject line was “FW: Report of Investigation Status ROI [##]”. 

The entire contents of the email was “Report of Investigation Status ROI [##] has 

been approved.” The status report was included as an attachment, and contained a 

brief summary of the investigation status. Lieutenant Colonel Faulkner forwarded 

the email to two trial counsel, Captain (CPT) BG and Mrs. AF, who was a captain at 

the time, without comment.7

1. Post-trial Affidavits 

The parties have supplemented the record with affidavits from LTC (ret.) 

Faulkner, the two trial counsel who were responsible for the case pre-preferral, and 

both defense counsel. We briefly summarize the affidavits from all five individuals. 

a. LTC Faulkner (Former CoJ/Miltiary Judge) 

Lieutenant Colonel Faulkner restated his duties and responsibilities as the III 

Corps CoJ. He also restated that he had no memory of discussing the case or even 

forwarding the email in question. He further stated he kept a copy of the tracker he 

used as the III Corps CoJ. The investigation of SGT Pasay was not listed on the 

tracker. Lieutenant Colonel Faulkner stated he could not explain why it was not on 

the tracker. 

 

7

 For reference, we provide the following dates: The charges alleged appellant’s 

offenses happened between March 2008 and September 2012. Charges were 

preferred in January 2013 and referred on November 2013. Appellant was arraigned 

in May 2014. Lieutenant Colonel Faulkner was the CoJ of III Corps from June 2011 

to July 2013. The email in question was sent to LTC Faulkner on 12 September 

2011 and forwarded to the trial counsel without comment six minutes after it was 

received. 
PASAY—ARMY 20140930 

11 

b. CPT BG (Former Trial Counsel) 

Captain BG was the trial counsel covering appellant’s unit from July 2010 

until March 2012. He swore he had no recollection of receiving the email in 

question or any having any substantive discussions with LTC Faulkner about the 

case. He stated trial counsel generally opined on probable cause without discussing 

the issue with LTC Faulkner. He could not recall why it took two years after CID 

completed its investigation to prefer charges against appellant. 

c. Mrs. AF (Former Trial Counsel) 

Mrs. AF took over from CPT BG in April of 2012. She swore that when she 

took over, there was “no mention of the Pasay case. It was not on any of my slide 

decks. I didn’t brief anyone about it. I didn’t have a case file in my office.” She 

further explained that the case had not been pursued because the Army had been 

unable to find AM and her mother. She stated that just before she left Fort Hood in 

June of 2013, because of a happenstance inquiry, she directed a paralegal to try to 

locate AM. Her paralegal subsequently located AM, thereby reenergizing the case 

and leading to appellant’s subsequent prosecution and conviction. She does not 

recall ever briefing LTC Faulkner on this update. 

d. Mr. JJ (Civilian Defense Counsel) 

As appellant alleged his counsel were ineffective, Mr. JJ submitted an 

affidavit. Mr. JJ stated after considering the option of a panel and trial by other 

judges, he advised appellant that LTC Faulkner was appellant’s “best option for a 

fair trial.” He stated he specifically advised appellant that Judge Faulkner had been 

the CoJ “during the time the case was initially investigated, opined on, and closed 

out.” He stated he discussed it with appellant again leading up to the trial, and 

appellant “expressed no concern at all.” 

e. Major DB (Defense counsel) 

Major (MAJ) DB similarly provided an affidavit to respond to the allegation 

of ineffective assistance. She stated she had explained to appellant her experience 

in trying “many types of cases” in front of Judge Faulkner, to include allegations of 

sexual assault, and that she had received positive results. She further explained to 

appellant her knowledge of LTC Faulkner’s prior assignment as the III Corps CoJ. 

Major DB told appellant of the two prior cases she had where LTC Faulkner’s time 

as a CoJ had overlapped with his judicial duties, and her assessment that LTC 

Faulkner was a fair and moderate judge. She specifically advised appellant that LTC 

Faulkner was preferable to the other two judges who would likely preside over the 

case at Fort Hood. 
PASAY—ARMY 20140930 

12 

2. Waiver and Forfeiture 

When a military judge has previously acted “as counsel” in the same case, 

R.C.M. 902(e) provides that the military judge shall not accept any waiver by the 

parties of the disqualification. That is, the disqualification is “unwaivable.” 

Appellant asserts that because a waiver cannot be accepted, the fact that appellant 

did not object to LTC Faulkner’s prior service as CoJ is of no consequence. We 

disagree. 

Our superior court’s decision in United States v. Jones, 55 M.J. 317 (C.A.A.F. 

2001) is perhaps the closest case on point. In that case, a judge on the Navy-Marine 

Court of Criminal Appeals had previously served as the chief of the government 

appellate division. Id. at 318. While the case was docketed with the court, the 

government appellate counsel filed routine motions on the case. Id. By the time all 

the briefs were filed, the same person who served as the head of the government 

appellate division during the filing of the motions was now an appellate judge 

deciding the case. Id. 

Critical to the CAAF’s decision in Jones was that the appellant had not 

objected to the judge. Id. at 320. Accordingly, the court applied a plain error test. 

Id. The court found it was not plain error when the judge did not sua sponte recuse 

himself. Id. at 321. 

Of course, Jones involved the potential disqualification of an appellate judge. 

Here, by contrast, we address the alleged disqualification of a trial judge. While the 

principles and interests are the same, governing rules do not necessarily follow. 

However, we are confident that plain error is also the appropriate test in this case. 

The only authority the CAAF cited for applying the plain error test in Jones was 

United States v. Schrieber, 599 F.2d 534, 536 (3rd. Cir. 2001), a case involving the 

alleged disqualification of a trial judge. 

Moreover, the CAAF’s decision in Jones was consistent with the United 

States Supreme Court’s subsequent case of Williams v. Pennsylvania, 136 S. Ct. 

1899 (2016). In Williams, the appellant specifically filed a motion asking the chief 

judge of the appellate court to recuse himself because of his prior service as the 

district attorney who had authorized seeking the death penalty in his case. Had the 

appellant in Williams done nothing, while having full knowledge of the chief judge’s 

prior involvement in the case, it is far from clear the Supreme Court would have still 

held the appellant was entitled to relief. 

Finally, we note that the CAAF’s decision in Jones is consistent with the 

requirement of Article 59(a), UCMJ. Absent structural error, which appellant does 

not assert applies, we cannot reverse a finding based on an error of law unless we 

find material prejudice to one of appellant’s substantial rights. When, as the 
PASAY—ARMY 20140930 

13 

unrebutted affidavits indicate, appellant knowingly and tactically selected to be tried 

by Judge Faulkner, we cannot find prejudice to appellant when he got exactly what 

he wanted. 

3. Vertical Imputation Theory 

Before addressing whether Judge Faulkner acted “as counsel,” we first 

address an issue raised by appellant. In his brief, appellant asks us to apply the 

vertical imputation theory. Under this theory, the actions of subordinates acting as 

counsel are attributed to superiors. In other words, if any subordinate acted “as 

counsel” in a case then the superior would likewise be considered to have acted “as 

counsel.” In this case, this would mean when a subordinate trial counsel offered an 

opinion as to probable cause, that action would be imputed to the CoJ. 

However, in the only CAAF case to discuss the vertical imputation theory, the 

court rejected it. Jones 55 M.J. at 320-21. Admittedly, the court’s rejection was not 

categorical. However, the facts of Jones and this case are sufficiently similar that 

we decline appellant’s invitation to blaze new appellate ground and adopt the 

vertical imputation theory when our superior court specifically declined to do so in 

Jones.

8

 

Additionally, R.C.M. 902(a) requires a military judge to recuse himself or 

herself anytime the judge’s “impartiality might be reasonably questioned.” That is, 

R.C.M. 902(a) adequately requires recusal under circumstances where the military 

judge did not directly act as counsel but, because of a senior-subordinate 

relationship, a reasonable person might question their fairness. In light of R.C.M. 

902(a), adopting the vertical imputation theory to R.C.M. 902(b) as appellant 

requests would have two effects. 

First, it would prohibit a military judge from presiding over a case where the 

judge’s impartiality could not be reasonably questioned under R.C.M. 902(a). That 

is, the only times R.C.M. 902(a) does not overlap with R.C.M. 902(b) is when, under 

the circumstances, the military judge’s impartiality is not in question. 

 

8

 The CAAF’s decision in Jones discussed the federal circuits’ different approaches 

to determining judicial disqualification when a former U.S. Attorney is invested as a 

federal district court judge. 55 M.J. at 319-20. In cases where jurisdictions are 

clearly delineated by geography and where personnel are relatively stationary, the 

vertical imputation theory at least has the benefit of clarity. Applied to the Army, in 

which judge advocates are routinely reassigned every two years and often switch 

between government, defense, and judicial positions, the benefits are not as clear 

and the administrative burden may be significant. 
PASAY—ARMY 20140930 

14 

Second, by expanding the scope of R.C.M. 902(b), a potential disqualification 

that an accused could have waived under R.C.M. 902(a) would now be unwaivable. 

See R.C.M. 902(e). While such a reading would expand the opportunity for an 

appellant to claim error on appeal, it would come at the expense of banning the 

accused’s ability to tactically waive issues at trial. 

4. Did LTC Faulkner Act “As Counsel” 

Based on the record on appeal, we hold that LTC Faulkner did not act as 

counsel in this case prior to becoming a military judge. The record on appeal 

establishes the only involvement by LTC Faulkner in this case as the CoJ was the 

forwarding of an email, without comment, six minutes after it was received. 

In Williams, the United States Supreme Court stated that due process requires 

the recusal of a judge when the judge previously “made a critical decision” in the 

case. In that case, the “critical decision” was to authorize the government to seek 

the death penalty. Here, by contrast, it is unclear that LTC Faulkner made any 

decision about this case as CoJ, let alone one that was “critical.” 

However, even assuming that LTC Faulkner’s action in forwarding an email 

was sufficient for him to be acting “as counsel,” we fail to find plain error. Such a 

conclusion is not plain and obvious. Moreover, it is hard to articulate a substantial 

prejudice to appellant when the unrebutted affidavits of his counsel indicate that 

both counsel and appellant wanted LTC Faulkner to preside as the military judge in 

his case. The affidavits attest that there were three military judges at Fort Hood. 

The tactical assessment of the defense team was that LTC Faulkner was preferable to 

either of the two other military judges. Additionally, appellant did not merely 

acquiesce in LTC Faulkner sitting as military judge–he specifically requested it. 

Pursuant to Article 16(1)(B), UCMJ, appellant personally requested to be tried by 

LTC Faulkner. Appellant therefore appears to have invited the very error he now 

requests relief from on appeal. 

C. Ineffective Assistance of Counsel 

Appellant claims his counsel was ineffective at trial in five areas. First by 

failing to interview AM and her mother before appellant’s court-martial. Second, by 

advising him to waive the Article 32, UCMJ, investigation. Third, by allegedly 

providing the government with inculpatory evidence. Fourth, by failing to introduce 

exculpatory evidence. Finally, by failing to adequately object to inadmissible 

evidence. 

To establish ineffective assistance of counsel, an appellant must demonstrate 

both “(1) that his counsel’s performance was deficient, and (2) that this deficiency 
PASAY—ARMY 20140930 

15 

resulted in prejudice.” United States v. McIntosh, 74 M.J. 294, 295 (C.A.A.F. 2015) 

(citation and internal quotation marks omitted). 

We address each allegation of deficient performance in turn. As we do not 

find deficient performance, we do not address prejudice.9 

1. Interview of witnesses 

Appellant’s counsel did not interview AM or her mother before trial. 

Undoubtedly, these were the two most important witnesses for the government. 

However, the record of trial and the post-trial affidavits submitted by counsel make 

clear, the failure to interview the witnesses was not for a lack of trying. AM and her 

mother refused to be interviewed. As we stated in United States v. Guardado: 

Article 46, UCMJ governs compulsory process in courtsmartial and states that “[p]rocess issued in court-martial 

cases to compel witnesses to appear and testify and to 

compel the production of other evidence shall be similar 

to that which courts of the United States having criminal 

jurisdiction may lawfully issue . . . .” 10 U.S.C. § 846 

(2012) (emphasis added). In other words, by its own 

terms compulsory process is limited to producing 

witnesses to “appear and testify” and does not include a 

requirement that the witness first agree to be interviewed. 

Additionally, a military court cannot exercise greater 

authority in this area than the “courts of the United 

States.” 

While Article 46, UCMJ, also states the “trial counsel, the 

defense counsel, and the court-martial shall have equal 

opportunity to obtain witnesses and other evidence” we do 

not believe this can serve as a basis to compel interviews. 

First, the language specifically limits itself to the ability 

to “obtain witnesses.” Second, the provisions in Article 

 

9

 Broadly speaking, appellant does not address the prejudice prong in his brief. 

While appellant explains why he believes his civilian defense counsel was deficient, 

there is no substantial attempt to link this to a prejudicial effect at the trial. For 

example, while appellant alleges that his counsel should have interviewed witnesses, 

he does not explain to us (as is his burden) what the interviews would have 

accomplished, or how they may have altered the course of the trial. It may be 

deficient to not try to interview an important witness pretrial, but it is only 

ineffective if that interview would have revealed something of consequence. 
PASAY—ARMY 20140930 

16 

46, UCMJ, apply equally to the trial counsel, the defense 

counsel, and the court-martial. That is, whatever the 

parties’ rights under the first phrase of Article 46, it is 

shared by the panel members. See UCMJ, art. 16, 10 

U.S.C. § 816 (2012) (definition of a court-martial). While 

the court-martial may obtain witnesses to testify, the panel 

members cannot conduct pretrial interviews of witnesses. 

. . . 

The counsel, like the military judge, lack the authority to 

compel a civilian’s cooperation in pretrial interviews. A 

witness may refuse to be interviewed notwithstanding a 

counsel’s desperate pleas. Absent compulsory process, a 

witness maintains the free will to determine the degree to 

which he or she voluntarily participates in the courtmartial. 

75 M.J. 889, 904 (Army Ct. Crim. App. 2016) (pet. granted on other grounds by 

United States v. Guardado, No. 17-0167/AR, ARMY 20140715 (C.A.A.F. 3 March 

2017) (order)). As we find no authority for a defense counsel to compel the 

cooperation of an unwilling witness to be interviewed, we cannot find counsel’s 

performance was deficient. 

2. Waiver of the Article 32 Investigation 

Appellant next asserts his counsel were deficient when they advised him to 

waive the Article 32 investigation. The affidavits submitted by counsel adequately 

establish this advice was based on two concerns. First, counsel feared that at an 

Article 32 investigation appellant would face the additional charge of obstruction of 

justice stemming from his alleged disposal of a laptop computer. Second, counsel 

believed there was a very good chance AM would not be available to testify at trial. 

AM had been a reluctant government witness and the government had at one point 

been unable to locate her. If AM testified at the Article 32 hearing, because her 

testimony would be preserved under oath, her Article 32 testimony could be 

introduced in court. See Mil. R. Evid. 804(b)(1) (hearsay exception for prior 

testimony of an unavailable witness). Appellant’s military defense counsel 

submitted, as an attachment to her affidavit, a memorandum for record that 

contemporaneously documents these concerns and the discussions with appellant. 

Finally, the colloquy between appellant and the military judge compellingly 

demonstrates that appellant’s waiver was voluntary. 
PASAY—ARMY 20140930 

17 

3. Providing Inculpatory Evidence to the Government 

In the midst of trial, the defense asked for a one-hour recess so they could, in 

part, print a Facebook text conversation between appellant and AM. Defense 

counsel stated they needed to print the conversation to use “in cross-examination of 

[the next] witness” and to make sure “the government gets them.” The defense’s 

cross-examination of AM included getting her to admit the favorable things she had 

said about appellant in the conversation. As AM readily admitted the statements, the 

printout of the conversation was not used for impeachment. 

To briefly summarize, the Facebook conversation is a discussion about where 

AM and her mother should live. In general, the conversation is friendly and 

favorable to appellant as AM seeks appellant’s advice about how to convince her 

mother not to move to the east coast. AM also expresses a desire to live close to 

appellant. However, the conversation does include the admission of appellant that 

“if things go bad” with AM’s mom and “you guys [become] homeless,” AM could 

live with appellant even though “i know im the last person u want to live with.” 

The government marked the text exchange and used it in their crossexamination of appellant. The government did not admit the evidence. Appellant 

now claims the government became aware of the conversation only because 

appellant’s counsel used a prosecution printer to print out the exchange. We find no 

deficient performance. 

4. Failure to Introduce Exculpatory Evidence 

As just discussed, appellant alleged his counsel were ineffective when they 

allegedly gave the trial counsel a copy of the Facebook conversation. Appellant also 

alleges his counsel were ineffective for not introducing into evidence this same 

Facebook conversation. That is, appellant argues–with regards to the same piece of 

evidence–that his counsel were ineffective in providing it to the government because 

it is clearly inculpatory and that counsel were ineffective for not introducing the 

conversation because it is exculpatory. We need not further explain the illogic of 

this argument. 

5. Evidentiary deficiencies 

Appellant combs the record and lists numerous evidentiary objections or 

decisions by counsel he alleges constitute deficient performance. The alleged 

deficiencies include hearsay objections not made, prior consistent statements that 

were made before the defense raised the issue of recent fabrication, and similar 

issues. The issues defy easy summarization. However, having reviewed each issue, 

given the strong presumption that counsel are competent, and the requirement that 

our scrutiny of the performance by counsel be “highly deferential,” we do not find 
PASAY—ARMY 20140930 

18 

deficient performance. Strickland v. Washington, 466 U.S. 668, 689 (1984). Even 

more clearly, we also do not find that appellant has met his burden of establishing 

prejudice. 

We “do not assess trial defense counsel’s performance through the prism of 

appellate hindsight and then apply our subjective view of how we think defense 

counsel should have conducted the trial.” United States v. Akbar, 74 M.J. 364, 386 

(C.A.A.F. 2015). Gambles may not pay out, a defense strategy may fall flat, and 

decisions earnestly made may look unwise once one has the benefit of knowing the 

verdict. To be sure, a witness’s answer to a question may be hearsay. But trials are 

fluid events. Counsel must weigh the benefit of an objection against the risk of the 

opposing counsel’s response and the change in the trial’s trajectory. Counsel at trial 

are not reading a cold transcript. They see and hear the witnesses, and they can 

observe the effect of the testimony on the fact finder. Often, a trial has a feel to 

those in the courtroom that will not be adequately reflected in the transcribed record. 

Whether to object to testimony is not merely a matter of evidentiary rules. 

Objections may highlight evidence a counsel assesses is best left without emphasis. 

And, objections allow the opposing party to respond. There is little to be gained by 

objecting to hearsay if the government’s response is to lay a foundation for an 

exception that bolsters the weight of the evidence. 

CONCLUSION 

The court affirms only so much of the finding of guilty of Specification 12 of 

Charge I as finds the appellant: 

Did, at or near Killeen, Texas, between on or about 28 

June 2012 and on or about 1 September 2012, commit a 

sexual act upon AM, to wit: penetrating with his penis, 

the vulva of AM, by causing bodily harm to AM. 

The remaining findings of guilty are AFFIRMED. 

We are able to reassess the sentence on the basis of the error noted and do so 

after conducting a thorough analysis of the totality of circumstances presented by 

appellant’s case and in accordance with the principles articulated by our superior 

court in United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013) and 

United States v. Sales, 22 M.J. 305 (C.M.A. 1986). We are confident that based on 

the entire record and appellant’s course of conduct, the military judge would have 

imposed a sentence of at least that which was adjudged, and accordingly we 

AFFIRM the sentence. 
PASAY—ARMY 20140930 

19 

We find this reassessed sentence is not only purged of any error but is also 

appropriate. All rights, privileges, and property, of which appellant has been 

deprived by virtue of that portion of the findings set aside by our decision, are 

ordered restored. 

Senior Judge MULLIGAN and Judge FEBBO concur. 

FOR THE COURT: 

JOHN P. TAITT 

Deputy Clerk of Court 

JOHN P. TAITT 

Deputy Clerk of Court 

FOR THE COURT: