## UNITED STATES ARMY COUR T 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, Milit ary Judge (arraignment) Wade N. Faulkner, Mi litary Judge (trial) Lieutenant Colonel James D. Levine, II, Acting Staff Judge A dvocate (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; Majo r Christopher D. Coleman, JA; Captain Joshua G. Grubaugh, JA (on brie f); Major Christopher D. Coleman, JA; Captain Joshua G. Grubaugh, JA (on reply brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colone l A.G. Courie III, JA; Major Melissa Dasg upta Smith, JA; Captain Chri stopher A. Clausen, JA (on brief).

19 April 2017

---------------------------------- MEMORANDUM OPINION

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

This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

WOLFE, Judge:

Appellant, Sergeant (S GT) Raymond Pasay, appeals his convicti on for the rape and sexual abuse of his daughter, AM. 1 Of appellant’s five assignments of

1 Appellant was convic ted of two specifications of ab usive sexual contact with a child, two specifications of ag gravated sexual abuse of a ch ild, two specifications of aggravated sexual assault of a child, in decent act, rape, and production of child pornography in violation of Ar ticles 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 de tailed discussion. Although we find one specif ication to be factually insufficient, we do not otherwis e discuss appe llant’s claims that the remaining specifications are fact ually and legally insufficient. 2 The military judge sentenced appellant to a dishonorable disc harge, confinement for fifty-one years, forfeiture of all pay and al lowances, and reduction to th e grade of E-1. The military judge also credited appellant with fifty-on e days of confinemen t credit against the
term of confinement. The convening author ity credited appellant with fifty-one days of confinement credit and ap proved 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 fi ndings for two specifications, the military judge excepted out the words “on divers occasions” without explanatio n. Next, we address ap pellant’s allegation th at the military judge should have disqualified himself because a ppellant alleges he ha d previously acted “as counsel” in the case. Finally, we ad dress appellant’s clai m that his civilian
defense counsel and detailed defense counsel prov ided ineffective assistance. 3

DISCUSSION

A. Ambiguous Findin gs and United St ates v. Walters

Appellant was convicte d of nine specifi cations. Two of t hose specifications (Specifications 2 and 12 of Charge I) allege d appellant acted “on divers occasions.” For both specifications, th e military judge excepted out the words “on divers occasions.” That is, the military judge found ap pellant guilty of the offense on a single occasion and acqu itted appellant of al l other occasions. As the military judge did not explain his findi ngs, this presents us on appeal with the question of whether
we can determine what cond uct formed the basis of appellant’s guilty finding.

The reasoning behind this dilemma is well-settled and is discussed in depth in our superior cour t’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 fi nd no du e process violation and do not find the sentence to be in appropriate notwiths tanding the time it took to prepare appellant’s case for convening authority action.

3 The matters submitted persona lly by appellant pursuant to United States v. Grostefon

, 12 M.J. 431 (C.M.A. 1982) are either duplicative of the assign ed errors
or do not merit individual discussion or relief.PASAY—ARMY 20140930

3 perform our duties under Artic le 66(c), UCMJ, and the specificati ons must be set aside with prejudice. 4

As an initial matt er, we note Specifications 1 and 13 of Charge I were alternative charges to the co nduct alleged in Sp ecifications 2 and 12 of Charge I. The government conceded the specifications were charged in the alternative. At trial, appellant moved to dismiss the specif ications as unreasonabl y multiplied. Rule for Courts-Martial [hereinaft er R.C.M.] 906(b)(12) provid es for approp riate relief when specifications are unreasonably mu ltiplied for senten cing. R.C.M. 907
instructs on motions to dismiss. R.C.M. 9 17 allows for the milit ary judge to enter a finding of not guilty ba sed on the insufficien cy of the evidence.

Here, the military judge stated his intent to enter a not guilty finding to solve
an issue of unreas onable multiplicati on 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 st ated he would find appellant not guilty of the specifications. And, in deed, appellant was found not guilty of Specifications 1 a nd 13 of Charge I. Accord ingly, we cannot resolve the
Walters issue in this case by lookin g to the alternative charges.

1. Forfeiture

While Walters was decided well-over a decade ag o, 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 ju dge in order to pres erve the issue for

4 It is curious that the government persists in using the words “on divers occasions” in charging decisions afte r the Court of Appeals fo r 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: M ilitary Judges Benc hbook [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 triggere d when the accused
is acquitted of certain langua ge by exceptions. 66 M.J. 201, 204-05 (C.A.A.F. 2008). In that case, the CAAF re fused 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 incl ude 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 am ount of admissible evidence would be the same, and the
accused would continue to receive notice and double je opardy protection of the charges he is facing. To th e extent that charging “one or more” presents disjunctive charging, it is a problem al ready present when the gove rnment charges the conduct happened on “divers” or “t wo 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 incen tivized to do no thing. Put differently, is a Walters issue a bipartite failure of the trial counsel and the military judge, or a tripartite failure al so involving the defense counsel?

Absent plain error, an accused forfeits error–ev en 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 incentivi zes 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 evid ence of more than one
offense.

Nonetheless, we infer from our superior court’s treat ment of previous cases that forfeiture is inappr opriate when considering a Walters issue. Acco rdingly, we
assume without deci ding that forfeiture does not apply.

2. Standard of Review

On appeal, a Walters issue may only be re solved if the record “clearly put the accused and the reviewing courts on notice of what conduct serv ed 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 su fficiency. 68 M.J. 415, 418 (C.A.A.F. 2010) (“[T]he Govern ment could nevertheless prev ail 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 brie fs filed by the parties. The government argues there is clearly evidence appellant only committed the offense on just one oc casion. Appellant, by contrast , argues there is evidence he committed multiple offenses . Alice has pass ed through the looking glass.

3. Specification 2 of Charge I

The government charged appe llant with multipl e specifications based on the location of the offense, the ti me of the offense, and the na ture of the se xual conduct. Specification 2 of Charge I al leged that at or near Kill een, Texas, between about 1
March 2008 and 8 June 2008, appellant touched AM’s br east on divers occasions.PASAY—ARMY 20140930

5 The military judge found ap pellant guilty only after ex cepting out th e 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 th e hotel room, [A M]. Can you tell me did Sergeant Pasay ever touch you somewhere on your body duri ng 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 grop e my breast.

After asking a series of qu estions that identified the hand as being appellant’s and clarifying that her breast was grab bed 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 occa sion. Had appellant been convicted of the offense as charged, we wo uld be required as a matter of law to except out the language “on divers occasion s.” AM’s testimony that sh e “knows” someone touched her on other occasions, but cannot actually testify to the other occasions because of a lack of memory, is legall y insufficient to su pport 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 turn ed sixteen years old–the age of consent under the UCMJ. Accordingly, specifications that alleged ap pellant had sexua l 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 n ear Killeen, Texas, between
about 28 June 2012 and 1 Se ptember 2012, appellant rape d AM by force on divers occasions. Again, th e military judge exce pted out the words “ on divers occasions.” AM’s testimony on direct-exa mination was that during th e relevant time period, appellant had raped her. However, other than the conclusory statement, she never
testified about what appellant did that co nstituted 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 Pasa y 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 wa s 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 charge d time frame, there is no ev idence that appellant used force.
Force is defined as the use of a weapon, the use of physical strength or violence
sufficient to overcome resistan ce, or inflicting ph ysical harm sufficient to coerce or compel submission. UCMJ, art. 120(g)(5). There simp ly was no testimony about the key element of force.

Perhaps sensing the lack of evidence, th e trial counsel return ed to this topic
on redirect:

Q. During that peri od of time when yo u lived with him, were there ever any times th at you tried to physically
resist or tell hi m 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 thei r bedroom and made me lay on the floor, and he go t on top of me, an d 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 sque eze, 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 ar ound 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. Ac cordingly, we do not find th e findings to be ambiguous.

5. Factual Sufficiency of Specification 12 of Charge I

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

UCMJ. See Walters , 58 M.J. at 395

. We address th e issue of fact ual sufficiency here as it directly borrow s from our immediate prior disc ussion regarding the legal sufficiency of the ev idence. Having now conducted a factual sufficien cy review, we
find the evidence fact ually 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 specificatio ns, giving no deferenc e 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]h e degree to which we ‘recognize’ or give deference to the trial c ourt’s ability to see a nd hear the witnesses will often depend on th e degree to which the cr edibility of the witnes s is at issue.”). Additionally, appella nt testified in this case. In United States v. Pleasant , 71 M.J. 709, 713 (Army Ct. Crim. App. 2012) we stated an accuse d “testifies at his own peril” and adopted the logic of the United States Court of Appeals for the Eleventh
Circuit:

“Most important, a statemen t 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” he r neck AM answered, “At that time, no.” There are two poss ible interpreta tions to her testimony. The first is that appellant did not initi ally use force, vi olence, or inflict physical harm but did so only later during the sexual intercourse. The second, is that appellant may have squeezed her neck dur ing a subsequent assault or not at all. Both interpretations are reasonable readin gs of the record. Reading the entire testimony in context, the fo rmer is the more likely gi ven AM’s later testimony that this was the only time appe llant placed his hand on her n eck. What is missing from the government’s case, how ever, is the follow-up qu estion that would have definitively answered the questi on beyond a reas onable doubt.

Article 66(c), UCMJ, requir es us to set aside a speci fication when we are not personally convinced of the appellant’s guilt be yond a reason able doubt. Of course,
we were not present at trial. Accordingly, this unu sual appellate re quirement comes
with the admonition th at we recognize the trial court’s superior position in seeing and hearing the witnesses. Id

. Here, even with such re cognition, Article 66(c), UCMJ, compels us to find the evidence of rape to be factually insufficient. Accordingly, we will set as ide appellant’s conviction to rape in our decretal paragraph and affirm onl y a finding of guilty to the le sser-included offe nse of sexual assault by bodily harm.

B. Disqualification of the Military Judge

Appellant was assigned to a subordinate unit of III Co rps. The military judge in this case, Lieutenant Co lonel (LTC) Wade Faulkner, ha d served as the chief of justice (CoJ) of III Corps be fore becoming a military j udge. Lieutenant Colonel
Faulkner’s time as CoJ ove rlapped with the time ap pellant’s case was being investigated by Army Criminal Invest igation Command (CID). Appellant now asserts LTC Faulkner had pr eviously acted “as counse l” in the case, and was therefore disqualified from se rving as the military judge.

(. . . continued)
mean evidence adduced for the purpose of prov ing a fact in issue as opposed to evidence given fo r the purpose of discrediting a witness (i.e., s howing that he is unworthy of belief), or of corroboratin g his testimony. . . . when a defendant chooses to testify, he runs the risk that if disbelieved the jury might conclude th e 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 acc used’s testimony that the stoplight was red, if incr edulous, can be considered as positive eviden ce 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 th e case. R.C.M. 902(b)(2). Military judges must also recuse themselves when they have “for warded the charges in the case with a personal recommendation as to disposition.” R.C.M. 902(b)(3).

Prior to arraignment, th e military judge disclosed to the parties his prior duties as CoJ. He gave a so mewhat 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 bein g involved in the case. He further
stated he did an email search and found one relevant emai l. Judge Faulkner further
disclosed that he forwarded the email to two trial counsel . Neither party asked any questions of Judge Fa ulkner. Neither party challeng ed Judge Faulkn er. Appellant elected to be tried by Judge Faulkner alone. On appeal, it is th e forwarding of this email that appellant alleges constituted Judg e 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 “Repor t of Investigation St atus ROI [##] has been approved.” The status report was in cluded as an attachme nt, and contained a brief summary of the investigation status. Lieutenant Colonel Faulkner forwarded
the email to two trial counsel, Captain (CPT) BG an d Mrs. AF, who wa s a captain at the time, without comment. 7

1. Post-trial Affidavits

The parties have supplemented the r ecord with affidavits from LTC (ret.) Faulkner, the two trial counsel who were re sponsible for the case pre-preferral, and
both defense counsel. We briefly summarize the affidavi ts 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 furthe r stated he kept a copy of the tracker he used as the III Corps CoJ. The investigation of SGT Pa say 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 betwee n March 2008 and Septembe r 2012. Charges were preferred in January 2013 a nd referred on November 2013 . Appellant was arraigned in May 2014. Lieutenant Colo nel 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 wi thout comment six mi nutes after it was
received.PASAY—ARMY 20140930

11 b. CPT BG (Former Trial Counsel)

Captain BG was the trial counsel covering appell ant’s unit from July 2010
until March 2012. He swor e 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 coun sel generally opined on prob able cause wit hout discussing
the issue with LTC Faulkner. He could not recall why it took two years after CID completed its investigation to pr efer charges against appellant.

c. Mrs. AF (For mer Trial Counsel)

Mrs. AF took over from CPT BG in Ap ril of 2012. She sw ore that when she took over, there was “no mention of the Pasa y case. It was not on any of my slide decks. I didn’t brief anyone about it. I didn’t ha ve 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 stat ed that just before she left Fort Hood in June of 2013, because of a happenstance inquiry, she di rected a paralegal to try to locate AM. Her para legal subsequently located AM, thereby reenergizing the case and leading to appellant’s subsequent pr osecution and convicti on. She does not recall ever briefing LTC Fa ulkner on th is update.

d. Mr. JJ (Civili an Defense Counsel)

As appellant alleged his counsel were ineffective, Mr. JJ submitted an
affidavit. Mr. JJ stated after considerin g the option of a pane l and trial by other judges, he advised appellant that LTC Fa ulkner was appellant’s “best option for a fair trial.” He stated he specifically ad vised appellant that Judge Faulkner had been
the CoJ “durin g the time the case wa s initially investigated, opined on, and closed
out.” He stated he discus sed it with appellant again l eading 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 case s” in front of Judge Faulkner , to include allegations of sexual assault, and th at she had received positive resu lts. She further explained to appellant her knowledg e of LTC Faulkner’s prior assi gnment as the I II Corps CoJ. Major DB told appellant of the two prior cases she ha d where LTC Faulkner’s time as a CoJ had overlapped with his judicial duties, and her assessment that LTC
Faulkner was a fair and mode rate judge. She specificall y advised appellant that LTC Faulkner was preferable to the other two judge s 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 coun sel” in the same case, R.C.M. 902(e) provides that the military judge shall not accept any waiver by the parties of the disqualificati on. That is, the disqualification is “unwaivable.” Appellant asserts that becaus e a waiver cannot be accept ed, the fact th at appellant did not object to LTC Faulkner’s prior service as CoJ is of no consequence. We disagree.

Our superior cour t’s decision in United States v. Jones , 55 M.J. 317 (C.A.A.F. 2001) is perhaps the closest ca se on point. In that case , a judge on th e 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 wi th the court, the government appellate counsel filed routine motions on the case. Id . By the time all the briefs were filed, the same person wh o 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 C AAF’s decision in Jones was that the appellant had not objected to th e judge. Id . at 320. Accordi ngly, the court applied a plain error test.
Id . The court found it was not plain error when the j udge did not sua sponte recuse
himself. Id . at 321.

Of course, Jones involved the potential disqualification of an appellate judge. Here, by contrast, we ad dress the alleged disqualification of a trial judge. While the principles and interests ar e 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 fo r applying the plain error test in Jones was United States v. Schrieber , 599 F.2d 534, 536 (3r d. Cir. 2001), a ca se involving the alleged disqualificati on 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 spec ifically filed a motion asking the chief judge of the appellate court to recuse hi mself because of his prior service as the district attorney who had au thorized seeking the death pe nalty in his ca se. 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 Su preme 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 substan tial rights. When, as thePASAY—ARMY 20140930

13 unrebutted affidavits indicate, appellant knowingly and tactically sele cted 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 Faul kner acted “as co unsel,” we first address an issue raised by ap pellant. In his brief, appe llant asks us to apply the vertical imputation theory. Under this theo ry, 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 woul d likewise be considered to have acted “as
counsel.” In this ca se, this would mean when a subo rdinate trial counsel offered an opinion as to probable ca use, 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. Admittedl y, the court’s re jection was not categorical. However, the facts of Jones and this case are sufficiently similar that we decline appellant’s invi tation to blaze new appe llate ground and adopt the vertical imputation theory when our superior court specific ally 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 mi ght be reasonably ques tioned.” That is, R.C.M. 902(a) adequately re quires recusal under circum stances where the military judge did not directly act as counsel but, because of a senior-subordinate relationship, a reas onable 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 ha ve two effects.

First, it would prohibit a military judge from presiding over a case where the judge’s impartiality could not be reasonably ques tioned 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 mi litary judge’s impartiality is not in question.

8 The CAAF’s decision in Jones discussed the federal circuits’ different approaches to determining judicial disqua lification when a former U.S. Attorney is invested as a federal district court judge. 55 M.J. at 319-20. In cases wh ere jurisdictions are clearly delineated by geography and where personnel are relatively stationary, the vertical imputation theory at least has the be nefit of clarity. App lied to the Army, in which judge advocate s are routinely reassigned ever y two years and often switch between government, defense, and judicial positions, the benefits are not as clear
and the administrative burd en may be significant.PASAY—ARMY 20140930

14 Second, by expanding the scope of R.C.M. 902(b), a potentia l disqualification
that an accused could have waived under R.C.M. 902(a) would now be unwaivable.

See R.C.M. 902(e). While su ch a reading woul d 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 is sues 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. Th e record on appeal establishes the only involvement by LTC Fa ulkner 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 Supr eme Court stated that due process requires the recusal of a judg e when the judge previously “m ade a critical decision” in the case. In that case, the “c ritical decision” wa s to authorize the government to seek the death penalty. Here, by contrast, it is unclear that LTC Faulkner made any decision about this ca se as CoJ, le t alone one that was “critical.”

However, even assuming that LTC Faulkn er’s action in forwarding an email was sufficient for him to be acting “as counse l,” we fail to find plain error. Such a conclusion is not plain and obvious. Moreove r, it is hard to ar ticulate a substantial prejudice to appellant when the unrebutted affidavits of his counsel indicate that both counsel and appella nt wanted LTC Faulkner to pres ide as the military judge in
his case. The affidavi ts attest that there were three military judges at Fort Hood.
The tactical assessment of th e defense team was that LTC Faulkner was preferable to
either of the two ot her military judges. Additional ly, appellant did not merely acquiesce in LTC Faulkner sitting as military judge–he speci fically requested it. Pursuant to Article 16(1)(B), UCMJ, appell ant personally reques ted to be tried by LTC Faulkner. Appellant th erefore appears to have invited the very error he now requests relief from on appeal.

C. Ineffective Assistance of Counsel

Appellant claims his counse l was ineffective at trial in five areas. First by failing to intervie w AM and her mother before appell ant’s court-martial. Second, by advising him to waive the Ar ticle 32, UCMJ, in vestigation. Thir d, by allegedly providing the government with inculpatory ev idence. Fourth, by failing to introduce exculpatory evidence. Fina lly, by failing to ad equately object to inadmissible
evidence.

To establish ineffective a ssistance of counse l, an appellant must demonstrate both “(1) that his counsel’s performance was deficient, an d (2) that this deficiencyPASAY—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 no t interview AM or her mother before trial. Undoubtedly, these we re the two most important wi tnesses 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 la ck of trying. AM and her
mother refused to be interv iewed. As we stated in United States v. Guardado :

Article 46, UCMJ governs com pulsory process in courtsmartial and states that “[p]ro cess issued in court-martial cases to compel witnesses to appear and testify and to compel the production of othe r evidence shall be similar
to that which courts of the Un ited States having criminal jurisdiction may lawfully issu e . . . .” 10 U.S.C. § 846 (2012) (emphasis added). In other words, by its own terms compulsory proces s is limited to producing witnesses to “appea r and testify” and does not include a requirement that the witness fi rst 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 st ates 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.” Seco nd, 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 defe nse counsel wa s deficient, there is no substantial attempt to link this to a prejudicia l effect at the trial. For example, while appellant alleges that his c ounsel should have interviewed witnesses, he does not explain to us (as is his burden) what the interviews would have accomplished, or how they ma y have altered the course of the trial. It may be deficient to not try to interview an important witness pret rial, but it is only ineffective if that interview would have reve aled 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 firs t 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 th e military judge, la ck the authority to compel a civilian’s cooperation in pretrial interviews. A witness may refuse to be in terviewed notwithstanding a counsel’s desperate pleas. Ab sent compulsory process, a
witness maintains the free will to determ ine the degree to
which he or she vo luntarily participat es in the courtmartial.

75 M.J. 889, 904 (Army Ct. Crim. App. 2016) (pet. gran ted on other grounds by
United States v. Guardado , No. 17-0167/AR, ARMY 2014 0715 (C.A.A.F. 3 March 2017) (order)). As we fi nd no authority for a defens e counsel to compel the cooperation of an unwilling witness to be interviewe d, we cannot find counsel’s performance was deficient.

2. Waiver of the Ar ticle 32 Investigation

Appellant next asse rts his counsel were deficient when they advised him to waive the Article 32 investiga tion. The affidavits submitt ed by counsel adequately
establish this advice was based on two concer ns. 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 lapt op computer. Second, counsel believed there was a very good chance AM w ould not be available to testify at trial. AM had been a reluctant go vernment 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 preser ved under oath, her Artic le 32 testimony could be
introduced in court. See Mil. R. Evid. 804(b)(1) (hearsay exception for prior testimony of an un available witness). Appellan t’s military defense counsel submitted, as an attachme nt to her affidavit, a me morandum for record that contemporaneously documents these concerns and the discussion s with appellant. Finally, the coll oquy between appellan t 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 conversati on between appellan t and AM. Defense counsel stated they needed to print the co nversation to use “in cross-examination of [the next] witness” and to make sure “t he government gets th em.” The defense’s
cross-examination of AM incl uded getting her to admit the favorable things she had said about appe llant in the conversatio n. As AM readily adm itted the statements, the printout of th e conversation was not used for impeachment.

To briefly summarize, the Facebook conv ersation is a disc ussion about where
AM and her mother s hould live. In general, the conversation is friendly and favorable to appellant as AM seeks appellant’s advi ce about how to convince her
mother not to move to the ea st coast. AM also expresse s a desire to live close to appellant. However, the co nversation does include the admission of ap pellant that “if things go bad” with AM’s mom and “you guys [become] homeless,” AM could live with appellant even thoug h “i know im the la st person u want to live with.”

The government marked the text exch ange and used it in their crossexamination of appellant. The government did not admit the ev idence. Appellant now claims the government became aware of the co nversation only because appellant’s counsel used a prosecution prin ter to print out the exchange. We find no deficient performance.

4. Failure to Introduce Exculpatory Evidence

As just discussed, appellan t alleged his counsel were ineffective when they allegedly gave the trial coun sel 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 ineffect ive for not in troducing the
conversation because it is ex culpatory. We need not fu rther explain th e illogic of this argument.

5. Evidentiary deficiencies

Appellant combs the record and lists numerous evidentiary objections or decisions by counsel he al leges constitute deficient performance. The alleged deficiencies include hearsay objections not made, prior co nsistent statements that
were made before the defe nse raised the issue of re cent fabrication, and similar
issues. The is sues defy easy summari zation. 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 findPASAY—ARMY 20140930

18 deficient performance. Strickland v. Washington , 466 U.S. 668, 689 (1984). Even more clearly, we also do not find that appe llant has met his burden of establishing prejudice.

We “do not assess trial defense counse l’s performance thr ough 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 ma y not pay out, a defense st rategy may fall flat, and decisions earnestly made ma y look unwise once one has th e benefit of knowing the verdict. To be sure, a witn ess’s answer to a question may be hearsay. Bu t trials are
fluid events. Counsel must we igh the benefit of an object ion against the risk of the opposing counsel’s response and the change in the trial’s tr ajectory. 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 adequa tely reflected in the transcribed record. Whether to object to test imony is not merely a matter of evidentia ry rules. Objections may highlight evidence a counsel as sesses is best left without emphasis. And, objections allow the oppos ing party to respon d. 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 mu ch of the finding of guilty of Specific ation 12 of Charge I as finds the appellant:

Did, at or near K illeen, Texas, betwee n on or about 28
June 2012 and on or abou t 1 September 2012, commit a sexual act upon AM, to wit: penetrating with his penis, the vulva of AM, by caus ing bodily harm to AM.

The remaining findings of guilty are AFFIRMED.

We are able to reassess th e sentence on the basis of the error noted and do so after conducting a thorough analysis of the totality of circ umstances presented by appellant’s case and in accordance with th e principles articulat ed 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 conf ident that based on the entire record and appell ant’s course of co nduct, 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 reassess ed sentence is not only purged of any error but is also appropriate. All rights, privileges, a nd property, of which appellant has been deprived by virtue of that portion of the fi ndings set aside by our decision, are
ordered restored.

Senior Judge MULLIGAN an d Judge FEBBO concur.

FOR THE COURT:

JOHN P. TAITT Deputy Clerk of Court JOHN P. TAITT Deputy Clerk of Court FOR THE COURT: