This opinion is subject to administrative correction before final disposition.

Before 

CRISFIELD, HOLIFIELD, and LAWRENCE

Appellate Military Judges

_________________________

UNITED STATES

Appellee

v.

Joseph L. HUNTER

Culinary Specialist First Class (E-6), U.S. Navy

Appellant

No. 201900154

Decided: 16 November 2020

Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judges: 

Shane E. Johnson (arraignment and motions)

Stephen C. Reyes (trial)

Sentence adjudged 1 February 2019 by a general court-martial 

convened at Joint Base Pearl Harbor-Hickam, Hawaii, consisting of 

officer members. Sentence approved by the convening authority:

reduction to E-1, total forfeiture of pay and allowances, confinement 

for 14 months, and a bad-conduct discharge.

For Appellant:

Lieutenant Gregory Hargis, JAGC, USN

For Appellee:

Lieutenant Kevin G. Edwards II, JAGC, USN

Lieutenant Commander Timothy C. Ceder, JAGC, USN

Chief Judge Emeritus CRISFIELD delivered the opinion of the Court, 

in which Senior Judge HOLIFIELD and Judge LAWRENCE joined. 
United States v. Hunter, NMCCA No. 201900154

Opinion of the Court

2

_________________________

This opinion does not serve as binding precedent but 

may be cited as persuasive authority under NMCCA

Rule of Appellate Procedure 30.2.

_________________________

CRISFIELD, Chief Judge Emeritus:

Appellant was convicted, contrary to his pleas, of two specifications of attempted sexual abuse of a child, in violation of Article 80, Uniform Code of 

Military Justice [UCMJ], 10 U.S.C. § 880. He raises a single assignment of 

error: that he was denied the effective assistance of counsel by his trial 

defense counsel team’s failure to effectively utilize the services of an expert 

consultant. After careful consideration of the record of trial and the pleadings 

of the parties, we find no prejudicial error and affirm.

I. BACKGROUND

Appellant searched the “casual encounters” section of Craigslist for sexual 

companionship. He found a promising advertisement titled “lonely summer” 

in which the poster stated they lived on Hickam and were looking to meet 

someone to “just have fun for the summer.”1 Appellant replied to the advertisement, stating that he lived close to Hickam and inviting the poster to 

meet with him. Three days later, he received a response from “Liz Lizzy,”2

who inquired if Appellant was in the military. Appellant replied quickly and 

stated that he was in the military and worked at Pearl Harbor, close to Liz 

Lizzy’s location. She replied, “Yeah i live with my parents I am 14 about to 

turn 15.”3 Appellant then asked, “And what u looking for.” 

The emails back and forth continued in the curious vernacular of modern 

social media conversation. Appellant: “I never been with a woman that young 

though. What u got to offer me. You like older guys.”4 The conversation

 

1 Pros. Ex. 2.

2 All names in this opinion, other than those of Appellant, the judges, and counsel, are pseudonyms.

3 Pros. Ex. 3 at 4.

4 Id. at 14.
United States v. Hunter, NMCCA No. 201900154

Opinion of the Court

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eventually migrated to a social media application. On that app, Appellant 

learned that Liz Lizzy was actually “Emily.” Appellant asked where Emily’s 

parents were, if she was home alone, and if she was in high school. He swiftly

turned the conversation to sexual topics and expressed his desire for Emily to 

masturbate him. Less than two hours after the start of their conversation, 

Appellant asked Emily, “are u home alone now.”5 They then started making 

arrangements to meet at Emily’s house on the base at Hickam. Emily gave

Appellant directions to her house and Appellant drove there to meet her. Less 

than three hours after their conversation started, Appellant was at Emily’s 

front door in anticipation of their imminent sexual encounter.

Of course, Liz Lizzy/Emily was not a fourteen-year-old girl at all, but rather was a male Air Force Office of Special Investigations [AFOSI] special 

agent posing as an underage girl as part of an online “to catch a predator” 

operation. When Appellant showed up at the door of the house where he 

believed he was about to get sexual relief from his new fourteen-year-old 

friend, he was apprehended by AFOSI special agents. Appellant was questioned by Naval Criminal Investigative Service special agents later that day 

and—although disputing how early in the conversation he realized she was 

only fourteen years old—confessed that he knew Emily was fourteen years 

old at the time he showed up at her door.

In preparing for trial, Appellant requested that a particular forensic psychologist, Dr. GH, be provided as an expert consultant to examine Appellant’s 

risk of recidivism and mental condition, as well as the reliability of his 

confession. The convening authority denied the specific request for Dr. GH 

but appointed another forensic psychologist, Dr. RK, as a substitute and 

granted twenty hours of pretrial consultation.

Dr. RK’s brief relationship with the trial defense counsel [TDC] team was 

marked by miscommunication and misunderstanding. In the course of her 

forensic examination she informed Appellant that the TDC team was not 

representing his interests well. Her gratuitous opinion sprang from her 

misunderstanding about how Appellant’s TDC team and its workload were

organized and distributed. Following the examination, Dr. RK informed an 

associate civilian counsel on the TDC team that Appellant had no predisposition to commit the alleged offenses and no risk of recidivism. She also stated 

that she had used up the twenty hours of funding and would require more 

money before she could discuss the details of her findings.

 

5 Pros. Ex. 4 at 4.
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The lead civilian defense counsel [CDC] moved to have Dr. RK replaced as 

a paid consultant by his originally requested expert, Dr. GH, due to the TDC

team’s and Appellant’s loss of confidence in Dr. RK’s services. They were 

concerned that Dr. RK was undermining the relationship between Appellant 

and his Defense team. The military judge denied the motion but approved an 

additional ten hours of consultation time and one day of in-court testimony 

from Dr. RK. The military judge found that Dr. RK’s testimony was “potentially” relevant for sentencing purposes even though it was unclear whether 

it would be useful on the merits. There followed an extended period where 

CDC was unable to get in touch with Dr. RK while she was vacationing in 

Europe. Finally, upon Appellant’s motion to once again remove Dr. RK based 

on her unavailability and substitute Dr. GH, the military judge granted the 

request.

The TDC team’s relationship with Dr. GH was also marked by miscommunication and confusion. Dr. GH wanted to obtain copies of Dr. RK’s forensic analysis to assist in his own analysis. To that end he asked the CDC to 

have Appellant sign a release form and provide it to Dr. RK so she would 

transfer the information to him. The CDC tasked Appellant to sign the

release and to personally deliver it to Dr. RK, but Appellant neglected to 

perform the task until he was repeatedly reminded by the TDC team. Appellant signed the form over a month later and gave it back to the TDC team, 

who then provided it to Dr. GH, but it is unclear what happened to it then. 

Dr. GH never obtained any records from Dr. RK and, for reasons that are 

unclear, never performed his own examination of the Appellant. Dr. RK later 

stated that she would not have required a release from Appellant and would 

have provided her work to Dr. GH even without one. The CDC consulted with 

Dr. GH and discussed the conclusions that Dr. RK said she had reached, but 

the Defense did not further use Dr. GH’s services. No expert testified at trial, 

either on the merits or during sentencing.

II. DISCUSSION

Appellant Received Effective Assistance of Counsel

Appellant asserts that his TDC were ineffective for failing to investigate 

the results of Dr. RK’s evaluation; failing to deliver those findings to Dr. GH; 

and failing to have Dr. GH evaluate Appellant. He argues that investigation 

and presentation of Dr. RK’s findings and evaluation by Dr. GH may have 

provided reasonable doubt and resulted in acquittal. Further, Appellant 

argues that the failure to investigate prevented the members from hearing 

expert testimony in sentencing that likely would have resulted in a lesser 

sentence.
United States v. Hunter, NMCCA No. 201900154

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We review claims of ineffective assistance of counsel de novo. United 

States v. Harpole, 77 M.J. 231, 236 (C.A.A.F. 2018). In order to prevail on a 

claim of ineffective assistance of counsel, an appellant must demonstrate 

both (1) that his counsel’s performance was deficient, and (2) that this deficiency resulted in prejudice. Strickland v. Washington, 466 U.S. 668, 687 

(1984). 

1. Appellant has not demonstrated that his counsel were deficient 

With respect to Strickland’s first prong, counsel are presumed to be competent and our inquiry into an attorney’s representation is “highly deferential.” Id. at 689. We employ “a strong presumption that counsel’s conduct falls 

within the wide range of professionally competent assistance.” Id. Appellant 

has the heavy burden of establishing a factual foundation for a claim of 

ineffective representation. See United States v. Grigoruk, 52 M.J. 312, 315 

(C.A.A.F. 2000) (“sweeping, generalized accusations” will not satisfy an 

appellant’s foundational burden). 

We will not second-guess strategic or tactical decisions made by the TDC

unless Appellant can show specific defects in counsel’s performance that were 

unreasonable under prevailing professional norms. United States v. Mazza, 

67 M.J. 470, 475 (C.A.A.F. 2009). 

We do not believe that Appellant has carried his burden of establishing a 

factual foundation that testimony from a forensic psychologist—whether 

Dr. RK or Dr. GH—would have provided a viable defense to the charge and 

specifications or would have mitigated his sentence. Dr. RK provided an 

eight-page affidavit which includes but one sentence regarding her findings: 

“Generally, I recall finding that CS1 Hunter was susceptible to the suggestibility of investigators and had a very low risk of recidivism.”6 Appellant has 

presented no evidence about his TDC’s discussions with, or any conclusions 

reached by, Dr. GH.

The record establishes that TDC consulted with both Dr. RK and Dr. GH 

and made a decision to not call a forensic psychologist to testify at trial. We 

employ a strong, but rebuttable, presumption that those consultations and 

that decision were within the wide range of professionally competent assistance. We find that Appellant has fallen far short of presenting a foundation 

to overcome that presumption. Therefore, Appellant has failed to satisfy the 

first prong of Strickland.

 

6 Appellant’s Brief, Appendix A at 7.
United States v. Hunter, NMCCA No. 201900154

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2. Appellant has not demonstrated that he was prejudiced by a deficiency

Assuming, arguendo, that Appellant had established that his TDC were 

professionally deficient, we would still find no prejudice under Strickland’s

second prong. In order to show prejudice, an appellant “must show that there 

is a reasonable probability that, but for counsel’s unprofessional errors, the 

result of the proceeding would have been different. A reasonable probability 

is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. “Moreover, a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one 

with overwhelming record support.” Id. at 696.

On the merits, the evidence against Appellant was overwhelming. The 

Defense argued both entrapment and mistake-of-fact defenses, but neither 

was viable.

For the entrapment defense to prevail, “the defense has the initial burden 

of . . . show[ing] that a government agent originated the suggestion to commit 

the crime.” United States v. Whittle, 34 M.J. 206, 208 (C.M.A. 1992). Once the 

defense has met its burden, the burden shifts to the government to prove 

beyond a reasonable doubt either: (1) that the “criminal design did not 

originate with the Government”; or (2) “that the accused had a predisposition 

to commit the offense prior to first being approached by Government agents.”

Id. (citation and internal quotation marks omitted). “The bottom line is that 

entrapment has two elements: government inducement and an accused with 

no predisposition to commit the offense.” United States v. Howell, 36 M.J. 

354, 358 (C.A.A.F. 1993).

Appellant contends that the Government induced him to commit the offenses, but it is clear from the evidence that Appellant was the first to suggest a sexual relationship with a fourteen-year-old. The mere fact that the 

Government posted the “lonely summer” advertisement on Craigslist does not 

constitute inducement. There is no inducement where government agents 

simply provide “the opportunity or facilities to commit the crime.” United 

States v. Hall, 56 M.J. 432, 437 (C.A.A.F. 2002).

Appellant also contends that there is no evidence that he had a predisposition to commit the offenses—he had no criminal background, and the 

Government failed to show that he had previously sought out underage 

individuals for sex or that he searched for or looked at child pornography. 

However, the evidence amply proves his predisposition. His swift pursuit of 

sexual contact with Emily, even after being told she was fourteen years old,

demonstrates his predisposition. He initiated the sexual conversation with 

Emily, described in detail the sexual acts he wanted her to perform on him,

requested pictures from her, and asked multiple questions to establish the 
United States v. Hunter, NMCCA No. 201900154

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logistical feasibility of meeting her to engage in sexual activity as soon as 

possible. Appellant’s sole concern after being told by Emily that she was 

fourteen was whether she was a real person. Her age was not even a speed 

bump on his path to sexual relief. Appellant’s interactions with Emily

demonstrated his readiness and willingness to commit the offenses. His 

behavior was not that of a law-abiding citizen or a person undisposed to 

committing sexual acts with minors. Less than three hours after they started 

conversing online, Appellant was at Emily’s door.

Appellant also contends that his sentence would have likely been less severe if a forensic psychologist had testified that he was at low risk of recidivism. Again, assuming, arguendo, that his TDC were deficient in failing to 

present expert testimony, we find that Appellant was not prejudiced by the 

failure of his counsel to present such evidence. Facing the possibility of a 

sentence including twenty years’ confinement and a dishonorable discharge, 

Appellant received only fourteen months and a bad-conduct discharge for his 

offenses. Obviously, the members either found that he was not a significant 

risk to re-offend in the near future, or they were not particularly concerned 

about him re-offending. We find no reasonable probability that his sentence 

would have been less than fourteen months’ confinement and a bad-conduct 

discharge if an expert had testified that he was a low risk for recidivism.

III. CONCLUSION

After careful consideration of the record and briefs of appellate counsel, 

we have determined that the approved findings and sentence are correct in 

law and fact and that no error materially prejudicial to Appellant’s substantial rights occurred. UCMJ arts. 59, 66. Accordingly, the findings and sentence as approved by the convening authority are AFFIRMED.

Senior Judge HOLIFIELD and Judge LAWRENCE concur.

FOR THE COURT:

RODGER A. DREW, JR.

Clerk of Court