UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

KERN, ALDYKIEWICZ, and MARTIN 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Private First Class AMANDA N. MOSS 

United States Army, Appellant 

ARMY 20110337 

Headquarters, 3d Infantry Division and Fort Stewart 

Tiernan P. Dolan, Military Judge 

Colonel Jonathan C. Guden, Staff Judge Advocate (pre-trial) 

Colonel Randall J. Bagwell, Staff Judge Advocate (post-trial) 

For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M. 

Jamison, JA; Major Jacob D. Bashore, JA; Captain Ian M. Guy, JA (on brief & 

supplemental brief). 

For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Robert A. Rodrigues, 

JA; Captain Steve T. Nam, JA (on brief) 

17 January 2013 

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

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

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent. 

MARTIN, Judge: 

A panel of officers sitting as a special court-martial convicted appellant, in 

absentia, of desertion in violation of Article 85, Uniform Code of Military Justice, 

10 U.S.C. § 885 (2006) [hereinafter UCMJ]. The panel sentenced appellant to a badconduct discharge, confinement for six months, forfeiture of $978.00 pay per month 

for 12 months, and reduction to the grade of E-1. The convening authority approved 

the sentence as adjudged and credited the appellant with eighteen days of 

confinement against the sentence to confinement. Appellant’s case is now before us 

for review pursuant to Article 66, UCMJ. 

This case involves the propriety of giving an unsworn statement on behalf of 

an accused being tried in absentia. Appellate defense counsel raise a total of four 

assignments of error related to the unsworn statement given by appellant’s trial 
MOSS—ARMY 20110337 

2

defense counsel during presentencing. Primarily, appellate defense counsel claim 

that appellant was denied her Sixth Amendment right to effective assistance of 

counsel, due to both the decision to give an unsworn statement and the content of the 

statement given. Our resolution of this issue obviates the need to address the 

additional allegations raised as assignments of error.1

BACKGROUND 

Trial and Post-Trial Proceedings 

After being absent for almost three years, appellant was apprehended and 

returned to her unit at Fort Stewart, Georgia. Upon her return to military control, 

appellant made several sworn and unsworn statements regarding the mitigating 

reasons for her long absence. Captain (CPT) AS was appellant’s assigned defense 

counsel, and he worked with PFC Moss to prepare for her pending court-martial. 

Approximately two weeks before her scheduled trial date, appellant again absented 

herself from her unit. The court-martial then proceeded in her absence. After 

appellant was convicted of desertion, CPT AS read an unsworn statement to the 

panel on appellant’s behalf during presentencing. The unsworn statement focused 

almost exclusively on the reasons why appellant was absent from her unit for almost 

three years. Reading the statement in the first person, CPT AS stated that appellant 

left in order to care for her “aunt,” Ms. VM, who had essentially raised appellant 

and was suffering from various serious physical illnesses and mental health issues 

making her unable to care for herself. 

In rebuttal, the government called appellant’s father, Sergeant First Class 

(SFC) DM. Sergeant First Class DM testified that neither he nor his wife had a 

sister named Ms. VM and that he and his wife had raised appellant. On crossexamination, SFC DM admitted that he had heard of situations where close family 

friends were sometimes referred to as an “aunt,” but also testified that he was not 

aware of a close family friend named Ms. VM. 

 

1

 We find the additional assignments of error—that the military judge abused his 

discretion by allowing the unsworn statement, that the military judge erred by not 

instructing the jury to disregard the unsworn statement (and related rebuttal 

testimony), and that appellant was deprived of her right to conflict-free counsel 

when her trial defense counsel subsequently invoked his Fifth Amendment rights 

after being questioned by the military judge about the unsworn statement—to be 

without merit. 
MOSS—ARMY 20110337 

3

 During their presentencing argument, both government counsel and CPT AS 

referenced Ms. VM. The trial counsel argued that appellant invented the story about 

having an “aunt” named Ms. VM to reduce her culpability. The trial counsel further 

argued that the testimony from appellant’s father, SFC DM, demonstrated that 

appellant’s explanation for being absent was false. Despite SFC DM’s testimony to 

the contrary, CPT AS argued that, while not excused, appellant’s absence was 

mitigated by her actions to care for her ailing, beloved aunt. Captain AS repeated 

this theme in appellant’s post-trial matters to the convening authority, requesting 

clemency on appellant’s behalf. 

Appellate Proceedings 

Before this court, appellate defense counsel argue, inter alia, that the record 

does not contain any evidence that CPT AS was authorized to provide an unsworn 

statement on appellant’s behalf. Furthermore, appellate defense counsel aver that 

the content of the unsworn statement—regarding the existence of Ms. VM, which 

was rebutted by appellant’s father—indicates CPT AS did not adequately investigate 

appellant’s presentencing case. Appellant did not file a supporting affidavit. 

After reviewing the record and appellate defense counsel’s allegations of 

ineffectiveness, this court concluded that appellant’s allegations, “if unrebutted, 

would overcome the presumption of competence” of defense counsel. United States 

v. Lewis, 42 M.J. 1, 6 (C.A.A.F. 1995). Consequently, we ordered CPT AS to 

provide an affidavit addressing whether or not appellant authorized him to make an 

unsworn statement on her behalf prior to her absence at the court-martial. We also 

directed CPT AS to detail his investigation regarding Ms. VM; to describe any 

interviews conducted with appellant’s father, SFC DM; and to discuss the reasons he 

decided upon the content and use of the unsworn statement, especially in light of 

SFC DM’s disavowal of any person named Ms. VM. 

In response to this court’s order, CPT AS provided an affidavit and numerous 

supporting documents, to include witness interview notes, a memorandum for record, 

and supporting emails. In his affidavit, CPT AS stated that he and appellant 

“extensively discussed presenting an unsworn statement at trial,” and that the “chief 

evidence PFC Moss desired to present in extenuation and mitigation was the reason 

for which she was absent during the duration alleged in the charged offense—

namely, that she was caring for Ms. [VM], to whom she referred as her aunt, and 

who was seriously ill.” This was the same explanation for her absence that she had 

previously provided upon her return to military control, and was consistent with 

statements she made to her command. Captain AS further stated that appellant “was 

insistent in presenting this evidence, and wanted to do so in large part through an 

unsworn statement,” which appellant practiced with CPT AS. 
MOSS—ARMY 20110337 

4

Captain AS also stated that he confirmed the existence of Ms. VM, primarily 

through a separate witness, Ms. DC, who was very close to both appellant and Ms. 

VM. “Ms. [DC] confirmed the story and further described the infirmities of Ms. 

[VM], whom she knew personally, as well as the relationship between PFC Moss and 

Ms. [VM].” Captain AS was unable to reach Ms. VM personally. In the days before 

trial, however, CPT AS received further confirmation of the existence and condition 

of Ms. VM through government counsel. Pursuant to the request for defense 

witnesses, government counsel worked with the federal marshals to secure the 

presence of both Ms. DC and Ms. VM at the court-martial. The federal marshals’ 

investigation revealed that, in fact, Ms. VM did exist and that she suffered from 

severe physical and mental health conditions. While confirming her existence, the 

federal marshals were unable to locate and serve a subpoena on Ms. VM prior to 

trial. 

Finally, CPT AS stated that he interviewed appellant’s father, SFC DM, and 

questioned him about Ms. VM. During CPT AS’s interview of him, SFC DM, 

consistent with his later sworn testimony, professed no knowledge of any person 

named Ms. VM. Despite this fact, Captain AS nonetheless decided to use the 

evidence: “The evidence regarding PFC Moss caring for Ms. [VM] was the strongest 

extenuation and mitigation evidence that was presented at trial, and I did not and do 

not feel that SFC [DM]’s testimony denying knowledge of Ms. [VM] outweighed it 

to the degree that I should decline to argue it to the panel in my presentencing 

argument.” Furthermore, during his pre-trial witness interview, SFC DM admitted 

to CPT AS that during different periods of her life, he had lost contact with his 

daughter. 

LAW AND DISCUSSION 

 The Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), set out 

a two-prong test for ineffective assistance of counsel: 

First, the defendant must show that counsel’s performance was 

deficient. This requires showing that counsel made errors so 

serious that counsel was not functioning as the “counsel” 

guaranteed the defendant by the Sixth Amendment. Second, the 

defendant must show that the deficient performance prejudiced the 

defense. This requires showing that counsel’s errors were so 

serious as to deprive the defendant of a fair trial, a trial whose 

result is reliable. 

Id. at 687. See United States v. Green, 68 M.J. 360 (C.A.A.F. 2010);

United States v. Wean, 45 M.J. 461, 463 (C.A.A.F. 1997); United States 

v. Polk, 32 M.J. 150, 153 (C.M.A. 1991). 
MOSS—ARMY 20110337 

5

 In analyzing CPT AS’s performance in the case at hand, we have before us the 

record of trial, and CPT AS’s affidavit with supporting documents—this is not a 

case of competing affidavits. See United States v. Ginn, 47 M.J. 236 (C.A.A.F. 

1997). Although our initial review of the record of trial and appellant’s assignments 

of error raised concerns that CPT AS’s performance was inadequate, upon 

examination of CPT AS’s affidavit and supporting information, we do not find 

defense counsel’s performance deficient under the first prong of Strickland. 

Decision to Provide an Unsworn Statement on Appellant’s Behalf 

In United States v. Marcum, our superior concluded the “decision to make an 

unsworn statement is personal to the accused.” United States v. Marcum, 60 M.J. 

198, 209 (C.A.A.F. 2004). The court further explained that “if an accused is absent 

without leave his right to make an unsworn statement is forfeited unless prior to his 

absence he authorized his counsel to make a specific statement on his behalf.” Id. at 

210. Indeed, there are several pitfalls involved with giving an unsworn statement 

when a client is not present for trial. See, e.g., Id. at 209 (holding that the defense 

counsel’s unsworn statement rendered on the appellant’s behalf disclosed 

confidential communications and constituted deficient performance); United States 

v. Brewer, ARMY 20040625, 2008 WL 8104044, at *3 n.2 (Army Ct. Crim. App. 28 

Aug. 2008) (finding that the defense counsel’s use of a draft unsworn statement on 

the appellant’s behalf was without appellant’s express consent and therefore 

erroneous). 

In this case, CPT AS’s affidavit and notes convince us that CPT AS did not 

err by providing an unsworn statement. Instead, we find that appellant impliedly 

consented to CPT AS giving an unsworn statement on her behalf. Captain AS and 

appellant discussed the contents of the unsworn statement, appellant’s desire to give 

an unsworn statement, and they even practiced delivering an unsworn statement. 

Additionally, the close proximity of what turned out to be the last pre-trial 

preparation meeting—fifteen days before the date of the original trial date—reflects 

the fact that the parties were in the final stages of trial preparation. Therefore, we 

conclude that CPT AS was not deficient in giving an unsworn statement on 

appellant’s behalf. 

Decision to Use Mitigating Facts Regarding Ms. VM 

Next, we review CPT AS’s decision regarding the contents of the unsworn 

statement he ultimately delivered. Initially, we note that, unlike the unsworn 

statement delivered by the counsel in Marcum, there was no disclosure of 

confidential communications in this case. All the information provided by CPT AS 

in the unsworn statement essentially reflected previous sworn statements appellant 

provided to her unit upon her return to military control. Thus, the issue is simply 
MOSS—ARMY 20110337 

6

whether CPT AS was ineffective in deciding what information to include in the 

unsworn statement. “In weighing such matters, we must give deference to counsel’s 

tactical judgment and not substitute our view with the benefit of hindsight.” United 

States v. Stephenson, 33 M.J. 79, 82 (C.M.A. 1991) (quoting United States v. Bono, 

26 M.J. 240, 242 (C.M.A. 1988) (citing Strickland, 466 U.S. at 689; United States v. 

DeCoster, 624 F.2d 196, 208 (D.C. Cir. 1976) (en banc) (plurality opinion))). 

Moreover, “heavy deference is given to trial defense counsel’s judgments, and this 

Court presumes counsel’s conduct falls within the wide range of reasonable 

professional assistance.” United States v. Morgan, 37 M.J. 407, 410 (C.M.A. 1993) 

(citing Strickland, 466 U.S. at 689). 

Before this court, appellate defense counsel claim that CPT AS’s performance 

fell below an objective standard of reasonableness when he argued that appellant’s 

absence was mitigated by her care of her ailing “aunt,” Ms. VM, and persisted with 

this argument after rebuttal testimony by SFC DM that the family did not have an 

aunt by that name. Specifically, appellate defense counsel argue that CPT AS did 

not properly “fact check or investigate the contents of the statement that he 

presented to the panel.” However, we conclude that CPT AS conducted a reasonable 

investigation. First, CPT AS specifically discussed with appellant the propriety of 

including information about Ms. VM in the unsworn statement. Next, CPT AS 

confirmed the existence of Ms. VM and her illness by interviewing a close friend of 

appellant’s, Ms DC. In the days before trial, the subpoena process initiated by 

federal marshals established the existence and condition of Ms. VM. Finally, CPT 

AS interviewed appellant’s father, SFC DM, and asked him about Ms. VM. From 

this investigation, CPT AS was in a position to make an informed, tactical decision 

about the contents of the unsworn statement. 

In this case, we conclude that CPT AS’s decision to include information about 

Ms. VM in the unsworn statement does not fall outside the range of reasonable 

professional assistance. Although SFC DM did not know Ms. VM, and could 

therefore potentially give unfavorable testimony, CPT AS made the tactical decision 

to present the mitigation evidence about Ms. VM after a thorough investigation. 

Moreover, CPT AS cross-examined SFC DM about the extent of his knowledge, so 

as to improve the quality of the mitigation evidence. For example, although not 

fully developed on the record, SFC DM testified that appellant had some problems 

with her mother and lived outside the home at a young age. He also admitted that he 

lost touch with appellant for several years. Finally, SFC DM testified that he was 

familiar with the practice of referring to a friend of the family as an “aunt.” 

In retrospect, some may argue that if the trial defense counsel intended to rely 

so heavily on appellant’s relationship with and care for Ms. VM in extenuation, he 

should have elicited more evidence from appellant’s father and others that would 

have provided more support for that theory. However, by all accounts, the defense 
MOSS—ARMY 20110337 

7

counsel was in a challenging position. Ms. DC, who could verify the existence of 

Ms. VM, had proven to be a difficult witness, indicating an unwillingness to testify 

in appellant’s case notwithstanding having been subpoenaed.2 Sergeant First Class 

DM was one of the few defense witnesses, and while CPT AS challenged him on his 

understanding of appellant’s living situation during cross-examination, he could not 

completely undermine his own witness’s credibility without weakening the defense 

case. In his post-trial affidavit, defense counsel explained his trial strategy as one 

where he sought to provide as much favorable information as possible to help 

explain his client’s absence, while limiting exposure to the more damaging facts 

surrounding appellant’s behavior.3

 Captain AS accomplished this strategy by 

offering an unsworn statement and by controlling the extent of the testimony he 

elicited from appellant’s father. As the Supreme Court noted, “strategic choices 

made after thorough investigation of law and facts relevant to plausible options are 

virtually unchallengeable.” Strickland, 466 U.S. at 690. 

 

Ultimately, we conclude that CPT AS’s strategy “was tactically sound and not 

unreasonable.” Stephenson, 33 M.J. at 82. Accordingly, defense appellate counsels’ 

claim that the trial defense counsel acted unreasonably by continuing to rely on the 

theory that extenuating facts surrounded appellant’s absence, despite rebuttal 

testimony to the contrary, does not reach the level of seriously deficient performance 

contemplated by Strickland. 

 

2

 While Ms DC confirmed the existence and medical condition of Ms. VM as well as 

appellant’s care for Ms. VM, Ms. DC was a challenging witness. CPT AS struggled 

to keep in regular contact with Ms. DC and when the federal marshals served the 

subpoena for the court-martial, she became very agitated with CPT AS and refused 

to appear for trial. CPT AS made the tactical decision to not force her to appear, 

anticipating that she would be an adverse witness. 

3

 The affidavit and accompanying notes of CPT AS show that he attempted to 

carefully navigate the potential minefield of appellant’s complicated home and 

personal life. For example, he tried to highlight appellant’s rehabilitative potential 

through testimony by her father, further bolstered by the fact that he was an active 

duty SFC. At the same time, CPT AS sought to limit testimony by SFC DM that 

would reveal some additional difficult circumstances during her childhood that 

might reflect poorly on his client. Additionally, CPT AS successfully limited the 

disclosure of some of the more damaging information surrounding appellant’s arrest 

that terminated her absence. Specifically, that she had been arrested for simple 

battery and family violence for physically assaulting Ms. DC, the same Ms. DC that 

was an important witness in this case. She pleaded nolo contendere and served 

twenty days in county jail for these offenses. 
MOSS—ARMY 20110337 

8

Decision to Use Mitigating Facts in Post-Trial Submission 

 Finally, we review defense counsel’s decision to continue to rely on the same 

facts in appellant’s post-trial submission despite the government’s clear challenge to 

the veracity of that information. Generally, “[w]e will not second-guess the 

strategic or tactical decisions made at trial by defense counsel.” United States v. 

Rivas, 3 M.J. 282, 289 (C.M.A. 1977). Here, defense counsel clearly articulated a 

reasonable basis for his decision to maintain his adherence to the extenuating 

matters surrounding appellant’s prolonged absence. Captain AS continued to try to 

contact appellant during this period but was unsuccessful. He also demonstrated due 

diligence in pursuing letters of support from appellant’s father and several soldiers 

from her unit. Ultimately, everyone he contacted declined to provide further 

assistance, so he was left with limited options. Captain AS chose to continue with 

the same explanation for appellant’s absence, anticipating that the theory might 

garner clemency for his client from the convening authority. Although unsuccessful, 

this tactic was sensible given the limiting circumstances of the case. 

Conclusion

 The record reflects that the trial defense counsel was very diligent in every 

phase of this case—from pretrial investigation, to the pre-trial motions, to his 

advocacy throughout the court-martial, to his post-trial efforts on behalf of his 

client. Although some may question his tactical decisions, there is clear evidence 

here that CPT AS made those choices after thorough investigation and preparation, 

and his actions were reasonable in light of the situation in which he found himself. 

We therefore find that under the unique circumstances of this case, defense 

counsel’s performance was not deficient. 

Assuming arguendo that CPT AS’s performance was deficient and he made 

errors so serious that he was not functioning as “counsel” guaranteed by the Sixth 

Amendment, we do not find that his errors were so serious as to deprive appellant of 

a fair trial. Appellant was found guilty of desertion terminated by apprehension. 

She was gone for almost three years, and during her absence, she missed her unit’s 

deployment. This court regularly reviews sentences related to this type of offense, 

and we find that the adjudged sentence was very consistent with similarly situated 

cases. Appellant has not shown that if deficient, that defense counsel’s performance 

prejudiced the defense. 

DECISION 

Upon review of the entire record, to include defense counsel’s affidavit and 

supporting documents, we do not find the performance of appellant’s defense 

counsel to be deficient. As such, we need not address appellant’s remaining 
MOSS—ARMY 20110337 

9

assignments of error. We hold appellant received effective assistance of counsel, 

and the findings of guilt and the sentence as approved by the convening authority 

correct in law and fact. Accordingly, the findings of guilty and the sentence are 

AFFIRMED. 

Senior Judge KERN and Judge ALDYKIEWICZ concur. 

 FOR THE COURT: 

 MALCOLM H. SQUIRES, JR 

Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: