UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

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No. ACM 39174

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UNITED STATES

Appellee

v.

Anto A. ADAM

First Lieutenant (O-2), U.S. Air Force, Appellant

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Appeal from the United States Air Force Trial Judiciary

Decided 7 February 2018

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Military Judge: Marvin W. Tubbs II.

Approved sentence: Dismissal and confinement for 40 days. Sentence 

adjudged 18 July 2016 by GCM convened at Tinker Air Force Base, 

Oklahoma. 

For Appellant: Ernesto Gapasin, Esquire.

For Appellee: Major Rebecca A. Magnone, USAF; Major Mary Ellen 

Payne, USAF; Major Meredith L. Steer, USAF.

Before MAYBERRY, HARDING, and SPERANZA, Appellate Military 

Judges.

Judge SPERANZA delivered the opinion of the court, in which Chief 

Judge MAYBERRY and Senior Judge HARDING joined. 

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This is an unpublished opinion and, as such, does not serve as 

precedent under AFCCA Rule of Practice and Procedure 18.4.

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SPERANZA, Judge:

A military judge sitting as a general court-martial found Appellant guilty, 

consistent with his pleas pursuant to a pretrial agreement, of providing three 

false official statements to a military investigator and stealing money from 
United States v. Adam, No. ACM 39174

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the Army and Air Force Exchange Service (AAFES) on divers occasions, in 

violation of Articles 107 and 121, Uniform Code of Military Justice (UCMJ), 

10 U.S.C. §§ 907, 921. The military judge sentenced Appellant to a dismissal 

and 40 days of confinement. Consistent with the terms of the pretrial agreement, the convening authority approved the adjudged sentence.

On appeal, Appellant claims that (A) his sentence is inappropriately severe and (B) he was denied effective assistance of counsel. We disagree with 

Appellant’s assertions, find no prejudicial error, and affirm. 

I. BACKGROUND

Appellant’s robust history of returning items to the Tinker Air Force Base 

AAFES Base Exchange without a receipt landed him atop the store’s suspected fraud list—and for good reason. Appellant would place 50–75 percent 

“clearance” stickers on items he believed should be on sale, purchase them at 

the reduced price, and later return the items without a receipt. The store refunded Appellant the full price of the items on gift cards. 

Appellant’s scheme finally came to an end when he was video-recorded 

placing items on “clearance.” After being stopped by the store’s loss prevention manager, Appellant was questioned by a military investigator and 

promptly lied about his misconduct. 

II. DISCUSSION

A. Sentence Appropriateness

The military judge merged all three specifications of Appellant’s false official statement charge for the purposes of sentencing. Additionally, the military judge found that each occasion alleged in the larceny charge did not individually involve theft of money valued at over $500, even though Appellant 

stole well over $1,000 in total. Therefore, the military judge determined Appellant did not face an enhanced sentence, as is required when an accused 

commits larceny involving nonmilitary property valued at over $500. Consequently, Appellant faced a maximum punishment that included a dismissal 

and confinement for five and a half years.

In exchange for Appellant’s offer to, among other things, plead guilty, the 

convening authority agreed not to refer additional charges against Appellant 

and not to approve more than 60 days of confinement. The pretrial agreement 

placed no other limitations on Appellant’s sentence. 

Upon Appellant’s request, the convening authority waived automatic forfeitures for the benefit of Appellant’s wife and son while Appellant served his 

40 days of confinement. 
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Appellant now contends that “[d]espite the fact that [his] sentence is the 

result of a pretrial agreement, the adjudged sentence of a dismissal in conjunction with the confinement for forty days is inappropriate for the charged 

offenses and for the nature of the offenses and the character of the offender.” 

In support of this claim, Appellant cites, inter alia, the resources his guilty 

plea saved the Government; his “bright career and accomplishments;”1 the 

federal convictions he incurred; his crimes did not involve victims, as he “did 

not commit more egregious offenses such as sexual assault, or assault and 

battery against another human being;” his acceptance of responsibility; his 

restitution payment of over $1,500 to AAFES; and, the burden his sentence 

will have on his future. Accordingly, Appellant asks us to set aside his dismissal.

We review issues of sentence appropriateness de novo. United States v. 

Lane, 64 M.J. 1, 2 (C.A.A.F. 2006) (citing United States v. Cole, 31 M.J. 270, 

272 (C.M.A. 1990)). 

We may affirm only as much of the sentence as we find correct in law and 

fact and determine should be approved on the basis of the entire record. Article 66(c), UCMJ, 10 U.S.C. § 866(c). “We assess sentence appropriateness by 

considering the particular appellant, the nature and seriousness of the offense[s], the appellant’s record of service, and all matters contained in the 

record of trial.” United States v. Sauk, 74 M.J. 594, 606 (A.F. Ct. Crim. App. 

2015) (quoting United States v. Anderson, 67 M.J. 703, 705 (A.F. Ct. Crim. 

App. 2009)). Although we have great discretion to determine whether a sentence is appropriate, we have no power to grant mercy. United States v. Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010).

Indeed, Appellant did not sexually assault or otherwise injure another 

human being; however, he—an officer in the United States Air Force—

devised and executed a brazen scheme to steal money from his installation’s 

exchange and then lied about it. His punishment is commensurate with his 

offenses. Having given individualized consideration to the nature and seriousness of these crimes, Appellant’s record of service, all other matters contained in the record of trial, and, importantly, Appellant, we conclude the 

sentence is not inappropriately severe based on the facts and circumstances 

of this particular case.

 

1 Appellant’s brief cites to the extenuation and mitigation evidence offered by Appellant’s trial defense counsel at Appellant’s court-martial, to include ten character letters.
United States v. Adam, No. ACM 39174

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B. Effectiveness of Counsel

Appellant was represented by an experienced trial defense counsel. Early 

in his representation of Appellant, trial defense counsel advised Appellant 

about his right to call witnesses, both civilian and military, at his courtmartial, and instructed Appellant to identify such potential witnesses. Leading to trial, trial defense counsel and defense paralegals reiterated this advice to Appellant, both orally and in writing. The advice provided to Appellant included his right to “call witnesses for [him] or use letters and character-reference type written statements, or both” at any sentencing proceedings. Appellant was again specifically instructed to identify “any and all potential character witnesses who can help [him].” 

According to Appellant, his trial defense counsel “did mention early in the 

case to start thinking about character witnesses for trial” and Appellant 

acknowledged receiving “paperwork from [trial defense counsel] and his paralegal that [he] had the right to call witnesses to testify on [his] behalf.” Based 

on this advice, Appellant claims he had “several military witnesses in mind 

from the beginning of the process who were willing to testify on [his] behalf 

as to [his] good military character, duty performance and rehabilitative potential.” Appellant did not have any questions about this advice, but maintains he never received a deadline to provide the names of these witnesses to 

trial defense counsel, even though he did obtain character letters from some 

of these witnesses.

Shortly after charges were preferred against Appellant, his trial defense 

counsel submitted a resignation in lieu of court-martial (RILO) request on 

Appellant’s behalf. While Appellant’s RILO request processed, trial preparations continued. Approximately one month before the scheduled trial date, 

trial defense counsel was required to submit a witness list on that day. Trial 

defense counsel informed Appellant that he intended to place Appellant’s wife 

on the witness list and told Appellant to “let me know if you have any questions.” Appellant did not further identify any other witnesses for trial defense 

counsel.

Despite his negative response, Appellant was instructed once again a few 

weeks later by a defense paralegal to “please let us know about any witnesses 

either live testimony or character letters.” Appellant was also provided a “trial decisions memorandum.” This memorandum directed Appellant to review 

the memorandum’s content in its entirety—to include all attachments—and 

to “not initial or sign, indicating your understanding and choices, until [Appellant and trial defense counsel] are involved in face-to-face final trial preparation together.” (Emphasis in original.) The memoranduam further advised 

Appellant to “only sign and initial if and when [he] fully underst[ood] [his] 

rights, [his] decisions and this information.” (Emphasis in original.)
United States v. Adam, No. ACM 39174

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Appellant’s request to resign was denied and Appellant’s case proceeded

to trial. In preparation, trial defense counsel interviewed members of Appellant’s unit, including individuals who wrote character letters for Appellant. 

Trial defense counsel determined that calling these military members as witnesses was ill-advised because he “learned that [Appellant] had given them 

the impression that his misconduct was more of a one-time issue rather than 

a series of continuing acts” and that “[m]any of them believed that the situation was a mistake and were not aware that [Appellant] had lied to security 

forces personnel.”

About a week before trial, Appellant negotiated the pretrial agreement 

with the convening authority. In his offer for pretrial agreement, Appellant 

certified that he was “satisfied with [his defense counsel], who ha[d] advised 

[him] with respect to th[e] offer, and consider[ed] [defense counsel] competent 

to represent [him] in th[e] court-martial.”

The day before trial, trial defense counsel discussed the “trial decisions 

memorandum” with Appellant. The memorandum included five attachments, 

including one entitled “Character Evidence/Defense Case.” Appellant certified 

his understanding of the memorandum’s advice and content by initialing and 

signing the document. On the first page of the memorandum, trial defense 

counsel advised Appellant, in pertinent part, of the following:

I am relying on you to tell me if you have any questions or concerns about our trial preparation, trial strategy or trial decisions, and if there is something you don’t understand about my 

advice or explanations.

...

Please review these memos, think about these choices, and ask 

me any questions you have.

...

In addition, please only sign and initial if and when you fully 

understand your rights, your decisions and this information.

In general, Appellant certified that he was “truly satisfied” with his trial 

defense counsel and did not have any questions or concerns about trial defense counsel’s advice, preparation, the case, or case strategy. Specifically, 

Appellant certified his understanding of “Character Evidence” by initialing 

the following:

I understand we can present evidence about my character during the findings and/or sentencing portion of my trial. This 

character evidence can take the form of live witnesses, perfor-
United States v. Adam, No. ACM 39174

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mance reports, awards and decorations, affidavits or, during 

sentencing, letters written by those who know me best.

I also understand that if we put on evidence of my good character in any phase of trial the government can rebut that evidence by providing what they believe to be evidence of my bad 

character—which might not otherwise have been admissible 

against me at trial. This includes any past uncharged misconduct or violations of rules. This is called “opening the door” to 

bad character evidence.

My attorney and I have discussed possible sentencing, including unsworn statements, witnesses and evidence (OPRs, award 

& decs, certificates, witnesses, letters, coins, “attaboys,” etc.) 

(Emphasis added.)

Finally, Appellant certified his “Decisions about Defense Case” by initialing the following:

I understand that, except for the decisions made by me in this 

memo, case strategy decisions are left to my attorney. That being said, my attorney has asked me for my inputs regarding a 

possible defense case and has informed me that I need to let 

him know if I have any questions or concerns before we enter 

trial. We have discussed my thoughts and, going into trial, I 

understand, and agree with, my attorney’s preparation and 

strategy.

At trial and in response to the military judge’s questions, Appellant confirmed that he fully consulted with trial defense counsel; he received the full 

benefit of his counsel’s advice; he was satisfied his defense counsel’s advice 

was in his best interest; and he was satisfied with his trial defense counsel. 

Before entering the sentencing phase of the trial, the military judge advised Appellant of his right to present matters in extenuation and mitigation 

for the military judge’s consideration, to include “testimony of witnesses.” 

Appellant confirmed that he understood this right. In addition to other documentary evidence and an unsworn statement, Appellant offered ten character 

letters as evidence at sentencing.

Now on appeal, Appellant claims that his trial defense counsel “was ineffective by failing to properly prepare for presentencing because trial defense 

counsel did not call military witnesses to testify and did not give Appellant 

sufficient notice of when requests for production of character witnesses were 

to be served on the Government.” Appellant argues that “[o]ne glaring issue 

is the fact that despite the letters of support Appellant received, no one was 
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produced to testify either in court or even via telephone.” Appellant contends 

that “[t]his lack of proper mitigation evidence at trial negatively affected his 

chances of remaining in the service.”2 While acknowledging he “was aware 

that witnesses could testify on his behalf because [his trial defense counsel] 

and his paralegal advised him of this,” Appellant nonetheless complains that 

“this advice came early in the representation” and “in his mind, [he] did not 

believe [they] ever had a scheduled trial date while [his] RILO was processing.” Therefore, Appellant was “surprised” when he had to produce a 

“witness list” and did not have enough time to identify potential witnesses for 

his trial defense as requested. According to Appellant, his trial defense counsel failed to properly counsel him “as to how his RILO application would or 

would not affect the court-martial” and failed to “properly advise[ ] that he 

would still have to prepare for trial by obtaining all of his witnesses.” Appellant alleges “[he] was essentially left in the dark.” 

In response to Appellant’s claims, we ordered and received a declaration 

from Appellant’s trial defense counsel. Trial defense counsel’s declaration addressed the specific allegations raised by Appellant and included the “trial 

decision memorandum” initialed and signed by Appellant.

The Sixth Amendment guarantees Appellant the right to effective assistance of counsel. United States v. Gilley, 56 M.J. 113, 124 (C.A.A.F. 2001). In 

assessing the effectiveness of counsel we apply the standard set forth in 

Strickland v. Washington, 466 U.S. 668, 687 (1984), and begin with the presumption of competence announced in United States v. Cronic, 466 U.S. 648, 

658 (1984). See Gilley, 56 M.J. at 124 (citing United States v. Grigoruk, 52 

M.J. 312, 315 (C.A.A.F. 2000)).

We review allegations of ineffective assistance of counsel de novo and utilize the following three-part test to determine whether the presumption of 

competence has been overcome:

1. Are appellant's allegations true; if so, “is there a reasonable explanation for counsel's actions”?

2. If the allegations are true, did defense counsel’s level of advocacy “fall 

measurably below the performance . . . [ordinarily expected] of fallible lawyers”?

 

2 We note the irony in Appellant partially relying on the extenuation and mitigation 

evidence produced by trial defense counsel to demand sentence relief and then subsequently complaining that trial defense counsel’s sentencing preparation and presentencing case was so deficient as to constitute ineffective assistance of counsel.
United States v. Adam, No. ACM 39174

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3. If defense counsel was ineffective, is there “a reasonable probability 

that, absent the errors,” there would have been a different result?

United States v. Gooch, 69 M.J. 353, 362 (C.A.A.F. 2011) (quoting United 

States v. Polk, 32 M.J. 150, 153 (C.M.A. 1991)).

The record in Appellant’s case, to include the declaration of his trial defense counsel and memoranda signed by Appellant, refutes Appellant’s ineffective assistance of counsel allegations.3 Trial defense counsel’s explanations 

and actions in this case were eminently reasonable, and his level of advocacy 

was well within the performance ordinarily expected of fallible lawyers. Appellant was specifically advised early and often about his right to call witnesses on his behalf. Appellant also had plenty of opportunities to raise any 

concerns throughout the trial process. Instead, he repeatedly confirmed that 

he understood his rights, to include calling character witnesses at sentencing;

he was satisfied with his defense counsel’s preparation and advice; and he 

was satisfied with his trial defense counsel. Any concerns Appellant harbored

with respect to his counsel’s preparation, his counsel’s advice, his ability to 

present witness testimony, or the impact of his RILO application on his trial 

remained “in his mind” until after trial. 

Even if trial defense counsel’s representation was ineffective as alleged by 

Appellant, we find no reasonable probability that testimony from unnamed 

witnesses about Appellant’s “good military character, duty performance or 

rehabilitative potential” would have produced a different, more favorable result for Appellant. To the contrary and as indicated by Appellant’s trial defense counsel, a more reasonable probability existed that cross-examination 

of these potential witness would have negatively impacted Appellant’s sentence. 

Accordingly, we find Appellant’s trial defense counsel competently represented Appellant. Appellant’s counsel was presumed to be competent and 

Appellant failed to overcome that presumption.

III. CONCLUSION

The findings of guilt and the sentence are correct in law and fact and no 

error materially prejudicial to the substantial rights of Appellant occurred. 

 

3 Having applied the principles announced in United States v. Ginn, 47 M.J. 236, 248 

(C.A.A.F. 1997), and considering the entire record of Appellant’s trial, a guilty plea 

during which he expressed his satisfaction with trial defense counsel, we find we can 

resolve the issues raised by Appellant without additional fact-finding. 
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Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the 

findings and sentence are AFFIRMED.

FOR THE COURT

KATHLEEN M. POTTER

Deputy Clerk of the Court