This opinion is subject to administrative correction before final disposition

.

Before HOLIFIELD
, STEWART , and HACKEL Appellate Military Judges

_________________________ 

### UNITED STATES Appellee

v.
Gunnar I. NAUGHTON Sergeant (E

- 5), U.S. Marine Corps Appellant

No. 202100285

_________________________

Decided: 25 October 2022
Appeal from the United States Navy

- Marine Corps Trial Judiciary

Military Judges : Andrea C. Goode (arraignment) Derek A. Poteet (trial)

Sentence adjudged 1 July 2021 by a general court

- martial convened at Marine Corps Base Camp Pendleton
, California , consisting of a military judge sitting alone

. Sentence in the Entry of Judgment : reduction to E

- 1, confinement for 14 months
, forfeiture of all pay and allowances
, and a bad

- conduct di scharge

. 1
For Appellant: Commander Michael E. Maffei , JAGC, USN

1 Appellant was credited with having served 147 days of pretrial confinement.United States v. Naughton , NMCCA No. 202100285 Opinion of the Court

2 For Appellee: Lieutenant Megan E. Martino, JAGC, USN

Lieutenant R. Blake Royall, JAGC, USN Lieutenant John L. Flynn, JAGC, USN

_________________________
This opinion does not serve as binding precedent, but may be cited as persuasive authority under

NMCCA Ru le of Appellate Procedure 30.2.

_________________________

PER CURIAM: Appellant was convicted, in accordance with his pleas, of one specification of dereliction of duty, one specific ation of wrongful disposition of military property, one specification of larceny, and two specifications of obstruction of justice
, in violation of Article s 92, 108, 121 , and 1 31b
, Uniform Code of Military Justice [UCMJ], 2 for stealing 840 rounds of 5.56mm ammuniti on, which was military property; being derelict in his duty by failing to safeguard ammunition; obstruct ing justice by removing evidence from the home of another Marine and asking a Sailor to delete incriminatory communicat ions; and wrongful dispo si ng of mi litary property by throwing a large assortment of ammunition and explosives into a ravine in an effort to avoid detection by law enforcement

. In his sole assignment of error (AOE)
, Appellant argues that his trial defense counsel and civilian de fense counsel were ineffective in failing to submit any matters in clemency for the Conven ing Authority to review, and in failing to pursue a “substantial assistance” r ecommendation from the t rial c ounsel pursuant to Rule for Courts

- Martial [R.C.M.] 1109(e )(2)

. We find no prejudicial

error and affirm.



### I. B ACKGROUND

While serving with 1st Reconn a issance Battalion, 1st Marine Division, Appellant served as an Arms
, Ammunition
, and Explosives [AA&E] Offic er and

was put in charge of a Field Ammunition Supply Point [ F ASP] for his unit’s training at R ange 110 on Camp Pendleton , California

. As the AA&E Officer,

2 10 U.S.C. §§ 892, 908, 921, and 931b.United States v. Naughton , NMCCA No. 202100285 Opinion of the Court

3Appellant controlled and safeguarded the unit’s ammunition, a duty that included collecting unused ammunition at the end of each training day and p reserving it for future use. Between September and December of 2020, Appellant and several other servicemembers stole thousands of rounds of ammunition from the F ASP
, and Appellant falsified logbook entries to cover up the theft s

. In February 2021, Appellant learned that one of the other Marines involved in the thefts, Corporal [ Cpl ] Papa
, had been arrested. 3 Appellant then removed several cans of stolen ammunition from another Marine ’s on

- base house and hid them off base. He also i nstructed Pe tt y Officer Golf , who was also involved in the thefts, to delete group chats on two separate messaging platforms that incriminated Cpl Papa , Appellant, and others. Finally, Appellant dumped thousands of rounds of ammunition and several explosiv es into a ravine in order to avoid detection by law enforcement.At trial, Appellant pleaded guilty to larceny, obstruction of justice, dereliction of duty, and wrongful disposi tion of military property. As part of his plea agreement, Appellant agreed to “fully and truthfully cooperate in any proceeding, to include in

- person interviews with appropriate law enforcement authorities and the trial and defense counsel” involved with any cases arising out of the same underlying conduct for which he was prosecute d. 4 Appellant understood that failure to cooperate on his part would constitute a material breach of his plea agreement. Following his guilty plea, Appellant met with law enforcement authorities pursuant to the plea agreement.



### II. D ISCUSSION

A. Standard of Revie w and the Law
We review claims of ineffective assistance of counsel de novo. 5 To prevail on such a claim, “a n appellant must demons trate both (1) that his counsel’ s performance was deficient, and (2) that this deficiency resulted in prejudice. ” 6 An appellant bears the “ burden of establishing the truth of factual matters

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

4 App. Ex. VI at 11.

5 United States v. Mazza , 6 7 M.J. 470, 474 (C.A.A.F. 2009); United Stat es v. Cooper
, 80 M.J. 664, 672 (N

- M. Ct. Crim. App. 2020).

6 United States v. Green , 68 M.J. 360, 361

- 62 (C.A.A.F. 2010) (citing Strickland v. Washington , 466 U.S. 668, 687 (1984)) (other citation omitted).United States v. Naughton , NMCCA No. 202100285 Opinion of the Court

4 relevant to the claim. ” 7 Only after an appellant has met his burden and has demonstrated both deficiency and prejudi ce can we find in the appellant’ s favor on an ineffective assistanc e of counsel claim. 8 Furthermore, “ [ i ] t is not necessary to decide the issue of deficient performance when it is apparent that the alleged deficiency has not caused prejudice. ” 9 In the military, th e Sixth Amendment right to effective assistance of couns el “ extends to assistance in the preparation and submission of post

- trial matters,” since “[o]ne of the last best chances an appellant has is to argue for clemency by the convening authority.” 10 However, “[j]udicial scrutiny of counsel’s performance must be highly deferential,” and w e “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” 11 To determine if the presumption of competence has been ove rcome , we use the following three

- pronged test: (1) Are [the] appellant ’ s allegations true; if so, is there a reasonable explanati on 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? (3) If a defense counsel was ineffective, is there a reasonable probability that, absent the errors, there would have been a different result ? 12 Appellant’s sentence includes a punitive discharge and confinement for greater than six months, which limits the C onvening A uthority to disapprov-

7 Denedo v. United States , 66 M.J. 114, 128 (C.A.A.F. 2008).

8 Cooper , 80 M.J. at 672.

9 United States v. Bradley , 71 M.J. 13, 16 (C.A.A.F. 2012) (citation omitted)

. See also Strickland , 466 U.S. at 697. (“If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed.”).

10 United States v. Gilley , 56 M.J. 113, 124 (C.A.A.F. 2001) ( internal quotation marks and citations omitted).

11 Strickland v. Washington , 466 U.S. at 689 (1984).

12 Gilley , 56 M.J. at 1 24 ( internal quotation marks and citation omitted )

.United States v. Naughton , NMCCA No. 202100285 Opinion of the Court

5 ing, commuting, or suspending the bad

- conduct discharge only upon the recommendation of t rial c ounsel. 13 This recommendation must be based upon substantial assistance provided in the prosecution of another person. 14 Accordingly, Appellant’s claim of trial defense counsel and civilian defense counsel ineffectiveness is in two parts: first, in failing to pursue a recommendation (in the form of a “substantial assistance letter”) from trial counsel; and second, in not using that recommendation to request clemency from the C onvening A uthority in the form of a suspended bad

- conduct discharge.

B. Counsel Were Not D efi cient Appellant has not established that his trial defense counsel and civilian defense counsel failed to pursue a substantial assistance letter from trial counsel . In his sworn declaration filed in response to Appellant’s allegations, civilian defense co unsel explain ed that he did, in fact, ask trial counsel about obtaining a substantial assistance letter. Trial counsel informed civilian defense counsel that he would discuss it with the senior trial counsel and regional trial counsel , but the letter was n ever written and no one from the G overnment indicated they would provide a letter

. C ivilian d efense c ounsel did not pursue the matter further and the C onvening A uthority approved Appellant’s sentence shortly thereafter.
Civilian d efense c ounsel’s declarat ion provides possible grounds for why the substantial assistance letter was never written. W hile Appellant engaged in two post

- trial proffer sessions with law enforcement, he hesita ted to disclose information about one of the other individuals who had received stolen ammunition from Appellant until th at individual (Appellant ’s father

- in

- law ) obtained legal representation. According to civilian defense counsel , “the special agents, prosecutor, senior trial counsel, and regional trial counsel, wer e angry after the first interview” because Appellant would not disclose the location of othe r missing explosives until legal representation had been secured for his father

- in

- law

. 15 The r egional trial counsel went so far as to email civilian defense counsel about Appellant possibly being non

- compliant with his plea agreement. 16 Given the circumstances of Appellant’s lackluster assistance to law enforcement and the trial counsel ’s reaction , we find it reasonable that trial defense

13 R.C.M. 1109(c) (1).

14 R.C.M. 1109(e) (1)

.

15 Aff. of civilian defense counsel at 4.

16 Id

.United States v. Naughton , NMCCA No. 202100285 Opinion of the Court

6 counsel and civilian defense counsel did not further pursue a substantial assistance letter because they had no reason to believe trial defense counsel would provide one

. Accordingly, we find Appellant has not overcome the strong presumption that trial defense counsel ’s and civilian d efense counsel ’s advocacy fell within the wide range of reasonable professional assistance.

C. Appellant H as N ot D emonstrated Prejudice
Even if we were to find that his counsel were deficient for failing to submitany matters in clemency, Appellant has not demonstrated that he was prejudiced by t his error. 17 Appellant correctly asserts that the C onvening A uthority would only have been able to suspend or disapprove his bad

- conduct discharge upon the recommendation of trial counsel. However, Appellant offers nothing more than speculation in his assertions that (1) trial counsel would have provided a substantial assistance letter if his counsel had further pursued one, and (2 ) the C onvening A uthority would have followed the recommendation and suspended Appellant’ s bad

- conduct discharge. This sort of speculation is insufficient to demonstrate a reasonable probability that the outcome of Appellant’s case would have been differe nt but for his counsel’s alleged error

. 18 Appellant’s cooperation with law enforcement was required by his plea agreement ; the benefit of his assistance was part of that agreement

. Despite this, Appellant intentionally delayed fully cooperating in order to protect his father

- in

- law’s legal interests. As stated, when asked for a letter, trial counsel knew of Appellant’s poor assistance and made his displeasure known. Additionally, in negotiating with the C onvening A uthority for a plea agreement, Appellant agreed with the sentence limitation term that “[t]he minimum discharge to be adjudged for all offenses is a bad

- conduct discharge.” 19 Considering this fact in light of the maximum punishment for Appellant’s offenses including a dishonorable discharge, we re cognize that the C onvening A uthority likely had little inclination to suspend Appellant’s punitive discharge, regardless of a recommendation by trial counsel

. Given these circumstances, we do not find Appellant has demonstrated a reasonable probability tha t (1) trial counsel would have recommended a reduction in sentence , or (2) the C onvening A uthority , if given the opportunity, would have suspend ed Appellant’s bad

-

17 Green , 68 M.J. at 361

- 6 2

.

18 Id. at 362 (“A reasonable probability is a probability sufficient to undermine confidence in the outcome.”) (quoting Strickland , 466 U.S. at 698).

19 App. Ex. VI at 7.United States v. Naughton , NMCCA No. 202100285 Opinion of the Court

7 conduct discharge

. Accordingly , we find Appellant has not established that he was prejudiced by counsels’ alleged error, and that this AOE lacks merit.



### III. C ONCLUSION
After careful consideration of the record and briefs of appellate counsel, we have determined that the findings and sentence are correct in law and fact and that no error materially prejudicial to A ppellant ’s substantial rights occurred. 20

T he findings and sentence are AFFIRMED

.

FOR THE COURT:

MARK K. JAMISON Clerk of Court

20 Articles 59 & 66, UCMJ

.