UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

MAHER, SULLIVAN, and HOLDEN 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Staff Sergeant MICHAEL L. BAKER 

United States Army, Appellant 

ARMY 9800743 

21st Theater Army Area Command (trial) 

I Corps and Fort Lewis (first and second DuBay hearings) 

Peter E. Brownback III (arraignment), Donna M. Wright (trial), Robert J. Smith 

(first DuBay hearing), David L. Conn (second DuBay hearing), Military Judges 

Colonel Calvin L. Lewis, Staff Judge Advocate (trial) 

Lieutenant Colonel William R. Kern, Acting Staff Judge Advocate 

(first DuBay hearing) 

Colonel David N. Diner, Staff Judge Advocate (second DuBay Hearing) 

For Appellant: Colonel Mark Cremin, JA (argued); Lieutenant Colonel Mark 

Tellitocci, JA; Major Allyson G. Lambert, JA (on brief after first DuBay hearing); 

Captain Frank B. Ulmer (argued); Colonel John T. Phelps II, JA; Lieutenant Colonel 

Kirsten V.C. Brunson, JA; Major Billy B. Ruhling II, JA; Captain Eric D. Noble (on 

brief after second DuBay hearing). 

For Appellee: Captain Michael D. Wallace, JA (argued); Lieutenant Colonel Mark 

L. Johnson, JA; Major Natalie A. Kolb, JA (on brief after first DuBay hearing); 

Captain Mark E. Goodson (argued after second DuBay hearing). 

10 July 2007 

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OPINION OF THE COURT ON REMAND 

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MAHER, Senior Judge 

A special court-martial composed of officers convicted appellant, contrary to 

his pleas, of attempted larceny, absence from his appointed place of duty on divers 

occasions, and willful disobedience of a superior commissioned officer (two 

specifications), in violation of Articles 80, 86, and 90, Uniform Code of Military 

Justice, 10 U.S.C. §§ 880, 886, and 890 [hereinafter UCMJ]. The convening 

authority approved the adjudged sentence to a bad-conduct discharge and reduction 

to Private E1. 
BAKER – ARMY 9800743 

2

PROCEDURAL HISTORY

In our initial review of appellant’s case under Article 66, UCMJ, this court 

affirmed the findings and the sentence. United States v. Baker, ARMY 9800743 

(Army Ct. Crim. App. 18 Jan. 2002) (unpub.). The United States Court of Appeals 

for the Armed Forces (CAAF) granted review as to whether appellant received 

effective assistance of counsel. On 1 July 2003, our superior court stated it could 

not “determine whether the actions of trial defense counsel resulted in a denial of 

Appellant’s Sixth Amendment right to the effective assistance of counsel” given the 

record’s posture. United States v. Baker, 58 M.J. 380, 387 (C.A.A.F. 2003). The 

CAAF set aside our decision and remanded the case for a hearing pursuant to United 

States v. DuBay, 17 U.S.C.M.A. 147, 37 C.M.R. 411 (1967), to address the following 

questions: 

(1) What information, if any, led defense counsel to 

perceive that testimony by appellant would present an 

ethical problem? (2) What inquiry, if any, did defense 

counsel make? (3) What facts were revealed by the 

inquiry? (4) What standard, if any, did defense counsel 

apply in evaluating those facts? (5) What determination, 

if any, did defense counsel make with respect to 

prospective testimony by appellant in light of those facts? 

(6) After making any such determination, what 

information and advice, if any, did counsel provide to the 

appellant? (7) What response, if any, did appellant make? 

(8) What information was disclosed by the two defense 

counsel during their off-the-record conversation with the 

military judge? 

Baker, 58 M.J. at 387. On 15 October 2003, a convening authority ordered a DuBay 

hearing to address the issues our superior court identified. A military judge held the 

hearing on 9 January 2004, entered his findings on 20 February 2004, and returned 

the record to this court for further review. We determined en banc that the military 

judge, by allowing counsel to testify in a conclusory fashion and expressly declining 

to delve into specific facts, failed to provide a record on which we could reach a 

decision on the merits of appellant’s claims. United States v. Baker, ARMY 

9800743 (Army Ct. Crim. App. 11 May 2005) (order) (unpub.). 

 Accordingly, we returned the record for another DuBay hearing. Id. On 

23 September 2005, the convening authority ordered a second hearing which a 

different military judge conducted on 5 December 2005. The military judge entered 

his findings on 6 January 2006. 
BAKER – ARMY 9800743 

3

The record is again before us for further review. Appellant asserts: (1) the 

military judges at the DuBay hearings erred in finding that trial defense counsel 

acted in accordance with their legal and ethical obligations and (2) appellant 

received ineffective assistance of counsel when his two trial defense counsel 

provided no assistance during his testimony. After reviewing the entire record, to 

include both DuBay hearings, both military judges’ findings, appellate counsels’ 

supplemental briefs, and oral arguments, we find appellant’s trial defense counsel 

provided appellant with effective assistance at trial. 

BACKGROUND 

Captain (CPT) B and CPT M represented appellant at his court-martial.1

 

Captain B had served on active duty for approximately four years prior to 

appellant’s court-martial and as a defense counsel on fifteen to twenty courts-martial 

before appellant’s trial. She did not practice law prior to entering active military 

service. Captain M, a reservist on active duty, began practicing law in 1982 in Utah 

and had previously tried thirty-five jury trials in federal court and two capital cases 

in state court as a defense attorney. 

During trial on the merits, the defense presented testimony of two witnesses, 

stipulated to the testimony of four other witnesses, and offered eight exhibits into 

evidence. Before the close of the defense case, the military judge granted a defense 

request for “a short recess.” During the recess, appellant consulted with his counsel; 

appellant’s counsel then engaged in ex parte communications with the military judge 

without appellant present. Defense counsel told the military judge they could no 

longer ethically represent appellant and requested permission to withdraw from the 

case. The military judge assumed counsel were talking about perjured testimony; 

however, she did not ask counsel for specifics and counsel did not proffer any 

specifics regarding appellant’s prospective testimony.2

The proceedings resumed in an Article 39(a) session without the members 

present. The military judge informed appellant his counsel wished to withdraw 

because his counsel expected him to testify inconsistently with prior statements he 

made to them. Responding to questions from the military judge, both counsel stated 

they could not ethically call appellant to the stand to testify. The military judge 

 

1

 Although CPT B is no longer a member of the armed forces, all references are to 

her military rank at the time of the court-martial. Additionally, CPT M has been 

promoted to major. We will also refer to him by his rank at the time of appellant’s 

court-martial. 

2

 The military judge later testified about these events at the first DuBay hearing. 
BAKER – ARMY 9800743 

4

explained the narrative procedure through which appellant would testify and 

informed appellant he would testify without the benefit of counsel. She further 

explained that trial counsel, members, and the military judge could examine 

appellant, but that his trial defense counsel could not argue to the members anything 

appellant said during his narrative. Appellant said he understood the military 

judge’s explanation and accepted her offer to discuss the matter further with his 

counsel. After another recess, the military judge confirmed appellant wanted to 

testify, called the members to the courtroom, and called appellant to the stand. 

Appellant testified in narrative form for approximately two hours without the 

assistance of counsel. He responded to the prosecution’s detailed cross-examination 

and answered a series of questions from the members asked by the military judge. 

The defense rested its case at the conclusion of his testimony. The government 

offered brief testimony in rebuttal, calling appellant’s first sergeant who testified 

that, in his opinion, appellant was untruthful. 

First DuBay Hearing 

At the first DuBay hearing, both CPT B and CPT M refused to specify why 

they concluded appellant would testify falsely. Captain B said she still had an 

attorney-client relationship with appellant, while CPT M said he “believed he still 

had an obligation to [appellant].” Both counsel said the Rules of Professional 

Conduct of their respective bars prohibited them from disclosing any confidential 

communications,3

 even though CPT B acknowledged appellant had executed a 

limited waiver, consenting to a “limited disclosure of confidential communication 

. . . reasonably necessary for CPT [B] to respond to allegations concerning her 

representation of [appellant].” Although appellant’s DuBay defense counsel 

repeatedly asked the military judge to direct CPT B and CPT M to provide specific 

responses, the military judge failed to order specific responses, stating he was 

unsure whether he had the authority to do so. 

The military judge found “the information that led counsel to conclude that 

there was an ethical problem is mostly conceptual, although there are some specific 

 

3

 At the time of trial, CPT B was a member of the Texas Bar, while CPT M was a 

member of the Utah and District of Columbia (D.C.) Bars. In accordance with the 

applicable Rules of Professional Conduct, counsel were required to try to persuade 

an accused to refrain from perjurious testimony. If counsel could not dissuade an 

accused, withdrawal may have been an acceptable resolution. See Army Reg. 27-26, 

Legal Services: Rules of Professional Conduct for Lawyers [hereinafter AR 27-26], 

3.3 cmt (1 May 1992); Utah Code Jud. Admin. Rule 3.3 cmt; D.C. Bar Appx. A, Rule 

3.3 cmt; Tex. R. Prof. Conduct 3.03 cmt. 
BAKER – ARMY 9800743 

5

facts that support counsel’s decision.” He explained “conceptual” to mean: “I do 

not have specific instances or matters other than [appellant’s] inconsistencies in 

describing the conviction.” Although counsel failed to provide any specific details, 

the military judge found “counsel determined that they could not ethically call 

[appellant] to the stand.” 

Second DuBay Hearing 

At the second DuBay hearing, CPT B and CPT M testified with greater 

specificity. The DuBay judge made extensive findings of fact, which we summarize 

as follows: 

(1) Both of appellant’s trial defense counsel thoroughly investigated 

appellant’s case and were well prepared to represent him at trial; 

(2) While trial defense counsel requested appellant provide details and 

specific information to prepare his defense, he did not do so until the day of trial, 

and then provided a binder of documents and proposed areas of inquiry that were 

either cumulative or tangential; 

(3) Trial defense counsel believed appellant would perjure himself by 

claiming he left his place of duty to get a haircut; claiming his unit used the 

particular type of color printer cartridges that appellant allegedly stole; lying about 

his 1985 federal convictions for making false, fictitious, and fraudulent statements, 

and possessing a falsified document to aid someone to obtain money from the federal 

government; 

(4) Trial defense counsel based their conclusion regarding the haircut on 

appellant’s admission to them on one occasion that he failed to get a haircut; his 

subsequent retraction of that admission; and his failure to provide any corroborating 

information for his retraction; 

(5) Trial defense counsel based their conclusion that appellant was untruthful 

regarding the stolen printer cartridges on: supply room logs revealing the unit never 

stocked the printer cartridges in question; information from the supply room 

noncommissioned officers (NCOs) that none of the unit’s computers used those 

printer cartridges; CPT B’s observation that appellant had hundreds of color copy 

resumes and a personal computer printer that used that type of cartridge in his 

barracks room; the discovery of a bag full of printer cartridges for appellant’s 

personal printer that had been paid for with a government credit card; and the bag 
BAKER – ARMY 9800743 

6

containing the cartridges was found in a military vehicle operated by appellant. 

After investigating, CPT M independently reached the same conclusion as CPT B;4

(6) Trial defense counsel based their conclusion on appellant’s veracity 

regarding his prior federal conviction on his varied accounts of the facts underlying 

his conviction which conflicted with CPT B’s electronic research regarding the 

conviction and documentation the prosecution provided the defense team; 

(7) Captain B’s standard for concluding appellant would testify falsely was 

whether she knew her client would lie, which she saw as a high standard of proof. 

She did not believe her client had to admit guilt to an underlying offense before she 

refused to present his testimony; 

(8) Captain M’s standard was likewise very high, akin to beyond a reasonable 

doubt, and he also did not believe the analysis depended on whether his client 

admitted guilt; 

(9) Trial defense counsel and appellant originally agreed, as a tactical 

decision, appellant would not testify because of appellant’s “very desultory thought 

process,” poor character for truthfulness which CPT B uncovered in her 

investigation, and prior federal conviction. At the last moment, appellant changed 

his mind and decided to testify. Given appellant’s unpredictable nature, it was not 

possible for counsel to have appellant tailor his testimony; 

(10) Both counsel were confident they confronted appellant about his 

falsehoods prior to trial; and 

(11) Consistent with their “fiduciary obligations” [sic], both counsel refrained 

from divulging specifics to the military judge at trial. They exercised the best 

option they saw available to protect themselves and appellant. 

Summary 

We adopt the second DuBay judge’s findings of fact. In addition, based on 

the entire record before us, we conclude: prior to trial, CPT B and CPT M together 

confronted appellant about his perceived falsehoods and could not obtain 

explanations from him; during the court-martial, appellant notified his defense 

counsel of his intent to testify; CPT B specifically informed appellant during recess 

 

4

 The DuBay judge found that CPT B and CPT M accounted for the supply NCOs’ 

own credibility issues, and relied heavily on the documented fact that appellant’s 

unit supply room never stocked those particular cartridges. 
BAKER – ARMY 9800743 

7

she could not call him to testify because she believed he would lie; and both counsel 

possessed an objective, firm, factual basis to conclude appellant would perjure 

himself. 

We also find appellant was untruthful regarding the haircut offenses at trial 

when he testified he got a haircut every time he was ordered to get one. We further 

find appellant was untruthful when he testified he regularly placed the printer 

cartridges on the shelves in the supply room and they regularly disappeared over the 

course of the following month. 

DISCUSSION 

A determination regarding the effectiveness of counsel is a mixed question of 

law and fact. Strickland v. Washington, 466 U.S. 668, 698 (1984) (establishing a 

two-prong test for determining ineffective assistance of counsel); United States v. 

Wean, 45 M.J. 461, 463 (C.A.A.F. 1997); United States v. Dobrava, 64 M.J. 503 

(Army Ct. Crim. App. 2006). We review findings of fact under a clearly erroneous 

standard, but the question of ineffective assistance of counsel flowing from those 

facts is a question of law we review de novo. United States v. McClain, 50 M.J. 

483, 487 (C.A.A.F. 1999). 

Under the first prong of Strickland, which examines the 

issue of deficiency in performance, we ask: (A) Are 

appellant’s allegations true? (B) If so, is there a 

reasonable explanation for counsel’s actions? (C) If there 

is not a reasonable explanation, did defense counsel’s 

level of advocacy fall measurably below the performance 

ordinarily expected of fallible lawyers? 

United States v. Dobson, 63 M.J. 1, 10 (C.A.A.F. 2006) (citing United States v. 

Grigoruk, 56 M.J. 304, 307 (C.A.A.F. 2002), and United States v. Polk, 32 M.J. 150, 

153 (C.M.A. 1991)). 

 “Even if counsel’s performance was deficient, the defense must ordinarily 

surmount the second prong of Strickland, which measures prejudice. The defense 

bears the burden of demonstrating that ‘there is a reasonable probability that, but for 

counsel's unprofessional errors, the result of the proceeding would have been 

different.’” 63 M.J. at 10 (quoting Strickland, 466 U.S. at 694). In most cases, the 

prejudice prong is the most critical, for “‘if we conclude that any error would not 

have been prejudicial under the second prong of Strickland, we need not ascertain 

the validity of the allegations or grade the quality of counsel’s performance under 

the first prong.’” Id. (quoting United States v. Saintaude, 61 M.J. 175, 179-80 

(C.A.A.F. 2005)). 
BAKER – ARMY 9800743 

8

During oral argument before this court after the second DuBay hearing, 

appellate defense counsel urged us to follow United States Supreme Court dicta in 

United States v. Cronic, 466 U.S. 648 (1984). In a Cronic footnote, the Supreme 

Court cited several cases where it “uniformly found constitutional error without any 

showing of prejudice when counsel was either totally absent, or prevented from 

assisting the accused during a critical stage of the proceeding.” 466 U.S. at 659–60 

n.25.5

 In each of those cases, however, either state criminal procedure prevented 

counsel from assisting the accused, or counsel were not present for a critical stage of 

the proceeding through no fault of the accused. Where an accused is, in part, 

responsible for the unavailability of his counsel, as in an instance of prospective 

perjury, we will apply Strickland and test for prejudice. 

I. The Legal Standard 

An attorney must have a firm factual basis to believe the client intends to 

commit perjury before acting in a manner limiting representation of a client and 

must first attempt to dissuade the client from committing perjury. See Baker, 58 

M.J. at 387–88.6

 Should counsel’s efforts to dissuade the client fail, counsel must 

take appropriate, remedial measures. First, the attorney should try to structure the 

client’s testimony to avoid areas where the client will commit perjury. Should this 

prove impossible, the next step is to provide the court nonspecific notice the client 

will testify in the free narrative form. See id. at 386. Finally, only in situations 

where the attorney-client relationship is irreparably damaged should counsel seek to 

withdraw. See id. at 387. 

 

5 See Geders v. United States, 425 U.S. 80 (1976); Herring v. New York, 422 U.S. 

853 (1975); Brooks v. Tennessee, 406 U.S. 605, 612–13 (1972); Hamilton v. 

Alabama, 368 U.S. 52, 55 (1961); White v. Maryland, 373 U.S. 59, 60 (1963) (per 

curiam); Ferguson v. Georgia, 365 U.S. 570 (1961); Williams v. Kaiser, 323 U.S. 

471, 475–76 (1945). 

6

 The CAAF also provided guidance for counsel confronting a problem with potential 

client perjury. The court suggested counsel first investigate the validity of the 

evidence to be offered at trial; if such an investigation provides a firm factual basis 

to anticipate perjury, counsel should discuss the issue with the client and review the 

facts, the basis for the attorney’s concern, and potential consequences for the client, 

such as the obligation to tell the truth, possible criminal sanctions, trial tactics, and 

the effect of narrative testimony; should the client persist in testifying, the attorney 

should request an ex parte proceeding on the record with the accused in attendance. 

Baker, 58 M.J. at 387. The CAAF also noted it was not establishing mandatory 

practices. Id. at 388. 
BAKER – ARMY 9800743 

9

Not only have we found trial defense counsel possessed a firm factual basis to 

conclude appellant would commit perjury if he testified, we also hold counsel did 

not deprive appellant of the effective assistance of counsel during his court-martial. 

Prior to analyzing appellant’s assignments of error, however, we need to address 

several procedural aspects of the trial proceedings. 

II. Trial Practice 

Counsel who are convinced a client intends to commit perjury are caught 

between two conflicting obligations: confidentiality of information and candor 

toward the tribunal. See AR 27-26, Rule 1.6 (confidentiality of information); Rule 3.3 

(candor toward the tribunal). A lawyer’s duty to maintain a client’s confidences and 

secrets is a cornerstone of building trust and communication. See United States ex 

rel. Wilcox v. Johnson, 555 F.2d 115, 122 (3d Cir. 1977) (keeping inviolate client’s 

ability to communicate confidentially with counsel essential to adversary system). 

If an accused cannot trust his counsel to keep information confidential, the accused 

will not disclose confidences, limiting counsel’s ability to render effective 

assistance. Military Rule of Evidence 502(a); see generally United States v. 

Marrelli, 4 U.S.C.M.A. 276, 281–82, 15 C.M.R. 276, 281–82 (C.M.A. 1954). 

As officers of the court, counsel also have a duty not to offer false testimony. 

Baker, 58 M.J. at 385 (citing AR 27-26, Rule 3.3, Rule 3.4(a) (obligation of fairness 

to opposing party and counsel)). If an attorney says nothing to the court and offers 

perjured testimony in the usual manner, counsel will have participated in a fraud 

upon the court. See Nix v. Whiteside, 475 U.S. 157, 169, 173 (1986) (lawyer 

complicit in client perjury faces prosecution or disciplinary action). In the course of 

attempting to prevent perjury, an attorney might disclose a client’s confidential 

communications to the court either directly or indirectly, depending on the tactical 

approach counsel takes to the problem. See United States v. Long, 857 F.2d 436, 

447 (8th Cir. 1988) (moving to withdraw or having client testify in narrative form 

discloses suspicion of perjury). Counsel should refrain from directly disclosing 

specific confidences if at all possible. See Baker, 58 M.J. at 386 (counsel made 

nonspecific disclosure to court that client will testify in free narrative form);

Johnson, 555 F.2d at 122 (counsel should not disclose private conjectures about 

client to the court); cf. United States v. Midgett, 342 F.3d 321, 326 (4th Cir. 2003) 

(not lawyer’s place to decide client was lying and to disclose that belief to the court 

based on suspicion of perjury). 

An example of an indirect disclosure occurred in the present case. Counsel’s 

motion to withdraw led the military judge to suspect potential perjury, which 

constitutes at least an implied revelation of client confidences. Notification of the 

accused’s intent to testify in the narrative form would also have led the military 

judge to suspect potential perjury. 
BAKER – ARMY 9800743 

10

 At trial, the military judge instructed CPT B and CPT M to prepare 

memoranda for record outlining circumstances before and after appellant’s testimony 

to assist evaluating potential claims regarding ineffective assistance of counsel. At 

the first DuBay hearing, both counsel testified they prepared a memorandum in 

accordance with the judge’s instructions. Due to the passage of time and subsequent 

events, neither counsel could produce their respective memoranda. Although we 

commend the military judge’s foresight, in the future military judges should obtain, 

seal, and attach such memoranda as appellate exhibits. Baker, 58 M.J. at 388. 

Where a military judge is not the trier of fact, an ex parte proceeding to ensure 

counsel has a firm factual basis for believing the client will commit perjury may be 

appropriate. United States v. Roberts, 20 M.J. 689, 691–92 (A.C.M.R. 1985); see 

United States v. Elzy, 25 M.J. 416 (C.M.A. 1988); Lowery v Cardwell, 575 F.2d 727 

(9th Cir. 1978).7 Only with the accused’s express and informed consent should such 

a proceeding address areas within the scope of the attorney-client privilege and work 

product doctrine. 

III. Sixth Amendment Right to Effective Assistance of Counsel

The Sixth Amendment guarantees a criminal appellant the right to the 

assistance of counsel at trial. U.S. Const. amend. VI. To satisfy the guarantee of 

the Sixth Amendment, counsel must provide effective assistance. Strickland, 466 

U.S. at 686. An accused also has a Constitutional right to testify. Harris v. New 

York, 401 U.S. 222, 225 (1971). Notwithstanding its Constitutional stature, 

however, an accused’s right to testify has its limits. In Whiteside, 475 U.S. at 173, 

the Supreme Court made clear an appellant has no Sixth Amendment right to a 

counsel willing to participate in presenting perjured testimony. Accordingly, the 

right to testify includes neither the right to commit perjury nor the right to the 

assistance of counsel in doing so. Harris, 401 U.S. at 225; Whiteside, 475 U.S. at 

173. 

IV. Suspicions of Perjury

 Courts employ a variety of standards to determine whether an attorney 

justifiably believed a client intended to commit perjury. See Long, 857 F.2d at 446 

 

7

 In civilian proceedings, the recommended practice is to have an ex parte

proceeding before a judge who is not presiding over the trial. See, e.g., Carol T. 

Rieger, Client Perjury: A Proposed Resolution of the Constitutional and Ethical 

Issues, 70 MINN. L. REV. 121 (1985); Brian Slipakoff & Roshini Thayaparan, Current 

Developments 2001: The Criminal Defense Attorney Facing Prospective Client 

Perjury, 15 GEO. J. LEGAL ETHICS 935, 942–43 (2000). At courts-martial, another 

military judge could be detailed for such hearings. 
BAKER – ARMY 9800743 

11

(“firm factual basis” standard); Johnson, 555 F.2d at 122 (stating same);

Commonwealth v. Mitchell, 781 N.E.2d 1237 (Mass.) (stating same), cert. denied, 

539 U.S. 507 (2003); In re Grievance Committee, 847 F.2d 57, 63 (2d Cir. 1988) 

(“actual knowledge” standard); Iowa v. Hischke, 639 N.W.2d 6 (Iowa 2002) 

(“convinced with good cause” standard); Wisconsin v. McDowell, 681 N.W.2d 5 

(Wisc. 2004) (requiring express admission that accused intends to commit perjury); 

Shockley v. Delaware, 565 A.2d 1373 (Del. 1989) (beyond a reasonable doubt 

standard); Illinois v. Calhoun, 815 N.E.2d 492 (Ill. App. 2004) (“good faith 

determination” standard). In previously reviewing this case, the CAAF announced it 

“shall not require a higher standard than [the] firm factual basis” standard discussed 

in Johnson. Baker, 58 M.J. at 386. 

When the question of perjured testimony by a defendant 

arises, we require that the lawyer act in good faith and 

have a firm basis in objective fact. Conjecture or 

speculation that the defendant intends to testify falsely are 

not enough. Inconsistencies in the evidence or in the 

defendant’s version of events are also not enough to 

trigger the lawyer's obligation not to elicit false testimony, 

even though the inconsistencies, considered in light of the 

Commonwealth’s proof, raise concerns in counsel’s mind 

that the defendant is equivocating and is not an honest 

person. Similarly, the existence of strong physical and 

forensic evidence implicating the defendant would not be 

sufficient. Counsel can rely on facts made known to him, 

and is under no duty to conduct an independent 

investigation. 

Calhoun, 815 N.E.2d at 503 (quoting Mitchell, 781 N.E.2d at 1250–51) (calling for 

Illinois Supreme Court to adopt firm factual basis test). 

V. Counsel’s Firm Factual Basis 

 In appellant’s case, CPT B and CPT M obtained proof of appellant’s 

falsehoods through their investigations which were further complicated by 

appellant’s constantly changing version of the facts. The varying accounts were 

more than merely inconsistent; they were directly contradictory. As defense counsel 

observed, the contradictions rendered appellant’s story “physically impossible.” 

Further, appellant confessed to an instance of failing to obtain a haircut and, despite 

his subsequent recantation, never provided any evidence to support his retraction. 

While inconsistencies alone are insufficient to justify a motion to withdraw, 

appellant’s inconsistencies included an admission of guilt. Captain B and CPT M 
BAKER – ARMY 9800743 

12

were entitled to rely on appellant’s admission that he failed to obtain a haircut. See 

Mitchell, 781 N.E.2d at 1247 (investigation unnecessary where accused admits 

guilt). Appellant’s failure to explain his confession and its subsequent retraction 

further solidified his counsel’s basis to conclude he would lie. 

 

 We reach the same conclusion as to appellant’s explanation of the larceny 

offenses. Unlike the haircut question, appellant did not admit to stealing the 

cartridges. His lie, however, involves the reason he obtained the cartridges from the 

Self-Service Supply Center. Appellant’s claim he needed to restock the unit’s 

supply room since the cartridges were “flying off the shelves” is patently untrue. 

First, the unit records establish it never stocked that brand of printer cartridges, and 

the supply sergeants told the defense team none of the unit’s computers used those 

cartridges. Second, defense counsel knew appellant used a large number of 

cartridges of the same type as the stolen ones. 

 Appellant’s case closely resembles Commonwealth v. Mitchell. Like Mitchell, 

appellant confessed to one of his offenses to his counsel, then denied it. The 

Mitchell court determined “[t]he defendant’s admission was different in kind from 

inconsistencies in details.” 781 N.E.2d at 1247. Such is the case here; appellant’s 

admission that he did not get a haircut when ordered to do so is not the same as 

giving varying accounts of the same denial of wrongdoing. 

VI. Counsel’s Actions Based on the Firm Factual Basis

A. Attempt to Dissuade 

 During the recess, when appellant told his counsel he changed his mind and 

wanted to testify, CPT B attempted to dissuade appellant from testifying. CPT B 

advised him he was not permitted to lie on the stand and explained the tactical 

reasons why he should not testify, to include his prior conviction and the evidence 

of his poor character for truthfulness. She warned appellant of the repercussions 

should he insist on testifying falsely, specifically counsel’s inability to assist him in 

presenting perjured testimony and losing the assistance of counsel if he testified 

falsely. Counsel did not clearly explain to appellant which portions of his 

prospective testimony they believed to be perjurious. Neither CPT B nor CPT M 

testified they advised appellant of the potential criminal sanctions he might face if 

he committed perjury. While this failure to advise appellant more fully of the 

ramifications of presenting perjured testimony might under other circumstances 

constitute error, under the specific circumstances of this case we find defense 

counsel adequately discharged their duties under Strickland. 

 Both defense counsel repeatedly confronted appellant with their concerns 

about his proposed testimony prior to his decision to testify. In the second DuBay
BAKER – ARMY 9800743 

13

hearing, CPT B told the military judge that appellant would shrug his shoulders, 

“would shut down,” or would change the subject when counsel confronted him 

before trial about his lies.8 Captain B spent several months with appellant preparing 

his case and clearly relayed her concerns to him; CPT M had a less-involved history 

with appellant, but was no less clear in expressing his concerns. Counsel tailored 

the confrontational aspects of their conversations with appellant to convey their 

message without causing him to “shut down” completely. Appellant’s initial 

agreement with counsel’s recommendation not to testify understandably forestalled 

further efforts to extract a true account of events from him. When appellant changed 

his mind mid-trial, counsel had less of an opportunity to address his new decision. 

Counsel’s initial confrontations with appellant, however, suffice to satisfy their duty 

to address their concerns about his testimony with him. 

The second DuBay judge, having had the benefit of observing appellant’s 

testimony and demeanor under both direct and cross examinations, concluded: 

appellant’s personality and nature, and his inability to 

follow a narrow, focused train of thought[,] made it 

virtually impossible for [CPT M] and CPT [B] to limit 

direct examination . . . to avoid potential areas of false 

testimony, especially given the last minute reversal of the 

mutual decision that . . . appellant would not testify. 

Based upon our review of the record, we agree. Appellant was unmanageable. Had 

defense counsel attempted to present his testimony in a controlled manner designed 

to avoid perjury, they most likely would have failed. 

 We also note that in the course of receiving advice on the initial offer of 

nonjudicial punishment, appellant spoke with every defense counsel in the local 

Trial Defense Service office, meaning he spoke with at least two other attorneys 

before returning to CPT B. After initially demanding his right to trial by courtmartial when offered nonjudicial punishment for the haircut offenses, appellant 

twice agreed with defense counsel to accept nonjudicial punishment proceedings in 

lieu of the court-martial. Each time defense counsel persuaded appellant’s command 

 

8

 Notably, appellant’s reticence in the face of a challenge to his veracity prompted 

CPT M to have appellant psychiatrically evaluated. According to the testimony at 

the DuBay proceedings, the evaluation did not indicate appellant suffered from any 

mental disease or defect impairing his ability to communicate with counsel or to 

understand their communications. While counsel’s descriptions of appellant’s 

actions may indicate appellant did not communicate with them, any inability to do so 

was not due to appellant’s lacking the capacity to communicate. 
BAKER – ARMY 9800743 

14

to re-offer nonjudicial punishment proceedings, appellant rejected those 

proceedings. 

 Both defense counsel had extensive experience and characterized appellant as 

unique based on his unpredictable and difficult nature. In response to a question 

about her ability to work with appellant to guide his testimony away from areas 

where he would lie, CPT B testified “[t]here are some witnesses that I think I 

probably could have worked with . . . to create testimony that stayed away from 

those areas; I don’t believe that was possible with [appellant]. He was completely 

uncontrollable.” She later testified “I had never run into this situation before. I 

had, at this point, tried dozens of cases, both as a prosecutor and defense counsel. I 

had never been in a position where I felt I could not call anyone to the stand, with 

the exception of [appellant].” Captain M referred to appellant as “[t]he most 

difficult” client, and stated he “had never been in the position where [he] requested 

a withdrawal from the court.”9

 

 Regarding counsel’s duty to advise appellant of potential criminal sanctions, 

it is important to note appellant was familiar with the legal consequences for making 

false statements. He defended himself in his prior federal prosecution, presented his 

own appeal after his conviction, and sought a writ of certiorari from the United 

States Supreme Court after the appellate court affirmed his case. Appellant, 

therefore, was on actual notice that making false statements in an official federal 

government matter could result in criminal liability. Failure to reiterate that point to 

appellant when he decided to disregard counsel’s advice in the middle of his courtmartial and testify does not constitute a professional deficiency on these facts. 

 Counsel also did not advise appellant of the risks of testifying in the free 

narrative form. While counsel’s advice to appellant could have been more complete 

under the Baker standard, we find they adequately discharged their duties. The 

military judge explained the free narrative form to appellant before obtaining his 

decision to testify. While neither counsel nor the military judge specifically advised 

appellant of the tactical problems inherent in free narrative form testimony, we find 

the absence of such advice in this case does not render counsel professionally 

deficient. In any event, counsel advised appellant he would have to testify without 

their assistance and he chose to testify. 

 Indeed, in the beginning of his testimony, appellant gave a facially 

plausible reason for his testifying in the free narrative form: “I chose to give a 

category [sic] explanation to you gentleman [sic] for each individual charge 

 

9

 The latter quotation from CPT M’s testimony comes from the first DuBay hearing, 

while the former comes from the second DuBay hearing. 
BAKER – ARMY 9800743 

15

because you’re here to judge me as a soldier and an individual. So you get to 

hear from me.” Even if we were to characterize counsel’s performance as 

deficient, we cannot say there is a reasonable probability of a different result 

based on their advice to appellant. See Strickland, 466 U.S. at 694; Saintaude, 

61 M.J. at 175–76. In fact, appellant contested all twelve specifications against 

him and the panel convicted him of only four. Baker, 58 M.J. at 390. 

Significantly, the panel found him not guilty of all specifications for the 

offenses of larceny10 and dereliction of duty, not guilty of all specifications of 

one of the willful disobedience charges, and not guilty of three of the four 

specifications of absence from duty. Id. Ironically, therefore, appellant’s 

perjured testimony resulted in no prejudice to him—it actually inured to his 

benefit. 

 Appellant also wanted to testify in part so he could explain his belief that his 

unit discriminated against activated Reserve Component Soldiers, despite counsel’s 

warnings of the problems he would create by doing so. Even after counsels’ efforts 

and attempt to withdraw, appellant did not heed this advice. It is clear appellant 

intended to testify and perjure himself no matter what his counsel said. While a 

difficult and unpredictable client does not forfeit his right to effective assistance of 

counsel, we are satisfied there is nothing CPT B or CPT M could have done to 

prevent appellant from committing perjury. Under these facts, counsel acted 

properly in accordance with their duty of candor to the tribunal. 

B. The Motion to Withdraw 

 The next question is whether counsel acted appropriately in moving to 

withdraw. Withdrawal is a more drastic remedy than the use of the free narrative 

form, and has the potential effect of depriving the client of the assistance of counsel 

for the remainder of the trial. Cf. Baker, 58 M.J. at 386 (noting some authorities see 

withdrawal as too disruptive “and simply foists the issue on the next attorney”). Our 

superior court would limit motions to withdraw to situations where the attorneyclient relationship has deteriorated to the point where effective representation is no 

longer possible. Id. at 387. Nothing indicates such was the case here. Counsels’ 

decision to withdraw was premature. 

 Nevertheless, counsel moved to withdraw in a manner that preserved 

appellant’s confidences as much as possible. The military judge denied the motion 

 

10 Although the panel could not conclude beyond a reasonable doubt that appellant 

committed the larcenies, their findings of not guilty do not cause us to question CPT 

B and CPT M’s decision, or our own conclusion that counsel had a firm factual basis 

to believe appellant would perjure himself when testifying about these charges. 
BAKER – ARMY 9800743 

16

to withdraw, leaving appellant in the same position he would have occupied had 

counsel initially chosen the free narrative form. We do not fault counsel for their 

no-notice decision in the middle of this hotly contested trial. See United States v. 

Young, 50 M.J. 717, 725 (Army Ct. Crim. App. 1999) (question is not whether a 

different attorney would do a better job, but whether the attorney advising accused 

was professionally deficient), aff’d, 58 M.J. 15 (C.A.A.F. 2002) (summary 

disposition). Counsels’ performance in this case did not “fall measurably below the 

performance normally expected of fallible lawyers.” Dobson, 63 M.J. at 10 (quoting 

Grigoruk, 56 M.J. at 307; Polk, 32 M.J. at 153). 

 While counsel should not have sought to withdraw and only should have 

notified the military judge their client would testify in the free narrative form, the 

end result was the same: appellant testified, and his counsel did not aid in the 

presentation of perjured testimony. There is no reasonable probability of a different 

result if counsel had made the ideal motion. In the future, however, counsel should 

not seek to withdraw “unless the circumstances as a whole have produced such an 

irreconcilable conflict between counsel and the accused that effective representation 

no longer is possible.” Baker, 58 M.J. at 387. 

CONCLUSION 

Prior to trial, appellant told his defense counsel he failed to comply with an 

order to get a haircut. The unit’s supply records and MSG Hyde’s information 

established the printer cartridges in question never entered the supply room. 

Appellant clearly informed his counsel he intended to testify to the contrary on these 

matters and changed his mind in the middle of the trial to reverse his decision not to 

testify and drastically altered the defense trial strategy. Under these circumstances, 

his counsel could not participate in appellant’s testimony. Defense counsel’s 

decision did not deprive appellant of effective assistance of counsel, and his claims 

to that effect are without merit. 

We have reviewed the matters personally raised by appellant under United 

States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and find them to be without merit. 

DECISION 

The findings of guilty and the sentence are affirmed. 

 

Judge SULLIVAN and Judge HOLDEN concur. 

 
BAKER – ARMY 9800743 

17

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: