## UNITED STATES ARMY COUR T 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 Lewi s (first and second DuBay hearings) Peter E. Brownback III (arrai gnment), Donna M. Wright (trial), Robert J. Smith (first DuBay hearing), David L. Conn (second DuBay hearing), M ilitary Judges Colonel Calvin L. Lewis, Staff Judge Advocate (trial)

Lieutenant Colonel William R. Ke rn, Acting Staff Judge Advocate (first DuBay hearing) Colonel David N. Diner, St aff Judge Advo cate (second DuBay Hearing)

For Appellant: Colo nel Mark Cremin, JA (argued) ; Lieutenant Colonel Mark Tellitocci, JA; Ma jor Allyson G. Lambert, JA (on brief after first DuBay hearing); Captain Frank B. Ulmer (argued); Colonel Jo hn T. Phelps II, JA; Lieutenant Colonel Kirsten V.C. Brunson, JA; Majo r Billy B. Ruhling II, JA; Captain Eric D. Noble (on

brief after second DuBay hearing).

For Appellee: Captai n 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 of ficers convicted appe llant, contrary to his pleas, of attempted larce ny, absence from hi s appointed place of duty on divers occasions, and willful diso bedience of a su perior commissioned officer (two specifications), in violati on of Articles 80, 86, and 9 0, Uniform Code of Military Justice, 10 U.S.C. §§ 880, 886, and 890 [h ereinafter UCMJ]. The convening authority approved th e adjudged sentence to a bad- conduct discharg e and reduction

to Private E1.BAKER – ARMY 9800743

2 PROCEDURAL HISTORY

In our initial review of appellant’s case under Ar ticle 66, UCMJ, this court affirmed the findings and the sentence. United States v. Baker, ARMY 9800743 (Army Ct. Crim. App. 18 Jan. 20 02) (unpub.). The United States Court of Appeals for the Armed Forces (CAAF) granted review as to wh ether appellant received

effective assistance of counse l. On 1 July 2003 , our superior cour t stated it could

not “determine whether the actions of tr ial defense counsel resu lted in a denial of Appellant’s Sixth Amendment ri ght 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 test imony by appellant would present an ethical problem? (2) What i nquiry, if any, did defense counsel make? (3) What f acts were rev ealed by the inquiry? (4) What standard, if any, did defense counsel apply in evaluating those fact s? (5) What determination, if any, did defe nse 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 c ounsel provide to the appellant? (7) What response , if any, did a ppellant make? (8) What information was di sclosed by the two defense counsel during their off-the-r ecord conversati on with the military judge?

Baker , 58 M.J. at 387. On 15 October 2003, a convening author ity ordered a DuBay hearing to address the issues our superior c ourt identified. A mili tary judge held the hearing on 9 January 2004, ente red his findings on 20 Fe bruary 2004, an d returned

the record to this court for fu rther review. We determined en banc that the military judge, by allowing counsel to testify in a conc lusory fashion and expressly declining to delve into specific facts, failed to provide a record on wh ich we could reach a

decision on the merits of appellant’s claims. United States v. Baker , ARMY 9800743 (Army Ct. Crim. App. 11 Ma y 2005) (order) (unpub.).

Accordingly, we returned the record for another DuBay hearing. Id . On 23 September 2005, the conv ening authority ordered a second hearing which a different military judge c onducted on 5 Decemb er 2005. The milit ary 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 tria l defense counsel

acted in accordance with th eir legal and ethical obli gations and (2) appellant

received ineffective assistance of coun sel when his two tr ial defense counsel provided no assistance during his testimon y. After reviewing th e entire record, to

include both DuBay hearings, both mili tary judges’ fi ndings, appellate counsels’ supplemental briefs, and oral arguments, we find appellant’s trial defense counsel provided appellant with effec tive assistance at trial.

BACKGROUND

Captain (CPT) B and CPT M represented appellant at his court-martial. 1
Captain B had served on ac tive duty for approximately four years prior to appellant’s court-martial and as a defense c ounsel on fifteen to twenty courts-martial before appellant’s tria l. She did not practice law pr ior to entering active military service. Captain M, a reservist on active du ty, began practicing la w 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 te stimony of two witnesses, stipulated to the testimony of four other witnes ses, and offered ei ght exhibits into

evidence. Before the close of the defense case, the military ju dge 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 pres ent. Defense counse l told the military judge they could no longer ethically represent appellant and re quested permission to withdraw from the case. The military judge assumed counsel were talk ing about perjured testimony; however, she did not ask c ounsel for specifics and counsel did not proffer any specifics regarding appellan t’s prospective testimony. 2

The proceedings resumed in an Article 39(a) session wi thout the members present. The military judge informed ap pellant his counsel wi shed to withdraw because his counsel expected him to testify inconsistently with prior statements he made to them. Respo nding to questions from the military judge, both counse l 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 forc es, 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 thro ugh which appellant would testify and informed appellant he would testify without the benefit of counsel. She further explained that trial couns el, members, and the military judge could examine appellant, but that his tria l defense counsel could not ar gue to the members anything appellant said during his na rrative. Appellant said he understood the military judge’s explanation and accept ed her offer to discuss th e matter further with his

counsel. After another rece ss, the military j udge confirmed appe llant wanted to testify, called the members to the courtr oom, and called appella nt to the stand. Appellant testified in narr ative form for approximate ly two hours without the

assistance of counsel. He responded to th e prosecution’s detailed cross-examination and answered a series of questions from th e members asked by th e military judge.

The defense rested its case at the conclusion of his testimony. The government offered brief testimony in rebu ttal, calling appellant’s fi rst sergeant who testified that, in his opinion, a ppellant was untruthful.

First DuBay Hearing

At the first DuBay hearing, both CPT B and CPT M refuse d to specify why they concluded appellant woul d testify falsely. Captai n B said she still had an attorney-client relationship with appellant, while CPT M said he “believed he still had an obligation to [appel lant].” Both counsel said the Rules of Professional Conduct of their resp ective bars prohibit ed them from disclosing any confidential communications, 3 even though CPT B acknowledge d appellant had executed a limited waiver, consenting to a “limited disclosure of conf idential communication . . . reasonably necessary for CPT [B] to respond to allegations concerning her representation of [appella nt].” Although appellant’s DuBay defense counsel repeatedly asked the military judge to di rect CPT B and CPT M to provide specific responses, the military judg e 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 co unsel to conclude that there was an ethical problem is mostly conc eptual, although ther e are some specific

3 At the time of trial, CPT B was a memb er of the Texas Bar, while CPT M was a

member of the Utah and Distri ct of Columbia (D.C.) Bars . In accordance with the applicable Rules of Profession al Conduct, counsel were required to try to persuade

an accused to refrain from perjurious testimony. If coun sel could not dissuade an accused, withdrawal may have been an acceptable resolution. See Army Reg. 27-26, Legal Services: Rules of Pr ofessional Conduct for Lawyers [hereina fter AR 27-26], 3.3 cmt (1 May 1992); Utah Code Jud. Admin. Ru le 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 co unsel’s decision.” He explaine d “conceptual” to mean: “I do not have specific instances or matters other than [appe llant’s] inconsistencies in describing the conviction.” Although counsel fa iled to provide any specific details, the military judge fo und “counsel determin ed that they coul d 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 extensiv e findings of fact, which we summarize

as follows:

(1) Both of appellant’ s trial defense counsel thoroughly investigated appellant’s case and were well prep ared to represent him at trial;

(2) While trial defense counsel requested appell ant 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 ar eas of inquir y that were either cumulative or tangential;

(3) Trial defense counsel believed ap pellant would perjure himself by claiming he left his place of duty to get a ha ircut; claiming his unit used the particular type of color prin ter cartridges that appellant allegedly stole; lying about

his 1985 federal convictions for making fa lse, fictitious, and fr audulent statements, and possessing a falsified docu ment to aid someone to obt ain money from the federal

government;

(4) Trial defense counsel based their conclusion regardin g the haircut on appellant’s admission to them on one occasi on that he failed to get a haircut; his subsequent retraction of that admission; a nd his failure to prov ide any corroborating information for his retraction;

(5) Trial defense counsel based their conc lusion that appell ant was untruthful regarding the stolen printer cartridges on: supply room logs revealing the unit never stocked the printer cartridg es in question; informatio n from the supply room noncommissioned officers (NCOs) that no ne of the unit’s computers used those printer cartridges; CPT B’s ob servation that appellant ha d hundreds of color copy resumes and a personal comput er printer that used that type of cartridge in his barracks room; th e discovery of a bag full of pr inter cartridges for appellant’s personal printer that had be en paid for with a governmen t credit card; and the bagBAKER – ARMY 9800743

6 containing the cartridges wa s found in a military vehicl e operated by appellant. After investigating, CPT M i ndependently reached the sa me conclusion as CPT B; 4

(6) Trial defense counsel based their conclusion on appe llant’s veracity regarding his pr ior federal conviction on his varied accounts of the facts underlying

his conviction which confli cted with CPT B’s electroni c research regarding the conviction and documentation the prosecution provided the defense team;

(7) Captain B’s standard for concluding appellant would te stify 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 offens e before she refused to presen t his testimony;

(8) Captain M’s standard was likewise ve ry 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 truthf ulness which CPT B uncovered in her investigation, and prior federa l conviction. At the last moment, appellant changed his mind and decided to testify. Given ap pellant’s unpredictabl e nature, it was not possible for counsel to have ap pellant tailor his testimony;

(10) Both counsel were confident they confronted appellant about his falsehoods prior to trial; and

(11) Consistent with their “fiduciary ob ligations” [sic], both counsel refrained from divulging specifics to the military ju dge at trial. They exercised the best option they saw availa ble to protect themse lves 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 tria l, CPT B and CPT M together confronted appellant about his percei ved falsehoods and could not obtain explanations from him; dur ing the court-martial, appellant notified his defense counsel of his intent to testify; CPT B spec ifically informed appellant during recess

4 The DuBay judge found that CPT B and CPT M accounted for th e supply NCOs’ own credibility issues , and relied heavily on the docu mented fact that appellant’s unit supply room neve r stocked those part icular cartridges.BAKER – ARMY 9800743

7 she could not call him to test ify because she believed he would lie; and both counsel possessed an objective, fi rm, factual basis to conclu de appellant would perjure

himself.

We also find appellant was untruthful re garding the haircut offenses at trial when he testified he got a haircut every tim e he was ordered to ge t one. We further find appellant was un truthful 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 effectivenes s 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 clear ly erroneous standard, but the question of ineffective assistance of counsel flowing from those facts is a question of la w 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 explanatio n for counsel’s action s? (C) If there

is not a reasonable explanation, did defense counsel’s level of advocacy fa ll measurably belo w 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 perfor mance was deficient, the defense must ordinarily surmount the second prong of Strickland , which measures prej udice. The defense

bears the burden of de monstrating that ‘there is a reasonable pr obability that, but for counsel's unprofessional er rors, 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 th e most critical, fo r “‘if we conclude th at any error would not have been prejudicial und er 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 argumen t before this cour t 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 “uniform ly found constitution al error without any showing of prejudice when counsel was either totally absent, or prevented from assisting the accused during a critical stage of the procee ding.” 466 U.S. at 659–60

n.25. 5 In each of thos e cases, however, either state criminal procedure prevented counsel from assisting the accused, or counse l were not present fo r a critical stage of the proceeding through no fault of the accused. Where an acc used is, in part, responsible for the unavailab ility 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 belie ve the client intends to commit perjury before acting in a manner li miting repres entation 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 effo rts to dissuade the client fail, counsel must take appropriate, remedial measures. Firs t, 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 prov ide the court nonspecific notice the client will testify in the free narrative form. See id. at 386. Finally, on ly in situations where the attorney-client rela tionship is irreparably dama ged 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 co unsel confronting a pr oblem with potential client perjury. The court suggested counsel first invest igate the validity of the

evidence to be offered at tria l; if such an investigation provides a firm factual basis to anticipate perjury, counse l 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 obliga tion to tell the truth, possible cr iminal 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 CA AF also noted it was not establishing mandatory practices. Id . at 388.BAKER – ARMY 9800743

9 Not only have we found tr ial defense counsel possessed a firm factual basis to conclude appellant would com mit perjury if he testified, we also hold counsel did not deprive appellant of the effective assistan ce of counsel during his court-martial. Prior to analyzing appellant’ s assignments of error, howe ver, we need to address several procedural aspects of the trial proceedings.

II. Trial Practice

Counsel who are convinced a client intends to co mmit perjury are caught between two conflicting obligations: confidentiality of informatio n 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 du ty to maintain a clie nt’s confidences and

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

rel. Wilcox v. Johnson , 555 F.2d 115, 122 (3 d Cir. 1977) (keeping inviolate client’s ability to communicate confid entially with counsel essen tial to adversary system).

If an accused cannot trust hi s counsel to keep informatio n confidential, the accused

will not disclose c onfidences, 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, 28 1–82, 15 C.M.R. 276, 281–82 (C.M.A. 1954).

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

Baker , 58 M.J. at 385 (citing AR 27-26, Rule 3.3, Rule 3.4(a) (oblig ation of fairness to opposing party and c ounsel)). If an atto rney says nothing to the court and offers perjured testimony in the usual manner, co unsel will have part icipated in a fraud upon the court. See Nix v. Whiteside , 475 U.S. 157, 169, 173 (1986 ) (lawyer complicit in client perjury fa ces prosecution or disciplinary action). In the course of attempting to prevent perjur y, an attorney might disclo se a client’s confidential

communications to the co urt 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 di rectly disclosing specific confidences if at all possible. See Baker , 58 M.J. at 386 (counsel made nonspecific disclosure to court that clie nt will testify in free narrative form);

Johnson , 555 F.2d at 122 (cou nsel should not disclose private conjectures about client to the court); cf. United Stat es v. Midgett , 342 F.3d 321, 326 (4th Cir. 2003) (not lawyer’s place to decide client was ly ing and to disclose that belief to the court based on suspici on of perjury).

An example of an indirect disclosure occurred in the presen t case. Counsel’s motion to withdraw led the military judg e 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 militar y judge instructed CPT B and CPT M to prepare

memoranda for record outlining circumstance s before and after ap pellant’s testimony to assist evaluating potentia l claims regarding ineffective assistance of counsel. At

the first DuBay hearing, both counsel testified they prepar ed a memorandum in accordance with the j udge’s instructions . Due to the passage of time and subsequent events, neither counsel co uld produce their respective memoranda. Although we commend the military ju dge’s foresight, in the future military judges should obtain, seal, and attach such memora nda 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 ba sis 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 expres s and informed co nsent should such a proceeding address areas within the scope of the attorney-client privilege and work product doctrine.

III. Sixth Amendment Right to Eff ective Assistance of Counsel

The Sixth Amendment guarantees a cr iminal appellant the right to the

assistance of counsel at trial. U.S. Const. amend. VI . To satisfy th e 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). Notwiths tanding its Constit utional stature, however, an accused’s right to testify ha s its limi ts. In Whiteside , 475 U.S. at 173, the Supreme Court made cl ear an appellant has no Sixth Amendment right to a counsel willing to participat e in presenting perjured testimony. Ac cordingly, the right to testify includes neither the righ t to commit perjury no r the right to the

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

173.

IV. Suspicions of Perjury

Courts employ a variet y of standards to determ ine whether an attorney justifiably believed a client intended to comm it perjury. See Long , 857 F.2d at 446

7 In civilian proceedings, the re commended practice is to have an ex parte proceeding before a judg e who is not presidin g over the trial. See, e.g ., Carol T. Rieger, Client Perjury: A Proposed Reso lution of the Consti tutional and Ethical Issues, 70 MINN

. L

. REV . 121 (1985); Brian Slipakoff & Roshini Thayaparan, Current Developments 20 01: The Criminal Defense Atto rney Facing Prospective Client Perjury, 15 G EO

. J. L EGAL E THICS 935, 942–43 (2000). At courts-martial, another military judge could be de tailed 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 (Mas s.) (stating same), cert. denied

, 539 U.S. 507 (2003); In re Grievance Committee , 847 F.2d 57, 63 (2d Cir. 1988) (“actual knowledg e” 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 revi ewing this case, th e CAAF announced it “shall not require a higher standard than [t he] firm factual basis” standard discussed

in Johnson

. Baker , 58 M.J. at 386.

When the question of perjur ed testimony by a defendant arises, we require that the lawyer act in good faith and have a firm basis in objecti ve fact. Conjecture or speculation that the defendant intends to testify falsely are not enough. Incons istencies in the ev idence or in the

defendant’s version of events are also not enough to trigger the lawyer's obligation not to e licit false testimony, even though the inconsistencies, considered in light of the Commonwealth’s proof, raise co ncerns in counsel’s mind that the defendant is equivocating and is not an honest person. Similarly, the existence of st rong physical and

forensic evidence im plicating the defend ant 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 12 50–51) (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 changi ng version of the facts. The vary ing accounts were more than merely inconsistent; they were di rectly 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 supp ort 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 MBAKER – ARMY 9800743

12 were entitled to rely on appe llant’s admission that he fa iled to obtain a haircut. See

Mitchell , 781 N.E.2d at 1247 (i nvestigation unnecessary where accused admits guilt). Appellant’s failure to explain his confes sion and its subseq uent retraction

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

We reach the same conclu sion as to appellant’s ex planation of the larceny

offenses. Unlike the hair cut question, appe llant did not admit to stealing the cartridges. His lie, however, involves th e reason he obtained th e cartridges from the Self-Service Supply Center. Appellant’s claim he needed to restock the unit’s supply room since the cartridges were “flyin g off the shelves” is patently untrue. First, the unit records establish it never st ocked that brand of pr inter cartridges, and the supply sergeants told the defense team none of the unit’s co mputers used those cartridges. Second, defense counsel kn ew 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, th en 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 counse l he changed his mind and wanted to testify, CPT B attempted to di ssuade appellant from testifying. CPT B advised him he was not permitted to lie on the stand and expl ained the tactical reasons why he should not testify, to include his prio r conviction and the evidence of his poor character for trut hfulness. She warned appe llant of the repercussions should he insist on testifying falsely, specifically counsel’ s inability to assist him in presenting perjured testimony and losing th e assistance of couns el if he testified falsely. Counsel did not clearly explain to appellan t 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 failur e to advise appellan t more fully of the ramifications of presenting perjured testimony might under other ci rcumstances constitute error, under the specific circ umstances of this ca se we find defense counsel adequately discharged their duties under Strickland

.

Both defense counsel repeatedly conf ronted appellant with their concerns about his proposed testim ony prior to his decision to testify. In the second DuBayBAKER – ARMY 9800743

13 hearing, CPT B told the military judge that appell ant would shrug his shoulders, “would shut down,” or woul d change the subject when counsel confronted him

before trial ab out his lies. 8 Captain B spent several mont hs 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 expr essing his concerns. Counsel tailored the confrontational aspects of their conversations with appellant to convey their message without causing him to “shut do wn” completely. Ap pellant’s initial agreement with counsel’s recommendation not to testify underst andably forestalled

further efforts to extract a tr ue account of events from hi m. When appellant changed his mind mid-trial, counsel ha d less of an oppo rtunity to address his new decision.

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

to address their concerns abou t his testimony with him.

The second DuBay judge, having had the benefi t of observing appellant’s testimony and demea nor under both direct and cross examinat ions, concluded:

appellant’s personal ity and nature, and his inability to follow a narrow, fo cused train of thou ght[,] made it virtually impossible for [CPT M] and CPT [B] to limit

direct examination . . . to avoid poten tial areas of false testimony, especially given the last minute re versal of the

mutual decision that . . . appellant would not testify.

Based upon our review of the record, we agree. Appella nt was unmanageable. Had defense counsel attemp ted to present his te stimony in a controlled manner designed to avoid perjury, they most likely would have failed.

We also note that in the course of receiving ad vice on the in itial offer of nonjudicial punishment, appellant spoke wi th 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 punishme nt for the haircut offenses, appellant twice agreed with defense co unsel 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 challe nge to his veracity prompted CPT M to have appell ant psychiatrically ev aluated. According to the testimony at

the DuBay proceedings, the evaluati on did not indicate appe llant suffered from any

mental disease or de fect impairing his ability to co mmunicate with counsel or to

understand their communications. While c ounsel’s descriptions of appellant’s actions may indicate appellant did not communicate with them , any inabilit y to do so was not due to appellant’s lacki ng the capacity to communicate.BAKER – ARMY 9800743

14 to re-offer nonjudicial punishment pr oceedings, appellant rejected those proceedings.

Both defense counsel had extensive expe rience and characte rized appellant as unique based on his unpr edictable and difficult nature. In response to a question about her ability to work with appellant to guide hi s 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 testim ony that stayed away from those areas; I don’t believe that was possibl e with [appellant]. He was completely

uncontrollable.” She la ter testified “I had never run in to this situat ion before. I had, at this point, tr ied dozens of case s, both as a prosecutor and defense counsel. I had never been in a po sition 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 [h e] 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 fami liar with the legal consequences for making

false statements. He defended himself in his prior federa l prosecution, presented his own appeal after his convicti on, and sought a writ of ce rtiorari from the United States Supreme Court after the appellate court affirm ed his case. Appellant, therefore, was on actual notice that making false statements in an official federal government matter could re sult in criminal liab ility. Failure to reit erate that point to appellant when he decided to disregard co unsel’s advice in th e middle of his courtmartial and testify does not constitute a professional deficien cy on these facts.

Counsel also did not advi se appellant of the risks of testifying in the free

narrative form. While counse l’s advice to appellant coul d 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 be fore obtaining his decision to testify. While neither counsel nor the milita ry judge specifically advised appellant of the t actical problems inherent in free narrative form te stimony, we find

the absence of such advice in this case does not render counsel professionally deficient. In any event, c ounsel advised appell ant he would have to testify without

their assistance and he chose to testify.

Indeed, in the beginn ing of his testimony, appe llant gave a facially plausible reason for his testif ying 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 so ldier and an individua l. So you get to

hear from me.” Even if we were to characterize counse l’s performance as deficient, we cannot say th ere is a reasonable probabil ity 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 twel ve specifications against him and the panel convict ed him of only four. Baker , 58 M.J. at 390. Significantly, the panel found him not guilty of a ll specifications for the offenses of larceny 10 and dereliction of duty, not guilty of al l specifications of

one of the willful di sobedience charges, and not guilty of three of the four specifications of absence from duty. Id . Ironically, therefore, appellant’s perjured testimony re sulted in no prejudice to hi m—it actually inured to his

benefit.

Appellant also wanted to testify in part so he could explain his belief that his unit discriminated against ac tivated Reserve Component So ldiers, despite counsel’s warnings of the problems he would create by doing so. Even af ter counsels’ efforts and attempt to withdraw, appellant did not he ed this advice. It is clear appellant intended to testify and perjure himself no matter what his counsel said. While a difficult and unpred ictable 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 perjur y. Under these f acts, counsel acted properly in accordance with thei r duty of candor to the tribunal.

B. The Motion to Withdraw

The next question is whether counsel acted appr opriately in moving to

withdraw. Withdrawal is a more drastic remedy than the use of the free narrative form, and has the potential effe ct of depriving the client of the assi stance of counsel

for the remainder of the trial. Cf. Baker , 58 M.J. at 386 (notin g some authorities see withdrawal as too disruptive “a nd simply foists th e issue on the next attorney”). Oursuperior court would limit motions to withdraw to situations where the attorneyclient relationship has deteriorated to th e point where effective representation is no longer possible. Id . at 387. Nothin g 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 possib le. The military judg e denied the motion

10 Although the panel could not conclude beyond a reas onable doubt th at 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) (que stion is not whether a different attorney wo uld do a better job, but whether the attorn ey advising accused was professional ly 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 no t have sought to withdraw and only should have notified the military j udge their client woul d testify in the free narrative form, the end result was the same: appellant tes tified, and his counsel did not aid in the presentation of perjured te stimony. There is no reasonable probabi lity of a different

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

not seek to withdraw “unles s the circumstances as a whol e have produced such an

irreconcilable conflict between counsel and the accused that effe ctive representation no longer is possible.” Baker , 58 M.J. at 387.

CONCLUSION

Prior to trial, appellant to ld his defense counsel he fa iled to comply with an order to get a haircut. The unit’s supply records and MSG Hyde’s information established the printer cart ridges in question never entered the supply room. Appellant clearly informed his counsel he in tended 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 partic ipate in appellant’s test imony. Defense counsel’s decision did not depriv e appellant of effective assistan ce of counsel, and his claims

to that effect ar e without merit.

We have reviewed the matters pers onally 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 J udge HOLDEN concur.BAKER – ARMY 9800743

17 MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: