UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

COOK, TELLITOCCI, and HAIGHT 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Staff Sergeant RASHAD J. VALMONT 

United States Army, Appellant 

ARMY 20110644 

Headquarters, 3rd Infantry Division and Fort Stewart 

James L. Pohl, Military Judge 

Lieutenant Colonel Shane E. Bartee, Staff Judge Advocate 

For Appellant: Lieutenant Colonel Jonathan F. Potter, JA; Captain A. Jason Nef, 

JA; Captain James S. Trieschmann, Jr., JA (on brief); Colonel Kevin M. Boyle, JA; 

Lieutenant Colonel Jonathan F. Potter, JA; Major Amy E. Nieman, JA; Captain 

James S. Trieschmann, Jr., JA (on supplemental brief). 

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA; 

Major Robert A. Rodrigues, JA; Captain Steve T. Nam, JA (on brief). 

22 October 2014 

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

OPINION OF THE COURT 

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

COOK, Senior Judge: 

A panel composed of officer and enlisted members sitting as a general courtmartial convicted appellant, contrary to his plea, of premeditated murder, in 

violation of Article 118(1), Uniform Code of Military Justice, 10 U.S.C. § 918 

(2006) [hereinafter UCMJ]. The panel sentenced appellant to a dishonorable 

discharge, confinement for life without the possibility of parole, forfeiture of all pay 

and allowances, and reduction to the grade of E-1. The convening authority (CA) 

approved the adjudged sentence and granted 407 days of confinement credit. 

Appellant’s case is now before us for review pursuant to Article 66, UCMJ. 

In his initial brief to this court, appellant raised two assignments of error, neither of 

which merits discussion or relief. Appellant also personally raised matters pursuant 

to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). We have reviewed these 
VALMONT— ARMY 20110644 

2

matters and they do not merit discussion or relief. In his supplemental brief to this 

court, appellant raises two additional assignments of error,1

 both of which merit 

discussion but not relief. 

 

FACTS 

Background 

 On 17 June 2010 at Fort Gillem, Georgia, appellant walked into the office of 

his supervisor, Master Sergeant (MSG) PM, and shot him six times. Appellant’s 

shots struck MSG PM in the head, torso and arm, killing him almost immediately. 

After fatally shooting MSG PM, appellant left MSG PM’s office, exited the building, 

got into his car and drove to a local civilian police station. He then turned himself 

in to a civilian police officer, informing the officer he had just shot someone at Fort 

Gillem. 

 The evidence linking appellant to the shooting of MSG PM was extensive. In 

addition to appellant’s incriminating statement to law enforcement, eyewitnesses of 

the killing identified appellant as the shooter. Ballistics analysis confirmed 

appellant’s pistol, recovered from his car, was the weapon used to kill MSG PM, and 

lab analysis revealed MSG PM’s blood on appellant’s clothing. 

 The government established appellant’s motive, and ultimately his 

premeditation, for shooting MSG PM stemmed from adverse personnel actions 

recently taken against appellant. In addition to testimony from surviving members 

of appellant’s chain of command that detailed these actions and MSG PM’s role in 

 

1

 Additional Assignment of Error I 

APPELLANT WAS DENIED HIS SIXTH AMENDMENT 

RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL 

WHEN DEFENSE COUNSEL DID NOT REASONABLY 

INFORM [APPELLANT] OF PLEA NEGOTIATIONS 

AND INCORRECTLY ADVISED HIM THAT THE 

CONVENING AUTHORITY WAS ONLY LEGALLY 

ABLE TO OFFER A MINIMUM OF LIFE WITHOUT 

PAROLE. 

 

 Additional Assignment of Error II 

THE UNLAWFUL COMMAND INFLUENCE MOTION 

WAS NOT WAIVED, AND IF IT WAS WAIVED, THE 

WAIVER RESULTED FROM INEFFECTIVE 

ASSISTANCE OF COUNSEL.
VALMONT— ARMY 20110644 

3

them, multiple witnesses heard appellant state after he shot MSG PM, “I’m tired of 

them fucking with me.” 

 As conceded by appellant’s trial defense counsel during his opening 

statement, “Staff Sergeant Valmont did shoot [MSG PM]. The defense does not 

contest any of that.” What appellant and his defense team contested was the level of 

appellant’s mental responsibility when he shot MSG PM. 

 Basically, appellant’s defense was twofold. First, appellant proffered he was 

suffering from a severe mental disease or defect at the time of the shooting, namely 

delirium. Because of this condition, he was unable to appreciate the nature and 

quality or wrongfulness of his conduct and was therefore not guilty of murder by 

reason of lack of mental responsibility. Second, the defense employed a partial 

mental responsibility theory and argued, in the alternative, that appellant committed 

the shooting without premeditation and therefore was only guilty of the lesser 

included offense of unpremeditated murder or voluntary manslaughter. Underlying 

both defenses was the theme that the toxic nature of appellant’s command climate 

was a major factor in causing appellant, in a fit of rage and without premeditation, to 

kill MSG PM. 

 

 After the government introduced its evidence, appellant, in his case-in-chief, 

offered the results of the second Board convened to inquire into appellant’s mental 

condition pursuant to Rule for Courts-Martial [hereinafter R.C.M.] 706 [hereinafter 

Board] and the testimony of Dr. JC (Commander, U.S. Navy), an expert in forensic 

psychiatry and a member of appellant’s second Board. Unlike the results of his first 

Board, this second Board found appellant was suffering from the severe mental 

disease of delirium at the time of the shooting. As found in the second Board’s 

report and as testified to by multiple witnesses at trial, appellant had recently been 

attempting to lose a significant amount of body fat in order to attend a military 

course. The second Board concluded the recent weight loss and accompanying 

dehydration was a likely physiological “insult” that led to appellant’s delirium. 

 Testimony regarding appellant’s attempts to lose weight prior to the shooting 

and the chain of command’s insistence on appellant attaining a body fat percentage 

3% less than the Army standard as a course prerequisite consumed quite a bit of time 

at trial. The defense used this evidence to not only support the delirium diagnosis 

but to also show that the command’s efforts to enforce an arbitrary and drastic 

standard were proof the command environment was “toxic.” Ultimately, the defense 

strategy was to blame the command climate in general and appellant’s first-line 

supervisor—Sergeant First Class (SFC) TM—in particular, for driving appellant to 

“madness” and causing MSG PM’s death. Appellant also called Dr. ES (Captain, 

U.S. Navy), an expert in forensic psychiatry, as a witness. Dr. ES’s testimony was 

used to bolster the second Board’s diagnosis and the reputation of its members and 

to also criticize how the first Board was conducted. 
VALMONT— ARMY 20110644 

4

 Although the second Board found appellant was suffering from delirium at the 

time of the shooting, it also found appellant “retained the ability to appreciate the 

nature and quality and wrongfulness of his actions at the time of the offenses despite 

impairment due to delirium.” This conclusion was highlighted during the 

government’s cross-examination of Dr. JC. Defense attempted to address this issue 

through the testimony of appellant’s co-workers concerning his demeanor on the day 

of the shooting. These witnesses testified, in general, that appellant did not appear 

to be himself before the shooting. 

 

 In its rebuttal, the government called the doctor who conducted the first 

Board, Dr. BL, an expert in forensic and clinical psychology. Dr. BL testified that 

he did not diagnose appellant as suffering from any severe mental disorder at the 

time of the shooting, to include delirium, and refuted the delirium diagnosis reached 

by the second Board. The government also called Dr. GS to testify as an expert in 

general and forensic psychiatry. Dr. GS testified that he disagreed with the second 

Board’s diagnosis that appellant suffered from delirium at the time of the shooting 

and agreed with Dr. BL’s diagnosis. In addition, the government called other coworkers who interacted with appellant on the day of the shooting and found nothing 

out of the ordinary with his actions before the shooting. 

A. Ineffective Assistance of Counsel 

 

 The gist of appellant’s first additional assignment of error is that he was 

denied his right to effective assistance of counsel based on counsel’s failures with 

respect to pretrial negotiations. Specifically, in the affidavit appellant submitted in 

support of his supplemental brief to this court, he alleges: 

 

 Near the time after the [preferral] of charges against me 

 occurred, I met with my original civilian defense counsel, 

 Mr. [WC]. I was informed that the government was willing 

 to limit my confinement [to] 50 years if I pled guilty. 

 However, when this offer was explained to me, Mr. [WC] 

 never explained to me the mechanics of parole or how 

 good-conduct time served could decrease the actual 

 confinement I might have to serve. 

 After this one vague initial discussion, I released Mr. [WC] 

 and retained new civilian defense counsel. Although I asked 

 them about possible deals to plead guilty, they never 

 informed me of such discussions with the government. 

 I asked them about a thirty year or forty year confinement 

 cap. My new counsel informed me that if I plead guilty to 

 murder, the statutory minimum was confinement for life with 
VALMONT— ARMY 20110644 

5

 eligibility for parole. Thus, the only deal they could even 

 approach the government with was life with the 

 possibility of parole. 

 

 In addition to my counsel informing me of the minimum 

 confinement sentence, after my R.C.M. 706 board, they 

 informed me I faced around 15 years confinement because 

 the board results were favorable to my defense. Thus, 

 because they advised me the minimum sentence was life 

 with parole and I would probably only get 15 years 

 confinement, I stopped asking them about a possible deal. 

 Following appellant’s supplemental assignments of error, this court ordered 

appellant’s five trial defense counsel, WC, TB, MW, Major (MAJ) JB and MAJ DH, 

to provide affidavits to address appellant’s allegations. We received these affidavits 

and supporting documents. 

 Mr. WC agrees with appellant’s initial assertion to the extent he recalls 

discussing a possible pretrial agreement (PTA) with appellant and that this PTA 

would include a 50-year limit on confinement. Mr. WC recalls appellant “adamantly 

opposed such a resolution.” While Mr. WC does not “recall specifically” whether he 

discussed the concept of parole or “good time” confinement reduction with 

appellant, he explains that in general, anytime he discussed a PTA with a client he 

would discuss parole and good time. 

 In their affidavits, Mr. TB and Mr. MW recall discussing the concepts of 

“good time” and parole with appellant. Mr. MW states: 

 

 I explained to the appellant the benefits of getting a term 

 of years rather than a life sentence. I explained the pros 

 and cons and how they impacted his ability to get parole, 

 benefits inside the prison, clemency inside the prison. 

 The appellant understood what I said, but refused to 

 consider a deal over 25 years. On several occasions, he 

 expressed his belief that he was not guilty of murder, 

 either because he was delirious at the time or because he 

 felt harassed by his Colonel. 

 In addition, Mr. TB recalls discussing with appellant the “possibility of 

obtaining a pretrial agreement limiting the term of confinement to 40 years” and 

Mr. MW recalls discussing the possibility of pleading guilty and entering into a PTA 

“on numerous occasions” with appellant. Mr. TB further states that he: 

 discussed the possibility of a pre-trial agreement with the 
VALMONT— ARMY 20110644 

6

 trial counsel numerous times and was continually told that 

 absolutely no offer with a term less than 50 years would 

 be favorably considered . . . . Both [MW] and myself 

 relayed this information back to appellant and appellant 

 became hostile and informed both [MW] and myself that he 

 would not sign a [PTA]. Again, [MW] and 

 I discussed the potential ramifications of trying the case 

 without a [PTA] and informed appellant that based on the 

 evidence against him, the possibility of conviction of 

 pre-meditated murder was extremely high. 

 After the second Board was conducted and after again discussing possible 

PTAs with appellant, both Mr. TB and Mr. MW discussed the possibility of a PTA 

with government counsel. Government counsel maintained their position that the 

government would not accept a PTA that did not contain at least 50 years of 

confinement. As further evidence that this conversation took place, Mr. TB 

submitted e-mails between defense counsel and government counsel as well as emails exchanged between the various defense counsel. 

 In reference to e-mails exchanged between defense counsel and government 

counsel, government counsel stated, “[i]n light of the Court’s recent ruling re a 

mitigation expert and the 706 results, are you going to reengage [appellant] with an 

[Offer to Plead Guilty]/Quantum?” In his reply, Mr. TB stated “[w]e are setting up a 

conference call with [appellant] to discuss a PTA, we are currently in the 40-45 year 

range. Please let me know if you anticipate any issues with getting this approved – 

in light of the 706 findings.” The final e-mail in this series is from government 

counsel who stated, “[TB], Thanks for the e-mail. We have always been in the 50 

year range. How we get there doesn’t matter. If you’d like to submit 45 and we 

counter with 50, that’s fine. How did your conversation with [appellant] go?” 

 In regards to e-mails between defense counsel discussing a PTA, the first 

relevant exchange is a 16 April 2011 e-mail from Mr. TB to Mr. MW and MAJs 

(Captains at the time) JB and DH: 

 [MW] and I spoke to Dr. [G] at length this week and he 

 basically said that the majority of what was in the 706 

 would only be used for motive and he could not get us to 

 a mental responsibility defense – and he is one of the most 

 defense friendly forensic psychs out there. He was quite 

 surprised at the findings and said they were “a stretch.” 

 That being said, [MW] and I are going to try and talk to 

 [appellant] on Monday to discuss a PTA, we are 

 contemplating a 40-45 year [Offer to Plead Guilty] 

 with a justification memo attached for the [CA]. 
VALMONT— ARMY 20110644 

7

 Mr. TB next discusses the PTA issue in a follow-up e-mail sent to the other 

three respective defense counsel on 19 April 2011: 

[MW], I talked to [appellant] for over an hour this 

morning and he stated that he will not take any [offer to 

plead guilty] and wants to take the case to trial. I 

explained that we have spoken to multiple experts and 

they will not support a mental responsibility defense, but 

he [stated] that he was [diagnosed] with delirium and was 

not mentally responsible at the time of the shooting. I 

highly recommend you give him a call and [give] him your 

 take on this as well, I do not think a trial is in his best 

 [interest]. 

 In response to an e-mail authored by MAJ JB, Mr. TB sent a follow-up email: 

[MAJ JB], I completely agree with you, we are going to 

talk with him again about the [Offer to Plead Guilty]. I 

think he is foolish in his newfound desire to contest this 

case, especially in light of the fact that we have talked to 

an extremely defense friendly forensic psych who has told 

us that there is not enough for a mental responsibility 

defense. I tried to talk some sense into him again today 

but he was absolutely adamant about trying the case. The 

worst thing that could have happened here was that the 

706 said he suffered from a [severe] mental defect but was 

not mental [sic] at the time of the shooting. Frankly, I 

don’t think he grasps the concept, even though I spent 

nearly an hour explaining it, again . . . . 

 Major DH, while not recalling any firm PTAs being offered by the 

government, did recall Mr. WC discussing the possibility of a PTA that included a 

50-year limitation on confinement with the appellant. She also recalled appellant 

was opposed to such a PTA. 

 Major JB recalls advising appellant to think about entering into a PTA with 

the government and that appellant was adamantly opposed to the concept. Major JB 

informally discussed a potential PTA with government counsel, but does not recall 

the specifics and does not recall the government offering a PTA. 

 In addition, included in matters submitted by appellant pursuant to R.C.M. 

1105 and 1106 was an e-mail dated 1 February 2011 from government counsel to 

MAJs DH and JB that stated in relevant part: 
VALMONT— ARMY 20110644 

8

 All I want for Xmas is an [Offer to Plead Guilty]/Quantum. 

 However, Xmas is long past. I talked to [appellant’s] new 

 attorney yesterday out of Hawaii. He would like to go to 

 [a guilty plea] as I’m sure the rest of us would like it too. 

 With that, I’m sure you can understand that negotiations 

 become much more difficult after the command spends money. 

 Appellant has offered no additional evidence in response to these e-mails or 

affidavits. 

B. Unlawful Command Influence 

 The issue of unlawful command influence (UCI) was first raised at trial 

during appellant’s case-in-chief. Staff Sergeant (SSG) NC, a co-worker of 

appellant’s, stated she was afraid to testify at appellant’s court-martial because she 

feared reprisal based on her unit’s actions after she participated in appellant’s 

Article 32, UCMJ, hearing. When asked what actions the unit had taken against her, 

SSG NC stated: 

I was moved, sir, without any documentation. I had not 

been at the [unit] one year – six months. And besides the 

other two reasons that were stated for them moving me I 

also was told that because of the shooting [SSG NC was 

present at the killing] that I was being moved, sir. 

Staff Sergeant NC further stated she felt intimidated about testifying “[b]ecause I 

was told I would be moved away from my family if I didn’t sign a piece of paper to 

be moved for the reason that I just stated.” 

 At this point in the trial, the military judge held an Article 39(a), UCMJ, 

session to address this issue. After first establishing appellant had not filed a 

motion for relief based on UCI, the military judge asked the defense whether they 

intended to file a motion alleging UCI. In response, defense counsel stated: 

 We’re not raising [UCI] for the purposes of saying that 

 there was – these people are all here and they’re willing 

 to testify. And so the issue is not that they are no longer 

 willing to testify. This goes specifically to this issue of 

 this command climate and the fear of being reprised against 

 that was also in the unit. This was the same fear we believe 

 that [appellant] had and it goes directly to all the underlying 

 activities leading up to the week of the shooting. 
VALMONT— ARMY 20110644 

9

 When asked by the military judge whether the defense wished to pursue a UCI 

motion based on the reprisal alleged by SSG NC, the defense counsel responded, 

“defense waives that issue so long as it’s permitted to again raise this as an 

evidentiary issue. But in terms of a legal motion for unlawful command influence 

that may be raised by the defense, the defense is waiving that motion.” However, a 

short time later, the military judge, defense and government counsel agreed to 

conduct additional research into whether the UCI issue was waiveable. The military 

judge stated that if the issue was waiveable, it had to be a free, voluntary and 

knowing waiver, would need involvement by the appellant in the process, and would 

be revisited later in the proceedings. 

 Staff Sergeant NC was then re-called to the stand. She again testified about 

being afraid to testify and spent considerable time on the stand. Her testimony 

included: appellant’s first-line supervisor, SFC TM, micro-managed appellant and 

treated him poorly; appellant was normally a positive person but was worried during 

the week of the incident; both she and appellant had filed Inspector General 

complaints against the unit’s commander; appellant had gotten a body wrap the week 

of the shooting in order to lose weight; and on the day of the shooting appellant had 

bloodshot eyes and was not acting normally, to the extent that she informed multiple 

members of the unit that something was wrong with appellant. 

 After SSG NC was excused, the military judge again stated defense counsel 

and appellant needed to decide how they wanted to proceed with respect to the UCI 

allegations and established when the issue would be litigated. 

 Ms. ML, a co-worker of appellant’s, was then called to testify as a defense 

witness. Contrary to argument contained in appellant’s supplemental brief,2

 Ms. 

ML’s testimony was that the unit commander had retaliated against her and others 

based not upon anything concerning the shooting but instead upon an administrative 

complaint she had filed against the commander through “the union.” A hearing into 

this allegation was held in November 2010, eight months before the shooting. The 

gist of the remainder of Ms. ML’s testimony was that the command climate was 

toxic and that appellant was normally a happy person but on the day of the shooting 

was not himself. 

 

 

2

 Appellant’s supplemental brief alleges that Ms. ML “received pressure from the 

command” based on her association with appellant during the court-martial process 

and that “after the shooting, [Ms. ML] testified that she also received reprisals from 

the command after identifying [appellant] as a witness regarding her administrative 

employment hearing.” However, per Ms. ML’s testimony, the administrative hearing 

occurred eight months prior to the shooting. 

 
VALMONT— ARMY 20110644 

10

 At the end of Ms. ML’s direct testimony, she stated she was afraid to testify 

at appellant’s trial because: 

I am scared of Colonel [DK], very scared of Colonel [DK], 

very, because he’s made it known that he personally takes 

my folder home and Major [MB]’s folder home. And I 

can’t say what he’s said to others, but he’s made – I know 

that he’s done a lot to me and he’s intimidated me. So I 

just really – just being in this building right now, I know 

he’s in this building and it’s kind of frustrating. It’s real 

bad. I know he’s in here and I’m not trying to look around 

in this room, but I know he’s in this building. And it’s 

just too much for me. 

 Major MB, another of appellant’s co-workers, testified next for the defense 

and stated the command climate was very stressful and hostile. She alleged she was 

harassed by the unit commander before the shooting because she had to report to him 

in the morning, afternoon and evening. Consequently, before the shooting, MAJ MB 

filed a complaint against the commander for harassment and unfair treatment and felt 

retaliated against for making that complaint.3

 She never heard anything back 

regarding her complaint. In addition, MAJ MB testified that appellant was generally 

an “upbeat” person, but on the day of the shooting, he did not appear normal. 

 An additional co-worker then testified that the command climate was toxic 

and stressful and that on the day of the shooting appellant looked like “the seven 

headed dragon” had taken him over. Then, Ms. MS, a licensed social worker who 

treated appellant and other members of the unit, testified the unit work environment 

appeared so stressful she wrote a letter inquiring into the matter. After Ms. MS 

testified, the military judge again addressed the UCI issue with defense counsel: 

MJ: While we were talking about it during [an R.C.M. 

802 conference] prior to meeting today I raised again the 

issue of UCI and Defense, you indicated 

. . . two things. Just tell me if it’s true. That you do not 

believe although there may be evidence of UCI in the 

terms of what happened to [SSG NC] post-32, would it be 

fair to say you do not believe that impacted your ability to 

present your case? 

 

 

3

 Appellant in his brief again mischaracterizes testimony by alleging MAJ MB 

testified she “received reprisals from the unit commander after the shooting because 

of her association with appellant.” 
VALMONT— ARMY 20110644 

11

Civilian Defense Counsel 1 [CDC 1]: That’s correct your 

honor. 

MJ: OK. And you’ve been able to have access to 

witnesses and witnesses you have access to for looking 

into it [sic]. There are – the ones you want are 

cooperating with you and will testify as you want? 

CDC1: Your honor, every witness that we needed for trial 

either to speak with in an interview or call to testify we 

have been able to speak with or contact. 

MJ: So if there had been any UCI it had no impact on this 

trial? 

CDC1: That’s correct, sir. 

MJ: And therefore you do not wish to raise the issue? 

CDC1: That’s correct, your honor. 

MJ: Okay. You’ve discussed this with your client? 

CDC1: We have at length. 

MJ: Okay. Staff Sergeant Valmont, unlawful command 

influence is a serious issue. It can be somewhat 

complicated for lawyers and judges for that matter. 

ACC: Yes sir 

MJ: Okay. And I don’t want to go into the extent of those 

discussions, but talking to your attorneys do you feel that 

you understand what this issue is about? 

ACC: Yes sir. 

MJ: Okay. And what could possibly happen if you did 

raise it and were successful? 

ACC: Yes sir. 

MJ: After discussing it with your attorneys do you have 

any questions about what unlawful command influence is 
VALMONT— ARMY 20110644 

12

or the facts in this case that at least from your perspective 

may give rise to it? Do you have any questions? 

ACC: No sir. 

. . . . 

MJ: Are you convinced that despite any unlawful 

command influence that may have occurred in this case, 

you have been able to present all witnesses and evidence 

and present a full defense in this case? 

ACC: Yes sir. 

MJ: Okay. And accordingly do you agree with your 

attorneys’ decision that you do not wish to pursue this 

issue any further during this trial? 

ACC: Yes sir. 

MJ: I find the accused has made a knowing, voluntary and 

intelligent – I’m not going to say waiver because there 

may not even be an issue here, but decision not to pursue 

any allegation of unlawful command influence at this trial. 

 On rebuttal, the government called Sergeant Major BS who generally refuted 

the allegations made by SSG NC, MAJ MB and Ms. ML. 

LAW AND DISCUSSION 

A. Ineffective Assistance of Counsel 

1. Failure to Communicate Formal Pretrial Offers 

 Claims of ineffective assistance of counsel in the plea bargain context are 

governed by the two-part test set forth by the Supreme Court in Strickland v. 

Washington, 466 U.S. 668, 687 (1984). See Hill v. Lockhart, 474 U.S. 52, 58-59 

(1985). The two-part test found in Strickland requires appellant to demonstrate: 

(1) that his counsel’s performance was deficient, and (2) that this deficiency resulted 

in prejudice. Strickland, 466 U.S. at 687. 

 The relatively recent Supreme Court decision in Missouri v. Frye, 132 S. Ct. 

1399 (2012), is particularly relevant to appellant’s case. In a 5-4 decision, the 

Supreme Court held that: “[A]s a general rule, defense counsel has the duty to 
VALMONT— ARMY 20110644 

13

communicate formal offers from the prosecution to accept a plea on terms and 

conditions that may be favorable to the accused.” Frye, 132 S. Ct. at 1408. 

 

 Therefore, appellant’s allegation of ineffective assistance of counsel (IAC) 

initially fails based on a lack of evidence to find the government made a formal plea 

offer. E-mails, to include those from government counsel, and statements from 

multiple defense counsel support a finding that government counsel only engaged in 

informal discussions with defense counsel concerning a possible PTA. It is also 

apparent that both defense and government counsel understood that any formal PTA 

would need to originate with appellant and would not be supported by the staff judge 

advocate or approved by the CA unless it contained no less than a 50-year limitation 

on confinement. 

 In addition, even assuming these informal discussions could be construed as a 

formal plea offer, appellant concedes his original defense counsel, Mr. WC, 

discussed with him the possibility of entering into a PTA that included a 50-year 

limitation on confinement. Appellant’s allegation of IAC does not assert a lack of 

communication regarding potential plea deals, but rather contends he was not fully 

informed by Mr. WC on the impact of parole and “good time” on a 50-year sentence 

to confinement. An IAC finding in this case, when appellant admits he was 

informed about a potential plea deal but not about collateral parole matters, would 

necessitate extending Frye well beyond the scope of its narrow holding. Id. 

 However, this issue is itself mooted based on conversations Mr. MW and Mr. 

TB had with appellant wherein they discussed parole and “good time” in detail. 

Appellant has not refuted those accounts. As such, the record reflects appellant was 

on notice as to the “real time” associated with a 50-year confinement limitation. 

 Given there is no indication government counsel ever offered support for a 

PTA that included less than a 50-year confinement limitation, and no indication 

appellant ever intended to accept a PTA that included a 50-year limitation, the rest 

of appellant’s allegation concerning internal defense discussions including a 30 or 

40 year confinement cap, is irrelevant per Frye. As such, pursuant to Strickland, we 

find appellant has not established a prima facie case of IAC because he has neither 

(1) established deficient performance by any of his counsel; nor (2) made a colorable 

showing of possible prejudice. 

2. Advice on Maximum Sentence to Confinement 

 Appellant also alleges that counsel were ineffective because they incorrectly 

advised him concerning the minimum punishment associated with a guilty plea to a 

murder charge. In conducting this review, we will again utilize the Strickland

standard and apply a “strong presumption” that trial defense counsel were 

competent. United States v. Grigoruk, 56 M.J. 304, 308 (C.A.A.F. 2002). 
VALMONT— ARMY 20110644 

14

 

 Appellant, in his post-trial affidavit, specifically alleges his civilian defense 

counsel, Mr. MW and Mr. TB, “informed me that if I pled guilty to murder, the 

statutory minimum was confinement for life with eligibility for parole. Thus, the 

only deal they could even approach the government with was life with the possibility 

of parole.”4 This erroneous advice concerning the unavailability of a PTA that 

included a term of years to confinement5

 was allegedly a major factor in appellant’s 

decision not to agree to a PTA and represented deficient performance on the part of 

his counsel. “[W]here the accused has been grossly misled by a miscalculation or 

erroneous sentence estimation by defense counsel, such conduct may constitute 

[IAC].” United States v. St. Blanc, 70 M.J. 424, 428 (C.A.A.F. 2012) (internal 

citations omitted). 

 In response to appellant’s allegations, Mr. MW and Mr. TB submitted posttrial affidavits that detail numerous discussions with appellant concerning possible 

PTAs. Both Mr. MW and Mr. TB implicitly refute appellant’s allegations that they 

told appellant the CA could only approve a PTA that included a period of 

confinement for life with the possibility of parole because both recall urging 

appellant to offer and ultimately accept a PTA that contained a 40-year term of 

confinement. 

 Because appellant and counsel have filed conflicting post-trial affidavits, we 

have analyzed whether a post-trial evidentiary hearing is required. United States v. 

Ginn, 47 M.J. 236 (C.A.A.F. 1997). After applying the fourth Ginn principle, we 

find such a hearing is not required. Id. at 248. Assuming appellant’s affidavit is 

factually adequate on its face, “the appellate filings and the record as a whole 

‘compellingly demonstrate’ the improbability of those facts” and therefore we may 

“discount those factual assertions and decide the legal issues.” Id. 

 

4

 Appellant’s supplemental brief initially alleges that defense counsel informed 

appellant, regarding a guilty plea to murder, that the CA “was only legally able to 

offer a minimum of life without parole.” After repeating this allegation a few times, 

appellant’s brief then states the alleged error was advising appellant the CA could 

only approve a minimum confinement period of life with the possibility of parole. 

Because appellant’s affidavit only supports the latter allegation, this is the allegation 

we will address. 

5

 At the time of appellant’s trial, in accordance with R.C.M. 1107(d)(2), and Article 

56a(b), UCMJ, although a premeditated murder conviction, under Article 118(1), 

includes a mandatory minimum confinement period of life with the possibility of 

parole, the CA can approve a lesser sentence as part of a PTA or through his posttrial clemency authority. 
VALMONT— ARMY 20110644 

15

 Prior to retaining Mr. TB and Mr. MW, appellant was informed by his first 

civilian counsel, Mr. WC, that the government “was willing to limit my confinement 

at 50 years if I pled guilty.” Appellant, per his affidavit, admits this conversation 

took place. Mr. WC and MAJ DH, in their affidavits, remember this conversation 

taking place. In addition, MAJ JB avers that when he was the lead attorney in 

appellant’s case, he “explained to [appellant] that due to the overwhelming evidence 

in the case he needs to think about the possibility of entering into an agreement with 

the Government to reduce any potential sentence to a term of years.” Appellant has 

not addressed MAJ JB’s statement. 

 Appellant offers no explanation as to why he would discount the guidance he 

received from Mr. WC and MAJ JB and end up being misled by erroneous guidance 

that he allegedly received from Mr. TB and Mr. MW. The improbability of that 

eventuality is heightened by MAJ JB’s continued representation of appellant 

throughout the process and his availability to address the alleged misleading 

information provided by Mr. TB and Mr. MW. 

 In making our decision, we find particularly illuminating the e-mails 

previously identified in this opinion. These e-mails demonstrate that on or about 

16 April 2011, Mr. MW and Mr. TB were planning on discussing a PTA with 

appellant that included a term of years (40-45). One of these e-mails was sent to 

government counsel to establish that the 40-45 year range was reasonable. On 19 

April 2011, per Mr. TB, appellant stated he would “not take any [offer to plead 

guilty] and want[ed] to take the case to trial.” It is reasonable to conclude the PTA 

discussed and rejected by appellant on 19 April 2011 included a term of confinement 

in the 40-45 year range. 

 In sum, while appellant’s affidavit alleges erroneous advice about mandatory 

punishments that could constitute ineffective assistance of counsel if true, the record 

as a whole and the appellate filings compellingly demonstrate the improbability of 

those facts. See Ginn, 47 M.J. at 248. Thus, under Ginn, this court discounts 

appellant’s factual assertions and finds appellant has failed to demonstrate that 

counsel’s performance was deficient. See Strickland, 466 M.J. at 687; Ginn, 47 M.J. 

at 248. 

 B. Unlawful Command Influence 

 Article 37(a), UCMJ, prohibits UCI. Witness interference can constitute UCI. 

See United States v. Douglas, 68 M.J. 349, 354 (C.A.A.F. 2010); United States v. 

Gore, 60 M.J. 178, 185 (C.A.A.F. 2004); United States v. Stombaugh, 40 M.J. 208, 

212-13 (C.M.A. 1994); UCMJ art. 37. 

 Appellant initially argues we should not apply waiver to his UCI allegation 

even though his trial defense team, and appellant himself, were aware of this issue at 
VALMONT— ARMY 20110644 

16

trial and affirmatively decided not to pursue it. Because the alleged UCI in this case 

occurred during the adjudicative stage in the proceedings, and the law is not entirely 

clear in this area, we agree with appellant and will not apply waiver to this issue. 

See Douglas, 68 M.J. at 356 n.7; United States v. Johnston, 39 M.J. 242, 244 

(C.M.A. 1994); see also United States v. Weasler, 43 M.J. 15, 17-18 (C.A.A.F. 

1995); United States v. Reynolds, 40 M.J. 198 (C.M.A. 1994). 

 On a UCI claim on appeal, appellant must first establish: “(1) facts, which if 

true, constitute [UCI]; (2) that the proceedings were unfair; and (3) that the [UCI] 

was the cause of the unfairness.” United States v. Salyer, 72 M.J. 415, 423 

(C.A.A.F. 2013) (citation omitted). “[T]he initial burden of showing potential [UCI] 

is low, but is more than mere allegation or speculation.” Id. (citing United States v. 

Stoneman, 57 M.J. 35, 41 (C.A.A.F. 2002)). Specifically, appellant must show 

“some evidence” of UCI. Id. In addition, allegations of UCI are reviewed for actual 

UCI as well as the appearance of UCI. Id. 

 Our superior court has further held that “prejudice is not presumed until the 

defense produces evidence of proximate causation between the acts constituting 

[UCI] and the outcome of the court-martial.” United States v. Biagase, 50 M.J. 143, 

150 (C.A.A.F. 1999). 

In evaluating whether appellant has met his initial burden, we first note his 

present claim is premised upon the same trial testimony that appellant’s trial defense 

counsel and appellant himself did not deem worthy of supporting the very complaint 

he now lodges. Although appellant now characterizes this testimony as 

“overwhelming evidence of actual and apparent UCI,” we find it much less 

compelling. 

 

 At trial, the only testimony identified as potentially supporting an allegation 

of UCI was that of SSG NC, specifically that she had faced reprisal in the form of an 

unwanted unit transfer for testifying on appellant’s behalf at his Article 32 hearing. 

On appeal, appellant now alleges that according to their testimony, Ms. ML and MAJ 

MB “received pressure from the command for their association with [appellant] 

during the court-martial process.” 

 

 As captured above, Ms. ML’s testimony was that although she was generally 

afraid of the unit commander, her allegation concerning reprisal was that the unit 

commander retaliated against her and witnesses who testified on her behalf at an 

administrative hearing because she filed a complaint against the commander through 

“the union.” This alleged reprisal had nothing to do with appellant’s court-martial. 

 Likewise, MAJ MB testified she was harassed by the unit commander before 

the shooting because she had to report to the commander in the morning, afternoon 

and evening. Major MB filed a complaint against the commander for that 
VALMONT— ARMY 20110644 

17

harassment and unfair treatment. She then complained again concerning perceived 

reprisal for making the original complaint. All this transpired before the shooting 

and had nothing to do with appellant’s court-martial. 

 Assuming, therefore, that SSG NC’s allegations, if true, constituted UCI, we 

are left to decide whether appellant’s court-martial proceeding was unfair, and 

whether the assumed reprisal against SSG NC was the cause of the unfairness. 

 At trial, appellant’s defense counsel plainly stated this alleged reprisal had no 

impact on his ability to present his case: “Your honor, every witness that we needed 

for trial either to speak with in an interview or call to testify we have been able to 

speak with or contact.” Based on our own review of the record, we conclude this 

alleged reprisal against SSG NC had no impact on appellant’s trial. Because 

SSG NC testified extensively at trial, it is illogical to now claim that she was 

somehow influenced not to provide the defense-favorable testimony that she, in fact, 

provided. 

 In addition, numerous witnesses testified on appellant’s behalf as to his 

demeanor on the day of the shooting and as to the toxic command environment 

present at the time of the shooting. This testimony supported the defense’s strategy 

that the command drove appellant to involuntarily shoot MSG PM and that appellant 

therefore lacked the requisite mens rea to support a premeditated murder conviction. 

Contrary to appellant’s allegations, there is no evidence his ability to call witnesses 

was impeded, to even the slightest degree, by any command action. As such, we do 

not find that appellant has met his burden to show that his proceedings were unfair, 

let alone establish that any unfairness was caused by UCI. 

 

CONCLUSION

On consideration of the entire record, and the assigned errors, to include 

matters personally raised by appellant pursuant to Grostefon, 12 M.J. 431, we hold 

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

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

AFFIRMED. 

Judge TELLITOCCI and Judge HAIGHT concur. 

 FOR THE COURT: 

 MALCOLM H. SQUIRES, JR. 

 Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: