This opinion is subject to revision before publication.

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

_______________

UNITED STATES

Appellee

v.

Ryan M. PALIK, Technical Sergeant

United States Air Force, Appellant

No. 23-0206

Crim. App. No. 40225

Argued December 6, 2023—Decided March 26, 2024

Military Judge: Colin P. Eichenberger

For Appellant: Major Matthew Blyth (argued); Megan P. Marinos, Esq.

For Appellee: Captain Tyler L. Washburn (argued); 

Colonel Matthew D. Talcott, Lieutenant Colonel 

James P. Ferrell, and Mary Ellen Payne, Esq. (on 

brief).

Chief Judge OHLSON delivered the opinion of the 

Court, in which Judge HARDY and Judge 

JOHNSON joined. Judge SPARKS filed a separate 

dissenting opinion. Judge MAGGS filed a separate 

dissenting opinion, in which Judge SPARKS joined.

_______________
United States v. Palik, No. 23-0206/AF

Opinion of the Court

2

Chief Judge OHLSON delivered the opinion of the 

Court.

This Court again addresses the issue of lost recordings 

of a Government witness’s statement, this time in the context of a claim of ineffective assistance of counsel.

In the present case, Appellant was accused of assaulting his girlfriend, Airman First Class (A1C) S.M., on two 

separate occasions. The Air Force Office of Special Investigations (OSI) interviewed A1C S.M. on back-to-back days, 

and it was customary for the agency to video record such 

interviews. The two trial defense counsel were informed by 

the Government during pretrial discovery that OSI had 

lost the videos and that no member of the legal office had 

reviewed them. Days before the start of trial, the trial defense counsel received OSI case file documentation indicating that the lead OSI investigator for the case was unaware 

of the time period after which recordings would be erased 

or overwritten by subsequent recordings, and that the videos of A1C S.M.’s interviews had been deleted from the recording system without having been downloaded.

At trial, the defense cross-examined the lead OSI investigator who conceded that the interview with A1C S.M. had 

been “recorded” but then “lost.” However, the trial defense 

counsel did not bring a motion under Rule for Courts-Martial (R.C.M.) 914 for production of the recordings after A1C 

S.M. testified as a Government witness. Appellant was 

subsequently convicted of offenses solely related to A1C 

S.M.’s allegations.

We granted review of the following issue:

The Government lost the only two video-recorded 

statements from SM, the complaining witness for 

every convicted offense. Did defense counsel provide ineffective assistance by failing to file an 

RCM 914 motion after SM’s testimony?

United States v. Palik, 83 M.J. 452 (C.A.A.F. 2023) (order 

granting review). 

For the reasons set forth below, we hold that the trial 

defense counsel in this case provided ineffective assistance 
United States v. Palik, No. 23-0206/AF

Opinion of the Court

3

when they failed to bring a motion under R.C.M. 914 for 

production of the recordings of OSI’s interviews of A1C 

S.M. We therefore reverse the decision of the United States 

Air Force Court of Criminal Appeals (CCA) and set aside 

the findings and the sentence.

I. Background

Appellant and A1C S.M. were stationed together at 

Royal Air Force Base Mildenhall, United Kingdom. They 

began dating after meeting in the fall of 2019. The relationship was described by Appellant as “very emotional” and 

full of trust issues because of concerns of infidelity by both 

parties. The charges involving A1C S.M. arose from two incidents that occurred at Appellant’s off-base apartment. 

The first occurred during July of 2020 when, after returning from a local bar, an argument ensued during which 

A1C S.M. stated that Appellant choked her. The second incident occurred in August of 2020 when, after a night 

drinking at the same local bar, Appellant discovered text 

messages on A1C S.M.’s phone referencing another man. 

In an ensuing argument, both parties threw each other’s 

phones out the apartment window and A1C S.M. testified 

that Appellant again choked her.1

Shortly after the second incident, A1C S.M. reported to 

her chain of command that she had been assaulted by Appellant. Later that day, she was interviewed by OSI agents 

who took pictures of her injuries. OSI conducted a followup interview of A1C S.M. the next day. The OSI lead investigator for this case, Special Investigator (SI) H.O., was a 

new investigator and this was one of her first investigations. Special Agent (SA) R.A. participated in the first interview to train SI H.O. and to take notes of their discussion with A1C S.M.

1 A1C S.M. also testified that at some point during the altercation, she returned to the bedroom to get away from Appellant, 

but he pried the door open and hit her with the door ten to fifteen 

times. However, Appellant was acquitted of the charged offense 

arising from that allegation.
United States v. Palik, No. 23-0206/AF

Opinion of the Court

4

SI H.O. testified at trial that both interviews of A1C 

S.M. had been recorded but the recordings were subsequently lost. A1C S.M. testified as the next Government 

witness. After her direct examination, the trial defense 

counsel did not raise an R.C.M. 914 motion seeking production of the recordings.

SI H.O. was subsequently recalled to testify as a prosecution witness. On cross-examination by trial defense 

counsel, SI H.O. testified that the recordings of the interviews were “deleted off the system . . . . [for] an unknown 

reason” before she was able to download them “onto a CD.”

She also agreed during her testimony that it was a customary practice for OSI to download interviews such as those 

she conducted with A1C S.M. and then include them in the 

case file. However, SI H.O. acknowledged that she did not

do so in this case. She also acknowledged that she did not 

discover that the recordings had been deleted until more 

than two months after the interviews had been conducted.

Contrary to his pleas, a general court-martial consisting 

of officer members convicted Appellant of two specifications 

of assault consummated by a battery in violation of Article 

128, Uniform Code of Military Justice (UCMJ), 10 U.S.C. 

§ 928 (2018), and one specification of domestic violence by 

strangulation on divers occasions in violation of Article 

128b, UCMJ, 10 U.S.C. § 928b (2018).2 The military judge 

sentenced Appellant to confinement for ten months, reduction to E-1, forfeiture of all pay and allowances, and a badconduct discharge. The convening authority took no action 

on the findings and approved the sentence.

2 One of the convictions for assault consummated by a battery against A1C S.M. was the lesser included offense of domestic violence by strangulation. Appellant was acquitted of two 

specifications of assault consummated by a battery allegedly 

committed against A1C S.M.—one arising during each of the 

July 2020 and August 2020 incidents. He was also acquitted of 

ten unrelated specifications of assault consummated by a battery allegedly committed against his ex-wife, Staff Sergeant B.K. 
United States v. Palik, No. 23-0206/AF

Opinion of the Court

5

On appeal before the United States Air Force Court of 

Criminal Appeals (CCA), Appellant raised an ineffective 

assistance of counsel claim against his trial defense counsel

because they failed to file an R.C.M. 914 motion for A1C 

S.M.’s recorded OSI statements. The CCA ordered each of 

Appellant’s trial defense counsel, Major (Maj) A.N., 

Captain (Capt) O.H., and Capt R.H,3 to submit a 

declaration concerning Appellant’s claim that they were 

ineffective for “fail[ing] to file an R.C.M. 914 motion based 

on the Government’s inability to produce two videorecorded statements of the complaining witness, which 

were lost by the Government.”

The sworn declaration of Maj A.N., the lead trial defense counsel, did not directly mention R.C.M. 914 despite 

the contents of the CCA’s order. Rather, she explained that 

in July 2021 the defense learned from the Government that 

the OSI recorded interview of A1C S.M. “was lost and that 

no member of the legal office had previously reviewed” the 

recorded interviews. Maj A.N. also stated that days before 

the start of trial in August 2021, the Government provided 

OSI “internal data pages” (IDPs) in discovery that included 

a note created in January 2021, that “[o]n 26 Oct 20, it was 

discovered the SUBJECT [Appellant], VICTIM [A1C S.M.], 

and VICTIM [A1C S.M.] follow-up interview recordings 

were deleted from the Getac system without copying the 

videos to a disk. SI [H.O.] was unaware of the timeframe 

OSI requires videos to be copied to a disk.”

Maj A.N. then provided the following explanation about 

the defense’s decision-making concerning the lost 

recordings:

6. . . . . Based on experience with OSI, it was my 

understanding that OSI regulations and standard 

operating procedures do not require special agents 

to either audio or video record witness interviews 

or complaining witness interviews; however, it is 

3 Because Capt R.H. did not participate in the trial phase of 

Appellant’s court-martial, his involvement in the case is not relevant to the resolution of the issue. 
United States v. Palik, No. 23-0206/AF

Opinion of the Court

6

generally considered a best practice. Furthermore, OSI interviews captured on their recording 

devices are not indefinitely maintained on the recording device and will be erased after a certain 

period of time or may be overwritten by subsequent recordings. In this case, the Defense has no 

knowledge as to whether OSI’s recording device 

was fully functional or definitely captured the two 

interviews OSI conducted of A1C [S.M.] on 20 August 202[0] and 21 August 202[0]. To the Defense’s knowledge, no OSI agent, trial counsel, or 

member of the legal office has viewed any recording of the two OSI interviews at issue nor have 

they confirmed their existence at any point.

7. It was the Defense’s intent to discredit [SI H.O.] 

altogether as the lead investigator in this 

case . . . . Defense counsel questioned [SI H.O.] 

about the two OSI interviews of A1C [S.M.] as 

part of the effort to discredit her. In discrediting 

[SI H.O.] and the investigation, I refer to the videos as lost because I believed it was a fair attack 

on the investigation generally, but I do not have 

actual knowledge as to whether they were ever 

recorded.

8. The Defense considered pursuing the two OSI 

video recorded interviews further but held concern over the potential for its use by the [G]overnment as prior consistent statements in the event 

they ever existed and could be produced. Defense 

counsel recognized the likelihood that A1C [S.M.] 

would appear distraught, disheveled, or injured in 

any video recording given her immediate reporting of the assault. I did not continue to pursue the 

status of the OSI video recorded interviews because I did not want to give trial counsel the ability to use a video recording for prior consistent 

statements with a potentially sympathetic victim 

visually depicted in the video. I had concerns that 

any recorded OSI interview of A1C [S.M.] would 

be more beneficial to the prosecution than to the 

defense. It is not unheard of for OSI to later supplement a case file with additional evidence and I 

was not confident that would not occur in this case 

because this OSI detachment has previously investigated a separate case in which several discs 
United States v. Palik, No. 23-0206/AF

Opinion of the Court

7

of video surveillance not originally associated 

with its case file were later found on the eve of 

trial. The Defense’s preference was to cross-examine A1C [S.M.] with the version of events she reported to . . . OSI based on their notes, as well as 

[Appellant]’s version of events, and highlight that 

OSI did not have the video recordings in an effort 

to discredit the investigation. The Defense also 

considered this issue under Rules for Courts-Martial 703(e)(2) and did not further pursue the status of the two OSI video recorded interviews for 

the same reasons. In light of the recent opinion by 

the Court of Appeals for the Armed Forces in 

United States v. Sigrah [82 M.J. 463 (C.A.A.F. 

2022)], I may have chosen a different approach as 

to whether the Defense would have continued to 

pursue the existence or whereabouts of any OSI 

video recorded interviews of A1C [S.M.].

The sworn declaration of assistant trial defense counsel, 

Capt O.H., described how she had learned from the Government that the recordings of OSI’s interviews with A1C 

S.M. were “lost,” that the Government could not confirm 

whether the interviews had ever been recorded or were lost 

after being recorded, and that neither RAF Mildenhall legal office personnel nor the OSI agents involved in the case 

had ever reviewed a recording of the interviews. Capt O.H. 

also averred that days before the start of trial, the defense 

received IDPs created by OSI in discovery that stated in 

November 2020, SI H.O. informed the Chief of Justice at 

RAF Mildenhall that both of OSI’s interviews of A1C S.M. 

had been deleted from the OSI software system.

Capt O.H. provided the following explanation concerning how the trial defense counsel adopted the lost recordings into their trial strategy:

7. Based on information we had when A1C [S.M.] 

testified we could not definitively say whether the 

interviews of A1C [S.M.] had been recorded then 

lost or never recorded in the first place. I knew 

from prior experiences with OSI that it was possible the interviews (1) were recorded and not removed from the system, so automatically overwritten after a certain period of time; (2) were 
United States v. Palik, No. 23-0206/AF

Opinion of the Court

8

never recorded in the first place due to user error 

with the software system; (3) were never recorded 

because an agent did not know that the best practice was normally to record victim interviews; or 

(4) were never recorded because the recording system malfunctioned. OSI agents have told me before that there is no formal regulation or policy to 

record victim interviews.

8. Maj [A.N.] conducted the cross[-]examination of 

A1C [S.M.] . . . . We did not want to delve into the 

existence or non-existence of the recorded interview anymore [sic] than we already had, because 

it could’ve led to more damaging evidence against 

[Appellant] if the recording existed. We would’ve 

needed that information to prevail on a motion under R.C.M. 914. I agreed with her strategy for 

handling A1C [S.M.’s] testimony. Had United 

States v. Sigrah been decided prior to [Appellant’s] trial, I may have viewed the issue under a 

different lens, but it was not decided until over a 

year later.

9. I previously dealt with a similar situation in a 

case the year prior to United States v. Palik. In 

United States v. Ferrell, we had the video recording of the interview, but it contained no audio recordings. In that case, the recording software was 

malfunctioning. Similar to [Appellant’s] case, 

there was an interview that was supposed to be 

recorded at OSI, there was a pre-OSI interview 

with a different law enforcement agency, and follow-up interviews that were not recorded. Also 

similar, no one could definitively say whether the 

audio ever existed. We raised it as an issue under 

R.C.M. 703(e)(2), for lost or destroyed evidence, at 

the motions hearing in the case. The military 

judge ruled against us for any remedies. United 

States v. Ferrell never progressed to the findings 

phase of trial, so whether R.C.M. 914 would have 

been raised or not or whether we would have prevailed if it had is unknown; however, it was not 

raised as an option when we were strategizing the 

case. I considered the issue with A1C [S.M.’s] interviews under that experience. Since we could 

not definitively say the recordings were made in 
United States v. Palik, No. 23-0206/AF

Opinion of the Court

9

the first place, my experience indicated we would 

not prevail under R.C.M. 703(e)(2).

The CCA rejected Appellant’s argument, holding no relief was warranted because “Appellant has not overcome 

the presumption of competence” to show deficient performance by his trial defense counsel.

II. Standard of Review

Allegations of ineffective assistance of counsel are reviewed de novo. United States v. Tippit, 65 M.J. 69, 76 

(C.A.A.F. 2007).

III. Applicable Law

A. Ineffective Assistance of Counsel

An appellant will prevail on an ineffective assistance of 

counsel claim if he “demonstrate[s] both ‘(1) that his counsel’s performance was deficient, and (2) that this deficiency 

resulted in prejudice.’ ” United States v. Captain, 75 M.J. 

99, 101 (C.A.A.F. 2016) (quoting United States v. McIntosh, 

74 M.J. 294, 295 (C.A.A.F. 2015)). “ ‘When a claim of ineffective assistance of counsel is premised on counsel’s failure to make a motion . . . , an appellant must show that 

there is a reasonable probability that such a motion would 

have been meritorious.’ ” United States v. McConnell, 55 

M.J. 479, 482 (C.A.A.F. 2001) (quoting United States v. Napoleon, 46 M.J. 279, 284 (C.A.A.F. 1997)). 

This Court applies a three-part test to determine

whether the presumption of competence has been overcome:

1. Are appellant’s allegations true; if so, “is there 

a reasonable explanation for counsel’s actions”?

2. If the allegations are true, did defense counsel’s 

level of advocacy “fall measurably below the 

performance . . . [ordinarily expected] of fallible 

lawyers”?

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

reasonable probability that, absent the errors,” 

there would have been a different result?
United States v. Palik, No. 23-0206/AF

Opinion of the Court

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

(alterations in original) (quoting United States v. Polk, 32 

M.J. 150, 153 (C.M.A. 1991)).

Strategic choices made by counsel after a thorough 

investigation of the law and facts are virtually 

unchallengeable. Strickland v. Washington, 466 U.S. 668, 

690-91 (1984). Importantly, however, in Hinton v. Alabama

the Supreme Court recognized the following: “An attorney’s 

ignorance of a point of law that is fundamental to his case 

combined with his failure to perform basic research on that 

point is a quintessential example of unreasonable 

performance under Strickland.” 571 U.S. 263, 274 (2014)

(per curiam).

B. R.C.M. 914

At the time of Appellant’s trial, R.C.M. 914 (2019 ed.) 

provided in pertinent part:4

4 In July 2023, the President amended R.C.M. 914 to establish a lost statement exception to the rule’s remedy section. The 

amended rule now provides:

(e) Remedy for failure to produce statement.

. . . .

(2) Exception. In the event that the other party 

cannot comply with this rule because the statement is lost, and can prove, by a preponderance of 

evidence, that the loss of the witness statement 

was not attributable to bad faith or gross negligence, the military judge may exercise the sanctions set forth in paragraph (e)(1) of this rule only 

if—

(A) the statement is of such central importance 

to an issue that it is essential to a fair trial, and

(B) there is no adequate substitute for the 

statement.

Exec. Order No. 14,103, Annex 1, § 1(bb), 88 Fed. Reg. 

50,535, 50,560-61 (July 28, 2023).
United States v. Palik, No. 23-0206/AF

Opinion of the Court

11

(a) Motion for production. After a witness other 

than the accused has testified on direct examination, the military judge, on motion of a party who 

did not call the witness, shall order the party who 

called the witness to produce, for examination and 

use by the moving party, any statement of the witness that relates to the subject matter concerning 

which the witness has testified, and that is:

(1) In the case of a witness called by trial counsel, in the possession of the United States . . . .

. . . .

(e) Remedy for failure to produce statement. If the 

other party elects not to comply with an order to 

deliver a statement to the moving party, the military judge shall order that the testimony of the 

witness be disregarded by the trier of fact and that 

the trial proceed, or, if it is trial counsel who elects 

not to comply, shall declare a mistrial if required 

in the interest of justice.

The language of R.C.M. 914, “tracks the language of the 

Jencks Act.” United States v. Muwwakkil, 74 M.J. 187, 190 

(C.A.A.F. 2015) (internal quotation marks omitted) (citation omitted). Specifically, the Jencks Act requires a district court judge, upon motion by the defendant, to order 

the government to disclose prior “statement[s]” of its witnesses that are “relate[d] to the subject matter” of their testimony after each witness testifies on direct examination. 

18 U.S.C. § 3500(b) (2018). Given the similarities in language and purpose between R.C.M. 914 and the Jencks Act, 

this Court has “conclud[ed] that our Jencks Act case law 

and that of the Supreme Court informs our analysis of 

R.C.M. 914 issues.” Muwwakkil, 74 M.J. at 191.

The Jencks Act jurisprudence of the Supreme Court and 

this Court recognizes a judicially created “good faith loss 

doctrine.” Id. at 193. “This doctrine excuses the Government’s failure to produce ‘statements’ if the loss . . . of evidence was in good faith.” Id. (quoting Killian v. United 

States, 368 U.S. 231, 242 (1961)). However, this Court’s 

predecessor observed that the good faith loss doctrine is 

“generally limited in its application.” Id. (internal 
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Opinion of the Court

12

quotation marks omitted) (quoting United States v. Jarrie, 

5 M.J. 193, 195 (C.M.A. 1978)). 

Two opinions of this Court have applied R.C.M. 914 and 

are particularly relevant to the resolution of this case:

Muwwakkil, 74 M.J. 187, and United States v. Sigrah, 82 

M.J. 463 (C.A.A.F. 2022).

In Muwwakkil, in the context of an Article 62, UCMJ, 

10 U.S.C. § 862 (2012), appeal, this Court reviewed a military judge’s ruling to strike the complaining witness’s trial 

testimony under the Jencks Act and R.C.M. 914 due to the 

government’s failure to produce the recording of the witness’s Article 32, UCMJ,5 testimony. 74 M.J. at 188. The 

Article 32 testimony had been recorded on two devices, one 

of which malfunctioned partway through the hearing, but 

the other recording device functioned properly and recorded the testimony. Id. at 189. However, at some point before trial, the witness’s testimony was deleted from the 

functioning device. Id. During motions practice, a paralegal 

in the military justice office conceded that he failed to appropriately “ ‘back up’ ” the recording, and trial counsel 

stipulated that she did not provide paralegals in that office 

with any instruction regarding the handling or preservation of the Article 32 audio in the accused’s case. Id. The 

Court held that the military judge did not err in declining 

to apply the good faith loss doctrine because she had explicitly found that the government had engaged in negligent 

conduct, and that a finding of negligence may serve as the 

basis for a military judge to conclude the good faith loss 

doctrine does not apply in a specific case. Id. at 193. The 

Court then went on to hold that the “plain text of R.C.M. 

914 provides two remedies [striking the witnesses testimony or declaring a mistrial] for the Government’s failure 

to deliver a ‘statement’ without referencing a predicate 

finding of prejudice to the accused.” Id. at 194. Therefore, 

the Court reasoned that a military judge considering an 

5 10 U.S.C. § 832 (2012).
United States v. Palik, No. 23-0206/AF

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13

R.C.M. 914 motion in the midst of trial is not required to 

engage in a prejudice analysis. 74 M.J. at 194 n.4.

In Sigrah, a case decided more than a year after Appellant’s trial, this Court reviewed a military judge’s denial of 

the appellant’s motion to strike the testimony of an alleged 

victim and two other government witnesses. 82 M.J. at 

464-65. Before this Court, the government conceded that 

the military judge erred in denying the R.C.M. 914 motions 

and that the government, in its failure to preserve recorded 

interviews at issue, “showed sufficient culpability to preclude the good faith doctrine.” Id. at 466 n.2. Thus, the 

Court’s opinion focused on identifying and applying the correct prejudice test on appeal for a preserved nonconstitutional R.C.M. 914 error. Id. at 467-68. However, the Court 

specifically reiterated a point it had made in Muwwakkil: 

 At the trial level, if the government, as the opposing party, fails to produce a qualifying statement, R.C.M. 914(e) provides the military judge 

with [only] two remedies for the government’s failure to deliver the qualifying statement: (1) “order 

that the testimony of the witness be disregarded 

by the trier of fact” or (2) “declare a mistrial if required in the interest of justice.” 

Id. at 467 (citation omitted).

IV. Discussion

Analytically, we divide this case into two parts: the 

state of the case at the time of pretrial discovery and the 

state of the case once A1C S.M. testified at trial. Viewed 

through this lens, it is clear that trial defense counsel did 

not provide a reasonable explanation for their failure to 

raise a motion pursuant to R.C.M. 914 after A1C S.M. testified on direct examination at the court-martial proceedings. See Gooch, 69 M.J. at 362.

In the sworn declarations of the two trial defense counsel, they do provide “reasonable explanations” for their actions at the time of pretrial discovery. At the outset of the 

case, the defense was not sure whether the Government 

might still be able to recover the recordings, and they did 

not want to take any steps that would prompt the 
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14

Government to redouble its efforts to do so. The defense 

was understandably concerned that, if found, the Government would be able to introduce the recordings as a prior 

consistent statement, and the recordings would be damaging to Appellant’s case because A1C S.M. would probably 

appear distraught and injured, making her a particularly 

sympathetic witness.

But the factual landscape had changed by the time A1C 

S.M. testified at trial. At that point, it was clear that OSI 

had indeed lost the recordings. For example, days before 

the start of trial, defense counsel had received discovery 

from the Government informing them that the recordings 

of the interviews of A1C S.M. had been “deleted” from OSI’s 

software system. Further, SI H.O., who testified prior to 

A1C S.M., confirmed during cross-examination that the interviews of A1C S.M. had been “recorded” but were subsequently “lost.” Therefore, at the time of trial it was no 

longer reasonable for the trial defense counsel to fear that 

the recordings would somehow surface and be used to Appellant’s detriment, regardless of how hard the defense 

sought to exploit their disappearance. And consistent with 

this Court’s holding in Muwwakkil, if the defense had filed 

a successful R.C.M. 914 motion the military judge would 

have been required to either strike A1C S.M.’s testimony 

or declare a mistrial. See 74 M.J. at 194. Thus, at the time 

of trial, there was tremendous upside and virtually no 

downside for the defense to file that R.C.M. 914 motion. 

Despite this reality, the sworn declarations of the trial 

defense counsel do not provide a reasonable explanation for 

why they did not file the R.C.M. 914 motion. Tellingly, Maj

A.N.’s affidavit does not even directly mention R.C.M. 914 

despite the fact that the CCA specifically asked the defense 

counsel to address that point. 

Capt O.H.’s affidavit does mention R.C.M. 914, but it 

focuses on the defense strategy at trial of attacking the 

competence of the lead investigator who had failed to retain 

a copy of the victim’s recorded statement. But that explanation seems predicated on a false dichotomy. The defense 

was not required to choose between undermining the 
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Opinion of the Court

15

credibility of the government investigation on the one hand 

and filing an R.C.M. 914 motion on the other. The defense 

could have—and should have—taken both tacks. Moreover, 

not only were these two approaches not mutually exclusive, 

they were not substitutes for one another either. The benefits of successfully pursuing an R.C.M. 914 motion (the 

military judge striking the victim’s testimony or declaring 

a mistrial) immeasurably outweighed any benefit that 

could have been gained by only pursuing a strategy of undermining the lead investigator, particularly because the 

crux of this case was the credibility of the testimony of A1C 

S.M. and not the competence of the OSI agents.

As outlined below, the trial defense counsels’ affidavits 

and the Government’s brief raise a number of points in support of their argument that Appellant’s trial defense counsel were not ineffective. However, we conclude that none of 

these arguments is persuasive.

First, the trial defense counsel seek to explain their inaction by noting that Sigrah was not decided until after the 

instant case went to trial. That is true. However, not only 

has R.C.M. 914 been in the Manual for Courts-Martial, 

United States, for years, but we also decided Muwwakkil in 

2015, and that case made it clear just how powerful R.C.M. 

914 can be in circumstances very similar to the instant 

case. 74 M.J. at 194. Moreover, the Sigrah case was focused 

on the correct test for prejudice at the appellate level when 

there was an R.C.M. 914 error at trial, a point that was not 

relevant to the defense during Appellant’s court-martial. 

See 82 M.J. at 467-68. In other words, the plain language 

of R.C.M. 914 and our holding in Muwwakkil were the keys

to the appropriate handling of the instant case at trial—

not Sigrah.

Second, the trial defense counsel seek to explain their 

inaction by asserting that they were not sure whether the 

recording had ever existed. That was initially true at the 

time of pretrial discovery, but by the time of the court-martial that issue had been resolved. In Capt O.H.’s own words 

in her sworn affidavit to the CCA, the IDPs for the investigation stated that “[o]n 26 Oct 20, it was discovered the 
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Opinion of the Court

16

SUBJECT [Appellant], VICTIM [A1C S.M.], and VICTIM

[A1C S.M.] follow-up interview recordings were deleted 

from the Getac system without copying the videos to a disk. 

SI [H.O.] was unaware of the timeframe OSI requires videos to be copied to a disk.” (Emphasis added.) (Internal quotation marks omitted.) As can be seen, these investigative 

notes plainly state that the interviews were recorded, that 

they were then deleted, and that the reason they were deleted was because SI H.O. did not know of her obligation to 

preserve them. 

Third, the Government’s argument that the defense had 

the burden of convincing the military judge that the recordings once existed and that the defense would not have been 

able to meet this burden as a predicate for the R.C.M. 914 

motion is unavailing. Not only could the defense have cited 

the IDPs and SI H.O.’s sworn testimony,6 the defense also 

could have cited the “presumption of regularity” and noted 

that it was OSI’s practice to record interviews such as the 

ones conducted with the victim in this case. See, e.g.,

United States v. Mark, 47 M.J. 99, 101 (C.A.A.F. 1997) 

(“The presumption of regularity entertained in military 

law is derived from the one in civilian law which attaches 

to routine administrative acts performed by officials of the 

Government.”).

Fourth, the mere fact that the recordings no longer existed provides little support for the Government’s supposition that the recordings never existed. The record reflects 

that the OSI’s software system overwrites a recording after 

a certain time frame, and that the lead investigator was

not aware of this point and did not try to retrieve the recordings until more than two months had passed since the 

interviews. Therefore, even if we were to assume that the 

defense bore the burden of demonstrating that the recordings once existed, they could have met that burden if they 

had pursued an R.C.M. 914 motion at trial. Moreover, any 

6 As necessary, the defense could have further called SI H.O. 

as a witness on the motion to provide additional corroboration of

the relevant contents of the IDPs.
United States v. Palik, No. 23-0206/AF

Opinion of the Court

17

argument that a lack of findings by the military judge 

makes it difficult to come to a conclusion regarding 

whether the recordings once existed not only overlooks the 

ample evidence already contained in the record but also 

overlooks the important fact that there were no findings 

here precisely because—in this case where Appellant is alleging ineffective assistance of counsel—the trial defense 

counsel unreasonably failed to bring the R.C.M. 914 motion

to begin with.

Fifth, any argument that it was reasonable for defense 

counsel to forego an R.C.M. 914 motion because of the 

chance that the Government could not only make these deleted recordings reappear but also use them to Appellant’s 

detriment is misguided. If, contrary to the Government’s 

discovery responses and contrary to its own witnesses’ testimony, the Government somehow belatedly managed to 

produce the recordings, the defense would have had a 

strong argument either to have the military judge bar the 

Government from using the recordings or to have the military judge declare a mistrial. Under such a scenario, the 

defense would be able to persuasively argue that they had 

made the strategic decision to bring the R.C.M. 914 motion

and had tailored other aspects of their trial strategy because they were acting in reasonable reliance on the Government’s repeated assurances that the videos had been 

deleted. Trial judges typically take a jaundiced view of such 

“sandbagging” techniques by the government. Moreover, if 

the military judge declared a mistrial, during any retrial 

the defense would remain in the proverbial “driver’s seat” 

because the Government could not unilaterally admit the 

recordings, and the defense could avoid asking questions of 

A1C S.M. that might “open the door” for the Government 

to introduce prior consistent statements drawn from the 

recordings.

Having determined that the trial defense counsel and 

the Government have provided no “ ‘reasonable explanation for counsel’s actions [or inaction],’ ” we now address 

the question of whether defense counsel’s level of advocacy 

fell “ ‘measurably below the performance . . . [ordinarily 
United States v. Palik, No. 23-0206/AF

Opinion of the Court

18

expected] of fallible lawyers.’ ” Gooch, 69 M.J. at 362 (alterations in original) (citation omitted). Stated differently, we 

must determine whether counsel’s performance was “deficient” in the context of an ineffective assistance of counsel

claim. Captain, 75 M.J. at 101 (internal quotation marks 

omitted) (citation omitted). 

At the time of Appellant’s court-martial, the law was 

well settled about what the defense should do in a situation 

such as this one where a witness testifies, the witness’s 

prior statements were recorded by the Government, and 

the Government cannot produce that recording because of 

its own negligence. See Muwwakkil, 74 M.J. at 190-94.

Namely, the defense should file an R.C.M. 914 motion. 

Under these circumstances, the trial defense counsel’s level 

of advocacy in this case was indeed deficient because it fell 

“ ‘measurably below the performance . . . [ordinarily 

expected] of fallible lawyers.’ ” Gooch, 69 M.J. at 362

(alterations in original) (citation omitted).

The final question relevant to a determination of 

whether the presumption of competence has been overcome 

is whether there is “a reasonable probability that, absent 

the errors,” there would have been a different result in the 

trial proceedings. Id. (internal quotation marks omitted) 

(citation omitted). Stated differently, the question is 

whether counsel’s deficient performance “resulted in prejudice.” Captain, 75 M.J. at 101 (internal quotation marks 

omitted) (citation omitted). The answer in this case hinges 

on the question of whether there is a “reasonable probability that such a motion would have been meritorious.” 

McConnell, 55 M.J. at 482 (internal quotation marks omitted) (citation omitted). And the answer to that question is, 

“Yes.”

The instant case is strikingly similar to Muwwakkil, 

where we stated that a finding of negligence on the part of 

the government may serve as the basis to conclude that the 

good faith loss doctrine basis does not apply. 74 M.J. at 193. 

Contrary to the Government’s argument that the defense 

would not have been able to surmount the “good faith loss 

doctrine,” the defense had at its fingertips damning 
United States v. Palik, No. 23-0206/AF

Opinion of the Court

19

evidence of negligence on the part of OSI. To begin with, 

the Government made a choice when it set up a recording 

system that would delete witness interview recordings after a period of time if the recordings were not copied to a 

more permanent format. Moreover, OSI assigned SI H.O. 

as the lead agent in this case despite her marked lack of 

experience as an investigator. She clearly did not understand a fundamental point: when you record a victim’s 

statement, you need to preserve it. And yet, it appears that

senior OSI agents failed to adequately supervise SI H.O.’s

actions or to inform her of this important point.

As a consequence, there was a reasonable probability 

that the defense would have prevailed on the merits of an

R.C.M. 914 motion. And, as Muwwakkil, 74 M.J. at 194,

and Sigrah, 82 M.J. at 467, make clear, the military judge 

would have had only two available remedies: strike the victim’s testimony or declare a mistrial.7 Needless to say, 

there is a “reasonable probability” that the imposition of 

either of these remedies would have led to a different result 

in the trial proceedings.

Further, the Government’s argument that the defense 

failure to file an R.C.M. 914 is legally excusable because 

the defense team performed well overall falls flat. The Supreme Court in United States v. Cronic, 466 U.S. 648, 657 

n.20 (1984), stated that deficient performance on a single 

issue may give rise to an ineffective assistance of counsel

claim. Therefore, regardless of the overall execution of 

their responsibilities as defense counsel, the fact remains 

that their performance was deficient because they failed to 

identify a meritorious and extraordinarily powerful R.C.M.

914 motion readily available to them. See id.

7 Unlike the trial defense counsel in Gooch who explained in 

their affidavits why they believed a mistrial would not have been 

advantageous to their client, 69 M.J. at 362, 362 n.11, the affidavits of the trial defense counsel in this case are silent on their 

assessments of whether a mistrial would have held either positive or negative ramifications for Appellant.
United States v. Palik, No. 23-0206/AF

Opinion of the Court

20

In conclusion, we find that on the discrete issue of failing to bring an R.C.M. 914 motion after A1C S.M. testified 

on direct examination as a Government witness, the trial 

defense counsel provided ineffective assistance of counsel. 

Although we feel compelled to reach this conclusion based 

on the facts and the law, by doing so we do not seek to disparage the defense counsel in this case. The fact that they 

were successful in getting Appellant acquitted on a number 

of specifications serves as a testament to their legal skills, 

and based on the contents of their affidavits to the CCA

and on the record before us as a whole, it is apparent to this 

Court that Maj A.N. and Capt O.H. acted both ethically and 

diligently on behalf of their client. Moreover, we are acutely 

mindful of the fact that at the appellate level we have the 

opportunity to take the time to reflect at length on various 

aspects of a case and the law—a luxury often not afforded 

to trial attorneys such as Maj A.N. and Capt O.H. Having 

said that, however, as we noted earlier, the Supreme Court 

has held that “an attorney’s ignorance of a point of law that 

is fundamental to the case combined with the failure to perform basic research on that point is a quintessential example of unreasonable performance under Strickland.” Hinton, 571 U.S. at 274. Therefore, Appellant’s convictions 

cannot stand. See id.

V. Decision

The decision of the United States Air Force Court of 

Criminal Appeals is reversed. The findings and the sentence are set aside. The record shall be returned to the 

Judge Advocate General of the United States Air Force. A 

rehearing is authorized.
United States v. Palik, No. 23-0206/AF

Judge SPARKS, dissenting.

I agree with Judge Maggs that Appellant’s counsel were 

not deficient. I write separately to address the majority’s 

conclusion that this Court is able to determine whether 

Appellant was prejudiced by his counsels’ shortcomings. To

find prejudice, I believe, requires this Court to make 

factual findings about the existence of the recordings in 

question and the negligence of the government 

investigators, determinations beyond the scope of this 

Court’s statutory authority. Because I cannot join the 

majority’s analysis of these issues, I respectfully dissent. 

Even if I were to conclude that Appellant’s counsel were 

deficient, I would remand this case to the lower court for 

the factfinding necessary to resolve the issue of whether 

Appellant was prejudiced.

I. Standard of Review

This Court reviews de novo allegations of ineffective 

assistance of counsel. United States v. Gooch, 69 M.J. 353, 362 

(C.A.A.F. 2011) (citing United States v. Mazza, 67 M.J. 470, 

474 (C.A.A.F. 2009)). “Ineffective assistance of counsel is a 

mixed question of law and fact.” United States v. Anderson, 

55 M.J. 198, 201 (C.A.A.F. 2001). “Factual findings are 

reviewed under a clearly-erroneous standard of review, but 

the ultimate determinations whether counsel were ineffective 

and whether their errors were prejudicial are reviewed de 

novo.” Id. (citing United States v. Wean, 45 M.J. 461, 463 

(1997)). The service Courts of Criminal Appeals have the 

specific statutory authority to “determine controverted 

questions of fact.” Article 66(d)(1), Uniform Code of Military 

Justice (UCMJ), 10 U.S.C. § 866(d)(1) (2018). However, this 

Court has no such statutory authority. See Article 67, UCMJ,

10 U.S.C. § 867.

II. Background

The United States Air Force Court of Criminal Appeals 

(AFCCA), described the facts relevant to Appellant’s 

allegation of ineffective assistance of counsel as follows:

On 20 and 21 August 2020, SM was 

interviewed by AFOSI agents. Although the 

agents who conducted the interview believed the 

interviews were recorded, the video recordings 
United States v. Palik No. 23-0206/AF

Judge Sparks, dissenting

2

were ultimately “lost.” At trial, Special 

[Investigator (SI)] HO testified, “[T]hose 

interviews were deleted off the system. There’s an 

unknown reason. However, they were deleted 

before we were able to put them on a CD.” [SI] HO 

realized that the recordings were missing on 26 

October 2020.

On 19 November 2020, AFOSI notified the 

base legal office about the missing videos. On 23 

July 2021, assistant trial counsel informed 

Appellant’s trial defense counsel that “any 

[AF]OSI recorded interview of [SM] was lost and 

that no member of the legal office has previously 

reviewed any AFOSI recorded interview of [SM].”

After SM testified at Appellant’s court-martial 

on behalf of the Government, trial defense counsel 

did not make a motion under R.C.M. 914 asking 

the military judge to order the Government to 

produce the allegedly video-recorded statements 

SM made to AFOSI, or request any remedy based 

on the Government’s inability to produce such 

statements.

United States v. Palik, No. ACM 40225, 2023 CCA LEXIS

185, at *15-16, 2023 WL 3151086, at *6 (A.F. Ct. Crim. 

App. Apr. 28, 2023) (second, fourth, fifth, and sixth 

alterations in original) (unpublished). The AFCCA ordered 

affidavits from Appellant’s trial defense team explaining 

their reasons for not filing a Rule for Courts-Martial 

(R.C.M.) 914 motion.

In analyzing Appellant’s claim of ineffective assistance 

of counsel, the AFCCA concluded that Appellant’s trial 

defense counsel “articulated a reasonable rationale for not 

[seeking production of the victim’s recorded statements]—

they could not confirm that the video recordings in question 

ever existed, and feared they might exist.” They further 

explained that Appellant’s counsel made a strategic 

decision “not to press the Government to either search for 

the videos or produce the videos because they did not think 

it would be helpful to Appellant’s defense.” And finally, the 

AFCCA determined that “it was reasonable for Appellant’s 

defense counsel to question whether the video recorded 

interviews existed because the videos had never been 

viewed by AFOSI agents or any member of the prosecution 
United States v. Palik No. 23-0206/AF

Judge Sparks, dissenting

3

team.” All of these conclusions by the AFCCA are 

predicated on its recognition that there was a legitimate 

question as to whether S.M.’s interviews were ever, in fact, 

recorded.

III. Analysis

Because the AFCCA found that Appellant’s trial 

defense counsel were not deficient, it did not reach the 

question of whether Appellant was prejudiced by his 

attorneys’ failure to file a R.C.M. 914 motion. Such an 

analysis would require it to examine whether the record 

supports findings that: (1) the interviews were recorded; 

(2) the recordings were lost; (3) the loss was the result of 

the Government’s negligence; and (4) the Government’s 

negligence was sufficient to preclude the application of the 

good faith loss doctrine. Perhaps the AFCCA could make 

these findings based solely on the record of trial or they 

may find that a DuBay hearing is necessary to further 

develop the record, but that is not up to this Court to 

decide. United States v. DuBay, 17 C.M.A. 147, 37 C.M.R.

411 (1967). Nonetheless, the majority has determined that 

the record is sufficient to answer each of these questions, 

so I will briefly discuss my concern with that 

determination. 

First, the majority finds that the interviews of S.M.

were recorded. I do not dispute that the record supports 

such a finding, but this is exactly the sort of finding that 

must be made by a court with factfinding authority. I will 

also note that there is evidence in the record to dispute 

such a finding. And indeed, the AFCCA found in this case 

that “it was reasonable for Appellant’s defense counsel to 

question whether the video recorded interviews existed 

because the videos had never been viewed by AFOSI agents 

or any member of the prosecution team.” Even if it was 

unreasonable for Appellant’s trial defense counsel not to 

file the R.C.M. 914 motion based on the record at that point 

in time, as the majority concludes, that does not mean it 

was unreasonable for them to question whether the videos 

ever actually existed. While the majority is quick to 

conclude that Special Investigator (SI) H.O. negligently 

failed to download the recordings, they brush off the 
United States v. Palik No. 23-0206/AF

Judge Sparks, dissenting

4

possibility that SI H.O. just as easily could have failed to 

record the interviews in the first place. 

Second, it is impossible to conclude that the recordings 

were lost without concluding that they existed in the first 

place. This may seem like a trivial concern, but again, it is 

the exact sort of factual finding that this Court is not 

authorized to make.

Third, the majority concludes that the loss of the 

recordings was due to the negligence of the Government. In 

describing this conclusion, the majority explains: 

[d]ays before the start of trial, the trial defense 

counsel received OSI case file documentation 

indicating that the lead OSI investigator for the 

case was unaware of the time period after which 

the recordings would be erased or overwritten by 

subsequent recordings, and that the videos of A1C 

S.M.’s interviews had been deleted from the 

recording system without having been 

downloaded. 

United States v. Palik, __ M.J. __, __ (2) (C.A.A.F. 2024).

They base this conclusion on the fact that prior to trial 

Appellant’s trial defense counsel received investigation 

notes that stated, “On 26 Oct 20, it was discovered the 

SUBJECT, VICTIM [S.M.] follow-up interview video 

recordings were deleted from the Getac system without 

copying the videos to a disk. SI [H.O.] was unaware of the 

timeframe OSI requires videos to be copied to a disk.” I 

point out here that this investigative note is just that, a 

note from the investigator and not an actual record of the 

recording having been deleted. 

The majority incorrectly concludes that the 

investigation notes and the investigator’s testimony at trial 

that the recordings were “lost,” demonstrate that the 

videos were lost due to the Government’s use of a system 

that automatically deletes recordings after a set amount of 

time. Contrary to the majority’s conclusion, no Government 

agent testified that this is the way the recording system 

works. Rather, this conclusion is based on the affidavits of 

Appellant’s trial defense counsel, who claim that based on 

their own experience dealing with OSI, “interviews 

captured on their recording devices are not indefinitely 
United States v. Palik No. 23-0206/AF

Judge Sparks, dissenting

5

maintained on the recording device and will be erased after 

a certain period of time or may be overwritten by 

subsequent recordings.” Thus, the majority assumes that 

the loss of the recording was due to the investigator’s 

failure to download the video before it was automatically 

erased or overwritten by subsequent recordings. SI H.O.,

in fact, testified that the videos were deleted from the 

system for “an unknown reason. However they were 

deleted before we were able to put them onto a CD.”

Simply put, SI H.O.’s testimony does not establish that 

OSI actually implemented a recording system that 

automatically deletes recordings. Even if that is the case, 

the record leaves open the question of whether the 

recording was deleted automatically because the agent 

failed to download it quickly enough or due to some other 

malfunction. Again, this is the sort of controverted question 

of fact that should be determined by the CCA, rather than 

this Court.

Fourth, the majority assumes, based on their finding of 

negligence by the Government, that the good faith loss 

doctrine would not apply in this case. Even assuming that 

the recordings did exist, I have already discussed why it is 

possible to conclude that the loss was not necessarily due 

to the Government’s negligence. Additionally, I must point 

out that even if the Government’s loss of the recordings was 

due to negligence, that does not necessarily foreclose the 

application of the good faith loss doctrine. The majority 

correctly points out that in our previous decision in United 

States v. Muwwakkil, we concluded that the good faith loss 

doctrine is “generally limited in its application” and the 

military judge did not abuse her discretion by not applying 

the doctrine when the government’s loss of the recordings 

in question was due to negligence. 74 M.J. 187, 193 

(C.A.A.F. 2015) (internal quotation marks omitted) 

(citation omitted). However, we have never explicitly ruled 

that the loss of recordings due to the government’s 

negligence prohibits the application of the good faith loss 

doctrine. Indeed, in Muwwakkil, we cited approvingly 

United States v. Marsh, a case in which our predecessor 

court concluded that the military judge did not abuse his 

discretion when he denied a R.C.M. 914 motion despite the 
United States v. Palik No. 23-0206/AF

Judge Sparks, dissenting

6

fact that the loss of the recordings in question was due to 

at least some negligence by the Government, but not gross 

negligence. 21 M.J. 445, 447, 451-52 (C.M.A. 1986). While 

I understand the majority’s belief that the Government’s 

negligence here should preclude the application of the good 

faith loss doctrine, our case law simply does not demand 

that it be so.

IV. Conclusion

Because I believe that Appellant’s counsel were not 

deficient, I respectfully dissent. As explained above, even if I 

did agree with the majority that Appellant’s counsel were 

deficient, I believe there are important controverted 

questions of fact that must be resolved before this Court can 

determine whether Appellant was prejudiced by that 

deficiency and I would remand this case to the AFCCA for the 

determination of whether Appellant was prejudiced by his 

counsels’ deficiencies.
United States v. Palik, No. 23-0206/AF

Judge MAGGS, with whom Judge SPARKS joins, 

dissenting.

The Court concludes that trial defense counsel were deficient when they failed to file an Rule for Courts-Martial 

(R.C.M.) R.C.M. 914 motion at trial for production of recordings that investigators may have made when they interviewed the named victim. The Court reasons that, “it 

was clear that [the Office of Special Investigations (OSI)]

had indeed lost the recordings,” and during trial it was 

therefore “no longer reasonable for the trial defense counsel to fear that the recordings would somehow surface and 

be used to Appellant’s detriment.” The Court concludes 

that under these circumstances, trial defense counsel 

should have made the R.C.M. 914 motion because if the 

military judge had ordered the Government to produce recordings, and the Government could not comply with the 

order, then the military judge would have been required 

either to strike the named victim’s testimony or declare a 

mistrial. The Court determines that trial defense counsel’s 

failure to file the R.C.M. 914 motion prejudiced Appellant

because either of these remedies would have changed the 

result of the case.

I respectfully disagree with the Court’s determination 

that trial defense counsel were deficient. My disagreement 

rests on three grounds. First, in my view, trial defense 

counsel had reasonable grounds, at the time of trial, to believe that filing an R.C.M. 914 motion would have been futile, and “[a]n attorney’s decision to forego taking actions 

that likely would be futile is not deficient.” United States v. 

Palacios Cueto, 82 M.J. 323, 329 (C.A.A.F. 2022). If trial 

defense counsel had filed an R.C.M. 914 motion, they could 

have reasonably expected the Government to oppose it vigorously on the grounds that Appellant could not prove that 

the investigators ever created the recordings because no 

one had ever seen them. Even if trial defense counsel had 

responded by citing Special Investigator (SI) H.O.’s statement that the recordings were created and then lost, trial 

defense counsel could have reasonably expected that this

statement alone would not stand up to scrutiny. The Government’s position likely would have been exactly the same 

as it is today:
United States v. Palik, No. 23-0206/AF

Judge MAGGS, dissenting

2

While SI HO testified that the recordings were 

“deleted,” that assertion was an assumption made 

to explain the absence of the recordings. When 

asked how the interviews were deleted off the system, she stated “[t]here’s an unknown reason.” 

This indicates OSI was unable to confirm the reason the recordings did not exist in their system. SI 

HO testified it was OSI policy to record interviews. When she realized the recordings did not 

exist on the system, she jumped to a conclusion to 

explain their absence.

But as Capt OH acknowledged in her declaration, other occurrences could have explained the 

absence of the videos on the OSI recording system. 

It was possible that the interviews (1) were never 

recorded in the first place due to user error with 

the software system or (2) were never recorded because the recording system malfunctioned.

Brief for Appellee at 13-14, United States v. Palik, No. 23-

0206 (C.A.A.F. Oct. 10, 2023) (emphasis added) (citations 

omitted). Trial defense counsel could have reasonably believed that the military judge would have accepted the Government’s argument and, therefore, that filing the R.C.M. 

914 motion would have been unsuccessful.

Second, I do not agree with the Court’s reasoning that 

“at the time of trial it was no longer reasonable for the trial 

defense counsel to fear that the recordings would somehow 

surface and be used to Appellant’s detriment.” At the time 

of trial, no one could explain how or why the recordings—

if they ever existed—were not still on the OSI recording 

system. SI H.O. stated that they were missing for “an unknown reason.” I agree with the Government’s argument 

that, without knowing how the alleged recordings had disappeared, trial defense counsel could harbor reasonable 

doubts that the recordings would not be found. Indeed, consistent with this argument, trial defense counsel’s affidavit 

explains:

It is not unheard of for OSI to later supplement a 

case file with additional evidence and I was not 

confident that would not occur in this case because 

this OSI detachment has previously investigated 

a separate case in which several discs of video 
United States v. Palik, No. 23-0206/AF

Judge MAGGS, dissenting

3

surveillance not originally associated with its case 

file were later found on the eve of trial.

Third, I disagree with a key aspect of the Court’s legal 

reasoning. The Court’s theory, at bottom, is that the Sixth 

Amendment required trial defense counsel to move for an 

order requiring the Government to produce recordings that 

trial defense counsel sincerely hoped that the Government 

could not produce based on a further hope that the military 

judge would penalize the Government for not being able to 

comply. Does the Constitution truly require trial defense 

counsel to make such a disingenuous request for production? Even if the Court’s statement that “there was tremendous upside and virtually no downside for the defense to 

file that R.C.M. 914 motion” is true, a simple balancing of 

possible costs and benefits is not the test for ineffective assistance of counsel under the Sixth Amendment. “In determining whether an attorney’s conduct was deficient we do 

not simply ask whether the attorney did everything possible that posed little or no risk to the client.” Palacios Cueto, 

82 M.J. at 329. Instead, the test is whether “counsel’s conduct falls within the wide range of reasonable professional 

assistance.” United States v. Scott, 81 M.J. 79, 84 (C.A.A.F. 

2021) (internal quotation marks omitted) (quoting Strickland v. Washington, 466 U.S. 668, 689 (1984)). Failing to 

bring similar motions has been held not to constitute ineffective assistance of counsel.1

1 For example, in Lax v. Duckworth, defense counsel learned 

that in its response to a valid discovery request, the government 

had failed to produce a mug shot of his client that had been used 

in a photo array. No. 89-1384, 1990 U.S. App. LEXIS 19824, at 

*2, 1990 WL 174970, at *1 (7th Cir. Nov. 9, 1990) (unpublished 

order). Defense counsel, however, did not move for a continuance 

and did not file an additional discovery motion. Id. at *4-5, 1990 

WL 174970, at *2. The United States Court of Appeals for the 

Seventh Circuit rejected the defendant’s subsequent claim of 

ineffective assistance of counsel. Id. at *4-5, 1990 WL 174970, at 

*2. It held that “[b]ecause the . . . mug-shot would have made no 

difference in the case, [defense] counsel did not err in failing to 

request a continuance” and that defense “[c]ounsel was not 

ineffective for failing to file repetitive discovery motions in the 

hopes of turning up the . . . mug-shot.” Id. at *5-6, 1990 WL 

174970, at *2.
United States v. Palik, No. 23-0206/AF

Judge MAGGS, dissenting

4

For these reasons, I conclude that trial defense counsel 

were not deficient in their performance. Their representation, instead, fell within the wide range of reasonable professional assistance. Seeing no deficiency, I would not 

reach the issue of prejudice. I therefore respectfully dissent 

and would affirm the decision of the United States Air 

Force Court of Criminal Appeals.