United States v. Staff Sergeant RASHAD J. VALMONT

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

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OPINION OF THE COURT
---------------------------------

COOK, Senior Judge:

A panel composed of officer and enlisted members sitting as a general court-
martial 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

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.

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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.

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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 co-
workers 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

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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

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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 e-
mails 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].

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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:

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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.

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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.

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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.”

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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

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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

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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).

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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 confinement 5 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 post-
trial 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 post-
trial clemency authority.

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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

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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

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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
FORTHE
THECOURT:
COURT:

MALCOLM H. SQUIRES, JR.
MALCOLM H. SQUIRES, JR.
Clerk of Court
Clerk of Court

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