United States v. Staff Sergeant MICHAEL L. BAKER

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
MAHER, SULLIVAN, and HOLDEN
Appellate Military Judges

UNITED STATES, Appellee
v.
Staff Sergeant MICHAEL L. BAKER
United States Army, Appellant

ARMY 9800743

21st Theater Army Area Command (trial)
I Corps and Fort Lewis (first and second DuBay hearings)
Peter E. Brownback III (arraignment), Donna M. Wright (trial), Robert J. Smith
(first DuBay hearing), David L. Conn (second DuBay hearing), Military Judges
Colonel Calvin L. Lewis, Staff Judge Advocate (trial)
Lieutenant Colonel William R. Kern, Acting Staff Judge Advocate
(first DuBay hearing)
Colonel David N. Diner, Staff Judge Advocate (second DuBay Hearing)

For Appellant: Colonel Mark Cremin, JA (argued); Lieutenant Colonel Mark
Tellitocci, JA; Major Allyson G. Lambert, JA (on brief after first DuBay hearing);
Captain Frank B. Ulmer (argued); Colonel John T. Phelps II, JA; Lieutenant Colonel
Kirsten V.C. Brunson, JA; Major Billy B. Ruhling II, JA; Captain Eric D. Noble (on
brief after second DuBay hearing).

For Appellee: Captain Michael D. Wallace, JA (argued); Lieutenant Colonel Mark
L. Johnson, JA; Major Natalie A. Kolb, JA (on brief after first DuBay hearing);
Captain Mark E. Goodson (argued after second DuBay hearing).

10 July 2007

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OPINION OF THE COURT ON REMAND
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MAHER, Senior Judge

A special court-martial composed of officers convicted appellant, contrary to
his pleas, of attempted larceny, absence from his appointed place of duty on divers
occasions, and willful disobedience of a superior commissioned officer (two
specifications), in violation of Articles 80, 86, and 90, Uniform Code of Military
Justice, 10 U.S.C. §§ 880, 886, and 890 [hereinafter UCMJ]. The convening
authority approved the adjudged sentence to a bad-conduct discharge and reduction
to Private E1.
BAKER – ARMY 9800743

PROCEDURAL HISTORY

In our initial review of appellant’s case under Article 66, UCMJ, this court
affirmed the findings and the sentence. United States v. Baker, ARMY 9800743
(Army Ct. Crim. App. 18 Jan. 2002) (unpub.). The United States Court of Appeals
for the Armed Forces (CAAF) granted review as to whether appellant received
effective assistance of counsel. On 1 July 2003, our superior court stated it could
not “determine whether the actions of trial defense counsel resulted in a denial of
Appellant’s Sixth Amendment right to the effective assistance of counsel” given the
record’s posture. United States v. Baker, 58 M.J. 380, 387 (C.A.A.F. 2003). The
CAAF set aside our decision and remanded the case for a hearing pursuant to United
States v. DuBay, 17 U.S.C.M.A. 147, 37 C.M.R. 411 (1967), to address the following
questions:

(1) What information, if any, led defense counsel to
perceive that testimony by appellant would present an
ethical problem? (2) What inquiry, if any, did defense
counsel make? (3) What facts were revealed by the
inquiry? (4) What standard, if any, did defense counsel
apply in evaluating those facts? (5) What determination,
if any, did defense counsel make with respect to
prospective testimony by appellant in light of those facts?
(6) After making any such determination, what
information and advice, if any, did counsel provide to the
appellant? (7) What response, if any, did appellant make?
(8) What information was disclosed by the two defense
counsel during their off-the-record conversation with the
military judge?

Baker, 58 M.J. at 387. On 15 October 2003, a convening authority ordered a DuBay
hearing to address the issues our superior court identified. A military judge held the
hearing on 9 January 2004, entered his findings on 20 February 2004, and returned
the record to this court for further review. We determined en banc that the military
judge, by allowing counsel to testify in a conclusory fashion and expressly declining
to delve into specific facts, failed to provide a record on which we could reach a
decision on the merits of appellant’s claims. United States v. Baker, ARMY
9800743 (Army Ct. Crim. App. 11 May 2005) (order) (unpub.).

Accordingly, we returned the record for another DuBay hearing. Id. On
23 September 2005, the convening authority ordered a second hearing which a
different military judge conducted on 5 December 2005. The military judge entered
his findings on 6 January 2006.

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The record is again before us for further review. Appellant asserts: (1) the
military judges at the DuBay hearings erred in finding that trial defense counsel
acted in accordance with their legal and ethical obligations and (2) appellant
received ineffective assistance of counsel when his two trial defense counsel
provided no assistance during his testimony. After reviewing the entire record, to
include both DuBay hearings, both military judges’ findings, appellate counsels’
supplemental briefs, and oral arguments, we find appellant’s trial defense counsel
provided appellant with effective assistance at trial.

BACKGROUND

Captain (CPT) B and CPT M represented appellant at his court-martial. 1
Captain B had served on active duty for approximately four years prior to
appellant’s court-martial and as a defense counsel on fifteen to twenty courts-martial
before appellant’s trial. She did not practice law prior to entering active military
service. Captain M, a reservist on active duty, began practicing law in 1982 in Utah
and had previously tried thirty-five jury trials in federal court and two capital cases
in state court as a defense attorney.

During trial on the merits, the defense presented testimony of two witnesses,
stipulated to the testimony of four other witnesses, and offered eight exhibits into
evidence. Before the close of the defense case, the military judge granted a defense
request for “a short recess.” During the recess, appellant consulted with his counsel;
appellant’s counsel then engaged in ex parte communications with the military judge
without appellant present. Defense counsel told the military judge they could no
longer ethically represent appellant and requested permission to withdraw from the
case. The military judge assumed counsel were talking about perjured testimony;
however, she did not ask counsel for specifics and counsel did not proffer any
specifics regarding appellant’s prospective testimony. 2

The proceedings resumed in an Article 39(a) session without the members
present. The military judge informed appellant his counsel wished to withdraw
because his counsel expected him to testify inconsistently with prior statements he
made to them. Responding to questions from the military judge, both counsel stated
they could not ethically call appellant to the stand to testify. The military judge

1
Although CPT B is no longer a member of the armed forces, all references are to
her military rank at the time of the court-martial. Additionally, CPT M has been
promoted to major. We will also refer to him by his rank at the time of appellant’s
court-martial.
2
The military judge later testified about these events at the first DuBay hearing.

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explained the narrative procedure through which appellant would testify and
informed appellant he would testify without the benefit of counsel. She further
explained that trial counsel, members, and the military judge could examine
appellant, but that his trial defense counsel could not argue to the members anything
appellant said during his narrative. Appellant said he understood the military
judge’s explanation and accepted her offer to discuss the matter further with his
counsel. After another recess, the military judge confirmed appellant wanted to
testify, called the members to the courtroom, and called appellant to the stand.
Appellant testified in narrative form for approximately two hours without the
assistance of counsel. He responded to the prosecution’s detailed cross-examination
and answered a series of questions from the members asked by the military judge.
The defense rested its case at the conclusion of his testimony. The government
offered brief testimony in rebuttal, calling appellant’s first sergeant who testified
that, in his opinion, appellant was untruthful.

First DuBay Hearing

At the first DuBay hearing, both CPT B and CPT M refused to specify why
they concluded appellant would testify falsely. Captain B said she still had an
attorney-client relationship with appellant, while CPT M said he “believed he still
had an obligation to [appellant].” Both counsel said the Rules of Professional
Conduct of their respective bars prohibited them from disclosing any confidential
communications, 3 even though CPT B acknowledged appellant had executed a
limited waiver, consenting to a “limited disclosure of confidential communication
. . . reasonably necessary for CPT [B] to respond to allegations concerning her
representation of [appellant].” Although appellant’s DuBay defense counsel
repeatedly asked the military judge to direct CPT B and CPT M to provide specific
responses, the military judge failed to order specific responses, stating he was
unsure whether he had the authority to do so.

The military judge found “the information that led counsel to conclude that
there was an ethical problem is mostly conceptual, although there are some specific

3
At the time of trial, CPT B was a member of the Texas Bar, while CPT M was a
member of the Utah and District of Columbia (D.C.) Bars. In accordance with the
applicable Rules of Professional Conduct, counsel were required to try to persuade
an accused to refrain from perjurious testimony. If counsel could not dissuade an
accused, withdrawal may have been an acceptable resolution. See Army Reg. 27-26,
Legal Services: Rules of Professional Conduct for Lawyers [hereinafter AR 27-26],
3.3 cmt (1 May 1992); Utah Code Jud. Admin. Rule 3.3 cmt; D.C. Bar Appx. A, Rule
3.3 cmt; Tex. R. Prof. Conduct 3.03 cmt.

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BAKER – ARMY 9800743

facts that support counsel’s decision.” He explained “conceptual” to mean: “I do
not have specific instances or matters other than [appellant’s] inconsistencies in
describing the conviction.” Although counsel failed to provide any specific details,
the military judge found “counsel determined that they could not ethically call
[appellant] to the stand.”

Second DuBay Hearing

At the second DuBay hearing, CPT B and CPT M testified with greater
specificity. The DuBay judge made extensive findings of fact, which we summarize
as follows:

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

(2) While trial defense counsel requested appellant provide details and
specific information to prepare his defense, he did not do so until the day of trial,
and then provided a binder of documents and proposed areas of inquiry that were
either cumulative or tangential;

(3) Trial defense counsel believed appellant would perjure himself by
claiming he left his place of duty to get a haircut; claiming his unit used the
particular type of color printer cartridges that appellant allegedly stole; lying about
his 1985 federal convictions for making false, fictitious, and fraudulent statements,
and possessing a falsified document to aid someone to obtain money from the federal
government;

(4) Trial defense counsel based their conclusion regarding the haircut on
appellant’s admission to them on one occasion that he failed to get a haircut; his
subsequent retraction of that admission; and his failure to provide any corroborating
information for his retraction;

(5) Trial defense counsel based their conclusion that appellant was untruthful
regarding the stolen printer cartridges on: supply room logs revealing the unit never
stocked the printer cartridges in question; information from the supply room
noncommissioned officers (NCOs) that none of the unit’s computers used those
printer cartridges; CPT B’s observation that appellant had hundreds of color copy
resumes and a personal computer printer that used that type of cartridge in his
barracks room; the discovery of a bag full of printer cartridges for appellant’s
personal printer that had been paid for with a government credit card; and the bag

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containing the cartridges was found in a military vehicle operated by appellant.
After investigating, CPT M independently reached the same conclusion as CPT B; 4

(6) Trial defense counsel based their conclusion on appellant’s veracity
regarding his prior federal conviction on his varied accounts of the facts underlying
his conviction which conflicted with CPT B’s electronic research regarding the
conviction and documentation the prosecution provided the defense team;

(7) Captain B’s standard for concluding appellant would testify falsely was
whether she knew her client would lie, which she saw as a high standard of proof.
She did not believe her client had to admit guilt to an underlying offense before she
refused to present his testimony;

(8) Captain M’s standard was likewise very high, akin to beyond a reasonable
doubt, and he also did not believe the analysis depended on whether his client
admitted guilt;

(9) Trial defense counsel and appellant originally agreed, as a tactical
decision, appellant would not testify because of appellant’s “very desultory thought
process,” poor character for truthfulness which CPT B uncovered in her
investigation, and prior federal conviction. At the last moment, appellant changed
his mind and decided to testify. Given appellant’s unpredictable nature, it was not
possible for counsel to have appellant tailor his testimony;

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

(11) Consistent with their “fiduciary obligations” [sic], both counsel refrained
from divulging specifics to the military judge at trial. They exercised the best
option they saw available to protect themselves and appellant.

Summary

We adopt the second DuBay judge’s findings of fact. In addition, based on
the entire record before us, we conclude: prior to trial, CPT B and CPT M together
confronted appellant about his perceived falsehoods and could not obtain
explanations from him; during the court-martial, appellant notified his defense
counsel of his intent to testify; CPT B specifically informed appellant during recess

4
The DuBay judge found that CPT B and CPT M accounted for the supply NCOs’
own credibility issues, and relied heavily on the documented fact that appellant’s
unit supply room never stocked those particular cartridges.

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BAKER – ARMY 9800743

she could not call him to testify because she believed he would lie; and both counsel
possessed an objective, firm, factual basis to conclude appellant would perjure
himself.

We also find appellant was untruthful regarding the haircut offenses at trial
when he testified he got a haircut every time he was ordered to get one. We further
find appellant was untruthful when he testified he regularly placed the printer
cartridges on the shelves in the supply room and they regularly disappeared over the
course of the following month.

DISCUSSION

A determination regarding the effectiveness of counsel is a mixed question of
law and fact. Strickland v. Washington, 466 U.S. 668, 698 (1984) (establishing a
two-prong test for determining ineffective assistance of counsel); United States v.
Wean, 45 M.J. 461, 463 (C.A.A.F. 1997); United States v. Dobrava, 64 M.J. 503
(Army Ct. Crim. App. 2006). We review findings of fact under a clearly erroneous
standard, but the question of ineffective assistance of counsel flowing from those
facts is a question of law we review de novo. United States v. McClain, 50 M.J.
483, 487 (C.A.A.F. 1999).

Under the first prong of Strickland, which examines the
issue of deficiency in performance, we ask: (A) Are
appellant’s allegations true? (B) If so, is there a
reasonable explanation for counsel’s actions? (C) If there
is not a reasonable explanation, did defense counsel’s
level of advocacy fall measurably below the performance
ordinarily expected of fallible lawyers?

United States v. Dobson, 63 M.J. 1, 10 (C.A.A.F. 2006) (citing United States v.
Grigoruk, 56 M.J. 304, 307 (C.A.A.F. 2002), and United States v. Polk, 32 M.J. 150,
153 (C.M.A. 1991)).

“Even if counsel’s performance was deficient, the defense must ordinarily
surmount the second prong of Strickland, which measures prejudice. The defense
bears the burden of demonstrating that ‘there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been
different.’” 63 M.J. at 10 (quoting Strickland, 466 U.S. at 694). In most cases, the
prejudice prong is the most critical, for “‘if we conclude that any error would not
have been prejudicial under the second prong of Strickland, we need not ascertain
the validity of the allegations or grade the quality of counsel’s performance under
the first prong.’” Id. (quoting United States v. Saintaude, 61 M.J. 175, 179-80
(C.A.A.F. 2005)).

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During oral argument before this court after the second DuBay hearing,
appellate defense counsel urged us to follow United States Supreme Court dicta in
United States v. Cronic, 466 U.S. 648 (1984). In a Cronic footnote, the Supreme
Court cited several cases where it “uniformly found constitutional error without any
showing of prejudice when counsel was either totally absent, or prevented from
assisting the accused during a critical stage of the proceeding.” 466 U.S. at 659–60
n.25. 5 In each of those cases, however, either state criminal procedure prevented
counsel from assisting the accused, or counsel were not present for a critical stage of
the proceeding through no fault of the accused. Where an accused is, in part,
responsible for the unavailability of his counsel, as in an instance of prospective
perjury, we will apply Strickland and test for prejudice.

I. The Legal Standard

An attorney must have a firm factual basis to believe the client intends to
commit perjury before acting in a manner limiting representation of a client and
must first attempt to dissuade the client from committing perjury. See Baker, 58
M.J. at 387–88. 6 Should counsel’s efforts to dissuade the client fail, counsel must
take appropriate, remedial measures. First, the attorney should try to structure the
client’s testimony to avoid areas where the client will commit perjury. Should this
prove impossible, the next step is to provide the court nonspecific notice the client
will testify in the free narrative form. See id. at 386. Finally, only in situations
where the attorney-client relationship is irreparably damaged should counsel seek to
withdraw. See id. at 387.

5
See Geders v. United States, 425 U.S. 80 (1976); Herring v. New York, 422 U.S.
853 (1975); Brooks v. Tennessee, 406 U.S. 605, 612–13 (1972); Hamilton v.
Alabama, 368 U.S. 52, 55 (1961); White v. Maryland, 373 U.S. 59, 60 (1963) (per
curiam); Ferguson v. Georgia, 365 U.S. 570 (1961); Williams v. Kaiser, 323 U.S.
471, 475–76 (1945).
6
The CAAF also provided guidance for counsel confronting a problem with potential
client perjury. The court suggested counsel first investigate the validity of the
evidence to be offered at trial; if such an investigation provides a firm factual basis
to anticipate perjury, counsel should discuss the issue with the client and review the
facts, the basis for the attorney’s concern, and potential consequences for the client,
such as the obligation to tell the truth, possible criminal sanctions, trial tactics, and
the effect of narrative testimony; should the client persist in testifying, the attorney
should request an ex parte proceeding on the record with the accused in attendance.
Baker, 58 M.J. at 387. The CAAF also noted it was not establishing mandatory
practices. Id. at 388.

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

II. Trial Practice

Counsel who are convinced a client intends to commit perjury are caught
between two conflicting obligations: confidentiality of information and candor
toward the tribunal. See AR 27-26, Rule 1.6 (confidentiality of information); Rule 3.3
(candor toward the tribunal). A lawyer’s duty to maintain a client’s confidences and
secrets is a cornerstone of building trust and communication. See United States ex
rel. Wilcox v. Johnson, 555 F.2d 115, 122 (3d Cir. 1977) (keeping inviolate client’s
ability to communicate confidentially with counsel essential to adversary system).
If an accused cannot trust his counsel to keep information confidential, the accused
will not disclose confidences, limiting counsel’s ability to render effective
assistance. Military Rule of Evidence 502(a); see generally United States v.
Marrelli, 4 U.S.C.M.A. 276, 281–82, 15 C.M.R. 276, 281–82 (C.M.A. 1954).

As officers of the court, counsel also have a duty not to offer false testimony.
Baker, 58 M.J. at 385 (citing AR 27-26, Rule 3.3, Rule 3.4(a) (obligation of fairness
to opposing party and counsel)). If an attorney says nothing to the court and offers
perjured testimony in the usual manner, counsel will have participated in a fraud
upon the court. See Nix v. Whiteside, 475 U.S. 157, 169, 173 (1986) (lawyer
complicit in client perjury faces prosecution or disciplinary action). In the course of
attempting to prevent perjury, an attorney might disclose a client’s confidential
communications to the court either directly or indirectly, depending on the tactical
approach counsel takes to the problem. See United States v. Long, 857 F.2d 436,
447 (8th Cir. 1988) (moving to withdraw or having client testify in narrative form
discloses suspicion of perjury). Counsel should refrain from directly disclosing
specific confidences if at all possible. See Baker, 58 M.J. at 386 (counsel made
nonspecific disclosure to court that client will testify in free narrative form);
Johnson, 555 F.2d at 122 (counsel should not disclose private conjectures about
client to the court); cf. United States v. Midgett, 342 F.3d 321, 326 (4th Cir. 2003)
(not lawyer’s place to decide client was lying and to disclose that belief to the court
based on suspicion of perjury).

An example of an indirect disclosure occurred in the present case. Counsel’s
motion to withdraw led the military judge to suspect potential perjury, which
constitutes at least an implied revelation of client confidences. Notification of the
accused’s intent to testify in the narrative form would also have led the military
judge to suspect potential perjury.

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At trial, the military judge instructed CPT B and CPT M to prepare
memoranda for record outlining circumstances before and after appellant’s testimony
to assist evaluating potential claims regarding ineffective assistance of counsel. At
the first DuBay hearing, both counsel testified they prepared a memorandum in
accordance with the judge’s instructions. Due to the passage of time and subsequent
events, neither counsel could produce their respective memoranda. Although we
commend the military judge’s foresight, in the future military judges should obtain,
seal, and attach such memoranda as appellate exhibits. Baker, 58 M.J. at 388.
Where a military judge is not the trier of fact, an ex parte proceeding to ensure
counsel has a firm factual basis for believing the client will commit perjury may be
appropriate. United States v. Roberts, 20 M.J. 689, 691–92 (A.C.M.R. 1985); see
United States v. Elzy, 25 M.J. 416 (C.M.A. 1988); Lowery v Cardwell, 575 F.2d 727
(9th Cir. 1978). 7 Only with the accused’s express and informed consent should such
a proceeding address areas within the scope of the attorney-client privilege and work
product doctrine.

III. Sixth Amendment Right to Effective Assistance of Counsel

The Sixth Amendment guarantees a criminal appellant the right to the
assistance of counsel at trial. U.S. Const. amend. VI. To satisfy the guarantee of
the Sixth Amendment, counsel must provide effective assistance. Strickland, 466
U.S. at 686. An accused also has a Constitutional right to testify. Harris v. New
York, 401 U.S. 222, 225 (1971). Notwithstanding its Constitutional stature,
however, an accused’s right to testify has its limits. In Whiteside, 475 U.S. at 173,
the Supreme Court made clear an appellant has no Sixth Amendment right to a
counsel willing to participate in presenting perjured testimony. Accordingly, the
right to testify includes neither the right to commit perjury nor the right to the
assistance of counsel in doing so. Harris, 401 U.S. at 225; Whiteside, 475 U.S. at
173.

IV. Suspicions of Perjury

Courts employ a variety of standards to determine whether an attorney
justifiably believed a client intended to commit perjury. See Long, 857 F.2d at 446

7
In civilian proceedings, the recommended practice is to have an ex parte
proceeding before a judge who is not presiding over the trial. See, e.g., Carol T.
Rieger, Client Perjury: A Proposed Resolution of the Constitutional and Ethical
Issues, 70 MINN . L . REV . 121 (1985); Brian Slipakoff & Roshini Thayaparan, Current
Developments 2001: The Criminal Defense Attorney Facing Prospective Client
Perjury, 15 G EO . J. L EGAL E THICS 935, 942–43 (2000). At courts-martial, another
military judge could be detailed for such hearings.

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(“firm factual basis” standard); Johnson, 555 F.2d at 122 (stating same);
Commonwealth v. Mitchell, 781 N.E.2d 1237 (Mass.) (stating same), cert. denied,
539 U.S. 507 (2003); In re Grievance Committee, 847 F.2d 57, 63 (2d Cir. 1988)
(“actual knowledge” standard); Iowa v. Hischke, 639 N.W.2d 6 (Iowa 2002)
(“convinced with good cause” standard); Wisconsin v. McDowell, 681 N.W.2d 5
(Wisc. 2004) (requiring express admission that accused intends to commit perjury);
Shockley v. Delaware, 565 A.2d 1373 (Del. 1989) (beyond a reasonable doubt
standard); Illinois v. Calhoun, 815 N.E.2d 492 (Ill. App. 2004) (“good faith
determination” standard). In previously reviewing this case, the CAAF announced it
“shall not require a higher standard than [the] firm factual basis” standard discussed
in Johnson. Baker, 58 M.J. at 386.

When the question of perjured testimony by a defendant
arises, we require that the lawyer act in good faith and
have a firm basis in objective fact. Conjecture or
speculation that the defendant intends to testify falsely are
not enough. Inconsistencies in the evidence or in the
defendant’s version of events are also not enough to
trigger the lawyer's obligation not to elicit false testimony,
even though the inconsistencies, considered in light of the
Commonwealth’s proof, raise concerns in counsel’s mind
that the defendant is equivocating and is not an honest
person. Similarly, the existence of strong physical and
forensic evidence implicating the defendant would not be
sufficient. Counsel can rely on facts made known to him,
and is under no duty to conduct an independent
investigation.

Calhoun, 815 N.E.2d at 503 (quoting Mitchell, 781 N.E.2d at 1250–51) (calling for
Illinois Supreme Court to adopt firm factual basis test).

V. Counsel’s Firm Factual Basis

In appellant’s case, CPT B and CPT M obtained proof of appellant’s
falsehoods through their investigations which were further complicated by
appellant’s constantly changing version of the facts. The varying accounts were
more than merely inconsistent; they were directly contradictory. As defense counsel
observed, the contradictions rendered appellant’s story “physically impossible.”
Further, appellant confessed to an instance of failing to obtain a haircut and, despite
his subsequent recantation, never provided any evidence to support his retraction.

While inconsistencies alone are insufficient to justify a motion to withdraw,
appellant’s inconsistencies included an admission of guilt. Captain B and CPT M

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were entitled to rely on appellant’s admission that he failed to obtain a haircut. See
Mitchell, 781 N.E.2d at 1247 (investigation unnecessary where accused admits
guilt). Appellant’s failure to explain his confession and its subsequent retraction
further solidified his counsel’s basis to conclude he would lie.

We reach the same conclusion as to appellant’s explanation of the larceny
offenses. Unlike the haircut question, appellant did not admit to stealing the
cartridges. His lie, however, involves the reason he obtained the cartridges from the
Self-Service Supply Center. Appellant’s claim he needed to restock the unit’s
supply room since the cartridges were “flying off the shelves” is patently untrue.
First, the unit records establish it never stocked that brand of printer cartridges, and
the supply sergeants told the defense team none of the unit’s computers used those
cartridges. Second, defense counsel knew appellant used a large number of
cartridges of the same type as the stolen ones.

Appellant’s case closely resembles Commonwealth v. Mitchell. Like Mitchell,
appellant confessed to one of his offenses to his counsel, then denied it. The
Mitchell court determined “[t]he defendant’s admission was different in kind from
inconsistencies in details.” 781 N.E.2d at 1247. Such is the case here; appellant’s
admission that he did not get a haircut when ordered to do so is not the same as
giving varying accounts of the same denial of wrongdoing.

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

A. Attempt to Dissuade

During the recess, when appellant told his counsel he changed his mind and
wanted to testify, CPT B attempted to dissuade appellant from testifying. CPT B
advised him he was not permitted to lie on the stand and explained the tactical
reasons why he should not testify, to include his prior conviction and the evidence
of his poor character for truthfulness. She warned appellant of the repercussions
should he insist on testifying falsely, specifically counsel’s inability to assist him in
presenting perjured testimony and losing the assistance of counsel if he testified
falsely. Counsel did not clearly explain to appellant which portions of his
prospective testimony they believed to be perjurious. Neither CPT B nor CPT M
testified they advised appellant of the potential criminal sanctions he might face if
he committed perjury. While this failure to advise appellant more fully of the
ramifications of presenting perjured testimony might under other circumstances
constitute error, under the specific circumstances of this case we find defense
counsel adequately discharged their duties under Strickland.

Both defense counsel repeatedly confronted appellant with their concerns
about his proposed testimony prior to his decision to testify. In the second DuBay

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hearing, CPT B told the military judge that appellant would shrug his shoulders,
“would shut down,” or would change the subject when counsel confronted him
before trial about his lies. 8 Captain B spent several months with appellant preparing
his case and clearly relayed her concerns to him; CPT M had a less-involved history
with appellant, but was no less clear in expressing his concerns. Counsel tailored
the confrontational aspects of their conversations with appellant to convey their
message without causing him to “shut down” completely. Appellant’s initial
agreement with counsel’s recommendation not to testify understandably forestalled
further efforts to extract a true account of events from him. When appellant changed
his mind mid-trial, counsel had less of an opportunity to address his new decision.
Counsel’s initial confrontations with appellant, however, suffice to satisfy their duty
to address their concerns about his testimony with him.

The second DuBay judge, having had the benefit of observing appellant’s
testimony and demeanor under both direct and cross examinations, concluded:

appellant’s personality and nature, and his inability to
follow a narrow, focused train of thought[,] made it
virtually impossible for [CPT M] and CPT [B] to limit
direct examination . . . to avoid potential areas of false
testimony, especially given the last minute reversal of the
mutual decision that . . . appellant would not testify.

Based upon our review of the record, we agree. Appellant was unmanageable. Had
defense counsel attempted to present his testimony in a controlled manner designed
to avoid perjury, they most likely would have failed.

We also note that in the course of receiving advice on the initial offer of
nonjudicial punishment, appellant spoke with every defense counsel in the local
Trial Defense Service office, meaning he spoke with at least two other attorneys
before returning to CPT B. After initially demanding his right to trial by court-
martial when offered nonjudicial punishment for the haircut offenses, appellant
twice agreed with defense counsel to accept nonjudicial punishment proceedings in
lieu of the court-martial. Each time defense counsel persuaded appellant’s command

8
Notably, appellant’s reticence in the face of a challenge to his veracity prompted
CPT M to have appellant psychiatrically evaluated. According to the testimony at
the DuBay proceedings, the evaluation did not indicate appellant suffered from any
mental disease or defect impairing his ability to communicate with counsel or to
understand their communications. While counsel’s descriptions of appellant’s
actions may indicate appellant did not communicate with them, any inability to do so
was not due to appellant’s lacking the capacity to communicate.

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

Both defense counsel had extensive experience and characterized appellant as
unique based on his unpredictable and difficult nature. In response to a question
about her ability to work with appellant to guide his testimony away from areas
where he would lie, CPT B testified “[t]here are some witnesses that I think I
probably could have worked with . . . to create testimony that stayed away from
those areas; I don’t believe that was possible with [appellant]. He was completely
uncontrollable.” She later testified “I had never run into this situation before. I
had, at this point, tried dozens of cases, both as a prosecutor and defense counsel. I
had never been in a position where I felt I could not call anyone to the stand, with
the exception of [appellant].” Captain M referred to appellant as “[t]he most
difficult” client, and stated he “had never been in the position where [he] requested
a withdrawal from the court.” 9

Regarding counsel’s duty to advise appellant of potential criminal sanctions,
it is important to note appellant was familiar with the legal consequences for making
false statements. He defended himself in his prior federal prosecution, presented his
own appeal after his conviction, and sought a writ of certiorari from the United
States Supreme Court after the appellate court affirmed his case. Appellant,
therefore, was on actual notice that making false statements in an official federal
government matter could result in criminal liability. Failure to reiterate that point to
appellant when he decided to disregard counsel’s advice in the middle of his court-
martial and testify does not constitute a professional deficiency on these facts.

Counsel also did not advise appellant of the risks of testifying in the free
narrative form. While counsel’s advice to appellant could have been more complete
under the Baker standard, we find they adequately discharged their duties. The
military judge explained the free narrative form to appellant before obtaining his
decision to testify. While neither counsel nor the military judge specifically advised
appellant of the tactical problems inherent in free narrative form testimony, we find
the absence of such advice in this case does not render counsel professionally
deficient. In any event, counsel advised appellant he would have to testify without
their assistance and he chose to testify.

Indeed, in the beginning of his testimony, appellant gave a facially
plausible reason for his testifying in the free narrative form: “I chose to give a
category [sic] explanation to you gentleman [sic] for each individual charge

9
The latter quotation from CPT M’s testimony comes from the first DuBay hearing,
while the former comes from the second DuBay hearing.

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because you’re here to judge me as a soldier and an individual. So you get to
hear from me.” Even if we were to characterize counsel’s performance as
deficient, we cannot say there is a reasonable probability of a different result
based on their advice to appellant. See Strickland, 466 U.S. at 694; Saintaude,
61 M.J. at 175–76. In fact, appellant contested all twelve specifications against
him and the panel convicted him of only four. Baker, 58 M.J. at 390.
Significantly, the panel found him not guilty of all specifications for the
offenses of larceny 10 and dereliction of duty, not guilty of all specifications of
one of the willful disobedience charges, and not guilty of three of the four
specifications of absence from duty. Id. Ironically, therefore, appellant’s
perjured testimony resulted in no prejudice to him—it actually inured to his
benefit.

Appellant also wanted to testify in part so he could explain his belief that his
unit discriminated against activated Reserve Component Soldiers, despite counsel’s
warnings of the problems he would create by doing so. Even after counsels’ efforts
and attempt to withdraw, appellant did not heed this advice. It is clear appellant
intended to testify and perjure himself no matter what his counsel said. While a
difficult and unpredictable client does not forfeit his right to effective assistance of
counsel, we are satisfied there is nothing CPT B or CPT M could have done to
prevent appellant from committing perjury. Under these facts, counsel acted
properly in accordance with their duty of candor to the tribunal.

B. The Motion to Withdraw

The next question is whether counsel acted appropriately in moving to
withdraw. Withdrawal is a more drastic remedy than the use of the free narrative
form, and has the potential effect of depriving the client of the assistance of counsel
for the remainder of the trial. Cf. Baker, 58 M.J. at 386 (noting some authorities see
withdrawal as too disruptive “and simply foists the issue on the next attorney”). Our
superior court would limit motions to withdraw to situations where the attorney-
client relationship has deteriorated to the point where effective representation is no
longer possible. Id. at 387. Nothing indicates such was the case here. Counsels’
decision to withdraw was premature.

Nevertheless, counsel moved to withdraw in a manner that preserved
appellant’s confidences as much as possible. The military judge denied the motion

10
Although the panel could not conclude beyond a reasonable doubt that appellant
committed the larcenies, their findings of not guilty do not cause us to question CPT
B and CPT M’s decision, or our own conclusion that counsel had a firm factual basis
to believe appellant would perjure himself when testifying about these charges.

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to withdraw, leaving appellant in the same position he would have occupied had
counsel initially chosen the free narrative form. We do not fault counsel for their
no-notice decision in the middle of this hotly contested trial. See United States v.
Young, 50 M.J. 717, 725 (Army Ct. Crim. App. 1999) (question is not whether a
different attorney would do a better job, but whether the attorney advising accused
was professionally deficient), aff’d, 58 M.J. 15 (C.A.A.F. 2002) (summary
disposition). Counsels’ performance in this case did not “fall measurably below the
performance normally expected of fallible lawyers.” Dobson, 63 M.J. at 10 (quoting
Grigoruk, 56 M.J. at 307; Polk, 32 M.J. at 153).

While counsel should not have sought to withdraw and only should have
notified the military judge their client would testify in the free narrative form, the
end result was the same: appellant testified, and his counsel did not aid in the
presentation of perjured testimony. There is no reasonable probability of a different
result if counsel had made the ideal motion. In the future, however, counsel should
not seek to withdraw “unless the circumstances as a whole have produced such an
irreconcilable conflict between counsel and the accused that effective representation
no longer is possible.” Baker, 58 M.J. at 387.

CONCLUSION

Prior to trial, appellant told his defense counsel he failed to comply with an
order to get a haircut. The unit’s supply records and MSG Hyde’s information
established the printer cartridges in question never entered the supply room.
Appellant clearly informed his counsel he intended to testify to the contrary on these
matters and changed his mind in the middle of the trial to reverse his decision not to
testify and drastically altered the defense trial strategy. Under these circumstances,
his counsel could not participate in appellant’s testimony. Defense counsel’s
decision did not deprive appellant of effective assistance of counsel, and his claims
to that effect are without merit.

We have reviewed the matters personally raised by appellant under United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and find them to be without merit.

DECISION

The findings of guilty and the sentence are affirmed.

Judge SULLIVAN and Judge HOLDEN concur.

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FOR THE COURT:

MALCOLM H. SQUIRES, JR.
Clerk of Court

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