United States v. Ker ( 2020 )

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 39715
________________________
UNITED STATES
Appellee
v.
Marshall B. KER
Senior Airman (E-4), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 15 December 2020
________________________
Military Judge: Shaun S. Speranza (arraignment); Bryon T. Gleisner.
Approved sentence: Dishonorable discharge, confinement for 17 months,
forfeiture of all pay and allowances, and reduction to E-1. Sentence ad-
judged 25 April 2019 by GCM convened at the Eglin Air Force Base,
Florida.
For Appellant: Lieutenant Colonel Garrett M. Condon, USAF; Robert
Feldmeier, Esquire.
For Appellee: Lieutenant Colonel Brian C. Mason, USAF; Major Peter
F. Kellett, USAF; Mary Ellen Payne, Esquire; Alexis Dorner (legal ex-
tern). 1
Before LEWIS, RAMÍREZ, and D. JOHNSON, Appellate Military
Judges.
Judge RAMÍREZ delivered the opinion of the court, in which Senior
Judge LEWIS and Judge D. JOHNSON joined.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
1 Ms. Dorner was at all times supervised by an attorney admitted to practice before
this court.
United States v. Ker, No. ACM 39715
________________________
RAMÍREZ, Judge:
A general court-martial composed of a military judge sitting alone found
Appellant guilty, pursuant to his pleas and a pretrial agreement (PTA), of one
charge and two specifications of attempted sexual assault of a child and at-
tempted sexual abuse of a child, all in violation of Article 80, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. § 880. 2 While Appellant was charged with
two additional specifications, also under Article 80, UCMJ, the convening au-
thority agreed to withdraw and dismiss both with prejudice as a term of the
PTA.
The military judge sentenced Appellant to a dishonorable discharge, con-
finement for 17 months, forfeiture of all pay and allowances, and reduction to
the grade of E-1. The convening authority approved the sentence as adjudged,
and the PTA had no impact on the convening authority’s ability to approve the
adjudged sentence. 3
On appeal, Appellant raises three assignments of error: (1) whether Appel-
lant’s plea as to Specification 4 of the Charge was improvident based on the
Care inquiry; 4 (2) whether Appellant’s trial defense counsel were ineffective in
presentencing; and (3) whether Appellant’s plea was improvident based on an
alleged lack of mental responsibility or, in the alternative, because his dimin-
ished mental state made him susceptible to undue pressure from his defense
counsel. 5 Finding no error materially prejudicial to Appellant, we affirm the
findings and sentence.
I. BACKGROUND
The Internet Crimes Against Children (ICAC) Task Force is made up of
federal, state, and local law enforcement and prosecutorial agencies. The pur-
pose of the Task Force is to engage in proactive and reactive investigations and
prosecutions of persons involved in child abuse and exploitation using the In-
ternet. Law enforcement agents involved in ICAC operations are trained in
2All references to the Uniform Code of Military Justice and Rules for Courts-Martial
(R.C.M.) are to the Manual for Courts-Martial, United States (2016 ed.).
3The PTA provided that the convening authority would approve no confinement in
excess of 18 months.
4 See United States v. Care, 40 C.M.R. 247 (C.M.A. 1969).
5This issue was raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.
1982).
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United States v. Ker, No. ACM 39715
conducting undercover Internet child exploitation operations, developing an
undercover child persona, engaging with subjects on the Internet, avoiding en-
trapment of subjects, and preserving electronic evidence.
In early January 2018, the Air Force Office of Special Investigations
(AFOSI) at Eglin Air Force Base (AFB), Florida, was working an ICAC opera-
tion. AFOSI Special Agent MB was assigned to the operation and went under-
cover. His online persona was a 14-year-old girl named “Molly Turner.” Agent
MB created and posted an advertisement on the “Casual Encounters” subsec-
tion of the Internet website “Craigslist.” 6 The posting stated: “Our little secret
- w4m (Eglin) . . . New to area and lookin for someone to show me around . . . I
live on base so must be able to get on . . . send a pic in reply Discreet a must.”
On 5 January 2018, Appellant, 26 years old at the time, responded by email
through the Craigslist posting with two photographs and a statement that he
worked on Eglin AFB. Within the first four email messages between “Molly”
and Appellant, “Molly” notified him that she was a child by stating that she
“live[s] on base w my mom” and “well I wann b real w u first I’m a red head
and 14 almost 15 yo. Just wann b real first.” The next day, Appellant acknowl-
edged that “Molly” was a child by asking what she was looking for and why she
posted online at her age. “Molly” responded that she was just “lookin 4 fun.
Boys my age r immature.” On this same day Appellant and “Molly” moved their
conversations from the email feature of Craigslist to the “Kik” messaging ap-
plication. 7
Later that same day, Appellant turned the conversation to sex. Appellant
told “Molly,” “I like public play if I’m safe of getting caught, I like to give anal
and oral, I like kissing and foreplay, learning new positions, etc.” He explained
to her that “public play” is “[l]ike a fitting room, or movie theater, a park, etc,”
and inquired “[d]oes any of that sound interesting to you?”
The next day, 7 January 2018, Appellant suggested the idea of a threesome
between himself, “Molly,” and a 14-year old friend of hers. He also talked to
her about anal sex and the importance of using sexual lubricant. Later that
same day, Appellant began to make arrangements to meet “Molly” in person
and asked her if she wanted to have “some car fun.” With that, “Molly” asked
6Quotes from “Craigslist” and text messages between Appellant and “Molly Turner”
appear in their original form, without correction.
7Kik is a cross-platform instant messenger application that allows users who register
a username to send messages and share files. It is available free of charge and uses a
smartphone’s data plan or Wi-Fi to transmit and receive messages, photos, videos,
sketches, mobile webpages, and other content.
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United States v. Ker, No. ACM 39715
if Appellant would bring anything with him and he responded with the sugges-
tion of taking “lube” with him.
On 8 January 2018, Appellant formalized his plan to meet “Molly” in person
the next day after she returned home from school. They arranged to meet at a
parking lot on Eglin AFB. True to the plan, the next day, Appellant travelled
to the arranged meeting location in his personal vehicle, where he was inter-
cepted and apprehended. After a search of Appellant’s car, law enforcement
officers found two unopened condoms and a sealed pump bottle of lubricant
labeled “uberlube” wrapped inside toilet paper.
After the charge and specifications were referred to trial, Appellant, with
the assistance of counsel, negotiated a PTA and entered into a stipulation of
fact. Appellant stipulated that his arrival at a predesignated location to meet
“Molly” with lubricant and condoms was accomplished in order to commit a
sexual act upon a child, “Molly,” by causing penetration, however slight, of her
anus with his penis. Appellant also stipulated that his arrival at a predesig-
nated location to meet “Molly” amounted to more than mere preparation, and
was a substantial step and a direct movement toward the commission of the
intended offense.
II. DISCUSSION
A. Providence of Guilty Plea
Appellant alleges that the military judge abused his discretion by finding
that Appellant’s guilty plea was providently entered as to Specification 4 of the
Charge because his Care inquiry revealed only mere preparation to commit
sexual assault. We first note that Appellant means Specification 2, not 4. Ap-
pellant refers to the conduct in Specification 2 when he claims that his pleas
were improvident and argues that he only described acts constituting mere
preparation and that travel to a rendezvous location is mere preparation when
significant steps remain in order for an Appellant to be guilty. Specification 2
alleged that Appellant attempted to commit a sexual act upon “Molly,” a person
whom he believed to be a child who had attained the age of 12 years but not 16
years, to wit: penetrating “Molly’s” anus with his penis. On the other hand,
Specification 4 alleged that Appellant communicated indecent language. Ap-
pellant does not argue anything in his assignments of error related to com-
municating indecent language. As explained below, we disagree that Appel-
lant’s plea to Specification 2 was improvident.
1. Law
We review a military judge’s decision to accept a guilty plea for an abuse of
discretion. United States v. Blouin, 74 M.J. 247, 251 (C.A.A.F. 2015) (citation
omitted). “A military judge abuses his discretion if he fails to obtain from the
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United States v. Ker, No. ACM 39715
accused an adequate factual basis to support the plea—an area in which we
afford significant deference.” United States v. Inabinette, 66 M.J. 320, 322
(C.A.A.F. 2008) (citation omitted).
“The test for an abuse of discretion in accepting the guilty plea is whether
the record shows a substantial basis in law or fact for questioning the plea.”
United States v. Moon, 73 M.J. 382, 386 (C.A.A.F. 2014) (citation omitted). An
appellant bears the “burden to demonstrate a substantial basis in law and fact
for questioning the plea.” United States v. Finch, 73 M.J. 144, 148 (C.A.A.F.
2014) (quoting United States v. Negron, 60 M.J. 136, 141 (C.A.A.F. 2004)).
“[W]here a guilty plea is first attacked on appeal, we must construe the
evidence in a light most favorable to the Government.” United States v. Hub-
bard, 28 M.J. 203, 209 (C.M.A. 1989) (Cox, J., concurring).
Rule for Courts-Martial (R.C.M.) 910(e) explains that the “military judge
shall not accept a plea of guilty without making such inquiry of the accused as
shall satisfy the military judge that there is a factual basis for the plea.” “Mere
conclusions of law recited by an accused are insufficient to provide a factual
basis for a guilty plea.” United States v. Outhier, 45 M.J. 326, 331 (C.A.A.F.
1996) (citation omitted). When entering a guilty plea, the accused should un-
derstand the law in relation to the facts. United States v. Care, 40 C.M.R. 247,
251 (C.M.A. 1969).
The record of trial must show that the military trial judge questioned the
accused about what he did or did not do, and what he intended. Id. at 253. This
is to make clear to the military judge whether the accused’s acts or omissions
constitute the offense to which he is pleading guilty. Id. “If an accused sets up
matter inconsistent with the plea at any time during the proceeding, the mili-
tary judge must either resolve the apparent inconsistency or reject the plea.”
United States v. Hines, 73 M.J. 119, 124 (C.A.A.F. 2014) (internal quotation
marks and citation omitted).
“This court must find a substantial conflict between the plea and the ac-
cused’s statements or other evidence in order to set aside a guilty plea. The
mere possibility of a conflict is not sufficient.” Id. (internal quotation marks
and citation omitted). “The Court applies this ‘substantial basis’ test by deter-
mining whether the record raises a substantial question about the factual basis
of appellant’s guilty plea or the law underpinning the plea.” United States v.
Hobbs, ARMY 20100791, 2011 CCA LEXIS 138, at *3 (A. Ct. Crim. App. 29
Jul. 2011) (unpub. op.) (citing Inabinette, 66 M.J. at 322).
In reviewing the providence of an appellant’s guilty pleas, “we consider his
colloquy with the military judge, as well any inferences that may reasonably
be drawn from it.” United States v. Timsuren, 72 M.J. 823, 828 (A.F. Ct. Crim.
App. 2013) (quoting United States v. Carr, 65 M.J. 39, 41 (C.A.A.F. 2007)).
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Article 80, UCMJ, defines an attempt as “[a]n act, done with specific intent,
to commit an offense . . . amounting to more than mere preparation and tend-
ing, even though failing, to effect its commission.” Manual for Courts-Martial,
United States (2016 ed.) (MCM), pt. IV, ¶ 4.a.(a). To constitute more than “mere
preparation,” the act must be a “substantial step” towards commission of the
offense. See United States v. Schoof, 37 M.J. 96, 102 (C.M.A. 1993) (citations
omitted). A “substantial step” must be conduct “strongly corroborative of the
firmness of the defendant’s criminal intent.” United States v. Hale, 78 M.J. 268,
272 (C.A.A.F. 2019) (citing United States v. Byrd, 24 M.J. 286, 290 (C.M.A.
1987)). An attempt is more than “devising or arranging the means or measures
necessary for the commission of the offense;” rather, it is a “direct movement
toward the commission after the preparations are made.” Id. at 271 (quoting
Schoof, 37 M.J. at 103). However, “[t]he overt act need not be the last act es-
sential to the consummations of the offense.” Id. (citation omitted).
The elements of the underlying offense of sexual assault of a child in this
case required proof beyond a reasonable doubt that: (1) Appellant committed a
sexual act upon a child by causing penetration of her anus with his penis; and
(2) at the time of the sexual act, the child had attained the age of 12 years but
had not attained the age of 16 years. See MCM, pt. IV, ¶ 45b.b.(3)(a).
In cases involving attempted sexual exploitations of a minor arranged
through the Internet, what must be analyzed is “the online dialogue.” United
States v. Winckelmann, 70 M.J. 403, 408 (C.A.A.F. 2011) (citations omitted).
This is “to distinguish hot air and nebulous comments from more concrete con-
versation that might include making arrangements for meeting the supposed
minor, agreeing on a time and place for a meeting, making a hotel reservation,
purchasing a gift, or traveling to a rendezvous point.” Id. (alterations, internal
quotation marks, and citations omitted).
The United States Court of Appeals for the Armed Forces (CAAF) has “rec-
ognized that a substantial step could be comprised of something as benign as
travel, arranging a meeting, or making hotel reservations.” Hale, 78 M.J. at
272 (footnote and citation omitted).
2. Analysis
Appellant argues that his plea of guilty was improvident. He claims that
based on the Care inquiry, his actions only constituted mere preparation. Ap-
pellant alleges that by accepting his guilty plea, the military judge abused his
discretion.
Appellant bases his argument on the contention that by driving to the park-
ing lot, he simply prepared to meet “Molly” and had not yet completed a sub-
stantial step. Appellant argues that he would have had to travel to another
location to complete the “substantial step” requirement because according to
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United States v. Ker, No. ACM 39715
him, it “is clear that the proposed sexual transaction would not occur in a park-
ing lot, in public, during apparent daylight, in the full view of others.” However,
text messages between Appellant and “Molly” in the Stipulation of Fact indi-
cate otherwise, as does the Care inquiry.
When Appellant and “Molly” were exchanging messages about trying anal
intercourse and deciding an appropriate meeting place, Appellant wrote, “Lol
so you’d want some car fun?” To which Molly responded, “Sure if u want lol
kinda good I’m excited . . . .” Molly then sent another message immediately
thereafter presumably correcting her last message by writing, “Sounds good
. . . .”
It is clear from this exchange that Appellant expected to engage in anal
intercourse, with Molly, in his car, in the parking lot. This is evident when
coupled with what Appellant said under oath, on the record, during the Care
inquiry. In his own words, Appellant explained:
Eventually we talked about anal intercourse, and Molly seemed
to me to be open and willing to try it. We planned to meet in
person, and when she asked me if I would bring any lubrication,
I agreed. I got off work on the 9th of January 2018, and I drove
my car from where I worked to meet Molly in the parking lot
near the Bayview Club, which is on Eglin [AFB]. I had condoms
and lubricant with me in the car. I had them with me because I
believed that I was meeting up with Molly Turner[ ] and I be-
lieved that we were going to have anal intercourse. And by that,
Your Honor, I admit to you that I believed I was going to pene-
trate her anus with my penis.
When the military judge asked Appellant what acts he took in meeting
“Molly,” Appellant explained that they agreed on a place to meet, that he “gath-
ered” the condoms and the lubricant, and placed them in his car in the morning
before he went to work. He explained that after work, he drove to the meeting
area, parked, and waited for her. The military judge clarified this by asking
Appellant if he intended to engage in sexual acts with “Molly” when he put the
condoms and lubricant in his vehicle and drove to the club. Appellant stated
that he did. Appellant also stated that he would have committed the offense of
sexual assault of a child if “Molly” had been a real person of the age of 14.
Further, Appellant agreed that his acts went beyond mere preparation and
were a substantial step in a direct movement toward the commission of the
offense of sexual assault of a child.
The military judge satisfied his obligations by explaining the elements of
the specification and questioning Appellant about what he intended to do with
“Molly.” The specification addressed Appellant’s attempted sexual assault of a
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United States v. Ker, No. ACM 39715
child. Appellant stated that he understood the elements of the offense, agreed
that his acts had satisfied all the elements, and described his relationship with
“Molly” from its inception to its conclusion.
As to the issue of “more than mere preparation and taking a substantial
step towards the commission of the offense,” this too is satisfied. As discussed,
Appellant drove to the parking lot to meet Molly and engage in anal intercourse
with her in his car. Additionally, Appellant had condoms and a lubricant in his
car to facilitate the anal intercourse. Appellant completed the preparation for
this offense once he and Molly agreed on a time, date, and location to meet. It
is indicative of his intent to engage in the sexual act upon his arrival at the
location, and therefore reinforces that his travel to the location was a substan-
tial step. Driving to the agreed-upon location at the agreed-upon time on the
agreed-upon date was the direct movement toward the commission as contem-
plated by Hale. See 78 M.J. at 272 (citation omitted).
Finally, we conclude that Appellant did not set up matter inconsistent with
the plea which would have required the military judge to either resolve the
apparent inconsistency or reject the plea. Therefore, we find that the military
judge did not abuse his discretion when finding Appellant’s plea to be provi-
dent.
B. Ineffective Assistance of Counsel
In a post-trial declaration submitted to this court, Appellant alleges that
trial defense counsel were ineffective in pre-sentencing, claiming they did not
seek to admit Appellant’s desired evidence and had no valid reason for failing
to do so. Appellant’s claim can be broken up into three arguments, claiming his
counsel failed to: (1) submit letters of support, (2) introduce medical evidence,
and (3) call certain witnesses. After considering the declarations submitted, 8
we find that trial defense counsel had a reasonable explanation for not submit-
ting the documents, calling witnesses, or introducing medical evidence.
1. Additional Background
Appellant states in his declaration that he directed his detailed trial de-
fense counsel to submit what he claims were significant mitigation matters for
his presentencing case. Specifically, Appellant states that he directed trial de-
fense counsel to submit letters of support from friends and family, and provided
8 We considered Appellant’s and trial defense counsel’s declarations to resolve the
raised issues. See United States v. Jessie, 79 M.J. 437, 444 (C.A.A.F. 2020) (holding
Courts of Criminal Appeals may consider affidavits when doing so is necessary for re-
solving issues raised by materials in the record); United States v. Polk, 32 M.J. 150,
153 (C.M.A. 1991).
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United States v. Ker, No. ACM 39715
the letters of support to his counsel as well as the names and contact infor-
mation of his family members, friends, and co-workers who could testify or pro-
vide additional character letters. Appellant’s declaration alleges that his coun-
sel did not contact the witnesses or offer any of the character letters.
Next, Appellant states that he provided his counsel with his medical rec-
ords. He claims these records indicated he was suffering from multiple psychi-
atric and neurological conditions during the charged timeframe. Aside from
medical records, Appellant asserts that he provided his counsel with infor-
mation regarding social pressures that affected his mental state at the time of
his charged offenses. Appellant claims that his counsel did not bring any of
these matters to the attention of the court-martial despite Appellant’s view
that they were significant and readily available.
Finally, Appellant states that both of his grandparents were present in the
courtroom for presentencing proceedings and that they could have been called
as witnesses, given that they raised him. Trial defense counsel did not call ei-
ther grandparent to testify.
Appellant was represented by two trial defense counsel at his court-mar-
tial, Captain (Capt) KR and Capt KS. Both provided responsive declarations,
which we consider in resolving Appellant’s claims.
Capt KR explained that as part of their sentencing preparation, the De-
fense interviewed numerous individuals whom Appellant listed as potential
witnesses. Those witnesses included Appellant’s roommate, supervisors, cur-
rent and former co-workers, his wife, the psychologist who conducted the
R.C.M. 7069 inquiry, and his grandparents.
According to Capt KR, each of the interviews revealed some negative facts
that would have been disadvantageous if revealed during the presentencing
hearing. Capt KR provided the following example: Appellant dating a woman
shortly after arriving at Eglin AFB, while Appellant’s wife remained in Little
Rock, Arkansas. Given the charged offenses, Capt KR felt that listing this wit-
ness would risk that the Prosecution would find out about this relationship,
which would be detrimental to their case. As to Appellant’s wife, Capt KR in-
dicated that Appellant was receiving the with-dependent rate of Basic Allow-
ance for Housing while separated, but Appellant did not provide his wife any
significant financial support, and trial defense counsel did not want to draw
attention to this fact by highlighting Appellant’s living situation.
9 Rule for Courts-Martial 706 permits inquiry into the mental capacity or mental re-
sponsibility of the accused if there is reason to believe that the accused lacked mental
responsibility for any offense charged or lacks capacity to stand trial.
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United States v. Ker, No. ACM 39715
The Defense also interviewed Appellant’s supervisors and co-workers who
believed he was between average and “lazy.” Capt KR acknowledged that one
of Appellant’s prior co-workers from Little Rock AFB, Arkansas, recounted a
positive incident where Appellant selflessly helped a stranded motorist change
a tire at nighttime in the rain. However, once counsel informed the potential
witness of the charges and that his testimony would be used for sentencing
purposes, the co-worker became hesitant and made it clear that he did not
want to provide a “character reference.” Capt KR explained that this was a
recurring theme, as even individuals that had positive things to say about Ap-
pellant would immediately distance themselves and become uncooperative
once they learned about the charges.
Capt KR indicated that the Defense did interview Appellant’s grandpar-
ents. However, it became evident to trial defense counsel that Appellant’s
grandparents were not aware of what was going on in Appellant’s life. Capt
KR and Capt KS discussed the pros and cons of their testimony and decided
that having either one of the grandparents testify would make Appellant look
secretive and deceptive on cross-examination, as it was clear that he was in-
tentionally withholding information from the people that loved him dearly. Ac-
cording to Capt KR, it seemed that the grandparents’ opinion of Appellant was
based upon an unrealistic picture of their grandson. 10
Capt KR explained that due to Appellant’s medical history, the Defense
requested a sanity board pursuant to R.C.M. 706. The medical history reviewed
by the Defense included an off-base neuropsychological report from June 2018
that evaluated Appellant for: (1) a September 2017 incident when Appellant
hit his head while underneath an aircraft; and (2) a March 2018 car accident
in which Appellant was rear-ended. After the R.C.M. 706 inquiry was ordered
and completed, Capt KS interviewed the psychologist who conducted the ex-
amination and both counsel discussed, at length, the pros and cons of introduc-
ing the R.C.M. 706 report. Trial defense counsel concluded that introducing the
report as evidence, or calling the psychologist as a witness, would have resulted
in the Government receiving the complete version of the report, which was con-
cerning from a defense perspective because it could have used to paint a picture
of Appellant as an individual who tried to exploit his medical issues in order to
lessen his culpability. The Defense decided that this was not beneficial at a
presentencing hearing where one of their most powerful arguments was that
Appellant took responsibility for his actions by pleading guilty.
10Appellant’s paternal grandmother submitted a letter on his behalf during the clem-
ency portion of the case. We infer her testimony at Appellant’s sentencing hearing
would have been similar to her letter.
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United States v. Ker, No. ACM 39715
The Defense also considered introducing documentary evidence in the form
of character letters. However, this would have required the Defense to ask that
the rules regarding hearsay, foundation, and authentication be relaxed pursu-
ant to R.C.M. 1001(d)(3). This was concerning to trial defense counsel due to
the plethora of evidence that would have been available to the Prosecution as
a result of relaxing the rules. Capt KR believed the evidence would have been
disadvantageous.
Capt KS’s declaration provides similar points to Capt KR’s. Capt KS ex-
plained that after evaluating all of the facts and evidence, the defense strategy
centered on attempting to minimize Appellant’s potential period of confine-
ment. According to Capt KS, Appellant agreed to plead guilty to a mandatory
dishonorable discharge offense, so limiting confinement was Appellant’s prior-
ity. Capt KS explained that the defense team sought to portray Appellant as
an Airman who understood his mistakes and was prepared to take responsibil-
ity for them. For this reason, trial defense counsel strategically chose not to
elicit any evidence beyond Appellant’s unsworn statement. Trial defense coun-
sel tailored the information considered by the military judge to avoid opening
doors to unfavorable evidence they knew existed and which the Government
could admit through impeachment and rebuttal. Specifically, Capt KS noted
that she had successfully advocated for Appellant’s commander not to prefer
an additional charge related to alleged fraud of basic allowance for housing and
failure to provide support to his wife.
Capt KS also addressed the categories of evidence Appellant raises on ap-
peal. She explained that like all of their “tactical decisions,” both trial defense
counsel discussed their thought process regarding presentencing evidence with
Appellant. Trial defense counsel’s articulated strategy was to limit the De-
fense’s evidence to Appellant’s verbal unsworn statement before the court, his
written unsworn statement, and photographs. Going one step further, trial de-
fense counsel explained their concerns to Appellant regarding the evidence and
what doors could be opened by introducing evidence that at first glance looked
beneficial but could have very negative effects. During those discussions, trial
defense counsel also made it clear to Appellant that he was free to release them
as his counsel if he did not agree with their strategy. Appellant signed a writ-
ten memo the day before he pleaded guilty and was sentenced that stated he
understood and agreed with the defense strategy. Capt KS emphasized that
despite Appellant’s assertion to the contrary in his declaration, Appellant did
not indicate at any point that he desired to submit character letters, call wit-
nesses, or introduce medical evidence, nor did he express disagreement with
their trial defense strategy or their representation.
2. Law
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United States v. Ker, No. ACM 39715
We review claims of ineffective assistance of counsel de novo. United States
v. Akbar, 74 M.J. 364, 379 (C.A.A.F. 2015) (citation omitted). Appellate courts
give great deference to trial defense counsel’s judgments and presume “coun-
sel’s conduct falls within the wide range of reasonable professional assistance.”
United States v. Morgan, 37 M.J. 407, 409 (C.M.A. 1993) (citations omitted).
Ineffective assistance of counsel claims are analyzed under the test set out by
the United States Supreme Court: “(1) whether counsel’s performance fell be-
low an objective standard of reasonableness; and (2) if so, whether, but for the
deficiency, the result would have been different.” United States v. Gutierrez, 66
M.J. 329, 331 (C.A.A.F. 2008) (citing Strickland v. Washington, 466 U.S. 668(1984)). An appellant has the burden to demonstrate “both deficient perfor-
mance and prejudice.” Id. (citation omitted).
Courts begin this analysis “presum[ing] that the lawyer is competent” with
“the burden rest[ing] on the accused to demonstrate a constitutional violation.”
United States v. Cronic, 466 U.S. 648, 658 (1984) (footnote and citation omit-
ted).
The CAAF recast the Strickland standard by asking:
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 advo-
cacy “fall measurably below the performance . . . [ordinarily ex-
pected] of fallible lawyers”?
3. If defense counsel was ineffective, is there “a reasonable prob-
ability that, absent the errors,” there would have been a differ-
ent result?
United States v. Gooch, 69 M.J. 353, 362 (C.A.A.F. 2011) (alterations in origi-
nal) (quoting United States v. Polk, 32 M.J. 150, 153 (C.M.A. 1991)).
An appellant overcomes the presumption of competence only when he
shows there were “errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466
U.S. at 687. This court does “not measure deficiency based on the success of a
trial defense counsel’s strategy, but instead examine[s] ‘whether counsel made
an objectively reasonable choice in strategy’ from the available alternatives.”
Akbar, 74 M.J. at 379 (quoting United States v. Dewrell, 55 M.J. 131, 136
(C.A.A.F. 2001)). For this reason, defense counsel receive wide latitude in mak-
ing tactical decisions. Cullen v. Pinholster, 563 U.S. 170, 195 (2011) (citing
Strickland, 466 U.S. at 689). Moreover, “[t]he likelihood of a different result
must be substantial, not just conceivable.” Harrington v. Richter, 562 U.S. 86,
112 (2011) (citation omitted). In making this determination, courts must be
“highly deferential” to trial defense counsel and make every effort “to eliminate
12
United States v. Ker, No. ACM 39715
the distorting effects of hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from counsel’s perspective at
the time.” Strickland, 466 U.S. at 689.
In determining whether to grant a post-trial hearing to resolve a factual
matter pursuant to United States v. DuBay, 37 C.M.R. 411 (C.M.A. 1967), we
are guided by the standard enunciated in United States v. Ginn, 47 M.J. 236(C.A.A.F. 1997). Courts of Criminal Appeals do not “decide disputed questions
of fact pertaining to a post-trial claim, solely or in part on the basis of conflict-
ing affidavits submitted by the parties.” Ginn, 47 M.J. at 243. However, we
may resolve competing claims when a post-trial claim is “conclusively refuted
as to the alleged facts by the files and records of the case” and “state conclu-
sions instead of facts, contradict the record, or are ‘inherently incredible.’” Id.
at 244 (quoting United States v. McGill, 11 F.3d 223, 226 (1st Cir. 1993)).
3. Analysis
As an initial matter, we note Appellant’s general objections to the declara-
tions of his counsel as referenced in his reply brief. 11 Specifically, we are not
persuaded by Appellant “generally object[ing] to both declarations, to the ex-
tent the responses exceed the [c]ourt’s order, specifically for releasing confiden-
tial as well as secret information known by defense counsel relating to the rep-
resentation that was unnecessary to rebut the claims of ineffective assistance
of counsel.” Additionally, we are not persuaded by Appellant “generally ob-
ject[ing] to both declarations, to the extent the responses exceed the [c]ourt’s
order, specifically for releasing information privileged under [Mil. R. Evid.]
302.” After reviewing trial defense counsel’s declarations, we find they were
sufficiently detailed and necessary to address each issue raised by Appellant.
As to the disputed questions of fact on the basis of conflicting affidavits
submitted by the parties, we have considered whether to order a DuBay hear-
ing by relying on Ginn. We find that we may resolve these competing claims
without such a hearing, as Appellant’s position is conclusively refuted by the
files and records of the case attached to the appellate record. 12
As to the appellate issues, Appellant and his trial defense counsel agree
that certain witnesses and certain evidence were not admitted. As such, we
begin our analysis with the first question of the Gooch standard: Is there a
reasonable explanation for counsel’s actions?
11Appellant did not submit a response to the Government’s motion to attach the dec-
larations.
12Specifically, there is a memo executed by Appellant entitled, “my decisions about
character evidece [sic] and the defense case.”
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United States v. Ker, No. ACM 39715
We find there is a reasonable explanation and that each explanation is
based on tactical decisions made as objectively reasonable choices in strategy
from the available alternatives. Here we do not resort to distorting effects of
hindsight or reconstruct the circumstances of counsel’s challenged conduct, but
instead we evaluate the conduct from counsel’s perspective at the time that
advice was given or decisions were made.
As to the issue of not calling witnesses such as Appellant’s roommate, co-
workers, wife, and grandparents, the reasonable explanation is that these wit-
nesses may have provided damaging testimony that portrayed Appellant in a
significantly unfavorable light. This was a sufficient basis not to call them as
sentencing witnesses.
With regards to not securing letters of support from others, the reasonable
explanation is that a recurring theme developed for trial defense counsel—as
individuals that had positive things to say about Appellant, they would imme-
diately distance themselves and become uncooperative once they learned about
the charges. Additionally, to get this evidence admitted, trial defense counsel
would have been required to request the relaxation of the evidentiary rules
during the sentencing phase, pursuant to R.C.M. 1001(c)(3). This would have
opened the door for the Government to attack the proffered evidence, as R.C.M.
1001(d) allows the Military Rules of Evidence to be relaxed for the Government
once they have been relaxed for the Defense.
As to the mental health issues, the reasonable explanation is that the evi-
dence could have shown that Appellant used his ailments and injuries as ex-
cuses for his actions; they could show that neither Appellant’s mental or phys-
ical diagnoses would account for the behavior that led to the charged offenses;
and the complete R.C.M. 706 report might paint a picture of Appellant as an
individual who tried to exploit his medical issues to lessen his culpability.
Again, this was a sufficient basis to not admit evidence of Appellant’s physical
injuries and mental health issues.
It is clear that trial defense counsel discussed the pros and cons of each
issue raised on appeal by Appellant amongst themselves and with Appellant,
and ultimately decided that it was not beneficial at a presentencing hearing
where one of their most powerful arguments was that Appellant took respon-
sibility for his actions by pleading guilty.
Trial defense counsel’s articulated strategy was to limit the Defense’s evi-
dence to Appellant’s statement before the court, his written statement, and
photographs, and thereby limit the Government’s evidence in rebuttal. This
was certainly reasonable based on the Gooch standard. Therefore, based on the
matters that trial defense counsel agree with Appellant were not done, this
court does not find that Appellant has met his burden. We affirmatively find
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United States v. Ker, No. ACM 39715
that trial defense counsel were not ineffective in their representation of Appel-
lant.
C. Providence of Guilty Plea
As a Grostefon issue, Appellant personally alleges that his pleas were im-
provident because he was not mentally competent at the time of his offenses.
He then states that this court should order the production of the medical rec-
ords which are the focus of the second assignment of error to prove his point.
Alternatively, Appellant asserts that his injuries and medication regimen
made him susceptible to the undue influence of his trial defense counsel and
that he would not have pleaded guilty but for the undue influence of his defense
team. We do not agree with Appellant as to either matter.
1. Law
With regard to the providence of his guilty pleas, we rely on the law as
articulated in our discussion of Appellant’s first assignment of error. Addition-
ally, as it applies to Appellant’s request to order the entirety of his R.C.M. 706
long report, it is an issue of a post-trial dispute over discovery relevant to an
appeal.
“When faced with a post-trial dispute over discovery relevant to an appeal,
an appellate court . . . must determine whether the appellant met his threshold
burden of demonstrating that some measure of appellate inquiry is war-
ranted.” United States v. Campbell, 57 M.J. 134, 138 (C.A.A.F. 2002) (citation
omitted). Among other things, this court should consider:
(1) whether the [appellant] has made a colorable showing that
the evidence or information exists;
(2) whether or not the evidence or information sought was pre-
viously discoverable with due diligence;
(3) whether the putative information is relevant to appellant's
asserted claim or defense; and
(4) whether there is a reasonable probability that the result of
the proceeding would have been different if the putative infor-
mation had been disclosed.
Id.
2. Analysis
We begin by declining Appellant’s invitation to order the production of the
full, complete R.C.M. 706 report. Based on the record before us, Appellant has
not demonstrated relevance for the production of this document. Additionally,
the information provided by trial defense counsel as it relates to the full, com-
plete R.C.M. 706 report makes it clear that there is no reasonable probability
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United States v. Ker, No. ACM 39715
that the result of the proceeding would have been different if the putative in-
formation had been disclosed.
Everything that is in the record points directly to Appellant knowing what
he did at the time of his criminal offenses and at the time of his guilty plea. He
was unambiguous, on the record, that he could have avoided committing his
criminal offenses if he had wanted to.
Additionally, there is nothing before us to suggest that trial defense counsel
unduly influenced him to plead guilty. Appellant clearly told the military
judge, under oath, that he had enough time to discuss his plea of guilty with
his trial defense counsel; that he was satisfied with his trial defense counsel’s
advice concerning his plea of guilty; and that he was pleading guilty not only
because he hoped to receive a lighter sentence, but also because he was con-
vinced that he was, in fact, guilty. Additionally, Appellant told the military
judge that he was pleading guilty voluntarily and of his own free will and that
no one made any threats or tried in any way to force him to plead guilty.
In his own words on the attempted sexual assault of a child offense, Appel-
lant told the military judge:
I do take total responsibility for all of my actions. No one forced
me to do the things that I did, and I could have stopped talking
to her at any point. I could have also never driven to meet her. I
did everything described of my own free will, and I realized that
if Molly was actually a person who I believed that she was, I
would have committed a sexual assault of a child. Your Honor, I
do know how wrong—wrong doesn’t even begin to describe it. I
do know how wrong this was, and I'm very sorry about it.
Based on the record before us, we find that Appellant’s pleas were provi-
dent, Appellant was not mentally incompetent at the time of his offenses, and
that there was no undue influence by his trial defense counsel.
III. CONCLUSION
The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to the substantial rights of Appellant occurred. Arti-
cles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c).
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United States v. Ker, No. ACM 39715
Accordingly, the findings and the sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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